Exhibit (m)(34)
SERVICES AGREEMENT
(REGISTERED FUNDS)
This Agreement is made as of the 17th day of February, 2003 between: (1)
Investor Force Securities, Inc. ("IFS"), and (2) Banc One Investment Advisor
Corporation ("Manager") and One Group Dealer Services, Inc. ("Distributor"),
both of which are collectively referred to as "Fund/Agent".
RECITALS
A. Manager is an investment adviser to one or more open-end management
investment companies with one or more series or classes of shares (each such
series or class of shares a "Fund") and Distributor is the principal underwriter
or distributor for the Funds.
B. IFS is registered as a broker-dealer with the Securities and Exchange
Commission ("SEC") under the Securities Exchange Act of 1934, as amended, and is
a member of the National Association of Securities Dealers, Inc. (the "NASD").
C. Fund/Agent wishes to have IFS provide to Fund/Agent or on its behalf
certain distribution and administrative services with respect to the Funds.
D. Fund/Agent wishes to engage IFS to list Fund/Agent's Funds on private
websites operated or hosted by IFS and/or its affiliates or on websites where
IFS provides the underlying platform technology (collectively, the "Website").
E. IFS agrees to provide such services on the terms and conditions set forth
herein.
AGREEMENT
THEREFORE, in consideration of the mutual promises set forth herein, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
I. Website Services
A. Definitions
(1) "IFS Client" shall mean any Website user, or any affiliate, successor
or client of such user, that (i) accesses and/or uses the IFS
screening and search tools available on the Website, (ii) accesses or
downloads Fund/Agent Information (defined below) before investing in
any Funds managed or operated by Fund/Agent or an affiliate or
successor of Fund/Agent (a "Program"), and (iii) places an order to
invest in any Fund/Agent Program through the Website. If the Website
user is a consultant or intermediary who accesses the Website and
takes the other actions set forth in clauses (i), (ii) and (iii) on
behalf of clients, such clients shall also be "IFS Clients" for
purposes of this Agreement.
(2) "Client Investments" shall mean any and all capital contributions,
reinvestments and appreciation thereon, by an IFS Client, placed in
any Fund/Agent Program.
(3) "Fees" shall mean any and all annual, asset based investment advisory
fees from Client Investments received by Fund/Agent.
(4) "IFS Fees" shall mean that percentage of Client Investments and/or
Fees to be paid to IFS as provided for in Exhibit B of this Agreement.
(5) "Fund/Agent Information" shall mean any information that relates to
Fund/Agent, its Programs or other products or services that are
received from Fund/Agent by IFS and posted or displayed by IFS on the
Website. All Fund/Agent Information downloaded or printed from the
Website shall bear either the name of IFS or a source code to identify
information provided through IFS to an IFS Client.
X. Xxxxx of Right. Fund/Agent hereby gives IFS, and IFS hereby accepts, the
right to list on the Website Fund/Agent Information, for the Funds listed on
Exhibit A to this Agreement; to provide contact and other information to
Fund/Agent regarding parties which have been determined by IFS to be eligible to
receive Fund/Agent Information; and to introduce or promote Fund/Agent's
products and services.
C. Duties, Representations and Warranties of IFS
(1) Promotion of Fund/Agent Products. IFS will list Fund/Agent Information
on the Website. IFS will not add content to the Fund/Agent Information
as supplied by the Fund/Agent without the Fund/Agent's prior consent.
Upon notification to the Fund/Agent, IFS may decline to list any
portion of the Fund/Agent Information in its reasonable discretion.
IFS agrees that it will maintain the confidentiality of any
proprietary information disclosed to IFS by Fund/Agent, which
Fund/Agent has designated to IFS as confidential. IFS will use
reasonable efforts to introduce IFS Clients to Fund/Agent or to
promote Fund/Agent's services. IFS will not do so on a full-time basis
and may do so on behalf of other Fund/Agents. The determination of how
to allocate its efforts will be entirely within IFS' discretion.
(2) Broker-Dealer. IFS represents that it is registered as a broker-dealer
with the Securities and Exchange Commission, is a member of the
National Association of Securities Dealers, Inc., and is registered,
licensed or authorized to do business in each jurisdiction in which it
conducts business; and that it, and each person associated with it,
otherwise has such governmental and regulatory approvals as are
required to conduct the business contemplated by this Agreement.
(3) Website Disclaimer. IFS will display on the publicly accessible
portion of the Website language substantially as follows:
(a) Broker-dealers and their agents and investment advisers and their
agents may only transact business in a particular state or
country if they are licensed or otherwise qualified to do so
under the regulatory requirements of that state or country.
2
(b) Follow up, individualized responses to consumers in a particular
state or country by broker-dealers and their agents and
investment advisers and their agents which involve transactions
in securities, soliciting transactions in particular securities,
or providing personalized investment advice for compensation
requires that the broker-dealer, investment adviser or their
respective agents comply with licensing, registration and other
requirements imposed by that state's or country's laws and
regulations.
(c) For information regarding the licensure status or disciplinary
history of a broker-dealer, investment adviser or its agents, a
consumer should contact his or her state securities law
administrator or national financial services regulatory agency.
(4) Generic Information in Public Section. Information available on the
publicly accessible portion of the Website will be generic in nature
and will not refer to specific Fund/Agents, products or services. IFS
does not warrant that third parties making extraordinary efforts to
avoid such access restrictions will be prevented from gaining access
to Fund/Agent Information.
D. Duties Representations and Warranties of Fund/Agent Regarding the Website
Services
(1) Fund/Agent acknowledges that IFS has expended considerable time,
effort and expense in developing the Website and its client base.
Fund/Agent agrees that the names of and information pertaining to IFS
Clients are proprietary and confidential information belonging to IFS.
Fund/Agent acknowledges that the dissemination of such information
would greatly damage IFS. Fund/Agent shall treat such information as
confidential and not allow the dissemination of the names or related
information of IFS Clients, except as provided under Part VI of this
Agreement.
(2) Fund/Agent will provide to Lipper, Inc., all Fund/Information
electronically in a timely manner. IFS will include such information
in its Website by accessing the Lipper data. If the parties determine
to include other information, Fund/Agent will provide Fund/Information
to IFS electronically in a timely manner.
(3) Fund/Agent will provide IFS with timely updates of information related
to its Programs. In the event any Program is closed to new investment,
Fund/Agent will notify IFS in writing within 48 hours of such closing.
3
II. Distribution Services
A. Sales of Shares - Distributor grants IFS the right to sell to IFS Clients
shares of the Funds at the net asset value per share, plus any applicable fees
in accordance with the current prospectus during the term of this Agreement and
subject to the rules and regulations of the SEC, the NASD and the laws governing
the sale of securities in the various states ("Blue Sky Laws"), as applicable to
each Program.
B. Solicitation of Sales - In consideration of these rights granted to IFS,
IFS agrees to use reasonable efforts in connection with the distribution of the
Programs; provided, however, that IFS shall not be prevented from entering into
like arrangements with other Fund/Agents.
C. Authorized Representations - IFS is not authorized to give any information
or to make any representations other than those contained in the current
registration statements and prospectuses of the Funds filed with the SEC or
contained in shareholder reports, or other material that may be prepared by or
on behalf of the Fund/Agent for IFS's use. IFS may prepare and distribute sales
literature and other material as it may deem appropriate, provided that such
literature and materials have been prepared in accordance with applicable rules
and regulations.
D. Registration of Shares - Distributor agrees that it will take all action
necessary to register shares of the Funds under the federal and state securities
laws so that there will be available for sale the number of shares IFS may
reasonably be expected to sell and to pay all fees associated with such
registration. Distributor shall make available to IFS such number of copies of
each Fund's currently effective prospectus, statement of additional information,
annual and semi-annual reports and other periodic financial reports as IFS may
reasonably request, without charge to IFS.
E. Transaction Processing and Settlement - The IFS transaction processing
system shall enable IFS Clients to purchase, redeem and exchange shares of Funds
through IFS. IFS shall facilitate settlement with each Fund of IFS Client
transactions in such Fund insofar as such transactions are transmitted to
Fund/Agent through the IFS clearing agent on behalf of IFS Clients. IFS will
process orders for the purchase of Fund shares only on behalf of customers
residing in jurisdictions wherein the shares are registered or qualified for
sale, which shall include all U.S. jurisdictions except insofar as Fund/Agent
shall notify IFS in writing to the contrary.
Fund/Agent will supply to IFS all relevant information to enable IFS to
effect transactions on behalf of IFS Clients including, but not limited to, wire
instructions, bank information, Fund information, opening dates and investment
cut-off times. Any changes in such information will be communicated, in writing,
to IFS within 48 hours.
Fund/Agent agrees that it shall obtain proper authority for IFS, or its
designated agent, to transmit to the Fund/Agent daily manual trades for the
Funds until 4:00 p.m. Eastern Time, or such other times as set forth on Exhibit
A, which trades shall remain eligible for that day's net asset value if such
trades were received in good order by IFS prior to 4:00 P.M. Eastern Time on
such day.
4
Payments for shares shall be made as specified in the applicable Fund
prospectus, (i.e., by wire directly to State Street Bank and Trust Company, the
Funds' transfer agent). If payment for any purchase order is not received in
accordance with the terms of the applicable Fund prospectus, Fund/Agent reserves
the right, without notice, to cancel the sale and to hold IFS responsible for
any loss sustained as a result thereof, including loss of profit.
F. IFS Client Account Statement Preparation and Distribution - With respect to
each IFS Client holding Program investments through IFS, IFS, or its designated
agent, shall deliver or cause to be delivered to such IFS Client periodic
statements, whether by electronic mail or otherwise.
G. Confirmation Preparation and Distribution - IFS, or its designated agent,
shall generate an electronic or written confirmation for each purchase,
redemption and exchange transaction affecting each IFS Client's Program
investments held through IFS to the extent such confirmation is required, and
such confirmation shall be distributed to IFS Clients through or on behalf of
IFS.
H. Payment of Fund Distributions - IFS, or its designated agent, shall
distribute to IFS Clients all dividend, capital gain or other payments
authorized by a Fund and distributed to and received by IFS, and such
distributions shall be credited to IFS Clients in accordance with the
instructions provided by each IFS Client, including but not limited to dividend
reinvestment into the Fund, or cash payments of distributions.
I. Prospectus Fulfillment - Subsequent to any IFS Client's acquisition of
shares of a Fund by purchase or exchange, IFS shall provide to such IFS Client a
confirming prospectus for such Fund to the extent such prospectus is required
with respect to such acquisition and is provided by the Fund to IFS or its
designee.
Fund/Agent acknowledges and agrees that IFS is not responsible for (i)
the compliance of any prospectus or supplement thereto, annual report, proxy
statement or item of advertising or marketing material of or relating to any
Fund, with any applicable laws, rules or regulations, (ii) the registration or
qualification of any shares of any Fund under any federal or applicable state
laws or (iii) the compliance by any Fund or Fund/Agent or any "affiliated
person" (as that term is defined under the Investment Company Act of 1940, as
amended), with any applicable federal or state law, rule, or regulation or the
rules and regulations of any self-regulatory organization with jurisdiction over
such Fund, Fund/Agent or affiliated person.
III. Representations and Warranties
A. Fund/Agent represents, warrants and covenants now and on a continuing basis
that:
(1) it has the requisite authority to enter into this agreement on its own
behalf and on behalf of the Fund(s), and that it has all required
governmental and regulatory approvals and licenses required to conduct
the business contemplated by this Agreement.
(2) that the payment to IFS of any fees pursuant hereto:
5
(a) has been duly authorized by the Fund(s), the Board of Trustees of
the Fund(s), or any other persons to the extent such
authorization is required to properly make such payment;
(b) is in conformity with all federal and state laws or regulations
to which the Funds or their agents are subject.
(3) it will make all reasonable efforts to effect transactions from IFS
Clients, IFS, or its designated agent, at the then current price or
the next calculated net asset value provided that IFS or its
designated agent meets the Fund/Agent's deadline for the submission of
such orders.
B. IFS represents, warrants and covenants now and on a continuing basis that:
(1) it is a corporation duly organized under the laws of the State of
Delaware and is duly registered and/or qualified as a broker-dealer
with the SEC and the NASD and in every state or territory of the
United States of America (including the District of Columbia) where
such registration or qualification is required and has the requisite
authority under the law of the state of its organization to enter into
this Agreement and to carry out the services as contemplated herein;
(2) IFS agrees to notify OGDS immediately in the event of (1) the
termination of its coverage by the SIPC; (2) its expulsion or
suspension from the NASD, or (3) its being found to have violated any
applicable federal or state law, rule or regulation arising out of its
activities as a broker-dealer or in connection with this Agreement, or
which may otherwise affect in any material way its ability to act in
accordance with the terms of this Agreement. IFS's expulsion from the
NASD will automatically terminate this Agreement immediately without
notice. Suspension of IFS from the NASD for violation of any
applicable federal or state law, rule or regulation will terminate
this Agreement effective immediately upon OGDS' written notice of
termination to IFS.
(3) IFS will offer and sell the shares of the Funds only in accordance
with the terms and conditions of the applicable current Prospectus and
Statement of Additional Information ("SAI") and will make no
representations not included in said Prospectus or SAI or in any
authorized supplemental material supplied by Fund/Agent. IFS shall not
have any authority in any transaction to act as agent for Fund/Agent.
(2) the execution and delivery of this Agreement and the performance of
the services contemplated herein have been duly authorized by all
necessary corporate action on its part, and this Agreement constitutes
the valid and binding obligations of IFS; and
6
(3) it is in material conformity with all federal, state and industry laws
or regulations to which it is subject.
C. Each party hereto represents and warrants that it shall provide to the
others such information or documentation necessary for such party to fulfill its
obligations hereunder, such other information or documentation as any party may
reasonably request, and that it shall comply with such operating policies and
procedures as the parties may adopt from time to time.
IV. Fees
For the services provided by IFS hereunder, Manager shall pay to IFS a fee
with respect to each Program as set forth in Exhibit B.
In the event the parties agree to material changes to the scope of services
provided hereunder, the parties agree to negotiate in good faith as to
appropriate amendment to the fees due IFS.
V. Indemnification
Fund/Agent shall indemnify and hold harmless IFS and each officer, employee
and agent of IFS from and against any and all claims, demands, actions, losses,
damages, liabilities, or costs, charges, counsel fees, and expenses of any
nature ("Losses") arising out of (i) any inaccuracy or omission in any
Fund/Agent information, prospectus or supplement thereto, registration
statement, annual report or proxy statement, of any Fund or Fund/Agent, any
advertising or promotional material generated by any Fund or Fund/Agent, (ii)
any actions or omissions of IFS and its affiliates, officers, directors, agents
and employees in reliance upon any oral, written or computer or electronically
transmitted instructions, documents or materials believed to be genuine and to
have been given by or on behalf of Fund/Agent; and (iii) any material breach by
Fund/Agent of any representation, warranty, covenant, or agreement contained in
this Agreement.
IFS shall indemnify and hold harmless Fund/Agent and each of its officers,
employees and agents for Losses arising out of (i) any inaccuracy or omission in
any advertising or promotional material relating to the Funds generated by IFS,
(ii) any actions or omissions of Fund/Agent, the transfer agent of the Funds,
and their subsidiaries, affiliates, officers, directors, agents and employees in
reliance upon any oral, written or computer or electronically transmitted
instructions, documents or materials believed to be genuine and to have been
given by or on behalf of IFS; and (iii) any material breach by IFS of any
representation, warranty, covenant, or agreement contained in this Agreement
VI. Confidentiality
In recognition of the considerable time expended by IFS and its affiliates,
and the effort and expense in developing the Website and client base, Manager
acknowledges and agrees that information belonging to IFS and its affiliates is
privileged and confidential. Manager acknowledges and agrees that the
dissemination of such information would greatly damage IFS and its affiliates.
Manager shall treat such information as confidential and not allow the
dissemination of the names or related information of IFS Clients.
7
Each party acknowledges and understands that any and all technical, trade
secret, or business information, including, without limitation, financial
information, business or marketing strategies or plans, product development or
customer information, which is disclosed to the other or is otherwise obtained
by the other, its affiliates, agent or representatives during the term of this
Agreement (the "Proprietary Information") is confidential and proprietary,
constitutes trade secrets of the owner, and is of great value and importance to
the success of the owner's business. Each party agrees to use its commercially
reasonable efforts (the same being not less than that employed to protect its
own proprietary information) to safeguard the Proprietary Information and to
prevent the unauthorized, negligent or inadvertent use or disclosure thereof.
Neither party shall, without the prior written approval of any officer of the
other, directly or indirectly, disclose the Proprietary Information to any
person or business entity except for a limited number of employees, attorneys,
accountants and other advisers of the other on a need-to-know basis or as may be
required by law or regulation. Each party shall promptly notify the other in
writing of any unauthorized, negligent or inadvertent use or disclosure of
Proprietary Information. Each party shall be liable under this Agreement to the
other for any use or disclosure in violation of this Agreement by its employees,
attorneys, accountants, or other advisers or agents. This Section VI shall
continue in full force and effect notwithstanding the termination of this
Agreement for a period of one year after termination.
Proprietary Information shall not include information that the receiving
party can demonstrate (i) was or becomes generally available to the public other
than as a result of a disclosure by the receiving party or its representatives,
(ii) was available to the receiving party on a non-confidential basis prior to
its disclosure to the receiving party by the originating party or its
representatives, provided that the source of such information is not known by
the receiving party to be bound by a confidentiality agreement with the
originating party or any of its representatives, (iii) becomes available to the
receiving party on a non-confidential basis from a source other than the
originating party or any of its representatives, provided that the source is not
known by the receiving party to be bound by a confidentiality agreement with the
originating party or any other of its representatives, or (iv) by written
records was independently developed by the receiving party.
In the event a party is required to disclose Proprietary Information by
subpoena, court order, or order of a government agency, the party may disclose
the information, provided that such party provides timely prior written notice
of such requirement to the other party. Both parties shall cooperate reasonably
to contest or limit the scope of such required disclosure, at the originating
party's sole expense. Proprietary Information may be disclosed to the
arbitrators in a proceeding under Section X.F of this Agreement.
VII. Periodic Reports; Access to Books and Records
A. Fund/Agent acknowledges that the Website is intended to include portfolio
reporting features which will allow IFS Clients or their authorized agents to
view their Client Investments online, via the Website, in a secure, privacy
protected manner. Fund/Agent agrees to furnish any data not received through
other sources necessary to meet this purpose to IFS, or its designated agent, by
electronic or other means agreed to by IFS. IFS will use its commercially
reasonable efforts to assure that such information is viewed in a secure,
privacy protected fashion.
8
B. Fund/Agent and IFS, or their respective authorized representatives, shall
each make available to the other party specially prepared reports concerning
Fees, IFS Fees, Client Investments, and/or other matters bearing specifically
upon this Agreement. Fund/Agent and IFS agree to maintain the confidentiality of
the other party's information obtained pursuant to this subsection VII.B, and
not to disclose such information to any third party except as required by
judicial or regulatory process, or in conjunction with proceedings instituted
under Section IX.F. of this Agreement.
VIII. Duration and Termination of Agreement
With respect to any Program, this Agreement shall become effective upon
the date such Program is identified on Exhibit A, and this Agreement is approved
by each Fund or its Board of Trustees if such approval is required, and shall
continue in force for one year, and shall thereafter continue automatically for
successive annual periods unless earlier terminated and subject to any periodic
approval required by a Fund or its Board of Trustees. This Agreement is
terminable as to any Program by any party (i) upon 60 days notice thereof to the
other party, or (ii) immediately upon notice in the event that the other party
has materially breached this Agreement.
After the date of termination as to any Program, no fee will be due
with respect to any shares of such Program that are first placed or purchased in
IFS Client accounts after the date of such termination. However, notwithstanding
any such termination, Fund/Agent will remain obligated to pay IFS the fee as to
each share of such Program that was considered in the calculation of the fee as
of the date of such termination, for so long as such share is held in the IFS
Client account. This Agreement, or any provision hereof, shall survive
termination to the extent necessary for each party to perform its obligations
with respect to shares for which a fee continues to be due subsequent to such
termination.
The provisions of Sections III, V, VI, VII, VIII and IX of this
Agreement shall survive any termination of this Agreement.
IX. Miscellaneous
A. Use of IFS Name. Fund/Agent will not, nor will Fund/Agent cause or permit
any Program to, describe or refer to the name "IFS" or any derivation thereof,
or to the services or relationship contemplated by this Agreement in any
advertisement or promotional materials without the prior written consent of an
authorized officer of IFS.
IFS will not, nor will IFS cause or permit any affiliate to, describe or refer
to Fund/Agent `s name or the name of any of Managers' Products, or any
derivation thereof, or to the services or relationship contemplated by this
Agreement in any advertisement or promotional materials without the prior
written consent of an authorized officer of Distributor or Manager.
B. Force Majeure. Neither IFS nor its affiliates nor Fund/Agent nor its
affiliates shall be liable to for any damage, claim or other loss whatsoever
caused by circumstances or events beyond its reasonable control. Under such
circumstances neither IFS nor Fund/Agent or its
9
affiliates shall be liable for any action taken or omitted to be taken by it in
good faith in its reasonable commercial judgment.
C. Notices. All notices and communications required or permitted by this
Agreement shall be in writing and delivered personally or sent by first class
mail unless otherwise agreed. All such notices and other communications shall be
made:
If to IFS, to:
Investor Force Securities, Inc.
0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: President
Phone: 000-000-0000
If to Manager, to:
Banc One Investment Advisors Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Chief Financial Officer
Phone: 000-000-0000
If to Distributor, to:
One Group Dealer Services, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Chief Operating Officer
Phone: 000-000-0000
D. Entire Agreement.
(1) This Agreement, together with the Exhibits hereto, sets forth the
entire understanding of the parties and supersedes all prior
agreements, arrangements and communications, whether oral or written,
pertaining to the subject matter hereof. No addition, revision of or
waiver of any provision of this Agreement shall be effective or
enforceable unless agreed to in writing by both parties.
(2) The failure of either party to enforce, at any time or for any period
of time, any provision of this Agreement shall not be construed as a
waiver of such provision or of the right thereafter to enforce each
and every provision contained herein.
10
E. Severability. In the event any provision of this Agreement is declared void
or unenforceable under the laws of the State of New York, such declaration
shall not affect the enforceability of any other provision of this
Agreement. The parties agree that the provisions of this Agreement shall be
severable and applied as if any such void or unenforceable provision had
not been included herein.
F. Arbitration/Governing Law; Venue.
(1) This Agreement shall be governed by the laws of the State of New York
without reference to any of its choice of law rules. Any dispute or
controversy arising out of or relating in any way to this Agreement,
or arising out of the parties' dealings hereunder, or involving or
requiring the interpretation or enforcement hereof, shall be settled
by binding arbitration under the auspices of the American Arbitration
Association ("AAA"), before a panel of three arbitrators, and in
accordance with the Commercial Dispute Resolution Procedures, then in
effect, of the AAA; provided, however, that the arbitrators shall be
experienced in the matters under dispute. The panel of arbitrators
shall be selected as follows: Within twenty days after the filing of
the demand for arbitration, each party shall select one arbitrator and
identify that arbitrator to the other party. Within twenty days of the
identification of the party-arbitrators, the party-arbitrators shall
agree upon and select a neutral arbitrator. If the party-arbitrators
are unable to agree upon a neutral arbitrator willing and able to
serve as such within the specified time, the third arbitrator shall be
selected by the AAA from its National Panel of Arbitrators. In matters
proceeding under the Expedited Procedures of the Commercial Dispute
Resolution Procedures, a single arbitrator will be appointed as
provided in those Expedited Procedures. Judgment upon any award made
by the arbitrators will be final and binding and may be entered in any
court of competent jurisdiction in Philadelphia County in the
Commonwealth of Pennsylvania.
(2) Any demand for arbitration filed pursuant to subparagraph (1) above
shall be filed in the Philadelphia, Pennsylvania office of the AAA.
Without limiting the application of subparagraph (1), the parties
hereto agree that should either party initiate an action or proceeding
arising out of, relating in any way to, or arising out of the parties'
dealings hereunder, including any proceeding concerning the validity
and enforceability of the arbitration provisions in this Agreement, or
any proceeding to compel such arbitration or enter judgment on an
arbitration award, other than before the AAA, such action or
proceeding shall be brought exclusively in a federal or state court
located within Philadelphia County in the Commonwealth of
Pennsylvania. The parties hereto consent and submit to personal
jurisdiction in the Commonwealth of Pennsylvania and to venue in
Philadelphia County for disputes hereunder.
(3) In the event that Fund/Agent is found in any such proceeding to have
willfully and wrongfully refused to pay IFS Fees, the amount of
damages with respect to such unpaid IFS Fees found to be owed shall be
the amount due under the normal fee
11
provisions of this Agreement plus interest accruing from the date said
payment was due at a rate of the prime rate as reported by the Wall
Street Journal Eastern Edition.
(4) In the event of any controversy or action among the parties to this
Agreement complaining of a breach of this Agreement, the prevailing
party to this Agreement shall be entitled to recover from the other
party to this Agreement all costs, expenses and reasonable attorney's,
arbitration and/or mediation fees incurred in conjunction with the
enforcement of the prevailing party's rights under this Agreement.
G. Relationship of Parties. Neither Fund/Agent nor IFS has any exclusive right
to the services offered by the other, or, except as provided in this Agreement,
to restrict other activities of the other party. This Agreement shall not be
construed as precluding IFS from performing services of any nature for third
persons. The services performed by IFS under this Agreement shall be exclusively
in the capacity of an independent contractor. Nothing contained in this
Agreement shall be deemed to create a joint venture or partnership between
Fund/Agent and IFS nor is IFS acting as an agent of Fund/Agent.
H. Assignment; No Third Party Beneficiaries. This Agreement shall apply to,
inure to the benefit of and be binding upon and enforceable against the parties
hereto and their respective successors and permitted assigns. Nothing contained
in this Agreement is intended to confer upon any person, other than the parties
and their respective permitted successors, assigns and nominees, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
I. Anti-Money Laundering
IFS will comply with all applicable laws and regulations aimed at
preventing, detecting, and reporting money laundering and suspicious
transactions and will take all necessary and appropriate steps, consistent with
applicable regulations and generally accepted industry practices, to (i) obtain,
verify, and retain information with regard to investor identification and source
of investor funds, and (ii) to maintain records of all investor transactions.
IFS will (but only to the extent consistent with applicable law) take all steps
necessary and appropriate to provide Fund/Agent with any requested information
about investors and accounts in the event that Fund/Agent shall request such
information due to an inquiry or investigation by any law enforcement,
regulatory, or administrative authority. To the extent permitted by applicable
law and regulations, IFS will notify Fund/Agent of any concerns that IFS may
have in connection with any investor in the context of relevant anti-money
laundering legislation/regulations.
J. Certification of Customers' Taxpayer Identification Numbers. IFS agrees to
obtain any taxpayer identification number certification from its customers
required under the Internal Revenue Code of 1986, as amended, and any applicable
Treasury regulations, and to provide Fund/Agent, or its designee with timely
written notice of any failure to obtain such taxpayer identification number
certification in order to enable the implementation of any required backup
withholding.
12
K. Records. IFS or its designated agent will maintain all records required to
be kept by state and federal law relating to transactions in Shares and, upon
request by One Group, will promptly make such records available to One Group.
L. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Banc One Investment Advisors Corporation Investor Force Securities, Inc.
By:______/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx Xxxxx
Name: Xxxx X. Xxxxxx Name: Xxxxx Xxxxx
Title: Senior Managing Director Title: President
One Group Dealer Services, Inc.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: COO
13
EXHIBIT A
FUND/AGENT INFORMATION
PRODUCTS PARTICIPATING IN SERVICES AGREEMENT
A. REGISTERED INVESTMENT COMPANIES
Fund Name CUSIP Trading Symbol Order Deadline
One Group Balanced Fund 681937488 HLBAX 4.00 PM Eastern
One Group Diversified Equity Fund 681939781 OGVFX 4.00 PM Eastern
One Group Diversified International Fund 00000X000 WOIEX 4.00 PM Eastern
One Group Diversified Mid Cap Fund 00000X000 WOOPX 4.00 PM Eastern
One Group Equity Income Fund 681937793 HLIEX 4.00 PM Eastern
One Group Equity Index Fund 681937835 HLEIX 4.00 PM Eastern
One Group International Equity Index Fund 681937579 OIEAX 4.00 PM Eastern
One Group Large Cap Growth Fund 681937256 SEEGX 4.00 PM Eastern
One Group Large Cap Value Fund 681937884 HLQVX 4.00 PM Eastern
One Group Market Expansion Index Fund 00000X000 PGMIX 4.00 PM Eastern
One Group Mid Cap Growth Fund 681937736 HLGEX 4.00 PM Eastern
One Group Mid Cap Value Fund 681937769 HLDEX 4.00 PM Eastern
One Group Small Cap Growth Fund 681939823 OGGFX 4.00 PM Eastern
One Group Small Cap Value Fund 00000X000 PSOPX 4.00 PM Eastern
One Group Bond Fund 00000X000 WOBDX 4.00 PM Eastern
One Group Government Bond Fund 681937348 HLGAX 4.00 PM Eastern
One Group High Yield Bond Fund 00000X000 OHYFX 4.00 PM Eastern
One Group Income Bond Fund 681937660 HLIPX 4.00 PM Eastern
One Group Intermediate Bond Fund 681937272 SEIFX 4.00 PM Eastern
One Group Mortgage-Backed Securities Fund 00000X000 OMBIX 4.00 PM Eastern
One Group Short Term Bond Fund 681937637 HLLVX 4.00 PM Eastern
One Group Treasury & Agency Fund 681939492 OGTFX 4.00 PM Eastern
One Group Ultra Short-Term Bond Fund 681937322 HLGFX 4.00 PM Eastern
One Group Prime Money Market Fund 681937405 HLPXX 4.00 PM Eastern
One Group US Government Securities Money Market 00000X000 OMIXX 4.00 PM Eastern
One Group US Treasury Securities Money Market Fd 681937108 HGOXX 4.00 PM Eastern
A-1
EXHIBIT B
FEE SCHEDULE
IFS will charge Manager the fee described below in accordance with the terms of
this Agreement and the other sections of this Exhibit B.
A. Asset-Based Fee
For the services provided by IFS hereunder, the Manager shall pay IFS an
Asset-Based Fee with respect to each Program, calculated daily and paid
quarterly in arrears, equal to fifteen percent (15%) of the investment advisory
fee due to the manager for each Program as applied to the assets of each IFS
Client invested in each Program as a result of the use of the Website.
B. Quarterly Billing
Subsequent to each quarter-end, IFS shall send to Manager a statement of
the market value of shares of the Programs for which the fee is calculated for
the preceding quarter along with a statement of the amount of such fee. IFS
intends to use data provided by Lipper, Inc., in the calculation of this fee. In
the calculation of such fee, IFS records shall govern unless Manager can
demonstrate that the number of shares or Program price(s) used in such
calculation is inaccurate.
Manager shall pay to IFS such fee within (30) days after Manager's receipt
of such statement. Such payment shall be by wire transfer or other form
acceptable to IFS and shall be separate from all other payments that may occur.
If this Agreement is terminated, fees paid in advance to IFS by Fund/Manager
will be prorated.
C. Changes to Fee Schedule
Upon sixty (60) days prior written notice to Manager, IFS may, as to assets
invested after the date of the notice by IFS Clients who are not invested in any
Programs managed by Manager as of the date of the notice, change or amend any
fee or the method of payment thereof under this Agreement. IFS may issue to
Manager a new or replacement Agreement or Exhibit B. Such change or amendment
shall be effective on the date stated in such notice. The acceptance by Manager
of an investment order from such IFS Clients after the date stated in such
notice shall represent Manager's agreement to pay such fees to IFS.
B-1
