SELLING GROUP MEMBER AGREEMENT
Re:
|
del Rey Monarch Fund, a series of | Date: ____________________ | ||
| del Rey Global Investors Funds |
Ladies and Gentlemen:
As the distributor of the shares (“Shares”) of each investment company series (each, a “Fund”) of
the trust referenced above and covered hereunder (collectively, “Trust”), which may be amended by
us from time to time, Foreside Fund Services, LLC (“Distributor”) hereby invites you to
participate in the selling group on the following terms and conditions. In this letter, the terms
“we,” “us,” and similar words refer to the Distributor, and the terms “you,” “your,” and similar
words refer to the intermediary executing this agreement, including its associated persons.
1. Selling Group Member. You hereby represent that you are properly qualified under all applicable
federal, state and local laws to engage in the business and transactions described in this
agreement. In addition, you agree to comply with the rules of the Financial Industry Regulatory
Authority (“FINRA”) as if they were applicable to you in connection with your activities under this
agreement. You agree that it is your responsibility to determine the suitability of any Fund
Shares as investments for your customers, and that we have no responsibility for such
determination. You further agree to maintain all records required by Applicable Laws (as defined
below) or that are otherwise reasonably requested by us relating to your transactions in Fund
Shares. Further, you represent that no consent, approval or other authorization of or by, or
filing or registration with, any court, administrative or regulatory agency or other governmental
authority is required to be obtained by you in connection with the your performance of the
transactions contemplated by this agreement. You agree that you will at all times comply
with (i) the provisions of this Selling Group Member Agreement related to compliance with all
applicable rules and regulations; and (ii) the terms of each registration statement and prospectus
for the Funds.
2. Qualification of Shares. The Fund will make available to you a list of the states or other
jurisdictions in which Fund Shares are registered for sale or are otherwise qualified for sale,
which may be revised by the Fund from time to time. You will make offers of Shares to your
customers only in those states, and you will ensure that you (including your associated persons)
are appropriately licensed and qualified to offer and sell Shares in any state or other
jurisdiction that requires such licensing or qualification in connection with your activities.
3. Orders. All orders you submit for transactions in Fund Shares shall reflect orders received from
your customers or shall be for your account for your own bona fide investment, and you will date
and time-stamp your customer orders and forward them promptly each day and in any event prior to
the time required by the applicable Fund prospectus (the “Prospectus,” which for purposes of this
agreement includes the Statement of Additional Information incorporated therein). As agent for
your customers, you shall not withhold placing customers’ orders for any Shares so as to profit
yourself or your customer as a result of such withholding. You are hereby authorized to: (i) place
your orders directly with the relevant Fund for the purchase of Shares and (ii) tender Shares
directly to the Fund for redemption, in each case subject to the terms and conditions set forth in
the Prospectus and any operating procedures and policies established by us or the Fund (directly or
through its Transfer Agent) from time to time. All purchase orders you submit are subject to
acceptance or rejection, and we reserve the right to suspend or limit the sale of Shares. You are
not authorized to make any representations concerning Shares of any Fund except such
representations as are contained in the Prospectus and in such supplemental written information that
the Fund or the Distributor (acting on behalf of the Fund) may provide to you with respect to
a Fund. All orders that are accepted for the purchase of Shares shall be executed at the next determined public
offering price per share (i.e., the net asset value per share plus the applicable sales load, if
any) and all orders for the redemption of Shares shall be executed at the next determined net asset
value per share and subject to any applicable redemption fee, in each case as described in the
Prospectus.
4. Compliance with Applicable Laws; Distribution of Prospectus and Reports; Confirmations. In
connection with its respective activities hereunder, each party agrees to abide by the Conduct
Rules of FINRA and all other rules of self-regulatory organizations of which the relevant party is
a member, as well as all laws, rules and regulations, including federal and state securities laws,
that are applicable to the relevant party (and its associated persons) from time to time in
connection with its activities hereunder (“Applicable Laws”). You are authorized to distribute to
your customers the current Prospectus, as well as any supplemental sales material received from the
Fund or the Distributor (acting on behalf of the Fund) (on the terms and for the period specified
by us or stated in such material). You are not authorized to distribute, furnish or display any
other sales or promotional material relating to a Fund without our prior written approval, but you
may identify the Funds in a listing of mutual funds available through you to your customers.
Unless otherwise mutually agreed in writing, you shall deliver or cause to be delivered to each
customer who purchases shares of any Funds from or through you, copies of all annual and interim
reports, proxy solicitation materials, and any other information and materials relating to such
Funds and prepared by or on behalf of the Funds or us. If required by Rule 10b-10 under the
Securities Exchange Act or other Applicable Laws, you shall send or cause to be sent confirmations
or other reports to your customers containing such information as may be required by Applicable
Laws.
5. Sales Charges and Concessions. [not applicable].
6. Transactions in Fund Shares. With respect to all orders you place for the purchase of Fund
Shares, unless otherwise agreed, settlement shall be made with the Fund within three (3) business
days after acceptance of the order. If payment is not so received or made, the transaction may be
cancelled. In this event or in the event that you cancel the trade for any reason, you agree to be
responsible for any loss resulting to the Funds or to us from your failure to make payments as
aforesaid. You shall not be entitled to any gains generated thereby. You also assume
responsibility for any loss to a Fund caused by any order placed by you on an “as-of” basis
subsequent to the trade date for the order, and will immediately pay such loss to the Fund upon
notification or demand. Such orders shall be acceptable only as permitted by the Fund and shall be
subject to the Fund’s policies pertaining thereto, which may include receipt of an executed Letter
of Indemnity in a form acceptable to the Fund and /or to us prior to the Fund’s acceptance of any
such order.
7. Accuracy of Orders; Customer Signatures. You shall be responsible for the accuracy, timeliness
and completeness of any orders transmitted by you on behalf of your customers by any means,
including wire or telephone. In addition, you agree to guarantee the signatures of your customers
when such guarantee is required by the Fund and you agree to indemnify and hold harmless all
persons, including us and the Funds’ transfer agent, from and against any and all loss, cost,
damage or expense suffered or incurred in reliance upon such signature guarantee.
8. Indemnification. You agree to indemnify and hold harmless us and our respective officers,
directors, agents and employees, and each Fund, and their respective officers, directors, agents
and employees, and control persons (as defined in section 15 of the Securities Act of 1933 (the
“Securities Act”) or section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), from and against any claims, liabilities, expenses (including reasonable attorneys’ fees)
and losses resulting from (i)
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any failure by you to comply with Applicable Laws in connection with
activities performed under this agreement; (ii) any unauthorized representation made by you concerning an investment in Fund
Shares; or (iii) any action taken or omitted to be taken by you in breach of the terms of this
Agreement.
We agree to indemnify and hold harmless you and your officers, directors, agents and employees
from and against any claims, liabilities, expenses (including reasonable attorneys fees) and losses
resulting from (i) any failure by us to comply with Applicable Laws in connection with our
activities as Distributor under this agreement, or (ii) any untrue statement of a material fact set
forth in a Fund’s Prospectus or supplemental sales material provided to you by us (and used by you
on the terms and for the period specified by us or stated in such material), or omission to state a
material fact required to be stated therein to make the statements therein not misleading.
9. Multi-Class Distribution Arrangements. You understand and acknowledge that the Funds may offer
Shares in multiple classes, and you represent and warrant that you have established compliance
procedures designed to ensure that your customers are made aware of the terms of each available
class of Fund Shares, to ensure that each customer is offered only Shares that are suitable
investments for him or her, and to ensure proper supervision of your representatives in
recommending and offering the Shares of multiple classes to your customers.
10. Anti-Money Laundering Compliance. Each party to this agreement acknowledges that it is a
financial institution subject to the USA PATRIOT Act of 2001 and the Bank Secrecy Act
(collectively, the “AML Acts”), which require, among other things, that financial institutions
adopt compliance programs to guard against money laundering. Each party represents and warrants
that it is in compliance and will continue to comply with the AML Acts and applicable rules
thereunder (“AML Laws”), including NASD Conduct Rule 3011, in all relevant respects. You agree to
cooperate with us to satisfy AML due diligence policies of the Fund and Distributor, which may
include annual compliance certifications and periodic due diligence reviews and/or other requests
deemed necessary or appropriate by us or the Fund to ensure compliance with AML Laws. You also
agree to provide for screening its own new and existing customers against the Office of Foreign
Asset Control (“OFAC”) list and any other government list that is or becomes required under the AML
Acts.
11. Privacy. The parties agree that any Non-Public Personal Information, as the term is defined in
Regulation S-P (“Reg S-P”) of the Securities and Exchange Commission, that may be disclosed
hereunder is disclosed for the specific purpose of permitting the other party to perform the
services set forth in this agreement. Each party agrees that, with respect to such information, it
will comply with Reg S-P and that it will not disclose any Non-Public Personal Information received
in connection with this agreement to any other party, except to the extent required to carry out
the services set forth in this agreement or as otherwise permitted by law.
12. Service Fees. Subject to and in accordance with the terms of each Prospectus and the
Distribution and Service Plan, if any, adopted by resolution of the Board pursuant to Rule 12b-1
under the Investment Company Act of 1940 (the “1940 Act”), we may pay financial institutions with
which we have entered into an agreement in substantially the form annexed hereto as Appendix A or
such other form as may be approved from time to time by the Funds’ Board (the “Fee Agreement”) such
fees as may be determined in accordance with such Fee Agreement, for shareholder or administrative
services, as described therein. You hereby represent that you are permitted under applicable laws
to receive all payments for shareholder services contemplated herein.
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13. Order Processing. You represent that you have reviewed your policies and procedures to ensure
that they are adequate with respect to preventing violations of law and Prospectus requirements
related to timely order-taking and market timing activity, in that such policies and procedures (i) prevent
the submission of any order received after the deadline for submission of orders in each day that
are eligible for pricing at that day’s net asset value per share (“NAV”); and (ii) prevent the
purchase of Fund Shares by an individual or entity whose stated objectives are not consistent with
the stated policies of a Fund in protecting the best interests of longer-term investors,
particularly where such investor may be seeking market timing or arbitrage opportunities through
such purchase. You represent that you will be responsible for the collection and payment to the
Fund of any Redemption Fees based upon the terms outlined in the Fund’s Prospectus
14. Amendments. This agreement may be amended from time to time by the following procedure. We
will mail a copy of the amendment to you at your address shown below. If you do not object to the
amendment within fifteen (15) days after its receipt, the amendment will become a part of this
agreement. Your objection must be in writing and be received by us within such fifteen (15) days.
All amendments shall be in writing and except as provided above shall be executed by both parties.
15. Termination. This agreement shall inure to the benefit of the successors and assigns of either
party hereto, provided, however, that you may not assign this agreement without our prior written
consent. This agreement may be terminated by either party, without penalty, upon ten days’ prior
written notice to the other party. Any unfulfilled obligations hereunder, and all obligations of
indemnification, shall survive the termination of this agreement.
16. Notices. All notices and communications to us shall be sent to us at Three Xxxxx Xxxxx, Xxxxx
000, Xxxxxxxx, XX 00000, Attn: Legal/Compliance, or at such other address as we may designate in
writing. All notices and other communication to you shall be sent you at the address set forth
below or at such other address as you may designate in writing. All notices required or permitted
to be given pursuant to this agreement shall be given in writing and delivered by personal
delivery, by postage prepaid mail, electronic mail, or by facsimile or similar means of same-day
delivery, with a confirming copy by mail.
17. Authorization. Each party represents to the other that all requisite corporate proceedings
have been undertaken to authorize it to enter into and perform under this agreement as contemplated
herein, and that the individual that has signed this agreement below on its behalf is a duly
elected officer that has been empowered to act for and on behalf of such party with respect to the
execution of this agreement.
18. Directed Brokerage Prohibitions. The Distributor and Selling Group Member agree that neither of
them shall direct Fund portfolio securities transactions or related remuneration to satisfy any
compensation obligations under this Agreement. The Distributor also agrees that it will not
directly or indirectly compensate the Selling Group Member executing this agreement in
contravention of Rule 12b-1(h) of the 1940 Act.
19. Shareholder Information. The Selling Group Member executing this agreement agrees to comply
with the requirements set forth on Appendix B attached hereto regarding the provision of
shareholder information pursuant to Rule 22c-2 of the 1940 Act.
20. Third Party Beneficiaries. The Distributor and Selling Group Member expressly agree that in
addition to the signatories to this agreement, each Fund is a third party beneficiary to this
agreement with respect to matters relating to it or its shares, with legal and equitable rights to
seek enforcement of
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those provisions to which it is the intended beneficiary including but not
limited to the indemnity provided by Section 8.
21. Miscellaneous. This agreement supersedes any other agreement between the parties with respect
to the offer and sale of Fund Shares and other matters covered herein. The invalidity or
unenforceability of any term or provision hereof shall not affect the validity or enforceability of
any other term or provision hereof. This agreement may be executed in any number of counterparts,
which together shall constitute one instrument. This agreement shall be governed by and construed
in accordance with the laws of the state of Delaware without regard to conflict of laws principles,
and shall bind and inure to the benefit of the parties hereto and their respective successors and
assigns.
* * * *
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If the foregoing corresponds with your understanding of our agreement, please sign this document
and the accompanying copies thereof in the appropriate space below and return the same to us,
whereupon this agreement shall be binding upon each of us.
Foreside Fund Services, LLC
| By: |
| Insert Name: |
| Title: |
Agreed to and accepted:
| ______________________ | [Insert Intermediary Name] |
| By: |
| Print Name: |
| Title: |
Address of Intermediary:
Operations Contact:
| Name: |
| Phone: |
| Email: |
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Appendix A
FORESIDE FUND SERVICES, LLC
SERVICE FEE AGREEMENT
SERVICE FEE AGREEMENT
Re:
|
del Rey Monarch Fund, a series of | Date: ____________________ | ||
| del Rey Global Investors Funds |
Ladies and Gentlemen:
This Fee Agreement (“Agreement”) confirms our understanding and agreement with respect to Rule
12b-1 payments to be made to you in accordance with the Selling Group Member Agreement between you
and us (the “Selling Group Member Agreement”), which entitles you to serve as a selling group
member of certain Funds for which we serve as Distributor. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Selling Group Member Agreement.
1. From time to time during the term of this Agreement, we may make payments to you pursuant to
one or more distribution and service plans (the “Plans”) adopted by certain of the Funds pursuant
to Rule 12b-1 of the Investment Company Act of 1940 (the “1940 Act”). You agree to furnish sales
and marketing services and/or shareholder services to your customers who invest in and own Fund
Shares, including, but not limited to, answering routine inquiries regarding the Funds, processing
shareholder transactions, and providing any other shareholder services not otherwise provided by a
Fund’s transfer agent. With respect to such payments to you, we shall have only the obligation to
make payments to you after, for as long as, and to the extent that, we receive from the Fund an
amount equivalent to the amount payable to you. The Fund reserves the right, without prior notice,
to suspend or eliminate the payment of such Rule 12b-1 Plan payments or other compensation by
amendment, sticker or supplement to the then-current Prospectus of the Fund or other written notice
to you.
2. Any such fee payments shall reflect the amounts described in the Fund’s Prospectus. Payments
will be based on the average daily net assets of Fund Shares which are owned by those customers of
yours whose records, as maintained by the Funds or the transfer agent, designate your firm as the
customer’s intermediary of record. No such fee payments will be payable to you with respect to
shares purchased by or through you and redeemed by the Funds within seven business days after the
date of confirmation of such purchase. You represent that you are eligible to receive any such
payments made to you under the Plans.
3. You agree that all activities conducted under this Agreement will be conducted in accordance
with the Plans, as well as all applicable state and federal laws, including the 1940 Act, the
Exchange Act, the Securities Act and any applicable rules of FINRA.
4. Upon request, on a quarterly basis, you shall furnish us with a written report describing the
amounts payable to you pursuant to this Agreement and the purpose for which such amounts were
expended. We shall provide quarterly reports to the Funds’ Board of amounts expended pursuant to
the Plans and the purposes for which such expenditures were made. You shall furnish us with such
other information as shall reasonably be requested by us in connection with our reports to the
Board with respect to the fees paid to you pursuant to this Agreement.
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5. This Agreement shall continue in effect until terminated in the manner prescribed below or as
provided in the Plans or in Rule 12b-1. This Agreement may be terminated, with respect to one or
more Funds, without penalty, by either of us, upon ten days’ prior written notice to the other
party. In addition, this Agreement will be terminated with respect to any Fund upon a termination
of the relevant Plan or the Selling Group Member Agreement, if a Fund closes to new investments, or
if our Distribution Agreement with the Funds terminates.
6. This Agreement may be amended by us from time to time by the following procedure. We will mail
a copy of the amendment to you at your address shown below. If you do not object to the amendment
within fifteen (15) days after its receipt, the amendment will become a part of this Agreement.
Your objection must be in writing and be received by us within such fifteen days.
7. This Agreement shall become effective as of the date when it is executed and dated by us below.
This Agreement and all the rights and obligations of the parties hereunder shall be governed by
and construed under the laws of the state of Delaware, without regard to conflict of laws
principles.
8. All notices and other communications shall be given as provided in the Selling Group Member
Agreement.
If the foregoing is acceptable to you, please sign this Agreement in the space provided below and
return the same to us.
Foreside Fund Services, LLC
| By: |
| Insert Name: |
| Title: |
Agreed to and Accepted
Name and Address of Intermediary:
Name and Address of Intermediary:
| By: |
| Insert Name: |
| Title: |
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APPENDIX B
Information Regarding the Provision of Shareholder Information Pursuant to Rule 22c-2
(a). Agreement to Provide Information. Intermediary agrees to provide the Fund, upon request, the
taxpayer identification number (“TIN”), if known, (or in the case of a non U.S. shareholder, if the
TIN is unavailable, the International Taxpayer Identification Number or other government issued
identifier) of any or all Shareholder(s) who have purchased, redeemed, transferred, or exchanged
fund shares held through an account with Intermediary and the amount, date, name or other
identifier of any investment professional(s) associated with the Shareholder(s) or account (if
known), and transaction type (purchase, redemption, transfer, or exchange) of every purchase,
redemption, transfer, or exchange of Shares held through an account maintained by the Intermediary
during the period covered by the request.
i. Period Covered by Request. Requests must set forth a specific period, not to exceed 90
days from the date of the request, for which transaction information is sought. The Fund
may request transaction information older than 90 days from the date of the request as it
deems necessary to investigate compliance with policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
ii. Form and Timing of Response. Intermediary agrees to transmit the requested information
that is on its books and records to the Fund or its designee promptly, but in any event not
later than five business days, after receipt of a request. If the requested information is
not on the Intermediary’s books and records, Intermediary agrees to use best efforts to: (x)
provide or arrange to provide to the Fund the requested information from shareholders who
hold an account with an indirect intermediary, including a determination on whether any
specific person about whom Intermediary has received information, is itself a financial
intermediary; or (y) if directed by the Fund, restrict or prohibit further purchases or
exchanges of Fund Shares by a shareholder who has been identified by the Fund as having
engaged in transactions of Fund shares (directly or indirectly) that violate policies
established by the Fund for the purpose of eliminating or reducing any dilution of the value
of the outstanding securities issued by the Fund. In such instance, Intermediary agrees to
inform the Fund whether it plans to perform (x) or (y). Responses required by this
paragraph must be communicated in writing and in a format mutually agreed upon by the
parties. To the extent practicable, the format for any transaction information provided to
the Fund should be consistent with the NSCC Standardized Data Reporting Format. For purposes
of this provision, an “indirect intermediary” has the same meaning as in SEC Rule 22c-2
under the Investment Company Act.
iii. Limitations on Use of Information. The Fund agrees not to use the information received
for marketing or any other similar purpose without the prior written consent of the
Intermediary.
(b) Agreement to Restrict Trading. Intermediary agrees to execute written instructions from the
Fund to restrict or prohibit further purchases or exchanges of Fund shares by a Shareholder who has
been identified by the Fund as having engaged in transactions of the Fund’s Shares (directly or
indirectly through the Intermediary’s account) that violate policies established by the Fund for
the purpose of eliminating or reducing any dilution of the value of the outstanding Shares issued
by the Fund.
i. Form of Instructions. Instructions must include the TIN, if known, and the specific
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restriction(s) to be executed. If the TIN is not known, the instructions must include an
equivalent identifying number of the Shareholder(s) or account(s) or other agreed upon
information to which the instruction relates.
ii. Timing of Response. Intermediary agrees to execute instructions as soon as reasonably
practicable, but not later than five business days after receipt of the instructions by the
Intermediary.
iii. Confirmation by Intermediary. Intermediary must provide written confirmation to the
Fund that instructions have been executed. Intermediary agrees to provide confirmation as
soon as reasonably practicable, but not later than ten business days after the instructions
have been executed.
| (c) | Definitions. For purposes of this Appendix B: |
i. The term “Fund” includes the fund’s investment adviser, principal underwriter and
transfer agent. The term does not include any “excepted funds” as defined in SEC Rule
22c-2(b) under the Investment Company Act of 1940.1
ii. The term “Shares” means the interests of Shareholders corresponding to the redeemable
securities of record issued by the Fund under the Investment Company Act of 1940 that are
held by the Intermediary.
iii. The term “Shareholder” means the beneficial owner of Shares, whether the Shares are
held directly or by the Intermediary in nominee name or, alternatively, for use with
retirement plan recordkeepers, the term means the Plan participant notwithstanding that the
Plan may be deemed to be the beneficial owner of Shares.
iv. The term “written” includes electronic writings and facsimile transmissions.
v. The term “Intermediary” shall mean a “financial intermediary” as defined in SEC rule
22c-2.
| 1 | As defined in SEC Rule 22c-2(b), the term “excepted fund” means any: (1) money market fund; (2) fund that issues securities that are listed on a national exchange; and (3) fund that affirmatively permits short-term trading of its securities, if its prospectus clearly and prominently discloses that the fund permits short-term trading of its securities and that such trading may result in additional costs for the fund. |
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