Miller Financial Services, LLC Advisory Services Agreement This Agreement (the Agreement ) is made and entered into, by and between, Miller Financial Services, LLC (the Advisor ) and xx (the Client ), with an effective date of xx, 2012. By signing this Agreement, Client acknowledges engaging Advisor to provide advisory services for Client s qualified and non-qualified retirement plan (the Plan ) in accordance with the following terms and conditions: 1. Investment Discretion and Limitations. Advisor understands that it is not authorized to invest, sell, or reinvest Plan assets. 2. Investment Risk. Advisor does not guarantee the future performance of the Plan or any specific level of performance, the success of any investment or success of any strategy. 3. Custody. Advisor does not maintain custody of Plan assets or securities, nor is Advisor authorized to hold or receive any stock, bond or other security or investment certificate or cash (except in the payment of its advisory fee) that is part of the Client s Plan. Custody of Account assets will be maintained with the independent custodian selected by Client (the "Custodian"), and Client will be solely responsible for paying all fees or charges of the Custodian. 4. Advisory Fees. Client will pay Advisor a fee for advisory services unless paid by the Plan. The fee will be calculated as a percentage of the market value of all assets in Client's Plan on the last trading day of each month or calendar quarter. The advisory fee is payable monthly or quarterly in arrears. Client understands that Plan assets invested in shares of mutual funds or other investment companies ("funds") will also be subject to additional advisory and other fees and expenses, as set forth in the prospectuses of those funds, paid by the funds, but ultimately borne by the investor. The Advisor shall not be compensated on the basis of a share of capital gains upon or capital appreciation of the funds or any portion of the funds of the Plan. The fee schedule is set forth in Exhibit A. All payments are due to Adviser within thirty days after the date of the invoice. If the Client or other Plan fiduciary determines that the Plan will pay Advisor s fees, then upon request by Client or other Plan fiduciary, Adviser will send an invoice for its fees directly to Client or such other Plan fiduciary. Client or such other Plan fiduciary must authorize the custodian of the Plan s assets to charge the Plan for the amount of Adviser s fees and to remit such fees to Adviser. Client agrees to direct the custodian, or to cause such other Plan fiduciary to direct the custodian, to pay such fees directly to Adviser. All payments are due to Adviser within thirty days after the date of the invoice. Client will have the opportunity to object to the fee amount or method of calculation by telephone or in writing, should the client believe that such is erroneous. The account statements provided by the Qualified Custodian (not less frequently than quarterly) to the Client will reflect all fee deductions. The Client may revoke this fee deduction authorization in writing at any time. - 1 -
5. Confidentiality. Except as otherwise agreed in writing or as required by law, Advisor will exercise the highest reasonable degree of due diligence and care with respect to keeping confidential all Client information. In addition, Client grants Advisor authority to discuss, disclose, and provide confidential Client information to outside attorneys, auditors, consultants and any other professional advisors retained by Advisor, but only to the extent reasonably necessary for them to assist in the management of this Agreement and Client s Plan. 6. Services to Other Clients. Client understands and agrees that Advisor performs advisory services for various other clients. Client agrees that Advisor may give advice or take action in the performance of its duties with respect to any of its other clients which may differ from advice given to or action taken on behalf of Client. 7. ERISA Accounts. Because the Plan is subject to the provisions of ERISA, Client acknowledges that Client is authorized to exercise control and management of the assets held in the Plan. Client represents that Client is independent of Advisor and its affiliates and is capable of making independent and informed decisions concerning the plan. Client represents that the Plan and any instructions given regarding the Plan are consistent with applicable Plan documents, including any investment policies, guidelines or restrictions. Client will provide Advisor with a copy of all relevant documents and agrees that the advisory services Client has selected are consistent with those documents. Client shall notify Advisor promptly in writing of any changes to the Plan investment policies, guidelines or restrictions or other Plan documents. Advisor is not responsible for Plan administration or for performing any other duties that are not expressly set forth in this Agreement. Each party to this agreement shall obtain and maintain, at its own expense, any insurance or bonds it deems necessary to cover itself and any of its affiliates, officers, directors, employees, and agents in connection with this Agreement. Advisor agrees that it has provided Client or other Plan fiduciaries with all disclosures that are needed, or would be needed, for the Plan to avoid prohibited transactions under 29 C.F.R. 2550.408b-2, including interim final regulations at 29 C.F.R. 2550.408b-2(c) as published in the federal register on July 16, 2010, as if such regulations were in effect at the time this Agreement is signed. Advisor agrees to furnish Client or other Plan fiduciaries with such information and documentation that Client or such other Plan fiduciaries reasonably request to fulfill their reporting and disclosure obligations under ERISA. Advisor shall provide such information and documentation no later than three days after receipt of any such request. Advisor agrees that it will furnish to, and make available for, Participants and beneficiaries of any Plan that is subject to Part 4 of Title I of ERISA, all investment-related information required to be furnished or made available under 29 C.F.R. 2550.404a-5(d)(1) (3) at such time and in such manner as required under such regulations. Advisor further agrees it will furnish to Client or other Plan fiduciary, within three days after receipt of a request from Client or such other Plan - 2 -
fiduciary, such information or documentation required to be furnished to any participant or beneficiary under 29 C.F.R. 2550.404a-5(d)(4). 8. Plan Advisory Services. Advisor will generally establish Client needs and objectives relative to the Plan through an initial meeting to collect data and review Plan information. Ongoing services to the Plan may include recommendations regarding the selection and review of unaffiliated mutual funds that are, in the judgment of Advisor, suitable for Plan assets to be invested in. Advisor will periodically review the investment options selected by the Plan and make recommendations to keep or replace investment options as appropriate. Client is under no obligation to follow Advisor recommendations. Advisor agrees and understands that, under this Agreement, Advisor will make recommendations to the Plan or its agents on investing in, purchasing or selling securities or other property, or give advice as to their value on a regular basis, pursuant to a mutual understanding that the advice will serve as a primary basis for investment decisions related to the Plan, and will be individualized to the particular needs of the Plan. Services available include Advisor providing financial education to Plan participants. The scope of education provided to participants at the request of Client will not constitute investment advice within the meaning of ERISA and participant education will relate to general principles for investing and information about the investment options currently in the Plan. Advisor may also participate in initial enrollment meetings and periodic workshops and education meetings as requested by Client and agreed upon between Client and Advisor. Adviser will not provide investment advice to any participant of either Plan with respect to any Plan assets or investments, including any participant-directed investments. 9. Conflicts of Interest. Advisor represents that, except for those expressly identified on Exhibit A, it has no relationship with any money manager, any mutual fund, or any other investment option that it recommends, considers for recommendation, or mentions to either Plan. Moreover, Advisor represents that it receives no fee or other compensation, directly or indirectly, from any money manager, mutual fund, or any other investment option, except for those expressly identified on Exhibit A, that it recommends, considers for recommendation, or mentions to either Plan. Except for those expressly identified on Exhibit A, Advisor has no relationship with any broker-dealer under which Advisor or any affiliate of Advisor will benefit if money managers place trades for their clients with such broker-dealers. 10. Registration. Advisor represents that it is registered as an investment Advisor under the Michigan Securities Act ( Act ). 11. Assignment. Neither party may assign this Agreement without the prior written consent of the other party. 12. Governing Law. This Agreement is made and shall be construed in accordance with the laws of the State of Michigan. - 3 -
13. Client Representations. Client represents that it has full and unrestricted power to employ Advisor and that the person executing this Agreement on your behalf has full power and authority to do so and that it is binding. 14. Voting of Securities. Advisor will not have or accept authority to exercise power with respect to client securities. Advisor will not vote proxies on behalf of the client. Advisor will make recommendations with respect to any proxies that are appurtenant to Plan assets. 15. Termination. This Agreement shall be in effect until either party gives written notice to the other party of its intention to terminate this Agreement. This Agreement may be terminated, without penalty, upon at least 90 days written notice by either party. Termination of this Agreement will not affect (a) the validity of any action previously taken by Advisor under this Agreement; (b) liabilities or obligations of the parties from transactions initiated before termination of this Agreement; or (c) Client s obligation to pay advisory fees (pro rated through the date of termination). Upon termination of this Agreement, Advisor shall perform no functions whatsoever, and further management shall be the sole responsibility of Client. Anything in this Agreement to the contrary notwithstanding, Client may terminate this Agreement within five (5) business days after entering into this Agreement without penalty. 16. Liability. Advisor will not be liable to Client for: any loss that Client may suffer by reason of any action taken or omitted in good faith by Advisor with that degree of care, skill, prudence, and diligence under the circumstances that a prudent person acting would use; any loss arising from Advisor's adherence to Client's written or oral instructions; or any act or failure to act by the Custodian, any broker or dealer to which Advisor directs transactions for the Account, or by any other third party. The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights that Client may have under federal or state laws. Notwithstanding the foregoing, Advisor agrees to indemnify and hold Client harmless from and against all losses, costs, expenses, damages, liabilities and claims, including reasonable counsel fees and expenses, incurred by Client in connection with third party claims relating to or arising out of Adviser s performance of services under this Agreement, if it is found by a court of law or other tribunal (including any arbitrator) that Adviser breached its fiduciary duties under ERISA or its standard of care under the Advisers Act in connection with this Agreement. This provision shall survive the termination of this Agreement. 17. Form ADV/Brochure Delivery. Client acknowledges receipt of Part 2A and 2B of Advisor s Brochure, or alternate disclosure brochure. Advisor Agrees to perform the investment advisory services described in Form ADV Part 2 Brochure, and agrees to use the third party broker- - 4 -
dealer as approved and directed by Client subject to limitations, restrictions or conflicts of interest. 18. Privacy Notice. In compliance with the Securities and Exchange Commission s Regulation S-P (Privacy of Consumer Financial Information), which was adopted to comply with Section 504 of the Gramm-Leach-Bliley Act (the G-L-B Act ), Advisor has disclosed to Client its policies and procedures regarding the use and safekeeping of personal information, including, if applicable, how such Client may avoid ( opt out of) having his/her information shared. By signing below, Client acknowledges that it has read and understands the initial delivery of Advisor s annual privacy notice. 19. Electronic Delivery. Client authorizes Adviser to distribute materials and information to client in an exclusively electronic format to the email address provided in this agreement or as otherwise provided by Client. 20. Communications and Notices. All notices, requests, demands and other communications hereunder shall be deemed to be duly given if delivered by hand, or if mailed by certified or registered mail with postage prepaid: If to the Advisor: Miller Financial Services, LLC Attn: Joseph P. Miller Retirement Plans 801 W. Michigan Avenue Marshall, MI 49068 If to the Client: xxx or to such other address as either party may provide to the other in writing. Advisor may rely on any written notice reasonably believed to be genuine and authorized. 21. Entire Agreement. This Agreement represents the entire Agreement between the parties and may only be changed or amended by an agreement in writing signed by all parties. In the event of any conflict between this Agreement and any Exhibit to this Agreement, including Advisor s Form ADV Part 2 Brochure, this Agreement shall control. ACCEPTED BY CLIENT(S) Dated: By: (Print Name Here) - 5 -
(Sign Name Here) ACCEPTED BY MILLER FINANCIAL SERVICES, LLC Dated: By: Joseph P. Miller (Print Name Here) (Sign Name Here) - 6 -
EXHIBIT A ADVISORY SERVICES AGREEMENT 1. Client: 2. Services: Establishment of Due Diligence Process Performance Reports and Investment Recommendations Performance Monitoring of the Investment Manager(s) Fiduciary Education Services to Plan Committee Participant Education Services Additional Services: 3. Plan Name(s): 4. Plan Type: 5. Annual Compensation: 6. Bill To: (Choose One) Client Custodian Defined Benefit Plan Defined Contribution Plan Non-Qualified Deferred Compensation Plan Defined Benefit Plan % of Plan Assets Defined Contribution Plan $ Annual Fee ($ Quarterly) - 7 -