Part C Exhibit 24.6.b.
FPS BROKER SERVICES, INC.
THE GOVETT FUNDS, INC. - SELLING GROUP AGREEMENT
This Agreement is between__________________________________________________
(print name of broker-dealer)
identified herein as "you or your" and FPS Broker Services, Inc. identified
herein as "we." As statutory underwriter of the Govett International Equity
Fund series, Govett Emerging Market Fund series, Govett Smaller Companies Fund
series, Govett Pacific Strategy Fund series, Govett Latin America Fund series,
Govett Global Income Fund series, and any future series (individually a "Fund"
and together the "Funds) of The Govett Funds, Inc. (the "Fund Group"), FPS
Broker Services, Inc. invite you, the undersigned broker-dealer to participate
in the distribution of the shares of the Funds (the "Shares") subject to the
following terms:
1. You are to offer and sell the Shares only at the public offering price
(current net asset value plus any applicable sales charge) described in the
applicable current prospectus of the Funds, as supplemented or amended from
time to time and in full accord with all Federal and state securities laws
and the rules and regulations promulgated thereunder, and the rules of the
National Association of Securities Dealers, Inc. ("NASD"). You agree to act
only as principal in such transactions or as agent for your customer, and
you shall not have authority to act as agent for the Funds, the Fund Group
or for us in any respect. All orders for shares are subject to acceptance
by us and become effective only upon confirmation by the applicable Fund or
its shareholder servicing agency (the "Transfer and Shareholder Services
Agent"). No conditional orders for Shares will be accepted. The procedures
relating to orders for Shares and the handling thereof will be subject to
the Funds' description thereof set forth in the Prospectus and Statement of
Additional Information (each as defined below) and to written instructions
released by us from time to time.
2. Remittance for each such order, if made by check, should be payable to the
applicable Fund and promptly delivered to the Transfer and Shareholder
Services Agent at the address appearing on the face of the confirmation of
such order. (Remittance for orders for Shares to be purchased through an
individual retirement account, as described in each Prospectus, should be
payable by check to the applicable Fund). Payment must be received by the
Transfer and Shareholder Services Agent within three (3) business days (or
such shorter period as may hereafter be required by law or regulation)
after acceptance and confirmation of your order, otherwise we reserve the
right, without notice, to cancel the sale, in which event you will be held
responsible for any loss to the applicable Fund, or to us. You agree to
provide us with written notice of any application by you to any regulatory
authority for any extension of the time for such payment prior to your
submission of such application.
3. (a) For your services hereunder, you will receive a dealer concession
("Dealer
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Concession") from us as determined in the manner provided in the then-
current Prospectus of the applicable Fund. There is no Dealer Concession on
Shares purchased through the reinvestment of dividends or distributions or
on Shares purchased at net asset value. The Dealer Concession is subject to
change from time to time, and orders placed after the date of any such
change shall be subject to the Dealer Concession in effect at the time the
order is received by the Transfer and Shareholder Service Agent. Upon the
purchase of Shares pursuant to a Letter of Intent or Right of Accumulation
(as set forth in the Prospectus and Statement of Additional Information),
you will promptly return to us any excess of the Dealer Concession
previously allowed or paid to you over that allowable with respect to such
later purchase. Unless you advise us to the contrary at the time of
transmitting a purchase order, we will consider that the investor owns no
other Shares and is not entitled to any lower sale charge than that
accorded to a single transaction in the amount of the purchase order.
(b) To the extent you provide distribution, marketing and other services to
the Funds which have distribution plans (as described in the Prospectus or
Statement of Additional Information) in effect under Rule 12b-1 under the
1940 Act (the "12b-1 Plans"), in connection with the promotion of the sale
of Shares and the retention of assets by such Funds, including furnishing
services and assistance to your customers who invest in or own Shares of
such Funds and including, but not limited to, answering routine inquiries
regarding such Funds and assisting in changing distribution options,
account designations and addresses, we shall pay you quarterly, in
accordance with the then prevailing guidelines, a portion of the fee (the
"Distribution Fee") paid by such Fund pursuant to the applicable 12b-1
Plan, as set forth below ("Additional Compensation"). Such Additional
Compensation shall be payable only with respect to Shares which are owned
of record by your firm as nominee of your customers or which are owned by
those customers of your firm whose records, as maintained by the Funds or
their agents, designate your firm as the customers' dealer of record.
Subject to the provisions of the 12b-1 Plans, as in effect from time to
time, the Additional Compensation shall be computed at the following rates,
and for each calendar quarter shall be based on the average daily net asset
value of the Shares of each Fund that remain outstanding during such
period, subject to such computation and accrual:
Additional Compensation Rate for
All Funds except the Global Income Fund: 0.40%
------
Additional Compensation Rate for
Global Income Fund: 0.25%
Payment of such Additional Compensation to you shall be made within thirty
(30) days after the close of each quarter for which such Additional
Compensation is payable. If the amount of the Additional Compensation
based upon the value of any customer's account is less than $10.00 for any
Fund for any quarter, such Additional Compensation will not be paid. If
the aggregate Additional Compensation, exclusive of Additional Compensation
not paid under the preceding sentence, for all your customer accounts is
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less than $15.00 for all Funds for any quarter, such Additional
Compensation will not be paid. In addition (i) you shall not be paid such
Additional Compensation until we are in receipt of the Distribution Fee
described in that Fund's Prospectus for the period in which you provide the
services described above; and (ii) our liability to you for the payment of
such quarterly Additional Compensation is limited solely to your pro rata
proceeds of that Fund's Distribution Fee. The provisions of this paragraph
may be terminated with respect to any Fund in accordance with the
provisions of Rule 12b-1 under the 1940 Act, and thereafter no such
Additional Compensation will be paid to you.
Where payment is due you hereunder, we agree to send checks for the Dealer
Concession and Additional Compensation to your address as it appears on our
records. You must notify us of address changes and promptly negotiate such
checks. Any such check that remains outstanding for twelve (12) months
shall be void and the obligation represented thereby shall be extinguished.
4. You agree:
(a) that you will purchase Shares only from us or from your customers;
(b) that you will purchase Shares from us only for the purpose of
covering purchase orders already received by you or for your own bona
fide investment; and
(c) that you will not directly or indirectly withhold orders for the
purchase of Shares, purchase Shares in anticipation of orders, or
accept conditional orders.
5. If any shares sold to you under the terms of this Agreement are repurchase
by a Fund or by us for the account of a Fund, or are tendered for
redemption, within five (5) business days (or such shorter period as may
hereafter be required by law or regulation) after the date of the
confirmation of the original purchase by you, you shall forthwith refund to
us the full amount of any compensation you received on such sale.
6. Shares sold to you hereunder shall not be issued in certificate form.
7. If the customer's account with a Fund is established without the customer
signing the application form, you represent that the instructions relating
to the registration and options selected which are furnished to such Fund
(whether on the application form, in some other document, or orally) are
duly authorized in accordance with the customer's instructions, and you
agree to indemnify the Funds, the Fund Group, the Transfer and Shareholder
Services Agent and us for any loss, liability, and expenses resulting from
acting upon such instructions.
8. In consideration of your representations, warranties and covenants set
forth below, we have agreed that representatives of your firm may effect
the following transactions, subject to certain restrictions, by telephone
or in writing: (1) changes in the distribution
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options selected by their brokerage customers with respect to their Fund
accounts; (2) changes in Automatic Investment Plan options of their
brokerage customers with respect to their Fund accounts; (3) changes to the
Systematic Withdrawal Plan options of their brokerage customers with
respect to their Fund accounts which do not change the name of the
recipient; and (5) general account maintenance.
You hereby represent and warrant that any and all representatives of your
firm or your correspondents who give written or telephone instructions
hereunder respecting a customer's Fund account, or who execute wire orders
through the National Securities Clearing Corporation's Fund/SERV system
("Fund/SERV") with respect to such account, will at all times have full and
valid written authority from such customer to give such instructions or to
execute such orders, and you agree that upon our request you will furnish
us with evidence of such authority in your possession. You further agree
to indemnify and hold harmless FPS Broker Services, Inc., the Fund Group
and the Funds' Transfer Agent, and their respective affiliates, officers,
directors, employees and agents, from and against any liability, claims,
loss, damages, settlements, costs and expenses, including, without
limitation, defense costs and attorneys' fees suffered or incurred by any
of them in connection with or arising directly or indirectly out of the
effectuation of any instructions from any representative of your firm or
your correspondents respecting a Fund account contemplated hereunder or in
connection by any representative of your firm or wire orders respecting
Shares through Fund/SERV, including, without limitation, any unauthorized
or fraudulent instructions or orders. You further agree that the Fund
Group and the Transfer and Shareholder Services Agent each is an express
third-party beneficiary of your representations, warranties and covenants
set forth herein, and that such representations, warranties and covenants
shall survive the termination of our Selling Group Agreement with you.
9. You agree that you will not give any information concerning Shares to any
person except for information contained in the current Prospectus, as
amended or supplemented from time to time (the "Prospectus"), the current
Statement of Additional Information for the Funds, as amended or
supplemented from time to time (the "Statement of Additional Information"),
and in sales literature prepared by us to supplement the Prospectus and
Statement of Additional Information ("Sales Literature"). In purchasing
Shares from us, you shall rely solely on the representations contained in
the Prospectus and the Statement of Additional Information. We will
furnish you with a reasonable quantity of copies of the Prospectus,
Statement of Additional Information, Sales Literature, and copies of
amendments and supplements thereto. You agree that if and when we supply
you with copies of any supplements to any Prospectus and Statement of
Additional Information, you will affix copies of such supplements to copies
of the applicable Prospectus and Statement of Additional Information
already in your possession, and that thereafter you will distribute such
Prospectus and Statement of Additional Information only if they contain
such supplements. You further agree that you will accept orders of Shares
of Funds covered by such Prospectus or Statement of Additional Information
only from persons to whom you have previously provided a copy of the
Prospectus and Statement
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of Additional Information containing such supplements.
In the event you elect to use Sales Literature, you agree that such
literature shall not be used in connection with the solicitation of Shares
unless accompanied or preceded by the relevant Prospectus as then currently
in effect and as it may be amended or supplemented in the future.
10. Each party hereto represents that it is a member of the NASD or, if a
foreign dealer, agrees to be bound by the rules and regulations of the
NASD. Each party hereto agrees to notify the other immediately should it
cease to be a member of the NASD. Each party agrees that this Agreement
shall terminate automatically on the date such party ceases to be a member
of the NASD. It is further agreed that all rules or regulations of the
NASD now in effect or hereafter adopted, which are binding upon
underwriters and dealers in the distribution of the securities of open-end
investment companies, shall be deemed to be part of this Agreement to the
same extent as if set forth in full herein.
11. You agree that you will in all respects duly conform with all federal and
state laws and regulations applicable to the offer and sale of Shares, and
will, to the maximum extent permitted by applicable law, indemnify and hold
harmless FPS Broker Services, Inc., each Fund, the Fund Group, and the
officers, directors, employees, agents and affiliates of FPS Broker
Services, Inc., from any liability, claims, loss, damage, costs,
settlements and expenses on account of any act or omission by you, your
representatives, agents or sub-agents in connection with any orders or
solicitation or orders of Shares by you, your representatives, agents or
sub-agents. You agree to offer and sell Shares only in the states and other
jurisdictions in which we have indicated in writing that such offers and
sales can be made and in which you have determined that such offers and
sales can legally be made and in which you are legally qualified and
permitted to so act. If you effect a telephone redemption or telephone
exchange of any Shares on behalf of your customer, you hereby indemnify
each Fund, the Fund Group, as and the Transfer and Shareholder Services
Agent against any loss, injury, damage, expense, or liability as a result
of acting or relying upon your telephone instructions and information.
12. We reserve the right in our discretion and without notice to you to suspend
the operation of this Agreement or to suspend or modify the terms of any
offering of Shares made by the Prospectus. Moreover, either party to this
Agreement may cancel the same by giving written notice to the other.
13. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania and shall be binding upon both
parties hereto when signed by us and accepted by you in the space provided
below. This Agreement shall not be applicable to sales of the Shares in
any state in which such Shares are not qualified for sale.
14. This Agreement cannot be amended or modified expect in writing, duly
executed by the
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authorized representatives of all of the parties to this Agreement.
15. If any party to this Agreement seeks to enforce its rights under this
Agreement by legal proceedings or otherwise, the non-prevailing party shall
pay all costs and expenses incurred by the prevailing party, including,
without limitation, all reasonable attorneys' fees.
16. This Agreement may be signed in any number of counterparts with the same
effect as if the signatures to each counterpart were upon a single
instrument. All counterparts shall be considered an original of this
Agreement.
17. If any provision of this Agreement is held to be unenforceable for any
reason, it shall be adjusted rather than voided, if possible, in order to
achieve the intent of the parties to the extent possible. In any event,
all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent possible.
18. All notices, requests, demands and other communications required by, or
made in connection with, this Agreement shall be in writing and shall be
deemed to have been duly given on the date of delivery, if delivered in
person, or three (3) days after mailing if mailed by certified or
registered mail, postage prepaid, return receipt requested, addressed, if
to you, as set forth on the signature page of this Agreement, or, if to us,
as follows:
FPS Broker Services, Inc.
0000 Xxxxxxx Xxxxx
X.X. Xxx 00000
Xxxx xx Xxxxxxx, XX 00000-0000
Attention: General Counsel
19. You acknowledge by our execution hereof that all payments by any Fund to us
under its 12b-1 Plans and all payments by Fund shareholders of sales
charges shall be paid in accordance with Section 2830 et seq. of the
Conduct Rules of the NASD, as such Section may change from time to time
("Section 2830"), including, without limitation, the limitations set forth
in Section 2830 on the maximum asset-based sales charges (as therein
defined) payable with respect to Shares. Accordingly, it is agreed that to
the extent the fees payable to us under a 12b-1 Plan with respect to a Fund
or the sales charges payable by a Fund shareholder for the purchase of Fund
shares are reduced or prohibited by the operation of Section 2830, or
payments to you hereunder of the Dealer Concession or Additional
Compensation, as the case may be, will likewise be reduced or will cease.
You further agree that we shall be obligated to pay you a Dealer Concession
or Additional Compensation hereunder only if and to the extent we actually
receive a fee from such Fund pursuant to its 12b-1 Plan or a sales charge
from such shareholder, as the case may be. You also agree to remit
promptly to us any Dealer Concession or Additional Compensation paid to you
that we subsequently determine was paid in
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connection with 12b-1 Plan fees or sales charges paid to us in violation of
Section 2830.
Very truly yours,
FPS Broker Services, Inc.
By:____________________________________________
Xxxxxx X. Xxxxxxx, Director & Vice President
Accepted:
_______________________________________
Authorized Signature Print Name and Title of Signatory
_______________________________
Print Name of Firm
_______________________________________
Address Date
_______________________________________
City, State & Zip Code Tax I.D. Number
_______________________________________
Telephone Number FAX Number
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