EXHIBIT 99.h.1.
Form of Selling Dlr. Agmt.
44184v3
SELLING DEALER AGREEMENT
THIS AGREEMENT, made as of the ____ day of ______________, 20__, by and
between ____________________ (the "Distributor") and ____________________ (the
"Dealer").
WHEREAS, the Distributor and the Dealer are broker-dealers registered
with the National Association of Securities Dealers, Inc., and have the right to
effect the sale and public distribution of securities;
WHEREAS, the Distributor is an authorized distributor of New Century
Portfolios (the "Trust"), and has the right to undertake the promotion and
public distribution of shares of the Trust;
WHEREAS, the Distributor has the right to select dealers to whom shares
will be offered by it and is offering to compensate such dealers for
distribution assistance in offering shares of the Trust to the public; and
WHEREAS, the Dealer has customers or clients who are or may become
investors in the Trust (any such customer or client is hereinafter referred to
as an "Investor"), and the Dealer desires to receive payment for its
distribution assistance.
NOW THEREFORE, in consideration of the premises and the terms and
conditions set forth herein, it is agreed as follows:
1. Offering of Trust Shares by the Dealer.
(a) The Dealer may offer Trust shares to the public subject to the terms
and conditions of this Agreement. In the distribution and sale of
shares, the Dealer shall not have the authority to act as agent for
the Trust, the Distributor, or any other dealer in any respect in any
transaction. In offering shares to the public or otherwise, the Dealer
shall act as a dealer for its own account. Nothing contained herein
shall cause the selected dealers to constitute an association or
partnership with the Distributor or with each other.
(b) Orders received from the Dealer for the purchase of shares, when
accepted by the Trust or its agents, will be effected at the public
offering price applicable to each order as set forth in the Trust's
then current Prospectus (hereinafter referred to as the "Prospectus")
and the Trust's then current Statement of Additional Information
(hereinafter referred to as the "SAI"). The public offering price
ordinarily will be computed once daily at 4:00 p.m. Eastern time, on
each day the New York Stock Exchange is open. However, in the event of
changes in the U.S. Securities and Exchange Commission's requirements
or of changes in the time of the Trust's closing, the right is
reserved to price at a different time or to price more than once
daily. The manner of computing the net asset value, the public
offering price and the effective time of orders received by the Dealer
are described in the Prospectus and SAI. Offering prices may be
withdrawn, without notice, at any time, if in the opinion of the
Trust, market conditions require such action. The Dealer agrees to
place orders for shares only with the Distributor and only at such
public offering price. Trust share purchase requests and Trust account
applications submitted by the Dealer are subject to acceptance by the
Trust or its duly authorized agent. The Distributor reserves the
unqualified right not to accept any specific order for the purchase or
exchange of shares.
2. Sale Orders. Each order of the Dealer must be wired, telephoned or written
and must be sent to the Distributor or its agent, accompanied by payment in
full for the purchase of shares pursuant to such order. Payment for shares
purchased by the Dealer hereunder shall be at the public offering price
next computed after receipt of the purchase order by check or by wire
payable to the Trust at the Distributor's address. No shares shall be
purchased hereunder, and the Distributor shall assume no liability for any
loss sustained by the Dealer and/or any Investors due to the Distributor's
failure to transact such purchase, in the event that the Dealer's order is
not so accompanied by payment in full for the purchase of shares pursuant
to such order. The Dealer agrees to place orders for the same number of
shares, and at the same price, as in sales by the Dealer and will not, as
principal, sell shares unless purchased by the Dealer from the Distributor
under the terms hereof. Each order by the Dealer must be confirmed in
writing on the same day.
3. Redemption.
(a) Redemption by the Trust. The Prospectus describes the provisions
whereby the Trust, under ordinary circumstances, will redeem its
shares from shareholders on demand. The Dealer agrees that it will not
make any representations to shareholders relating to the redemption of
their shares other than statements contained in the Prospectus and/or
SAI and that Dealer will quote as the redemption price only the net
asset value next determined by the Trust following receipt of the
request in proper form.
(b) Repurchase by the Distributor. The Distributor may accept or decline
requests for the repurchase of shares. If the Distributor declines a
request for the repurchase of shares, it will promptly forward such
request to the Trust for redemption by the Trust at the net asset
value next determined following the Distributor's receipt of the
request in proper form. The Dealer agrees that it will not make any
representations to shareholders relating to the repurchase of their
shares other than the statements that may be contained in the
Prospectus.
4. NASD Rules. Any offering or invitation to the Dealer pursuant to the terms
hereof is conditioned on the Dealer being qualified under applicable
securities laws, if any, to act as a broker or dealer in securities, and
being a member in good standing of the National Association of Securities
Dealers, Inc. The Dealer agrees to be bound by the rules of the National
Association of Securities Dealers, Inc. and represents and warrants that it
is registered as a broker-dealer and will continue to be so registered
during the term of this Agreement under the applicable state and federal
securities laws. The Dealer hereby acknowledges that in so acting it is the
Dealer's responsibility to, and the Dealer hereby certifies that it shall,
comply with all applicable rules and regulations binding upon
broker-dealers in connection with the distribution of Trust shares and the
receipt of compensation therefore, including without limitation all
applicable state and federal laws and rules and regulations of regulatory
authorities or self-regulatory organizations. The Dealer agrees that it
will establish rules, procedures, supervisory and inspection techniques as
necessary to diligently supervise the activities of its registered
representatives who may act in connection with the distribution of Trust
shares.
5. Blue Sky Rules. The Dealer will not offer Trust shares for sale in any
state where such shares are not qualified for sale under the Blue Sky Laws
and regulations of such state or where the Dealer is not qualified to act
as a dealer, except for states in which they are exempt from qualification.
The Dealer hereby agrees that the Distributor has no obligation or
responsibility to insure that the Dealer is in compliance with the terms of
this paragraph.
6. Dealer's Distribution Activities.
(a) The Dealer shall make no representations concerning Trust shares not
included in the Trust's Prospectus, or in any authorized supplemental
materials supplied by the Distributor, its affiliates or the Trust.
The Dealer shall use its best efforts in the distribution of Trust
shares under this Agreement and shall be responsible for the proper
instruction and training of all sales personnel employed by the Dealer
in order that the Trust shares will be offered in accordance with the
terms and conditions of the Prospectus, this Agreement and all
applicable laws, rules and regulations.
(b) The Distributor shall provide the Dealer with a reasonable supply of
the Trust's Prospectuses, supplemental sales literature, account
applications and other material for the Dealer's use in the
distribution of Trust shares. The Dealer hereby acknowledges that each
Investor and prospective Investor shall be furnished with a copy of
the then current Prospectus and may obtain a copy of the SAI upon
request to the Distributor and as disclosed in the Prospectus, and
that each Investor account established pursuant to this Agreement is
subject to the provisions of the then current Prospectus, SAI, account
application and other material, as the case may be, unless such
provisions are expressly modified by the terms of this Agreement. The
Dealer agrees that it will not use any other sales literature or
advertising material relating to the Distributor or the shares of the
Trust unless approved in writing by the Distributor.
7. Compensation. The Dealer shall, for any period during which the Trust has
in effect a distribution plan (the "Plan") approved pursuant to the
provisions of Rule 12b-1 under the Investment Company Act of 1940, as
amended (the "1940 Act"), provide distribution and marketing services in
the promotion of Trust's shares, including but not limited to furnishing
services and assistance to Investors who own Trust shares, answering
inquiries regarding the Trust, and assisting in changing dividend options,
account designations and addresses and in maintaining Investor's
investments in the Trust. For such services the Distributor will pay the
Dealer a fee based on the rate set forth in the Schedule of Compensation,
as attached hereto and hereby incorporated by reference as Exhibit "A". The
Distributor is permitted to make this payment under the terms of the Plan,
as such Plan may be in effect from time to time; provided, however, that no
payment shall be due or shall be paid to the Dealer hereunder unless and
until the form of this Agreement shall have been approved by a majority of
the Board of Trustees of the Trust, including a majority of the Trustees
who are not "interested persons" of any Distributor, the Trust, or its
investment advisor, as such term is defined in the 1940 Act ( the "12b-1
Directors"), by a vote cast in person at a meeting called for the purpose
of voting on this form of Agreement. A copy of the Plan as in effect on the
date of this Agreement is available upon request from the Distributor. The
Trust reserves the right to terminate the Plan at any time as specified in
the Plan. The Dealer will furnish the Trust and the Distributor with such
information as may be reasonably requested by the Trust or its Trustees or
by the Distributor with respect to fees paid to the Dealer pursuant to this
Agreement.
8. Use of Names. The Dealer shall not use the names of the Distributor, the
Trust, or their affiliates in any material relating to the Dealer in a
manner not approved prior thereto by the Distributor or the Trust;
provided, however that such consent shall not be unreasonably withheld or
delayed, and the Distributor and/or the Trust shall approve all uses of
their names which merely refer in accurate terms to the services hereunder
or which are required by regulatory authority. The Dealer shall provide the
Distributor with an advance copy of each advertisement, sales piece or
other communication to the public (or a segment thereof) to be used by or
on behalf of the Dealer with respect to the Trust. The Distributor's
receipt of such material shall in no way be considered as authorization or
approval of such material, and the Distributor shall have no liability with
respect to any such material used by or on behalf of the Dealer.
9. Indemnification.
(a) The Dealer shall indemnify and hold harmless the Distributor and the
Trust, and their affiliates, officers and directors, in the event that
the Dealer or any of the Dealer's sales representatives or agents
should violate any law, rule or regulation, or any provision of this
Agreement which may result in losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) to the
Distributor, the Trust and/or their affiliates, officers and
directors. In the event that the Trust, the Distributor or their duly
authorized agents determines to refund any amount paid by any Investor
by reason of such violation on the Dealer's part, the Dealer shall
return any payments under this Agreement previously paid or allowed by
the Distributor to the Dealer with respect to the transaction for
which the refund is made.
(b) The Dealer shall indemnify and hold harmless the Distributor, the
Trust and/or their affiliates, officers and directors against any
losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from
(i) the negligence or misfeasance of the Dealer;
(ii) the Distributor, the Trust, and/or their affiliates acting upon
any information (including any taxpayer identification number or
other information relating to certifications provided pursuant to
the Interest and Dividend Tax Compliance Act of 1983) or
instructions reasonably believed by the Distributor, the Trust
and/or their affiliates to have been executed or communicated by
person or persons duly authorized by the Dealer or by the
Investor; or
(iii)Any allegation arising out of or in connection with any orders
or solicitation of orders of shares of the Trust by the Dealer,
its sales representatives or agents, except those losses, claims,
damages, liabilities or expenses resulting from the Trust's, the
Distributor's and/or their affiliates' negligence or misfeasance.
10. Other Agreements. The Distributor's obligations to the Dealer under this
Agreement are subject to all provisions of any underwriting agreements into
which the Distributor has entered or may in the future enter.
11. Termination.
(a) This Agreement may be terminated by either party without payment of
any penalty upon thirty (30) days' prior written notice to the other.
(b) With respect to Trust shares, the Agreement shall terminate
automatically in the event of its assignment, as that term is defined
in the 1940 Act.
(c) This Agreement shall terminate automatically in the event that the
Plan adopted by the Trust pursuant to Rule 12b-1 under the 1940 Act,
or any distribution agreement under the Plan affecting the
Distributor, is terminated.
(d) The provisions of Section 9 of this Agreement shall continue in full
force and effect notwithstanding the termination of the Agreement and
shall be binding upon the Dealer and its successors.
(e) Notwithstanding the termination of this Agreement, the Dealer shall
remain liable for its portion of any transfer tax or other liability
which may be asserted or assessed against the Trust, the Distributor,
or any one or more of selected dealers, based on the claim that the
selected dealers or any of them constitute a partnership,
unincorporated business, or other separate entity.
(f) Notwithstanding the foregoing, no termination of this Agreement shall
affect any of the rights or obligations of the Distributor or the
Dealer with respect to any matter which may have occurred prior to the
effective date of such termination; provided, however, commencing as
of the date of termination of this Agreement, the Dealer shall receive
no fees for services provided hereunder prior to the date of
termination, except those fees earned by the Dealer pursuant to the
terms of Exhibit "A" prior to the date of termination, but remaining
unpaid at the date of termination.
(g) This Agreement shall terminate automatically in the event the Dealer
loses its qualification under applicable federal or state securities
laws to act as a broker or dealer in securities and/or as a member in
good standing of the National Association of Securities Dealers, Inc.
12. Non-Assignability. This Agreement is not assignable by the Dealer.
13. Prior Agreements. This Agreement supersedes all prior agreements between
the Distributor and the Dealer.
14. Amendment. Subject to the terms of Rule 12b-1 under the 1940 Act, the
Distributor reserves the right to amend this Agreement at any
time without prior notice.
15. Applicable Law. This Agreement shall be governed by and construed under the
laws of the Commonwealth of Massachusetts.
16. Notice and Communications. All communications from the Dealer should be
addressed to the Distributor at the address provided below. Any notice from
the Distributor to the Dealer shall be deemed to have been duly given if
mailed or telegraphed to the Dealer at the address provided below.
17. Execution. The undersigned Dealer hereby confirms this Selling Dealer
Agreement and acknowledges that any purchase of the shares made during the
life of this Agreement is subject to all the applicable terms and
conditions set forth in this Agreement, and agrees to pay for the shares at
the price and upon the terms and conditions stated in said Agreement. The
Dealer hereby acknowledges receipt of the Prospectus relating to the shares
and confirms that in executing the Agreement it has relied on said
Prospectus and not on any other statement whatsoever, written or oral. The
undersigned confirms that it is a member in good standing of the National
Association of Securities Dealers, Inc.
Name of Dealer:
----------------------------------------------
By: -----------------------------------------
(Signature of Authorized Officer)
Title: --------------------------------------
Address: ------------------------------------
City: ----------- State: ------- Zip: ------
Tax I.D. #-----------------------------------
WESTON SECURITIES CORP.
By: -------------------------------
(Signature of accepting officer)
Title: -------------------------------
00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
(800) xxx-zzzz
Date: --------------------------------
DEALER EXHIBITS
(as referenced in the Selling Dealer Agreement)
EXHIBIT "A"
Schedule of Compensation
Note: All Compensation is based on the current Distribution Plans of the Trust,
pursuant to Section 9 of the Broker-Dealer Agreement. In the event the Board of
Trustees of the Trust votes to amend the terms of these Distribution Plans, the
Distributor reserves the right to amend the compensation provisions of Section 1
of this Exhibit A without prior notice to the Dealer.
1. Compensation to the Dealer is based on a percentage of the Rule 12b-1
fees charged against assets.
2. Additional Compensation. The Distributor, in its sole discretion, may
pay additional amounts to the Dealer based on overall quality and size
of assets raised by the Dealer.
