Exhibit (h)(25)
Late Order Processing Agreement
between
American Century
and
One Group Mutual Funds
LATE ORDER PROCESSING AGREEMENT
AGREEMENT made as of September 1, 2000, by and between American Century
("Recordkeeper") and The One Group(R) (the "Fund Company").
WHEREAS, the Recordkeeper and the Fund Company have entered into an Agency
Agreement, which is incorporated herein by reference, under which the Fund
Company will retain the Recordkeeper to perform certain recordkeeping and
accounting services and functions with respect to transactions in shares of
series ("Funds") of the Fund Company made by or on behalf of participants in
certain employee pension benefit plans as that term is defined in Section 3(2)A)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
("Plans");
WHEREAS, pursuant to the Agency Agreement, the Recordkeeper has been deemed the
agent of the Fund Company for the limited purpose of receiving instructions
("Instructions") in proper form from participants, beneficiaries or plan
sponsors (collectively, "Participants") from which are derived orders ("Orders")
for the purchase, redemption and exchange of Fund shares; and
WHEREAS, the Recordkeeper is responsible for transmitting such Orders to the
Fund Company's transfer agent.
NOW THEREFORE, in consideration of the foregoing and the mutual promises set
forth below, the parties hereto agree as follows:
1. Provision of Net Asset Value. The Fund Company or its designee shall
----------------------------
furnish the Recordkeeper with the confirmed net asset value ("NAV")
information as of the close of trading on the New York Stock Exchange
(generally, 4:00 p.m., Eastern Time ("ET")) ("Market Close") on any day
that the Fund Company is open for business ("Business Day"), and dividend
and capital gains information as it arises. The Fund Company or its
designee shall use its best efforts to provide such information by 6:30
p.m., ET on each Business Day.
2. The Recordkeepers Receipt and Transmission of Orders.
----------------------------------------------------
a) As provided in the Agency Agreement, the Recordkeeper will aggregate
all purchase, redemption and exchange Instructions made by or on
behalf of Plan Participants and communicate to the Fund Company an
aggregate purchase, redemption or exchange Order.
b) The Recordkeeper agrees that (i) Orders derived from Participant
Instructions received by the Recordkeeper prior to the Market Close on
any Business Day of the Fund Company, as defined in the Fund Company's
registration statement, ("Day 1") will be electronically transmitted
to the Fund Company by 5:00 a.m., ET on the next Business Day (such
Orders are referred to as "Day 1 Trades"); and (ii) orders derived
from Instructions received by the Recordkeeper after the Market Close
("Day 2 Trades") on Day 1 will be electronically transmitted to the
Fund Company on the next Business Day following Day 1 ("Day 2").
(c) If the Recordkeeper cannot electronically transmit Day 1 Trades by
5:00 a.m. on Day 2, the Recordkeeper will transmit such Orders by
facsimile prior to the Market Open (generally 7:00 a.m.) on Day 2.
3. Pricing of Orders. The Fund Company agrees that Day 1 Trades will be
-----------------
effected at the NAV calculated as of the Market Close on Day 1, provided
that such trades are received by the Fund Company by 5:00 a.m., ET on Day 2
or prior to 7:00 a.m. on Day 2; and Day 2 Trades will be effected at the
NAV calculated as of the Market Close on Day 2, provided they are received
by the Fund Company by 5:00 a.m., ET on Day 3 or prior to 7:00 a.m. on Day
3. The Fund Company agrees that, consistent with the foregoing, Day 1
Trades will have been received by the Fund Company prior to the Market
Close on Day 1, and Day 2 trades will have been received by the Fund
Company prior to the Market Close on Day 2 for all purposes, including,
without limitation, effecting distributions.
4. Confirmations. The Fund Company will send a confirmation of each Business
-------------
Day's Order via electronic transmission or facsimile by the Market Close on
Day 2 for Day 1 Trades received by 5:00 a.m. on Day 2.
5. Role of the Recordkeeper. The parties acknowledge and agree that, except as
------------------------
specifically provided in this Agreement and for the sole and limited
purposes set forth herein, the Recordkeeper acts as agent for the Plans in
connection with the effectuation of Orders subject to this Agreement. The
parties agree that the Recordkeeper is not an agent of the Fund Company
other than as provided herein and in the Agency Agreement.
6. Books and Records. To the extent required by the Investment Company Act of
-----------------
1940 (the "1940 Act"), as amended, and the rules thereunder, all records
maintained by the Recordkeeper hereunder are the property of the Fund
Company and will be preserved, maintained and made available in accordance
with the 1940 Act and the rules thereunder. Copies, or if required,
originals, of such records shall be surrendered promptly to the Fund
Company and its agents (or independent accountants) upon request. This
Section 6 shall survive termination of this Agreement.
7. Representations of the Parties.
------------------------------
Each party represents and warrants to the other party that:
(a) It is duly organized, validly existing and in good standing under the
laws of its state of organization or incorporation;
(b) It has legal power and authority to carry on its business, and is
registered or licensed as required, in each jurisdiction where it
conducts its business;
(c) The Fund Company is duly registered as a registered investment company
under the Investment Company Act of 1940 and the Recordkeeper is duly
registered as a transfer agent under Section 17A of the Securities
Exchange Act of 1934.
8. Verification. Each party shall, as soon as practicable after notification
------------
that a report, notification or other information has been transmitted by
the other party via facsimile or other electronic transmission, confirm the
receipt of such report, notification or other
information. Such confirmation shall be in oral, written or electronic
format. In the absence of such confirmation, a party to whom the
transmission was sent shall not be held liable for any failure to act in
accordance with the transmission, and absent evidence to the contrary, the
sending party may not claim that the transmission was received by the other
party. Each party shall promptly notify the other of any errors, omission
or interruptions in, or delay or unavailability of, any such transmission
as promptly as possible.
9. Limitation of Liability. The Recordkeeper shall not be liable to the Fund
-----------------------
Company for any loss or damage, including counsel fees and court costs,
whether or not resulting from its acts or omissions to act hereunder or
otherwise hereunder, unless the loss or damage arises out of the
Recordkeeper's own bad faith, willful misfeasance, negligence or from its
reckless disregard of its obligations and duties.
The Fund Company shall not be liable to the Recordkeeper for any loss or
damage, including counsel fees and court costs, whether or not resulting
from its acts or omissions to act hereunder or otherwise hereunder, unless
the loss or damage arises out of the Fund Company's own bad faith, willful
misfeasance, negligence or from its reckless disregard of its obligations
and duties.
10. Termination. The Fund Company will provide the Recordkeeper with ninety
-----------
(90) days prior written notice if purchase Orders may no longer be effected
in accordance with this Agreement. Such termination shall not affect the
remaining provisions of this Agreement and redemption Orders shall continue
to be effected. Either party may terminate this Agreement upon ninety (90)
day's prior written agreement to the Fund Company.
11. Entire Agreement. This Agreement represents the entire agreement between
----------------
the parties, supersedes all prior agreements, understandings, negotiations
and discussions, whether oral or written, and shall not be modified or
amended except by a writing signed by both parties.
12. Notices. Unless otherwise specified, all notices and other communications
-------
shall be in writing and shall be duly given if hand delivered, delivered by
facsimile with written confirmation, or mailed by first class mail to the
following addresses:
If to the Fund Company:
----------------------
The One Group
Attn: Xxxx Xxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
If to the Recordkeeper:
----------------------
13. Severability. If any provision of this Agreement are held or made invalid
------------
by a statute, rule, regulation , decision of a tribunal or otherwise, the
remainder of this Agreement shall not be affected and, to this extent, the
provisions of this Agreement shall be deemed to be severable.
14. Governing Law. This Agreement shall be governed by the laws of the state of
-------------
Ohio, except as such laws are superseded by or preempted by any Federal
law.
15. Assignment. This Agreement may not be assigned by either party without the
----------
prior written consent of the other party.
16. Dispute Resolution and Arbitration. Any controversy or claim arising out of
----------------------------------
or relating to this Agreement, or the breach of the same which gives rise
to a remedy at law, shall be settled through consultation and negotiation
in good faith and a spirit of mutual cooperation. However, if those
attempts fail, the parties agree that any misunderstandings or disputes
arising from this Agreement shall be decided by arbitration which shall be
conducted, upon request by either party, before three (3) arbitrators
(unless both parties agree on one (1) arbitrator) designated by the
American Arbitration Association (the "AAA"), in accordance with the terms
of the Commercial Arbitration Rules of the AAA, and, to the maximum extent
applicable, the United States Arbitration Act (Title 9 of the United States
Code), or if such Act is not applicable, any substantially equivalent Ohio
state law. The parties further agree that the arbitrator(s) will decide
which party must bear the expenses of the arbitration proceedings. The
arbitration will take place in Columbus, Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date set forth above.
The One Group Expert Xxxx.Xxx
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxx
-------------------------------- -------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxx
----------------------------- ----------------------------
Title: President Title: Assistant General Counsel
----------------------------- ----------------------------
