Exhibit 23(m)(2)
TAMARACK DISTRIBUTORS INC.
DEALER AND SELLING GROUP AGREEMENT
Gentlemen:
We have entered into a Distribution Agreement with Tamarack Funds Trust
("Trust") with respect to shares of certain of its series, either now, or
hereafter to be created ("Funds"), under which we are appointed exclusive agent
for the sale of shares of common stock, including separate classes of such
shares, of the Funds ("Shares"). As such agent, we offer to sell to you as a
member of a Selling Group, Shares on the terms set forth below. We are acting as
an underwriter within the meaning of Conduct Rule 2830 of the National
Association of Securities Dealers, Inc. This Agreement on your part runs to us
and to the Funds and is for the benefit of and enforceable by each.
1. You are to offer and sell Shares of the Funds only at the
public offering price per share currently determined by each Fund in the manner
described in its Prospectus. The public offering price is the net asset value
("NAV") per share of the particular Fund, plus any applicable initial sales
charge, reflecting such breakpoints or waivers described in the Prospectus as
may be applicable to a particular purchase. All orders for the redemption or
exchange of Shares shall be executed at the NAV per share, in each case as
described in the Prospectus. Any applicable deferred sales charges (contingent
or otherwise), redemption fee, or similar charge or fee will be deducted by us
or by the Funds, as applicable, prior to transmitting the proceeds of a
redemption order or effecting an exchange order. This Agreement on your part
runs to us and to the Funds and is for the benefit of and enforceable by us and
by each Fund.
2. You are hereby authorized (i) to place orders with us for
Shares and (i) to tender Shares to us for redemption.
3. You have advised us that you are a broker-dealer registered
under the Securities Act of 1934, as amended, and a member of the National
Association of Securities Dealers, Inc. ("NASD") or are exempt from registration
as a broker-dealer under the 1934 Act. You agree to abide by the Conduct Rules
of the NASD (if applicable), and all applicable laws, rules and regulations,
including applicable federal and state securities laws, rules and regulations
that are now or may become applicable to transactions hereunder. This Agreement
is in all respects subject to Conduct Rule 2830 of the NASD, which shall control
any provisions to the contrary.
4. The parties acknowledge that they are financial institutions
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. The parties further
acknowledge that they are in compliance and will continue to comply with the AML
Acts and applicable anti-money laundering rules of self regulatory
organizations, including 3011 of the NASD, in all relevant respects.
5. We shall not accept from you any conditional orders for the
Shares. If payment for the Shares purchased is not received within five days,
the sale may be canceled forthwith without any responsibility or liability on
our part or on the part of the Funds (in which case you
will be responsible for any loss, including loss of profit suffered by the Funds
resulting from your failure to make payment as aforesaid), or, at our option, we
may sell the Shares ordered back to the Funds (in which case we may hold you
responsible for any loss of profit suffered by us resulting from your failure to
make payment as aforesaid). Any order by you for the purchase of Shares of the
Funds through us shall be executed pursuant to the terms and conditions
specified in the Prospectus of each Fund for which an order is made unless
rejected by us or that Fund. You will not transmit for execution at a Fund's NAV
calculated for any business day an order that was received after the time as of
which the Fund calculates its NAV for that day, or after such other time as may
be disclosed in the Prospectus as the deadline for placing orders for Fund
shares. In addition to the right to reject any order, each Fund has reserved the
right to withhold Shares from sale temporarily or permanently.
6. You will not offer to sell any of the Shares except under
circumstances that will result in compliance with the Federal and state
securities laws and in connection with sales and offers to sell Shares, you will
furnish to each person to whom any such sale or offer is made a copy of the
applicable then current prospectus We shall be under no liability to you except
for lack of good faith and for obligations expressly assumed by us 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 any provisions of the Securities Act of 1933, or of the Rules
and Regulations of the Securities and Exchange Commission or to relieve the
parties hereto from any liability arising under the Securities act of 1933.
7. You will not engage in, authorize or facilitate market timing
or late trading in the Shares, either for your own account or the accounts of
your customers. You shall assist us and the Funds in identifying and preventing
market timing and late trading in Shares.
8. No person is authorized to make any representations concerning
Shares of the Funds except those contained in the then current prospectus and
printed information issued by each Fund or by us as information supplemental to
each prospectus. We shall supply prospectuses, reasonable quantities of
supplemental sales literature, sales bulletins, and additional information as
issued. You agree not to use other advertising or sales material relating to the
Funds unless approved in writing by us in advance of such use. Any printed
information furnished by us other than the then current prospectus for each
Fund, periodic reports and proxy solicitation materials are our sole
responsibility and not the responsibility of the Funds, and you agree that the
Funds shall have no liability or responsibility to you in these respects unless
expressly assumed in connection therewith.
9. In accordance with the terms of the Master Distribution Plan
and Supplements (the "Plan") adopted on behalf of the Funds and, as we shall
from time to time agree with in regard to certain Funds, we will pay you a fee
each month at an annual rate which shall not exceed that specified in each
Fund's current Prospectus based on the daily share value of the preceding
month's share balance of each Fund, or each Class of Shares, as applicable,
owned by shareholders who purchased their Shares through you.
10. You agree to respond to investor inquiries concerning the Fund
to the best of your ability and to contact all shareholders in the Funds to whom
you have sold Shares on a periodic basis to provide them with such information
about the Funds as we will reasonably provide to you.
11. You are obliged to date and time stamp all orders received by
you and promptly to transmit all orders to us in time to provide for processing
at the offering price next determined in accordance with the Prospectus. You are
not to withhold placing with us orders received from any customer for the
purchase of Shares so as to profit yourself as a result of such withholding. You
shall not purchase Shares through us except for the purpose of covering purchase
orders already received by you or for your bona fide investment.
12. You shall not, as principal, purchase any Shares of a Fund
from a record holder at a price lower than the net asset value next determined
with respect to the Shares, or relevant class of Shares, as applicable, of that
Fund. You shall, however, be permitted to sell any Shares of that Fund for the
account of a record owner to that Fund at the net asset value currently quoted
by or for those particular Shares, or for that class of Shares, and may charge a
fair service fee for handling the transaction provided you disclose the fee to
the record owner.
13. In purchasing Shares of a Fund through us, you shall act only
as Principal for your own account. You shall purchase Shares of a Fund only
through us, except for repurchase of Shares incidental to redemption. In no
transaction (whether a purchase or sale) shall you have any authority to act as
agent for, partner of, or participant in a joint venture with us or with a Fund
or any other member of the selling group.
14. You agree to comply with compliance standards to be furnished
to you by us regarding when each class of Shares may appropriately be sold to
particular investors.
15. We act solely as agent for the Funds and are not responsible
for qualifying the Funds or their Shares for sale in any jurisdiction. We also
are not responsible for the issuance, from, validity, enforceability or value of
Shares of the Funds.
16. All communications to us should be sent to the mailing address
on the following page. Any notice to you shall be duly given if mailed or
telegraphed to you at the address specified by you.
17. This Agreement shall terminate automatically (1) in the event
of its assignment, the term "assignment" for this purpose having the meaning
defined in Section 2(a)(4) of the Act or (ii) in the event the Plan is
terminated.
18. This Agreement may be terminated at any time (without payment
of any penalty) by a majority of the Board of Trustees of the Trust who are not
interested persons of the Trust and have no direct or indirect financial
interest in the operation of the Plan or in any agreements related to the Plan
or by a vote of a majority of the outstanding voting securities of a Fund, as
this Agreement pertains to such Fund, as defined in the Plan (on 60 days'
written notice to us at
our principal place of business). We, on 60 days' written notice addressed to
you at your principal place of business, may terminate this Agreement. A notice
of termination shall be deemed to have been given on the date on which it was
either delivered personally to the other party of any officer or member thereof,
or was mailed post-paid or delivered to a telegraph office for transmission to
the other party at his or its address. This Agreement may be amended by us at
any time upon notice to you, and your placing of any order after the effective
date of any such amendment shall constitute your acceptance thereof.
19. This Agreement should be executed in duplicate, each of which
shall be deemed to be an original. One of the duplicate originals should be
returned to us for our file. The Agreement shall be effective as of the date of
acceptance by you, but only upon receipt by us of such duplicate original. The
Agreement shall be construed in accordance with the laws of the State of
Minnesota.
Very Truly Yours,
TAMARACK DISTRIBUTORS INC.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
By:
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Accepted:
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