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Exhibit (9)(bb)
Form of Agency Agreement between The One Group Services Company
and Various Shareholder Servicing Agents
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AGENCY AGREEMENT
This Agreement is made as of the ________ day of ______________, 199-
between: (1) _________________________ ("Company") and (2) The One Group (the
"Trust"), The One Group Services Company (collectively, "TOGSC").
RECITALS
A. The Trust is (i) an open-end investment company with one or more series or
classes of shares (each such series or class of share a "Fund") TOGSC is either
(ii) and investment adviser to or administrator for the Funds, (iii) the
principal underwriter or distributor for the Funds, or (iv) the transfer agent
for the Funds.
B. The Trust wishes to have Company provide to the Trust or on its behalf
certain administrative services with respect to beneficial owner's of shares
("Shareholder(s)") of such Funds which Company makes available to Shareholders
through securities brokerage accounts carried by Company or correspondents of
Company ("Correspondents").
C. Company agrees to provide such services on the terms and conditions set forth
herein.
AGREEMENT
THEREFORE, in consideration of the mutual promises set forth herein,
the parties agree as follows:
1. Shareholder Services
A. Shareholder Account Set-Up and Maintenance - Company shall maintain and
provide adequate facilities and procedures to: (1) establish and maintain Fund
investments on behalf of Shareholders within a consolidated brokerage account(s)
on the Company transaction processing and recordkeeping system, and (2) access
Shareholders current Fund information including, but not limited to, share
balances, dividend information and transaction history.
B. Shareholder Assistance - Company shall make available to Correspondents any
information maintained by Company as may be necessary for Correspondents to
support and resolve Shareholder servicing inquiries. Company personnel will
assist Correspondents in the investigation of Shareholder inquiries when
necessary. Company will support Shareholder service inquiries from Shareholders
who maintain brokerage accounts with Company. Company shall not make any
statement or representation concerning a Fund that is not contained in the
Trust's registration statement, annual report or proxy statement or any
advertising or promotional material generated by or on behalf of any Fund.
C. Transaction Processing and Settlement - The Company transaction processing
system shall enable Shareholders to purchase, redeem and exchange shares of
Funds available through Company. Company shall facilitate settlement with each
Fund of Shareholder transactions in such Fund insofar as such transactions are
transmitted by Company or Correspondents on behalf of Shareholders.
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The Trust agrees that it shall either: (1) make arrangements for all
transactions processed pursuant to this Agreement to be processed thought the
National Securities Clearing Corporation Fund/SERV system, or (2) obtain proper
authority for Company to transmit to the Fund or its agent daily manual trades
until 5:00 p.m. Eastern Time, or such other times as set forth on Exhibit B,
which trades shall remain eligible for that day's public offering price provided
Company received the order by close of trading that day.
D. Shareholder Account Statement and Distribution - With respect to each
Shareholder holding Fund investments through Company, Company shall deliver or
cause to be delivered to such shareholder monthly statements when there has been
activity in such Shareholder's brokerage account during such month, or quarterly
statements during periods when there has been no monthly account activity.
Statements will include transaction detail for the statement period for each
Fund in which shares were purchased, redeemed or exchanged. and a summary of the
number of Fund shares owned and share value thereof as of the statement date to
the extend such value is provided by the Fund.
E. Confirmation Preparation and Distribution - Company shall generate a written
confirmation for each purchase, redemption and exchange transaction affecting
each Shareholders Fund investments held through Company to the extent such
confirmation is required, and such confirmation shall be distributed to
Shareholders through or on behalf of Company or Correspondents.
F. Payment of Fund Distributions - Company shall distribute to Shareholders all
dividend, capital gain or other payments authorized by the Trust and distributed
and received by Company, and such distributions shall be credited to
Shareholders in accordance with the instructions provided by each Shareholder,
including but not limited to dividend reinvestment into a Fund, or cash payments
of distributions.
G. Prospectus Fulfillment - Company will provide a prospectus to prospective
shareholders or their agent, upon request, provided the Trust or its agent has
provided adequate copies thereof to Company or its designee. Subsequent to any
Shareholder's acquisition of shares of a Fund by purchase or exchange, Company
shall provide to such shareholder a confirming prospectus for such Fund to the
extend such prospectus is required with respect to such acquisition and is
provided by the Trust or its designee. Company shall immediately inform the
Trust or its designee if adequate prospectuses have not been provided.
The Trust acknowledges and agrees that Company is not responsible for
(i) the compliance of any prospectus or supplement thereto, annual report, proxy
statement or item of advertising or marketing material of or relating to any
Fund, which is prepared by the Trust or its agent, with any applicable laws,
rules or regulations, (ii) the registration or qualification of any shares of
any Fund under any federal or applicable state laws or (iii) the compliance by
any Fund or the Trust or any "affiliated person" (as that term is defined in the
rules under the Investment Company Act of 194O, as amended), with any applicable
federal or state law, rule or regulation or the rules and regulations of any
self regulatory organization with jurisdiction over such Fund, the Trust or
affiliated person.
Company will not make any offer of Fund shares (a) in any state or
jurisdiction in which such shares are not qualified for sale or exempt from
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the requirements of the relevant securities laws at any time after it has been
provided with written notice from the Trust that such Fund is not so qualified
or exempt in such state or jurisdiction, (b) in any state or jurisdiction in
which it is not property licensed or authorized to make offers or sales, or (c)
at any time after it has been provided with written notice from the Trust that
such Fund is not then currently offering shares to the public.
H. Account Level Tax Reporting - Company shall provide to Shareholders through
Company or Correspondent such reports and information as may be required by the
then-prevailing laws and regulations under the Internal Revenue Code from
non-retirement accounts and qualified and non-qualified retirement plan
accounts.
II. Representations and Warranties
A. The Trust and TOGSC each represent and warrant that:
(1) it has the requisite authority to enter into this agreement on its
own behalf and, in the case of the Trust, on behalf of the Fund(s), and
(2) the payment to Company of any fees pursuant hereto:
(a) has been duly authorized by the Board of Trustees of the
Trust, or any other persons to the extent such
authorization is required to properly make such payment;
(b) is properly disclosed in the relevant prospectus to the
extent such disclosure may be required, and
(c) is in conformity with all federal, state and industry laws
or regulations to which the Trust or its agents are
subject.
B. Company represents and Warrants that:
(1) it is a corporation duly organized under the state laws of
__________________________ and is duly registered and/or qualified as a
broker/dealer with the SEC, NASD and in every state or territory of the United
States of America (including the District Of Columbia) where such registration
or qualification is required and has the requisite authority to enter into this
Agreement and to carry out the services contemplated herein;
(2) the execution and delivery of this Agreement and the performance of
the services contemplated herein have been duly authorized by all necessary
corporation action in its part, and this Agreement constitutes the valid and
binding obligations of Company; and
(3) it is in material conformity with all federal, state and industry
laws or regulations to which it is subject.
C. Each party hereto represents and warrants that it shall provide to the others
such information or documentation necessary for such party to fulfill its
obligations hereunder, such other information or documentation as any party may
reasonably request and that it shall comply with such operating policies and
procedures as the parties may adopt from time to time.
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D. Each party is responsible for its compliance with all applicable laws, rules
and regulations governing its performance under this Agreement except to the
extent its failure to comply with any law, rule or regulation is caused by
another party's breach of this Agreement.
III. Fees
A. Asset Based Fee
For the services provided by Company hereunder the Trust or TOGSC shall
pay to Company a fee with respect to each Fund, which fee shall be based upon a
percentage per annum of the average daily value of the aggregate number of
shares of the Fund held by Company for the accounts of customers of Company and
Correspondents. Such fee shall be calculated and paid in accordance with Exhibit
A hereto.
IV. Indemnification
The Trust and TOGSC shall indemnify and hold harmless Company and each officer,
employee and agent of Company from and against any and all claims, demands,
actions, losses, damages, liabilities, costs, charges. reasonable counsel fees.
and expenses of any nature ("Losses") arising out of ((i) any inaccuracy or
omission in any prospectus or supplement thereto, registration statement, annual
report or proxy statement of any Fund or the Trust or any advertising or
promotional materials generated by any Fund or the Trust, (ii) any breach by the
Trust or TOGSC of any representation, warranty, covenant, or agreement contained
in this Agreement and (iii) any action taken or omitted to be taken by Company
pursuant to this Agreement, except to the extent such Losses result from
Company's breach of this Agreement, willful misconduct or negligence.
Company shall indemnify, defend and hold the Trust and TOGSC (including their
officers, directors, employees and agents and any person who controls either of
them) free and harmless from and against any and all losses which such persons
may incur under the Securities Act of l933, as amended, or under common law or
otherwise, arising out of or based upon (i) any breach of any representation,
warrant, or covenant made by Company herein, (ii) any failure by Company to
perform its obligations as set forth herein or, (iii) any action taken or
omitted by Company to the extent that any losses associated therewith are a
result of Company's breach of this contract, willful misconduct or negligence.
V. Confidentiality
Each party acknowledges and understands that any and all technical,
trade secret, or business information, including, without limitation, financial
information, business or marketing strategies or plans, product development or
customer information, which is disclosed to the other or is otherwise obtained
by the other, its affiliates, agent or representatives during the term of this
Agreement (the "Proprietary Information") is confidential and proprietary,
constitutes trades secrets of the owner, and is of great value and importance to
the success of the owner's business. Each party agrees to use its best efforts
(the same being not less than that employed to protect his own proprietary
information) to safeguard the Proprietary Information and to prevent the
unauthorized, negligent or inadvertent use or disclosure thereof. Neither party
shall without the prior written approval of any officer of the other, directly
or indirectly,
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disclose the Proprietary Information to any person or business entity except for
a limited number of employees, attorneys, accountants and other advisors of the
other on a need-to-know basis or as may be required by law or regulation. Each
party shall promptly notify the other in writing of any unauthorized, negligent
or inadvertent use or disclosure of Proprietary Information. Each party shall be
liable under this Agreement to the other for any use or disclosure in violation
of this Agreement by its employees, attorneys, accountants or other advisors or
agents. This Section V shall continue in full force and effect notwithstanding
the termination of this Agreement.
VI. Duration and Termination of Agreement
With respect to any Fund, this Agreement shall become effective upon
the date such Fund is identified on Exhibit B, and this Agreement is approved by
the Trust's Board of Trustees if such approval is required, and shall continue
in force for one year, and shall thereafter continue automatically for
successive annual periods unless earlier terminated and subject to any periodic
approval required by the Trust's Board of Trustees. This Agreement is terminable
as to any Fund by any party upon 90 days written notice thereof to the other
parties or upon default hereof provided that such default shall not terminate
this Agreement to the extent that the defaulting party has been notified of such
default by the non-defaulting party and the defaulting party cures such default
within 10 business days of notice of such default.
After the date of termination as to a Fund, no fee will be due with
respect to any shares of such Fund that are first placed or purchased in Company
or Correspondent customer accounts after the date of such termination. However,
notwithstanding any such termination, the Trust and TOGSC Will remain obligated
to pay Company the Asset Based Fee as to each share of such Fund that was
considered in the calculation of such fee as of the date of such termination,
for so long as such share is held in the Company or Correspondent account This
Agreement, or any provision hereof, shall survive termination to the extent
necessary for each party to perform its obligations with respect to shares for
which the Asset Based Fee continues to be due subsequent to such termination.
Notwithstanding anything to the contrary contained in this section VI,
this Agreement will terminate automatically with respect to TOGSC in the event
that TOGSC ceases to serve as principal underwriter or distributor for the Funds
pursuant to a termination of its Distribution Agreement with the Fund, or, with
respect to the Trust in the event that the Fund's plan of distribution, adopted
pursuant to Rule 12b-1 under the 1940 Act, or any other plan for the financing
of shareholder servicing activities (the "Plan") which finances such payment
obligation is terminated for whatever reason by the Trusts Board of Directors.
In that connection, the Trust's and TOGSC's payment obligations with respect to
fees will cease as of the effective date of (i) the termination of TOGSC's
Distribution Agreement with the Fund or (ii) the termination of the plan, as the
case may be. This paragraph does not relieve the Trust or TOGSC of the
obligation for payment of past fees due under this Agreement. In the event such
payment obligation shall cease in accordance with clause (i) above, Company may
seek to receive such payments from any successor distributor that is appointed
by the Funds. In the event such payment obligation shall cease in accordance
with clause (ii) above, the Trust and Company agree to negotiate in good faith
with respect to whether and to what extent the Trust will continue to make such
payments either from
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a related party's resources or in reliance upon financing that is provided by a
successor plan.
VII. Miscellaneous
A. Custody - The Trust acknowledges that Fund shares maintained by Company for
Shareholders hereunder are held in custody for the exclusive benefit of
customers of Company or its Correspondents and shall be held free of any right,
charge, security interest, lien or claim against Company in favor of the Trust
or its agents acting on behalf of the Trust.
B. Transaction Charges - During the term of this Agreement, Company shall not
assess against or collect from its brokerage customers any transaction fee upon
the purchase or redemption of any Fund's shares that are considered in
Calculating the fee due pursuant to Section III hereof.
C. Nonexclusivity - The Trust acknowledges that Company may perform services
similar to those to be provided under this Agreement to other investment
companies, investment company sponsors. or service providers to investment
companies.
D. Force Majeure - No party or its affiliates shall be liable to any other party
for any damage, claim or other loss whatsoever caused by circumstances or events
beyond its reasonable control.
E. Notices - All notices and communications required to permitted by this
Agreement shall be in writing and delivered personally or sent by first class
mail unless otherwise agreed. All such notices and other communications shall be
made:
If to the Trust and TOGSC, to:
The One Group Services Company
Attn: Xxxx X. Xxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
If to Company, to:
------------------------------------
------------------------------------
------------------------------------
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G. This Agreement and any Exhibits hereto may be amended only upon the written
agreement of the parties.
H. This Agreement may not be transferred or assigned by either the Trust, TOGSC
or Company and shall be construed in accordance with the laws of the State of
Ohio.
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I. The names "The One Group" and "Trustees of The One Group refer respectively
to the business trust created and the Trustees, as trustees and not individually
or personally, acting from time to time under a Declaration of Trust amended,
restated and dated as of February 11, 1993 to which reference is hereby made and
copy of which is on file at the office of the Secretary of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of The One Group entered
into in the name of on behalf thereof by any of the Trustees, representatives or
agents are made not individually, but in such capacities, and are not binding
upon any of the Trustees, shareholders or representatives of the Trust
personally, but bind only the assets of the Trust, and all persons dealing with
any Fund must look solely to the assets of the Trust belonging to such Fund for
the enforcement of any Claims against the Trust.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
The One Group
By: _____________________________
Name: ___________________________
Title: __________________________
The One Group Services Company
By: _____________________________
Name: ___________________________
Title: __________________________
_________________________________
Company Name
By: _____________________________
Name: ___________________________
Title: __________________________
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EXHIBIT A
FEE SCHEDULE
1. Asset Based Fee
(a). For the services provided by Company hereunder, the Trust or TOGSC shall
pay to Company a fee with respect to each Fund, calculated daily and paid
monthly in arrears, equal to ___ percent per annum of the daily market value of
the total number of shares of such Fund held in accounts at Company (determined
by multiplying the number of such shares times the publicly-reported net asset
value of each share), excluding the value of (i) shares held in a brokerage
account prior to the effective date of the Agreement as to the Fund issuing such
shares ("Pre-Participating Assets"), and (ii)shares first placed or purchased in
a brokerage account after the termination of the Agreement as to the trust
issuing such shares. The total number of shares of all Funds with respect to
which a fee will be due to Fidelity hereunder shall be referred to in this
Exhibit A as "Participating Assets."
(b). Subsequent to each month-end, Company shall send to TOGSC a statement of
the market value of shares of the Fund for which the fee is calculated for the
preceding month, together with a statement of the amount of such fee.
(c) The Trust or TOGSC shall pay to Company such fee within 30 days after their
receipt of such statement. Such payment shall be by wire transfer or other form
acceptable to Company and shall be separate from payments related to redemption
proceeds and distributions.
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