SELLING AGREEMENT
THIS AGREEMENT made and entered into as of this ____day of _______, 20__, by
and between ALPS Distributors, Inc., a Colorado corporation having its
principal place of business at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000 (hereinafter "ALPS") and ________, a ______________
corporation having its principal place of business at ____________
(hereinafter "Broker-Dealer").
WHEREAS, Broker-Dealer desires to enter into an Agreement with ALPS for the
sale of shares of beneficial interest in the United Association S&P 500 Index
Fund (the "Fund"), an investment portfolio of Financial Investors Trust (the
"Trust") which is now or hereafter available for sale to Broker-Dealer's
customers.
WHEREAS, ALPS is the principal underwriter (as such term is defined in the
Investment Company Act of 1940, as amended) of the offering of shares of the
Fund and the exclusive agent for the continuous distribution of such shares
pursuant to the terms of a Distribution Agreement between ALPS and the Trust.
WHEREAS, the term "Prospectus" means the prospectus and, unless the context
otherwise requires, related statement of additional information (the
"Statement of Additional Information") incorporated therein by reference, as
the same are amended and supplemented from time to time, of the Fund.
NOW, THEREFORE, in consideration of the mutual covenants and promises set
forth herein, the parties agree as follows:
1. BROKER-DEALER PERFORMANCE. ALPS acknowledges that customers of
Broker-Dealer who purchase Fund shares are Broker-Dealer's customers.
Broker-Dealer shall be responsible for opening, approving and monitoring
customer accounts and for the review and supervision of these accounts,
all in accordance with the rules of the Securities and Exchange Commission
("SEC") and National Association of Securities Dealers, Inc. (the "NASD").
In no transaction involving fund shares shall Broker-Dealer have any
authority to act as agent for the Trust or for ALPS.
2. PURCHASES AND REDEMPTIONS. All orders for the purchase of any fund shares
shall be executed at the then current net asset value per share and all
orders for the redemption of any fund shares shall be executed at the then
current net asset value per share, in each case as described in the
Prospectus of the Fund. The minimum initial purchase order and minimum
subsequent purchase order by any person shall be as set forth in the
Prospectus of the Fund. All orders are subject to acceptance or rejection
by the Trust at its sole discretion. Unless otherwise mutually agreed to
in writing, each transaction shall be promptly confirmed in writing to the
customer on a fully disclosed basis and a copy of each confirmation shall
be sent simultaneously to Broker-Dealer. Broker-Dealer agrees that upon
receipt of duplicate confirmations Broker-Dealer will examine the same and
promptly notify the Trust of any errors or discrepancies that
Broker-Dealer discovers. Broker-Dealer shall promptly bring to the
attention of the Trust any errors in such confirmations claimed by
Broker-Dealer's customers. The Trust reserves the right, at its
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discretion and without notice, to suspend the sale of shares or withdraw
entirely the sale of shares of the Fund.
3. RULE 12b-1. (a) In the case of a fund or class thereof which has adopted a
Distribution and Service Plan pursuant to Rule 12b-1 under the Investment
Company Act of 1940 (a "Plan"), ALPS may elect from time to time to make
payments to Broker-Dealer as provided under such Plan. In the case of a
fund or class thereof that has no currently effective Plan, ALPS may, to
the extent permitted by applicable law, elect to make payments to
Broker-Dealer from ALPS' own funds. Any such payments shall be made in the
amount and manner set forth in the applicable schedule of distribution and
service payments issued by ALPS and then in effect or as set forth in the
Prospectus. Such schedule of distribution and service payments may be
discontinued or changed by ALPS from time to time and shall be in effect
with respect to a fund which has a Plan only so long as such fund's Plan
remains in effect.
(b) In the event that Rule 2830 of the NASD Conduct Rules preclude the
Fund or class thereof from imposing, or ALPS from receiving, a sales
charge (as defined in that Rule) or any portion thereof, then
Broker-Dealer shall not be entitled to any payments from ALPS hereunder
from the date that the Fund or class thereof discontinues or is required
to discontinue imposition of some or all of its sales charges. If the Fund
or class thereof resumes imposition of some or all of its sales charge,
Broker-Dealer will be entitled to payments hereunder on the same terms as
the Fund extends to ALPS.
4. BROKER-DEALER'S DUTIES REGARDING SALES OF SHARES. In ordering shares of
the Fund, Broker-Dealer shall rely solely and conclusively on the
representations contained in the Prospectus of the Fund. Broker-Dealer
agrees not to offer or sell shares of the Fund except in compliance with
all applicable federal and state securities laws and the rules and
regulations of applicable regulatory agencies or authorities. In
connection with offers to sell and sales of shares of the Fund,
Broker-Dealer agrees to deliver or cause to be delivered to each person to
whom any such offer or sale is made, at or prior to the time of such offer
or sale, a copy of the Prospectus and, upon request, the Statement of
Additional Information of the Fund. Broker-Dealer further agrees to
explain the procedures regarding purchase, redemption and exchange
privileges as outlined in the Prospectus to each person to whom any such
offer or sale is made. Broker-Dealer further agrees to obtain from each
customer to whom Broker-Dealer sells fund 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 to provide ALPS or ALPS' designee
with timely written notice of any failure to obtain such taxpayer
identification number certification in order to enable the implementation
of any required back-up withholding in accordance with Section 3406 of the
Code and the regulations thereunder. Unless otherwise mutually agreed to
in writing, ALPS shall deliver or cause to be delivered to each of the
customers who purchase shares of the Fund through Broker-Dealer copies of
all annual and interim reports, proxy solicitation materials and any other
information and materials relating to the Fund and prepared by or on
behalf of ALPS, the Trust or its investment adviser, custodian, transfer
agent or dividend disbursing agent for distribution to such customer. ALPS
agrees to supply Broker-Dealer with copies of the Prospectus, Statement of
Additional Information, annual reports, interim reports, proxy
solicitation materials and any such other information and materials
relating to the Fund in reasonable quantities upon request. Broker-Dealer
acknowledges that any material or information that ALPS furnishes to
Broker-Dealer,
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other than Prospectuses, annual and interim reports to shareholders and
proxy solicitation materials prepared by the Trust, are ALPS' sole
responsibility and not the responsibility of the Trust.
5. ADVERTISEMENT. Broker-Dealer shall not make any representations concerning
the fund shares other than those contained in the Prospectus of the Fund
or in any promotional materials or sales literature furnished to
Broker-Dealer by ALPS or the Trust. Broker-Dealer shall not furnish or
cause to be furnished to any person or display or publish any information
or materials relating to Fund (including, without limitation, promotional
materials and sales literature, advertisements, press releases,
announcements, statements, posters, signs or other similar material),
except such information and materials as may be furnished to Broker-Dealer
by ALPS or the Trust, and such other information and materials as may be
approved in writing by ALPS.
6. FUND TRANSACTIONS. The procedures relating to orders and the handling
thereof will be subject to the terms of the Prospectus of the Fund and
instructions received by Broker-Dealer from ALPS or the transfer agent
(the "Transfer Agent") from time to time. No conditional orders will be
accepted. Broker-Dealer agrees that purchase orders placed by
Broker-Dealer or Broker-Dealer's customers will be made only for the
purpose of covering purchase orders already received from Broker-Dealer's
customers and that Broker-Dealer will not make purchases for any other
securities dealer or broker. Further, Broker-Dealer shall place purchase
orders from customers with the Trust immediately and shall not withhold
the placement of such orders so as to profit Broker-Dealer; provided,
however, that the foregoing shall not prevent the purchase of shares of
the Fund by Broker-Dealer for Broker-Dealer's own bona fide investment.
Broker-Dealer agrees that: (a) Broker-Dealer shall not effect any
transactions (including, without limitation, any purchases and
redemptions) in the fund shares registered in the name of, or beneficially
owned by, any customer unless such customer has granted Broker-Dealer full
right, power and authority to effect such transactions on his behalf, and
(b) ALPS, the Trust, the Transfer Agent and their respective officers,
directors, or trustees, agents, employees and affiliates shall not be
liable for, and shall be fully indemnified and held harmless by
Broker-Dealer and Broker-Dealer's customers from and against, any and all
claims, demands, liabilities and expenses (including, without limitation,
reasonable attorney's fees) which may be incurred by ALPS or any of the
foregoing persons entitled to indemnification from Broker-Dealer hereunder
arising out of or in connection with the execution of any transactions in
fund shares registered in the name of, or beneficially owned by, any
customer in reliance upon any oral or written instructions believed to be
genuine and to have been given by or on behalf of Broker-Dealer or
directly by Broker-Dealer's customers. The indemnification agreement
contained in this paragraph shall survive the termination of this
Agreement.
7. PAYMENT FOR ORDERS. Broker-Dealer agrees that payment for orders from
Broker-Dealer or Broker-Dealer's customers for the purchase of fund shares
will be made in accordance with the terms of the Prospectus of the Fund.
On or before the settlement date of each purchase order for shares of the
Fund, Broker-Dealer shall remit to an account designated by ALPS with the
Transfer Agent an amount equal to the then current net asset value of the
shares of the Fund being purchased with respect to such purchase order as
determined by ALPS in accordance with the terms of the applicable Fund
Prospectus. If payment for any purchase order (either from Broker-Dealer
or directly from Broker-Dealer's customers) is not received in accordance
with the terms of the Prospectus, ALPS reserves the right, without notice,
to cancel the sale and to hold
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Broker-Dealer or Broker-Dealer's customers responsible for any loss
sustained as a result thereof.
8. REPRESENTATIONS AND WARRANTIES. (a) Broker-Dealer hereby represents and
warrants that: (a) Broker-Dealer is a corporation, partnership or other
entity duly organized and validly existing in good standing under the laws
of the jurisdiction in which Broker-Dealer was organized; (b) the
execution and delivery of this Agreement and the performance of the
transactions contemplated hereby have been duly authorized by all
necessary action and all other authorizations and approvals (if any)
required for Broker-Dealer's lawful execution and delivery of this
Agreement and Broker-Dealer's performance hereunder have been obtained;
and (c) upon execution and delivery by Broker-Dealer, and assuming due and
valid execution and delivery by ALPS, this Agreement will constitute a
valid and binding agreement, enforceable against each in accordance with
its terms and conditions.
(b) Broker-Dealer further represents and warrants that Broker-Dealer is a
member of the NASD and, with respect to any sales in the United States,
Broker-Dealer agrees to abide by all of the rules and regulations of the
NASD, including, without limitation, its Rules of Fair Practice.
Broker-Dealer agrees to comply with all applicable federal and state laws,
rules and regulations. ALPS agrees to inform Broker-Dealer, upon
Broker-Dealer's request, as to the states in which ALPS believes the
shares of each Fund have been qualified for sale under, or are exempt from
the requirements of, the respective securities laws of such states, but
ALPS shall have no obligation or responsibility to make shares of the Fund
available for sale to Broker-Dealer's customers in any jurisdiction.
Broker-Dealer agrees to notify ALPS immediately in the event of
Broker-Dealer's expulsion or suspension from the NASD. Broker-Dealer's
expulsion from the NASD will automatically terminate this Agreement
immediately without notice. Broker-Dealer's suspension from the NASD will
terminate this Agreement effective immediately upon ALPS' written notice
of termination to Broker-Dealer.
9. CONFIDENTIALITY. The names and addresses and other information concerning
Broker-Dealer's customers are and shall remain Broker-Dealer's sole
property, and neither ALPS nor ALPS' affiliates shall use such names,
addresses or other information for any purpose except in connection with
the performance of ALPS' duties and responsibilities hereunder and except
for servicing and informational mailings relating to the Fund.
Notwithstanding the foregoing, this Paragraph shall not prohibit ALPS or
any of ALPS' affiliates from utilizing for any purpose the names,
addresses or other information concerning any of Broker-Dealer's customers
if such names, addresses or other information are obtained in any manner
other than from Broker-Dealer pursuant to this Agreement. The provisions
of this paragraph shall survive the termination of this Agreement.
10. NO AUTHORITY TO BIND PARTIES. Neither this Agreement nor the performance
of the services of the respective parties hereunder shall be considered to
constitute an exclusive arrangement, or to create a partnership,
association or joint venture between Broker-Dealer and ALPS. Neither party
hereto shall be, act as, or represent itself as, the agent or
representative of the other, nor shall either party have the right or
authority to assume, create or incur any liability or any obligation of
any kind, express or implied, against or in the name of, or on behalf of,
the other party. This Agreement is not intended to, and shall not, create
any rights against either party hereto by any third party solely on
account of this Agreement. Neither party hereto shall use the name of the
other party in any manner without the other party's prior written consent,
except as required by any applicable
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federal or state law, rule or regulation, and except pursuant to any
promotional programs mutually agreed upon in writing by the parties
hereto.
11. NOTICES. Except as otherwise specifically provided herein, all notices
required or permitted to be given pursuant to this Agreement shall be
given in writing and delivered by personal delivery or by postage prepaid,
registered or certified United States first class mail, return receipt
requested, or by telex, telegram or similar means of same day delivery
(with confirming copy by mail as provided herein). Unless otherwise
notified in writing, all notices to ALPS shall be given or sent to ALPS at
ALPS' offices, located at Xxxxx 0000, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx 00000, and all notices to Broker-Dealer shall be given or sent to
Broker-Dealer at Broker-Dealer's address shown below.
12. EFFECTIVE DATE. This Agreement shall become effective only when accepted
and signed by both parties.
13. TERMINATION. This Agreement may be terminated at any time by either party
hereto upon fifteen (15) days' prior written notice to the other party.
14. MODIFICATION. No change, modification, amendment, or waiver of any term of
this Agreement shall be valid unless it is in writing and signed by both
ALPS and Broker-Dealer.
15. ASSIGNMENT. This Agreement may not be assigned by either party without the
prior written consent of the other party.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties hereto relating to the subject matter
hereof and supersedes any and all prior agreements or understandings
between the parties relating to said subject matter.
17. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without giving effect
to principles of conflicts of law.
18. WAIVER. The waiver by either party of a breach of any provision of this
Agreement shall not operate, or be construed, as a waiver of any
subsequent breach.
19. HEADINGS. The headings have been inserted for convenience only and are not
to be considered when interpreting the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date
first above written.
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Name of Broker-Dealer (Please print or type)
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Address
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Name of Authorized Officer (Please print or type)
By:________________________________________________________
Title:_____________________________________________________
Date:______________________________________________________
ALPS Distributors, Inc.
By:________________________________________________________
Title:_____________________________________________________
Date:______________________________________________________
NSCC Dealer #_______________________ Fax Number:__________
NSCC Dealer Alpha Code______________ Date:________________
NSCC Clearing #_____________________ Mutual Fund Coordinator/
Primary Contact:_____
Phone Number:_______________________
Note: Please sign and return both copies of this Agreement to ALPS
Distributors, Inc. Upon acceptance one countersigned copy will be returned
to you for your files.
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SCHEDULE OF DISTRIBUTION AND SERVICE PAYMENTS
FOR SALES OF CLASS II SHARES
PURSUANT TO PARAGRAPH 3(a) OF THE SELLING AGREEMENT
In consideration of sales of Class II shares of the United Association S&P 500
Index Fund (the "Fund"), under the terms and conditions of Paragraph 3(a) of the
Selling Agreement, the following schedule for the payment of fees shall apply:
DEALER COMPENSATION
ANNUAL ANNUAL
NAME OF FUND CONTRACTUAL RATE CURRENT PAYMENT
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UNITED ASSOCIATION S&P 500 FUND .10% .10%
ALPS Distributors, Inc. shall pay you a fee based on the average daily net
assets throughout the quarter of Class II shares of the Fund. Such fee shall
be computed daily and paid quarterly. The determination of daily net assets
shall be made at the close of each business day throughout the quarter and
computed in the manner specified in the Fund's then-current Prospectus for
the determination of the net asset value of shares of Class II, but shall
exclude assets attributable to any other Class of the Fund.
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