EX-99.B(e)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
Xxxxx Fargo Funds Trust
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
THIS AMENDED AND RESTATED AGREEMENT is made as of this 8th day May,
2002 and amends and restates the agreement as of November 8, 1999 by and between
Xxxxx Fargo Funds Trust, a Delaware business trust (the "Trust") and Xxxxxxxx
Inc., an Arkansas corporation (the "Distributor").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust desires to retain the Distributor to render
distribution services to the Trust's investment portfolios listed on Appendix A
(individually, a "Fund" and collectively, the "Funds"), and the Distributor is
willing to render such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. As the Trust's agent, the Distributor shall be the exclusive
distributor for the shares of the Fund registered under the Securities Act of
1933 (the "1933 Act"). In addition to providing all share distribution services
for the Funds, the Distributor will maintain a service desk dedicated to the
Funds, and will maintain and preserve all records of the Funds, including
financial and corporate records.
2. The Trust shall sell through the Distributor, as the Trust's
agent, and deliver, upon the terms set forth herein, Fund shares that the
Distributor orders from the Trust and for which the Distributor has received and
confirmed unconditional purchase orders. All orders from the Distributor shall
be subject to acceptance and confirmation by the Trust. The Trust shall have the
right, at its election, to deliver either shares issued upon original issue or
treasury shares.
3. As the Trust's agent, the Distributor may sell and
distribute Fund shares in such manner not inconsistent with the provisions
hereof as the Distributor may determine from time to time. In that connection
the Distributor shall comply with all laws, rules and regulations applicable to
it, including, without limiting the generality of the foregoing, all applicable
rules or regulations under the 1933 Act, the 1940 Act and of any securities
association registered under the Securities Exchange Act of 1934 (the "1934
Act").
4. The Trust reserves the right to sell Fund shares to
purchasers to the extent that it or the transfer agent for Fund shares receives
purchase applications therefor. The Distributor's right to accept purchase
orders for Fund shares or to make sales thereof shall not apply to Fund shares
that may be offered by the Trust to shareholders for the reinvestment of cash
distributed to
shareholders by the Trust or Fund shares that may otherwise be offered by the
Trust to shareholders, unless the Distributor is otherwise notified by the
Trust.
5. All shares offered for sale and sold by the Distributor
shall be offered for sale and sold by the Distributor to or through securities
dealers or banks and other depository institutions having agreements with the
Distributor ("Selling Agents") upon the terms and conditions set forth in
paragraph 7(b) hereof or to investors at the price per share (the "Offering
Price"), which is the net asset value per share plus the applicable sales
charge, if any) specified and determined as provided in the Prospectus (the
"Prospectus") included in the Trust's Registration Statement, as amended from
time to time, under the 1933 Act and the 1940 Act (the "Registration
Statement"), relating to the offering of its shares for sale. If the Offering
Price is not an exact multiple of one cent, it shall be adjusted to the nearest
full cent. The Trust shall determine and furnish promptly to the Distributor a
statement of the Offering Price at least once on each day on which the
Prospectus states the Trust is required to determine the Trust's net asset value
for the purpose of pricing purchase orders. Each Offering Price shall become
effective at the time and shall remain in effect during the period specified in
the statement. Each such statement shall show the basis of its computation. For
purposes of establishing the Offering Price, the Trust shall consider a purchase
order to have been presented to it at the time it was originally entered by the
Distributor for transmission to it, provided the original purchase order and the
Distributor's fulfilling order to the Trust are appropriately time stamped or
evidenced to show the time of original entry and that the Distributor's
fulfilling order to the Trust is received by the Trust within a time deemed by
it to be reasonable after the purchase order was originally entered. Purchases
of shares shall be made for full and fractional shares, carried to the third
decimal place.
6. Ownership of Fund shares sold hereunder shall be registered
in such names and denominations as are specified in writing to the Trust or to
its agent designated for the purpose. No certificates for shares of the Fund
will be issued.
7. (a) The Distributor shall from time to time employ or
associate with it such persons as it believes necessary to assist it in carrying
out its obligations under this agreement. The compensation of such persons shall
be paid by the Distributor.
(b) The Distributor shall have the right to enter into
selling agreements with Selling Agents of its choice for the sale or marketing
of Fund shares at the Offering Price and upon the terms and conditions set forth
in the Prospectus. The initial form of selling agreement is attached hereto as
Appendix B. The Distributor may amend those agreements, or modify the form of
agreement, only upon approval of the Trust.
(c) The Distributor shall pay all expenses incurred in
connection with its qualification as a dealer or broker under Federal or state
laws.
(d) The Distributor shall pay for all expenses incurred in
connection with (i) printing and distributing such number of copies of the
Prospectus as the Distributor deems necessary for use in connection with
offering Fund shares to prospective investors, (ii) preparing, printing and
distributing any other literature and advertising deemed appropriate by the
Distributor for use in connection with offering Fund shares for sale and (iii)
all other expenses
incurred in connection with the sale of Fund shares as contemplated by this
agreement, except as otherwise specifically provided in this agreement. In
addition, it is understood and agreed that, so long as a plan of distribution of
the Fund adopted pursuant to Rule 12b-1 of the 1940 Act (the "Plan") continues
in effect, any expenses incurred by the Distributor hereunder may be paid from
amounts received by it from the Fund under the Plan. So long as the Plan
continues in effect, the Distributor shall be entitled to receive reimbursement
from the Trust under the Plan for actual expenses incurred in connection with
the Fund to the extent such expenses are reimbursable under the Plan. The
Treasurer of the Trust shall provide to the Board of Trustees of the Trust and
the Board of Trustees shall review, at least quarterly, a written report of the
amounts so expended and the purposes for which such expenditures were made.
(e) The Trust shall pay all expenses incurred in connection
with (i) the preparation, printing and distribution to stockholders of the
Prospectus and reports and other communications to Fund shareholders; (ii)
registrations of Fund shares under the 1933 Act and the Fund under the 1940 Act;
(iii) amendments to the Registration Statement; (iv) qualification of Fund
shares for sale in jurisdictions designated by the Distributor; (v)
qualification of the Trust as a dealer or broker under the laws of jurisdictions
designated by the Distributor; (vi) qualification of the Trust as a foreign
corporation authorized to do business in any jurisdiction if the Distributor
determines that such qualification is necessary or desirable for the purpose of
facilitating sales of Fund shares; (vii) maintaining facilities for the issue
and transfer of Fund shares; (viii) supplying information, prices and other data
to be furnished by the Trust under this agreement; and (ix) original issue taxes
or transfer taxes applicable to the sale or delivery of Fund shares.
(f) The Trust shall execute all documents and furnish any
information which may be reasonably necessary in connection with the
qualification of Fund shares of the Trust for sale in a jurisdiction designated
by the Distributor.
(g) The Trust shall pay to the Distributor the maximum
amount that is payable pursuant to, and in accordance with, the Distribution
Plan applicable to a Fund or class of shares of a Fund, or the maximum amount
payable under applicable laws, regulations and rules, whichever is less, unless
the parties hereto mutually agree, in writing, to a lesser amount. In addition,
the Distributor shall be entitled to receive applicable sales charges, including
front end sales loads and contingent deferred sales charges, on the basis set
forth in the Prospectus.
8. The Trust shall furnish the Distributor from time to time,
for use in connection with the sale of Fund shares, such written information
with respect to the Trust as the Distributor may reasonably request. In each
case such written information shall be signed by an authorized officer of the
Trust. The Trust represents and warrants that such information, when signed by
one of its officers, shall be true and correct. The Trust shall also furnish to
the Distributor copies of its reports to its stockholders and such additional
information regarding the Trust's financial condition as the Distributor may
reasonably request from time to time.
9. The Registration Statement and the Prospectus have been or
will be, as the case may be, prepared in conformity with the 1933 Act, the 1940
Act and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "SEC"). The Trust represents and
warrants to the Distributor that the Registration Statement and the
Prospectus contain or will contain all statements required to be stated therein
in accordance with the 1933 Act, the 1940 Act and the Rules and Regulations,
that all statements of fact contained or to be contained therein are or will be
true and correct at the time indicated or the effective date, as the case may
be, and that neither the Registration Statement nor the Prospectus, when it
shall become effective under the 1933 Act or be authorized for use, shall
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading to a purchaser of Fund shares. The Trust shall from time to time file
such amendment or amendments to the Registration Statement and the Prospectus
as, in the light of future developments, shall, in the opinion of the Trust's
counsel, be necessary in order to have the Registration Statement and the
Prospectus at all times contain all material facts required to be stated therein
or necessary to make the statements therein not misleading to a purchaser of
Fund shares. If the Trust shall not file such amendment or amendments within 15
days after receipt by the Trust of a written request from the Distributor to do
so, the Distributor may, at its option, terminate this agreement immediately.
The Trust shall not file any amendment to the Registration Statement or the
Prospectus without giving the Distributor reasonable notice thereof in advance,
provided that nothing in this agreement shall in any way limit the Trust's right
to file at any time such amendments to the Registration Statement or the
Prospectus as the Trust may deem advisable. The Trust represents and warrants to
the Distributor that any amendment to the Registration Statement or the
Prospectus filed hereafter by the Trust will, when it becomes effective under
the 1933 Act, contain all statements required to be stated therein in accordance
with the 1933 Act, the 1940 Act and the Rules and Regulations, that all
statements of fact contained therein will, when the same shall become effective,
be true and correct, and that no such amendment, when it becomes effective, will
include an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading to a purchaser of Fund shares.
10. Subject to the provisions of paragraph 7, the Trust shall
prepare and furnish to the Distributor from time to time such number of copies
of the most recent form of the Prospectus filed with the SEC as the Distributor
may reasonably request. The Trust authorizes the Distributor and Selling Agents
to use the Prospectus, in the form furnished to the Distributor from time to
time, in connection with the sale of Fund shares. The Trust shall indemnify,
defend and hold harmless the Distributor, its officers and partners and any
person who controls the Distributor within the meaning of the 1933 Act, from and
against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Distributor, its
officers or partners or any such controlling person, may incur under the 1933
Act, the 1940 Act, other statutes, the common law or otherwise, arising out of
or based upon any alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or arising out of or based upon any
alleged omission to state a material fact required to be stated in either
thereof or necessary to make the statements in either thereof not misleading.
Notwithstanding the foregoing, this indemnity agreement, to the extent that it
might require indemnity of any person who is an officer or partner of the
Distributor and who is also a director of the Trust, shall not inure to the
benefit of such officer or partner unless a court of competent jurisdiction
shall determine, or it shall have been determined by controlling precedent, that
such result would not be against public policy as expressed in the 1933 Act or
the 1940 Act, and in no event shall anything contained herein be so construed as
to protect the Distributor against any liability to the Trust or its
stockholders to which the Distributor would otherwise be subject by reason of
willful
misfeasance, bad faith or negligence in the performance of its duties or by
reason of its reckless disregard of its obligations and duties under this
agreement. This indemnity agreement is expressly conditioned upon the Trust's
being notified of any action brought against the Distributor, its officers or
partners or any such controlling person, which notification shall be given by
letter or by telegram addressed to the Trust at its principal office in Little
Rock, Arkansas, and sent to the Trust by the person against whom such action is
brought within ten days after the summons or other first legal process shall
have been served. The failure to notify the Trust of any such action shall not
relieve the Trust from any liability which it may have to the person against
whom such action is brought by reason of any such alleged untrue statement or
omission otherwise than on account of the indemnity agreement contained in this
paragraph. The Trust shall be entitled to assume the defense of any suit brought
to enforce any such claim, demand or liability, but, in such case, the defense
shall be conducted by counsel chosen by the Trust and approved by the
Distributor. If the Trust elects to assume the defense of any such suit and
retain counsel approved by the Distributor, the defendant or defendants in such
suit shall bear the fees and expenses of any additional counsel retained by any
of them, but in case the Trust does not elect to assume the defense of any such
suit, or in case the Distributor does not approve of counsel chosen by the
Trust, the Trust will reimburse the Distributor, its officers and partners or
the controlling person or persons named as defendant or defendants in such suit,
for the fees and expenses of any counsel retained by the Distributor or them. In
addition, The Distributor shall have the right to employ one separate counsel to
represent it, its officers and partners and any such controlling person who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by the Distributor against the Trust hereunder if in the
reasonable judgment of the Distributor it is advisable because of existing or
potential differing interests between the Distributor, its officers and partners
or such controlling person and the Trust in the conduct of the defense of such
action, for the Distributor, its officers and partners or such controlling
person to be represented by separate counsel, in which event the fees and
expenses of such separate counsel shall be borne by the Trust. This indemnity
agreement and the Trust's representations and warranties in this agreement shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Distributor, its officers and partners or any such
controlling person and shall survive the delivery of any shares as provided in
this agreement. This indemnity agreement shall inure exclusively to the benefit
of the Distributor and its successors, the Distributor's officers and partners
and their respective estates and any such controlling persons and their
successors and estates. The Trust shall promptly notify the Distributor of the
commencement of any litigation or proceedings against it in connection with the
issue and sale of any Fund shares.
11. The Distributor agrees to indemnify, defend and hold
harmless the Trust, its officers and directors and any person who controls the
Trust within the meaning of the 1933 Act, from and against any and all claims,
demands, liabilities and expenses (including the cost of investigating or
defending such claims, demands or liabilities and any counsel fees incurred in
connection therewith) which the Trust, its officers or directors or any such
controlling person, may incur under the 1933 Act, the 1940 Act, other statutes,
the common law or otherwise, but only to the extent that such liability or
expense incurred by the Trust, its officers or directors or such controlling
person resulting from such claims or demands shall arise out of or be based upon
(a) any alleged untrue statement of a material fact contained in information
furnished in writing by the Distributor to the Trust specifically for use in the
Registration Statement or the Prospectus or shall arise out of or be based upon
any alleged omission required to be stated in the
Registration Statement or the Prospectus or necessary to make such information
not misleading, (b) any alleged act or omission on the Distributor's part as the
Trust's agent that has not been expressly authorized by the Trust in writing, or
(c) any alleged willful misfeasance, bad faith or negligence in the performance
of the Distributor's obligations and duties under the Agreement or by reason of
its alleged reckless disregard thereof. This indemnity agreement is expressly
conditioned upon the Distributor's being notified of any action brought against
the Trust, its officers and directors or any such controlling person, which
notification shall be given by letter or telegram, addressed to the Distributor
at its principal office in Little Rock, Arkansas, and sent to the Distributor by
the person against whom such action is brought, within 10 days after the summons
or other first legal process shall have been served. The failure to notify the
Distributor of any such action shall not relieve the Distributor from any
liability which it may have to the Trust, its officers or directors or such
controlling person by reason of any such alleged misstatement or omission on the
Distributor's part otherwise than on account of the indemnity agreement
contained in this paragraph. The Distributor shall have a right to control the
defense of such action with counsel of its own choosing and approved by the
Trust if such action is based solely upon such alleged misstatement or omission
on the Distributor's part, and in any other event the Trust, its officers and
directors or such controlling person shall each have the right to participate in
the defense or preparation of the defense of any such action at their own
expense.
12. No Fund shares shall be sold through the Distributor or by
the Trust under this agreement and no orders for the purchase of Fund shares
shall be confirmed or accepted by the Trust if and so long as the effectiveness
of the Registration Statement shall be suspended under any of the provisions of
the 1933 Act. Nothing contained in this paragraph 12 shall in any way restrict,
limit or have any application to or bearing upon the Trust's obligation to
redeem Fund shares from any shareholder in accordance with the provisions of its
Declaration of Trust. The Trust will use its best efforts at all times to have
Fund shares effectively registered under the 1933 Act.
13. The Trust agrees to advise the Distributor immediately:
(a) of any request by the SEC for amendments to the
Registration Statement or the Prospectus or for additional information;
(b) in the event of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or the
Prospectus under the 1933 Act or the initiation of any proceedings for that
purpose;
(c) of the happening of any material event that makes
untrue any statement made in the Registration Statement or the Prospectus or
that requires the making of a change in either thereof in order to make the
statements therein not misleading; and
(d) of any action of the SEC with respect to any amendments
to the Registration Statement or the Prospectus that may from time to time be
filed within the SEC under the 1933 Act or the 1940 Act.
14. Insofar as they concern the Trust, the Trust shall comply
with all applicable laws, rules and regulations, including, without limiting the
generality of the foregoing, all rules
or regulations made or adopted pursuant to the 1933 Act, the 1940 Act or by any
securities association registered under the 1934 Act.
15. The Distributor may, if it desires and at its own cost and
expense, appoint or employ agents to assist it in carrying out its obligations
under this agreement, but no such appointment or employment shall relieve the
Distributor of any of its responsibilities or obligations to the Trust under
this agreement.
16. The following provisions shall apply with respect to the sale
by the Distributor of Class B Shares of any Fund, notwithstanding any other
provision herein to the contrary:
(a) The Distributor shall have the obligation to pay all
applicable dealer allowances ("B Share Allowances") which Selling Agents are
entitled to receive in connection with the sale of Class B Shares, including any
such B Share Allowances, or portions thereof, which registered representatives
of the Distributor are entitled to receive.
(b) The amounts that are payable under the Plan to the
Distributor pursuant to Section 7(g) hereof with respect to the Class B Shares
of the Funds are the maximum amounts which are set forth in Appendix A to the
Plan for the Class B Shares. These amounts shall continue to be the amounts
payable with regard to the Class B Shares under the Plan unless and until
changed in accordance with the terms of such Plan or this Agreement. The
services rendered by the Distributor for which such amounts are payable shall be
deemed completed at the time of the initial purchase of shares taken into
account in computing such amounts.
(c) To the extent that the Distributor engages and uses a
third-party to finance its obligation to pay B Share Allowances as set forth in
this section, the Distributor shall have the right to assign to such third-party
all or any portion of the Distributor's right hereunder to receive fees in
connection with the sale of Class B Shares and to direct the Trust, upon written
notice, to make direct payment of these fees to such party, free and clear of
any rights to offset or claims of the Trust or any Fund against the Distributor.
(d) The Trust acknowledges that, under the applicable
Distribution Plan for Class B Shares of the Funds, any payments that the
Distributor is entitled to receive with respect to Class B Shares shall
continue, in accordance with, and subject to, the applicable terms relating to
the Class B Shares, regardless of whether the Distributor is acting as the
principal underwriter for the Company (and affected Funds); provided that the
Distribution Plan for the Class B Shares has not been terminated or modified in
a way which affects the payment of such amounts.
17. Subject to the provisions of paragraph 9, this agreement
shall continue in effect until such time as there shall remain no shares
registered under the 1933 Act, provided that this agreement shall continue in
effect for a period of more than one year from the date hereof only so long as
such continuance is specifically approved at least annually in accordance with
the 1940 Act and the rules thereunder. This agreement shall terminate
automatically in the event of its assignment (as defined in the 1940 Act). This
agreement may, in any event, be terminated at any time, without the payment of
any penalty, by the Trust upon 60 days' written notice to the Distributor or by
the Distributor at any time after the second anniversary of the effective date
of this agreement on 60 days' written notice to the Trust.
18. Nothing in this Agreement shall require the Trust to take any
action contrary to any provision of its Declaration of Trust or to any
applicable statute or regulation.
19. Miscellaneous.
(a) Any notice or other instrument authorized or required
by this Agreement to be given in writing to the Trust or the Distributor shall
be sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
To the Trust:
Xxxxx Fargo Funds Trust
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: C. Xxxxx Xxxxxxx, Secretary
To the Distributor:
Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx., Senior Vice President
(b) This Agreement shall extend to and be binding upon
the parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be subject to assignment (as that term is
defined under the 1940 Act).
(c) This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
(d) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and which
collectively shall be deemed to constitute only one agreement.
(e) If any provision of this Agreement is declared to
be prohibited or unenforceable, the remaining provisions of this Agreement shall
continue to be valid and fully enforceable.
In witness whereof, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
XXXXX FARGO FUNDS TRUST
By: /s/ C. Xxxxx Xxxxxxx
---------------------------------
C. Xxxxx Xxxxxxx
Secretary
XXXXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Xxxxxxx X. Xxxxx, Xx.
Senior Vice President
Approved: March 26, 1999 and May 7, 2002.
Appendix A
Funds of Xxxxx Fargo Funds Trust Covered by This Agreement
1. Asset Allocation Fund
2. California Limited Term Tax-Free Fund
3. California Tax-Free Fund
4. California Tax-Free Money Market Fund
5. California Tax-Free Money Market Trust
6. Cash Investment Money Market Fund
7. Colorado Tax-Free Fund
8. Diversified Bond Fund
9. Diversified Equity Fund
10. Diversified Small Cap Fund
11. Equity Income Fund
12. Equity Index Fund
13. Equity Value Fund
14. Government Institutional Money Market Fund
15. Government Money Market Fund
16. Growth Balanced Fund
17. Growth Equity Fund
18. Growth Fund
19. High Yield Bond Fund
20. Income Fund
21. Income Plus Fund
22. Index Allocation Fund
23. Index Fund
24. Intermediate Government Income Fund
25. International Equity Fund
26. Large Cap Appreciation Fund
27. Large Cap Value Fund
28. Large Company Growth Fund
29. Limited Term Government Income Fund
30. Liquidity Reserve Money Market Fund
31. Mid Cap Growth Fund
32. Minnesota Money Market Fund
33. Minnesota Tax-Free Fund
34. Moderate Balanced Fund
35. Money Market Fund
36. Money Market Trust
37. National Limited Term Tax-Free Fund
38. National Tax-Free Fund
39. National Tax-Free Institutional Money Market Fund
40. National Tax-Free Money Market Fund
41. National Tax-Free Money Market Trust
42. Nebraska Tax-Free Fund
43. OTC Growth Fund
44. Outlook Today Fund
45. Outlook 2010 Fund
46. Outlook 2020 Fund
47. Outlook 2030 Fund
48. Outlook 2040 Fund
49. Overland Express Sweep Fund
50. Prime Investment Institutional Money Market Fund
51. Prime Investment Money Market Fund
52. SIFE Specialized Financial Services Fund
53. Small Cap Growth Fund
54. Small Cap Opportunities Fund
55. Small Company Growth Fund
56. Small Company Value Fund
57. Specialized Health Sciences Fund
58. Specialized Technology Fund
59. Stable Income Fund
60. Strategic Growth Allocation Fund
61. Strategic Income Fund
62. Tactical Maturity Bond Fund
63. Treasury Plus Institutional Money Market Fund
64. Treasury Plus Money Market Fund
65. WealthBuilder Growth and Income Portfolio
66. WealthBuilder Growth Balanced Portfolio
67. WealthBuilder Growth Portfolio
68. 100% Treasury Money Market Fund
Approved by the Board of Trustees: March 26, 1999, as amended May 9, 2000, July
25, 2000, February 6, 2001, May 8, 2001, August 7, 2001, November 6, 2001,
November 27, 2001, December 23, 2001, February 5, 2002 and May 7, 2002.
Most recent annual approval date: August 6, 2002.
Appendix B
Form of Selling Group Agreement
XXXXXXXX INC.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
XXXXX FARGO FUNDS TRUST
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Ladies and Gentlemen:
We are the exclusive distributor of the shares of capital stock of the
several portfolios (each a "Fund" and collectively the "Funds") of Xxxxx Fargo
Funds Trust (the "Trust"), a Delaware business trust, pursuant to the terms of a
Distribution Agreement between us and the Trust. We invite you to participate in
the distribution of the shares of capital stock of certain of the Funds (as
identified to you from time to time) ("Shares") on the following terms:
1. You represent and warrant that you are either (a) a registered broker or
dealer pursuant to the Securities Exchange Act of 1934 ("1934 Act"), and a
member of the National Association of Securities Dealers, Inc. (the
"NASD"), and that you will maintain such registration and membership and
abide by the Rules of Fair Practice, the Constitution and By-Laws of the
NASD and all other rules and regulations that are now or may become
applicable to you and your activities hereunder; or (b) a bank exempt from
registration as a broker-dealer under the federal securities laws, and that
you will conduct your activities hereunder and otherwise in a manner so as
to remain exempt from such registration and in compliance with the
provisions of the Xxxxx-Xxxxxxxx Act and all other rules and regulations
that are now or may become applicable to you and your activities hereunder.
2. You represent and warrant that you are registered or qualified to act as
a broker or dealer (or are exempt from being required to register or
qualify as such) in the states or other jurisdictions where you transact
business. You agree that you will maintain such registrations or
qualifications in full force and effect throughout the term of this
Agreement (and if an exemption becomes no longer available, to immediately
so qualify or register). You agree to comply with all applicable federal,
state and local laws, including, without limiting the generality of the
foregoing, the Securities Act of 1933, the 1934 Act and the Investment
Company Act of 1940, and all applicable rules or regulations thereunder.
You agree to offer and sell Shares only in the states and other
jurisdictions in which we have indicated that such offers and sales can be
made and in which you are qualified to so act. You further agree not to
offer or sell Shares outside the several states, territories and
possessions of the United States.
3. You agree to offer and sell Shares of the Funds to your customers only
at the applicable public offering price (which is the net asset value per
share plus the applicable sales load, if any) then in effect as described
in the respective Fund's then currently effective prospectus, including any
supplements or amendments thereto ("Prospectus"). You may establish and
charge reasonable service fees to your clients for processing exchange or
redemption orders for Shares, provided you disclose the fees to your
clients.
4. Purchase orders for Shares ("Purchase Orders") received from you and
accepted by us will be executed at the applicable public offering price
next determined after our receipt and acceptance of such Purchase Order, in
accordance with the Prospectuses. All Purchase Orders must meet the
applicable minimum initial and subsequent investment requirements as
described and set forth in the Prospectuses.
You agree to date and time stamp all orders received by you and to promptly
forward all Purchase Orders to us or the Trust's Transfer Agent in time for
processing at the public offering price next determined after receipt by
you. You agree that you will not withhold Purchase Orders or purchase
shares in anticipation of receiving Purchase Orders from customers. The
procedures applicable to the handling of Purchase Orders shall be subject
to such instructions as may be issued by us from time to time.
5. All Purchase Orders are subject to acceptance by us and confirmation by
the Trust or its Transfer Agent. We reserve the right in our sole
discretion to reject any Purchase Order, including contingent or
conditional Purchase Orders, in whole or in part. We also reserve the right
in our discretion without notice to you to suspend sales or withdraw the
offering of Shares, in whole or in part, or to cancel this Agreement.
6. You agree to purchase Shares only through us or from your customers.
Purchases through us shall be made only for the purpose of covering
Purchase Orders already received from your customers or for your bona fide
investment. Purchases from your customers, if any, shall be at a price that
is not less than the applicable net asset value quoted by the Trust at the
time of such purchase as determined in the manner set forth in the
Prospectuses. All transactions in Shares shall be subject to the terms and
provisions set forth in the Prospectuses.
7. Shares purchased hereunder will not be issued in certificated form
except where permitted by the applicable Prospectus, upon written request
by you or your customer, and only when payment and proper registration or
transfer instructions have been received by the Trust or its Transfer
Agent.
8. If a customer's account with a Fund is established without the customer
signing an Account Application, you represent that the instructions
relating to the registration and shareholder options selected (whether on
the Account Application, in some other document or orally) are in
accordance with the customer's instructions, and you shall be responsible
to the Trust, its Transfer Agent and us for any losses, claims, damages or
expenses resulting from acting upon such instructions.
9. If payment for Shares purchased hereunder is not received or made
within the applicable time period specified in the governing Prospectus, or
if you cancel any order at any time after our acceptance of the Purchase
Order, we reserve the right to cancel the sale (or, at our option, to
redeem the Shares), in which case you shall be responsible to the Trust,
its Transfer Agent and us for any losses, claims, damages or expenses
resulting from your failure to make payment or cancellation as aforesaid.
10. You have no authority whatsoever to act as agent for, partner of or
participant in a joint venture with the Trust or us or any other member of
the Selling Group, and nothing in this Agreement shall constitute either of
us the agent of the other or shall constitute you or the Trust the agent of
each other. In all transactions in the Shares, you are acting as principal
or as agent for your customer and we are acting as agent for the Trust and
not as principal. We are not responsible for registering or
qualifying the Shares for sale in any jurisdiction. We also are not
responsible for the issuance, form, validity, enforceability or value of
the Trust's Shares.
11. No person is authorized to act for us or to make any representations
concerning the Trust or its Shares except those contained in the
Prospectuses and the Statements of Additional Information, and in sales
literature issued by us supplemental to the Prospectuses and Statements of
Additional Information ("Sales Literature"). In purchasing Shares through
us, you shall rely solely upon the representations contained in the
Prospectuses, the Statements of Additional Information and the Sales
Literature. We will furnish you, upon request, with a reasonable quantity
of copies of the Prospectuses, Statements of Additional Information, Sales
Literature and amendments and supplements thereto. You agree that if and
when we supply you with copies of any supplements to any Prospectus, you
will affix copies of such supplements to all such Prospectuses in your
possession, that thereafter you will distribute such Prospectuses only with
such supplements affixed, and that you will present Purchase Orders only
from persons who have received Prospectuses with such supplements affixed.
You agree not to use Sales Literature in connection with the solicitation
of Purchase Orders unless accompanied or preceded by the relevant
Prospectus.
12. As compensation, you shall be entitled to receive that portion of the
sales load assessed on the purchase of the Shares equal to the dealer
allowance, as set forth in the Prospectuses. Sales loads and dealer
allowances shall take into account volume discounts, rights of
accumulation, letters of intent, certain reinvestments of redemption
proceeds, certain reductions for designated persons or groups and exchanges
and any other arrangements for the reduction or elimination of sales loads
and dealer allowances, all as described in the Prospectuses. You are
responsible for obtaining from your customer such information as you deem
necessary to establish a reasonable basis for believing that the customer
is eligible for any claimed reductions in or elimination of sales loads,
and for obtaining from your customer requisite tax identification numbers
and certifications. By transmitting Purchase Orders to us or to the Trust's
Transfer Agent, you shall be deemed to have represented and warranted to
us, the Trust, and its Transfer Agent that you have a reasonable basis for
believing, and do believe, that the customer is eligible for such reduction
or elimination and that, unless you advise us otherwise, you have obtained
the requisite tax identification numbers and certifications.
13. As further compensation for distribution-related services performed by
you in connection with the distribution of Shares of certain of the Funds
which have distribution plans in effect under Rule 12b-1 under the 1940 Act
that provide for compensation for distribution-related services, you also
may receive a periodic fee based upon a percentage of the average daily net
asset value of Shares of the respective Funds attributable to you, in
accordance with the applicable Distribution Plans as disclosed in the
governing Prospectus.
14. If any Shares are repurchased or tendered for redemption by the Trust
within seven business days after acceptance by us or the Trust of the
Purchase Order for
such Shares, you shall forfeit the right to and promptly refund to us the
full dealer allowance paid or reallowed to you in connection with the
original Purchase Order.
15. You agree to indemnify the Trust, its Transfer Agent and us for any
losses, claims, damages or expenses arising out of or in connection with
any wrongful act or omission by you, your representatives, agents or
sub-agents not in accordance with this Agreement, provided that such
losses, claims, damages or expenses were not caused by the indemnitees'
willful misfeasance, bad faith or gross negligence.
16. This Agreement shall become effective upon receipt by us of a signed
copy hereof, and shall cancel and supersede any and all prior Selling Group
Agreements or similar agreements or contracts relating to the distribution
of the Shares. Any amendments to this Agreement shall be deemed accepted by
you, and will take effect with respect to, and on the date of, any orders
placed by you after the date set forth in any notice of amendment sent by
us to you. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Arkansas.
17. This Agreement may be terminated upon written notice by either party at
any time, and shall automatically terminate upon its attempted assignment
by you, whether by operation of law or otherwise, or by us otherwise than
by operation of law. We reserve the right to cancel this Agreement at any
time without notice if any Shares are offered for sale by you at less than
the applicable public offering price as set forth in the Prospectuses.
18. This Agreement is in all respects subject to statements regarding the
sale and repurchase or redemption of Shares made in the Prospectuses, and
to the Rules of Fair Practice of the NASD, which shall control and override
any provision to the contrary in this Agreement.
19. All communications to us shall be sent to us by mail or by confirmed
telefacsimile at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000. Any notice
to you shall be duly given if sent by mail or by confirmed telefacsimile to
you at your address as set forth on the signature page hereof. Any party
that changes its address shall promptly notify the other party in
accordance with the terms of this paragraph.
Date: ____________
XXXXXXXX INC.
By: ________________________
Name: ______________________
Title: _____________________
The undersigned accepts this invitation to become a member of the Selling
Group and agrees to abide by the foregoing terms and conditions.
Date: _______________
Address:
Telephone:
Telefacsimile:
By: ______________________ By: ______________________
(Authorized Signature) (Authorized Signature)
Name: ________________ Name: _______________
Title: ______________ Title: _____________
Please execute this Agreement in duplicate and return one copy to Xxxxxxxx
Inc.
