Exhibit 99.2h(ii)
SELLING GROUP AGREEMENT
Xxxxxxx Distributors, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Dear Financial Services Firm:
As principal underwriter and distributor, we invite you to join a
Selling Group for the distribution of interests of the funds identified on
Schedule A hereto (each herein called a "Fund"), as Schedule A may be amended
from time to time, but only in those states or jurisdictions in which the
interests of the Fund may legally be offered for sale. As exclusive agent of
the Fund, we offer to sell to you interests of the Fund on the following
terms:
1. In all sales of these interests to the public you shall act as dealer
for your own account, and in no transaction shall you have any authority to
act as agent for the issuer, for us or for any other member of the Selling
Group.
2. Orders received from you will be accepted by us only at the offering
price applicable to each order, as established by the Fund's then currently
effective prospectus ("Prospectus"), subject to a discount, commission or
other concession, if any, as provided in the Prospectus. Upon receipt from you
of any order to purchase interests of the Fund, we shall confirm to you in
writing or by wire to be followed by a confirmation in writing. Additional
instructions may be forwarded to you from time to time. All orders are subject
to acceptance or rejection by us in our sole discretion.
3. You may offer and sell interests to your customers only at the
offering price determined in the manner described in the Prospectus. Interests
will be offered during the initial offering period at the offering price, plus
any applicable sales charge, and in a continuous offering thereafter, plus any
applicable sales charge, as provided in the applicable Prospectus. You may
receive a sales commission up to the full amount of the sales charge as
provided in the Prospectus. You shall receive a distribution fee and/or
services fee, if applicable, as provided in the Prospectus, which fee shall be
payable with respect to such assets, for such periods and at such intervals as
are from time to time specified by us and the Fund. The reallowances,
discounts or other concessions to which you may be entitled in connection with
sales to your customers pursuant to any special features of the Fund (such as
cumulative discounts, letters of intent, etc., the terms of which shall be as
described in the Prospectus and related forms) shall be in accordance with the
terms of such features. Our liability to you with respect to the payment of
any distribution and/or service fee is limited to the proceeds received by us
from the Fund under any distribution or service plan with respect to any class
of interests of the Fund, and you waive any right you may have to payment of
any such fee until we are in receipt of the proceeds from the Fund that are
attributable to investments in the Fund by your customers.
4. By accepting this agreement, you agree:
(a) To purchase interests only from us or from your customers.
(b) That you will purchase interests from us only to cover
purchase orders already received from your customers, or for your own bona
fide investments.
(c) That you will not purchase interests from your customers at a
price lower than the applicable repurchase price, as applicable, established
by or for the Fund. You may, however, sell interests for the account of your
customer to the Fund, or to us as agent for the Fund, at the applicable
repurchase price currently quoted by or for the Fund and charge your customer
a fair fee for handling the transaction.
(d) That you will not withhold placing with us orders received
from your customers so as to profit yourself as a result of such withholding.
5. We will not accept from you any conditional orders for interests.
6. If any interests confirmed to you under the terms of this agreement
are repurchased by the Fund or by us as agent for the Fund, or are tendered
for repurchase, within seven business days after the date of confirmation of
the original purchase order, you shall forthwith refund to us the full
discount, commission, finder's fee or other concession, if any, allowed or
paid to you on such interests.
7. Payment for interests ordered from us shall be in New York clearing
house funds and must be received by the Fund's designated agent within seven
days after our acceptance of your order (or such shorter time period as may be
required by applicable regulations). If such payment is not received, we
reserve the right, without notice, forthwith to cancel the sale or, at our
option, to sell the interests ordered back to the Fund, in which case we may
hold you responsible for any loss, including loss of profit suffered by us as
a result of your failure to make such payment.
8. Interests sold to you hereunder shall be available in negotiable form
for delivery against payment, unless other instructions have been given.
9. All sales will be made subject to our receipt of interests from the
Fund. We reserve the right, in our discretion, without notice, to suspend
sales or withdraw the offering of interests entirely. Upon our direction, we
reserve the right to modify, cancel or change the terms of this agreement,
upon 15 days' prior written notice to you. Also, the sales charges, discounts,
commissions or other concessions, and fees of any kind provided for hereunder
are subject to change at any time by the Fund and upon our direction.
10. All communications to us should be sent to the following address:
Xxxxxxx Distributors, Inc., 000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000. Any
notice to you shall be duly given if mailed or telegraphed to you at the
address specified by you below.
11. This agreement will be governed by the laws of the State of New York
without reference to the choice of law principles thereof. The courts of the
State of New York are to have non-exclusive jurisdiction to settle any
disputes which may arise out of or in connection
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with this agreement and accordingly any legal action or proceedings arising
out of or in connection with this agreement ("Proceedings") may be brought in
such courts. You hereby irrevocably submit to the jurisdiction of the courts
of the State of New York and hereby waive any objection to Proceedings in such
courts, whether on the grounds that the Proceedings have been brought in an
inconvenient forum or otherwise. This agreement is subject to the Prospectus
from time to time in effect, and, in the event of a conflict, the terms of the
Prospectus shall control.
12. References herein to the "Prospectus" shall mean the prospectus and
statement of additional information of the Fund as from time to time in
effect. Any changes, modifications or additions reflected in any such
Prospectus shall be effective on the date of such Prospectus (or supplement
thereto) unless specified otherwise.
13. This agreement is subject to the Additional Stipulations and
Conditions appended hereto, all of which are a part of this agreement.
Xxxxxxx Distributors, Inc.
By:_________________________________
Authorized Signature
Title: _____________________________
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PLEASE COMPLETE THE INFORMATION BELOW:
ACCEPTED AND CONFIRMED BY THE UNDERSIGNED FINANCIAL SERVICES FIRM
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Printed Firm Name Address
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Authorized Signature Area Code and Telephone Number
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Name and Title Area Code and Facsimile Number
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Dated:
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ADDITIONAL STIPULATIONS AND CONDITIONS
14. No person is authorized to make any representations concerning
interests of the Fund except those contained in the Prospectus and in printed
information subsequently issued by the Fund or by us as information
supplemental to the Prospectus. If you wish to use your own
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advertising with respect to the Fund, all such advertising must be approved by
us or by the Fund prior to use. You shall be responsible for any required
filing of such advertising.
15. Your acceptance of this agreement constitutes a representation (i)
that you are a registered security dealer and a member in good standing of the
National Association of Securities Dealers, Inc. and that you agree to comply
with all state and federal laws, rules and regulations applicable to
transactions hereunder and to the Rules of Fair Practice of the National
Association of Securities Dealers, Inc., or (ii) if you are offering and
selling interests of the Fund only in jurisdictions outside of the several
states, territories and possessions of the United States and are not otherwise
required to be a member of the National Association of Securities Dealers,
Inc., that you nevertheless agree to conduct your business in accordance with
the spirit of the Conduct Rules of the National Association of Securities
Dealers, Inc., and to observe the laws and regulations of the applicable
jurisdiction. You likewise agree that you will not offer to sell interests of
the Fund in any state or other jurisdiction in which it may not lawfully be
offered for sale. You agree that you shall deliver a Prospectus to each of
your customers who purchases interests of the Fund prior to or accompanied by
confirmation of each such purchase, copies of which shall be supplied to you
in reasonable quantity upon your request.
16. You shall make available an account for each of your customers
through the Fund and shall provide such office space and equipment, telephone
facilities, personnel and literature distribution as is necessary or
appropriate for providing information and services to your customer. Such
services and assistance may include, but not be limited to, the provision of
personal, continuing services to your customers who are investors in the Fund
("members"), establishment and maintenance of member accounts and records,
receiving, aggregating and processing purchase and repurchase transactions,
maintaining retirement plan accounts and providing and maintaining retirement
plan records, communicating periodically with members and providing
information and responding to questions about the Fund, the interests, the
availability of interests in any continuous offering, and repurchase offers,
and handling correspondence from members about their accounts, acting as the
sole interest-holder of record and nominee for members, obtaining and
maintaining certifications with respect to investor qualifications and
interest transfer restrictions, assisting the Fund or any agent of the Fund in
monitoring or enforcing the investor qualification requirements and interest
transfer restrictions, providing beneficial owners with account statements,
processing distribution payments, issuing members reports and transaction
confirmations, providing subaccounting services for interests held
beneficially, forwarding member communications to beneficial owners,
receiving, tabulating and transmitting proxies executed by beneficial owners,
general account administration activities, and such other services as may be
agreed upon from time to time and as may be permitted by applicable statute,
rule, or regulation. To the extent that such services and assistance are
provided, we may pay you such additional amounts and/or fees as set forth in
Schedule B hereto. You agree to release, indemnify and hold harmless the Fund,
us and our representatives and agents, from any and all direct or indirect
liabilities or losses resulting from requests, directions, actions or
inactions of or by you, your officers, employees or agents regarding the
purchase, repurchase or transfer of registration of interests of the Fund for
accounts of you, your customers and other members or from any unauthorized or
improper use of any on-line computer facilities. You shall prepare such
periodic reports as shall reasonably be requested by us. You shall immediately
inform the Fund or us of all written complaints received by you
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from Fund members relating to the maintenance of their accounts and shall
promptly answer all such complaints and other similar correspondence. You
shall provide the Fund and us on a timely basis with such information as may
be required to complete various regulatory forms.
17. With respect to each Fund designated in Schedule A as being subject
to this paragraph, you acknowledge and agree that each of your customers on
whose behalf you purchase interests of the Fund will be an (i) investor who is
an "Eligible Investor" as that term is defined in the Registration Statement,
and (ii) obtain and comply with any investor certification requirements set
forth in the Fund's Registration Statement and maintain on file a validly
executed investor certification with respect to each such customer's status as
an "Eligible Investor." You shall assist us or the Fund as is necessary in the
monitoring and enforcement of the Fund's interest ownership qualification
requirements and interest transfer restrictions, including providing copies of
member certifications or other documentation as may be necessary to determine
the status of members.
18. As a result of the necessity to compute the amount of any early
withdrawal charge due with respect to the repurchase of interests, if
applicable, you may not hold interests of the Fund imposing such a charge in
an account registered in your name or in the name of your nominee for the
benefit of certain of your customers except with our prior written consent.
Except as otherwise permitted by us, interests of the Fund owned by a member
must be in a separately identifiable account for such member.
19. Each Fund may be divided into one or more classes of interests,
certain of which may only be available to investment advisory clients of ours.
Future classes of interests may be offered at net asset value and may or may
not have an initial sales charge, an early withdrawal charge, an asset-based
services fee, and/or a conversion feature. Please see each Fund's Prospectus
for a more complete description of a particular Fund's classes of interests
available and the distinctions between the classes of interests. This
agreement shall apply to any present or future classes of interests permitted
to be sold by you.
It is important to investors not only to choose a Fund appropriate for
their investment objectives, but also to choose the appropriate class, when
available, based on the amount invested and the expected duration of the
investment. To assist investors in these decisions, we may institute policies
with respect to orders for interests of the Fund that would apply to each
broker/dealer that distributes interests of the Fund, and would became a part
of this agreement upon inclusion in the Prospectus.
Appropriate supervisory personnel within your organization must ensure
that all employees receiving investor inquiries about the purchase of
interests of the Fund make any required suitability determination with respect
to the prospective investment and advise the investor of the available pricing
structures offered by the Fund if applicable and the impact of choosing one
method over another, including breakpoints and the availability, if any, of
letters of intent, combined purchases and cumulative discounts. In some
instances it may be appropriate for a supervisory person to discuss a purchase
with the investor.
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20. Interests of the Fund may be subject to significant transfer
restrictions, as set forth in the Prospectus. These may include, but are not
limited to, restrictions prohibiting the transfer of interests to individuals
who are not "Eligible Investors" as defined in the Prospectus, and prohibiting
the transfer of interests to individuals who would not hold the interests
through an intermediary that has entered into a selling group agreement with
us or our delegate. You acknowledge and agree that you will effect transfer of
interests of a Fund only in compliance with such transfer restrictions.
21. This agreement shall be in substitution of any prior selling group
agreement between you and us regarding these interests. The payment of related
distribution and/or services fees, if any, shall be subject to the
distribution and/or services plans adopted by the Fund with respect to each
class of interests.
22. Schedule A hereto may be amended from time to time, effective upon
mailing of such amended Schedule to you. Your acceptance of the amended
Schedule is deemed with respect to a particular Fund upon placement by you of
an order for interests of that Fund.
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Schedule A
Schedule designating the investment companies with respect to which this
Agreement relates.
The Topiary Benefit Plan Investor Fund LLC*
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* Interests of this Fund may only be purchased by "Eligible Investors" as set
forth in paragraph 17 of this agreement and are subject to transfer
restrictions.
Schedule B
Dear Financial Services Firm:
In accordance with Paragraph 16 of the Selling Group Agreement
("Agreement"), and to the extent you provide such services and assistance
described, we shall pay you a fee, paid quarterly in arrears, at an annual
rate equal to ____% of the month-end net asset value of the assets of the Fund
held in your customers' accounts, which are eligible for payment. This fee
shall be payable from our own resources and not from the assets of the Fund.
This agreement will terminate automatically in the event of the assignment of
the Agreement and may be terminated by either party hereto upon 30 days'
written notice to the other.
Xxxxxxx Distributors, Inc.
By:_________________________________
Authorized Signature
Title: _____________________________
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PLEASE COMPLETE THE INFORMATION BELOW:
ACCEPTED AND CONFIRMED BY THE UNDERSIGNED FINANCIAL SERVICES FIRM
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Printed Firm Name Address
----------------------------- -----------------------------------------------
Authorized Signature Area Code and Telephone Number
----------------------------- -----------------------------------------------
Name and Title Area Code and Facsimile Number
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Dated:
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