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Exhibit (H)(2)
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 2nd day of January,
2001, by and between Ohio National Fund, Inc., a corporation organized under the
laws of the State of Maryland (the "Corporation") and Firstar Mutual Fund
Services, LLC, a limited liability company organized under the laws of the State
of Wisconsin ("FMFS").
WHEREAS, the Corporation is an open-end management investment company
which is registered under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Corporation is authorized to create separate series, each
with its own separate investment portfolio;
WHEREAS, FMFS is a limited liability company and, among other things,
is in the business of administering transfer and dividend disbursing agent
functions for the benefit of its customers; and
WHEREAS, the Corporation desires to retain FMFS to provide transfer and
dividend disbursing agent services to each series of the Corporation listed on
Exhibit A attached hereto, (each hereinafter referred to as a "Fund") as may be
amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Corporation and FMFS agree as follows:
1. APPOINTMENT OF TRANSFER AGENT
The Corporation hereby appoints FMFS as Transfer
Agent of the Corporation on the terms and conditions set forth in this
Agreement, and FMFS hereby accepts such appointment and agrees to
perform the services and duties set forth in this Agreement in
consideration of the compensation provided for herein
2. DUTIES AND RESPONSIBILITIES OF FMFS
A. FMFS shall receive daily orders from the Corporation
for the purchase or sale of shares of each Fund.
FMFS shall reimburse the Fund each month for all material
losses resulting from "as of" processing errors for which FMFS is responsible in
accordance with the "as of" processing guidelines set forth in the attached
Exhibit B.
3. COMPENSATION
The Corporation agrees to pay FMFS for the performance of the
duties listed in this Agreement the sum of $2,500 per year for each of
the funds set forth on Exhibit A attached hereto, or as may be added
after the date hereof.
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These fees and reimbursable expenses may be changed from time
to time subject to mutual written agreement between the Corporation and
FMFS.
The Corporation agrees to pay all fees and reimbursable
expenses within ten (10) business days following the receipt of the
billing notice.
Notwithstanding anything to the contrary, amounts owed by the
Corporation to FMFS shall only be paid out of assets and property of
the particular Fund involved.
4. REPRESENTATIONS OF FMFS
FMFS represents and warrants to the Corporation that:
A. It is a limited liability corporation duly organized, existing and in good
standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Securities and Exchange Act of
1934 as amended (the "Exchange Act").
C. It is duly qualified to carry on its business in the State of Wisconsin;
D. It is empowered under applicable laws and by its charter and bylaws to enter
into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it to enter
into and perform this Agreement;
F. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement; and
G. It will comply with all applicable requirements of the Securities Act of
1933, as amended, the Exchange Act, the 1940 Act, and any laws, rules, and
regulations of governmental authorities having jurisdiction.
5. REPRESENTATIONS OF THE CORPORATION
The Corporation represents and warrants to FMFS that:
A. The Corporation is an open-ended diversified investment company under the
1940 Act;
B. The Corporation is a corporation organized, existing, and in good standing
under the laws of Maryland;
C. The Corporation is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform this Agreement;
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D. All necessary proceedings required by the Articles of Incorporation have been
taken to authorize it to enter into and perform this Agreement;
E. The Corporation will comply with all applicable requirements of the
Securities Act, the Exchange Act, the 1940 Act, and any laws, rules and
regulations of governmental authorities having jurisdiction; and
F. A registration statement under the Securities Act has been made effective and
will remain effective, and appropriate state securities law filings, if ever
applicable, will be made, with respect to all shares of the Corporation being
offered for sale.
6. PERFORMANCE OF SERVICE; LIMITATION OF LIABILITY
A. FMFS shall exercise reasonable care in the performance of its duties under
this Agreement. FMFS shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Corporation in connection with matters
to which this Agreement relates, including losses resulting from mechanical
breakdowns or the failure of communication or power supplies beyond FMFS's
control, except a loss arising out of or relating to the FMFS' refusal or
failure to comply with the terms of this Agreement or from bad faith,
negligence, or willful misconduct on its part in the performance of its
duties under this Agreement. Notwithstanding any other provision of this
Agreement, if FMFS has exercised reasonable care in the performance of its
duties under this Agreement, the Corporation shall indemnify and hold
harmless FMFS from and against any and all claims, demands, losses, expenses,
and liabilities (whether with or without basis in fact or law) of any and
every nature (including reasonable attorneys' fees) which FMFS may sustain or
incur or which may be asserted against FMFS by any person arising out of any
action taken or omitted to be taken by it in performing the services
hereunder, except for any and all claims, demands, losses, expenses, and
liabilities arising out of or relating to FMFS's refusal or failure to comply
with the terms of this Agreement or from bad faith, negligence or from
willful misconduct on its part in performance of its duties under this
Agreement, (i) in accordance with the foregoing standards, or (ii) in
reliance upon any written or oral instruction provided to FMFS by any duly
authorized officer of the Corporation, such duly authorized officer to be
included in a list of authorized officers furnished to FMFS and as amended
from time to time and furnished to FMFS in writing by the Secretary or other
appropriate officer of the Corporation.
B. FMFS shall indemnify and hold the Corporation harmless from and against any
and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which the Corporation may sustain or incur or which may be
asserted against the Corporation by any person arising out of any action
taken or omitted to be taken by FMFS as a result of FMFS's refusal or failure
to comply with the terms of this Agreement, its bad faith, negligence, or
willful misconduct.
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In the event of a mechanical breakdown or failure of communication or power
supplies beyond its control, FMFS shall take all reasonable steps to minimize
service interruptions for any period that such interruption continues beyond
FMFS's control. FMFS will make every reasonable effort to restore any lost or
damaged data and correct any errors resulting from such a breakdown at the
expense of FMFS. FMFS agrees that it shall, at all times, have reasonable
contingency plans with appropriate parties, making reasonable provision for
emergency use of electrical data processing equipment to the extent
appropriate equipment is available. Representatives of the Corporation shall
be entitled to inspect FMFS's premises and operating capabilities at any time
during regular business hours of FMFS, upon reasonable notice to FMFS.
Regardless of the above, FMFS reserves the right to reprocess and correct
administrative errors at its own expense.
C. In order that the indemnification provisions contained in this section shall
apply, it is understood that if in any case the indemnitor may be asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the indemnitee will use all reasonable care
to notify the indemnitor promptly concerning any situation which presents or
appears likely to present the probability of a claim for indemnification. The
indemnitor shall have the option to defend the indemnitee against any claim
which may be the subject of this indemnification. In the event that the
indemnitor so elects, it will so notify the indemnitee and thereupon the
indemnitor shall take over complete defense of the claim, and the indemnitee
shall in such situation initiate no further legal or other expenses for which
it shall seek indemnification under this section. The indemnitee shall in no
case confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor's prior written consent.
D. FMFS is hereby expressly put on notice of the limitation of shareholder
liability as set forth in the Corporation's Articles of Incorporation and
agrees that obligations assumed by the Corporation pursuant to this Agreement
shall be limited in all cases to the Corporation and its assets, and if the
liability relates to one or more series, the obligations hereunder shall be
limited to the respective assets of such series. FMFS further agrees that it
shall not seek satisfaction of any such obligation from the shareholder or
any individual shareholder of a series of the Corporation, nor from the
Directors or any individual Director of the Corporation.
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7. PROPRIETARY AND CONFIDENTIAL INFORMATION
FMFS agrees on behalf of itself and its directors, officers,
and employees to treat confidentially and as proprietary information of
the Corporation all records and other information relative to the
Corporation and prior, present, or potential shareholders (and clients
of said shareholders) and not to use such records and information for
any purpose other than the performance of its responsibilities and
duties hereunder, except after prior notification to and approval in
writing by the Corporation, which approval shall not be unreasonably
withheld and may not be withheld where FMFS may be exposed to civil or
criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted authorities,
or when so requested by the Corporation.
Further, FMFS will adhere to the privacy policies adopted by
the Corporation pursuant to Title V of the ▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (the
"Act") as may be modified from time to time. Notwithstanding the
foregoing, FMFS will not share any nonpublic personal information
concerning any of the Corporation's shareholders, or any contract
owners of The Ohio National Life Insurance Company or its affiliates,
to any third party unless specifically directed by the Corporation or
allowed under one of the exceptions noted under the Act.
8. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof
and will continue in effect terminated as hereinafter provided. This
Agreement may be terminated by either party by the delivery to the
other party of ninety (90) days prior written notice of such
termination. However, this Agreement may be amended by mutual written
consent of the parties at any time.
9. RECORDS
FMFS shall keep records relating to the services to be
performed hereunder, in the form and manner, and for such period as it
may deem advisable and is agreeable to the Corporation but not
inconsistent with the rules and regulations of appropriate government
authorities, in particular, Section 31 of the 1940 Act, and the rules
thereunder. FMFS agrees that all such records prepared or maintained by
FMFS relating to the services to be performed by FMFS hereunder are the
property of the Corporation and will be preserved, maintained, and made
available with such section and rules of the 1940 Act and will be
promptly surrendered to the Corporation on and in accordance with its
request.
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10. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of
Wisconsin. However, nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or regulation promulgated by
the Securities and Exchange Commission thereunder.
11. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination, a successor
to any of FMFS's duties or responsibilities hereunder is designated by
the Corporation by written notice to FMFS, FMFS will promptly, upon
such termination and at the expense of the Corporation, transfer to
such successor all relevant books, records, correspondence, and other
data established or maintained by FMFS under this Agreement in a form
reasonably acceptable to the Corporation (if such form differs from the
form in which FMFS has maintained, the Corporation shall pay any
expenses associated with transferring the data to such form), and will
cooperate in the transfer of such duties and responsibilities,
including provision for assistance from FMFS's personnel in the
establishment of books, records, and other data by such successor.
12. NOTICES
Notices of any kind to be given by either party to the other
party shall be in writing and shall be duly given if mailed or
delivered as follows: Notice to FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and notice to the Corporation shall be sent to:
Ohio National Fund, Inc.
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by a duly authorized officer or one or more
counterparts as of the day and year first written above.
OHIO NATIONAL FUND, INC. FIRSTAR MUTUAL FUND SERVICES, LLC
By:______________________________ By: ________________________________
Title: __________________________ Title:______________________________
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TRANSFER AGENT SERVICES
ANNUAL FEE SCHEDULE
EXHIBIT A
Separate Series of Ohio National Fund, Inc.
NAME OF SERIES DATE ADDED
EQUITY PORTFOLIO 2/1/01
MONEY MARKET PORTFOLIO 2/1/01
BOND PORTFOLIO 2/1/01
OMNI PORTFOLIO 2/1/01
CAPITAL APPRECIATION PORTFOLIO 2/1/01
SMALL CAP PORTFOLIO 2/1/01
AGGRESSIVE GROWTH PORTFOLIO 2/1/01
S&P 500 INDEX PORTFOLIO 2/1/01
CORE GROWTH PORTFOLIO 2/1/01
GROWTH & INCOME PORTFOLIO 2/1/01
RELATIVE VALUE PORTFOLIO 2/1/01
HIGH INCOME BOND PORTFOLIO 2/1/01
EQUITY INCOME PORTFOLIO 2/1/01
BLUE CHIP PORTFOLIO 2/1/01
SOCIAL AWARENESS PORTFOLIO 2/1/01
CAPITAL GROWTH PORTFOLIO 2/1/01
NASDAQ-100 INDEX PORTFOLIO 2/1/01
INTERNATIONAL PORTFOLIO 4/1/01
INTERNATIONAL SMALL COMPANY PORTFOLIO 4/1/01
FIRSTAR GROWTH & INCOME PORTFOLIO 2/1/01
STRATEGIC INCOME PORTFOLIO 2/1/01
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EXHIBIT B
FIRSTAR MUTUAL FUND SERVICES, LLC AS OF PROCESSING POLICY
Firstar Mutual Fund Services, LLC (FMFS) will reimburse the Fund(s) for
any net material loss that may exist on the Fund(s) books and for which FMFS is
responsible, at the end of each calendar month. "Net Material Loss" shall be
defined as any remaining loss, after netting losses against any gains, which
impacts a Fund's net asset value per share by 1/2 cent or more. Gains and losses
will be reflected on the Fund's daily share sheet, and the Fund will be
reimbursed for any net material loss on a monthly basis. FMFS will notify the
advisor to the Fund(s) on the daily share sheet of any losses for which the
advisor may be held accountable.