EXHIBIT (H)(25)
PARTICIPATION AGREEMENT
Participation Agreement, dated as of November 27, 2002 by and between
Xxxxxxx Xxxxx Xxxxxx Inc., a New York corporation ("Xxxxxxx Xxxxx Barney"),
Xxxxxxxx Xxxxx & Associates, Inc. ("Company").
WHEREAS, Xxxxxxx Xxxxx 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 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"); and
WHEREAS, Company is sponsor, investment adviser, sub-adviser,
distributor and/or administrator of, and/or otherwise acts as a service provider
to, certain mutual funds, and Xxxxxxx Xxxxx Xxxxxx and Company desire to include
certain of such funds in one or more Programs (the funds that Company and
Xxxxxxx Xxxxx Barney from-time-to-time agree will be included in one or more of
the Programs are referred to herein as the "Funds"); and
WHEREAS, Xxxxxxx Xxxxx Xxxxxx will perform certain services for its
clients who invest in the Funds through one or more of the Programs ("Clients");
and
WHEREAS, Company, on behalf of the shareholders of the Funds who are
participants in the Programs, desires to compensate Xxxxxxx Xxxxx Barney for
providing such services.
NOW, THEREFORE, Xxxxxxx Xxxxx Xxxxxx and Company agree as follows:
1. Transactions in the Funds
Subject to the terms and conditions of this Agreement, Company 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 Xxxxxxx Xxxxx Barney establishes for each Program, Xxxxxxx
Xxxxx Xxxxxx (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 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 finds 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 Xxxxxxx Xxxxx 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 Company or the Fund to Xxxxxxx Xxxxx Xxxxxx;
(vi) Assist with the solicitation of proxies from Clients, as
requested by 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 Xxxxxxx Xxxxx Barney and Company);
(viii) Provide to Company, each Fund, each Fund's transfer
agent and/or other parties designated by them 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 with the appropriate
federal agencies information and reports regarding (a) dividends and other
distributions made, (b) amounts withheld on dividends and other distributions
and payments and (c) gross proceeds of sale transactions;
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(xi) Provide each Client with access to one or more Xxxxxxx
Xxxxx Xxxxxx 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. Company agrees that, in connection with transactions in Fund shares,
made by Clients through Xxxxxxx Xxxxx Barney (or its affiliates or agents)
pursuant to a Program, and except as otherwise agreed to by the parties, Company
and each Fund will follow the operating procedures set forth in Exhibit A to
this Agreement. For the limited purpose of Section 2A(i) above, Company hereby
appoints Xxxxxxx Xxxxx Xxxxxx as agent for the limited purpose of receiving
Instructions from Clients.
C. In providing services hereunder, the parties acknowledge that
Xxxxxxx Xxxxx 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, Xxxxxxx Xxxxx Xxxxxx shall be acting on an agency basis.
D. Nothing in this Agreement shall impose on Xxxxxxx Xxxxx Barney any
obligations to include any particular Fund or Funds available under one or more
Program. Xxxxxxx Xxxxx Xxxxxx reserves the right to determine, in its 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 Xxxxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx Xxxxxx may delegate some or all of its duties under this
Agreement to such other parties which in Xxxxxxx Xxxxx Barney's sole discretion
it deems to be competent to assume such duties; provided that Xxxxxxx Xxxxx
Xxxxxx 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
Xxxxxxx Xxxxx Barney.
4. Delegation by Company
Company may delegate some or all of its duties under this Agreement to
such other parties which in Company's sole discretion it deems to be competent
to assume such duties; provided that Company 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 Company.
5. No Limitation
The provisions of this Agreement in no way shall limit the authority of
Company or any Fund to take such action as it or they may deem appropriate or
advisable in
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connection with all matters relating to the operations of the Funds and/or the
sale of Fund shares.
6. Fees
A. Company agrees to pay Xxxxxxx Xxxxx Xxxxxx or its
designated affiliate (or to cause the Funds to pay Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx
Xxxxxx 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 Xxxxxxx Xxxxx Barney in connection with such Programs.
C. If Xxxxxxx Xxxxx Xxxxxx and Company agree to revise the
fees payable in connection with a Program, Schedule 1 will be amended
accordingly and the terms of this Agreement will otherwise remain in effect.
7. Records and Reporting
Xxxxxxx Xxxxx 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 Company, a Fund or the Fund's transfer agent, Xxxxxxx
Xxxxx Xxxxxx 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 Xxxxxxx
Xxxxx Barney under this Agreement. Xxxxxxx Xxxxx Xxxxxx will comply with
reasonable requests for such information and documents made by Company, the
board of directors or trustees of a Fund, or any governmental body or
self-regulatory organization.
8. Representations, Warranties; and Covenants
X. Xxxxxxx Xxxxx Xxxxxx 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
Xxxxxxx Xxxxx Barney, enforceable in accordance with its terms; (ii) the
activities of Xxxxxxx Xxxxx Xxxxxx contemplated by this Agreement comply with
all provisions of federal and state securities laws applicable to such
activities; (iii) Xxxxxxx Xxxxx 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) Xxxxxxx Xxxxx Xxxxxx is duly registered as a
broker-dealer under Section 15 of the Securities Exchange Act of 1934, as
amended; 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 Xxxxxxx Xxxxx Barney.
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B. Company 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 Company, 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 Xxxxxxx Xxxxx Xxxxxx'x AssetOneSM Program or any
other securities trading Program that may be offered by Xxxxxxx Xxxxx Barney
("SB Securities Trading Programs") currently discloses that a transaction charge
may be imposed by broker-dealers who make Fund shares available and that there
will be no charge if the Fund shares are purchased directly from the Fund.
C. Company 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 any applicable federal and state securities laws and shall notify Xxxxxxx
Xxxxx Xxxxxx 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 SB Securities Trading Program to continue to contain the
disclosure described in Section 7B(iv) above and shall notify Xxxxxxx Xxxxx
Barney promptly in the event a prospectus ceases to contain such disclosure.
X. Xxxxxxx Xxxxx Xxxxxx and Company each agree to comply with
all provisions of federal and state laws applicable to its respective activities
under this Agreement.
X. Xxxxxxx Xxxxx Xxxxxx and Company each agree to notify the
other promptly in the event that it is, for any reason, unable to perform any of
its obligations under this Agreement.
X. Xxxxxxx Xxxxx Xxxxxx 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.
9. Use of Names
A. Company hereby authorizes Xxxxxxx Xxxxx Barney to use the
names and other identifying marks of Company and each Fund in connection with
the marketing of the Programs or the provision of services under this Agreement
by Xxxxxxx Xxxxx Xxxxxx. Company or any Fund may withdraw this authorization as
to any particular use of any such name or identifying marks at any time (i) upon
Company's or the Fund's reasonable determination that such use would have a
material adverse effect on the reputation or marketing efforts of Company or
such Fund; (ii) if Company or the Fund reasonably determines that materials
using such names and identifying marks are inaccurate or misleading; or (iii) if
Xxxxxxx Xxxxx Barney is no longer providing services to Clients as described in
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Section 2. Xxxxxxx Xxxxx Xxxxxx agrees that, at the request of Company or a
Fund, Xxxxxxx Xxxxx Barney shall discuss with Company and/or the Fund, and
consider in good faith, any standards or specifications relating to Xxxxxxx
Xxxxx Xxxxxx'x use (or proposed use) hereunder of the names and other
identifying marks of Company and/or the Fund.
B. Except as otherwise expressly provided for in this
Agreement, neither Company nor any Fund shall use any trademark, trade name,
service xxxx or logo of Xxxxxxx Xxxxx Xxxxxx, or any variation of any such
trademark, trade name, service xxxx or logo, without Xxxxxxx Xxxxx Xxxxxx'x
prior written consent.
C. Upon request, Xxxxxxx Xxxxx Barney shall provide Company
with copies of all sales literature and other marketing materials which refer to
Company or any Fund.
10. No-Solicitation
Company agrees, at all times during the term of this Agreement and
thereafter, that neither it nor any Fund knowingly shall solicit, directly or
indirectly, any Client to invest in the Funds or in any other investment company
for which Company acts as a sponsor, adviser, administrator, distributor, or
other service provider (a "Company Fund"), provided that this prohibition shall
not apply to the solicitation of any Client that was an investor in a Fund or in
any Company Fund prior to the time it became a participant in a Program or to
any solicitation that Company or a Fund engages in at the request of Xxxxxxx
Xxxxx Xxxxxx.
11. Confidentiality
A. Company agrees, at all times during the term of this
Agreement and thereafter, that it and each Fund 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 law or judicial process. Notwithstanding the foregoing, Company and the Funds
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 confidentially to any other
party to this Agreement; or (iii) independently developed by them without
breaching any provision of this Agreement.
B. Each party 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
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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
confidentially 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 or reliance upon Proprietary
Information.
12. Provision of Materials and Fund Information
A. Company shall furnish Salomon Xxxxx Xxxxxx, or arrange for
the Funds to furnish Salomon Xxxxx Xxxxxx, 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 Xxxxxxx Xxxxx
Barney reasonably requests.
B. Company will notify Xxxxxxx Xxxxx Xxxxxx of any departure
by a Fund portfolio manager within 24 hours of Company's receipt of notice of an
intended departure.
X. Xxxxxxx Xxxxx Xxxxxx 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 Xxxxxxx Xxxxx
Barney nor any other Xxxxxxx Xxxxx Xxxxxx Party (as defined below) is
responsible for: (i) any 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 Xxxxxxx Xxxxx Barney); (ii)
any Fund Data provided to Xxxxxxx Xxxxx Xxxxxx; (iii) the registration or
qualification of any shares of any Fund under any federal or applicable state
laws; or (iv) 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 Xxxxxxx Xxxxx Barney 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 "Xxxxxxx Xxxxx Xxxxxx Party" shall include,
Xxxxxxx Xxxxx Barney and its affiliates and any of their respective officers,
directors, trustees, employees and agents.
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X. Xxxxxxx Xxxxx Xxxxxx 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 Xxxxxxx Xxxxx
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
Xxxxxxx Xxxxx Xxxxxx Party with any applicable law, rule, or regulation
governing such Xxxxxxx Xxxxx Barney Party, except to the extent that the Xxxxxxx
Xxxxx Xxxxxx Party's 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 Xxxxxxx
Xxxxx 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 Xxxxxxx Xxxxx Xxxxxx
Party or any other statements or representations, written or oral, concerning
the Funds that Company Parties make to a Xxxxxxx Xxxxx Barney Party; (ii) any
material misstatement in or 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 Fund Data furnished to Xxxxxxx Xxxxx Xxxxxx by
or on behalf of Company or a Fund and any Approved Fund Summary; (iv) 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 Xxxxxxx Xxxxx Barney in
writing that the Fund and its shares are not qualified for sale in a particular
jurisdiction and Xxxxxxx Xxxxx Xxxxxx xxxxx shares of the Fund in such
jurisdiction after such notification; (v) any material breach by any Company
Party of any representation, warranty, covenant, or agreement contained in this
Agreement; and (vi) 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.
X. Xxxxxxx Xxxxx Xxxxxx 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 Xxxxxxx
Xxxxx 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 Xxxxxxx Xxxxx Xxxxxx Party; (ii) any sale of
shares of the Fund by Xxxxxxx Xxxxx Barney where the Fund or its shares were not
properly registered or qualified for sale in any state, any US territory or the
District of Columbia after Company has notified Xxxxxxx Xxxxx Xxxxxx in writing
that the
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Fund and its Shares were not qualified for sale in such jurisdiction; (iii) any
material breach by Xxxxxxx Xxxxx Barney of any representation, warranty,
covenant, or agreement contained in this Agreement; and (iv) any actions of a
Xxxxxxx Xxxxx Xxxxxx Party 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 Xxxxxxx Xxxxx Xxxxxx Party.
14. Arbitration
If a dispute arises between Xxxxxxx Xxxxx Barney and Company 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 either party hereto at any time upon at
least ninety (90) days' written notice. 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 party(ies) in the event of a
material breach of this Agreement by the other party or 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 and payable to Xxxxxxx Xxxxx Xxxxxx under
the circumstances described therein. Xxxxxxx Xxxxx Barney 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.
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To Company's Agent: See Exhibit B
To Xxxxxxx Xxxxx Xxxxxx:
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx, with a copy
to: Xxxxxxx Xxxxx, Esq.
(000) 000-0000 (phone) (000) 000-0000 (facsimile)
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 the other party 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.
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IN WITNESS HEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXXXXX XXXXX BARNEY INC. XXXXXXXX XXXXX & ASSOCIATES, INC.
By: /s/ C. Xxxxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ --------------------------
Name: C. Xxxxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxx
------------------------------ --------------------------
Title: Senior Vice President Title: Vice President
------------------------------ --------------------------
Dated: 12-03-02 Dated: 11-26-02
----------------------------- --------------------------
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EXHIBIT A
OPERATING PROCEDURES
Except as otherwise indicated, all references to Xxxxxxx Xxxxx Barney in this
Exhibit A shall be deemed to include any affiliate or agent of Xxxxxxx Xxxxx
Xxxxxx that is involved in communicating Instructions to the Funds on behalf of
Xxxxxxx Xxxxx Barney. All time deadlines set forth below are eastern time.
A. 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.
B. Each Fund will use its best efforts to fax to Xxxxxxx Xxxxx Xxxxxx each
night by 6:30 p.m. the prices on all of its funds on a formatted sheet
provided by Xxxxxxx Xxxxx Barney. Each Fund also will use its best
efforts to provide prices through the National Securities Clearing
Corporation ("NSCC"), Cusip Profile Service (if the Fund is a
participating in the NSCC).
Except as provided in the following sentence, any Fund that processes
orders through FundSERV will use its best efforts to execute (and
transmit the information to NSCC) by 7:00 p.m. on each business day,
all orders that correspond to Instructions (as defined in the attached
agreement) received by Xxxxxxx Xxxxx Xxxxxx before the close of the New
York Stock Exchange on such day and transmitted by Xxxxxxx Xxxxx Barney
to NSCC by 6:00 p.m. on such day. In cases where Xxxxx Xxxxxx Plan
Services (an affiliate of Xxxxxxx Xxxxx Xxxxxx) 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 Xxxxx Xxxxxx 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 NSCC) the orders that corresponds to the
Instructions by 7:00 a.m. on such business day).
C. If, in connection with one or more transactions, Xxxxxxx Xxxxx Xxxxxx
is not transacting with the Funds through Fund/SERV, Xxxxxxx Xxxxx
Barney will have until 9:00 a.m. EST on T+1 (defined below) to
communicate Instructions to the Funds and 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 Xxxxxxx Xxxxx Xxxxxx received the
Instructions prior to 4:00 p.m.); with no loss to Xxxxxxx Xxxxx Barney
based on a decline in net asset value. Each such order will be settled
on T+1.
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D. If a Fund declares a dividend to one or more omnibus accounts
maintained by Xxxxxxx Xxxxx Xxxxxx with the Fund and Xxxxxxx Xxxxx
Barney notifies the Fund by 11:00 a.m. on the business day immediately
succeeding the day on which the Fund reinvests the dividend into
shareholder accounts ("Reinvestment Date") that it wishes reinvestment,
the Fund shall reinvest the dividend as of the Reinvestment Date at the
net asset value of Fund shares determined at the close of business on
the Reinvestment Date; with no loss to Xxxxxxx Xxxxx Xxxxxx as broker
in connection with the transactions.
E. All trades executed manually (outside of the NSCC) will be settled with
one Fed Fund wire (per each entity (e.g., Xxxxxxx Xxxxx Barney, its
affiliates and agents) communicating Instructions to the Funds) netted
for the family of Funds.
F. On a daily basis, each Fund will provide Xxxxxxx Xxxxx Xxxxxx with a
report of any orders that correspond to Instructions that have been
executed by the Fund but have not settled.
G. On a daily basis, each Fund will notify Xxxxxxx Xxxxx Barney if the
number of fund shares to be redeemed, whether from an onmibus 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 Xxxxxxx Xxxxx Xxxxxx.
H. Each Fund will provide Xxxxxxx Xxxxx Barney with a list of the names,
titles and telephone numbers of the personnel designated and authorized
to receive instructions from Xxxxxxx Xxxxx Xxxxxx and communicate with
Xxxxxxx Xxxxx Barney regarding corresponding orders and related
matters.
I. No Fund will make any changes to the cusip number of its shares without
giving Xxxxxxx Xxxxx Xxxxxx reasonable prior notice of the proposed
change.
J. The parties agree that the Funds and their transfer agent will accept
facsimile Instructions from Xxxxxxx Xxxxx Barney relating to the
purchase, exchange or redemption of Fund shares and the transfer of
Fund shares from one account to another account (i.e., change of
ownership). Xxxxxxx Xxxxx Xxxxxx will not provide the Funds with a hard
copy of such Instructions. Instructions relating to the transfer of
Fund shares from one account to another account shall include the
standard indemnity contained in instructions of this nature.
K. For purposes of this Exhibit A, the obligations of the Funds as set
forth herein shall be deemed to be obligations of the Company, the
Funds' transfer agent and any other agent or employee acting on behalf
of the Funds or any individual Fund.
13
EXHIBIT B
NOTICES
Company's Agent Name: U.S. Bancorp Fund Services, LLC
Address: 000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Contact Person: Xxxxxxx X. XxXxx
(000) 000-0000 (office number)
(000) 000-0000 (facsimile number)
SCHEDULE 1
FEES
I. Trading (Asset One) and Custody Programs
Company and/or the Funds shall pay the following amounts to Xxxxxxx Xxxxx
Xxxxxx:
(i) 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 (other than a retirement
Program), payable quarterly, in arrears. Xxxxxxx Xxxxx Barney 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
(other than a retirement 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 I(i) shall survive any termination of the Participation
Agreement for so long as Xxxxxxx Xxxxx Xxxxxx continues to provide shareholder
services to such Clients (as described in Section 2A of the Participation
Agreement).
The fees described in this Schedule 1 will be payable to Xxxxxxx Xxxxx Barney
within 15 days of receipt by Company of Xxxxxxx Xxxxx Xxxxxx'x invoice for such
fees.
This Schedule 1 may be amended from time to time by Xxxxxxx Xxxxx Barney and
Company executing a revised Schedule 1 and the terms of the Participation
Agreement will otherwise remain in effect.
XXXXXXX XXXXX XXXXXX INC. XXXXXXXX PLUMB & ASSOCIATES, INC.
By: /s/ C. Xxxxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------------- --------------------------
Name: C. Xxxxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxx
---------------------------- --------------------------
Title: Senior Vice President Title: Vice President
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Dated: 12-03-02 Dated: 11-26-02
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