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Exhibit (e)(12)
Agency Agreement
dated April 6, 2000
between
Security Trust Company, American General Retirement Services Co.,
One Group Mutual Funds
and
The One Group Services Company
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AGENCY AGREEMENT
This Agreement is made as of the 6th day of April, 2000 between: (1)
Security Trust Company ("Company") and (2) One Group Mutual Funds (the "Trust"),
The One Group Services Company (collectively, "TOGSC").
RECITALS
A. The Trust is (1) an open-end investment company with one or more series
of classes of shares (each such series or class of share a "Fund");
TOGSC is ether (11) an investment adviser to or administrator for the
Funds, (111) the principal underwriter or distributor for the Funds, or
(IV) the transfer agent for the Funds.
B. The Trust wishes to have Company provide to the Trust or on its behalf
certain administrative services with respect to qualified employee
benefit plans (the "Plans") which own shares of such Funds.
C. Company agrees to provide such services on the terms and conditions set
forth herein.
AGREEMENT
THEREFORE, in consideration of the mutual promises set forth herein,
the parties agree as follows:
1. Shareholder Services
A. SHAREHOLDER ACCOUNT SET-UP AND MAINTENANCE - Company shall maintain and
provide adequate facilities and procedures to: (1) establish and
maintain Fund investments on behalf of Plans on the Company transaction
processing and recordkeeping system, and (2) access the Plans current
Fund information including, but not limited to, share balances,
dividend information and transaction history.
B. SHAREHOLDER ASSISTANCE - Company shall make available to the Plans any
information maintained by Company as may be necessary for the Plans to
support and resolve shareholder servicing inquires. Company personnel
will assist the Plans in the investigation of shareholder inquiries
when necessary. Company will support shareholder service inquiries from
the Plans serviced by Company. Company shall not make any statement or
representation concerning a Fund that is not contained in the Trust's
registration statement, annual report or proxy statement or any
advertising or promotional material generated by or on behalf of any
Fund.
C. TRANSACTION PROCESSING AND SETTLEMENT - The Company transaction
processing system shall enable the Plans to purchase, redeem and
exchange shares of Funds available through Company. Company shall
facilitate settlement with each Fund of Plan transactions in such Fund
insofar as such transactions are transmitted by Company on behalf of
the Plans.
The Trust agrees that it shall either: (1) make arrangements for all
transactions processed pursuant to this Agreement to be processed
through the National Securities Clearing Corporation Fund/SERV system,
or (2) obtain proper authority for Company to transmit to the Fund or
its Agent daily manual trades until 4:00 p.m. Eastern Time which trades
shall remain eligible for that day's NAV provided Company received the
order by close of trading that day.
D. SHAREHOLDER ACCOUNT STATEMENT AND DISTRIBUTION - With respect to each
Plan holding Fund investments through Company, Company shall deliver or
cause to be delivered to such Plan periodic statements. Statements will
include transaction detail for the statement period for each Fund in
which shares were purchased, redeemed or exchanged, and a summary of
the number of Fund shares owned and share value thereof as of the
statement date to the extent such value is provided by the Fund.
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E. CONFIRMATION PREPARATION AND DISTRIBUTION - Company shall generate a
written confirmation for each purchase, redemption and exchange
transaction affecting each Shareholder's Fund investments held through
Company to the extend such confirmation is required, and such
confirmation shall be distributed to Shareholders through or on behalf
of Company or Correspondents.
F. PAYMENT OF FUND DISTRIBUTIONS - Company shall distribute to
Shareholders all dividend, capital gain or other payments authorized by
the trust and distributed and received by Company, and such
distributions shall be credited to the Plans in accordance with the
instructions provided by each Plan, including but not limited to
dividend reinvestment into a Fund, or cash payments of distributions.
G. PROSPECTUS FULFILLMENT - Company will provide a prospectus to
prospective shareholders or their agent upon request, provided the
Trust or its agent has provided adequate copies thereof to Company or
its designee.
The Trust acknowledges and agrees that Company is not responsible for
(1) the compliance of any prospectus or supplement thereto, annual
report, proxy statement or item of advertising or marketing material of
or relating to any Fund, which is prepared by the Trust or its agent,
with any applicable laws, rules or regulations, (ii) the registration
or qualification of any shares of any Fund under any federal or
applicable state laws or (iii) the compliance by any Fund or the Trust
or any "affiliated person" (as that term is defined in the rules under
the Investment Company Act of 1940, as amended), with any applicable
federal or state law, rule or regulation or the rules and regulations
of any self regulatory organization with jurisdiction over such Fund,
the Trust or affiliated person.
Company will not make any offer or sale of Fund shares (a) in any state
or jurisdiction in which such shares are not qualified for sale or
exempt from the requirements of the relevant securities laws at any
time after it has been provided with written notice from the Trust that
such Fund is not so qualified or exempt in such state or jurisdiction,
(b) in any state or jurisdiction in which it is not properly licensed
or authorized to make offers or sales, or (c) at any time after it has
been provided with written notice from the Trust that such Fund is not
then currently offering shares to the public.
H. ACCOUNT LEVEL TAX REPORTING - Company shall provide to Shareholders
through Company or Correspondent such reports and information as may be
required by the then-prevailing laws and regulations under the Internal
Revenue Code.
II. Representations and Warranties
A. The Trust and TOGSC each represent and warrant that:
(1) it has the requisite authority to enter into this agreement on
its own behalf and, in the case of the Trust, on behalf of the
Fund(s), and
(2) the payment to Company of any fees pursuant hereto:
(a) has been duly authorized by the Board of Trustees of
the Trust, or any other persons to the extent such
authorization is required to properly make such
payment;
(b) is properly disclosed in the relevant prospectus to
the extent such disclosure may be required, and
(c) is in conformity with all federal, state and industry
laws or regulations to which the Trust or its agents
are subject.
B. Company represents and warrants that:
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(1) it is a corporation duly organized under the state laws of
Arizona.
(2) the execution and delivery of this Agreement and the
performance of the services contemplated herein have been duly
authorized by all necessary corporation action in its part,
and this Agreement constitutes the valid and binding
obligations of Company; and
(3) it is in material conformity with all federal, state and
industry laws or regulations to which it is subject.
C. Each party hereto represents and warrants that it shall provide to the
others such information or documentation necessary for such party to
fulfill its obligations hereunder, such other information or
documentation as any party may reasonably request and that it shall
comply with such operating policies and procedures as the parties may
adopt from time to time.
D. Each party is responsible for its compliance with all applicable laws,
rules and regulations governing its performance under this Agreement,
except to the extent its failure to comply with any law, rule or
regulation is caused by another party's breach of this Agreement.
III. Fees
A. Asset Based Fee
For the services provided by Company hereunder, the Trust or TOGSC
shall pay to Company a fee with respect to each Fund, which fee shall
be based upon a percentage per annum of the average daily value of the
aggregate number of shares of the Fund held by Company for the accounts
of customers of Company and Correspondents. Such fee shall be
calculated and paid in accordance with Exhibit A hereto.
IV. Indemnification
The Trust and TOGSC shall indemnify and hold harmless Company and each
officer, employee and agent of Company from and against any and all
claims, demands, actions, losses, damages, liabilities, or costs,
charges, reasonable counsel fees, and expenses of any nature ("Losses")
arising out of (1) any inaccuracy or omission in any prospectus or
supplement thereto, registration statement, annual report or proxy
statement of any Fund or the Trust or any advertising or promotional
materials generated by any Fund or the Trust, (ii) any breach by the
Trust or TOGSC of any representation, warranty, covenant, or agreement
contained in this Agreement and (iii) any action taken or omitted to be
taken by Company pursuant to this Agreement, except to the extent such
Losses result from Company's breach of this Agreement, willful
misconduct, or negligence.
Company shall indemnify, defend and hold the Trust and TOGSC (including
their officers, directors, employees and agents and any person who
controls either of them) free and harmless from and against any and all
Losses which such persons may incur under the Securities Act of 1933,
as amended, or under common law or otherwise, arising out of or based
upon (1) any breach of any representation, warrant, or covenant made by
Company herein, (ii) any failure by Company to perform its obligations
as set forth herein or, (iii) any action taken or omitted by Company to
the extent that any Losses associated therewith are a result of
Company's breach of this Agreement, willful misconduct or negligence.
V. Confidentiality
Each party acknowledges and understands that any and all technical,
trade secret, or business information, including, without limitation,
financial information, business or marketing strategies or plans,
product development or customer information, which is disclosed to the
other or is otherwise obtained by the other, its affiliates, agent or
representatives during the term of this Agreement (the "Proprietary
Information" - is
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confidential and proprietary, constitutes trades secrets of the owner,
and is of great value and importance to the success of the owner's
business. Each party agrees to use its best efforts (the same being not
less than that employed to protect his own proprietary information) to
safeguard the Proprietary Information and to prevent the unauthorized,
negligent or inadvertent use or disclosure thereof. Neither party shall
without the prior written approval of any officer of the other,
directly or indirectly, disclose the proprietary Information to any
person or business entity except for a limited number of employees,
attorneys, accountants and other advisors of the other on a
need-to-know basis or as may be required by law or regulation. Each
party shall promptly notify the other in writing of any unauthorized,
negligent or inadvertent use or disclosure of proprietary Information.
Each party shall be liable under this Agreement to the other for any
use or disclosure in violation of this Agreement by its employees,
attorneys, accountants or other advisors or agents. This Section V
shall continue in full force and effect notwithstanding the termination
of this Agreement.
V1. Duration and Termination of Agreement
With respect to any Fund, this Agreement shall become effective upon
the date such Fund is identified on Exhibit B, and this Agreement is
approved by the Trust's Board of Trustees if such approval is required,
and shall continue in force for one year, and shall thereafter continue
automatically for successive annual periods unless earlier terminated
and subject to any periodic approval required by the Trust's Board of
Trustees. This Agreement is terminable as to any Fund by any party upon
60 days written notice thereof to the other parities or upon default
hereof provided that such default shall not terminate this Agreement to
the extent that the defaulting party has been notified of such default
by the non-defaulting party and the defaulting party cures such default
within 10 business days of notice of such default.
After the date of termination as to a Fund, no fee will be due with
respect to any shares of such Fund that are first placed or purchased
in Company or Correspondent customer accounts after the date of such
termination. However, notwithstanding any such termination, the Trust
and TOGSC will remain obligated to pay Company the Asset Based Fee as
to each share of such Fund that was considered in the calculation of
such fee as of the date of such termination, for so long as such share
is held in the Company or Correspondent account. This Agreement, or any
provision hereof, shall survive termination to the extent necessary for
each party to perform its obligations with respect to shares for which
the Asset Based Fee continues to be due subsequent to such termination.
Notwithstanding anything to the contrary contained in this Section VI,
this Agreement will terminate automatically with respect to TOGSC in
the event that TOGSC ceases to serve as principal underwriter or
distributor for the Funds pursuant to a termination of its Distribution
Agreement with the Fund; or, with respect to the Trust in the event
that the Fund's plan of distribution, adopted pursuant to Rule 12b-1
under the 1940 Act, or any other plan for the financing of shareholder
servicing activities (the "Plan") which finances such payment
obligation is terminated for whatever reason by the Trust's Board of
Directors. In that connection the Trust's and TOGSC's payment
obligations with respect to fees will cease as of the effective date of
(1) the termination of TOGSC's Distribution Agreement with the Fund or
(ii) the termination of the plan, as the case may be. This paragraph
does not relieve the Trust or TOGSC of the obligation for payment of
past fees due under this Agreement. In die event such payment
obligation shall cease in accordance with clause (i) above, Company may
seek, to receive such payments from any successor distributor that is
appointed by the Funds. In the event such payment obligation shall
cease in accordance with clause (ii) above, the Trust and Company agree
to negotiate in good faith with respect to whether and to what extent
the Trust will continue to make such payments either from a related
party's resources or in reliance upon financing that is provided by a
successor plan.
VII. Miscellaneous
A. CUSTODY - The Trust acknowledges that Fund shares maintained by Company
for Shareholders hereunder are held in custody for the exclusive
benefit of customers of Company or its Correspondents and shall be
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held free of any right, charge, security interest, lien or claim
against Company in favor of the Trust or its agents acting on behalf of
the Trust.
B. TRANSACTION CHARGES - During the term of this Agreement, Company shall
not assess against or collect from its brokerage customers any
transaction fee upon the purchase or redemption of any Fund's shares
that are considered in calculating the fee due pursuant to Section III
hereof.
C. NONEXCLUSIVELY - The Trust acknowledges that Company may perform
services similar to those to be provided under this Agreement to other
investment companies, investment company sponsors, or service providers
to investment companies.
D. FORCE MAJEURE - No party or its affiliates shall be liable to any other
party for any damage, claim or other loss whatsoever caused by
circumstances or events beyond its reasonable control.
E. Notices - All notices and communications required or permitted by this
Agreement shall be in writing and delivered personally or sent by first
class mail unless otherwise agreed. All such notices and other
communications shall be made:
If to the Trust and TOGSC, to:
The One Group Services Company
Attn: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to Company, to:
SECURITY TRUST CO.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ #▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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F. This Agreement and any Exhibits hereto may be amended only upon the
written agreement of the parties.
G. This Agreement may not be transferred or assigned by either the Trust,
TOGSC or Company and shall be construed in accordance with the laws of
the State of Ohio.
H. The names "One Group Mutual Funds" and "Trustees of the One Group"
refer respectively to the business trust created and the Trustees, as
trustees and not individually or personally, acting from time to time
under a Declaration of Trust amended, restated and dated as of February
11, 1993 to which reference is hereby made and 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" entered into
in the name of 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 Fund must look solely to
the assets of the Trust belonging to such Fund for the enforcement of
any claims against the Trust.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ONE GROUP MUTUAL FUNDS
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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THE ONE GROUP SERVICES COMPANY
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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Security Trust Co.
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COMPANY NAME
By: /S/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
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Title: Mgr. Ret Plans
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EXHIBIT A
FEE SCHEDULE
1. Asset Based Fee
(a). For the services provided by Company hereunder, the Trust or
TOGSC shall pay to Company a fee with respect to each Fund,
calculated daily and paid monthly in arrears, equal to .25
percent per annum of the daily market value of the total
number of shares of such Fund held in accounts at Company
(determined by multiplying the number of such shares times the
publicly-reported net asset value of each share), excluding
the value of (i) shares held in a brokerage account prior to
the effective date of the Agreements to the Fund issuing such
shares ("Pre-Participating Assets"), and (ii), shares first
placed or purchased in a brokerage account after the
termination of the Agreement as to the trust issuing such
shares. The total number of shares of all Funds with respect
to which a fee will be due to Fidelity hereunder shall be
referred to in this Exhibit A as "Participating Assets".
(b). Subsequent to each month-end, Company shall send to TOGSC a
statement of the market value of shares of the Fund for which
die fee is calculated for the preceding month, together with a
statement of the amount of such fee.
(c). The Trust or TOGSC shall pay to Company such fee within 30
days after their receipt of such statement. Such payment shall
be by wire transfer or other form acceptable to Company and
shall be separate from payments related to redemption proceeds
and distributions.
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