SERVICES AGREEMENT
AGREEMENT made this ____ day of July, 1999 between Nomura Asset Management
U.S.A. Inc. ("Nomura"), a New York corporation, and Funds Distributor, Inc.
("FDI"), a Massachusetts corporation.
WHEREAS, Nomura serves as investment adviser to certain investment portfolios or
series of one or more open-end management investment companies registered under
the Investment Company Act of 1940, as amended (the " 1940 Act"), as listed on
Schedule A, as such Schedule may be amended from time to time (each a "Fund,"
collectively, the "Funds");
WHEREAS, the investment companies listed on Schedule A have entered into a
distribution agreement with FDI (the "Distribution Agreement") for the
distribution by FDI of certain classes of shares of common stock (the "Shares")
in the investment companies or in the Funds;
WHEREAS, certain employees of Nomura will be registered with the National
Association of Securities Dealers, Inc. ("NASD") as representatives of FDI (such
persons shall hereinafter be referred to as "Registered Representatives") and
will be wholesaling the Funds' shares;
WHEREAS, Nomura and FDI desire to enter into this Agreement pursuant to which
Nomura will perform certain services for FDI with respect to Shares of each Fund
and FDI will perform certain services for Nomura with respect to Shares of each
Fund; and
WIHEREAS, Nomura has agreed to enter into this Agreement as consideration for
FDI to enter into the Distribution Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements
herein contained, the parties agree as follows:
1. Services provided by FDI. FDI will assist Nomura in providing services with
respect to each Fund as may be reasonably requested by Nomura from time to time.
At the direction of Nomura, specific assignments may include any of the
following:
(a) legal review and principal sign-off of all Fund marketing materials
and other sales related materials to ensure compliance with the
advertising rules of the relevant regulatory authorities and file such
materials, and obtain such approvals for their use as may be required by
the Securities and Exchange Commission ("SEC") or the NASD. FDI will
forward all NASD comments on marketing materials to Nomura;
(b) the forwarding of sales related complaints concerning the Funds to
Nomura;
(c) coordination of registration of the Funds with the National Securities
Clearing Corporation ("NSCC") and filing of required Fund/SERV reports
with the NSCC;
(d) the provision of advice and counsel to the Funds with respect to
regulatory matters regarding legal review and principal sign off of Fund
marketing material and other sales related materials, broker/dealer and
distribution related issues, including
monitoring regulatory and legislative developments that may affect the
Funds and assisting the Funds in routine regulatory examinations or
investigations;
(e) assistance in the preparation of quarterly board materials with regard
to sales and other distribution related data reasonably requested by the
board;
(f) preparation of materials for the board supporting the annual renewal
of the Distribution Agreement;
(g) in connection with the foregoing activities, maintenance of an office
facility (which may be in the offices of Nomura or a corporate affiliate);
(h) in connection with the foregoing activities, the furnishing of
clerical services and internal executive and administrative services,
stationery and office supplies;
(i) pursuant to subsection 4(a)(1) below, the provision of officers to the
Funds including, but not limited to, President, Vice Presidents,
Secretary, Assistant Secretaries, Treasurer and Assistant Treasurers to
assume certain specified responsibilities, if applicable;
(j) coordinate the provision of all Blue Sky services with ClearSky, a
third-party provider, on behalf of Nomura. FDI will work with Nomura
personnel and ClearSky to ensure that the Funds are in full compliance
with any applicable state regulatory requirements; and
(k) FDI will keep and maintain all books and records relating to its
services in accordance with Rule 31a-1 under the 1940 Act.
2. Services Provided by Nomura. In furtherance of the responsibilities under
this Agreement Nomura will:
(a) cause the registration of the Shares under the Securities Act of 1933
(the "1933 Act") and the qualification for the Shares for sale in those
states that the Funds may designate;
(b) monitor or cause the Funds' transfer agent to monitor sales of the
Shares with respect to compliance with applicable state securities laws;
(c) provide consulting services with regard to such advertising, marketing
and promotional activities as Nomura believes reasonable, including but
not limited to (i) development of information, analyses and reports, (ii)
preparing, printing and distributing sales literature brochures, letters,
training materials and dealer guides and all similar materials and
advertisements as defined below, (iii) develop and implement audio and
video advertising programs, and (iv) arrange for the printing and
distribution of prospectuses and reports of the Funds to prospective
shareholders; provided that it is understood that FDI shall have no
responsibility for strategic planning or development with respect to such
matter. For purposes of this Agreement "sales literature" and
"advertisements" mean brochures, letters, electronic media, training
materials and
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dealers' guides, materials for oral presentations and all other similar
materials, whether transmitted directly to potential shareholders or
published in print or audio-visual media, but does not include generic
materials that do not mention the Funds or the Shares;
(d) submit all consulting related sales literature and advertisements
prepared pursuant to Section 2(c) above to FDI for legal/compliance review
in advance of use, and incorporate such changes as FDI may reasonably
request therein. FDI will file such materials and obtain such approvals
for their use as may be required by the SEC or NASD;
(e) to the extent applicable, cause the Funds' transfer agent to give
necessary information for the preparation of quarterly reports in a form
reasonably satisfactory to FDI regarding any Rule 12b-1 fees, front-end
sales loads, back-end sales loads and other data regarding sales and sales
loads as required by the 1940 Act or as requested by the board of
directors of the applicable investment companies listed on Schedule A;
(f) to the extent applicable, cause the Funds' transfer agent to provide
FDI with all necessary information so that FDI can calculate the maximum
sales charges payable by the Funds pursuant to the Conduct Rules of the
NASD and the actual sales charges paid by the Funds; and cause the Fund's
transfer agent to provide such information in a form satisfactory to FDI
no less often than monthly for every Fund and on a daily basis for any
Fund for which FDI determines that the remaining limit is approaching
zero;
(g) support or cause the Funds' transfer agent to support the servicing of
the shareholders; in connection therewith the Funds' transfer agent or
Nomura will provide one or more persons during normal business hours to
respond to telephone questions concerning the Funds;
(h) provide FDI with copies of, or access to, any documents that FDI may
reasonably request and notify FDI as soon as possible of any matter
materially affecting FDI's performance of services under this Agreement;
(i) (i) identify persons to enter into agreements with FDI for the
solicitation of Fund Shares, such as securities dealers, financial
institutions and other industry professionals such as investment advisers
and estate planning firms (collectively referred to herein as "Selling
Broker Dealers"); (ii) assist FDI in ascertaining that such persons meet
any requirements established for Selling Broker-Dealers by law, the Funds
or FDI; (iii) request that FDI enter into selling agreements with each
such Selling Broker-Dealer ("Selling Agreements") using a request form
(the "Selling Agent Request Form") substantially similar to the attached
Exhibit B signed by a duly authorized officer or employee of Nomura (who
shall be a person listed on Exhibit B until such time as Nomura amends or
supplements such list) and Nomura will assist in the performance of the
necessary due diligence to determine the qualification of the prospective
Selling Broker-Dealer pursuant to clause (ii) above; (iv) submit such
Selling Agent Request Form and all related due diligence materials that
Nomura may have to FDI; (v) assist FDI in coordinating the execution of
Selling Agreements between FDI and the Selling Broker-Dealers; and (vi)
use its best efforts to insure that no sales are executed or
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processed prior to obtaining an executed Selling Agreement from the
Selling Broker-Dealer making the sale;
(j) provide administrative support (e.g. telemarketing and fulfillment
services) with regard to, and use its best efforts to monitor the
performance of, the Selling Broker-Dealers in their solicitation and
execution of sales of the Shares and all activities related thereto,
including compliance with applicable law, the Selling Agreements, and the
multi-class procedures;
(k) use reasonable efforts to monitor the Selling Broker-Dealers in their
resolution of as of trades with respect to Shares of the Funds in order to
mitigate the risk of loss to FDI and the Funds from such as of trades;
(l) report to FDI, to the extent that Nomura is aware, any and all actions
or inactions by any Selling Broker-Dealer that (i) fail to comply with the
terms of any Selling Agreements, (ii) violate any applicable laws of any
governmental authorities, including the NASD's Conduct Rules, or (iii)
violate any other agreements or procedures with which such Selling
Broker-Dealer is required to comply; and
(m) (i) submit the form of confirmation statement to be used for sale of
the Shares to FDI for its approval and provide or cause to be provided to
customers of the Selling Broker-Dealers ("Customers") and to the Selling
Broker-Dealers such confirmations of all transactions in the Shares as may
be required by the 1934 Act and the Selling Agreements, and (ii) use
reasonable efforts to monitor the Fund's transfer agent in its preparation
and mailing of such confirmations regarding the sales of the Shares and
report to FDI any deficiencies of which Nomura is aware in the transfer
agent's performance of such activities.
3. Delivery of Documents. In order to assist FDI in the performance of its
duties, Nomura has caused each Fund to furnish FDI with, or provide FDI with
access to, each of the following:
(a) each Fund's most recent Post-Effective Amendment to its Registration
Statement on Form N-IA (the "Registration Statement") under the 1933 Act
and under the 1940 Act as filed with the SEC relating to each Fund's
shares;
(b) each Fund's most recent Prospectus(es);
(c) each Fund's most recent Statement(s) of Additional Information;
(d) each Fund's most recent annual and semi-annual financial statements;
(e) each Fund's most recent filing pursuant to Rule 24f-2 under the 1940
Act;
(f) each Fund's most recent SEC examination letter to the extent that such
information contained in the SEC letter: (i) materially affects FDI's
performance under this Agreement; or (ii) the issues identified in the
letter may result in FDI incurring any loss, claim, damage or liability or
action in respect thereof; and
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(g) the Fund's charter documents and by-laws.
Nomura will furnish FDI from time to time with copies of, or access to,
all amendments of or supplements to the foregoing. Furthermore, Nomura will
provide FDI with copies of, or access to, any other documents that FDI may
reasonably request and will notify FDI as soon as possible of any matter
materially affecting FDI's performance of its services under this Agreement.
4. Compensation; Reimbursement of Expenses.
(a) Nomura shall pay FDI for the services provided under this Agreement an
aggregate annual fee in the first year of $105,000, for the initial one
Fund, payable in equal monthly installments on the first business day of
each month. Such annual fee shall be increased to an annual fee of
$114,000 in the second year of the Agreement. Such annual fee may be
changed by mutual written agreement should the number of Funds and/or the
corresponding services provided by FDI under this Agreement change.
(b) The fee as stated above is subject to the following conditions: (i)
that FDI shall only sponsor 10 or fewer Registered Representatives
(additional sponsorships shall be subject to a $2,500 annual fee per
Registered Representative sponsored by FDI in excess of the 10 Registered
Representatives); and (ii) that advertising legal review shall be for the
lesser of 30 marketing pieces or 150 pages per calendar year (advertising
legal review in excess of 30 pieces or 150 pages for the relevant annual
contract period (the "Annual Period") shall be subject to a flat fee of
$10 per page thereafter for such piece).
(c) All fees to FDI for the services described in this Agreement are
exclusive of out-of-pocket costs. Nomura agrees to reimburse FDI for FDI's
reasonable out-of-pocket expenses incurred in providing the services
hereunder including but not limited to NASD/state securities registration
related expenses, including expenses related to sponsorship and
maintenance of Registered Representative licenses, the licenses of any and
all exclusively dedicated teleservicing representatives and NASD filing
fees for sales literature. Expenses incurred out of the ordinary course in
providing the services hereunder are subject to prior approval by Nomura.
(d) The amount of each monthly payment described in this Section 4 shall
be reduced by the amount, if any, paid to FDI by any Fund pursuant to that
Fund's Rule 12b-1 plan (a "Plan"), if any, as in effect from time to time,
to the extent that FDI has not used such amount paid pursuant to the Plan
to pay for sales, marketing or other activities or expenses in accordance
with the Plan ("Distribution Activities"), whether such payments were made
to unaffiliated third parties or retained by FDI in connection with the
Distribution Activities in which FDI has engaged on the Fund's behalf at
the request of Nomura. FDI shall have no obligation to make any payments
pursuant to a Plan until FDI has received monies therefor from the Funds
or Nomura.
(e) If this Agreement becomes effective subsequent to the first day of a
month or shall terminate before the last day of a month, compensation for
that part of the month
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this Agreement is in effect shall be prorated in a manner consistent with
the calculation of the fees as set forth above.
5. Effective Date. This Agreement shall become effective with respect to a Fund
as of the date first written above (or, if a particular Fund is not in existence
on that date, on the date FDI becomes the distributor of the shares of such
Fund; Schedule A to this Agreement shall be deemed amended to include such Fund
and any classes of Shares of such Fund from and after such date).
6. Term.
(a) This Agreement shall continue for an initial two-year period and shall
continue thereafter for successive one-year terms unless terminated
pursuant to the provision of sub-section (b) of this Section 6.
(b) This Agreement shall automatically terminate as it relates to any Fund
upon termination of the Distribution Agreement between such Fund and FDI
or this Agreement may be terminated with respect to any Fund at any time
without payment of any penalty, upon 60 days' written notice, by vote of a
majority of the Board of Directors of a Fund. In any event, the provisions
of Sections 7 and 8 shall survive termination of this Agreement and
continue in full force and effect. Compensation due FDI and unpaid by
Nomura upon such termination shall be immediately due and payable upon and
notwithstanding such termination.
7. Standard of Care and Indemnification.
(a) Nomura shall indemnify and hold FDI, its officers, directors,
employees, shareholders, affiliated persons (as such term is defined in
the 0000 Xxx) and agents (collectively the "FDI Indemnified Parties" and
each individually an "FDI Indemnified Party") harmless from and against
any and all losses, claims, damages, expenses and liabilities, joint or
several (including, but not limited to, any reasonable investigation,
legal and other expenses incurred in connection with, and any amount paid
in settlement of, any action, suit, proceeding or claim), which such FDI
Indemnified Party or FDI Indemnified Parties may be or become subject to
or liable for by reason of or in connection with this Agreement, FDI's
provision of services pursuant to this Agreement, or any other matter,
event or transaction in any way relating to or connected with this
Agreement or the subject matter hereof; provided, however, that an FDI
Indemnified Party shall not be entitled to indemnification hereunder to
the extent, but only to the extent, that such loss, claim, damage, expense
or liability was caused directly and proximately by action or omission of
FDI and that such action or omission involved bad faith, gross negligence
or intentional misconduct by FDI.
(b) FDI shall indemnify and hold Nomura, its officers, directors,
employees, shareholders, affiliated persons (as such term is defined in
0000 Xxx) and agents (collectively the "Nomura Indemnified Parties" and
each individually a "Nomura Indemnified Party") harmless from and against
any and all losses, claims, damages, expenses and liabilities, joint or
several (including, but not limited to, any reasonable
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investigation, legal and other expenses incurred in connection with, and
any amount paid in settlement of, any action, suit, proceeding or claim),
which such Nomura Indemnified Party or Nomura Indemnified Parties may be
or become subject to or incur by reason of this Agreement or under the
1933 Act, the 1934 Act, common law or otherwise, but only to the extent
that such loss, claim, damage, expense or liability incurred by a Nomura
Indemnified Party shall arise out of or be based on (i) any breach of any
covenant or obligation of FDI contained in this Agreement, (ii) any
failure by FDI to comply with any laws applicable with its performance of
services under this Agreement or (iii) a final determination by a court of
competent jurisdiction that such loss, claim, damage, expense or liability
was caused directly or proximately by an action or omission of FDI
involving bad faith, gross negligence or intentional misconduct by FDI;
provided that a Nomura Indemnified Party shall not be entitled to
indemnification hereunder to the extent, but only to the extent, that such
loss, claim, damage, expense or liability was caused directly and
proximately by action or omission of Nomura and that such action or
omission involved bad faith, gross negligence or intentional misconduct by
Nomura.
(c) In order to provide for just and equitable contribution in
circumstances in which the terms of Section 7(a) or 7(b) are applicable,
but for any reason the indemnification provided for therein is held to be
unavailable, Nomura and FDI shall contribute to the aggregate losses,
claims, damages, expenses and liabilities (including, but not limited to,
any reasonable investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit,
proceeding or claim) which any of the FDI Indemnified Parties or Nomura
Indemnified Parties (as defined above), respectively, may be subject to or
liable for in proportion to the relative fault of Nomura, on the one hand,
and FDI, on the other hand; provided, however, that in determining
relative fault, there shall be considered the relative benefits received
by each party from the transactions giving rise to the loss, claim,
damage, expense or liability, the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances; provided, further, that in no event shall FDI be required
to contribute in the aggregate hereunder any amount in excess of the
aggregate compensation received by it for its services during the
immediately preceding 12-month period. Neither Nomura nor FDI shall have
any other right of contribution in connection herewith.
(d) The applicable indemnified party, promptly and in any event within ten
(10) days after receipt of notice of commencement of any action, suit,
proceeding or claim in respect of which a claim for indemnification may be
made by it, shall notify the applicable indemnifying party in writing of
the commencement of such action, suit, proceeding or claim, enclosing a
copy of all papers served. However, the omission to so notify the
applicable indemnifying party of any such action, suit, proceeding or
claim shall not relieve such indemnifying party from any liability that it
may have under Section 7(a) or (b), as applicable, of this Agreement
except to the extent that the ability of such indemnifying party to defend
such action, suit, proceeding or claim is materially adversely affected.
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(e) In case any such action, suit, proceeding or claim for which indemnity
may be payable hereunder shall be brought against an FDI Indemnified Party
or Nomura Indemnified Party, as applicable (an "Indemnified Party"), and
such Indemnified Party shall notify the applicable indemnifying party of
the commencement thereof, such indemnifying party shall be entitled to
participate in, and to the extent that such indemnifying party shall wish
to assume the defense thereof, with counsel reasonably satisfactory to
such Indemnified Party, subject to the further provisions of this
paragraph. After written notice from such indemnifying party to such
Indemnified Party of its election to so assume the defense thereof, such
indemnifying party shall not be liable to the applicable Indemnified
Parties for any additional attorneys' fees or other expenses of
litigation, other than reasonable costs of investigation subsequently
incurred by such Indemnified Parties in connection with the defense
thereof, unless (i) the employment of counsel by such Indemnified Parties
has been authorized in writing by such indemnifying party, such
authorization not to be unreasonably withheld or delayed; (ii) such
Indemnified Parties shall have obtained a written opinion of counsel
reasonably acceptable to such indemnifying party that there exists a
conflict of interest between such Indemnified Parties and the relevant
party in the conduct of the defense of such action or that there are one
or more defenses available to such Indemnified Parties that are
unavailable to such indemnifying party (in which case such indemnifying
party shall not have the right to direct the defense of such action on
behalf of such Indemnified Parties); or (iii) such indemnifying party
shall not in fact have employed counsel reasonably satisfactory to such
Indemnified Parties to assume the defense of such action, in each of which
case the reasonable fees and expenses of counsel utilized by such
Indemnified Parties shall be at the expense of such indemnifying party, it
being understood, however, that such indemnifying party shall not, in
connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for an
Indemnified Party, which firm shall be designated in writing by the
Indemnified Party. Notwithstanding the foregoing, under the circumstances
described in clause (ii) above, the applicable Indemnified Parties shall
be entitled to retain an additional law firm, in any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
provided such Indemnified Parties have obtained a written opinion of
counsel reasonably acceptable to the indemnifying party that a conflict of
interest exists that would preclude the use of a single law firm, in which
case the indemnifying party shall be liable for the reasonable fees and
expenses of counsel designated by the Indemnified Parties writing. All
such fees and expenses which are at the expense of an indemnifying party
hereunder shall be promptly paid by such indemnifying party.
(f) Nothing in this Agreement shall be construed as limiting an
Indemnified Party's rights to employ counsel at its own expense or to
obtain indemnification for amounts reasonably paid to adverse claimants in
satisfaction of any judgments or in settlement of any actions, suit,
proceeding or claims, except that no party hereto shall be liable for any
settlement of any action, suit, proceeding or claim
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effected without its written consent. None of the parties hereto shall
settle or compromise any action, suit, proceeding or claim if such
settlement or compromise provides for an admission of liability on the
part of an Indemnified Party without such Indemnified Party's written
consent.
8. Confidentiality. During the term of this Agreement, FDI and Nomura may have
access to confidential information relating to such matters as either party's
business, trade secrets, systems, procedures, manuals, products, contracts,
personnel, and clients. As used in this Agreement, "Confidential Information"
means information belonging to FDI or Nomura which is of value to FDI or Nomura
and the disclosure of which could result in a competitive or other disadvantage
to either party. Confidential Information includes, without limitation,
financial information, proposal and presentations, reports, forecasts;
inventions, improvements and other intellectual property; trade secrets;
know-how; designs, processes or formulae; software; market or sales information
or plans; customer lists; and business plans, prospects and opportunities (such
as possible acquisitions or dispositions of businesses or facilities).
Confidential Information includes information developed by either party in the
course of engaging in the activities provided for in this Agreement, unless: (i)
the information is or becomes publicly known through lawful means; (ii) at the
time of receipt the information was already actually known to the other party;
or (iii) the information is disclosed to the other party without a confidential
restriction by a third party who rightfully possesses the information and did
not obtain it, either directly or indirectly, from FDI or Nomura, as the case
may be, or any of their respective principals, employees, affiliated persons, or
affiliated entities. The parties understand and agree that all Confidential
Information shall be kept confidential by the other both during and after the
term of this Agreement. The parties further agree that they will not, without
the prior written approval by the other party, disclose such Confidential
Information, or use such Confidential Information in any way, either during the
term of this Agreement or at any time thereafter, except as required in the
course of this Agreement and as approved by the other party or as required by
law.
9. Record Retention and Confidentiality. FDI shall keep and maintain on behalf
of the Funds all books and records which the Funds and FDI are, or may be,
required to keep and maintain in connection with the services to be provided
hereunder pursuant to any applicable statutes, rules and regulations, including
without limitation Rules 31a- 1 and 31a-2 under the 1940 Act. FDI further agrees
that all such books and records shall be the property of the Funds and to make
such books and records available for inspection by or upon the request of the
Funds, by Nomura, or by the SEC at reasonable times and otherwise to keep
confidential all books and records and other information relative to the Funds
and its shareholders; except when requested to divulge such information by
duly-constituted authorities or court process.
10. Rights of Ownership. All computer programs and procedures developed to
perform the services to be provided by FDI under this Agreement are the property
of FDI. All records and other data except such computer programs and procedures
are the exclusive property of the Funds and all such other records and data will
be furnished to Nomura and/or the Funds in appropriate form as soon as
practicable after termination of this Agreement for any reason.
11. Return of Records. FDI may at its option at any time, and shall promptly
upon the demand of Nomura and/or the Funds, turn over to Nomura and/or the Funds
and cease to retain FDI's files, records and documents created and maintained by
FDI pursuant to this Agreement which are no longer needed by FDI in the
performance of its services or for its legal protection.
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If not so turned over to Nomura and/or the Funds, such documents and records
will be retained by FDI for six years from the year of creation. At the end of
such six-year period, such records and documents will be turned over to Nomura
and/or the applicable Fund unless the applicable Fund authorizes in writing the
destruction of such records and documents.
12. Representations of Nomura. Nomura represents and warrants that this
Agreement has been duly authorized by Nomura and, when executed and delivered by
Nomura, will constitute a legal, valid and binding obligation of Nomura,
enforceable against Nomura in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
13. Representations of FDI. (a) FDI represents and warrants that this Agreement
has been duly authorized by FDI and, when executed and delivered by FDI, will
constitute a legal, valid and binding obligation of FDI, enforceable against FDI
in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
(b) FDI further represents and warrants that it is a member of the NASD and
agrees to abide by all of the rules and regulations of the NASD, including,
without limitation, its Conduct Rules. FDI agrees to comply with all applicable
federal and state laws, rules and regulations. FDI agrees to notify Nomura
immediately in the event of its expulsion or suspension by the NASD. Expulsion
of FDI by the NASD will automatically terminate this Agreement immediately
without notice. Suspension of FDI by the NASD will terminate this Agreement
effective immediately upon written notice of termination to FDI from Nomura.
14. Notices. Any notice provided hereunder shall be sufficiently given when sent
by registered or certified mail to Nomura at the following address: Nomura Asset
Management U.S.A. Inc., 000 Xxxxxx Xxxx, Xxx Xxxx, XX 00000-0000, Attention:
President; and to FDI at the following address: 00 Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, XX 00000, Attention: President with a copy to General Counsel, or at
such other address as either party may from time to time specify in writing to
the other party pursuant to this Section.
15. Headings. Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
16. Assignment. This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party.
17. Governing Law. This Agreement shall be governed by and provisions shall be
construed in accordance with the laws of The Commonwealth of Massachusetts.
18. Use of Nomura Name. Nomura consents to FDI's non-exclusive use of the
"Nomura" name and "Nomura Pacific Basin Fund" name solely in connection with
FDI's website, trade advertisements, client lists and mutual fund industry
conferences and displays. FDI agrees and acknowledges that Nomura and Nomura
Pacific Basin Fund, Inc. and/or their affiliates own all right, title, and
interest in the name "Nomura" and "Nomura Pacific Basin Fund" and will only use
the "Nomura" name as stated herein.
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19. Services Not Exclusive. The Fund and Nomura hereby acknowledge that the
services provided hereunder by FDI are not exclusive. Nothing herein shall be
deemed to limit or restrict FDI's right, or the right of any of FDI's officers,
directors or employees to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of a
similar or dissimilar nature, or to render services of any kind to any other
corporation, fund, firm, individual or association, as well as provide
distribution services to any other mutual fund, including any fund which may
directly compete with or be similar to Nomura.
20. Severability. If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if this Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
21. Counterparts. This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
NOMURA ASSET MANAGEMENT U.S.A. INC.
By:
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Name: Xxxxx Xxxxxxxx
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Title: President
-----------------------------
FUNDS DISTRIBUTOR, INC.
By:
--------------------------------
Name:
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Title:
-----------------------------
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Dated: July __, 1999
SCHEDULE A
TO THE SERVICES AGREEMENT
BETWEEN
NOMURA ASSET MANAGEMENT U.S.A. INC.
AND
FUNDS DISTRIBUTOR, INC.
FUNDS
Nomura Pacific Basin Fund, Inc.
NOMURA ASSET MANAGEMENT U.S.A. INC.
By:
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Title: President
-----------------------------
FUNDS DISTRIBUTOR, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
12
Exhibit B
SELLING AGREEMENT REQUEST FORM
To: Xxxxxx Xxxx Grebber
Fax Number: (000) 000-0000
Telephone: (000) 000-0000
E-Mail: xxxxxxxx@xxxxxx.xxx
From:_________________________________________
Telephone Number:_______________________
Fax Number:_____________________________
Date: _________________________________________
Proposed Selling Agent name and address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Telephone:____________________________________
Please indicate the desired method of delivery:
Mail:_______
FEDEX:_______
Facsimile - #( )_________
________________________________ ______________________________________
Authorized Nomura Representative Authorized FDI Representative
Xxxxxx Xxxx Grebber
(Attached hereto as Attachment 1 is a list of Authorized
Nomura Representatives.)
13
Attachment 1
AUTHORIZED NOMURA REPRESENTATIVES
The following individuals are authorized to request the issuance of sales
agreements to clients and/or potential clients of Nomura:
14
Exhibit C
Selling Agents That Have Entered Into Selling
Agreements With Funds Distributor, Inc.
15
