Exhibit (h)(28)
Funds Trading Agreement
Dated as of August 21, 2000
Between
Fidelity Investments Institutional Operations Company, LLC,
Banc One Investment Advisors Corporation
And
One Group Mutual Funds
184
FUNDS TRADING AGREEMENT
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AGREEMENT made as of the 21/st/ day of August, 2000 by Fidelity Investments
Institutional Operations Company, Inc. ("FIIOC"), a Massachusetts corporation,
One Group Mutual Funds ("One Group"), and Banc One Investment Advisors
Corporation ("BOIA").
WITNESSETH:
WHEREAS: One Group is an open-end investment company registered under the
Investment Company Act of 1940, as amended, consisting of the series listed in
Exhibit A attached hereto (individually, each a Fund and collectively, the
"Funds"); and
WHEREAS: Boston Financial Data Services serves as the transfer agent
("Transfer Agent") for the Funds; and
WHEREAS: BOIA serves as investment advisor for the Funds; and
WHEREAS: One Group desires that FIIOC serve as limited agent to accept
orders for the purchase, exchange and redemption of securities of the Fund
("Shares") by certain employee benefit plans for which FIIOC performs
administrative and recordkeeping services (individually, the "Plan" and
collectively, the "Plans");
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto hereby agree as follows:
1 Appointment of FIIOC. One Group hereby appoints FIIOC as its agent for
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the sole and limited purpose of accepting purchase, exchange or redemption
orders for Shares purchased, exchanged or redeemed by the Plan ("Orders"). One
Group represents that it has all the requisite power and authority to appoint
agent to accept purchase, exchange or redemption orders for Shares purchased,
exchanged or redeemed by the Plan. FIIOC hereby accepts its appointment on the
terms and conditions set forth herein. Notwithstanding anything in this
Agreement to the contrary, FIIOC shall not be acting as agent for One Group in
any manner whatsoever, except in accepting such Orders.
2. Orders and Acceptance. FIIOC, as agent of One Group, shall accept from
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the Plan, Orders for the purchase, exchange or redemption of Shares of the
Funds. If such Orders are received by FIIOC prior to the close of trading on the
New York Stock Exchange (the "Close of Trading") on a day the New York Stock
Exchange is open for business (a "Business Day"), they shall be treated as
having been received by One Group or its Designee on such Business Day ("Trade
Date"). One Group or its designee ("Designee") will maintain a separate account
in each Fund for each individual Plan (individually, the "Account" and
collectively, the "Accounts"); such Account shall be registered in the name of
FIIOC as agent for the Plan.
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3. Pricing Information. By 7:00 p.m. Eastern Time ("ET") each Business
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Day, One Group or its Designee shall provide, via electronic data transmission
("EDT") in FIIOC's format the following information ("Price Information") to
1`11OC: (1) the confirmed net asset value for each Fund at the Close of Trading,
(2) the change in each Fund's net asset value from the Close of Trading on the
prior Business Day, (3) In the case of Funds which pay a daily dividend, the
latest daily accrual for interest rate factor ("mil rate"), and (4) on ex
dividend date, if applicable, dividend and capital gain information. FROC shall
issue a confirmation to One Group or its Designee upon receipt of the EDT,
provided, that if One Group directs such confirmation to be provided to
Designee, One Group shall have all necessary authority to share the information
contained in such confirmation with designee and, provided, further, that FIIOC,
by provided such confirmation to Designee, shall have satisfied its obligation
to deliver such confirmation to One Group. If on any Business Day One Group or
its Designee does not provide such Price Information to FIIOC, FIIOC shall hold
all associated transaction activity in the Fidelity Participant Recordkeeping
System ("FPRS") until the relevant Price Information is made available by One
Group or its Designee. The detailed pricing procedures to be followed by One
Group or its Designee and FIIOC are outlined in Exhibit B attached hereto, as
such exhibit may be amended from time to time by the parties hereto.
4. Trade Reporting. By 7:00 a.m. ET each Business Day following Trade
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Date (,TD + 1), FIIOC shall provide, via EDT in FIIOC's format, to Transfer
Agent instructions for the net purchase or net redemption of Shares of each Fund
by Account based on Orders accepted by FIIOC prior to Close of Trading on the
prior Business Day. In the event that such instructions represent estimated
trade activity, FIIOC shall provide final instructions to Transfer Agent by no
later than 9:00 a.m. ET. Transfer Agent shall issue a confirmation of EDT
receipt to FIIOC by no later than 9:15 a.m. ET on TDI-1. Such instructions shall
be effected at the public offering price of the Shares of the respective Fund
calculated as of the Close of Trading on the Business Day on which the Order was
accepted by FIIOC. The detailed activity reporting procedures to be followed by
One Group or its Designee and FIIOC are outlined in Exhibit C attached hereto,
as such Exhibit may be amended from time to time by the parties hereto.
5. Settlement. Settlements shall be made for each Business Day, by wire
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transfer. Each Business Day FIIOC shall calculate net purchases and redemptions
with respect to all Funds and Plans occurring on that Business Day. The daily
wire transfers between FIIOC and Transfer Agent shall operate as follows:
(a) For net redemptions, Transfer Agent shall initiate a wire transfer to
FIIOC by 11:00 a.m. ET on TD+I.
(b) For net purchases, FIJOC shall Initiate a wire transfer to Transfer
Agent by 11:00 a.m. ET on TD+I.
(c) FIIOC and Transfer Agent shall monitor the receipt of wire transfers
oil a daily basis. If any wire transfer is not received oil tile Business Day
such wire was required to be initiated and it is determined that the sending
party was negligent in initiating the wire transfer, causing the delay or
186
non-receipt of any such wire transfer, then the sending party shall compensate
tile receiving party for the amount of reasonable interest plus associated bank
penalties.
6. Confirmation and Reconciliation. Each Business Day Transfer Agent
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shall send via EDT to FIIOC transaction confirmations of the prior Business
Day's net purchase or net redemption for each Account. Transfer Agent shall also
send via regular mail to FIIOC, by no later than the fifth Business Day
following calendar month close, a monthly statement for each Account. FIIOC
shall notify One Group or its Designee of any material differences within twenty
(20) Business Days of receipt of the monthly statement. FIIOC and One Group or
its Designee will jointly determine the action to be taken to rectify any
material differences.
7. Representations by FIIOC. FIIOC represents that:
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(a) it has full power and authority to enter into and perform this
Agreement;
(b) is registered as a Transfer Agent pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended (the "1934 Act");
(c) the arrangements provided for in this Agreement will be disclosed
to the Plan through its representatives; and it will promptly notify One Group
in the event that FIIOC is for any reason unable to perform any of its
obligations under this Agreement.
8. Representations of One Group. One Group represents that:
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(a) it has full power and authority to enter into and perform this
Agreement and is duly authorized to appoint FIIOC as agent for the Fund;
(b) the Transfer Agent is registered pursuant to Section 17A of the
1934 Act;
(c) the Funds listed on Exhibit A attached hereto are qualified, or
are exempt from qualification, under applicable securities laws in the relevant
jurisdictions;
187
(d) it will promptly notify FIIOC in the event that (i) a new Transfer
Agent is appointed for the Funds, (ii) it is acquired by another firm or (iii)
it is for any reason unable to perform any of its obligations under this
Agreement, Such notice shall be supplied one hundred twenty (120) days prior to
the effective date of either event.
9. Fund Waivers. One Group hereby agrees to waive any and all loads or
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fees associated with purchase, exchange and redemption transactions. Any trading
restrictions, including those related to the size and frequency of transactions,
are also waived.
10. Compensation. For its services under this Agreement, FIIOC shall be
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entitled to the fees set forth on Exhibit D, attached to this Agreement, as said
Exhibit may be amended from time to time.
11. Prospectus Delivery. FIIOC shall be responsible for mailing Fund
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prospectuses to Plan participants who request them and for mailing periodic Fund
reports to Plan participants, and shall retain the services of a third-party
vendor to handle such mailings. One Group shall be responsible for all materials
and production costs, and hereby agrees to provide the prospectuses and periodic
Fund reports to the third-party vendor selected by FIIOC. One Group shall bear
the costs of mailing periodic Fund reports to Plan participants. FIIOC shall
bear the costs of mailing prospectuses to Plan participants who request them.
12. Proxies. One Group shall be responsible for all costs associated with
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the production of proxy materials. FIIOC shall retain the services of a third-
party vendor to handle proxy solicitation mailings and vote tabulation. Expenses
associated with such services shall be billed directly to One Group or its
Designee by the third-party vendor.
13. Participant Communications. One Group agrees to provide internally-
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prepared fund descriptive information approved by the Funds' legal counsel for
use by FIIOC in its written Plan participant communication materials. FIIOC
shall utilize historical performance data obtained from third-party vendors
(currently Morningstar, Inc., FACTSET Research Systems and Lipper Analytical
Services) in telephone conversations with Plan participants and in quarterly
participant statements. One Group hereby consents to FIIOC's use of such
materials. FIIOC shall seek the approval of One Group prior to retaining any
other third-party vendor to render such data or materials under this Agreement.
One Group agrees to use reasonable efforts to supply FIIOC with an electronic
print file for each Fund containing updated Fund performance and Fund
information within four to six weeks of the quarter end.
14. Information Regarding the Plans. FIIOC shall transmit to Transfer
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Agent or the One Group (or to any agent designated by either of them) such
information concerning the Plans and participants in the Plans as shall
reasonably be necessary for One Group to fulfill its obligations under this
Agreement and as One Group shall reasonably conclude is necessary to enable the
Funds to comply with applicable state Blue Sky laws.
188
15. Intermediary Compensation. One Group acknowledges that each Plan may
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have an investment professional firm ("Firm") that is identified to Transfer
Agent or its affiliates as the broker of record, or similar designation, for
tile i1CCOUnt 0ftllC Plan. One Group shall pay, or shall use its best efforts to
cause its affiliates to pay, to each Firm with respect to investments by any
Plan in the Funds, any fees or compensation described in the Funds prospectuses
and that is generally available to investment professionals who sell shares of
the Funds or provide services for the Funds' shareholders. One Group shall
execute, and shall use its best efforts to cause its affiliates to execute, with
Firm any agreement required for Firm to receive such payments. Nothing in this
Section 15 shall be deemed to in any way limit One Group's obligations under
Section 10 of this Agreement.
16. Indemnification. One Group shall indemnify and hold harmless FIIOC,
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its affiliates, employees, and agents from any and all loss, damage, penalty,
liability, cost, and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed upon, or
asserted against FIIOC, its affiliates, employees, or agents, by reason of any
claim, regulatory proceeding, or litigation arising from any act done or omitted
to be done by any individual or person with respect to this Agreement, excepting
only any and all loss, etc., arising solely from FIIOC's negligence or bad
faith.
(a) In the event that One Group or its Designee fails to provide Price
Information on any Business Day, as detailed in Section 3 of this Agreement,
FIIOC shall be entitled to compensation from One Group for the amount of any
resulting loss to any related Plan investment option. For this purpose, a
related Plan investment option is defined as any Plan investment option
(including, but not limited to, Fidelity mutual funds, non-Fidelity mutual p
funds, employer stock, commingled pools, guaranteed investment contracts, and
customized separately managed portfolios) impacted by held transaction activity
due to Transfer Agent's failure to provide timely Price Information to FIIOC.
(b) In the event that One Group or its Designee provides an incorrect
price and said error causes a monetary loss to any Plan participant account
maintained by FIIOC, then One Group shall be responsible for compensating the
account(s) so that any Plan participant who has incurred such a loss shall be
made whole in accordance with FIIOC's price error correction policy.
(c) In the event that Plan participant accounts gain from an incorrect
price, FIIOC shall adjust such accounts in accordance with FIIOC's price error
correction policy and upon notification to tile Plan Sponsor(s). If Plan
participants received distributions during the time period affected by an
overstated price, FIIOC shall make a reasonable effort to recover overpayments
from such participants in accordance with its price error correction policy,
upon notification to the Plan Sponsor(s) and provided that One Group assumes
responsibility for all reasonable and demonstrable expenses incurred by FIIOC in
attempting to recover the overpayments. If exchange transactions are involved,
FIIOC shall sell the excess shares in the affected Plan participant accounts on
a Current basis and remit the resulting proceeds to Transfer Agent.
189
(d) One Group shall not net the impact of individual Plan participant
gains and losses in calculating any compensation due Plan participants and/or
FIIOC as the result of an incorrect price.
FIIOC shall indemnify and hold harmless One Group, from any and all loss,
damage, penalty, liability, cost, and expense, including without
limitation, reasonable attorneys' fees and disbursements, that may be
incurred by, imposed upon, or asserted against One Group by reason of any
claim, regulatory proceeding, or litigation arising from FIIOC's negligence
or bad faith with respect to this Agreement.
In providing services pursuant to this Agreement, FIIOC and One Group shall
comply with all applicable federal and state laws and regulations and each
party hereto shall indemnify and hold harmless the other party, its
affiliates, employees and agents from any and all loss, damage, penalty,
liability, cost and expense, including without limitation, reasonable
attorneys fees and disbursements, that may be incurred by, imposed upon or
asserted against such party, its affiliates, employees, or agents, by
reason of any claim, regulatory proceeding or litigation arising from non-
compliance by such party with any such laws or regulations.
In providing the indemnifications set forth in the immediately preceding
paragraph, each party hereto agrees to maintain such insurance coverage as
shall be reasonably necessary under the circumstances.
17. Non-Exclusivity. One Group acknowledges and agrees that FIIOC may
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enter into agreements similar to this Agreement with organizations other than
One Group which also serve as principal underwriters for mutual funds, or
otherwise. FIIOC acknowledges and agrees that nothing contained herein shall
prohibit One Group or any affiliate of One Group from providing administrative,
subaccounting or recordkeeping services to any defined contribution plan or from
soliciting any such plan or sponsor thereof to enter into any arrangement with
One Group or any affiliate of One Group for such services.
18. Termination of Agreement. This Agreement may be terminated at any time
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by either party upon ninety (90) days written notice to the other party.
Notwithstanding the foregoing, this Agreement may be terminated immediately upon
either (i) a material breach by either party not cured within thirty (30) days
after notice from the other, or (ii) upon termination of services from either
party to the Plan. The provisions of Section 16 and the second paragraph of this
Section 18 shall survive any termination of this Agreement.
Upon termination of this Agreement for any reason, if Plans continue to hold
Fund shares, One Group and FIIOC agree to be obligated under, and to act in
accordance with the terms and conditions of, this Agreement with respect to such
Plans and Fund shares purchased and redeemed by such Plans for a period of
eighteen months following the termination date, and FIIOC shall continue to
serve as an agent of One Group for the limited purpose of accepting purchase and
redemption orders by such Plans during that period.
190
19. Notices. One Group shall supply to FIIOC notice of any significant
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changes or events impacting the Funds' operations or availability of Fund shares
to the public, including but not limited to: mergers, liquidations, closings to
existing and/or new investors and changes in portfolio management. When
reasonably practicable such notice shall be supplied to FROC ninety (90) days
prior to the effective date of the change or event. Otherwise, One Group shall
use best efforts to supply such notice as soon as reasonably practicable. One
Group will ensure that any notice supplied by it regarding the Funds will be
presented in a form appropriate to be provided to the Plan Sponsor as received
by FIIOC. One Group shall reimburse FIJOC for any expenses incurred by FIIOC as
a result of One Group's failure to provide such notice, or failure to provide
such notice in a presentable form. Unless otherwise specified, all notices and
other communications hereunder shall be in writing and shall be hand delivered
or mailed by certified mail to the other party at the following address or such
other address as each party may give notice to the other:
If to One Group:
One Group Mutual Funds
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇ (will be Ste G2 after 11/17/200)
Attn.: Client Administration
If to Transfer Agent:
Boston Financial Data Services
▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: One Group Mutual Funds
If to FIIOC:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: Contract Risk Management; Mail Zone L6A
20. Amendment, Assignment and Other Matters. This Agreement may not be
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amended except by a writing signed by each of the parties hereto. This Agreement
shall not be assigned, except to affiliates, by either party without the written
consent of the other party. All provisions of the Agreement shall remain in
effect in the event of a Fund name change. This Agreement may be executed in
several counterparts, each of which shall be an original but all of which
together shall constitute one and the same instrument. The headings in this
Agreement are for reference only and shall not affect the interpretation or
construction of this Agreement. This Agreement, including the Exhibits attached
hereto, contains the entire agreement of the parties as to the subject matter
hereof and supersedes any prior agreements, written or oral. This Agreement
shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, without giving effect to the principles of
conflicts of law thereof.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
ONE GROUP MUTUAL FUNDS FIDELITY INVEST MENTS INSTITUTIONAL
OPERATIONS COMPANY INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By /s/ Jude Metalfe
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: Jude Metalfe
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Title: President Title: SVP
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Date: August 18, 2000 Date: August 24, 2000
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BANC ONE INVESTMENT ADVISORS CORPORATION
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Chief Operating Officer
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192
EXHIBIT A
FUNDS
-----
Fund Name: One Group Bond Fund Class A Shares
Cusip: 6823IN776
Ticker Symbol: PGBOX
Fund Name: One Group International Equity Index Fund Class A Shares
Cusip: ▇▇▇▇▇▇▇▇▇
Ticker Symbol: OEIAX
Fund Name: One Group Mid Cap Growth Fund Class A Shares
Cusip: ▇▇▇▇▇▇▇▇▇
Ticker Symbol: OSGIX
193
EXHIBIT B
REMOTE PRICING PROCEDURES
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The Price Information as described in Section 3 shall be provided by One Group
or its Designee to FROC as follows:
(1) One Group or its Designee shall provide the Price Information via EDT by no
later than 7:00 p.m. ET.
(2) In the event that an EDT cannot be sent, One Group or its Designee shall
input Price Information by no later than 7:00 p.m. ET via the FPRS remote
access price screen that FIIOC has provided to One Group or its Designee.
(3) In the event that the FPRS remote access pricing screen is unavailable prior
to 7:00 p.m. ET, One Group or its Designee will notify FIIOC via telephone
and shall then send the Price Information via fax to ▇▇▇-▇▇▇-▇▇▇▇ (primary
fax machine) or ▇▇▇-▇▇▇-▇▇▇▇ (backup fax machine), or other numbers as FIIOC
may designate in writing from time to time, by no later than 7:00 p.m. ET.
(4) Upon receipt of the faxed Price Information, FIIOC shall contact One Group
or its Designee by telephone in order to verbally confirm each individual
Fund price and the relevant pricing date. If One Group or its Designee does
not receive such contact from FIIOC by 7:00 p.m. ET confirming the receipt
of the fax, then One Group or its Designee must call FIIOC by 7:00 p.m. ET.
(5) In the event that a fax machine is unavailable to either One Group or its
Designee or FIIOC prior to 7:00 p.m. ET, One Group or its Designee shall
provide FIIOC with the Price Information via a telephone call, and shall
confirm such information via fax as soon as practicable. FI1OC shall
document the Price Information received by telephone, referencing the One
Group or its Designee employee name, date and time.
(6) In the event that One Group or its Designee does not provide Price
Information to FIIOC in accordance with Steps I through 4 above,
transactions involving the Fund (which may include other Plan investment
options for purposes of participant distributions and exchanges, as
described in section 15(a) of this Agreement) shall be held until it is
administratively feasible to update these transactions in a nightly cycle
following receipt of Price Information from One Group or its Designee. Held
transactions shall then be processed "as-of the original Trade Date.
194
EXHIBIT C
ACTIVITY REPORTING PROCEDURE'S
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The final net purchase or net redemption for each Account as described in
Section 4 shall be provided by FIIOC to Transfer Agent as follows:
(1) FIIOC shall provide the final net activity for each Account to Transfer
Agent, via EDT, by no later than 9:00 a.m. ET each day, regardless of
whether or not activity occurred.
(2) In the event that an EDT cannot be sent, FIIOC shall fax the final net
activity information for Account to Transfer Agent by no later than 9:00
a.m. ET each day, regardless of whether or not activity occurred.
(3) Transfer Agent shall notify FTIOC by 9:15 a.m. ET if the fax has not yet
been received.
(4) In the event that a fax machine is unavailable to either FIIOC or Transfer
Agent, FIIOC shall provide Transfer Agent with the activity information via
a telephone call and shall confirm such information via fax as soon as
practicable. FIIOC shall document the activity information reported,
referencing the Transfer Agent employee name, date and time.
(5) Upon receipt of the fax, Transfer Agent shall notify FIIOC via telephone in
order to confirm receipt of the fax and the legibility of the
information.
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EXHIBIT D
COMPENSATION
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In consideration of the services provided by FIIOC tinder this
Agreement, One Group shall pay to FIIOC an amount equal to 25 basis points
(0.25%) per annum of the average aggregate amount invested in (lie Funds through
the Plans each calendar month (the "Service Fee"). The average aggregate amount
invested through the Plans over a calendar month shall be computed by totaling
daily balances during the month and dividing such total by the actual number of
days in the month.
Fidelity Investments Institutional Services Company, Inc. ("FIIS"), an
affiliate of FIIOC, shall calculate this payment at the end of each calendar
month and shall forward an invoice to One Group, along with such other
supporting data as may be reasonably requested by One Group. One Group shall
make such payment to FIIS via wire transfer within 30 (lays of receipt of the
invoice.
One Group shall pay a portion of the Service Fee equivalent to the
maximum of either 15 Basis Points on assets tinder management or $18.00
(eighteen dollars) per account annually, whichever is greater. Any portion of
the Service Fee in excess of the equivalent of this amount shall be paid by Banc
One Investment Advisors Corporation
196