1. SERVICES TO BE PROVIDED BY FBS. Envestnet hereby authorizes FBS to market and promote to independent financial services firms whose customers currently, or may in the future, maintain securities accounts in custody with FBS or an affiliate (each such firm, an “Advisor”), Envestnet’s investment advisory services described on Exhibits A, B, C and E and Envestnet’s reporting services described in Exhibit D attached hereto, as well as Envestnet’s proprietary software platform described in Section 2(a) below (collectively, “Services”), in accordance with this Agreement and with FBS’s determination as to which Services will be available in each FBS program offered to the Advisors. The first date on which the Services will be available to Advisors will be determined by mutual agreement of the parties hereto. Nothing in this agreement shall require FBS to recommend the Services to any Advisor or customer of Advisor. FBS acknowledges that prior to providing Services to an Advisor, Envestnet will require that: (a) Envestnet, FBS and such prospective Advisor enter into a tri-party agreement (the “Tri-Party Agreement”) pursuant to which each Advisor enter into an agreement with Envestnet whereby the Advisor makes certain representations, warranties and covenants to Envestnet prior to marketing Envestnet’s Services (as used in this Agreement, “Clients” refers to individuals or entities who enter into a written agreement to receive Envestnet’s Services, and “Custodian” refers to FBS or an affiliate with respect to Clients’ accounts under custody with FBS or such affiliate); (b) no written agreement with any prospective Client referred to Envestnet by an Advisor shall become effective unless and until such agreement is accepted by Envestnet at its offices in Chicago, Illinois, and Envestnet shall be entitled to accept or reject any such agreement in its sole discretion (except that Envestnet will not reject or fail to accept any such application unless Envestnet has a commercially reasonable basis for doing so (taking into account the purposes of this Agreement (and the related agreements) and the parties’ relationship contemplated by this Agreement (and the related agreements) and without any obligation to such Advisor or FBS or to the prospective Client; (c) such Advisor shall provide each Client with a written description of Envestnet’s Services in accordance with materials provided to FBS or directly to the Advisor by Envestnet, along with an Advisory Agreement, in a form to be determined by Envestnet from time to time, and such other materials as may be required by law to be provided to each Client, including either Part II of Envestnet’s Form ADV or Schedule H of Envestnet’s Form ADV, as applicable (d) the relevant Advisor conducts a suitability analysis or other risk profiling of Client prior to referring Client to Envestnet or

 

proceeding with the selection of the Manager Resource Wrap Program or Multi-Manager Accounts Program or Manager Resource Network described in Exhibits A and B (“Manager Resource Wrap Program”, “Multi-Manager Accounts Program,” and Manager Resource Network respectively) or the Wrap Fee Program described in Exhibit C (“Wrap Fee Program,” and all four together, the “Programs”). Such suitability analysis shall consist of a determination that the Client has sufficient assets available to invest in the relevant Program(s); (e) the relevant Advisor assists Client in completing and submitting to Envestnet the Advisory Agreement and any other application or other materials that may be required for Client’s participation in such Program(s); (f) each Advisor must separately agree with Envestnet to (i) make sure that each Client properly completes an Advisory Agreement (including, if necessary, the signature required in the Solicitor’s Disclosure attachment to the Advisory Agreement); (ii) contact each Client at least once annually to determine whether the Client Profile (defined below) has changed; (iii) notify each Client at least once each quarter of the need to advise such Advisor in the event that information in the Client Profile has changed; and (iv) be available during business hours for consultation regarding Client’s financial condition and the ongoing suitability of the relevant Program(s); and (g) each Advisor must also agree to notify Envestnet promptly of any changes in the Client Profile or of any other information relevant to Client’s account or the suitability of any Program for Client, Upon Envestnet’s notice to an Advisor of material changes to Client’s account, such Advisor will work with Envestnet to review the continued appropriateness of any Program. Envestnet shall be entitled to rely, without further investigation, upon the accuracy of all information furnished by each Client or by an Advisor on behalf of any Client. In making Envestnet’s Services available to Advisors and their Clients under the terms of this Agreement, FBS will perform the following activities: (y) overall administrative service and support to Advisors with respect to the Services and the Customized Envestnet Platform (as described in Exhibit 1); and (z) marketing and promoting the availability of Envestnet’s Services and the Customized Envestnet Platform to Advisors using FBS’s branding in a format mutually agreeable to Envestnet and FBS. Envestnet acknowledges and agrees that in making Envestnet’s Services available to Advisors and their Clients under the terms of this Agreement, FBS: (a) is not providing investment advice or investment advisory services to Envestnet, any Advisor, or any Client; (b) will not undertake to review or render any opinion regarding

the accuracy or adequacy of any disclosure, information or other communication among Envestnet, an Advisor, a Client or a prospective Client; (c) renders no opinion regarding the adequacy or propriety of the agreements and other documents used by Envestnet in the provision of Services to Advisors or Clients and is not responsible for any person’s compliance with the terms thereof; (d) renders no opinion regarding the adequacy of any services described on any exhibit to this Agreement for the Services or any Program offered by Envestnet for any particular Advisor or Client; and (e) will not undertake to evaluate the suitability of the Services for any Advisor or Client, or any investment advice rendered in the provision of the Services.

2. LICENSE OF ENVESTNET PLATFORM.

(a) License Grant. Subject to the terms and conditions set forth herein, Envestnet grants FBS and each Advisor a limited (as set forth in this Section 2), non-exclusive, non-transferable (except as permitted by Section 13(m) below), non-sublicensable and non-assignable license (“License”) during the Term (as defined in Section 3 below) to access and use the Customized Envestnet Platform (as defined below) in connection with Envestnet and FBS providing certain business services to FBS’s affiliated Advisors and their Clients. As used herein, “Customized Envestnet Platform” shall mean the versions of Envestnet’s proprietary software platform that Envestnet generally makes available to financial services firms (the “Base Envestnet Platform”) as enhanced and customized for FBS as described in Exhibit I attached hereto. Envestnet shall perform the work to create the Customized Envestnet Platform at no charge to FBS or any Advisor (“Initial Customization”); provided that any customization requested by FBS or an Advisor beyond the Initial Customization shall be charged to FBS or the Advisor, as applicable, at Envestnet’s rates for such services as set forth in Exhibit I. Envestnet shall host, operate and maintain the Customized Envestnet Platform in accordance with the terms, conditions and standards set forth in Exhibit F.

(b) Ownership and Restrictions.

(i) Envestnet owns and shall retain all right, title, and interest in all aspects of the Envestnet Technology (as defined below), including any intellectual property rights therein. FBS agrees that other than the license granted pursuant to this section or as otherwise specified in this Agreement, neither FBS nor any Advisor shall obtain any other right, title or interest in the Envestnet Technology by virtue of this Agreement and the activities contemplated hereunder. The license granted pursuant to this section shall not include the right to copy, modify, merge, publish, sell, transfer, decompile or reverse engineer the Customized Envestnet Platform or any aspect thereof, provided however, that FBS may copy those aspects of the design of the Customized Envestnet Platform that were made to conform the Envestnet Technology to FBS’s “style guide”.

 

(ii) FBS (or its licensors) owns and shall retain all right, title and interest in all aspects of the FBS Technology (as defined below), including any intellectual property rights therein. Envestnet agrees that other than as specified in this Agreement, Envestnet shall not obtain any right, title or interest in any of the FBS Technology by virtue of this Agreement and the activities contemplated hereunder.

(c) No Linking or Framing. Subject to any mutual agreement of the parties to the contrary, FBS will not solicit, encourage or permit any third-party Internet site or on-line service to link directly to any part of the Envestnet Technology, and will not authorize or permit any third party Internet site or on-line service to “frame” the Envestnet Technology (e.g., by incorporating content from the Envestnet Technology into any third party’s Internet site) provided, however, that FBS’s Internet sites and on-line services may include a hyperlink to, and may “frame”, the Customized Envestnet Platform, and Advisors may link to and/or “frame” the Customized Envestnet Platform or otherwise have one or more of their applications access the Customized Envestnet Platform. In the event that a third party does link to the Envestnet Technology or “frame” the Envestnet Technology (other than as permitted above) without having been authorized by Envestnet to do so and such third party learned of the Envestnet Technology through FBS and has a business relationship with FBS, FBS agrees to cooperate with any reasonable request for assistance from Envestnet to cause such third party to cease and desist from such linking or “framing.”

(d) For purposes of this Agreement, “Envestnet Technology” means (i) the Base Envestnet Platform, (ii) the Customized Envestnet Platform and (iii) any and all third-party materials incorporated into or made available by Envestnet in connection with the Customized Envestnet Platform, except with respect to any item described in the pursuant to clause (ii) or (iii), any materials or items that represent FBS Technology (as defined below).

(e) For purposes of this Agreement, “FBS Technology” shall mean:

(i) FBS’s Advisor CHANNEL Web Site, AdvisorChannel software and Fidelity Advisor Workstation applications and all other software applications licensed to FBS (other than the Customized Envestnet Platform) used by FBS or provided by FBS to Advisors and /or Clients;

(ii) FBS’s “style guide” described in Exhibit I; and

(iii) all materials, including third-party materials, provided to Envestnet by FBS that are incorporated into the Customized Envestnet Platform or are made available to Advisors and Clients via the Customized Envestnet Platform.

(f) Envestnet shall design and develop Customized Envestnet Platform in accordance with the Specifications (as defined in Exhibit I) that are developed as described in Exhibit I.

(g) Envestnet shall comply with the security standards and the data privacy requirements set forth in Exhibit J attached hereto.

(h) As used in this Agreement, the “Launch Date” shall mean the date on which all work to create the initial version of the Customized Envestnet Platform is complete and such version of the Customized Envestnet Platform is ready to be deployed by FBS to Advisors for production use.

(i) Envestnet shall not make or offer to make the Customized Envestnet Platform, or any of the Initial Customizations, available to any third party other than those Advisors which have entered into a Tri-Party Agreement or such other agreement as may be agreed to by FBS and Envestnet.

(j) Intentionally deleted

(k) Envestnet agrees that, through June 30, 2007, provided that this Agreement is in effect during that time, it will not develop for competitors of FBS who provide services to Registered Investment Advisors (“Competitors”) a customized platform to deliver a combination of its base products and services substantially similar to that described herein. For purposes of this agreement, “Registered Investment Advisor” is defined as an investment advisor registered under the Investment Advisers Act of 1940 (“Advisers Act”) or in each state in which its activities require registration. [***                                                                                                                                                                                                  ] Notwithstanding the foregoing, Envestnet shall not be deemed to be in breach of this Section 2(k) with respect to any services or platforms provided to, or developed or in development for, a Competitor based on any agreement with such Competitor executed prior to the Effective Date of this Agreement. In addition, nothing in this Agreement shall prevent Envestnet from allowing a Competitor to provide custody and brokerage services to clients, including independent broker dealers, of Envestnet’s other advisor clients provided that such Competitor is not directly selling such services to such persons.

(l) Envestnet Support of the Customized Envestnet Platform. Envestnet agrees to provide support to Advisor clients of FBS as these clients use of the Customized Envestnet Platform to create investment proposals, open investor accounts, and monitor investor accounts. FBS, in its discretion, may choose to act as first point of contact for its Advisor clients, in which case Envestnet will work with FBS to develop a client support model wherein Envestnet assists FBS in supporting FBS’s Advisor clients.

3. TERM AND TERMINATION.

 

(a) Term. This Agreement shall commence on the Effective Date, and unless earlier terminated as specified herein, shall continue until the second anniversary of the Launch Date (as defined below) (the “Initial Term”), Thereafter, this Agreement will automatically continue for successive one-year periods (each, a “Renewal Term”) unless either party provides the other party with written notice of termination at least one hundred eighty (180) days prior to the end of the Initial Term or then-current Renewal Term, as the case may be, provided however, that if Envestnet elects to terminate this Agreement pursuant to this Section 3(a), the effective date of such termination shall not be earlier than the third anniversary of the Launch Date. As used in this Agreement, “Term” shall refer to the Initial Term and any and all Renewal terms.

(b) Termination for Breach. If a party to this Agreement (a “breaching party”) should commit any material default in the performance of any of its obligations under this Agreement, and the other party provides written notice of the default, then the breaching party shall have a cure period of thirty (30) days after receipt of the notice. If the default has not been cured within that 30-day period, the non-breaching party shall be entitled, in its sole discretion, to terminate this Agreement by notice to the breaching party.

(c) Termination for Delayed Launch Date. If the applicable Launch Date of the Customized Envestnet Platform does not occur on or before January 6, 2006 and Envestnet’s actions or failures to act are the primary cause of such delay, then FBS shall have the right to terminate this Agreement by providing written notice to Envestnet on or before January 31, 2006.

(d) If either party terminates this Agreement pursuant to Section 3(b) or 3(e), or FBS terminates this Agreement pursuant to Section 3(f), FBS shall have the right to postpone such termination of this Agreement (and keep this Agreement in full force and effect) for a period of time specified by FBS (which period shall not exceed 270 days) during which time Envestnet shall continue to provide the Services hereunder (and FBS and Advisors shall continue to have the right to use the License to enable FBS and the Advisors the opportunity to find another solution for the Clients the Advisors have referred to Envestnet) in exchange for the compensation specified in each of the Tri-Party Agreements that are in effect at that time.

(e) Either party may terminate this Agreement if the other party assigns or attempts to assign this Agreement in violation of Section 13(m) below, and if such party elects to terminate this Agreement, such party shall provide written notice of such termination to the other party and, subject to Section 3(d) above, such termination shall be effective on the date specified in such notice.

(f) FBS may terminate this Agreement in the event a Change of Control (as defined below) occurs, and if FBS elects to terminate this Agreement, FBS shall provide written notice of such termination to Envestnet and such

termination shall be effective on the date specified in such notice.

(g) For the purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon the occurrence of any of the following events:

(i) any “person”, as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Envestnet representing more than fifty percent (50%) of the combined voting power of Envestnet’s then outstanding securities; or

(ii) completion of a merger or consolidation of Envestnet with any other corporation or entity (regardless of whether Envestnet would be the surviving corporation), other than (1) a merger or consolidation as a result of which the combined voting power of Envestnet’s securities outstanding immediately prior thereto continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the voting securities of such surviving entity outstanding immediately after such merger or consolidation, or (2) a merger or consolidation effected to implement a recapitalization of Envestnet (or similar transaction) in which no “person” (as defined above) acquires more than fifty percent (50%) of the combined voting power of Envestnet’s then outstanding securities; or

(iii) the Board of Directors of Envestnet or the stockholders of Envestnet approve a plan of liquidation of such party; or

(iv) the sale or disposition, or the approval by Envestnet’s Board of Directors or comparable management authority or stockholders of the sale or disposition, by Envestnet of all or substantially all of such party’s assets (or those used, in the case of Envestnet, to provide the Services), where such sale or disposition is to an entity in which immediately after such sale or disposition, Envestnet’s shareholders do not hold more than fifty percent (50%) of the combined voting power of such entity’s outstanding securities.

(h) Transition Assistance. During the Transition Period (as defined below), Envestnet shall cooperate with and use diligent commercial efforts to assist FBS in migrating Advisors and Clients to a replacement platform selected by FBS. Without limiting the foregoing, Envestnet shall provide FBS with a copy of all data regarding Advisors and Clients that is retained in the Customized Envestnet Platform (or other databases or systems maintained by Envestnet). As used herein, “Transition Period” shall mean (i) if either party elects to not renew this Agreement as set forth in Section 3(a), the period of time between the date of such notice of non-renewal and the end of the Term, or (ii) if either party elects to terminate this Agreement as set forth in Section 3(b) or 3(e), or FBS

elects to terminate this Agreement pursuant to Section 3(f), the period of time during which FBS has elected to postpone the effective date of the termination of this Agreement as described in Section 3(d).

4. PROCEDURES.

(a) Rule 3a-4 Compliance. During the Term, Envestnet shall comply with Rule 3a-4 of the Investment Advisers Act of 1940 to the extent Rule 3a-4 is applicable to Envestnet’s provision of the Services hereunder, and the Tri-Party Agreement shall require that each Advisor comply with Advisor’s obligations under Rule 3a-4 that may apply to its activities.

(b) Delivery of Disclosure Documents, Advisory Agreement and Privacy and Security Policies. FBS acknowledges that the Tri-Party Agreement shall require each Advisor to agree to provide to all prospective Clients with an Advisory Agreement, in a form to be determined by Envestnet from time to time (“Advisory Agreement”), a copy of Envestnet’s privacy and security policies, and a copy of Envestnet’s disclosure document (either Form ADV, Part II or Schedule H of Form ADV (“Brochure”), as applicable), as well as Envestnet’s annual Brochure update (or written offer to provide same) and annual privacy notice, once Envestnet has informed such Advisor that they are available for delivery, all as required under applicable law; provided, however, that the foregoing delivery requirements shall not apply with respect to the Services described in Exhibit D. Envestnet is not undertaking any responsibility that FBS or any Advisor may have with respect to the delivery of legally-required disclosure statements or other documents to Clients, prospective Clients or any third parties.

FBS acknowledges that the Tri-Party Agreement shall require each Advisor to separately agree to deliver to each Client copies of the Brochure for each other investment advisory firm whose Brochure must be delivered to Client in accordance with the Services being provided to such Client, both initially and on an annual basis.

(c) Communications with Prospective Clients. Neither FBS nor Envestnet shall make any representations regarding the other that are false or misleading or in any way inconsistent with the written materials provided by the other, including, without limitation, the Brochure. Neither FBS nor Envestnet shall deliver to prospective Clients any written materials concerning the other (other than copies of the Brochure) that have not been specifically approved in writing by the other prior to such delivery. FBS shall not provide any investment management service or render any investment advice on behalf of Envestnet or take or fail to take any action, directly or indirectly, that might cause anyone to believe that FBS is rendering or will render investment advisory or investments supervisory services on behalf of Envestnet. FBS shall promptly forward to Envestnet all Client correspondence received by FBS related to the Services provided to any Client account, as well as all information and documents in the possession of

FBS requested by Envestnet with respect to Envestnet’s provision of Services to any Client.

5. PAYMENT AND FEES. Subject to each Client providing appropriate written authority to do so, and in accordance with the procedures and time periods specified in the Tri-Party Agreement, FBS shall deduct from Clients’ accounts the fees due from Clients for their participation in a Program and the Services rendered by Envestnet in conjunction therewith. The allocation of fees among FBS, Envestnet, an Advisor and Strategic Advisors, Inc. (if applicable), and the associated billing, reporting and remittance procedures, shall be set forth in the applicable Tri-Party Agreement. Such fees due from Clients shall be set forth in one or more agreements among Client, Advisor and Envestnet as such agreements may be amended from time to time. In no event shall FBS be liable for fees due to any third party providing services to Clients in conjunction with a Program. Envestnet shall be solely responsible for, and shall bear, all costs and expenses associated with Envestnet’s hosting, operation and maintenance of the Customized Envestnet Platform in accordance with the terms of this Agreement.

During the Term of this Agreement, Envestnet warrants that the prices and terms for Services will not exceed those charged or imposed on any other customer purchasing those Services in like or similar quantities under similar terms and conditions. If, during the Term of this Agreement, Envestnet offers more favorable prices or terms to any other customer with a substantially similar amount of assets (or less amount of assets) on the Envestnet investment advisory services platform, Envestnet shall, at the same time, extend such more favorable prices or terms to FBS.

6. REPRESENTATIONS AND WARRANTIES.

(a) Authority. Each party represents, warrants and covenants that it is a legal business entity duly organized and validly existing in good standing under the laws of the jurisdiction of its formation and qualified to do business in each state where such qualification is necessary, that it has full power and authority to enter into and perform this Agreement, and that the execution and delivery of this Agreement and the occurrence of the terms, provisions and obligations herein do not constitute a breach or violation under any instrument or agreement by which it is bound, or a breach or violation of or default under any order, statute, rule, regulation, or code of professional conduct or ethics to which it is or may be a party, or to which it is or may be subject. Each party also represents and warrants that the person signing this Agreement on its behalf has been properly authorized and empowered to do so.

(b) Regulatory Compliance. In performing its duties under this Agreement, each party will: (a) act in a manner consistent with the terms of this Agreement; (b) comply with any applicable provisions of the Investment Advisers Act of 1940 (the “Advisors Act”); (c) comply with any and

all other applicable federal and state laws, including, without limitation, the Internal Revenue Code of 1986 (“IRC”), the Employee Retirement Income Security Act of 1974 (“ERISA”) and all rules and regulations promulgated thereunder, if applicable, including the ERISA bonding requirement; and (d) comply with any and all codes of professional conduct or ethics applicable hereunder. FBS and Envestnet each agrees to promptly notify the other if it or any of its officers or directors becomes the subject of any proceedings that could result in a breach of any of the provisions under this paragraph. Envestnet shall ensure that the Customized Envestnet Platform complies with all applicable legal and regulatory requirements, including, without limitation, those applicable to the Internet; provided however that Envestnet will have no compliance responsibilities with respect to any content of the Custom Envestnet Platform provided to Envestnet by FBS or any Advisor. FBS shall ensure that the FBS Technology complies with all applicable legal and regulatory requirements, including, without limitation, those applicable to the Internet.

(c) Registration. Envestnet is registered with the Securities and Exchange Commission (“SEC”) as an investment adviser under the Advisors Act and shall maintain such registration for the Term of this Agreement. FBS is and will continue to be registered or licensed under all applicable federal and state laws in all jurisdictions where required, and neither FBS, nor any person associated with FBS is disqualified from acting as a solicitor for Envestnet under Rule 206(4)-3 of the Advisers Act.

7. WARRANTIES; DISCLAIMER OF WARRANTIES.

(a) Envestnet warrants that for a period of ninety (90) days from the Launch Date (the “Warranty Period”), the Customized Envestnet Platform will comply in all material respects to the Specifications and will perform in accordance with the performance specifications and service levels set forth in Exhibit F. If, during the Warranty Period, the Customized Envestnet Platform fails to perform as warranted above, FBS shall notify Envestnet of such failure and Envestnet shall, at no charge to FBS, use diligent commercial efforts to promptly make such changes to the Customized Envestnet Platform as are required for the Customized Envestnet Platform to perform as warranted above. If such failure is not remedied within fifteen (15) days of FBS’s notification to Envestnet of such failure, FBS may terminate this Agreement by providing written notice of such termination to Envestnet.

(b) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ENVESTNET MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ENVESTNET TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FBS HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY ENVESTNET EXCEPT AS

SPECIFICALLY SET FORTH IN THIS AGREEMENT. IN ADDITION, NOTWITHSTANDING ANY PROVISION HEREOF, ENVESTNET DOES NOT WARRANT THAT THE OPERATION OF THE ENVESTNET TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE.

(c) FBS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE FBS TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ENVESTNET HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY FBS EXCEPT IF AND TO THE EXTENT SPECIFICALLY SET FORTH IN THIS AGREEMENT. IN ADDITION, AND NOTWITHSTANDING ANY PROVISION HEREOF, FBS DOES NOT WARRANT THAT THE OPERATION OF THE FBS TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ENVESTNET SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY FAILURE OF THE FBS TECHNOLOGY (UNLESS, SUBJECT TO ANY AND ALL OTHER DISCLAIMERS OF LIABILITY BY ENVESTNET, IN THIS AGREEMENT) SUCH FAILURE WAS CAUSED BY ENVESTNET) OR FOR ANY CONTENT OF THE CUSTOM ENVESTNET PLATFORM PROVIDED TO ENVESTNET BY FBS OR AN ADVISOR.

8. CONFIDENTIALITY.

(a) Envestnet and FBS acknowledge that in the course of this Agreement, each party (the “Receiving Party”) will become familiar with certain confidential technical and business information of the other party (the “Disclosing Party”) which the Disclosing Party desires the Receiving Party treat as confidential. As used in this Agreement, “Confidential Information” means any information disclosed at any time by the Disclosing Party to the Receiving Party, which is designated as “Confidential,” “Proprietary” or some similar designation, or which the Receiving Party knows or should reasonably know is proprietary, confidential or a trade secret, whether disclosed orally, in writing, or in any other manner. FBS and Envestnet each hereby agree to maintain the confidentiality of this Agreement and the other party’s Confidential Information in strict confidence using at least the degree of care and security as each uses to maintain the confidentiality of its own most Confidential Information of similar nature. Neither party shall disclose the other party’s Confidential Information to any third party except as permitted under this Agreement. Each party shall use the other party’s Confidential Information only to perform its obligations under this Agreement and shall disclose such Confidential Information only within its organization (including its affiliates) and only to those of its or its affiliates’ employees who need to know such information in

order to perform its obligations under this Agreement. Each party may disclose the Confidential Information of the other party to those of its subcontractors, consultants and agents who have executed an agreement containing a provision substantially conforming to the confidentiality terms of this Agreement and who reasonably need to know such information in order to perform obligations under this Agreement.

(b) Information shall not be considered Confidential Information of the Disclosing Party if it: (i) is publicly available prior to or after disclosure hereunder other than through acts or omissions attributable to the Receiving Party’s employees or representatives; (ii) is already known by the Receiving Party or its affiliates at the time of disclosure hereunder; (iii) is disclosed in good faith to the Receiving Party or any of its affiliates by a third party having a lawful right to do so; or (iv) was independently developed by the Receiving Party or any of its affiliates without reference to the Disclosing Party’s Confidential Information. Upon termination or expiration of this Agreement, each party shall (x) destroy all of the other party’s Confidential Information or, at the other party’s written direction, return the applicable items to the requesting party, and (y) upon request by the other party, provide the other party with a written certification by an officer of the other party certifying that such Confidential Information has been destroyed or returned, as the case may be.

(c) Notwithstanding the foregoing, the Receiving Party shall be free to use in its business activities the Residuals (as defined below) from Confidential Information disclosed to the Receiving Party hereunder. For purposes of the foregoing, “Residuals” means the general ideas, concepts and know-how contained in Confidential Information that is retained in the unaided memories of those employees, consultants or independent contractors of the Receiving Party who have had access to Confidential Information in accordance with this Agreement. The foregoing does not permit the intentional memorization of any Confidential Information for the sole purpose of evading obligations contained in this Agreement, and does not include any license or right to the Disclosing Party’s copyrights, patents or other proprietary rights.

(d) Each party acknowledges that as a financial institution, the other party may be subject to certain laws and regulations regarding the privacy and protection of consumer information and/or personally identifiable information, and that any receipt or use of such information by either party may also be subject to compliance with such laws and regulations. Notwithstanding the provisions of sections 8(a) and 8(b) above, information that represents personally identifiable information of a Client, any personnel of an Advisor or any personnel of FBS shall always be considered to be Confidential Information of FBS.

(e) If either party is confronted with legal action to disclose any portion of the other party’s Confidential

Information, that party shall promptly notify and shall use commercially reasonable efforts to assist the other party (at the other party’s expense) in obtaining a protective order or other similar order, and shall thereafter disclose only the minimum portion of the other party’s Confidential Information that is required to be disclosed in order to comply with the legal action, whether or not a protective order or other order has been obtained.

(f) Each party agrees to notify the other of any unauthorized disclosure or use of the other party’s Confidential Information promptly following such party’s discovery of such disclosure or use and shall promptly take measures to minimize the effect of such unauthorized disclosure or use and to prevent its recurrence.

(g) Envestnet and FBS acknowledge that their disclosure of any of the other’s Confidential Information without the other’s prior written consent would cause continuing, substantial and irreparable injury to the other party and that the other party’s remedies at law for such disclosure will not be adequate. Accordingly, the parties agree that the Disclosing Party shall be entitled to immediate injunctive relief against the breach or threatened breach of the foregoing undertakings by the Receiving Party, and that such rights shall be in addition to, and not in limitation of, any other rights or remedies to which the Disclosing Party may be entitled at law or equity.

9. PRIVACY OF CUSTOMER INFORMATION. Neither party shall disclose to any third party any non-public personal information regarding individual customers of either party provided by either party to the other pursuant to this arrangement except (i) as necessary to carry out the purposes of this arrangement, provided such disclosure is permitted under the applicable privacy policy of the party that obtained such information, or (ii) as permitted by Sections 248.14 or 248.15 of Regulation S-P, Privacy of Consumer Financial Information.

10. INDEMNIFICATION.

(a) FBS agrees to defend, indemnify and hold harmless Envestnet and its officers, directors, employees, agents and affiliates, against any and all damages, losses and costs, including reasonable attorneys’ fees and court costs, arising from or in any way related to any threatened or actual claim, investigation, lawsuit or other legal or regulatory proceeding (collectively, “Claims”) resulting from or based on (i) FBS’s breach of its obligations under this Agreement or any action or failure to act on the part of FBS that constitutes negligence or willful misconduct or (ii) any allegation that the FBS Technology infringes or represents a misappropriation of any copyright, patent, trade secret, trademark or other proprietary right of any third party.

(b) Envestnet agrees to defend, indemnify and hold harmless FBS, its affiliates and their respective officers, directors, employees, agents and affiliates, against any and all damages, losses and costs, including reasonable attorneys’ fees and court costs arising from or in any way

related to any Claim against FBS or an Advisor resulting from or based on (i) Envestnet’s breach of its obligations under this Agreement or any action or failure to act on the part of Envestnet that constitutes negligence or willful misconduct, or (ii) any allegation that the Envestnet Technology or any other software, algorithm, design, plan, drawing, specification or service furnished hereunder by Envestnet, or FBS’s or an Advisor’s use of any of the foregoing in accordance with this Agreement, infringes or represents a misappropriation of any copyright, patent, trade secret, trademark or other proprietary or contractual right of any third party, provided that Envestnet shall not be liable to the extent the infringement or misappropriation relates to the combination of the foregoing with any materials not provided by Envestnet hereunder and for which the Customized Envestnet Platform was not intended to be used, or (iii) Envestnet’s failure to comply with Section 9 above or the security and data privacy requirements set forth in Exhibit J.

(c) The indemnified party shall promptly give written notice to the indemnifying party of its receipt of any Claim for which it would be indemnified pursuant to Sections 10(a) or 10(b) above, provided, however, that the failure of the indemnified party to provide prompt notice shall only relieve the indemnifying party from its obligations under this Section 10 to the extent that such late notice prejudiced its defense. The indemnifying party shall have the right to control and direct the investigation, defense and settlement of such Claim, provided that if the indemnifying party fails or elects not to either defend or settle such Claim, the indemnified party may defend and/or settle such Claim and the indemnifying party agrees to pay to the indemnified party any and all damages and expenses (including attorney’s fees) incurred and/or amounts paid in settlement by the indemnified party. The indemnified party may, at its own cost, participate in such investigation, defense and settlement of such Claim and any appeal arising therefrom. Upon request, the indemnified party shall cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party and its attorneys in the investigation, trial and defense of such Claim, and any appeal arising therefrom. The indemnified party has the right to review and approve any counsel, which approval shall not be unreasonably withheld, selected by the indemnifying party to defend the indemnified party and the terms and conditions of any settlement affecting the indemnified party, which approvals shall not be unreasonably withheld. The indemnifying party shall not agree to any settlement that imposes restrictions on the indemnified party or requires any action by the indemnified party without the indemnified party’s prior written consent, which consent shall not be unreasonably withheld.

(d) In the event of any Claim of the type described in Section 10(b)(ii) above, Envestnet shall, at its option and expense, (i) procure for FBS and Advisors the right to continue to use the Customized Envestnet Platform, or (ii) replace or modify of the Customized Envestnet Platform or portion thereof so it no longer infringes or represents a

misappropriation of such copyright, patent, trade secret, trademark or other proprietary or contractual right, so long as the utility to FBS and Advisors of the Customized Envestnet Platform and the performance of the Customized Envestnet Platform are not materially impaired and the Customized Envestnet Platform continues to conform to the Specifications.

11. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN:

(a) EXCEPT (i) FOR AMOUNTS PAYABLE PURSUANT TO SECTIONS 10(a)(ii) AND 10(b)(ii) ABOVE, AND (ii) TO THE EXTENT ARISING FROM A BREACH OF SECTION 8 OR 9 ABOVE, IN NO EVENT WILL EITHER PARTY (OR ITS AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING (WITHOUT LIMITATION) DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY LOSS OF PROFIT, LOSS OF DATA, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF THAT PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES.

(b) IN NO EVENT WILL ENVESTNET BE LIABLE TO FBS OR ITS AGENTS FOR ANY DAMAGES ARISING OUT OF (i) SECURITIES BROKERAGE ACTIVITIES OR INVESTMENT ADVISORY ACTIVITIES OF FBS OR ITS AGENTS; (ii) THE INVESTMENT ADVISORY ACTIVITIES OF ENVESTNET’S MONEY MANAGERS AND ANY DAMAGES RESULTING THEREFROM UNLESS ENVESTNET WAS NEGLIGENT IN THE SELECTION OR OVERSIGHT OF SUCH MONEY MANAGERS; (iii) IMPROPER DISTRIBUTION OR USE OF FBS’S PASSWORDS BY FBS, ITS AGENTS, ANY ADVISOR OR CLIENTS; OR (iv) ANY LOSS INCURRED WITH RESPECT TO ANY CLIENT’S ACCOUNT DUE TO PERFORMANCE OR INVESTMENT RESULTS EXCEPT WHERE SUCH LOSS RESULTS DIRECTLY FROM NEGLIGENCE OR WILLFUL MISCONDUCT OF ENVESTNET OR ITS AGENTS.

(c) ENVESTNET ASSUMES NO LIABILITY FOR THE DELAY, FAILURE, INTERRUPTION, LOSS, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF THE ENVESTNET TECHNOLOGY PROVIDED THAT SUCH DELAY, FAILURE, INTERRUPTION, LOSS, OR CORRUPTION WAS NOT IN ANY MATERIAL RESPECT DUE TO ENVESTNET’S ACT AND PROVIDED FURTHER THAT ENVESTNET HAS COMPLIED WITH ITS OBLIGATIONS SET FORTH IN SECTION 13(G) BELOW. FBS ACKNOWLEDGES THAT THE ENVESTNET TECHNOLOGY TRANSMITS

INFORMATION OVER LOCAL EXCHANGE, INTEREXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES AND OTHER DEVICES OWNED, MAINTAINED AND SERVICED BY THIRD PARTY LOCAL EXCHANGE AND LONG DISTANCE CARRIERS, UTILITIES, INTERNET SERVICE PROVIDERS AND OTHERS, ALL OF WHICH ARE BEYOND THE CONTROL OF ENVESTNET. IN THE EVENT OF A DELAY, FAILURE, INTERRUPTION, LOSS OR CORRUPTION OF DATA, ENVESTNET WILL WORK WITH THE APPROPRIATE THIRD PARTY TO RESTORE THE SERVICES AS PROMPTLY AS POSSIBLE.

12. ARBITRATION AGREEMENT. Subject to either party’s right to seek relief pursuant to the Nondisclosure Agreement and either party’s right to seek preliminary restraining orders, preliminary injunctions or other equitable relief from a court of competent jurisdiction, Envestnet and FBS agree to settle by arbitration any controversy between them, their affiliates and successors, and their officers, executives, directors, employees, or agents, which relates to this Agreement. Such arbitration will be conducted in Chicago, Illinois according to the securities arbitration rules of the National Association of Securities Dealers, Inc. (“NASD”); provided, however, that if any party is not eligible to participate in NASD arbitration, then the arbitration will be conducted before a sole arbitrator sitting in Chicago, Illinois, in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. Any award the arbitrator makes will be final, and judgment on it may be entered in any court having jurisdiction. This arbitration agreement shall be enforced and interpreted exclusively in accordance with applicable law, including the Federal Arbitration Act. This agreement to arbitrate shall not constitute a waiver of any rights available to any party under federal or state law.

13. MISCELLANEOUS.

(a) Use of Names; Press Release. Except as set forth elsewhere herein, any use of the other party’s name or logo or that of its products or services and any description by either party of the other party, its products or services is subject to the review and written approval of the other party prior to use, which approval shall not be unreasonably withheld. Neither party shall issue a press release with regard to the existence, terms or conditions of this arrangement, or with regard to the relationship among the parties created by this arrangement without the prior review and approval of such press release by the other party.

(b) Relationship of the Parties. In performing this Agreement, the parties shall at all times be independent contractors rather than agents, partners, representatives, or employees of each other, and neither party shall have any authority to act for or bind the other party. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, joint venture or similar

relationship between FBS and Envestnet. Neither FBS nor Envestnet shall represent or imply in any way to Clients or any third parties that it is an officer, director, employee, agent, representative, partner, joint venture or affiliate of the other.

(c) Notices. Except where provided otherwise, notices hereunder shall be in writing and shall be delivered by hand, sent by a nationally recognized overnight courier, or sent by registered or certified mail, return receipt requested, postage prepaid, and properly addressed to the parties at the following addresses:

 

If to FBS:		Fidelity Brokerage Services LLC
		82 Devonshire Street Mailzone Z2N
		Boston, MA 02109
		Attention: Jennifer Moran
If to Envestnet:		Envestnet Asset Management, Inc.,
		35 East Wacker Drive
		Suite 1600
		Chicago, IL 60601
		Attention: General Counsel

Notices shall be effective upon receipt by the receiving party.

(d) Client Relationships. Envestnet shall not market its products or services to Clients referred to Envestnet by any Advisor except that Envestnet may, in cooperation with FBS, market the Customized Envestnet Platform to Advisors and their Clients pursuant to this Agreement with, in each case, FBS’s, and with respect to Clients, such Advisor’s, express advance written consent.

(e) Freedom of Action. Envestnet acknowledges and agrees that nothing in this Agreement shall preclude FBS or its affiliates from developing, procuring and/or marketing products, software or services comparable to those offered by Envestnet provided that Fidelity Investment Registered Investment Advisor Group (“FRIAG”) a division of FBS does not market a customized platform to deliver a combination of its base products and services substantially similar to that described herein for a period of eighteen (18) months from the Effective Date of this Agreement. Envestnet shall not assert any claim or cause of action against FBS or any of its affiliates based on FBS’s or such affiliate’s development, marketing, sale, licensing or provision of any software, website, service or product to the extent that the claim or cause is based on any legal theory that (i) alleges that such software, website, service or product infringes Envestnet’s copyright or trademark rights in those provided by Envestnet under this Agreement to the extent such claim relates to: (x) the sequence or organization of menus, commands or tool bars, (y) use of nomenclature that is not unique to, originated by, or a trademark of Envestnet, or (z) placement of the same or similar type of content in the same or similar on screen location, or (ii) is based on similarities in the software, website, service or product offered by FBS or its affiliate compared to those offered by Envestnet that (a) are required

by (1) the use of the same hardware or software platform in implementing such software, website, service or product, (2) the use of similar third party technology or content in such software, website, service or product, or (3) the need to comply with or to provide a format to comply with regulatory requirements or common industry standards that do not originate from Envestnet’s products or services, or (b) individually represent generic functionality relating to data processing, website operations, or investment advisory services, provided that any such software, website, service or product does not use any software owned by Envestnet, and provided further that FBS does not violate the terms of this Agreement and does not utilize the Envestnet Technology or any confidential information of Envestnet protected under paragraph 8 hereunder in making, procuring or marketing such products or services. Except with respect to the matters described above in this section, Envestnet is not waiving any rights to assert claims based on copyright infringement, trademark infringement, patent infringement, misappropriation of trade secrets or breach of confidentiality.

(f) Right to Audit. Subject to FBS’s compliance with the confidentiality provisions of paragraph 8, Envestnet will keep and make available for inspection, examination and audit of FBS, its authorized employees, agents, representatives or auditors at all reasonable times, all data relating to the furnishing of services hereunder. Envestnet will maintain and provide upon request by FBS reasonably complete records to substantiate all variable charges.

(g) Disaster Contingency Plan. Envestnet has provided FBS a summary of its disaster contingency plan (“Disaster Contingency Plan”), which is attached hereto as Exhibit H. Envestnet shall, no later than twelve (12) months following the Launch Date, revise the Disaster Contingency Plan so that such plan specifically describes the actions, and associated timeframes, that Envestnet will undertake in the event such plan is executed, and Envestnet shall provide FBS with a copy of such revised Disaster Contingency Plan. Envestnet represents that the Disaster Contingency Plan is, and at all times during the Term shall be, designed to restore full operation of the Customized Envestnet Platform within eight (8) hours of any disruption to the normal operation of the Customized Envestnet Platform. Throughout the Term of this Agreement, Envestnet shall maintain and, upon an occurrence of an event likely to cause a disruption in the normal operation of the Customized Envestnet Platform of eight (8) hours or more, shall initiate and follow such Disaster Contingency Plan. All costs and expenses incurred in connection with developing, maintaining, testing, initiating and following the Disaster Contingency Plan shall be borne by Envestnet. Envestnet shall provide FBS no less than ninety (90) days advance written notice of any material modifications to the Disaster Contingency Plan. Envestnet shall conduct a test of the Disaster Contingency Plan at least once every twelve months and promptly following each such test, Envestnet shall provide to FBS a written report summarizing the

results of such test and any material failures or problems identified by such test.

(h) Insurance and Bonding. Envestnet agrees to carry and maintain at its own cost with such companies as are reasonably acceptable to FBS the following minimum levels of insurance and bonding:

(i) Worker’s Compensation and Employer’s Liability insurance to the full extent as required by applicable laws.

(ii) Comprehensive General Liability coverage, including contractual liability and public liability coverage, in not less than the following amounts: (A) Bodily Injury, including death, $500,000 each person and $1,000,000 aggregate, (B) Property Damage of $1,000,000, and (C) Errors and Omissions insurance of $1,000,000.

(iii) Umbrella or excess liability insurance in an amount not less than $5,000,000.

(iv) All certificates of insurance maintained hereunder will contain a provision that the coverage will not be canceled without thirty days prior written notice (hand-delivered or certified mail, return receipt requested) to FBS.

(i) Governing Law. This Agreement shall be interpreted and construed in accordance with, and governed by the laws of the United States and of the Commonwealth of Massachusetts’ without reference to its conflicts of law rules.

(j) Severability. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision shall be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.

(k) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement.

(l) Headings. The headings in this Agreement are inserted for convenience and identification only and are in no way intended to describe, interpret, define or limit the

size, extent or intent of this Agreement or any provision hereof.

(m) Assignment. Neither party may assign this Agreement, by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may, without obtaining the prior written consent of the other party, assign this Agreement and its rights and obligations hereunder (i) to an affiliate of the assigning party, (ii) in connection with the disposition of substantially all of the business and assets of the assigning party to which this Agreement relates, or (iii) in connection with the merger or corporate reorganization involving the assigning party, provided, however, that in the case of (i), (ii) and (iii) above, the assignee is not a competitor (or an affiliate of a competitor) of the other party or any of the other party’s affiliates.

(n) Force Maieure. Neither party shall be held responsible for any delay or failure to perform any part of this Agreement to the extent such delay or failure results from any cause beyond its control and without the fault or negligence of the party claiming excusable delay, such as acts of God, acts of war, extraordinary acts of the United States of America or any state, territory or political subdivision thereof, fires, storms, floods, epidemics, work stoppages, strikes, embargoes and similar events (collectively, “Force Majeure”). Notwithstanding the foregoing, the occurrence of a Force Majeure shall not relieve Envestnet of its obligation to invoke and follow the Disaster Recovery Plan.

(o) Survival. The provision of Sections 2(b), 2(d), 2(e), 2(i), 7, 8, 9, 10, 11, 12 and this Section 13, as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination of this Agreement, will survive and continue in full force and effect after such termination.

(p) Entire Agreement. This Agreement, together with its attachments, constitutes the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written communications with respect hereto, all of which are merged herein. This Agreement may not be altered, amended, or modified except by a written instrument signed by an authorized representative of each party.

1. Money Manager Selection and Monitoring. Envestnet has established contractual relationships with various money managers and may establish contractual relationships with new money managers during the Term (“Money Managers”). Envestnet will identify such Money Managers and provide Advisors’ Clients with the ability to access the private money management services of the Money Managers, either directly using a separate managed account for each Money Manager (the “Manager Resource Wrap Program”) or indirectly using a single managed account traded by Envestnet based on the instructions of the relevant Money Manager(s) (the “Multi-Manager Accounts Program”). Advisors shall have no obligation to use any Money Managers. Envestnet shall not be obligated to maintain contractual relations with any particular Money Manager, and Envestnet expressly reserves the right to terminate contractual relationships with existing Money Managers, enter into contractual relationships with new Money Managers, and/or to permit Money Managers to terminate contractual relations with Envestnet.

2. Money Manager Evaluation. Envestnet has developed and implemented a program to collect and report data on investment style and philosophy, past performance, and personnel of each pre-selected Money Manager on the Envestnet Platform. Any Advisor may request that Envestnet evaluate certain Money Managers, which evaluation Envestnet may undertake in its sole discretion. The Programs described herein shall provide Advisors with sufficient data and/or reports on each Money Manager being evaluated to allow Advisors to evaluate the competence and experience of each Money Manager in

accordance with then-current industry standards. Envestnet acknowledges that FBS will not undertake any evaluation or due diligence of any Money Manager in connection with a Program or the Services.

3. Disclaimer. Notwithstanding the foregoing or anything herein to the contrary, and to the maximum extent permitted by law: (a) FBS acknowledges that Envestnet does not independently verify the accuracy of the Money Managers’ responses to Envestnet’s due diligence questionnaires or Clients’ responses to the risk profiling questionnaires or other information gathering conducted by Advisors; and (b) Envestnet will have no responsibility or liability whatsoever with respect to a Money Manager’s investment performance. Neither Envestnet nor any of its officers, directors, employees, agents, affiliates, or others associated with the Manager Resource Wrap Program or the Multi- Manager Accounts Program described herein shall be liable for any loss incurred with respect to Client’s account, except where such loss directly results from Envestnet’s negligence or willful misconduct. FBS acknowledges and understands that there is no guarantee of performance or investment results hereunder or with any Envestnet services or products, and that the past performance of any Envestnet services or products (including, without limitation, the Manager Resource Wrap Program and the Multi-Manager Accounts Program) is not an indication of any future results.

4. Fees & Billing. The fees and billing procedures for the services described in this Exhibit are described in Exhibit K.

1. FBS Manager Resource Network Program. FBS may also provide certain portions of Envestnet’s Manager Resource Wrap Program through its Advisors on a reduced cost basis as described in this Exhibit B (the “Manager Resource Network Program”). In the Manager Resource Network Program, the Advisors will be provided only access to the various Money Managers with no access to Envestnet’s risk questionnaire/scoring system/allocation models. If the Advisor is only using the Manager Resource Network Program, then Envestnet will provide the Advisor with a proposal capability in which the Advisor represents to Envestnet that the Advisor has determined that all the products and services selected for a client in the proposal are suitable for that client in the proposal. This proposal system will offer the Advisor the ability to incorporate any combination of all the Separate Account Managers available through Envestnet in an investor proposal. The provision of the Services by Envestnet of the Manager Resource Network Program will be governed by the same

terms applicable to Envestnet’s provision of the Separate Account Program aside from the specific services and capabilities provided by Envestnet under each Program.

2. Advisors who choose to use the Manager Resource Network Program will not have access to the Manager Resource Wrap Program, which includes Money Managers due diligence as described in Exhibit A. Advisors who use the Manager Resource Network Program will be able to use all other Envestnet products, including but not limited to Multi-Manager Accounts, Mutual Fund Wrap, ETF Wrap, Mutual Fund Solutions, EnvestK, Performance Reporting, Model Management and Fee Billing according to the fee schedules described for these products in Exhibit K.

3. Fees & Billing. The fees and billing procedures for the services described in this Exhibit are described in Exhibit K.

1. Extraction and Display of Custodian Account Information. Upon the request of an Advisor, Envestnet shall extract account data for Non-Program Assets from the Reporting Custodian’s data systems and display such data on the Customized Envestnet Platform. If such Advisor chooses to have such data extracted and displayed on the Envestnet Platform, then the Advisor will be given access to all of the functionality of the Envestnet Platform, except for the fund screening and asset allocation tools, and Envestnet shall provide billing services specified below. To the extent an Advisor requests such data extraction, the fees specified below in this Exhibit K shall apply.

2. Disclaimer. Notwithstanding the foregoing or anything herein to the contrary, and to the maximum extent permitted by law, FBS acknowledges and understands that the services described in this Exhibit D relate only to the extraction and display of Non-Program Assets information. FBS understands and agrees that Envestnet shall not act as an investment advisor with respect to the Non-Program Assets and that neither Envestnet nor any of its officers, directors, employees, agents, affiliates, or others associated with Envestnet shall

 

be liable for any loss incurred with respect to the Non-Program Assets, except where such loss directly results from Envestnet’s negligence or willful misconduct. FBS further understands and agrees that it shall be the responsibility of a Client’s Advisor, and not Envestnet’s responsibility, to enter all transactions for Non-Program Assets through the relevant custodian’s trading platform and that FBS shall not submit orders requested by an Advisor for the Non-Program Assets through the Envestnet Platform. Envestnet understands and agrees that FBS shall execute orders requested by an Advisor only for assets or accounts for which FBS serves as Custodian, and that FBS shall have no responsibility for assets or accounts held by other custodians. FBS understands and agrees that there is no guarantee of performance or investment results hereunder, and that Envestnet shall not be responsible for any trading errors, data transmission errors or other errors beyond Envestnet’s control.

3. Fees & Billing. The fees and billing procedures for the services described in this Exhibit are described in Exhibit K.