SERVICES AGREEMENT
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THIS AGREEMENT made effective the 8th day of June, 2000 by and among
NATIONAL CITY CORPORATION ("National City"), member of the National Banking
Association, OAK ASSOCIATES FUNDS (each a "Fund" and collectively the "Funds"),
a Massachusetts business trust, and OAK ASSOCIATES LTD. (the "Adviser") a
limited liability company.
WITNESSETH
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WHEREAS, National City has agreed to provide participant accounting,
recordkeeping and administrative services for certain employee benefit plans,
charitable trusts and foundations (collectively the "Plans," or individually,
the "Plan"), which Plans desire to invest in the Funds;
WHEREAS, the Fund is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), and each separate series of the Fund (each a "Portfolio") set forth in
EXHIBIT A, authorizes investment by the Plans and hereby instructs the Adviser
of the Fund and agrees to instruct DST SYSTEMS, INC. (the "Transfer Agent") to
execute and implement this Agreement;
WHEREAS, the Adviser, an investment adviser registered under the
Investment Advisers Act of 1940, as amended, provides investment advice to the
Fund;
WHEREAS, the Transfer Agent provides services as transfer agent,
dividend disbursement agent, and shareholder servicing agent to the Fund;
WHEREAS, SEI Investment Mutual Funds Services (the "Administrator")
provides administrative and accounting services to the Fund;
WHEREAS, it is intended that the Fund will cause the Transfer Agent to
establish a master account on its mutual fund shareholder accounting system (the
"System") reflecting the aggregate ownership by each Plan of shares of each
Portfolio and all shareholder transactions by each such Plan involving such
shares (collectively, the "Accounts" or individually, the "Account");
WHEREAS, National City is registered as a transfer agent under Section
17A(c)(2) of the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), and is qualified to serve as the sub-transfer agent for the Fund for the
purposes set forth herein;
WHEREAS, it is intended that National City will establish individual
accounts on its recordkeeping system reflecting all transactions by or on behalf
of Plan Participants and beneficiaries which result in purchases or redemptions
by the Plan of shares of each Portfolio.
WHEREAS, it is intended that National City will act as sub-transfer
agent of the Fund, and National City desires to accept such appointment, solely
for the limited purposes of receiving orders by the Plan for purchases and
redemptions of shares of the Fund resulting from transactions by or on behalf of
Plan Participants and beneficiaries, recording such purchases and redemptions,
and making and maintaining the Fund's shareholder records concerning the Plan
Participants which are recorded on National City's recordkeeping system
("National City's System");
WHEREAS, it is intended that the Fund will, or will cause the
Administrator to, provide to National City those prospectuses, shareholder
reports and other information with respect to the Fund as the Fund is required
under the federal securities laws to provide to Plan Participants which National
City will furnish to fiduciaries, Plan Participants and beneficiaries; and
WHEREAS, on the terms and conditions hereinafter set forth, the parties
have agreed to make shares of the Fund available as investment options under the
Plan and to retain National City to perform certain sub-transfer agency and
administrative services on behalf of the Fund, and National City is willing and
able to furnish such Plan services;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto, intending to be legally bound, hereby agree and
declare as follows:
Section 1. APPOINTMENT AS AGENT. National City is hereby appointed as
sub-transfer agent of the Fund solely for the limited purpose of receiving
instructions, in accordance with the Procedures (as defined in Section 2 hereof
and set forth in EXHIBIT C), for the purchase and redemption by the Plans of
shares of the Fund ("Instructions") and making and maintaining the records of
the Fund relating to such purchases and redemptions of the Plan Participants.
Such purchases and redemptions shall be based on participant-level transactions
made by or on behalf of Plan Participants and beneficiaries, which transactions
shall be recorded on National City's System. Such records will be deemed to be
and are part of the Fund's master securityholder files, as defined in Rule
17Ad-9(b) under the Exchange Act. For purposes of this Agreement,
"participant-level transactions" shall include:
(a) any authorized direction to invest contributions by or on
behalf of any participant to the Plan in the Fund in accordance with
the terms and conditions of the Plan and the Fund's Prospectus;
(b) any authorized direction to transfer or exchange existing
amounts held on behalf of any participant or beneficiary by the Plan to
the Fund in accordance with the terms and conditions of the Plan and
the Fund's Prospectus;
(c) any authorized direction to transfer or exchange existing
amounts invested in the Fund on behalf of any participant or
beneficiary by the Plan to any other investment option offered under
the Plan in accordance with the terms and conditions of the Plan and
the Fund's Prospectus; and
(d) any authorized direction to pay, loan, withdraw or
distribute proceeds to a participant or beneficiary by the Plan from
the Fund in accordance with the terms and conditions of the Plan and
the Fund's Prospectus.
National City shall maintain records on behalf of the Fund for the Plan and for
the Plan Participants and beneficiaries thereof reflecting all shares of the
Fund purchased and redeemed by the Plan based on participant-level transactions
(including the date and price for all transactions and share balances) and all
re-investment by the Plan of dividends and capital gains distributions paid by
the Fund. National City shall reconcile on each day on which the New York Stock
Exchange is open for trading (each, a "Business Day"), (i) all transactions by
the Plan involving shares of the Fund (including purchases, redemptions and
re-investments of dividends and capital gains distributions) reflected on the
Transfer Agent's recordkeeping system with the corresponding participant-level
transactions on National City's System; and (ii) the aggregate position of all
Plan Participants and beneficiaries on National City's System with the balance
in the Account on the Transfer Agent's recordkeeping system for that Business
Day. In accordance with paragraph (e) of EXHIBIT C, National City shall promptly
advise the Transfer Agent of any discrepancies between National City's records
and the Transfer Agent's records. Notwithstanding National City's appointment
hereunder as the agent of the Fund to receive orders for the purchases and
redemptions by the Plan of shares of the Fund and to net payment for purchases
and redemption of shares, and, thereafter to transmit such orders to the Fund's
Transfer Agent, National City shall have no authority under this Agreement or
otherwise to act as agent for the Transfer Agent or as sub-transfer agent for
the Fund in respect to or in connection with the distribution of shares of the
Fund.
Section 2. PROCEDURES. The operating procedures governing the parties'
responsibilities under this Agreement with respect to (i) instructions for the
purchase and redemption of shares of the Fund and (ii) net asset value per share
("NAV") communication are set forth in EXHIBIT C (the "Procedures"), which is
attached hereto and is specifically made a part of this Agreement. (All terms
defined herein or in EXHIBIT C shall have the same meaning when used herein or
in EXHIBIT C.) In all material respects, the Procedures shall be consistent with
the terms of the Fund's Prospectus and Statement of Additional Information
("SAI"), with the requirements of the 1940 Act and the Exchange Act, and with
any other applicable federal or state laws and regulations.
Section 3. REPRESENTATIONS AND WARRANTIES.
(a) NATIONAL CITY REPRESENTS AND WARRANTS THAT:
(i) it has full power and authority to enter into and
perform this Agreement and, when executed and
delivered, this Agreement shall constitute a valid,
legal and binding obligation of National City,
enforceable in accordance with its terms;
(ii) it is registered and in good standing as a
transfer agent pursuant to Section 17A(c)(2) of the
Exchange Act;
(iii) it is duly qualified and duly authorized by
each Plan to act on behalf of the Plan as
contemplated by this Agreement;
(iv) the arrangements provided for in this Agreement
will be disclosed to the Plan through National City's
representatives;
(v) it shall promptly notify the Fund in the event
that National City, for any reason, reasonably
believes it will be unable to perform any of its
obligations under this Agreement;
(vi) it is the sole and exclusive entity authorized
to give instructions to the Fund and the Transfer
Agent on behalf of the Plan, Plan Participants and
the Accounts.
(b) THE FUND REPRESENTS AND WARRANTS THAT:
(i) it has full power and authority to enter into
this Agreement and, when executed and delivered, this
Agreement shall constitute a valid, legal and binding
obligation of the Fund, enforceable in accordance
with its terms;
(ii) it only conducts business on days on which the
Portfolios are open for trading (as specified in each
Fund's then current prospectus).
(iii) its shares are registered or otherwise
authorized for issuance and sale in the jurisdictions
set forth in EXHIBIT E hereto;
(iv) National City, on behalf of the Plan, may place
instructions with the Transfer Agent on each and
every Business Day without regard to the number or
market value of transactions executed in any prior
time periods;
(v) the Registration Statement, Prospectus and SAI of
the Fund comply, in all material respects, with all
applicable federal and state securities laws;
(vi) each Portfolio is a series of an investment
company registered under the 1940 Act;
(vii) if selected by any Plan as an investment option
for the Plan's assets, the Fund shall cooperate with
the Plan and with National City to establish in a
timely and orderly manner necessary relationships;
(viii) it shall promptly notify National City and the
other parties hereto in the event that the Fund is,
for any reason, unable to perform any of its
obligations under this Agreement.
(c) THE ADVISER REPRESENTS AND WARRANTS THAT:
(i) it has full power and authority to enter into
this Agreement and, when executed and delivered, this
Agreement shall constitute a valid, legal and binding
obligation of the Adviser, enforceable in accordance
with its terms;
(ii) it is duly qualified and duly authorized to act
on behalf of the Fund as contemplated by this
Agreement; and
(iii) it shall promptly notify National City and the
Fund in the event that it is, for any reason, unable
to perform any of its obligations under this
Agreement.
Section 4. INSTRUCTIONS.
(a) All Instructions received from the Plan's Participants and
transmitted by National City to the Transfer Agent on any Business Day
will be based only upon Instructions that National City has received
from an authorized person under the Plan no later than the time when
the NAV ("Share Price") is determined for the Fund ("Close of
Trading"). Such receipt of Instructions by National City shall be
deemed received by the Transfer Agent and the Fund for Share Price
purposes only.
(b) The Transfer Agent and the Fund are obligated hereunder to
accept Instructions ONLY from National City with respect to the Plan
and the Accounts. Each may refuse to comply with Instructions,
directions or communications from anyone else concerning the Plan and
the Accounts, except as otherwise expressly provided for in Section 7
of this Agreement.
Section 5. ADDITIONAL COVENANTS.
(a) NATIONAL CITY COVENANTS THAT:
(i) it shall comply with all applicable federal and
state securities, insurance, Employee Retirement
Income Securities Act of 1974, as amended ("ERISA"),
and tax laws, rules and regulations applicable to its
activities contemplated by this Agreement;
(ii) it shall not, without the written consent of the
Fund, make representations concerning the shares of
the Portfolios, except those contained in the then
current Prospectus or SAI and in the then current
printed sales literature approved by the Fund or its
representative;
(iii) the participant-level securityholder records to
be made and maintained by National City will be made,
maintained and made available in accordance with the
requirements applicable to transfer agents under
Section 17A and Rule 17Ad-7(g) under the Exchange Act
and to registered investment companies under Section
31 of the 1940 Act;
(iv) each participant-level transaction that
contributes to, is a part of, or is included in an
Instruction communicated by National City to the
Transfer Agent will have been received by National
City BEFORE the Close of Trading on the Business Day
immediately preceding the Business Day on which such
Instruction is communicated and National City will
maintain records evidencing time of receipt;
(v) it shall immediately verify all daily and monthly
Account statements provided or made available to it
by the Transfer Agent, and trade information made
available by the Transfer Agent, via hard-copy or a
terminal at National City's site that can access the
Transfer Agent's recordkeeping system ("Terminal")
and shall, in accordance with Paragraph (e) of
EXHIBIT C hereof, notify the Transfer Agent and the
Adviser of any discrepancies between the records
maintained by National City and the daily and monthly
Account statements and trade information provided or
made available to National City pertaining to the
Plan and the Accounts;
(vi) with respect to the other parties to this
Agreement, National City is and shall be solely
responsible for: (A) all reporting - whether daily,
periodic, year-end, annual or special - to the Plan,
participants in the Plan, the federal and state
taxation authorities and the U.S. Department of Labor
and the U.S. Treasury Department; (B) the actual
delivery of all redemption proceeds to Plan
Participants and beneficiaries; (C) the collection of
all required withholding of taxes from all
redemptions and distributions; (D) the payment of all
sums withheld from such redemptions and distributions
to the applicable taxation authority; and (E) the
giving of instructions to the Fund and the Fund's
Transfer Agent with respect to the Plan, Plan
Participants and Accounts; and
(vii) National City is not providing broker-dealer or
investment advisory services under this Agreement.
(b) THE FUND COVENANTS THAT:
(i) any Portfolio selected by the Plan whose shares
are not authorized for issuance and sale in the
required jurisdiction(s) shall immediately take the
necessary and appropriate steps to make such shares
eligible for issuance and sale in such
jurisdiction(s), except where registration or other
necessary actions in such jurisdiction(s) would
require an amendment to, or change in, a Portfolio's
material investment policies or techniques or
fundamental investment limitations;
(ii) it shall comply with all federal and state
securities, insurance, ERISA and tax laws, rules and
regulations applicable to it as a result of the
transactions contemplated by this Agreement;
(iii) the Fund or its representative shall establish
the Account(s) on its or its representative's mutual
fund shareholder accounting system, as contemplated
by this Agreement, and maintain the Accounts in
accordance with all applicable federal and state
securities laws, and such Accounts shall be in the
name of National City (or its nominee) or the trustee
or other designee of the Plan (or its nominee) as the
sole shareholder of record of shares of the Fund
owned by the Plans ("Record Owner").
(c) ADVISER COVENANTS THAT:
(i) it shall comply with all federal and state
securities, insurance, ERISA, and tax laws, rules and
regulations applicable to it as a result of
transactions contemplated by this Agreement; and
(ii) it shall use its reasonable best efforts to
promptly verify all information provided to it by
National City and it shall promptly notify all
necessary parties of any discrepancies between the
information in its records and the Instructions
provided by National City on behalf of the Plan and
its Plan Participants.
Section 6. PAYMENT FOR INSTRUCTIONS.
(a) PAYMENT FOR NET PURCHASES. Payment for net purchases of
shares in the Fund will be wired by the custodian or trustee
for the Plan to a Custodial account designated by the Fund, in
accordance with the Procedures described in EXHIBIT C.
(b) PAYMENT FOR NET REDEMPTIONS. Payment for net redemptions
of shares in the Fund will be wired from the Fund's custodial
account to the custodian or trustee for the Plan, in
accordance with the Procedures described in EXHIBIT C.
Section 7. FUND COMMUNICATIONS. The Fund or its Administrator shall
supply National City with the following materials and information with respect
to the Fund, which National City shall furnish or make available, where
appropriate and as required by applicable law, to fiduciaries, Plan Participants
and beneficiaries:
(a) FUND PROSPECTUSES, ANNUAL REPORTS AND PROXY MATERIALS. The
Fund or its agent shall supply National City, upon request,
with a reasonably sufficient quantity of current Prospectuses,
and/or profile or summary prospectuses (as permitted by
interpretations or no-action letters issued by the SEC staff),
SAIs, shareholder reports, and proxy statements and related
materials for the Fund. National City shall be responsible for
the timely delivery of all Prospectuses, and/or profile or
summary prospectuses, shareholder reports, and proxy
statements and related materials to Plan Participants and
beneficiaries to the extent necessary to satisfy the U.S.
Department of Labor's final regulation under Section 404(c) of
ERISA (29 CFR ss.2550.404c-1), Section 30 of the 1940 Act,
Section 14 of the Exchange Act, or other applicable law, or as
specifically required under the Plan or reasonably requested
by named fiduciaries of the Plan.
The cost of preparing, printing and shipping to
National City Prospectuses, and/or profile summary
prospectuses, SAIs, proxy materials, shareholder reports and
other materials of the Fund to National City shall be paid by
the Fund or its agent; PROVIDED, HOWEVER, that if at any time
the Fund or its agent reasonably deems the usage by National
City or the Plan of such items to be excessive, it may, prior
to the delivery of any quantity of materials in excess of what
is deemed reasonable, request that National City or the Plan,
as the case may be, satisfactorily demonstrate the
reasonableness of such usage. If the Fund believes the
reasonableness of such usage has not been adequately
demonstrated, the Fund may request that the party responsible
for such excess usage pay the cost of printing (including
press time) and delivery of any excess copies of such
materials. Unless National City or the Plan, as the case may
be, agree to make such payments, the Fund may refuse to supply
additional materials and this section shall not be interpreted
as requiring delivery by the Fund of any copies in excess of
the number of copies required by law.
The cost of any distribution to the Plan or its Plan
Participants of Prospectuses, and/or profile or summary
prospectuses, SAIs, proxy materials, shareholder reports and
other materials of the Fund shall be paid by either National
City, the Plan, or the Plan sponsor, as determined by National
City's agreement with the Plan, and shall not be the
responsibility of the Fund, its agent or the Adviser.
In addition, the cost of preparing and distributing
confirmations, account statements or other materials that may
be prepared by National City as part of the Plan Services to
the Plan Participants shall be borne by National City.
(b) NOTICE OF DIVIDENDS AND OTHER DISTRIBUTIONS; REPORTS. The
Fund or the Administrator shall furnish National City, or its
designee, notice of any dividends or other distributions
payable with respect to a Portfolio. Dividends and
distributions with respect to a Portfolio shall be
automatically reinvested in the Accounts in additional shares
of that Portfolio held by the custodian or trustee for each
Plan, and the Fund shall notify National City or its designee
as to the number of additional shares so issued.
(c) FUND PERFORMANCE INFORMATION. By the fifth (5th) Business
Day of each calendar month, the Fund shall provide to National
City performance information for the Portfolios as of the end
of the preceding calendar month, including each Portfolio's
total return for the preceding calendar month and calendar
quarter, the calendar year-to-date, and the prior one-year,
three-year, five-year, and ten-year periods, if applicable.
(d) MONTHLY STATEMENTS BY THE TRANSFER AGENT. By no later than
the fifth (5th) Business Day of each calendar month, the
Transfer Agent shall mail to National City a statement for the
preceding calendar month reflecting the shares of the
Portfolios held by the Plans as of the end of such preceding
month and all shareholder-related activities by the Plans in
the Portfolios during such preceding month.
(e) FUND TOLL-FREE NUMBER. It is understood by the parties
that National City licensed representatives will discuss with
Plan Participants and beneficiaries the investment objectives
and policies of the Portfolios, solely as set forth in the
Fund's current Prospectus, and the recent investment
performance of the Portfolios based solely on the information
supplied by the Fund under Section 7(c) above. To the extent
that the Plan Participants and beneficiaries request
additional information with respect to the Portfolios, the
Fund shall supply a toll-free telephone number which the Plan
Participants and beneficiaries may use to request such
additional information from an appropriate representative of
the Fund.
(d) FUND REVIEW OF PARTICIPANT COMMUNICATIONS MATERIALS. It is
understood by the parties that, based on the Fund's current
Prospectus and the information supplied by the Fund under
Section 7(c) above, National City may prepare communications
or disclosure materials for Plan Participants and
beneficiaries which describe the Fund or Portfolios in the
same format as that used for the other investment options
offered under the Plans. National City shall supply the Fund,
or its designated representative, with copies of such
materials concerning the Fund or Portfolios within a
reasonable time period in advance of their intended
distribution to the Plan Participants. The National City and
the Fund shall establish a mutually agreeable time frame in
which such materials shall be reviewed and approved for use by
the Fund, or its designated representative. National City
agrees not to use any such materials without the prior written
approval of the Fund or its designated representative.
Moreover, National City agrees not to use such materials until
such materials have been submitted to the National Association
of Securities Dealers, Inc.
(g) OTHER FUND INFORMATION. The Fund agrees to supply National
City with any material information which it may have that
could have a materially adverse impact on the performance of
the Portfolios in the same manner and time frame in which such
information is made available to the Fund's shareholders.
Section 8. NATIONAL CITY'S SERVICES. National City agrees to provide
all Plan Services, including but not limited to, those specified below. Neither
the Fund, the Adviser nor the Transfer Agent shall be required to provide Plan
Services for the benefit of the Plans or their Plan Participants, nor shall they
be required to maintain separate accounts or records for Plan Participants.
Neither National City nor its agents or representatives shall make any
statements that indicate otherwise to any Plan Representatives or Plan
Participants. National City shall maintain and preserve all records as required
by applicable federal and state law as well as all records required by its
agreements with the Plan Representatives to be maintained and preserved in
connection with providing the Plan Services, and shall otherwise comply with all
applicable laws, rules and regulations applicable to National City's (i)
provision of the Plan Services and (ii) acting as sub-transfer agent of the
Fund. National City shall:
(a) maintain separate records for each Plan Participant under
the Plans, which records shall reflect the shares purchased
and redeemed (including the date and Share Price for all
transactions), share balances of such Plan Participants, the
name and address of each Plan Participant (including zip codes
and tax identification numbers);
(b) disburse or credit to the Accounts, and maintain records
of, all proceeds of redemptions of shares of the Portfolios
and all dividends and other distributions not reinvested in
shares of the Portfolios;
(c) as required by law, this Agreement or any Plan, prepare
and transmit to the Plan Representatives periodic statements
showing, among other things, the total number of shares owned
by the Accounts as of the statement closing date, purchases,
holdings and redemptions of shares by the Plan Representatives
and/or Plan Participants during the period covered by the
statement, the Share Price of the Portfolios as of the
statement date, the dividends and other distributions paid to
the Plan during the statement period (whether paid in cash or
reinvested in shares), and such other information as may be
required, from time to time, by the Plans and/or Plan
Representatives;
(d) transmit net purchase and redemption Instructions on
behalf of the Plan Representatives and/or Plan Participants to
the Fund's Transfer Agent, in accordance with the Procedures
described in this Agreement and EXHIBIT C;
(e) distribute to each Plan and/or the Plan Participants, as
appropriate, copies of the Fund's Prospectus, SAI, proxy
materials, shareholder fund reports and other materials that
the Fund is required by law or otherwise to provide to its
current or prospective shareholders;
(f) maintain and preserve all records as required by law to be
maintained and preserved in connection with providing the Plan
Services or acting as the Fund's sub-transfer agent;
(g) prepare, transmit, and file federal and state reports and
returns and withhold and deposit sums withheld as required
under applicable law, as agreed upon between National City and
the Plan Representatives or as required under this Agreement,
with respect to the Plan and each Account maintained on behalf
of each Plan;
(h) respond to inquiries of Plan Participants regarding, among
other things, NAV's, account balances, dividend options,
dividend amounts, and dividend payment dates; and
(i) maintain all Account balance information for each Plan.
Section 9. COMPENSATION. The Adviser shall pay to the Sub-Transfer
Agent, as compensation for the Plan Services to be provided by the Sub-Transfer
Agent under this Agreement, a fee at an annual rate set forth in EXHIBIT B of
this Agreement, which will be a percentage of the average daily net asset value
of the Shares beneficially owned by Customers with whom Sub-Transfer Agent has a
service relationship. The Sub-Transfer Agent shall notify the Adviser in writing
of the amount due and payable hereunder, and shall provide such documentation
supporting its calculation as may be reasonably requested by the Funds. Unless
the Adviser objects in writing, each Adviser shall pay such fee to the
Sub-Transfer Agent within thirty (30) days after receiving notice from the
Sub-Transfer Agent of the amount due and payable. Upon providing reasonable
advance notice to the Sub-Transfer Agent, the Adviser or their duly authorized
agents or representatives may review the Sub-Transfer Agent's books and records
during normal business hours for the purpose of verifying the accuracy of the
amounts billed by the Sub-Transfer Agent or the fees paid or payable by the
Adviser under this Agreement.
Section 10. CROSS-INDEMNIFICATION OF PARTIES.
(a) The Transfer Agent, the Fund and the Adviser shall not be
held responsible and National City shall indemnify and hold
the Transfer Agent, the Fund and the Adviser and their
respective officers, directors, employees, agents, and person,
if any, who controls them within the meaning of the 1940 Act
and the Securities Act of 1933, as amended, harmless from and
against any and all reasonable losses, damages (excluding
consequential, punitive or other indirect damages), costs,
charges, counsel fees, payments, expenses, and liability
arising out of or attributable to: (i) National City's lack of
good faith, negligence, reckless disregard or willful
misconduct in carrying out its duties and responsibilities
under this Agreement; (ii) any breach by National City of any
material provision of this Agreement; or (iii) any material
breach by National City of any representation, warranty, or
covenant made in this Agreement.
(b) Neither National City nor its affiliates shall be held
responsible and the Fund and the Adviser, shall severally
indemnify and hold National City and its affiliates and their
officers, directors, employees, and agents harmless from and
against any and all reasonable losses, damages (excluding
consequential, punitive and other indirect damages), costs,
charges, counsel fees, payments, expenses, and liability
arising out of or attributable to: (i) its lack of good faith,
negligence, reckless disregard or willful misconduct in
carrying out its respective duties and responsibilities under
this Agreement; (ii) its breach of any material provision of
this Agreement; or (iii) its material breach of any
representation, warranty, or covenant made in this Agreement.
It is understood by the parties that the obligations of the
Fund and the Adviser under this Section arise only with
respect to each such party's own acts or failure to act and
not with respect to an act or failure to act of any other
party.
(c) In providing Plan Services pursuant to this Agreement,
each party shall comply with federal and state securities laws
and regulations applicable to it and each party hereto shall
fully indemnify the other for any claims or liabilities
suffered by such other party, or its respective officers,
directors, employees or agents (including reasonable legal
fees and other out-of-pocket costs of defending against any
such claim or liability or reasonable costs incurred in
enforcing this right of indemnification), arising from
non-compliance by such party with any such laws or
regulations.
(d) Notwithstanding anything herein to the contrary, to the
extent that a party hereto shall cause its obligations
hereunder to be fulfilled by an agent or designee, such party
shall be fully responsible for the performance by such agent
or designee of such party's obligations as if such party had
performed them itself.
(e) In providing the indemnifications set forth herein, each
party agrees to maintain such insurance coverage as shall be
reasonably necessary under the circumstances.
Section 11. FORCE MAJEURE. In the event any party is unable to perform
its obligations or duties under the terms of this Agreement because of acts of
God, strikes, riots, acts of war, equipment failures, or power or other utility
failures or damage or other cause reasonably beyond its control, such party
shall not be liable for any and all losses, damages, costs, charges, counsel
fees, payments, expenses or liability to any other party (whether or not a party
to this Agreement) resulting from such failure to perform its obligations or
duties under this Agreement or otherwise from such causes. This provision shall
in no way excuse any party from any liability that results from that party's
failure to have in place appropriate and reasonable disaster recovery plans
designed to enable that party to perform its obligations and duties under this
Agreement.
Section 12. CONFIDENTIALITY. Subject to the Fund's ownership of certain
records as set forth in Section 1 of this Agreement, all information, books,
records, and data supplied by one party to another party in connection with the
negotiation or carrying out of this Agreement are and shall remain the property
of the party supplying such information, books, records, or data and shall be
kept confidential by the other party except as may be required by law or this
Agreement and except as the other party also received such information, books,
records, or data from some other source not a party to this Agreement.
Section 13. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of New York without reference to choice
of law principles.
Section 14. NOTICES. Every Notice required by this Agreement shall be
deemed given when sent in accordance with the Procedures or, as to any matter
not addressed by the Procedures, a Notice shall be deemed given if sent the next
Business Day by a nationally recognized overnight carrier service that provides
evidence of receipt or if sent the same Business Day by 3:00 p.m. (receiving
party's time) by personal delivery or facsimile transmission, in each case to
such person and to such facsimile number (if applicable) as shall be designated
from time to time by each party pursuant to a written notice. The names and
addresses of the persons to whom notices should be sent are set forth in EXHIBIT
F.
Section 15. ASSIGNMENT. No party shall assign any of its rights, powers
or duties under this Agreement without the other parties' prior written consent.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
Section 16. AMENDMENT OR TERMINATION OF AGREEMENT. The parties to this
Agreement may agree in writing to amend this Agreement at any time in whole or
in part. This Agreement shall terminate at the option of any party upon thirty-
(30) day's advance written notice to the other parties. This Agreement shall
also terminate upon written notice to the other parties that one or more of the
parties to this Agreement is in material breach of this Agreement, unless the
party or parties in material breach of this Agreement cures such breach to the
reasonable satisfaction of the party or parties alleging the breach within
thirty (30) days after written notice.
In addition, any party may terminate this Agreement upon written notice
to the other parties of: (i) the effective date of the termination of National
City as a service provider to the Plans; (ii) the discontinuance of the Fund as
an investment option offered under the Plans; (iii) the termination of the
Transfer Agent as service providers to the Fund; (iv) the lapse or cessation of
the full force and effect of the authorizations, licenses, qualifications or
registrations required to be maintained by any of the parties to this Agreement
in connection with the performance of their respective duties hereunder; (v) any
action to be taken or service to be provided hereunder that becomes unlawful due
to changes in the laws or for other reasons; and (vi) a good faith determination
by the Fund or the Adviser that shares of any of the Portfolios are not being
offered in conformity with the terms of this Agreement, such Portfolio's then
current Prospectus or SAI or applicable law.
Termination of this Agreement shall not affect the obligations of the
parties to make payments in accordance with the Procedures specified in EXHIBIT
C or to provide compensation under Section 6 for any Instruction received by the
Transfer Agent prior to such termination and shall not affect the Fund's
obligation to maintain the Accounts in the name of the Plans or any successor
trustee or recordkeeper for such Plans. Upon termination of this Agreement for
any reason, purchases of shares of the Portfolios pursuant to this Agreement
shall no longer be permitted through National City.
Section 17. USE OF NAMES. Except as otherwise expressly provided for in
this Agreement, neither the Fund nor the Adviser shall use (and the Fund
agrees it shall cause the Transfer Agent not to use) any trademark, trade name,
service xxxx or logo of National City, or any variation of any such trademark,
trade name, service xxxx or logo, without National City's prior written consent,
which consent may not be unreasonably withheld. Except as otherwise expressly
provided for in this Agreement, National City shall not use any trademark, trade
name, service xxxx or logo of the Transfer Agent, the Fund or the Adviser, or
any variation of any such trademarks, trade names, service marks, or logos,
without the prior written consent of the Fund or the Adviser, as appropriate,
which consent may not be unreasonably withheld.
Section 18. NON-EXCLUSIVITY. Each of the parties acknowledges and
agrees that this Agreement and the arrangement described herein are intended to
be non-exclusive and that each of the parties is free to enter into similar
agreements and arrangements with other entities.
Section 19. RECORDS. The parties hereto agree to make and to maintain
all records required of such party under this Agreement or applicable law and to
cooperate in good faith in providing records to one another pursuant to this
Agreement.
(a) Upon the request of the other parties to this Agreement,
National City shall provide copies of all the historical
records relating to transactions between the Fund and the
Plans, written communications regarding the Fund to or from
the Plans and other materials, in each case (i) as are
maintained by National City in the ordinary course of its
business, and (ii) as may reasonably be requested to enable
the other parties to this Agreement, or their representatives,
including without limitation its auditors or legal counsel, to
(1) monitor and review the Plan Services, (2) comply with any
request of a governmental body or self-regulatory organization
or the Plans, (3) verify compliance by National City with the
terms of this Agreement, (4) make required regulatory reports,
(5) perform general customer supervision, or (6) as required
by Section 17Ad(7)(g) of the Exchange Act. National City
agrees that it will permit other parties to this Agreement or
such representatives of them to have reasonable access to its
personnel and records in order to facilitate the monitoring of
the quality of the Plan Services.
(b) Upon the request of National City, the Fund and the
Adviser shall, and the Fund shall cause the Transfer Agent to,
provide copies of all the historical records relating to
transactions between the Fund and the Accounts, written
communications regarding the Fund to or from the Accounts and
other materials, in each case (i) as are maintained by such
party in the ordinary course of their business, and (ii) as
may reasonably be requested to enable National City or its
representatives, including without limitation its auditors or
legal counsel, to (1) comply with any request of a
governmental body or self-regulatory organization of the
Plans, (2) verify compliance by the other parties to this
Agreement with the terms of this Agreement, (3) make required
regulatory reports, or (4) perform general customer
supervision.
Section 20. RELATIONSHIP OF PARTIES: NO JOINT VENTURE, ETC. Except for
the limited purposes provided in Sections 3 and 8, it is understood and agreed
that all Plan Services performed hereunder by National City shall be as an
independent contractor and not as an employee or agent of the other parties to
this Agreement, and none of the parties shall hold itself out as an agent of any
other party with the authority to bind such party. Neither the execution nor
performance of this Agreement shall be deemed to create a partnership or joint
venture by and among any of the parties hereto nor give any rights to or create
any contractual obligations to any non-parties to this Agreement, including any
Plans, Plan Representatives and/or Plan Participants.
Section 21. OPERATIONS OF FUNDS. In no way shall the provisions of this
Agreement limit the authority of the Fund or Adviser from taking such action as
either may deem appropriate or advisable in connection with all matters relating
to the operation of the Fund and the sale of shares of the Portfolios. In no way
shall the provisions of this Agreement limit the authority of National City to
take such action as it may deem appropriate or advisable in connection with all
matters relating to the provision of Plan Services or the shares of mutual funds
other than the Portfolios offered to the Plans.
Section 22. TRUSTEE LIABILITY. A copy of the Fund's Declaration of
Trust is on file with the Secretary of State of the Commonwealth of
Massachusetts and notice is hereby given that this instrument is executed on
behalf of the Trustees of the Company as trustees and not individually, and that
all obligations of this instrument are not binding upon any of the trustees,
officers or shareholders of any of the Funds, or the Fund individually, but
binding only upon the assets and the property of the Funds, or the Company.
Section 23. SURVIVAL. The provisions of Section 8(g), Section 10,
Section 12, Section 13, and Section 16 of this Agreement shall survive
termination of this Agreement.
Section 24. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be an original and all of which together
shall be deemed one and the same document.
Section 25. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
Section 26. ENTIRE AGREEMENT. This Agreement, including any Exhibits
hereto, constitutes the entire agreement by and among National City, the Oak
Associates Funds and Oak Associates, ltd. with respect to the matters dealt with
herein, and supersedes all previous agreements, written or oral with respect to
such matters.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by there duly authorized officers as of the day and
year first above written.
Attest: NATIONAL CITY ADVISERS, INC.
/S/ XXXXXXX X. XXXXXX
---------------------
By: Xxxxxxx X. Xxxxxx
Title Senior Vice President
Attest: OAK ASSOCIATES FUNDS
/S/ XXXXXXX XXXX /S/ XXXXXXX XXXXX
---------------- -----------------
By: Xxxxxxx Xxxxx
Title: President
Attest: OAK ASSOCIATES, LTD.
/S/ XXXXXX XXXXX By: /s/ Xxxxx Xxxxxxxxxxx
---------------- Title: President
EXHIBIT A
PORTFOLIOS
----------
NAME OF PORTFOLIO CUSIP
----------------- -----
White Oak Growth Stock Fund 671081 10 7
Pin Oak Aggressive Stock Fund 671081 20 6
Red Oak Technology Select Fund 671081 30 5
EXHIBIT B
---------
Pursuant to Section 9 of the Agreement, Sub-Transfer Agent shall be entitled to
compensation for services provided to Customers who purchase Shares equal to the
percentage set forth below of the average daily net asset value of Shares of the
Portfolio(s) held by Customers for which Sub-Transfer Agent provides services
pursuant to this Agreement. This fee shall be calculated daily and paid monthly.
PORTFOLIO(S) PERCENTAGE
----------- ----------
White Oak Growth Stock Fund 0.25%
Pin Oak Aggressive Stock Fund 0.25%
Red Oak Technology Select Fund 0.25%
EXHIBIT C
---------
PROCEDURES
----------
(a) On each day the New York Stock Exchange (the "Exchange") is open
for business (each a "Business Day"), National City may receive Instructions
from the Plan and/or Plan Representatives for each Plan for the purchase or
redemption of shares of the Portfolios based solely upon each Plan's receipt of
Instructions from Plan, Plan Representatives and/or Plan Participants prior to
the Close of Trading on that Business Day. Instructions in good order received
by National City prior to 4:00 p.m. Eastern time ("ET") on any given Business
Day, or earlier if the Exchange closes earlier than 4:00 p.m. ET on any given
Business Day, (the "Trade Date") and transmitted to the Fund's Transfer Agent by
no later than 7:00 a.m. ET on the Business Day following the Trade Date ("Trade
Date plus One" or "TD+1"), will be executed at the NAV ("Share Price") of each
applicable Portfolio, determined as of the Close of Trading on the prior
Business Day ("Effective Trade Date").
(b) By no later than 7:00 p.m. ET on each Business Day ("Price
Communication Time"), the Fund's Administrator will use its best efforts to
communicate to National City via electronic transmission acceptable to both
parties, the Share Price of each applicable Portfolio, as well as dividend and
capital gain information and, in the case of income funds, the daily accrual for
interest rate factor (mil rate), determined at the Close of Trading on that
Business Day. It is understood and agreed that, in the context of Section 22 of
the 1940 Act and the rules and public interpretations thereunder by the staff of
the Securities and Exchange Commission ("SEC Staff"), receipt by National City
of any Instructions from the Plan Representatives and/or Plan Participants in a
timely manner shall be deemed to be received by the Fund of such Instructions
solely for pricing purposes and shall cause purchases and sales for the Plans to
be deemed to occur at the Share Price for such Business Day, except as provided
in (d)(iii) below.
(c) As noted in Paragraph (a) above, by 7: 00 a.m. ET on TD+1 ("Instruction
Cutoff Time") and after National City has processed all approved Plan
Representative and/or Plan Participant activity, National City will transmit to
the Fund's Transfer Agent via electronic transmission or system-to-system, and
to the Fund's Transfer Agent, by an "auto fax" or by a method acceptable to
National City and the Fund's Transfer Agent, a report (the "Instruction Report")
detailing the Instructions that were received by National City prior to the
Fund's daily determination of Share Price for each Portfolio (i.e., the Close of
Trading) on each Business Day. The Fund's Transfer Agent, upon successful
receipt of the file containing the Instruction Report, will transmit (system to
system) a file acknowledging the receipt of the file containing the Instruction
Report. If the Fund's Transfer Agent does not receive a successful file from
National City, an acknowledgment file will not be sent from the Fund's Transfer
Agent. In the event the Sub-Transfer does not receive an acknowledgment file
within thirty (30) minutes of transmission of the file containing the
Instruction Report, National City will contact a Financial Control
Representative at the Fund's Transfer Agent to determine conclusively whether
the Instruction Report was received by the Fund's Transfer Agent or whether the
Instruction Report should be resubmitted via electric transmission or
system-to-system. At the present time, National City and the Fund's Transfer
Agent have agreed that National City will enter trades via the Terminal system
to system (I.E., by "TIP" files sent online to the Fund's Transfer Agent), by
7:00 a.m. E.T. on TD+l.
(i) It is understood by the parties that all Instructions from
the Plan Representatives and/or Plan Participants shall be
received and processed by National City in accordance with
its standard transaction processing procedures that apply to
all investment options offered under the Plans. National City
shall maintain records sufficient to identify the date and
time of receipt of all Plan Representative and/or Plan
Participant transactions involving the Portfolios and shall
make such records available upon reasonable request for
examination by the Fund or its designated representative or,
at the request of the Fund, by appropriate governmental
authorities. Under no circumstances shall National City
change, alter or modify any Instructions received by it in
good order.
(ii) The Instruction Report shall state whether the Instructions
received by National City from the Plan Representatives
and/or Plan Participants by the Close of Trading on such
Business Day resulted in the Accounts being a net purchaser
or net seller of shares in each of the Portfolios and shall
indicate the net dollar value purchased or net dollar value
redeemed by each Account in each of the Portfolios and the
date of the transaction. On Business Days where there are no
Instructions in a Portfolio for an Account or all the
Accounts, the Instruction Report will so indicate. Each
transmission of Instructions by National City of a net
purchase or redemption Instruction relating to a particular
Portfolio and a Business Day shall constitute a
representation and covenant by National City that such net
purchase or redemption Instruction was based on Plan
Representative and/or Plan Participants transactions received
by National City prior to the Close of Trading (and prior to
the time the Share Price for each Portfolio) was determined
on such Business Day, and that each net purchase or
redemption Instruction included all such Plan Representative
and/or Plan Participant transactions so received by National
City. All Instructions will be communicated in U.S. dollars.
(iii) As noted above, Instructions communicated by National City to
the Fund's Transfer Agent by mutually acceptable means on any
Business Day by the Instruction Cutoff Time will be processed
by the Fund's Transfer Agent at the Share Price determined
for each Portfolio as of the Close of Trading on the Business
Day on which National City received those Instructions from
the Plan Representatives and/or Plan Participants (i.e., the
Trade Date).
(iv) Following the completion of the transmission of any
Instructions by National City to the Fund's Transfer Agent by
the Instruction Cutoff Time, National City will verify that
the Instruction was received by the Fund's Transfer Agent and
trades are pending by utilizing the LOOKUP request function,
entering the function "TP" with the Portfolio and Account
number to see the pending trades. If there has been an error
in the entry of the Instruction, National City can use the
"BMAINT" function to delete the incorrect trade. Thereafter,
National City can reenter the correct Instruction. Any
rejected Instruction will be communicated to AT National City
(000) 000-0000.
(v) In the event that an Instruction transmitted by National City
on any Business Day is not received by the Fund's Transfer
Agent by the Instruction Cutoff Time, due to mechanical
difficulties or for any other reason beyond National City's
reasonable control, such Instruction shall nonetheless be
treated by the Fund's Transfer Agent as if it had been
received by the Instruction Cutoff Time, provided that (a)
National City retransmits such Instruction by facsimile
transmission to the Fund's Transfer Agent and the Adviser and
such Instruction is confirmed received by the Transfer
Agent's Financial Control representative no later than 9:00
a.m. ET on TD+1; and (b) National City places a phone call to
a Financial Control representative of the Fund's Transfer
Agent prior to 9:00 a.m. ET on TD+1 to advise the Fund's
Transfer Agent that a facsimile transmission concerning the
Instruction is then being sent. In such circumstance,
National City shall transmit the Instruction using the date
and reason code applicable to the transaction.
(vi) With respect to all instructions, the Transfer Agent's
Financial Control representative will manually adjust the
"supersheet" for the Effective Trade Date to reflect any
Instructions sent by National City. The Transfer Agent will
fax a copy of all Instructions and supersheets to the Fund
which will promptly verify that the supersheets accurately
reflect the Instructions received and the deletion of
yesterday's manually added Instructions or, if not,
immediately advise the Transfer Agent of any discrepancy.
(vii) Following the transmission of any Instructions to the Fund's
Transfer Agent, National City will verify that the
Instructions have been sent to the Fund's Transfer Agent and
that National City's transmission to Transfer Agent has been
received.
(viii) By no later than 9:00 a.m. on TD+2, and based on the
information transmitted to National City pursuant to Section
5(a)(v) and Paragraph (c)(iv) above, National City will use
its best efforts to verify that all Instructions provided to
the Fund's Transfer Agent on TD+l were accurately received
and that the trades for each Account were accurately
completed and National City will use its best efforts to
promptly notify the Fund's Transfer Agent and the Adviser of
any discrepancies.
(d) As set forth below, upon the timely receipt from National City of
the Instruction Report, the Fund will execute the purchase or redemption
transactions (as the case may be) at the Share Price for each Portfolio computed
as of the Close of Trading on the Effective Trade Date.
(i) Except as otherwise provided herein, all purchase and
redemption transactions will settle on TD+1. Settlements will
be through net Federal Wire transfers between the trustee or
custodian for the Plans and a custodial account designated by
the Fund. In the case of Instructions which constitute a net
purchase order, settlement shall occur by National City
instructing the Plan Representative to initiate a wire
transfer by 1:00 p.m. ET on TD+1 to the custodian for the
Fund for receipt by the Fund's custodian by no later than the
Close of Business at the New York Federal Reserve Bank on
TD+1, causing the remittance of the requisite funds to cover
such net purchase order. In the case of Instructions which
constitute a net redemption order, settlement shall occur by
the Fund's Transfer Agent instructing the Fund's custodian to
initiate a wire transfer by 1:00 p.m. ET from on TD+1, from
the Fund's custodial accounts to the custodial accounts for
the Plans for their receipt by no later than the Close of
Business at the New York Federal Reserve Bank on the
Settlement Date, causing the remittance of the requisite
funds to cover such net redemption order. The Fund reserves
the right to (i) delay settlement of redemptions for up to
five (5) Business Days after receiving a net redemption order
in accordance with Section 22 of the 1940 Act and Rule 22c-I
thereunder, or (ii) suspend redemptions pursuant to the 1940
Act or as otherwise required by law. Settlements shall be in
U.S. dollars and a Portfolio may pay redemption proceeds in
whole or in part by a distribution in-kind of readily
marketable securities that it holds in lieu of cash in
conformity with applicable law or regulations.
(ii) The Fund agrees that shares shall be available for purchases
by the Plans so long as such shares are generally available
for purchase by the public. In the event that the Fund
decides to refuse an order for the purchase of shares,
suspend the sale of shares or withdraw the sale of shares of
any or all of the Funds, the Fund agrees to use commercially
reasonable efforts to provide National City with written
notice of its intention to refuse orders no later than 9:00
a.m. Eastern time on the Business Day prior to the date of
which such orders will be refused.
(iii) National City, as record owner of each Account ("Record
Owner") will be provided with all written confirmations
required under federal and state securities laws on a system
to system basis by means of the Activity File transmission.
In this regard, confirmations will be made available, system
to system, by the Fund's Transfer Agent to the Record Owner
no later than 4:00 p.m. ET on TD+2.
(iii) On any Business Day when the Federal Reserve Wire Transfer
System is closed, all communication and processing rules will
be suspended for the settlement of Instructions. Instructions
will be settled on the next Business Day on which the Federal
Reserve Wire Transfer System is open. The original TD+1
Settlement Date will not apply. Rather, for purposes of this
Paragraph (d)(iii) only, the Settlement Date will be the date
on which the Instruction settles.
(e) National City shall, upon the availability of any confirmation or
statement concerning the Accounts, promptly verify by use of the Terminal the
accuracy of the information contained therein against the information contained
in National City's internal recordkeeping system and shall promptly advise the
Fund's Transfer Agent and the Adviser in writing of any discrepancies between
such information. The Fund's Transfer Agent and National City shall cooperate to
resolve any such discrepancies as soon as reasonably practicable.
(f) In the event of any error or delay with respect to the Procedures
outlined in EXHIBIT C herein: (i) which is caused by the Fund, the Fund's
Transfer Agent or the Adviser, the Fund or its agents (as appropriate), the Fund
or its agent shall make any adjustments on the Fund's accounting system
necessary to correct such error or delay and the responsible party or parties
shall reimburse the Plan and National City for any losses or reasonable costs
incurred directly as a result of the error or delay but specifically excluding
any and all consequential punitive or other indirect damages; or (ii) which is
caused by National City or by any Plan Representative, the Fund or its agent
shall make any adjustment on the Fund's accounting system necessary to correct
such error or delay and the affected party or parties shall be reimbursed by
National City for any losses or reasonable costs incurred directly as a result
of the error or delay (or National City shall make any adjustments on its
recordkeeping system, if appropriate), but specifically excluding any and all
consequential punitive or other indirect damages. In the event of any such
adjustments on the Fund's accounting system, National City shall make the
corresponding adjustments on its National City's System. In the event that
errors or delays with respect to the Procedures are contributed to by more than
one party hereto, each party shall be responsible for that portion of the loss
or reasonable cost, which results from its error or delay. The portion of any
loss or cost for which the Fund is responsible may be adjusted between the Fund
and its agents in accordance with the agreement between the Fund and such agent
whereby the agency is created. All parties agree to provide the other parties
prompt notice of any errors or delays of the type referred to herein and to use
reasonable efforts to take such action as may be appropriate to avoid or
mitigate any such costs or losses.
EXHIBIT D
---------
The weekdays on which the Fund is closed for business are: New Year's
Day, Xxxxxx Xxxxxx Xxxx Xx. Day, Presidents' Day, Good Friday, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
EXHIBIT E
---------
The shares of each Portfolio listed in EXHIBIT A above are registered or
otherwise authorized for issuance and sale in the all fifty (50) states and the
District of Columbia.
EXHIBIT F
---------
NOTICES
-------
Notices required by this Agreement should be sent as follows:
If to the Fund:
Attn:
Phone: (610)
Fax: (610)
With copies to:
Phone: ( )
Fax: ( )
If to the Adviser:
Phone: ( )
Fax: ( )
If to National City:
Attn:
Phone: ( )
Fax: ( )
