1
Exhibit (e)(13)
FundCircuit Program Services Agreement
between
Bear Xxxxxx Securities Corporation,
The One Group Services Company,
and
One Group Mutual Funds
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BEAR XXXXXXX SECURITIES CORP.
FUNDCIRCUIT PROGRAM
SERVICES AGREEMENT
This Agreement is made as of __________________________, 2000, between
Bear, Xxxxxxx Securities Corp. ("Bear Xxxxxxx"), The One Group Services Company
and One Group Mutual Funds (the "Fund Party").
WHEREAS, the Fund Company is an investment company registered under the
Investment Company Act of 1940, as amended (the " 1940 Act");
WHEREAS, Bear Xxxxxxx serves as clearing broker for certain introducing
broker-dealers ("Authorized Correspondents") pursuant to an Agreement for
Securities Clearance Services (the "Clearing Agreement");
WHEREAS, in its capacity as a clearing broker for the Authorized
Correspondents, Bear Xxxxxxx performs traditional operational and clearing
functions, including execution and clearance of trades and holding customers'
funds and securities;
WHEREAS, in its capacity as clearing broker for the Authorized
Correspondents, and with respect to its own customers, Bear Xxxxxx will execute
orders for shares of mutual funds that participate in the FundCIRCUIT Program
free of transaction charges;
WHEREAS, the Fund Company desires Bear Xxxxxx to perform certain record
keeping, shareholder communication and other services listed on Schedule III for
the Funds and for the benefit of Investors;
WHEREAS, the services listed on Schedule III shall be performed
pursuant to the terms and conditions as set forth herein;
WHEREAS, the Fund Company and Bear Xxxxxx agree to transact business in
the manner prescribed in Schedule III attached hereto;
NOW THEREFORE, in consideration of the foregoing and the mutual
promises set forth below, the parties agree as follows:
1. Services.
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During the term of this Agreement, Bear Xxxxxx or the
Authorized Correspondents will perform services as set forth in Schedule III
attached hereto (the "Services"). Schedule III may be amended from time to time
with mutual consent of the parties.
2. Certain Definitions.
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a. "Authorized Correspondent" means various introducing
broker-dealer/correspondents for which Bear Xxxxxx acts as clearing agent.
b. "Bear Xxxxxx Indemnified Parties" means Bear Xxxxxx, its
control persons and their respective subsidiaries and affiliates and their
officers, directors, employees and agents.
c. "Clearing Agreement" means the Agreement for Clearing
Services or any similar agreement between Bear Xxxxxx and any Authorized
Correspondent, including any rider, annex and supplement thereto,
d. "Fund" means each series or class of each Fund Company,
individually and not jointly, listed on Schedule I, as amended from time to
time. In the event that there are no series or classes of shares listed on
Schedule I, the term "Fund" shall mean the "Participating Fund Company."
e. "Fund Affiliate" means any of the following that has signed
this Agreement: (i) an investment adviser to the Funds, (ii) administrator for
the Funds; (iii) the principal underwriter or distributor for the Funds; or (iv)
transfer agent for the Funds.
f. "FundCircuit Program" means the Bear Xxxxxx "no transaction
fee" program through which customers of the Authorized Correspondents may
purchase shares of the Funds without a transaction fee.
g. "Fund Company" means each registered investment company,
individually and not jointly, that has signed this Agreement.
h. "Fund Indemnified Panties" means any Fund Party that
executes this Agreement, its control persons and their respective subsidiaries
and affiliates and their officers, directors, employees and agents.
i. "Fund Parties" means the Fund Company and the Fund
Affiliates.
j. "Investor" means a customer of an Authorized Correspondent.
k. "Load Fund" means a Fund that charges a front-end sales
load, which may be subject to certain waivers (including, among other things,
shares, sold through a "wrap" program, to certain retirement accounts, or in
accounts subject to an investment advisory fee).
1. "Participating Fund Company" means each registered
investment company, individually and not jointly, listed on Schedule I, as
amended from time to time.
m. "Program Shares" means any shares of the Funds that are (i)
eligible for purchase by Investors without transaction charges through the
FundCircuit Program and actually purchased; (ii) beneficially owned by
Investors; and (iii) held in a clearing account by Bear Xxxxxx in its capacity
as a clearing broker on behalf of the Authorized Correspondent. Program Shares
may be subject to certain minimum purchase amount criteria, as may be modified
from
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time to time. Such minimum purchase amount is a per-Fund minimum without
aggregation between Funds in the same Fund family.
3. Fees.
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a. For performance of the Services, Bear Xxxxxx will receive a
fee (the "Fee") with respect to the Program Shares. Fees will be calculated and
paid as provided in Schedule IV to this Agreement. Fees are solely for
shareholder servicing (directly or indirectly through Bear Xxxxxxx in its
capacity as clearing broker) and do not constitute payment in any manner for
investment advisory, distribution, trustee or custodial services.
b. The Fund Parties represent that fees paid under this
Agreement will be paid out (i) by the Funds pursuant to a duly adopted
shareholder servicing plan or Rule 12b-1 distribution plan; (ii) by the Fund
Affiliate out of its own resources; (iii) by the Funds, out of other fees
presently being charged to the shareholders pursuant to the terms of the current
prospectus; or (iv) a combination of the foregoing.
c. In the event that Schedule III is revised, the parties
agree, in good faith, to negotiate a revision of fees set forth in Schedule IV.
4. Purchase of Shares of Load Funds.
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Shares of Load Funds are available through the FundCircuit Program only
at net asset value. Authorized Correspondents who process purchases for shares
of Load Funds through the FundCircuit Program, with respect to the shares of
such Load Funds may be required: (a) to be registered as an investment adviser,
to charge an investment advisory fee, or (b) to charge a "wrap fee." Each
Authorized Correspondent, not Bear Xxxxxx, is responsible for complying with the
terms of each Load Fund's prospectus with respect to the requirements to
register as an investment adviser and/or to charge a fee with respect to the
shares.
5. Transaction Charges.
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Bear Xxxxxx has informed the Authorized Correspondents that they shall
not assess against, or collect from, Investors any transaction fee upon the
purchase or redemption of any Fund's shares that meet the minimum purchase
criteria established from time to time, except as noted in Section 6 below,
Investor purchases not meeting the criteria of Program Shares (as described in
the Fund prospectus) may be charged a transaction fee by the Authorized
Correspondent, and will not be included in service fee invoices presented to the
Funds for payment.
6. Short-Term Redemption and Transfers.
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a. The Fund Parties acknowledge that Bear Xxxxxx may apply a
redemption fee for any short-term redemption of shares purchased within
specified time frames.
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b. The Fund Parties acknowledge that the Authorized
Correspondents reserve the right to apply a fee for the transfer by a
Shareholder of any Fund Position purchased within specified time frames,
c. Bear Xxxxxx represents that it has notified or will notify
the Authorized Correspondents that they should discourage short-term trading and
market timing of Investors that are their customers.
7. Indemnification.
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a. The Fund Parties that have executed this agreement,
individually and not jointly, hereby agree to indemnify the Bear Xxxxxxx
Indemnified Parties and each Authorized Correspondent against any and all
losses, claims, liabilities and expenses (including, but not limited to,
reasonable attorneys' fees) incurred by any of them and arising as a result of
(i) any untrue or alleged untrue statement of a material fact contained in the
prospectus, including the statement or additional information incorporated by
reference therein, as amended or supplemented from time to time, or the omission
of a material fact required to be stated therein or necessary to make thc
statements therein not misleading; or (ii) any material violation by a Fund
Party of any of the terms of this Agreement, except to the extent that such
losses, claims, damages and liabilities arise out of Bear Xxxxxx' willful
misconduct, negligence or breach of this agreement by any Bear Xxxxxx
Indemnified Party.
b. Bear Xxxxxx will indemnify and hold harmless the Fund
Indemnified Parties that have executed this Agreement against any and all
losses, claims, liabilities and expenses (including, but not limited to,
reasonable attorneys' fees) incurred by any of them and arising as a result of
(i) Bear Xxxxxx' dissemination or information regarding the Fund that is
materially incorrect and that was not provided to Bear Xxxxxxx, or approved by
the Fund Parties; or (ii) Bear Xxxxxx' willful misconduct or negligence in the
performance of, or failure to perform, its obligations under this Agreement,
except to the extent that the losses are, a result of the negligence, willful
misconduct, or breach of this Agreement by any Fund Indemnified Party.
c. In any event, no party shall be liable for any special,
consequential or incidental damages.
d. Indemnification by Bear Xxxxxx does not extend to any acts
for which an Authorized Correspondent would be responsible pursuant to the
Clearing Agreement with Bear Xxxxxx.
e. This Paragraph 7 will survive the termination of this
Agreement.
8. Role of Parties.
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a. The Parties acknowledge and agree that the services under
this Agreement are record keeping, shareholder communication, and related
services only and are not the services of an underwriter or a principal
underwriter within the meaning of the Securities Act of 1933, as amended (the
1933 Act"), or the 1940 Act. This Agreement does not grant Bear Xxxxxx
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or the Authorized Correspondents any right to purchase shares from any Fund
(although it does not preclude them from purchasing any such shares), nor does
it constitute the appointment of Bear Xxxxxx or the Authorized Correspondent as
agent of the Participating Fund Company for purposes of selling shares of any
Fund to any dealer or to the public. To the extent an Authorized Correspondent
is involved in the purchase of shares of any Fund by Investors, such involvement
will be as agent of such Investors only.
b. In the case of each Fund Company that is organized as a
trust or series thereof, the declarations of trust for each trust refers to the
trustees collectively as trustees and not as individuals personally, and that
the declaration of trust provides that no shareholder, trustee, officer,
employee or agent of the trust shall be subject to the claims against or
obligations or the trust to any extent whatsoever, but that the trust estate
only shall be liable.
9. Information To Be Provided.
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The Fund Parties shall:
a. provide Bear Xxxxxx, prior to the effectiveness of this
Agreement, or as soon thereafter as possible, with a copy of the current
prospectus and statement of additional information for each Fund participating
in the program described herein.
b. provide Bear Xxxxxx with written copies of any amendments
to or changes in such documents as soon as possible after such amendments or
changes become available.
c. promptly notify Bear Xxxxxx, in writing, with respect to
any Fund, a change in name, CUSIP number, or security symbol.
10. Representations and Warranties.
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a. REPRESENTATIONS AND WARRANTIES OF BEAR XXXXXX. Bear Xxxxxxx
represents and warrants to the Fund Parties that:
(i) It is a corporation duly organized and existing
and in good standing under the laws or the State of Delaware.
(ii) It is duly qualified to carry on its business in
the State of Delaware and in each other jurisdiction in which its activities
require it to be so qualified.
(iii) It is empowered under applicable laws and by
its charter and by-laws to enter into and perform this Agreement.
(iv) All requisite corporate proceedings have been
taken to authorize it to enter into and perform its obligations under this
Agreement.
(v) It is a broker-dealer registered under the
Securities Exchange Act or 1934, as amended, and a member in good standing of
the National Association or Securities Dealers, Inc. and will remain as such for
the term of this Agreement.
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(vi) It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations arising out of this Agreement.
b. REPRESENTATIONS AND WARRANTIES OF THE FUND COMPANY. Each
Fund Company, severally and not jointly, represents and warrants to Bear Xxxxxx
that:
(i) It is duly organized and existing and in good
standing under the laws of the state of its organization.
(ii) It is empowered under applicable laws and by its
charter documents and by-laws to enter into and perform its obligations under
this Agreement.
(iii) All corporate proceedings required by its
charter documents and bylaws have been taken to authorize it to enter into and
perform this Agreement.
(iv) It is an open-end, management investment company
registered under the 1940 Act, as amended.
(v) A registration statement under the 1933 Act is
currently effective and will remain effective, and appropriate state securities
law filings have been made, and will continue to be made, with respect to all
shares of each Fund being offered for sale,
(vi) Performance of the Fund Company's obligations
under this Agreement will not violate any law, regulation, agreement or the Fund
Company's registration statement, as amended.
c. REPRESENTATIONS AND WARRANTIES OF THE FUND AFFILIATE. The
Fund Affiliate represents and warrants to Bear Xxxxxx that:
(i) It is duly organized and existing and in good
standing under the laws of the state of its organization.
(ii) It is empowered under applicable laws and by its
charter documents and by-laws to enter into and perform its obligations under
this Agreement.
(iii) All corporate proceedings required by its
charter documents and by laws have been taken to authorize it to enter into and
perform this Agreement.
(iv) It is either (a) a broker-dealer registered
under the Securities Exchange Act of 1934, as amended (the " 1934 Act"), and a
member in good standing of the National Association of Securities Dealers, Inc.;
(b) an investment adviser registered under the Investment Advisers Act of 1940,
as amended; (c) a transfer agent registered under the 1934 Act; or (d) a bank
duly chartered under federal or state law and exempt from registration as a
broker-dealer or investment adviser.
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(v) Each Participating Fund Company is an open-end,
management investment company registered under the 1940 Act, as amended.
(vi) With respect to each Participating Fund Company,
a registration statement under the 1933 Act is currently effective and will
remain effective, and appropriate state securities law filings have been made
and will continue to be made, with respect to all shares of each Fund being
offered for sale, except as a Fund Party may specifically advise Bear Xxxxxx, in
writing, with respect to any state in which the shares of a Fund are not
registered.
(vii) Performance of the Fund Affiliate's obligations
under this Agreement will not violate any law, regulation, agreement or a
Participating Fund Company's registration statement, as amended.
11. Notices.
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Notices under this Agreement shall be deemed to have been duly
given if delivered by hand or facsimile: (a) if to Bear Xxxxxx, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel and (b) it to a Fund Party,
at its address or facsimile number set forth below on the signature page or
Schedule I of this Agreement, or in each case, such other address as may be
notified to the other party. Notice may also be given by first class mail or
overnight courier and shall be effective as of the date of actual receipt.
12. Nonexclusivity.
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Each party acknowledges that the other may enter into
agreements, similar to this one, with other parties, for the performance of
services similar to those to be provided under this Agreement, unless otherwise
agreed to in writing by the parties.
13. Assignability.
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This Agreement is void upon its assignment to the extent fees
are paid under a 12b-1 distribution plan. Otherwise, this Agreement is not
assignable by any party without the other party's prior written consent. Any
attempted assignment in contravention hereof shall be null and void; provided,
however, (that Bear Xxxxxxx may, without the Fund Parties' consent, assign its
rights and obligations under this Agreement to any Affiliate that is a
registered broker-dealer or transfer agent.
14. Use of Names.
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The Fund Parties hereby authorize Bear Xxxxxx and the
Authorized Correspondents to use the names and other identifying marks of the
Fund Parties and each Fund in connection with the FundCircuit Program and the
provision of services under this Agreement. The Fund Parties may withdraw this
authorization at any time as to any particular use of any such name or
identifying marks (a) upon a Fund Party's reasonable determination that such use
would have a material adverse effect on the reputation or marketing efforts of
thc Fund Party; (b) if the Fund Party reasonably determines that materials using
such names and identifying marks
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are inaccurate or misleading; or (c) if the Authorized Correspondent or Bear
Xxxxxxx is no longer providing the services to Investors as described in this
Agreement. The parties agree that, if requested by the other party, they will
discuss and consider in good faith any standards or specifications relating to
the use or proposed use of the names and other identifying marks of the Fund
Parties. Upon request, Bear Xxxxxxx and the Authorized Correspondent shall
provide the Fund Parties with copies of any literature and other materials that
refer to any of the Fund Parties.
15. Schedules.
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All Schedules attached to this Agreement (as they may be
amended from time to time) are, by this reference, incorporated into, and made a
part of, this Agreement.
16. Entire Agreement; Amendment.
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This Agreement (including the Schedules and any rider or
addendum, if any, attached to this Agreement), together with the Operating
Agreement, if any, constitute the entire agreement between the parties with
regard to the subject matter herein. Additionally, these materials supersede any
and all agreements, representations and warranties, whether written or oral,
made prior to the execution of this Agreement. This Agreement and the Schedules
attached hereto (other than Schedule 1) may be amended only by a writing
executed by each party to be bound by the Amendment.
17. Governing Law.
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This Agreement will be governed by, and interpreted under, the
laws of the State of New York as applied to contracts entered into and to be
performed entirely within that state.
18. Counterparts.
This Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but all of which together shall
constitute one instrument.
19. Effectiveness of Agreement-Termination.
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a. This Agreement will become effective as to a Fund as of:
(i) the date set forth on Schedule I opposite the name of the Fund; or (ii) such
later date as Bear Xxxxxx may, in its discretion, designate.
b. This Agreement shall have an initial term of one (1) year
and shall automatically renew for successive one year terms thereafter. After
the initial two year term it may be terminated, as to one or more Funds (as
reflected in Schedule 1), by either party (i) upon sixty (60) days' written
notice to the other parties; (ii) upon such shorter notice as is required by
law, order or instruction from a court of competent jurisdiction, regulatory
body, or self-regulatory organization with jurisdiction over the terminating
party; (iii) automatically, effective on the day following termination of any
shareholder servicing plan or rule l2b-1
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distribution plan adopted and maintained pursuant to Rule l2b-1 under the 1940
Act by any Fund that has such a Plan in effect as of the effective date of this
Agreement, provided that a portion of the Fee is paid pursuant to such Plan; or
(iv) terminate by vote, of Board or majority of shareholders. Notwithstanding
anything to the contrary contained in Paragraph 20 (b) of the Agreement, this
Agreement will terminate automatically with respect to the Fund Affiliate in the
event that the Fund Affiliate ceases to serve as principal underwriter or
distributor of the Funds.
c. Upon termination as to a Fund, Fund Parties will not be
obligated to pay the fee with respect to any Program Shares of the Fund that
become part of an Investor's account maintained by Bear Xxxxxx in its capacity
as a clearing broker after the date of such termination. However,
notwithstanding any such termination, the Fund Party will remain obligated to
pay fees as to each share of such Fund that was considered when calculating the
fee as of the date or termination (a "Pre-Termination Share"), for so long as
(i) such Pre-Termination Share is held in any Authorized Correspondent brokerage
account and Such Authorized Correspondent continues to perform the services and
otherwise complies with this Agreement as to such shares, and (ii) it is legal
for the Fund Party to do so. The Fund Party shall reimburse Bear Xxxxxx promptly
for any reasonable expenses that Bear Xxxxxxx or an Authorized Correspondent
incurs in effecting any termination of this Agreement, including, but not
limited to, delivery to the Fund Party of any records, instruments, or documents
reasonably requested by the Fund Party. Notwithstanding anything to the contrary
contained in Paragraph 20 (c) of the Agreement, payment obligations with respect
to Pre-Termination Shares will cease in the event the Fund Affiliate ceases to
serve as principal underwriter or distributor for the Funds.
20. Multiple Parties.
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Every reference to a Fund will be deemed a reference solely to
the particular Fund (as set forth in Schedule I, as may be amended from time to
time). Under no circumstances shall the rights, obligations or remedies with
respect to a particular Fund constitute a right, obligation or remedy applicable
to any other Fund. In particular, and without otherwise limiting the scope of
this paragraph, Bear Xxxxxxx shall have no right to set off claims of a fund by
applying property of any other Fund.
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IN WITNESS WHEREOF, duly authorized representatives of the parties
hereto have executed this Agreement.
Bear, Xxxxxxx Securities Corp.
By: /s/ Xxxxxxx Xxxxxxx
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Print Name: Xxxxxxx Xxxxxxx
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Title: Senior Managing Director
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ONE GROUP MUTUAL FUNDS
Fund Company, on behalf of the individual
Funds listed on Schedule I,
individually and not jointly,
By: /s/ Xxxxx X. Xxxxxxxxx
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Print Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President
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Address: 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000
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Fax: (000) 000-0000
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THE ONE GROUP SERVICES COMPANY
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Fund Affiliate
By: /s/ Xxxx X. Xxxxxx
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Print Name: Xxxx X. Xxxxxx
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Title: President
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Address: 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000
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Fax: (000) 000-0000
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Multiple Fund Parties may execute this page in counterparts.
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SCHEDULE I
PARTICIPATING FUND COMPANIES
If executed by the Fund Company: By executing this Agreement, the Fund Company,
on behalf of the Funds listed below, severally and not jointly, hereby agrees to
become a party to this Agreement.
If executed by the Fund Affiliate: By executing this Agreement, the Fund
Affiliate has agreed to become a party to this Agreement with respect to the
Funds listed below.
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Fund Company Fund Name Class Security CUSIP # Inception
Symbol Date of
Fund
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SCHEDULE II
OPERATIONAL PROCEDURES RELEVANT TO THE AGREEMENT
Purchase and redemption orders; settlement of trades; and account activity and
distribution information shall be processed using NSCC Fund/SERV and/or
Networking interfaces in the customary manner prescribed by NSCC, or as amended
by mutual agreement in writing.
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SCHEDULE III
Some or all of the following services will be provided by Bear Xxxxxx or by
Authorized Correspondents, as needed:
1. Record Maintenance
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Maintenance of the following records with respect to a Fund for each Investor
who holds Program Shares:
a. Number of shares;
b. Date, price and amount of purchases and redemptions (including
dividend reinvestments) and dates and amounts of dividends
paid for at least the current year to date;
c. Name and address of the Investor, including zip codes and
social security numbers or taxpayer identification numbers;
d. Records of distributions and dividend payments;
e. Any transfers of shares; and
f. Other records required by law.
2. Shareholder Communications
--------------------------
Bear Xxxxxx or each Authorized Correspondent will:
a. Provide to a shareholder mailing agent employed by each Fund for the
purpose of mailing certain Fund-related materials the names and addresses of all
Investors of the Authorized Correspondents who hold shares of such Fund in their
brokerage accounts. Such shareholder mailing agent will be a person or entity
engaged by such Fund as the parties may agree. The Fund-related materials to be
sent by such agent shall consist updated prospectuses and any supplements and
amendments thereto, annual and other periodic reports, proxy or information
statements, and other appropriate shareholder communications;
b. Mail current Fund prospectuses and statements of additional
information and annual and other periodic reports upon Investor request as
required by law and, as applicable, with confirmation statements;
c. Mail statements to Investors on a monthly basis; (or, as to accounts
in which there has been no activity in a particular month, no less frequently
than quarterly) showing, among other things, the number of shares of each Fund
owned by such Investors and the net asset value of such Fund as of a recent
date;
d. Respond to shareholder inquiries and provide services related to
maintenance of shareholder accounts; and
e. Produce and mail to Investors confirmation statements reflecting
purchases and redemptions of each Fund in the FundCircuit Program
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3. NETWORKING LEVEL 3: All record maintenance and shareholder communications
will be accomplished using Networking Level 3.
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SCHEDULE IV
FEES
For performance of the services set forth in the Agreement, Bear Xxxxxxx, on
behalf of each Authorized Correspondent listed on Schedule I, will receive a
service fee calculated as follows:
Aggregate Value of Program Shares
Fee Rate Percentage
Per Annum of Average
Daily Value of fund Shares 0.25%
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A. For Funds that pay the Fee through a rule 12b-1 distribution plan, the Fund
Parties must provide Bear Xxxxxxx with the method of calculation. The Funds
shall pay the Fee through the CommissionServ system.
B. For Funds that pay the Fee without a rule 12b-I distribution plan, the Fee
will be payable monthly upon receipt of an invoice by the Fund Party from Bear
Xxxxxxx. The total market value of Program Shares will be calculated daily and
averaged throughout the exact number of days in the month to arrive at the
average daily market value.
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