--------------------------------------------------------------------------------
FORM N-4, ITEM 24(b)
8.48 Form of Form of Selling and Shareholder Support Services Agreement between
ALPS and AUL & OAS
--------------------------------------------------------------------------------
SELLING AND SHAREHOLDER SUPPORT SERVICES AGREEMENT
THIS BROKER DEALER SELLING AGREEMENT ("Agreement") made and entered into between
ALPS Distributors, Inc. ("ADI"), a Colorado corporation having its principal
place of business at 0000 Xxxxxxxx, Xxxxx 00XX, Xxxxxx, Xxxxxxxx 00000, and and
American United Life Insurance Company and OneAmerica Securities, Inc.,
(collectively referred to herein as "BrokerlDealer") both Indiana companies
having their respective principal places of business at Xxx Xxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000, and 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000.
WHEREAS, BrokerlDealer ,desires to enter in this Agreement with ADI to sell
shares of The ,Henssler Funds, Inc: ("Company"), a registered open-end
investment management company, BrokerlDealer will provide distribution related,
continuing personal services to shareholder and/or administration of shareholder
accounts in, to the fund(s) currently offered by the Company. ADI is the
principal underwriter and, agent for the Company.
WHEREAS, Broker/Dealer understands that pursuant to the Investment Company Act
of 1940, as amended (the "1940 Act"), the mutual fund(s) offered and such other
mutual fund(s) subsequently established by the Company and distributed by the
Distributor are set forth in the Agreement Fee Schedule (each individually a
"Fund" and collectively "Funds");
WHEREAS, Henssler Asset Management, LLC ("HAM" or the "Adviser"), serves as the
investment adviser and shareholder servicing agent to the Funds and is a limited
party to this Agreement for the sole purpose of paying shareholder support or
other fees in accordance with the Prospectus and the terms and conditions
specified under this Agreement.
WHEREAS, the term "Prospectus" means the prospectus and, unless the context
otherwise requires, the related statement of additional information ("SAI")
incorporated therein by reference, as the same are amended and supplemented
("Supplements") from time to time by the Funds.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth
herein, the parties agree as follows:
1. Purchases of Company Shares for Sale to Customers.
(a) Broker/Dealer is hereby appointed as a non-exclusive agent of the Company
during the term herein specified for the purpose of finding suitable
investors for Company's shares as described herein. Subject to the
performance by ADI of its obligations to be performed hereunder and to the
completeness and accuracy in all material respects of all the
representations and warranties ofthe Company contained herein,
BrokerlDealer hereby accepts such agency and agrees on the terms and
conditions set forth herein and in each Fund's then-current Prospectus to
use reasonable efforts during the term hereof to find suitable investors
and to provide ongoing services to such investors for the duration of their
investments.' It is understood. that the Broker/Dealer has no commitment
with regard to the sale of the Company's shares other than to use
reasonable 'efforts and shall not prevent Broker/Dealer from acting as an
agent or underwriter for the securities of other issuers that may be
offered or sold during the term hereof. Broker/Dealer's agency relationship
with ADI hereunder shall continue until the termination of this Agreement.
Any sales of a Fund's shares made prior to the date hereof by BrokerlDealer
shall be deemed made pursuant to this Agreement.
b) In offering and selling Company's shares to Broker/Dealer's customers,
BrokerlDealer agrees to act as dealer for Broker/Dealer's own account and
in no transaction shall the BrokerlDealer
have any authority to act or hold itself out as agent for ADI or the
Company, except for the limited purposes set forth under this Agreement.
ADI acknowledges that customers of BrokerlDealer who purchase Fund shares
are the BrokerlDealer's customers. BrokerlDealer shall be responsible for
opening, approving, and monitoring customer accounts and for the review and
supervision of these accounts, all in accordance with the rules of the
Securities and Exchange Commission ("SEC") and Financial Industry
Regulatory Authority ("FINRA").
(c) Broker/Dealer agrees to offer and sell each Fund's shares to
Broker/Dealer's customers only at the applicable public offering price,
giving effect to any cumulative or quantity discounts or other purchase
programs, plans, or services described in the then-curr~nt Prospectus.
Broker/Dealer agrees to deliver, or cause to be delivered, to each
customer, at or prior to the time of any purchase of shares, a copy of the
then current Prospectus (including any supplements thereto), and to each
customer who so requests, a copy of the then-current SAI (including any
supplements thereto).
(d) Broker/Dealer agrees to purchase Fund's shares from ADI or from
Broker/Dealer customers. If BrokerlDealer purchases from ADI, Broker/Dealer
agrees that all such purchases shall be made only: (a) to cover orders
already received by BrokerlDealer from its customers; (b) for shares being
acquired by Broker/Dealer's customers pursuant to either the exchange
privilege or the reinvestment privilege, as described in the then-current
Prospectus of a Fund; (c) for BrokerlDealer's own bona fide investment; or
(d) for investments by any Internal Revenue Service ("IRS") qualified plan
or other trust established for the benefit of BrokerlDealer's employees or
for investments in Individual Retirement Accounts established by
BrokerlDealer's employees, and if BrokerlDealer so advises ADI in writing
prior to any sale of shares pursuant to this subparagraph (d),
BrokerlDealer agrees to waive all BrokerlDealer concessions, if any, to all
sales of shares. If Broker/Dealer purchases shares from BrokerlDealer
customers, BrokerlDealer agrees not to purchase shares from BrokerlDealer
customers at a price lower than the applicable redemption price, determined
in the manner described in the then-current Prospectus. BrokerlDealer shall
not withhold placing customers' orders for shares so as to profit the
BrokerlDealer as a result of such withholding (e.g., to include, but not
limited to, a change in a Fund's net asset value from that used in
determining the offering price to BrokerlDealer's customers).
(e) ADI will accept Broker/Dealer's purchase orders only at the public
offering price applicable to each order, as determined in accordance with
the then-current Prospectus. ADI will not accept from BrokerIDealer a
conditional order. All orders redeeming any shares shall be executed in
accordance with Rule 22c-l of the 1940 Act. All orders are subject to
acceptance or rejection by ADI in its sole discretion. ADI reserves the
right, at its discretion and without notice to the Broker/Dealer, to
suspend sales or to withdraw the offering of a Fund's shares, in whole or
in part, or to make a limited offering of any Fund's shares. The minimum
and maximum dollar amounts for purchase of a Fund's shares (and any classes
thereto) for any shareholder shall be the applicable minimum or maximum
amount described in such Fund's then-current Prospectus and no order for
less or more than, as the case may be, such amount will be accepted
hereunder.
(f) The transmission of orders will be governed by instructions that ADI will
periodically issue to Broker/Dealer. Broker/Dealer must pay for Fund's
shares in "Federal Funds" and ADI must receive Broker/Dealer's payment on
or before the settlement date established in accordance with Rule l5c6-1
under the Securities Exchange Act of 1934. If ADI does not receive
Broker/Dealer's payment on or before such settlement date, ADI may, without
notice, cancel the sale, or, at ADI's option, sell a Fund's shares that
Broke/Dealer ordered back to the issuing
Fund. ADI will hold Broker/Dealer responsible for any loss suffered by ADI
or the issuing Fund as a result of Broker/Dealer's failure to make payment
as required.
(g) Broker/Dealer agrees to use the application provided with the Prospectus
as the means of placing a customer's order except for accounts opened or
maintained pursuant to the networking system of the National Securities
Clearing Corporation ("NSCC"). The application will be reviewed by ADI or
the. Company to determine that all information necessary to issue a Fund's
shares has been entered. Broker/Dealer hereby certifies that all of
Broker/Dealer customers' taxpayer identification numbers ("TIN") or social
security numbers ("SSN") furnished to ADI or the Company by Broker/Dealer
are correct and that ADI or the Company will not open an account without
Broker/Dealer providing the Company's Transfer Agent ("Transfer Agent")
with the customer's TIN or SSN.
(h) Broker/Dealer will comply with all applicable Federal and state laws and
with the rules and regulations of applicable regulatory agencies
thereunder. Broker/Dealer will not offer shares of any Fund for sale unless
such shares are duly registered under all the applicable securities laws,
rules and regulations.
(i) Any transaction in shares of a Fund shall be effected and evidenced by
book-entry on the records maintained by the transfer agent. A confirmation
statement evidencing transactions in a Fund's shares will be transmitted to
Broker/Dealer by the Transfer Agent.
2. Account Options.
(a) Broker/Dealer may appoint the Transfer Agent as Broker/Dealer's agent to
execute customers' transactions in a Fund's shares sold to Broker/Dealer by
ADI in accordance with the terms and provisions of any account, program,
plan, or service established or used by Broker/Dealer's customers and to
confirm each such transaction to Broker/Dealer's customers on Broker/Dealer
behalf, and at the time of the transaction, Broker/Dealer guarantees the
legal capacity of its customers so transacting in such Fund shares and any
co-owners of such Fund shares.
(b) Unless otherwise instructed by ADI or the Transfer Agent, Broker/Dealer
may instruct the Transfer Agent to register shares purchased in
Broker/Dealer name and account as nominee for Broker/Dealer's customers, in
which event all Prospectuses, proxy statements, periodic reports, and other
printed material will be sent to Broker/Dealer, and all confirmations and
other communications to shareholders will be transmitted to Broker/Dealer.
Broker/Dealer shall be responsible Jor forwarding such printed material,
confirmations, and communications, or the information contained therein, to
all customers for whom Broker/Dealer holds such shares as nominee. However,
the Transfer Agent or the Company shall be responsible for the reasonable
costs associated with Broker/Dealer forwarding such printed material,
confirmations, and communications and shall reimburse Broker/Dealer in full
for such costs. Broker/Dealer shall also be responsible for complying with
all reporting and tax withholding requirements with respect to the
customers for whose account Broker/Dealer is holding such shares. With
respect to customers other than such customers, Broker/Dealer shall provide
ADI with all information (including, without limitation, certification of
TINs and back-up withholding instructions) necessary or appropriate for ADI
to comply with any legal and regulatory reporting requirements.
(c) Accounts opened or maintained pursuant to the networking system of NSCC
will be governed by applicable NSCC rules and procedures, and any agreement
or other arrangement with ADI relating to networking.
(d) Broker/Dealer agrees to purchase Fund's shares from ADI or from
Broker/Dealer customers. If Broker/Dealer purchases from ADI, Broker/Dealer
agrees that all such purchases shall be made only: (a) to cover orders
already received by Broker/Dealer from its customers; (b) for shares being
acquired by Broker/Dealer's customers pursuant to either the exchange
privilege or the reinvestment privilege, as described in the then-current
Prospectus of a Fund; (c) for Broker/Dealer's own bona fide investment; or
(d) for investments by any Internal Revenue Service ("IRS") qualified plan
or other trust established for the benefit of Broker/Dealer's employees or
for investments in Individual Retirement Accounts established by
Broker/Dealer's employees, and if Broker/Dealer so advises ADI in writing
prior to any sale of shares pursuant to this subparagraph (d),
Broker/Dealer agrees to waive all Broker/Dealer concessions, if any, to all
sales of shares.If Broker/Dealer purchases shares from Broker/Dealer
customers, Broker/Dealer agrees not to purchase shares from Broker/Dealer
customers at a price lower than the applicable redemption price, determined
in the manner described in the then-current Prospectus. Broker/Dealer shall
not withhold placing customers' orders for shares so as to profit the
Broker/Dealer as a result of such withholding (e.g., to include, but not
limited to, a change in a Fund's net asset value from that used in
determining the offering price to Broker/Dealer's customers).
(e) ADI will accept Broker/Dealer's purchase orders only at the public
offering price applicable to each order, as determined in accordance with
the then-current Prospectus. ADI will not accept from Broker/Dealer a
conditional order. All orders redeeming any shares shall be executed in
accordance with Rule 22c-l of the 1940 Act. All orders are subject to
acceptance or rejection by ADI in its sole discretion. ADI reserves the
right, at its discretion and without notice to the Broker/Dealer, to
suspend sales or to withdraw the offering of a Fund's shares, in whole or
in part, or to make a limited offering of any Fund's shares. The minimum
and maximum dollar amounts for purchase of a Fund's shares (and any classes
thereto) for any shareholder shall be the applicable minimum or maximum
amount described in such Fund's then-current Prospectus and no order for
less or more than, as the case may be, such amount will be accepted
hereunder.
(f) The transmission of orders will be governed by instructions that ADI will
periodically issue to Broker/Dealer. Broker/Dealer must pay for Fund's
shares in "Federal Funds" and ADI must receive Broker/Dealer's payment on
or before the settlement date established in accordance with Rule l5c6-1
under the Securities Exchange Act of 1934. If ADI does not receive
Broker/Dealer's payment on or before such settlement date, ADI may, without
notice, cancel the sale, or, at ADI's option, sell a Fund's shares that
ordered back to the issuing
Fund. ADI will hold Broker/Dealer responsible for any loss suffered by ADI
or the issuing Fund as a result of Broker/Dealer's failure to make payment
as required.
(g) Broker/Dealer agrees to use the application provided with the Prospectus
as the means of placing a customer's order except for accounts opened or
maintained pursuant to the networking system of the National Securities
Clearing Corporation ("NSCC"). The application will be reviewed by ADI or
the. Company to determine that all information necessary to issue a Fund's
shares has been entered. Broker/Dealer hereby certifies that all of
Broker/Dealer customers' taxpayer identification numbers ("TIN") or social
security numbers ("SSN") furnished to ADI or the Company by Broker/Dealer
are correct and that ADI or the Company will not open an account without
Broker/Dealer providing the Company's Transfer Agent ("Transfer Agent")
with the customer's TIN or SSN.
(h) Broker/Dealer will comply with all applicable Federal and state laws and
with the rules and regulations of applicable regulatory agencies
thereunder. Broker/Dealer will not offer shares of any Fund for sale unless
such shares are duly registered under all the applicable securities laws,
rules and regulations.
(i) Any transaction in shares of a Fund shall be effected and evidenced by
book-entry on the records maintained by the transfer agent. A confirmation
statement evidencing transactions in a Fund's shares will be transmitted to
Broker/Dealer by the Transfer Agent.
2. Account Options.
(a) Broker/Dealer may appoint the Transfer Agent as Broker/Dealer's agent to
execute customers' transactions in a Fund's shares sold to Broker/Dealer by
ADI in accordance with the terms and provisions of any account, program,
plan, or service established or used by Broker/Dealer's customers and to
confirm each such transaction to Broker/Dealer's customers on Broker/Dealer
behalf, and at the time of the transaction, Broker/Dealer guarantees the
legal capacity of its customers so transacting in such Fund shares and any
co-owners of such Fund shares.
(b) Unless otherwise instructed by ADI or the Transfer Agent, Broker/Dealer
may instruct the Transfer Agent to register shares purchased in
Broker/Dealer name and account as nominee for Broker/Dealer's customers, in
which event all Prospectuses, proxy statements, periodic reports, and other
printed material will be sent to Broker/Dealer, and all confirmations and
other communications to shareholders will be transmitted to Broker/Dealer.
Broker/Dealer shall be responsible Jor forwarding such printed material,
confirmations, and communications, or the information contained therein, to
all customers for whom Broker/Dealer holds such shares as nominee. However,
the Transfer Agent or the Company shall be responsible for the reasonable
costs associated with Broker/Dealer forwarding such printed material,
confirmations, and communications and shall reimburse Broker/Dealer in full
for such costs. Broker/Dealer shall also be responsible for complying with
all reporting and tax withholding requirements with respect to the
customers for whose account Broker/Dealer is holding such shares. With
respect to customers other than such customers, Broker/Dealer shall provide
ADI with all information (including, without limitation, certification of
TINs and back-up withholding instructions) necessary or appropriate for ADI
to comply with any legal and regulatory reporting requirements.
(c) Accounts opened or maintained pursuant to the networking system of NSCC
will be governed by applicable NSCC rules and procedures, and any agreement
or other arrangement with ADI relating to networking.
3. Broker/Dealer Compensation.
(a) Broker/Dealer concession, if any, on Broker/Dealer's sales of shares of a
Fund will be offered as described in the then-current Prospectus or in the
applicable schedule of concessions issued by ADI and in effect at the time
of ADI sale to Broker/Dealer. Upon written notice to Broker/Dealer, ADI, or
a Fund, may change or discontinue any schedule of concessions, or issue a
new schedule. Broker/Dealer may be deemed to be an underwriter in
connection with sales by Broker/Dealer of shares of a Fund where
Broker/Dealer receives all or substantially all of the sales charge as set
forth in the then-current Prospectus and, therefore, Broker/Dealer may be
subject to applicable provisions of the Securities Act of 1933.
Compensation paid, if any, pursuant to a Plan is described in Agreement Fee
Schedule ("Fee Schedule") attached hereto and in such respective Fund's
then-current Prospectus.
(b) ADI is entitled to, if any, a contingent deferred sales charge ("CDSC") on
redemptions of applicable class of shares of a Fund, as described in the
then-current Prospectus.
(c) In the case of a Fund or class thereof which has adopted a Plan, the
Adviser may elect from time to time to make payments to Broker/Dealer as
provided under such Plan for such services, and without limitation, some or
all of the following: (i) answering inquiries regarding a Fund, processing
purchases and redemption transactions, assistance in changing account
designation and addresses; providing periodic statements, personal services
to investors, and/or other services related to the maintenance of
shareholder records and; (ii) services that ADI or Adviser reasonably may
request, to the extent permitted by applicable statute, rule, or regulation
to provide administrative and shareholder services in the promotion of a
Fund's shares. Any such payments shall be made in the amount and manner set
forth in the applicable Fee Schedule or in the then-current Prospectus. The
Fee Schedule may be discontinued or changed by the Adviser from time to
time and shall be in effect with respect to a Fund which has a Plan and so
long as such Fund(s)' Plan remains in effect. Notwithstanding the
foregoing, Servicer acknowledges that any compensation to be paid to the
Servicer by the Adviser from its own resources, including from investment
advisory fees received from the Funds, in connection with the sale and
distribution of the Funds and/or shareholder services.
(d) Broker/Dealer shall furnish to ADI, the Adviser or the Company, on behalf
of a Fund, such information in writing as shall reasonably be requested by
the Company's Board of Directors, trustees ("Company's Board") with respect
to the fees paid to Broker/Dealer pursuant to this Agreement.
(e) In the event that Rule 2830 of the NASD Conduct Rules precludes a Fund or
class thereof from imposing, or ADI from receiving, a sales charge (as
defined in Rule 2830) or any portion thereof, Broker/Dealer shall not be
entitled to any payments from ADI hereunder from the date that a Fund or
class thereof discontinues or is required to discontinue imposition of some
or all of its sales charges. If a Fund or class thereof resumes imposition
of some or all of its sales charge, Broker/Dealer will be entitled to
payments hereunder or as modified by ADI, if applicable.
(f) The Adviser may discontinue paying compensation to Broker/Dealer if, at
any time, (i) Broker/Dealer is not appropriately registered in all
capacities necessary to receive such compensation or (ii) Broker/Dealer
breaches any representation, warranty or covenant contained in this
Agreement, as determined by ADI or the Adviser in its sole discretion.
Notwithstanding the foregoing, Broker/Dealer shall not be entitled to any
compensation in
respect of a sale or provision of shareholder services to any investor if
the Adviser determines that another authorized selling agent of ADI is
primarily responsible for or should otherwise be credited with such sale or
such provision of shareholder services. In making this determination, the
Adviser will endeavor to act fairly. Any dispute regarding compensation
shall be conclusively resolved by the Adviser.
(g) If, within seven business days after confirmation by ADI of
Broker/Dealer's original purchase order for shares of a Fund, such shares
are repurchased by the issuing Fund or by AD! for the account of such Fund
or are tendered for redemption by the customer, Broker/Dealer shall
promptly refund to AD! the full discount retained by Broker/Dealer on the
original sale and any distribution and service payments made to
Broker/Dealer. Broker/Dealer shall refund to the Transfer Agent immediately
upon receipt the amount of any dividends or distributions paid to
Broker/Dealer as nominee for Broker/Dealer's customers with respect to
redeemed or repurchased Fund's shares to the extent that the proceeds of
such redemption or repurchase may include the dividends or distributions
payable on such shares. Broker/Dealer shall be notified by ADI of such
repurchase or redemption within ten days of such repurchase or redemption.
(h) The provisions of Distribution Agreement between the Company and ADI,
insofar as they relate to a Plan, are incorporated herein by reference. The
provisions under this Agreement, relating to a Plan, shall continue in full
force and effect only so long as the continuance of a Plan and the
provisions of this Agreement are approved at least annually by a vote of
the Company's Board, including a majority of the Company's Board who are
not interested persons of the Company and who have no direct or indirect
financial interest in the operation of the Plan or in any agreements
related to a Plan, cast in person at a meeting called for the purpose of
voting thereon.
(i) The provisions regarding Broker/Dealer compensation may be terminated by
the vote of a majority of the Company's Board who are not interested
persons of the Company and who have no direct or indirect financial
interest in the operation of a Plan or in any agreements related to a Plan,
or by a vote of a majority of a Fund's outstanding shares, on sixty (60)
days' written notice, without payment of any penalty. Such provisions will
be terminated also by any act that terminates this Agreement and shall
terminate automatically in the event of the assignment (as that term is
defined in the] 000 Xxx) of this Agreement unless agreed to in writing by
the parties.
After the effective date of any change in or discontinuance of any schedule
of concessions, distribution payments, or service payments, or th~
termination of a Plan, such concessions, distribution payments, or service
payments 'wil1 be allowable or payable to Broker/Dealer only in accordance
with such change, discontinuance, or termination. Broker/Dealer agrees that
Broker/Dealer will have no claim against ADI, the Adviser, the Company, or
a Fund by virtue of any such change, discontinuance, or termination. In the
event of any overpayment by ADI of any concession, distribution payment, or
service payment, Broker/Dealer will promptly remit such overpayment.
G) If there is a Plan, this Agreement's applicable provisions regarding
compensation or service payments have been adopted pursuant to Rule 12b-]
under the 1940 Act by the Fund's respective class that has adopted such
Plan.
4. Status as Financial Intermediaries.
(a) Broker/Dealer represents and warrants that Broker/Dealer is and will
remain a member in good standing of the FINRA, and agrees to abide by all
of its rules and regulations including its Rules of Conduct. Broker/Dealer
further agrees to comply with all applicable state and federal laws and
rules and regulations of regulatory agencies having jurisdiction. Reference
is hereby specifically made to Section 2830 of the Conduct Rules of the
FINRA, which is incorporated herein by reference. The termination of
Broker/Dealer's membership in FINRA or any breach of said Section 2830 will
immediately and automatically terminate this Agreement. Broker/Dealer
further represents that Broker/Dealer is qualified to act as a
broker/dealer in the states where Broker/Dealer transacts business.
Broker-Dealer further agrees that, in making any sales to purchasers within
the United States of securities acquired from ADJ or the Company,
Broker/Dealer will conform to the provisions of paragraphs (a) and (b) of
Rule 2420 of the FINRA's Conduct Rules.
(b) Broker/Dealer represents that Broker/Dealer is qualified to sell shares in
the various jurisdictions where it transacts business. Broker/Dealer
represents that it and all of its personnel involved in the activities
contemplated hereunder have all governmental, regulatory, and
self-regulatory registrations, approvals, memberships, and licenses
required to perform Broker/Dealer's obligations under this Agreement and to
receive compensation, if any, therefore, and Broker/Dealer will maintain
all relevant registrations, approvals, memberships, and licenses during the
term of this Agreement.
(c) Nothing in this Agreement shall cause Broker/Dealer to be ADI's partner,
employee, or agent, or give Broker/Dealer any authority to act for ADJ, the
Company, or a Fund. Neither ADJ nor the Company shall be liable for any of
Broker/Dealer's acts or obligations under this Agreement
5. Information Relating to the Funds.
(a) No person is authorized to make any representations concerning a Fund's
shares except those contained in such Fund's then-current Prospectus, and
in buying shares from ADJ or selling shares to ADI hereunder, Broker/Dealer
shall rely solely on the representations contained in the then-current
Prospectus. Upon Broker/Dealer's request, ADJ will furnish Broker/Dealer
with a reasonable number of copies of a Fund's then-current Prospectus(es)
and/or SAIs (including any supplements thereto).
(b) Broker/Dealer may not use any sales literature or advertising material
(including material disseminated through radio, television, or other
electronic media) concerning a Fund's shares, other than a Fund's
then-current Prospectus or such printed information that is given to
Broker/Dealer by ADJ, without first obtaining ADJ's written approval.
Broker/Dealer shall not distribute or make available to the general public
any printed information furnished by ADI which is marked "FOR INVESTMENT
ADVISER USE ONLY" or "FOR INVESTMENT PROFESSIONAL USE ONLY" or which
otherwise indicates that it is confidential or not intended to be
distributed to the general public.
6. Indemnification.
ADI and Broker/Dealer (each an "Indemnifying Party") will indemnify and hold the
other party and its directors/trustees, officers, employees, and agents harmless
from any claim, demand, loss, expense (including reasonable attorney's fees), or
cause of action resulting from the willful misconduct or negligence, as measured
by industry standards, of the Indemnifying Party, its
agents, and employees, in carrying out its obligations under this
Agreement. This provision will survive the termination of this Agreement.
7. Duration. This Agreement, with respect to each Plan, will continue in
effect for one year from its effective date, and thereafter will continue
automatically for successive annual periods; provided, however, that such
continuance is subject to termination at any time without penalty if a
majority of the Company's Directors trustees who are not interested persons
(as defined in the 1940 Act), or a majority of the outstanding shares of a
Fund, vote to terminate or not to continue a Plan. This Agreement, other
than with respect to a terminated Plan, will continue in effect from year
to year after its effective date, unless terminated as provided herein.
8. Amendment and Termination of Agreement. Either party to this Agreement may
terminate the Agreement without cause by giving the other party at least
thirty (30) days' written notice of its intention to terminate. This
Agreement will automatically terminate in the event of its assignment (as
defined in the 1940 Act). AD! may change or amend. any provision of this
Agreement by giving Broker/Dealer written notice of the change or
amendment.
9. Arbitration. In the event of a material dispute under this Agreement, such
dispute shall be settled by arbitration before arbitrators sitting in
Denver, Colorado, in accordance with the NASD's Code of Arbitration
Procedures in effect at the time of the dispute. The arbitrators shall act
by majority decision, and their award may allocate attorneys' fees and
arbitration costs between ADI and Broker/Dealer. The arbitrators' award
shall be final and binding between the parties, and such award may be
entered as a judgment in any court of competent jurisdiction.
10. Notices. All notices required or permitted to be given under this
Agreement shall be given in writing and delivered by personal delivery, by
postage prepaid mail, or by facsimile or a similar means of same day
delivery (with a confirming copy by mail). All notices to AD! and the
Adviser shall be given or sent to AD! at AD! offices located at 0000
Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attn: General Counsel. All
notices to Broker/Dealer shall be given or sent to Broker/Dealer at the
address specified by Broker/Dealer he.rein. Each party may change the
address to which notices shall be sent by giving notice to the other party
in accordance with this paragraph.
11. Client information.
a. Agreement to Provide Information. Broker/Dealer agrees to provide the
Fund, upon written request, the taxpayer identification number ("TIN"), the
Individual/International Taxpayer Identification Number ("ITIN"), or other
government-issued identifier ("GII"); if known, of any or all
Shareholder(s) of the account and the amount, date, name or other
identifier of any investment professional(s) associated with the
Shareholder(s) or account (if known), and transaction type (purchase,
redemption, transfer, or exchange) of every purchase, redemption, transfer,
or exchange of Shares held through an account maintained by the
Broker/Dealer during the period covered by the request.
(i) Period Covered by Request. Requests must set forth a specific period, not
to exceed 90 calendar days from the date of the request, for which
transaction information is sought. The Fund may request transaction
information older than 90 calendar days from the date of. the request as it
deems necessary to investigate compliance with policies established by the
Fund for the purpose of eliminating or reducing any dilution of the value
of the outstanding Shares issued by the Fund.
(ii) Form and Timing of Response.
(a) Broker/Dealer agrees to provide, promptly upon fequest of the Fund or its
designee, the requested information specified in Section II (a). If
requested by the Fund or its designee, Broker/Dealer agrees to use best
efforts to determine promptly whether any specific person about whom it has
received the identification and transaction information specified in
Section I I (a) is ,itself a financial intermediary ("Indirect
Intermediary") and, upon further request of the Fund or its designee,
promptly either (i) provide (or arrange to have provided) the information
set forth in Section I I (a) for those Shareholders who hold an account
with an Indirect Intermediary or (ii) restrict or prohibit the Indirect
Intermediary from purchasihg, in nominee name on behalf of other persons,
securities issued by the Fund. Broker/Dealer additionally agrees to inform
the Fund whether it plans to perform (i) or (ii).
(b) Responses required by this paragraph must be communicated in writing and
in a format mutually agreed upon by the parties.
(c) To the extent practicable, the format for any transaction information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
(iii) Limitations on Use of Information. The Fund agrees not to use the
information received for marketing or any other similar purpose without the
prior written consent of the Broker/Dealer.
b. Agreement to Restrict Xxxxxxx.Xxxxxx/Dealer agrees to execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Shares by a Shareholder that has been identified by the Fund
as having engaged in transactions of the Fund's Shares (directly or
indirectly through the Broker/Dealer's account) that violate policies
established or utilized by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding Shares issued by the
Fund.
(i) Form of Instructions. Instructions between the parties to restrict or
prohibit further purchases or exchanges of Fund Shares must include the
TIN, ITIN, or GII, if known, and the specific restriction(s) to be
executed. If the TIN, ITIN, or GII is not known, the instructions must
include an equivalent identifying number of the Shareholder(s) or
account(s) or other agreed upon information to which the instruction
relates.
(ii) Timing of Response. Broker/Dealer agrees to execute instructions as soon
as reasonably practicable, but not later than five business days after
receipt of the instructions by the Broker/Dealer.
(iii) Confirmation bv Broker/Dealer. Broker/Dealer must provide written
confirmation to the Fund that instructions have been executed.
Broker/Dealer agrees to provide confirmation as soon as reasonably
practicable, but not later than ten business days after the instructions
have been executed.
c. Definitions. For purposes of this Agreement:
(i) Pursuant to Section 11, and only Section 1 I herein, the term "Fund" also
includes the Fund's principal underwriter and transfer agent. The term does
not include any "excepted funds" as defined in SEC Rule 22c-2(b) under the
1940 Act.
(ii) The term "Shares" means the interest of Shareholders corresponding to the
redeemable securities of record issued by the Fund under the 1940 Act that
are held by the Broker/Dealer.
(iii) The term "Shareholder" means the beneficial owner of Shares, whether the
Shares are held directly or by the Broker/Dealer in nominee name.
(iv) The term "written" includes electronic writings and facsimile
transmissions.
(v) The term "Broker/Dealer" shall mean a "financial intermediary" as defined
in SEC Rule 22c-2.
(vi) The term "purchase" does not include automatic reinvestment of dividends.
(vii)The term "promptly" as used in Section II(a)(ii) shall mean as soon
as practicable but in no even later than 5 business days from the
Broker/Dealer's receipt of the request for information from the Fund or its
designee.
(d) Networked Level 3 Only Accounts The parties agree that in the event that
ADI or its designee has readily available on its systems individual
Shareholder information, that as is typically associated with fully
disclosed NSCC Network Level III positions, ADI or its designee will limit
information requested pursuant to Section 11 to those Shares that have been
identified as held in nominee or street by the Broker/Dealer and it further
agrees, in the case of an Indirect Intermediary to assist in obtaining for
ADI or its designee the necessary information to ensure-the Fund's
compliance with Rule 22c-2.
12. Anti-Money Laundering Program. Broker/Dealer hereby certifies that: (i) it
understands that pursuant to various U.S. regulations, it is required to
establish an anti-money laundering program, which satisfies the
requirements of Title III of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (the "USA Patriot Act"); (ii) Broker/Dealer has developed,
implemented, and will maintain such an anti-money laundering program,
including a customer identification program consistent with the rules under
sec. 326 of the USA Patriot Act, and wiII comply with all applicable laws
and regulations designed to guard against money laundering activities set
out in such program; (iii) Broker/Dealer will cooperate with ADI and
deliver information reasonably requested by ADI concerning shareholders
that purchased a Fund's shares sold by Broker/Dealer necessary for ADI or
the Company to comply with the USA Patriot Act; and (iv) Broker/Dealer will
notify ADI, in writing, if it is found, by its Compliance Officer,
independent anti-money laundering auditor, or any Federal, state, or
selfregulatory agencies, to be in violation of the USA Patriot Act, any
regulation implementing the USA Patriot Act, or its anti-money laundering
program.
Notwithstanding anything to the contrary, if Broker/Dealer is exempt from
the requirement to develop, implement, and maintain anti-money laundering
policies that comply with USA Patriot Act in which case Broker/Dealer
agrees to cooperate with AD! or the Company and deliver information
reasonably requested by ADI or the Company concerning shareholders that
purchased shares sold by Broker/Dealer necessary for ADI and the Company to
comply with either's internal policies, the USA Patriot Act and relevant
rules and regulations.
Broker/Dealer acknowledges that ADI or the Company may reject or refuse
orders for the sale of shares with respect to customers for which
Broker/Dealer serves as nominee if Broker/Dealer has not adopted and does
not implement anti-money laundering policies and procedures as required by
the USA Patriot Act.
13. Regulation S-P. In accordance with Regulation S-P, if non-public
personal information regarding customers/shareholders is disclosed to
either party in connection with this Agreement, the party receiving such
information will not disclose or use that information other than as
necessary to carry out the purposes of this Agreement. Any privacy notice
that Broker/Dealer delivers to customers/shareholders will comply with
Title V of the Xxxxx-Xxxxx-Xxxxxx Act and Regulations SP, as each may be
amended, and will notify customers that non-public personal information may
be provided to financial service providers such as security broker-dealers
or investment companies and as permitted by law. This provision will
survive the termination of this Agreement.
14. Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties hereto and supersedes all prior
agreements between the parties, whether oral or written, relating to the
sale of shares or any other subject covered by this Agreement.
15. Partial Invalidity. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule, or otherwise, the
remainder of the Agreement shall not be affected thereby. Furthermore, in
the event of any inconsistency between the Agreement and the then-current
Prospectus, the terms of the then-current Prospectus shall control.
16. Waiver. Failure of ADI the Adviser, or the Company to terminate this
Agreement upon the occurrence of any event set forth in this Agreement as a
cause for termination shall not constitute a waiver of the right to
terminate this Agreement at a later time on account of such occurrence or
any succeeding breach of the same.
17. Heading. The captions in this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions of this
Agreement.
18. Applicable Law. This Agreement shall be construed in accordance with the
laws of the state of Colorado, without giving effect to principles of
conflicts of law.
19. Effective Date. This Agreement shall become effective as of the date when
it is accepted and dated below by ADI
IN WITNESS WHEREOF, the Parties' authorized representatives have executed this
Agreement and represent that they have read and understood the obligations
herein and agree to be bound by the Agreement's terms and conditions
ACCEPTED AND AGREED:
/s/ Xxxxxxx X. Xxxxxx
Associate General Counsel/Chief Counsel
Address: Xxx Xxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxx X venue
Indianapolis. IN 46282 Indianapolis. IN 46204
NSCC Dealer #
NSCC Dealer Alpha Code
NSCC Clearing
Phone Number 000-000-0000
Fax Number
Date 10-13-2010
Mutual Fund Coordinator/Primary Contact Xxxx Xxxxx xxxx.xxxxx@xxxxxxxxxx.xxx
ALPS Distributors, Inc.
Name: /s/ Xxxx X. Xxxxx
Secretary
10-26-10
HENNSLER Asset Management, Inc.
/s/ Xxxxx X. Xxxxxx
Principal
SCHEDULE A
as of June 6, 2005
The following Fund(s) of the Company are available for distribution pursuant to
this Agreement: Henssler Equity Fund.
AGREEMENT FEE SCHEDULE
as of June 6, 2005
NAME OF FUND COMPENSATION
Hennsler Equity Fund 0.55%
In accordance with each Fund's then-current prospectus, all fees, if any, shall
be paid based on the average daily net asset value of outstanding shares held by
shareholders receiving services described in the Agreement. Such payments shall
be computed and paid quarterly. The determination of average daily net assets
shall be made at the close of each Business Day.
