<PAGE> 1
As filed with the Securities and Exchange Commission on July 30, 1998
File Nos. 33-76146 and 811-8404
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
POST-EFFECTIVE AMENDMENT NO. 7
AND
REGISTRATION STATEMENT UNDER
THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 9
SELECT ADVISORS TRUST C
(Exact Name of Registrant as Specified in Charter)
311 PIKE STREET, CINCINNATI, OHIO 45202
(Address of Principal Executive Offices)
(Zip Code)
Registrant's Telephone Number, including Area Code: (513) 361-7900
ANDREW S. JOSEF
INVESTORS BANK & TRUST COMPANY
200 CLARENDON STREET, BOSTON, MASSACHUSETTS 02116
(Name and Address of Agent for Service)
copies to:
J. Leland Brewster, Esq.
Frost & Jacobs LLP Edward G. Harness, Jr.
2500 East 5th Street Touchstone Securities, Inc.
P.O. Box 5715 311 Pike Street
Cincinnati, Ohio 45201-5715 Cincinnati, Ohio 45202
It is proposed that this filing will become effective (check appropriate box)
[X] immediately upon filing pursuant to paragraph (b)
[ ] on (date) pursuant to paragraph (b)
[ ] 60 days after filing pursuant to paragraph (a)(1)
[ ] 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.
Select Advisors Portfolios has also executed this Registration Statement.
Title of Securities Being Registered: Shares of Beneficial Interest
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SELECT ADVISORS TRUST C
FORM N-1A
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
Part A
ITEM NO. HEADINGS IN PROSPECTUS
<S> <C>
1. Cover Page .................................. Cover Page
2. Synopsis .................................... Summary; Summary of Expenses
3. Condensed Financial Information ............. Financial Highlights
4. General Description of Registrant ........... Cover Page; Summary; Investment
Objectives, Policies and Risks;
Advisor and Portfolio Advisors;
Management of the Trust and the
Portfolio Trust
5. Management of the Funds. ................... Advisor and Portfolio Advisors;
Management of the Trust and the
Portfolio Trust
6. Capital Stock and Other Securities ......... Cover Page; Purchase of Shares;
Redemption of Shares; Dividends,
Distributions and Taxes; Management
of the Trust and the Portfolio
Trust; Performance Information;
Additional Information
7. Purchase of Securities Being Offered ....... Purchase of Shares; Net Asset Value
8. Redemption or Repurchase ................... Redemption of Shares; Net Asset
Value
9. Pending Legal Proceedings .................. Not applicable
Part B HEADINGS IN STATEMENT OF
ITEM NO. ADDITIONAL INFORMATION
10. Cover Page ................................. Cover Page
11. Table of Contents .......................... Table of Contents
12. General Information and History ............ Not applicable
13. Investment Objectives and Policies ......... Investment Objectives, Policies,
Restrictions and Risks
14. Management of the Fund ..................... Management of the Trust and the
Portfolio Trust
15. Control Persons and Principal Holders
of Securities .............................. Management of the Trust and the
Portfolio Trust
</TABLE>
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<TABLE>
<S> <C>
16. Investment Advisory and Other Services ..... Management of the Trust and the
Portfolio Trust
17. Brokerage Allocation and Other
Practices .................................. Investment Objectives, Policies,
Restrictions and Risks
18. Capital Stock and Other Securities ......... Organization of the Trust and the
Portfolio Trust (See also Prospectus
-- "Dividends, Distributions and
Taxes")
19. Purchase, Redemption and Pricing of
Securities Being Offered ................... Valuation of Securities; Redemption
in Kind
20. Tax Status ................................. Taxation (See also Prospectus --
"Dividends, Distributions and
Taxes")
21. Underwriters ............................... Management of the Trust and the
Portfolio Trust (See also Prospectus
-- "Management of the Trust and the
Portfolio Trust")
22. Calculation of Performance
Information ................................ Performance Information
23. Financial Statements ....................... Financial Statements
</TABLE>
PART C
Information required to be included in Part C is set forth under the
appropriate item, so numbered, in Part C of this Registration Statement.
<PAGE> 4
EXPLANATORY NOTE
This Post-Effective Amendment to the Registration Statement on Form N-1A of
Select Advisors Trust C (the "Trust")(File Nos. 33-76146 and 811-8404) is being
filed pursuant to Rule 485(b) of the Securities Act of 1933 in order to
electronically file certain exhibits to the Trust's Registration Statement which
have previously been filed with the Securities and Exchange Commission in paper
form. The prospectus and statement of additional information of the Trust have
not changed and are incorporated by reference herein.
<PAGE> 5
PART C
OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
(a) FINANCIAL STATEMENTS INCLUDED IN PART A
FOR THE REGISTRANT (except Touchstone Value Plus Fund C):
Financial Highlights
(b) FINANCIAL STATEMENTS INCLUDED IN PART B
FOR THE REGISTRANT (except Touchstone Value Plus Fund C and
Touchstone Standby Income Fund):
Statement of Assets and Liabilities, December 31, 1997
Statement of Operations, for the year ended December 31, 1997
Statement of Changes in Net Assets, for the years ended
December 31, 1997 and December 31, 1996
Financial Highlights
Notes to Financial Statements
Report of Independent Accountants
FOR TOUCHSTONE STANDBY INCOME FUND
Schedule of Investments, December 31, 1997 Statement of
Assets and Liabilities, December 31, 1997 Statement of
Operations, for the year ended December 31, 1997
Statement of Changes in Net Assets for the years ended
December 31, 1997 and December 31, 1996
Financial Highlights
Notes to Financial Statements
Report of Independent Accountants
FOR SELECT ADVISORS PORTFOLIOS (except Touchstone Value Plus
Portfolio):
Schedule of Investments, December 31, 1997 Statement of
Assets and Liabilities, December 31, 1997 Statement of
Operations, for the year ended December 31, 1997
Statement of Changes in Net Assets for the years ended
December 31, 1997 and December 31, 1996
Notes to Financial Statements
Supplementary Data
Report of Independent Accountants
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(b) EXHIBITS:
(1A) Amended Declaration of Trust of the Trust.2
(1B) Amendment to the Amended Declaration of Trust of the Trust.4
(2) By-Laws of the Trust.2
(3) Inapplicable.
(4) Inapplicable.
(5) Inapplicable.
(6) Distribution Agreement.6
(7) Inapplicable.
(8) Custodian Agreement.6
(9A) Administration Agreement.3
(9B) Transfer Agency Agreement.6
(9C) Sponsor Agreement.6
(9D) Amendment No. 1 to the Sponsor Agreement.6
(9E) Fund Accounting Agreement.3
(10) Opinion of counsel.6
(11) Consent of independent accountants.5
(12) Inapplicable.
(13) Investment letter of initial shareholder.6
(14) Inapplicable.
(15) Distribution and Service Plan.6
(16) Method of computation of performance information.6
(17) Inapplicable.
(27) Financial Data Schedules.5
1 Incorporated herein by reference from the registration
statement of the Registrant on Form N-1A as originally filed
with the Securities and Exchange Commission ("SEC") on March 7,
1994.
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2 Incorporated herein by reference from post-effective amendment
No. 2 to the Registration Statement as filed with the SEC on
April 29, 1996.
3 Incorporated herein by reference from post-effective amendment
No. 3 to the Registration Statement as filed with the SEC on
February 28, 1997.
4 Incorporated herein by reference from post-effective amendment
No. 5 to the Registration Statement as filed with the SEC on
February 13, 1998.
5 Incorporated herein by reference from post-effective amendment
No. 6 to the Registration Statement as filed with the SEC on
April 28, 1998.
6 Filed herein.
ITEM 25. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL
WITH THE TRUST.
Inapplicable.
ITEM 26. NUMBER OF HOLDERS OF SECURITIES.
NUMBER OF RECORD
TITLE OF CLASS HOLDERS
(as of June 30, 1998)
Emerging Growth Fund C 545
International Equity Fund C 544
Growth & Income Fund C 622
Balanced Fund C 427
Income Opportunity Fund C 619
Bond Fund C 266
Value Plus Fund A 5
Standby Income Fund 130
ITEM 27. INDEMNIFICATION.
Under Article V, Section 5.3 of the Trust's Declaration of Trust, (a) subject to
the exceptions and limitations contained in paragraph (b) below: (i) every
person who is or has been a Trustee or officer of the Trust shall be indemnified
by the Trust, to the fullest extent permitted by law (including the 1940 Act) as
currently in effect or as hereinafter amended, against all liability and against
all expenses reasonably incurred or paid by him in connection with any claim,
action, suit or proceeding in which he becomes
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involved as a party or otherwise by virtue of his being or having been a Trustee
or officer and against amounts paid or incurred by him in the settlement
thereof; (ii) the words "claim", "action", "suit", or "proceeding" shall apply
to all claims, actions, suits or proceedings (civil, criminal, administrative or
other, including appeals), actual or threatened; and the words "liability" and
"expenses" shall include, without limitation, attorneys' fees, costs, judgments,
amounts paid in settlement, fines, penalties and other liabilities. (b) No
indemnification shall be provided hereunder to a Trustee or officer: (i) against
any liability to the Trust or the Shareholders by reason of a final adjudication
by the court or other body before which the proceeding was brought that he
engaged in wilful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office; (ii) with respect to any
matter as to which he shall have been finally adjudicated not to have acted in
good faith in the reasonable belief that his action was in the best interest of
the Trust; or (iii) in the event of a settlement involving a payment by a
Trustee or officer or other disposition not involving a final adjudication as
provided in paragraph (b)(i) or (b)(ii) above resulting in a payment by a
Trustee or officer, unless there has been either a determination that such
Trustee or officer did not engage in wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office by the court or other body approving the settlement or other disposition
or by a reasonable determination, based upon a review of readily available facts
(as opposed to a full trial-type inquiry) that he did not engage in such
conduct: (A) by a vote of a majority of the Disinterested Trustees acting on the
matter (provided that a majority of the Disinterested Trustees then in office
act on the matter); or (B) by written opinion of independent legal counsel. (c)
Subject to the provisions of the 1940 Act, the Trust may maintain insurance for
the protection of the Trust Property, its present or former Shareholders,
Trustees, officers, employees, independent contractors and agents in such amount
as the Trustees shall deem adequate to cover possible tort liability (whether or
not the Trust would have the power to indemnify such Persons against such
liability), and such other insurance as the Trustees in their sole judgment
shall deem advisable. (d) The rights of indemnification herein provided shall be
severable, shall not affect any other rights to which any Trustee or officer may
now or hereafter be entitled, shall continue as to a Person who has ceased to be
such a Trustee or officer and shall inure to the benefit of the heirs, executors
and administrators of such Person. Nothing contained herein shall affect any
rights to indemnification to which personnel other than Trustees and officers
may be entitled by contract or otherwise under law. (e) Expenses of preparation
and presentation of a defense to any claim, action, suit, or proceeding of the
character described in paragraph (a) of this Section 5.3 shall be advanced by
the Trust prior to final disposition thereof upon receipt of an undertaking by
or on behalf of the recipient to repay such amount if it is ultimately
determined that he is not entitled to indemnification under this Section 5.3,
provided that either: (i) such undertaking is secured by a surety bond or some
other appropriate security or the Trust shall be insured against losses arising
out of any such advances; or (ii) a majority of the Disinterested Trustees
acting on the matter (provided that a majority of the Disinterested Trustees
then in office act on the matter) or an independent legal counsel in a written
opinion, shall determine, based upon a review of readily available facts (as
opposed to a full trial-type inquiry), that there is reason to believe that the
recipient ultimately will be found entitled to indemnification. As used in this
Section 5.3 a "Disinterested Trustee" is one
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(i) who is not an "Interested Person" of the Trust (including anyone who has
been exempted from being an "Interested Person" by any rule, regulation or order
of the Commission), and (ii) against whom none of such actions, suits or other
proceedings or another action, suit or other proceeding on the same or similar
grounds is then or had been pending. As used in this Section 5.3, the term
"independent legal counsel" means an attorney who is independent in all respects
from the Trust and from the person or persons who seek indemnification hereunder
and in any event means an attorney who has not been retained by or performed
services for the Trust or any person to be so indemnified within the five years
prior to the Initial request for indemnification pursuant hereto.
Insofar as indemnification for liability arising under the Securities Act of
1933, as amended (the "1933 Act"), may be permitted to Trustees, officers and
controlling persons of the Trust pursuant to the foregoing provisions, or
otherwise, the Trust has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Trust of expenses incurred or
paid by a Trustee, officer or controlling person of the Trust 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
Trust 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 1933 Act and will be governed by the final adjudication of such
issue.
ITEM 28. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER.
Inapplicable.
ITEM 29. PRINCIPAL UNDERWRITERS.
(a) Touchstone Securities, Inc. ("Touchstone"), the distributor of the Shares
of the Trust, also serves as principal underwriter for other investment
companies.
(b) Set forth below are the names, principal business addresses and positions
of each director and officer of Touchstone. Unless otherwise noted, the
principal business address of these individuals is Touchstone Securities,
Inc., 311 Pike Street, Cincinnati, Ohio 45202. Unless otherwise specified,
none of the officers and directors of Touchstone serve as officers and
Trustees of the Trust.
POSITION AND OFFICES
WITH TOUCHSTONE POSITION AND OFFICES
NAME SECURITIES WITH THE REGISTRANT
James N. Clark* Director none
Edward G. Harness, Jr. Director and Chief Chairman of the Board,
Executive Officer President and Chief
Executive Officer
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Edward S. Heenan* Controller Controller
William F. Ledwin* Director none
Donald J. Wuebbling* Director none
James J. Vance Treasurer Treasurer
Richard K. Taulbee* Vice President none
Carl A. Ramsey** Vice President none
E. Duane Clay** Vice President none
Patricia Wilson Chief Compliance none
Officer
J. Thomas Lancaster* Treasurer none
Robert F. Morand* Secretary none
* Principal business address is 400 Broadway, Cincinnati, Ohio 45202.
** Principal business address is 8901 Indian Hills Drive, Omaha, Nebraska
68114.
(c) Inapplicable.
ITEM 30. LOCATION OF ACCOUNTS AND RECORDS.
Select Advisors Trust C
311 Pike Street
Cincinnati, OH 45202
Touchstone Advisors, Inc.
311 Pike Street
Cincinnati, OH 45202
(investment advisor)
Investors Bank & Trust Company
200 Clarendon Street
Boston, MA 02116
(administrator, custodian and fund accounting agent)
Touchstone Securities, Inc.
311 Pike Street
Cincinnati, OH 45202
ITEM 31. MANAGEMENT SERVICES.
Not applicable.
ITEM 32. UNDERTAKINGS.
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(a) Not applicable.
(b) Not applicable.
(c) If the information called for by Item 5A of Form N-1A is contained in the
latest annual report to shareholders, the Registrant shall 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.
(d) The Registrant undertakes to comply with Section 16(c) of the 1940 Act.
<PAGE> 12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the Investment
Company Act of 1940, as amended, the Registrant has duly caused this amendment
to its Registration Statement on Form N-1A (the "Registration Statement") to be
signed below on its behalf by the undersigned, thereto duly authorized, in the
City of Boston and the Commonwealth of Massachusetts on the 28th day of July,
1998.
SELECT ADVISORS TRUST C
By: /s/ ANDREW S. JOSEF
Andrew S. Josef, Secretary
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated on July 28, 1998.
SIGNATURE TITLE
/s/ EDWARD G. HARNESS, JR.* Trustee, President, Chief
Edward G. Harness, Jr. Executive Officer and
Chairman of the Board
/s/ WILLIAM J. WILLIAMS* Trustee
William J. Williams
/s/ JOSEPH S. STERN, JR.* Trustee
Joseph S. Stern, Jr.
/s/ PHILLIP R. COX* Trustee
Phillip R. Cox
/s/ DAVID POLLAK* Trustee
David Pollak
/s/ ROBERT E. STAUTBERG* Trustee
Robert E. Stautberg
/s/ JAMES J. VANCE* Treasurer (Principal Financial
James J. Vance Officer and Principal Accounting
Officer)
*By: /s/ ANDREW S. JOSEF
Andrew S. Josef, as Attorney-in-Fact
(pursuant to powers of attorney filed herewith).
<PAGE> 13
SIGNATURES
Select Advisors Portfolios has duly caused this Registration Statement on Form
N-1A (the "Registration Statement") of Select Advisors Trust C (the "Trust") to
be signed on its behalf by the undersigned, thereto duly authorized, in the City
of Boston and the Commonwealth of Massachusetts on the 28th day of July, 1998.
SELECT ADVISORS PORTFOLIOS
By: /s/ ANDREW S. JOSEF
Andrew S. Josef, Secretary
This Registration Statement of Select Advisors Trust C has been signed below by
the following persons in the capacities indicated on July 28, 1998.
SIGNATURE TITLE
/s/ EDWARD G. HARNESS, JR.* Trustee, President, Chief
Edward G. Harness, Jr. Executive Officer and
Chairman of the Board of Select
Advisors Portfolios
/s/ WILLIAM J. WILLIAMS* Trustee of Select Advisors
William J. Williams Portfolios
/s/ JOSEPH S. STERN, JR.* Trustee of Select Advisors
Joseph S. Stern, Jr. Portfolios
/s/ PHILLIP R. COX* Trustee of Select Advisors
Phillip R. Cox Portfolios
/s/ DAVID POLLAK* Trustee of Select Advisors
David Pollak Portfolios
/s/ ROBERT E. STAUTBERG* Trustee of Select Advisors
Robert E. Stautberg Portfolios
/s/ JAMES J. VANCE* Treasurer (Principal Financial
James J. Vance Officer and Principal Accounting
Officer) of Select Advisors
Portfolios
*By: /s/ ANDREW S. JOSEF
Andrew S. Josef, as Attorney-in-Fact
(pursuant to powers of attorney filed herewith).
<PAGE> 14
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
(6) Distribution Agreement
(8) Custodian Agreement
(9B) Transfer Agency Agreement
(9C) Sponsor Agreement
(9D) Amendment No. 1 to the Sponsor Agreement
(10) Opinion of counsel
(13) Investment letter of initial shareholder
(15) Distribution and Service Plan
(16) Method of computation of performance information
<PAGE> 1
Exhibit (6)
DISTRIBUTION AGREEMENT
(Mutual Fund)
DISTRIBUTION AGREEMENT, dated as of September 9, 1994, by and between
SELECT ADVISORS TRUST C, a Massachusetts business trust (the "Trust"), with
respect to each of its series of shares of beneficial interest ("Shares") (each
series of shares is a "Fund"), and TOUCHSTONE SECURITIES, INC., a Nebraska
corporation ("Touchstone" or the Distributor").
WITNESSETH
WHEREAS, the Trust is engaged in business as an open-end investment company
registered under the Investment Company Act of 1940 (collectively with the rules
and regulations promulgated thereunder, the "1940 Act");
WHEREAS, the Board of Trustees of the Trust has adopted a Distribution
Plan, dated as of July 25, 1994 the ("Distribution Plan"), which is incorporated
herein by reference and pursuant to which the Trust desires to enter into this
Distribution Agreement; and
WHEREAS, the Trust wishes to engage Touchstone to provide certain services
with respect to the distribution of Shares of each Fund, and Touchstone is
willing to provide such services to the Trust, with respect to the Funds, on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. APPOINTMENT OF DISTRIBUTOR; DUTIES.
(a) The Trust grants to the Distributor the right, as agent of the
Trust, to sell Shares upon the terms hereinbelow set forth during the term of
this Agreement. While this Agreement is in force, the Distributor agrees to use
its best efforts to find purchasers for the Shares.
(b) The Distributor shall have the right, as agent of the Trust, to
order Shares as needed, but not more than the Shares needed (except for clerical
errors and errors of transmission), to fill unconditional orders for Shares
placed with the Distributor, all such orders to be made in the manner set forth
in the respective Fund's then-current prospectus (the "Prospectus") and
then-current statement of additional information (the "Statement of Additional
Information"). The price which shall be paid to the Fund for the Shares so
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<PAGE> 2
purchased shall be that Fund's net asset value per Share as determined in
accordance with the provisions of the Trust's Declaration of Trust and By-Laws,
as each may from time to time be amended, and that Fund's Prospectus and
Statement of Additional Information (collectively, the "Governing Instruments").
In addition to the price of the Shares, the Distributor shall collect any
applicable sales charge on Shares sold, from each purchaser thereof, as provided
in the respective Fund's Prospectus and Statement of Additional Information,
after taking into account any applicable reductions or eliminations of sales
charges described therein. The Distributor shall retain the sales charge less
any applicable commissions or transaction or agency fees paid to any
broker-dealer, bank, trust company or other financial institution having a
selling, servicing or agency agreement with the Distributor (an "Agent"),
through which such Shares have been sold. The Distributor or its Agent shall
notify the custodian of the respective Fund at the end of each business day, or
as soon thereafter as the orders placed with the Distributor have been compiled,
of the number of Shares and the prices thereof which have been ordered through
the Distributor since the end of the previous business day.
(c) The right granted to the Distributor to place orders for Shares
shall be exclusive, except that this exclusive right shall not apply to Shares
issued in the event that an investment company (whether a regulated or private
investment company or a personal holding company) is merged with and into or
consolidated with a Fund or the Trust or in the event that the Trust acquires,
on behalf of a Fund, by purchase or otherwise, all or substantially all of the
assets or the outstanding shares of any such company; nor shall it apply to
Shares issued by the Trust as a dividend or stock split. The exclusive right to
place orders for Shares, as hereby granted to the Distributor, may be waived by
the Distributor by notice to the Trust in writing, either unconditionally or
subject to such conditions and limitations as may be set forth in such notice to
the Trust. The Trust hereby acknowledges that the Distributor may render
distribution and other services to other parties, including other investment
companies. In connection with its duties hereunder, the Distributor shall also
arrange for computation of performance statistics with respect to each Fund and
arrange for publication of current price information in newspapers and other
publications.
(d) The Trust retains the ultimate right to control the sale of the
Shares, including the right to suspend sales in any jurisdiction, to appoint and
discharge agents of the Trust in connection with the Shares, and to refuse to
sell Shares to any person for any reason whatsoever.
2. TRUST DUTIES.
(a) The net asset value of Shares shall be determined by the Trust, or
by an agent of the Trust, as of the times and in accordance with the method
established pursuant to the Governing Instruments (and on such other days as the
Trustees deem necessary in order to comply with Rule 22c-1 under the 1940 Act).
The Trust shall have right to suspend the sale of Shares if, because of some
extraordinary condition, trading in the securities in which such Fund invests)
is suspended or restricted or if conditions existing render such action
advisable or for any other reason deemed adequate by the Trust.
-2-
<PAGE> 3
(b) The Trust will, from time to time, but subject to the necessary
approval, if any, of the Fund's shareholders, take all necessary action to
register such number of Shares under the Securities Act of 1933, as amended (the
"1933 Act"), as the Distributor may reasonably be expected to sell.
3. RELATIONSHIP BETWEEN TRUST AND DISTRIBUTOR. The Distributor shall be
an independent contractor and neither the Distributor nor any of its directors,
officers or employees, as such, is or shall be considered an employee of the
Trust pursuant to this Agreement. It is understood that the Trustees, officers
and shareholders of the Trust are or may become interested in the Distributor as
directors, officers, employees, or otherwise and that directors, officers and
employees of the Distributor are or may become interested in the Trust as
shareholders or otherwise. The Distributor is responsible for its own conduct
and the employment, control and conduct (but only with respect to the duties and
obligations of the Distributor hereunder) of its agents and employees and for
any injury to any person through its agents or employees. The Distributor
assumes full responsibility for its agents and employees under applicable
statutes and agrees to pay all employer taxes thereunder.
4. BEST EFFORTS. The Distributor covenants and agrees that, in selling
Shares, it will use its best efforts in all respects duly to conform with the
requirements of all state and federal laws and the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. (the "NASD") relating to the
sale of shares. The Distributor will use its best efforts to assure that no
person uses any sales aids, promotional material or sales literature regarding
the Shares that have not been specifically approved in advance by the
Distributor and the Trust. The Distributor will use its best efforts to assure
that no person, in connection with the offer or sale of the Shares, makes any
representations regarding the Shares, the Company or the Distributor which are
not either then authorized by the Company and the Distributor or contained in a
then-effective registration statement relating to any of the Funds and the
offering of the Shares (the "Registration Statement").
5. INDEMNIFICATION
(a) The Distributor will indemnify and hold harmless the Trust and
each of its Trustees and officers and each person, if any, who controls the
Trust within the meaning of Section 15 of the Act (the "Indemnified Parties")
against all losses, liabilities, damages, claims or expenses (including the
reasonable cost of investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees incurred in connection
therewith) arising from any claim, demand, action or suit (individually a
"Claim" and, collectively, "Claims") made by any person who shall have acquired
any of the Shares through the Distributor, which Claim is based upon the 1933
Act or any other statute or common law and arises either:
(i) by reason of any wrongful act of the Distributor or any of
its employees (including any failure to conform with any requirement
of any state
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<PAGE> 4
or federal law or the Rules of Fair Practice of the NASD relating to
the sale of Shares), or
(ii) on the ground that the Registration Statement under the 1933
Act, including all amendments thereto, or the respective Prospectus or
Statement of Additional Information or previous prospectus or
statement of additional information, with respect to such Shares,
includes or included an untrue statement of a material fact or omits
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading,
but if and only if any such act, statement or omission was made in reliance upon
information furnished by the Distributor to the Trust.
(b) In no event (i) is the indemnity of the Distributor in favor of
any Indemnified Party pursuant to paragraph (a), above to be deemed to protect
any such Indemnified Party against liability to which such Indemnified party
would otherwise be subject by reason of wilful misfeasance, bad faith or gross
negligence in the performance of his, her or its duties or by reason of his, her
or its reckless disregard of his, her or its obligations and duties under this
Agreement, or (ii) is the Distributor to be liable under or pursuant to
paragraph (a), above, with respect to any Claim made against any Indemnified
Party unless such Indemnified Party shall have notified the Distributor in
writing within a reasonable time after the summons or other first legal process
giving information as to the nature of the Claim shall have been served upon
such Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but the failure of the
Indemnified Party to notify the Distributor of any such Claim shall not relieve
the Distributor from any liability which it may have to any Indemnified Party
otherwise than pursuant to this Agreement.
(c) The Distributor shall be entitled to participate, at its own
expense, in the defense, or, if it so elects, to assume the defense, of any suit
brought to enforce any such Claim, and, if the Distributor elects to assume the
defense, such defense shall be conducted by counsel chosen by it and reasonably
satisfactory to each Indemnified Party. If the Distributor elects to assume the
defense of any such suit and retain such counsel, each Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, PROVIDED,
HOWEVER, that if the Distributor does not elect to assume the defense of any
such suit, it shall reimburse the Indemnified Parties for the reasonable fees
and expenses of any counsel retained by them.
(d) Except with the prior written consent of the Distributor, no
Indemnified Party shall confess any Claim or make any compromise in any case in
which the Distributor is or will be asked to indemnify such Indemnified Party.
(e) The Distributor agrees promptly to notify the Trust of the
commencement of any litigation or proceeding against it in connection with the
issuance and sale of any of the Shares.
-4-
<PAGE> 5
(f) Neither the Distributor nor any Agent nor any other person is
authorized to give any information or to make any representation on behalf of
the Trust in connection with the sale of Shares, other than those contained in
the Trust's Registration Statement or Prospectus or Statement of Additional
Information relating to the respective Fund.
6. EXPENSES
(a) The Trust will pay, by causing the appropriate Fund(s) to pay:
(i) all costs and expenses of the Trust and of the Funds,
including fees and disbursements of the Trust's counsel, in connection
with the preparation and filing of the Registration Statement,
Prospectuses and Statements of Additional Information, and preparing
and mailing to existing shareholders Prospectuses, Statements of
Additional Information and, with respect to Shares, statements of
confirmation and periodic reports (including the entire expense of
setting in type the Registration Statements, Prospectuses and
Statements of Additional Information or any periodic report with
respect to Shares);
(ii) the cost of preparing temporary or permanent certificates
for Shares;
(iii) the cost and expenses of delivering to the Distributor at
its office in Cincinnati, Ohio all Shares purchased through it as
agent hereunder;
(iv) subject to the Distribution Plan, a distribution fee to the
Distributor not to exceed the percentage, as indicated on Schedule 1
hereto, of the respective Fund's average daily net assets for its
then-current fiscal year;
(v) all fees and disbursements of any transfer agent and
custodian of a Fund;
(vi) all fees of each shareholder servicing agent to a Fund, if
any;
(vii) all fees of any administrator or fund accounting agent of a
Fund;
(viii) all fees of the investment advisor, if any, of a Fund; and
(ix) such other costs and expenses as shall be determined, by
agreement of the parties, to properly be chargeable to and borne by
the Trust.
(b) The Distributor, with respect to the sale of Shares, but subject
to the Trust's obligations under clause (iv) of subsection (a) above, will (i)
after the Prospectus and Statement of Additional Information and periodic
reports with respect to each Fund have been
-5-
<PAGE> 6
set in type, bear the expense (other than the cost of printing and mailing to
existing shareholders of such Fund) of printing and distributing any copies
thereof ordered by it which are to be used in connection with the offering or
sale of Shares to any Agent or prospective investor, (ii) bear the expenses of
preparing, printing and distributing any other literature used by the
Distributor or furnished by it for use by any Agent in connection with the
offering of Shares for sale to the public and any expense of sending
confirmations and statements to any Agent and (iii) bear the cost of any
compensation paid to Agents in connection with the sale of Shares.
7. COMPENSATION. As compensation to the Distributor for assuming the
expenses and performing the distribution services to be assumed and performed by
it pursuant to this Agreement, the Distributor will receive from the Trust such
amounts and at such times as are set forth in Schedule A to this Agreement (as
the same may from time to time be amended by agreement between the parties
hereto).
8. AMENDMENTS. If, at any time during the term of this Agreement, the
Trust shall deem it necessary or advisable in the best interests of any Fund
that any amendment of this Agreement be made in order to comply with any
recommendation or requirement of the Securities and Exchange Commission (the
"SEC") or other governmental authority or to obtain any advantage under Ohio,
Massachusetts or other applicable state law or under the federal tax laws, it
shall notify the Distributor of the form of amendment which it deems necessary
or advisable and the reasons therefor. If the Distributor declines to assent to
such amendment (after a reasonable time), the Trust may terminate this Agreement
forthwith by written notice to the Distributor without payment of any penalty.
If, at any time during the term of this Agreement, the Distributor requests the
Trust to make any change in the Governing Instruments or in its methods of doing
business which are necessary in order to comply with any requirement of federal
law or regulations of the SEC or of a national securities association of which
the Distributor is or may become a member, relating to the sale of Shares, the
Distributor may terminate this Agreement forthwith by written notice to the
Trust without payment of any penalty.
9. OWNERSHIP OF SHARES. The Distributor agrees that it will not take
any long or short position in the Shares and that, so far as it can control the
situation, it will prevent any of its Directors or officers from taking any long
or short positions in the Shares, except as permitted by the Governing
Instruments.
10. TERMINATION. This Agreement shall become effective upon its
execution and shall continue in force indefinitely, PROVIDED that such
continuance is "specifically approved at least annually" by the vote of a
majority of the Trustees of the Trust who are not "interested persons" of the
Trust or of the Distributor at a meeting specifically called for the purpose of
voting on such approval, and by the Board of Trustees of the Trust. The
aforesaid requirement that continuance of this Agreement be "specifically
approved at least annually" shall be construed in a manner consistent with the
1940 Act. If such annual approval is not
-6-
<PAGE> 7
obtained, this Agreement shall terminate on the date which is 15 months after
the date of the last approval.
This Agreement may be terminated as to any Fund at any time by (i) the
Trust, (a) by the vote of a majority of the Trustees of the Trust who are not
"interested persons" of the Trust or the Distributor, (b) by the vote of the
Board of Trustees of the Trust, or (c) by the "vote of a majority of the
outstanding voting securities" of the Fund, or (ii) by the Distributor, in any
case without payment of any penalty on not more than 60 days' nor less than 30
days' written notice to the other party.
This Agreement shall automatically terminate in the event of its
assignment.
11. DEFINITIONS. The terms "vote of a majority of the outstanding
voting securities", "interested persons", "assignment" and "specifically
approved at least annually" shall have the respective meanings specified in, and
shall be construed in a manner consistent with, the 1940 Act, SUBJECT, HOWEVER,
to such exemptions as may be granted by the SEC thereunder.
12. MISCELLANEOUS.
(a) If any provision of this Agreement becomes or is found to be
invalid by any court having jurisdiction or by any statute, rule or
regulation, the remainder of this Agreement shall not be affected
thereby.
(b) Any notices under this Agreement shall be in writing
addressed and delivered personally (or by telecopy) or mailed
postage-paid, to the other party at such address as such other party
may designate in accordance with this paragraph for the receipt of
such notice. Until further notice to the other party given in
accordance with this paragraph, it is agreed that the address of the
Trust and of the Distributor for this purpose shall be 318 Broadway,
Cincinnati, Ohio 45202.
(c) Each party will perform such further actions and execute such
further documents as are necessary to effectuate the purposes hereof.
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Ohio. The captions in the
Agreement are included for convenience only and in no way define or
delimit any of the provisions hereof or otherwise affect their
construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names on their behalf by the undersigned,
thereunto duly authorized as of the day and year first above written. The
Distributor acknowledges that, under the Trust's Declaration of Trust, the
obligations of this Agreement are not binding upon any of the Trustees or
shareholders of a Fund individually, but bind only the Trust estate.
-7-
<PAGE> 8
SELECT ADVISORS TRUST C
By: /s/ Edward G. Harness, Jr.
--------------------------
Edward G. Harness, Jr.
President
TOUCHSTONE SECURITIES, INC.
By: /s/ Jill T. McGruder
---------------------
Jill T. McGruder
-8-
<PAGE> 9
SCHEDULE A TO DISTRIBUTION AGREEMENT
FOR SELECT ADVISORS TRUST C
As compensation for assuming the expenses and performing the distribution
services enumerated in the Distribution Agreement each Fund (other than the
Standby Income Fund) will pay a distribution fee to the Distributor at an annual
rate of up to 0.75% of the Fund's average daily net assets. In addition, each
Fund (other than the Standby Income Fund) will pay a service fee to the
Distributor at the annual rate of 0.25% of the average daily net assets of the
Fund.
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<PAGE> 1
Exhibit (8)
CUSTODIAN AGREEMENT
BETWEEN
SELECT ADVISORS TRUST II
AND
INVESTORS BANK & TRUST COMPANY
<PAGE> 2
TABLE OF CONTENTS
Page
----
1. Bank Appointed Custodian.......................................... 1
2. Definitions....................................................... 1
2.1 Authorized Person........................................... 1
2.2 Security.................................................... 1
2.3 Portfolio Security.......................................... 2
2.4 Officers' Certificate....................................... 2
2.5 Book Entry System........................................... 2
2.6 Depository.................................................. 2
2.7 Proper Instructions......................................... 2
3. Separate Accounts................................................. 3
4. Certification as to Authorized Persons............................ 3
5. Custody of Cash................................................... 3
5.1 Purchase of Securities...................................... 4
5.2 Redemptions................................................. 4
5.3 Distributions and Expenses of Each Portfolio................ 4
5.4 Payment in Respect of Securities............................ 5
5.5 Repayment of Loans.......................................... 5
5.6 Repayment of Cash........................................... 5
5.7 Foreign Exchange Transactions............................... 5
5.8 Other Authorized Payments................................... 5
5.9 Termination................................................. 6
6. Securities........................................................ 6
6.1 Segregation and Registration................................ 6
6.2 Voting and Proxies.......................................... 6
6.3 Book-Entry System........................................... 7
6.4 Use of a Depository......................................... 8
6.5 Use of a Book-Entry System for Commercial Paper.............10
6.6 Use of Immobilization Programs..............................11
6.7 Eurodollar CDs..............................................11
6.8 Options and Futures Transactions............................11
<PAGE> 3
(a) Puts and Calls Traded on Securities
Exchanges, NASDAQ or Over-the-Counter.................11
(b) Puts, Calls and Futures Traded on
Commodities Exchanges.................................12
6.9 Segregated Account..........................................13
6.10 Interest Bearing Call or Time Deposits......................14
6.11 Transfer of Securities......................................15
7. Redemptions.......................................................17
8. Merger, Dissolution, etc. of a Portfolio..........................17
9. Actions of Bank Without Prior Authorization.......................18
10. Collection; Defaults..............................................19
11. Maintenance of Records............................................19
12. Portfolio Evaluation..............................................20
13. Concerning the Bank...............................................20
13.1 Performance of Duties; Standard of Care.....................20
13.2 Agents and Subcustodians....................................22
13.3 Insurance...................................................22
13.4 Fees and Expenses of Bank...................................22
13.5 Advances by Bank............................................23
14. Termination.......................................................23
15. Confidentiality...................................................24
16. Notices...........................................................25
17. Amendments........................................................25
18. Parties...........................................................25
19. Governing Law.....................................................25
20. Limitations of Liability..........................................25
21. Counterparts......................................................25
<PAGE> 4
CUSTODIAN AGREEMENT
AGREEMENT made as of this 22nd day of August, 1994, between Select
Advisors Trust II, a Massachusetts business trust (the "Trust"), acting for and
on behalf of each of the separate series of the Trust currently existing or
existing in the future and the portfolio of cash, securities, and other assets
held by each such series (each a "Portfolio" or, together, the "Portfolios"),
and INVESTORS BANK & TRUST COMPANY, (the "Bank").
The Trust, each of whose Portfolios is an open-end management investment
company, desires to place and maintain the securities and cash of each of the
Portfolios in the custody of the Bank. The Bank has at least the minimum
qualifications required by Section 17(f)(1) of the Investment Company Act of
1940 (the "Act") to act as custodian of the securities and cash of the
Portfolios, and has indicated its willingness to so act, subject to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. BANK APPOINTED CUSTODIAN. The Trust hereby appoints the Bank as
custodian of its portfolio securities and cash delivered to the Bank as
hereinafter described and the Bank agrees to act as such upon the terms and
conditions hereinafter set forth.
2. DEFINITIONS. Whenever used herein, the terms listed below will
have the following meaning:
2.1 AUTHORIZED PERSON. Authorized Person will mean any of the
persons duly authorized to give Proper Instructions or otherwise act on
behalf of the Trust or any of its Portfolios by appropriate resolution of
its Board of Trustees (the "Board"), and set forth in a certificate as
required by Section 4 hereof, subject in any case to such limitations on
the authority of any such person as are set forth in the Officers'
Certificate.
2.2 SECURITY. The term security as used herein will have the same
meaning as when such term is used in the Securities Act of 1933 as amended,
including, without limitation, any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in any profit sharing agreement, collateral-trust
certificate, preorganization certificate of subscription, transferable
share, investment contract, voting-trust certificate, certificate of
deposit for a security, fractional undivided interest in oil, gas, or other
mineral rights, any put, call, straddle, option, or privilege on any
security, certificate of deposit, or group or index of securities
(including any interest therein or based on the value thereof), or any put,
call, straddle, option, or privilege entered into on a national securities
exchange relating to a foreign currency, or, in general, any interest or
instrument commonly known as a "security", or any certificate of interest
or participation in, temporary or interim certificate for, receipt for,
guarantee of,
<PAGE> 5
or warrant or right to subscribe to, or option contract to purchase or
sell any of the foregoing and futures, forward contracts and options
thereon.
2.3 PORTFOLIO SECURITY. Portfolio Security will mean any Security
owned by a Portfolio.
2.4 OFFICERS' CERTIFICATE. Officers' Certificate will mean,
unless otherwise indicated, any request, direction, instruction, or
certification in writing signed by any two Authorized Persons of the Trust.
2.5 BOOK-ENTRY SYSTEM. Book-Entry System shall mean the Federal
Reserve-Treasury Department Book Entry System for United States government,
instrumentality and agency securities operated by the Federal Reserve Bank,
its successor or successors and its nominee or nominees.
2.6 DEPOSITORY. Depository shall mean The Depository Trust
Company ("DTC"), a clearing agency registered with the Securities and
Exchange Commission under Section 17A of the Securities Exchange Act of
1934, its successor or successors and its nominee or nominees. The term
"Depository" shall further mean and include any other person authorized to
act as a depository under the Act, its successor or successors and its
nominee or nominees, specifically identified in a certified copy of a
resolution of the Board.
2.7 PROPER INSTRUCTIONS. Proper Instructions shall mean (i)
instructions (which may be continuing instructions) regarding the purchase
or sale of Portfolio Securities, and payments and deliveries in connection
therewith, given by an Authorized Person, such instructions to be given in
such form and manner as the Bank and the Trust shall agree upon from time
to time, (ii) instructions (which may be continuing instructions) regarding
other matters signed or initialed by such one or more Authorized Persons
and (iii) instructions contained in an Officers' Certificate. Oral
instructions will be considered Proper Instructions if the Bank reasonably
believes them to have been given by an Authorized Person who has been
granted authority with respect to the transaction involved. The Trust shall
cause all oral instructions to be promptly confirmed in writing. The Bank
shall act upon and comply with any subsequent Proper Instruction which
modifies a prior instruction, and the sole obligation of the Bank with
respect to any follow-up or confirmatory instruction shall be to make
reasonable efforts to detect any discrepancy between the original
instruction and such confirmation and to report such discrepancy to the
Trust. The Trust shall be responsible, at the Trust's expense, for taking
any action, including any reprocessing, necessary to correct any such
discrepancy or error, and to the extent such action requires the Bank to
act the Trust shall give the Bank specific Proper Instructions as to the
action required. Upon receipt of an Officers' Certificate as to the
authorization by the Board, accompanied by a detailed description of
procedures approved by the Trust, Proper Instructions may include
communication effected directly between electro-mechanical or electronic
devices provided that the
2
<PAGE> 6
Board and the Bank are satisfied that such procedures afford adequate
safeguards for the Trust's assets.
3. SEPARATE ACCOUNTS. Because the Trust has more than one Portfolio, the
Bank will segregate the assets of each Portfolio to which this Agreement relates
into a separate account for each such Portfolio containing the assets of such
Portfolio (and all investment earnings thereon).
4. CERTIFICATE AS TO AUTHORIZED PERSONS. The Secretary or Assistant
Secretary of the Trust will at all times maintain on file with the Bank his
certification to the Bank, in such form as may be acceptable to the Bank, of (i)
the names and signatures of the Authorized Persons and (ii) the names of the
members of the Board, it being understood that upon the occurrence of any change
in the information set forth in the most recent certification on file (including
without limitation any person named in the most recent certification who is no
longer an Authorized Person as designated therein), the Secretary or Assistant
Secretary of the Trust will sign a new or amended certification setting forth
the change and the new, additional or omitted names or signatures. The Bank will
be entitled to rely and act upon an Officers' Certificate given to it by the
Trust which has been signed by Authorized Persons named in the most recent
certification.
5. CUSTODY OF CASH. As custodian for the Trust, the Bank will open and
maintain a separate account or accounts in the name of the Trust or in the name
of the Bank, as Custodian of each of the Portfolios of the Trust, and will
deposit to the account of each Portfolio all of the cash of the Portfolio,
except for cash held by a subcustodian appointed pursuant to Section 13.2
hereof, including borrowed funds, delivered to the Bank, subject only to draft
or order by the Bank acting pursuant to the terms of this Agreement. Upon
receipt by the Bank of Proper Instructions (which may be continuing
instructions) or in the case of payments for redemptions and repurchases of
outstanding interests of each Portfolio of the Trust, notification from the
Trust's transfer agent as provided in Section 7, which in either case requests
such payment, designates the payee or the account or accounts to which the Bank
will release funds for deposit, and states that it is for a purpose permitted
under the terms of this Section 5, specifying the applicable subsection, or
describing such purpose with sufficient particularity to permit the Bank to
ascertain the applicable subsection, the Bank will make payments of cash held
for the accounts of the Trust, insofar as funds are available for that purpose,
in the following circumstances:
5.1 PURCHASE OF SECURITIES: upon the purchase of securities for any
Portfolio of the Trust, against contemporaneous receipt of such securities
by the Bank or against delivery of such securities to the Bank in
accordance with generally accepted settlement practices and customs in the
jurisdiction or market in which the transaction occurs, registered in the
name of the Portfolio or in the name of, or properly endorsed and in form
for transfer to, the Bank, or a nominee of the Bank, or receipt for the
account of the Bank pursuant to the provisions of Section 6 below, each
payment to be made at the purchase price shown on a broker's confirmation
(or transaction report in the case of Book Entry Paper) of
3
<PAGE> 7
purchase of the securities received by the Bank before such payment is
made, as confirmed in the Proper Instructions received by the Bank before
such payment is made;
5.2 REDEMPTIONS: in such amount as may be necessary for the repurchase
or redemption of interests of any Portfolio of the Trust offered for
repurchase or redemption in accordance with Section 7 of this Agreement;
5.3 DISTRIBUTIONS AND EXPENSES OF EACH PORTFOLIO: for the payment on the
account of any Portfolio of the Trust of dividends or other distributions
to shareholders as may from time to time be declared by the Board, of
interest, taxes, management or supervisory fees, distribution fees, fees of
the Bank for its services hereunder and reimbursement of the expenses and
liabilities of the Bank as provided hereunder, of fees of any transfer
agent, fees for legal, accounting, and auditing services, or other
operating expenses of any Portfolio of the Trust;
5.4 PAYMENT IN RESPECT OF SECURITIES: for payments in connection with
the conversion, exchange or surrender of Portfolio Securities or securities
subscribed to by any Portfolio of the Trust held by or to be delivered to
the Bank;
5.5 REPAYMENT OF LOANS: to repay loans of money made to any Portfolio of
the Trust, but, in the case of final payment, only upon redelivery to the
Bank of any Portfolio Securities pledged or hypothecated therefor and upon
surrender of documents evidencing the loan;
5.6 REPAYMENT OF CASH: to repay the cash delivered to any Portfolio of
the Trust for the purpose of collateralizing the obligation to return to
the Portfolio certificates borrowed from the Portfolio representing
Portfolio Securities, but only upon redelivery to the Bank of such borrowed
certificates;
5.7 FOREIGN EXCHANGE TRANSACTIONS: for payments in connection with
foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery which may be entered into by the
Bank on behalf of any Portfolio of the Trust upon the receipt of Proper
Instructions, such Proper Instructions to specify the currency broker or
banking institution (which may be the Bank, or any other subcustodian or
agent hereunder, acting as principal) with which the contract or option is
made, and the Bank shall have no duty with respect to the selection of such
currency brokers or banking institutions with which the Portfolio deals or
for their failure to comply with the terms of any contract or option;
5.8 OTHER AUTHORIZED PAYMENTS: for other authorized transactions of any
Portfolio of the Trust, or other obligations thereof, incurred for proper
Portfolio purposes; provided that before making any such payment the Bank
will also receive a certified copy of a resolution of the Board signed by
an Authorized Person (other than the Person certifying such resolution) and
certified by its Secretary or Assistant Secretary, naming the person or
persons to whom such payment is to be made, and either describing the
transaction for
4
<PAGE> 8
which payment is to be made and declaring it to be an authorized
transaction of the Portfolio, or specifying the amount of the obligation
for which payment is to be made, setting forth the purpose for which such
obligation was incurred and declaring such purpose to be a proper corporate
purpose; and
5.9 TERMINATION: upon the termination of this Agreement as hereinafter
set forth pursuant to Section 8 and Section 14 of this Agreement.
6. SECURITIES
6.1 SEGREGATION AND REGISTRATION. Except as otherwise provided herein,
and except for securities to be delivered to any subcustodian appointed
pursuant to Section 13.2 hereof, the Bank as custodian, will receive and
hold pursuant to the provisions hereof, in a separate account of accounts
and physically segregated at all times from those of other persons, any and
all Portfolio Securities which may now or hereafter be delivered to it by
or for the account of any Portfolio of the Trust. All such Portfolio
Securities will be held of disposed of by the Bank for, and subject at all
times to, the instructions of the Portfolio pursuant to the terms of this
Agreement. Subject to the specific provisions herein relating to Portfolio
Securities that are not physically held by the Bank, the Bank will register
all Portfolio Securities (unless otherwise directed by Proper Instructions
or an Officers' Certificate), in the name of a registered nominee of the
Bank as defined in the Internal Revenue Code and any Regulations of the
Treasury Department issued thereunder, and will execute and deliver all
such certificates in connection therewith as may be required by such laws
or regulations or under the laws of any State. The Bank will use its best
efforts to the end that the specific Portfolio Securities held by it
hereunder will be at all times identifiable.
The Trust will from time to time furnish to the Bank appropriate
instruments to enable it to hold or deliver in proper form for transfer, or
to register in the name of its registered nominee, any Portfolio Securities
which may from time to time be registered in the name of any Portfolio of
the Trust.
6.2 VOTING AND PROXIES. Neither the Bank nor any nominee of the Bank
will vote any of the Portfolio Securities held hereunder, except in
accordance with Proper Instructions. The Bank will promptly execute and
deliver, or cause to be executed and delivered, to the Trust all notices,
proxies and proxy soliciting materials with respect to such Securities,
such proxies to be executed by the registered holder of such Securities,
(if registered otherwise than in the name of a Portfolio of the Trust), but
without indicating the manner in which such proxies are to be voted.
6.3 BOOK-ENTRY SYSTEM. Provided (i) the Bank has received a certified
copy of a resolution of the Board specifically approving deposits of any
Portfolio of the Trust's assets in the Book-Entry System, and (ii) for each
year following such approval, the Board has reviewed and approved the
arrangement and has not delivered an Officer's Certificate to the Bank
indicating that the Board has withdrawn its approval.
5
<PAGE> 9
(a) The Bank may keep Portfolio Securities in the Book-Entry
System provided that such Portfolio Securities are represented in an
account ("Account") of the Bank (or its agent) in such System which
shall not include any assets of the Bank (or such agent) other than
assets held as a fiduciary, custodian, or otherwise for customers.
(b) The records of the Bank (and any such agent) with respect to
any Portfolio of the Trust's participation in the Book-Entry System
through the Bank (or any such agent) will identify by book entry
Portfolio Securities which are included with other securities deposited
in the Account and shall at all times during the regular business hours
of the Bank (or such agent) be open for inspection by duly authorized
officers, employees or agents of the Trust. Where securities are
transferred to any Portfolio of the Trust's account, the Bank shall
also, by book entry or otherwise, identify as belonging to the
Portfolio a quantity of securities in fungible bulk of securities (i)
registered in the name of the Bank or its nominee, or (ii) shown on the
Bank's account on the books of the Federal Reserve Bank.
(c) The Bank (or its agent) shall pay for Portfolio Securities
purchased for the account of any Portfolio of the Trust or shall pay
cash collateral against the return of securities loaned by any
Portfolio of the Trust upon (i) receipt of advice from the Book-Entry
System that such Securities have been transferred to the Account, and
(ii) the making of an entry on the records of the Bank (or its agent)
to reflect such payment and transfer for the account of the Portfolio.
The Bank (or its agent) shall transfer securities sold or loaned for
the account of any Portfolio of the Trust upon
(i) receipt of advice from the Book-Entry System that payment
for securities sold or payment of the initial cash collateral
against the delivery of securities loaned by the Portfolio has
been transferred to the Account, and
(ii) the making of an entry on the records of the Bank (or its
agent) to reflect such transfer and payment for the account of the
Portfolio. Copies of all advices from the Book-Entry System of
transfers of Securities for the account of any Portfolio shall
identify the Portfolio, be maintained for the Portfolio by the
Bank and shall be provided to the Portfolio at its request. The
Bank shall send the Portfolio a confirmation, as defined by Rule
17f-4 under the Act, of any transfers to or from the account of
the Portfolio;
(d) The Bank will promptly provide the Portfolio with any report
obtained by the Bank or its agent on the Book-Entry system's accounting
system, internal accounting control and procedures for safeguarding
securities deposited in the Book-Entry System; and
(e) The Bank shall be liable to the Portfolio for any loss or
damage to the Portfolio resulting from use of the Book-Entry System by
reason of any gross
6
<PAGE> 10
negligence, willful misfeasance or bad faith of the Bank or any of its
agents or of any of its or their employees or from any reckless
disregard by the Bank or any such agent of its duty to use its best
efforts to enforce such rights as it may have against the Book-Entry
System; at the election of the Trust on behalf of the Portfolio, it
shall be entitled to be subrogated to the Bank in any claim against the
Book-Entry System or any other person which the Bank or its agent may
have as a consequence of any such loss or damage if and to the extent
that the Portfolio has not been made whole for any loss or damage.
6.4 USE OF A DEPOSITORY. Provided (i) the Bank has received a
certified copy of a resolution of the Board specifically approving deposits
in DTC or other such Depository and (ii) for each year following such
approval, the Board has reviewed and approved the arrangement and has not
delivered an Officer's Certificate to the Bank indicating that the Board
has withdrawn its approval:
(a) The Bank may use a Depository to hold, receive, exchange,
release, lend, deliver and otherwise deal with the Portfolio Securities
including stock dividends, rights and other items of like nature, and
to receive and remit to the Bank on behalf of any Portfolio of the
Trust all income and other payments thereon and to take all steps
necessary and proper in connection with the collection thereof;
(b) Registration of the Portfolio Securities may be made in the
name of any nominee or nominees used by such Depository;
(c) Payment for securities purchased and sold may be made through
the clearing medium employed by such Depository for transactions of
participants acting through it. Upon any purchase of Portfolio
Securities, payment will be made only upon delivery of the securities
to or for the account of the Portfolio and the Portfolio shall pay cash
collateral against the return of Securities loaned by the Portfolio
only upon delivery of the Portfolio Securities to or for the account of
the Portfolio; and upon any sale of Portfolio Securities, delivery of
the Portfolio Securities will be made only against payment therefor or,
in the event Securities are loaned, delivery of Securities will be made
only against receipt of the initial cash collateral to or for the
account of the Portfolio; and
(d) The Bank shall be liable to any Portfolio of the Trust for
any loss or damage to the Portfolio resulting from use of a Depository
by reason of any gross negligence, willful misfeasance or bad faith of
the Bank or its employees or from any reckless disregard by the Bank of
its duty to use its best efforts to enforce such rights as it may have
against a Depository. In this connection, the Bank shall use its best
efforts to ensure that:
(i) the Depository obtains replacement of any certificated
Portfolio Security deposited with it in the event such Security is
lost, destroyed,
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wrongfully taken or otherwise not available to be returned to the
Bank upon its request.
(ii) any proxy materials received by a Depository with respect
to Portfolio Securities deposited with such Depository are
forwarded immediately to the Bank for prompt transmittal to the
affected Portfolio;
(iii) such Depository immediately forwards to the Bank
confirmation of any purchase or sale of Portfolio Securities and
of the appropriate book entry made by such Depository to the
affected Portfolio's account;
(iv) such Depository prepares and delivers to performance of the
Bank's obligations and duties hereunder as may be necessary for
the Portfolio to comply with the record keeping requirements of
Section 31(a) of the Act and Rule 31a-1 thereunder; and
(v) such Depository delivers to the Bank and the Portfolio all
internal accounting control reports, whether or not audited by an
independent public accountant, as well as such other reports as
the Portfolio may reasonably request in order to verify the
Portfolio Securities held by such Depository.
6.5 USE OF BOOK-ENTRY SYSTEM FOR COMMERCIAL PAPER. Provided (i)
the Bank has received a certified copy of a resolution of the Board
specifically approving participation in a system maintained by the Bank for
the holding of commercial paper in book-entry form ("Book Entry Paper") and
(ii) for each year following such approval the Board has received and
approved the arrangements, upon receipt of Proper Instructions and upon
receipt of confirmation from an Issuer (as defined below) that any
Portfolio of the Trust has purchased such Issuer's Book Entry paper, the
Bank shall issue and hold in book-entry form, on behalf of the Portfolio,
commercial paper issued by issuers with whom the Bank has entered into a
book-entry agreement (the "Issuers"). In maintaining its Book Entry Paper
System, the Bank agrees that:
(a) the Bank will maintain all Book Entry Paper held by any
Portfolio of the Trust in an account of the Bank that includes only
assets held by it for customers;
(b) the records of the Bank with respect to any Portfolio of the
Trust's purchase of Book Entry Paper through the Bank will identify, by
book entry, Commercial Paper belonging to the Portfolio which is
included in the Book Entry Paper System and shall at all times during
the regular business hours of the Bank be open for inspection by duly
authorized officers, employees or agents of the Trust;
(c) the Bank shall pay for Book Entry Paper purchased for the
account of any Portfolio of the Trust upon contemporaneous (i) receipt
of advice from the Issuer that such sale of Book Entry Paper has been
effected, and (ii) the making of an entry
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on the records of the Bank to reflect such payment and transfer for the
account of such Portfolio;
(d) The Bank shall cancel such Book Entry Paper obligation upon
the maturity thereof upon contemporaneous (i) receipt of advice that
payment for such Book Entry Paper has been transferred to the
Portfolio, and (ii) the making of an entry on the records of the Bank
to reflect such payment for the account of the Portfolio;
(e) the Bank shall transmit to the Trust a transaction journal
confirming each transaction in Book Entry Paper for the account of any
Portfolio of the Trust on the next business day following the
transactions; and
(f) the Bank will send to the Trust such reports on its system of
internal accounting control with respect to the Book Entry Paper System
as the Trust may reasonably request from time to time.
6.6 USE OF IMMOBILIZATION PROGRAMS. Provided (i) the Bank has
received a certified copy of a resolution of the Board specifically
approving the maintenance of Portfolio Securities in an immobilization
program operated by a bank which meets the requirements of Section 26(a)(1)
of the Act, and (ii) for each year following such approval the Board has
reviewed and approved the arrangement and has not delivered an Officer's
Certificate to the Bank indicating that the Board has withdrawn its
approval, the Bank shall enter into such immobilization program with such
bank acting as a subcustodian hereunder.
6.7 EURODOLLAR CDS. Any Portfolio Securities which are Eurodollar
CDs may be physically held by the European branch of the U.S. banking
institution that is the issuer of such Eurodollar CD (a "European Branch"),
provided that such Securities are identified on the books of the Bank as
belonging to a Portfolio of the Trust and that the books of the Bank
identify the European Branch holding such securities. Notwithstanding any
other provision of this Agreement to the contrary, except as stated in the
first sentence of this subsection 6.7, the Bank shall be under no other
duty with respect to such Eurodollar CDs belonging to the Portfolio, and
shall have no liability to the Portfolio or its shareholders with respect
to the actions, inactions, whether negligent or otherwise of such European
Branch in connection with such Eurodollar CDs, except for any loss of
damage to the Portfolio resulting from the Bank's own gross negligence,
willful misfeasance or bad faith in the performance of its duties
hereunder.
6.8 OPTIONS AND FUTURES TRANSACTIONS.
(a) PUTS AND CALLS TRADED ON SECURITIES EXCHANGES, NASDAQ OR
OVER-THE-COUNTER.
1. The Bank shall take action as to put options ("puts") and call
options ("calls") purchased or sold (written) by any Portfolio of the
Trust regarding escrow
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or other arrangements (i) in accordance with the provisions of any
agreement entered into upon receipt of Proper Instructions between the
Bank, any broker-dealer registered under the Securities Exchange Act of
1934 and a member of the National Association of Securities Dealers,
Inc. (the "NASD"), and, if necessary, any Portfolio of the Trust
relating to the compliance with the rules of the Options Clearing
Corporation and of any registered national securities exchange, or of
any similar organization or organizations.
2. Unless another agreement requires it to do so, the Bank shall
be under no duty or obligation to see that any Portfolio of the Trust
has deposited or is maintaining adequate margin, if required, with any
broker in connection with any option, nor shall the Bank be under duty
or obligation to present such option to the broker for exercise unless
it receives Proper Instructions from the Portfolio. The Bank shall have
no responsibility for the legality of any put or call purchased or sold
on behalf of any Portfolio of the Trust, the propriety of any such
purchase or sale, or the adequacy of any collateral delivered to a
broker in connection with an option or deposited to or withdrawn from a
Segregated Account (as defined in subsection 6.9 below). The Bank
specifically, but not by way of limitation, shall not be under any duty
or obligation to: (i) periodically check or notify the Portfolio that
the amount of such collateral held by a broker or held in a Segregated
Account is sufficient to protect such broker of the Portfolio against
any loss; (ii) effect the return of any collateral delivered to a
broker; or (iii) advise the Portfolio that any option it holds, has or
is about to expire. Such duties or obligations shall be the sole
responsibility of the Portfolio.
(b) PUTS, CALLS AND FUTURES TRADED ON COMMODITIES EXCHANGES.
1. The Bank shall take action as to puts, calls and futures
contracts ("Futures") purchased or sold by any Portfolio of the Trust
in accordance with the provisions of any agreement among the Portfolio,
the Bank and a Futures Commission Merchant registered under the
Commodity Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading Commission and/or any Contract Market, or any
similar organization or organizations, regarding account deposits in
connection with transactions by the Portfolio.
2. The responsibilities and liabilities of the Bank as to
Futures, puts and calls traded on commodities exchanges, any Futures
Commission Merchant account and the Segregated Account shall be limited
as set forth in subparagraph (a)(2) of this Section 6.8 as if such
subparagraph referred to Futures Commission Merchants rather than
brokers, and Futures and puts and calls thereon instead of options.
6.9 SEGREGATED ACCOUNT. The Bank shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts for
and on behalf of any Portfolio of the Trust, into which account(s) (a
"Segregated Account" or, collectively,
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"Segregated Accounts"), upon receipt of Proper Instructions, cash and/or
Portfolio Securities may be transferred:
(a) in accordance with the provisions of any agreement among any
Portfolio of the Trust, the Bank and a broker-dealer registered under
the Exchange Act and a member of the NASD or any Futures Commission
Merchant registered under the Commodity Exchange Act, relating to
compliance with the rules of the Options Clearing Corporation and of
any registered national securities exchange or the Commodity Futures
Trading Commission or any registered Contract Market, or of any similar
organization or organizations regarding escrow or other arrangements in
connection with transactions by a Portfolio;
(b) for the purpose of segregating cash or securities in
connection with options purchased, or written by any Portfolio of the
Trust or commodity futures purchased or written by any Portfolio of the
Trust;
(c) for the deposit of liquid assets, such as cash, U.S.
Government securities or other high grade debt obligations, having a
market value (marked to the market on a daily basis) at all times equal
to not less than the aggregate purchase price due on the settlement
dates of all of any Portfolio of the Trust's then outstanding forward
commitment or "when-issued" agreements relating to the purchase of
Portfolio Securities and all the Portfolio's then outstanding
commitments under reverse repurchase agreements entered into with
broker-dealer firms;
(d) for the deposit of any Portfolio Securities which any
Portfolio of the Trust has agreed to sell on a forward commitment
basis, all in accordance with Investment Company Act Release No. 10666;
(e) for the purposes of compliance by the Trust and each
Portfolio with the procedures required by Investment Company Act
Release No. 10666, or any subsequent release or releases of the
Securities and Exchange Commission relating to the maintenance of
Segregated Accounts by registered investment companies; or
(f) for other proper corporate purposes, BUT ONLY, in the case of
this clause (f), upon receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board, or of the Executive
Committee signed by an officer of the Trust and certified by the
Secretary of an Assistant Secretary, setting forth the purpose or
purposes of such Segregated Account and declaring such purposes to be
proper corporate purposes.
Assets may be withdrawn from the Segregated Account pursuant to
Proper Instructions only:
(i) in accordance with the provisions of any agreements
referenced in (a) or (b) above;
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(ii) for sale or delivery to meet any Portfolio of the
Trust's obligations under outstanding firm commitment or
when-issued agreements for the purchase of Portfolio Securities
and under reverse repurchase agreements;
(iii) for exchange for other liquid assets of equal or
greater value deposited in the Segregated Account;
(iv) to the extent that any Portfolio of the Trust's
outstanding forward commitment or when-issued agreements for the
purchase of portfolio securities or reverse repurchase agreements
are sold to other parties or the Portfolio's obligations
thereunder are met from assets of the Portfolio other than those
in the Segregated Account; or
(v) for delivery upon settlement of a forward commitment
agreement for the sale of Portfolio Securities.
6.10 INTEREST BEARING CALL OR TIME DEPOSITS. The Bank shall, upon
receipt of Proper Instructions relating to the purchase by any Portfolio of
the Trust of interest bearing fixed term and call deposits, transfer cash,
by wire or otherwise, in such amounts and to such bank or banks as shall be
indicated in such Proper Instructions. The Bank shall include in its
records with respect to the assets of the affected Portfolio appropriate
notation as to the amount of each such deposit, the banking institution
with which such deposit is made (the "Deposit Bank"), and shall retain such
forms of advice or receipt evidencing the deposit, if any, as may be
forwarded to the Bank by the Deposit bank. Such deposits shall be deemed
Portfolio Securities of the Portfolio and the responsibility of the Bank
therefore shall be the same as and no greater than the Bank's
responsibility in respect of other Portfolio Securities of the Portfolio.
6.11 TRANSFER OF SECURITIES. The Bank will transfer, exchange,
deliver or release Portfolio Securities held by it hereunder, insofar as
such Securities are available for such purpose, provided that before making
any transfer, exchange, delivery or release under this Section the Bank
will receive Proper Instructions requesting such transfer, exchange or
delivery stating that it is for a purpose permitted under the terms of this
Section 6.11, specifying the applicable subsection, or describing the
purpose of the transaction with sufficient particularity to permit the Bank
to ascertain the applicable subsection, only:
(a) upon sales of Portfolio Securities for the account of the any
Portfolio of the Trust, against contemporaneous receipt by the Bank of
payment therefor in full or against payment to the Bank in accordance
with generally accepted settlement practices and customs in the
jurisdiction or market in which the transaction occurs, each such
payment to be in the amount of the sale price shown in a broker's
confirmation of sale of the Portfolio Securities received by the Bank
before such transfer is made, as confirmed in the Proper Instructions
received by the Bank before such transfer is made;
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(b) in exchange for or upon conversion into other securities
alone or other securities and cash pursuant to any plan or merger,
consolidation, reorganization, share split-up, change in par value,
recapitalization or readjustment or otherwise, upon exercise of
subscription, purchase or sale or other similar rights represented by
such Portfolio Securities, or for the purpose of tendering shares in
the event of a tender offer therefor, provided however that in the
event of an offer of exchange, tender offer, or other exercise of
rights requiring the physical tender or delivery of Portfolio
Securities, the Bank shall have no liability for failure to so tender
in a timely manner unless such Proper Instructions are received by the
Bank at least two business days prior to the date required for tender,
and unless the Bank (or its agent or subcustodian hereunder) has actual
possession of such Security at least two business days prior to the
date of tender;
(c) upon conversion of Portfolio Securities pursuant to their
terms into other securities;
(d) for the purpose of redeeming in kind interests in any
Portfolio of the Trust upon authorization from the Portfolio;
(e) in the case of option contracts owned by any Portfolio of the
Trust, for presentation to the endorsing broker,
(f) when such Portfolio Securities are called, redeemed or
retired or otherwise become payable;
(g) for the purpose of effectuating the pledge of Portfolio
Securities held by the Bank in order to collateralize loans made to any
Portfolio of the Trust by any bank, including the Bank; provided,
however, that such Portfolio Securities will be released only upon
payment to the Bank for the account of the Portfolio of the moneys
borrowed, except that in cases where additional collateral is required
to secure a borrowing already made, and such fact is made to appear in
the Proper Instructions, further Portfolio Securities may be released
for that purpose without any such payment. If any such pledged
Portfolio Securities are held by the Bank, they will be so held for the
account of the lender, and after notice to the Portfolio from the
lender in accordance with the normal procedures of the lender, that an
event of deficiency or default on the loan has occurred, the Bank may
deliver such pledged Portfolio Securities to or for the account of the
lender;
(h) for the purpose of releasing certificates representing
Portfolio Securities, against contemporaneous receipt by the Bank of
the fair market value of such security, as set forth in Proper
Instructions received by the Bank before such payment is made;
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(i) for the purpose of delivering securities lent by any
Portfolio of the Trust to a bank or broker dealer, but only against
receipt in accordance with street delivery custom except as otherwise
provided herein, of adequate collateral as agreed upon from time to
time by the Portfolio and the Bank, and upon receipt of payment in
connection with any repurchase agreement relating to such securities
entered into by the Portfolio;
(j) for other authorized transactions of any Portfolio of the
Trust or for other proper corporate purposes; provided that before
making such transfer, the Bank will also receive a certified copy of
resolutions of the Board, signed by an authorized officer of the
Portfolio (other than the officer certifying such resolution) and
certified by its Secretary or Assistant Secretary, specifying the
Portfolio Securities to be delivered, setting forth the transaction in
or purpose for which such delivery is to be made, declaring such
transaction to be an authorized transaction of the Portfolio or such
purpose to be a proper corporate purpose, and naming the person or
persons to whom delivery of such securities shall be made; and
(k) upon termination of this Agreement as hereinafter set forth
pursuant to Section 8 and Section 14 of this Agreement.
As to any deliveries made by the Bank pursuant to subsections (a), (b),
(c), (e), (f), (g), (h) and (i) securities or cash receivable in exchange
therefor shall be delivered to the Bank.
7. REDEMPTIONS. In the case of payment of assets of any Portfolio of
the Trust held by the Bank in connection with redemptions and repurchases by the
Portfolio of outstanding common shares, the Bank will rely on notification by
the Portfolio's transfer agent of receipt of a request for redemption and
certificates if issued, in proper form for redemption before such payment is
made. Payment shall be made in accordance with the Articles and Bylaws of the
Trust, from assets available for said purpose.
8. MERGER, DISSOLUTION, ETC. OF A PORTFOLIO. In the case of the
following transactions, not in the ordinary course of business, namely, the
merger of any Portfolio of the Trust into or the consolidation of any Portfolio
of the Trust with another investment company, the sale by any Portfolio of the
Trust of all, or substantially all, of its assets to another investment company,
or the liquidation or dissolution of any Portfolio of the Trust and distribution
of its assets, the Bank will deliver the Portfolio Securities held by it under
this Agreement and disburse cash only upon the order of the Portfolio set forth
in an Officers' Certificate, accompanied by a certified copy of a resolution of
the Board authorizing any of the foregoing transactions. Upon completion of such
delivery and disbursement and the payment of the fees, disbursements and
expenses of the Bank, this Agreement will terminate.
9. ACTIONS OF BANK WITHOUT PRIOR AUTHORIZATION. Notwithstanding
anything herein to the contrary, unless and until the Bank receives an Officers'
Certificate to the contrary, it will without prior authorization or instruction
of any Portfolio or the Trust or the transfer agent:
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9.1 endorse for collection and collect on behalf of and in the
name of any Portfolio of the Trust all checks, drafts, or other negotiable
or transferable instruments or other orders for the payment of money
received by it for the account of the Portfolio and hold for the account of
the Portfolio all income, dividends, interest and other payments or
distribution of cash with respect to the Portfolio Securities held
thereunder;
9.2 present for payment all coupons and other income items held
by it for the account of any Portfolio of the Trust which call for payment
upon presentation and hold the cash received by it upon such payment for
the account of the Portfolio;
9.3 receive and hold for the account of any Portfolio of the
Trust all securities received as a distribution on Portfolio Securities as
a result of a stock dividend, share split-up, reorganization,
recapitalization, merger, consolidation, readjustment, distribution of
rights and similar securities issued with respect to any Portfolio
Securities held by it hereunder;
9.4 execute as agent on behalf of any Portfolio of the Trust all
necessary ownership and other certificates and affidavits required by the
Internal Revenue Code or the regulations of the Treasury Department issued
thereunder, or by the laws of any state, now or hereafter in effect,
inserting the Trust's name on such certificates as the owner of the
securities covered thereby, to the extent it may lawfully do so and as may
be required to obtain payment in respect thereof. The Bank will execute and
deliver such certificates in connection with Portfolio Securities delivered
to it or by it under this Agreement as may be required under the provisions
of the Internal Revenue Code and any Regulations of the Treasury Department
issued thereunder, or under the laws of any State;
9.5 present for payment all Portfolio Securities which are
called, redeemed, retired or otherwise become payable, and hold cash
received by it upon payment for the account of any Portfolio of the Trust;
and
9.6 exchange interim receipts or temporary securities for
definitive securities.
10. COLLECTION; DEFAULTS. The Bank will use all reasonable effort to
collect any funds which may to its knowledge become collectible arising from
Portfolio Securities, including dividends, interest and other income, and to
transmit promptly to the Trust notice actually received by it of any call for
redemption, offer of exchange, right of subscription, reorganization or other
proceedings affecting such Securities.
If Portfolio Securities upon which such income is payable are in default
or payment is refused after due demand or presentation, the Bank will notify the
Trust in writing of any default or refusal to pay within two business days from
the day on which it receives knowledge of such default or refusal. In addition,
the Bank will send the Trust a written report once each month showing any income
on any Portfolio Security held by it which is
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more than ten days overdue on the date of such report and which has not
previously been reported.
11. MAINTENANCE OF RECORDS. The Bank will maintain records with respect to
transactions for which the Bank is responsible pursuant to the terms and
conditions of this Agreement, and in compliance with the applicable rules and
regulations of the Act and applicable federal and state tax laws, and will
furnish the Trust daily with a statement of condition of each Portfolio of the
Trust. The Bank will furnish to the Trust at the end of every month, and at the
close of each quarter of the Trust's fiscal year, a list of the Portfolio
Securities and the aggregate amount of cash held by it for each portfolio of the
Trust. The books and records of the Bank pertaining to its actions under this
Agreement and reports by the Bank or its independent accountants concerning its
accounting system, procedures for safeguarding securities and internal
accounting controls will be open to inspection and audit at reasonable times by
officers of or auditors employed by the Trust and will be preserved by the Bank
in the manner and in accordance with the applicable rules and regulations under
the Act.
The Bank shall keep the books of account and render statements or copies
from time to time as reasonably requested by the Treasurer or any executive
officer of the Trust.
The Bank shall assist generally in the preparation of reports to
shareholders and others, audits of accounts, and other ministerial matters of
like nature.
12. PORTFOLIO EVALUATION. The Bank shall compute and, unless otherwise
directed by the Board, determine as of the close of business on the New York
Stock Exchange on each day on which said Exchange is open for unrestricted
trading and as of such other hours, if any, as may be authorized by the Board
the net asset value and the public offering price of a share of capital stock of
each Portfolio of the Trust, such determination to be made in accordance with
the provisions of the Articles and By-laws of the Trust and Prospectus and
Statement of Additional Information relating to each Portfolio and the Trust, as
they may from time to time be amended, and any applicable resolutions of the
Board at the time in force and applicable; and promptly to notify the Trust and
the National Association of Securities Dealers ("NASD") or such other persons as
the Trust may request of the results of such computation and determination. In
computing the net asset value hereunder, the Bank may rely in good faith upon
information furnished to it by any Authorized Person in respect of (i) the
manner of accrual of the liabilities of each Portfolio of the Trust and in
respect of liabilities of any Portfolio of the Trust not appearing on its books
of account kept by the Bank, (ii) reserves, if any, authorized by the Board or
that no such reserves have been authorized, (iii) the source of the quotations
to be used in computing the net asset value, (iv) the value to be assigned to
any security for which no price quotations are available, and (v) the method of
computation of the public offering price on the basis of the net asset value of
the shares, and the Bank shall not be responsible for any loss occasioned by
such reliance on any quotations received from a source pursuant to (iii) above.
13. CONCERNING THE BANK.
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13.1 PERFORMANCE OF DUTIES; STANDARD OF CARE. In performing its duties
hereunder and any other duties listed on any Schedule hereto, if any, the
Bank will be entitled to receive and act upon the advice of independent
counsel of its own selection and reasonably acceptable to the Trust, which
may be counsel for the Trust, and will be without liability for any action
taken or thing done or omitted to be done in accordance with this Agreement
in good faith in conformity with such advice. In the performance of its
duties hereunder, the Bank will be protected and not be liable, and will be
indemnified and saved harmless for any action taken or omitted to be taken
by it in good faith reliance upon the terms of this Agreement, any
Officers' Certificate, Proper Instructions, resolution of the Board,
telegram, notice, request, certificate or other instrument reasonably
believed by the Bank to be genuine and for any other loss to any Portfolio
of the Trust except in the case of its gross negligence, willful
misfeasance or bad faith in the performance of its duties or reckless
disregard of its obligations and duties hereunder.
The Bank will be under no duty or obligation to inquire into and will
not be liable for:
(a) the validity of the issue of any Portfolio Securities
purchased by or for any Portfolio of the Trust, the legality of the
purchases thereof or the propriety of the price incurred therefor;
(b) the legality of any sale of any Portfolio Securities
by or for any Portfolio of the Trust or the propriety of the amount for
which the same are sold;
(c) the legality of an issue or sale of any common shares
of any Portfolio of the Trust or the sufficiency of the amount to be
received therefor;
(d) the legality of the repurchase of any common shares
of any Portfolio of the Trust or the propriety of the amount to be paid
therefor;
(e) the legality of the declaration of any dividend by
any Portfolio of the Trust or the legality of the distribution of any
Portfolio Securities as payment in kind of such dividend; or
(f) any property or moneys of any Portfolio of the Trust
unless and until received by it, and any such property or moneys
delivered or paid by it pursuant to the terms hereof.
Moreover, the Bank will not be under any duty or
obligation to ascertain whether any Portfolio Securities at any time
delivered to or held by it for the account of any Portfolio of the
Trust are such as may properly be held by such Portfolio under the
provisions of the Articles and By-laws of the Trust, any federal or
state statutes or any rule or regulation of any governmental agency.
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Notwithstanding anything in this Agreement to the
contrary, in no event shall the Bank be liable hereunder or to any
third party:
(a) for any losses or damages of any kind resulting from
acts of God, earthquakes, fires, floods, storms or other disturbances
of nature, epidemics, strikes, riots, nationalization, expropriation,
currency restrictions, acts of war, civil war or terrorism,
insurrection, nuclear fusion, fission or radiation, the interruption,
loss or malfunction of utilities, transportation, or computers
(hardware or software) and computer facilities, the unavailability of
energy sources and other similar happenings or events except as result
from the Bank's own gross negligence; or
(b) for special, punitive or consequential damages
arising from the provision of services hereunder, even if the Bank has
been advised of the possibility of such damages.
13.2 AGENTS AND SUBCUSTODIANS. The Bank may employ agents in
the performance of its duties hereunder and shall be responsible for the
acts and omissions of such agents as if performed by the Bank hereunder.
Upon receipt of Proper Instructions, the Bank may employ
subcustodians in accordance with such instructions, provided that any such
subcustodian meets at least the minimum qualifications required by Section
17(f) of the Act to act as a custodian of any Portfolio of the Trust's
assets, and provided further that the Bank shall have no more or less
responsibility to any Portfolio of the Trust on account of any actions or
omissions of any subcustodian so employed than any such subcustodian has to
the Bank, provided that the liability limitations have been disclosed to
the Trust. At the election of the Trust, it shall be entitled to be
subrogated to the rights of the Bank with respect to any claims against a
subcustodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that any Portfolio or the Trust has
not been made whole for any such loss, damage, cost, expense, liability or
claim.
The affected Portfolio(s) of the Trust shall pay all
appropriately apportioned fees and expenses of any subcustodian.
13.3 INSURANCE. the Bank shall use the same care with respect
to the safekeeping of Portfolio Securities and cash of any Portfolio of the
Trust held by it as it uses in respect of its own similar property, but it
need not maintain any special insurance for the benefit of any Portfolio or
the Trust.
13.4 FEES AND EXPENSES OF BANK. The affected Portfolio of the
Trust will pay or reimburse the Bank from time to time for any transfer
taxes payable upon transfer of Portfolio Securities made hereunder, and for
all necessary proper disbursements, expenses and charges made or incurred
by the Bank in the performance of this Agreement (including any duties
listed on any Schedule hereto, if any) including any indemnities for any
loss, liabilities or expense to the Bank as provided above. For the
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services rendered by the Bank hereunder, the affected Portfolio will pay to
the Bank such compensation or fees at such rate and at such times as shall
be agreed upon in writing by the parties from time to time. The Bank will
also be entitled to reimbursement by any Portfolio or the Trust for all
reasonable expenses incurred in conjunction with termination of this
Agreement by the any Portfolio or the Trust.
13.5 ADVANCES BY BANK. The Bank may, in its sole discretion,
advance funds on behalf of any Portfolio of the Trust to make any payment
permitted by this Agreement upon receipt of any Proper Instructions from
the Portfolio authorizing such payments. Should such a payment or payments,
with advanced funds, result in an overdraft (due to insufficiencies of the
Portfolio's account with the Bank, or for any other reason) any such
overdraft or related indebtedness shall be deemed a loan made by the Bank
to the Portfolio payable on demand and bearing interest at the current rate
charged by the Bank for such loans unless the Portfolio shall provide the
Bank with agreed upon compensating balances. The Portfolio agrees that the
Bank shall have a continuing lien and security interest to the extent of
any overdraft or indebtedness, in and to any property at any time held by
it for the Portfolio's benefit or in which the Portfolio has an interest
and which is then in the Bank's possession or control (or in the possession
or control of any third party acting on the Bank's behalf). The Portfolio
authorizes the Bank, in its sole discretion, at any time to charge any
overdraft of indebtedness, together with interest due thereon against any
balance of account standing to the credit of the Portfolio on the Bank's
books.
14. TERMINATION.
14.1 This Agreement may be terminated at any time without penalty
upon sixty days written notice delivered by either party to the other by
means of registered mail, and upon the expiration of such sixty days this
Agreement will terminate; provided, however, that the effective date of
such termination may be postponed to a date not more than ninety days from
the date of delivery of such notice (i) by the Bank in order to prepare for
the transfer by the Bank of all of the assets of any Portfolio or the Trust
held hereunder, and (ii) by any Portfolio or the trust in order to give the
Portfolio or the Trust an opportunity to make suitable arrangements for a
successor custodian. At any time after the termination of this Agreement,
any Portfolio or the Trust will, at its request, have access to the records
of the Bank relating to the performance of its duties as custodian.
14.2 In the event of the termination of this Agreement, the Bank
will immediately upon receipt or transmittal, as the case may be, of notice
of termination, commence and prosecute diligently to completion the
transfer of all cash and the delivery of all Portfolio Securities held by
it hereunder, duly endorsed, together with all records maintained under
Section 11, to the successor custodian when appointed by any Portfolio or
the Trust. The obligation of the Bank to deliver and transfer over the
assets of any Portfolio or the Trust held by it directly to such successor
custodian will commence as soon as such successor is appointed and will
continue until completed as
19
<PAGE> 23
aforesaid. If any Portfolio or the Trust does not select a successor
custodian within ninety (90) days from the date of delivery of notice of
termination the Bank may, subject to the provisions of subsection (13.4),
deliver the Portfolio Securities and cash of any Portfolio or the Trust
held by the Bank to a bank or trust company of its own selection which
meets the requirements of Section 17(f)(1) of the Act and has a reported
capital, surplus and undivided profits aggregating not less than
$2,000,000, to be held by such bank or trust company as the property of any
Portfolio or the Trust under terms similar to those on which they were held
by the Bank, whereupon such bank or trust company so selected by the Bank
will become the successor custodian of such assets of any Portfolio or the
Trust with the same effect as though selected by the Board.
14.3 Prior to the expiration of ninety (90) days after notice of
termination has been given, the Portfolio or the Trust may furnish the Bank
with an order of the Portfolio or the Trust advising that a successor
custodian cannot be found willing and able to act upon reasonable and
customary terms and that there has been submitted to the shareholders of
the Portfolio or the Trust the question or whether the Portfolio or the
Trust will be liquidated or will function without a custodian for the
assets of the Portfolio or the Trust held by the Bank. In that event the
Bank will deliver the Portfolio Securities and cash of the Portfolio or the
Trust held by it, in accordance with such alternatives as is approved by
the requisite vote of shareholders, upon receipt by the Bank of a copy of
the minutes of the meeting of shareholders at which action was taken,
certified by the Trust's Secretary and an opinion of counsel to the Trust
in form and content satisfactory to the Bank.
15. CONFIDENTIALITY. Both parties hereto agree that any non-public
information obtained hereunder concerning the other party is confidential and
may not be disclosed to any other person without the consent of the other party,
except as may be required by applicable law or at the request of a governmental
agency. The parties further agree that a breach of this provision would
irreparably damage the other party and accordingly agree that each of them is
entitled, without bond or other security, to an injunction or injunctions to
prevent breaches of this provision.
16. NOTICES. Any notice or other instrument in writing authorized or
required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and mailed or delivered to it at
its office at the address set forth below; namely:
(a) In the case of notices sent to any Portfolio or the Trust to:
Select Advisors Trust II
318 Broadway
Cincinnati, Ohio 45202
(b) In the case of notices sent to the Bank to:
Investors Bank & Trust Company
20
<PAGE> 24
P.O. Box 1537
Boston, Massachusetts 02205-1537
or at such other place as such party may from time to time designate in
writing.
17. AMENDMENTS. This Agreement may not be altered or amended, except by an
instrument in writing, executed by both parties, and in the case of the Trust,
such alteration or amendment will be authorized and approve by its Board.
18. PARTIES. This Agreement will be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that this Agreement will not be assignable by the Trust
without the written consent of the Bank or by the Bank without the written
consent of the Trust, authorized and approved by its Board; and provided further
that termination proceedings pursuant to Section 14 hereof will not be deemed to
be an assignment within the meaning of this provision.
19. GOVERNING LAW. This Agreement and all performance hereunder will be
governed by the laws of the Commonwealth of Massachusetts.
20. LIMITATIONS OF LIABILITY. A copy of the Declaration of Trust of the
Trust is on file with the Secretary of the State, and notice is hereby given
that this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of this instrument are
not binding upon any of the Trustees of Officers of the Trust individually.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
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<PAGE> 25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first written above.
SELECT ADVISORS TRUST II
BY: /s/ Edward G. Harness, Jr.
----------------------------
ATTEST:
/s/ Jill T. Mcgruder
- -----------------------------
INVESTORS BANK AND TRUST
COMPANY
BY: /s/ Kevin J. Sheehan
----------------------------
ATTEST:
/s/ John Lippett
- -----------------------------
DATE: 8/22/94
22
<PAGE> 1
Exhibit 9(B)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
SELECT ADVISORS TRUST I AND
SELECT ADVISORS TRUST II
AND
STATE STREET BANK AND TRUST COMPANY
<PAGE> 2
TABLE OF CONTENTS
Page
----
Article 1 Terms of Appointment; Duties of the Bank ................. 1
Article 2 Fees and Expenses ........................................ 5
Article 3 Representations and Warranties of the Bank ............... 6
Article 4 Representations and Warranties of the Funds .............. 6
Article 5 Data Access and Proprietary Information .................. 7
Article 6 Indemnification .......................................... 10
Article 7 Standard of Care ......................................... 12
Article 8 Covenants of the Funds and the Bank ...................... 12
Article 9 Termination of Agreement ................................. 14
Article 10 Assignment ............................................... 14
Article 11 Amendment ................................................ 15
Article 12 Massachusetts Law to Apply ............................... 15
Article 13 Force Majeure ............................................ 15
Article 14 Consequential Damages .................................... 15
Article 15 Merger of Agreement ...................................... 15
Article 16 Limitations of Liability of the Trustees
and the Shareholders ..................................... 16
Article 17 Counterparts ............................................. 16
<PAGE> 3
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 27th day of September, 1994, by and between
Select Advisors Trust I and Select Advisors Trust II, both Massachusetts
business trusts, having their principal office and place of business at 6 St.
James Place, Boston, Massachusetts 02116 (the "Funds"), and STATE STREET BANK
AND TRUST COMPANY, a Massachusetts trust company having its principal office and
place of business at 225 Franklin Street, Boston, Massachusetts 02110 (the
"Bank").
WHEREAS, the Funds desire to appoint the Bank as their transfer agent,
dividend disbursing agent, custodian of certain retirement plans and agent in
connection with certain other activities, and the Bank desires to accept such
appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 TERMS OF APPOINTMENT; DUTIES OF THE BANK
1.01 Subject to the terms and conditions set forth in this
Agreement, the Funds hereby employ and appoint the Bank to act as, and the Bank
agrees to act as, their transfer agent for the Funds' authorized and issued
shares of beneficial interest ("Shares"), dividend disbursing agent, custodian
of certain retirement plans and agent in connection with any accumulation,
open-account or similar plans provided to the shareholders of the Funds
("Shareholders") and set out in the currently effective prospectus and statement
of additional information ("prospectus") of the Funds, including without
limitation any periodic investment plan or periodic withdrawal program.
<PAGE> 4
1.02 The Bank agrees that it will perform the following
services:
(a) In accordance with procedures established from time to
time by agreement between the Funds and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation thereof to the Custodian of the Funds
authorized pursuant to the Declarations of Trust of the
Funds (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the appropriate
Shareholder account;
(iii) Receive for acceptance redemption requests and
redemption directions and deliver the appropriate
documentation thereof to the Custodian;
(iv) In respect to the transactions in items (i), (ii) and
(iii) above, the Bank shall execute transactions
directly with broker-dealers authorized by the Funds who
shall thereby be deemed to be acting on behalf of the
Funds;
(v) At the appropriate time as and when it receives monies
paid to it by the Custodian with respect to any
redemption, pay over or cause to be paid over in the
appropriate manner such monies as instructed by the
redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and
distributions declared by the Funds;
2
<PAGE> 5
(viii) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by the Bank of indemnification satisfactory to
the Bank and protecting the Bank and the Funds, and the
Bank at its option, may issue replacement certificates
in place of mutilated stock certificates upon
presentation thereof and without such indemnity;
(ix) Maintain records of account for and advise the Funds and
their Shareholders as to the foregoing; and
(x) Record the issuance of shares of the Funds and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total
number of shares of the Funds which are authorized,
based upon data provided to it by the Funds, and issued
and outstanding. The Bank shall also provide the Funds
on a regular basis with the total number of shares which
are authorized and issued and outstanding and shall have
no obligation, when recording the issuance of shares, to
monitor the issuance of such shares or to take
cognizance of any laws relating to the issue or sale of
such shares, which functions shall be the sole
responsibility of the Funds.
(b) In addition to and neither in lieu nor in contravention
of the services set forth in the above paragraph (a), the Bank shall:
(i) perform the customary services of a transfer agent, dividend disbursing
agent, custodian of certain retirement plans and, as relevant, agent in
connection with accumulation, open-account or similar plans (including
3
<PAGE> 6
without limitation any periodic investment plan or periodic withdrawal program),
including but not limited to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, mailing Shareholder reports and
prospectuses to current Shareholders, withholding taxes on U.S. resident and
non-resident alien accounts, preparing and filing U.S. Treasury Department Forms
1099 and other appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders for all purchases
and redemptions of Shares and other confirmable transactions in Shareholder
accounts, preparing and mailing activity statements for Shareholders, and
providing Shareholder account information and (ii) provide a system which will
enable the Funds to monitor the total number of Shares sold in each State.
(c) In addition, the Funds shall (i) identify to the Bank in
writing those transactions and assets to be treated as exempt from blue sky
reporting for each State and (ii) verify the establishment of transactions for
each State on the system prior to activation and thereafter monitor the daily
activity for each State. The responsibility of the Bank for the Funds' blue sky
State registration status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Funds and the reporting of
such transactions to the Funds as provided above.
(d) Procedures as to who shall provide certain of these
services in Article 1 may be established from time to time by agreement between
the Funds and the Bank per the attached service responsibility schedule. The
Bank may at times perform only a portion of these services and the Funds or its
agent may perform these services on the Funds' behalf.
4
<PAGE> 7
(e) The Bank shall provide additional services on behalf of
the Funds (i.e., escheatment services) which may be agreed upon in writing
between the Funds and the Bank.
Article 2 FEES AND EXPENSES
2.01 For performance by the Bank pursuant to this Agreement,
the Funds agree to pay the Bank an annual maintenance fee for each shareholder
account as set out in the initial fee schedule attached hereto. Such fees and
out-of-pocket expenses and advances identified under Section 2.02 below may be
changed from time to time subject to mutual written agreement between the Funds
and the Bank.
2.02 In addition to the fee paid under Section 2.01 above,
the Funds agree to reimburse the Bank for out-of-pocket expenses, including but
not limited to confirmation production, postage, forms, telephone, microfilm,
microfiche, tabulating proxies, records storage, or advances incurred by the
Bank for the items set out in the fee schedule attached hereto. In addition, any
other expenses incurred by the Bank at the request or with the consent of the
Funds, will be reimbursed by the Funds.
2.03 The Funds agree to pay all fees and reimbursable
expenses within five days following the receipt of the respective billing
notice. Postage for mailing of dividends, proxies, Fund reports and other
mailings to all shareholder accounts shall be advanced to the Bank by the Fund
at least seven (7) days prior to the mailing date of such materials.
Article 3 REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank represents and warrants to the Funds that:
5
<PAGE> 8
3.01 It is a trust company duly organized and existing and in
good standing under the laws of the Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in the
Commonwealth of Massachusetts.
3.03 It is duly registered as a transfer agent pursuant to
Section 17A(c)(1) of the Securities Exchange Act of 1934, as amended.
3.04 It is empowered under applicable laws and by its Charter
and By-Laws to enter into and perform this Agreement.
3.05 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.06 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
Article 4 REPRESENTATIONS AND WARRANTIES OF THE FUNDS
The Funds represent and warrant to the Bank that:
4.01 They are each business trusts duly organized and
existing and in good standing under the laws of Massachusetts.
4.02 They are empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into and perform this Agreement.
4.03 All proceedings required by said Declaration of Trust
and By-Laws have been taken to authorize them to enter into and perform this
Agreement.
6
<PAGE> 9
4.04 They are or will be open-end and diversified management
investment companies registered under the Investment Company Act of 1940, as
amended.
4.05 Registration statements under the Securities Act of
1933, as amended currently are or will be effective and will remain effective,
and appropriate state securities law filings have been made and will continue to
be made, with respect to all Shares of the Funds being offered for sale.
Article 5 DATA ACCESS AND PROPRIETARY INFORMATION
5.01 The Funds acknowledge that the data bases, computer
programs, screen formats, report formats, interactive design techniques, and
documentation manuals furnished to the Funds by the Bank as part of the Funds'
ability to access certain Fund-related data ("Customer Data") maintained by the
Bank on data bases under the control and ownership of the Bank or other third
party ("Data Access Services") constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information") of substantial
value to the Bank or other third party. In no event shall Proprietary
Information be deemed Customer Data. The Funds agree to treat all Proprietary
Information as proprietary to the Bank and further agree that they shall not
divulge any Proprietary Information to any person or organization except as may
be provided hereunder. Without limiting the foregoing, the Funds agree for
themselves and their employees and agents:
(a) to access Customer Data solely from locations as may be
designated in writing by the Bank and solely in accordance
with the Bank's applicable user documentation;
7
<PAGE> 10
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any portion
of the Proprietary Information, and if such access is
inadvertently obtained, to inform in a timely manner of such
fact and dispose of such information in accordance with the
Bank's instructions;
(d) to refrain from causing or allowing third-party data acquired
hereunder from being retransmitted to any other computer
facility or other location, except with the prior written
consent of the Bank;
(e) that the Funds shall have access only to those authorized
transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by the Bank to
protect at the Bank's expense the rights of the Bank in
Proprietary Information at common law, under federal
copyright law and under other federal or state law.
Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Article 5. The obligations of this Article
shall survive any earlier termination of this Agreement.
5.02 If the Funds notify the Bank that any of the Data Access
Services do not operate in material compliance with the most recently issued
user documentation for such services, the Bank shall endeavor in a timely manner
to correct such failure. Organizations from which the Bank may obtain certain
data included in the Data Access Services are solely
8
<PAGE> 11
responsible for the contents of such data and the Funds agree to make no claim
against the Bank arising out of the contents of such third-party data,
including, but not limited to, the accuracy thereof. DATA ACCESS SERVICES AND
ALL COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH
ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE BANK EXPRESSLY DISCLAIMS ALL
WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.03 If the transactions available to the Funds include the
ability to originate electronic instructions to the Bank in order to (i) effect
the transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information, then in such event the Bank shall be entitled
to rely on the validity and authenticity of such instruction without undertaking
any further inquiry as long as such instruction is undertaken in conformity with
security procedures established by the Bank from time to time.
Article 6 INDEMNIFICATION
6.01 The Bank shall not be responsible for, and the Funds shall
indemnify and hold the Bank harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to:
(a) All actions of the Bank or its agent or subcontractors
required to be taken pursuant to this Agreement, provided that such actions are
taken in good faith and without negligence or willful misconduct.
9
<PAGE> 12
(b) The Funds' lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or warranty of
the Funds hereunder.
(c) The reliance on or use by the Bank or its agents or
subcontractors of information, records, documents or services which (i) are
received by the Bank or its agents or subcontractors, and (ii) have been
prepared, maintained or performed by the Funds or any other person or firm on
behalf of the Funds including but not limited to any previous transfer agent or
registrar.
(d) The reasonable reliance on, or the carrying out by the Bank
or its agents or subcontractors of, any instructions or requests of the Funds.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such state or in
violation of any stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of such Shares in such
state.
6.02 At any time the Bank may apply to any officer of the Funds
for instructions, and may consult with legal counsel satisfactory to the Funds
with respect to any matter arising in connection with the services to be
performed by the Bank under this Agreement, and the Bank and its agents or
subcontractors shall not be liable and shall be indemnified by the Funds for any
action taken or omitted by it in reliance upon such instructions or upon the
opinion of such counsel. The Bank, its agents and subcontractors shall be
protected and indemnified in acting upon any paper or document furnished by or
on behalf of the Funds, reasonably believed to be genuine and to have been
signed by the proper
10
<PAGE> 13
person or persons, or upon any instruction, information, data, records or
documents provided the Bank or its agents or subcontractors by machine readable
input, telex, CRT data entry or other similar means authorized by the Funds, and
shall not be held to have notice of any change of authority of any person, until
receipt of written notice thereof from the Funds. The Bank, its agents and
subcontractors shall also be protected and indemnified in recognizing stock
certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Funds, and the proper
countersignature of any former transfer agent or former registrar, or of a
co-transfer agent or co-registrar.
6.03 In order that the indemnification provisions contained in
this Article 6 shall apply, upon the assertion of a claim for which the Funds
may be required to indemnify the Bank, the Bank shall promptly notify the Funds
of such assertion, and shall keep the Funds advised with respect to all
developments concerning such claim. The Funds shall have the option to
participate with the Bank in the defense of such claim or to defend against said
claim in their own name or in the name of the Bank. The Bank shall in no case
confess any claim or make any compromise in any situation in which the Funds may
be require to indemnify the Bank except with the Funds' prior written consent.
Article 7 STANDARD OF CARE
7.01 The Bank shall at all times act in good faith and agrees to
use its best efforts to insure the accuracy of all services performed under this
Agreement, but assumes no responsibility and shall not be liable for loss or
damage due to errors unless said errors are caused by its negligence, bad faith,
or willful misconduct or that of its employees.
11
<PAGE> 14
Article 8 COVENANTS OF THE FUNDS AND THE BANK
8.01 The Funds shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Trustees
of the Funds authorizing the appointment of the Bank and the execution and
delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Funds
and all amendments thereto.
8.02 The Bank hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Funds for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
8.03 The Bank shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Company Act of 1940, as amended,
and the Rules thereunder, the Bank agrees that all such records prepared or
maintained by the Bank relating to the services to be performed by the Bank
hereunder are the property of the Funds and will be preserved, maintained and
made available in accordance with such Section and Rules promulgated thereunder,
and will be surrendered promptly to the Funds on and in accordance with its
request.
8.04 The Bank and the Funds agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to
12
<PAGE> 15
the negotiation or the carrying out of this Agreement shall remain confidential,
and shall not be voluntarily disclosed to any other person, except as may be
required by law.
8.05 In case of any requests or demands for the inspection of the
Shareholder records of the Funds, the Bank will use its best efforts to notify
the Funds and to secure instructions from an authorized officer of the Fund as
to such inspection. The Bank reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that it
may be held liable for the failure to exhibit the Shareholder records to such
person.
Article 9 TERMINATION OF AGREEMENT
9.01 This Agreement may be terminated by either party upon one
hundred twenty (120) days written notice to the other.
9.02 Should the Funds exercise their right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Funds. Additionally, the Bank reserves the right to charge for
any other reasonable expenses associated with such termination or a charge
equivalent to the average of three (3) months' fees.
Article 10 ASSIGNMENT
10.01 Except as provided in Section 10.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
13
<PAGE> 16
10.02 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
10.03 The Bank may, without further consent on the part of the
Funds, subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly registered as
a transfer agent pursuant to Section 17A(c)(2) of the Securities Exchange Act of
1934, as amended ("Section 17A(c)(2)"), (ii) a BFDS subsidiary duly registered
as a transfer agent pursuant to Section 17A(c)(2) or (iii) a BFDS affiliate;
provided, however, that the Bank shall be as fully responsible to the Funds for
the acts and omissions of any subcontractor or it is for its own acts and
omissions.
Article 11 AMENDMENT
11.01 This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution of
the Boards of Trustees of the Funds.
Article 12 MASSACHUSETTS LAW TO APPLY
12.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
14
<PAGE> 17
Article 13 FORCE MAJEURE
13.01 In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes.
Article 14 CONSEQUENTIAL DAMAGES
14.01 Neither party to this Agreement shall be liable to the
other party for consequential damages under any provision of this Agreement or
for any consequential damages arising out of any act or failure to act
hereunder.
Article 15 MERGER OF AGREEMENT
15.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
Article 16 LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS
16.01 A copy of this Agreement and Declarations of Trust of the
Trusts are on file with the Secretary of the Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trusts as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the
15
<PAGE> 18
Trustees or Shareholders individually but are binding only upon the assets and
property of the Funds.
Article 17 COUNTERPARTS
17.01 This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
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<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
SELECT ADVISORS TRUST I
BY: /s/ Edward G. Harness, Jr.
-------------------------------
ATTEST:
/s/ Jill T. McGruder
- --------------------------------
SELECT ADVISORS TRUST II
BY: /s/ Edward G. Harness, Jr.
-------------------------------
ATTEST:
/s/ Jill T. McGruder
- --------------------------------
STATE STREET BANK AND TRUST CO.
BY: /s/ [Authorized Signature]
-------------------------------
Executive Vice President
ATTEST:
/s/ Diane M. Andersen
- --------------------------------
17
<PAGE> 20
STATE STREET BANK & TRUST COMPANY
FUND SERVICE RESPONSIBILITIES*
Service Performed Responsibility
- ----------------- --------------
Bank Fund
---- ----
1. Receives orders for the purchase of Shares.
2. Issue Shares and hold Shares in
Shareholders accounts.
3. Receive redemption requests.
4. Effect transactions 1-3 above directly
with broker-dealers.
5. Pay over monies to redeeming Shareholders.
6. Effect transfers of Shares.
7. Prepare and transmit dividends and distributions.
8. Issue Replacement Certificates.
9. Reporting of abandoned property.
10. Maintain records of account.
11. Maintain and keep a current and accurate
control book for each issue of securities.
12. Mail proxies.
13. Mail Shareholder reports.
14. Mail prospectuses to current Shareholders.
15. Withhold taxes on U.S. resident and
non-resident alien accounts.
16. Prepare and file U.S. Treasury
Department forms.
18
<PAGE> 21
Service Performed Responsibility
- ----------------- --------------
Bank Fund
---- ----
17. Prepare and mail account and confirmation
statements for Shareholders.
18. Provide Shareholder account information.
19. Blue sky reporting.
* Such services are more fully described in Article 1.02 (a), (b) and (c)
of the Agreement.
SELECT ADVISORS TRUST I
BY: /s/ Edward G. Harness, Jr.
-------------------------------
ATTEST:
/s/ Jill T. McGruder
- ------------------------------
SELECT ADVISORS TRUST II
BY: /s/ Edward G. Harness, Jr.
-------------------------------
ATTEST:
/s/ Jill T. McGruder
- ------------------------------
STATE STREET BANK AND TRUST CO.
BY: /s/ [Authorized signature]
-------------------------------
Executive Vice President
ATTEST:
/s/ Diane M. Andersen
- ------------------------------
19
<PAGE> 22
Fee Information for Services as
Plan, Transfer and Dividend Disbursing Agent
SELECT ADVISORS TRUST I
SELECT ADVISORS TRUST II
- --------------------------------------------------------------------------------
ANNUAL ACCOUNT SERVICE FEES
- ---------------------------
Daily Dividend Fund $ 14.00
Non-Daily Dividend Fund $ 12.00
Closed Account Fee $ 1.50
Minimum
Year 1/per fund/class $18,000
Year 2/per fund/class $22,000
Year 3/per fund/class $24,000
Fees are billable on a monthly basis at the rate of 1/12 of the annual fee. A
charge is made for an account in the month that an account opens or closes.
Account service fees are the higher of: open account charges plus closed account
charges or the fund minimum.
ACTIVITY BASED FEES
- -------------------
New Account Set-up $ 3.00/each
Manual Transactions $ 1.50/each
Correspondence $ 1.50/each
Research Requests $ 1.50/each
BANKING SERVICES
- ----------------
Checkwriting Setup $ 5.00
Checkwriting (per draft) $ 1.00
ACH $ .35
OTHER FEES
- ----------
Investor Processing $ 1.80/Investor
12b-1 Commissions $ 1.20/account
<PAGE> 23
[State Street Bank & Trust Letterhead]
IRA CUSTODIAL FEES
- ------------------
Acceptance & Setup $ 5.00/account
Annual Maintenance $ 10.00/account
OUT-OF-POCKET EXPENSES Billed as incurred
- ----------------------
Out-of-Pocket expenses include but are not limited to: confirmation statements,
postage, forms, audio response, telephone, records retention, transcripts,
microfilm, microfiche, and expenses incurred at the specific direction of the
fund.
SELECT ADVISORS TRUST I STATE STREET BANK AND TRUST CO.
By /s/ Edward G. Harness, Jr. By /s/ [authorized signature]
Title: President Title: Vice President
Date 9/27/94 Date 6/15/94
SELECT ADVISORS TRUST II
By /s/ Edward G. Harness, Jr.
------------------------------
Title: President
Date 9/27/94
<PAGE> 1
Exhibit (9C)
SPONSOR AGREEMENT
SPONSOR AGREEMENT, dated as of September 9, 1994, by and between Select
Advisors Trust C, a Massachusetts business trust (the "Trust"), and Touchstone
Advisors, Inc., an Ohio corporation ("Touchstone").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end investment company
registered under the Investment Company Act of 1940, as amended (collectively
with the rules and regulations promulgated thereunder as amended from time to
time, the "1940 Act");
WHEREAS, the Trust wishes to engage Touchstone to sponsor, and provide
certain management services with respect to, all currently existing or future
series (each a "Fund") of the Trust, and Touchstone is willing to provide such
services to the Trust, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. DUTIES OF TOUCHSTONE. Subject to the direction and control of the
Board of Trustees of the Trust (the "Board"), Touchstone shall perform such
sponsorship and management services as may from time to time be reasonably
requested by the Trust, which shall include without limitation: (a) providing
office space, equipment and clerical personnel necessary for performing the
management functions herein set forth; (b) arranging, if desired by the Trust,
for directors, officers or employees of Touchstone to serve as Trustees,
officers or agents of the Trust if duly elected or appointed to such positions
and subject to their individual consent and to any limitations imposed by law;
(c) supervising the overall administration of the Trust, including the provision
of services to the Trust by the Trust's administrator and fund accounting agent,
transfer agent and custodian, which services include without limitation: (i)
updating of corporate organizational documents, and the negotiation of contracts
and fees with and the monitoring and coordinating of performance and billings of
the Trust's transfer agent, custodian, shareholder servicing agents and other
independent contractors or agents; (ii) the preparation of and filing of
documents required for compliance by the Trust with applicable laws and
regulations (including state "blue sky" laws and regulations), including
registration statements on Form N-1A (or other applicable form), prospectuses
and statements of additional information, semi-annual and annual reports to the
Trust's shareholders, (iii) preparation of agendas and supporting documents for
and minutes of meetings of Trustees, committees of Trustees and preparation of
notices, proxy statements and minutes of meetings of one or more Funds'
shareholders, (iv) the maintenance of books and records of the Trust, (v)
telephone coverage to respond to shareholder inquiries, (vi) the provision of
monitoring reports and assistance regarding the Funds' compliance with federal
securities and tax laws including compliance with the 1940 Act and Subchapter M
of the
<PAGE> 2
Internal Revenue Code of 1986, as amended, (vii) the dissemination of
yield and other performance information to newspapers and tracking services,
(viii) the preparation of annual renewals for fidelity bond and errors and
omissions insurance coverage, (ix) the development of a budget for the Trust,
the establishment of the rate of expense accruals and the arrangement of the
payment of all fixed and management expenses, and (x) the determination of each
Fund's net asset value and the provision of all other fund accounting services
to the Funds.
2. SEED MONEY CAPITAL. Touchstone shall provide all required initial seed
capital required by the 1940 Act and the rules and regulations thereunder.
3. ORGANIZATION EXPENSES. Touchstone shall pay all of the organization
expenses of the Trust which were paid prior to the Trust's or any Fund's
commencement of investment operations. The Funds shall reimburse Touchstone,
without any interest or carrying charges, for such organization expenses.
4. ALLOCATION OF CHARGES AND EXPENSES. Touchstone shall pay the entire
salaries and wages of all of the Trust's Trustees, officers and agents who
devote part or all of their time to the affairs of Touchstone or its affiliates,
and the wages and salaries of such persons shall not be deemed to be expenses
incurred by the Trust.
5. OPERATING EXPENSE WAIVERS OR REIMBURSEMENT. Touchstone shall waive all
or a portion of its fee pursuant to this Sponsor Agreement and/or reimburse a
portion of the operating expenses (including amortization of organization
expense but excluding interest, taxes, brokerage commissions and other portfolio
transaction expenses, capital expenditures and extraordinary expenses)
("Expenses") of each Fund of the Trust such that after such reimbursement the
aggregate Expenses of the Fund shall be equal on an annual basis to the
following percentages of the average daily net assets of the Fund for the Fund's
then-current fiscal year: Emerging Growth Fund C, 2.50%; International Equity
Fund C, 2.60%; Growth & Income Fund C, 2.30%; Balanced Fund C, 2.35%; Income
Opportunity Fund C, 2.20%; Bond Fund C, 1.90%; and Municipal Bond Fund C, 2.05%.
Touchstone's obligations in this Section 5 may be terminated, with
respect to any Fund, by Touchstone as of the end of any calendar quarter after
December 31, 1995, upon at least 30 days prior written notice to the Trust (an
"Expense Cap Termination").
6. COMPENSATION OF TOUCHSTONE. For the services to be rendered, the
facilities to be provided and the expenses to be assumed by Touchstone
hereunder, the Trust shall pay to Touchstone a sponsor fee from the assets of
each Fund equal on an annual basis to 0.20% of the Fund's average daily net
assets for that Fund's then-current fiscal year.
-2-
<PAGE> 3
If Touchstone serves under this Agreement for less than the whole of
any month, the compensation to Touchstone hereunder shall be prorated. For
purposes of computing the fees payable to Touchstone hereunder, the net asset
value of each Fund shall be computed in the manner specified in that Fund's
then-current registration statement.
Touchstone hereby waives all of its fees under this Agreement with
respect to each Fund until April 30, 1996.
7. LIMITATION OF LIABILITY OF TOUCHSTONE. Touchstone shall not be liable
for any error of judgment or mistake of law or for any act or omission in the
sponsorship or management of the Trust or the performance of its duties
hereunder, except for willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of the reckless disregard of its
obligations and duties hereunder. As used in this Section 7, the term
"Touchstone" shall include Touchstone and/or any of its affiliates and the
directors, officers and employees of Touchstone and/or any of its affiliates.
8. ACTIVITIES OF TOUCHSTONE. The services of Touchstone to the Trust are
not to be deemed to be exclusive, Touchstone being free to render similar
sponsorship and management services and/or other services to other parties. It
is understood that Trustees and officers of the Trust, and shareholders of a
Fund are or may become interested in Touchstone and/or any of its affiliates, as
directors, officers, employees, or otherwise, and that directors, officers and
employees of Touchstone and/or any of its affiliates are or may become similarly
interested in the Trust and that Touchstone and/or any of its affiliates may be
or become interested in the Trust as a shareholder of a Fund or otherwise.
9. DURATION, TERMINATION AND AMENDMENTS OF THIS AGREEMENT. This Agreement
shall become effective as of the day and year first above written and shall
govern the relations between the parties hereto until terminated in accordance
with this Section 9. Except for an Expense Cap Termination, this Agreement may
not be altered or amended except by an instrument in writing signed by both
parties.
This agreement may be terminated, with respect to any Fund or Funds:
(a) by Touchstone, either (i) at the end of the calendar quarter after
December 31, 1995 during which Touchstone has given at least 30 days
advance written notice to the Trust, on behalf of each such Fund, that it
is terminating this agreement as to such Fund or (ii) at such time as
Touchstone ceases to be the investment advisor to each such Fund's
Corresponding Portfolio. In the event of a termination pursuant to the
foregoing clause (i) of the foregoing sentence, each party's obligations
hereunder shall terminate as to each such Fund as of the end of the
calendar quarter in which the notice of termination is given; in the event
of a termination pursuant to clause (ii) of the preceding sentence
Touchstone's obligations hereunder
-3-
<PAGE> 4
shall terminate as to each such Fund as of the effective date of its
termination as investment advisor.
(b) by the Board, or by the vote of a "majority of the outstanding
voting securities" (as such phrase is defined in the 1940 Act) of each such
Fund, as of the end of the calendar quarter during which the Trust, on
behalf of each such Fund, has given at least 30 days advance written notice
to Touchstone that it is terminating this agreement as to each such Fund.
10. SUBCONTRACTING BY TOUCHSTONE. Touchstone may subcontract for the
performance of Touchstone's obligations hereunder with any one or more persons;
provided, however, that Touchstone shall be as fully responsible to the Trust
for the acts and omissions of any subcontractor as it would be for its own acts
or omissions.
11. SEVERABILITY. If any provision of this Agreement shall become or shall
be found to be invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
12. NOTICE. Any notices under this Agreement shall be in writing addressed
and delivered personally (or by telecopy) or mailed postage-paid, to the other
party at such address as such other party may designate in accordance with this
paragraph for the receipt of such notice. Until further notice to the other
party, it is agreed that the address of the Trust and touchstone shall be 318
Broadway, Cincinnati, Ohio 45202.
13. MISCELLANEOUS. Each party agrees to perform such further actions and
execute such further documents as are necessary to effectuate the purposes
hereof. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Ohio. The captions in this Agreement are
included for convenience only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts shall, together, constitute only
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written. The
undersigned has executed this Agreement not individually, but as an officer
under the Trust's Declaration of Trust, and the obligations of this Agreement
are not binding upon the Trust's Trustees, its officers, or shareholders of the
Funds individually, but bind only the Trust estate.
-4-
<PAGE> 5
SELECT ADVISORS TRUST C
By: /s/ Edward G. Harness, Jr.
--------------------------------
Name: Edward G. Harness, Jr.
Title: President
TOUCHSTONE ADVISORS, INC.
By: /s/ Jill T. McGruder
--------------------------------
Name: Jill T. McGruder
Title: Vice President
-5-
<PAGE> 1
Exhibit (9D)
SELECT ADVISORS TRUST C
AMENDMENT NO. 1 TO THE
SPONSOR AGREEMENT
AMENDMENT, dated as of January 1, 1995 between SELECT ADVISORS TRUST C,
a Massachusetts business trust (the "Trust"), and TOUCHSTONE ADVISORS, INC., a
Ohio corporation ("Touchstone"),
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended, (the "1940
Act");
WHEREAS, the Trust has engaged Touchstone to sponsor, provide certain
management services with respect to each series of the Trust (each a "Fund")
pursuant to the Sponsor Agreement dated as of September 9, 1994 (the
"Agreement") between the Trust and Touchstone; and
WHEREAS, the Trust and Touchstone wish to amend the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as set forth in the Agreement and herein, acting pursuant
to Section 9 of the Agreement, the Trust and Touchstone hereby amend Section 5
of the Agreement as follows:
5. OPERATING EXPENSE WAIVERS OR REIMBURSEMENT.
Touchstone shall waive all of a portion of its fee pursuant to this
Sponsor Agreement and/or reimburse a portion of the operating
expenses (including amortization of organization expense but
excluding interest, taxes, brokerage commissions and other portfolio
transaction expenses, capital expenditures and extraordinary
expenses) ("Expenses") of each Fund of the Trust such that after
such reimbursement the aggregate Expenses of the Fund and the
corresponding investment company in which the Fund invests all of
its investable assets (the "Corresponding Portfolio") shall be equal
on an annual basis to the following percentages of the average daily
net assets of the Fund for the Fund's then-current fiscal year:
Emerging Growth Fund C, 2.05%; International Equity Fund C, 2.35%;
Growth & Income Fund C, 2.05%; Balanced Fund C, 2.10%; Income
Opportunity Fund C, 1.95%; Bond Fund C, 1.65%; and Municipal Bond
Fund C, 1.80%.
Touchstone's obligations in this Section 5 may be terminated,
with respect to any Fund, by Touchstone as of the end of any
calendar quarter after December 31, 1995, upon at least 30 days
prior written notice to the Trust (an "Expense Cap Termination").
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of January 1, 1995. The undersigned has
executed this Agreement not individually, but as an officer under the Trust's
Declaration of Trust, and the obligations of this Amendment are not binding upon
the Trust's Trustees, its officers, or investors in the Funds individually, but
bind only the Trust estate.
<PAGE> 2
SELECT ADVISORS TRUST C
By /s/ Edward G. Harness, Jr.
--------------------------------------------
Name: Edward G. Harness, Jr.
Title: President and Chief Executive Officer
TOUCHSTONE ADVISORS, INC.
By /s/ Jill T. McGruder
--------------------------------------------
Name: Jill T. McGruder
Title: Executive Vice President
<PAGE> 1
Exhibit (10)
JAMES B. CRAVER
6 ST. JAMES AVENUE
NINTH FLOOR
BOSTON, MASSACHUSETTS 02116
617-423-0800
September 22, 1994
Select Advisors Trust C
318 Broadway
Cincinnati, Ohio 45202
Ladies and Gentlemen:
RE: REGISTRATION OF SHARES OF BENEFICIAL INTEREST UNDER RULE 24F-2 OF THE
INVESTMENT COMPANY ACT OF 1940
This opinion is being furnished in connection with the filing of the
registration statement on Form N-1A under the Investment Company Act of 1940, as
amended (the "1940 Act"), and the Securities Act of 1933, as amended (the "1933
Act"), of Select Advisors Trust C, a Massachusetts business trust (the "Trust"),
and in conjunction with the registration, pursuant to Rule 24f-2 under the 1940
Act, of an indefinite number of Shares of Beneficial Interest (par value
$0.00001 per share) (the "Shares") of the Trust's initial series -- Touchstone
Emerging Growth Fund C, Touchstone Income Opportunity Fund C, Touchstone
International Equity Fund C, Touchstone Bond Fund C, Touchstone Growth & Income
Fund C, Touchstone Balanced Fund C and Touchstone Municipal Bond Fund C -- under
the 1933 Act.
This opinion is limited solely to the laws of the Commonwealth of
Massachusetts as applied by courts in such Commonwealth. This opinion is limited
solely to the Shares as reflected on the audited balance sheets of the Trust
dated September 1, 1994. I understand that the foregoing limitation is
acceptable to you.
I have examined copies of the Trust's Declaration of Trust, its
By-Laws, resolutions adopted by its Board of Trustees and such other records and
documents as I have deemed necessary for purposes of this opinion.
Based upon the subject of the foregoing, please be advised that it is
my opinion that the Trust's Shares are legally issued and (to the extent still
outstanding) are fully paid and non assessable, except that, as set forth in the
Trust's registration statement as currently in effect filed with the Securities
and Exchange Commission pursuant to the 1933 Act, shareholders of the Trust may
under certain circumstances be held personally liable for its obligations.
Very truly yours,
/s/ James B. Craver
James B. Craver
<PAGE> 1
Exhibit (13)
Touchstone Advisors, Inc.
318 Broadway
Cincinnati, Ohio 45202
(800) 669-2796
September 15, 1994
Select Advisors Trust C
318 Broadway
Cincinnati, Ohio 45202
Ladies and Gentlemen:
With respect to our purchase from you of shares of beneficial interest
(the "Initial Shares") of each of the following series (each a "Fund") of Select
Advisors Trust C (the "Trust"):
Touchstone Emerging Growth Fund C
Touchstone International Equity Fund C
Touchstone Growth & Income Fund C
Touchstone Balanced Fund C
Touchstone Income Opportunity Fund C
Touchstone Bond Fund C
Touchstone Municipal Bond Fund C
we hereby advise you that we are purchasing the Initial Shares of each Fund with
no intention to dispose of them either through resale to others or redemption by
the Trust. The Trust will invest all of the investable assets of each Fund in
the corresponding series (the "Corresponding Portfolio") of Select Advisors
Portfolios, an investment company registered under the Investment Company Act of
1940, as amended.
The amount paid by a Fund on any redemption by us, or any other
then-current holder of that Fund's Initial Shares, will be reduced by a portion
of any unamortized organization expenses of the Fund and the Corresponding
Portfolio, such portion to be determined by the proportion of the number of
Initial Shares of the Fund redeemed to the number of the Initial Shares of the
Fund then outstanding after taking into account any prior redemptions of the
Initial Shares of the Fund. The amount of such reduction in excess of the
unamortized organization expenses of the Fund shall be contributed by the Fund
to the Corresponding Portfolio.
Very truly yours,
TOUCHSTONE ADVISORS, INC.
By /s/ Edward G. Harness, Jr.
---------------------------------
Name: Edward G. Harness, Jr.
Title: President
<PAGE> 1
Exhibit (15)
DISTRIBUTION AND SERVICE PLAN
DISTRIBUTION AND SERVICE PLAN, dated as of July 25, 1994, of Select
Advisors Trust C, a Massachusetts business trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Trust has been organized to operate as an open-end
management investment company and is registered under the Investment Company Act
of 1940, as amended (collectively with the rules and regulations promulgated
thereunder, the "1940 Act"); and
WHEREAS, the Shares of Beneficial Interest (par value $0.00001 per
share) of the Trust (the "Shares") are divided into separate series (each, along
with any series which may in the future be established and with respect to which
this Distribution and Service Plan (the "Plan") is approved, is a "Series"); and
WHEREAS, the Trust intends to distribute the Shares of each Series in
accordance with Rule 12b-1 under the 1940 Act ("Rule 12b-1"), and desires to
adopt this Plan as a plan of distribution pursuant to such Rule; and
WHEREAS, the Trust desires to engage Touchstone Securities, Inc., a
Ohio corporation (along with any successor distributor, the "Distributor"), to
provide (or cause to be provided) certain distribution and shareholder services
for the Trust; and
WHEREAS, the Trust desires to enter into a distribution agreement (in
such form as may from time to time be approved by the Board of Trustees of the
Trust in the manner specified in Rule 12b-1 (the "Distribution Agreement")) with
the Distributor, whereby the Distributor will provide facilities and personnel
and render services to the Trust in connection with the offering and
distribution of the shares of each Series; and
WHEREAS, the Board of Trustees, in considering whether the Trust should
adopt and implement this Plan, has evaluated such information as it deemed
necessary to an informed determination as to whether this Plan should be adopted
and implemented and has considered such pertinent factors as it deemed necessary
to form the basis for a decision to use assets of the Series of the Trust for
such purposes, and has determined that there is a reasonable likelihood that the
adoption and implementation of this Plan will benefit each Series and its
shareholders.
NOW, THEREFORE, the Board of Trustees hereby adopts this Plan for the
Trust as a plan of distribution in accordance with Rule 12b-1, on the following
terms and conditions:
1. As specified in the Distribution Agreement, the Trust will reimburse
the Distributor for costs and expenses incurred in connection with the
distribution and marketing of Shares of the Series. Such distribution costs
could include, without limitation, advertising expenses and the expenses of
printing (excluding typesetting) and distributing prospectuses and reports used
for sales purposes, expenses of preparing and printing sales literature;
expenses of sales employees or agents of the Distributor, including salary,
commissions, travel and related expenses, payments to broker-dealers, banks or
other financial institutions ("Dealers") for services in connection with the
distribution of Shares, including service fees and trail or maintenance
commissions calculated with reference to the average daily net asset value of
<PAGE> 2
Shares held by shareholders who have a brokerage or other service relationship
with the Dealer or institution receiving such fees; and other
distribution-related expenses whether or not specifically required to be made by
the Distributor pursuant to the Distribution Agreement.
2. The Trust may pay the Distributor distribution fees from each Series
not to exceed on an annual basis 0.75% of the average daily net assets of the
Series for its then-current fiscal year (and with regard to future Series, such
percentage of the average daily net assets of such Series as is agreed to by the
Trust and the Distributor) as reimbursement for costs and expenses incurred in
connection with the distribution and sales (including providing or causing to be
provided personal service and shareholder account maintenance services) of
Shares of the respective Series. To the extent such expenses exceed the stated
limit, the Distributor will bear such expenses.
3. The Trust may also pay the Distributor service fees from each Series
not to exceed on an annual basis 0.25% of the average daily net assets of the
Series for its then-current fiscal year (and with regard to future Series, such
percentage of the average daily net assets of such Series as is agreed to by the
Trust and the Distributor) in connection with providing (or causing to be
provided) personal service and shareholder account maintenance services.
4. The Trust shall pay or cause to be paid all fees and expenses of any
independent auditor, legal counsel, administrator, sponsor, transfer agent,
custodian, registrar or dividend disbursing agent of the Trust; expenses of
distributing and redeeming Shares and (other than the service fees covered by
the Plan) servicing shareholder accounts; expenses of preparing, printing and
mailing prospectuses, shareholder reports, notices, proxy statements and reports
to governmental officers and commissions and to shareholders of the Trust;
insurance premiums; expenses of calculating the net asset value of Shares;
expenses of shareholder meetings; and expenses related to the issuance,
registration and qualification of Shares.
5. Nothing herein contained shall be deemed to require the Trust to
take any action contrary to its Declaration of Trust or By-Laws or any
applicable statutory or regulatory requirement to which it is subject or by
which it is bound, or to relieve or deprive the Board of Trustees of the
responsibility for and control of the conduct of the affairs of the Trust.
6. This Plan shall become effective upon (a) approval by a vote of at
least a "majority of the outstanding voting securities" of the Trust, and (b)
approval by a vote of the Board of Trustees and a vote of a majority of the
Trustees who are not "interested persons" of the Trust and who have no direct or
indirect financial interest in the operation of the Plan or in any agreement
related to the Plan (the "Qualified Trustees"), such votes to be cast in person
at a meeting called for the purpose of voting on this Plan.
7. This Plan shall continue in effect indefinitely; provided, however,
that such continuance is subject to annual approval by a vote of the Board of
Trustees and a majority of the Qualified Trustees, such votes to be case in
person at a meeting called for the purpose of voting on continuance of this
Plan. If such annual approval is not obtained, this Plan shall expire on the
date which is fifteen months after the date of the last approval.
8. This Plan may be amended at any time by the Board of Trustees,
provided that (a) any amendment to increase materially the amount that may be
expended from the assets of any Series for the services described herein shall
be effective only upon approval by a vote of a
<PAGE> 3
"majority of the outstanding voting securities" of such Series, and (b) any
material amendment of this Plan shall be effective only upon approval by a vote
of the Board of Trustees and a majority of the Qualified Trustees, such votes to
be cast in person at a meeting called for the purpose of voting on such
amendment. This Plan may be terminated at any time with respect to any Series by
a vote of a majority of the Qualified Trustees or by a vote of a "majority of
the outstanding voting securities" of such Series.
9. The Trust and the Distributor each shall provide the Board of
Trustees, and the Board of Trustees shall review, at least quarterly, a written
report of the amounts expended under this Plan and the purposes for which such
expenditures were made.
10. While this Plan is in effect, the selection and nomination of
Trustees who are not "interested persons" of the Trust shall be committed to the
discretion of the Trustees who are not "interested persons" of the Trust.
11. For the purposes of this Plan, the terms "interested persons" and
"majority of the outstanding voting securities" are used as defined in the 1940
Act. In addition, for purposes of determining the fees payable to the
Distributor, the value of the net assets of any Series shall be computed in the
manner specified in the then-current prospectus and statement of additional
information applicable to Shares of such Series.
12. The Trust shall preserve copies of this Plan, and each agreement
related hereto and each report referred to in paragraph 8 hereof (collectively,
the "Records") for a period of six years from the end of the fiscal year in
which such Record was made, and each such Record shall be kept in an easily
accessible place for the first two years of said record-keeping.
13. This Plan shall be construed in accordance with the laws of the
Commonwealth of Massachusetts and the applicable provisions of the 1940 Act.
14. If any provision of this Plan shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Plan shall not
be affected thereby.
<PAGE> 1
Exhibit (16)
SELECT ADVISORS TRUST C
TOTAL RETURN
Quotations of a Fund's average annual total return will be expressed in
terms of the average annual compounded rate of return of a hypothetical
investment in such Fund over periods of 1, 5 and 10 years (up to the life of the
Fund), calculated pursuant to the following formula:
P (1 + T)n = ERV
(where P = a hypothetical initial payment of $1,000, T = the average annual
total return, n = the number of years and ERV = the ending redeemable value of a
hypothetical $1,000 payment made at the beginning of the period). All total
return figures will reflect the deduction of Fund expenses (net of certain
expenses reimbursed) on an annual basis and will assume that all dividends and
distributions are reinvested when paid.
30-DAY YIELD
Quotations of yield will be based on a Fund's investment income per share earned
during a particular 30-day period, less expenses accrued during the period ("net
investment income") and will be computed by dividing net investment income by
the maximum offering price per share on the last day of the period according to
the following formula:
30-DAY YIELD = 2[(a-b/cd + 1)6 - 1]
(where a = dividends and interest earned during the period, b = expenses accrued
for the period (net of any reimbursements), c = the average daily number of
shares outstanding during the period that were entitled to receive dividends and
d = the maximum offering price per share on the last day of the period).
30-DAY TAX-EQUIVALENT YIELD
30-Day Yield
30-DAY TAX-EQUIVALENT YIELD = ------------
1 - Tax Rate
