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EXHIBIT(h)(2)
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 2nd day of January,
2001, by and between The Dow Target Variable Fund LLC, a limited liability
company organized under the laws of the State of Ohio (the "Corporation") and
Firstar Mutual Fund Services, LLC, a limited liability company organized under
the laws of the State of Wisconsin ("FMFS").
WHEREAS, the Corporation is an open-end management investment company
which is registered under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Corporation is authorized to create separate series, each
with its own separate investment portfolio;
WHEREAS, FMFS is a limited liability company and, among other things,
is in the business of administering transfer and dividend disbursing agent
functions for the benefit of its customers; and
WHEREAS, the Corporation desires to retain FMFS to provide transfer and
dividend disbursing agent services to each series of the Corporation listed on
Exhibit A attached hereto, (each hereinafter referred to as a "Fund") as may be
amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Corporation and FMFS agree as follows:
1. APPOINTMENT OF TRANSFER AGENT
The Corporation hereby appoints FMFS as Transfer Agent of the
Corporation on the terms and conditions set forth in this Agreement, and FMFS
hereby accepts such appointment and agrees to perform the services and duties
set forth in this Agreement in consideration of the compensation provided for
herein
2. DUTIES AND RESPONSIBILITIES OF FMFS
A. FMFS shall receive daily orders from the Corporation for the
purchase or sale of shares of each Fund.
FMFS shall reimburse the Fund each month for all material
losses resulting from "as of" processing errors for which FMFS
is responsible in accordance with the "as of" processing
guidelines set forth in the attached Exhibit B.
3. COMPENSATION
The Corporation agrees to pay FMFS for the performance of the duties
listed in this Agreement the sum of $2,500 per year for each of the funds set
forth on Exhibit A attached hereto, or as may be added after the date hereof.
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These fees and reimbursable expenses may be changed from time
to time subject to mutual written agreement between the Corporation and
FMFS.
The Corporation agrees to pay all fees and reimbursable
expenses within ten (10) business days following the receipt of the
billing notice.
Notwithstanding anything to the contrary, amounts owed by the
Corporation to FMFS shall only be paid out of assets and property of
the particular Fund involved.
4. REPRESENTATIONS OF FMFS
FMFS represents and warrants to the Corporation that:
A. It is a limited liability corporation duly organized, existing
and in good standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Securities and
Exchange Act of 1934 as amended (the "Exchange Act").
C. It is duly qualified to carry on its business in the State of
Wisconsin;
D. It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
F. It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement; and
G. It will comply with all applicable requirements of the
Securities Act of 1933, as amended, the Exchange Act, the 1940
Act, and any laws, rules, and regulations of governmental
authorities having jurisdiction.
5. REPRESENTATIONS OF THE CORPORATION
The Corporation represents and warrants to FMFS that:
A. The Corporation is an open-ended diversified investment
company under the 1940 Act;
B. The Corporation is a corporation organized, existing, and in
good standing under the laws of Ohio;
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C. The Corporation is empowered under applicable laws and by its
Articles of Incorporation and Bylaws to enter into and perform
this Agreement;
D. All necessary proceedings required by the Articles of
Incorporation have been taken to authorize it to enter into
and perform this Agreement;
E. The Corporation will comply with all applicable requirements
of the Securities Act, the Exchange Act, the 1940 Act, and any
laws, rules and regulations of governmental authorities having
jurisdiction; and
F. A registration statement under the Securities Act has been
made effective and will remain effective, and appropriate
state securities law filings, if ever applicable, will be
made, with respect to all shares of the Corporation being
offered for sale.
6. PERFORMANCE OF SERVICE; LIMITATION OF LIABILITY
A. FMFS shall exercise reasonable care in the performance of its
duties under this Agreement. FMFS shall not be liable for any
error of judgment or mistake of law or for any loss suffered
by the Corporation in connection with matters to which this
Agreement relates, including losses resulting from mechanical
breakdowns or the failure of communication or power supplies
beyond FMFS's control, except a loss arising out of or
relating to the FMFS' refusal or failure to comply with the
terms of this Agreement or from bad faith, negligence, or
willful misconduct on its part in the performance of its
duties under this Agreement. Notwithstanding any other
provision of this Agreement, if FMFS has exercised reasonable
care in the performance of its duties under this Agreement,
the Corporation shall indemnify and hold harmless FMFS from
and against any and all claims, demands, losses, expenses, and
liabilities (whether with or without basis in fact or law) of
any and every nature (including reasonable attorneys' fees)
which FMFS may sustain or incur or which may be asserted
against FMFS by any person arising out of any action taken or
omitted to be taken by it in performing the services
hereunder, except for any and all claims, demands, losses,
expenses, and liabilities arising out of or relating to FMFS's
refusal or failure to comply with the terms of this Agreement
or from bad faith, negligence or from willful misconduct on
its part in performance of its duties under this Agreement,
(i) in accordance with the foregoing standards, or (ii) in
reliance upon any written or oral instruction provided to FMFS
by any duly authorized officer of the Corporation, such duly
authorized officer to be included in a list of authorized
officers furnished to FMFS and as amended from time to time
and furnished to FMFS in writing by the Secretary or other
appropriate officer of the Corporation.
B. FMFS shall indemnify and hold the Corporation harmless from
and against any and all claims, demands, losses, expenses, and
liabilities (whether with or without basis in fact or law) of
any and every nature (including reasonable attorneys' fees)
which the Corporation may sustain or incur or which may be
asserted against the
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Corporation by any person arising out of any action taken or
omitted to be taken by FMFS as a result of FMFS's refusal or
failure to comply with the terms of this Agreement, its bad
faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, FMFS shall
take all reasonable steps to minimize service interruptions
for any period that such interruption continues beyond FMFS's
control. FMFS will make every reasonable effort to restore any
lost or damaged data and correct any errors resulting from
such a breakdown at the expense of FMFS. FMFS agrees that it
shall, at all times, have reasonable contingency plans with
appropriate parties, making reasonable provision for emergency
use of electrical data processing equipment to the extent
appropriate equipment is available. Representatives of the
Corporation shall be entitled to inspect FMFS's premises and
operating capabilities at any time during regular business
hours of FMFS, upon reasonable notice to FMFS.
Regardless of the above, FMFS reserves the right to reprocess
and correct administrative errors at its own expense.
C. In order that the indemnification provisions contained in this
section shall apply, it is understood that if in any case the
indemnitor may be asked to indemnify or hold the indemnitee
harmless, the indemnitor shall be fully and promptly advised
of all pertinent facts concerning the situation in question,
and it is further understood that the indemnitee will use all
reasonable care to notify the indemnitor promptly concerning
any situation which presents or appears likely to present the
probability of a claim for indemnification. The indemnitor
shall have the option to defend the indemnitee against any
claim which may be the subject of this indemnification. In the
event that the indemnitor so elects, it will so notify the
indemnitee and thereupon the indemnitor shall take over
complete defense of the claim, and the indemnitee shall in
such situation initiate no further legal or other expenses for
which it shall seek indemnification under this section. The
indemnitee shall in no case confess any claim or make any
compromise in any case in which the indemnitor will be asked
to indemnify the indemnitee except with the indemnitor's prior
written consent.
D. FMFS is hereby expressly put on notice of the limitation of
shareholder liability as set forth in the Corporation's
Articles of Incorporation and agrees that obligations assumed
by the Corporation pursuant to this Agreement shall be limited
in all cases to the Corporation and its assets, and if the
liability relates to one or more series, the obligations
hereunder shall be limited to the respective assets of such
series. FMFS further agrees that it shall not seek
satisfaction of any such obligation from the shareholder or
any individual shareholder of a series of the Corporation, nor
from the Directors or any individual Director of the
Corporation.
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7. PROPRIETARY AND CONFIDENTIAL INFORMATION
FMFS agrees on behalf of itself and its directors, officers,
and employees to treat confidentially and as proprietary information of
the Corporation all records and other information relative to the
Corporation and prior, present, or potential shareholders (and clients
of said shareholders) and not to use such records and information for
any purpose other than the performance of its responsibilities and
duties hereunder, except after prior notification to and approval in
writing by the Corporation, which approval shall not be unreasonably
withheld and may not be withheld where FMFS may be exposed to civil or
criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted authorities,
or when so requested by the Corporation.
Further, FMFS will adhere to the privacy policies adopted by
the Corporation pursuant to Title V of the Xxxxxx-Xxxxx-Xxxxxx Act (the
"Act") as may be modified from time to time. Notwithstanding the
foregoing, FMFS will not share any nonpublic personal information
concerning any of the Corporation's shareholders, or any contract
owners of The Ohio National Life Insurance Company or its affiliates,
to any third party unless specifically directed by the Corporation or
allowed under one of the exceptions noted under the Act.
8. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof
and will continue in effect terminated as hereinafter provided. This
Agreement may be terminated by either party by the delivery to the
other party of ninety (90) days prior written notice of such
termination. However, this Agreement may be amended by mutual written
consent of the parties at any time.
9. RECORDS
FMFS shall keep records relating to the services to be
performed hereunder, in the form and manner, and for such period as it
may deem advisable and is agreeable to the Corporation but not
inconsistent with the rules and regulations of appropriate government
authorities, in particular, Section 31 of the 1940 Act, and the rules
thereunder. FMFS agrees that all such records prepared or maintained by
FMFS relating to the services to be performed by FMFS hereunder are the
property of the Corporation and will be preserved, maintained, and made
available with such section and rules of the 1940 Act and will be
promptly surrendered to the Corporation on and in accordance with its
request.
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10. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of
Wisconsin. However, nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or regulation promulgated by
the Securities and Exchange Commission thereunder.
11. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination, a successor
to any of FMFS's duties or responsibilities hereunder is designated by
the Corporation by written notice to FMFS, FMFS will promptly, upon
such termination and at the expense of the Corporation, transfer to
such successor all relevant books, records, correspondence, and other
data established or maintained by FMFS under this Agreement in a form
reasonably acceptable to the Corporation (if such form differs from the
form in which FMFS has maintained, the Corporation shall pay any
expenses associated with transferring the data to such form), and will
cooperate in the transfer of such duties and responsibilities,
including provision for assistance from FMFS's personnel in the
establishment of books, records, and other data by such successor.
12. NOTICES
Notices of any kind to be given by either party to the other
party shall be in writing and shall be duly given if mailed or delivered as
follows: Notice to FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Corporation shall be sent to:
The Dow Target Variable Fund LLC
Attention: Xxxxxx Xxxxx
Xxx Xxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer or one or more counterparts as of the day
and year first written above.
THE DOW TARGET VARIABLE FUND LLC FIRSTAR MUTUAL FUND SERVICES, LLC
By: ______________________________ By: ________________________________
Title: __________________________ Title: ______________________________
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TRANSFER AGENT SERVICES
ANNUAL FEE SCHEDULE
EXHIBIT A
Separate Series of Ohio National Fund, Inc.
NAME OF SERIES DATE ADDED
--------------
JANUARY DOW TARGET 5 3/1/01
FEBRUARY DOW TARGET 5 3/1/01
MARCH DOW TARGET 5 3/1/01
XXXXX XXX TARGET 5 3/1/01
MAY DOW TARGET 5 3/1/01
XXXX XXX TARGET 5 3/1/01
JULY DOW TARGET 5 3/1/01
AUGUST DOW TARGET 5 3/1/01
SEPTEMBER DOW TARGET 5 3/1/01
OCTOBER DOW TARGET 5 3/1/01
NOVEMBER DOW TARGET 5 3/1/01
DECEMBER DOW TARGET 5 3/1/01
DOGS OF THE DOW JANUARY 3/1/01
DOGS OF THE DOW FEBRUARY 3/1/01
DOGS OF THE DOW MARCH 3/1/01
DOGS OF THE DOW APRIL 3/1/01
DOGS OF THE DOW MAY 3/1/01
DOGS OF THE DOW JUNE 3/1/01
DOGS OF THE DOW JULY 3/1/01
DOGS OF THE DOW AUGUST 3/1/01
DOGS OF THE DOW SEPTEMBER 3/1/01
DOGS OF THE DOW OCTOBER 3/1/01
DOGS OF THE DOW NOVEMBER 3/1/01
DOGS OF THE DOW DECEMBER 3/1/01
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EXHIBIT B
FIRSTAR MUTUAL FUND SERVICES, LLC AS OF PROCESSING POLICY
Firstar Mutual Fund Services, LLC (FMFS) will reimburse the Fund(s) for
any net material loss that may exist on the Fund(s) books and for which FMFS is
responsible, at the end of each calendar month. "Net Material Loss" shall be
defined as any remaining loss, after netting losses against any gains, which
impacts a Fund's net asset value per share by 1/2 cent or more. Gains and losses
will be reflected on the Fund's daily share sheet, and the Fund will be
reimbursed for any net material loss on a monthly basis. FMFS will notify the
advisor to the Fund(s) on the daily share sheet of any losses for which the
advisor may be held accountable.
