BANC STOCK FINANCIAL SERVICES, INC.
SUB-ADVISORY AGREEMENT
WITH
DIAMOND HILL CAPITAL MANAGEMENT, INC.
THIS SUB-ADVISORY AGREEMENT is made this 23rd day of
February, 2001 (the "Agreement"), by and between Banc
Stock Financial Services, Inc. ("BSFS") an Ohio
corporation, and Diamond Hill Capital Management, Inc.,
an Ohio corporation ("Adviser").
WITNESSETH:
WHEREAS, BSFS, a duly registered broker-dealer and
investment adviser, desires to broaden its investment
advisory products and services offered to its clients
(hereinafter referred to as "Client" or "Clients"); and
WHEREAS, Adviser, a duly registered investment adviser,
desires to provide various investment management and
advisory services to BSFS's Clients.
NOW, THEREFORE, in consideration of the mutual
covenants, representations and warranties hereinafter
set forth and other good and valuable consideration,
the receipt of which is hereby acknowledged, the
parties agree as follows:
I. Investment Management and Advisory Services to be
Performed by Adviser
A. Upon the execution of an advisory agreement by and
between the Client and BSFS, the execution of an
advisory agreement approved in form by BSFS between the
Client and Adviser (collectively referred to herein as
the "Management Agreements") and the enrollment and
funding of a brokerage account by Client with BSFS or
its clearing agent ("Client's Brokerage Account"),
Adviser shall act on behalf of the Client as Client's
investment manager and shall thereby be responsible for
reviewing any or all assets held in the Client's
Brokerage Account periodically and for managing such
assets, including their sale or exchange, the
investment of cash held, the reinvestment of any or all
of the assets held in Client's Brokerage Account and
the disposition of stockholders' rights, warrants, or
other property interests relating to securities held in
the Client's Brokerage Account. The investment
management and advisory services performed by Adviser
for Client shall be conducted in accordance with the
investment objectives of the Client and/or management
styles or strategies selected by the Client as stated
on the Investor Profile/Election Form attached to the
Management Agreements (an illustrative copy of which is
attached as Exhibit A), which may be updated by the
Client from time to time, or upon other reliable,
written information received from the Client by BSFS or
Adviser indicating the Client's investment objectives
and/or strategies. The selection of the Adviser will
not be effective until the Management Agreements have
been executed and funding of the Client's Brokerage
Account has occurred.
B. Subject to any limitations contained in the
Management Agreements and/or in the account agreement
governing the Client's Brokerage Account, Adviser shall
have the sole investment discretion over the Client's
Brokerage Account and may invest in any security,
property interest or asset permitted by law; provided,
however, that at no time may the Adviser recommend to
Client or effectuate a purchase or sale on the Client's
behalf that involves any security issued by BSFS,
Adviser, or any of their affiliates unless otherwise
consented to in writing by the Client and permitted by
applicable law. In making its discretionary investment
decisions for and in behalf of the Client, Adviser
shall periodically review Client's Brokerage Account
and exercise its best judgment consistent with industry
practices when effecting any purchase or sale for and
on behalf of the Client and shall consider the effect
of such purchase or sale upon Client's entire
investment portfolio as it relates to Client's
investment objectives, management styles or strategies
selected and other material investment decision
criteria, including, but not limited to, any potential
tax liability that may result from the proposed
purchase or sale.
C. Adviser shall provide the services contemplated by
this Agreement for all Clients referred to Adviser by
BSFS unless such acceptance creates a conflict of
interest for Adviser or unless Adviser otherwise
objects to such Client based on reasonable and
substantiated grounds (for "Cause"). Adviser shall not
terminate any Management Agreement or cease to provide
investment management or advisory services to any
Client during the term of this Agreement without BSFS's
approval, which approval shall not be unreasonably
withheld. If a Client is declined at the outset for
Cause or if Adviser wishes to terminate a Management
Agreement with a Client for Cause, in addition to any
approval required hereunder, Adviser shall, prior to
advising the Client, promptly provide to BSFS in
writing the reason(s) for such decline or requested
termination, which reason(s) shall be explained with
particularity.
D. The Adviser and Client acknowledge that the fees
assessed to the Client's Brokerage Account will be
based on a wrap fee basis, and shall cover all
investment management, advisory, custodian and
brokerage services rendered by BSFS and its designees,
including, but not limited to, Adviser's services
contemplated by this Agreement. In this regard,
Adviser further acknowledges that in accordance with
Client's Management Agreements and the account
agreement governing Client's Brokerage Account, Adviser
shall use BSFS as the broker-dealer when dealing with
the assets held in Client's Brokerage Account and that
all investment instructions from the Adviser on
Client's behalf will be directed to the trading desk of
BSFS during regular business hours.
E. Adviser will rely upon the information set forth in
the account agreement governing Client's Brokerage
Account, the Client's Management Agreements and
Investor Profile/Election Form, or any attachments or
amendments thereto, and shall comply with all
limitations or qualifications expressed therein, if
any, in rendering its investment management or advisory
services for the benefit of the Client. BSFS will
promptly notify the Adviser of any changes in the
information contained in these documents. Adviser shall
periodically request, in a manner and frequency
consistent with industry standards, updated information
from the Client through BSFS to determine whether
Client's investment objectives or selected management
styles or strategies have materially changed. If there
is a conflict between any information provided by the
Client to BSFS and any information provided directly to
the Adviser by the Client, if any, the Adviser may rely
upon the information provided directly by the Client to
Adviser upon notice to BSFS of such reliance.
F. If any Client is a plan or fund subject to the
Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), the Adviser acknowledges that it is
a fiduciary with respect to the assets held in such
Client's Brokerage Account, and shall adhere to all
applicable laws to which it may be subject when
rendering its investment management or advisory
services to such Client.
II. Compensation
In accordance with the general fee schedule attached as
Exhibit B, which may be changed from time to time upon
written agreement by the parties, BSFS shall pay
Adviser fifty-percent (50%) of the fees calculated in
accordance with Exhibit C and paid to BSFS by each
Client on a quarterly basis. BSFS shall pay Adviser
its portion of fees paid by each Client within thirty
(30) days after the first business day of the calendar
quarter for which fees are assessed, with the exception
of the Initial Period (as defined in Exhibit C) for
which payment will be due within thirty (30) days after
the last business day of such Initial Period. Fees
charged by BSFS to each Client shall be deducted and
paid from the Client's Brokerage Account or, if
applicable, other Client assets or accounts held by or
with BSFS in accordance with Exhibit C.
III. Representations, Warranties and Covenants of
Adviser
Adviser represents, warrants and covenants to BSFS
that:
A. Adviser is currently registered and will remain
registered to the extent required as an investment
adviser under the Investment Advisers Act of 1940, as
amended, and will operate and perform its obligations
under this Agreement in full compliance with all
applicable laws and regulations in all applicable
jurisdictions, including, but not limited to, any
jurisdiction in which a Client resides and from which
Adviser conducts its services, with respect to the
performance of Adviser's obligations under this
Agreement.
B. Adviser shall properly maintain books and records
that may be required under any applicable law, rule or
regulation as it pertains to its investment management
or advisory services contemplated under this Agreement.
C. Adviser, at its sole cost and expense, shall make
available to BSFS a sufficient quantity of
marketing/promotional materials and required legal
disclosures, including, but not limited to, Adviser's
Form ADV, reasonably necessary for BSFS to successfully
promote Adviser's services through BSFS as contemplated
by this Agreement.
D. Adviser shall allow personnel of BSFS and other
regulatory organizations to which BSFS is subject to
have reasonable access upon written notice to inspect
the books and records pertaining to the services
performed under this Agreement by Adviser.
E. Adviser shall ensure that only qualified personnel
are involved in making investment management decision
affecting Client assets. Adviser shall promptly notify
BSFS of any material change in Adviser's personnel who
have charge over any recommendations or actual
investment decisions that would have a material impact
on the management of Client's assets.
F. Any complaints received directly from a Client to
Adviser shall be redirected to BSFS for review and
coordinated resolution.
G. Adviser shall not communicate or attempt to
communicate directly with a Client without the
participation of BSFS; provided that BSFS does agree to
permit Adviser to send new Clients a standard
introductory "thank you" letter that has been approved
by BSFS upon the execution of a Management Agreement
between a Client and the Adviser.
H. If any Client is a plan or fund subject to ERISA,
and is a "named fiduciary," as such term is defined in
ERISA, and desires to appoint the Adviser as an
"investment manager," as such term is defined in ERISA,
with respect to the assets of such plan or fund, the
Adviser will accept such appointment, in writing.
I. Adviser shall furnish investment management reports
quarterly to BSFS and the Client. These reports will be
mailed to BSFS and the Client by the tenth (10th)
business day following the end of each calendar
quarter.
J. Adviser shall promptly notify BSFS of any material
change in Adviser's Form ADV, any administrative or
civil action, or any regulatory investigation that may
have a materially adverse affect on Adviser's ability
to perform under this Agreement.
K. There is no litigation or governmental proceeding or
investigation pending or threatened against Adviser or
any of its affiliates or against any officer or
investment professional, nor has there occurred any
event or does there exist any condition on the basis of
which any such litigation, proceeding or investigation
might properly be instituted which may hinder Adviser's
ability to enter into this Agreement.
L. Adviser has all requisite authority, in conformity
with all applicable laws and regulations, to enter into
and perform the services contemplated by this
Agreement.
M. This Agreement has been duly authorized, executed
and delivered by Adviser and constitutes the legal,
valid and binding obligations of Adviser.
Adviser will notify BSFS in writing within ten days if
any representation or warranty in this Section III
ceases to be true at any time.
IV. Representations, Warranties and Covenants of
Synovus
BSFS represents, warrants and covenants to Adviser
that:
A. BSFS is and shall remain registered as a
broker-dealer under the Securities Exchange Act of
1934, as amended, is a member of the National
Association of Securities Dealers (NASD) and the
Securities Investor Protection Corp. (SIPC), and will
operate, manage and maintain all Client Brokerage
Accounts in compliance with all applicable laws, rules
and regulations.
B. BSFS is and shall remain registered as an investment
adviser under the Investment Advisers Act of 1940, as
amended, and only qualified personnel of BSFS shall
advise Clients concerning Adviser's services offered
through BSFS and/or assist Clients in completing
Management Agreements and any attachments thereto.
C. Either directly or through its clearing affiliate,
BSFS shall be responsible for providing Clients and
Adviser periodic brokerage account statements and other
periodic mailings required by federal or state law for
each Client Brokerage Account. BSFS (or its clearing
affiliate) shall provide Adviser, through electronic
interface or other acceptable medium, a daily download
of account and position information for each Client's
Brokerage Account. The information provided, any
interface or other medium created and all other
applications associated with such download shall remain
the property of BSFS (or its clearing affiliate).
D. BSFS shall promptly notify Adviser of any material
change in its Form ADV, any administrative or civil
action, or any regulatory investigation that may have a
materially adverse affect on BSFS's ability to perform
under this Agreement.
E. BSFS shall promptly notify Adviser in writing of any
Client complaint received in connection with the
services rendered by Adviser pursuant to this
Agreement.
F. There is no litigation or governmental proceeding or
investigation pending or threatened against BSFS or any
of its affiliates or against any officer or investment
professional, nor has there occurred any event or does
there exist any condition on the basis of which any
such litigation, proceeding or investigation might
properly be instituted which may hinder BSFSs' ability
to enter into this Agreement.
G. This Agreement has been duly authorized, executed
and delivered by BSFS and constitutes the legal, valid
and binding obligations of BSFS.
BSFS will notify Adviser in writing within ten days if
any representation or warranty in this Section IV
ceases to be true at any time.
V. Marketing Material
A. BSFS shall be responsible for coordinating any
promotion of Adviser's services through BSFS, and may
use Adviser's name in any marketing/promotional
material created by BSFS, whether or not created on a
collaborative basis with Adviser, provided that Adviser
is given a reasonable time to review and approve, in
writing, such marketing/promotional material prior to
its use, which approval shall not be unreasonably
withheld. Notwithstanding the generality of Section
III(C) of this Agreement, in the event that any
marketing/promotion material created by BSFS includes
any promotion of both BSFS and Adviser, excluding
free-standing insert materials, the expense of creating
such marketing/promotional material shall be born
equally by both parties.
B. Adviser shall not be permitted to use any name,
service ▇▇▇▇ or trademark of BSFS or its affiliates in
any marketing/promotional material without the express,
written approval of BSFS, which approval shall not be
unreasonably withheld.
VI. Nonexclusivity of Adviser's Services
Adviser's services hereunder are not deemed to be
exclusive and it shall be free to render investment
management or advisory services to other clients. On
occasions when the Adviser deems the purchase or sale
of a security to be in the best interest of Clients'
accounts, as well as other clients of the Adviser,
Adviser shall act in a manner that is fair and
equitable to all clients and consistent with its
fiduciary obligations. However, nothing in this
Agreement shall impose upon the Adviser any obligation
to purchase or sell for any Client account that which
it may purchase or sell for its other advisory
accounts.
VII. Liability and Indemnification
A. Adviser's Indemnification. Except to the extent
prohibited or limited by law, Adviser shall defend,
indemnify and hold harmless BSFS (and each person or
entity which controls BSFS within the meaning of
Section 20(a) of the Exchange Act or Section 15 of the
Securities Act of 1933, as amended, (the "Securities
Act"), its respective directors, officers, agents and
employees from and against any and all losses, claims,
damages, liabilities, actions, costs or expenses,
including reasonable attorneys' fees incurred by it in
connection with investigating any claim made against it
and defending any action (collectively "Losses"), in
addition to any amount paid in settlement or
compromise, provided Adviser shall give its prior
written approval of such settlement or compromise, for
which BSFS may become liable and which arise out of or
are based upon: (i) any negligence, gross negligence,
recklessness or willful or intentional misconduct of,
or violation of any law by, Adviser or any of its
employees or agents arising from or out of the services
to be rendered by Adviser under this Agreement; (ii)
the failure of Adviser to maintain all necessary
licenses or membership requirements mandated by
applicable laws, rules or regulations required under
this Agreement; (iii) any violation or alleged
violation of applicable laws, rules or regulations by
Adviser, its officers, agents or employees arising out
of the services contemplated under this Agreement; or
(iv) any breach, default or violation of, under or with
respect to any of Adviser's duties, obligations,
representations, warranties or covenants contained in
this Agreement. To avoid any uncertainty, this
indemnity provision shall require Adviser to indemnify
BSFS for any Loss arising from or out of any
transaction directed by Adviser and effected through
Client's Brokerage Account that is erroneous,
incomplete or otherwise improperly communicated in any
way to BSFS. The purpose of the immediately foregoing
sentence is for illustrative purposes only and shall
not be construed to limit BSFS' indemnification rights
provided hereunder.
B. BSFS Indemnification. Except to the extent
prohibited or limited by law, BSFS shall defend,
indemnify and hold harmless Adviser (and each person or
entity which controls Adviser within the meaning of
Section 20(a) of the Exchange Act, or Section 15 of the
Securities Act), its directors, officers, agents and
employees from and against any Losses, in addition to
any amount paid in settlement or compromise, provided
BSFS shall give its prior written approval for such
settlement or compromise, for which Adviser may become
liable and which arise out or are based upon: (i) any
negligence, gross negligence, recklessness or willful
or intentional misconduct of, or violation of any law
by, BSFS or any of its employees or agents arising from
or out of the services to be rendered by BSFS under
this Agreement; (ii) the failure of BSFS to maintain
all necessary licenses or membership requirements
mandated by applicable laws, rules or regulations
required under this Agreement; (iii) any violation or
alleged violation of applicable laws, rules or
regulations by BSFS, its officers, agents or employees
arising out of the services contemplated under this
Agreement; or (iv) any breach, default or violation of,
under or with respect to any of BSFS' duties,
obligations, representations, warranties or covenants
contained in this Agreement.
C. Procedure. If any claim is made or lawsuit,
proceeding or enforcement action is filed (collectively
"Claims" and each a "Claim") against any party entitled
to the benefit of indemnity hereunder, written notice
thereof shall be given to the indemnifying party as
promptly as practicable (and in any event within twenty
(20) days after receipt of the Claim or the service of
the citation or summons by the indemnified party);
provided, that the failure of any indemnified party to
give timely notice shall not affect rights to
indemnification hereunder except to the extent that the
indemnifying party demonstrates actual damage caused by
such failure. The indemnifying party shall be
entitled, if it so selects, to take control of defense
and investigation of such Claim, and to employ and
engage attorneys of its own choice who are reasonably
acceptable to the indemnified party to handle and
defend the same, at the indemnifying party's cost, risk
and expense. The indemnifying party shall notify the
indemnified party in writing of its election to defend
in good faith any such Claim as soon as it is
practicable, but in no event more than fifteen (15)
days after receipt of written notice thereof by the
indemnifying party from the indemnified party. The
indemnifying party shall have the right to settle or
compromise any such Claim without the consent of the
indemnified party at any time utilizing its own funds
to do so, if in connection with such settlement or
compromise the indemnified party is fully released by
third party and is paid any indemnification amounts due
hereunder. If the indemnifying party fails, or does
not elect, to assume the defense of such Claim within
fifteen (15) days after receipt of notice pursuant to
this Section, the indemnified party will (upon
delivering notice to such effect to the indemnifying
party) have the right to undertake, at the indemnified
party's cost and expense, the defense, compromise or
settlement of such Claim on behalf of, for the account,
and at the risk of the indemnifying party; provided,
however, that such Claim shall not be compromised or
settled without the written consent of the indemnifying
party, which consent shall not be unreasonably
withheld. In the event the indemnified party assumes
defense of the Claim, the indemnified party will keep
the indemnifying party reasonably informed of progress
of any such defense, compromise of settlement. The
indemnifying party shall be liable for any settlement
of any Claim effected pursuant to and in accordance
with this Section and or any final judgment or
assessment (subject to any right of appeal), and the
indemnifying party agrees to indemnify and hold
harmless the indemnified party from and against any
damages by reason of such settlement or judgment
(subject to the limitations contained herein).
D. The indemnified party shall cooperate in all
reasonable respects with the indemnifying party and its
attorneys in any investigation, trial and defense
relating to a Claim and any appeal arising therefrom;
provided, however, that the indemnified party may, at
its own cost, participate in the investigation, trial
and defense of such claim and any appeal arising
therefrom.
E. The rights of the parties to indemnification
provided for in this Section VII shall survive the
termination of this Agreement.
VIII. Arbitration
Any dispute or controversy that may arise between BSFS
and the Adviser concerning this Agreement, or any
transaction under this Agreement, shall be submitted to
arbitration under the rules of the National Association
of Securities Dealers (NASD). An arbitration award
under the rules of the NASD shall be final and judgment
upon the award rendered may be entered in any court,
state or federal, having jurisdiction. Notwithstanding
the generality of the foregoing, this section does not
limit the rights of either party in seeking injunctive
relief or exercising lawfully permitted self-help
rights or remedies prior to or during any arbitration
proceedings solely for the purposes of aiding or
preserving a party's legal right that is to be or is
being decided by arbitration. Arbitration expenses
shall be born equally by the parties, provided however,
that if the deciding arbitrator(s) finds that a party
has willfully, maliciously or intentionally breached
this Agreement, that the non-breaching party shall be
entitled to recover its arbitration expenses incurred
and its corresponding attorneys' fees. However, in no
event, shall the deciding arbitrator(s) award any party
punitive damages.
IX. Termination of Agreement
A. Upon thirty (30) days prior written notice, either
party may terminate this Agreement at any time for any
reason, in its entirety. Any termination notice sent to
a party shall be sent first-class mail or by other
reliable courier to the party's last known address, and
shall specifying with particularity the reason(s) for
such termination. If the specified reason for
termination of this Agreement is due to an alleged
material default of any provision of this Agreement,
the notified party shall first have the right to cure
such alleged default within thirty (30) days after the
written termination notice is given to the notified
party allegedly committing such default. Termination
will automatically become effective after thirty (30)
days from the date of receipt of the termination notice
by the notified party unless the notified party has
provided reasonable assurances to the satisfaction of
other party that any alleged material default has been
cured. The parties agree to inform each other promptly
in the event of a change in the name or address to
which any termination notification must be sent.
B. Regardless of the manner in which this Agreement is
terminated, whether under this Section IX or otherwise,
Sections II, VII, VIII, XIV, XV and XVI shall survive
the termination of this Agreement unless otherwise
agreed to in writing by the parties.
C. The application and affect of this Agreement will be
terminated with respect to any Client, upon either (i)
the termination of this Agreement under this Section IX
or otherwise, or (ii) the termination of any Management
Agreement entered into with the Client.
X. Non-Assignability
Neither party shall assign this Agreement without the
express written consent by the non-assigning party and,
if required by law, the Clients affected by such
requested assignment.
XI. Waiver
The waiver by either party of the breach of any
provision of this Agreement by the other party shall
not operate or be construed as a waiver of any
subsequent breach.
XII. Entire Agreement
This Agreement, and any schedules or exhibits attached
hereto, represents the entire Agreement between the
parties and may not be modified or amended except in a
writing signed by both parties.
XIII. Relationship of the Parties
Neither this Agreement nor any activity hereunder is
intended to be and shall not be treated as a general or
limited partnership, association, or joint venture.
Neither BSFS nor Adviser shall hold itself out as an
agent of the other or any of the subsidiaries or
companies controlled directly by or affiliated with the
other.
XIV. Enforceability
If any provision or condition of this Agreement is held
to be invalid or unenforceable by any court, or
regulatory or self-regulatory agency or body, such
invalidity or enforceability shall attach to such
provision or condition and the remaining provisions
shall not be affected.
XV. Limitation of Liability
Neither party shall be liable to the other for special,
indirect or consequential damages arising out of any
breach of its obligations under this Agreement other
than the obligation to indemnify set forth in Section
12 of this Agreement. The remedies provided herein are
exclusive and shall survive the termination of this
Agreement.
XVI. Governing Law
Except as provided by Section VIII, this Agreement and
its enforcement shall be construed in accordance with
and governed by the laws of the State of Georgia
without giving effect to any choice of law doctrine or
statute.
XVII. Good Faith, Cooperation and Due Diligence
The parties hereto covenant, warrant and represent to
each other good faith, complete cooperation, due
diligence and honesty in fact in the performance of all
obligations of the parties pursuant to this Agreement.
DIAMOND HILL CAPITAL MANAGEMENT, INC.
By:
Name:
Title:
Address for all notices: Diamond Hill Capital
Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BANC STOCK FINANCIAL SERVICES, INC.
By:
Name:
Title:
Address for all notices: Banc Stock Financial
Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT B:
FEE SCHEDULE
General Fee Schedule
The Client will compensate Banc Stock Financial
Services, Inc. by payment of an annual asset-based fee,
payable quarterly. The fee schedule currently in
effect is as follows:
Eligible Asset Range (Average Daily Balance) Annual Rate
On the first $500,000 2.00% of Eligible Assets*
On the next $500,000 1.60% of Eligible Assets*
Assets above $1,000,000 1.20% of Eligible Assets*
* Minimum Fee: $5,000 annually.
Fees charged to each Client will include all
management, custodial, and brokerage related expenses
to the extent the Client designates BSFS to act as its
custodian and broker-dealer. Otherwise, additional
fees may be charged to the Client for third party
custodial and brokerage services on a periodic or
transactional basis. Adviser shall not be entitled to
receive or be credited for any portion of the
additional fees charged to Client as a result of third
party custodial or brokerage services rendered on
behalf of the Client.
EXHIBIT C:
FEE CALCULATION
Fees charged to each Client will be based on the
average daily balance ("ADB") held in the Client's
Brokerage Account. The ADB is calculated as follows:
* The average of all the daily balances, based on
settlement date, from the prior billing cycle. This
figure is used to ▇▇▇▇ forward for the number of
calendar days in the next billing cycle. For a
prorated billing cycle, this figure also is used to
▇▇▇▇ in arrears for the number of calendar days the
account has been open;
* Does not count accounts with a debit balance or zero
balance;
* Does not count days with a zero balance within an
otherwise funded period for an account;
* Will include annuities that are cross-referenced at
the clearing firm using the clearing firm's posting
service;
* Margin account fee calculations are based on the
margin debt, plus the market value; and
* Does not include unpriced securities.
The ADB, as previously described, is multiplied by the
applicable rate to calculate the annual fee. The
annual fee is then divided by the number of calendar
days in the year and multiplied by the number of
calendar days in the appropriate billing cycle. Except
for the initial billing cycle, which begins with the
date that the Client enrolls in the account and ends
with the last calendar day of the initial calendar
quarter in which enrollment occurs (the "Initial
Period"), a billing cycle shall begin on the first day
of a calendar quarter and end on the last day of the
same calendar quarter.
When the Client enrolls in this account during the
first or second month of any calendar quarter, the
initial fee will be prorated for the number of calendar
days the account was open for billing in its initial
month. A second fee will reflect charges for the
remaining month(s) in the Initial Period. The first
full quarter is charged on the 15th of the first month
of the calendar quarter following the end of the
Initial Period. Going forward, all quarterly fees will
be charged in advance on the 15th of the first month of
each subsequent calendar quarter after the Initial
Period. The annual fee and the fee paid for any Initial
Period shall be referred to in this Agreement as "the
Fee" subject to any exclusions noted in Exhibit B.
The Client will pay Banc Stock Financial Services, Inc.
any Fee first from any free credit balance in the
Client's Brokerage Account, next from the liquidation
or withdrawal by BSFS of the Client's shares of any
money market funds or balances in any money market
deposit account, next from a bank deposit account as
notated, if applicable, and finally, from the
liquidation of any other securities in any Client
account(s).
A Client Brokerage Account that closes during the first
14 business days of a billing cycle will be charged a
reduced fee covering only the days that the Client
Brokerage Account was active. A Client Brokerage
Account that closes between the 15th business day and
the end of the billing cycle will be rebated the
partial fee for the days that the Client Brokerage
Account was not active under the billing system. The
rebate will be posted to the Client Brokerage Account
the day following the date on which the Client
Brokerage Account was marked as closed.
