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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