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EXHIBIT 6(C)
BROKER-DEALER AGREEMENT
(Fully Disclosed Basis)
Concord Financial Group, Inc.
000 Xxxx 00xx Xxxxxx 19th Fl.
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We desire to enter into an Agreement with you for the sale of shares
of beneficial interest or common stock of open-end registered investment
companies (hereinafter referred to individually as a "Fund" and collectively as
the "Funds") of which you are the principal underwriter as such term is defined
in the Investment Company Act of 1940, as amended, and for which you are the
exclusive agent for the continuous distribution of shares pursuant to the terms
of a Distribution Agreement between you and each Fund. Unless the context
otherwise requires, as used herein the term "Prospectus" shall mean the
prospectus and related statement of additional information (the "Statement of
Additional Information") incorporated therein by reference (as amended and
supplemented of each of the respective Funds included in the then currently
effective registration statement (or post-effective amendment thereto) of each
such Fund, as filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended (the "Registration Statement").
In consideration for the mutual covenants contained herein, it is
hereby agreed that our respective rights and obligations shall be as follows:
1. In all sales of Fund shares to the public, we shall act as dealer for
our own account and in no transaction shall we have any authority to act as
agent for any Fund, for you or for any other dealer.
2. All orders for the purchase of any Fund shares shall be executed at
the then current public offering price per share (i.e., the net asset value per
share plus the applicable sales load, if any) and all orders for the redemption
of any Fund shares shall be executed at the net asset value per share, in each
case as described in the Prospectus of such Fund. The minimum initial purchase
order and minimum subsequent purchase order shall be as set forth in the
Prospectus of such Fund. All orders are subject to acceptance or rejection by
you at your sole discretion. Unless otherwise mutually agreed in writing, each
transaction shall be confirmed promptly in writing directly to the customer on
a fully disclosed basis and a copy of each confirmation shall be sent
simultaneously to us. You reserve the right, at your discretion and without
notice, to suspend the sale of shares or withdraw entirely the sale of shares
of any or all of the Funds.
3. In ordering shares of any fund, we shall rely solely and conclusively
on the representations contained in the Prospectus of such Fund. We agree that
we shall not offer or sell shares of any Fund except in compliance with all
applicable federal and state securities laws and the rules and regulations of
applicable regulatory agencies or authorities. In connection with offers to
sell and sales of shares of each Fund, we agree to deliver or cause to be
delivered to each person to whom any such offer or sale is made, at or prior to
time of such offer or sale, a copy of the Prospectus and, upon request, the
Statement of Additional Information of such Fund. We further agree to obtain
from each customer to whom we sell Fund shares any taxpayer identification
number certification required under Section 3406 of the Internal Revenue Code
of 1954, as amended (the "Code"), and the regulations promulgated thereunder,
and to provide you or your 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. Unless otherwise
mutually agreed in writing, you shall deliver or cause to be delivered to each
customer who purchases shares of any Funds from or through us copies of all
annual and interim reports, proxy solicitation materials, and any other
information and materials relating to such Funds and prepared by or on behalf
of you, the Fund
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or its investment adviser, custodian, transfer agent or dividend disbursing
agent for distribution to each such customer. You agree to supply us with
copies of the Prospectus, Statement of Additional Information, annual reports,
interim reports, proxy solicitation materials and any such other information
and materials relating to each Fund in reasonable quantities upon request.
4. We shall not make any representations concerning any Fund shares other
than those contained in the Prospectus of such Fund or in any promotional
materials or sales literature furnished to us by you or the Fund. Except as
otherwise provided in Paragraph 3 of this Agreement, we shall not furnish or
cause to be furnished to any person or display or publish any information or
materials relating to any Fund (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 us by you or the Fund, and such other
information and materials as may be approved in writing by you.
5. In determining the amount of any dealer reallowance payable to us
hereunder, you reserve the right to exclude any sales which you reasonably
determine are not made in accordance with the terms of the applicable Fund
Prospectuses and the provisions of this Agreement. Unless at the time of
transmitting an order we advise you to the contrary, the shares ordered will be
deemed to be the specified investor(s) total holdings of Fund shares.
6. (a) In the case of any Fund shares sold with a sales load,
customers may be entitled to a reduction in sales load on purchases made from a
Fund which utilizes a letter of intent ("Letter of Intent") in accordance with
such Fund(s) Prospectus. In such case, our dealer reallowance will be paid
based upon the reduced sales load, but adjustment to a higher dealer
reallowance will be made in accordance with the Prospectus of the applicable
Fund to reflect the investor(s) actual purchases if he should fail to fulfill
his Letter of Intent. The sales load and or dealer reallowance may be changed
at any time in your sole discretion upon written notice to us.
(b) Subject to and in accordance with the terms of the Prospectus of each
Fund sold with a sales load, a reduced sales load may be applicable with
respect to customer accounts through a right of accumulation under which
customers are permitted to purchase shares of a Fund at the then current public
offering price per share applicable to the total of (i) the dollar amount of
shares then being purchased plus (ii) an amount equal to the then current net
asset value or public offering price originally paid per share, whichever is
higher, of the customer(s) combined holdings of the shares of such Fund and of
any other open-end registered investment company as may be permitted by the
applicable Fund Prospectus. In such case, we agree to furnish to you if orders
are made by wire, or to the transfer agent as such term is defined in the
Prospectus of each Fund (the "Transfer Agent") if orders are made by mail,
sufficient information to permit your confirmation of qualification for a
reduced sales load; acceptance of the purchase order is subject to such
confirmation.
(c) With respect to Fund shares sold with a sales load, we agree to advise
you promptly at your request as to amounts of any and all sales by us
qualifying for a reduced sales load.
(d) Exchanges (i.e., the investment of the proceeds from the liquidation
of shares of one open-end registered Investment company distributed by Concord
Financial Group, Inc. or its affiliates in the shares of another open-end
registered investment company distributed by Concord Financial Group, Inc. or
its affiliates) shall, where available, be made subject to and in accordance
with the terms of each Fund Prospectus.
7. Subject to and in accordance with the terms of each Fund Prospectus
and the Service Plan, If any, adopted by resolution of the board of directors
or trustees and shareholders of any Fund pursuant to Rule 12b-1 under the
Investment Company Act of 1940, as amended, we understand that you may pay to
certain financial institutions (which may include banks), securities dealers
and other industry professionals with which you have entered into a Service
Agreement in substantially the form annexed hereto as Appendix A (or such other
form as may be approved from time to time by the board of directors of trustees
or the Fund) such fees as may be determined by you in accordance with such
Service Agreement for shareholder and administrative services as described
therein.
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8. The procedures relating to all orders and the handling thereof will be
subject to the terms of the Prospectus of each Fund and your written
instructions to us from time to time. No conditional orders will be accepted.
We agree to place orders with you immediately for the same number of shares and
at the same price as any sales by us. We shall not withhold placing orders
received from customers so as to profit ourselves as a result of such
withholding by a change in the net asset value from that used in determining
the offering price to such customers, or otherwise; provided, however, that the
foregoing shall not prevent the purchase of shares of any Fund by us for our
own bona fide investment. We agree that: (a) we shall not effect any
transactions (including, without limitation, any purchases and redemptions) in
any Fund shares registered in the name of, or beneficially owned by, any
customer unless such customer has granted us full right, power and authority to
effect such transactions on his behalf and (b) you, each Fund, each Transfer
Agent and your 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 us from and against, any and all claims,
demands, liabilities and expenses (including without limitation, reasonable
attorneys (fees) which may be incurred by you or any of the foregoing persons
entitled to indemnification from us hereunder arising out of or in connection
with the execution of any transactions in Fund 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
us.
9. (a) We agree to pay for purchase orders of any Fund shares from us
in accordance with the terms of the Prospectus of the applicable Fund. On or
before the settlement date of each purchase order for shares of any Fund, we
shall either (i) remit to an account designated by you with the Transfer Agent
an amount equal to the then current public offering price of the shares of such
Fund being purchased less our dealer reallowance, if any, with respect to such
purchase order as determined by you in accordance with the terms of the
applicable Fund Prospectus, or (ii) remit to an account designated by you with
the Transfer Agent an amount equal to the then current public offering price of
the shares of such Fund being purchased without deduction for our dealer
reallowance, if any, with respect to such purchase order as determined by you
in accordance with the terms of the applicable Fund Prospectus, in which case
our dealer reallowance, if any, shall be payable to us on at least a monthly
basis. If payment for any purchase order is not received in accordance with
the terms of the applicable Fund Prospectus, you reserve the right, without
notice, to cancel the sale and to hold us responsible for any loss sustained as
a result thereof.
(b) If any shares sold to us under the terms of this Agreement are sold
with a sales load and are redeemed for the account of the Fund or are tendered
for redemption within seven (7) days after confirmation of our purchase order
for such shares: (i) we shall forthwith refund to you the full dealer
reallowance received by us on the sale; and (ii) you shall forthwith pay to the
Fund your portion of the sales load on the sale which had been retained by you
and shall also pay to the Fund the amount refunded by us.
10. Certificates for shares sold to us hereunder shall only be issued in
accordance with the terms of each Fund Prospectus upon our customer(s) specific
request and, upon such request, shall be promptly delivered to us by the
Transfer Agent unless we make other arrangements. However, in making delivery
of such share certificates to us, the Transfer Agent shall have adequate time
to clear any checks drawn for the payment of Fund shares.
11. We hereby represent and warrant to you that:
(a) we are a corporation, partnership or other entity duly organized and
validly existing in good standing under the laws of the jurisdiction in which
we were organized;
(b) the execution and delivery of this Agreement and the performance of
the transactions contemplated hereby have been duly authorized by all necessary
action and all other authorization and approvals (if any) required for our
lawful execution and delivery of this Agreement and our performance hereunder
have been obtained; and
(c) upon execution and delivery by us, and assuming due and valid
execution and delivery by you, this Agreement will constitute a valid and
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binding agreement, enforceable against us in accordance with its terms.
12. We further represent and warrant to you that we are a member of the
NASD and, with respect to any sales in the United States, we agree to abide by
all of the rules and regulations of the NASD, including, without limitation,
its Rules of Fair Practice. We agree to comply with all applicable federal and
state laws, rules and regulations. You agree to inform us, upon our request,
as to the states in which you believe the shares of the Funds have qualified
for sale under, or are exempt from the requirements of, the respective
securities laws of such states, but you shall have no obligation or
responsibility as to our right to sell shares in any jurisdiction. We agree to
notify you immediately in the event of (a) our expulsion or suspension from the
NASD, or (b) our violation of any applicable federal or state law, rule or
regulation arising out of or in connection with this Agreement or which may
otherwise affect in any material way our ability to act as a dealer in
accordance with the terms of this Agreement. Our expulsion from the NASD will
automatically terminate this Agreement immediately without notice. Our
suspension from the NASD for violation of any applicable federal or state law,
rule or regulation will terminate this Agreement effective immediately upon
your written notice to us of termination.
13. (a) You agree to indemnify, defend and hold us, our several
officers and directors, and any person who controls us within the meaning of
Section 15 of the Securities Act of 1933, as amended, free and harmless from
and against any and all claims, demands, liabilities and expenses (including
the cost of investigating or defending such claims, demands or liabilities and
any counsel fees incurred in connection therewith) which we, our officers and
directors, or any such controlling person, may incur under the Securities Act
of 1933, as amended, or under common law or otherwise, arising out of or based
upon (i) any breach of any representation, warranty or covenant made by you
herein, or (ii) any failure by you to perform your obligations as set forth
herein, or (iii) any untrue statement, or alleged untrue statement of a
material fact contained in any Registration Statement or any Prospectus, or
arising out of or based upon any omission, or alleged omission, to state a
material fact required to be stated in either any Registration Statement or any
Prospectus, or necessary to make the statements in any thereof not misleading;
provided, however, that your agreement to indemnify us, our officers and
directors, and any such controlling person shall not be deemed to cover any
claims, demands, liabilities or expenses arising out of any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Registration Statement or Prospectus in reliance upon and in conformity with
written information furnished to you or the Fund by us specifically for use in
the preparation thereof. Your agreement to indemnify us, our officers and
directors, and any such controlling person, as aforesaid, is expressly
conditioned upon your being notified of any action brought against our officers
or directors, or any such controlling person, such notification to be given by
letter or by telex, telegram or similar means of same day delivery received by
you at your address as specified in Paragraph 18 of this Agreement within seven
(7) days after the summons or other first legal process shall have been served.
The failure so to notify you of any such action shall not relieve you from any
liability which you may have to the person against whom such action is brought
by reason of any such breach, failure or untrue, or alleged untrue, statement
or omission, or alleged omission, otherwise than an account of your indemnity
agreement contained in this Paragraph 13(a). You will be entitled to assume
the defense of any suit brought to enforce any such claim, demand, liability or
expense. In the event that you elect to assume the defense of any such suit
and retain counsel, the defendant in such suit shall bear the fees and expenses
of any additional counsel retained by any of them; but in case you do not elect
to assume the defense of any such suit, you will reimburse us, our officers and
directors, or controlling persons named as defendants in such suit, for the
fees and expenses of any counsel retained by us or them. Your indemnification
agreement contained in this Paragraph 13(a) shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of us,
our officers and directors, or any controlling person, and shall survive the
delivery of any Fund shares and termination of this Agreement. This agreement
of indemnity will inure exclusively to our benefit, to the benefit of our
several officers and directors, and their respective estates, and to the
benefit of any controlling persons and their successors.
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(b) We agree to indemnify, defend and hold you and your several officers
and directors, and each Fund and its several officers and directors or
trustees, and any person who controls you and/or each Fund within the meaning
of Section 15 of the Securities Act of 1933, as amended, free and harmless from
and against any and all claims, demands, liabilities and expenses (including
the cost of investigating or defending such claims, demands or liabilities and
any counsel fees incurred in connection therewith) which you and your several
officers and directors or the Fund and its officers and directors or trustees,
or any such controlling person, may incur under the Securities Act of 1933, as
amended, or under common law or otherwise, arising out of or based upon (i) any
breach of any representation, warranty or covenant made by us herein, or (ii)
any failure by us to perform our obligations as set forth herein, or (iii) any
untrue, or alleged untrue, statement of a material fact contained in the
information furnished in writing by us to you or any Fund specifically for use
in such Fund(s) Registration Statement or Prospectus, or used in the answers to
any of the items of the Registration Statement or in the corresponding
statements made in the Prospectus, or arising out of or based upon any
omission, or alleged omission to state a material fact in connection with such
information furnished in writing by us to you or the Fund and required to be
stated in such answers or necessary to make such information not misleading.
Our agreement to indemnify you and your officers and directors, and the Fund
and its officers and directors or trustees, and any such controlling person, as
aforesaid, is expressly conditioned upon our being notified of any action
brought against any person or entity entitled to indemnification hereunder,
such notification to be given by letter or by telex, telegram or similar means
of same day delivery received by us at our address as specified in Paragraph 18
of this Agreement within seven (7) days after the summons or other first legal
process shall have been served. We shall have the right to control the defense
of such action, with counsel of our own choosing satisfactory to you and the
Fund, if such action is based solely upon such alleged misstatement or omission
on our part and in any other event each person or entity entitled to
indemnification hereunder shall have the right to participate in the defense or
preparation of the defense of any such action. The failure so to notify us of
any such action shall not relieve us from any liability which we may have to
you or your officers and directors, or the Fund or its officers and directors
or trustees, or to any such controlling person, by reason of any such breach,
failure or untrue, or alleged untrue statement or omission, or alleged
omission, otherwise than on account of our indemnity agreement contained in
this Paragraph 13(b). Our indemnification agreements contained in Paragraph 8
above and in this Paragraph 13(b) shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any person
entitled to indemnification pursuant to Paragraph 8 above or this Paragraph
13(b), and shall survive the delivery of any Fund shares and termination of
this Agreement. Such agreements of indemnity will inure exclusively to the
benefit of the persons entitled to indemnification from us pursuant to this
Agreement and their respective estates, successors and assigns.
14. The names and addresses and other information concerning our customers
are and shall remain our sole property, and neither you nor your affiliates
shall use such names, addresses or other information for any purpose except in
connection with the performance of your duties and responsibilities hereunder
and except for servicing and informational mailings relating to the Funds.
Notwithstanding the foregoing, this Paragraph 14 shall not prohibit you or any
of your affiliates from utilizing for any purpose the names, addresses or other
information concerning any of our customers if such names, addresses or other
information is obtained in any manner other than from us pursuant to this
Agreement. The provisions of this Paragraph 14 shall survive the termination
of this Agreement.
15. We agree to serve as a service organization, in accordance with the
terms of the form of Service Agreement annexed hereto as Appendix A, for all of
our customers who purchase shares of any and all Funds whose Prospectuses
provide for these of service organizations. By executing this Agreement, each
of the parties hereto agrees to be bound by all terms, conditions, rights and
obligations set forth in the form of Service Agreement annexed hereto as
Appendix A and further agrees that such form of Service Agreement supersedes
any and all prior service agreements between the parties hereto.
16. By completing the Expedited Redemption Information Form annexed hereto
as Appendix B, we agree that you, each
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mutual fund with respect to which you permit us to exercise an expedited
redemption privilege, the transfer agent of each such fund, and your 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 us
from and against any and all claims, demands, liabilities and expenses
(including, without limitation, reasonable attorneys fees) arising out of or in
connection with any expedited redemption payments made in reliance upon the
information set forth in such Appendix B.
17. Neither this Agreement nor the performance of the services of the
respective parties hereunder shall be considered to constitute an exclusive
arrangement, or to create a partnership, association or joint venture between
you and us. Neither party hereto shall be, act as, or represent itself as, the
agent or representative of the other, nor shall either party have the right or
authority to assume, create or incur any liability or any obligation of any
kind, express or implied, against or in the name of, or on behalf of, the other
party. This Agreement is not intended to, and shall not, create any rights
against either party hereto by any third party solely on account of this
Agreement. Neither party hereto shall use the name of the other party in any
manner without the other party's prior written consent, except as required by
any applicable federal or state law, rule or regulation, and except pursuant to
any promotional programs mutually agreed upon in writing by the parties hereto.
18. Except as otherwise specifically provided herein, all notices required
or permitted to be given pursuant to this Agreement shall be given in writing
and delivered by personal delivery or by postage prepaid, registered or
certified United States first class mail, return receipt requested, or by
telex, telegram or similar means of same day delivery (with a confirming copy
by mail as provided herein). Unless otherwise notified in writing, all notices
to you shall be given or sent to you at your offices, located at 000 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and all notices to us shall be
given or sent to us at our address shown below.
19. This Agreement shall become effective only when accepted and signed by
you, and may be terminated at any time by either party hereto upon fifteen (15)
days prior written notice to the other party. All unfulfilled obligations,
duties and liabilities of either party to the other as of the date of
termination including, without limitation, all obligations of indemnification
of either to the other. This Agreement may be amended only by a written
instrument signed by both of the parties hereto and may not be assigned by
either party without the prior written consent of the other party. This
Agreement constitutes the entire agreement and understanding between the
parties hereto relating to the subject matter hereof and supersedes any and all
prior agreements between the parties hereto relating to the subject matter
hereof.
20. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York, without giving effect to principles
of conflicts of laws.
Very truly yours,
___________________________________
Name of Broker-Dealer
(Please Print or Type)
___________________________________
___________________________________
Address
Dated:_____________________________
By:________________________________
Authorized Dealer
NOTE:
Please sign and return both copies of this
Agreement to Concord Financial Group, Inc.
Upon acceptance a countersigned copy will
be returned to you for your files.
Accepted:
CONCORD FINANCIAL GROUP, INC.
Dated:_____________________________
By:________________________________
Authorized Dealer
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