Exhibit 5
NOMURA PACIFIC BASIN FUND, INC.
DISTRIBUTION AGREEMENT
AGREEMENT made as of the __day of __________, 1999 between NOMURA PACIFIC
BASIN FUND, INC., a Maryland corporation (the "Corporation"), and NOMURA
SECURITIES INTERNATIONAL, INC., a New York corporation (the "Distributor").
W I T N E S S E T H:
WHEREAS, the Corporation is registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), as an open-end investment
company, and it is affirmatively in the interest of the Corporation to offer its
shares for sale continuously; and
WHEREAS, the Distributor is a securities firm engaged in the business of
selling shares of investment companies either directly to purchasers or through
other securities dealers; and
WHEREAS, the Corporation and the Distributor wish to enter into an
agreement with each other with respect to the continuous offering of the shares
of common stock of the Corporation which may be offered in one or more series
(each a "Fund") consisting of one or more classes (the "Classes") of shares (the
"Shares").
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Corporation hereby appoints
the Distributor as its agent to offer to the public Shares of the Corporation,
as described and set forth in one or more exhibits to this Agreement.
Section 2. Offering of Shares of the Corporation.
a. The Corporation will commence an offering of its Shares, and thereafter
the Distributor shall offer those Shares of the Corporation necessary to fill
unconditional orders for such Shares placed with the Distributor by eligible
investors or securities dealers. Investors eligible to purchase Shares shall be
those persons so identified in the currently effective prospectus and statement
of additional information of each Fund (the "prospectus" and "statement of
additional information," respectively) under the Securities Act of 1933, as
amended (the "Securities Act"), relating to such Shares.
b. The Shares are to be offered by the Distributor to investors at the
public offering price, as set forth in Section 2(c) hereof, and by securities
dealers having agreements with the Distributor (the "selected dealers") upon the
terms and conditions set forth in Section 6 hereof.
c. The public offering price(s) of the Shares, i.e., the price per Share
at which the Distributor or selected dealers may offer Shares to the public,
shall be the public offering price as set forth in the prospectus and statement
of additional information relating to such Shares, but not to exceed the net
asset value, plus any sales charge which may be approved by the Board of
Directors of Corporation and set forth in the prospectus. Shares may be sold to
certain Directors, officers and employees of the Corporation and its affiliates,
and to certain other persons described in the prospectus and statement of
additional information, without a sales charge or at a reduced sales charge,
upon terms and conditions set forth in the prospectus and statement of
additional information relating to such Shares. If the public offering price
does not equal an even cent, the public offering price may be adjusted to the
nearest cent. All payments to the Corporation hereunder shall be made in the
manner set forth in Section 2(f).
d. The net asset value of Shares shall be determined by the Corporation or
any agent of the Corporation in accordance with the method set forth in the
prospectus and statement of additional information of the Corporation and
guidelines established by the Directors.
e. The Corporation shall have the right to suspend the sale of its Shares
at times when redemption is suspended pursuant to the conditions set forth in
Section 3(b) hereof. The Corporation shall also have the right to suspend the
sale of its Shares if trading on the New York Stock Exchange shall have been
suspended, if a banking moratorium shall have been declared by Federal or New
York authorities, or if there shall have been some other event, which, in the
judgment of the Corporation, makes it impracticable or inadvisable to sell the
Shares.
f. The Corporation, or any agent of the Corporation designated in writing
by the Corporation, shall be promptly advised of all purchase orders for Shares
received by the Distributor. Any order may be rejected by the Corporation;
provided, however, that the Corporation will not arbitrarily or without
reasonable cause refuse to accept or confirm orders for the purchase of Shares.
The Corporation (or its agent) will confirm orders upon their receipt, will make
appropriate book entries and, upon receipt by the Corporation (or its agent) of
payment therefor, will deliver deposit receipts or certificates for such Shares
pursuant to the instructions of the Distributor. Payment shall be made to the
Corporation in New York Clearing House funds. The Distributor agrees to use its
commercially reasonable best efforts to cause such payment and such instructions
to be delivered promptly to the Corporation (or its agent). In the event that
payment is not received after an order is accepted and Shares have been issued,
and payment has not been received from the selected dealer that placed the
order, the Distributor agrees that it will be responsible for any resulting loss
suffered by the Corporation. Unless the Distributor and the Corporation agree
otherwise in writing, no securities dealer may serve as a selected dealer for
the Corporation unless such dealer is a member in good standing of the National
Securities Clearing Corporation (the "NSCC").
Section 3. Repurchase or Redemption of Shares by the Corporation.
a. Any of the outstanding Shares may be tendered for redemption at any
time, and the Corporation agrees to repurchase or redeem the Shares so tendered
in accordance with its obligations as set forth in its Articles of
Incorporation, as amended from time to time, and in accordance with the
applicable provisions set forth in the prospectus and statement of additional
information. The price to be paid to redeem or repurchase the Shares shall be
equal to the net asset value calculated in accordance with the provisions of
Section 3(e) hereof, less any contingent deferred sales charge ("CDSC"),
redemption fee or other charge(s), if any, set forth in the prospectus and
statement of additional information relating to such Shares. All payments by the
Corporation hereunder shall be made in the manner set forth below. The
redemption or
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repurchase by the Corporation of any of the Shares purchased through the
Distributor will not affect the sales charge secured by the Distributor or any
selected dealer in the course of the original sale except that, consistent with
the requirements of Section 2830(h) of the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD"), if (i) any Shares sold by
the Distributor are tendered for redemption or repurchase within seven business
days after the date of the confirmation of the original purchase, or (ii) the
Distributor is notified that shares sold by a selected dealer have been tendered
for redemption or repurchased within seven business days after the date of the
confirmation of the original purchase, the Distributor shall forthwith refund to
the applicable Fund the Distributor's share of the sales charges on the original
sale plus the full concession, if any, allowed to the selected dealer on the
original sale and refunded to the Distributor.
The Corporation shall pay the total amount of the redemption price as
defined in the above paragraph in New York Clearing House funds on or before the
seventh business day subsequent to its having received the notice of redemption
in proper form. The proceeds of any redemption of shares shall be paid by the
Corporation as follows: (i) any applicable CDSC shall be paid to the
Distributor, and (ii) the balance shall be paid to or for the account of the
shareholder, in each case in accordance with the applicable provisions of the
prospectus and statement of additional information.
b. Redemption of Shares or payment may be suspended at times when the New
York Stock Exchange is closed, when trading on said Exchange is suspended, when
trading on said Exchange is restricted, when an emergency exists as a result of
which disposal by the Corporation of securities owned by it is not reasonably
practicable or it is not reasonably practicable for the Corporation fairly to
determine the value of its net assets, or during any other period when the
Securities and Exchange Commission, by order, so permits.
Section 4. Duties of the Corporation.
a. The Corporation shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of Shares of the
Corporation, and this information shall include, upon request by the
Distributor, one certified copy of all financial statements prepared for the
Corporation by independent public accountants. The Corporation shall make
available to the Distributor such number of copies of the prospectus and
statement of additional information as the Distributor shall reasonably request.
b. The Corporation shall take, from time to time, but subject to any
necessary approval of the shareholders, all necessary action to fix the number
of authorized Shares and such steps as may be necessary to register the same
under the Securities Act, to the end that there will be available for sale such
number of Shares as reasonably may be expected to be offered through the
Distributor.
c. The Corporation shall use its best efforts to qualify and maintain the
qualification of an appropriate number of its Shares for sale under the
securities laws of such states as the Distributor and the Corporation may
approve. Any such qualification may be withheld, terminated or withdrawn by the
Corporation at any time in its discretion. As provided in Section
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8(c) hereof, the expense of qualification and maintenance of qualification shall
be borne by the Corporation. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be required by the
Corporation in connection with such qualification.
d. The Corporation will furnish, in reasonable quantities upon request by
the Distributor, copies of annual and interim reports of the Corporation.
Section 5. Duties of the Distributor.
a. The services of the Distributor to the Corporation hereunder are not to
be deemed exclusive, and nothing herein contained shall prevent the Distributor
from entering into like arrangements with other investment companies so long as
the performance of its obligations hereunder is not impaired thereby. It is
understood and agreed that the Distributor shall act as agent of the Corporation
under this Agreement, and that the Distributor is in no way responsible for the
Corporation's conduct or for any of its acts or omissions in connection
therewith.
b. Neither the Distributor nor any selected dealer, as defined in Section
6 hereof, nor any other person is authorized by the Corporation to give any
information or to make any representations, other than those contained in the
registration statement or related prospectus and statement of additional
information and any sales literature specifically approved by the Corporation
(including, without limitation, information provided by the Corporation under
Section 4(a) of this Agreement).
c. The Distributor shall adopt and follow procedures for the confirmation
of sales to investors and selected dealers, the collection of amounts payable by
investors and selected dealers on such sales, and the cancellation of unsettled
transactions, as may be necessary to comply with the requirements of the NASD,
as such requirements may from time to time exist.
Section 6. Selected Dealer Agreements. The Distributor shall have the
right to enter into dealer agreements with selected dealers of its choice
(providing that they are members in good standing of the NSCC) for the sale of
Shares and fix therein the portion of the sales charge which may be allocated to
the selected dealers; provided that the Corporation shall approve the forms of
agreements with selected dealers and the dealer compensation set forth therein.
The form of agreement with selected dealers to be used in the continuous
offering of the Shares is attached hereto as Exhibit A.
Section 7. Payment of Expenses.
a. The Corporation shall bear all costs and expenses of the Corporation,
including fees and disbursements of its counsel and auditors, in connection with
the preparation and filing of any required registration statements and/or
prospectuses and statements of additional information under the Investment
Company Act, the Securities Act, and all amendments and supplements thereto, and
preparing and mailing annual and interim reports and proxy materials to
shareholders (including, but not limited to, the expense of setting in type any
such registration statements, prospectuses, statements of additional
information, annual or interim reports or proxy materials).
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b. The Distributor shall be responsible for any payments made to selected
dealers as reimbursement for their expenses associated with payments of sales
commissions to financial consultants. In addition, after the prospectuses,
statements of additional information and annual and interim reports have been
prepared and set in type, the Distributor shall bear the costs and expenses of
printing and distributing any copies thereof which are to be used in connection
with the offering of Shares to selected dealers or investors pursuant to this
Agreement. The Distributor shall bear the costs and expenses of preparing,
printing and distributing any other literature used by the Distributor or
furnished by it for use by selected dealers in connection with the offering of
the Shares to the public and any expenses of advertising incurred by the
Distributor in connection with such offering. It is understood and agreed that
so long as a Distribution Plan pursuant to Rule 12b-1 under the Investment
Company Act relating to a Class of Shares remains in effect, any expenses
incurred by the Distributor hereunder in connection with account maintenance
activities relating to such Shares may be paid from amounts recovered by the
Distributor from the Corporation under such plan.
c. The Corporation shall bear the cost and expenses of qualification of
the Shares for sale pursuant to this Agreement and, if necessary or advisable in
connection therewith, of qualifying the Corporation as a broker or dealer in
such states of the United States or other jurisdictions as shall be selected by
the Corporation and the Distributor pursuant to Section 4(c) hereof and the cost
and expenses payable to each such state or jurisdiction for continuing
qualification therein until the Corporation decides to discontinue such
qualification pursuant to Section 4(c) hereof.
Section 8. Indemnification and Contribution.
a. The Corporation shall indemnify and hold harmless the Distributor and
each person, if any, who controls the Distributor against any loss, liability,
claim, damage or expense (including the cost of investigating or defending any
alleged loss, liability, claim, damage or expense and counsel fees incurred in
connection therewith), as incurred, which may be based upon the Securities Act,
or on any other statute or at common law, on the ground that the registration
statement or related prospectus and statement of additional information, as from
time to time amended and supplemented, or an annual or interim report to
shareholders of the Corporation, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, unless such statement or
omission was made in reliance upon, and in conformity with, information
furnished to the Corporation in writing in connection therewith by the
Distributor specifically for use therein; provided, however, that in no case (i)
is the indemnity of the Corporation in favor of the Distributor and any such
controlling persons to be deemed to protect such Distributor or any such
controlling persons thereof against any liability to the Corporation or its
security holders to which the Distributor or any such controlling persons would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of their duties or by reason of the reckless
disregard of their obligations and duties under this Agreement; or (ii) is the
Corporation to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Distributor or any such
controlling persons, unless the Distributor or such
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controlling persons, as the case may be, shall have notified the Corporation in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon the
Distributor or such controlling persons (or after the Distributor or such
controlling persons shall have received notice of such service on any designated
agent), but failure to notify the Corporation of any such claim shall not
relieve it from any liability which it may have to the person against whom such
action is brought otherwise than on account of its indemnity agreement contained
in this paragraph. The Corporation will be entitled to participate at its own
expense in the defense or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but if the Corporation elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to, and in the sole discretion of, the Distributor or such
controlling person or persons, defendant or defendants in the suit. In the event
the Corporation elects to assume the defense of any such suit and retain such
counsel, the Distributor or such controlling person or persons, defendant or
defendants in the suit shall bear the fees and expenses of any additional
counsel retained by them (other than local counsel), but in case the Corporation
does not elect to assume the defense of any such suit, it will reimburse the
Distributor or such controlling person or persons, defendant or defendants in
the suit, for the reasonable fees and expenses of any counsel retained by them.
The Corporation shall promptly notify the Distributor of the commencement of any
litigation or proceedings against the Corporation, any Fund or Class or any of
the Corporation's officers or Directors in connection with the issuance or sale
of any of the Shares.
b. The Distributor shall indemnify and hold harmless the Corporation and
each of its Directors and officers and each person, if any, who controls the
Corporation against any loss, liability, claim, damage or expense described in
the foregoing indemnity contained in subsection (a) of this Section, but only
with respect to statements or omissions made in reliance upon, and in conformity
with, information furnished to the Corporation in writing by the Distributor
specifically for use in the registration statement or related prospectus and
statement of additional information, as from time to time amended, or the annual
or interim reports to shareholders. In case any action shall be brought against
the Corporation or any person so indemnified, in respect of which indemnity may
be sought against the Distributor, the Distributor shall have the rights and
duties given to the Corporation, and the Corporation and each person so
indemnified shall have the rights and duties given to the Distributor, by the
provisions of subsection (a) of this Section 8.
c. If the indemnification provided for in this Section 8 is unavailable
to, or insufficient to, hold harmless an indemnified party under subsection (a)
or (b) of this Section 8 in respect of any losses, claims, damages, liabilities
or expenses referred to therein, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by each indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect
the relative benefits received by the Corporation on the one hand and the
Distributor on the other hand from the offering of the Shares. The relative
benefits received by the Corporation on the one hand and the Distributor on the
other hand shall be deemed to be in the same proportion as the total proceeds
from the offering of the Shares to which the losses, claims, damages,
liabilities or expenses relate received by the Corporation bear to the sales
charges retained by the Distributor in connection with the sale of such Shares.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in subsections (a) and (b) of this Section
8, any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending
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any such action or claim. Notwithstanding the foregoing, in no event will the
Distributor be liable for an amount in excess of the portion of the front-end
sales charge retained by the Distributor on the sale of the Shares which gave
rise to the action.
Section 9. Standard of Care. Except to the extent a more stringent
standard is required by the Investment Company Act or the rules, regulations or
interpretations thereunder, the Distributor shall not be liable to the
Corporation for any act or omission by the Distributor except for acts or
omissions involving willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties imposed by this Agreement.
Section 10. Duration and Termination of this Agreement. This Agreement
shall become effective as of the date first above written and shall remain in
force for two years from such date and thereafter, but only for so long as such
continuance is specifically approved at least annually by (i) the Directors or
by the vote of a majority of the outstanding voting securities of the
Corporation and (ii) by the vote of a majority of those Directors who are not
parties to this Agreement or interested persons of any such party cast in person
at a meeting called for the purpose of voting on such approval.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Directors or by vote of a majority of the outstanding voting
securities of the Corporation, or by the Distributor, on sixty (60) days'
written notice to the other party. This Agreement shall automatically terminate
in the event of its assignment.
The terms "vote of a majority of the outstanding voting securities",
"assignment", "affiliated person" and "interested person", when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act.
Section 11. Amendments of this Agreement. This Agreement may be amended by
the parties only if such amendment is specifically approved by (i) the Directors
or by the vote of a majority of outstanding voting securities of the Corporation
and (ii) by the vote of a majority of those Directors of the Corporation who are
not parties to this Agreement or interested persons of any such party cast in
person at a meeting called for the purpose of voting on such approval.
Section 12. Governing Law. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of New York
as at the time in effect and the applicable provisions of the Investment Company
Act. To the extent that the applicable law of the State of New York, or any of
the provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
NOMURA PACIFIC BASIN FUND, INC.
By ________________________________
Name:
Title:
NOMURA SECURITIES INTERNATIONAL, INC.
By ________________________________
Name:
Title:
8
NOMURA SECURITIES INTERNATIONAL, INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dealer Agreement
Ladies and Gentlemen:
We act as Distributor for the open-end investment companies (hereinafter
referred to collectively as the "Funds" and individually as a "Fund") that are
or will be series of NOMURA PACIFIC BASIN FUND, INC. (the "Corporation"), and
act as principal underwriter, as defined in the Investment Company Act of 1940,
as amended (the "Investment Company Act"), for such Funds. We hereby invite you
to act as dealer to distribute shares of the Funds, as a member of the
Corporation's selling group (the "Selling Group"), on the following terms:
1. NASD Membership and Broker-Dealer Registration. This agreement (the
"Agreement") is conditioned upon your representation and warranty that you are a
member of the National Association of Securities Dealers, Inc. (the "NASD") and
that you will continue to maintain membership in the NASD, and that you are
registered as a broker-dealer under the Securities Exchange Act of 1934, as
amended. You agree to abide by the rules and regulations of the Securities and
Exchange Commission and the NASD, including, without limitation, Section 2830 of
the NASD's Conduct Rules, all of which are incorporated herein as if set forth
in full. You and we further understand and agree that you will not be entitled
to any compensation during any period in which you have been suspended or
expelled from membership in the NASD.
2. Offering Procedures. You and we understand and agree that you will
offer and sell shares of a Fund only in accordance with the terms and conditions
of that Fund's then current prospectus, statement of additional information and
any authorized supplemental material supplied by us, and no person is authorized
to make any representation relating to the shares of any Fund, except those
contained in the Fund's then current prospectus, statement of additional
information or any authorized supplemental material supplied by us. Additional
copies of a Fund's then current prospectus and statement of additional
information are and will be available on written request. You and we further
understand and agree that you will use your best efforts in the development and
promotion of sales of shares of a Fund or Funds, and you will be responsible for
the proper instruction and training of all sales personnel employed by you in
order that the shares of the Funds will be offered in accordance with the terms
and conditions of this Agreement and all applicable laws, rules and regulations.
3. Order Procedures. Orders received from you will be accepted only at the
public offering price applicable to each order, as described in the current Fund
prospectus at the time of
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the acceptance of the order. Procedures relating to the handling of orders will
be subject to instructions which we shall forward from time to time to you. All
orders are subject to acceptance or rejection by the Corporation in its sole
discretion. No conditional order will be accepted on any basis other than a
definite price. You and we understand and agree that you are acting as agent of
the Corporation and the Funds under this Agreement and you are in no way
responsible for the manner of our performance or for any of our acts or
omissions in connection therewith.
You agree to place orders received from your customers as soon as
practicable after your receipt of such orders. You further agree that you will
not withhold placement of orders in order to profit from such withholding; e.g.,
by a change in the net asset value from that used in determining the public
offering price to your customers.
4. Sales Charges and Dealer Concessions. You and we agree that the
applicable sales charge (whether assessed on a front-end or deferred basis) and
dealer concession pertaining to any sale of Fund shares will be in an amount as
set forth in the then current prospectus of that Fund. Additionally, you and we
agree that the applicable sales charge and dealer concession pertaining to sales
of any Fund shares pursuant to a right of accumulation, a letter of intention,
or other circumstance permitting a reduction or waiver of any applicable sales
charge or dealer concession will be in an amount as set forth in the then
current prospectus of such Fund.
5. Rule 12b-1 Plan Payments. The provisions of this Paragraph 5 are
applicable to each of the Funds which have adopted or which may, in the future,
adopt a plan or plans pursuant to Rule 12b-1 under the Investment Company Act
(each a "Plan"). With respect to each such Fund whose shares are sold pursuant
to this Agreement:
a. The provisions of this Paragraph 5 have been approved by a
majority of the Directors of the Fund, including a majority of the
Directors who are not interested persons of the Fund and who have no
direct or indirect financial interest in the operation of any Plan
or any of its related agreements (the "non-interested Directors"),
cast in person at a meeting called for the purpose of voting
thereon. Such approval included a determination that in the exercise
of reasonable business judgment and in light of their fiduciary
duties, there is a reasonable likelihood that the Plan will benefit
the Fund and its shareholders whose shares are subject to that Plan.
b. The Plan has been approved by a vote of at least a majority of
the Fund's outstanding voting securities, as defined in the
Investment Company Act, which securities are subject to that Plan.
c. As agent of each such Fund, we agree to pay you, or to arrange
for payment to you, pursuant to the Fund's applicable Plan.
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d. You shall furnish us (or our designee) and the relevant Fund with
such information as shall reasonably be requested by the Directors
of the Fund with respect to the fees paid to you pursuant to this
Paragraph 5.
e. You understand and agree that a written report of the amounts
expended under the Plan by us, including any payments made to you,
and the purposes for which such expenditures were made, will be
furnished to the Directors of the Fund, for their review, on a
quarterly basis.
f. The provisions of this Paragraph 5 may be terminated by the vote
of a majority of the non-interested Directors, or by a vote of a
majority of the Fund's outstanding shares, on sixty (60) days'
written notice without payment of any penalty. Such provisions will
be terminated by any act which terminates either the Corporation's
Distribution Agreement with us or this Dealer Agreement and shall
terminate immediately in the event of the assignment, as that term
is defined in the Investment Company Act, of this Dealer Agreement.
g. The provisions of the Distribution Agreement between the
Corporation, on behalf of the Funds, and us, insofar as they relate
to any Plan, are incorporated herein by reference. The provisions of
this Paragraph 5 shall continue in full force and effect only so
long as the continuance of the relevant Plan and these provisions
are approved at least annually by a vote of the Directors, including
a majority of the non-interested Directors, cast in person at a
meeting called for the purpose of voting thereon.
6. Required Payment for Shares. Payment for shares of a Fund sold through
you shall be made on or before the settlement date specified in our confirmation
by federal funds wire or by check payable to "Nomura Pacific Basin Fund, Inc.",
c/o State Street Bank and Trust Company, X.X. Xxx 0000, Xxxxxx, XX 00000-0000,
telephone number 0-000-000-0000, transfer agent for the Corporation (the
"Transfer Agent"). The Corporation has reserved the right to delay payment of
redemption proceeds until the earlier of (i) seven (7) days from the date of
payment by wire or check of the purchase price of the Shares being redeemed or
(ii) the date the Corporation receives notification from the Transfer Agent such
wire is received or such check has cleared. If such payment for Shares is not
received, we and the Corporation reserve the right, without notice, forthwith
either to cancel the sale, or, at our option, to sell the shares ordered back to
that Fund, and in either case, we may hold you responsible for any loss,
including loss of profit, suffered by us or by that Fund resulting from your
failure to make payment as aforesaid.
7. Redemption of Shares Within Seven Days of Purchase. If any shares sold
through you under the terms of this Agreement are repurchased or liquidated by a
Fund, or are tendered for liquidation by a Fund, within seven (7) business days
after confirmation of the original order, then, consistent with the requirements
of Section 2830(h) of the NASD's Conduct Rules, you will forthwith refund to the
applicable Fund your share of the sales charges on the original sale, and we
will forthwith refund to that Fund our share of the full concession allowed to
us on the
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original sale. You will notify us of such repurchase or liquidation within ten
(10) days from the day on which written redemption requests and, if applicable,
share certificates are delivered to us or to the Fund.
8. Limitation on Authority as Selected Dealer. You and we understand and
agree that, except as expressly provided in this Agreement, in no transaction
will you have any authority to take any action or make any representation
binding upon the Corporation, any Fund, us or any other member of the Selling
Group.
9. Funds Offering Multiple Classes of Shares. With respect to Funds
offering multiple classes of shares subject to differing sales charges, you and
we understand and agree that you are solely responsible for the recommendation
by your sales personnel to your customers of the purchase or sale of shares of
any class of shares of any Fund and the suitability of such purchase or sale for
the customer involved.
10. State Securities Qualification. You will not offer shares of any Fund
for sale in any state where such Fund is not qualified for sale under the blue
sky laws and regulations of such state or where you are not qualified to act as
a dealer, except for states in which the Fund or you are exempt from
qualification.
11. Taxpayer Identification Numbers. In order to enable the implementation
of any required backup withholding, you agree to obtain any taxpayer
identification number certification from your customers required by the Internal
Revenue Code and to provide the Transfer Agent with timely written notice of any
failure to obtain such certification.
12. Amendments. The Corporation reserves the right in its discretion and
we reserve the right, in our discretion and without notice to you or to any
members of the Selling Group, to suspend sales of any Fund, to withdraw the
offering of any Fund, to change the offering price of any Fund, or to amend,
modify or cancel this Agreement and concessions, discounts or commissions at any
time payable or allowable hereunder (including, without limitation, concessions
or commissions on future periodic investments or reinvestments). This Agreement
supersedes any prior agreement between us regarding these shares.
13. Termination. This Agreement may be terminated by either of us, at any
time, upon 30 days' written notice.
14. Communications. All communications will be sent to us at our offices
at Two World Financial Center, New York, New York 10281-1198, Attn:
____________________________. Any notice to you will be duly given if mailed or
telegraphed to you at the address shown on this Agreement.
15. Effectiveness. This Agreement will become effective as of the date it
is executed and dated by you below.
A-4
16. Governing Law. This Agreement and all the rights and obligations of
the parties hereunder will be governed by and construed under the laws of the
State of New York.
NOMURA SECURITIES INTERNATIONAL, INC.
Dated: _____________ By:______________________________________
Name:
Title:
Agreed and Accepted:
Dated: _____________ ______________________________________
Firm Name
By:______________________________________
Authorized Signature
Print Name________________________
Title_____________________________
Address___________________________
Insurance Company? __________________________________
City State Zip Code
|_|yes |_|no
__________________________________
Telephone
__________________________________
NASD Broker/Dealer No.
__________________________________
Clear Trades through
Broker/Dealer
A-5
NOMURA PACIFIC BASIN FUND, INC.
Pacific Basin Portfolio
Class A Shares
The following provisions are hereby incorporated and made part of the
Distribution Agreement dated ______________, 1999, between Nomura Pacific Basin
Fund, Inc. (the "Corporation") and Nomura Securities International, Inc. (the
"Distributor") with respect to the above-designated class of shares (the
"Class"):
1. The Corporation hereby appoints the Distributor to engage in activities
principally intended to result in the sale of shares of the Class (the
"Shares"). Pursuant to this appointment, the Distributor is authorized to
select a group of dealers (the "selected dealers") to offer Shares at the
current offering price thereof as described and set forth in the
prospectus and statement of additional information of the Corporation
relating to such Shares.
2. During the term of this Agreement, the Corporation will pay the
Distributor for services pursuant to this Agreement, a monthly fee
computed at the annual rate of 1/4 of 1% of the average daily net asset
value of the Shares held during the month. For the month in which this
Agreement becomes effective or terminates, there shall be an appropriate
proration of any fee payable on the basis of the number of days that the
Agreement is in effect during the month.
3. The Distributor may from time to time and for such periods as it deems
appropriate reduce its compensation to the extent the Class expenses
exceed such lower expense limitation as the Distributor may, by notice to
the Corporation, voluntarily declare to be effective.
4. The Distributor will enter into separate written agreements with
various selected dealers, a form of which is attached to the
Distribution Agreement as Exhibit A, to provide certain of the services
set forth in Paragraph 1 herein. The Distributor, in its sole
discretion, may pay selected dealers a periodic fee in respect of
Shares owned from time to time by their clients or customers. The
schedules of such fees and the basis upon which such fees will be paid
shall be determined from time to time by the Distributor in its sole
discretion.
5. The Distributor will prepare and deliver, or arrange for the preparation
and delivery of, reports to the Board of Directors of the Corporation on a
quarterly basis showing amounts expended hereunder, including amounts paid
to selected dealers, if any, and the purpose for such expenditures.
B-1
In consideration of the mutual covenants set forth in the Distribution
Agreement, each party executes and delivers this Exhibit with respect to the
above-designated Class as of the ____ day of _______, 1999.
NOMURA PACIFIC BASIN FUND, INC.
By:_____________________________________
Name:
Title:
NOMURA SECURITIES INTERNATIONAL, INC.
By:_____________________________________
Name:
Title:
B-2
NOMURA PACIFIC BASIN FUND, INC.
Pacific Basin Portfolio
Class B Shares
The following provisions are hereby incorporated and made part of the
Distribution Agreement dated _______________, 1999, between Nomura Pacific
Basin Fund, Inc. (the "Corporation") and Nomura Securities International,
Inc. (the "Distributor") with respect to the above-designated class of shares
(the "Class"):
1. The Corporation hereby appoints the Distributor to engage in activities
principally intended to result in the sale of shares of the Class (the
"Shares"). Pursuant to this appointment, the Distributor is authorized to
select a group of dealers (the "selected dealers") to offer Shares at the
current offering price thereof as described and set forth in the
prospectus and statement of additional information of the Corporation
relating to such Shares.
2. During the term of this Agreement, the Corporation will pay the
Distributor for services pursuant to this Agreement, a monthly fee
computed at the annual rate of 1% of the average daily net asset value of
the Shares held during the month. For the month in which this Agreement
becomes effective or terminates, there shall be an appropriate proration
of any fee payable on the basis of the number of days that the Agreement
is in effect during the month.
3. The Distributor may from time to time and for such periods as it deems
appropriate reduce its compensation to the extent the Class expenses
exceed such lower expense limitation as the Distributor may, by notice to
the Corporation, voluntarily declare to be effective.
4. The Distributor will enter into separate written agreements with
various selected dealers, a form of which is attached to the
Distribution Agreement as Exhibit A, to provide certain of the services
set forth in Paragraph 1 herein. The Distributor, in its sole
discretion, may pay selected dealers a periodic fee in respect of
Shares owned from time to time by their clients or customers. The
schedules of such fees and the basis upon which such fees will be paid
shall be determined from time to time by the Distributor in its sole
discretion.
5. The Distributor will prepare and deliver, or arrange for the preparation
and delivery of, reports to the Board of Directors of the Corporation on a
quarterly basis showing amounts expended hereunder, including amounts paid
to selected dealers, if any, and the purpose for such expenditures.
C-1
In consideration of the mutual covenants set forth in the Distribution
Agreement, each party executes and delivers this Exhibit with respect to the
above-designated Class as of the ____ day of ________, 1999.
NOMURA PACIFIC BASIN FUND, INC.
By:_____________________________________
Name:
Title:
NOMURA SECURITIES INTERNATIONAL, INC.
By:_____________________________________
Name:
Title:
C-2
NOMURA PACIFIC BASIN FUND, INC.
Pacific Basin Portfolio
Class Z Shares
The following provisions are hereby incorporated and made part of the
Distribution Agreement dated _______________, 1999, between Nomura Pacific Basin
Fund, Inc. (the "Corporation") and Nomura Securities International, Inc. (the
"Distributor") with respect to the above-designated class of shares (the
"Class"):
1. The Corporation hereby appoints the Distributor to engage in activities
principally intended to result in the sale of shares of the Class (the
"Shares"). Pursuant to this appointment, the Distributor is authorized to
select a group of dealers (the "selected dealers") to offer Shares at the
current offering price thereof as described and set forth in the
prospectus and statement of additional information of the Corporation
relating to such Shares.
2. The Distributor will enter into separate written agreements with
various selected dealers, a form of which is attached to the
Distribution Agreement as Exhibit A, to provide certain of the services
set forth in Paragraph 1 herein. The Distributor, in it sole
discretion, may pay selected dealers a periodic fee in respect of
Shares owned from time to time by their clients or customers. The
schedules of such fees and the basis upon which such fees will be paid
shall be determined from time to time by the Distributor in its sole
discretion.
In consideration of the mutual covenants set forth in the Distribution
Agreement, each party executes and delivers this Exhibit with respect to the
above-designated Class as of the ____ day of __________, 1999.
NOMURA PACIFIC BASIN FUND, INC.
By:_____________________________________
Name:
Title:
NOMURA SECURITIES INTERNATIONAL, INC.
By:_____________________________________
Name:
Title:
D-1
