EXHIBIT (e)(3)
BISYS FUND SERVICES LIMITED PARTNERSHIP, DISTRIBUTOR [BISYS LOGO]
DEALER AGREEMENT
Re: [Fund Family] ("Company")
Ladies and Gentlemen:
As the distributor of the shares ("Shares") of each investment company portfolio
("Fund"), which may be amended by us from time to time, BISYS Fund Services
Limited Partnership ("Distributor") hereby invites you to participate in the
selling group on the following terms and conditions. In this letter, the terms
"we," "us," and similar words refer to the Distributor, and the terms "you,"
"your," and similar words refer to the dealer executing this agreement,
including its associated persons.
1. DEALER. You hereby represent that you are a broker-dealer properly
registered and qualified under all applicable federal, state and local
laws to engage in the business and transactions described in this
agreement, and that you are a member in good standing of the National
Association of Securities Dealers, Inc. ("NASD") and the Securities
Investor Protection Corporation ("SIPC"). You agree that it is your
responsibility to determine the suitability of any Fund Shares as
investments for your customers, and that we have no responsibility for
such determination. You further agree to maintain all records required
by Applicable Laws (as defined below) or that are otherwise reasonably
requested by us relating to your transactions in Fund Shares. In
addition, you agree to notify us immediately in the event your status
as a member of the NASD or SIPC changes.
2. QUALIFICATION OF SHARES. We will make available to you a list of the
states or other jurisdictions in which Fund Shares are registered for
sale or are otherwise qualified for sale, which may be revised from
time to time. You will make offers of Shares to your customers only in
those states, and you will ensure that you (including your associated
persons) are appropriately licensed and qualified to offer and sell
Shares in any state or other jurisdiction that requires such licensing
or qualification in connection with your activities.
3. ORDERS. All orders you submit for transactions in Fund Shares shall
reflect orders received from your customers or shall be for your
account for your own bona fide investment, and you will date and time-
stamp your customer orders and forward them promptly each day and in
any event prior to the time required by the applicable Fund prospectus
(the "Prospectus," which for purposes of this agreement includes the
Statement of Additional Information incorporated therein). As agent for
your customers, you shall not withhold placing customers' orders for
any Shares so as to profit yourself or your Customer as a result of
such withholding. You are hereby authorized to: (i) place your orders
directly with the relevant investment company (the "Company") for the
purchase of Shares and (ii) tender Shares directly to the Company for
redemption, in each case subject to the terms and conditions set forth
in the Prospectus and any operating procedures and policies established
by us from time to time. All purchase orders you submit are subject to
acceptance or rejection, and we reserve the right to suspend or the
limit the sale of Shares. You are not authorized to make any
representations concerning Shares of any Fund except such
representations as are contained in the Prospectus and in such
supplemental written information that we may provide to you with
respect to a Fund. All orders that are accepted for the purchase of
Shares shall be executed at the next determined public offering price
per share (i.e., the net asset value per share plus the applicable
sales load, if any) and all orders for the redemption of Shares shall
be executed at the next determined net asset value per share and
subject to any applicable redemption fee, in each case as described in
the Prospectus.
4. COMPLIANCE WITH APPLICABLE LAWS; DISTRIBUTION OF PROSPECTUS AND
REPORTS; CONFIRMATIONS. In
connection with its respective activities hereunder, each party agrees
to abide by the Conduct Rules of the NASD and all other rules of
self-regulatory organizations of which the relevant party is a member,
as well as all laws, rules and regulations, including federal and state
securities laws, that are applicable to the relevant party (and its
associated persons) from time to time in connection with its activities
hereunder ("Applicable Laws"). You are authorized to distribute to your
customers the current Prospectus, as well as any supplemental sales
material received from us (on the terms and for the period specified by
us or stated in such material). You are not authorized to distribute,
furnish or display any other sales or promotional material relating to
a Fund without our written approval, but you may identify the Funds in
a listing of mutual funds available through you to your customers.
Unless otherwise mutually agreed in writing, you shall deliver or cause
to be delivered to each customer who purchases shares of any Funds from
or through you, copies of all annual and interim reports, proxy
solicitation materials, and any other information and materials
relating to such Funds and prepared by or on behalf of the Funds or us.
If required by Rule 10b-10 under the Securities Exchange Act or other
Applicable Laws, you shall send or cause to be sent confirmations or
other reports to your customers containing such information as may be
required by Applicable Laws.
5. SALES CHARGES AND CONCESSIONS. On each purchase of Shares by you (but
not including the reinvestment of any dividends or distributions), you
shall be entitled to receive such dealer allowances, concessions, sales
charges or other compensation, if any, as may be set forth in the
Prospectus. Sales charge reductions and discounts may be available as
provided in the Prospectus. To obtain any such reductions, the Company
or Distributor must be notified promptly when a transaction or
transactions would qualify for the reduced charge and you must submit
information that is sufficient (in the discretion of the Company and/or
us) to substantiate qualification therefor. The foregoing shall include
advising us of any Letter of Intent signed by your customer or of any
Right of Accumulation available to such customer. If you fail to so
advise us, you will be liable for the return of any commissions plus
interest thereon. Rights of accumulation (including rights under a
Letter of Intent) are available, if at all, only as set forth in the
Prospectus, and you authorize any adjustment to your account (and will
be liable for any refund) to the extent any allowance, discount or
concession is made and the conditions therefor are not fulfilled. Each
price is always subject to confirmation, and will be based upon the net
asset value next determined after receipt of an order that is in good
form. If any Shares purchased are tendered for redemption or
repurchased by the Fund for any reason within seven business days after
confirmation of the purchase order for such Shares, you agree to
promptly refund the full sales load or other concession and you will
forfeit the right to receive any compensation allowable or payable to
you on such Shares. We reserve the right to waive sales charges. You
represent to us that you are eligible to receive any such sales charges
and concessions paid to you by us under this section.
6. TRANSACTIONS IN FUND SHARES. With respect to all orders you place for
the purchase of Fund Shares, unless otherwise agreed, settlement shall
be made with the Company within three (3) business days after
acceptance of the order. If payment is not so received or made, the
transaction may be cancelled. In this event or in the event that you
cancel the trade for any reason, you agree to be responsible for any
loss resulting to the Funds or to us from your failure to make payments
as aforesaid. You shall not be entitled to any gains generated thereby.
You also assume responsibility for any loss to a Fund caused by any
order placed by you on an "as-of" basis subsequent to the trade date
for the order, and will immediately pay such loss to the Fund upon
notification or demand. Such orders shall be acceptable only as
permitted by the Company and shall be subject to the Company's policies
pertaining thereto, which may include receipt of an executed Letter of
Indemnity in a form acceptable to us prior to the Company's acceptance
of any such order.
7. ACCURACY OF ORDERS; CUSTOMER SIGNATURES. You shall be responsible for
the accuracy, timeliness and completeness of any orders transmitted by
you on behalf of your customers by any means, including wire or
telephone. In addition, you agree to guarantee the signatures of your
customers when such guarantee is required by the Company and you agree
to indemnify and hold harmless all persons, including us and the Funds'
transfer agent, from and against any and all loss, cost, damage
or expense suffered or incurred in reliance upon such signature
guarantee.
8. INDEMNIFICATION. You agree to indemnify us and hold us harmless from
and against any claims, liabilities, expenses (including reasonable
attorneys fees) and losses resulting from (i) any failure by you to
comply with Applicable Laws in connection with activities performed
under this agreement, or (ii) any unauthorized representation made by
you concerning an investment in Fund Shares. We agree to indemnify you
and hold you harmless from and against any claims, liabilities,
expenses (including reasonable attorneys fees) and losses resulting
from (i) any failure by us to comply with Applicable Laws in connection
with our activities as Distributor under this agreement, or (ii) any
untrue statement of a material fact set forth in a Fund's Prospectus or
supplemental sales material provided to you by us (and used by you on
the terms and for the period specified by us or stated in such
material), or omission to state a material fact required to be stated
therein to make the statements therein not misleading; provided,
however, that the indemnification in this clause (ii) shall be limited
to indemnification actually received by us as Distributor from the
Funds, except to the extent that the relevant claims, liabilities,
expenses and losses result from our own failure to exercise reasonable
care in the preparation or review of the Prospectus or such other
materials.
9. MULTI-CLASS DISTRIBUTION ARRANGEMENTS. You understand and acknowledge
that the Funds may offer Shares in multiple classes, and you represent
and warrant that you have established compliance procedures designed to
ensure that your customers are made aware of the terms of each
available class of Fund Shares, to ensure that each customer is offered
only Shares that are suitable investments for him or her, to ensure
that each customer is availed of the opportunity to obtain sales charge
break points as detailed in the Prospectus, and to ensure proper
supervision of your representatives in recommending and offering the
Shares of multiple classes to your customers.
10. ANTI-MONEY LAUNDERING COMPLIANCE. Each party to this agreement
acknowledges that it is a financial institution subject to the USA
Patriot Act of 2001 and the Bank Secrecy Act (collectively, the "AML
Acts"), which require, among other things, that financial institutions
adopt compliance programs to guard against money laundering. Each party
represents and warrants that it is in compliance and will continue to
comply with the AML Acts and applicable rules thereunder ("AML Laws"),
including NASD Conduct Rule 3011, in all relevant respects. The parties
agree to cooperate with one another to satisfy AML due diligence
policies of the Company and Distributor, which may include annual
compliance certifications and periodic due diligence reviews and/or
other requests deemed necessary or appropriate by us to ensure
compliance with AML Laws.
11. PRIVACY. The parties agree that any Non-public Personal information, as
the term is defined in Regulation S-P ("Reg S-P") of the Securities and
Exchange Commission, that may be disclosed hereunder is disclosed for
the specific purpose of permitting the other party to perform the
services set forth in this agreement. Each party agrees that, with
respect to such information, it will comply with Reg S-P and that it
will not disclose any Non-Public Personal Information received in
connection with this agreement to any other party, except to the extent
required to carry out the services set forth in this agreement or as
otherwise permitted by law.
12. DISTRIBUTION AND/OR SERVICE FEES. Subject to and in accordance with the
terms of each Prospectus and the Distribution Plan and/or Service Plan,
if any, adopted by resolution of the Board pursuant to Rule 12b-1 under
the Investment Company Act of 1940 (the "1940 Act"), we may pay
financial institutions with which we have entered into an agreement in
substantially the form annexed hereto as Appendix B or such other form
as may be approved from time to time by the Board (the "Fee Agreement")
such fees as may be determined in accordance with such Fee Agreement,
for distribution, shareholder or administrative services, as described
therein.
13. ORDER PROCESSING. In accordance with NASD Notice to Members 03-50
(reminding members of their responsibility to ensure that they have in
place policies and procedures reasonably designed to detect and prevent
the occurrence of mutual fund transactions that would violate Rule
22c-1 under the 1940
Act, NASD Conduct Rule 2110 and other applicable rules and
regulations), you represent that you have reviewed your policies and
procedures to ensure that they are adequate with respect to preventing
violations of law and prospectus requirements related to timely
order-taking and market timing activity, and you hereby provide the
confirmation set forth on Appendix C hereto. You represent that you
will be responsible for the collection and payment to the Company of
any Redemption Fees based upon the terms outlined in the Company's
prospectus.
14. AMENDMENTS. This agreement may be amended from time to time by the
following procedure. We will mail a copy of the amendment to you at
your address shown below or as registered as your main office from time
to time with the NASD. If you do not object to the amendment within
fifteen (15) days after its receipt, the amendment will become a part
of this agreement. Your objection must be in writing and be received by
us within such fifteen (15) days. All amendments shall be in writing
and except as provided above shall be executed by both parties.
15. TERMINATION. This agreement will automatically terminate in the event
of its assignment, and this agreement will terminate automatically upon
the termination of the Distribution Agreement between us and the Funds.
This agreement may be terminated by either party, without penalty, upon
ten days' prior written notice to the other party. Any unfulfilled
obligations hereunder, and all obligations of indemnification, shall
survive the termination of this agreement.
16. NOTICES. All notices and communications to us shall be sent to us at 00
Xxxxx Xxxxxx [change to Xxxxxx Xxxxxx], Xxxxxx, Xxxxxxxxxxxxx 00000,
Attn: Broker-Dealer Compliance Department, or at such other address as
we may designate in writing. All notices and other communication to you
shall be sent you at the address set forth below or at such other
address as you may designate in writing. All notices required or
permitted to be given pursuant to this agreement shall be given in
writing and delivered by personal delivery, by postage prepaid mail, or
by facsimile or similar means of same-day delivery, with a confirming
copy by mail.
17. AUTHORIZATION. Each party represents to the other that all requisite
corporate proceedings have been undertaken to authorize it to enter
into and perform under this agreement as contemplated herein, and that
the individual that has signed this agreement below on its behalf is a
duly elected officer that has been empowered to act for and on behalf
of such party with respect to the execution of this agreement.
18. MISCELLANEOUS. This agreement supersedes any other agreement between
the parties with respect to the offer and sale of Fund Shares and other
matters covered herein. The invalidity or unenforceability of any term
or provision hereof shall not affect the validity or enforceability of
any other term or provision hereof. This agreement may be executed in
any number of counterparts, which together shall constitute one
instrument. This agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts without
regard to conflict of laws principles, and shall bind and inure to the
benefit of the parties hereto and their respective successors and
assigns.
* * * *
If the foregoing corresponds with your understanding of our agreement, please
sign this document and the accompanying copies thereof in the appropriate space
below and return the same to us, whereupon this agreement shall be binding upon
each of us.
BISYS FUND SERVICES LIMITED PARTNERSHIP
BY: BISYS FUND SERVICES, INC.
By:
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Insert Name:
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Title:
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Agreed to and accepted:
[Dealer]
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By:
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Insert Name:
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Title:
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Date:
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Address of Dealer:
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APPENDIX A
[FUND FAMILY]
BISYS FUND SERVICES LIMITED PARTNERSHIP, DISTRIBUTOR
List of Funds
APPENDIX B
[FUND FAMILY]
BISYS FUND SERVICES LIMITED PARTNERSHIP, DISTRIBUTOR
DISTRIBUTION/SERVICE FEE AGREEMENT
[Dealer name]
Ladies and Gentlemen:
This Fee Agreement ("Agreement") confirms our understanding and agreement with
respect to Rule 12b-1 payments to be made to you in accordance with the Dealer
Agreement between you and us (the "Dealer Agreement"), which entitles you to
serve as a selected dealer of certain Funds for which we serve as Distributor.
Capitalized terms used but not defined herein shall have the respective meanings
set forth in the Dealer Agreement.
1. From time to time during the term of this Agreement, we may make payments to
you pursuant to one or more distribution and service plans (the "Plans") adopted
by certain of the Funds pursuant to Rule 12b-1 of the 1940 Act. You agree to
furnish sales and marketing services and/or shareholder services to your
customers who invest in and own Fund Shares, including, but not limited to,
answering routine inquiries regarding the Funds, processing shareholder
transactions, and providing any other shareholder services not otherwise
provided by a Fund's transfer agent. With respect to such payments to you, we
shall have only the obligation to make payments to you after, for as long as,
and to the extent that, we receive from the Fund an amount equivalent to the
amount payable to you. The Fund or us, as Distributor, each reserves the right,
without prior notice, to suspend or eliminate the payment of such Rule 12b-1
Plan payments or other dealer compensation by amendment, sticker or supplement
to the then-current Prospectus of the Fund.
2. Any such fee payments shall reflect the amounts described in a Fund's
Prospectus. Payments will be based on the dollar amount of Fund Shares which are
owned by those customers of yours whose records, as maintained by the Funds or
the transfer agent, designate your firm as the customer's dealer of record or is
agreed to by us and the dealer of record. No such fee payments will be payable
to you with respect to shares purchased by or through you and redeemed by the
Funds within seven business days after the date of confirmation of such
purchase. You represent that you are eligible to receive any such payments made
to you under the Plans.
3. You agree that all activities conducted under this Agreement will be
conducted in accordance with the Plans, as well as all applicable state and
federal laws, including the Investment Company Act of 1940, the Securities
Exchange Act of 1934, the Securities Act of 1933 and any applicable rules of the
NASD.
4. At the end of each month [Quarterly?], you shall furnish us with a written
report describing the amounts payable to you pursuant to this Agreement and the
purpose for which such amounts were expended. We shall provide quarterly reports
to the Funds' Board of amounts expended pursuant to the Plans and the purposes
for which such expenditures were made. You shall furnish us with such other
information as shall reasonably be requested by us in connection with our
reports to the Board with respect to the fees paid to you pursuant to this
Agreement.
5. This Agreement shall continue in effect until terminated in the manner
prescribed below or as provided in the Plans or in Rule 12b-1. This Agreement
may be terminated, with respect to one or more Funds, without penalty, by either
of us, upon ten days' prior written notice to the other party. In addition, this
Agreement will be
terminated with respect to any Fund upon a termination of the relevant Plan or
the Deafer Agreement, if a Fund closes to new investments, or if our
Distribution Agreement with the Funds terminates.
6. This Agreement may be amended by us from time to time by the following
procedure. We will mail a copy of the amendment to you at your address shown
below or as registered from time to time with the NASD. If you do not object to
the amendment within fifteen (15) days after its receipt, the amendment will
become a part of this Agreement. Your objection must be in writing and be
received by us within such fifteen days.
7. This Agreement shall become effective as of the date when it is executed and
dated by us below. This Agreement and all the rights and obligations of the
parties hereunder shall be governed by and construed under the laws of the
Commonwealth of Massachusetts.
8. All notices and other communications shall be given as provided in the Dealer
Agreement. If the foregoing is acceptable to you, please sign this Agreement in
the space provided below and return the same to us.
BISYS FUND SERVICES LIMITED PARTNERSHIP
BY: BISYS FUND SERVICES, INC.
By:
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Insert Name:
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Title:
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Agreed to and Accepted:
Name and Address of Dealer firm:
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By:
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Insert Name:
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Title:
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Date:
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APPENDIX C
TO: BISYS FUND SERVICES LIMITED PARTNERSHIP
as DISTRIBUTOR OF [FUND FAMILY]
Confirmation Pursuant to NASD Notice to Members 03-50
As a selected dealer of the Shares of the above-referenced Funds, and pursuant
to the terms of our Dealer Agreement, we hereby certify to you that we will at
all times comply with (i) the provisions of our Dealer Agreement related to
compliance with all applicable rules and regulations; and (ii) the terms of each
registration statement and prospectus for the Funds.
We have performed a review of our internal controls and procedures to ensure
that such controls and procedures are adequate to (i) prevent the submission of
any order received after the deadline for submission of orders in each day that
are eligible for pricing at that day's net asset value per share ("NAV"); and
(ii) prevent the purchase of Fund Shares by an individual or entity whose stated
objectives are not consistent with the stated policies of a Fund in protecting
the best interests of longer-term investors, particularly where such
customer-investor may be seeking market timing or arbitrage opportunities
through such purchase.
