Exhibit 6(v) under Form N-1A
Exhibit 1 under Item 601/Reg. S-K
MUTUAL FUNDS
SALES AND SERVICE
AGREEMENT
This Agreement is entered into between the financial institution executing
this Agreement ("Financial Institution") and Freedom Distributors Corporation
("Freedom") with respect to those investment companies listed in Exhibit A
hereto (referred to individually as the "Fund" and collectively as the "Funds")
for whose shares of beneficial interest or capital stock ("Shares") Freedom
serves as co-distributor and/or coordinates shareholder services.
A. FINANCIAL INSTITUTION.
1. Status of Financial Institution as "Bank" or Registered Broker-Dealer.
Financial Institution represents and warrants to Freedom:
(a)(i) that it is a broker or dealer as defined in Section 3(a)(4) or 3(a)(5) of
the Securities Exchange Act of 1934 ("Exchange Act"); that it is registered with
the Securities and Exchange Commission pursuant to Section 15 of the Exchange
Act; that it is a member of the National Association of Securities Dealers,
Inc.; that its customers' accounts are insured by the Securities Investors
Protection Corporation ("SIPC"); and that, during the term of this Agreement, it
will abide by all of the rules and regulations of the NASD including, without
limitation, the NASD Rules of Fair Practice. Financial Institution agrees to
notify Freedom immediately in the event of (1) the termination of its coverage
by the SIPC; (2) its expulsion or suspension from the NASD, or (3) its being
found to have violated any applicable federal or state law, rule or regulation
arising out of its activities as a broker-dealer or in connection with this
Agreement, or which may otherwise affect in any material way its ability to act
in accordance with the terms of this Agreement. Financial Institution's
expulsion from the NASD will automatically terminate this Agreement immediately
without notice. Suspension of Financial Institution from the NASD for violation
of any applicable federal or state law, rule or regulation will terminate this
Agreement effective immediately upon Freedom's written notice of termination to
Financial Institution; or
(a)(ii) that it is a "bank," as that term is defined in Section 3(a)(6) of the
Exchange Act and that, during the term of this Agreement, it will abide by the
rules and regulations of those state and federal banking authorities with
appropriate jurisdiction over the Financial Institution, especially those
regulations dealing with the activities of the Institution as described under
this Agreement. Financial Institution agrees to notify Freedom immediately of
any action by or communication from state or federal banking authorities, state
securities authorities, the Securities and Exchange Commission, or any other
party which may affect its status as a bank, or which may otherwise affect in
any material way its ability to act in accordance with the terms of this
Agreement. Any action or decision of any of the foregoing regulatory authorities
or any court of appropriate jurisdiction which affects Financial Institution's
ability to act in accordance with the terms of this agreement, including the
loss of its exemption from registration as a broker or dealer, will terminate
this Agreement effective upon Freedom's written notice of termination to
Financial Institution; and
(b) that Financial Institution is registered with the appropriate securities
authorities in all states in which its activities make such registration
necessary.
2. Financial Institution Acts as Agent for its Customers.
The parties agree that in each transaction in the Shares of any Fund and
with regard to any services rendered pursuant to this Agreement: (a) Financial
Institution is acting as agent for the customer; (b) each transaction is
initiated solely upon the order of the customer; (c) as between Financial
Institution and its customer, the customer will have full beneficial ownership
of all Shares of the Funds; (d) each transaction shall be for the account of the
customer and not for Financial Institution's account; and (e) each transaction
shall be without recourse to Financial Institution provided that Financial
Institution acts in accordance with the terms of this Agreement. Financial
Institution shall not have any authority in any transaction to act as Freedom's
agent or as agent for the Funds.
B. SALES OF FUND SHARES.
3. Execution of Orders for Purchase and Redemption of Shares.
(a) All orders for the purchase of any Shares shall be executed at the
then-current public offering price per share (i.e., the net asset value per
share plus the applicable initial sales load, if any) and all orders for the
redemption of any Shares shall be executed at the net asset value per share, in
each case as described in the prospectus of the Fund. Any applicable redemption
fee or deferred sales charge will be deducted by the Fund prior to the
transmission of the redemption proceeds to Financial Institution or its
customer. Freedom and the Funds reserve the right to reject any purchase request
in their sole discretion. If required by law, each transaction shall be
confirmed in writing on a fully disclosed basis and, if confirmed by Freedom, a
copy of each confirmation shall be sent simultaneously to Financial Institution
if Financial Institution so requests.
(b) The procedures relating to all orders will be subject to the terms of the
prospectus of each Fund and Freedom's written instructions to Financial
Institution from time to time.
(c) Payments for Shares shall be made as specified in the applicable Fund
prospectus. If payment for any purchase order is not received in accordance with
the terms of the applicable Fund prospectus, Freedom reserves the right, without
notice, to cancel the sale and to hold Financial Institution responsible for any
loss sustained as a result thereof.
4. Initial Sales Loads Payable to Financial Institution.
(a) On each order accepted by Freedom, in exchange for the performance of sales
and/or distribution services, Financial Institution will be entitled to receive
the applicable percentage of the initial sales load, if any, as established by
Freedom from the amount paid by Financial Institution's customer. The initial
sales loads for any Fund shall be those set forth in its prospectus. The portion
of the initial sales load payable to Financial Institution may be changed at any
time at Freedom's sole discretion upon written notice to Financial Institution.
(b) Transactions may be settled by Financial Institution: (1) by payment of the
full purchase price less an amount equal to Financial Institution's applicable
percentage of the initial sales load, or (2) by payment of the full purchase
price, in which case Financial Institution shall receive, not less frequently
than monthly, the aggregate fees due it on orders received and settled.
(c) It shall be the obligation of the Financial Institution either: (i) to
provide Freedom with all necessary information regarding the application of the
appropriate initial sales load to each transaction, or (ii) to assess the
appropriate initial sales load for each transaction and to forward the public
offering price, net of the amount of the initial sales load to be reallocated to
the Financial Institution, to the appropriate Fund. Neither the Fund nor Freedom
shall have any responsibility to correct the payment or assessment of an
incorrect initial sales load due to the failure of the Financial Institution to
fulfill the foregoing obligation.
C. DISTRIBUTION SERVICES.
5. Agreement to Provide Distribution Services.
(a) With regard to those Funds which pay asset-based sales charges (pursuant to
Distribution Plans adopted under Investment Company Act Rule 12b-1), as noted on
Exhibit A hereto (or, if more recently published, the Fund's current
prospectus), Freedom hereby appoints Financial Institution to render or cause to
be rendered distribution and sales services to the Funds and their shareholders.
(b) The services to be provided under this Paragraph (a) may include, but are
not limited to, the following:
(i) reviewing the activity in Fund accounts;
(ii) providing training and supervision of its personnel;
(iii) maintaining and distributing current copies of prospectuses and
shareholder reports;
(iv) advertising the availability of its services and products;
(v) providing assistance and review in designing materials to send to
customers and potential customers and developing methods of making
such materials accessible to customers and potential customers; and
(vi) responding to customers' and potential customers' questions about the
Funds.
6. Asset-Based Sales Loads Payable to Financial Institution.
During the term of this Agreement, Freedom will pay Financial Institution
asset-based sales charges (also known as "Rule 12b-1 Fees") for each Fund as set
forth in Exhibit A to this Agreement (or, if more recently published, the Fund's
current prospectus). For the payment period in which this Agreement becomes
effective or terminates, there shall be an appropriate proration of the fee on
the basis of the number of days that this Agreement is in effect during the
quarter.
D. SHAREHOLDER SERVICES.
7. Agreement to Provide Shareholder and Account Maintenance Services.
With regard to those Funds which pay a Shareholder Services Fee to
Financial Institutions, as noted on Exhibit A hereto (or, if more recently
published, the Fund's current prospectus), Financial Institution agrees to
render or cause to be rendered personal services to shareholders of the Funds
and/or the maintenance of accounts of shareholders of the Funds ("Shareholder
Services"). Financial Institution agrees to provide Shareholder Services which,
in its best judgment, are necessary or desirable for its customers who are
investors in the Funds. Financial Institution further agrees to provide Freedom,
upon request, a written description of the Shareholder Services which Financial
Institution is providing hereunder.
8. Shareholder Service Fees Payable to Financial Institution.
During the term of this Agreement, Freedom will pay Financial Institution
Shareholder Service Fees as set forth in Exhibit A to this Agreement (or, if
more recently published, the Fund's current prospectus). For the payment period
in which this Agreement becomes effective or terminates, there shall be an
appropriate proration of the fee on the basis of the number of days that this
Agreement is in effect during the quarter.
E. SUPPLEMENTAL PAYMENTS.
9. Supplemental Payments to Financial Institution.
During the term of this Agreement, Freedom or their affiliates will make
Supplemental Payments to Financial Institution as set forth in Exhibit A to this
Agreement (or, if more recently published, the Fund's current prospectus) as
additional compensation for services described in Paragraphs 5 or 7, above; such
payments will be made from the assets of Freedom or its affiliates, and not from
assets of the Funds nor from fees payable under applicable Distribution (Rule
12b-1) Plans. For the payment period in which this Agreement becomes effective
or terminates, there shall be an appropriate proration of the payments on the
basis of the number of days that this Agreement is in effect during the quarter.
F. MISCELLANEOUS.
10. Delivery of Prospectuses to Customers.
Financial Institution will deliver or cause to be delivered to each
customer, at or prior to the time of any purchase of Shares, a copy of the
current prospectus of the Fund and, upon request by a customer or shareholder, a
copy of the Fund's current Statement of Additional Information. Financial
Institution shall not make any representations concerning any Shares other than
those contained in the prospectus or Statement of Additional Information of the
Fund or in any promotional materials or sales literature furnished to Financial
Institution by Freedom or the Fund.
11. ERISA Assets.
(a) Financial Institution understands that the Department of Labor views ERISA
as prohibiting fiduciaries of discretionary ERISA assets from receiving
administrative service fees or other compensation from funds in which the
fiduciary's discretionary ERISA assets are invested. To date, the Department of
Labor has not issued any exemptive order or advisory opinion that would exempt
fiduciaries from this interpretation. Without specific authorization from the
Department of Labor, fiduciaries should carefully avoid investing discretionary
assets in any fund pursuant to an arrangement where the fiduciary is to be
compensated by the fund for such investment. Receipt of such compensation could
violate ERISA provisions against fiduciary self-dealing and conflict of interest
and could subject the fiduciary to substantial penalties.
(b) Financial Institution will not perform or provide any duties which would
cause it to be a fiduciary under Section 4975 of the Internal Revenue Code, as
amended. For purposes of that Section, Financial Institution understands that
any person who exercises any discretionary authority or discretionary control
with respect to any individual retirement account or its assets, or who renders
investment advice for a fee, or has any authority or responsibility to do so, or
has any discretionary authority or discretionary responsibility in the
administration of such an account, is a fiduciary.
12. Indemnification.
(a) Financial Institution shall indemnify and hold harmless Freedom, each Fund,
the other co-distributors, and transfer agents of the Funds, and their
respective subsidiaries, affiliates, officers, directors, agents and employees
from all direct or indirect liabilities, losses or costs (including attorneys
fees) arising from, related to or otherwise connected with: (1) any breach by
Financial Institution of any provision of this Agreement; or (2) any actions or
omissions of Freedom, any Fund, the other co-distributors, and the transfer
agents of the Funds, and their subsidiaries, affiliates, officers, directors,
agents and employees in reliance upon any oral, written or computer or
electronically transmitted instructions believed to be genuine and to have been
given by or on behalf of Financial Institution.
(b) Freedom shall indemnify and hold harmless Financial Institution and its
subsidiaries, affiliates, officers, directors, agents and employees from and
against any and all direct or indirect liabilities, losses or costs (including
attorneys fees) arising from, related to or otherwise connected with: (1) any
breach by Freedom of any provision of this Agreement; or (2) any alleged untrue
statement of a material fact contained in any Fund's Registration Statement or
Prospectus, or as a result of or based upon any alleged omission to state a
material fact required to be stated therein or necessary to make the statements
contained therein not misleading.
(c) The agreement of the parties in this Paragraph to indemnify each other is
conditioned upon the party entitled to indemnification ("Indemnified Party")
giving notice to the party required to provide indemnification ("Indemnifying
Party") promptly after the summons or other first legal process for any claim as
to which indemnity may be sought is served on the Indemnified Party. The
Indemnified Party shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting from it, provided that counsel for
the Indemnifying Party who shall conduct the defense of such claim or litigation
shall be approved by the Indemnified Party (which approval shall not
unreasonably be withheld), and that the Indemnified Party may participate in
such defense at its expense. The failure of the Indemnified Party to give notice
as provided in this subparagraph (c) shall not relieve the Indemnifying Party
from any liability other than its indemnity obligation under this Paragraph. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
without the consent of the Indemnified Party, consent to entry of any judgment
or enter into any settlement that does not include as an unconditional term the
giving by the claimant or plaintiff to the Indemnified Party of a release from
all liability in respect to such claim or litigation.
(d) The provisions of this Paragraph 12 shall survive the termination of this
Agreement.
13. Customer Names Proprietary to Financial Institution.
(a) The names of Financial Institution's customers are and shall remain
Financial Institution's sole property and shall not be used by Freedom or its
affiliates for any purpose except the performance of their respective duties and
responsibilities under this Agreement and except for servicing and informational
mailings relating to the Funds. Notwithstanding the foregoing, this Paragraph 13
shall not prohibit Freedom or any of its affiliates from utilizing the names of
Financial Institution's customers for any purpose if the names are obtained in
any manner other than from Financial Institution pursuant to this Agreement.
(b) Neither party shall use the name of the other party in any manner without
the other party's written consent, except as required by any applicable federal
or state law, rule or regulation, and except pursuant to any mutually agreed
upon promotional programs.
(c) The provisions of this Paragraph 13 shall survive the termination of this
Agreement.
14. Security Against Unauthorized Use of Funds' Recordkeeping Systems.
Financial Institution agrees to provide such security as is necessary to
prevent any unauthorized use of the Funds' recordkeeping system, accessed via
any computer hardware or software provided to Financial Institution by Freedom
or its affiliates.
15. Solicitation of Proxies.
Financial Institution agrees not to solicit or cause to be solicited
directly, or indirectly, at any time in the future, any proxies from the
shareholders of any or all of the Funds in opposition to proxies solicited by
management of the Fund or Funds, unless a court of competent jurisdiction shall
have determined that the conduct of a majority of the Board of Trustees of the
Fund or Funds constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard of their duties. This Paragraph 15 will survive the term of
this Agreement.
16. Certification of Customers' Taxpayer Identification Numbers.
Financial Institution agrees to obtain any taxpayer identification number
certification from its customers required under Section 3406 of the Internal
Revenue Code, and any applicable Treasury regulations, and to provide Freedom or
its designee with timely written notice of any failure to obtain such taxpayer
identification number certification in order to enable the implementation of any
required backup withholding.
17. Notices.
Except as otherwise specifically provided in this Agreement, 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, overnight
courier services, or by facsimile or similar electronic means of delivery (with
a confirming copy by mail as provided herein). Unless otherwise notified in
writing, all notices to Freedom shall be given or sent to Freedom at its offices
located at Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and all notices to
Financial Institution shall be given or sent to it at its address shown below.
18. Termination and Amendment.
(a) This Agreement shall become effective in this form as of the date set forth
below or as of the first date thereafter upon which Financial Institution
executes any transaction, performs any service, or receives any payment pursuant
hereto. This Agreement supersedes any prior sales, distribution, shareholder
service, or administrative service agreements between the parties.
(b) With respect to each Fund, this Agreement shall continue in effect for one
year from the date of its execution, and thereafter for successive periods of
one year if the form of this Agreement is approved at least annually by the
Trustees of the Fund, including a majority of the members of the Board of
Trustees of the Fund who are not interested persons of the Fund and have no
direct or indirect financial interest in the operation of the Fund's
Distribution Plan or in any related documents to such Plan ("Independent
Trustees") cast in person at a meeting called for that purpose.
(c) This Agreement, including Exhibit A hereto, may be amended by Freedom from
time to time by the following procedure. Freedom will mail a copy of the
amendment to Financial Institution's address, as shown below. If Financial
Institution does not object to the amendment within thirty (30) days after its
receipt, the amendment will become part of the Agreement. Financial
Institution's objection must be in writing and be received by Freedom within
such thirty days.
(d) Notwithstanding subparagraph 18(b) and in addition to subparagraph 1(a),
this Agreement may be terminated as follows:
(i) at any time, without the payment of any penalty, by the vote of a
majority of the Independent Trustees of the Fund or by a vote of a majority of
the outstanding voting securities of the Fund as defined in the Investment
Company Act of 1940 on not more than sixty (60) days' written notice to the
parties to this Agreement;
(ii) automatically in the event of the Agreement's assignment as defined
in the Investment Company Act of 1940, upon the termination of the
"Distributor's Contract" between the Fund and Freedom, or upon the termination
of the Distribution Plan to which this Agreement is related; and
(iii) by any party to the Agreement without cause by giving the other party
at least sixty (60) days' written notice of its intention to terminate.
(e) The termination of this Agreement with respect to any one Fund will not
cause the Agreement's termination with respect to any other Fund.
19. Governing Law.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts, without regard to the conflict of laws principles
thereof.
FREEDOM DISTRIBUTORS CORPORATION
By:
Name:
Title:
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Financial Institution Name
(Please Print or Type)
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Address
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City State Zip Code
By:______________________________
Authorized Signature
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Title
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Print Name or Type Name
Dated:_____________________
EXHIBIT A
FEE SCHEDULE FOR MUTUAL FUND SALES AND SERVICES AGREEMENT WITH
FREEDOM DISTRIBUTORS CORPORATION
This Exhibit to the Mutual Fund Sales and Services Agreement between Freedom and
the Financial Institution executing the Agreement sets forth the Funds which are
offered pursuant to the Agreement. This Exhibit is subject to change pursuant to
Sections 17 and 18 of the Agreement.
FUNDMANAGER PORTFOLIOS:
Financial Advisor Class - Aggressive Growth Portfolio; Growth Portfolio;
Growth with Income Portfolio; Bond Portfolio; Managed Total Return Portfolio
Advance Commissions: NONE
Supplemental Payments: NONE
Initial Sales Load, Asset-based Sales Charge, & Shareholder Service Fee:
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Amount Invested Sales Charge Sales Charge Dealer Distribution
as a % of as a % of Net Concession as and/or
Offering Price Amount a % of Service Fees
Invested Offering Price
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Less than $50,000 4.75% 4.99% 4.00% 0.25%
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$50,000 up to 4.50% 4.71% 4.00% 0.25%
$100,000
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$100,000 up to 3.50% 3.63% 3.00% 0.25%
$250,000
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$250,000 up to 2.50% 2.56% 2.00% 0.25%
$500,000
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$500,000 up to $1 2.00% 2.04% 1.75% 0.25%
million
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$1 million or more None None *(see below) 0.25%
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