Exhibit (h)(34)
ADMINISTRATIVE SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 20th day of September 2001 by
and between BenefitsCorp Equities, Inc. ("BCE"), a Delaware corporation having
its principal office and place of business at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxx, 00000, Westcore Trust (the "Company" or the "Trust"), a registered
investment company and Denver Investment Advisors LLC (the "Adviser"), a
Colorado limited liability corporation having its principal office and place of
business at 0000 00xx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxx 00000.
WHEREAS, the Adviser, an investment adviser registered under the Investment
Advisers Act of 1940, as amended, has an agreement to provide investment
management services to open-end investment companies registered under the
Investment Company Act of 1940, as amended (the "1940 Act") (collectively or as
applicable, the "Fund"), and each separate series of a Fund (the "Portfolios");
and
WHEREAS, it is contemplated that qualified employee benefit or retirement
plans, nonqualified employee benefit plans and other account holders ("Account
Holders") will invest their assets in the Fund or its Portfolios; and
WHEREAS, BCE, a registered broker/dealer and member of the National
Association of Securities Dealers, ("NASD"), or its affiliated third party
administrator, has contractually agreed to provide recordkeeping and other
administrative services to such Account Holders, which requires (among other
things) plan participant recordkeeping services, client services and
communication services; and
WHEREAS, BCE desires to provide the Fund administrative/recordkeeping
services specified herein with respect to Account Holders which have allocated
assets to the Portfolios (the "Services"); and
NOW THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties agree as follows:
ARTICLE 1. TERMS OF APPOINTMENT
SECTION 1.1. Subject to the terms and conditions set forth in this
Agreement, and any Exhibits attached hereto, BCE agrees to perform the Services
contemplated by this Agreement solely with respect to Account Holders which may
from time to time purchase or sell Portfolio shares in accordance with the
Company's prospectus and SAI as in effect from time to time.
SECTION 1.2. The parties hereto agree that the Services are shareholder
administrative/recordkeeping services but are not investment advisory services.
SECTION 1.3. BCE agrees that it shall maintain and preserve all records
required by this Agreement to be maintained and preserved in connection with
providing the Services, and shall otherwise comply with all laws, rules and
regulations applicable to the Services. Upon written request of the Fund or the
Adviser, BCE agrees to provide copies of: all historical records relating to
Account Holder transactions, any data relating to written communication
regarding the Fund or its Portfolios to or from the Account Holders, and any
other materials, as may reasonably be requested to enable the Fund or the
Adviser and its representatives and agents to monitor and review the Services,
or to comply with any request of the board of trustees (collectively, the
"Directors") of the Fund or of a governmental body, self-regulatory organization
or a shareholder. Such copies will be provided at the expense of the Adviser.
BCE agrees that it shall permit the Fund or the Adviser and its representatives
and agents, upon 72 hours prior notice and during regular business hours, to
have reasonable access to BCE's personnel and records to monitor the performance
of the Services.
SECTION 1.4. The provisions of this Agreement shall in no way limit the
authority of the Fund to take such action as it may deem appropriate or
advisable in connection with all matters relating to the operations of the Fund
and/or the sale of the Fund's or its Portfolios' shares.
SECTION 1.5. The parties hereto agree that: the Services provided by BCE
are not in the capacity of a sub-transfer agent for the Adviser or the Fund as
that term is defined pursuant to Rule 17A et. seq. of the 1934 Act; the Fund and
the Adviser will not list BCE as a sub-transfer agent on any required filings
made by its transfer agent or in any Fund prospectus; and BCE shall not be
responsible for filing any reports with respect to information that pertains to
the Fund.
SECTION 1.6. In no event shall BCE be required or authorized to countersign
any securities, monitor the issuance of securities with a view to preventing
unauthorized issuance, register the transfer of any securities, exchange or
convert any securities or transfer record ownership of such securities by book
entry or otherwise, except as stated herein.
SECTION 1.7. The Fund and BCE agree that each intends to clear trades
through, and make use of, the National Securities Clearing Corporation's Defined
Contribution Clearing & Settlement Service or FundSERV (collectively the
"NSCC"). Therefore, effective at such time as both parties are operating under
the NSCC, all information shall be passed through the NSCC. This Agreement shall
incorporate by reference the terms and responsibilities of any existing trading
agreement entered into between BCE and the Fund or its designee.
ARTICLE 2. FEES AND EXPENSES
SECTION 2.1. For performance of the Services by BCE, or its affiliates, on
behalf of the Account Holders, the Adviser agrees to pay BCE an annual asset
based maintenance fee for the services provided herein, as set out in the fee
schedule attached hereto as Exhibit A. The parties agree that the Funds are not
obligated to pay fees hereunder.
SECTION 2.2. The Adviser agrees to pay all fees within ten (10) business
days following the receipt of a statement from BCE showing the accurate
calculation of the fee.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF BCE
SECTION 3.1. BCE represents and warrants to the Adviser that:
(a) BCE is a corporation duly organized and existing and in good standing
under the laws of the state of Delaware.
(b) BCE is duly qualified and has all requisite licenses and authority to
carry on its business in Delaware and in all other jurisdictions in
which it conducts business; and it is a member in good standing of the
NASD.
(c) BCE is authorized to enter into and perform this Agreement, and the
performance of its obligations hereunder will not violate or conflict
with any governing documents or agreements of BCE or any applicable
law, rule, or regulation.
(d) BCE has and will continue to have access to the necessary facilities,
equipment and personnel to perform the Services in accordance with the
best industry practice.
(e) BCE shall promptly notify the Adviser in the event that it is, for any
reason, unable to perform any of its obligations under this Agreement
or there is a material failure to comply with the representations made
herein.
(f) BCE will process orders for the purchase of Fund shares only on behalf
of customers residing in jurisdictions wherein the shares are
registered or qualified for sale.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE ADVISER AND THE FUND
SECTION 4.1. The Adviser represents and warrants to BCE that:
(a) The Adviser is a limited liability company duly organized and existing
and in good standing under the laws of the State of Colorado. The Fund
is a Trust duly organized and existing and in good standing under the
laws of the Commonwealth of Massachusetts. The Portfolios are series
of the Fund registered under the Investment Company Act of 1940 and
shares sold by the Fund are, and will be, registered under the
Securities Act of 1933.
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(b) The Adviser, on its own behalf, is duly authorized by all necessary
action, approval or authorization to enter into this Agreement and the
performance of its obligations hereunder will not violate or conflict
with any governing documents or agreements or any applicable law,
rule, or regulation.
(c) The Company, on its own behalf, is duly authorized by all necessary
action, approval or authorization to enter into this Agreement and the
performance of its obligations hereunder will not violate or conflict
with any governing documents or agreements or any applicable law, rule
or regulation.
(d) The Adviser and the Fund are duly organized, validly existing, and in
good standing under the laws of the jurisdiction in which they are
respectively organized and shares of the Fund are registered for sale
(or exempt from registration) in all jurisdictions notified by Adviser
to BCE The Adviser will notify BCE in writing immediately if there is
any change in the registration or qualification for sale of any
shares. BCE will sell shares only to residents of jurisdictions where
Fund or Adviser notifies BCE that the shares are registered or exempt.
(e) Each of the Adviser and the Fund have and will continue to have access
to the necessary facilities, equipment and personnel to perform its
obligations under this Agreement.
(f) The Adviser shall promptly notify BCE in the event that it, or the
Fund, is for any reason, unable to perform any of their obligations
under this Agreement or there is a material failure to comply with the
representations made herein.
ARTICLE 5. RECORDKEEPING/ADMINISTRATIVE DUTIES OF BCE
SECTION 5.1 SHAREHOLDER INFORMATION.
(a) PLAN RECORDS BCE shall maintain a record of the number of Portfolio
shares held by each Account Holder, as required by law.
(b) PARTICIPANT RECORDS. BCE will perform the required sub-accounting
necessary to record Participant interests in a retirement Plan (the
"Plan"), which shall include the name, address and taxpayer
identification number of each such Participant and any other records
agreed or required by a Plan.
SECTION 5.2 SHAREHOLDER SERVICES.
(a) BCE shall investigate all inquiries from authorized Plan
representatives or other Account Holders relating to the shares held.
SECTION 5.3 RECORD KEEPING.
(a) RECORDATION OF THE ISSUANCE OF SHARES. BCE shall record the ownership
interest of Account Holders with respect to Portfolio shares and
maintain a record of the total number of shares which are so issued to
the Account Holders, based upon data provided to BCE by the Fund or
its designee.
(b) MAINTENANCE OF RECORDS. BCE will immediately notify in writing to the
Fund, or its agent, if discrepancies arise between the records BCE
maintains for the Account Holders and the information BCE is provided
by the Fund or its designee. The Adviser, or its designee, and BCE
will cooperate to resolve any such discrepancies. In all cases, the
Funds, or its designee's records will be determinative of the official
records of the Fund.
SECTION 5.4 DESIGNATION OF AFFILIATES.
Notwithstanding anything stated herein to the contrary, BCE may designate
one or more of its affiliates or its parent company, Great-West Life & Annuity
Insurance Company, for any performance required under this Article 5.
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ARTICLE 6. BROKER/DEALER DUTIES OF BCE
SECTION 6.1.
(a) BCE shall address and mail to Account Holders and Plan
representatives, for distribution to participants, as applicable, all
reports to shareholders, dividend and distribution notices,
prospectuses, proxy materials and any other related documents as
provided by the Fund and as required by law to be distributed.
Provided however, Fund, or its designee shall be responsible for
shipping the requested materials to BCE branch offices as instructed
by BCE.
(b) BCE shall execute purchase and sale instruction on behalf of Account
Holders and their authorized representatives.
(c) BCE registered representatives shall answer Account Holder and/or Plan
participant inquiries concerning the Fund or its Portfolios and assist
Account Holders and/or Plan participants in completing applications or
other transactions involving the purchase or redemption of Fund or
Portfolio shares; provided, however, any information supplied by BCE
shall either be previously approved in writing by or supplied by the
Fund or derived from the current prospectus issued by the Fund.
ARTICLE 7. INDEMNIFICATION
SECTION 7.1. BCE agrees to indemnify and hold harmless the Adviser and the
Fund and their affiliates and their Trustees, Members, officers, employees,
agents and each person, if any, who controls the Adviser within the meaning of
the Securities Act of 1933, as amended (the "Securities Act") against any
losses, claims, damages or liabilities to which any such indemnitee may become
subject insofar as those losses, claims, damages or liabilities (or actions in
respect thereof) arise out of any actions or failure or omission to act by BCE
under this Agreement, or occur in connection with or are based upon the
provision of the Services or failure to provide the Servicesby BCE. BCE will
reimburse the indemnitees for any legal or other expenses incurred by them as
they are incurred in connection with investigating, appearing to defend, or
defending such claim or action; PROVIDED, HOWEVER, that BCE will not be liable
for indemnification hereunder to the extent that any such loss, claim, damage or
liability results from the negligence or willful misconduct of the Fund, the
Adviser, or their Trustees, Members, officers, employees, agents, or successors
or assigns, as permitted hereunder.
SECTION 7.2. The Adviser, the Fund and/or the Company agree to indemnify
and hold harmless BCE and its affiliates and their directors, officers,
employees, agents and each person, if any, who controls BCE within the meaning
of the Securities Act, against any losses, claims, damages or liabilities to
which any such indemnitee may become subject insofar as those losses, claims,
damages or liabilities (or actions in respect thereof) arise out of any actions
or failure or omission to act by the Fund or the Adviser, or their affiliates,
in connection with their representations, warranties, and obligations under this
Agreement, and the Adviser will reimburse the indemnitees for any legal or other
expenses incurred by them in connection with investigating or defending such
claim or action; PROVIDED, HOWEVER, that the Adviser will not be liable for
indemnification hereunder to the extent that any such loss, claim, damage or
liability results from the negligence or willful misconduct of BCE, its
directors, officers, employees, agents, or successors or assigns, as permitted
hereunder.
SECTION 7.3. The Fund agrees to indemnify and hold harmless BCE for any
loss incurred by BCE due to errors or delays in the calculation of a Fund's
daily net asset value or made by Fund, or its designee, when transmitting such
information to BCE. The Fund also agrees to compensate BCE for any reasonable
cost of any adjustments made to Account Holders and/or Plan participant
sub-accounts arising from such information errors.
SECTION 7.4. Promptly after receipt by an indemnitee under this Article 7
of notice of the commencement of a claim or action that may be covered hereunder
("Claim"), the indemnitee shall notify the indemnitor of the commencement
thereof; provided, however, that the failure to provide such prompt notice to
the indemnitor shall not relieve the indemnitor of any liability it may have to
an indemnitee unless such failure has prejudiced the defense of such claim. As a
condition to indemnification hereunder, the indemnitee shall provide the
indemnitor with pleadings concerning any Claim. The indemnitor will be entitled
to participate in any Claim and may assume the defense thereof with counsel
reasonably satisfactory to the indemnitee. However, if the indemnitee reasonably
determines that defenses may be available to it which are not available to the
indemnitor, or which may be inconsistent with the interests of the indemnitor,
then the indemnitee shall have the right to assume its own defense, with counsel
reasonably satisfactory to the indemnitor. Should this situation arise, the
indemnitee will promptly notify the indemnitor in writing of its decision and
the reasons therefor. The indemnitor shall remain responsible for the cost of
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reasonable legal or other expenses incurred as they pertain to the additional or
inconsistent defenses of indemnitee. After notice from the indemnitor to the
indemnitee of the indemnitor's election to assume the defense of any Claim, the
indemnitor will not be liable to any indemnitee under this Article 7 for any
legal or other expenses subsequently incurred by the indemnitee in connection
with the defense of such Claim, except as stated herein. No party shall
unilaterally agree to a compromise or settlement of any such claim without the
written consent of the other party. Such consent shall not be unreasonably
withheld. In cases where the indemnitor has not assumed the defense of a Claim,
the indemnitor will not be obligated to pay the fees and expenses of more than
one counsel for all indemnitees subject to such Claim (other than appropriate
local counsel), unless in the reasonable judgment of an indemnitee, a conflict
of interst may exist between any indemnitees with respect to such Claim, in
which event, the indemnitor shall be obligated to pay the fees and expenses of
such additional counsel or counsels.
ARTICLE 8. INSURANCE
SECTION 8.1. BCE shall maintain insurance in commercially reasonable
amounts as required by the NASD. No provision of this Agreement shall be
construed to relieve an insurer of any obligation to pay claims to the Fund,
Adviser, BCE or any other insured party which would otherwise be covered by a
claim in the absence of any provision of this Agreement.
ARTICLE 9. ASSIGNMENT
SECTION 9.1. Neither this Agreement nor any rights or obligations hereunder
may be assigned by any party without the prior written consent of the other
parties.
SECTION 9.2. This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and permitted
assigns.
ARTICLE 10. TERM AND TERMINATION OF AGREEMENT
SECTION 10.1. This Agreement shall become effective on the date first set
forth above and shall continue in effect until terminated as set forth below.
SECTION 10.2. This Agreement may be terminated at any time by any party
upon ninety (90) days' written notice to the other parties. The Articles on
Indemnification and Confidentiality shall continue in full force and effect
after termination of this Agreement.
SECTION 10.3. Article 2 and Exhibit A shall continue in full force and
effect after termination of this Agreement with respect to Account Holders with
assets allocated to the Fund(s) or Portfolio(s) at the time of termination.
ARTICLE 11. CONFIDENTIALITY
SECTION 11.1. Parties agree to keep confidential, and to treat as
proprietary, all information obtained regarding the other party, its products,
clients, employees operations, and any other information obtained during this
relationship ("Confidential Information"). Each party agrees not to use any such
Confidential Information except as may be required herein. The parties hereto
specifically understand that they must maintain this Confidential Information in
such a manner that no third party can access it or that it will not be disclosed
to a third party without prior consent of the respective party.
SECTION 11.2. Confidential Information does not include the information
which (i) was publicly known and/or was in the possession of the party receiving
Confidential Information (the "Receiving Party") from other sources prior to its
receipt from the party disclosing Confidential Information (the "Disclosing
Party"), or (ii) is or becomes publicly available other than as a result of a
disclosure by the Receiving Party or its representatives, or (iii) is or becomes
available to the Receiving Party on a non-confidential basis from a source
(other than the Disclosing Party) which, to the best of the Receiving Party's
knowledge, and after due inquiry, is not prohibited from disclosing such
information to the Receiving Party by a legal, contractual or fiduciary
obligation to the Disclosing Party.
SECTION 11.3. The parties hereto acknowledge that any nonpublic personal
information (as defined by applicable law or regulation promulgated under Title
V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (the "Act")) of Account Holders,
including customers (both as defined by the Act or other applicable law or
regulation including, but not limited to, Xxxxxxxxxx X-X, 00 XXX xx.xx.
248.1-248.30), will be disclosed or utilized solely to carry out the terms of
the Agreement, including pursuant to an exception contained in any applicable
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law or regulation promulgated under the Act in the ordinary course of business
to carry out the terms of the Agreement. This section shall survive termination
of the Agreement. Further, Adviser agrees to maintain and enforce procedures for
the safeguarding and protection of such nonpublic personal information.
ARTICLE 12. ENTIRE AGREEMENT
SECTION 12.1. This Agreement and any Exhibits and Schedules attached hereto
and the NSCC Trading Agreement set forth the entire agreement and understanding
of the parties relating to the subject matter hereof, and supersede all
differing terms of prior agreements, arrangements and understandings, written or
oral, among the parties.
ARTICLE 13. AMENDMENTS; WAIVERS
SECTION 13.1. This Agreement may be amended, modified, superseded,
canceled, renewed or extended, and the terms or covenants hereof may be waived
only by a written instrument executed by all of the parties hereto, or in the
case of a waiver, by the party waiving compliance.
SECTION 13.2. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
party at a later time to enforce the same. No waiver by any party of the breach
of any term or covenant contained in this Agreement, whether by conduct or
otherwise in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
ARTICLE 14. NOTICES
SECTION 14.1. All notices required or permitted under this Agreement shall
be in writing and shall be sent by personal delivery (including overnight
delivery services such as Federal Express) or registered or certified mail,
postage prepaid, or by facsimile if confirmed in writing within three business
days as follows:
(a) If to the Adviser:
Denver Investment Advisors LLC
0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
ATTENTION: Xxxxxx X. Xxxxxx
(b) If to the Fund:
Drinker Xxxxxx & Xxxxx LLP
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
ATTENTION: Mr. W. Xxxxx XxXxxxxx
and
Denver Investment Advisors LLC
0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
ATTENTION: Xxxxxx X. Xxxxxx
(c) If to BCE:
BenefitsCorp Equities, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
ATTENTION: Xxxxxxx X. Xxxxxx, President
cc: Xxxxxxx X. Xxxxx, Secretary and Compliance Officer
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SECTION 14.2. Such addresses may be changed from time to time by any party
by providing written notice in the manner set forth above. All notices shall be
effective upon delivery as set forth in Section 14.1 above.
ARTICLE 15. GOVERNING LAW; DISPUTE RESOLUTION
SECTION 15.1. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Colorado, without giving
effect to conflicts of law principles thereof which might refer such
interpretations to the laws of a different state or jurisdiction.
SECTION 15.2. Any dispute arising between the parties with respect to this
Agreement shall be settled by binding arbitration in accordance with the Rules
of the American Arbitration Association ("AAA"). Regardless of the outcome of
the proceeding, the parties to any arbitration proceeding under this Agreement
shall bear their own costs and attorney fees. Fees and costs not attributable to
one party shall be shared equally by the parties to the arbitration proceeding.
Any decision rendered by an arbitrator or arbitrators, pursuant to this section
shall be final and binding upon all parties to the disputed claim. The decision
may be reduced to judgment and enforced in any court of competent jurisdiction.
The provisions of this section shall survive the termination of the Agreement.
ARTICLE 16. LEGAL RELATIONSHIP OF PARTIES
SECTION 16.1. The parties hereto agree that they are independent
contractors and not partners or co-venturers.
ARTICLE 17. CAPTIONS
SECTION 17.1. The paragraph headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
ARTICLE 18. SEVERABILITY
SECTION 18.1. If any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions and portions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
ARTICLE 19. COUNTERPARTS
SECTION 19.1. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same Agreement.
ARTICLE 20. MASSACHUSETTS BUSINESS TRUST
SECTION 20.1 The Names "Westcore Trust" and "Trustees of Westcore Trust"
refer respectively to the trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under an Amended and
Restated Declaration of Trust dated November 19, 1987 which is hereby referred
to and a copy of which is on file at the office of State Secretary of the
Commonwealth of Massachusetts and the principal office of the Company. The
obligations of "Westcore Trust" entered into in the name or on behalf thereof by
any of the Trustees, shareholders, or representatives of the Trust are not made
personally, but in such capacities, and bind only the Trust Property, and all
persons dealing with any class of shares of the Trust must look solely to the
Trust Property belonging to such class for the enforcement of any claims against
the Trust.
ARTICLE 21. FORCE MAJEURE
SECTION 21. FORCE MAJEURE. No party shall be deemed in default of this
Agreement to the extent that any delay or failure in performance results,
without its fault or negligence , from any cause beyond its reasonable control,
such as acts of God, acts of civil or military authority, embargoes, epidemics,
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war, riots, insurrections, fires, explosions, earthquakes, floods, unusually
severe weather conditions, strikes, or extraordinary market volume that results
in substantial delay in receipt of correct data from one or more generally
recognized securities exchanges.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the previously specified date.
BenefitsCorp Equities, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title: President
The Adviser
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Title: Executive Manager
The Fund
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Title: Vice President
EXHIBIT A
PORTFOLIOS AND FEES
1. RECORDKEEPING FEES
(a) The Adviser agrees to pay BCE an annual fee of 0.35% of the average
aggregate daily net asset value of shares of the Fund's Portfolios held in
Omnibus Accounts. Such fee shall be paid in arrears, quarterly. Each
quarter's fee shall be determined based on average assets in the account
during each quarter and each quarterly fee will be independent of every
other quarterly fee.
EXHIBIT B
NON-COMPETE PROVISIONS
BCE intends to offer Adviser access to its, or its affiliates' or its parent
company's (each, a "Company", collectively, the "Companies") current and
prospective customers (hereinafter "Customers") so that Customers will have the
option of purchasing mutual fund shares from the Fund. Adviser desires to make
its fund(s) available to Customers, yet acknowledges that under certain
circumstances, the ability of Adviser to solicit business from Customers should
be subject to special limitations in exchange for the increased ability to offer
its product through a Company's introduction. An introduction will consist of a
Company's offer ofAdviser's fund(s) to a Customer for that customer's
consideration.
1. In the scenario where any one of the Companies introduces Adviser in any
manner to a Customer which ultimately purchases a deferred compensation
product from a Company, and a Company includes Adviser's fund(s) in the
products offered to that Customer, Adviser agrees not to utilize any
confidential information regarding the Customer and/or its employees
participation in plan(s) received in connection with Adviser offering its
product to Customer in any solicitation of Deferred Compensation Business
from that Customer. Further, Adviser will not attempt to contact Customers
regularly nor attempt to sell its funds directly to Customer on a
stand-alone basis while the Adviser's product is included in a Company's
arrangement with the Customer. For purposes of this Agreement "Deferred
Compensation Business" includes, but is not limited to, group or individual
annuity contracts, GIC's, separate accounts and wrapped or unwrapped mutual
funds whether sold separately or in conjunction-with each other
2. In the scenario where any one of the Companies introduces Adviser in any
manner to a Customer which ultimately purchases a deferred compensation
product from a Company and the Customer does not select Adviser's Fund,
Adviser may directly communicate with Customer about Deferred Compensation
Business and may sell product directly to Customer provided it does not
utilize the confidential information referred to above.
3. In the scenario where any one of the Companies introduces Adviser in any
manner to a Customer that does not purchase a deferred compensation product
from a Company, Adviser is not subject to any prohibitions regarding sales
to and communications with that Customer. Likewise, there are no
prohibitions where a Company provides no introduction.
4. A Company may decide in its discretion when it desires to provide an
introduction to one of its Customers. A Company has no obligation to
provide introductions to its Customers.
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