Exhibit f(2)
PARTICIPATION AGREEMENT
Participation Agreement, dated as of 9-5, 2001 by and between
Xxxxxxx Xxxxx Xxxxxx Inc., a New York corporation ("Xxxxxxx Xxxxx Barney"), and
Seix Investment Advisors, Inc., a Subchapter S Corporation ("Company").
WHEREAS, Xxxxxxx Xxxxx Xxxxxx together with its affiliates is offering to its
clients one or more investment advisory, trading, custody and/or retirement
programs pursuant to which such clients will purchase shares of mutual funds
included in such program(s) at net asset value without the imposition of initial
or contingent deferred sales charges (each a "Program" and collectively, the
"Programs");
WHEREAS, Company is sponsor, investment adviser, sub-adviser, distributor and/or
administrator of, and/or otherwise acts as a service provider to, certain mutual
funds, and Xxxxxxx Xxxxx Barney and Company desire to include certain of such
funds' shares in one or more Programs (the funds that Company and Xxxxxxx Xxxxx
Xxxxxx from time to time agree will be included in one or more of the Programs
are referred to herein as the "Funds");
WHEREAS, Xxxxxxx Xxxxx Barney will perform certain services for its clients who
invest in the Funds through one or more of the Programs ("Clients"); and
WHEREAS, Company, on behalf of the shareholders of the Funds who are
participants in the Programs, desires to compensate Xxxxxxx Xxxxx Xxxxxx for
providing such services.
NOW, THEREFORE, Xxxxxxx Xxxxx Barney and Company agree as follows:
1. Transactions in the Funds
Subject to the terms and conditions of this Agreement, Company will cause each
Fund to make its shares available to be purchased, exchanged or redeemed by
Clients at the net asset value applicable to each order, as determined in
accordance with each Fund's then effective prospectus and statement of
additional information, without the imposition of initial or contingent deferred
sales charges or any other transaction related charges (e.g., redemption fees,
exchange fees and federal funds wire payment fees) pursuant to the terms of the
then effective prospectus and statement of additional information, as amended
from time to time.
2. Services
A. As the parties may agree from time to time, and subject to the particular
parameters Xxxxxxx Xxxxx Xxxxxx establishes for each Program, Xxxxxxx Xxxxx
Barney (either directly or through one or more of its affiliates or agents) will
provide the following services:
(i) Receive Client instructions for the purchase, sale, exchange and redemption
of Fund shares ("Instructions") and communicate such Instructions, as directed,
to the Company, the Fund or the Fund's transfer agent (collectively, the
"Receiving Party") for the purpose of the Receiving Party inputting and
executing orders that correspond to such Instructions on the books of the Fund,
in a time frame and manner as the parties from time to time agree upon;
(ii) Maintain records for and on behalf of each Client reflecting Instructions
and outstanding balances of Fund shares owned by the Client;
(iii) Prepare and transmit to Clients confirmations of all transactions effected
pursuant to Instructions;
(iv) Prepare and transmit to Clients periodic consolidated account statements
indicating, with respect to shares of the Funds: the number of shares of each
Fund owned: purchases, redemptions and exchanges of Fund and other information
as determined by Xxxxxxx Xxxxx Xxxxxx;
(v) Provide Clients with copies of prospectuses, statements of additional
information, proxy materials, periodic and special shareholder reports and other
materials relating to the Funds (collectively, "Fund Materials"), as may be
provided by Company or the Fund to Xxxxxxx Xxxxx Barney;
(vi) Assist with the solicitation of proxies from Clients, as requested by
Company;
(vii) Provide each Fund, each Fund's transfer agent and/or other parties
designated by them with information, on a daily basis, regarding the sales by
state or jurisdiction of residence of Clients for purposes of the Fund's
regulatory requirements. (Such information shall be provided in a form mutually
agreeable to Xxxxxxx Xxxxx Xxxxxx and Company);
(viii) Provide to Company, each Fund, each Fund's transfer agent and/or other
parties designated by them with such other information relating to transactions
in and holdings of Fund shares by Clients as the parties agree upon from time to
time.
(ix) Respond to Client inquiries regarding, among other things, share prices,
account balances, dividend amounts and dividend payment dates;
(x) With respect to each Client's ownership of, or transactions with respect to,
any Fund, prepare and file with the appropriate federal agencies information and
reports regarding (a) dividends and other distributions made, (b) amounts
withheld on dividends and other distributions and payments and (c) gross
proceeds of sale transactions;
(xi) Provide each Client with access to one or more Xxxxxxx Xxxxx Xxxxxx
Financial Consultants who will provide personal service and attention with
respect to the foregoing; and
(xii) Provide such other services relating to Client holdings and transactions
in Funds included in the Programs as from time-to-time the parties shall
mutually agree.
B. Company agrees that, in connection with transactions in Fund shares made by
Clients through Xxxxxxx Xxxxx Barney (or its affiliates or agents) pursuant to a
Program, and except as otherwise agreed to by the parties, Company and each Fund
will follow the operating procedures set forth in Exhibit A to this Agreement.
For purpose of Section 2A(i) above, Company hereby appoints Xxxxxxx Xxxxx Xxxxxx
as agent for the limited purpose of receiving Instructions from Clients.
C. In providing services hereunder, the parties acknowledge that Xxxxxxx Xxxxx
Barney shall be providing services to and acting solely for the benefit of
Clients. The parties further acknowledge that in connection with all purchases,
sales, exchanges and redemptions of Fund shares by Clients pursuant to a
Program, Xxxxxxx Xxxxx Xxxxxx shall be acting on an agency basis.
D. Nothing in this Agreement shall impose upon Xxxxxxx Xxxxx Barney any
obligation to include any particular Fund or Funds in any particular Program.
Xxxxxxx Xxxxx Xxxxxx reserves the right to determine, in its sole discretion,
whether any particular Fund will be made available under one more of the
Programs initially as well as whether such Fund will continue to be made
available under such Program(s).
3. Delegation by Xxxxx Xxxxxx
Xxxxxxx Xxxxx Xxxxxx may delegate some or all of its duties under this Agreement
to such other parties which in Xxxxxxx Xxxxx Barney's sole discretion it deems
to be competent to assume such duties; provided that Xxxxxxx Xxxxx Xxxxxx shall
be responsible and liable for the acts and conduct of any such delegate to the
same extent as if the acts and conduct had been performed by Xxxxxxx Xxxxx
Barney.
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4. No Limitation
The provisions of this Agreement in no way shall limit the authority of Company
or any Fund to take such action as it or they may deem appropriate or advisable
in connection with all matters relating to the operations of the Funds and/or
the sale of Fund shares.
5. Fees
A. Company agrees to pay Xxxxxxx Xxxxx Xxxxxx or its designated affiliate (or to
cause the Funds to pay Xxxxxxx Xxxxx Barney or its designated affiliate) the
fees set forth on Schedule 1.
B. For purposes of calculating the fees described in Schedule 1, the value of
Client assets invested in the Funds shall be determined in accordance with the
then effective prospectus(es) and statement(s) of additional information of the
Funds. Nothing in this Agreement shall preclude Xxxxxxx Xxxxx Xxxxxx from
crediting all or a portion of the amounts it receives under this Section 5 to
Clients in certain Programs in order to reduce the fees payable by such Clients
to Xxxxxxx Xxxxx Barney in connection with such Programs.
C. If Xxxxxxx Xxxxx Xxxxxx and Company agree to revise the fees payable in
connection with a Program, Schedule 1 will be amended and signed by the parties
to this Agreement. The terms of this Agreement will otherwise remain in effect.
6. Records and Reporting
Xxxxxxx Xxxxx Barney will maintain and preserve all records as required by law
in connection with its provision of services under this Agreement. Upon the
reasonable request of Company, a Fund or the Fund's transfer agent, Xxxxxxx
Xxxxx Xxxxxx will provide copies of: historical records relating to Instructions
involving the Fund; written communications regarding the Fund to or from
Clients; and other materials relating to the provision of services by Xxxxxxx
Xxxxx Barney under this Agreement. Xxxxxxx Xxxxx Xxxxxx will comply with
reasonable requests for such information and documents made by Company, the
board of directors or trustees of a Fund, or any governmental body or
self-regulatory organization.
7. Representations; Warranties; and Covenants
X. Xxxxxxx Xxxxx Xxxxxx represents that: (i) this Agreement has been duly
authorized by all necessary corporate action and, when executed and delivered,
shall constitute the legal, valid and binding obligation of Xxxxxxx Xxxxx
Barney, enforceable in accordance with its terms; (ii) the activities of Xxxxxxx
Xxxxx Xxxxxx contemplated by this Agreement comply with all provisions of
federal and state securities laws applicable to such activities; (iii) Xxxxxxx
Xxxxx Barney has obtained such registrations and qualifications as are necessary
to permit it to perform its obligations hereunder; (iv) the arrangements
provided for in this Agreement will be disclosed to Clients; (v) Xxxxxxx Xxxxx
Xxxxxx is duly registered as a broker-dealer under Section 15 of the Securities
Exchange Act of 1934, as amended, and is a member of the National Association of
Securities Dealers Inc.; and (vi) all Fund shares in any Program are and will be
owned beneficially by Clients and no Fund shares in any Program are or will be
owned beneficially by Xxxxxxx Xxxxx Barney.
B. Company represents that: (i) this Agreement has been duly authorized by all
necessary corporate action and, when executed and delivered, shall constitute
the legal, valid and binding obligation of Company, enforceable in accordance
with its terms; (ii) shares of the Funds are registered and authorized for sale
in accordance with any and all applicable federal and state securities laws;
(iii) the prospectus and statement of additional information of each Fund comply
in all material respects with any and all applicable federal and state
securities laws and (iv) the prospectus for each Fund that is available for
purchase through Xxxxxxx Xxxxx Xxxxxx'x AssetOne ProgramSM or any other
securities trading Program that may be offered by Xxxxxxx Xxxxx Barney ("SB
Securities Trading Programs") currently discloses that a transaction
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charge may be imposed by broker-dealers who make Fund shares available and that
there will be no charge if the Fund shares are purchased directly from the Fund.
C. Company covenants and agrees that, for so long as this Agreement remains in
effect, it shall use its best efforts to cause shares of the Funds to continue
to be registered and authorized for sale in accordance with all applicable
federal and state securities laws and shall notify Xxxxxxx Xxxxx Xxxxxx promptly
in the event any Fund's shares cease to be so registered or authorized for sale
and (ii) the prospectus for each Fund that is available for purchase through a
SB Securities Trading Program to continue to contain the disclosure described in
Section 7B(iv) above and shall notify Xxxxxxx Xxxxx Barney promptly in the event
a prospectus ceases to contain such disclosure.
X. Xxxxxxx Xxxxx Xxxxxx and Company each agree to comply with all provisions of
federal and state laws and the Conduct Rules of the NASD applicable to its
respective activities under this Agreement.
X. Xxxxxxx Xxxxx Xxxxxx and Company each agree to notify the other promptly in
the event that it is, for any reason, unable to perform any of its obligations
under this Agreement.
X. Xxxxxxx Xxxxx Xxxxxx covenants and agrees that it will not make any
representations about the Funds except to the extent such representations (i)
are contained in a Fund's current prospectus, statement of additional
information, as amended or supplemented from time to time, or sales literature;
(ii) are consistent with information contained in such materials, or (iii) are
otherwise authorized by or on behalf of the Funds.
8. Use of Names
A. Company hereby authorizes Xxxxxxx Xxxxx Barney to use the names and other
identifying marks of Company and each Fund in connection with the marketing of
the Programs or the provision of services under this Agreement by Xxxxxxx Xxxxx
Xxxxxx. Company or any Fund may withdraw this authorization as to any particular
use of any such name or identifying marks at any time (i) upon Company's or the
Fund's reasonable determination that such use would have a material adverse
effect on the reputation or marketing efforts of Company or such Fund; (ii) if
Company or the Fund reasonably determines that materials using such names and
identifying marks are inaccurate or misleading; or (iii) if Xxxxxxx Xxxxx Barney
is no longer providing services to Clients as described in Section 2. Xxxxxxx
Xxxxx Xxxxxx agrees that, at the request of Company or a Fund, Xxxxxxx Xxxxx
Barney shall discuss with Company and/or the Fund, and consider in good faith,
any standards or specifications relating to Xxxxxxx Xxxxx Xxxxxx'x use (or
proposed use) hereunder of the names and other identifying marks of Company
and/or the Fund.
B. Except as otherwise expressly provided for in this Agreement, neither Company
nor any Fund shall use any trademark, trade name, service xxxx or logo of
Xxxxxxx Xxxxx Xxxxxx, or any variation of any such trademark, trade name,
service xxxx or logo, without Xxxxxxx Xxxxx Xxxxxx'x prior written consent.
C. Upon request, Xxxxxxx Xxxxx Barney shall provide Company with copies of all
sales literature and other marketing materials which refer to Company or any
Fund.
9. [INTENTIONALLY OMITTED]
10. No-Solicitation
Company agrees, at all times during the term of this Agreement and thereafter,
that neither it nor any Fund knowingly shall solicit, directly or indirectly,
any Client to invest in the Funds or in any other investment company for which
Company acts as a sponsor, adviser, administrator, distributor, or other service
provider (a "Company Fund"); provided, that this prohibition shall not apply to:
(i) the solicitation of any Client that was an investor in a Fund or in any
Company Fund prior to the time it became a participant in a Program; or (ii) to
any solicitation that Company or a Fund engages in at the request of Xxxxxxx
Xxxxx Xxxxxx.
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11. Confidentiality
A. Company agrees, at all times during the term of this Agreement and
thereafter, that it and each Fund shall maintain the confidentiality of, and not
disclose to any person, or otherwise make use of (directly or indirectly), the
names and addresses of, or other information relating to, Clients ("Client
Information"), except as expressly permitted under this Agreement, as may be
necessary in the ordinary course of performing the services and transactions
contemplated by this Agreement, or as may be required by applicable law or
judicial process. Notwithstanding the foregoing, Company and the Funds shall not
be prohibited from utilizing for any purpose Client Information if they can
clearly establish that such information was (i) known to them prior to this
Agreement; (ii) rightfully acquired by them from third parties whom they
reasonably believed were not under an obligation of confidentiality to any other
party to this Agreement; or (iii) independently developed by them without
breaching any provision of this Agreement.
B. Each party acknowledges and agrees that any and all technical or business
information, including without limitation financial information, business or
marketing strategies or plans or product development, but excluding Client
Information which is covered by paragraph A of this Section 11, which is
disclosed to the other party or is otherwise obtained by such party or its
affiliates or agents during the term of this Agreement (the "Proprietary
Information") constitutes the valuable property of the other party. Each party
agrees that should it come into possession of Proprietary Information, it will
use its best efforts to hold such information in confidence and shall refrain
from using, disclosing or distributing any such information except (i) as may be
necessary in the ordinary course of performing the services and transactions
contemplated by this Agreement; (ii) with the written consent of the other
party; or (iii) as required by law or judicial process. Proprietary Information
shall not include information a party to this Agreement can clearly establish
was (i) known to the party prior to this Agreement; (ii) rightfully acquired by
the party from third parties whom the party reasonably believes are not under an
obligation of confidentiality to any other party to this Agreement; (iii) placed
in public domain without fault of the party or its affiliates; or (iv)
independently developed by the party without reference to or reliance upon
Proprietary Information.
12. Provision of Materials
A. Company shall furnish Salomon Xxxxx Xxxxxx, or arrange for the Funds to
furnish Salomon Xxxxx Xxxxxx, at its or their expense, with current prospectuses
and statements of additional information of the Funds (including any supplements
thereto), periodic reports to Fund shareholders and marketing and other
materials relating to the Funds in such quantities as Xxxxxxx Xxxxx Barney
reasonably requests.
B. Within the specified time frames, Company shall furnish Salomon Xxxxx Xxxxxx,
or arrange for the Funds to furnish Salomon Xxxxx Xxxxxx, with the following
information:
(i) Within three days of the end of each quarter, a brief narrative concerning
the performance of each Fund over the previous quarter.
(ii) Within one week of the end of each quarter, the following quantitative data
for each Fund:
(a) Total return for each month in the previous quarter (calculated in
accordance with SEC guidelines)
(b) Quarter-end net assets
(c) Quarter-end net asset value
(d) Quarter end portfolio manager(s)
(e) Quarter-end portfolio manager(s) tenure
(f) Quarter-end portfolio holdings
(g) Quarter-end asset allocation breakdown using the following
categories: stocks; bonds; cash; domestic; foreign.
(h) Annual expense ratio (as reported in the Fund's most recent annual
report)
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(i) Annual portfolio turnover (as reported in the Fund's most recent
annual report)
(iii) The information and data provided to Xxxxxxx Xxxxx Barney under items (i)
and (ii) above of this Section 12.B. shall be referred to in this Agreement as
"Fund Data." Fund Data shall be furnished in a format specified by Xxxxxxx Xxxxx
Xxxxxx.
C. Company will notify Xxxxxxx Xxxxx Barney of any departure by a Fund portfolio
manager within 24 hours of Company's receipt of notice of an intended departure.
X. Xxxxxxx Xxxxx Xxxxxx employees shall have reasonable access to the portfolio
manager(s) of each Fund for purposes of discussing Fund performance and other
significant issues.
X. Xxxxxxx Xxxxx Xxxxxx will furnish Company with a summary description of each
Fund. Company shall review each summary and submit any comments thereon to
Xxxxxxx Xxxxx Barney within ten days of Company's receipt thereof. If no
comments are received within such time frame, Xxxxxxx Xxxxx Xxxxxx shall be
entitled to use the summary in connection with its marketing of the Funds
through the Programs. If comments are received within the specified time frame,
Xxxxxxx Xxxxx Barney shall be entitled to use the summary after incorporating
the comments agreed to by Xxxxxxx Xxxxx Xxxxxx and Company. Company shall notify
Xxxxxxx Xxxxx Barney promptly of any changes to the information contained in a
previously reviewed summary and Xxxxxxx Xxxxx Xxxxxx shall incorporate such
changes as are agreed to by Xxxxxxx Xxxxx Barney and Company (after which
Xxxxxxx Xxxxx Xxxxxx shall be entitled to use the revised summary in connection
with its marketing of the Funds through the Programs). An "Approved .Fund
Summary" is any summary that, under the terms of this Section 12E, Xxxxxxx Xxxxx
Barney is entitled to use in connection its marketing of the Funds through the
Programs.
13. Liability and Indemnification
A. Company acknowledges and agrees that neither Xxxxxxx Xxxxx Xxxxxx nor any
other Xxxxxxx Xxxxx Barney Party (as defined below) is responsible for: (i) any
information contained in any prospectus, statement of additional information,
registration statement, annual report, proxy statement, or item of advertising
or marketing material of or relating to any Fund (except for advertising or
marketing materials prepared by Xxxxxxx Xxxxx Xxxxxx); (ii) any Fund Data
provided to Xxxxxxx Xxxxx Barney; (iii) the registration or qualification of any
shares of any Fund under any federal or applicable state laws; or (iv) the
compliance or failure to comply by any Company Party (as defined below), with
any applicable federal or state law, rule, or regulations of any self-regulatory
organization with jurisdiction over any Company Party, except to the extent that
the failure to so comply by such Company Party is caused by a Xxxxxxx Xxxxx
Xxxxxx Party's failure to comply with any of the foregoing laws, rules, or
regulations or its breach of this Agreement. For purpose of this Agreement, a
"Company Party" shall include Company, its affiliates and the Funds and any of
their respective officers, directors, trustees, employees and agents and a
"Xxxxxxx Xxxxx Barney Party" shall include Xxxxxxx Xxxxx Xxxxxx, its affiliates
and any of their respective officers, directors, trustees, employees and agents.
X. Xxxxxxx Xxxxx Xxxxxx acknowledges and agrees that neither Company nor any
other Company Party is responsible for (i) any information contained in any
advertising or marketing materials prepared by Xxxxxxx Xxxxx Barney, except for
information provided by a Company Party or contained in any Fund prospectus,
statement of additional information, registration statement, annual report,
proxy statement, or item of advertising or marketing material prepared by a
Company Party; or (ii) the compliance or failure to comply by a Xxxxxxx Xxxxx
Xxxxxx Party with any applicable law, rule, or regulation governing such Xxxxxxx
Xxxxx Barney Party, except to the extent that the Xxxxxxx Xxxxx Xxxxxx Party's
or such agents' failure to comply with any such law, rule or regulation is
caused by the failure of a Company Party to comply with any applicable law,
rule, or regulation or its breach of this Agreement.
C. Company shall indemnify, defend and protect each Xxxxxxx Xxxxx Barney Party
and hold each of them harmless from and against any and all claims, demands,
actions, losses, damages, liabilities, costs, charges, reasonable counsel fees,
and expenses of any nature it or they incur ("Losses") arising out of or from,
with respect to each Fund: (i) any
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actions of any Company Party relating to the sale of Fund shares, including but
not limited to any statements or representations contained in any sales or other
material relating to the Funds that Company Parties provide to a Xxxxxxx Xxxxx
Xxxxxx Party or any other statements or representations, written or oral,
concerning the Funds that Company Parties make to a Xxxxxxx Xxxxx Barney Party;
(ii) any material mistatement in omission of a material fact from a Fund's
current prospectus, registration statement, statement of additional information,
annual report or proxy statement or any advertising or promotional material
generated by any Company Party; (iii) any Fund Data furnished to Xxxxxxx Xxxxx
Xxxxxx by or on behalf of Company or a Fund and any Approved Fund Summary; (iv)
any failure of any Fund or its shares to be properly registered or qualified for
sale and available for sale to the public under any applicable federal law and
regulation or the applicable laws and regulations of any state, any US territory
or the District of Columbia unless Company has notified Xxxxxxx Xxxxx Barney in
writing that the Fund and its shares are not qualified for sale in a particular
jurisdiction and Xxxxxxx Xxxxx Xxxxxx xxxxx shares of the Fund in such
jurisdiction after such notification; (v) any material breach by any Company
Party of any representation, warranty, covenant, or agreement contained in this
Agreement; and (vi) the actions of any Company Party relating to the processing
of purchase, exchange and redemption orders and the servicing of shareholder
accounts to the extent such actions constitute willful misfeasance, bad faith or
gross negligence by a Company Party.
X. Xxxxxxx Xxxxx Xxxxxx shall indemnify, defend and protect each Company Party,
and hold each of them harmless from and against any and all Losses arising out
of or from, with respect to each Fund: (i) any material statements or
representations or omissions of material facts that a Xxxxxxx Xxxxx Barney Party
makes concerning the Fund that are inconsistent with either the Fund's current
prospectus, statement of additional information, periodic reports to
shareholders, proxy statements or any other material any Company Party has
provided in writing to a Xxxxxxx Xxxxx Xxxxxx Party; (ii) any sale of shares of
the Fund by Xxxxxxx Xxxxx Barney where the Fund or its shares are not properly
registered or qualified for sale in any state, any US territory or the District
of Columbia after Company has notified Xxxxxxx Xxxxx Xxxxxx in writing that the
Fund and its shares are not qualified for sale in such jurisdiction; (iii) any
material breach by Xxxxxxx Xxxxx Barney of any representation, warranty,
covenant, or agreement contained in this Agreement; and (iv) any actions of a
Xxxxxxx Xxxxx Xxxxxx Party actions in connection with its performance of the
services described in Section 2 to the extent such actions constitute willful
misfeasance, bad faith or gross negligence by such Xxxxxxx Xxxxx Xxxxxx Party.
14. Arbitration
If a dispute arises between Xxxxxxx Xxxxx Barney and Company with respect to
this Agreement which the parties are unable to resolve themselves, it shall be
settled by arbitration in accordance with the then-existing NASD Code of
Arbitration Procedure ("NASD Code"). The parties agree, that to the extent
permitted by the NASD Code, the arbitrator(s) shall be selected from the
securities industry and the arbitration proceeding shall be held in New York
City.
15. Term and Termination of Agreement
A. This Agreement shall become effective on the date first set forth above and
shall continue in effect until terminated as provided herein. This Agreement may
be terminated by either party hereto at any time upon at least ninety (90) days'
written notice. Notwithstanding the foregoing, this Agreement is terminable (i)
upon less than ninety (90) days' notice if required by applicable law, rule,
regulation, order or instruction by a court of competent jurisdiction or a
regulatory body or self-regulatory organization with jurisdiction over the
terminating party and (ii) by any party at any time by giving 30 days' written
notice to the other party(ies) in the event of a material breach of this
Agreement by the other party or parties that is not cured during such 30-day
period.
B. After the termination of this Agreement, the fees described in Schedule 1
will continue to be due under the circumstances described therein. Xxxxxxx Xxxxx
Xxxxxx agrees that, in the event of termination of this Agreement as provided in
this Section 15, it shall provide Company with such reports and certificates as
the Company may
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reasonably request as necessary to determine that the continued payment of fees
has been calculated in accordance with this Agreement.
16. Notices
All notices and other communications hereunder shall be given or made in writing
and shall be delivered personally, or sent by telex, facsimile, express delivery
or registered or certified mail, postage prepaid, return receipt requested, to
the party or parties to whom they are directed at the following addresses, or at
such other addresses as may be designated by notice from such party to all other
parties.
To Company: _____________________
_____________________
_____________________
Attention:______________________
With a copy to:_________________
To Xxxxxxx Xxxxx Barney:
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxx
With a copy to: Xxxxxxx Xxxxxxx
(000) 000-0000 (phone)
(000) 000-0000 (facsimile)
Any notice, demand or other communication given in a manner prescribed in this
Section 16 shall be deemed to have been delivered on receipt.
17. Nonexclusivity
Each party to this Agreement acknowledges that the other party hereto may enter
into similar agreements with third parties.
18. Miscellaneous
A. This Agreement represents the entire agreement between the parties with
regard to the matters described herein, and may not be modified or amended
except by written instrument executed by all parties. This Agreement may not be
assigned by any party hereto without the prior written consent of the other
parties. This Agreement is made and shall be construed under the laws of the
State of New York without giving effect to principles of conflict of laws. This
Agreement supersedes all previous agreements and understandings between the
parties with respect to its subject matter. If any provision of the Agreement
shall be held or made invalid by a statute, rule, regulation, decision of a
tribunal or otherwise, the remainder of the Agreement shall not be affected
thereby. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any party hereto may
execute this Agreement by signing any such counterpart.
B. As used in this Agreement, an "affiliate" of a party means any entity or
person controlling, controlled by or under common control with such party.
C. The provisions of Sections 5, 10, 11,13,14,15B, 18 and Schedule 1 shall
survive the termination of this Agreement.
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D. All Exhibits and Schedules, as they may be amended from time to time, are
incorporated herein by reference and made part of this Agreement.
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IN WITNESS HEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
XXXXXXX XXXXX BARNEY INC. Seix Investment Advisors, Inc.
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By: /s/ Xxxx Xxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Name:
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Title: VP Title: COO
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EXHIBIT A
OPERATING PROCEDURES
Except as otherwise indicated, all references to Xxxxxxx Xxxxx Xxxxxx in this
Exhibit A shall be deemed to include any affiliate or agent of Xxxxxxx Xxxxx
Barney that is involved in communicating Instructions to the Funds on behalf of
Xxxxxxx Xxxxx Xxxxxx. All time deadlines set forth below are eastern time.
A. If a Fund does not execute and settle ("process") orders for the purchase
(including reinvestment of dividends and distributions), redemption, exchange
and transfer of its shares ("Orders") through the NSCC Fund/Serve system (the
"NSCC"), the Fund will use its best efforts to provide Xxxxx Xxxxxx, by 6:30
p.m. Eastern Time ("E.T.") on each business day, with the Fund's closing net
asset value for that day.
B. Any Fund that processes Orders through NSCC will use its best efforts to
execute (and thereby transmit the information to NSCC) by 7 p.m. E.T. on each
business day all Orders that correspond to Instructions (as defined in the
attached Agreement) received by Xxxxxxx Xxxxx Xxxxxx before the close of the New
York Stock Exchange on such day and transmitted by Xxxxxxx Xxxxx Barney to NSCC
by 6 p.m. E.T. on such day. If a Fund normally processes Orders through NSCC,
but is unable to meet the 7 p.m. deadline on any business day, it will use its
best efforts to provide Xxxxxxx Xxxxx Xxxxxx, by 6:30 p.m. E.T. of such day,
with the Fund's closing net asset value for that day. In cases where Xxxxx
Xxxxxx Plan Services (an affiliate of Xxxxxxx Xxxxx Xxxxxx) is transmitting
Instructions on behalf of Clients that are retirement plans, the 7:00 p.m. and
6:00 p.m. deadlines set forth above shall be substituted, respectively, with
7:00 a.m. and 3:00 a.m. next business day deadlines (i.e., if Xxxxx Xxxxxx Plan
Services receives Instructions before the close of the NYSE on a business day
and communicates those Instructions to NSCC by 3:00 a.m. the next business day,
the Fund will execute (and transmit the information to NSCC) the orders that
corresponds to the Instructions by 7:00 a.m. on such business day).
C. If a Fund that processes Orders through NSCC receives Instructions from
Xxxxxxx Xxxxx Xxxxxx by 9:30 a.m. E.T. on the business day ("T+1") immediately
succeeding the day on which Xxxxxxx Xxxxx Barney received, before the close of
the New York Stock Exchange on such day, the Instructions from its Client, the
Order that corresponds to the Instructions will be executed as of and at the net
asset value of the Fund shares at the close of business on the trade date (i.e.,
"T," which is the date on which Xxxxxxx Xxxxx Xxxxxx received the Instructions
prior to 4:00 p.m. E.T.); with no loss to Xxxxxxx Xxxxx Barney. Each such Order
will be settled on: (i) T+1, if the Fund executes the transaction (and thereby
transmits the information to NSCC) no later than 11 a.m. E.T. on T+1; or (ii)
T+2, if the Fund executes the transaction (and thereby transmits the information
to NSCC) after 11 a.m. E.T. on T+1.
D. To the extent Xxxxxxx Xxxxx Xxxxxx holds shares of a Fund in street name on
behalf of its Clients in an omnibus account established with the Fund (an
"Omnibus Account"), the Fund will provide Xxxxxxx Xxxxx Barney with a daily
report setting forth all activity occurring in the Omnibus Account during each
day.
E. In the event a Fund that does not process orders through NSCC pays on any day
("Issue Date") a dividend to an Omnibus Account maintained by Xxxxxxx Xxxxx
Xxxxxx with the Fund, and Xxxxxxx Xxxxx Barney notifies the Fund by 11:00 a.m.
E.T. on the day immediately succeeding the Issue Date that it wishes to reinvest
the dividend, the Fund shall reinvest the dividend as of the Issue Date and at
the net asset value of Fund shares at the close of business on the Issue Date;
with no loss to Xxxxxxx Xxxxx Xxxxxx as broker in connection with the
transaction.
F. On a daily basis, each Fund will provide Xxxxxxx Xxxxx Barney with a report
of any Orders that correspond to Instructions that have been executed by the
Fund but have not settled within the applicable time frames, as set forth in
this Exhibit A.
G. On a daily basis, each Fund will notify Xxxxxxx Xxxxx Xxxxxx if the number of
Fund shares to be redeemed, whether from an Omnibus Account or from an account
established with the Fund in the name of a Client, exceeds the aggregate number
of shares held in such accounts. No Fund will reject a redemption Instruction
(and corresponding redemption order) for this reason without first contacting
Xxxxxxx Xxxxx Barney.
H. Each Fund will provide Xxxxxxx Xxxxx Xxxxxx with a list of the names, titles
and telephone numbers of the personnel designated and authorized to receive
Instructions from Xxxxx Xxxxxx and communicate with Xxxxxxx Xxxxx Xxxxxx
regarding corresponding Orders and related matters.
I. No Fund will make any changes to the cusip number of its shares without
giving Xxxxxxx Xxxxx Barney reasonable prior notice of the proposed change.
J. Each Fund will accept from Xxxxxxx Xxxxx Xxxxxx Instructions, which shall
include the standard indemnity contained in instructions of this nature, via
facsimile. Xxxxxxx Xxxxx Barney will not provide the Fund with a hard-copy of
such Instructions.
K. For purposes of this Exhibit A, the obligations of the Funds as set forth
herein shall be deemed to be obligations of the Company, the Funds' transfer
agent and any other agent or employee acting on behalf of the Funds or any
individual Fund.
L. The parties agree that, in connection with transactions in Fund shares, they
(and their affiliates) shall participate in the NSCC's Fund/SERV system
("Fund/SERV") and the NSCC Networking System in compliance with the rules and
procedures established by the NSCC, including the standard NSCC Networking
Agreement.
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EXHIBIT B
NOTICES
Company Name: ______________________________
Address: __________________________
__________________________
Contact person: ________________________________
____________ (telephone number)
____________ (facsimile number)
SCHEDULE 1
FEES
I. CUSTODY AND TRADING PROGRAMS
Company and/or the Funds shall pay the following amounts to Xxxxxxx Xxxxx
Xxxxxx:
0.35% of the average daily net asset value of all Client assets invested in the
Funds (including assets invested through reinvestment of dividends and
distributions) through a Program (other than a retirement Program), payable
quarterly, in arrears. Xxxxxxx Xxxxx Barney shall compute the fee for each
calendar quarter, which shall be the product of (a) the average daily net asset
value of Client assets invested in the Funds through a Program (other than a
retirement Program) during the quarter; (b) the number of days in the quarter;
and (c) the quotient of 0.0025 divided by 365. The fees described in this
paragraph I shall survive any termination of the Participation Agreement for so
long as Xxxxxxx Xxxxx Xxxxxx continues to provide shareholder services (as
described in Section 2A of the Participation Agreement) to such Clients.
II. ADVISORY PROGRAMS (TRAK NAV)
Company and/or the Funds shall pay the following amounts to Xxxxxxx Xxxxx
Barney:
0.35% of the average daily net asset value of all Client assets invested in the
Funds (including assets invested through reinvestment of dividends and
distributions) through a Program (other than a retirement Program), payable
quarterly, in arrears. Xxxxxxx Xxxxx Xxxxxx shall compute the fee for each
calendar quarter, which shall be the product of (a) the average daily net asset
value of Client assets invested in the Funds through a Program (other than a
retirement Program) during the quarter; (b) the number of days in the quarter;
and (c) the quotient of 0.0035 divided by 365. The fees described in this
paragraph II shall survive any termination of the Participation Agreement for so
long as Xxxxxxx Xxxxx Barney continues to provide shareholder services (as
described in Section 2A of the Participation Agreement) to such Clients.
III. RETIREMENT PROGRAMS
Company and/or the Funds shall pay the following amounts to Xxxxxxx Xxxxx
Xxxxxx:
(i) 0.25% of the average daily net asset value of all Client assets invested in
the Funds (including assets invested through reinvestment of dividends and
distributions) through a retirement Program, payable quarterly, in arrears.
Xxxxxxx Xxxxx Barney shall compute the fee for each calendar quarter, which
shall be the product of (a) the average daily net asset value of Client assets
invested in the Funds through a retirement Program during the quarter; (b) the
number of days in the quarter; and (c) the quotient of 0.0025 divided by 365.
The fees described in this paragraph III(i) shall survive any termination of the
Participation Agreement for so long as Xxxxxxx Xxxxx Xxxxxx continues to provide
shareholder services (as described in Section 2A of the Participation Agreement)
to such Clients.
(ii) In addition to the fees described in paragraph III(i) above, for each Fund,
Xxxxxxx Xxxxx Barney shall receive $16.00 annually per each participant in a
retirement plan (a "Plan") that is an investor in the Fund pursuant to a
retirement Program. Payment shall be made quarterly, in arrears, based upon the
number of participants who are investors in such Fund through a Plan for any
part of the subject quarter. Company's obligation to pay (or cause the
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Funds to pay) the fees described in this paragraph III(ii) shall survive any
termination of the Participation Agreement for so long as the participant
continues to be an investor in any of the Funds through a retirement Program.
The fees described in this Schedule 1 will be payable to Xxxxxxx Xxxxx Xxxxxx
within 15 days of receipt by Company of Xxxxxxx Xxxxx Barney's invoice for such
fees.
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This Schedule 1 may be amended from time to time by Xxxxxxx Xxxxx Xxxxxx and
Company executing a revised Schedule 1 and the terms of the Participation
Agreement will otherwise remain in effect.
XXXXXXX XXXXX BARNEY INC. Seix Investment Advisors, Inc.
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By: /s/ Xxxx Xxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Name:
------------------------ --------------------
Title: VP Title: COO
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