EXHIBIT (e)(4)
Date:_________________________
RE: LETTER AGREEMENT FOR CONTINUOUS OFFERING OF HEARTLAND FUNDS BY BANKS
Ladies and Gentlemen:
Heartland Advisors, Inc. (the "Company") desires to enter into an agreement
with you for making available to your customers and reselling to us shares of
each series of Heartland Group, Inc. of which we are, or may become, Distributor
(hereinafter collectively referred to as the "Funds" and individually as a
"Fund") and whose shares are offered to the public at an offering price which
may or may not include a sales charge (hereinafter referred to as "Shares").
Upon acceptance of this Agreement by you, you understand that you may offer
Shares and act as authorized agent for your customers' purchase of Shares from
us, subject, however, to all of the following terms and conditions, and to our
right, without notice, to suspend or terminate the sale of the Shares of any one
or more of the Funds:
1. Shares will be made available at the current offering price in effect
at the time the order of such Shares is confirmed and accepted by us at our
office in Milwaukee, Wisconsin. All purchase orders, resale orders and
applications of your customers submitted by you are subject to acceptance or
rejection in our sole discretion and, if accepted, each purchase will be deemed
to have been consummated at our office in Milwaukee, Wisconsin.
2. You represent and warrant to us that you are a "bank" as defined in
Section 3(a)(6) of the Securities Exchange Act of 1934, as amended. You agree
to abide by the provisions of the Investment Company Act of 1940, as amended
(the "1940 Act"), the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended, and all applicable rules and regulations of
the Securities and Exchange Commission ("SEC") and the NASD, including without
limitation, the NASD Rules of Fair Practice, whether or not you are a broker-
dealer subject to the jurisdiction of the SEC and NASD. You further agree to
comply with all applicable state and Federal laws and the rules and regulations
of authorized regulatory agencies. You agree that you will not offer Shares in
any state or other jurisdiction where they have not been qualified for sale or
if we have not advised you in advance that such sale is exempt from such
qualification requirements. You are responsible under this Agreement for
inquiring of us as to the jurisdiction in which Shares have been qualified for
sale.
3. You will make available to your customers Shares of any Fund only in
accordance with the terms and conditions of its then current Prospectus and
Statement of Additional Information (collectively referred to as the
"Prospectus") and you will make no representations about such Shares not
included in said Prospectus or in any authorized supplemental material supplied
or authorized by us. You will use reasonable efforts in the offer of Shares and
agree to be responsible for the proper instruction and training of all brokerage
personnel in this area employed by you, in order that the Shares will be offered
in accordance with the terms and conditions of this Agreement and all applicable
laws, rules and regulations. You agree to hold us harmless and indemnify us,
the Funds, and our and their respective officers, directors and employees in the
event that you, or any of your current or former employees or agents should
violate any law, rule or regulation, or any provision of this Agreement, which
violation may result in any loss or liability to us, our affiliates or any Fund.
If we determine to refund any amounts paid by an investor by reason of any such
violation, you shall promptly return to us on demand any agency commissions
previously paid by us to you with respect to the transaction for which the
refund is made. Furthermore, you agree to indemnify us, our affiliates and the
Funds against any and all claims, demands, controversies, actions, losses,
damages, liabilities, expenses, arbitrations, complaints or investigations,
including without limitation, reasonable attorneys' fees and court costs that
are the result of or arise directly or indirectly, in whole or in part, from us,
our affiliates or the Funds acting upon instructions for the purchase, exchange
or resale of uncertificated book shares received through our manual or automated
phone system or the Fund/SERV program of National Securities Clearing
Corporation; provided such loss, liability or damages are not the result of the
gross negligence, recklessness or intentional misconduct of us, our affiliates
or the Funds. All expenses which you incur in connection with your activities
under this Agreement shall be borne by you. In connection with all purchase or
resale orders, you are acting as agent for your customer and each transaction is
for the account of your customer and not for your own account. Termination or
cancellation of this Agreement shall not relieve you from the requirements of
this paragraph as to transactions or occurrences arising prior to such
termination.
4. You will not be paid agency commissions by the Company for sales of
Shares of a Fund where the prospectus, including any applicable supplements,
relating to the particular Fund provides that the Shares will be offered to the
public without a sales load.
5. The Company reserves the right to increase, decrease or discontinue
payment of agency commissions for sale of Shares at any time in its sole
discretion upon written notice to you and any orders placed after the effective
date of such change will be subject to the rate(s) of agency commissions in
effect at the time of receipt of the payment by us.
6. Payments for purchases of Shares made by telephone or wire order
(including purchase orders received through our manual or automated phone
system, or via the Fund/SERV program of National Securities Clearing
Corporation), and all necessary account information required by us to establish
an account or to settle a resale order, including, without limitation, the tax
identification number of the purchaser, certified either by the purchaser or by
you, shall be provided to us and received by us within three business days after
our acceptance of your order or such shorter time as may be required by law. If
such payment or other settlement information are
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not timely received by us, you understand that we reserve the right, without
notice, to cancel the purchase or resale order, or, at our option in the case of
a purchase order, to sell the Shares ordered by you back to the Fund, and in
either case you may be held responsible for any loss, including loss of profit,
suffered by us or any Fund resulting from your failure to make the aforesaid
timely payment or settlement. If sales of any Fund's Shares are contingent upon
the Fund's receipt of Federal Funds in payment therefor, you will forward
promptly to us any purchase orders and/or payments received by you for such
Shares from your customers. With respect to purchase orders of uncertificated
book shares placed via Fund/SERV, you shall retain in your files all
applications and other documents required by us to establish an account or to
settle a resale order. You will provide us with the original of such documents
at our request.
7. You agree that you will act as agent with respect to Shares only if
they are purchased from us or repurchased by us from your customers. If Shares
are purchased from us by your customers, you warrant that such purchases are
only for investment. If Shares are purchased by you from your customers for
resale to us, you agree that such customers will be paid not less than the
applicable redemption or repurchase price then quoted by the Fund.
8. We may consider any order you place for Fund Shares to be the total
holding of Shares by the investor, and we may assume that the investor is not
entitled to any reduction in sales price beyond that accorded to the amount of
that purchase order as determined by the schedule set forth in the then current
Prospectus, unless you advise us otherwise when you place the order.
9. You may place resale orders with us for Shares owned by your
customers, but only in accordance with the terms of the applicable Fund
Prospectus. You understand and agree that by placing a resale order with us by
wire or telephone (including resale orders for uncertificated book shares placed
via our manual or automated phone system or via the Fund/SERV program of
National Securities Clearing Corporation), you represent to us that a request
for the redemption of the Shares covered by the resale order has been delivered
to you by the registered owner(s) of such Shares, and that such request has been
executed in the manner and with the signature(s) of such registered owner(s)
guaranteed as required by the then current Prospectus of the applicable Fund.
Such resale orders shall be subject to the following additional conditions:
(a) You shall furnish us with the exact registration and account
number to be redeemed at the time you place a resale order by
wire or telephone. Other than for resale orders of
uncertificated book shares placed via Fund/SERV, you shall
tender to us, within three business days of your placing such
resale order: (i) a stock power or letter, duly signed by the
registered owner(s) of the Shares which are the subject of the
order, duly guaranteed, (ii) any Share certificates required for
such redemption, and (iii) any additional documents which may be
required by the applicable Fund or its transfer agent, in
accordance with the terms of the then current Prospectus of the
applicable Fund and the policies of the transfer agent. With
respect to resale orders of uncertificated book shares placed
via Fund/SERV, you shall retain in your
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files all documents required by us to effect such transaction.
You will provide us with the original of such documents at our
request.
(b) The resale price will be the next net asset value per share of
the Shares computed after our receipt, prior to the close of the
New York Stock Exchange ("NYSE"), of an order placed by you to
resell such Shares, except that orders placed by you after the
close of the NYSE on a business day will be based on the Fund's
net asset value per share determined that day, but only if such
orders were received by you from your customer prior to the
close of business of the NYSE that day and if you placed your
resale order with us prior to our normal close of business that
day.
(c) In connection with a resale order you have placed, if you fail
to make delivery of all required certificates and documents in a
timely manner, as stated above (other than for resale orders
placed via Fund/SERV), or if the registered owner(s) of the
Shares subject to the resale order redeems such Shares prior to
your settlement of the order, we have the right to cancel your
resale order. If any cancellation of a resale order or if any
error in the timing of the acceptance of a resale order placed
by you shall result in a loss to us or the applicable Fund, you
shall promptly reimburse us for such loss.
10. If any Shares sold to your customers under the terms of this Agreement
are redeemed by any of the Funds (including without limitation redemptions
resulting from an exchange for Shares of another Fund) or are repurchased by us
as agent for the Fund or are tendered to a Fund for redemption within seven
business days after our confirmation to your customers of your original purchase
order for such Shares, you shall promptly repay us the full amount of the agency
commission (including any supplemental commission) allowed to you on the
original sale, provided we notify you of such repurchase or redemption.
Termination amendment or cancellation of this Agreement shall not relieve you
from the requirements of this paragraph.
11. You will comply with, and conform your practices to, any and all
written compliance standards and policies and procedures that we may from time
to time provide to you.
12. You understand and agree that we are in no way responsible for the
manner of your performance of, or for any of your acts or omissions in
connection with, the services you provide under this Agreement. Nothing in this
Agreement shall be construed to constitute you or any of your agents, employees
or representatives as the agent or employee of us or any of the Funds.
13. You may terminate this Agreement by written notice to us, which
termination shall become effective ten days after the date of mailing such
notice to us. You agree that we have and reserve the right, in our sole
discretion without notice to you, to suspend sales of Shares of any of the
Funds, at any time, or to withdraw entirely the offering of Shares of any of the
Funds, at any time, or, in our sole discretion, to modify, amend or cancel this
Agreement upon written notice to
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you of such modification, amendment or cancellation, which shall be effective on
the date stated in such notice. Without limiting the foregoing, we may terminate
this Agreement if you violate any of the provisions of this Agreement, said
termination to become effective on the date we mail such notice to you. Without
limiting the foregoing, and any provision hereof to the contrary
notwithstanding, the appointment of a trustee for all or substantially all of
your business assets, or your violation of applicable state or Federal laws or
rules and regulations of authorized regulatory agencies will terminate this
Agreement effective upon the date we mail notice to you of such termination. Our
failure to terminate this Agreement for a particular cause shall not constitute
a waiver of our right to terminate this Agreement at a later date for the same
or any other cause. All notices hereunder shall be to the respective parties at
the addresses listed hereon, unless such address is changed by written notice
sent to the last address of the other party provided under this Agreement.
14. This Agreement shall become effective as of the date when it is
executed and dated by you below and shall be in substitution of any prior
agreement between you and us covering any of the Funds. This Agreement and all
the rights and obligations of the parties hereunder shall be governed by and
construed under the laws of the State of Wisconsin applicable to agreements to
be performed in Wisconsin, without giving effect to choice of law rules. This
Agreement is not assignable or transferable, except that we may without notice
or consent from you, assign or transfer this Agreement to any successor firm or
corporation which becomes the Distributor or Sub-Distributor of the Funds or
assign any of our duties under this Agreement to any entity under common control
with us.
Sincerely,
HEARTLAND ADVISORS, INC.
_______________________________
Accepted:
___________________________________
(Name of Bank)
___________________________________
(Address)
By:________________________________
(Authorized Signature of Bank)
___________________________________
(Name) (Title)
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