Otis H. Cowan
(816) 274-6979
November 6, 1996
VIA EDGAR
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: The Omni Investment Fund (the "Fund") --
Post-Effective Amendment on Form N-1A
Ladies and Gentlemen:
Accompanying this letter for filing pursuant to the
Securities Act of 1933, as amended, and the Investment Company
Act of 1940, is a conformed copy of a Post-Effective Amendment
No. 11 to Part C of the Fund's Registration Statement on Form N-1A
covering an indefinite number of shares, par value $.01 per share.
Manually executed signature pages have been executed prior to the
time of this electronic filing and will be retained by the Fund for
five years.
The Fund requests that Post-Effective Amendment No. 11
become effective immediately upon receipt of the Securities and Exchange
Commission, pursuant to Rule 485(b) of Regulation C. We have reviewed
Post-Effective Amendment No. 11 and hereby represent that it does not
contain disclosures which would render it ineligible to become effective
pursuant to Rule 485(b) of Regulation C.
Please contact Otis Cowan at (816) 274-6979 if you have any
comments or questions about the filing.
Best regards.
Very truly yours,
Otis H. Cowan
Attachments
cc: Leslie J. Parrette, Jr.
<PAGE>
As filed with the Securities and Exchange Commission
on November 6, 1996
File No. 33-15867
File No. 811-4273
_________________________________________________________________
- -----------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM N-1A
REGISTRATION STATEMENT /X/
UNDER THE SECURITIES ACT OF 1933
Pre-Effective Amendment No. / /
Post-Effective Amendment No. 11 /X/
and
REGISTRATION STATEMENT /X/
UNDER THE INVESTMENT COMPANY ACT OF 1940
Amendment No. 11 /X/
THE OMNI INVESTMENT FUND
(Exact Name of Registrant as Specified in Charter)
53 West Jackson Blvd., Suite 818, Chicago, Illinois 60604
(Address of Principal Executive Offices)
(312) 922-0431
(Registrant's Telephone Number, including Area Code)
ROBERT H. PERKINS LESLIE J. PARRETTE, ESQ.
The Omni Investment Fund Blackwell Sanders Matheny
53 West Jackson Boulevard Weary & Lombardi L.C.
Suite 818 1000 Two Pershing Square
Chicago, Illinois 60604 2300 Main Street
Kansas City, Missouri 64108
(Name and address of Agents for Service)
-------------------
Total Number of Pages: 76
<PAGE>
It is proposed that this fiilng become effective:
/X/ Immediately upon filing pursuant to paragraph (b).
/ / On (date) pursuant to paragraph (b).
/ / 60 days after filing pursuant to paragraph (a).
/ / On (date) pursuant to paragraph (a)(1).
/ / 75 days after filing pursuant to paragraph (a)(2).
/ / On (date) pursuant to paragraph (a)(2) of Rule 485.
If appropriate, check the following box:
/ / This post-effective amendment designates a new effective date
for a previously filed post-effective amendment.
Pursuant to Rule 24f-2 under the Investment Company Act of 1940, as
amended, the Registrant has registered an indefinite number of shares,
par value $0.01 per share, under the Securities Act of 1933. The Notice
pursuant to Rule 24f-2 under the Investment Company Act of 1940, as
amended, for the Registrant's most recent fiscal year ended December 31,
1995 was filed with the Securities and Exchange Commission on February 29,
1996.
The Index to Exhibits is located at page 5.
<PAGE>
The Registrant's Prospectus (Part A of Form N-1A) and the Statement
of Additional Information (Part B of Form N-1A) are incorporated by
reference to Post-Effective Amendment No. 10 to the Registrant's
Registration Statement as electronically filed with the Securities and
Exchange Commission on April 30, 1996.
<PAGE>
THE OMNI INVESTMENT FUND
PART C. OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements:
Included in Part A of the Registration Statement:
- Financial Highlights. **
Incorporated by reference in the Statement of Additional
Information of the:
- Portfolio of Investments as of December 31, 1995. ***
- Statement of Assets and Liabilities as of December 31,
1995. ***
- Statement of Operations for the year ended December 31,
1995. ***
- Statement of Changes in Net Assets for the years ended
December 31, 1995 and 1994. ***
- Report of Independent Auditors. ***
- Financial Highlights. ***
Schedule I has been omitted as the required information is
presented in the portfolio of investments at December 31, 1995.
Schedules II, III, IV, V, VI and VII are omitted as the required
information is not present.
(b) Exhibits:
** (1) Declaration of Trust.
** (2) Bylaws.
(3) Inapplicable.
(4) Inapplicable. [Note: The Registrant will not issue any share
certificates; rather, each shareholder's share
ownership will be reflected in his or its account on the books
of the Registrant.]
** (5) Investment Advisory Agreement.
(6) Inapplicable.
(7) Inapplicable.
** (8) Restated and Amended Custodian Agreement.
* (9) (a) Transfer Agency Agreement.
* (b) Retirement Plan Custodial Services Agreement.
* (c) Retirement Plan Custodial Services Confirmation.
** (10) Opinion and consent of counsel as to the legality
of the securities being registered.
** (11) Consent of independent auditors.
(12) Inapplicable.
** (13) Subscription Agreements of purchasers from initial
private offering.
* (14) (a) Individual Retirement Custodial Account (Form 5305-A)
and Instructions thereto.
* (b) Simplified Employee Pension - Individual Retirement
Accounts Contribution Agreement (Form 5305-SEP).
* (c) Salary Reduction and other Elective Simplified Employee-
Individual Retirement Accounts Contribution Agreement
(5305A-SEP).
* (d) IRA - Disclosure Statement.
* (e) IRA - Account Application Form
* (f) IRA - Transfer and Direct Rollover Request Form.
(15) Inapplicable.
** (16) Performance quotation calculations.
** (17) Financial Data Schedule.
(18) Inapplicable.
<PAGE>
* Filed herewith.
* * Incorporated by referece to Post-Effective Amendment No. 10
to the Registrant's Registration Statement as electonically
filed by the Registrant with the Securities and Exchange
Commission on April 30, 1996.
* * * Incorporated by reference to Annual Report as
electronically filed with the Securities and Exchange Commission
by the Registrant on February 29, 1996.
ITEM 25. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT.
As of the date of this Registration Statement, no person is
controlled by or under common control with the Registrant.
ITEM 26. NUMBER OF HOLDERS OF SECURITIES (AS OF SEPTEMBER 30, 1996).
(1) (2)
NUMBER OF TITLE OF CLASS
SHAREHOLDERS
Shares of Beneficial
Interest of The Omni
Investment Fund 1370
ITEM 27. INDEMNIFICATION.
Except for the Declaration of Trust, dated April 19, 1990,
establishing the Registrant as a Massachusetts business trust,
there is no contract, arrangement or statute under which any
trustee, officer or affiliated person of the Registrant is
insured or indemnified. Article XII of the Declaration of Trust
provides for indemnification of officers and trustees of the
Trust against liabilities and expenses of litigation incurred by
them in connection with any claim, action, suit or proceeding (or
settlement of the same) in which they become involved by virtue
of their office, unless their conduct is determined to constitute
willful misfeasance, bad faith, gross negligence or reckless
disregard of their duties or unless it has been determined that
they have not acted in good faith in the reasonable belief that
their actions were in or not opposed to the best interests of the
Registrant.
See the Registrant's undertaking with respect to indemnification in Item 32
below.
ITEM 28. BUSINESS OR OTHER CONNECTIONS OF INVESTMENT ADVISER.
The business of Perkins, Wolf, McDonnell & Company ("PWM") is summarized
under the "Management of Fund" in the Prospectus constituting Part A of the
Post-Effective Amendment No. 10 to the Fund's Registration Statement as
electronically filed with the Securities and Exchange Commission by the
Registrant on April 30, 1996, which summary is incorporated herein by
reference.
<PAGE>
The business or other connections of each director and officer of PWM is
currently listed in the investment adviser registration on Form ADV for
Perkins, Wolf, McDonnell & Company (SEC File No. 801-19974) and is
incorporated herein by reference.
ITEM 29. PRINCIPAL UNDERWRITER.
Inapplicable.
ITEM 30. LOCATION OF ACCOUNTS AND RECORDS.
The accounts, books and other documents required to be maintained by
Section 31(a) of the Investment Company Act of 1940 and the rules promulgated
thereunder are maintained at the offices of the Registrant, 53 West Jackson
Boulevard, Suite 818, Chicago, Illinois 60604. Records relating to the duties
of the Registrant's custodian and transfer agent are also maintained by
the Registrant.
ITEM 31. MANAGEMENT SERVICES.
Inapplicable.
ITEM 32. UNDERTAKINGS.
Insofar as indemnification for liability arising under the Securities
Act of 1933 may be permitted to Trustees, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Trustee, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
The Registrant will furnish each person to whom a prospectus is
delivered with a copy of the Registrant's latest annual report to
shareholders, upon request and without charge.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant certifies that it meets all of
the requirements for effectiveness of this Registration Statement pursuant to
Rule 485(b) under the Securities Act of 1933 and has duly caused this
Post-Effective Amendment No. 11 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Chicago, and the State of Illinois, on the 6th day of November, 1996.
THE OMNI INVESTMENT FUND
/s/ Robert H. Perkins
By: Robert H. Perkins
President
Pursuant to the requirements of the Securities Act of 1933, this Post-
effective Amendment No. 11 to the Registration Statement has been signed below
by the following persons in the capacities and on the date indicated:
SIGNATURES TITLE DATE
President (Principal
Executive Officer)
/s/ Robert H. Perkins and Trustee November 1, 1996
Treasurer (Principal
Financial and
Accounting Officer)
/s/ Gregory E. Wolf and Trustee November 1, 1996
/s/ Burt W. Engelberg Trustee November 1, 1996
<PAGE>
THE OMNI INVESTMENT FUND
Index to Exhibits in Registration Statement
NO. Exhibit
9 (a) Transfer Agency Agreement
(b) Retirement Plan Custodial Services Agreement
(c) Retirement Plan Custodial Services Confirmation
14 (a) Individual Retirement Custodial Account (Form 5305-A) and
Instructions thereto
(b) Simplified Employee Pension - Individual Retirement Accounts
Contribution Agreement (Form 5305-SEP).
(c) Salary Reduction and Other Elective Simplified Employee-
Individual Retirement Accounts Contribution Agreement
(d) IRA - Disclosure Statement
(e) IRA - Account Application Form
(f) IRA - Transfer and Direct Rollover Request Form
AGENCY AGREEMENT
THIS AGREEMENT made the 3rd day of July, 1996, by and between THE OMNI
INVESTMENT FUND, a business trust existing under the laws of the Commonwealth
of Massachusetts, having its principal place of business at 53 West Jackson
Boulevard, Suite 818, Chicago, Illinois 60604 (the "Trust"), and DST SYSTEMS,
INC., a corporation existing under the laws of the State of Delaware, having
its principal place of business at 1055 Broadway, Kansas City, Missouri 64105
("DST"):
WITNESSETH:
WHEREAS, the Trust desires to appoint DST as Transfer Agent and Dividend
Disbursing Agent, and DST desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. DOCUMENTS TO BE FILED WITH APPOINTMENT.
In connection with the appointment of DST as Transfer Agent and
Dividend Disbursing Agent for the Trust, there will be filed with DST the
following documents:
A. A certified copy of the resolutions of the Board of Trustees of
the Trust appointing DST as Transfer Agent and Dividend Disbursing Agent,
approving the form of this Agreement, and designating certain persons to sign
stock certificates, if any, and give written instructions and requests on
behalf of the Trust;
B. A certified copy of the Agreement and Declaration of Trust of the
Trust and all amendments thereto;
C. A certified copy of the Bylaws of the Trust;
<PAGE>
D. Copies of Registration Statements and amendments thereto, filed
with the Securities and Exchange Commission;
E. Specimens of the signatures of the officers of the Trust
authorized to sign stock certificates and individuals authorized to sign
written instructions and requests;
F. An opinion of counsel for the Trust with respect to:
(1) The Trust's organization and existence under the laws
of its state of organization,
(2) The status of all shares of stock of the Trust covered
by the appointment under the Securities Act of 1933, as
amended, and any other applicable federal or state
statute, and
(3) That all issued shares are, and all unissued shares
will be, when issued, validly issued, fully paid and
nonassessable.
2. CERTAIN REPRESENTATIONS AND WARRANTIES OF DST.
DST represents and warrants to the Trust that:
A. It is a corporation duly organized and existing and in good
standing under the laws of Delaware.
B. It is duly qualified to carry on its business in the State of
Missouri.
C. It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform the services
contemplated in this Agreement.
D. It is registered as a transfer agent to the extent required
under the Securities Exchange Act of 1934.
<PAGE>
E. All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3. CERTAIN REPRESENTATIONS AND WARRANTIES OF THE TRUST.
The Trust represents and warrants to DST that:
A. It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
B. It is an open-end diversified management investment company
registered under the Investment Company Act of 1940, as
amended.
C. A registration statement under the Securities Act of 1933 has
been filed and will be effective with respect to all shares of
the Trust being offered for sale.
D. All requisite steps have been and will continue to be taken to
register the Trust's shares for sale in all applicable states
and such registration will be effective at all times shares are
offered for sale in such state.
E. The Trust is empowered under applicable laws and by its
Agreement and Declaration of Trust and Bylaws to enter into and
perform this Agreement.
4. SCOPE OF APPOINTMENT.
A. Subject to the conditions set forth in this Agreement, the
Trust hereby appoints DST as Transfer Agent and Dividend
Disbursing Agent.
<PAGE>
B. DST hereby accepts such appointment and agrees that it will act
as the Trust's Transfer Agent and Dividend Disbursing Agent.
DST agrees that it will also act as agent in connection with
the Trust's periodic withdrawal payment accounts and other open
accounts or similar plans for shareholders, if any.
C. The Trust agrees to deliver to DST in Kansas City, Missouri, as
soon as they are available, all of its shareholder account
records. DST shall have no responsibility or liability for the
contents of shareholder account records not received by DST,
nor for Adverse Consequences, as hereinafter defined, directly
or indirectly arising out of or resulting from or contributed
to by the absence of such records.
D. DST, utilizing TA2000 (TRADEMARK), DST's computerized data
processing system for securityholder accounting (the "TA2000
(TRADEMARK) System"), will perform the following services as
transfer and dividend disbursing agent for the Trust, and as
agent of the Trust for shareholder accounts thereof, in a
timely manner: issuing (including countersigning), transferring
and canceling share certificates; maintaining all shareholder
accounts; providing transaction journals; preparing shareholder
meeting lists, mailing proxies and proxy materials, receiving
and tabulating proxies, certifying the shareholder votes of the
Trust; mailing shareholder reports and prospectuses;
withholding, as required by federal law, taxes on shareholder
accounts, disbursing
<PAGE>
income dividends and capital gains distributions to
shareholders, preparing, filing and mailing U.S. Treasury
Department Forms 1099, 1042 and 1042S and performing and paying
backup withholding as required for all shareholders; preparing
and mailing confirmation forms to shareholders and dealers, as
instructed, for all purchases and liquidations of shares of the
Trust and other confirmable transactions in shareholders'
accounts; recording reinvestment of dividends and distributions
in shares of the Trust; providing or making available on-line
daily and monthly reports as provided by the TA2000 (TRADEMARK)
System and as requested by the Trust or its management company;
maintaining those records necessary to carry out DST's duties
hereunder, including all information reasonably required by the
Trust to account for all transactions in the Trust shares,
calculating the appropriate sales charge with respect to each
purchase of the Trust shares as set forth in the prospectus for
the Trust, determining the portion of each sales charge payable
to the dealer participating in a sale in accordance with
schedules delivered to DST by the Trust's principal underwriter
or distributor (hereinafter "principal underwriter") from time
to time, disbursing dealer commissions collected to such
dealers, determining the portion of each sales charge payable to
such principal underwriter and disbursing such commissions to
the principal underwriter; receiving correspondence pertaining
to any former, existing or new shareholder account, processing
such correspondence for proper recordkeeping, and responding
promptly to shareholder correspondence; mailing to dealers
confirmations of wire order trades; mailing copies of
shareholder statements to shareholders and registered
representatives of dealers in accordance with the Trust's
instructions; and processing, generally on the date of receipt,
purchases or redemptions or instructions to settle any mail or
wire order purchases or redemptions received in proper order as
set forth in the prospectus, rejecting promptly any requests not
received in proper order (as defined by the Trust or its
agents), and causing exchanges of shares to be executed in
accordance with the Trust's instructions and prospectus and the
general exchange privilege application.
<PAGE>
E. At the request of Trust, DST shall use reasonable efforts to
provide the services set forth in Section 4.D. other than
through DST's usual methods of and procedures to utilize the
TA2000 (TRADEMARK) System, that is by using methods and
procedures other than those usually employed by DST to perform
services requiring more manual intervention by DST, either in
the entry of data or in the modification or amendment of reports
generated by the TA2000 (TRADEMARK) System, or which provides
information to DST after the commencement of the nightly
processing cycle of the TA2000 (TRADEMARK) System, thereby
decreasing the effective time for performance by DST (the
"Exception Services").
F. The Trust shall have the right to add new series to the TA2000
(TRADEMARK) System upon at least thirty (30) days' prior written
notice to DST provided that the requirements of the new series
are generally consistent with services then being provided by
DST under this Agreement. Rates or charges for additional
series shall be as set forth in Exhibit A, as hereinafter
defined, for the remainder of the contract term except as such
series use functions, features or characteristics for which DST
has imposed an additional charge as part of its standard pricing
schedule. In the latter event, rates and charges shall be in
accordance with DST's then-standard pricing schedule.
<PAGE>
G. DST shall use reasonable efforts to provide, reasonably promptly
under the circumstances, the same services with respect to any
new, additional functions or features or any changes or
improvements to existing functions or features as provided for in
the Trust's instructions, prospectus or application as amended
from time to time, for the Trust provided (i) DST is advised in
advance by the Trust of any changes therein and (ii) the TA2000
(TRADEMARK) System and the mode of operations utilized by DST as
then constituted supports such additional functions and
features. If any addition to, improvement of or change in the
features and functions currently provided by the TA2000
(TRADEMARK) System or the operations as requested by the Trust
requires an enhancement or modification to the TA2000 (TRADEMARK)
System or to operations as presently conducted by DST, DST shall
not be liable therefore until such modification or enhancement is
installed on the TA2000 (TRADEMARK) System or new mode of
operation is instituted. If any new, additional function or
feature or change or improvement to existing functions or
features or new service or mode of operation measurably increases
DST's cost of performing the services required hereunder at the
current level of service, DST shall advise the Trust of the
amount of such increase and if the Trust elects to utilize such
function, feature or service, DST shall be entitled to increase
its fees by the amount of the increase in costs. In no event
shall DST be responsible for or liable to provide any additional
function, feature, improvement or change in method of operation
until it has consented thereto in writing.
5. LIMIT OF AUTHORITY.
Unless otherwise expressly limited by the resolution of appointment or by
subsequent action by the Trust, the appointment of DST as Transfer Agent
will be construed to cover the full amount of authorized stock of the class
or classes for which DST is appointed as the same will, from time to time,
be constituted, and any subsequent increases in such authorized amount.
In case of such increase the Trust will file with DST:
A. If the appointment of DST was theretofore expressly limited, a
certified copy of a resolution of the Board of Trustees of the Trust
increasing the authority of DST;
B. A certified copy of the amendment to the Agreement and Declaration of
Trust of the Trust authorizing the increase of stock;
C. A certified copy of the order or consent of each governmental or
regulatory authority required by law to consent to the issuance of the
increased stock, and an opinion of counsel that the order or consent of
no other governmental or regulatory authority is required;
D. Opinion of counsel for the Trust stating:
(1) The status of the additional shares of stock of the Trust under
the Securities Act of 1933, as amended, and any other applicable
federal or state statute; and
2. That the additional shares are, or when issued will be, validly
issued, fully paid and nonassessable.
<PAGE>
6. COMPENSATION AND EXPENSES.
A. In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, the Trust will pay to DST from time to time
a reasonable compensation for all services rendered as Agent, and
also, all its reasonable billable expenses, charges, counsel fees, and
other disbursements ("Compensation and Expenses") incurred in
connection with the agency. Such compensation is set forth in a
separate schedule agreed to by the Trust and DST, a copy of which is
attached hereto as Exhibit A. If the Trust has not paid such
Compensation and Expenses to DST within a reasonable time, DST may
charge against any monies held under this Agreement, the amount of any
Compensation and/or Expenses for which it shall be entitled to
reimbursement under this Agreement.
B. The Trust also agrees promptly to reimburse DST for all reasonable
billable expenses or disbursements incurred by DST in connection with
the performance of services under this Agreement including, but not
limited to, expenses for postage, express delivery services, freight
charges, envelopes, checks, drafts, forms (continuous or otherwise),
specially requested reports and statements, telephone calls,
telegraphs, stationery supplies, counsel fees, outside printing and
mailing firms (including Output Technologies SRI Group, Inc.),
magnetic tapes, reels or cartridges (if sent to the Trust or to a
third party at the Trust's request) and. magnetic tape handling
charges, off-site record storage, media for storage of records (e.g.,
microfilm, microfiche, optical platters, computer tapes), computer
<PAGE>
equipment installed at the Trust's request at the Trust's or a third
party's premises, telecommunications equipment,
telephone/telecommunication lines between the Trust and its agents, on
one hand, and DST on the other, proxy soliciting, processing and/or
tabulating costs, second-site backup computer facility, transmission
of statement data for remote printing or processing, and National
Securities Clearing Corporation ("NSCC") transaction fees to the
extent any of the foregoing are paid by DST. The Trust agrees to pay
postage expenses at least one day in advance if so requested. In
addition, any other expenses incurred by DST at the request or with
the consent of the Trust will be promptly reimbursed by the trust.
C. Amounts due hereunder shall be due and paid on or before the thirtieth
(30th) business day after receipt of the statement therefor by the
Trust (the "Due Date"). The Trust is aware that its failure to pay
all amounts in a timely fashion so that they will be received by DST
on or before the Due Date will give rise to costs to DST not
contemplated by this Agreement, including but not limited to carrying,
processing and accounting charges. Accordingly, subject to Section
6.D. hereof, in the event that any amounts due hereunder are not
received by DST by the Due Date, the Trust shall pay a late charge
equal to the lesser of the maximum amount permitted by applicable law
or the product of that rate announced from time to time by State Street
Bank and Trust Company as its "Prime Rate" plus three (3) percentage
points times the amount overdue, times the number of days from the Due
Date up to and including the day on which payment is received by DST
divided by 365. The parties hereby agree that such late charge
represents a fair and reasonable computation of the costs incurred by
reason of late payment or payment of amounts not properly due.
<PAGE>
Acceptance of such late charge shall in no event constitute a waiver of
the Trust's default or prevent the non-defaulting party from exercising
any other rights and remedies available to it.
D. In the event that any charges are disputed, the Trust shall, on or
before the Due Date, pay all undisputed amounts due hereunder and
notify DST in writing of any disputed charges for billable expenses
which it is disputing in good faith. Payment for such disputed charges
shall be due on or before the close of the fifth (5th) business day
after the day on which DST provides to the Trust documentation which an
objective observer would agree reasonably supports the disputed charges
(the "Revised Due Date"). Late charges shall not begin to accrue as to
charges disputed in good faith until the first business day after the
Revised Due Date.
E. The fees and charges set forth on Exhibit A shall increase or may be
increased as follows:
(1) In the first day of each new term, in accordance with the "Fee
Increases" provision in Exhibit A;
(2) DST may increase the fees and charges set forth on Exhibit A upon
at least ninety (90) days prior written notice, if changes in
existing laws, rules or regulations: (i) require substantial
system modifications or (ii) materially increase cost of
performance hereunder;
<PAGE>
(3) DST may charge for additional features of TA2000 (TRADEMARK)
System used by the Trust which features are not consistent with
the Trust's current processing requirements; and
(4) In the event DST, at the Fund's request or direction, performs
Exception Services, DST shall be entitled to increase the fees and
charges for such Exception Services from those set forth on
Exhibit A to the extent such Exception Services increase DST's
cost of performance.
If DST notifies the Trust of an increase in fees or charges pursuant to
subparagraph (2) of this Section 6.E., the parties shall confer,
diligently and in good faith and agree upon a new fee to cover the amount
necessary, but not more than such amount, to reimburse DST for the Trust's
aliquot portion of the cost of developing the new software to comply with
regulatory charges and for the increased cost of operation.
If DST notifies the Trust of an increase in fees or charges under
subparagraphs (3) and (4) of this Section 6.E., the parties shall confer,
diligently and in good faith, and agree upon a new fee to cover such new
Trust feature.
7. OPERATION OF DST SYSTEM.
In connection with the performance of its services under this Agreement,
DST is responsible for such items as:
A. That entries in DST's and the Trust's records on the TA2000(TRADEMARK)
System created by DST reflect the orders, instructions, and other
information received by DST from broker-dealers, shareholders, the
Trust, the Trust's principal underwriter, distributor, manager or
investment adviser;
<PAGE>
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be produced
from its records or data be available and accurately reflect the data
in the Trust's records on the TA2000 (TRADEMARK) System;
C. The accurate and timely issuance of dividend and distribution checks
in accordance with instructions and approvals received from the Trust
and the data in the Trust's records on the TA2000 (TRADEMARK) System;
D. That redemption transactions and payments be effected timely, under
normal circumstances on the day of receipt, and accurately in
accordance with redemption instructions received by DST from dealers,
shareholders, or representatives of the Trust or the Trust's principal
underwriter, distributor, investment adviser or manager and the data
in the Trust's records on the TA2000 (TRADEMARK) System;
E. The deposit daily in the Trust's appropriate special bank account of
all checks and payments received by DST from NSCC, broker-dealers or
shareholders for investment in shares;
F. Notwithstanding anything herein to the contrary, with respect to "as
of" adjustments, DST will not assume one hundred percent (100 percent)
responsibility for losses resulting from "as ofs" due to clerical
errors or misinterpretations of shareholder instructions, but DST will
discuss with the Trust DST's accepting liability for an "as of" on a
case-by-case basis and may accept financial responsibility for a
particular situation resulting in a financial loss to the Trust where
DST in its discretion deems that to be appropriate;
<PAGE>
G. The requiring of proper forms of instructions, signatures and
Signature guarantees and any necessary documents supporting the
opening of shareholder accounts, transfers, redemptions and other
shareholder account transactions, all in conformance with DST's
present procedures as set forth in its Legal Manual, Third Party Check
Procedures, Checkwriting Draft Procedures, and Signature Guarantee
Procedures (collectively the "Procedures") with such changes or
deviations therefrom as may be from time to time required or approved
by the Trust, its investment adviser or principal underwriter, or its
or DST's counsel and the rejection of orders or instructions not in
good order in accordance with the applicable prospectus or the
Procedures;
H. The maintenance of customary records in connection with its agency,
and particularly those records required to be maintained pursuant to
subparagraph (2)(iv) of paragraph (b) of Rule 31a-1 under the
Investment Company Act of 1940, if any; and
I. The maintenance of a current, duplicate set of the Trust's essential
records at a secure separate location, in a form available and usable
forthwith in the event of any breakdown or disaster disrupting its
main operation.
8. INDEMNIFICATION.
A. DST shall at all times use reasonable care, due diligence and act in
good faith in performing its duties under this Agreement. DST shall
provide its services as Transfer Agent in accordance with Section 17A
of the Securities Exchange Act of 1934, and the rules and regulations
thereunder. In the, absence of bad faith, willful misfeasance,
<PAGE>
knowing violations of applicable law pertaining to the manner in which
transfer agency services are to be performed by DST (excluding any
violations arising directly or indirectly out of the actions or
omissions to act of DST-unaffiliated third parties), reckless
disregard of the performance of its duties, or gross negligence on its
part, DST shall not be liable for any action taken, suffered, or
omitted by it or for any error of judgment or mistake of law made by
it in the performance of its duties under this Agreement. For those
activities or actions delineated in the Procedures, DST shall be
presumed to have used reasonable care, due diligence and acted in good
faith if it has acted in accordance with the Procedures, copies of
which have been provided to the Trust and reviewed and approved by the
Trust's counsel, as amended from time to time with approval of DST's
counsel, or for any deviation therefrom approved by the Trust or DST
counsel.
B. DST shall not be responsible for, and the Trust shall indemnify and
hold DST harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability (the
"Adverse Consequences") which may be asserted against DST or for which
DST may be held to be liable, arising out of or attributable to:
(1) All actions of DST required to be taken by DST pursuant to this
Agreement, provided that DST has acted in good faith and with
reasonable diligence;
<PAGE>
(2) The Trust's refusal or failure to comply with the terms of this
Agreement, the Trust's negligence or willful. misconduct, or the
breach of any representation or warranty of the Trust hereunder;
(3) The good faith reliance on, or the carrying out of, any written
or oral instructions or requests of persons designated by the
Trust in writing (see Exhibit B) from time to time as authorized
to give instructions on its behalf or persons reasonably believed
by DST to be representatives of the Trust's investment adviser,
sponsor, principal underwriter, distributor or manager or DST's
good faith reliance on, or use of, information, data, records and
documents received from, or which have been prepared and/or
maintained by the Trust, its investment adviser, its sponsor, its
principal underwriter, its distributor or its manager;
(4) Defaults by dealers or shareowners with respect to payment for
share orders previously entered;
(5) The offer or sale of the Trust's shares in violation of any
requirement under federal securities laws or regulations or the
securities laws or regulations of any state or in violation of any
stop order or other determination or ruling by any federal agency
or state with respect to the offer or sale of such shares in such
state (unless such violation results from DST's failure to comply
with written instructions of the Trust or of any officer of the
Trust that no offers or sales be input into the Trust's
securityholder records in or to residents of such state);
<PAGE>
(6) The Trust's errors and mistakes in the use of the TA2000
(TRADEMARK) System, the data center, computer and related
equipment used to access the TA2000 (TRADEMARK) System (the "DST
Facilities"), and control procedures relating thereto in the
verification of output and in the remote input of data;
(7) Errors, inaccuracies, and omissions in, or errors, inaccuracies or
omissions of DST arising out of or resulting from such errors,
inaccuracies and omissions in, the Trust's records, shareholder
and other records, delivered to DST hereunder by the Trust or its
prior agent(s); and
(8) Actions or omissions to act by the Trust or agents set forth in
Section 8.A.(3) or otherwise designated by the Trust with respect
to duties assumed thereby as provided for in Section 21 hereof.
(9) DST's performance of Exception Services except where DST acted or
omitted to act in bad faith, with reckless disregard of its
obligations or with gross negligence.
C. Except where DST is entitled to indemnification under Section 8.B. hereof
and with respect to "as ofs" set forth in Section 7.F., DST shall indemnify
and hold the Trust harmless from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability arising out of
or attributable to DST's failure to comply with the terms of, failure to
perform or to fulfill in accordance with the standard of care set forth in
Section 8.A. hereof, DST's duties and obligations under, or material breach of
any representation or warranty of DST under, this Agreement.
<PAGE>
D. EXCEPT FOR VIOLATIONS OF SECTION 23, IN NO EVENT AND UNDER NO CIRCUMSTANCES
SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO ANYONE, INCLUDING,
WITHOUT LIMITATION TO THE OTHER PARTY, FOR CONSEQUENTIAL DAMAGES FOR ANY
ACT OR FAILURE TO ACT UNDER ANY PROVISION OF THIS AGREEMENT EVEN IF ADVISED
OF THE POSSIBILITY THEREOF.
E. Promptly after receipt by an indemnified person of notice of the
commencement of any action, such indemnified person will, if a claim in
respect thereto is to be made against an indemnifying party hereunder,
notify the indemnifying party in writing of the commencement thereof; but
the failure so to notify the indemnifying party will not relieve an
indemnifying party from any liability that it may have to any indemnified
person for contribution or otherwise under the indemnity agreement
contained herein except to the extent it is prejudiced as a proximate
result of such failure to timely notify. In case any such action is
brought against any indemnified person and such indemnified person seeks
or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it may
wish, assume the defense thereof (in its own name or in the name and on
behalf of any indemnified party or both with counsel reasonably
satisfactory to such indemnified person); provided, however, if the
defendants in any such action include both the indemnified person and an
indemnifying party and the indemnified person shall have reasonably
concluded that there may be a conflict between the positions of the
indemnified person and an indemnifying party in conducting the defense of
any such action or that there may be legal defenses available to it and/or
other indemnified persons which are inconsistent, with those available to
an indemnifying party, the indemnified person or indemnified persons shall
have the right to select one separate counsel (in addition to local
counsel) to assume such legal defense and to otherwise participate in the
defense of such action on behalf of such indemnified person or indemnified
persons at such indemnified party's sole expense. Upon receipt of notice
from an indemnifying party to such indemnified person of its election so
to assume the defense of such action and approval by the indemnified
person of counsel, which approval shall not be unreasonably withheld (and
any disapproval shall be accompanied by a written statement of the reasons
therefor), the indemnifying party will not be liable to such indemnified
person hereunder for any legal or other expenses subsequently incurred by
such indemnified person in connection with the defense thereof. An
indemnifying party will not settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified persons are actual or
potential parties to such claim, action, suit or proceeding) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified person from all liability arising out of such claim,
action, suit or proceeding. An indemnified party will not, without the
prior written consent of the indemnifying party settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder. If it does so,
it waives its right to indemnification therefor.
<PAGE>
9. CERTAIN COVENANTS OF DST AND THE TRUST.
A. All requisite steps will be taken by the Trust from time to time when
and as necessary to register the Trust's shares for sale in all states
in which the Trust's shares shall at the time be offered for sale and
require registration. If at any time the Trust will receive notice of
any stop order or other proceeding in any such state affecting such
registration or the sale of the Trust's shares, or of any stop order
or other proceeding under the federal securities laws affecting the
sale of the Trust's shares, the Trust will give prompt notice thereof
to DST.
B. DST hereby agrees to perform such transfer agency functions as are set
forth in Sections 4.D. and 4.E. of this Agreement and to establish and
maintain facilities and procedures reasonably acceptable to the Trust
for safekeeping of check forms, and facsimile signature imprinting
devices, if any; and for the preparation or use, and for keeping
account of, such forms and devices, and to carry such insurance as it
considers adequate and reasonably available.
C. To the extent required by Section 31 of the Investment Company Act of
1940 as amended and Rules thereunder, DST agrees that all records
maintained by DST relating to the services to be performed by DST
under this Agreement are the property of the Trust and will be
preserved and will be surrendered promptly to the Trust on request.
<PAGE>
D. DST agrees to furnish the Trust annual reports of its financial
condition, consisting of a balance sheet, earnings statement and any
other publicly available financial information reasonably requested by
the Trust. The annual financial statements will be certified by DST's
certified public accountants.
E. DST represents and agrees that it will use reasonable efforts to keep
current on the trends of the investment company industry relating to
shareholder services and to continue to modernize and improve.
F. DST will permit the Trust and its authorized representatives to make
periodic inspections of its operations as such would involve the Trust
at reasonable times during business hours.
G. DST agrees to use its best efforts to provide in Kansas City at the
Trust's expense two (2) man weeks of training for the Trust's
personnel in connection with use and operation of the TA2000
(TRADEMARK) System. All travel and reimbursable expenses incurred by
the Trust's personnel in connection with and during training at DST's
Facility shall be borne by the Trust. At the Trust's option and
expense, DST also agrees to provide an additional two (2) man weeks of
training at the Trust's facility for the Trust's personnel in
connection with the conversion to the TA2000 (TRADEMARK) System.
Reasonable travel, per them and reimbursable expenses incurred by DST
personnel in connection with and during training at the Trust's
facility or in connection with the conversion shall be borne by the
Trust.
<PAGE>
10. RECAPITALIZATION OR READJUSTMENT.
In case of any recapitalization, readjustment or other change in the
capital structure of the Trust requiring a change in the form of stock
certificates, DST will issue or register certificates in the new form in
exchange for, or in transfer of, the outstanding certificates in the old
form, upon receiving:
A. Written instructions from an officer of the Trust;
B. Certified copy of the amendment to the Agreement and Declaration of
Trust or other document effecting the change;
C. Certified copy of the order or consent of each governmental or
regulatory authority, required by law to the issuance of the stock in
the new form, and an opinion of counsel that the order or consent of
no other government or regulatory authority is required;
D. Specimens of the new certificates in the form approved by the Board
of Trustees of the Trust, with a certificate of the Clerk of the
Trust as to such approval;
E. Opinion of counsel for the Trust stating:
(1) The status of the shares of stock of the Trust in the new form
under the Securities Act of 1933, as amended and any other
applicable federal or state statute; and
(2) That the issued shares in the new form are, and all unissued
shares will be, when issued, validly issued, fully paid and
nonassessable.
11. STOCK CERTIFICATES. THE TRUST WILL NOT ISSUE STOCK CERTIFICATES.
<PAGE>
12. DEATH, RESIGNATION OR REMOVAL OF SIGNING OFFICER.
The Trust will file promptly with DST written notice of any change in the
officers authorized to sign stock certificates, written instructions or
requests, together with two signature cards bearing the specimen signature
of each newly authorized officer. In case any officer of the Trust who
will have signed manually or whose facsimile signature will have been
affixed to blank stock certificates will die, resign, or be removed prior
to the issuance of such certificates, DST may issue or register such stock
certificates as the stock certificates of the Trust notwithstanding such
death, resignation, or removal, until specifically directed to the
contrary by the Trust in writing. In the absence of such direction, the
Trust will file promptly with DST such approval, adoption, or ratification
as may be required by law.
13. FUTURE AMENDMENTS OF CHARTER AND BYLAWS.
The Trust will promptly file with DST copies of all material amendments to
its Agreement and Declaration of Trust or Bylaws made after the date of
this Agreement.
14. INSTRUCTIONS, OPINION OF COUNSEL AND SIGNATURES.
At any time DST may apply to any person authorized by the Trust to give
instructions to DST, and may with the approval of a Trust officer consult
with legal counsel for the Trust or its own legal counsel at the expense
of the Trust, with respect to any matter arising in connection with the
agency and it will not be liable for any action taken or omitted by it in
<PAGE>
good faith in reliance upon such instructions or upon the opinion of such
counsel. DST will be protected in acting upon any paper or document
reasonably believed by it to be genuine and to have been signed by the
proper person or persons and will not be held to have notice of any change
of authority of any person, until receipt of written notice thereof from
the Trust. It will also be protected in recognizing stock certificates
which it reasonably believes to bear the proper manual or facsimile
signatures of the officers of the Trust, and the proper countersignature
of any former Transfer Agent or Registrar, or of a co-Transfer Agent or
co-Registrar.
15. FORCE MAJEURE AND DISASTER RECOVERY PLANS.
A. DST shall not be responsible or liable for its failure or delay in
performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation: any interruption, loss or
malfunction or any utility, transportation, computer (hardware or
software) or communication service; inability to obtain labor,
material, equipment or transportation, or a delay in mails;
governmental or exchange action, statute, ordinance, rulings,
regulations or direction; war, strike, riot, emergency, civil
disturbance, -terrorism, vandalism, explosions, labor disputes,
freezes, floods, fires, tornadoes, acts of God or public enemy,
revolutions, or insurrection; or any other cause, contingency,
circumstance or delay not subject to DST's reasonable control
which prevents or hinders DST's performance hereunder.
B. DST currently maintains an agreement with a third party whereby DST is
to be permitted to use on a "shared use" basis a "hot site" (the
"Recovery Facility") maintained by such party in event of a disaster
rendering the DST Facilities inoperable. DST has developed and is
continually revising a business contingency plan (the "Business
Contingency Plan") detailing which, how, when, and by whom data
maintained by DST at the DST Facilities will be installed and operated
at the Recovery Facility. Provided the Trust is paying its pro rata
portion of the charge therefor, DST would, in event of a disaster
rendering the DST Facilities inoperable, use reasonable efforts to
convert the TA2000 (TRADEMARK) System containing the designated the
Trust data to the computers at the Recovery Facility in accordance
with the then current Business Contingency Plan.
<PAGE>
C. DST also currently maintains, separate from the area in which the
operations which provides the services to the Trust hereunder are
located, a Crisis Management Center consisting of phones, computers
and the other equipment necessary to operate a full service transfer
agency business in the event one of its operations areas is rendered
inoperable. No guarantee can or is being made that such Crisis
Management Center includes enough equipment to fully support all DST
full service transfer agency activities. The transfer of operations
to other operating areas or to the Crisis Management Center is also
covered in DST's Business Contingency Plan.
16. CERTIFICATION OF DOCUMENTS.
The required copy of the Agreement and Declaration of Trust of the Trust
and copies of all amendments thereto will be certified by the Secretary of
State (or other appropriate official) of the State of Incorporation, and
if such Agreement and Declaration of Trust and amendments are required by
law to be also filed with a county, city or other officer of official
body, a certificate of such filing will appear on the certified copy
submitted to DST. A copy of the order or consent of each governmental or
regulatory authority required by law to the issuance of the stock will be
certified by the Secretary or Clerk of such governmental or regulatory
authority, under proper seal of such authority. The copy of the Bylaws
and copies of all amendments thereto, and copies of resolutions of the
Board of Trustees of the Trust, will be certified by the Clerk or an
Assistant Clerk of the Trust under the Trust's seal.
17. RECORDS.
DST will maintain customary records in connection with its agency, and
particularly will maintain those records required to be maintained
pursuant to subparagraph (2)(iv) of paragraph (b) of Rule 31a-1 under the
Investment Company Act of 1940, if any.
18. DISPOSITION OF BOOKS AND RECORDS.
DST may send periodically to the Trust, or to where designated by the
Clerk or an Assistant Clerk of the Trust, all books, documents, and
records no longer deemed needed for current purposes, upon the
understanding that such books, documents and records will be maintained by
the Trust under and in accordance with the requirements of Section 17Ad-7
adopted under the Securities Exchange Act of 1934. Such materials will
not be destroyed by the Trust without the consent of DST (which consent
will not be unreasonably withheld), but will be safely stored for possible
future reference.
19. PROVISIONS RELATING TO DST AS TRANSFER AGENT.
A. DST will make original issues of stock certificates upon written
request of an officer of the Trust and upon being furnished with a
certified copy of a resolution of the Board of Trustees authorizing
such original issue, an opinion of counsel as outlined in
subparagraphs LD. and G. of this Agreement, any documents required by
Sections 5. or 10. of this Agreement, and necessary Trusts for the
payment of any original issue tax.
<PAGE>
B. Before making any original issue of certificates the Trust will
furnish DST with sufficient funds to pay all required taxes on the
original issue of the stock, if any. The Trust will furnish DST such
evidence as may be required by DST to show the actual value of the
stock. If no taxes are payable DST will be furnished with an opinion
of outside counsel to that effect.
C. Registered ownership of shares of stock will be transferred and the
registration of new unissued shares will be effectuated, or unissued
shares of stock accepted for redemption and payment remitted therefor,
or book entry transfer be effected, upon receipt by DST of
instructions deemed by DST properly endorsed Tor transfer or
redemption accompanied by such documents as DST may deem necessary to
evidence the authority of the person making the transfer or
redemption. DST reserves the right to refuse to transfer or redeem
shares until it is satisfied that the endorsement or signature on the
certificate or any other document is valid and genuine, and for that
purpose it may require a guaranty of signature in accordance with the
Signature Guarantee Procedures. DST also reserves the right to refuse
to transfer or redeem shares until it is satisfied that the requested
transfer or redemption is legally authorized, and it will incur no
liability for the refusal in good faith to make transfers or
redemptions which, in its judgment, are improper or unauthorized. DST
may, in effecting transfers or redemptions, rely upon Simplification
Acts or other statutes which protect it and the Trust in not requiring
complete fiduciary documentation. In cases in which DST is not
directed or otherwise required to maintain the consolidated records of
shareholder's accounts, DST will not be liable for any loss which may
arise by reason of not having such records.
<PAGE>
D. DST will issue and mail subscription warrants, exchanges or split ups,
or act as Conversion Agent upon receiving written instructions from
any officer of the Trust and such other documents as DST deems
necessary.
E. DST will supply a shareholder's list to the Trust for its annual
meeting upon receiving a request from an officer of the Trust. It
will also, at the expense of the Trust, supply lists at such other
times as may be requested by an officer of the Trust.
F. Upon receipt of written instructions of an officer of the Trust, DST
will, at the expense of the Trust, address and mail notices to
shareholders.
G. In case of any request or demand for the inspection of the stock books
of the Trust or any other books in the possession of DST, DST will
endeavor to notify the Trust and to secure instructions as to
permitting or refusing such inspection. DST reserves the right,
however, to exhibit the stock books or other books to any person in
case it is advised by its counsel that it may be held responsible for
the failure to exhibit the stock books or other books to such person.
<PAGE>
20. PROVISIONS RELATING TO DIVIDEND DISBURSING AGENCY.
A. DST will, at the expense of the Trust, provide a special form of check
containing the imprint of any device or other matter desired by the
Trust. Said checks must, however, be of a form and size convenient
for use by DST.
B. If the Trust desires to include additional printed matter, financial
statements, etc., with the dividend checks, the same will be furnished
DST within a reasonable time prior to the date of mailing of the
dividend checks, at the expense of the Trust.
C. If the Trust desires its distributions mailed in any special form of
envelopes, sufficient supply of the same will be furnished to DST but
the size and form of said envelopes will be subject to the approval of
DST. If stamped envelopes are used, they must be furnished by the
Trust; or if postage stamps are to be affixed to the envelopes, the
stamps or the cash necessary for such stamps must be furnished by the
Trust.
D. DST shall establish and maintain on behalf of the Trust one or more
deposit accounts as Agent for the Trust, into which DST shall deposit
the funds DST receives for payment of dividends, distributions,
redemptions or other disbursements provided for hereunder and to draw
checks against such accounts.
E. DST is authorized and directed to stop payment of checks theretofore
issued hereunder, but not presented for payment, when the payees
thereof allege either that they have not received the checks or that
such checks have been mislaid, lost, stolen, destroyed or through no
fault of theirs, are otherwise beyond their control, and cannot be
produced by them for presentation and collection, and, to issue and
deliver duplicate checks in replacement thereof.
<PAGE>
21. ASSUMPTION OF DUTIES BY THE TRUST OR AGENTS DESIGNATED BY THE TRUST.
A. The Trust or its designated agents other than DST may assume certain
duties and responsibilities of DST or those services of Transfer Agent
and Dividend Disbursing Agent as those terms are referred to in
Section 4.D. of this Agreement including but not limited to answering
and responding to telephone inquiries from shareholders and brokers,
accepting shareholder and broker instructions (either or both oral and
written) and transmitting orders based on such instructions to DST,
preparing and mailing confirmations, obtaining certified TIN numbers,
classifying the status of shareholders and shareholder accounts under
applicable tax law, establishing shareholder accounts on the TA2000
(TRADEMARK) System and assigning social codes and Taxpayer
Identification Number codes thereof, and disbursing monies of the
Trust, said assumption to be embodied in writing to be signed by both
parties.
B. To the extent the Trust or its agent or affiliate assumes such duties
and responsibilities, DST shall be relieved from all responsibility
and liability therefor and. is hereby indemnified and held harmless
against any liability therefrom and in the same manner and degree as
provided for in Section 8 hereof.
C. Initially the Trust or its designees shall be responsible for
answering and responding to phone calls from shareholders and
broker-dealers, including without limitation forwarding
"transaction-related" calls to DST via speed-dialing or any other
mutually satisfactory means.
<PAGE>
22. TERMINATION OF AGREEMENT.
A. This Agreement shall be in effect for an initial period of five (5)
years and thereafter may be terminated by either party upon receipt of
one (1) year's written notice from the other party, provided, however,
that the effective date of any termination shall not occur during the
period from December 15 through March 30 of any year to avoid
adversely impacting year end.
B. Each party, in addition to any other rights and remedies, shall have
the right to terminate this Agreement forthwith upon the occurrence at
any time of any of the following events with respect to the other
party:
(1) The bankruptcy of the other party or its assigns or the
appointment of a receiver for the other party or its assigns;
(2) Failure by the other party or its assigns to perform its duties
in accordance with the Agreement, which failure materially
adversely affects the business operations of the first party and
which failure continues for thirty (30) days after receipt of
written notice from the first party.
C. In the event of termination, the Trust will promptly pay DST all
amounts due to DST hereunder. In addition, if this Agreement is
terminated by the Trust for any reason other than those set forth in
Sections 22.B. hereof, then the Trust shall pay to DST a termination
fee equal to the lesser of (i) the aggregate of the fees charged to
the Trust during the previous six (6) calendar months preceding
receipt of the notice or (ii) the average monthly fee over the
preceding six (6) months times the number of months remaining in the
then current term after termination. If the Trust shall not have been
billed for six (6) months before termination, the average monthly fee
shall be calculated by dividing the aggregate fees charged to the
Trust during whatever period it was billed by the number of months in
that period and that average monthly fee shall be multiplied by six
(6) in order to determine the aggregate fees in subparagraph 22.C.(i).
In any event, the effective date of any deconversion as a result of
termination hereof shall not occur during the period from December
15th through March 30th of any year to avoid adversely impacting year
end.
<PAGE>
D. In the event of termination, DST will use reasonable efforts to
transfer the records of the Trust to the designated successor transfer
agent, to provide reasonable assistance to the Trust and its
designated successor transfer agent, and to provide other information
relating to its services provided hereunder (subject to the recompense
of DST for such assistance at its standard rates and fees for
personnel then in effect at that time); provided, however, as used
herein "reasonable assistance" and "other information" shall not
include assisting any new service or system provider to modify, alter,
enhance, or improve its system or to improve, enhance, or alter its
current system, or to provide any new, functionality or to require DST
to disclose any DST Confidential Information, as hereinafter defined,
or any information which is otherwise confidential to DST.
<PAGE>
23 CONFIDENTIALITY.
A. DST agrees that, except as provided in the last sentence of
Section 19.J. hereof, or as otherwise required by law, DST will keep
confidential all records of and information in its possession relating
to the Trust or its shareholders or shareholder accounts ("Trust
Confidential Information") and will not disclose the same to any
person except at the request or with the consent of the Trust or, with
respect to information pertaining to securityholder accounts, pursuant
to subpoena.
B. The Trust agrees to keep confidential all financial statements and
other financial records (other than statements and records relating
solely to the Trust's business dealings with DST) and all manuals,
systems and other technical information and data, not publicly
disclosed, relating to DST's operations and programs furnished to it
by DST pursuant to this Agreement and will not disclose the same to
any person except at the request or with the consent of DST.
C. (1) The Trust acknowledges that DST has proprietary rights in and to
the TA2000 (TRADEMARK) System used to perform services hereunder
including, but not limited to the maintenance of shareholder
accounts and records, processing of related information and
generation of output, including, without limitation any changes
or modifications of the TA2000 (TRADEMARK) System and any other
DST programs, data bases, supporting documentation, or procedures
(collectively "DST Confidential Information") which the Trust's
access to the TA2000 (TRADEMARK) System or computer hardware or
software may permit the Trust or its employees or agents to
become aware of or to access and that the DST Confidential
Information constitutes confidential material and trade secrets
of DST. The Trust agrees to maintain the confidentiality of the
DST Confidential Information.
<PAGE>
(2) DST and the Trust each acknowledges that any unauthorized use,
misuse, disclosure or taking of Confidential Information of the
other which is confidential as provided by law, or which is a
trade secret, residing or existing internal or external to a
computer, computer system, or computer network, or the knowing
and unauthorized accessing or causing to be accessed of any
computer, computer system, or computer network, may be subject to
civil liabilities and criminal penalties under applicable state
law. DST and the Trust each will advise all of its employees and
agents who have access to any Confidential Information of the
other or to any computer equipment capable of accessing DST or
DST hardware or software of the foregoing.
(3) DST and the Trust each acknowledges that disclosure of the
other's Confidential Information may give rise to an irreparable
injury to the other inadequately compensable in damages.
Accordingly, the party whose Confidential Information is being,
has been or will be disclosed may seek (without the posting of any
bond or other security) injunctive relief against the breach of
the foregoing undertaking of confidentiality and nondisclosure, in
addition to any other legal remedies which may be available, and
DST and the Trust each consents, upon a proper showing that
disclosure of Confidential Information of the other has occurred
or is reasonably likely to occur in the future based on current
conditions, to the obtaining of such injunctive relief. All of
the undertakings and obligations relating to confidentiality and
nondisclosure, whether contained in this Section or elsewhere in
this Agreement shall survive the termination or expiration of this
Agreement for a period of ten (10) years.
<PAGE>
24. CHANGES AND MODIFICATIONS.
A. During the term of this Agreement DST will use on behalf of the Trust
without additional cost all modifications, enhancements, or changes
which DST may make to the TA2000 (TRADEMARK) System in the normal
course of its business and which are applicable to functions and
features offered by the Trust, unless substantially all DST clients
are charged separately for such modifications, enhancements or
changes, including, without limitation, substantial system revisions
or modifications necessitated by changes in existing laws, rules or
regulations. The Trust agrees to pay DST promptly for modifications
and improvements which are charged for separately at the rate provided
for in DST's standard pricing schedule which shall be identical for
substantially all clients, if a standard pricing schedule shall exist.
If there is no standard pricing schedule, the parties shall mutually
agree upon the rates to be charged.
B. DST shall have the right, at any time and from time to time, to alter
and modify any systems, programs, procedures or facilities used or
employed in performing its duties and obligations hereunder; provided
that the Trust will be notified as promptly as possible prior to
implementation of such alterations and modifications and that no such
<PAGE>
alteration or modification or deletion shall materially adversely
change or affect the operations and procedures of the Trust in using
or employing the TA2000 (TRADEMARK) System or DST Facilities hereunder
or the reports to be generated by such system and facilities
hereunder, unless the Trust is given thirty (30) days prior notice to
allow the Trust to change its procedures and DST provides the Trust
with revised operating procedures and controls.
C. All enhancements, improvements, changes, modifications or new features
added to the TA2000 (TRADEMARK) System however developed or paid for
shall be, and shall remain, the confidential and exclusive property
of, and proprietary to, DST.
25. SUBCONTRACTORS.
Nothing herein shall impose any duty upon DST in connection with or make
DST liable for the actions or omissions to act of unaffiliated third
parties such as, by way of example and not limitation, airborne delivery
services, the U.S. mails and telecommunication companies, provided, if DST
selected such company, DST shall have exercised due care in selecting the
same.
26. LIMITATIONS ON LIABILITY.
A. If the Trust is comprised of more than one Portfolio, Fund or Series
(each a "Portfolio") each Portfolio shall be regarded for all
purposes hereunder as a separate party apart from each other
Portfolio. Unless the context otherwise requires, with respect to
every transaction covered by this Agreement, every reference herein
to the Trust shall be deemed to relate solely to the particular
<PAGE>
Portfolio to which such transaction relates. Under no circumstances
shall the rights, obligations or remedies with respect to a
particular Portfolio constitute a right, obligation or remedy
applicable to any other Portfolio. The use of this single document
to memorialize the separate agreement of each Portfolio is understood
to be for clerical convenience only and shall not constitute any
basis for joining the Portfolios for any reason.
B. Notice is hereby given that a copy of the Trust's Agreement and
Declaration of Trust and all amendments thereto is on file with the
Secretary of State of the state of its organization; that this
Agreement has been executed on behalf of the Trust by the undersigned
duly authorized representative of the Trust in his/her capacity as
such and not individually; and that the obligations of this Agreement
shall only be binding upon the assets and property of the Trust and
shall not be binding upon any trustee, officer or shareholder of the
Trust individually.
27. MISCELLANEOUS.
A. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of
the State of Missouri, excluding that body of law applicable to choice
of law.
B. All terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
<PAGE>
C. The representations and warranties, and the indemnification extended
hereunder, if any, are intended to and shall continue after and
survive the expiration, termination or cancellation of this Agreement.
D. No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed
by each party hereto.
E. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
F. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
G. If any part, term or provision of this Agreement is by the courts held
to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be
affected, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain The
particular part, term or provision held to be illegal or invalid.
H. Except as otherwise provided in Section 27.N. of this Agreement, this
Agreement may not be assigned by either DST or the Trust without the
prior written consent of the other party.
I. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between the
Trust and DST. It is understood and agreed that all services
performed hereunder by DST shall be as an independent contractor and
not as an employee of the Trust. This Agreement is between DST and
the Trust and neither this Agreement nor the performance of services
under it shall create any rights in any third parties. There are no
third party beneficiaries hereto.
J. Except as specifically provided herein, this Agreement does not in any
way affect any other agreements entered into among the parties hereto
and any actions taken or omitted by any party hereunder shall not
affect any rights or obligations of any other party hereunder.
K. The failure of either party to insist, upon the performance of any
terms or conditions of this Agreement or to enforce any rights
resulting from any breach of any of the terms or conditions of this
Agreement, including the payment of damages, shall not be construed as
a continuing or permanent waiver of any such tern-is, conditions,
rights or privileges, but the same shall continue and remain in full
force and effect as if no such forbearance or waiver had occurred.
<PAGE>
L. This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement, draft or agreement or
proposal with respect to the subject matter hereof, whether oral or
written, and this Agreement may not be modified except by written
instrument executed by both parties.
M. All notices, consents and other communications to be given hereunder
shall be in writing and deemed properly given if delivered in person
or if sent by U.S. mail, first class, postage prepaid, or if sent by
facsimile and thereafter confirmed by mail as follows:
<PAGE>
If to DST:
DST Systems, Inc.
1055 Broadway, 7th Floor
Kansas City, Missouri 64105
Attention: Senior Vice President-Full Service
Facsimile No.: (816) 435-3455
With a copy of non-operational notices to:
DST Systems, Inc.
1055 Broadway, 9th Floor
Kansas City, Missouri 64105
Attention: Legal Department
Facsimile No.: (816) 435-8630
If to the Trust:
The Omni Investment Fund
53 West Jackson Boulevard, Suite 818
Chicago, Illinois 60604
Attention: Gregory E. Wolf
Facsimile No.: (312) 922-0418
or to such other address as shall have been specified in writing by
the party to whom such notice is to be given.
N. This Agreement may be assigned by DST to Investors Fiduciary Trust
Company ("IFTC"), a wholly-owned subsidiary of State Street Bank and
Trust Company, by providing to the Trust a written notice of
assignment including IFTC's written acceptance of all of DST's rights
and obligations under this Agreement. In event of such assignment,
"DST Systems, Inc." and "DST" wherever they appear- in the Agreement
shall be deemed, and it shall be as if they were, deleted and replaced
by "Investors Fiduciary Trust Company" and "IFTC," respectively.
Notwithstanding anything herein to the contrary, the Trust
acknowledges that, in the event of the foregoing, IFTC shall be
entitled to, and will, subcontract certain of IFTC's obligations
hereunder to DST and that the Trust's indemnifications hereunder of
IFTC shall extend to and include DST.
<PAGE>
0. The representations and warranties contained herein shall survive the
execution of this Agreement. The representations and warranties
contained herein and the provisions of Section 8 hereof shall survive
the termination of the Agreement and the performance of services
hereunder until any statute of limitations applicable to the matter at
issues shall have expired.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers, to be effective as of the day
and year first above written.
DST SYSTEMS, INC.
By: Kenneth V. Hager
Title:Vice President and
Chief Financial Officer
THE OMNI INVESTMENT FUND
By: Gregory E. Wolf
Title:Treasurer
EXHIBIT A
FEE SCHEDULE, p.1
DST SYSTEMS, INC.
OMNI FUND
TRANSFER AGENCY FEE SCHEDULE
MARCH 7, 1996
A. ACCOUNT FEES -FN1
OPEN ACCOUNTS:
February 1, 1996 through January 31, 1997: $15.05 per account per year
February 1, 1997 through January 31, 1998: $15.65 per account per year
CLOSED ACCOUNTS:
February 1, 1996 through January 31, 1997: $3.00 per account per year
February 1, 1997 through January 31, 1998: $3.05 per account per year
B. DST PROCESSED TRANSACTION FEES
NEW ACCOUNT SET UP (OVER 15 PERCENT ANNUAL GROWTH):
Manual:
February 1, 1996 through January 31, 1997: $2.50
February 1, 1997 through January 31, 1998: $2.75
Automated/Uploaded New Account Set Up (Useable): $1.75
NSCC New Account Set Up: $1.50
SHAREHOLDER/BROKER DEALER CALLS (INBOUND/OUTBOUND):
Calls Answered Within 20 Seconds Standard:
February 1, 1996 through January 31, 1997: $1.75
February 1, 1997 through January 31, 1998: $2.00
- ----------------------------------------------------------------------------
FN1 - The foregoing account fees are subject to an annual minimum of
$33,000.00 in fees across the entire complex. Thus, if Berger Associates,
Inc. becomes the principal investment adviser to the Fund, the minimum shall
not apply at any time the total account fees from the Berger complex
exceeds $33,000.00.<PAGE>
<PAGE>
EXHIBIT A
FEE SCHEDULE, p. 2
Calls Not Answered Within 20 Second Standard:
February 1, 1996 through January 31, 1997: $1.50
February 1, 1997 through January 31, 1998: $1.75
Confirmed Orders/Wire Orders/Omnibus Account Transactions:
February 1, 1996 through January 31, 1997: $2.80
February 1, 1997 through January 31, 1998: $2.90
Audio Response:
February 1, 1996 through January 31, 1997: $.20/call
February 1, 1997 through January 31, 1998: $.22/call
C. SHAREOWNER CHARGES
Fiduciary Trustee Fees:
IRAs/SEPs: $12.00 per account per year
Qualified Plans: $25.00 per social security number per plan
D. OPTIONAL SERVICES
Automated Financial Intermediary
Interface (Schwab) - (Note: To be
negotiated for additional interfaces): $600 per month
Asset Allocation: $2.40 per nucleus account per
year
Asset Reallocation: $.25 per nucleus account per
cycle
Contingent Deferred Sales
Charge/Sharelot Accounting: $1.85 per account per year
12b-1 Processing: $ .15 per open and closed
account per cycle
State Withholding: $2.00 per applicable account per
year
Fulfillment Calls: $2.35
*Sales and Management Information
Information System (SAMIS):
Mainframe Hardcopy Reporting: $250 per month per applicable
portfolio
PC Based Remote SAMIS: $1,500 per month for the
relationship
Investor Facility: $2.40 per master account with
multiple linked accounts
per year
* Subject to change with 60 days prior notice.
PAGE
<PAGE>
EXHIBIT A
FEE SCHEDULE, p.3
Average Cost System: $5,000 per year of history converted
$.25 per account per year
*Mainframe Programming:
Dedicated Programming:
Mainframe Programmer: $98,000 per year
Client Services
Technical Support: $62,000 per year
IWS/AWD Programming: $125,000 per year
On Request:
Mainframe Programmer: $75 per hour
Client Services
Technical Support: $55 per hour
IWS/AWD Programming: $100 per hour
*Business Analysis:
Senior Staff Support: $55 per hour
Staff Support: $35 per hour
Clerical Support: $28 per hour
Escheatment Costs: As Incurred
NOTES TO THE ABOVE FEE SCHEDULE
FEE INCREASES
The fees and charges set forth in this Exhibit A shall increase annually upon
each February 1st, commencing with the fees to be charged effective February
1, 1998, over the fees and charges during the prior 12 months in an amount
equal to the annual percentage of change in the Consumer Price Index in the
Kansas City, Missouri-Kansas Metropolitan Statistical Area, All Items, Base
1982-1984=100, as last reported by the U.S. Bureau of Labor Statistics for the
12 calendar months immediately preceding such anniversary. In the event that
this Agreement was not signed as of the first day of the month, the fees and
charges increase shall be effective as of the first day of the month
immediately following the month during which the anniversary occurred.
OPEN AND CLOSED ACCOUNTS FEES
The monthly fee for an open account shall be charged in the month during which
an account is opened through the month in which such account is closed. The
monthly fee for a closed account shall be charged in the month following the
month during which such account is closed and shall cease to be charged in the
month following the Purge Date, as hereinafter defined. The "Purge Date" for
any year shall be any day after June 1st of that year, as selected by the
Trust, provided that written notification is presented to DST at least
forty-five (45) days prior to the Purge Date.
* Subject to change with 60 days prior notice.
<PAGE>
EXHIBIT A
FEE SCHEDULE, p. 4
REIMBURSABLE EXPENSES
Forms
Postage (to be paid in advance if so requested)
Outside Mailing Services
Computer Hardware
Telecommunications Equipment
Magnetic Tapes, Reels or Cartridges
Magnetic Tape Handling Charges
Microfiche/Microfilm
Freight Charges
Proxy Processing - per proxy mailed, not including postage - includes:
Proxy Card
Printing
Outgoing Envelope
Return Envelope
Tabulation
T.I.N. Certification (W-8 & W-9) - (Postage associated with return envelope
is included)
N.S.C.C. Communications Charge
(Trust/Serv and Networking): Currently $1,200.00 per Trust per Year
Off-site Record Storage:
Second-Site Disaster Currently $.07 (Guaranteed Not to
Backup Fee (Per Account) Exceed $.11 Through 12/31/97)
Transmission of Statement Data
for Remote Processing: Currently $.035 per record
Travel, Per Diem and Other Re-Billable
Expenses Incurred by DST Personnel
Traveling to, at and from the Trust at
the Request of the Trust:
<PAGE>
EXHIBIT B
AUTHORIZED PERSONNEL
Pursuant to Section 8.A. of the Agency Agreement between The Omni Investment
Fund (the "Trust") and DST (the "Agreement"), the Trust authorizes the
following Trust personnel to provide instructions to DST, and receive
inquiries from DST in connection with the Agreement:
NAME TITLE
________________________________________ _______________________________
________________________________________ _______________________________
________________________________________ _______________________________
________________________________________ _______________________________
________________________________________ _______________________________
________________________________________ _______________________________
This Exhibit may be revised by the Trust by providing DST with a substitute
Exhibit B. Any such substitute Exhibit B shall become effective twenty-four
(24) hours after DST's receipt of the document and shall be incorporated into
the Agreement.
ACKNOWLEDGMENT OF RECEIPT:
DST SYSTEMS, INC. THE OMNI INVESTMENT FUND
By: By:
Title: Title:
Date: Date:
RETIREMENT PLAN CUSTODIAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of the 22nd day of July, 1996,
by and between THE OMNI INVESTMENT FUND, a Massachusetts business trust
("Company"), and INVESTORS FIDUCIARY TRUST COMPANY, a Missouri trust company
("IFTC").
WHEREAS, Company desires to name a custodial trustee without discretionary
trust powers and/or a custodian (in either or both capacities a "Custodian")
for individual retirement accounts, simplified employee pension plans,
403(b)(7) custodial accounts and defined contribution retirement plans
(whether or not "qualified" under the Internal Revenue Code of 1986 ("Code")
and whether or not subject to the Employee Retirement Income Security Act of
1974 ("ERISA")) (all such accounts and plans are herein referred to
collectively as "Plans") which Company sponsors, or may hereafter sponsor, for
participants to invest solely in shares of the Company (the "Fund"); and
WHEREAS, IFTC is willing to serve as Custodian with respect to Plans
approved by IFTC, but only on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. IFTC shall serve as Custodian for Plans sponsored by the Company
which IFTC approves as hereinafter provided. Company and IFTC agree to
evidence their agreement for IFTC to act as such with respect to each Plan
approved by IFTC by executing a Retirement Plan Custodial Services
Confirmation substantially in the form attached hereto as Exhibit A
("Confirmation"), and each party agrees to execute such further documents
evidencing such agreement as may be reasonably requested by either party from
time to time. As to each Plan, the "Effective Date" for purposes hereof shall
be the date specified as such in the Confirmation for such Plan. IFTC
certifies that it is qualified to act as Custodian for the Plans under the
requirements of the Code.
2. No Plan shall provide for IFTC to serve as Custodian for any
assets whatsoever other than shares of the Funds. In no event shall any Plan
provide for IFTC (i) to have or exercise any discretionary authority or
discretionary control whatsoever respecting management of the Plan or any
authority or control respecting management or disposition of any assets of the
Plan; (ii) to render or have authority or responsibility to render investment
advice with respect to any moneys or other property of any Plan; or (iii) to
have or exercise any discretionary authority or discretionary responsibility
in the administration of any Plan. No Plan shall provide for IFTC to be, and
in no event shall IFTC be deemed to be, a "fiduciary" as defined in ERISA.
3. IFTC shall serve as Custodian with respect to shares of each Fund
only during such period of time as such Fund maintains its shareholder
<PAGE>
accounts and records on the computerized mutual fund record keeping system of
DST Systems, Inc. (the "System"). IFTC shall at all times have full access to
and use of all accounts and records relating to accounts on which IFTC is
named custodian or trustee and which are maintained on the System for purposes
of performing its duties and obligations as such custodian or trustee. In
addition, IFTC, its auditors and accountants, and to the extent required by
law its regulatory authorities, shall have full access at all times to all
such accounts and records for purposes of audit, examination, and testing and
verifying compliance with the terms of the Plans and any other applicable
governing documents, all applicable requirements of law and all applicable
accounting standards. Company hereby irrevocably authorizes and instructs DST
Systems, Inc. to provide such access to IFTC and to permit IFTC to make use of
such accounts and records upon demand. The Company irrevocably acknowledges
and agrees that IFTC may appoint agents and subcontractors with respect to
servicing such accounts. The provisions of this paragraph shall continue
after the termination of the System and other services provided by DST
Systems, Inc. to the Fund for so long as such access to and use of such
accounts and records may be reasonably required by IFTC. Further, Company
shall deliver to IFTC a Consent and Authorization from each Fund substantially
in the form attached hereto as Exhibit B. IFTC's agreement to serve as
Custodian hereunder shall not be effective as to any Fund until IFTC has
received such Consent and Authorization executed by such Fund.
4. Company shall submit to IFTC for approval all Plans for which
Company wishes for IFTC to serve as Custodian, including any and all related
application forms, adoption agreements, transfer request forms, disclosure
statements, Plan loan-related documents, beneficiary designation forms and any
other Plan-related documents ("Plan Documents"), and any and all amendments,
modifications and supplements thereto which Company may propose to use from
time to time. IFTC shall not become the Custodian of any Plan unless and
until it has approved the applicable Plan Documents in writing as evidenced by
its execution of the Confirmation referencing the same, and IFTC shall not be
deemed to have accepted and agreed to any subsequent amendment, modification
or supplement to any Plan Document unless and until it has approved the same
in writing. IFTC's review and approval of all Plan Documents and any and all
amendments, modifications and supplements thereto is solely for IFTC's
benefit, and Company shall bear full responsibility for the form and content
thereof and compliance with all applicable laws, rules and regulations, as
amended from time to time. Company shall be responsible for acquiring, at
Company's sole expense, Internal Revenue Service determination letters ("IRS
Letters") with respect to all Plans for which such determination letters are
required by the Code and shall promptly provide IFTC copies thereof.
5. Company shall be solely responsible for all costs and expenses (i)
of preparing, printing and distributing all Plan Documents and amendments,
modifications and supplements thereto, including but not limited to costs and
expenses necessary in order to comply with new or amended laws, rules and
regulations, or (ii) related to or arising from any merger, reorganization,
dissolution, termination or other organizational change involving any Plan,
any Fund or Company.
6. With respect to all existing and future Plans (if any) with
enrolled participants prior to the Effective Date of such Plans (including but
<PAGE>
not limited to Plans associated with any investment companies hereafter
acquired):
(i) Company, at its sole expense, shall in a timely manner obtain the
removal or resignation of any prior trustee or custodian, modify and amend
Plan Documents as necessary to name IFTC as Custodian and give all notices,
obtain all approvals and take such other steps as may be required in
connection therewith under the Plan Documents and applicable laws, rules and
regulations.
(ii) Except as provided in the next paragraph, Company, at its sole
expense, shall cause to be prepared, mailed, distributed and filed all tax
reports, information returns and other documents required by the Code with
respect to Plan accounts ("Returns"), and shall cause to be withheld and paid
all taxes relating to such accounts, with respect to that portion of the
calendar year occurring prior to the Effective Date.
(iii) Provided that IFTC consents to do so in writing, IFTC shall
cause to be prepared, mailed, distributed and filed all Returns for the
calendar year in which the Effective Date occurs; provided, however, that
Company shall provide or cause to be provided to IFTC all necessary
information with respect to the portion of such year prior to the Effective
Date. IFTC shall be entitled to rely on the accuracy and completeness of such
information with no duty to investigate or verify the same, and Company shall
indemnify and hold harmless IFTC from and against, any and all losses,
liabilities, claims, demands, actions, suits and expenses (including
reasonable attorneys fees and penalties and other sums assessed by any
federal, state or local governmental agency including the Internal Revenue
Service and the United States Department of Labor ("Government Authority"))
arising out of or resulting from any error, omission, inaccuracy or other
deficiency therein. Company, at its sole expense, shall cause to be withheld
and paid all taxes relating to such accounts with respect to that portion of
the calendar year occurring prior to the Effective Date.
(iv) If and to the extent necessary to permit performance of all
duties and obligations of the Custodian, Company, at its sole expense, shall
transfer or cause to be transferred onto the System to the maximum extent
possible, and shall otherwise deliver or cause to be delivered to the transfer
agent or other agent(s) which will perform shareholder account record keeping
and servicing functions with respect to Plan accounts after the Effective
Date, all relevant records previously maintained with respect to the accounts
of participants in such Plans.
(v) IFTC shall have no responsibility for, and Company shall, except
to the extent (if any) prohibited by ERISA, indemnify and hold harmless IFTC
from and against, any and all losses, liabilities, claims, demands, actions,
suits and expenses (including reasonable attorneys fees and penalties and
other sums assessed by any Government Authority) arising out of or resulting
from (a) any acts, omissions or errors of any previous trustee or custodian,
including but not limited to its failure to file or mail any Returns, withhold
<PAGE>
or pay any taxes, or file any schedules or other required information, (b) any
error, omission, inaccuracy or other deficiency in the Plan participant
account records or other relevant records created and maintained prior to the
Effective Date, or (c) costs and expenses of enforcing Company's obligations
and agreements hereunder.
7. As compensation for its services as Custodian as provided for in
this Agreement, the Company agrees that IFTC shall be paid the fees set forth
in Exhibit C attached hereto, as the same may be amended from time to time by
mutual agreement of the parties.
8. Subject to any longer notice periods required by the Plan
Documents, Company may remove IFTC, and IFTC may resign, as Custodian of any
or all the Plans by providing sixty (60) days written notice to the other
party. In the event of such removal or resignation, Company, at its sole
expense, shall in a timely manner appoint a successor trustee or custodian,
modify and amend Plan Documents as necessary to delete all references to IFTC,
and give all notices, obtain all approvals and take such other steps as may be
required in connection therewith under the Plan Documents and applicable laws,
rules and regulations.
9. Except to the extent (if any) prohibited by ERISA, and except to
the extent resulting from the negligence or willful misconduct of IFTC,
Company shall indemnify and hold harmless IFTC from and against any and all
losses, liabilities, claims, demands, actions, suits and expenses whatsoever
(including reasonable attorneys fees, penalties and other sums assessed by any
Government Authority, and all costs and expenses of enforcing Company's
obligations and agreements hereunder) arising out of, resulting from or in
connection with (i) the Plans and Plan Documents, (ii) the appointment of and
service by IFTC as Custodian therefor, (iii) any acts, omissions or errors of
any successor trustee or custodian (including but not limited to its failure
to file or mail any Returns, reports, schedules or other required
documentation, or withhold or pay any taxes) or of any Plan administrator, co-
trustee or other fiduciary, (iv) any instructions given by or on behalf of the
Fund, or any policies, procedures or practices adopted or followed by any
Fund, the Company or the Fund's transfer or other shareholder servicing
agent(s) (other than IFTC), with respect to shareholder account record keeping
and servicing which impacts Plan accounts, or (v) the failure of Company to
perform any of its obligations hereunder. Except to the extent (if any )
prohibited by ERISA, and except to the extent resulting from the negligence or
willful misconduct of Company, IFTC shall indemnify and hold harmless Company
from and against any and all losses, liabilities, claims, demands, actions,
suits and expenses whatsoever (including reasonable attorneys fees, penalties
and other sums assessed by any Governmental Agency, and all costs and expenses
of enforcing IFTC's obligations. and agreements hereunder) arising out of,
resulting from or in connection with the failure of IFTC to perform any of its
obligations hereunder.
10. This Agreement shall be construed according to, and the rights
and liabilities of the parties hereto shall be governed by, the laws of the
State of Missouri, without reference to the conflicts of laws principles
thereof.
11. All terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and their
<PAGE>
respective successors and permitted assigns. This Agreement may not be
assigned by either party without the prior written consent of the other party.
12. The provisions for indemnification extended hereunder are
intended to and shall continue after and survive the expiration, termination
or cancellation of this Agreement. All rights and remedies of each party
hereunder shall be cumulative of all other rights and remedies which may be
available to such party.
13. No provisions of the Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by each
party hereto.
14. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
15. If any provision of this Agreement shall be determined to be
invalid or unenforceable, the remaining provisions of this Agreement shall not
be affected thereby, and every provision of this Agreement shall remain in
full force and effect and shall remain enforceable to the fullest extent
permitted by applicable law.
16. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between Company and
IFTC.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written by their respective duly authorized
officers.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ Stephen R. Hilliard
Name: Stephen R. Hilliard
Title: Executive Vice President
THE OMNI INVESTMENT FUND
By: /s/ Gregory E. Wolf
Name: Gregory E. Wolf
Title: Treasurer
<PAGE>
EXHIBIT A
RETIREMENT PLAN CUSTODIAL SERVICES CONFIRMATION
THIS CONFIRMS THAT THE OMNI INVESTMENT FUND ("Company") has designated, and
hereby designates, INVESTORS FIDUCIARY TRUST COMPANY, a Missouri trust company
with offices at 127 West Tenth Street, Kansas City, Missouri 64105 ("IFTC"),
as [custodial trustee without discretionary trust powers/custodian] under the
[individual retirement account/simplified employee pension/403(b)(7) custodial
account/defined contribution retirement] plan(s) ("Plan(s)") sponsored by
Company, which [is/are] created and governed by the following described Plan
documents:
IFTC has accepted, and hereby accepts, such appointment and certifies that it
is qualified to act as such [custodial trustee without discretionary trust
powers/custodian] under the applicable provisions of the Internal Revenue Code
of 1986, as amended.
This agreement is made under and subject to the terms of that certain
Retirement Plan Custodial Services Agreement by and between Company and IFTC
dated as of _____________, 199___ (the "Agreement"), which is hereby
incorporated herein by reference.
The Effective Date of this agreement for purposes of the Agreement shall be
_____________.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed by
their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By:_______________________________
Name:_____________________________
Title:____________________________
THE OMNI INVESTMENT FUND
By:________________________________
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT B
CONSENT AND AUTHORIZATION
In consideration of Investors Fiduciary Trust Company ("IFTC") serving as
custodian and/or custodial trustee for the Accounts (as hereinafter defined),
the undersigned registered investment company agrees that IFTC shall at all
times have full access to and use of all accounts and records relating to
Accounts which are maintained on the computerized mutual fund shareholder
record keeping system of DST Systems, Inc. (the "System") for purposes of
performing its duties and obligations as such custodian and/or custodial
trustee. In addition, IFTC, its auditors and accountants, and to the extent
required by law its regulatory authorities, shall have full access at all
times to all such accounts and records for purposes of audit, examination, and
testing and verifying compliance with all applicable requirements of law, all
applicable accounting standards, and the terms of the retirement plan
documents, trust and custody agreements and other applicable governing
documents relating to the Accounts.
DST Systems, Inc. is hereby authorized and instructed to provide such access
to IFTC and to permit IFTC to make use of such accounts and records upon
demand. The undersigned acknowledges and agrees that DST Systems, Inc. may
serve as agent and sub-contractor of IFTC with respect to the Accounts.
The provisions of this Consent and Authorization shall continue after the
termination of the System and other services provided by DST Systems, Inc. to
the undersigned for so long as such access to and use of such accounts and
records may be reasonably required by IFTC.
The term "Accounts" shall mean all individual retirement accounts, simplified
employee pension plan accounts, 403(b)(7) custodial accounts, Keogh accounts,
defined contribution retirement plan accounts and other accounts of any type
for which IFTC may from time to time be named as custodian or trustee which
contain shares issued by the undersigned investment company.
This Consent and Authorization is irrevocable in every respect, shall be
binding upon the undersigned and its successors and assigns and shall inure to
the benefit of IFTC and DST Systems, Inc. and their respective successors and
assigns.
THE OMNI INVESTMENT FUND
By:__________________________
Name: _______________________
Title:_______________________
<PAGE>
EXHIBIT C
FEE SCHEDULE
Individual Retirement Accounts: $12.00 per IRA per year.
RETIREMENT PLAN CUSTODIAL SERVICES CONFIRMATION
THIS CONFIRMS THAT THE OMNI INVESTMENT FUND ("Company") has designated, and
hereby designates, INVESTORS FIDUCIARY TRUST COMPANY, a Missouri trust company
with offices at 127 West Tenth Street, Kansas City, Missouri 64105 ("IFTC"),
as custodian under the individual retirement account plan ("Plan") sponsored
by Company, which is created and governed by the following described Plan
documents:
The Omni Investment Fund IRA
IFTC has accepted, and hereby accepts, such appointment and certifies that it
is qualified to act as such custodian under the applicable provisions of the
Internal Revenue Code of 1986, as amended.
This agreement is made under and subject to the terms of that certain
Retirement Plan Custodial Services Agreement by and between Company and IFTC
dated as of July 22, 1996 (the "Agreement"), which is hereby incorporated
herein by reference.
The Effective Date of this agreement for purposes of the Agreement shall be
July 22, 1996.
IN, WITNESS WHEREOF, the parties have caused this instrument to be executed by
their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ Stephen R. Hilliard
Name: Stephen R. Hilliard
Title: Executive Vice President
THE OMNI INVESTMENT FUND
By: /s/ Gregory E. Wolf
Name: Gregory E. Wolf
Title: Treasurer
FORM 5305-A
(Rev. October 1992)
Department of the Treasury
Internal Revenue Service
INDIVIDUAL RETIREMENT CUSTODIAL ACCOUNT
(Under Section 408(a) of the Internal Revenue Code)
DO NOT File
with the
Internal
Revenue Service
- --------------------------------------------------------------------------
Name of Depositor ________________________________________________
Date of birth of depositor ________________________________________
Identifying number (see instructions)______________________________
Address of depositor ______________________________________________
Check if Amendment _______
Name of custodian: INVESTORS FIDUCIARY TRUST COMPANY
Address or principal place
of business of custodian: KANSAS CITY, MISSOURI
- ---------------------------------------------------------------------------
The Depositor whose name appears above is establishing an individual
retirement account under section 408(a) to provide for his or her retirement
and for the support of his or her beneficiaries after death.
The Custodian named above has given the Depositor the disclosure statement
required under Regulations section 1.408-6.
The Depositor has assigned the custodial account... dollars($....) in cash.
The Depositor and the Custodian make the following agreement:
ARTICLE I
The Custodian may accept additional cash contributions on behalf of the
Depositor for a tax year of the Depositor. The total cash contributions are
limited to $2,000 for the tax year unless the contribution is a rollover
contribution described in section 402(c) (but only after December 31, 1992),
403(a)(4), 403(b)(8), 408(d)(e), or an employer contribution to a simplified
employee pension plan as described in section 408(k). Rollover contributions
before January 1, 1993, include rollovers described in section 402(a)(5),
402(a)(6), 402(a)(7), 403(a)(4), 403(b)(8), 403(d)(3), or an employer
contribution to a simplified employee pension plan as described in section
408(k).
ARTICLE II
The Depositor's interest in the balance in the custodial account is
nonforfeitable.
ARTICLE III
1. No part of the custodial funds may be invested in life insurance
contracts, nor may the assets of the custodial account be commingled with
other property except in a common trust fund or common investment fund (within
the meaning of section 408(a)(5)).
2. No part of the custodial funds may be invested in collectibles (within
the meaning of section 408(m)) except as otherwise permitted by section
408(m)(3) which provides an exception for certain gold and silver coins and
coins issued under the laws of any state.
ARTICLE IV
1. Notwithstanding any provision of this agreement to the contrary, the
distribution of the Depositor's interest in the custodial account shall be
made in accordance with the following requirements and shall otherwise comply
with section 408(a)(6) and Proposed Regulations section 1.408-8, including the
incidental death benefit provisions of Proposed Regulations section
1.401(a)(9)-2, the provisions of which are incorporated by reference.
2. Unless otherwise elected by the time distributions are required to begin
to the Depositor under paragraph 3, or to the surviving spouse under paragraph
4, other than in the case of a life annuity, life expectancies shall be
recalculated annually. Such election shall be irrevocable as to the Depositor
and the surviving spouse and shall apply to all subsequent years. The life
expectancy of a nonspouse beneficiary may not be recalculated.
3. The Depositor's entire interest in the custodial account must be, or
begin to be, distributed by the Depositor's required beginning date, (April 1
following the calendar year end in which the Depositor reaches age 70 1/2).
By that date, the Depositor may elect, in a manner acceptable to the
Custodian, to have the balance in the custodial account distributed in:
(a) A single sum payment.
(b) An annuity contract that provides equal or substantially equal
monthly, quarterly, or annual payments over the life of the
Depositor.
(c) An annuity contract that provides equal or substantially equal
monthly, quarterly, or annual payments over the joint and last
survivor lives of the Depositor and his or her designated
beneficiary.
(d) Equal or substantially equal annual payments over a specified period
that may not be longer than the Depositor's life expectancy.
(e) Equal or substantially equal annual payments over a specified period
that may not be longer than the joint life and last survivor
expectancy of the Depositor and his or her designated beneficiary.
4. If the Depositor dies before his or her entire interest is distributed
to him or her, the entire remaining interest will be distributed as follows:
(a) If the Depositor dies on or after distribution of his or her interest
has begun, distribution must continue to be made in accordance with
paragraph 3.
(b) If the Depositor dies before distribution of his or her interest has
begun, the entire remaining interest will, at the election of the
Depositor or, if the Depositor has not so elected, at the election of
the beneficiary or beneficiaries, either
(i) Be distributed by the December 31 of the year containing the
fifth anniversary of the Depositor's death, or
(ii) Be distributed in equal or substantially equal payments over
the life or life expectancy of the designated beneficiary or
beneficiaries starting by December 31 of the year following
the year of the Depositor's death. If, however, the
beneficiary is the Depositor's surviving spouse, then this
distribution is not required to begin before December 31 of
the year in which the Depositor would have turned age 70 1/2.
(c) Except where distribution in the form of an annuity meeting the
requirements of section 408(b)(3) and its related regulations has
irrevocably commenced, distributions are treated as having begun on
the Depositor's required beginning date, even though payments may
actually have been made before that date.
(d) If the Depositor dies before his or her entire interest has been
distributed and if the beneficiary is other than the surviving
spouse, no additional cash contributions or rollover contributions
may be accepted in the account.
<PAGE>
5. In the case of a distribution over life expectancy in equal or
substantially equal annual payments, to determine the minimum annual payment
for each year, divide the Depositor's entire interest in the Custodial account
as of the close of business on December 31 of the preceding year by the life
expectancy of the designated beneficiary, whichever applies). In the case of
distributions under paragraph 3, determine the initial life expectancy (or
joint life and last survivor expectancy) using the attained ages of the
Depositor and designated beneficiary as of their birthdays in the year the
Depositor reaches age 70 1/2. In the case of a distribution in accordance
with paragraph 4(b)(ii), determine life expectancy using the attained age of
the designated beneficiary as of the beneficiary's birthday in the year the
distributions are required to commence.
6. The owner of two or more individual retirement accounts may use the
"alternative method" described in Notice 88-38, 1988-1 C.B. 5245, to satisfy
the minimum distribution requirements described above. This method permits an
individual to satisfy these requirements by taking from one individual
retirement account the amount required to satisfy the requirement for another.
ARTICLE V
1. The Depositor agrees to provide the Custodian with information necessary
for the Custodian to prepare any reports required under section 408(i) and
Regulations sections 1.408-5 and 1.408-6.
2. The Custodian agrees to submit reports to the Internal Revenue Service
and the Depositor prescribed by the Internal Revenue Service.
ARTICLE VI
Notwithstanding any other articles which may be added or incorporated, the
provisions of Articles I through III and this sentence will be controlling.
Any additional articles that are not consistent with section 408(a) and the
related regulations will be invalid.
ARTICLE VII
This agreement will be amended from time to time to comply with the
provisions of the Code and regulated regulations. Other amendments may be
made with the consent of the persons whose signatures appear below.
- -----------------------------------------------------------------------------
NOTE: The following space (Article VIII) may be used for any other provisions
you want to add. If you do not want to add any other provisions, draw
a line through this space. If you do add provisions, they must comply
with applicable requirements of state law and the Internal Revenue
Code.
- -----------------------------------------------------------------------------
ARTICLE VIII
The text of Article VIII is attached as "Attachment to IRS Form 5305-A:
Article VIII" to this Form 5305-A and is incorporated herein by reference.
- -----------------------------------------------------------------------------
Depositor's signature ______________________________________Date_____________
Custodian's signature_______________________________________Date_____________
Witness _____________________________________________________________________
(Use only if signature of the Depositor or the Custodian is required to be
witnessed.)
- -----------------------------------------------------------------------------
GENERAL INSTRUCTIONS
(Section references are to the Internal Revenue Code unless otherwise noted.)
PURPOSE OF FORM
Form 5305-A is a model custodial account agreement that meets the requirements
of section 408(a) and has been automatically approved by the IRS. An
individual retirement account (IRA) is established after the form is fully
executed by both the individual (Depositor) and the Custodian and must be
completed no later than the due date of the individual's income tax return for
the tax year (without regard to extensions). This account must be created in
the United Stats for the exclusive benefit of the Depositor or his or her
beneficiaries.
Individuals may rely on regulations for the Tax Reform Act of 1986 to the
extent specified in those regulations.
Do not file Form 5305-A with the IRS. Instead, keep it for your records.
For more information on IRAs, including the required disclosure you can get
from your custodian, get Pub. 590, Individual Retirement Arrangements (IRAs).
DEFINITIONS
CUSTODIAN.--The Custodian must be a bank or savings and loan association, as
defined in section 408(n), or any person who has the approval of the IRS to
act as custodian.
DEPOSITOR.--The Depositor is the person who establishes the custodial account.
IDENTIFYING NUMBER
The depositor's social security number will serve as the identification number
of his or her IRA. An employer identification number is only required for
each participant-directed IRA. An employer identification number is required
for a common fund created for IRAs.
IRA FOR NONWORKING SPOUSE
Form 5305-A may be used to establish the IRA custodial account for a
nonworking spouse.
Contributions to an IRA custodial account for a nonworking spouse must be made
to a separate IRA custodial account established by the nonworking spouse.
SPECIFIC INSTRUCTIONS
ARTICLE IV.--Distributions made under this article may be made in a single
sum, periodic payment, or a combination of both. The distribution option
should be reviewed in the year the Depositor reaches age 70 1/2 to ensure that
the requirements of section 408(a)(6) have been met.
ARTICLE VIII.--Article VIII and any that follow it may incorporate additional
provisions that are agreed to by the depositor and custodian to complete the
agreement. They may include, for example, definitions, investment powers,
voting rights, exculpatory provisions, amendment and termination, removal of
the custodian, custodian's fees, state law requirements, beginning date of
distributions, accepting only cash, treatment of excess contributions,
prohibited transactions with the depositor, etc. Use additional pages if
necessary and attach them to this form.
NOTE: Form 5305-A may be reproduced and reduced in size for adoption to
passbook purposes.
- -----------------------------------------------------------------------------
ATTACHMENT TO IRS FORM 5305-A: ARTICLE VIII
1. DEFINITIONS. The following definitions shall apply to terms used in this
Article VIII:
a. "Application" shall mean the IRA Application submitted by the
Depositor to the Custodian.
b. "Code" shall mean the Internal Revenue Code of 1986, as amended,
including any regulations, procedures, rulings, or notices issued
thereunder.
c. "Company" shall mean The Omni Investment Fund.
d. "Custodial Account" shall mean the custodial account established under
this element.
2. INVESTMENT OF CONTRIBUTIONS. Contributions shall be invested in shares of
the Company mutual funds in accordance with the Depositor's written
instructions in the Application, and with subsequent written instructions
of the Depositor (or, following the death of the Depositor, his or her
beneficiary) in a form acceptable to and filed with the Custodian. By
giving such instructions, the Depositor (or beneficiary, where applicable)
will be deemed to have acknowledged receipt of the then current prospectus
for any shares in which the Depositor (or beneficiary) directs the
Custodian to invest contributions. The Depositor, by making a rollover
contribution, as described in Article I, hereby certifies that the
contribution meets all requirements for rollover contributions. The
amount of each contribution shall be applied to the purchase of such
shares at the price and in the manner in which such shares are then being
publicly offered by the Company in accordance with the then current
prospectus, and such shares shall be credited to the Custodial Account.
All dividends and capital gain distributions received on the shares of the
fund held in each Custodial Account shall (unless received in additional
shares of such fund) be reinvested in such shares which shall be credited
to such Custodial Account. If any distribution on shares of the fund may
be received at the election of the shareholder in additional shares or in
cash or other property, the Custodian shall elect to receive such
distribution in additional shares. The Custodian shall not be liable for
interest on any cash balance in the Custodial Account. All Company shares
acquired by the Custodian shall be registered in the name of the Custodian
or its registered nominee.
3. VOTING WITH RESPECT TO SHARES. The Custodian shall have no power or
authority to vote any shares of the Company, except in accordance with the
directions provided to it by the Depositor. In the event the Depositor
fails or declines to direct the Custodian as to voting any such shares
held by the Custodial Account, that failure or declination to direct shall
be deemed to be a direction not to vote such shares.
4. ALTERNATIVE DISTRIBUTION METHODS: Notwithstanding Article IV, a Depositor
may elect in writing in a form acceptable to and filed with the Custodian,
to have the balance in the Custodial Account distributed only in a lump
sum or in substantially equal payments over a period that does not exceed
the Depositor's life expectancy or the joint and last survivor lift
expectancy of the Depositor and his or her designated beneficiary. For
<PAGE>
this purpose, all expectancies must be determined by using applicable
Internal Revenue Service tables. Notwithstanding paragraph 2 of Article
IV, unless an election to have life expectancies recalculated annually is
made by the time distributions are required to begin to the Depositor
under paragraph 3, or to the surviving spouse under paragraph 4, of
Article IV, lift expectancies shall not be recalculated. Such election
shall be irrevocable as to the Depositor and the surviving spouse and
shall apply to all subsequent years. The life expectancy of a nonspouse
beneficiary may not be recalculated. To receive an annuity distribution,
a Depositor may roll over a lump sum distribution to purchase an
individual retirement annuity payable in equal or substantially equal
payments over the Depositor's life expectancy or the joint and last
survivor life expectancy of the Depositor and his or her designated
beneficiary. The distribution option should be reviewed in the year the
Depositor reaches age 70 1/2 to make sure the requirements of Code Section
408(a)(6) have been met. Consistent with paragraph 6 of Article IV,
the Custodian is not obligated to make any distribution absent a specific
written direction, in a form acceptable to and filed with the Custodian,
from the Depositor or designated beneficiary to do so.
5. Amendment and Termination. The Depositor may at any time and from time to
time terminate this Agreement in whole or in part by delivering to the
Custodian a signed written notice of such termination, in a form
acceptable to the Custodian. The Depositor and the Custodian delegate to
the Company the night to amend this Agreement (including retroactive
amendments) by written notice to the Custodian and the Depositor. The
Depositor shall be deemed to have consented to any such amendment,
provided that (a) no amendment shall cause or permit any part of the
assets of the Custodial Account to be diverted to purposes other than for
the exclusive benefit of the Depositor or his or her beneficiaries; (b)
any amendment which affects the rights, duties or responsibilities of the
Custodian may only be made with the Custodian's consent; and (c) no
amendment shall be made except in accordance with any applicable laws and
regulations affecting this Agreement and the Custodial Account.
6. RESIGNATION OR REMOVAL OF CUSTODIAN. The Custodian may resign at any time
upon thirty (30) days notice in writing to the Company. Upon such
resignation, the Company shall notify the Depositor, and shall appoint a
successor custodian under this Agreement. The Depositor or the Company at
any time may remove the Custodian upon 30 days written notice to that
effect in a form acceptable to and filed with the Custodian. Such notice
must include designation of a successor custodian. The successor
custodian shall satisfy the requirements of section 408(h) of the Code.
Upon receipt by the Custodian of written acceptance of such appointment by
the successor custodian, the Custodian shall transfer and pay over to such
successor the assets of and records relating to the Custodial Account.
The Custodian is authorized, however, to reserve such sum of money as it
may deem advisable for payment of all its fees, compensation, costs and
expenses, or for payment of any other liability constituting a charge on
or against the assets of the Custodial Account or on or against the
<PAGE>
Custodian, and where necessary may liquidate shares in the Custodial
Account for such payments. Any balance of such reserve remaining after
the payment of all such items shall be paid over to the successor
Custodian. The Custodian shall not be liable for the acts or omissions of
any predecessor or successor custodian or trustee.
7. CUSTODIAN'S ANNUAL FEES: The Depositor shall be charged by the Custodian
for its services under this Agreement in such amount as the Custodian
shall establish from time to time. Sufficient shares may be liquidated
from the Custodial Account to pay the fee. The annual fee in effect on
the date of this Agreement is set forth in the Application. A different
fee may be substituted at any time upon written notice to the Depositor.
A Depositor who does not consent to such new fee should terminate this
Agreement pursuant to paragraph 5 of Article VIII within 30 days of the
notice of the new fee. If no such termination is made within 30 days of
the notice of the new fee, the Depositor will be deemed to have consented
to the new fee. The Custodian's ability to earn income on amounts held in
non-interest bearing accounts has been taken into consideration in
establishing the Custodian's fees. The Custodian shall be entitled to
retain any such income as a part of its agreed compensation hereunder, and
such income shall not be or become a part of the Custodial Account.
8. OTHER FEES AND EXPENSES. Any income or other taxes of any kind whatsoever
that may be levied or assessed upon or with respect to the Custodial
Account or the income thereof, any transfer taxes incurred in correction
with the investment and reinvestment of the assets of the Custodial
Account, all other reasonable administrative expenses incurred by the
Custodian with respect to any such taxes, or with respect to any
controversies concerning the Custodial Account, including, but not limited
to, fees for legal services rendered to the Custodian and related costs,
and such reasonable compensation to the Custodian for acting in that
capacity with respect to any such taxes or controversies, may, in the
discretion of the Custodian, be charged against and paid from the assets
of the Custodial Account. Sufficient shares may be liquidated from the
Custodial Account to pay any such taxes, expenses and compensation.
9. INALIENABILITY OF ASSETS: No interest, right or claim in or to any part
of the Custodial Account, nor any assets held therein or benefits provided
hereunder shall be subject to alienation, assignment, garnishment,
attachment, execution or levy of any kind, and any attempt to cause any
such interest, right, claim, assets or benefits to be so subjected shall
not be recognized, except to the extent as may be required by law.
10. EXCHANGE PRIVILEGE: With respect to any Company shares held in the
Custodial Account, the Depositor (or beneficiary, where applicable may,
upon submission of written instructions in a form acceptable to and filed
with the Custodian, cause shares of any fund to be exchanged for shares of
any other fund of the Company meeting the requirements of this Agreement,
upon the terms and within the limitations imposed by the then current
prospectus of the fund of the Company which are acquired in the exchange.
<PAGE>
By giving such instructions, the Depositor (or beneficiary) will be deemed
to have acknowledged receipt of such prospectus.
11. DESIGNATION OF BENEFICIARY. The Depositor may designate a beneficiary or
change or revoke the designation of a beneficiary, by written notice in a
form acceptable to and filed with the Custodian, prior to the complete
distribution of the balance in the Custodial Account. If the Depositor
has not by the date of his or her death properly designated a beneficiary
in accordance, with the preceding sentence, or if no designated
beneficiary survives the Depositor, the Depositor's beneficiary shall be
his or her estate. If a beneficiary dies before receiving his or her
entire interest in the Custodial Account, his or her remaining interest
in the Custodial Account shall be paid to the beneficiary's estate.
12. RESPONSIBILITY AS TO CONTRIBUTIONS OR DISTRIBUTIONS. The Custodian will
not under any circumstances be responsible for the tinning, purpose or
propriety of any contribution or of any distribution made hereunder, nor
shall the Custodian incur any liability or responsibility for any tax
imposed on account of any such contribution or distribution.
13. Other Limits on Responsibilities of the Custodian. The Custodian shall
not incur any liability or responsibility in taking or omitting, to take
any action based on any notice, election, or instruction or any written
instrument believed by the Custodian to be genuine and to have been
properly executed. The Custodian shall be under no duty of inquiry with
respect to any such notice, election, instruction, or written instrument,
but in its discretion may request any tax waivers, proof of signatures or
other evidence which it reasonably deems necessary for its protection.
The Depositor and the successors of the Depositor including any executor
or administrator of the Depositor shall, to the extent permitted by law,
indemnify the Custodian and its successors and assigns against any and
all claims, actions or liabilities of the Custodian to the Depositor or
the successors or beneficiaries of the Depositor whatsoever (including
without limitation all reasonable expenses incurred in defending against
or settlement of such claims, actions or liabilities) which may arise in
connection with this Agreement or the Custodial Account, except those
due to the Custodian's own bad faith, gross negligence or willful
misconduct. The Custodian shall not be under any duty to take any
action not specified in this Agreement, unless the Depositor shall
furnish it with instructions in proper form and such instructions shall
have been specifically agreed to by the Custodian, or to defend or
engage in any suit with respect hereto unless it shall have first agreed
in writing to do so and shall have been fully indemnified to its
satisfaction.
14. NOTICES. All written notices required or permitted to be given by the
Custodian shall be deemed to have been given when sent by mail to the
Depositor at the Depositor's last address of record provided to the
Custodian. All written notices required or permitted to be given to the
Custodian shall be deemed to have been given when received by the
Custodian if mailed to the Custodian at DST Systems Inc., c/o The Omni
Investment Fund, P.O. Box 419958, Kansas City, MO 64141, or such other
address as the Custodian shall provide to the Depositor from time to
time.
<PAGE>
15. TIMING OF CONTRIBUTIONS. A contribution is deemed to have been made on
the last day of the preceding taxable year if the contribution is made by
the deadline for filing the Depositor's income tax return (not including
extensions) and if the Depositor designates the contribution as a
contribution for the preceding taxable year in a manner acceptable to the
Custodian. The Custodian will not be liable or responsible for any
consequences of postal delays or delays resulting from an incomplete
Application or a designation made in an unacceptable form. Applications
received by the Custodian postmarked after the deadline will be treated
as a contribution for the Depositor's current tax year. Improperly
completed applications will be returned to the sender.
16. GOVERNING LAW. This Agreement and the Custodial Account shall be
construed, administered and enforced according to the laws of the State
of Missouri.
17. WHEN EFFECTIVE. This Agreement shall not become effective until
acceptance of the Application by the Custodian at its principal offices,
as evidenced by a written confirmation to the Depositor.
FORM 5305-SEP
(Rev. March 1994)
Department of the Treasury
Internal Revenue Service
SIMPLIFIED EMPLOYEE PENSION-INDIVIDUAL
RETIREMENT ACCOUNTS CONTRIBUTION AGREEMENT
(Under Section 408(k) of the Internal Revenue Code)
CMB No. 1545-0499
Expires 2-28-97
DO NOT File with
the Internal
Revenue Service
- -----------------------------------------------------------------------------
____________________________makes the following agreement under section 408(k)
(Name of employer) of the Internal Revenue Code and the instructions
to this form.
ARTICLE I--ELIGIBILITY REQUIREMENTS (Check appropriate boxes--see SPECIFIC
INSTRUCTIONS.)
The employer agrees to provide for discretionary contributions in each
calendar year to the individual retirement account or individual retirement
annuity (IRA) of all employees who are at least _____ years old (not to exceed
21 years old) and have performed services for the employer in at least _____
years (not to exceed 3 years) of the immediately preceding 5 years. This
simplified employee pension (SEP) __ includes __ does not include employees
covered under a collective bargaining agreement, __ includes __ does not
include certain nonresident aliens, and __ includes __ does not include
employees whose total compensation during the year is less than $396.*
ARTICLE II--SEP REQUIREMENTS (See SPECIFIC INSTRUCTIONS.)
The employer agrees that contributions made on behalf of each eligible
employee will be:
A. Based only on the first $150,000 of compensation.
B. Made in an amount that is the same percentage of total compensation for
every employee.
C. Limited annually to the smaller of $30,000* OR 15 percent of compensation.
D. Paid to the employee's IRA trustee, custodian, or insurance company (for
an annuity contract).
________________________________________ ______________________________
Employer's signature and date Name and title
_____________________________________________________________________________
PAPERWORK REDUCTION ACT NOTICE
The time needed to complete this form will vary depending on individual
circumstances. The estimated average time is:
Recordkeeping . . . . . . . . . . . . . . . . . . 7 min.
Learning about the law or the form . . . . . . . . 26 min.
Preparing the form . . . . . . . . . . . . . . . . 20 min.
If you have comments concerning the accuracy of these time estimates or
suggestions for making this form more simple, we would be happy to hear from
you. You can write to both the INTERNAL REVENUE SERVICE, Attention: Reports
Clearance Officer, PC:FP, Washington, DC 20224; and the OFFICE OF MANAGEMENT
AND BUDGET, Paperwork Reduction Project (1545-0499), Washington, DC 20503, DO
NOT send this form to either of these addresses. Instead, keep it for your
records.
A CHANGE TO NOTE
For years beginning after December 31, 1993, the Revenue Reconciliation Act of
1993 (the Act) reduced to $150,000 the annual compensation of each employee to
be taken into account in making contributions to a SEP. The $150,000 amount
will be indexed for inflation after 1994 in increments of $10,000 that will be
rounded to the next lowest multiple of $10,000. See Act section 13212 for
different effective dates and the transition rules that apply to governmental
plans and plans under a collective bargaining agreement.
General Instructions
SECTION REFERENCES ARE TO THE INTERNAL REVENUE CODE UNLESS OTHERWISE NOTED.
PURPOSE OF FORM.--Form 5305-SEP (Model SEP) is used by an employer to make an
agreement to provide benefits to all eligible employees under a SEP described
in section 408(k). Do not file this form with the IRS. See Pub. 560,
Retirement Plans for the Self-Employed, and Pub. 590, Individual Retirement
Arrangements (IRAs).
SPECIFIC INSTRUCTIONS
INSTRUCTIONS TO THE EMPLOYER
SIMPLIFIED EMPLOYEE PENSION.--A SEP is a written arrangement (a plan) that
provides you with a simplified way to make contributions toward your
employees' retirement income. Under a SEP, you can contribute to an
employee's individual retirement account or annuity (IRA). You make
contributions directly to an IRA set up by or for each employee with a bank,
insurance company, or other qualified financial institution. When using Form
5305-SEP to establish a SEP, the IRA must be a Model IRAs established on an
IRS form or a master or prototype IRA for which the IRS has issued a favorable
opinion letter. Making the agreement on Form 5305-SEP does not establish an
employer IRA described in Section 408(c).
WHEN NOT TO USE FORM 5305-SEP.--Do not use this form if you:
1. Currently maintain any other qualified retirement plan. This does not
prevent you from also maintaining a Model Elective SEP (Form 5305A-SEP) or
other SEP to which either elective or nonelective contributions are made.
2. Previously maintained a defined benefit plan that is now terminated.
3. Have any eligible employees for whom IRAs have not been established.
4. Use the services of leased employees (described in section 414(n)).
5. Are a member of an affiliated service group (described in section
414(m)), a controlled group of corporations (described in section 414(b)), or
trades or businesses under common control (described in sections 414(c) and
414(o)), unless all eligible employees of all the members of such groups,
trades, or businesses, participate in the SEP.
6. Will not pay the cost of the SEP contributions. Do not use Form 5305-
SEP for a SEP that provides for elective employee contributions even if the
contributions are made under a salary reduction agreement. Use Form 5305A-
SEP, or a nonmodel SEP if you permit elective deferrals to a SEP.
ELIGIBLE EMPLOYEES.--All eligible employees must be allowed to participate in
the SEP. An eligible employee is any employee who: (1) is at least 21 years
old, and (2) has performed "service" for you in at least 3 of the immediately
preceding 5 years. Note: You can establish less restrictive eligibility
requirements, but not more restrictive ones.
Service is any work performed for you for any period of time, however short.
If you are a member of an affiliated service group, a controlled group of
corporations, or trades or businesses under common control, service includes
any work performed for any period of time for any other member of such group,
trades, or businesses.
EXCLUDABLE EMPLOYEES.--The following employees do not have to be covered by
the SEP: (1) employees covered by a collective bargaining agreement whose
retirement benefits were bargained for in good faith by you and their union,
(2) nonresident alien employees who did not earn U.S. source income from you,
and (3) employees who received less than $396* in compensation during the
year.
CONTRIBUTION LIMITS.--The SEP rules permit you to make an annual contribution
of up to 15 percent of the employee's total compensation or $30,000*,
whichever is less. Compensation, for this purpose, does not include employer
contributions to the SEP or the employee's compensation in excess of $150,000.
If you also maintain a Model Elective SEP or any other SEP that permits
employee to make elective deferrals, contributions to the two SEPs together
may not exceed the smaller of $30,000* or 15 percent of compensation for any
employee.
Contributions cannot discriminate in favor of highly compensated employees.
You are not required to make contributions every year. But you must
contribute to the SEP-IRAs of all of the eligible employees who actually
performed services during the year of the contribution. This includes
eligible employees who die or quit working before the contribution is made.
- ----------------------------------------------------------------------------
* This amount reflects the cost-of-living increase under section 408(k)(8),
effective January 1, 1994. The amount is adjusted annually. Each January,
the IRS announces the increase, if any, in a news release and in the
Internal Revenue Bulletin.
____________________________________________________________________________
You may also not integrate your SEP contributions with, or offset them by,
contributions made under the Federal Insurance Contributions Act (FICA).
If this SEP is intended to meet the top-heavy minimum contribution rules of
section 416, but it does not cover all your employees who participate in your
elective SEP, then you must make minimum contributions to IRAs established on
behalf of those employees.
DEDUCTING CONTRIBUTIONS.--You may deduct contributions to a SEP subject to the
limits of section 404(h). This SEP is maintained on a calendar year basis and
contributions to the SEP are deductible for your tax year with or within which
the calendar year ends. Contributions made for a particular tax year must be
made by the due date of your income tax return (including extensions) for that
tax year.
COMPLETING THE AGREEMENT.--This agreement is considered adopted when:
* IRAs have been established for all your eligible employees.
* You have completed all blanks on the agreement form without modification,
and
* You have given all your eligible employees the following information:
a. A copy of Form 5305-SEP.
b. A statement that IRAs other than the IRAs into which employer SEP
contributions will be made may provide different rates of return and
different terms concerning, among other things, transfers and
withdrawals of funds from the IRAs.
c. A statement that, in addition to the information provided to an
employee at the time the employee becomes eligible to participate, the
administrator of the SEP must furnish each participant within 30 days of
the effective date of any amendment to the SEP, a copy of the amendment
and a written explanation of its effects.
d. A statement that the administrator will give written notification to
each participant of any employer contributions made under the SEP to
that participant's IRA by the later of January 31 of the year following
the year for which a contribution is made or 30 days after the
contribution is made.
Employers who have established a SEP using Form 5305-SEP and have given
each participant a copy of Form 5305-SEP are not required to file the annual
information returns, Form 5500, 5000-C/R, or 5500-EZ. However, under Title I
of ERISA, relief from the annual reporting requirements is not available to an
employer who selects, recommends, or influences its employees to choose IRAs
into which employer contributions will be made, if those IRAs are subject to
provisions that prohibit withdrawal of funds for any period.
INFORMATION FOR THE EMPLOYEE
The information below explains what a SEP is, how contributions are made, and
how to treat your employer's contributions for tax purposes. For more
information, see page 1. Also, see Pub. 590.
QUESTIONS AND ANSWERS
1. What is a simplified employee pension, or SEP?
A SEP is a written arrangement (a plan) that allows an employer to make
contributions toward your retirement. Contributions are made to an individual
retirement account/annuity (IRA).
Your employer will provide you with a copy of the agreement containing
participation rules and a description of how employer contributions may be
made to your IRA.
All amounts contributed to your IRA by your employer belong to you even
after you stop working for that employer.
2. Must my employer contribute to my IRA under the SEP?
No. An employer is not required to make SEP contributions. If a
contribution is made, it must be allocated to all the eligible employees
according to the SEP agreement. The Model SEP (Form 5305-SEP) specifies that
the contribution for each eligible employee will be the same percentage of
compensation (excluding compensation higher than $150,000) for all employees.
3. How much may my employer contribute to my SEP-IRA in a year?
Your employer will determine the amount to be contributed to your IRA each
year. However, the amount for any year is limited to the smaller of $30,000*
or 15 percent of your compensation for that year. Compensation does not
include any amount that is contributed by your employer to your IRA under the
SEP. Your employer is not required to make contributions every year or to
maintain a particular level of contributions. See Question 5.
4. How do I treat my employer's SEP contributions for my taxes?
Employer contributions to your SEP-IRA are excluded from your income unless
there are contributions in excess of the applicable limit. See Question 3.
Employer contributions within these limits will not be included on your
Form W-2.
5. May I also contribute to my IRA if I am a participant in a SEP?
Yes. You may contribute the smaller of $2,000 or 100% of your compensation
to an IRA. However, the amount you can deduct may be reduced or eliminated
because, as a participant in a SEP, you are covered by an employer retirement
plan. See Question 11.
6. Are there any restrictions on the IRA I select to have my SEP
contributions deposited in?
Contributions must be made to either a Model IRA executed on an IRS form or
a master or prototype IRA for which the IRA has issued a favorable opinion
letter.
7. What if I do not want to participate in a SEP?
If your employer does not require you to participate in a SEP as a
condition of employment, and you elect not to participate, all other employees
of your employer may be prohibited from participating. If one or more
eligible employees do not participate and the employer tries to establish a
SEP for the remaining employees, it could cause adverse tax consequences for
the participating employees.
8. Can I move funds from my SEP-IRA to another tax-sheltered IRA?
Yes. You can withdraw or receive funds from your SEP-IRA if within 60 days
of receipt, you place those funds in another IRA or SEP-IRA. This is called a
"rollover" and can be done without penalty only once in any 1-year period.
However, there are no restrictions on the number of times you may make
"transfers" if you arrange to have these funds transferred between the
trustees or the custodians so that you never have possession of the funds.
9. What happens if I withdraw my employer's contribution from my IRA?
You may withdraw your employer's contribution at any time, but any amount
withdrawn is includible in your income unless rolled over. Also, if
withdrawals occur before you reach age 59 1/2, you may be subject to a tax on
early withdrawal.
10. May I participate in a SEP even though I am covered by another plan?
An employer may not adopt this IRS Model SEP if the employer maintains
another qualified retirement plan or has ever maintained a qualified defined
benefit plan. This does not prevent your employer from adopting this IRS
Model SEP and also maintaining an IRS Model Elective SEP or other SEP.
However, if you work for several employers, you may be covered by a SEP of
one employer and a different SEP or pension or profit-sharing plan of another
employer.
11. What happens if too much is contributed to my SEP-IRA in 1 year?
Contributions exceeding the yearly limitations may be withdrawn without
penalty by the due date (plus extensions) for filing your tax return (normally
April 15), but is includible in your gross income. Excess contributions left
in your SEP-IRA account after that time may have adverse tax consequences.
Withdrawals of those contributions may be taxed as premature withdrawals. See
Question 9.
12. Is my employer required to provide me with information about SEP-IRAs
and the SEP agreement?
Yes. Your employer must provide you with a copy of the completed Form
5305-SEP and a yearly statement showing any contributions to your IRA.
13. Is the financial institution where my IRA is established required to
provide me with information?
Yes. It must provide you with a disclosure statement that contains the
following information in plain, nontechnical language.
1. The law that regulates your IRA.
2. The tax consequences of various options concerning your IRA.
3. Participation eligibility rules, and rules on the deductibility of
retirement savings.
4. Situations and procedures for revoking your IRA, including the name,
address, and telephone number of the person designated to receive notice of
revocation. (This information must be clearly displayed at the beginning of
the disclosure statement.)
5. A discussion of the penalties that may be assessed because of
prohibited activities concerning your IRA.
6. Financial disclosure that provides the following information:
a. Projects value growth rates of your IRA under various contribution and
retirement schedules, or describes the method of determining annual
earnings and charges that may be assessed.
b. Describes whether, and for when, the growth projections are
guaranteed, or a statement of the earnings rate and the terms on which
the projections are based.
c. States the sales commission for each year expressed as a percentage of
$1,000.
In addition, the financial institution must provide you with a financial
statement each year. You may want to keep these statements to evaluate your
IRA's investment performance.
- ----------------------------------------------------------------------------
* This amount reflects the cost-of-living increase under section 408(k)(8),
effective January 1, 1994. The amount is adjusted annually. Each January,
the IRS announces the increase, if any, in a news release and in the
Internal Revenue Bulletin.
Form 5305A-SEP
(Rev. March 1994)
Department of the Treasury
Internal Revenue Service
SALARY REDUCTION AND OTHER ELECTIVE SIMPLIFIED
EMPLOYEE PENSION-INDIVIDUAL
RETIREMENT ACCOUNTS CONTRIBUTION AGREEMENT
(UNDER SECTION 408(K) OF THE INTERNAL REVENUE CODE)
CMB No. 1545-1012
Expires 3-31-96
DO NOT File with
the Internal
Revenue Service
- --------------------------------------------------------------------------
______________________establishes the following Model Elective SEP under
(Name of employer) section 408(k) of the Internal Revenue Code and the
instructions to this form.
ARTICLE I--ELIGIBILITY REQUIREMENTS (Check appropriate boxes--see
INSTRUCTIONS.)
Provided the requirements of Article III are met, the employer agrees to
permit elective deferrals to be made in each calendar year to the individual
retirement accounts or individual retirement annuities (IRAs), established by
or for all employees who are at least _____ years old (not to exceed 21 years
old) and have performed services for the employer in at least _____ years (not
to exceed 3 years) of the immediately preceding 5 years. This simplified
employee pension (SEP) __ includes ___ does not include employees covered
under a collective bargaining agreement, ___ includes ___ does not include
certain nonresident aliens, and ___ includes ___ does not include employees
whose total compensation during the year is less than $396.*
ARTICLE II--SEP REQUIREMENTS (See INSTRUCTIONS.)
A. SALARY REDUCTION OPTION. An eligible employee may elect to have his or her
compensation reduced by the following percentage or amount per pay period, as
designated in writing to the employer. Check appropriate box(es) and fill in
the blanks.
1. __ An amount not in excess of _____ percent (not to exceed 15
percent) of an eligible employee's compensation.
2. __ An amount not in excess of $____________.
B. CASH BONUS OPTION. An eligible employee may have elective deferrals on
bonuses that, at the employee's election, may be contributed to the SEP or
received in cash during the calendar year. Check if elective deferrals on
bonuses may be made to this SEP. ___
C. TIMING OF ELECTIVE DEFERRALS. No deferral election may be based on
compensation an eligible employee received, or had a right to receive, before
execution of the deferral election.
ARTICLE III--SEP REQUIREMENTS (See instructions.)
The employer agrees that each employee's elective deferrals to the SEP will
be:
A. Based only on the first $150,000 of compensation.
B. Limited annually to the smaller of: (1) 15 percent of compensation; or
(2) $9,240*.
C. Limited further under section 415, if the employer also maintains another
SEP.
D. Paid to the employee's IRA trustee, custodian, or insurance company (for
an annuity contract) or, if necessary, an IRA established for an employee by
the employer.
E. Made only if at least 50 percent of the employer's employees eligible to
participate elect to have amounts contributed to the SEP. If the 50 percent
requirement is not satisfied as of the end of any calendar year, then all of
the elective deferrals made by the employees for that calendar year will be
considered "disallowed deferrals," i.e., IRA contributions that are not SEP-
IRA contributions.
F. Made only if the employer had 25 or fewer employees eligible to
participate at all times during the prior calendar year.
G. Adjusted only if deferrals to this SEP for any calendar year do not meet
the "deferral percentage limitation" described on page 3.
ARTICLE IV--EXCESS SEP CONTRIBUTIONS (See instructions.)
Elective deferrals by a "highly compensated employee" must satisfy the
deferral percentage limitation under section 408(k)(6)(A)(iii). Amounts in
excess of this limitation will be deemed excess SEP contributions for the
affected highly compensated employee or employees.
ARTICLE V--NOTICE REQUIREMENTS (See instructions.)
A. The employee will notify each highly compensated employee, by March 15
following the end of the calendar year to which any excess SEP contributions
relate, of the excess SEP contributions to the highly compensated employee's
SEP-IRA for the applicable year. The notification will specify the amount of
the excess SEP, the calendar year in which the contributions are includible in
income, and must provide an explanation of applicable penalties if the excess
contributions are not withdrawn on time.
B. The employer will notify each employee who makes an elective deferral to a
SEP that, until March 15 after the year of the deferral, any transfer or
distribution from that employee's SEP-IRA of SEP contributions (or income on
these contributions) attributable to elective deferrals made that year will be
includible in income for purposes of sections 72(t) and 408(d)(1).
C. The employer will notify each employee by March 15 of each year of any
disallowed deferrals to the employee's SEP-IRA for the preceding calendar
year. Such notification will specify the amount of the disallowed deferrals
and the calendar year in which those deferrals are includible in income and
must provide an explanation of applicable penalties if the disallowed
deferrals are not withdrawn on time.
ARTICLE VI--TOP-HEAVY REQUIREMENTS (See instructions.)
A. Unless paragraph B below is checked, the employer will satisfy the top-
heavy requirements of section 416 by making a minimum contribution each year
to the SEP-IRA of each employee eligible to participate in this SEP (other
than a key employee defined in section 416(i). This contribution, in
combination with other nonelective contributions, if any, is equal to the
smaller of 3 percent of each eligible non-key employee's compensation or a
percentage of such compensation equal to the percentage of compensation at
which elective and nonelective contributions are made under this SEP (and any
other SEP maintained by the employer) for the year for the key employee for
whom such percentage is the highest for the year.
B. ___ The top-heavy requirements of section 416 will be satisfied through
contributions to non-key employees' SEP-IRAs under this employer's nonelective
SEP.
- -----------------------------------------------------------------------------
*This amount reflects the cost-of-living increase effective January 1, 1994.
The amount is adjusted annually. Each January, the IRS announces the
increase, if any, in a news release and in the Internal Revenue Bulletin.
- ------------------------------------------------------------------------------
<PAGE>
ARTICLE VI--TOP-HEAVY REQUIREMENTS (Continued)
C. To satisfy the minimum contribution requirement under section 416, all
nonelective SEP contributions will be taken into account but elective
deferrals will not be taken into account.
ARTICLE VII--EFFECTIVE DATE (See instructions.)
This SEP will be effective upon adoption and establishment of IRAs for all
eligible employees.
_______________________________ ____________ _____________________
Employer's signature Date Name and title
- ---------------------------------------------------------------------------
PAPERWORK REDUCTION ACT NOTICE
The time needed to complete this form will vary depending on individual
circumstances. The estimated average time is:
Recordkeeping..................................................... 40 min.
Learning about the law or the form................................ 54 min.
Preparing the form.......................................... 1 hr., 5 min.
If you have comments concerning the accuracy of these time estimates or
suggestions for making this form more simple, we would be happy to hear from
you. You can write to both the INTERNAL REVENUE SERVICE, Attention: Reports
Clearance Officer, PC:FP, Washington, DC 20224; and the OFFICE OF MANAGEMENT
and Budget, Paperwork Reduction Project (1545-1012), Washington, DC 20503, DO
NOT send this form to either of these addresses. Instead, keep it for your
records.
A CHANGE TO NOTE
For years beginning after December 31, 1993, the Revenue Reconciliation Act of
1993 (the Act) reduced to $150,000 the annual compensation of each employee to
be taken into account in making contributions to a SEP. The $150,000 amount
will be indexed for inflation after 1994 in increments of $10,000 that will be
rounded to the next lowest multiple of $10,000. See Act section 13212 for
different effective dates and the transition rules that apply to plans under a
collective bargaining agreement.
GENERAL INSTRUCTIONS
SECTION REFERENCES ARE TO THE INTERNAL REVENUE CODE UNLESS OTHERWISE NOTED.
PURPOSE OF FORM.--Form 5305A-SEP is a model elective simplified employee
pension (SEP) used by an employer to permit employees to make elective
deferrals to a SEP described in section 408(k). DO NOT file this form with
the IRS.
SPECIFIC INSTRUCTIONS
INSTRUCTIONS TO THE EMPLOYER
SIMPLIFIED EMPLOYEE PENSION.--A SEP is a written arrangement (a plan) that
provides you with a simplified way to make contributions toward your
employees' retirement income. Under an elective SEP, employees may choose
whether or not to make elective deferrals to the SEP or to receive the amounts
in cash. If elective deferrals are made, you contribute the amounts deferred
by employees directly into an individual retirement arrangement (IRA) set up
by or for each employee with a bank, insurance company, or other qualified
financial institution. The IRA, established by or for an employee, must be
one for which the IRS has issued a favorable opinion letter or a model IRA
published by the Service as Form 5305, Individual Retirement Trust Account, or
Form 5305-A, Individual Retirement Custodial Account. Adopting Form 5305A-SEP
does not establish an employer IRA described in section 408(c).
The information provided below is intended to help you understand and
administer the elective deferral rules of your SEP.
WHEN TO USE FORM 5305A-SEP
Do not use Form 5305A-SEP if you:
1. Have any leased employees as defined in section 414(n)(2).
2. Previously maintained a have maintained a defined benefit plan that is
now terminated.
3. Currently maintain any other qualified retirement plan. This does not
prevent you from also maintaining a Model SEP/Form 5305-SEP, Simplified
Employee Pension--Individual Retirement Accounts Contribution
Agreement) or other SEP to which either elective or nonelective
contributions are made.
4. Have more than 25 employees eligible to participate in the SEP at any
time during the prior calendar yea. (If you are a member of one of the
groups described in paragraph 2 under EXCESS SEP CONTRIBUTIONS--
DEFERRAL PERCENTAGE LIMITATION on page 3, you may use this SEP only if
in the prior year there were never more than 25 employees eligible to
participate in this SEP, in total, of all the members of such groups,
trades, or businesses. In addition, all eligible employees of all the
members of such groups, trades, or businesses must be eligible to make
elective deferrals to this SEP).
5. Are a state or local government or a tax-exempt organization.
Use this form only if you intend to permit elective deferrals to a SEP. If
you want to establish a SEP to which nonelective employer contributions may be
made, use Form 5305-SEP or a nonmodel SEP instead of, or in addition to, this
form.
COMPLETING THE AGREEMENT
This SEP agreement is considered adopted when:
1. You have completed all blanks on the form.
2. You have given all eligible employees the following information:
a. A copy of Form 5305A-SEP. (Any individual who in the future becomes
eligible to participate in this SEP must be given Form 5305A-SEP, upon
becoming an eligible employee.)
b. A statement that IRAs other than the IRAs into which employer SEP
contributions will be made may provide different rates of return and
different terms concerning, among other things, transfers and
withdrawals of funds from the IRAs.
c. A statement that, in addition to the information provided to an
employee at the time the employee becomes eligible to participate, the
administrator of the SEP must furnish each participant within 30 days
of the effective date of any amendment to the SEP, a copy of the
amendment and a written explanation of its effects.
d. A statement that the administrator will give written notification to
each participant of any employer contributions made under the SEP to
that participant's IRA by the later of January 31 of the year following
the year for which a contribution is made or 30 days after the
contribution is made.
Employers who have established a SEP using Form 5305A-SEP and have provided
each participant a copy of Form 5305A-SEP, are not required to file the annual
information returns, Forms 5500, 5500-C/R, or 5500-EZ, for the SEP. However,
under Title I of ERISA, relief from the annual reporting requirements is not
available to an employer who selects, recommends, or influences its employees
to choose IRAs, into which employer contributions will be made, if those IRAs
are subject to provisions that prohibit withdrawal of funds for any period.
FORMS AND PUBLICATIONS YOU MAY USE
An employer may use any of the following forms or publications:
* Form W-2, Wage and Tax Statement. If you have already issued a Form W-
2 to your employees at the time of notification of excess SEP
contributions, you may also have to issue to those affected employees
an amendment Form W-2 to reflect any excess SEP contributions and
disallowed deferrals that must be included in the employee's income.
See the discussion of excess SEP contributions and disallowed deferrals
beginning on page 3.
* Form 5330, Return of Excise Taxes Related to Employee Benefit Plans.
Employers who are liable for the 10% tax on excess contributions use
this form to pay the excise tax.
* Pub. 560, Retirement Plans for the Self-Employed.
* Pub. 590, Individual Retirement Arrangements (IRAs).
DEDUCTING CONTRIBUTIONS
You may deduct, subject to any applicable limits, those contributions made to
a SEP. This SEP is maintained on a calendar year basis, and contributions to
the SEP are deductible for your tax year with or within which the particular
calendar year ends. See section 404(h). Contributions made for a particular
tax year and contributed by the due date of your income tax return, including
extensions, are deemed made in that tax year and the contributions are
deductible if they would otherwise be deductible had they actually been
contributed by the end of that tax year. See Rev. Rul. 90-105, 1990-2 C.B.
69. However, the deductibility of your contributions may be limited if the
contributions are excess contributions. See EXCESS SEP CONTRIBUTIONS--
DEFERRAL PERCENTAGE LIMITATION below and the DEFERRAL PERCENTAGE LIMITATION
WORKSHEET on page 8.
EFFECTIVE DATE
The SEP agreement is effective upon adoption and the establishment of IRAs by
or for all of your eligible employees. Moreover, no elective deferrals may be
made by an employee on the basis of compensation that the employee received or
had a right to receive before adoption of this agreement and execution by the
employee of the deferral election.
ELIGIBLE EMPLOYEES
All eligible employees must be allowed to participate in the SEP. An eligible
employee is any employee who: (1) is at least 21 years old, and (2) has
performed "service" for you in at least 3 of the immediately preceding 5
years.
Note: You can establish less restrictive eligibility requirements, but not
more restrictive ones.
Service means any work performed for you for any period of time, however
short. If you are a member of an affiliated service group, a controlled group
of corporations, or trades or businesses under common control, service
includes any work performed for any period of time for any other member of
such group, trades, or businesses.
EXCLUDABLE EMPLOYEES
The following employees do not have to be covered by the SEP: (1) employees
covered by a collective bargaining agreement whose retirement benefits were
bargained for in good faith by you and their union, (2) nonresident alien
employees who did not earn U.S. source income from you, and (3) employees who
received less than $396* in compensation during the year.
ELECTIVE DEFERRALS
You may permit your employees to make elective deferrals through salary
reduction or on the basis of bonuses that, at the employee's option, may be
contributed to the SEP or received by the employee in cash during the year.
You must inform your employees how they may make, change, or terminate
elective deferrals based on either salary reduction or cash bonuses. You
must also provide a form on which they may make their deferral elections. You
may use the Model Elective SEP Deferral Form (elective form) on page 5, or a
form that explains the information contained in this form in a way that is
written to be understood by the average plan participant.
SEP REQUIREMENTS
* Elective deferrals may not be based on more than $150,000 of
compensation. See A Change To Note on page 2. Compensation, for
purposes other than the $396* rule (see ELIGIBLE EMPLOYEES, above), is
defined as wages under section 3401(a) for income tax withholding at
the source but without regard to any rules that limit the remuneration
included in wages based on the nature or location of the employment or
the services performed (such as the exception for agricultural labor in
section 3401(a)(2)). Compensation also includes earned income under
section 401(c)(2). Compensation does not include any SEP
contributions.
* The maximum limit on the amount an employee may elect to defer under
this SEP for a year is the smaller of 15% of the employee's
compensation or the limitation under section 402(g), as explained
below.
Note: The deferral limit is 15 percent of compensation (minus any employer
SEP contributions). Compute this amount using the following formula:
Compensation (before subtracting employer SEP contributions) x 13.0435
percent.
* If you make nonelective contributions to this SEP for a calendar year,
or maintain any other SEP to which contributions are made for that
calendar year, then contributions to all such SEPs may not exceed the
smaller of $30,000* or 15 percent of compensation for any employee.
* If you are a new employer who had no employees during the prior
calendar year, you will meet the limit in section 408(k)(6)(B) (for no
more than 25 eligible employees during the preceding year) if you had
25 or fewer employees during the first 30 days that your business was
in existence.
EXCESS ELECTIVE DEFERRALS
Section 402(g) limits the maximum amount of compensation an employee may elect
to defer under a SE{ (and certain other arrangements) during the calendar
year. this limit is $9,240 for 1994. In addition, the limit may be increased
if the employee makes elective deferrals to a salary reduction arrangement
under section 403(b). Amounts deferred for a year in excess of this limit are
considered "excess elective deferrals" and are subject to the rules described
below.
The limit applies to the total elective deferrals the employee makes for
the calendar year, from all employers, under the following arrangement:
* Elective SEPS under section 408(k)(6)
* Cash or deferred arrangements under section 401(k); and
* Salary reduction arrangements under section 403(b).
Thus, an employee may have excess elective deferrals even if the amount
deferred under this SEP alone does not exceed the section 402(g) limit.
If an employee who elects to defer compensation under this SEP and any
other SEP or arrangement has made excess elective deferrals for a calendar
year, the employee must withdraw those deferrals by April 15 following the
calendar year to which the deferrals relate. Deferrals not withdrawn by
April 15 will be subject to the IRA contribution limits of sections 219 and
408 and may be considered excess contributions to the employee's IRA. For the
employee, these excess elective deferrals are subject to a 6 percent tax on
excess contributions under section 4973.
Income on excess elective deferrals is includible in the employee's income
in the year it is withdrawn from the IRA. The income must be withdrawn by
April 15 following the calendar year for which the deferrals were made. If
the income is withdrawn after that date and the recipient is not 59 1/2 years
of age, it may be subject to the 10 percent tax on early distributions under
section 72(t).
EXCESS SEP CONTRIBUTIONS-DEFERRAL PERCENTAGE LIMITATION
The amount each of your "highly compensated employees" may contribute to an
elective deferral SEP is also limited by the "deferral percentage limitation."
This is based on the amount of money deferred, on average, by your nonhighly
compensated employees. Deferrals made by a highly compensated employee that
exceed this deferral percentage limitation for a calendar year are considered
"excess SEP contributions" and must be removed from the employee's SEP-IRA, as
discussed below.
The deferral percentage limitation for your highly compensated employees is
computed by first averaging the "deferral percentages" (defined below) for the
eligible nonhighly compensated employees for the year and then multiplying
this result by 1.25. The deferral percentage for a calendar year of any
highly compensated employee eligible to participate in this SEP may not be
more than the resulting product, the "deferral percentage limitation."
Only elective deferral are included in this computation. Nonelective SEP
contributions may not be included. The determination of the deferral
percentage for any employee is made under section 408(k)(6).
For purposes of this computation, the calculation of the number and
identity of highly compensated employees, and their deferral percentages, is
made on the basis of the entire "affiliated employer."
In addition, for purposes of determining the deferral percentage of a
highly compensated employee, the elective deferrals and compensation of the
employee will also include the elective deferrals and compensation of any
"family member." This special rule applies, however, only if the highly
compensated employee is a 5 percent owner (defined in
section 416(i)(1)(E)(ii)) or is one of a group of the 10 highest paid highly
compensated employees. The elective deferrals and compensation of family
members used in this special rule do not count in computing the deferral
percentages of individuals who do not fall into this group.
A worksheet is provided on page 8 to assist you in figuring the deferral
percentage. You may want to photocopy it for yearly use.
The following definitions apply for purposes of computing the deferral
percentage limitation.
1. DEFERRAL PERCENTAGE is the ration (expressed as a percentage to 2
decimal places) of an employee's elective deferrals for a calendar year to the
employee's compensation for that year. No more than $150,000 per individual
is taken into account. (See A CHANGE TO NOTE on page 2.) The deferral
percentage of an employee who is eligible to make an elective deferral, but
who does not make a deferral during the year, is zero. If a highly
compensated employee also makes elective deferrals under another elective SEP
maintained by the employer, then the deferral percentage of that highly
compensated employee includes elective deferrals made under the other SEP.
2. AFFILIATED EMPLOYER includes (a) any corporation that is a member of a
controlled group of corporations, described in section 414(b) that includes
the employer, (b) any trade or business that is under common control, defined
in section 414(c) with the employer, (c) any organization that is a member of
an affiliated service group, defined in section 414(m) that includes the
employer, and (d) any other entity required to be aggregated with the employer
under regulations under section 414(o).
3. A family member is an individual who is related to a highly compensated
employee as a spouse, or as a lineal ascendent (such as a parent or
grandparent), or descendent (such as a child or grandchild) or spouse of
either of those, under section 414(q______) and its regulations.
4. A highly compensated employee is an individual described in
section 414(q) who, during the current or preceding calendar year:
a. Was a 5 percent owner defined in section 416(i)(1)(B)(i),
b. Received compensation in excess of $66,000, and was in the top-paid
group (the top 20 percent of employees, by compensation),
c. Received compensation in excess of $99,000, or
d. Was an officer and received compensation in excess of 50 percent of
the dollar limit under section 415 for defined benefit plans. The
dollar limit is $118,800 in 1994. (No more than three employees
need be taken into account under this rule. At least one officer,
the highest-paid officer if no one else meets this test, however,
must be taken into account.)
EXCESS SEP CONTRIBUTIONS-NOTIFICATION
You must notify each affected employee, if any, by March 15 of the amount of
any excess SEP contributions made to that employee's SEP-IRA for the preceding
calendar year. (If needed, use the model form on page 5 of these
instructions.) These excess SEP contributions are includible in the
employee's gross income in the preceding calendar year. However, if the
excess SEP contributions (not including allocable income) total less than
$100, then the excess contributions are includible in the employee's gross
income in the calendar year of notification. Income allocable to the excess
SEP contributions is includible in gross income in the year of withdrawal from
the IRA.
If you do not notify any of your employees by March 15 of an excess SEP
contribution, you must pay a 10 percent tax on the excess SEP contribution for
the preceding calendar year. The tax is reported in Part XII of Form 5330.
If you do not notify our employees by December 31 of the calendar year
following the calendar year in which the excess SEP contributions arose, the
SEP no longer will be treated as meeting the rules of section 408(k)(6). In
this case, any contribution to an employee's IRA will be subject to the IRA
contribution limits of section 219 and 408 and thus may be considered an
excess contribution to the employee's IRA.
Your notification to each affected employee of the excess SEP
contributions must specifically state in a manner written to be understood by
the average employee:
* The amount of the excess SEP contributions attributable to that
employee's elective deferrals;
* The calendar year in which the excess SEP contributions are includible
in gross income; and
* Information stating that the employee must withdraw the excess SEP
contributions (and allocable income) from the SEP-IRA by April 15
following the calendar year of notification by the employer. Excess
contributions not withdrawn by April 15 following the year of
notification will be subject to the IRA contribution limits of
sections 219 and 408 for the preceding calendar year and may be
considered excess contributions to the employee's IRA. For the
employee, the excess contributions may be subject to the 6 percent tax
on excess contributions under section 4973. If income allocable to an
excess SEP contribution is not withdrawn by April 15 following the
calendar year of notification by the employer, the employee may be
subject to the 10 percent tax on early distributions under
section 72(t) when withdrawn.
For information on reporting excess SEP contributions, see Notice 87-77,
1987-2 C.B. 385, Notice 88-33, 1988-1 C.B. 513, Notice 89-32, 1989-1 C.B. 671,
and Rev. Proc. 91-44, 1991-2 C.B. 733.
To avoid the complications caused by excess SEP contributions, you may
want to monitor elective deferrals continuing basis throughout the calendar
year to insure that the deferrals comply with the limits as they are paid into
each employee's SEP-IRA.
DISALLOWED DEFERRALS
If you determine at the end of any calendar year that more than half of your
eligible employees have chosen not to make elective deferrals for that year,
then all elective deferrals made by your employees for that year will be
considered disallowed deferrals, i.e., IRA contributions that are not SEP-IRA
contributions.
You must notify each affected employee by March 15 that the employee's
deferrals for the previous calendar year are no longer considered SEP-IRA
contributions. Such disallowed deferrals are includible in the employee's
gross income in that preceding calendar year. Income allocable to the
disallowed deferrals is includible in the employee's gross income in the year
of withdrawal from the IRA.
Your notification to each affected employee of the disallowed deferrals
must clearly state:
* The amount of the disallowed deferrals;
* The calendar year in which the disallowed deferrals and earnings are
includible in gross income; and
* That the employee must withdraw the disallowed deferrals (and allocable
income) from the IRA by April 15 following the calendar year of notification
by the employer. Those disallowed deferrals not withdrawn by April 15
following the year of notification will be subject to the IRA contribution
limits of sections 219 and 408 and thus may be considered an excess
contribution to the employee's IRA. For the employee, these disallowed
deferrals may be subject to the 6 percent tax on excess contributions under
section 4973. If income allocable to a disallowed deferral is not withdrawn
by April 15 following the calendar year of notification by the employer, the
employee may be subject to the 10 percent tax on early distributions under
section 72(t) when withdrawn.
Disallowed deferrals should be reported the same way excess SEP
contributions are reported.
RESTRICTIONS ON WITHDRAWALS
Your highly compensated employees may not withdraw or transfer from their SEP-
RAs any SEP contributions (or income on these contributions) attributable to
elective deferrals made for a particular calendar year until March 15 of the
following year. Before that date, however, you may notify your employees when
the deferral percentage limitation test has been completed for a particular
calendar year and that this withdrawal restriction no longer applies. In
general, any transfer or distribution made before March 15 of the following
year (or notification, if sooner) will be includible in the employee's gross
income and the employee may also be subject to a 10 percent tax on early
withdrawal. This restriction does not apply to an employee's excess elective
deferrals.
TOP-HEAVY REQUIREMENTS
Elective deferrals may not be used to satisfy the minimum contribution
requirement under section 416. In any year in which a key employee makes an
elective deferral, this SEP is deemed top-heavy for purposes of section 416,
and you are required to make a minimum top-heavy contribution under either
this SEP or another SEP for each non-key employee eligible to participate in
this SEP.
A key employee under section 416(i)(1) is any employee or former employee
(and the beneficiaries of these employees) who, at any time during the
determination period, was:
* An officer of the employer (if the employee's compensation exceeds 50
percent of the section 415(b)(1)(A) limit, which was $118,800 in 1994,
* An owner of one of the 10 largest interests in the employer (if the
employee's compensation exceeds 100%of the section 415(c)(1)(A) limit, which
was $30,000 in 1994,
* A 5 percent owner of the employer, as defined in section 416(i)(1)(B)(i),
or a 1 percent owner of the employer (if the employee has compensation in
excess of $150,000).
The determination period is the current calendar year and the 4 preceding
years.
<PAGE>
MODEL ELECTIVE SEP DEFERRAL FORM
I. SALARY REDUCTION DEFERRAL
Subject to the requirements of the Model Elective SEP of _______, I authorize
the following amount or percentage to be withheld from each of my paychecks
and contributed to my SEP-IRA.
(a) ________ percent (not to exceed 15%) of my salary; or (b) $_________.
This salary reduction authorization shall remain in effect until I provide
written modification or termination of its terms to my employer.
II. CASH BONUS DEFERRAL
Subject to the requirements of the Model Elective SEP of ________, I authorize
the following __________________________________(name of employee) amount to
be contributed to my SEP-IRA rather than being paid to me in cash: $______.
III. AMOUNT OF DEFERRAL
I understand that the total amount I defer in any calendar year may not exceed
the smaller of:
(a) 15 percent of my compensation (determined without including any SEP-IRA
contributions; or (b) $9,240.*
IV. COMMENCEMENT OF DEFERRAL
The deferral election in either I or II, above, shall not become effective
before ________________.
(Specify a date no earlier than the first day of the first pay period
beginning _________(Month, day, year) after this authorization.)
V. DISTRIBUTIONS FROM SEP-IRAS
I understand that I should not withdraw or transfer any amounts from my
SEP-IRA that are attributable to elective deferrals and income on elective
deferrals for a particular calendar year (except for excess elective
deferrals) until March 15 of the subsequent year or, if sooner, when my
employer notifies me that the deferral percentage limitation test for that
plan year has been completed. Any such amounts that I withdraw or transfer
before this time will be includible in income for purposes of sections 72(t)
and 408(a)(1).
Signature of employee ___________________________Date _____________________
*This amount reflects the cost-of-living increase under section 402(g)
effective January 1, 1994. The amount is adjusted annually. Each January,
the IRS announces the increase, if any, in a news release and in the internal
revenue bulletin.
- -----------------------------------------------------------------------------
NOTIFICATION OF EXCESS SEP CONTRIBUTIONS
To: _____________________________
(name of employee)
Our calculations indicate that the elective deferrals you made to your SEP-
IRA for calendar year ____ exceed the maximum permissible limits under
section 408(k)(6). You made excess SEP contributions of $______for that year.
These excess SEP contributions are includible in your gross income for the
____________ (insert the year identified above or if less than $100, the
following year) calendar year.
These excess SEP contributions must be distributed from your SEP-IRA by
April 15, 19__ (insert year after the calendar year in which this notice is
given) in order to avoid possible penalties. Income allocable to the excess
amounts must be withdrawn at the same time and is includible in income in the
year of withdrawal. Excess SEP contributions remaining in your SEP-IRA
account after that time are subject to a 6 percent excise tax, and the income
on these excess SEP contributions may be subject to a 10 percent penalty when
finally withdrawn.
Signature of employee _________________________Date _______________________
_____________________________________________________________________________
DEFERRAL PERCENTAGE LIMITATION WORKSHEET (See instructions on page 3.)
(a) Employee Name ________________________________________________
________________________________________________
________________________________________________
(b) Status
H = HCE
F = Family
O = Other ________________________________________________
________________________________________________
________________________________________________
(c) Compensation ________________________________________________
________________________________________________
________________________________________________
(d) Deferrals ________________________________________________
(see below) ________________________________________________
________________________________________________
(e) Ratio
(if family member enter NA otherwise (d) - (c))
________________________________________________
________________________________________________
________________________________________________
(f) Permitted ratio
(for HCE* only, see below)
________________________________________________
________________________________________________
________________________________________________
(g) Permitted amount
(for HCE* only)(c) x (f)
________________________________________________
________________________________________________
________________________________________________
(h) Excess
(for HCE (only)(d) minus (g)
________________________________________________
________________________________________________
________________________________________________
Highly compensated employee.--See the special rule for family members on page
3.
Column (c). Compensation.--Enter compensation from this employer and any
related employers. Add any compensation paid to a "family member" to the
HCE's compensation.
Column (d). Deferrals.--Enter all SEP elective deferrals. Add any elective
deferrals of a "family member" to the HCE's elective deferrals.
Column (f). Permitted ratio.--
A Enter the total of the ratios in column (e) for the employees marked as
"O" in column (b) _________________________________________________.
B Divide line A by the number of employees marked as "O" in column (b)
C Permitted ratio.--Multiply line B by 1.25 and enter the permitted ratio
here _________________________________________.
INDIVIDUAL RETIREMENT ACCOUNT DISCLOSURE STATEMENT
The following information is provided to you in accordance with the
requirements of the Internal Revenue Code (the "Code") and Treasury
regulations and should be reviewed in conjunction with the Individual
Retirement Custodial Account Agreement (the "Custodial Agreement"), the
Application for your IRA (the "Application"), and the prospectus for the
mutual funds of The Omni Investment Fund that are allowable investments for
your IRA. The provisions of the Custodial Agreement, Application and
prospectus govern in any instance were the Disclosure, Statement is incomplete
or appears to conflict. This Disclosure Statement reflects the provisions of
the Internal Revenue Code in effect on January 1, 1993. This Disclosure
Statement provides a nontechnical summary of the law. Please consult with
your tax advisor for more complete information and refer to IRS Publication
590.
I. IRA STATUTORY REQUIREMENTS
An IRA is a trust or custodial account established for the exclusive
benefit of you and your beneficiaries. Current law requires that your IRA
agreement be in writing and that it meet the following requirements:
1. All contributions must be in cash and, for any taxable year,
cannot exceed 100% of your compensation or $2,000, whichever is less, unless
the contribution is a rollover contribution or an employer contribution to a
simplified employee pension plan ("SEP").
2. The custodian or trustee must be a bank or other institution or
person that is approved by the Internal Revenue Service to administer your IRA
in accordance with current tax laws.
3. None of your IRA assets may be invested in life insurance
contracts or commingled with the assets of other people except in a common
trust fund or common investment fund.
4. Your Interest in your IRA account is nonforfeitable.
5. Distribution from your IRA must be in accordance with certain
minimum distribution rules, which are explained in Section VII below.
II. RIGHT TO REVOKE
You may revoke your IRA at any time within seven days of the time your
Application is signed. To revoke your IRA, mail or deliver a written notice
stating "I hereby elect to revoke my The Omni Investment Fund IRA." Sign your
name exactly as it appears on your Application, include your social security
number, and mail the notice to:
<PAGE>
DST Systems Inc.
c/o The Omni Investment Fund
P.O. Box 419958
Kansas City, MO 64141
or send by overnight delivery to:
DST Systems Inc.
c/o The Omni Investment Fund
210 West 10th Street
7th Floor
Kansas City, MO 64105
Your notice will be considered mailed on the date of postmark, or the date
of certification or registration if it is sent by certified or registered
mail.
When IFTC receives the proper notice of revocation, you will be entitled
to a refund of your full IRA contribution, without any adjustment for expenses
or market fluctuations. If you have any questions concerning your right of
revocation, please call 1-800-435-1768 during regular business hours.
III. ELIGIBILITY
You may make regular contributions to an IRA if you receive compensation
from employment, earnings as from self-employment or alimony, and you have not
reached age 70 1/2 by the end of the tax year for which the contribution is
made. In addition, if you are married and file a joint tax return, you may
make contributions to an IRA for your spouse whether or not your spouse
receives compensation. You may make a rollover contribution to an IRA if you
have received an eligible rollover distribution from a qualified retirement
plan or tax-sheltered annuity or an eligible distribution from another IRA and
elect rollover treatment within 60 days. You may also make a
trustee-to-trustee transfer from another IRA. Finally, your employer may
contribute to your IRA, and if your employer sponsors a simplified employee
pension ("SEP"), your employer can make contributions to a SEP/IRA on your
behalf.
IV. CONTRIBUTIONS
A. REGULAR CONTRIBUTIONS
You may contribute each year up to $2,000 or 100 percent of your
compensation, whichever is less, to your IRA. If you also establish a spousal
<PAGE>
IRA for your spouse, you may contribute up to $2,250 or 100 percent of your
compensation, if less, which may be split between the two IRA's as you choose,
provided that no more than $2,000 may be contributed to either your IRA or the
spousal IRA. If your spouse has compensation in excess of $250, you and your
spouse can make a larger total contribution if you each contribute to a
regular IRA. If your employer contributes to your IRA, the contribution is
treated as compensation paid to you, whether or not the contribution is
deductible, unless the contribution is made under a SEP (see below).
Compensation for these purposes means wages, salaries, professional fees, or
other amounts derived from or received for personal services actually
rendered. It includes earned income from self employment and alimony or
separate maintenance payments includable in income. It does not include
pension or annuity payments or deferred compensation.
B. TIME FOR MAKING REGULAR CONTRIBUTIONS
You may make regular contributions to your IRA and/or your spousal
IRA anytime during a year, up to and including the due date for filing your
tax return for the year (without extensions). No regular contributions may be
made, to an IRA for the calendar year in which you reach age 70 1/2 or later
years. No regular contributions to a spousal IRA may be made for years in
which your spouse is age 70 1/2 or older.
C. DEDUCTIBILITY
Regular IRA contributions are fully deductible unless you or your
spouse are active participants in a tax-qualified plan of an employer. If you
or your spouse are active participants in such a plan, then your allowable
deduction for regular IRA contributions is reduced or eliminated if your
Adjusted Gross Income ("AGI") exceeds certain levels. (If you file separately
and arc married but live apart from your spouse at all times during the year,
you will be considered to be single when applying the following rules
regarding deduction limitations.) The deductible amount is determined as
follows:
1. If you (and your spouse) are not active participants in a tax-
qualified plan, any contribution up to the maximum amount is deductible.
2. If you (or your spouse) art an active participant in a tax-
qualified plan, AND
(a) your AGI is $25,000 or less ($40,000 for a married couple
filing a joint return and $0 for a married person filing separately), any
contribution up to the maximum amount is deductible;
(b) your AGI is $35,000 or more ($50,000 for a married couple
filing a joint return and $10,000 for a married person filing separately), no
IRA contribution is deductible;
(c) your AGI is between $25,000 and $35,000 ($40,000 and
$50,000 for a married couple filing a joint return and $0 to $ 10,000 for a
married person filing separately), the, deductible amount is reduced. In the
<PAGE>
case of a regular IRA, the reduction is $0.20 for each $1.00 of AGI over
$25,000 ($40,000 for a married couple filing a joint return and $0 for a
married person filing separately). For a spousal IRA, the reduction is $0.225
for each $1.00 of AGI over $40,000 if filing jointly. The limit will not be
reduced below $200 unless it is eliminated entirely.
To the extent that the deductibility of IRA contributions is reduced or
eliminated, then nondeductible contributions may be made to your MIA.
Earnings on all IRA contributions, whether or not the contributions themselves
are deductible, are tax-deferred until receipt. You must designate the amount
of nondeductible IRA contributions when filing your tax return for the year.
If you overstate the amount of your nondeductible contributions you must pay a
$100 penalty, unless you can show that such overstatement was due to
reasonable cause. If you fail to report nondeductible IRA contributions you
will be subject to a $50 penalty, unless your failure was due to reasonable
cause.
D. ROLLOVER CONTRIBUTIONS
1. AMOUNTS ELIGIBLE FOR ROLLOVER FROM PLANS AND TAX-SHELTERED
ANNUITIES
You may make a rollover contribution to your IRA of an "eligible
rollover distribution" from an employer tax-qualified plan (an "employer
plan") or a tax-sheltered annuity (including a 403(b)(7) account). The
administrator of the employer plan or the payor of a distribution from the
tax-sheltered annuity should be able to tell you what portion of your payment
is an eligible rollover distribution. The following types of payments cannot
be rolled over:
NON-TAXABLE PAYMENTS. In general, only the "taxable portion" of
your payment is an eligible rollover distribution. If you have made "after-
ax" employee contributions to the plan or annuity, these contributions will be
nontaxable when they are paid to you, and they cannot be rolled over. (After-
ax employee contributions generally are contributions you made from your own
pay that were already taxed.)
PAYMENTS SPREAD OVER LONG PERIODS. You cannot roll over a payment
if it is part of a series of equal (or almost equal) payments that are made at
least once a year and that will last for
your lifetime (or your life expectancy), or
your lifetime and your beneficiary's lifetime (or lift
expectancies), or
<PAGE>
a period of ten years or more.
REQUIRED MINIMUM PAYMENTS. Beginning in the year you reach age
70 1/2, a certain portion of your payment cannot be rolled (or transferred)
over because it is a "required minimum payment" that must be paid to you.
2. DIRECT ROLLOVER
You can choose a direct rollover of all or any portion of your
payment from an employer plan or a tax-sheltered annuity that is an "eligible
rollover distribution," as described above. In a direct rollover, the
eligible rollover distribution is paid directly from the plan or tax-sheltered
annuity to your IRA. If you choose a direct rollover, you are not taxed on a
payment until you later take it out of the IRA.
3. ROLLOVER OF PLAN PAYMENTS PAID TO YOU
A payment to you of an eligible rollover distribution from an
employer plan or tax-sheltered annuity is taxed in the year you receive it
unless, within 60 days, you roll it over to an IRA (or another plan that
accepts rollovers). If you do not roll it over, special tax rules may apply.
If any portion of the payment to you is an eligible rollover distribution, the
payor is required by law to withhold 20 percent of that amount. This amount
is sent to the IRS as income tax withholding.
SIXTY-DAY ROLLOVER OPTION. If you have an eligible rollover
distribution paid to you, you can still decide to roll over all or part of it
to an IRA (or another employer plan that accepts rollovers). If you decide to
roll over, you must make the rollover within 60 days after you receive the
payment. The portion of your payment that is rolled over will not be taxed
until you take it out of the IRA (or the employer plan).
You can roll over up to 100 percent of the eligible rollover
distribution, including an amount equal to the 20 percent that was withheld.
If you choose to roll over 100 percent, you must find other money within the
60-day period to contribute to the IRA or the employer plan to replace the 20
percent that was withheld. (On the other hand, if you roll over only the 80
percent that you received, you will be taxed on the 20 percent that was
withheld.)
See the Special Tax Notice Regarding Plan Payments, that must be
provided by the plan administrator or payor of your employer plan or tax-
sheltered annuity, for additional information on the rules governing rollover
and taxation of plan distributions, or consult your tax advisor for more
details.
You should maintain a separate, IRA account for any rollovers of
funds from an employer plan if you want to preserve your ability to later roll
over these funds and earnings into another employer plan. Similarly, you
should maintain a separate account for any rollover of funds from a tax-
sheltered annuity.
<PAGE>
You can make a rollover from a tax-qualified plan of your spouse's
employer if you received all or a part of your spouse's share as a result of
his or her death. A spouse or former spouse who is a recipient of a
distribution made under a qualified domestic relations order may roll over all
or part of the distribution.
Because complex rules apply to distributions and rollovers of
payments from employer plans and tax-sheltered annuities, you should seek
competent tax advice whenever you contemplate receiving a distribution from a
qualified plan or tax-sheltered annuity or an IRA funded by a rollover from a
qualified plan or tax-sheltered annuity.
4. ROLLOVERS FROM OTHER IRAS
You may also make a rollover contribution of amounts held in
another IRA. There are no limits on the amount of rollover contributions made
to an IRA from another IRA, except you may not roll over (or transfer) the
required minimum amount (described in VII.D.). However, the distribution from
the first IRA must be rolled over within 60 days of receipt and no more than
one distribution per year from an IRA may be rolled over into another IRA.
5. TAX-DEFERRAL ON IRA ROLLOVER OR TRUSTEE-TO-TRUSTEE TRANSFER
An effective rollover allows you to postpone paying taxes on
the amount distributed from an employer plan, tax-sheltered annuity or IRA
until it is withdrawn from the recipient IRA. You do not report the
distribution as income and you do not take a deduction for the rollover
contribution. Earnings on your rollover IRA are tax-deferred until receipt.
(Similarly, a trustee-to-trustee transfer is not treated as a distribution and
the amount transferred and earnings are tax-deferred until receipt.)
E. SEP CONTRIBUTIONS
If your employer has established a simplified employee pension
("SEP"), your employer may make contributions to your SEP/IRA. If the SEP
contains a salary reduction arrangement you may elect to reduce your salary by
up to the lesser of 15 percent of compensation or $7,000 (indexed annually);
and have that amount contributed to your SEP/IRA. The maximum SEP
contribution, including salary reduction amounts and employer contributions,
is the lesser of 15 percent of eligible compensation or $30,000. SEP
contributions are not included in your taxable income.
V. EXCESS CONTRIBUTIONS
Amounts contributed to an IRA which exceed the maximum allowable
<PAGE>
contribution are treated as "excess contributions" and are subject to a
nondeductible 6 percent penalty tax for each year in which the excess remains
in the IRA. Excess contributions may be corrected and the 6 percent penalty
tax avoided by withdrawal of the excess and any earnings thereon BEFORE THE
DUE DATE (including extensions) of the tax return for the tax year for which
the excess contribution was made. No deduction may be taken for the excess
contributions and the earnings must be included in taxable income for the year
the contribution was made. The earnings withdrawn may be subject to a 10
percent premature distribution tax if you are under age 59 1/2. See Section
VII.B.
An excess contribution may be withdrawn AFTER THE DUE DATE of the tax
return (including extensions) with the following consequences:
(a) If your total contribution for the tax year the excess
contribution was made is $2,250 or less (or below the limit of your employer's
SEP contribution), the excess contribution may be withdrawn without being
included in income or being subject to the 10 percent premature distribution
tax. No deduction may be taken for the excess contribution. Any earnings
withdrawn will be included in income and may be subject to the premature
distribution tax.
(b) If your total contribution for the tax year in which the
excess contribution was made exceeds $2,250 (or, if higher, the limit of your
employer's SEP contribution), any excess contribution and any earnings on the
excess withdrawn after the due date for tax filing (including extensions),
will be includable in income in the year received and will be subject to any
10 percent premature distribution tax that may apply. Additionally, no
deduction may be taken for the excess contribution for the year in which it is
made.
(c) Any excess contribution withdrawn after the due date for the
tax filing (including extensions) for the year for which the contribution was
made is subject to the 6 percent penalty tax on the amount of the excess
contribution for the taxable year in which made and each tax year that it is
still in your IRA at the end of the year.
You may also correct an excess contribution to your IRA by
treating the excess amount as contributed to your IRA in a subsequent year to
the extent that the excess, when aggregated with your IRA contribution (if
any) for the subsequent year, does not exceed the maximum amount for that
year. You may be entitled to a deduction for the amount of the excess
contribution that is applied in the subsequent year.
VI. INVESTMENT OF ACCOUNT AND FINANCIAL DISCLOSURE
The assets in your IRA will be invested by IFTC in mutual fund shares of
The Omni Investment Fund in accordance with your instructions and Article
VIII, paragraphs [2] and [10] of the Custodial Agreement.
<PAGE>
Growth in the value of your IRA cannot be Guaranteed or projected.
However, the income and operating expenses of each allowable investment that
you select for your IRA will affect the value of its shares and, therefore,
the value of your IRA. The Omni Investment Fund prospectus for such shares
contains information regarding current income and expenses of each of these
investments. Reasonable fees and other expenses of maintaining your IRA may
be charged to you or your IRA. The current annual Custodian's fee is set
forth in the Application. A new fee may be substituted from time to time as
provided in paragraph [7] of Article VIII of the Custodial Agreement.
VII. DISTRIBUTIONS
A. TAXATION OF DISTRIBUTION AS ORDINARY INCOME
In general, you must include distributions from your IRA in your
gross income for the year in which the distributions are received. There is a
10 percent additional income tax assessed against premature distributions to
the extent such distributions are includable in income, as described in B.
below.
You may exclude from your income that portion of a distribution that
constitutes a return of your properly reported nondeductible, contributions.
The amount of the distribution excludable from income is the portion that
bears the same ratio to the total distribution that your aggregate
nondeductible contributions (not distributed in prior years) bear to the
balance at the end of the year (calculated after adding back distributions
made during the year) of your IRA. For this purpose, all of your IRAs are
treated as a single IRA, and all distributions from an IRA during a taxable
year are to be treated as one distribution.
In addition, your gross income does not include any distribution
from an IRA that is properly rolled over. Except as provided in D. below, you
may roll over all or any part of property received in a distribution of
assets, within 60 days of receipt, into another IRA or individual retirement
annuity, and maintain the tax-deferred status of such assets. A rollover from
one IRA to another may be made once every twelve months. Also, certain
qualifying distributions which were rolled over into an IRA from employer tax-
qualified plans may be rolled over into another employer tax-qualified plan.
(You should seek competent tax advice regarding these rollovers.)
As explained in Section V, certain distributions of excess
contributions are not included in income. In addition, IRA contributions for
a taxable year which do not exceed the contribution limits for such year may
also be withdrawn without being included in income or being subject to a 10
percent premature distribution tax, as long as such contributions and earnings
thereon are withdrawn prior to the due date (including extensions) of your
federal income tax return for the tax year for which the contribution was
made. The earnings withdrawn must be included in taxable income for the year
in which the contribution was made and may be subject to the 10 percent
premature distribution tax.
<PAGE>
B. TAX ON PREMATURE DISTRIBUTIONS
To the extent they are included in income, distributions from your
IRA made before you reach age 59 1/2 will be subject to a 10 percent
nondeductible penalty tax (in addition to being taxable as ordinary income)
unless the distribution is made on account of your death or disability, or the
distribution is one of a scheduled series of payments over your life
expectancy or the joint life expectancies of you and your beneficiary.
C. TAX ON EXCESS DISTRIBUTIONS
There is a 15 percent excise tax assessed against annual
distributions from tax-favored retirement plans, including IRAs, which exceed
the greater of $150,000 or $112,500 (indexed annually). To determine whether
you have distributions in excess of this limit, you must aggregate the amounts
of all distributions received by you during the calendar year from all
retirement plans, including IRAs. If you have account balances or accrued
benefits equal to at least $562,500 as of August 1, 1986, you may have a
portion of the excess distributions exempted from the 15 percent additional
tax. Please consult with your tax advisor for more complete information,
including the availability of favorable elections.
D. REQUIRED MINIMUM DISTRIBUTIONS
1. DURING YOUR LIFE
The minimum distribution rules require that for your 70 1/2 year,"
and each year thereafter, you must make withdrawals from your IRA accounts
that are at least equal to the "minimum distribution." Your 70 1/2 year is
the calendar year that contains the date six months after your 70th birthday.
Generally, you must withdraw an amount at least equal to the
minimum distribution by December 31 of each year. However, for your 70 1/2
year, you may wait to withdraw the minimum distribution until April 1 of the
following year. (This means that if you wait to make your withdrawal for the
70 1/2 year until April 1 of the following year, your total withdrawal in that
year must equal the minimum distributions for two years - a withdrawal by
April 1 that is equal to the minimum distribution for the 70 1/2 year and a
second withdrawal by December 31 that is equal to the minimum distribution for
that year. In each year thereafter, you must withdraw the minimum
distribution for the year by December 31.)
The amount of the minimum distribution is usually determined by
dividing the account balance of your IRA, as of December 31 of the prior year,
by a divisor (determined by Internal Revenue Service actuarial tables) that is
based on your lift expectancy or the joint life and last survivor expectancy
for you and your beneficiary. See Article IV of the Custodial Agreement for a
more detailed explanation of how to calculate the minimum distribution. The
distributions must also satisfy the minimum distribution incidental benefit
rule, which generally will require distributions over a period less than the
joint and last survivor expectancy of you and your designated beneficiary
unless your beneficiary is your spouse or is no more than ten years younger
than you. The IRS provides tables for determining the distribution needed to
satisfy incidental benefit retirements.
<PAGE>
The minimum distribution required must be calculated separately for
each IRA you own, but the amounts so determined may be totaled and taken from
any one or more of your IRAs.
You will be subject to a 50 percent excise tax on the amount by
which the distribution you actually received in any year falls short of the
minimum distribution required for the year.
You may take your distribution in:
- a lump sum;
- equal or substantially equal payments over a specified period
no longer than your lift expectancy or the joint life and
last survivor expectancy of you and your designated
beneficiary.
Also, as described in Section VII.A., you may roll over your lump
sum distribution to purchase an individual retirement annuity payable in equal
or substantially equal payments over your lift or the joint and last survivor
lives of you and your designated beneficiary. (See Article IV and Article
VIII, paragraph 4, of the Custodial Agreement and IRS Publication 590 for a
full description of permissible distribution methods.)
2. AFTER YOUR DEATH
If you die before you reach age 70 1/2, distribution must be made to
your beneficiary by December 31 of the fifth year following the year of your
death unless, by December 31 of the year following your death, your
beneficiary begins receiving distributions over a period not extending beyond
your beneficiary's life expectancy. When your beneficiary is your spouse,
however, distributions can be postponed until December 31 of the year in which
you would have reached age 70 1/2, at which time your spouse must take them
over a period not extending a beyond his or her life expectancy. See Article,
IV of the Custodial Agreement and IRA Publication 590 for a more detailed
explanation of how to calculate the minimum distribution.
If you die after your required beginning date, the balance in the
Custodial Account must continue to be paid at least as rapidly as under the
method of payment being used prior to your death.
<PAGE>
If your beneficiary is your spouse, your beneficiary can elect to
treat your IRA as his or her own IRA.
The minimum distribution required must be calculated separately for
each IRA, but the amounts so determined may be totaled and taken from any one
or more IRAs.
A payee is subject to a 50 percent excise tax on the amount by which
a distribution for the year falls short of the minimum distribution required.
Your beneficiary may take his or her distribution in:
- a lump sum;
- equal or substantially equal payments over a specified period no
longer than his or her life expectancy.
Also, as described in Section VII.A., a spousal beneficiary may roll
over a lump sum distribution to purchase an individual retirement annuity
payable in equal or substantially equal payments over his or her life
expectancy. (Set Article IV and Article VIII, paragraph 4, of the Custodial
Agreement and IRS Publication 590 for a full description of permissible
distribution methods.)
3. FURTHER INFORMATION. This explanation only summarizes the
minimum distribution rules. Other rules and exceptions may apply to you that
are not discussed in this summary, including rules which, in some cases, would
prevent you from using certain options described above. You should consult
your personal tax advisor or IRS Publication 590 for more detailed
information.
VIII. LOSS OF TAX-EXEMPT STATUS OF IRA
If you engage in any of the prohibited transactions listed in Section
4975 of the Code (such as any sale, exchange, or leasing of any property
between you and your IRA) or if you take a loan from your IRA, your account
will be disqualified and the entire balance of your account will be treated as
if it had been distributed to you as of the first day of the year in which the
prohibited transaction occurred. The fair market value of your IRA will be
included in income in the year the prohibited transaction takes place and, if
you are under age 59 1/2 at the time, you may be subject to the 10 percent
penalty tax on premature distributions. Should you or your beneficiary pledge
all or any portion of your IRA as security for a loan, the portion so pledged
will be treated as if distributed to you, will be included in your income, and
may be subject to the 10 percent premature distribution penalty during the
year in which the pledge occurred.
<PAGE>
IX. OTHER TAX CONSIDERATIONS
A. FEDERAL INCOME TAX WITHHOLDING
Federal income tax will be withheld on amounts distributed from your
IRA unless you elect not to have withholding apply. Generally, tax will be
withheld at a 10 percent rate. At the time of distribution from your IRA, you
will be notified of your right to elect not to have withholding apply and will
be provided with the appropriate election form. If your IRA distribution is
to be delivered outside of the U.S., you may elect not to have withholding
apply only if you certify to the Custodian that you are not a U.S. citizen
residing, overseas or a "tax avoidance expatriate" as described in Section 877
of the Internal Revenue Code. (The distribution may also be subject to state
withholding laws.)
B. DISTRIBUTION NOT ELIGIBLE FOR LUMP-SUM AVERAGING OR CAPITAL GAINS
TREATMENT
No distribution to you or anyone else from your account can qualify
for capital gains treatment under the federal income tax laws or for the five-
or ten-year averaging available with respect to certain lump sum distributions
from other types of retirement plans. The distribution is taxed to the person
receiving it as ordinary income.
C. GIFT TAX
If you elect during your lifetime to have all or any part of your
account payable to beneficiary at or after your death, the election will not
subject you to any gift tax liability.
D. REPORTING FOR TAX PURPOSES
You must report deductible IRA contributions and distributions on
your tax Form 1040 or 1040A for the taxable year in which the contributions or
distributions were made. If you make any nondeductible contributions, you
must include the amount of such nondeductible contributions and the aggregate
account balance of all your IRAs as of the end of the calendar year on Form
8606. Additional reporting is required in the event that special taxes or
penalties described herein are due. You must file Form 5329 with the IRS for
each taxable year in which the contribution limits are exceeded, a premature
distribution takes place, less than the required minimum amount is distributed
from your IRA, or excess distributions are made.
X. IRS APPROVAL & INFORMATION
This IRA has not been submitted to the IRS for approval as to form because
it incorporates Form 5305-A issued by the IRS. This Disclosure Statement
provides only a summary of the laws governing IRAs. You should consult your
<PAGE>
personal tax advisor or IRS Publication 590, INDIVIDUAL RETIREMENT
ARRANGEMENTS, for more detailed information. This publication is available
from your local IRS office or by calling 1-800-TAX-FORMS.
THE OMNI INVESTMENT FUND
INDIVIDUAL RETIREMENT ACCOUNT APPLICATION
==========================================================================
Account
Holder Name__________________________________________________________
Home Address__________________________________________________
City ____________________ State____________Zip________________
Home Phone (___) ___ - ____Business Phone (___) ___ - ____
Date of Birth __ - __ - ____ Social Security # ___ - __ - ____
==========================================================================
Investment
Instructions
Under the provisions of my Individual Retirement Account (IRA), I
understand that the options available to me are limited to investments in
The OMNI Investment Fund and are governed by the terms of the current
prospectus. By giving instructions to invest in The OMNI Investment
Fund, I acknowledge receipt of such prospectus. The minimum initial
investment is $1,000.00.
IFTC, as custodian of your IRA, charges an annual administrative fee of
$12.00 per fund investment. You may enclose a separate check for this
fee, or include it in your purchase total. This fee is subject to
change.
Deposit Amount $_______________ The OMNI Investment Fund
___ $12 Custodian Fee Included
Total Amount of Check Enclosed $__________
SEND TO: DST Systems, Inc., c/o The OMNI Investment Fund,
P.O. Box 419958, Kansas City, MO 64141
=============================================================================
Type of
Account & Contributions
___ Normal IRA - Contributions
Current Tax Year 19___ $__________
Prior Tax Year 19___ $__________
___ SEP IRA - Contributions ___ Self Employed (Employer Contributions)
Current Tax Year 19___ $__________ ___ Receive My Employer's
Contributions
Prior Tax Year 19___ $__________ ___ Receive Salary Reductions
from Employer
___ IRA - Contribution $__________ Rolled Over within 60 days of my receipt
from
___ My Employer's Qualified Plan ___ My 403(b) plan ___ My IRA
___ My SEP IRA
___ Direct Rollover from ___ my Employer's Qualified Plan
___ my 403(b) plan
(Please complete The OMNI Investment Fund Direct Rollover Request)
___ Transfer Assets direct from another IRA
(Please complete The OMNI Investment Fund Transfer Request)
___ Transfer Assets direct from IRA R/O (conduit account) previously rolled
over from
___ my Qualified Plan ___ my 403(b) plan
Please complete The OMNI Investment Fund Transfer Request)
=============================================================================
<PAGE>
DESIGNATION OF BENEFICIARY(IES): I designate the individual(s) named below
the Beneficiary(ies) of this IRA. I revoke all prior IRA Beneficiary
designations, if any, made by me for these assets. I understand that I may
change or add Beneficiaries at any time by written notice to the Custodian.
If I am not survived by any Beneficiary, my Beneficiary shall be my estate.
(If no percentage is specified, primary beneficiaries will share the account
balance equally.)
PRIMARY
BENEFICIARY(IES)
Name___________________ Percent of Acct. ____ Percent SS#_____
Birthdate_________ Relationship ____________________
Address______________________________________________
Name___________________ Percent of Acct.____ Percent SS# ______
Birthdate__________Relationship _____________________
Address_______________________________________________
CONTINGENT
BENEFICIARY(IES)
Name __________________ Percent of Acct._____ Percent SS#______
Birthdate _________ Relationship _____________________
Address_________________________________________________
Name ___________________ Percent of Acct._____ Percent SS# ____
Birthdate __________________Relationship_____________________
Address______________________________________________________
==========================================================================
Spousal Consent:
(This section should be reviewed if the account holder is married and
designates a beneficiary other than the spouse. It is the account holder's
responsibility to determine if this section applies. The account holder may
need to consult with legal counsel. Neither the Custodian nor the Sponsor are
liable for any consequences resulting from a failure of the account holder to
provide proper spousal consent.)
I am the spouse of the above named account holder. I acknowledge that I
have received a full and reasonable disclosure of my spouse's property
and financial obligations. Due to any possible consequences of giving
up my community property interest in this IRA, I have been advised to see
a tax professional or legal advisor.
I hereby consent to the beneficiary designation(s) indicated above. I
assume full responsibility for any adverse consequence that may result.
No tax or legal advice was given to me by the Custodian or Sponsor.
_____________________________ ________________
SIGNATURE OF SPOUSE DATE
_____________________________ ________________
SIGNATURE OF WITNESS FOR SPOUSE DATE
===========================================================================
Account holder Signature: Important: Please read before signing
By signing this Application establishing an IRA, the undersigned: (1)
establishes an Individual Retirement Account pursuant to the Internal Revenue
Code of 1986, as amended, and in accordance with all the terms of the
custodial Agreement on Form 5305A, (2) certifies that all contributions to the
IRA meet the requirements of the Code governing such contributions, (3)
appoints Investors Fiduciary Trust Company, or its successors, as Custodian on
the Account, (4) states that he or she has received, read, accepts and
specifically incorporates herein the Custodial Agreement to the Custodian
necessary to enable the Custodian to carry out its duties under the Custodial
Agreement, and (6) agrees that he or she has received and read the Prospectus
for the investment selected and that this account will be subject to the
Custodial Agreement as amended from time to time.
Under penalties of perjury, I certify that the number shown on this form is my
correct social security number.
SIGN
HERE: __________________________ _____________
Signature of Depositor Date
==========================================================================
Acceptance of Custodian: Investors Fiduciary Trust Company
THE OMNI INVESTMENT FUND IRA TRANSFER AND DIRECT ROLLOVER REQUEST
=============================================================================
To transfer assets from an existing IRA or to complete a direct rollover from
a qualified employer plan, 403(b) account or Keogh to The OMNI Investment Fund
IRA, complete this form and attach a copy of a current statement from your
existing IRA or qualified retirement plan. If you are opening a new IRA, also
attach your completed IRA application to this form. Return this form and the
applicable attachments to DST Systems, Inc., c/o The OMNI Investment Fund,
P.O. Box 419958, Kansas City, MO 64141.
==============================================================================
CUSTODIAN OF EXISTING ACCOUNT: TODAY'S DATE _________________
_____________________________ ______________________________
Custodian Name Your Social Security No.
_____________________________ ______________________________
Custodian Address Your Name
_____________________________ ______________________________
Address
_____________________________ _______________________________
Custodian Telephone Number City State Zip
==============================================================================
INSTRUCTIONS TO CUSTODIAN OF
EXISTING ACCOUNT NUMBER__________________ FBO NAME____________________________
I have established an OMNI Investment Fund Individual Retirement Account
with Investors Fiduciary Trust Company as Custodian. Please withdraw assets
from my account in your custody in the following manner and send a check
payable to Investors Fiduciary Trust Company (IFTC) Individual Retirement
Account FBO my name.
Mail to DST Systems, Inc., c/o The OMNI Investment Fund,
P.O. Box 419958, Kansas City, MO 64141.
Type of Account to be transferred (check one):
___ IRA ___ SEP IRA ___ Conduit IRA established by prior rollover
from qualified plan
___ Direct Rollover from qualified plan, keogh, 403(b) Custodial
Account/Annuity
___ Other (List Type)___________________________________________
Portion of account to be transferred (check one):
___ All of the assets in my account ___ $_____________ or ___ percent
of my account.
If you are transferring a certificate of deposit IRA choose one of the options
below:
___ Liquidate prior to maturity date. I am aware of and acknowledge the
penalty I will incur from an early withdrawal.
___ Liquidate at maturity. (Maturity date must be within 60 days. If the
maturity date is less than 15 days from the date of this
request, you may want to contact your custodian bank to prevent
automatic reinvestment of the account.)
==============================================================================
INSTRUCTIONS TO INVESTORS FIDUCIARY TRUST COMPANY:
Please invest the assets transferred from my existing account to:
The OMNI Investment Fund account number________________________
=============================================================================
AUTHORIZATIONS:
Shareholder Authorization: I hereby authorize Investors Fiduciary Trust
Company to deposit the assets received from my existing IRS, qualified
employer plan or Section 403(b) account according to the terms stated in this
IRA Transfer Request Form. I hereby acknowledge that strict requirements must
be met to qualify for tax-free rollover or transfer treatment; I hereby
certify that the source of the transfer or rollover contribution qualifies the
contribution as such.
SIGN
HERE:____________________________________________ ____________
Signature Date
Custodian Authorization: Investors Fiduciary Trust Company hereby accepts its
appointment as Custodian of the above IRA account and upon receipt of assets,
will deposit such assets in The OMNI Investment Fund IRA on behalf of the
Depositor authorizing this transfer or direct rollover.
Investors Fiduciary Trust Company
