Exhibit 99.B5(b)
THE BEAR XXXXXXX FUNDS
AND
BEAR XXXXXXX INVESTMENT TRUST
DEALER AGREEMENT
February 25, 1999
Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") has entered into distribution
agreements (the "Distribution Agreement"), dated February 22, 1995 with The Bear
Xxxxxxx Funds (the BSF "Trusts (s)") and on March 1, 1993 with the Bear Xxxxxxx
Investment Trust ("BSIT") (BSF and BSIT collectively, the "Trust(s)") in which
Bear Xxxxxxx has agreed to act as distributor (the "Distributor") of shares of
each series ("Series") of the Trusts. For purposes of this Agreement, the term
("Shares") shall mean the authorized shares of the relevant Series or "Class" of
the Trust. This Dealer Agreement shall herein be referred to as the "Agreement."
For purposes of this Agreement, "Bear Xxxxxxx" shall mean Bear, Xxxxxxx & Co.
Inc. in our capacity as Distributor.
1. Role of Bear Xxxxxxx. Pursuant to the Distribution Agreements, we have
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agreed to use our best efforts to make arrangements for securities dealers
("Authorized Dealers") which can make the representation set forth in Section 6
of this Agreement to solicit from the public orders to purchase Shares. This
will confirm our mutual agreement as to the terms and conditions applicable to
your participation as an Authorized Dealer. You understand (a) that we may, at
any time at our option, act as an Authorized Dealer, (b) that we are seeking to
enter into this Agreement in counterparts with you and certain other securities
dealers, which also may act as Authorized Dealers, (c) that, except as we may
otherwise agree with you, we may enter into agreements (which may or may not be
the same as this Agreement) with other Authorized Dealers, (d) that the Trusts
and we may modify, suspend, terminate or withdraw entirely the offering of
Shares at any time without giving notice to you pursuant to Section 14 and
without incurring any liability or obligation to you, (e) that we may, upon
notice, change the public offering price, sales load, or dealer allowance or
modify, cancel or change the terms of this Agreement, and (f) we shall be under
no liability to you except for lack of good faith and for obligations expressly
assumed by us herein. All purchases of Shares from, and redemptions of Shares
by, the Trusts shall be effected through us acting on behalf of the Trusts. You
understand that we shall have no obligation to sell Shares to you at such times
as we are not acting as Distributor for the Shares.
2. Role of Authorized Dealers. (a) As an Authorized Dealer, you shall have
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no obligation to purchase or sell or to solicit the purchase or sale of Shares.
As, when and if you determine to purchase Shares or you receive a customer order
for the purchase of Shares and you determine to accept such order, you shall
comply with the procedures for the purchase of Shares set forth in the relevant
Prospectus and Statement of Additional Information as most currently amended or
supplemented (the "SAI"). The procedure relating to the handling of orders shall
be subject to such further instructions as we shall forward to you in writing
from time to time.
(b) You agree to offer Shares to the public at the then applicable public
offering price and subject to the minimum investment amount set forth in the
relevant Prospectus and SAI, subject to any waivers or reductions of sales load
(the "Sales Load") or dealer allowances (the
"Dealer Allowances") as described in the relevant Prospectus and SAI as amended
from time to time. Any amendment to a Prospectus which affects the Sales Load,
Dealer Allowances, waivers or discounts shall not affect the Sales Load, Dealer
Allowances, discounts or waivers with respect to sales on which orders have been
accepted by us prior to the date of notice of such amendment. Your placement of
an order for Shares after the date of any notice of such amendment shall
conclusively evidence your agreement to be bound thereby. The Trusts and Bear
Xxxxxxx reserve the right to modify any minimum investment requirements, the
subsequent investment requirements, the manner in which Shares are offered and
the Sales Load rates applicable to future purchase of Shares. You also
acknowledge that the amounts charged to the public for Shares may include such
transaction fees ("Transaction Fees") as may be described in the relevant
Prospectus and SAI. In addition, you may make available Shares through a "no
transaction fee" program, to the extent permitted in a Trust's Prospectus or
SAI. Bear Xxxxxxx shall make a reasonable effort to notify you of any
redetermination or suspension of the public offering price, but Bear Xxxxxxx
shall be under no liability for failure to do so. Reduced Sales Loads also may
be available as a result of a cumulative discount or pursuant to a right of
accumulation as set forth in the relevant Prospectus. You agree to advise us
promptly as to the amounts of any sales made by you to the public qualifying for
reduced Sales Loads.
(c) You agree to purchase Shares from us only to cover purchase orders
already received from your customers, or for your own bona fide investment. You
will not withhold placing with us orders received from your customers so as to
profit yourself as a result of such withholding. All orders for Shares are
subject to acceptance or rejection by Bear Xxxxxxx or the Trusts in the sole
discretion of either.
(d) In purchasing Shares through us, you shall rely solely on the
representations contained in the relevant Prospectus, relevant SAI and any
supplemental sales material. We will indemnify you and hold you harmless as to
any representations made in the then-current Prospectus, SAI and any other
supplemental material which we supply to you and you have not altered. You will
not furnish to any person any information relating to the Shares, the Trusts,
any Series or us that is inconsistent with information contained in the relevant
Prospectus, relevant SAI, or any printed information issued by the Trusts or us
as information supplemental to such Prospectus or cause any advertisement to be
published or posted in any public place without our consent and the consent of
the Trusts.
(e) In all sales of Shares to the public, you shall act as dealer for your
own account, whether as agent or principal. Nothing herein shall be deemed to
constitute you or any other Authorized Dealer as agent for the Trusts, us, or
any other Authorized Dealer. You agree not to act as our agent and not to claim
to act as our agent or as agent of any of the foregoing. You shall be deemed an
independent contractor and you shall have no authority to act for or represent
the Trusts. You will not act as an "underwriter" or "distributor" of Shares, as
those terms are used in the Investment Company Act of 1940, as amended (the
"Investment Company Act"), the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations thereunder.
You agree to buy Shares only through us and not from any other source and
to sell Shares only to us, as the Trusts' redemption agent, and not to any other
purchaser.
(f) You agree to accept orders for the redemption of Shares and to
transmit to the Trusts such orders and all additional material required to
complete the redemption as described in the relevant Prospectus and SAI.
(g) You agree that we shall have full authority to act upon your express
instructions to repurchase or exchange Shares through us on behalf of your
customers under the terms and conditions provided in the relevant Prospectus and
SAI. You agree to hold us, our parent company, subsidiaries, affiliates and
their respective officers, directors, employees and agents harmless as a result
of any action taken with respect to authorized repurchases or exchanges upon
your express instructions.
3. Compensation. (a) You will be entitled to receive that portion of the
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Sales Load allocated to Authorized Dealers as set forth in the relevant
Prospectus in connection with purchases of Shares effected to or through you.
You acknowledge that the Prospectuses will set forth a description of waivers or
reduction of the Sales Load in certain cases and you hereby waive such portion
of the Sales Load otherwise allocated to you. We will promptly remit or cause to
be remitted to you, by wire transfer of same day funds to an account you shall
designate, that portion of the Sales Load or Transaction Fees, if any, to which
you are entitled, after deduction of the portion allocated to us, which was
received by us and not yet paid to you.
(b) If payment in Federal Funds is not received by the third business day
after the Subscription Date or, in case of orders within three business days
after the execution of the order, Bear Xxxxxxx reserves the right, without any
notice, to cancel the sale and to hold you responsible for any loss, including
loss of profits, suffered by Bear Xxxxxxx or by the Trusts resulting from such
failure.
4. Orders and Payment for Shares. Upon receipt from you of any order to
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purchase Shares and, if a new account, an Account Information Form, we shall
confirm such order to you in writing or by wire to be followed by a confirmation
in writing. Additional instructions may be forwarded to you from time to time.
Payment for Shares ordered from us shall be made in Federal Funds and must be
received by the Trust's agent, PFPC Inc., within three business days of a
receipt and acceptance by us of an order. You agree that before transmitting
investors' funds, you will comply with Rule 15c2-4 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
5. Blue Sky and Other Qualifications. The Trust has registered an
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indefinite number of Shares under the Securities Act. Upon application by you,
we shall inform you as to any advice received by us concerning the jurisdictions
in which the Shares have been qualified for offer or sale or are exempt under
the securities or blue sky laws of such jurisdictions, but we assume no
obligation or responsibility as to your right to offer or sell Shares in any
jurisdiction (other than under the federal laws of the United States). You agree
to offer shares only in those states in which the Shares are qualified for offer
or sale or exempt under the securities or blue sky laws of such state. You may
not offer or sell Shares outside the United States, its territories or its
possessions, you will take, at your expense, such action, if any, as may be
necessary to comply with the laws of such foreign jurisdictions.
6. Representations, Warranties and Undertakings. You represent and warrant
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to and undertake that:
(a) You are familiar with Securities Act Release No. 4968, Rule 15c2-8
under the Exchange Act, Section 4(3) of Securities Act and Section 24(d) of the
Investment Company Act relating to the distribution and delivery of preliminary
and final prospectuses and will comply therewith. You will deliver thereafter to
any customer whose Shares you are holding as record holder copies of the annual
and interim reports and proxy solicitation materials relating to the Shares.
(b) You agree to keep an accurate record of distributions (including
dates, number of copies and persons to whom sent) of copies of any Prospectus
(and any SAI) for each Fund (or any amendment or supplement) and, promptly upon
request by Bear Xxxxxxx, to bring all subsequent changes to such Prospectus to
the attention of anyone to whom such material shall have been distributed. You
further agree to furnish to persons who receive a confirmation of sale of shares
of any fund of the Trusts a copy of the Prospectus (and not the SAI for such
fund of the Trusts filed pursuant to Rule 497 under the Securities Act of 1933,
as amended).
(c) You will make all reasonable efforts to obtain proxies from such
purchasers whose Shares you are holding as record holder. Additional copies of a
Fund's Prospectuses, SAI, annual or interim reports, proxy solicitation
materials and any other printed information supplemental to such material will
be supplied as reasonably requested.
(d) You are a broker-dealer registered with the Securities and Exchange
Commission (the "SEC") and a member in good standing of the National Association
of Securities Dealers, Inc. (the "NASD") or, in the alternative, that you are a
foreign dealer or bank, not required to be registered as a broker-dealer with
the SEC and not required or eligible for membership in the NASD. If you are such
an NASD member, you agree that in making sales of shares of the one or more
classes of shares of each fund of the Trusts, you will comply with all
applicable rules of the NASD, including without limitation, rules pertaining to
the opening, approval, supervision and monitoring of customer accounts, the
NASD's Interpretation with Respect to Free-Riding and Withholding and Sections
2730, 2740 and 2750 of the NASD's Conduct Rules. If you are such an unregistered
foreign dealer or bank, you agree not to offer or sell, or to agree to offer or
sell, directly or indirectly, any shares to any party to whom such shares may
not be sold unless you are so registered and a member of the NASD, and in making
sales of such shares you agree to comply with the NASD's Interpretation with
Respect to Free-Riding and Withholding and Sections 2730, 2740 and 2750 of the
NASD's Conduct Rules as though you were a member in good standing of the NASD
and to comply with Section 2420 of such Conduct Rules as it applies to a
nonmember broker or dealer in a foreign country. You agree to abide by all other
Rules and Regulations of the NASD, including Section 2830 of its Conduct Rules,
and all applicable state and Federal laws, rules and regulations. Your
acceptance also constitutes a representation that you have been duly authorized
by proper corporate or partnership action to enter into this Agreement and to
perform its obligations hereunder. You will not accept any orders from any
broker, dealer or financial institution who is purchasing from it with a view
toward distribution unless you have obtained such person's or entity's written
consent to be bound by the terms of this Agreement.
(e) You undertake to comply with respect to your offering of Shares to the
public pursuant to this Agreement with all applicable provisions of the
Securities Act, the Exchange Act and the Investment Company Act and the rules
and regulations thereunder and with the applicable rules of the NASD.
(f) You represent that any compensation payable to you hereunder (i) will
be disclosed to your customers; (ii) will be authorized by your customers; and
(iii) will not result in an excessive fee to you. In addition, if an issue
relating to a Class' 12b-1 Plan (as defined below) is submitted for shareholder
approval, you will vote any Shares held for your own account in the same
proportion as the vote of the Shares held by your customers on such issue. You
further represent that in effecting the purchase or redemption of Shares in
accordance with the terms of this Agreement: (i) you shall act solely as agent
for the account of your customer; (ii) purchases or redemptions of Shares shall
be initiated solely upon the instruction and order of your customer; (iii) the
customer will have full beneficial ownership of any Shares purchased upon its
authorization and order; and (iv) all transactions shall be for the account of
the customer and under no circumstances for your account, and shall be without
recourse to you. Under no circumstances will you make any oral or written
representations to the contrary.
7. l2b-1 Plan. Those Series or Classes set forth as having a l2b-1 Plan
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have adopted a plan under Rule l2b-1 of the Investment Company Act (a "12b-1
Plan") as described in the relevant Prospectus and SAI. To the extent you
provide services of the type contemplated by the 12b-1 Plan, you may be entitled
to receive compensation from us as set forth in the l2b-1 Plan. All
compensation, including fees under the l2b-1 Plan, shall be payable to you only
to the extent that funds are received and are in the possession of the
Distributor.
8. Shareholder Servicing Plan. Those Series or Classes set forth as having
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a Shareholder Servicing Plan have adopted such as plan as described in the
relevant Prospectus and SAI. To the extent that you provide services of the type
contemplated by the Shareholder Servicing Plan, you may be entitled to receive
compensation from us set forth in the Shareholder Servicing Plan. Such services
may include: (i) establishing and maintaining accounts and records relating to
shareholders; (ii) processing dividend and distribution payments from the Trusts
on behalf of shareholders; (iii) providing information periodically to
shareholders showing their positions in shares and integrating such statements
with those of other transactions and balances in shareholders' other accounts
serviced by such financial institution; (iv) arranging for bank wires; (v)
responding to shareholder inquiries relating to the services performed; (vi)
responding to routine inquiries from shareholders concerning their investments;
(vii) providing subaccounting with respect to shares beneficially owned by
shareholders, or the information to the Trusts necessary for subaccounting;
(viii) if required by law, forwarding shareholder communications from the Trusts
(such as proxies, shareholder reports, annual and semi-annual financial
statements and dividend, distribution and tax notices) to shareholders; (ix)
assisting in processing purchase, exchange and redemption requests from
shareholders and in placing such orders with our service contractors; (x)
assisting shareholders in changing dividend options, account designations and
addresses; (xi) providing shareholders with a service that invests the assets of
their accounts in shares pursuant to specific or pre-authorized instructions;
and (xii) providing such other similar services as the Trusts or the Distributor
may reasonably request to the extent you are permitted to do so under applicable
statutes, rules and regulations. All compensation, including the fees under
the Shareholder Servicing Plan, shall be payable to you only to the extent that
funds are received and are in the possession of the Distributor.
9. Indemnification. The parties to this Agreement hereby agree to
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indemnify and hold harmless each other, their officers and directors, and any
person who is or may be deemed to be a controlling person of each other, and any
person who is or may be deemed to be a controlling person of each other, from
and against any losses, claims, damages, liabilities or expenses (including
reasonable fees of counsel) to which any such person or entity may become
subject insofar as such losses, claims, damages, liabilities or expense (or
actions in respect thereof) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of material fact, or any omission or
alleged omission to state a material fact made or omitted by it herein, or (b)
any willful misfeasance or gross misconduct by it in the performance of its
duties and obligations hereunder.
10. NSCC Indemnity - Shareholder and House Accounts. In consideration of
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the Distributor liquidating, exchanging and/or transferring unissued Shares for
your customers without the use of original or underlying documentation
supporting such instruction (e.g. a signed stock power or signature guarantees),
you hereby agree to indemnify the Distributor and the Trusts against any losses,
including reasonable attorney's fees, that may arise from such liquidation,
exchange and/or transfer of unissued Shares upon your direction. This
indemnification shall apply only to the liquidation, exchange and/or transfer of
unissued Shares in shareholder and house accounts executed as wire orders
transmitted via NSCC's Fund/SERV system. You represent and warrant to the Trusts
and the Distributor that all such transactions shall be authorized by your
customers.
This indemnification shall not apply to any losses (including attorneys
fees) caused by the Distributor or the Trusts to comply with any of your
instructions governing any of the above transactions, or any negligent act or
omission of the Distributor or the Trusts, or any of their directors, officers,
employees or agents. All transactions shall be settled upon your confirmation
through NSCC transmission to the Distributor.
The Distributor or the Trusts may revoke the indemnity contained in this
Section nine upon written notice to each of the other parties hereto, and in the
case of such revocation, this indemnity agreement shall remain effective as to
trades made prior to such revocation.
11. Termination. Either party to this Agreement may cancel this Agreement,
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by written notice to the other party. Such cancellation shall be effective upon
receipt of such notice. Bear Xxxxxxx agrees to cancel this Agreement upon
instruction by a majority of the Trustees who are not "interested persons" of
the Trusts (as defined in the Investment Company Act) and who have not direct or
indirect financial interest in the operation of this Agreement.
12. Representations to Survive. The agreements, representations,
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warranties and other statements set forth in or made pursuant to this Agreement
will remain in full force and effect, to the extent permitted by applicable law,
regardless of any investigation made by or on behalf of us or any Authorized
Dealer. The provisions of Section 6 and 8 of this Agreement shall survive the
offer and sale of the Shares and the termination or cancellation of this
Agreement, to the extent permitted by applicable law.
13. No Association. Nothing herein contained constitutes an agreement to
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become partners with you or with any other Authorized Dealer, but you shall be
liable for your proportionate share of any tax, liability or expense based on
any claim arising from the sale of Shares under this Agreement. We shall not be
under any liability to you, except for obligations expressly assumed by us in
this Agreement and liabilities under Section 11(f) of the Securities Act of
1933, as amended, and no obligations on our part shall be implied or inferred
herefrom. We and you hereby elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as
amended, and agree not to take any position inconsistent with that election.
14. Recordkeeping. You will maintain all records required by law to be
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kept by you relating to transactions in the Shares and, upon request by the
Trusts, promptly make such of these records available to the Trusts as the
Trusts may reasonably request in connection with its operations.
15. Notices. Notices hereunder shall be deemed to have been duly given if
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delivered by hand or facsimile (a) if to you, at your address or facsimile
number set forth below and (b) if to us, to Bear, Xxxxxxx & Co. Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx or, in
each case, such other address as may be notified to the other party.
16. Amendments. We may modify this Agreement at any time by written notice
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to you. The first order placed by you subsequent to the giving of such notice
shall be deemed acceptance by you of the modification described in such notice.
17. Applicable Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York.
18. Arbitration. Any controversy or claim arising out of or relating to
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this Agreement, or any breach thereof, shall be settled by arbitration in
accordance with the Rules of the New York Stock Exchange, Inc. Such arbitration
shall be commenced within one year after the cause of action forming the basis
of the controversy or claim accrued. The arbitration shall be conducted in New
York, New York before three arbitrators, all of whom shall be from the
securities industry. Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
Please confirm your agreement by signing and returning to us the two
enclosed duplicate copies of this Agreement. Upon our acceptance hereof, the
Agreement shall constitute a valid and binding contract between us. After our
acceptance, we will deliver to you one fully executed copy of this Agreement.
Very truly yours,
BEAR, XXXXXXX & CO. INC.
By:_____________________________
Name: ____________________
Title: ___________________
Confirmed: ___________, 199_
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(Name of Authorized Dealer)
By:
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(Authorized Signature)
Name:
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Title:
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Xxxxxx Xxxxxxx
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Xxxx Xxxxx Zip
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Facsimile No.
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Telephone No.
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Telex No.
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Firm Taxpayer Identification No.
BEAR XXXXXXX FUNDS DEALER PROFILE SHEET
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1. Has signed dealer agreement been sent to distributor? Yes __ or No __ Date Sent:______
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2. Dealer name:_____________________________________________________________
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3. Dealer address:___________________________________________________________
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4. Dealer contact:___________________________________________________________
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5. Dealer phone number & fax number:_________________________________________
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QUESTIONS PRECEDED BY ** RELATE TO FUND\SERV
IF NOT A FUND\SERV PARTICIPANT, PLEASE SKIP TO QUESTION #10
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**6. Is the dealer using Fund\Serv? Yes __ or No __
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**7. Is the dealer using networking? Yes __ or No __
If yes, when would they like to receive position files? Choices are:
____ 1st & 3rd Friday _____ 2nd & 4th Friday _____ 1st & 3rd _____ Thursday
____ 2nd & 4th Thursday
Please note: Any additional position files are on an as requested basis.
Please contact Broker services at the 800 number listed below.
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**8. If using networking, indicate network level:__________________________________________
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**9. If another dealer is clearing for them, what is the other dealer's name:
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Address:
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NSCC number:___________________________________________________________________
Alpha indicator:_______________________________________________________________
Network level:_________________________________________________________________
Contact name:__________________________________________________________________
Contact phone: Area Code:(__) ___________________________
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10. What is the address of the main office for mailing purposes of commission
checks? (MAIN OFFICE ONLY)
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11. Will statements go to main office or branch? Main Office __________ Branch
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12. Omnibus account? Yes ________ or No_________
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Completed fact sheet to be forwarded with signed Selected Dealer Agreement to:
Bear Xxxxxxx Asset Management Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Any questions regarding the completion of this form, please contact
Xxxx Xxxxxx at (000) 000-0000
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