Exhibit (m)(20)
Participation Agreement dated as of April 1 between ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.,
One Group Dealer Services, Inc. and One Group Mutual Funds.
PARTICIPATION AGREEMENT
Participation Agreement, dated as of April 1, 2002, by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc., a New York corporation ("▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇"), One Group Dealer
Services, Inc., a Delaware corporation ("Service Company"), and One Group Mutual
Funds, a registered multiple-series investment company and Massachusetts
business trust ("Trust"). Service Company and Trust are referred to herein
collectively as "Company."
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney together with its affiliates is offering to its
clients one or more investment advisory, trading, custody and/or retirement
programs pursuant to which such clients will purchase Class A shares of mutual
funds included in such program(s) at net asset value without the imposition of
initial or contingent deferred sales charges (each a "Program" and collectively,
the "Programs");
WHEREAS, Service Company is distributor of Trust, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
Service Company and Trust desire to include shares of certain series of Trust in
one or more Programs (the series of Trust that Service Company, trust and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney from time to time agree will be included in one or more of
the Programs are referred to herein as the "Funds");
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will perform certain services for its clients who
invest in the Funds through one or more of the Programs ("Clients"); and
WHEREAS, Service Company and Trust, on behalf of the shareholders of the Funds
who are participants in the Programs, desire to compensate ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
for providing such services.
NOW, THEREFORE, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Service Company and Trust agree as
follows:
1. Transactions in the Funds
Subject to the terms and conditions of this Agreement, Service Company and Trust
will cause each Fund to make its shares available to be purchased, exchanged or
redeemed by Clients at the net asset value applicable to each order, as
determined in accordance with each Fund's then effective prospectus and
statement of additional information, without the imposition of initial or
contingent deferred sales charges or any other transaction related charges
(e.g., redemption fees, exchange fees and federal funds wire payment fees).
2. Services
A. As the parties may agree from time to time, and subject to the
particular parameters ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney establishes for each
Program, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (either directly or through one or more
of its affiliates or agents) will provide the following services:
(i) Receive Client instructions for the purchase, sale,
exchange and redemption of Fund shares ("Instructions") and
communicate such Instructions, as directed, to the Service
Company, the Fund or the Fund's transfer agent (collectively,
the "Receiving Party") for the purpose of the Receiving Party
inputting and executing orders that correspond to such
Instructions on the books of the Fund, in a time frame and
manner as the parties from time to time agree upon;
(ii) Maintain records for and on behalf of each Client
reflecting Instructions and outstanding balances of Fund
shares owned by the Client;
(iii) Prepare and transmit to Clients confirmations of all
transactions effected pursuant to Instructions;
(iv) Prepare and transmit to Clients periodic consolidated
account statements indicating, with respect to shares of the
Funds and shares of any other mutual funds included in the
Programs ("Other Funds"): the number of shares of each Fund
and each Other Fund owned; purchases, redemptions and
exchanges of Fund shares and shares of Other Funds made by
Clients; and other information as determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney;
(v) Provide Clients with copies of prospectuses, statements of
additional information, proxy materials, periodic and special
shareholder reports and other materials relating to the Funds
(collectively, "Fund Materials"), as may be provided by
Service Company or the Trust to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇;
(vi) Assist with the solicitation of proxies from Clients, as
reasonably requested by Service Company;
(vii) Provide each Fund, each Fund's transfer agent and/or
other parties designated by them with information, on a daily
basis, regarding the sales by state or jurisdiction of
residence of Clients for purposes of the Fund's regulatory
requirements. (Such information shall be provided in a form
mutually agreeable to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney and Service
Company);
(viii) Provide to each Fund's transfer agent and/or other
parties designated by Service Company with such other
information relating to transactions in and holdings of Fund
shares by Clients as the parties agree upon from time to time.
(ix) Respond to Client inquiries regarding, among other
things, share prices, account balances, dividend amounts and
dividend payment dates;
(x) With respect to each Client's ownership of, or
transactions with respect to, any Fund, prepare and file, to
the extent required, with the appropriate federal agencies
information and reports regarding (a) dividends and other
distributions
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made, (b) payments for purchase transactions and amounts
withheld on dividends and other distributions and payments and
(c) gross proceeds of sale transactions;
(xi) Provide each Client with access to one or more ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Financial Consultants who will provide personal
service and attention with respect to the foregoing; and
(xii) Provide such other services relating to Client holdings
and transactions in Funds included in the Programs as from
time to time the parties shall mutually agree.
B. Service Company and Trust agree that, in connection with
transactions in Fund shares made by Clients through ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney (or its affiliates or agents) pursuant to a Program, and except
as otherwise agreed to by the parties, Service Company and each Fund
will follow the operating procedures set forth in Exhibit A to this
Agreement. For purpose of Section 2A(i) above, Service Company and
Trust hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ as agent for the limited
purpose of receiving Instructions from Clients.
C. In providing services hereunder, the parties acknowledge that
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney shall be providing services to and acting solely
for the benefit of Clients. The parties further acknowledge that in
connection with all purchases, sales, exchanges and redemptions of Fund
shares by Clients pursuant to a Program ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall be
acting on an agency basis.
D. Nothing in this Agreement shall impose upon ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney any obligation to include any particular Fund or Funds in any
particular Program. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ reserves the right to
determine, in it's sole discretion, whether any particular Fund will be
made available under one or more of the Programs initially as well as
whether such Fund will continue to be made available under such
Program(s).
3. Delegation by ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ may delegate some or all of its duties under this Agreement
to such other parties which in ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney's sole discretion it deems
to be competent to assume such duties; provided that ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall
be responsible and liable for the acts and conduct of any such delegate to the
same extent as if the acts and conduct had been performed by ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney.
4. No Limitation
The provisions of this Agreement in no way shall limit the authority of Service
Company, Trust or any Fund to take such action as it or they may deem
appropriate or advisable in connection with all matters relating to the
operations of the Funds and/or the sale of Fund shares.
3
5. Fees
A. Service Company and Trust agree to pay ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney or its designated affiliate the fees set forth on Schedule 1.
B. For purposes of calculating the fees described in Schedule 1,
the value of Client assets invested in the Funds shall be determined in
accordance with the then effective prospectus(es) and statement(s) of
additional information of the Funds. Nothing in this Agreement shall
preclude ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ from crediting all or a portion of the
amounts it receives under this Section 5 to Clients in certain Programs
in order to reduce the fees payable by such Clients to ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney in connection with such Programs.
C. If ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Service Company and Trust agree to
revise the fees payable in connection with a Program, Schedule 1 will
be amended and signed by the parties to this Agreement.
6. Records and Reporting
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney will maintain and preserve all records as required by law
in connection with its provision of services under this Agreement. Upon the
reasonable request of Service Company, a Fund or the Fund's transfer agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will provide copies of historical records relating to
Instructions involving the Fund; written communications regarding the Fund to or
from Clients; and other materials relating to the provision of services by
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney under this Agreement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will comply with
reasonable requests for such information and documents made by Service Company,
the Board of Trustees of the Trust, or any governmental body or self-regulatory
organization.
7. Representations; Warranties; and Covenants
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ represents that: (i) this Agreement has
been duly authorized by all necessary corporate action and, when
executed and delivered, shall constitute the legal, valid and binding
obligation of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, enforceable in accordance with its
terms; (ii) the activities of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ contemplated by this
Agreement comply with all provisions of federal and state securities
laws applicable to such activities; (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney has
obtained such registrations and qualifications as are necessary to
permit it to perform its obligations hereunder; (iv) the arrangements
provided for in this Agreement will be disclosed to Clients; (v)
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ is duly registered as a broker-dealer under
Section 15 of the Securities Exchange Act of 1934, as amended, and is a
member of the National Association of Securities Dealers Inc.; and (vi)
all Fund shares in any Program are and will be owned beneficially by
Clients and no Fund shares in any Program are or will be owned
beneficially by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney.
4
B. Each of Service Company and Trust represents that: (i) this
Agreement has been duly authorized by all necessary applicable
corporate or trust action and, when executed and delivered, shall
constitute the legal, valid and binding obligation of Service Company
or Trust, as the case may be, enforceable in accordance with its terms
(ii) shares of the Funds are registered and authorized for sale in
accordance with any and all applicable federal and state securities
laws; (iii) the prospectus and statement of additional information of
each Fund comply in all material respects with any and all applicable
federal and state securities laws; and (iv) the prospectus for each
Fund that is available for purchase through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇'▇
AssetOne Programsm or any other securities trading Program that may be
offered by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney ("SSB Securities Trading Programs")
currently discloses that a transaction charge may be imposed by
broker-dealers who make Fund shares available and, if true, that there
will be no charge if the Fund shares are purchased directly from the
Fund or Service Company.
C. Each of Service Company and Trust covenants and agrees that,
for so long as this Agreement remains in effect, it shall use its best
efforts to cause: (i) shares of the Funds to continue to be registered
and authorized for sale in accordance with all applicable federal and
state securities laws and shall notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ promptly in
the event any Fund's shares cease to be so registered or authorized for
sale; and (ii) the prospectus for each Fund that is available for
purchase through a SSB Securities Trading Program to continue to
contain the disclosure described in Section 7B(iv) above and shall
notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney promptly in the event a prospectus ceases
to contain such disclosure.
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Service Company and Trust each agree to
comply with all provisions of federal and state laws applicable to its
respective activities under this Agreement.
E. Each party hereto agrees to notify the other parties
promptly in the event that it is, for any reason, unable to perform any
of its obligations under this Agreement.
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ covenants and agrees that it will not
make any representations about the Funds except to the extent such
representations: (i) are contained in a Fund's current prospectus,
statement of additional information, as amended or supplemented from
time to time, or sales literature; (ii) are consistent with information
contained in such materials; or (iii) are otherwise authorized by or on
behalf of the Funds.
8. Use of Names
A. Service Company and the Trust hereby authorize ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney to use the names and other identifying marks of Service Company
and each Fund in connection with the marketing of the Programs or the
provision of services under this Agreement by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
Service Company or Trust may withdraw this authorization as to any
particular use of any such name or identifying marks at any time: (i)
upon Service Company's or Trust's reasonable determination that such
use would have a material
5
adverse effect on the reputation or marketing efforts of Service
Company or such Fund; (ii) if Service Company or Trust reasonably
determines that materials using such names and identifying marks are
inaccurate or misleading; or (iii) if ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney is no longer
providing services to Clients as described in Section 2. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney agrees that, at the request of Service Company or Trust, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ shall discuss with Service Company and/or Trust, and
consider in good faith, any standards or specifications relating to
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney's use (or proposed use) hereunder of the names and
other identifying marks of Service Company and/or a Fund.
B. Except as otherwise expressly provided for in this Agreement,
neither Service Company nor Trust shall use any trademark, trade name,
service ▇▇▇▇ or logo of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, or any variation of any
such trademark, trade name, service ▇▇▇▇ or logo, without ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney's prior written consent.
C. Upon request, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall provide Service
Company with copies of all sales literature and other marketing
materials which refer to Service Company, Trust or any Fund.
9. (INTENTIONALLY OMITTED]
10. Non-Solicitation
Each of Service Company and Trust agree, at all times during the term of this
Agreement and thereafter, that it shall not knowingly solicit, directly or
indirectly, any Client to invest in the Funds or in any other investment company
for which Service Company acts as a sponsor, adviser, administrator,
distributor, or other service provider (a "Service Company Fund"); provided,
that this prohibition shall not apply to: (i) the solicitation of any Client
that was an investor in a Fund or in any Service Company Fund prior to the time
it became a participant in a Program; or (ii) to any solicitation that Service
Company or Trust engages in at the request of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney.
11. Confidentiality
A. Each of Service Company and Trust agrees, at all times during
the term of this Agreement and thereafter, that it shall maintain the
confidentiality of, and not disclose to any person, or otherwise make
use of (directly or indirectly), the names and addresses of, or other
information relating to, Clients ("Client Information"), except as
expressly permitted under this Agreement, as may be necessary in the
ordinary course of performing the services and transactions
contemplated by this Agreement, or as may be required by applicable law
or judicial process. Notwithstanding the foregoing, Service Company and
the Trust shall not be prohibited from utilizing for any purpose Client
Information if they can clearly establish that such information was:
(i) known to them prior to this Agreement; (ii) rightfully acquired by
them from third parties whom they reasonably believed were not under an
obligation of confidentiality to ▇▇▇▇▇▇▇ ▇▇▇▇▇
6
Barney; or (iii) independently developed by them without breaching any
provision of this Agreement.
B. Each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and Company acknowledges and
agrees that any and all technical or business information, including
without limitation financial information, business or marketing
strategies or plans or product development, but excluding Client
Information which is covered by paragraph A of this Section 11, which
is disclosed to the other party or is otherwise obtained by such party
or its affiliates or agents during the term of this Agreement (the
"Proprietary Information") constitutes the valuable property of the
other party. Each party agrees that should it come into possession of
Proprietary Information, it will use its best efforts to hold such
information in confidence and shall refrain from using, disclosing or
distributing any such information except: (i) as may be necessary in
the ordinary course of performing the services and transactions
contemplated by this Agreement; (ii) with the written consent of the
other party; or (iii) as required by law or judicial process.
Proprietary Information shall not include information a party to this
Agreement, can clearly establish was: (i) known to the party prior to
this Agreement; (ii) rightfully acquired by the party from third
parties whom the party reasonably believes are not under an obligation
of confidentiality to any other party to this Agreement; (iii) placed
in public domain without fault of the party or its affiliates; or (iv)
independently developed by the party without reference to or reliance
upon Proprietary Information.
12. Provision of Materials
A. Company shall furnish Salomon ▇▇▇▇▇ ▇▇▇▇▇▇, or arrange for the
Funds to furnish Salomon ▇▇▇▇▇ ▇▇▇▇▇▇, at its or their expense, with
current prospectuses and statements of additional information of the
Funds (including any supplements thereto), periodic reports to Fund
shareholders and marketing and other materials relating to the Funds in
such quantities as ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney reasonably requests.
B. Company will directly notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ of any
departure by a Fund portfolio manager as soon after Company's receipt
of notice of an intended departure as is reasonably practicable;
provided, however, that Company agrees, in each such event to give such
direct notification to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney no later than the earlier
of (i) the time at which Company notifies any other similarly situated
third party of the departure; and (ii) the time at which Company makes
a public statement of the departure.
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ employees shall have reasonable access to
the portfolio manager(s) of each Fund for purposes of discussing. Fund
performance and other significant issues.
13. Liability and Indemnification
A. Company acknowledges and agrees that neither ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney nor any other ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Party (as defined
below) is responsible for: (i) any
7
information contained in any prospectus, statement of additional
information, registration statement, annual report, proxy statement, or
item of advertising or marketing material of or relating to any Fund
(except for advertising or marketing materials prepared by ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney); (ii) the registration or qualification of any shares of
any Fund under any federal or applicable state laws; or (iii) the
compliance or failure to comply by any Company Party (as defined
below), with any applicable federal or state law, rule, or regulations
of any self-regulatory organization with jurisdiction over any Company
Party, except to the extent that the failure to so comply by such
Company Party is caused by a ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Party's failure to
comply with any of the foregoing laws, rules, or regulations or its
breach of this Agreement. For purpose of this Agreement, a "Company
Party" shall include Company, its affiliates and the Funds and any of
their respective officers, directors, trustees, employees and agents
and a "▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Party" shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
its affiliates and any of their respective officers, directors,
trustees, employees and agents.
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ acknowledges and agrees that neither
Company nor any other Company Party is responsible for: (i) any
information contained in any advertising or marketing materials
prepared by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, except for information provided by a
Company Party or contained in any Fund prospectus, statement of
additional information, registration statement, annual report, proxy
statement, or item of advertising or marketing material prepared by a
Company Party; or (ii) the compliance or failure to comply by a ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Party with any applicable law, rule, or regulation
governing such ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Party, except to the extent that
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Party's or such agents' failure to comply with
any such law, rule or regulation is caused by the failure of a Company
Party to comply with any applicable law, rule, or regulation or its
breach of this Agreement.
C. Company shall indemnify, defend and protect each ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Party and hold each of them harmless from and against any and
all claims, demands, actions, losses, damages, liabilities, costs,
charges, reasonable counsel fees, and expenses of any nature it or they
incur ("Losses") arising out of or from, with respect to each Fund: (i)
any actions of any Company Party relating to the sale of Fund shares,
including but not limited to any statements or representations
contained in any sales or other material relating to the Funds that
Company Parties provide to a ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Party or any other
statements or representations, written or oral, concerning the Funds
that Company Parties make to a ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Party; (ii) any
material misstatement in omission of a material fact from a Fund's
current prospectus, registration statement, statement of additional
information, annual report or proxy statement or any advertising or
promotional material generated by any Company Party; (iii) any failure
of any Fund or its shares to be properly registered or qualified for
sale and available for sale to the public under any applicable federal
law and regulation or the applicable laws and regulations of any state,
any US territory or the District of Columbia unless Company has
notified ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ in writing that the Fund and its shares
are not qualified for sale in a particular jurisdiction and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ shares of the Fund in such jurisdiction after such
notification; (iv) any material breach by any Company Party of any
8
representation, warranty, covenant or agreement contained in this
Agreement; and (v) the actions of any Company Party relating to the
processing of purchase, exchange and redemption orders and the
servicing of shareholder accounts to the extent such actions constitute
willful misfeasance, bad faith or gross negligence by a Company Party.
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall indemnify, defend and protect each
Company Party, and hold each of them harmless from and against any and
all Losses arising out of or from with respect to each Fund: (i) any
material statements or representations or omissions of material facts
that a ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Party makes concerning the Fund that are
inconsistent with either the Fund's current prospectus, statement of
additional information, periodic reports to shareholders, proxy
statements or any other material any Company Party has provided in
writing to a ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Party; (ii) any sale of shares of the
Fund by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney where the Fund or its shares are not
properly registered or qualified for sale in any state, any US
territory or the District of Columbia after Company has notified
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ in writing that the Fund and its shares are not
qualified for sale in such jurisdiction; (iii) any material breach by
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney of any representation, warranty, covenant, or
agreement contained in this Agreement; and (iv) any actions of a
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Party actions in connection with its performance
of the services described in Section 2 to the extent such actions
constitute willful misfeasance, bad faith or gross negligence by such
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Party.
14. Arbitration
If a dispute arises between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney and Service Company and/or
Trust with respect to this Agreement which the parties are unable to resolve
themselves, it shall be settled by arbitration in accordance with the
then-existing NASD Code of Arbitration Procedure ("NASD Code"). The parties
agree that to the extent permitted by the NASD Code, the arbitrator(s) shall be
selected from the securities industry and the arbitration proceeding shall be
held in New York City.
15. Term and Termination of Agreement
A. This Agreement shall become effective on the date first set
forth above and shall continue in effect until terminated as provided
herein. This Agreement may be terminated by any party hereto at any
time upon at least ninety (90) days' written notice to the other
parties. Notwithstanding the foregoing, this Agreement is terminable:
(i) upon less than ninety (90) days' notice if required by applicable
law, rule, regulation, order or instruction by a court of competent
jurisdiction or a regulatory body or self-regulatory organization with
jurisdiction over the terminating party; and (ii) by any party at any
time by giving 30 days' written notice to the other parties in the
event of a material breach of this Agreement by one or both of such
other parties that is not cured during such 30-day period.
B. After the termination of this Agreement, the fees described in
Schedule 1 will continue to be due under the circumstances described
therein. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
9
agrees that, in the event of termination of this Agreement as provided
in this Section 15, it shall provide Company with such reports and
certificates as the Company may reasonably request as necessary to
determine that the continued payment of fees has been calculated in
accordance with this Agreement.
16. Notices
All notices and other communications hereunder shall be given or made in writing
and shall be delivered personally, or sent by telex, facsimile, express delivery
or registered or certified mail, postage prepaid, return receipt requested, to
the party or parties to whom they are directed at the following addresses, or at
such other addresses as may be designated by notice from such party to all other
parties.
To Company:
One Group Dealer Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
With a copy to:
--------------------
▇▇▇-▇▇▇-▇▇▇▇ (phone)
▇▇▇-▇▇▇-▇▇▇▇(facsimile)
To Trust:
One Group Mutual Funds
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
With a copy to: ▇▇▇ ▇▇▇▇▇
------------------
▇▇▇-▇▇▇-▇▇▇▇ (phone)
▇▇▇-▇▇▇-▇▇▇▇(facsimile)
To ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
--------------------------
New York, New York 100
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
(▇▇▇) ▇▇▇-▇▇▇▇ (phone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
10
Any notice, demand or other communication given in a manner prescribed in this
Section 16 shall be deemed to have been delivered on receipt.
17. Nonexclusivity
Each party to this Agreement acknowledges that either of the other parties
hereto may enter into similar agreements with third parties.
18. Miscellaneous
A. This Agreement represents the entire agreement between the
parties with regard to the matters described herein, and may not be
modified or amended except by written instrument executed by all
parties. This Agreement may not be assigned by any party hereto without
the prior written consent of the other parties. This Agreement is made
and shall be construed under the laws of the State of New York without
giving effect to principles of conflict of laws. This Agreement
supersedes all previous agreements and understandings between the
parties with respect to its subject matter. If any provision of the
Agreement shall be held or made invalid by a statute, rule, regulation,
decision of a tribunal or otherwise, the remainder of the Agreement
shall not be affected thereby. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute
one agreement, and any party hereto may execute this Agreement by
signing any such counterpart.
B. As used in this Agreement an "affiliate" of a party means any
entity or person controlling, controlled by or under common control
with such party.
C. The provisions of Sections 5, 10, 11, 13, 14, 15B, 18 and
Schedule 1 shall survive the termination of this Agreement.
D. All Exhibits and Schedules, as they may be amended from time
to time, are incorporated herein by reference and made part of this
Agreement.
E. The name "One Group Mutual Funds" and "Trustees of the One
Group Mutual Funds" refer respectively to the Trust created and the
Trustees, as trustees but not individually or personally, acting from
time to time under a Declaration of Trust dated May 23, 1985 to which
reference is hereby made and a copy of which is on file at the office
of the Secretary of The Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or
hereafter filed. The obligations of "One Group Mutual Funds" entered
into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, Shareholders
or representatives of the Trust personally, but bind only the assets of
the Trust, and all persons dealing with any series and/or class of
Shares of the Trust must look solely to the assets of the Trust
belonging to such series and/or class for the enforcement of any claims
against the Trust.
11
IN WITNESS HEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC. ONE GROUP DEALER SERVICES, INC.
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: SVP Title: Vice President
ONE GROUP MUTUAL FUNDS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
12
EXHIBIT A
OPERATING PROCEDURES
Except as otherwise indicated, all references to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney in this
Exhibit A shall be deemed to include any affiliate or agent of ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ that is involved in communicating Instructions to the Funds on behalf of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney. All time deadlines set forth below are eastern time.
A. If a Fund does not execute and settle ("process") orders for the purchase
(including reinvestment of dividends and distributions), redemption, exchange
and transfer of its shares ("Orders") through the NSCC Fund/Serve system (the
"NSCC"), the Fund will use its best efforts to provide ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, by
6:30 p.m. Eastern Time ("E.T.") on each business day, with the Fund's closing
net asset value for that day.
B. Any Fund that processes Orders through NSCC will use its best efforts to
execute (and thereby transmit the information to NSCQ by 7 p.m. E.T. on each
business day all Orders that correspond to Instructions (as defined in the
attached Agreement) received by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney before the close of the New
York Stock Exchange on such day and transmitted by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ to NSCC
by 6 p.m. E.T. on such day. If a Fund normally processes Orders through NSCC,
but is unable to meet the 7 p.m. deadline on any business day, it will use its
best efforts to provide ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, by 6:30 p.m. E.T. of such day,
with the Fund's closing net asset value for that day. In cases where ▇▇▇▇▇
▇▇▇▇▇▇ Plan Services (an affiliate of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney) is transmitting
Instructions on behalf of Clients that are retirement plans, the 7:00 p.m. and
6:00 p.m. deadlines set forth above shall be substituted, respectively, with
7:00 a.m. and 3:00 a.m. next business day deadlines (i.e., if ▇▇▇▇▇ ▇▇▇▇▇▇ Plan
Services receives instructions before the close of the NYSE on a business day
and communicates those Instructions to NSCC by 3:00 a.m. the next business day,
the Fund will execute (and transmit the information to NSCQ the orders that
corresponds to the Instructions by 7:00 a.m. on such business day).
C. If a Fund that processes Orders through NSCC receives Instructions from
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney by 9:30 a.m. E.T. on the business day ("T+1") immediately
succeeding the day on which ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ received, before the close of
the New York Stock Exchange on such day, the Instructions from its Client, the
Order that corresponds to the instructions will be executed as of and at the net
asset value of the Fund shares at the close of business on the trade date (i.e.,
"T," which is the date on which ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney received the Instructions
prior to 4:00 p.m. E.T.); with no loss to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇. Each such Order
will be settled on: (i) T+l, if the Fund executes the transaction (and thereby
transmits the information to NSCQ no later than 11:00 a.m. E.T. on T+1; or (ii)
T+2, if the Fund executes the transaction (and thereby transmits the information
to NSCQ after 11:00 a.m. E.T. on T+1.
D. To the extent ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney holds shares of a Fund in street name on
behalf of its Clients in an omnibus account established with the Fund (an
"Omnibus Account"), the Fund will provide ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ with a daily
report setting forth all activity occurring in the Omnibus Account during each
day.
13
E. In the event a Fund that does not process orders through NSCC pays on any day
("Issue Date") a dividend to an Omnibus Account maintained by ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney with the Fund, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ notifies the Fund by 11:00 a.m.
E.T. on the day immediately succeeding the Issue Date that it wishes to reinvest
the dividend, the Fund shall reinvest the dividend as of the Issue Date and at
the net asset value of Fund shares at the close of business on the Issue Date;
with no loss to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney as broker in connection with the
transaction.
F. On a daily basis, each Fund will provide ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ with a report
of any Orders that correspond to Instructions that have been executed by the
Fund but have not settled within the applicable time frames as set forth in this
Exhibit A.
G. On a daily basis, each Fund will notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney if the number of
Fund shares to be redeemed, whether from an Omnibus Account or from an account
established with the Fund in the name of a Client, exceeds the aggregate number
of shares held in such accounts. No Fund will reject a redemption Instruction
(and corresponding redemption order) for this reason without first contacting
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
H. Each Fund will provide ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney with a list of the names, titles
and telephone numbers of the personnel designated and authorized to receive
Instructions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and communicate with ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
regarding corresponding Orders and related matters.
I. No Fund will make any changes to the cusip number of its shares without
giving ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ reasonable prior notice of the proposed change.
J. Each Fund will accept from ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Instructions, which shall
include the standard indemnity contained in instructions of this nature, via
facsimile. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will not provide the Fund with a hard-copy of
such Instructions.
K. For purposes of this Exhibit A, the obligations of the Funds as set forth
herein shall be deemed to be obligations of the Service Company, the Funds'
transfer agent and any other agent or employee acting on behalf of the Funds or
any individual Fund.
L. The parties agree that, in connection with transactions in Fund shares, they
(and their affiliates) shall participate in the NSCC's Fund/SERV system
("Fund/SERV") and the NSCC Networking System in compliance with the rules and
procedures established by the NSCC, including the standard NSCC Networking
Agreement.
14
SCHEDULE 1
FEES
1. Custody and Trading Programs
Service Company and/or the Funds shall pay to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney 0.35% of the
average daily net asset value of all Client assets invested in the Funds
(including assets invested through reinvestment of dividends and distributions)
through a Program, payable quarterly, in arrears. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall
compute the fee for each calendar quarter, which shall be the product of (a) the
average daily net asset value of Client assets invested in the Funds through a
Program during the quarter; (b) the number of days in the quarter; and (c) the
quotient of 0.0035 divided by 365. The fees described in this paragraph 1 shall
survive any termination of the Participation Agreement for so long as ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney continues to provide shareholder services (as described in Section
2A of the Participation Agreement) to such Clients.
The fees described in this Schedule 1 will be payable to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
within 15 days of receipt by Service Company of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney's invoice
for such fees.
This Schedule 1 may be amended from time to time by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
Service Company and Trust executing a revised Schedule 1 and the terms of the
Participation Agreement will otherwise remain in effect.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC. ONE GROUP DEALER SERVICES, INC.
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: SVP Title: Vice President
ONE GROUP MUTUAL FUNDS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Participation Agree.(m)(20)doc
15