SELLING AGREEMENT
ALPS Distributors, Inc.
Xxxxx 0000
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We desire to enter into an Agreement with you for the sale of shares of
beneficial interest in investment portfolios (each, a "Fund" and collectively,
"Funds") of the Aristata Funds, a family of funds registered under Financial
Investors Trust (the "Trust") that are now or hereafter available for sale to
our customers. You are the principal underwriter (as such term is defined in the
Investment Company Act of 1940, as amended) of the offering of shares of the
Funds and the exclusive agent for the continuous distribution of such shares
pursuant to the terms of a Distribution Agreement between you and the Trust. As
used herein 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 each of the respective Funds.
In consideration for the mutual covenants contained herein, it is hereby agreed
that our respective rights and obligations shall be as follows:
1. You acknowledge that customers of ours who purchase Fund shares are our
customers. We 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 we have any authority to act
as agent for the Trust or for you.
2. (a) 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 such
Fund. The minimum initial purchase order and minimum subsequent purchase
order by any person shall be as set forth in the Prospectus of such Fund.
All orders are subject to acceptance or rejection by the Trust at its sole
discretion. Unless otherwise mutually agreed 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 us. We agree that upon receipt of duplicate
confirmations we will examine the same and promptly notify the Trust of
any errors or discrepancies which we discover. We shall promptly bring to
the attention of the Trust any errors in such confirmations
claimed by our customers. The Trust reserves the right, at its discretion
and without notice, to suspend the sale of shares or withdraw entirely the
sale of shares of any or all of the Funds.
(b) 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"), we may elect from time to time to make
payments to you as provided under such Plan. 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. 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.
c) In the event that Rule 2830 of the NASD Conduct Rules preclude 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.
3. In ordering shares of any Fund, we shall rely solely and conclusively on
the representations contained in the Prospectus of such Fund. We agree
that we shall not offer or sell shares of any 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 each Fund, we agree
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 involved. We further agree 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. We further agree to
obtain from each customer to whom we sell 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 you or your 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 in
writing, you shall deliver or cause to be delivered to each of the
customers who purchase shares of any Fund through us copies of all annual
and interim reports, proxy solicitation materials and any other
information and materials relating to such Fund and prepared by or on
behalf of you, the Trust or its investment adviser, custodian, transfer
agent or dividend disbursing agent for distribution to such customer. You
agree to supply us 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 each
Fund in reasonable quantities upon request. We acknowledge that any
material or information that you furnish to us, other than Prospectuses,
annual and interim reports to shareholders and proxy solicitation
materials prepared by the Trust, are your sole responsibility and not the
responsibility of the Trust.
4. We shall not make any representations concerning any Fund shares other
than those contained in the Prospectus of the Fund involved or in any
promotional materials or sales literature furnished to us by you or the
Trust. We shall not furnish or cause to be furnished to any person or
display or publish any information or materials relating to any 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 us by you or the Trust, and such other
information and materials as may be approved in writing by you.
5. Exchanges (i.e., the investment of the proceeds from the liquidation of
shares of one Fund in the shares of another Fund) shall, where available,
be made in accordance with the terms of each Fund Prospectus.
6. The procedures relating to orders and the handling thereof will be subject
to the terms of the Prospectus of the Fund involved and instructions
received by us from you or the transfer agent (the "Transfer Agent") from
time to time. No conditional orders will be accepted. We agree that
purchase orders placed by us or our customers will be made only for the
purpose of covering purchase orders already received from our customers
and that we will not make purchases for any other securities dealer or
broker. Further, we shall place purchase orders from customers with the
Trust immediately and shall not withhold the placement of such orders so
as to profit ourselves; provided, however, that the foregoing shall not
prevent the purchase of shares of any Fund by us for our own bona fide
investment. We agree that: (a) we shall not effect any transactions
(including, without limitation, any purchases and redemptions) in any Fund
shares registered in the name of, or beneficially owned by, any customer
unless such customer has granted us full right, power and authority to
effect such transactions on his behalf, and (b) you, the Trust, each
Transfer Agent and your 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 us and our customers from
and against, any and all claims, demands, liabilities and expenses
(including, without limitation, reasonable attorney's fees) which may be
incurred by you or any of the foregoing persons entitled to
indemnification from us 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 us or directly by our customers. The indemnification agreement
contained in this Paragraph 6 shall survive the termination of this
Agreement.
7. We agree that payment for orders from us or our customers for the purchase
of Fund shares will be made in accordance with the terms of the Prospectus
of the applicable Fund. On or before the settlement date of each purchase
order for shares of any Fund, we shall remit to an
account designated by you with the Transfer Agent an amount equal to the
then current net asset value of the shares of such Fund being purchased
with respect to such purchase order as determined by you in accordance
with the terms of the applicable Fund Prospectus. If payment for any
purchase order (either from us or directly from our customers) is not
received in accordance with the terms of the applicable Fund Prospectus,
you reserve the right, without notice, to cancel the sale and to hold us
or our customers responsible for any loss sustained as a result thereof.
8. We hereby represent and warrant that: (a) we are a corporation,
partnership or other entity duly organized and validly existing in good
standing under the laws of the jurisdiction in which we were organized;
(b) the execution and delivery of this Agreement and the performance of
the transactions contemplated hereby have been duly authorized by afl
necessary action and all other authorizations and approvals (if any)
required for our lawful execution and delivery of this Agreement and our
performance hereunder have been obtained; and (c) upon execution and
delivery by us, and assuming due and valid execution and delivery by you,
this Agreement will constitute a valid and binding agreement, enforceable
against us in accordance with its terms.
9. We further represent and warrant that we are a member of the NASD and,
with respect to any sales in the United States, we agree to abide by all
of the rules and regulations of the NASD, including, without limitation,
its Rules of Fair Practice. We agree to comply with all applicable federal
and state laws, rules and regulations. You agree to inform us, upon our
request, as to the states in which you believe 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 you shall have no
obligation or responsibility to make shares of any Fund available for sale
to our customers in any jurisdiction. We agree to notify you immediately
in the event of our expulsion or suspension from the NASD. Our expulsion
from the NASD will automatically terminate this Agreement immediately
without notice. Our suspension from the NASD will terminate this Agreement
effective immediately upon your written notice of termination to us.
10. The names and addresses and other information concerning our customers are
and shall remain our sole property, and neither you nor your affiliates
shall use such names, addresses or other information for any purpose
except in connection with the performance of your duties and
responsibilities hereunder and except for servicing and informational
mailings relating to the Funds. Notwithstanding the foregoing, this
Paragraph shall not prohibit you or any of your affiliates from utilizing
for any purpose the names, addresses or other information concerning any
of our customers if such names, addresses or other information are
obtained in any manner other than from us pursuant to this Agreement. The
provisions of this Paragraph shall survive the termination of this
Agreement.
11. 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 you and us. 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 federal or state
law, rule or regulation, and except pursuant to any promotional programs
mutually agreed upon in writing by the parties hereto.
12. 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 you shall be given or sent to you at your offices, located
at Suite 3100, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and all
notices to us shall be given or sent to us at our address shown below.
13. This Agreement shall become effective only when accepted and signed by
you, and may be terminated at any time by either party hereto upon fifteen
(15) days' prior written notice to the other party. This Agreement may be
amended only by a written instrument signed by both of the parties hereto
and may not be assigned by either party without the prior written consent
of the other party. 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 between the parties
relating tosaid subject matter.
14. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Colorado, without giving effect to
principles of conflicts of law.
Very truly yours, Date: ___________________
____________________________________________
Name of Broker-Dealer (Please print or type)
_________________________________________ Accepted:
ALPS DISTRIBUTORS, INC.
Address
By: _________________________
_________________________________________
Title: ______________________
Name of Authorized Officer (Please print or type)
Date: _______________________
By: _____________________________________
Title: __________________________________
________________________________________________________________________________
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.
