FORM OF SELECTED DEALER AGREEMENT
Xxxx Xxxxx Investor Services, LLC
[Name & address of dealer]
Ladies and Gentlemen:
We, Xxxx Xxxxx Investor Services, LLC ("LMIS," "we," or "us"), have
agreements with certain investment companies (each a "Distribution Agreement"))
or series thereof provided on Schedule A (each a "Fund"), which we may amend
from time to time upon written notice to you, pursuant to which we act as the
principal underwriter and distributor for the sale of common shares of the Funds
("Shares"), and as such we have the right to distribute Shares for resale. Each
Fund is an open-end investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), and the Shares being offered to the
public are registered under the Securities Act of 1933, as amended (the "1933
Act"). The term "Prospectus", as used herein, refers to the prospectus and
related statement of additional information (the "Statement of Additional
Information") incorporated therein by reference (each as amended or
supplemented) on file with the Securities and Exchange Commission ("SEC") at the
time in question. This Agreement shall only apply to those Funds and Shares
listed on Schedule A from time to time and does not necessarily apply to all of
the Funds and Shares for which LMIS acts as the principal underwriter and
distributor. References to Funds and Shares shall, therefore, be qualified to
include only those Funds and Shares as listed on Schedule A from time to time.
We understand that you wish to act as a dealer with respect to the
Shares. You have represented that you are either a broker-dealer registered with
the SEC under the Securities Exchange Act of 1934, as amended, ("1934 Act"), and
a member in good standing of the National Association of Securities Dealers,
Inc. ("NASD"), or a "bank" as defined in Section 3(a)(6) of the 1934 Act
("Bank") and are not required to register as a broker-dealer under the 1934 Act,
at the time of each transaction subject to this Agreement. As a broker in the
capacity of principal underwriter and distributor for the Funds, we authorize
you, and you hereby agree, to sell or to arrange for the sale of Shares of each
Fund upon the following terms and conditions, and you agree to perform certain
other services set forth in this Selected Dealer Agreement ("Agreement"):
1. Authorization, Services and Duties.
(a) Purchase, redemption or exchange orders received from you
will be accepted through us only at the public offering price per share (i.e.,
the net asset value per share plus the applicable front-end sales charge, if
any) applicable to each order, and all orders for redemption of any Shares shall
be executed at the net asset value per share less any applicable deferred sales
charge, if any, in each case as set forth in the applicable Prospectus. A Fund
may additionally impose redemption fees, as described in the applicable
Prospectus. Any applicable deferred sales charge amounts received or retained by
you shall be paid over by you directly to us or our designated delegate in
partial consideration of our payment to you of any commission amounts provided
by us at the time of sale. The procedure relating to the handling of orders
shall be subject to provisions of this Agreement and instructions that we or the
Fund shall forward from time to time to you. All orders are subject to
acceptance or rejection by the applicable Fund or us in the sole discretion of
either. The minimum initial purchase and the minimum subsequent purchase of any
Shares shall be as set forth in the applicable Prospectus. You agree to comply
with provisions of Rule 22c-2 under the 1940 Act as applicable to each Fund
(including reporting procedures adopted to comply with the Rule). You agree to
effect all purchase, redemption or exchange orders in the manner and upon the
terms described in the Prospectus (including restrictions on frequent trading,
imposition of redemption fees and maintenance of account balance minimums.)
(b) You shall be permitted to accept orders for the purchase,
exchange or redemption of Shares of the Funds on each business day that the New
York Stock Exchange ("NYSE") is open for business and a Fund's net asset value
is determined ("Business Day"). Instructions received in proper form by you
prior to time of acceptance for orders set forth in the applicable Prospectus
("Close of Trading") (generally the close of regular trading on the NYSE, which
is generally 4:00 p.m. Eastern Time), and with respect to which you transmit
orders to the Fund via the NSCC Fund/SERV system up to the latest time accepted
by Fund/SERV on a given Business Day, will be deemed to have occurred, and will
be credited to the respective account, at the per share NAV next calculated
after the Close of Trading on that Business Day. You will not transmit orders
based on Instructions received from Shareholders after the Close of Trading for
that Business Day's NAV.
(c) Solely for the limited purpose of receiving orders for the
Shares of the Funds by customers prior to the Close of Trading on a Business Day
and communicating such orders after the Close of Trading on such Business Day,
you will be deemed to act as agent of the Funds. Each communication of orders by
you shall constitute a representation that such orders were received by us prior
to the calculation of net asset value, as described in the applicable Prospectus
on the Business Day on which the order is priced in accordance with Rule 22c-1
under the 1940 Act. You represent and warrant that: (a) there are controls in
place designed to prevent market timing and frequent trading, (b) you will use
your best efforts to assist us in identifying market timers or investors who
engage in a pattern of short-term trading, and (c) your internal systems for
processing and transmitting orders are suitably designed to prevent orders
received at or after the Close of Trading from being aggregated with orders
received before the Close of Trading.
(d) The offering price ("Offering Price") of Shares of each
Fund shall be the net asset value per share as next determined by the Fund
following receipt of an order at your principal office, plus any applicable
sales charge.
(e) In all sales to the public you shall act as broker-dealer
for your customers or as dealer for your own account, and in no transaction
shall you have any authority to act as agent for the Funds, for us or for any
other dealer except for the limited purpose of determining the time as of which
transactions in Shares are deemed to have been received, and as otherwise
provided in this Agreement.
(f) You shall not place orders for any Shares unless you have
already received purchase orders for those Shares at the applicable public
offering price and subject to the terms hereof. You agree that you will not
offer or sell any Shares except under circumstances that will result in
compliance with the applicable Federal and state laws (including, without
limitation, applicable provisions of the 1933 Act, 1934 Act, 1940 Act and the
rules and regulations of the NASD), any applicable banking laws, the applicable
rules and regulations thereunder and the rules and regulations of applicable
regulatory agencies or authorities (collectively, "Applicable Law") and that 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 Prospectus as and when
required under Applicable Laws and, upon request, the Statement of Additional
Information, and will not furnish to any person any information relating to
Shares which is inconsistent in any respect with the information contained in
the Prospectus or Statement of Additional Information (as then amended or
supplemented). You shall not furnish or cause to be furnished to any person or
display or publish any information or materials relating to the Shares
(including, without limitation, promotional materials and sales literature,
advertisements, press releases, announcements, statements, posters, signs or
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other similar material), except such information and materials as may be
furnished to you by, or on behalf of, us or the Funds, and such other
information and materials as may be approved by, or on behalf of, us or the
Funds.
(g) If you are a broker-dealer, you are hereby authorized (i)
to place orders directly with the applicable Fund or its agent for Shares
subject to the applicable terms and conditions governing the placement of orders
by us set forth in the Prospectus and (ii) to tender Shares directly to each
Fund or its agent for redemption or exchange subject to the applicable terms and
conditions governing the redemption of Shares applicable to us set forth in the
Prospectus including restrictions on frequent trading, imposition of redemption
fees and maintenance of account balance minimums.
(h) If you are a Bank, with respect to any and all
transactions in Shares of the Funds pursuant to this Agreement, it is understood
and agreed in each case that unless otherwise agreed to by us in writing: (i)
you shall be acting solely as agent for the account of your customer; (ii) each
transaction shall be initiated solely upon the order of your customer; (iii) we
shall execute transactions only upon receiving instructions from you acting as
agent for your customer; (iv) as between you and your customer, your customer
will have full beneficial ownership of all Shares; (v) each transaction shall be
for the account of your customer and not for your account; and (vi) each order
will comply with the applicable terms and conditions governing the placement of
orders as set forth in the Prospectus including restrictions on frequent
trading, imposition of redemption fees and maintenance of account balance
minimums.
(i) You shall not withhold placing orders received from your
customers so as to profit yourself as a result of such withholding, e.g., by a
change in the "net asset value" from that used in determining the offering price
to your customers.
(j) You shall provide ongoing shareholder liaison services to
the shareholders of each Fund, including responding to shareholder inquiries,
providing shareholders with information on their investments, and any other
services now or hereafter deemed to be appropriate subjects for the payment of
"service fees" under NASD Conduct Rule 2830.
(k) You agree to maintain records sufficient to identify the
date and time of receipt of all customer transactions or as otherwise required
by Applicable Law. You further agree to make such records available upon request
for examination by us, or our designated representative, at the request of the
transfer agent or by appropriate governmental authorities. Under no
circumstances shall you change, alter or manipulate any customer transactions
received by you in good order.
2. Settlement and Delivery.
(a) Transactions in the Shares of a Fund may be effected
through the Fund/SERV service of the National Securities Clearing Corporation
(the "NSCC") and, if applicable, account records may be maintained through the
networking service of the NSCC, provided that each party hereto will comply with
all applicable rules of the NSCC and the schedules thereto. Furthermore, you
hereby represent that all of your representations set forth in your agreement
with respect to participating in the NSCC network or in any schedules thereto
are accurate and true as of the date hereof and will remain accurate and true
insofar as the transactions in the Shares of the Fund are effected through the
Fund/SERV service of the NSCC and, if applicable, the account records are
maintained through the networking service of the NSCC. You will be solely
responsible for the accuracy of each instruction through the Fund/SERV and
networking services, and the issuance of a Fund/SERV instruction will constitute
your representation and warranty to us and a Fund's transfer agent that the
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instruction is accurate, complete, and issued as duly authorized by the client
whose Shares are the subject of the instruction.
(b) You agree that payment for orders from you for the
purchase of Shares will be made in accordance with the terms of the Prospectus.
On or before the settlement date of each purchase order for Shares, you shall
transfer same day funds to an account designated by us with the transfer agent
in an amount equal to the public offering price on the date of purchase of the
Shares being purchased less your sales concession, if any, with respect to such
purchase order determined in accordance with the Prospectus. If payment for any
purchase order is not received in accordance with the terms of the Prospectus,
we reserve the right, without notice, to cancel the purchase and to hold you
responsible for any loss sustained as a result thereof.
(c) If any Shares sold under the terms of this Agreement are
sold with a sales charge and are redeemed or are tendered for redemption within
seven (7) business days after confirmation of your purchase order for such
Shares, you shall forthwith refund to us the full sales concession received by
you on the sale.
(d) Certificates evidencing Shares generally will not be
available. Upon payment for Shares in accordance with this paragraph 2, the
transfer agent will issue and transmit to you or your customer a confirmation
statement evidencing the purchase of such Shares. Any transaction in
uncertificated Shares, including purchases, transfers, redemptions and
repurchases, shall be effected and evidenced by book-entry on the records of the
transfer agent.
(e) We will not accept any conditional orders for Shares
transmitted by you.
(f) We and each Fund reserve the right in our discretion,
without notice, to suspend sales or withdraw the offering of any Shares
entirely.
(g) In making Shares available to your clients or customers,
you agree to comply with all Applicable Law, including the applicable law and
regulation of the jurisdictions in which you sell any Shares directly or
indirectly.
(h) As a result of the necessity to compute the amount of any
applicable deferred sales charge or redemption charge due with respect to the
redemption of Shares, you may hold Shares of a Fund imposing such a charge in a
"street name" account with our consent, and, in such event, you shall be
responsible for computation, collection and payment to us of such charges, the
application of any discounts, the application of Fund's market-timing and
frequent trading policies, providing lot histories if accounts convert from
omnibus to individual accounts, all in accordance with the applicable Prospectus
for the Fund. Except as otherwise permitted by us, Shares owned by a shareholder
must be in a separate identifiable account for such shareholder.
3. Authority With Respect to Offering of Shares. We shall have full
authority to take such action as we may deem advisable in respect of all matters
pertaining to the continuous offering of Shares. We shall be under no liability
to you except for lack of good faith and for obligations expressly assumed by us
herein. Nothing contained in this paragraph 3 is intended to operate as, and the
provisions of this paragraph 3 shall not in any way whatsoever constitute a
waiver by you of compliance with, any provisions of the 1933 Act or of the rules
and regulations of the SEC issued thereunder.
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4. Compensation.
(a) We will pay or cause to be paid to you any ongoing
distribution fees and/or shareholder service fees with respect to Shares
purchased through you and held by or for your customers at such rates and in
such manner as may be described in the Prospectus and as may be agreed to by the
parties from time-to-time.
(b) Each Fund's Board has adopted a Distribution Plan pursuant
to Rule 12b-1 of the 1940 Act (the "Plans") with respect to applicable Shares.
Under the terms of the Plans, we may be entitled to compensation for
distribution related services that we provide to the Funds, and we are permitted
to pay all or a portion of such compensation to entities that engage in or
support the distribution of Shares. For the services to be provided under this
Agreement and for so long as this Agreement remains in effect, we agree to pay
you in accordance with Schedule B.
(c) In the event we do not receive payment from a Fund under
the relevant Distribution Agreement or applicable Plan or as otherwise provided
in the Prospectus, or if such Distribution Agreement or Plan is cancelled,
terminated or modified, you agree to waive your right to receive compensation
until such time, if ever, we receive payment.
(d) You agree that, with respect to the compensation you
receive in connection with the offering of Shares or transactions involving
Shares (including payments from us or our affiliates), you will make or cause to
be made disclosure of such payments in accordance with Applicable Law.
(e) In determining the amount of any sales concession payable
to you hereunder, we reserve the right to exclude any sales that we reasonably
determine are not made in accordance with the terms of the Prospectus and the
provisions of this Agreement. If you provide sub-accounting services, you will
provide us with transaction details, invoices for any shareholder servicing fees
pursuant to the Fund's then current Rule 12b-1 plan, and reports detailing any
contingent deferred sales charges due to us.
5. Representations Concerning the Funds. No person is authorized to
make any representations concerning Shares except those contained in the current
Prospectus and Statement of Additional Information and in printed information
subsequently issued by us or the Funds as information supplemental to the
Prospectus and the Statement of Additional Information. In purchasing or
offering Shares pursuant to this Agreement you shall rely solely on the
representations contained in the Prospectus, the Statement of Additional
Information and the supplemental information above mentioned.
6. Prospectus and Materials Delivery to Clients. You agree to deliver
to each purchaser making a purchase of Shares from or through you a copy of the
Prospectus as required by Applicable Law and, upon request, the Statement of
Additional Information. You may instruct the transfer agent to register Shares
purchased in your name and account as nominee for your customers. You agree
thereafter to deliver to any purchaser whose Shares you or your nominee are
holding as record holder as required by Applicable Law copies of the annual and
interim reports and proxy solicitation materials and any other information and
materials relating to the Funds and prepared by or on behalf of us, the Funds or
the investment adviser, custodian, transfer agent or dividend disbursing agent
for distribution to beneficial holders of Shares. The Funds shall be responsible
for the costs associated with forwarding such reports, materials and other
information and shall reimburse you in full for such costs. You further agree to
make reasonable efforts to endeavor to obtain proxies from such purchasers whose
Shares you or your nominee are holding as record holder. You further agree to
obtain from each customer to whom you sell Shares any taxpayer identification
number certification required under Section 3406 of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations promulgated thereunder, and
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to provide us or our 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 in accordance with Section
3406 of the Code and the regulations thereunder. Additional copies of the
Prospectus, Statement of Additional Information, annual or interim reports,
proxy solicitation materials and any such other information and materials
relating to the Funds will be supplied to you in reasonable quantities upon
request.
7. Termination, Amendment and Assignment.
(a) This Agreement may be terminated with respect to any Fund
at any time, without the payment of any penalty, by vote of the Fund's Board, by
vote of a majority of those members of such Board who are not "interested
persons" of that Fund as defined in the 1940 Act, or by vote of a majority of
the outstanding voting securities of a Fund on 60 days' written notice to you
and us.
(b) Notwithstanding subparagraph 14(a), each party hereto has
the right to terminate this Agreement without penalty upon 30 days' notice to
the other party; provided, however, that termination shall not affect any
party's obligations hereunder with respect to any transactions or activities
occurring prior to the effective time of termination.
(c) Upon termination of this Agreement, ongoing trail
commissions and/or shareholder servicing fees shall no longer accrue or be paid
to you.
(d) We reserve the right to amend this Agreement in any
respect effective on notice to you and your placing of an order after the
effective date of any such amendment shall constitute your acceptance thereof;
provided, however, that any changes to Schedule A shall be effective upon notice
to you. Each notice of amendment required by this paragraph shall be given in
writing and delivered personally or mailed by certified mail or overnight
courier service or sent by facsimile to the address identified herein or such
other address as you may by written notice provide.
(e) This Agreement will terminate automatically, unless
amended in accordance with paragraph (d) of this section, in the event of its
assignment. This Agreement will terminate automatically with respect to any Fund
in the event that the Distribution Agreement or Plan with respect to such Fund
is terminated.
(f) The indemnification provisions contained in this Agreement
shall survive the termination of this Agreement.
8. Services Not Exclusive. The services furnished by you hereunder are
not to be deemed exclusive, and you shall be free to furnish similar services to
others so long as its services under this Agreement are not impaired thereby.
This Agreement also does not preclude any other sales of Shares by or through
Xxxx Xxxxx or any other party.
9. Liability and Indemnification.
You agree that: (a) you shall not effect any transactions (including,
without limitation, any purchases and redemptions) in any Shares registered in
the name of, or beneficially owned by, any customer unless such customer has
granted you full right, power and authority to effect such transactions on his
behalf; (b) we shall have full authority to act upon your express instructions
to sell, repurchase or exchange Shares through us on behalf of your customers
under the terms and conditions provided in the Prospectus; and (c) you shall
indemnify and hold harmless the Funds, us and both of our respective affiliates,
representatives and agents, successors and assigns, officers and directors, and
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each person who controls either us or the Funds (within the meaning of the 0000
Xxx) from and against any and all direct or indirect costs, claims, expenses,
liabilities or losses, including attorney's fees resulting from (i) any alleged
violation of any statute or regulation or rule of a self-regulatory organization
(including, without limitation, the securities laws and regulations of the
United States or any state or jurisdiction or the NASD Conduct Rules) or any
alleged tort or breach of contract, related to the offer or sale by you of
Shares of the Funds pursuant to this Agreement (except to the extent that our
negligence or failure to follow correct instructions received from you is the
cause of such loss, claim, liability, cost or expense); (ii) requests,
directions, actions or inactions of or by you, your officers, directors,
employees, partners or agents regarding the purchase, redemption or transfer of
registration of Shares of the Funds, including the use of Marketing Pieces (as
defined below), for your accounts, your customers and other shareholders or from
any unauthorized or improper use of any on-line computer facilities; (iii)
incorrect investment instructions received by us or a Fund or Fund agent from
you; or (iv) the breach by you of any of your representations, warranties or
agreements specified herein or your failure to comply with the terms and
conditions of this Agreement.
We agree to indemnify you and hold you harmless from and against any
and all liabilities and losses resulting directly from (i) any misstatement of a
material fact in the Prospectus of a Fund or the omission of any material fact
required to be stated in the Prospectus of a Fund or necessary to make the
statements in the Prospectus not misleading; or (ii) our failure to comply with
the terms and conditions of this Agreement. The foregoing indemnification
provisions shall survive termination of this Agreement.
10. Suitability. You agree that it is your responsibility to evaluate
and determine that any transaction in Shares (including a transaction in a
specific class of Shares of a Fund) is a suitable transaction for each client
based on the client's objectives and risk profile. If you are a Bank, you
further represent and warrant to us that you will use your best efforts to
ensure that any purchase of Shares by your customers constitutes a suitable
investment for such customers. You shall not effect any transaction in, or
induce any purchase or sale of, any Shares by means of any manipulative,
deceptive or other fraudulent device or contrivance and shall otherwise deal
equitably and fairly with your customers with respect to transactions in Shares.
11. Anti-Money Laundering. You represent and warrant to us and the
Funds:
(a) You have in place an anti-money laundering and customer
identification program ("AML program") that does now and will continue to comply
with applicable laws and regulations, including the relevant provisions of the
Bank Secrecy Act and the USA PATRIOT Act, as they may be amended, and the
regulations issued thereunder by duly vested regulatory authority and the
conduct the Rules of the NASD and the New York Stock Exchange, Inc., as
applicable ("Anti-Money Laundering Law and Regulation") and will carry out its
duties and responsibilities under the AML Rules and Regulations as applicable to
orders for Fund shares and the customers on whose behalf those orders are
placed.
(b) You have, after undertaking reasonable inquiry, no
information or knowledge that (i) any customers that you introduce to the Funds
or on whose behalf you purchase Shares, or (ii) any person or entity
controlling, controlled by or under common control with such customers is an
individual or entity or in a country or territory that is on an Office of
Foreign Assets Control ("OFAC") list or similar list of sanctioned or prohibited
persons maintained by a U.S. governmental or regulatory body.
(c) You have in place, and have conducted due diligence
pursuant to, policies, procedures and internal controls reasonably designed (i)
to verify the identity of the customers that you introduce to the Funds or on
whose behalf you purchase Shares, and (ii) to identify those customers' sources
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of funds, and have no reason to believe that any of the invested funds were
derived from illegal activities.
(d) You will provide us or the Funds (or their service
providers) upon reasonable request any information and certifications regarding
specific accounts that may be reasonably necessary for the Funds and their
service providers to fulfill their responsibilities relating to their anti-money
laundering programs or any other information reasonably requested by us or the
Funds (or their service providers) to assist with compliance with the Anti-Money
Laundering Law and Regulation, as may be permitted by law or regulation.
(e) You will promptly notify us should you become aware of any
change in the above representations and warranties. In addition, we on our own
behalf and on behalf of the Funds hereby provide notice to you that we and/or
the Funds reserve the right to make inquires of and request additional
information from you regarding your AML program.
12. Confidentiality and Privacy.
(a) You represent and warrant that you have adopted and
implemented procedures to safeguard customer information and records that are
reasonably designed to ensure the security and confidentiality of customer
records and information and to ensure your compliance with the SEC's Regulation
S-P or other applicable privacy law. Both of us agree on behalf of ourselves,
our affiliates and employees that the terms of this Agreement, information
exchanged hereunder and information about our respective customers and potential
customers is confidential and as such shall not be disclosed, sold or used in
any way except to carry out the terms of this Agreement. Notwithstanding the
foregoing, such confidential information may be disclosed on a "need to know"
basis as set forth in applicable privacy rules and regulations. The obligations
regarding confidentiality hereunder shall not apply to any information which is
(i) otherwise publicly available, (ii) already possessed by the entity to whom
the information was disclosed prior to disclosure hereunder, (iii) independently
developed by the entity, or (iv) disclosed pursuant to law, rule, regulation or
court or administrative order. The provisions of this paragraph shall survive
termination of this Agreement.
(b) You represent and warrant that the security of your
computer system is commercially reasonable and reasonably designed to prevent
any illegal or injurious activities of persons (including persons outside of
you) attempting to access a computer system maintained or operated by or on
behalf of us or the Funds through your computer system.
13. Complaints and Litigation. You agree that you will promptly forward
any client complaints or threatened or pending litigation notices specifically
relating to the management of the Funds, whether written or if verbal, in the
form of a written summary, to us or our designated party. We or our designated
party will undertake to investigate and respond to the complaint or threatened
or pending litigation notices in line with our complaints and litigation
procedures. You agree to fully cooperate with such investigation and response.
14. Broker-Dealer Regulation.
(a) If you are a broker-dealer, you represent and warrant
that: (i) you are a member in good standing of the NASD; (ii) in making any
sales of Shares you will comply with the NASD's Conduct Rules and (iii) you are
a member in good standing of the Securities Investor Protection Corporation
("SIPC"). You agree to notify us immediately in the event of your expulsion or
suspension from the NASD or SIPC, or the institution of an investigation or
proceeding by any federal, state or self-regulatory organization against you
alleging that you have violated any applicable federal or state law, rule or
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regulation or any rule of the NASD or of SIPC arising out of your activities as
a broker-dealer or bank, as appropriate, or in connection with this Contract, or
which may otherwise affect in any material way its ability to act in accordance
with the terms of this Agreement. We shall have the right to terminate
immediately upon receipt of such notice.
(b) You represent and warrant that (i) each employee and agent
of yours who shall engage in the offering or sale of Shares is currently duly
licensed under applicable federal and state laws and regulations, and, if you
are a broker-dealer, with the NASD, and (ii) you shall not permit any employee
or agent to offer or sell Shares unless such person is duly licensed under
applicable federal and state laws and regulations, and with the NASD.
15. Banking Laws. If you are a Bank or distributing through a Bank
affiliate, you or the affiliate represent and warrant that you or the affiliate
are not in violation of any banking law, rule or regulations as to which you are
subject and that the transactions contemplated by this Agreement will not result
in any violations of any banking law, rule or regulation.
16. Instruction and Training. You agree that it is your responsibility
to provide proper instruction, training and supervision of appropriate sales
personnel in order that Shares will be offered and sold in accordance with the
terms and conditions of this Agreement and in accordance with all applicable
laws. You also agree that it is your responsibility to assure that your sales
personnel are properly licensed, certified and familiar with the Funds and any
classes thereof.
17. Blue Sky Registrations and Sales in Other Jurisdictions. We shall
notify you of the states or other jurisdictions in which Shares are currently
available for sale to the public. We shall have no obligation to register or
make available Shares in any state or other jurisdiction. You shall provide to
the transfer agent of each Fund each client's state of residency on each trade
record and registration record so we can monitor trades for blue sky compliance.
The Fund or its agent will reject any ineligible trades and notify you upon
cancellation. You represent and warrant that: (a) you will not offer Shares of
any Fund for sale in any state or other jurisdiction where such Shares may not
be legally sold; (b) you will not offer Shares of any Fund for sale in any state
or other jurisdiction where you are not qualified to act as a broker-dealer; and
(c) you will not offer Shares of any Fund for sale in any foreign country unless
authorized by us. If you trade shares in an omnibus account, you agree to
provide a detailed trade file to us or a designated agent for blue sky
monitoring purposes.
18. Debts or Obligations. You shall not incur, nor do you have the
authority to incur, any debts or obligations on behalf of us or any Fund.
19. Agreement to Arbitrate. Any claim, controversy, dispute or deadlock
arising under this agreement (collectively, a "Dispute") shall be settled by
arbitration administered in accordance with the rules and regulations of the
NASD or the rules and regulations of such other organization or jurisdiction as
agreed to by the parties. Any arbitration and award of the arbitrators, or a
majority of them, shall be final and the judgment upon the award rendered may be
entered in any state or federal court having jurisdiction. No punitive damages
are to be awarded.
20. Notices. All communications to us should be sent, postage prepaid,
to Xxxx Xxxxx Investor Services, LLC, 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00000, Attn: General Counsel. Any notice to you shall be duly given if mailed,
telegraphed or telecopied to you at the address specified by you below.
Communications regarding placement of orders for Shares should be sent, postage
prepaid, to Xxxx Xxxxx Investor Services, LLC, 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attn: General Counsel. Notice under this Agreement shall be
deemed to have been given on the date that it is received in writing by the
other party.
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21. Agreement Binding on Parties. This Agreement shall be binding upon
both parties hereto when signed by us and accepted by you in the space provided
below; provided, however, that you shall not have any obligations hereunder
other than in respect of the duties and agreements expressly undertaken and made
by you herein.
22. Governing Law. This Agreement and the terms and conditions set
forth herein shall be governed by, and construed in accordance with, the laws of
the State of New York. To the extent that the applicable laws of the State of
New York conflict with the applicable provisions of the federal securities laws,
the latter shall control.
23. Parties Not Partners. This Agreement shall not be construed to
constitute a partnership, joint venture, or agency between you and us or any
Fund, nor to create an employer-employee relationship between you and us. You
acknowledge that you are an independent contractor, that your business is its
own and entirely separate from that of ours and the Funds, and that you will not
deal with or represent itself to the public in any other way.
24. Compliance Rule. You agree to provide us with any assistance or
report that we reasonably request in order to fulfill our duties to assist the
Funds with compliance with Rule 38a-1 under the 1940 Act, in our capacity as
principal underwriter to each Fund.
25. Use of Names. 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 program.
26. Severability. If any provision of this Agreement is held invalid or
unenforceable for any reason, such provision shall be fully severable, and this
Agreement shall be enforced and construed as if such provision had never
comprised part of this Agreement.
27. Advertising. We agree to make available sales and advertising
materials relating to the Shares as we in our discretion determine appropriate.
We represent and warrant that all such materials comply with Applicable Law. You
shall have the right to prepare your own marketing memorandums, bulletins,
and/or information or related materials ("Marketing Pieces") relating to any of
the Funds or Fund Shares represented by this Agreement; provided, however, that
any information or descriptions regarding the Funds complies with the Fund's
Prospectus and you are responsible for complying with all Applicable Law
including, without limitation, any requirements of filing with the SEC, NASD, or
other entity. You agree to submit Marketing Pieces intended for public
distribution to us for our review and written approval at least 10 business days
prior to distribution or publication. You agree not to publish or distribute
Marketing Pieces without first receiving our written approval and any regulatory
approval that may be required.
28. Records. Each party agrees to maintain all records required of such
party by Applicable Law relating to the offer and sale of Shares. Upon
reasonable request by one party, the other party will provide access to or make
copies of such records.
29. Captions. 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.
10
Xxxx Xxxxx Investor Services, LLC
By:
----------------------------
Name: ____________________
Title: ____________________
Accepted:
Firm Name: _____________________________
By: _____________________________
Address: _____________________________
_____________________________
Accepted By (signature):--------------------------------------------
Name (print): __________________________ Title: ____________________
Date: __________________________
11
SCHEDULE A
FUNDS
[INSERT FUNDS]
12
SCHEDULE B
COMPENSATION
Beginning on the effective date of this Agreement, for each Fund listed
on Schedule ALMIS will pay or cause to be paid to you as follows:
[insert fees]
[quarterly fee equal on an annual basis to [___] of the average daily
net asset value of [_________ Shares of Funds] owned beneficially by your
clients during such period.]
[There shall be no compensation with respect to the Institutional Class
shares of [_____________]].
13
