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Exhibit 9
SERVICES AGREEMENT
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This agreement is made as of January 1, 1998 by and between The Gateway
Trust, an Ohio business trust (the "Trust"), and Gateway Investment Advisers,
L.P., a Delaware limited partnership (the "Adviser").
RECITALS
The Trust is engaged in the business of a diversified, open-end
management investment company. The Board of Trustees of the Trust has selected
the Adviser to act (i) as Transfer, Dividend and Plan Agent with respect to
shares of beneficial interest ("Shares") of the mutual funds set forth on
Schedule A to this Agreement (collectively the "Funds" and individually a
"Fund") and (ii) as Shareholder Servicing Agent for the Funds. The Adviser has
also been engaged to perform certain financial, administrative and compliance
services for the Funds, as hereinafter described. The Adviser is willing to act
in such capacities and perform the respective duties and functions thereof in
the manner and on the conditions hereinafter set forth. This Agreement
constitutes the entire agreement between the parties and supersedes all prior
shareholder servicing, transfer, dividend disbursing, and financial servicing
agent agreements.
AGREEMENT TERMS
The Trust, on behalf of each Fund, and the Adviser hereby agree as
follows:
I. SHAREHOLDER ORDERS. Upon receipt by Adviser of purchase,
exchange and/or redemption instructions in accordance with the
procedures set out in the Fund's then current prospectus
("Prospectus") and statement of additional information (such
instructions collectively referred to herein as "Orders"), the
Adviser will provide the following services in accordance with
procedures established from time to time by the Trust and the
Adviser:
a. in the case of a new shareholder of a Fund
("Shareholder"), establish a Shareholder account
("Account");
b. compute the number of Shares purchased, exchanged or
redeemed by the Shareholder based on the closing
price of the Fund as next determined;
c. process all Orders on behalf of the Funds and post
the transactions to the Shareholder's Account;
d. deliver instructions for payment and/or appropriate
documentation of all Orders to the Trust's custodian
("Custodian");
e. send a confirmation of the Order to the Shareholder,
indicating the amount of full and fractional shares
purchased, redeemed and/or exchanged;
f. in the case of a request to establish an accumulation
plan, group program,
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withdrawal plan, automatic investment plan or other
plan or program being offered by the Prospectus, open
and maintain such plan or program, and act as plan
agent, for the Shareholder in accordance with the
terms thereof;
g. if any check or other order for payment for any Order
is returned unpaid for any reason, the Adviser will
give prompt notification to the affected Fund of such
non-payment, and take such other steps, including
redepositing such check for collection or
redelivering such check to the Shareholder or new
investor and placing a stop transfer order against
the Account, as the Trust, on behalf of the affected
Fund, may instruct; and
h. notify each Fund as soon as practicable each business
day of the Orders for redemption, purchase and/or
exchange which were received by the Adviser in proper
form on the previous business day.
2. RECORD MAINTENANCE. The Adviser will maintain records, which
at all times will be the property of each Fund and available
for inspection by such Fund, showing for each Account the
following:
a. name, address, and tax identification number;
b. number of Shares held;
c. historical information regarding the Account,
including dividends and distributions paid and the
date and price for all transactions on an Account;
d. any stop or restraining order placed against the
Account; and
e. any instructions as to withdrawal plans, and any
correspondence or instructions relating to the
maintenance or termination of the Account.
In addition, the Adviser will maintain and preserve such other
records necessary to carry out its duties under this Agreement
and applicable law.
3. DIVIDENDS AND DISTRIBUTIONS. The Trust, on behalf of each
Fund, will promptly notify the Adviser of the declaration of
any dividend or distribution with respect to such Fund's
Shares. The Adviser will notify the Trust, on behalf of such
Fund, of the total number of Shares issued and outstanding as
of the record date, for such dividend or distribution and the
amount of cash required to pay such dividend or distribution.
The Trust, on behalf of the Fund, will instruct the Custodian
to make sufficient funds available in the dividend and
distribution account maintained by the Fund with the Custodian
to pay such dividend or distribution. The Adviser will prepare
and distribute to Shareholders of such Fund any checks to
which they are entitled by reason of any dividend or
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distribution. In the case of each Shareholder entitled to
receive additional Shares by reason of any such dividend or
distribution, the Adviser will make appropriate credits to
such Shareholder's account. Each such shareholder shall be
notified of any dividends or distributions, including the
amount of any Shares purchased by reason of any such dividends
or distributions.
4. ADMINISTRATIVE SERVICES. The Adviser will provide such
administrative services as may be required by the Trust, including the
following:
a. answer Shareholder inquiries and assist Shareholders
in changing dividend options, account designations
and addresses;
b. negotiate and administer third party contracts,
including but not limited to custodian, printers,
auditors, insurers, brokers and distribution channels
and monitor the services provided thereunder;
c. coordinate agendas for Board of Trustees and
committee meetings and prepare meeting materials,
including selected management reports for performance
and compliance analyses and selected financial data,
as agreed upon by the Trust and the Adviser;
d. attend management and board of trustee meetings as
requested;
e. coordinate the Trust's SEC and annual independent
audits;
f. coordinate the printing of all shareholder materials,
including the Prospectus and annual and semi-annual
reports;
g. address and mail all communications by the Trust, on
behalf of each Fund, to the Fund's shareholders,
including financial reports to shareholders, proxy
material for meetings of shareholders and periodic
communications to shareholders;
h. receive and examine return proxy cards for meetings
of shareholders and tabulate and certify the vote to
the Trust, on behalf of each Fund; and
i. furnish the Trust or its designees with such
information as the Trust or the designee shall
reasonably request.
5. FINANCIAL SERVICES. The Adviser will provide such financial
services as may be required by the Trust, including the
following:
a. those services ordinarily entrusted to and performed
by a treasurer, including without limitation (i)
monthly communication with Trustees; (ii) preparation
and filing of tax and financial reports; (iii)
preparation of documents required by the auditors;
and
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(iv) liaison between the Trustees, the auditors, and
the Trust's legal counsel;
b. prepare and maintain the Trust's operating expense
budget to determine proper expense accruals to be
charged to the Funds in order to calculate NAV;
c. determine income and capital gains available for
distribution and calculate distributions required to
meet regulatory, income, and excise tax requirements,
and recommend such distribution amounts to the Board
of Trustees;
d. prepare daily basic reports including Statement of
Assets and Liabilities, Statement of Operations and
Statement of Changes in Net Assets;
e. prepare monthly basic reports including Detailed
Trial Balance, Tax Report for Dividends and Portfolio
Turnover Ratio;
f. perform daily pricing and determine net asset value;
and
g. prepare, file with the Internal Revenue Service and
with any State as directed by the Trust and, if
required, mail to shareholders such returns for
reporting dividends and distributions paid by each
Fund as are required to be so prepared, filed and
mailed by applicable laws, rules and regulations; and
direct the Custodian to withhold such sums as are
required to be withheld under applicable Federal and
State income tax law, rules and regulations.
6. COMPLIANCE SERVICES. The Adviser will provide all services
ordinarily and entrusted to and performed by a compliance
officer including the following:
a. direct periodic revisions to the Trust's registration
statement;
b. prepare and file federal and state registrations and
notices, including Form N1-A;
c. prepare and file federal and state reports including
Form 24F-2 and Form N-SAR; and
d. develop and monitor compliance systems and procedures
including those related to blue sky registrations.
7. FACILITIES AND PERSONNEL; REGISTRATION AS TRANSFER AGENT. The
Adviser will provide such office space, equipment and
personnel (which may be all or any part of the space,
equipment and personnel used by the Adviser for other
purposes) as is necessary or beneficial for the provision of
services as required by this
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Agreement. In addition, the Adviser will maintain its
registration with the SEC as a transfer agent.
8. Information Furnished.
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a. The Trust will furnish the Adviser promptly with
copies of any Registration Statements now in effect
or hereafter filed by it with the Securities and
Exchange Commission ("SEC") under the Securities Act
of 1933, as amended, or the Investment Company Act of
1940, as amended, together with any financial
statements and exhibits included therein, and all
amendments or supplements thereto hereafter filed.
b. The Adviser will furnish to each Fund such other
information, including shareholder lists and
statistical information, as may be agreed upon from
time to time between the Adviser and the Trust, on
behalf of the Fund. The Adviser shall notify each
Fund of any request or demand to inspect the share
records of the Fund and will act upon the
instructions of the Trust as to permitting or
refusing such inspection.
9. Compensation.
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a. For the performance of all duties and
responsibilities of the Adviser hereunder, the
Adviser will receive from the Trust (i) a monthly fee
per Fund of $4,000 and (ii) an additional fee per
Fund, payable monthly, at an annual rate equal to
0.20% of the average value of the daily net assets of
the Fund, subject to a minimum monthly fee per Fund
of $2,500.
b. The Adviser will also be reimbursed by the Trust for
any out-of-pocket expenses or disbursements which the
Adviser may reasonably incur in excess of its basic
overhead expenses incurred in performing such duties
and responsibilities, including without limitation
the performance of the printing, mailing, reporting
and proxy services described in Schedule B hereto.
The Adviser must obtain the approval of the Board of
Trustees of the Trust for any reimbursement of
expenses or disbursements not described in Schedule
B. In addition, the Adviser will be reimbursed by the
Trust for the portion of the salary and related
employment expenses of the Adviser's general counsel
allocated to the Trust in such manner as shall be
determined by the Board of Trustees of the Trust.
10. USE OF ADVISER'S NAME. The Adviser consents to all uses of the
Adviser's name, in any prospectus, sales literature or other
material relating to the Trust or any Fund, which merely refer
in accurate terms to its appointment hereunder or which are
required by the SEC or a state securities commission. All
other uses require the Adviser's prior written consent, which
will not be unreasonably withheld.
11. ACTIVITIES OF THE ADVISER.The services of the Adviser under
this Agreement
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are not to be deemed exclusive, and the Adviser is free to
render similar services to others so long as the provision of
services hereunder are not impaired thereby. The Trust
acknowledges and hereby authorizes the Adviser to delegate its
duties hereunder to any competent and reliable third party,
provided (i) the Adviser supervises such delegee and remains
primarily liable to the Trust and (ii) for purposes of the
indemnification provisions of this Agreement, all actions
taken on behalf of the Adviser by the delegee shall be deemed
taken by the Adviser.
12. Duty of Care and Indemnification.
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a. The Adviser will at all times act in good faith and
with due care in the performance of its duties
hereunder. The Adviser will indemnify and hold
harmless the Trust and each Fund from any losses,
claims, damages, liabilities and expenses (including
reasonable counsel fees and expenses) arising from
any claim, demand, action or suit which results from
the Adviser's lack of good faith, absence of due care
or negligence, or from any willful misconduct or
gross negligence on the Adviser's part; provided,
however, that:
i. the Adviser shall not be liable to the Trust
or any Fund or to any third party for
consequential, indirect or special damages,
such as loss of profits, loss of business or
loss of opportunity, unless such damages are
the result of the Adviser's gross negligence
or willful misconduct; and
ii. the Adviser shall not be liable or
responsible for errors or delays caused by
circumstances beyond its control, including
acts of civil or military authority,
national emergencies, strikes or similar
labor disputes, fire, mechanical breakdown
beyond the Adviser's control, flood or
catastrophe, acts of God, insurrection, war,
riots or failure beyond the Adviser's
control of transportation, communication or
power supply.
b. The Trust, on behalf of each Fund, but only from the
assets of each such Fund and not from other assets of
the Trust or any other fund of the Trust, will
indemnify the Adviser against and hold the Adviser
harmless from any and all losses, claims, damages,
liabilities or expenses (including reasonable counsel
fees and expenses) arising from any claim, demand,
action or suit which results from the Adviser acting
in accordance with:
i. any instructions given, in writing by any
person duly authorized by the Trust, on
behalf of the Fund, to give such
instructions,
ii. any written or oral advice given, or
reasonably believed by the Trust to have
been given, by counsel for the Trust, or
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iii. the instructions contained in any instrument
or stock certificate reasonably believed by
the Adviser to have been genuine and signed,
countersigned or executed by any person or
persons authorized by the Trust, on behalf
of the Fund, to sign, countersign or execute
the same on the Fund's behalf;
but in any such case only to the extent approved by a
majority of the disinterested Trustees of the Trust.
c. In any case in which one party (the Adviser or the
Trust, on behalf of any Fund) hereto may be asked to
indemnify the other or hold the other harmless, the
party from whom indemnification is sought (the
"Indemnifying Party") shall be advised of all
pertinent facts concerning the situation in question,
and the party claiming a right to indemnification
(the "Indemnified Party") will use reasonable care to
identify and notify the Indemnifying Party promptly
concerning any situation which presents or appears to
present a claim for indemnification against the
Indemnifying Party. The Indemnifying Party shall have
the option to defend the Indemnified Party against
any claim which may be the subject of the
indemnification. If Indemnifying Party so elects,
such defense shall be conducted by counsel chosen by
the Indemnifying Party that is satisfactory to the
Indemnified Party; and the Indemnifying Party will so
notify the Indemnified Party. Thereupon such
Indemnifying Party shall take over the complete
defense of the claim, and the other party shall
sustain no further legal or other expenses in such
situation for which indemnification has been sought
under this paragraph, except the expenses of any
additional counsel retained by such Indemnified
Party. In no case shall any party claiming the right
to indemnification confess any claim or make any
compromise in any case in which the other party has
been asked to indemnify such party (unless such
confession or compromise is made with such other
party's prior written consent).
d. The obligations of the parties hereto under this
paragraph shall survive the termination of this
Agreement for acts occurring while the agreement was
in force.
13. NOTICE. All notices, requests or other communications under
this Agreement shall be in writing and shall be deemed to have
been duly given on the date of service if personally served
(or by telex or telecopy) on the party to whom notice is to be
given or on the third day after mailing if mailed to the party
to whom notice is to be given by first class mail, postage
prepaid, at the following addresses:
if to the Adviser: Gateway Investment Advisers, L.P.
000 XxxxxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxx 00000
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Fax: (000)000-0000
if to the Trust The Gateway Trust
on behalf of any 000 XxxxxxXxxxxx Xxxxx, Xxxxx 000
Xxxx: Xxxxxxx, Xxxx 00000
Fax: (000)000-0000
The above addresses may be changed at any time by an
instrument in writing executed by the party giving same and
given to the other party in accordance with the procedures set
forth above.
14. FURTHER ASSURANCES. Each party agrees to perform such further
acts and execute such further documents as are necessary to
effectuate the purposes hereof.
15. TERMINATION, ETC. Neither this Agreement nor any provisions
hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing which shall make
specific reference to this Agreement and which shall be signed
by the party against which enforcement of such change, waiver,
discharge or termination is sought. This Agreement may be
terminated by the Trust, on behalf of any or all of the Funds,
or by the Adviser in each case on not less than 60 days'
written notice to the other party. Upon termination hereof,
the Trust shall cause each Fund to pay to the Adviser such
compensation as may be due to the Adviser as of the date of
such termination. If in connection with termination a
successor to any of the Adviser's duties or responsibilities
hereunder is designated by the Trust, on behalf of any Fund,
by written notice to the Adviser, the Adviser shall promptly
upon such termination and at the expense of such Fund,
transfer to such successor a certified list of the
shareholders of the Fund (with name, address and tax
identification or Social Security number), a record of the
account of such shareholder and the status thereof, and all
other relevant books, records and other data established or
maintained by the Adviser under this Agreement and shall
cooperate in the transfer of such duties and responsibilities,
including provision for assistance from appropriate personnel
of the Adviser relating to the establishment of books, records
and other data (financial and otherwise), to such successor.
16. NO COMMINGLING; SEPARATE ACCOUNTS. The Adviser, in its several
capacities as agent for the Fund under this Agreement, shall
at all times keep all funds, securities and other assets of
any kind which are the property of, or in any way held for the
benefit of, each Fund entirely separate and apart from all
other funds, securities and other assets of any kind of the
Trust or of any other Fund maintained by the Trust.
17. EFFECTIVE DATE. This Agreement shall be effective as of
January 1, 1998 and shall continue in effect until terminated
by either party pursuant to Section 15 hereof.
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18. MISCELLANEOUS. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of
Ohio. The captions in this Agreement are included for
convenience of reference only and in no way define or limit
any of the provisions hereof or otherwise affect their
construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which
shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
THE GATEWAY TRUST, for and on behalf of the Funds
By /s/ Xxxxxx X. Xxxx
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Title Chairman
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Date October 29, 1997
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GATEWAY INVESTMENT ADVISERS, L.P.
By /s/ Xxxxxx X. Xxxx
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Title Chairman
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Date October 29, 1997
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SCHEDULE A
FUNDS
1. Gateway Fund
2. Gateway Small Cap Index Fund
3. Cincinnati Fund
SCHEDULE B
* Printing services including printing of envelopes, checks, stationery,
year-end forms, and statements
* Mailing services including postage, shipping, certified mail, overnight
delivery and insurance charges
* Preparation of ad hoc reports
* Proxy tabulation and processing
