XXXXX XXXXXX MUTUAL FUNDS
BROKER DEALER CONTRACT
CFBDS, Inc.
00 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We, CFBDS, Inc. ("CFBDS"), have agreements with certain
investment companies for which Mutual Management Corp. serves as
investment adviser and/or administrator (each a "Fund") pursuant to
which we act as nonexclusive principal underwriter and distributor
for the sale of shares of capital stock ("shares") of the various
series of such Funds, and as such have the right to distribute shares
for resale. Each Fund is an open-end investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act")
and the shares being offered to the public are registered under the
Securities Act of 1933, as amended (the "1933 Act"). Each series of
each Fund covered by a Distribution Agreement from time to time is
referred to in this agreement as a "Series" and collectively as the
"Series." The term "Prospectus", as used herein, refers to the
prospectus and related statement of additional information (the
"Statement of Additional Information") incorporated therein by
reference (as amended or supplemented) on file with the Securities
and Exchange Commission at the time in question. As a broker in the
capacity of principal underwriter and distributor for the Trust, we
offer to sell to you, as a broker or dealer, shares of each Fund upon
the following terms and conditions:
1. In all sales to the public you shall act as broker
for your customers or as dealer for your own account, and in no
transaction shall you have any authority to act as agent for the
Trust, for us or for any other dealer.
2. Orders received from you will be accepted through us
only at the public offering price per share (i.e. the net asset value
per share plus the applicable front-end sales charge, if any)
applicable to each order, and all orders for redemption of any shares
shall be executed at the net asset value per share less any
contingent deferred sales charge, if any, in each case as set forth
in the Prospectus. You will be entitled to receive and retain any
contingent deferred sales charge amounts in partial consideration of
your payment to financial consultants of commission amounts at the
time of sale and we will obligate any other brokers with whom we
enter into similar agreements to pay such amounts directly to you.
The procedure relating to the handling of orders shall be subject to
paragraph 4 hereof and instructions which we or the Fund shall
forward from time to time to you. All orders are subject to
acceptance or rejection by the applicable Fund or us in the sole
discretion of either. The minimum initial purchase and the minimum
subsequent purchase of any shares shall be as set forth in the
Prospectus pertaining to the relevant Series.
3. You shall not place orders for any shares unless you
have already received purchase orders for those shares at the
applicable public offering price and subject to the terms hereof.
You agree that you will not offer or sell any shares except under
circumstances that will result in compliance with the applicable
Federal and state securities laws, the applicable rules and
regulations thereunder and the rules and regulations of applicable
regulatory agencies or authorities and that in connection with sales
and offers to sell shares you will furnish to each person to whom any
such sale or offer is made, a copy of the Prospectus and, upon
request, the Statement of Additional Information, and will not
furnish to any person any information relating to shares which is
inconsistent in any respect with the information contained in the
Prospectus or Statement of Additional Information (as then amended or
supplemented). You shall not furnish or cause to be furnished to any
person or display or publish any information or materials relating to
the shares (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 you by or on behalf
of us or the Funds, and such other information and materials as may
be approved in writing by or on behalf of us or the Funds.
4. As a broker dealer, you are hereby authorized (i) to
place orders directly with the applicable Fund or Series for shares
subject to the applicable terms and conditions governing the
placement of orders by us set forth in the Prospectus and (ii) to
tender shares directly to each Fund or its agent for redemption
subject to the applicable terms and conditions governing the
redemption of shares applicable to us set forth in the Prospectus.
5. You shall not withhold placing orders received from
your customers so as to profit yourself as a result of such
withholding, e.g., by a change in the "net asset value" from that
used in determining the offering price to your customers.
6. In determining the amount of any sales concession
payable to you hereunder, we reserve the right to exclude any sales
which we reasonably determine are not made in accordance with the
terms of the Prospectus and the provisions of this Agreement. Unless
at the time of transmitting an order we advise you or the transfer
agent to the contrary, the shares ordered will be deemed to be the
total holdings of the specified investor.
7. (a) You agree that payment for orders from you for
the purchase of shares will be made in accordance with the terms of
the Prospectus. On or before the business day following the
settlement date of each purchase order for shares, you shall transfer
same day funds to an account designated by us with the transfer agent
in an amount equal to the public offering price on the date of
purchase of the shares being purchased less your sales concession, if
any, with respect to such purchase order determined in accordance
with the Prospectus. If payment for any purchase order is not
received in accordance with the terms of the Prospectus, we reserve
the right, without notice, to cancel the sale and to hold you
responsible for any loss sustained as a result thereof.
(b) If any shares sold under the terms of this Agreement
are sold with a sales charge and are redeemed or are tendered for
redemption within seven (7) business days after confirmation of your
purchase order for such shares: (i) you shall forthwith refund to us
the full sales concession received by you on the sale; and (ii) we
shall forthwith pay to the applicable Series our portion of the sales
charge on the sale which has been retained by us, if any, and shall
also pay to the applicable Series the amount refunded by you.
(c) We will not be obligated to pay or cause to be paid
to you any ongoing trail commission or shareholder service fees with
respect to shares of the Series purchased through you and held by or
for your customers, which you shall collect directly from the Funds.
(d) Certificates evidencing shares shall be available
only upon request. Upon payment for shares in accordance with
paragraph 7(a) above, the transfer agent will issue and transmit to
you or your customer a confirmation statement evidencing the purchase
of such shares. Any transaction in uncertificated shares, including
purchases, transfers, redemptions and repurchases, shall be effected
and evidenced by book-entry on the records of the transfer agent.
8. No person is authorized to make any representations
concerning shares except those contained in the current Prospectus
and Statement of Additional Information and in printed information
subsequently issued by us or the Funds as information supplemental to
the Prospectus and the Statement of Additional Information. In
purchasing or offering shares pursuant to this Agreement you shall
rely solely on the representations contained in the Prospectus, the
Statement of Additional Information and the supplemental information
above mentioned.
9. You agree to deliver to each purchaser making a
purchase of shares from or through you a copy of the Prospectus at or
prior to the time of offering or sale, and, upon request, the
Statement of Additional Information. You may instruct the transfer
agent to register shares purchased in your name and account as
nominee for your customers. You agree thereafter to deliver to any
purchaser whose shares you or your nominee are holding as record
holder copies of the annual and interim reports and proxy
solicitation materials and any other information and materials
relating to the Trust and prepared by or on behalf of us, the Funds
or the investment adviser, custodian, transfer agent or dividend
disbursing agent for distribution to beneficial holders of shares.
The Funds shall be responsible for the costs associated with
forwarding such reports, materials and other information and shall
reimburse you in full for such costs. You further agree to make
reasonable efforts to endeavor to obtain proxies from such purchasers
whose shares you or your nominee are holding as record holder. You
further agree to obtain from each customer to whom you sell 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
us or our 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 in
accordance with Section 3406 of the Code and the regulations
thereunder. Additional copies of the Prospectus, Statement of
Additional Information, annual or interim reports, proxy solicitation
materials and any such other information and materials relating to
the Trust will be supplied to you in reasonable quantities upon
request.
10. (a) In accordance with the terms of the Prospectus,
a reduced sales charge may be available to customers, depending on
the amount of the investment or proposed investment. In each case
where a reduced sales charge is applicable, you agree to furnish to
the transfer agent sufficient information to permit confirmation of
qualification for a reduced sales charge, and acceptance of the
purchase order is subject to such confirmation. Reduced sales
charges may be modified or terminated at any time in the sole
discretion of each Fund.
(b) You acknowledge that certain classes of investors
may be entitled to purchase shares at net asset value without a sales
charge as provided in the Prospectus and Statement of Additional
Information.
(c) You agree to advise us promptly as to the amount of
any and all sales by you qualifying for a reduced sales charge or no
sales charge.
(d) Exchanges (i.e., the investment of the proceeds from
the liquidation of shares of one Series in the shares of another
Series, each of which is managed by the same or an affiliated
investment adviser) shall, where available, be made in accordance
with the terms of each Prospectus.
11. We and each Fund reserve the right in our
discretion, without notice, to suspend sales or withdraw the offering
of any shares entirely. Each party hereto has the right to cancel
the portions of this Agreement to which it is party upon notice to
the other parties; provided, however, that no cancellation shall
affect any party's obligations hereunder with respect to any
transactions or activities occurring prior to the effective time of
cancellation. We reserve the right to amend this Agreement in any
respect effective on notice to you.
12. We shall have full authority to take such action as we
may deem advisable in respect of all matters pertaining to the
continuous offering of shares. We shall be under no liability to you
except for lack of good faith and for obligations expressly assumed by
us herein. Nothing contained in this paragraph 12 is intended to
operate as, and the provisions of this paragraph 12 shall not in any way
whatsoever constitute a waiver by you of compliance with, any provisions
of the 1933 Act or of the rules and regulations of the Securities and
Exchange Commission issued thereunder.
13. You agree that: (a) you shall not effect any
transactions (including, without limitation, any purchases and
redemptions) in any shares registered in the name of, or beneficially
owned by, any customer unless such customer has granted you full
right, power and authority to effect such transactions on his behalf,
(b) we shall have full authority to act upon your express
instructions to sell, repurchase or exchange shares through us on
behalf of your customers under the terms and conditions provided in
the Prospectus and (c) we, the Funds, the investment adviser, the
administrator, the transfer agent and our 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 you from and against, any and all claims, demands,
liabilities and expenses (including, without limitation, reasonable
attorneys' fees) which may be incurred by us or any of the foregoing
persons entitled to indemnification from you hereunder arising out of
or in connection with (i) the execution of any transactions in 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 you, (ii) any statements or
representations that you or your employees or representatives make
concerning the Funds that are inconsistent with the applicable Fund's
Prospectus, (iii) any written materials used by you or your employees
or representatives in connection with making offers or sales of
shares that were not furnished by us, the Funds or the investment
adviser or an affiliate thereof and (iv) any sale of shares of a Fund
where the Fund or its shares were not properly registered or
qualified for sale in any state, any U.S. territory or the District
of Columbia, when we have indicated to you that the Fund or its
shares were not properly registered or qualified. The
indemnification agreement contained in this Paragraph 13 shall
survive the termination of this Agreement.
14. You represent that: (a) you are a member in good
standing of the National Association of Securities Dealers, Inc. (the
"NASD"), or, if a foreign dealer who is not eligible for membership
in the NASD, that (i) you will not make any sales of shares in, or to
nationals of, the United States of America, its territories or its
possessions, and (ii) in making any sales of shares you will comply
with the NASD's Conduct Rules and (b) you are a member in good
standing of the Securities Investor Protection Corporation ("SIPC").
You agree that you will provide us with timely written notice of any
change in your NASD or SIPC status.
15. We shall inform you as to the states or other
jurisdictions in which the Fund has advised us that shares have been
qualified for sale under, or are exempt from the requirements of, the
respective securities laws of such states, but we assume no
responsibility or obligation as to your qualification to sell shares
in any jurisdiction.
16. Any claim, controversy, dispute or deadlock arising
under this Agreement (collectively, a "Dispute") shall be settled by
arbitration administered under the rules of the American Arbitration
Association ("AAA") in New York, New York. Any arbitration and
award of the arbitrators, or a majority of them, shall be final and
the judgment upon the award rendered may be entered in any state or
federal court having jurisdiction. No punitive damages are to be
awarded.
17. All communications to us should be sent, postage
prepaid, to 00 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 Attention:
Xxxxxx Xxxxxxxx. Any notice to you shall be duly given if mailed,
telegraphed or telecopied to you at the address specified by you
below. Communications regarding placement of orders for shares
should be sent, postage prepaid, to First Data Investor Services
Group, Inc., X.X. Xxx 0000, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000.
18. This Agreement shall be binding upon both parties
hereto when signed by us and accepted by you in the space provided
below.
19. This Agreement and the terms and conditions set
forth herein shall be governed by, and construed in accordance with,
the laws of the State of New York.
CFBDS, INC.
By:
(Authorized Signature)
Accepted:
Firm Name:
Address:
Accepted By (signature):
Name (print):
Title: Date:
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