EXHIBIT (13)(b)
RE-EXECUTED MANAGEMENT AND ADMINISTRATION AGREEMENT
DATED NOVEMBER 20, 0000
XXXXXXX
XXXXXXXXXX AND THE ONE GROUP SERVICES COMPANY
MANAGEMENT AND ADMINISTRATION AGREEMENT
AGREEMENT dated December 1, 1995, as re-executed November 20, 1997, between
The One Group (the "Trust"), a Massachusetts business trust having its principal
place of business at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000, and The One
Group Services Company ("Administrator"), a Delaware corporation having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust is an open-end management investment company, organized
as a Massachusetts business trust and registered with the Securities and
Exchange Commission (the "Commission") under the Investment Company Act of 1940
(the "1940 Act"); and
WHEREAS, the Trust desires to retain Administrator to furnish management
and administration services to certain investment portfolios of the Trust and
may retain Administrator to serve in such capacity with respect to additional
investment portfolios of the Trust, all as now or hereafter may be identified in
Schedule A hereto as such Schedule may be amended from time to time
(individually referred to herein as a "Fund" and collectively referred to herein
as the "Funds").
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. SERVICE AS MANAGER AND ADMINISTRATOR
Subject to the direction and control of the Board of Trustees of the
Trust, Administrator will assist in supervising all aspects of the operations of
the Funds except those performed by the investment adviser for the Funds under
its Investment Advisory Agreement, the custodian for the Funds under its
Custodian Agreement, the transfer agent for the Funds under its Transfer Agency
Agreement and the fund accountant for the Funds under its Fund Accounting
Agreement.
Administrator will maintain office facilities (which may be in the
offices of Administrator or an affiliate but shall be in such location as the
Trust shall reasonably determine); furnish statistical and research data,
clerical and certain bookkeeping services and stationery and office supplies;
prepare the periodic reports to the Commission on Form N-SAR or any replacement
forms therefor; compile data for, assist the Trust or its designee in the
preparation of, and file, all the Funds' federal and state tax returns and
required tax filings other than those required to be made by the Funds'
custodian and transfer agent; prepare compliance filings pursuant to state
securities laws with the advice of the Trust's counsel; assist to the extent
requested by the Trust with the Trust's preparation of its Annual and
Semi-Annual Reports to Shareholders and its Registration Statements (on Form
N-1A or any replacement therefor); compile data for and prepare for filing
Notices to the Commission required pursuant to Rule 24f-2 under the 1940 Act;
keep and maintain the financial accounts and records of the Funds, including
calculation of daily expense accruals; in the case of money market funds,
periodic review of the amount of the deviation, if any, of the current net asset
value per share (calculated using available market quotations or an appropriate
substitute that reflects current market conditions) from each money market
fund's amortized cost price per share; and generally assist in all aspects of
the operations of the Funds. In compliance with the requirements of Rule 31a-3
under the 1940 Act, Administrator hereby agrees that all records which it
maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request.
Administrator further agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act the records required to be maintained by Rule 31a-1
under the 1940 Act. Administrator may delegate some or all of its
responsibilities under this Agreement.
2. FEES; EXPENSES; EXPENSE REIMBURSEMENT
In consideration of services rendered and expenses assumed pursuant to
this Agreement, each of the Funds will pay Administrator on the first business
day of each month, or at such time(s) as Administrator shall request and the
parties hereto shall agree, a fee computed daily and paid as specified below
calculated at the applicable annual rate set forth on Schedule A hereto. The
fee for the period from the day of the month this Agreement is entered into
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until the end of that month shall be prorated according to the proportion which
such period bears to the full monthly period. Upon any termination of this
Agreement before the end of any month, the fee for such part of a month shall be
prorated according to the proportion which such period bears to the full monthly
period and shall be payable upon the date of termination of this Agreement.
For the purpose of determining fees payable to Administrator, the
value of the net assets of a particular Fund shall be computed in the manner
described in the Trust's Declaration of Trust or in the Prospectus or Statement
of Additional Information respecting that Fund as from time to time is in effect
for the computation of the value of such net assets in connection with the
determination of the liquidating value of the shares of such Fund.
Administrator will from time to time employ or associate with itself
such person or persons as Administrator may believe to be particularly fitted to
assist it in the performance of this Agreement. Such person or persons may be
partners, officers, or employees who are employed by both Administrator and the
Trust. The compensation of such person or persons shall be paid by
Administrator and no obligation may be incurred on behalf of the Funds in such
respect. Other expenses to be incurred in the operation of the Funds including
taxes, interest, brokerage fees and commissions, if any, fees of Trustees who
are not partners, officers, directors, shareholders or employees of
Administrator or the investment adviser or distributor for the Funds, Commission
fees and state Blue Sky qualification and renewal fees and expenses, investment
advisory fees, custodian fees, transfer and dividend disbursing agents' fees,
fund accounting fees including pricing of portfolio securities, service
organization fees, certain insurance premiums, outside and, to the extent
authorized by the Trust, inside auditing and legal fees and expenses, costs of
maintenance of corporate existence, typesetting and printing prospectuses for
regulatory purposes and for distribution to current shareholders of the Funds,
costs of shareholders' and Trustees' reports and meetings and any extraordinary
expenses will be borne by the Funds; provided, however, that the Funds will not
bear, directly or indirectly, the cost of any activity which is primarily
intended to result in the distribution of shares of the Funds.
If in any fiscal year the aggregate expenses of a particular Fund (as
defined under the securities regulations of any state having jurisdiction over
the Trust) exceed the expense limitations of any such state, Administrator will
reimburse such Fund for a portion of such excess expenses equal to such excess
times the ratio of the fees respecting such Fund otherwise payable to
Administrator hereunder to the aggregate fees respecting such Fund otherwise
payable to Administrator hereunder and to Banc One Investment Advisors
Corporation under the Investment Advisory Agreements between Banc One Investment
Advisors Corporation and the Trust. The expense reimbursement obligation of
Administrator is limited to the amount of its fees hereunder for such fiscal
year, provided, however, that notwithstanding the foregoing, Administrator shall
reimburse a particular Fund for such proportion of such excess expenses
regardless of the amount of fees paid to it during such fiscal year to the
extent that the securities regulations of any state having jurisdiction over the
Trust so require. Such expense reimbursement, if any, will be estimated daily
and reconciled and paid on a monthly basis.
3. PROPRIETARY AND CONFIDENTIAL INFORMATION
Administrator agrees on behalf of itself and its partners and
employees to treat confidentially and as proprietary information of the Trust
all records and other information relative to the Trust and prior, present, or
potential shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where
Administrator may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
4. LIMITATION OF LIABILITY; RELIANCE ON RECORDS AND INSTRUCTIONS;
INDEMNIFICATION
Administrator shall use its best efforts to ensure the accuracy of all
services performed under this Agreement but shall not be liable for any loss
suffered by the Funds in connection with the matters to which this Agreement
relates, except for a loss resulting from willful misfeasance, bad faith or
negligence on its part in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement. Any
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person, even though also, an employee, or agent of Administrator, who may be or
become an officer, Trustee, employee or agent of the Trust or the Funds shall be
deemed, when rendering services to the Trust or the Funds, or acting on any
business of that party, to be rendering such services to or acting solely for
that party and not as a partner, employee, or agent or one under the control or
direction of Administrator even though paid by it.
The Trust agrees to indemnify and hold harmless Administrator, its
employees, agents, directors, officers and nominees from and against any and all
liabilities or expense, including but not limited to attorney fees, in
connection with any claims or regulatory actions based upon reasonable reliance
on written information or records with respect to a Fund given to Administrator
by a duly authorized representative of the Sub-Administrator, Fund Accountant,
or Distributor; provided, that this indemnification shall not apply to actions
or omissions of Administrator in cases of its own bad faith, wilful misfeasance,
negligence or from reckless disregard by it of its obligations and duties, and
further provided that prior to confessing any claims against it which may be the
subject of this indemnification, Administrator shall give the Trust written
notice of and reasonable opportunity to defend against said claim in its own
name or in the name of Administrator.
5. TERM
This Agreement shall become effective as of the date first written
above (or, if a particular Fund is not in existence on the date, on the date an
amendment to Schedule A to this Agreement relating to that Fund is executed) and
shall continue until November 30, 1996, and unless sooner terminated as provided
herein, thereafter shall be renewed automatically for successive one-year terms,
unless written notice not to renew is given by the non-renewing party to the
other party at least 60 days prior to the expiration of the then-current term;
provided that such continuance is specifically reviewed and approved at least
annually (a) by the vote of a majority of the Trust's Board of Trustees or by
the vote of a majority of the outstanding voting securities of such Fund and (b)
by the majority of the Trust's Trustees who are not parties to the Agreement or
interested persons (as defined in the 0000 Xxx) of any party to this Agreement,
by vote cast in person at a meeting called for the purpose of voting on such
approval. The scope of such review shall be whether there is any "cause" (as
defined below) that would justify terminating the Agreement. This Agreement is
terminable with respect to a particular Fund through a failure to renew at the
end of a five-year term; upon mutual agreement of the parties hereto; or for
"cause" by the party alleging "cause," in any case on not less than 60 days
written notice by the Trust's Board of Trustees or by Administrator. Written
notice not to renew may be given for any reason, with or without "cause" (as
defined below).
For purposes of this Agreement, "cause" shall mean (a) willful
misfeasance, bad xxxxx xxxxx negligence or reckless disregard on the part of the
party to be terminated with respect to its obligations and duties set forth
herein; (b) a final, unappealable judicial, regulatory or administrative ruling
or order in which the party to be terminated has been found guilty of criminal
or unethical behavior in the conduct of its business; (c) financial difficulties
on the part of the party to be terminated which is evidenced by the
authorization or commencement of, or involvement by way of pleading, answer,
consent, or acquiescence in, a voluntary or involuntary case under Title 11 of
the United States Code, as from time to time is in effect, or any applicable
law, other than said Title 11, of any jurisdiction relating to the liquidation
or reorganization of debtors or to the modification or alteration of the rights
of creditors; or (d) any circumstance which substantially impairs the
performance of the obligations and duties of the party to be terminated, or the
ability to perform those obligations and duties, as contemplated herein.
Notwithstanding the foregoing, the absence of either or both an annual review or
ratification of this Agreement by the Board of Trustees shall not, in and of
itself, constitute "cause" as used herein.
If, for any reason other than "cause" as defined above, Administrator
is replaced as fund manager and administrator, or if a third party is added to
perform all or a part of the services provided by Administrator under this
Agreement (excluding any sub-administrator appointed by Administrator as
provided in Section 1 hereof, then the Trust shall make a one-time cash payment,
as liquidated damages, to Administrator equal to the balance due Administrator
for the remainder of the term of this Agreement, assuming for purposes of
calculation of the payment that the asset level of the Trust on the date,
Administrator is replaced, or a third party is added, will remain constant for
the balance of the contract term.
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6. USE OF SUB-ADMINISTRATOR
Administrator shall retain Banc One Investment Advisors Corporation
("BOIA") to provide sub-administration services pursuant to a sub-administration
agreement among Administrator, BOIA and the Trust dated as of the date first
written above. Such sub-administration agreement shall not be terminated during
the term of this Agreement without the specific written approval of the Trust.
7. GOVERNING LAW AND MATTERS RELATING TO THE TRUST AS A MASSACHUSETTS
BUSINESS TRUST
This Agreement shall be governed by the law of the Commonwealth of
Massachusetts. It is expressly agreed that the obligations of the Trust
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Trust personally, but shall bind only the
trust property of the Trust. The execution and delivery of this Agreement have
been authorized by the Trustees, and this Agreement has been signed and
delivered by an authorized officer of the Trust, acting as such, and neither
such authorization by the Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in the Trust's Agreement and Declaration of
Trust.
IN WITNESS WHEREOF, the parses hereto caused this instrument to be executed
by their officers designated below as of the day and year first written above.
THE ONE GROUP-Registered Trademark- THE ONE GROUP SERVICES COMPANY
/s/ Xxxxxxx Xxxxx /s/ Xxxx X. Xxxxxx
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By: Xxxxxxx Xxxxx By: Xxxx X. Xxxxxx
Title: Treasurer Title: President
Date: 11/20/97 Date: 11/20/97
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