Exhibit (e)(5)
QUASAR DISTRIBUTORS, LLC
000 XXXX XXXXXXXX XXXXXX
XXXXX 000
XXXXXXXXX, XX 00000
DEALER AGREEMENT
This Agreement is made as of ______________________, 20__, between
Quasar Distributors, LLC ("Quasar"), a Delaware limited liability company, and
__________________________________ ("Dealer"), a ______________ corporation.
WHEREAS, Portico Funds, Inc. (the "Fund Company"), an open-end
management investment company registered under the Investment Company Act of
1940, as amended (the "1940 Act"), currently offers for public sale shares of
common stock ("Shares") in the separate series of the Fund Company listed on
Schedule A, as may be amended from time to time (each, a "Fund");
WHEREAS, Quasar serves as principal underwriter in connection with the
offering and sale of the Shares of each Fund pursuant to a Distribution
Agreement, and
WHEREAS, Dealer desires to serve as a selected dealer for the Shares of
the Funds.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein, Quasar and Dealer agree as follows:
1. SELECTED DEALER.
(a) Dealer agrees to offer and sell Shares only at the public offering
price currently in effect, in accordance with the terms of the then-current
prospectus(es), including any supplements or amendments thereto, of each Fund
("Prospectus"). The Dealer agrees to act only as agent on behalf of its
customers ("Customers") in such transactions and shall not have authority to act
as agent for the Funds, for Quasar, or for any other dealer in any respect. All
purchase orders are subject to acceptance by Quasar and the relevant Fund and
become effective only upon confirmation by Quasar or an agent of the Fund. In
its sole discretion, either the Fund or Quasar may reject any purchase order and
may, provided notice is given to Dealer, suspend sales or withdraw the offering
of Shares entirely.
(b) Dealer understands and acknowledges that each Fund offers its
Shares in multiple classes, each subject to differing sales charges and
financing structures. Dealer hereby represents and warrants that it has
established compliance procedures designed to ensure that Customers are made
aware of the terms of each available class of the applicable Fund's Shares, to
ensure that each Customer is offered only Shares that are suitable investments
of that Customer and to ensure proper supervision of Dealer's registered
representatives in recommending and offering multiple classes of Shares to its
Customers.
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(c) Dealer understands and acknowledges that certain Shares may be
subject to a contingent deferred sales charge when such shares are redeemed. As
to such Shares which are not networked, Dealer agrees either (i) to refrain from
issuing such Shares in street name, or (ii) to monitor the time period during
which the applicable contingent deferred sales charge remains in effect, to
deduct from any redemption proceeds the applicable contingent deferred sales
charge and to promptly remit to Quasar any such contingent deferred sales
charge.
(d) Dealer agrees that, if requested by Quasar, it will undertake from
time to time certain shareholder servicing activities ("shareholder services")
as requested by Quasar, for Customers who have purchased Shares. Dealer may
perform these duties itself or subcontract them to a third party of its choice.
These shareholder services may include, but are not limited to, one or more of
the following services as determined by Quasar: (i) maintaining accounts
relating to Customers that invest in Shares; (ii) providing information
periodically to Customers showing their positions in Shares; (iii) arranging for
bank wires; (iv) responding to Customer inquiries relating to the services
performed by Dealer; (v) responding to routine inquiries from Customers
concerning their investments in Shares; (vi) forwarding shareholder
communications from the Funds (such as proxies, shareholder reports, annual and
semi-annual financial statements and dividend, distribution and tax notices) to
Customers; (vii) processing purchase, exchange and redemption requests from
Customers and placing such orders with the Funds' service providers; (viii)
assisting Customers in changing dividend options, account designations, and
addresses; (ix) providing subaccounting with respect to Shares beneficially
owned by Customers; (x) processing dividend payments from the Funds on behalf of
Customers; and (xi) providing such other similar services as Quasar may
reasonably request to the extent Dealer is permitted to do so under applicable
laws or regulations.
2. PROCEDURES FOR PURCHASES. The procedures relating to all orders and
the handling of them shall be made in accordance with the procedures set forth
in each Fund's Prospectus, and to the extent consistent with the Prospectus,
written instructions forwarded to Dealer by Quasar from time to time.
3. SETTLEMENT AND DELIVERY FOR PURCHASES. Transactions shall be settled
by Dealer by payment in Federal funds of the full purchase price to the Funds'
transfer agent in accordance with applicable procedures. Payment for Shares
shall be received by the Funds' transfer agent by the later of (a) the end of
the third business day following Dealer's receipt of the Customer's order to
purchase such Shares or (b) the end of one business day following Dealer's
receipt of the Customer's payment for such Shares, but in no event later than
the end of the sixth business day following Dealer's receipt of the Customer's
order. If such payment is not received within the time specified, the sale may
be canceled forthwith without any responsibility or liability on Quasar's part
or on the part of the Funds to Dealer or its Customers. In addition, Dealer will
be responsible to the Fund and/or Quasar for any losses suffered on the
transaction.
4. PROCEDURES FOR REDEMPTION, REPURCHASE AND EXCHANGE. Redemptions or
repurchases of Shares as well as exchange requests shall be made in accordance
with the
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procedures set forth in each Fund's Prospectus, and to the extent consistent
with the Prospectus, written instructions forwarded to Dealer by Quasar from
time to time.
5. COMPENSATION. On each purchase of Shares by Dealer from Quasar,
Dealer shall be entitled to receive such dealer allowances, concessions,
finder's fees, sales charges, discounts and other compensation, if any, as
described and set forth in each Fund's Prospectus. Sales charges and discounts
to dealers, if any, may be subject to reductions under a variety of
circumstances if described in each Fund's Prospectus. To obtain any such
reductions, Quasar must be notified when a sale takes place that would qualify
for the reduced charge. If any Shares sold by Dealer under the terms of this
Agreement are redeemed by a Fund or tendered for redemption or repurchased by a
Fund or by Quasar as agent within seven business days after the date Dealer
purchased such Shares, Dealer shall notify Quasar in writing and shall forfeit
its right to any discount or commission received by or allowed to Dealer from
the original sale. Dealer shall not be entitled to any compensation for its
services under any 12b-1 plan in effect for a Fund unless Dealer has signed a
related agreement.
6. EXPENSES. Dealer agrees that it will bear all expenses incurred in
connection with its performance of this Agreement.
7. DEALER REGISTRATION.
(a) Dealer represents and warrants that (i) it is registered as a
broker-dealer under the Securities Exchange Act of 1934 (the "1934 Act") or is
exempt from registration as a broker-dealer under the 1934 Act, (ii) it is
qualified as a broker-dealer in all states or other jurisdictions in which it
sells Fund Shares or is exempt from registration as a broker-dealer in all
states or other jurisdictions in which it sells Fund Shares, and, (iii) if it
sells shares in additional states or jurisdictions in the future, will become
qualified to act as a dealer in each such state or jurisdiction prior to selling
any Fund shares or will confirm an exemption from registration as a
broker-dealer in each such state or jurisdiction prior to selling any Fund
shares.
(b) Dealer shall maintain any filings and licenses required by federal
and state laws to conduct the business contemplated under this Agreement. Dealer
agrees to notify Quasar immediately in the event of any finding that it violated
any applicable federal or state law, rule or regulation arising out of its
activities as a broker-dealer or in connection with this Agreement, or which may
otherwise affect in any material way its ability to act in accordance with the
terms of this Agreement.
(c) If Dealer is a "bank," as such term is defined in Section 3(a)(6)
of the 1934 Act, Dealer further represents and warrants that it is a member of
the Federal Deposit Insurance Corporation ("FDIC") in good standing and agrees
to notify Quasar immediately of any changes in Dealer's status with the FDIC.
(d) If Dealer is registered as a broker-dealer under the 1934 Act,
Dealer represents and warrants that it is a member in good standing of the
National Association of Securities Dealers,
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Inc. (the "NASD") and that it agrees to abide by the Conduct Rules of the NASD.
Dealer agrees to notify Quasar immediately in the event of its expulsion or
suspension from the NASD.
(e) If Dealer is registered as a broker-dealer under the 1934 Act,
Dealer further represents and warrants that it is a member of the Securities
Investor Protection Corporation ("SIPC") in good standing and agrees to notify
Quasar immediately of any changes in Dealer's status with SIPC.
8. COMPLIANCE WITH FEDERAL AND STATE LAWS.
(a) Dealer will not sell any of the Shares except in compliance with
all applicable federal and state securities laws. In connection with sales and
offers to sell Shares, Dealer will furnish or cause to be furnished to each
person to whom any such sale or offer is made, at or prior to the time of
offering or sale, a copy of the Prospectus and, if requested, the related SAI.
Quasar shall be under no liability to Dealer except for lack of good faith and
for obligations expressly assumed by Quasar herein. Nothing herein contained,
however, shall be deemed to be a condition, stipulation or provision binding any
persons acquiring any security to waive compliance with, or to relieve the
parties hereto from any liability arising under, the federal securities laws.
(b) Quasar shall, from time to time, inform Dealer as to the states and
jurisdictions in which Quasar believes the Shares have been qualified for sale
under, or are exempt from the requirements of, the respective securities laws of
such states and jurisdictions. Dealer agrees that it will not knowingly offer or
sell Shares in any state or jurisdiction in which such Shares are not qualified,
unless any such offer or sale is made in a transaction that qualifies for an
exemption from registration.
(c) Quasar assumes no responsibility in connection with the
registration of Dealer under the laws of the various states or under federal law
or Dealer's qualification under any such law to offer or sell Shares.
9. UNAUTHORIZED REPRESENTATIONS. No person is authorized to make any
representations concerning Shares of the Funds except those contained in the
Prospectus, SAI and printed information issued by each Fund or by Quasar as
information supplemental to each Prospectus. Quasar shall, upon request, supply
Dealer with reasonable quantities of Prospectuses and SAIs. Dealer agrees not to
use other advertising or sales material relating to the Funds unless approved by
Quasar in advance of such use. Neither party shall use the name of the other
party in any manner without the other party's written consent, except as
required by any applicable federal or state law, rule or regulation, and except
pursuant to any mutually agreed upon promotional programs.
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10. CONFIRMATIONS. Dealer agrees to send confirmations of orders to its
Customers as required by Rule 10b-10 of the 1934 Act. In the event the Customers
of Dealer place orders directly with the Fund or any of its agents,
confirmations will be sent to such Customers, as required, by the Fund's
transfer agent.
11. RECORDS. Dealer agrees to maintain all records required by
applicable state and federal laws and regulations relating to the offer and sale
of Shares to its Customers, and upon the reasonable request of Quasar, or of the
Funds, to make these records available to Quasar or the Fund's administrator as
reasonably requested. On orders placed directly with a Fund or its agents, the
Fund's transfer agent will maintain all records required by state and federal
laws and regulations relating to the offer and sale of Shares.
12. TAXPAYER IDENTIFICATION NUMBERS. Dealer agrees to obtain any
taxpayer identification number certification from its Customers required under
the Internal Revenue Code and any applicable Treasury regulations, and to
provide Quasar or its designee with timely written notice of any failure to
obtain such taxpayer identification number certification in order to enable the
implementation of any required backup withholding.
13. INDEMNIFICATION.
(a) Dealer shall indemnify and hold harmless Quasar, each Fund, the
transfer agent and administrator of the Funds, and their respective affiliates,
officers, directors, agents, employees and controlling persons from all direct
or indirect liabilities, losses or costs (including reasonable attorneys' fees)
arising from, related to or otherwise connected with any breach by Dealer of any
provision of this Agreement.
(b) Quasar shall indemnify and hold harmless Dealer and its affiliates,
officers, directors, agents, employees and controlling persons from and against
any and all direct or indirect liabilities, losses or costs (including
reasonable attorneys' fees) arising from, related to or otherwise connected with
any breach by Quasar of any provision of this Agreement.
(c) The Agreement of the parties in this Paragraph to indemnify each
other is conditioned upon the party entitled to indemnification (the
"Indemnified Party") notifying the other party (the "Indemnifying Party")
promptly after the summons or other first legal process for any claim as to
which indemnity may be sought is served on the Indemnified Party, unless failure
to give such notice does not prejudice the Indemnifying Party. The Indemnified
Party shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting from it, provided that counsel for the
Indemnifying Party who shall conduct the defense of such claim or litigation
shall be approved by the Indemnified Party (which approval shall not
unreasonably be withheld), and that the Indemnified Party may participate in
such defense at its expense. The failure of the Indemnified Party to give notice
as provided in this subparagraph (c) shall not relieve the Indemnifying Party
from any liability other than its indemnity obligation under this Paragraph. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
without the written consent of the Indemnified Party, consent to entry of any
judgment or enter into any
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settlement that does not include as an unconditional term the giving by the
claimant or plaintiff to the Indemnified Party of a release from all liability
in respect to such claim or litigation.
14. NO AGENCY CREATED. Nothing in this Agreement shall be deemed or
construed to make Dealer an employee, agent, representative or partner of any of
the Funds or of Quasar, and Dealer is not authorized to act for Quasar or for
any Fund or to make any representations on Quasar's or the Funds' behalf. Dealer
acknowledges that this Agreement is not exclusive and that Quasar may enter into
similar arrangements with other broker-dealers.
15. TERM, TERMINATION, ASSIGNMENT AND AMENDMENT.
(a) This Agreement shall commence on the date first set forth above and
shall continue in effect with respect to a Fund for more than one year only so
long as such continuance is specifically approved at least annually in
conformity with the requirements of the 1940 Act.
(b) Either party to this Agreement may terminate this Agreement by
giving ten days' written notice to the other.
(c) This Agreement shall terminate automatically with respect to any
Fund if (i) Dealer files a petition in bankruptcy, (ii) a trustee or receiver is
appointed for Dealer or its assets under federal bankruptcy laws, (iii) Dealer's
registration as a broker-dealer with the Securities and Exchange Commission is
suspended or revoked, (iv) Dealer's NASD membership is suspended or revoked, (v)
an application for a protective decree under the provisions of the Securities
Investor Protection Act of 1970 is filed against Dealer, or (vi) the
Distribution Agreement between Quasar and a Fund is terminated (including as a
result of an assignment). This Agreement also shall terminate automatically in
the event of its "assignment," within the meaning of the 1940 Act.
(d) Termination of this Agreement by operation of this Paragraph 15
shall not affect any unpaid obligations under Paragraphs 3, 5 or 6 of this
Agreement or the liability, legal and indemnity obligations set forth under
Paragraphs 7, 8, 9 or 13 of this Agreement.
(e) This Agreement may be amended by Quasar upon written notice to
Dealer, and Dealer shall be deemed to have consented to such amendment upon
effecting any purchases of shares for its own account or on behalf of any
Customer's accounts following Dealer's receipt of such notice.
16. NOTICES. Except as otherwise specifically provided in this
Agreement, any notice required or permitted to be given by either party to the
other shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service or 3 days after sent by registered or
certified mail, postage prepaid, return receipt requested or on the date sent
and confirmed received by facsimile transmission to the other party's address
set forth below:
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Notice to Quasar shall be sent to:
Quasar Distributors, LLC
Attn: Dealer Agreement Department
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
notice to Dealer shall be sent to:
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17. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
18. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws (without regard, however, to conflicts of law principles) of the State
of Wisconsin, provided that no provision shall be construed in a manner not
consistent with the 1940 Act or any rule or regulation thereunder.
19. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, or any breach thereof, shall be settled by arbitration in
accordance with the then existing NASD Code of Arbitration Procedure. Any
arbitration shall be conducted in Milwaukee, Wisconsin, and each arbitrator
shall be from the securities industry. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
20. CONFIDENTIALITY. Quasar and Dealer agree to preserve the
confidentiality of any and all materials and information furnished by either
party in connection with this Agreement. The provisions of this Paragraph shall
not apply to any information which is: (a) independently developed by the
receiving party, provided the receiving party can satisfactorily demonstrate
such independent development with appropriate documentation; (b) known to the
receiving party prior to disclosure by the disclosing party; (c) lawfully
disclosed to the receiving party by a third party
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not under a separate duty of confidentiality with respect thereto to the
disclosing party; or (d) otherwise publicly available through no fault or breach
by the receiving party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated as of the day and year first written
above.
QUASAR DISTRIBUTORS, LLC
By:
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Type Name: Xxxxx Xxxxxxxxx, President
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DEALER
By:
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Type Name:
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Schedule A
Names of Funds
PORTICO FUNDS, INC.
Large Cap Growth Fund
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