SELLING AGREEMENT
We at ALPS Distributors, Inc. invite you, ( ) to distribute shares of the
open-end investment companies, or the separate series or classes of the
open-end investment companies, listed on Schedule A attached hereto and
incorporated herein by reference (the "Funds"). We may periodically change the
list of Funds by giving you written notice of the change. We are the Funds'
principal underwriter and, as agent for the Funds, we offer to sell Fund
shares to you on the following terms and conditions:
1. Certain Defined Terms. As used in this Agreement, the term "Prospectus"
means the applicable Fund's prospectus and related statement of
additional information, whether in paper format or electronic format,
included in the Fund's then currently effective registration statement
(or post-effective amendment thereto), and any information that we or the
Fund may issue to you as a supplement to such prospectus or statement of
additional information (a "sticker"), all as filed with the Securities
and Exchange Commission (the "SEC") pursuant to the Securities Act of
1933.
2. Purchases of Fund Shares for Sale to Customers.
(a) In offering and selling Fund shares to your customers, you agree to
act as dealer for your own account and in no transaction shall you
have any authority to act or hold yourself out as agent for us, or
any Fund.
(b) You agree to offer and sell Fund shares to your customers only at
the applicable public offering price, giving effect to cumulative or
quantity discounts or other purchase programs, plans or services
described in the applicable Prospectus. You agree to deliver or
cause to be delivered to each customer, at or prior to the time of
any purchase of shares, a copy of the then current prospectus
(including any stickers thereto), and to each customer who so
requests, a copy of the then current statement of additional
information (including any stickers thereto). With respect to Black
Diamond Principal Protected LS Series I and each successive Fund
employing a performance-based management fee, you agree to provide
your customers with an appropriate application to determine whether
your customers are eligible to purchase shares of such Fund.
(c) You agree to purchase Fund shares from us only to cover purchase
orders that you have already received from your customers. You agree
not to purchase any Fund shares from your customers at a price lower
than the applicable redemption price, determined in the manner
described in the Prospectus. You shall not withhold placing
customers' orders for Fund shares so as to profit yourself as a
result of such withholding (e.g., by virtue of a change in a Fund's
net asset value from that used in determining the offering price to
your customers).
(d) We will accept your purchase orders only at the public offering
price applicable to each order, as determined in accordance with the
Prospectus. We will not accept from you a conditional order for Fund
shares. All orders are subject to acceptance or rejection by us in
our sole discretion. We reserve the right in our discretion, and
without notice to you, to suspend sales or to withdraw the offering
of Fund shares, in whole or in part, or to make a limited offering
of Fund shares.
(e) The placing of orders with us will be governed by instructions that
we will periodically issue to you. You must pay for Fund shares in
federal funds in accordance with such instructions, and we must
receive your payment on or before the settlement date established in
accordance with Rule 15c6-1 under the Securities Exchange Act of
1934. If we do not receive your payment on or before such settlement
date, we may, without notice, cancel the sale, or, at our option,
sell the shares that you ordered back to the issuing Fund, and we
may hold you responsible for any loss suffered by us or the issuing
Fund as a result of your failure to make payment as required.
(f) You will comply with all applicable state and federal laws and with
the rules and regulations of authorized regulatory agencies
thereunder. You will not offer shares of any Fund for sale unless
such shares are duly registered under the applicable state and
federal laws and the rules and regulations thereunder.
(g) Any transaction in Fund shares shall be effected and evidenced by
book-entry on the records maintained by the transfer agent of the
Funds. A confirmation statement evidencing transactions in Fund
shares will be transmitted to you by the transfer agent.
3. Account Options.
(a) You may appoint the transfer agent for the Funds as your agent to
execute customers' transactions in Fund shares sold to you by us in
accordance with the terms and provisions of any account, program,
plan or service established or used by your customers and to confirm
each such transaction to your customers on your behalf, and at the
time of the transaction you guarantee the legal capacity of your
customers so transacting in such shares and any co-owners of such
shares.
(b) You may instruct the Funds' transfer agent to register shares
purchased in your name and account as nominee for your customers, in
which event all Prospectuses, proxy statements, periodic reports and
other printed material will be sent to you and all confirmations and
other communications to shareholders will be transmitted to you. You
shall be responsible for forwarding such printed material,
confirmations and communications, or the information contained
therein, to all customers for whom you hold such shares as nominee.
However, the Funds' transfer agent, or the Funds shall be
responsible for the reasonable costs associated with your forwarding
such printed material, confirmations and communications and shall
reimburse you in full for such costs. You shall also be responsible
for complying with all reporting and tax withholding requirements
with respect to the customers for whose account you are holding such
shares. With respect to customers other than such customers, you
shall provide us with all information (including, without
limitation, certification of taxpayer identification numbers and
back-up withholding instructions) necessary or appropriate for us to
comply with legal and regulatory reporting requirements.
(c) Accounts opened or maintained pursuant to the Networking system of
the National Securities Clearing Corporation ("NSCC") will be
governed by applicable NSCC rules and procedures and any agreement
or other arrangement with us relating to Networking.
4. Your Compensation.
(a) Your concession, if any, on your sales of Fund shares will be as
provided in the Prospectus or in the applicable schedule of
concessions issued by us and in effect at the time of our sale to
you. Upon written notice to you, we, or any Fund, may change or
discontinue any schedule of concessions, or issue a new schedule.
(b) In the case of a Fund or class thereof which has adopted a
Distribution and Service Plan (a "Plan") pursuant to Rule 12b-1
under the Investment Company Act of 1940 (the "1940 Act"), we may
elect from time to time to make payments to you as provided under
such Plan. Any such payments shall be made in the amount and manner
set forth in the applicable schedule of distribution and service
payments issued by us and then in effect or as set forth in the
Prospectus. Such schedule of distribution and service payments may
be discontinued or changed by us 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. In the case of a Fund or class
thereof that has no currently effective Plan, we may, to the extent
permitted by applicable law, elect to make payments to you from our
own funds.
(c) In the event that Rule 2830 of the National Association of
Securities Dealers (the "NASD") Conduct Rules precludes any Fund or
class thereof from imposing, or us from receiving, a sales charge
(as defined in that Rule) or any portion thereof, then you shall not
be entitled to any payments from us 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, you
will be entitled to payments hereunder on the same terms as the Fund
extends to us.
(d) After the effective date of any change in or discontinuance of any
schedule of concessions, distribution payments, or service payments,
or the termination of a Plan, any concessions, distribution
payments, or service payments will be allowable or payable to you
only in accordance with such change, discontinuance, or termination.
You agree that you will have no claim against us or any Fund by
virtue of any such change, discontinuance, or termination. In the
event of any overpayment by us of any concession, distribution
payment, or service payment, you will remit such overpayment.
(e) If, within seven business days after confirmation by us of your
original purchase order for shares of a Fund, such shares are
repurchased by the issuing Fund or by us for the account of such
Fund or are tendered for redemption by the customer, you shall
forthwith refund to us the full discount retained by you on the
original sale and any distribution and service payments made to you.
You shall refund to the Fund immediately upon receipt the amount of
any dividends or distributions paid to you as nominee for your
customers with respect to redeemed or repurchased Fund shares to the
extent that the proceeds of such redemption or repurchase may
include the dividends or distributions payable on such shares. You
shall be notified by us of such repurchase or redemption within ten
days of such repurchase or redemption. Delivery to the Funds'
transfer agent is delivery to the Fund.
(f) You agree that, should a Fund determine to liquidate prior to the
Investment Date as described in the Prospectus, you will refund to
your customers the amount of any concession retained by you from
your customers upon their purchase of Fund shares.
5. Status as Registered Broker/Dealer.
(a) You represent that you are and will remain a member in good standing
of the National Association of Securities Dealers, Inc. ("NASD"),
and agree to abide by all of its rules and regulations including its
Rules of Conduct. You further agree to comply with all applicable
state and federal laws and rules and regulations of regulatory
agencies having jurisdiction. Reference is hereby specifically made
to Section 2830 of the Conduct Rules of the NASD, which is
incorporated herein by reference. The termination of your membership
in the NASD or any breach of said Section 2830 will immediately and
automatically terminate this Agreement. You further represent that
you are qualified to act as a broker/dealer in the states where you
transact business.
(b) Nothing in this Agreement shall cause you to be our partner,
employee, or agent, or give you any authority to act for us or for
any Fund. Neither we nor the Funds shall be liable for any of your
acts or obligation as a dealer under this Agreement.
6. Information Relating to the Funds.
(a) No person is authorized to make any representations concerning Fund
shares except those contained in such Fund's Prospectus, and in
buying shares from us or selling shares to us hereunder, you shall
rely solely on the representations contained in the Prospectus. Upon
your request, we will furnish you with a reasonable number of copies
of the Funds' current prospectuses or statements of additional
information or both (including any stickers thereto).
(b) You may not use any sales literature or advertising material
(including material disseminated through radio, television or other
electronic media) concerning Fund shares, other than the Funds'
Prospectuses or such printed information that is given to you by us
without obtaining our prior written approval. You shall not
distribute or make available to investors any printed information
furnished by us which is marked "FOR BROKER/DEALER USE ONLY" or
which otherwise indicates that it is confidential or not intended to
be distributed to investors.
7. Indemnification. Each party ("indemnifying party") will indemnify and
hold the other party ("indemnified party") harmless from any claim,
demand, loss, expense, or cause of action resulting from the misconduct
or negligence, as measured by industry standards, of the indemnifying
party, its agents and employees, in carrying out its obligations under
this Agreement. Such indemnification will survive the termination of this
Agreement.
8. Term. This Agreement, with respect to any Plan, will continue in effect
for one year from its effective date, and thereafter will continue
automatically for successive annual periods; provided, however, that such
continuance is subject to termination at any time without penalty if a
majority of a Fund's Trustees who are not interested persons of the Fund
(as defined in the 1940 Act), or a majority of the outstanding shares of
the Fund, vote to terminate or not to continue a Plan. This Agreement,
other than with respect to a Plan, will continue in effect from year to
year after its effective date, unless terminated as provided herein.
9. Amendment and Termination of Agreement. We may change or amend any
provision of this Agreement by giving you written notice of the change or
amendment. Either party to this Agreement may terminate the Agreement
without cause by giving the other party at least thirty (30) days written
notice of its intention to terminate. This Agreement will automatically
terminate in the event of its assignment, as defined in the 1940 Act.
10. Arbitration. In the event of a dispute, such dispute shall be settled by
arbitration before arbitrators sitting in Denver, Colorado in accordance
with the NASD's Code of Arbitration Procedure in effect at the time of
the dispute. The arbitrators shall act by majority decision, and their
award may allocate attorneys' fees and arbitration costs between us.
Their award shall be final and binding between us, and such award may be
entered as a judgment in any court of competent jurisdiction.
11. Notices. All notices required or permitted to be given under this
Agreement shall be given in writing and delivered by personal delivery,
by postage prepaid mail, or by facsimile or a similar means of same day
delivery (with a confirming copy by mail). All notices to us shall be
given or sent to us at our offices located at 000 00xx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000, Attn: General Counsel. All notices to you
shall be given or sent to you at the address specified by you below. Each
of us may change the address to which notices shall be sent by giving
notice to the other party in accordance with this paragraph.
12. Miscellaneous. This Agreement shall become effective as of the date when
it is accepted and dated below by us. This Agreement shall be construed
in accordance with the laws of the state of Colorado. The captions in
this Agreement are included for convenience of reference only and in no
way define or limit any of the provisions of this Agreement or otherwise
affect their construction or effect. This Agreement supersedes and
cancels any prior agreement between us, whether oral or written, relating
to the sale of shares of the Funds or any other subject covered by this
Agreement. Failure of either party to terminate this Agreement upon the
occurrence of any event set forth in this Agreement as a cause for
termination shall not constitute a waiver of the right to terminate this
Agreement at a later time on account of such occurrence. The termination
of this Agreement with respect to any one Fund will not cause its
termination with respect to any other Fund.
13. Anti-Money Laundering Program. You understand that pursuant to various
U.S. regulations, you are required to establish an anti-money laundering
program, which satisfies the requirements of Title III of the USA PATRIOT
Act. You further represent that you have developed, implemented, and will
maintain an anti-money laundering program and will comply with all
applicable laws and regulations designed to guard against money
laundering activities set out in such program. You agree to permit
inspection relating to your anti-money laundering program by U.S. federal
departments or regulatory agencies with appropriate jurisdiction over you
and to make available to examiners from such departments or regulatory
agencies such information and records relating to your anti-money
laundering program as such examiners shall reasonably request. You
confirm that the Funds for which you place orders are the ultimate
beneficiaries of this agreement and therefore are relying upon your
compliance with your anti-money laundering program and all laws and
regulations applicable to you in the execution of orders for the Funds.
You confirm that, upon request, you will supply us with evidence of the
due diligence work you have performed. You also confirm that you will
retain all original records relating to the said due diligence work for
each customer for a period of at least 5 years from the date of the
termination of such customer's investment in the Funds.
Very truly yours,
Dated as of: _________________ ALPS DISTRIBUTORS, INC.
By: ____________________
Name:___________________
Title:__________________
ACCEPTED AND AGREED:
____________________
Firm
By: _______________________
Name:______________________
Title:_____________________
Address: __________________
___________________________
___________________________
NSCC Dealer # ____________________ Fax Number:_____________________
NSCC Dealer Alpha Code____________ Date:___________________________
NSCC Clearing # __________________ Mutual Fund Coordinator/Primary Contact:
Phone Number:_____________________ ________________________________
Schedule A
Black Diamond Funds
o Black Diamond Principal Protected 500 Series I
o Black Diamond Principal Protected 100 Series I
o Black Diamond Principal Protected 2000 Series I
o Black Diamond Principal Protected 400 Series I
o Black Diamond Principal Protected LS Series I
SELLING AGREEMENT FEE SCHEDULE
Name of Fund ANNUAL DEALER COMPENSATION
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ALPS Distributors, Inc. shall pay you a fee based on the average daily net
assets throughout the quarter of [name of 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 the Fund.
04088.0001 #371250
