Exhibit 22(m)(10)
DISTRIBUTION AND SHAREHOLDER SERVICE AGREEMENT
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THIS AGREEMENT made as of the 2nd day of January, 1997, as amended and
restated the 18th of November, 2003, between The Oberweis Funds, a Massachusetts
business trust (the "Fund"), and Oberweis Securities, Inc., an Illinois
corporation ("OSI");
WITNESSETH:
WHEREAS, the Fund is an open-end, diversified management investment
company registered under the Investment Company Act of 1940 (the "1940 Act"),
the units of beneficial interest ("Units") of which are registered under the
Securities Act of 1933, as amended; and
WHEREAS, the Fund is authorized to issue Units in separate series with
each such series representing the interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Fund currently issues Units in three portfolios
("Shares"), the Emerging Growth Portfolio, the Micro-Cap Portfolio and the
Mid-Cap Portfolio (collectively referred to, together with such other series as
may hereafter be designated by the Board of Trustees and adopt the Agreement, as
the "Portfolios" and individually referred to as a "Portfolio"); and
WHEREAS, the Fund has adopted a plan ("Plan") pursuant to Rule 12b-1 of
the 1940 Act in order to provide for the payment of certain distribution costs
by the Fund; and
WHEREAS, the Fund, in accordance with the Plan, desires to retain OSI
as the principal distributor for Shares of the Fund and the primary shareholder
service agent for the Fund and OSI is willing to act in such capacities;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
DISTRIBUTION
1. Appointment of Distributor. The Fund hereby appoints OSI as the
principal distributor of the Shares of the Fund upon the terms and for the
periods set forth in this Agreement. OSI hereby accepts such appointment and
agrees to render the services and perform the duties of distributor as set forth
herein.
2. Duties of Distributor. The following provisions shall apply to the
obligations of OSI as distributor under this Agreement:
(a) The Fund agrees to sell Shares through OSI, as agent, from time
to time during the term of this Agreement upon the terms and at the current
offering price described in the Fund's prospectus. Such sales may, however, be
suspended whenever in the judgment of the Fund it is in the best interests to do
so.
(b) OSI will hold itself available to receive or will arrange for
the receipt of orders for the purchase of Shares and will (and shall have the
authority to) receive and accept or
reject or arrange for the receipt and acceptance or rejection of such orders on
behalf of the Fund in accordance with the provisions of the Fund's prospectus.
(c) OSI shall not be obligated to sell any certain number of Shares.
(d) In performing its duties hereunder, OSI shall act in conformity
with the Fund's Agreement and Declaration of Trust, By-Laws, Registration
Statement and prospectus, and with the instructions and directions of the
officers and Trustees of the Fund, and shall comply with and conform to the
requirements of the 1940 Act, the Securities Act of 1933, the Securities
Exchange Act of 1934, and all other applicable federal and state laws,
regulations and rulings and Rules of the National Association of Securities
Dealers, Inc.
(e) OSI shall be free to render to others services different from or
similar to those rendered to the Fund hereunder so long as the services
hereunder are not impaired thereby. It further is understood and agreed that by
separate agreement with the Fund, OSI may also serve the Fund in other
capacities; that officers or employees of OSI may serve as officers or Trustees
of the Fund to the extent permitted by law; and OSI or its officers or employees
are not prohibited from engaging in any other business activity or from
rendering services to any other entity, or from serving as officers, directors
or trustees of any other organizations, including investment companies.
3. Unreimbursable Distribution Costs. During the term of this
Agreement, OSI will pay from the fees provided under paragraph 1 of Article IV
of this Agreement without further reimbursement by the Fund the following costs
related to the distribution of the Fund's Shares:
(a) Costs of all sales presentations, mailing, advertising and any
other distribution efforts which may be undertaken by OSI in its sole discretion
with respect to the Shares. Such costs shall not be deemed to include the costs
of preparing and setting in type prospectuses, statement of additional
information, proxy materials, reports and notices or the costs of printing and
distributing the same to existing shareholders and regulatory authorities.
(b) Compensation of any personnel of OSI for activities in
connection with the distribution or sale of the Shares.
4. Representations. Neither OSI nor any other person is authorized by
the Fund to give any information or to make any representation relative to the
Shares other than those contained in the Fund's Registration Statement,
prospectus or statement of additional information filed with the Securities and
Exchange Commission as either may be amended from time to time, or in any
supplemental information to said prospectus or statement of additional
information approved by the Fund. OSI agrees that any other information or
representations other than those specified above which it or any dealer or other
person who distributes Shares through OSI may make in connection with the offer
or sale of Shares shall be made entirely without liability on the part of the
Fund. OSI agrees that in offering or selling Shares as agent of the Fund, it
will submit to the Fund's legal counsel or other representative, as may be
designated by the Fund's Board of Trustees, copies of all sales literature and
other similar materials before using the same, and will not use such sales
literature if disapproved by the Fund.
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ARTICLE II
SHAREHOLDER SERVICES
1. Appointment of Shareholder Service Agent. The Fund hereby appoints
OSI as the primary shareholder service agent for the Fund upon the terms and for
the periods set forth in this Agreement. OSI hereby accepts such appointment and
agrees to render the services and perform the duties of shareholder service
agent as set forth herein.
2. Services of Shareholder Service Agent. The services to be performed
by OSI as shareholder service agent are set forth in Exhibit A hereto which may
at any time or from time to time be modified or amended by agreement of the
parties in the form of an amended or supplemental schedule initialed by their
authorized representatives. OSI also agrees to perform such additional services
within its capacity of shareholder service agent as may, from time to time, be
requested by the Fund, provided that such additional services are the subject of
a supplement to Schedule A hereto.
3. Costs and Expenses of Performance. The Fund will reimburse OSI for
OSI's approximate out-of-pocket cost, if any, of providing certain of the
services contemplated by this Agreement as set forth in Exhibit A, including the
costs of postage, data entry, modification and printout, stationery, tax forms,
and all other external forms or printed material which may be required for
performance by OSI of the services contemplated by this Agreement ("Reimbursable
Expenses"). OSI shall submit to the Fund a monthly report setting forth in
reasonable detail and Reimbursable Expenses of OSI paid or incurred during such
month. The Fund agrees to cause all such reports to be reviewed promptly (in no
event less frequently than quarterly) after receipt. Immediately thereafter, OSI
will be notified of any discernable errors, discrepancies or omissions.
4. Record Retention and Confidentiality. OSI shall keep and maintain on
behalf of the Fund all records which are required to be maintained pursuant to
Rule 12b-1 and Rule 31a-1 under the 1940 Act that pertain to the activities
under this Agreement and to preserve such records for the time periods
prescribed therein; provided, however, OSI shall not be required to maintain
those records which would duplicate records required to be maintained pursuant
to any other agreement entered into by the Fund. In addition, OSI will maintain
all records it is required to maintain pursuant to any applicable statutes,
rules and regulations relating to the maintenance of records in connection with
the services to be performed hereunder. Notwithstanding the foregoing, OSI shall
maintain, for a period of at least six (6) years, all records and documents
which may be needed or required to support or document the entries made by OSI
in its performance of services hereunder. OSI agrees that all records required
to be maintained under this paragraph shall be the property of the Fund, shall
be maintained in such fashion as to preserve the confidentiality thereof, and to
comply with applicable rules and regulations of federal and/or state securities
laws, and shall, in whole or any specified part, be available for inspection by
or surrender to the Fund at any reasonable time after receipt of an appropriate
written request.
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ARTICLE III
APPOINTMENT OF FIRMS
1. Appointment of Firms. It is understood and agreed that OSI may in
its discretion appoint broker-dealer and other firms to assist OSI in providing
distribution services to the Fund, including literature distribution,
advertising and promotion. OSI may also appoint broker-dealer and other firms
(including depository institutions such as commercial banks and savings and loan
associations) to provide administrative services for their clients as
shareholders of the Fund. The agreements between OSI and such other firms are
collectively referred to as "Service Agreements" and shall be substantially in
the form of the agreement attached hereto as Exhibit B or Exhibit C or in a form
otherwise approved by the Board of Trustees of the Fund. Such firms shall not be
representatives or agents of the Fund and shall have no direct contractual
relationship with the Fund.
2. Services of Firms. The aforementioned broker-dealer and other firms
(collectively "Firms") shall provide, among other things, office space and
equipment, telephone facilities, personnel and assistance to OSI in servicing
accounts of such Firm's clients who own Fund Shares. Such services and
assistance may include, but not be limited to, establishment and maintenance of
shareholder accounts and records; processing purchase and redemption
transactions; automatic investment in Fund's Shares of client account cash
balances; answering routine client inquiries regarding the Fund; assistance to
clients in changing dividend options, account designations and addresses; and
such other services as the Fund may reasonably request.
ARTICLE IV
FEES, EXPENSES AND REPORTS
1. Annual Fee. For all the services to be provided by OSI hereunder,
each Portfolio shall pay OSI compensation at the annual rate of .25 of 1% of its
average daily net assets, computed and accrued daily and payable monthly. This
compensation shall be in addition to certain expense reimbursements provided for
under Article II, paragraph 3 hereof.
2. Fees to Firms. From the foregoing annual fee, OSI may pay
compensation to the Firms, if any, who shall be providing services under the
Service Agreements.
3. Expenses. The Fund shall assume and pay all charges and expenses of
its operations not specifically assumed or otherwise to be provided by OSI under
this Agreement.
4. Reports. OSI shall prepare reports for the Trustees of the Fund on a
quarterly basis showing amounts expended by OSI under this Agreement and the
purposes for such expenditures, including amounts paid to the various Firms, if
any, and such other information as from time to time shall be reasonably
requested by the Trustees of the Fund.
ARTICLE V
GENERAL
1. Limitation of Liability. Neither OSI nor any of its agents or
employees shall be liable for any error of judgment or mistake of law or for any
loss suffered by the Fund in connection with the matters to which this Agreement
relates, except liability to the Fund or its
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Shareholders to which OSI would otherwise be subject by reason of OSI's willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement. Any person, even though also an officer, employee or agent of OSI who
may be or become an officer, Trustee, employee or agent of the Fund shall be
deemed, when rendering services to the Fund or to any series, or acting on any
business of the Fund or of any series (other than services or business in
connection with OSI's duties as hereunder) to be rendering such services to or
acting solely for the Fund or series and not as an officer, director, employee
or agent or one under the control or direction of OSI even though paid by OSI.
2. Indemnification.
(a) Subject to the conditions set forth below, the Fund agrees to
indemnify and hold harmless OSI, its officers and employees, and each person, if
any, who controls OSI within the meaning of Section 15 of the Securities Act of
1933 and Section 20 of the Securities Exchange Act of 1934 against any and all
loss, liability, claim, damage and expense whatsoever, jointly and severally, or
otherwise (including, but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever), arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Fund's Registration Statement, the prospectus, or statement of
additional information or any amendment or supplement thereof, or any
advertisement or sales literature authorized by the Fund, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, unless such statement
or omission was made in reliance upon and in conformity with written information
with respect to OSI furnished to the Fund by or on behalf of OSI expressly for
use in the Fund's Registration Statement, prospectus, statement of additional
information or any amendment or supplement thereof or any advertisement or sales
literature. If any action is brought against OSI or any controlling person
thereof in respect of which indemnity may be sought against the Fund pursuant to
the foregoing, OSI shall promptly notify the Fund in writing of the institution
of such action and the Fund shall assume the defense of such action, including
the employment of counsel selected by the Fund and payment of expenses. OSI, or
any such controlling person thereof, shall have the right to employ separate
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of OSI or such controlling person unless the employment of such
counsel shall have been authorized in writing by the Fund in connection with the
defense of such action or the Fund shall not have employed counsel to have
charge of the defense of such action, in which event such fees and expenses
shall be borne by the Fund. Anything in this subparagraph to the contrary
notwithstanding, the Fund shall not be liable for any settlement of any such
claim or action effected without its written consent. The Fund agrees promptly
to notify OSI of the commencement of any litigation or proceedings against the
Fund or any of its officers or directors or controlling persons in connection
with the issue and sale of shares or in connection with the Fund's Registration
Statement, prospectus or statement of additional information, or any
advertisement or sales literature.
(b) OSI agrees to indemnify and hold harmless the Fund, each of its
Trustees, each of its officers and each other person, if any, who controls the
Fund within the meaning of Section 15 of the Securities Act of 1933, with
respect to statements or omissions, if any, made in the Fund's Registration
Statement, prospectus or statement of additional information or any
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amendment or supplement thereof or any advertisement or sales literature in
reliance upon and in conformity with information with respect to OSI furnished
in writing to the Fund by or on behalf of OSI expressly for use in the Fund's
Registration Statement, prospectus or statement of additional information or any
amendment or supplement thereof or any advertisement or sales literature. In
case any action shall be brought against the Fund or any other person so
indemnified based on the Fund's Registration Statement, prospectus or statement
of additional information or any amendment or supplement thereof and in respect
of which indemnity may be sought against OSI, OSI shall have the rights and
duties given to the Fund and the Fund and each other person so indemnified shall
have the rights and duties given to OSI by the provisions of subparagraph (a)
above.
(c) Nothing herein contained shall be deemed to protect any person
against liability to the Fund or its shareholders to which such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of the duties of such person or by reason of the
reckless disregard by such person of the obligations and duties of such person
under this Agreement.
3. Anti-Money Laundering Policies and Procedures. Each party represents and
warrants to the other that it is a financial institution subject to Title III of
the USA Patriot Act. Each party represents that it (a) has established policies
and procedures designed to prevent and detect money laundering, as required by
the USA Patriot Act and the rules and regulations adopted thereunder; (b)
identifies and will continue to identify shareholders and/or customers for whom
it acts and the sources of funds for such persons for whom it acts, and
maintains all documentation necessary to identify those persons and the sources
of their funds; and (c) does not believe, and has no reason to believe, that any
such person for whom it acts are engaged in money laundering activities or are
associated with any terrorist or other individuals, entities or organizations
sanctioned by the United States. Each party agrees to provide federal
authorities with such information and records as they may request relating to
anti-money laundering, and each consents to the inspection of its records and
review of its anti-money laundering program by federal authorities.
4. Privacy Regulations. Each party acknowledges and agrees that it is
subject to the privacy regulations promulgated under Title V of the Xxxxx-Xxxxx-
Xxxxxx Act with respect to privacy, use and protection of nonpublic personal
information of customers ("Customer Information"). Each party agrees that with
respect to this Agreement and the services to be provided hereunder that (a) it
will not disclose or use any Customer Information except to the extent necessary
to carry out its obligations under this Agreement and for no other purpose; (b)
it shall not disclose Customer Information to any third party, including without
limitation, its third party service providers except to the extent necessary to
carry out its obligations hereunder and then only with a written agreement with
such third party service provider that likewise prohibits the third party
service provider from using or disclosing Customer Information except to carry
out the obligation to service the customer's transactions; (c) it shall maintain
and require third party service providers to maintain effective security
measures to protect Customer Information from unauthorized disclosure or use;
(d) it shall provide the other party with information regarding its security
measures upon the other party's reasonable request and promptly provide the
other party with information regarding any failure of such security measures or
any security breach related to Customer Information. For purposes of this
Agreement, Customer Information
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includes but is not limited to: an individual's name, address, e-mail address,
telephone number and/or social security number, the fact that an individual has
a relationship with any other party or an individual's financial information.
5. Duration and Termination. This Agreement shall continue, unless sooner
terminated as provided herein, until one year from the date hereof, and shall
thereafter continue in force from year to year so long as each such continuance
is approved at least annually by the vote of the Board of Trustees of the Fund,
including a majority of the Trustees of the Fund who are not interested persons
(as defined in the 0000 Xxx) of the Fund and who have no direct or indirect
financial interest in the operation of the Plan or any agreement related
thereto. This Agreement may be terminated by the Fund at any time, without the
payment of any penalty, upon the vote of a majority of the Trustees of the Fund
who are not interested persons (as defined in the 0000 Xxx) of the Fund and who
have no direct or indirect financial interest in the operation of the Plan or
any agreement related thereto or by the vote of a majority of the outstanding
voting securities of the Fund (as defined in the 0000 Xxx) on 60 days written
notice to OSI. This Agreement may be terminated by OSI at any time, without the
payment of any penalty, on 60 days written notice to the Fund.
6. Assignment. This Agreement will automatically and immediately terminate
in the event of its "assignment" (as defined in Section 2(a)(4) of the 1940
Act). OSI shall notify the Fund in writing sufficiently in advance of any
proposed change of control, as defined in Section 2(a)(9) of the 1940 Act, as
will enable the Fund to consider whether an "assignment" will occur, and to take
the steps necessary to enter into a new contract with OSI.
7. Authority of OSI. OSI hereby represents and warrants to the Fund that no
consent or approval of, or other action by, any United States federal or state
regulatory authority or other person or entity, which has not been obtained or
taken, is required for the execution, delivery or performance by OSI of this
Agreement.
8. Amendment of Agreement. This Agreement may be amended by mutual consent
of the parties hereto, but the consent of the Fund must be by the vote of the
Board of Trustees of the Fund, including a majority of the Trustees who are not
interested persons (as defined in the 0000 Xxx) of the Fund and who have no
direct or indirect financial interest in the operation of the Plan or any
agreement related thereto.
9. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be construed in accordance with
applicable federal law and (except as to paragraph 8 of this Article below which
shall be construed in accordance with the laws of The Commonwealth of
Massachusetts) the laws of the State of Illinois, and shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, subject to paragraph 3 of this Article.
10. Limitation of Shareholder and Trustee Liability. All parties hereto are
expressly put on notice of The Oberweis Funds Agreement and Declaration of Trust
dated July 7, 1986 and
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all amendments thereto, all of which are on file with the Secretary of the
Commonwealth of Massachusetts, and the limitation of shareholder and trustee
liability contained therein. This Agreement has been executed by and on behalf
of the Fund by its representative as such representative and not individually,
and the obligations of the Fund hereunder are not binding upon any of the
trustees, officers or shareholders of the Fund individually, but are binding
upon only the assets and property of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
THE OBERWEIS FUNDS
By: _____________________________
Its: ____________________________
Attest:
_________________________________
Its: ____________________________
OBERWEIS SECURITIES, INC.
By _____________________________
Its ____________________________
Attest:
_________________________________
Its: ____________________________
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Exhibit 22(m)(10)
EXHIBIT A
TO DISTRIBUTION AND
SHAREHOLDER SERVICE AGREEMENT
SERVICE TO BE RENDERED CHARGE TO FUND
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I. SHAREHOLDER ACCOUNTS
1. Open accounts, as necessary, and assist in
maintaining on the records of the Fund's transfer
agent current records for Fund shareholder
accounts showing as to each shareholder (to the
extent such information is available or
obtainable):
A. Name(s) and address(es) with zip code(s)
B. Type of account and taxpayer identification
or social security number
C. Number of Fund Shares currently owned
D. Account transaction history, including
records of initial and additional purchases,
redemptions, dividends and other
distributions, and related tax information Annual Fee*
2. Maintain files of account applications, requests
and correspondence from or on behalf of
shareholders in relation to Fund Shares as well as
copies of all written responses thereto Annual Fee
3. Process with the Fund's transfer agent account
records to show all changes or corrections to
shareholders' registration and address records
authorized in writing by or on behalf of the
shareholder Annual Fee
4. Assist the Fund's transfer agent in maintaining
records of shareholders' transactions in Fund
Shares for federal and state tax and securities
law purposes Annual Fee
____________________
* Annual Fee as used in this Exhibit A refers to the fee set forth in
Paragraph 2 of Article IV of the Agreement.
SERVICE TO BE RENDERED CHARGE TO FUND
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II. PURCHASES AND REDEMPTIONS
1. Conversion of monies to Federal funds Annual Fee
2. Prepare and transmit by mail to each shareholder,
confirmations as may be required by law of all
purchases and redemptions of Fund Shares effected Annual Fee
through OSI plus Cost**
3. Assist the Fund's transfer agent to prepare and
transmit by mail to each shareholder periodic
statements reflecting all purchases, dividends and Annual Fee
redemption of Fund Shares plus Cost
4. Receive, ascertain the adequacy of, and transmit
to the Fund's transfer agent all purchase orders
or redemption requests received by OSI in
accordance with the requirements set forth in the
current prospectus of the Fund Annual Fee
5. Requisition from the Fund's custodian and remit
the proceeds of redemption as directed by the
individual shareholder in accordance with the
current prospectus of the Fund Annual Fee
III. SHAREHOLDER COMMUNICATIONS & SERVICES
1. Provide, maintain and man telephone communication
systems for shareholder inquiries concerning the
administration of their Fund account Annual Fee
2. Receive and answer promptly all correspondence or
similar inquiries from or on behalf of
shareholders concerning the administration of
their Fund accounts Annual Fee
3. Refer to the Fund's investment adviser questions
or matters related to its function Annual Fee
____________________
** The term "Cost" as used in this Exhibit A refers to approximate out-of-
pocket tangible expenses such as postage and printing of forms.
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SERVICE TO BE RENDERED CHARGE TO FUND
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4. Prepare such reports and summaries of shareholder communications as
may be requested by the Fund's officers for the preparation of
reports to the Fund's trustees and appropriate regulatory
authorities Annual Fee
5. Provide and maintain a terminal with on-line facilities to provide
information regarding Fund shareholder accounts Annual Fee
plus Cost
IV. PROXY MATERIALS, ANNUAL AND OTHER REPORTS
1. Transmit (but not prepare) notices of meetings and proxy statements,
prospectuses, annual, semi-annual and quarterly reports as shall be
requested by the Fund and coordinate such mailings to appropriate
categories of Fund shareholders Cost
2. Assist the Fund's transfer agent to furnish to the Fund, by
series if applicable, a list of Fund shareholders eligible to
vote at shareholder meetings showing addresses of record and
Shares held together with an affidavit or other
appropriate certificate of the mailing of proxy materials Annual Fee
V. TAX MATTERS
1. Assist the Fund's transfer agent to prepare and transmit federal and
state tax informational returns relating to Share transactions
to shareholders and governmental agencies Annual Fee
plus Cost
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Exhibit 22(m)(10)
EXHIBIT B
TO DISTRIBUTION AND
SHAREHOLDERS SERVICE AGREEMENT
SERVICES AGREEMENT
(BROKER-DEALER)
THIS AGREEMENT made as of the _________ day of ____________, 200__ between
Oberweis Securities, Inc., an Illinois corporation ("OSI"), as principal
distributor and primary shareholder service agent for The Oberweis Funds, a
Massachusetts business trust (the "Fund"), pursuant to a Distribution and
Shareholder Service Agreement ("Distribution and Service Agreement") dated
January 2, 1997, as amended and restated November 18, 2003, and ____________
(the "Firm") in consideration of the mutual covenants hereunder contained the
parties agree as follows:
1. OSI hereby appoints the Firm to assist OSI in providing distribution
and shareholder services to the Fund. The Firm shall provide such office space
and equipment, telephone facilities, personnel, literature distribution,
advertising, and promotion as is necessary or beneficial for providing
information and services to potential and existing shareholders of the Fund and
for assisting OSI in servicing accounts of the Firm's clients who own Fund
Shares ("Clients"). Such services and assistance may include, but not be limited
to, establishment and maintenance of shareholder accounts and records,
processing purchase and redemption transactions, automatic investment in Fund
shares of client account cash balances, answering routine client inquiries
regarding the Fund, assistance to clients in changing dividend options, account
designations and addresses, and such other services as OSI may reasonably
request. The Firm shall provide such security as is necessary to prevent
unauthorized use of any on-line computer facilities. Principals of the Firm will
be available to consult from time to time with OSI concerning administration and
performance of the services contemplated by this Agreement.
The Firm accepts such appointment and agrees during such period to render
such services and to assume the obligations herein set forth for the
compensation herein provided. The Firm shall be responsible for the Firm's
compliance with all applicable laws, rules, and regulations governing the Firm's
performance under this Agreement and shall comply with the Fund's prospectus.
Further, the Firm represents that it has adopted internal controls, which are
reasonably designed to ensure compliance with Rule 22c-1, the forward pricing
rule, under the Investment Company Act of 1940. The Firm shall execute all
orders for purchase of any Fund shares at the then current public offering price
(i.e., the Net Asset Value) and all orders for the redemption of any Fund shares
shall be executed at the net asset value per share, less the redemption fee; or
similar charge or fee, if any, in each case as described in the prospectus of
the Fund. The Firm shall, for purposes herein provided, be deemed to be an
independent contractor, and unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Fund or OSI in any way or
otherwise be deemed an agent of the Fund or OSI.
The Firm agrees to release, indemnify and hold harmless the Fund, OSI, and
the Fund's investment adviser, custodian and transfer agent from any and all
direct or indirect liabilities or losses resulting from (a) the Firm's
dissemination of information regarding the Fund, OSI, or the Fund's investment
adviser that is materially incorrect and that was not provided to the Firm, or
approved by, the Fund, OSI or the Fund's investment adviser, and (b) requests,
directions, actions or inactions of or by the Firm, its officers, employees or
agents regarding the purchase, redemption, transfer or registration of Fund
shares for accounts of the Firm, its clients and other shareholders.
OSI agrees to release, indemnify and hold harmless the Firm from any and
all direct or indirect liabilities or losses resulting from (a) any inaccuracy
or omission in any registration statement, prospectus, statement of additional
information or any supplement or amendment thereof, or any advertisement or
sales literature authorized by the Fund, unless such inaccuracy or omission was
made in reliance upon and in conformity with information furnished to OSI or the
Fund by or on behalf of the Firm, and (b) any violation of any laws rules or
regulations relating to the registration or qualification of shares of the Fund.
2. For the services and facilities described in Xxxxxxx 0, XXX will pay a
fee to the Firm after the end of each quarter at the annual rate of
__________________ of 1% of the average aggregate net asset value of the Fund
shares in those accounts for which the Firm provides services at a level deemed
by OSI to be satisfactory. OSI may in its discretion pay such additional amounts
to the Firm from the fee it receives from the Fund under the Distribution and
Service Agreement as shall be deemed appropriate by OSI up to a maximum annual
rate of ____ of 1% of such average aggregate net asset value. For the quarter
and year in which this Agreement becomes effective or terminates, there shall be
an appropriate proration on the basis of the number of days that the Agreement
is in effect during the quarter and year, respectively.
3. No person is authorized to make any representations concerning the Fund
or shares of the Fund except in accordance with the terms of this Agreement.
Neither the Firm nor its agents will use or distribute, or authorize the use or
distribution of, any statements other than those contained in the Fund's current
prospectus, statement of additional information or in such supplemental
literature or advertising as may be authorized by the Fund or OSI.
4. The Firm shall prepare such quarterly reports for OSI as shall
reasonably be requested by OSI.
5. The Firm represents and warrants that it is a financial institution
subject to Title III of the USA Patriot Act. The Firm represents that it (a) has
established policies and procedures designed to prevent and detect money
laundering, as required by the USA Patriot Act and the rules and regulations
adopted thereunder; (b) identifies and will continue to identify customers for
whom it acts and the sources of funds for the customers for whom it acts and
maintains all documentation necessary to identify those customers and the
sources of their funds; and (c) does not believe and has no reason to believe,
that any customers for whom its acts are engaged in money laundering activities
or are associated with any terrorist or other individuals, entities or
organizations sanctioned by the United States. The Firm agrees to provide
federal authorities with such information and records as they may request
relating to anti-money laundering, and consents to the inspection of its records
and review of its anti-money laundering program by federal authorities.
6. The Firm acknowledges and agrees that it is subject to the privacy
regulations promulgated under Title V of the Xxxxx-Xxxxx-Xxxxxx Act with respect
to privacy, use and
2
protection of nonpublic personal information of customers ("Customer
Information"). The Firm agrees that (a) it will not disclose or use any Customer
Information except to the extent necessary to carry out its obligations under
this Agreement and for no other purpose; (b) it shall not disclose Customer
Information to any third party, including without limitation, its third party
service providers except to the extent necessary to carry out its obligations
hereunder and then only with a written agreement with such third party service
provider that likewise prohibits the third party service provider from using or
disclosing Customer Information except to carry out the obligation to service
the customer's transactions; (c) it shall maintain and require third party
service providers to maintain effective security measures to protect Customer
Information from unauthorized disclosure or use; (d) it shall provide OSI with
information regarding its security measures upon OSI's reasonable request and
promptly provide OSI with information regarding any failure of such security
measures or any security breach related to Customer Information. For purposes of
this Agreement, Customer Information includes but is not limited to: an
individual's name, address, e-mail address, telephone number and/or social
security number, the fact that an individual has a relationship with any other
party or an individual's financial information.
7. This Agreement shall become effective on the date hereof and shall
continue in effect until terminated. This Agreement shall automatically
terminate in the event of its assignment, as defined in the Investment Company
Act of 1940, and upon any termination of the Distribution and Service Agreement.
It may also be terminated at any time by the Firm or OSI on thirty (30) days
written notice.
8. The Firm acknowledges that OSI may enter into similar agreements with
others without the consent of the Firm.
9. If any provision of this Agreement shall be held or made invalid by a
court decision, rule or otherwise, the remainder shall not be affected thereby.
10. All communications to OSI shall be mailed to 000 Xxx Xxxxx Xxxxx,
Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxx 00000. Any notice to the Firm shall be duly
given if mailed or telegraphed to the address specified below. This Agreement
shall be construed in accordance with applicable federal law and the laws of
Illinois.
OBERWEIS SECURITIES INC.
By:
-------------------------
Its:
-------------------------
FIRM
By:
-------------------------
Its:
-------------------------
Address
----------------------
-------------------------
-------------------------
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Exhibit 22(m)(10)
EXHIBIT C
SERVICES AGREEMENT
THIS AGREEMENT made as of the ___________ day of ________________, 200__
between Oberweis Securities, Inc., an Illinois corporation ("OSI"), as principal
distributor and primary shareholder service agent for The Oberweis Funds, a
Massachusetts business trust (the "Fund"), pursuant to a Distribution and
Shareholder Service Agreement ("Distribution and Service Agreement") dated
January 2, 1997, as amended and restated November 18, 2003, and
____________________ (the "Firm") in consideration of the mutual covenants
hereunder contained, the parties agree as follows:
1. OSI hereby appoints the Firm to assist OSI in providing shareholder
services to the Fund. The Firm shall provide such office space and equipment,
telephone facilities and personnel as is necessary or beneficial for providing
information and services to assist OSI in servicing accounts of the Firm's
customers who own Fund shares ("Customers"). Such services and assistance may
include, but not be limited to, establishment and maintenance of shareholder
accounts and records, processing purchase and redemption transactions, automatic
investment in Fund shares of Customer account cash balances, answering routine
Customer inquiries regarding the Fund, assistance to Customers in changing
dividend options, account designations and addresses, and such other services as
OSI may reasonably request. The Firm shall provide such security as is necessary
to prevent unauthorized use of any on-line computer facilities. Principals of
the Firm will be available to consult from time to time with OSI concerning
administration and performance of the services contemplated by this Agreement.
The Firm accepts such appointment and agrees during such period to render
such services and to assume the obligations herein set forth for the
compensation herein provided. The Firm shall be responsible for the Firm's
compliance with all applicable laws, rules, and regulations governing the Firm's
performance under this Agreement and shall comply with the Fund's prospectus.
Further, the Firm represents that it has adopted internal controls, which are
reasonably designed to ensure compliance with Rule 22c-1, the forward pricing
rule, under the Investment Company Act of 1940. The Firm shall execute all
orders for purchase of any Fund shares at the then current public offering price
(i.e., the Net Asset Value) and all orders for the redemption of any Fund shares
shall be executed at the net asset value per share, less the redemption fee; or
similar charge or fee, if any, in each case as described in the prospectus of
the Fund. The Firm shall, for purposes herein provided, be deemed to be an
independent contractor, and unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Fund or OSI in any way or
otherwise be deemed an agent of the Fund or OSI.
The Firm agrees to release, indemnify and hold harmless the Fund, OSI, and
the Fund's investment adviser, manager, custodian and transfer agent from any
and all direct or indirect liabilities or losses resulting from (a) the Firm's
dissemination of information regarding the Fund, OSI, or the Fund's investment
adviser that is materially incorrect and that was not provided to the Firm, or
approved by, the Fund, OSI, or the Fund's investment adviser, and (b) requests,
directions, actions or inactions of or by the Firm, its officers, employees or
agents regarding the purchase, redemption, transfer or registration of Fund
shares for accounts of the Firm, its Customers and other shareholders.
OSI agrees to release, indemnify and hold harmless the Firm from any and
all direct or indirect liabilities or losses resulting from (a) any inaccuracy
or omission in any registration statement, prospectus, statement of additional
information or any supplement or amendment thereof, or any advertisement or
sales literature authorized by the Fund, unless such inaccuracy or omission was
made in reliance upon and in conformity with information furnished to OSI or the
Fund by or on behalf of the Firm, and (b) any violation of any laws, rules or
regulations relating to the registration or qualification of shares of the Fund.
2. For the services and facilities described in Xxxxxxx 0, XXX will pay a
fee to the Firm after the end of each quarter at the annual rate of _________ of
1% of the average aggregate net asset value of the Fund shares in those accounts
for which the Firm provides services at a level deemed by OSI to be
satisfactory. OSI may in its discretion pay such additional amounts to the Firm
from the fee it receives from the Fund under the Distribution and Shareholder
Service Agreement as shall be deemed appropriate by OSI. For the quarter and
year in which this Agreement becomes effective or terminates, there shall be an
appropriate proration on the basis of the number of days that the Agreement is
in effect during the quarter and year, respectively.
3. No person is authorized to make any representations concerning the
Fund or shares of the Fund except in accordance with the terms of this
Agreement. Neither the Firm nor its agents will use or distribute, or authorize
the use or distribution of, any statements other than those contained in the
Fund's current prospectus, statement of additional information or in such
supplemental literature or advertising as may be authorized by the Fund or OSI.
4. The Firm shall prepare such quarterly reports for OSI as shall
reasonably be requested by OSI.
5. The Firm represents and warrants that it is a financial institution
subject to Title III of the USA Patriot Act. The Firm represents that it (a) has
established policies and procedures designed to prevent and detect money
laundering, as required by the USA Patriot Act and the rules and regulations
adopted thereunder; (b) identifies and will continue to identify customers for
whom it acts and the sources of funds for the customers for whom it acts and
maintains all documentation necessary to identify those customers and the
sources of their funds; and (c) does not believe and has no reason to believe,
that any of the customers for whom its acts are engaged in money laundering
activities or are associated with any terrorist or other individuals, entities
or organizations sanctioned by the United States. The Firm agrees to provide
federal authorities with such information and records as they may request
relating to anti-money laundering, and consents to the inspection of its records
and review of its anti-money laundering program by federal authorities.
6. The Firm acknowledges and agrees that it is subject to the privacy
regulations promulgated under Title V of the Xxxxx-Xxxxx-Xxxxxx Act with respect
to privacy, use and protection of nonpublic personal information of customers
("Customer Information"). The Firm agrees that (a) it will not disclose or use
any Customer Information except to the extent necessary to carry out its
obligations under this Agreement and for no other purpose; (b) it shall not
disclose Customer Information to any third party, including without limitation,
its third party service providers except to the extent necessary to carry out
its obligations hereunder and then only with a written agreement with such third
party service provider that likewise prohibits the third party service provider
from using or disclosing Customer Information except to carry out
2
the obligation to service the customer's transactions; (c) it shall maintain and
require third party service providers to maintain effective security measures to
protect Customer Information from unauthorized disclosure or use; (d) it shall
provide OSI with information regarding its security measures upon OSI's
reasonable request and promptly provide OSI with information regarding any
failure of such security measures or any security breach related to Customer
Information. For purposes of this Agreement, Customer Information includes but
is not limited to: an individual's name, address, e-mail address, telephone
number and/or social security number, the fact that an individual has a
relationship with any other party or an individual's financial information.
7. This Agreement shall become effective on the date hereof and shall
continue in effect until terminated. This Agreement shall automatically
terminate in the event of its assignment, as defined in the Investment Company
Act of 1940, and upon any termination of the Distribution and Shareholder
Service Agreement. It may also be terminated at any time by the Firm or OSI on
thirty (30) days written notice.
8. The Firm acknowledges that OSI may enter into similar agreements with
others without the consent of the Firm.
9. If any provision of this Agreement shall be held or made invalid by a
court decision, rule or otherwise, the remainder shall not be affected thereby.
10. All communications to OSI shall be mailed to 000 Xxx Xxxxx Xxxxx,
Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxx 00000. Any notice to the Firm shall be duly
given if mailed or telegraphed to the address specified below. This Agreement
shall be construed in accordance with applicable federal law and the laws of
Illinois.
OBERWEIS SECURITIES INC.
By:
-------------------------
Its:
-------------------------
FIRM
-------------------------
By:
-------------------------
Its:
-------------------------
Address
-----------------------
-------------------------
-------------------------
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