SELLING DEALER AGREEMENT
As the principal underwriter of the shares of First Funds, we, ALPS Mutual
Funds Services, Inc. agree to sell to you, [_______________________], shares of
each Class of First Funds purchased by us as principal from the Portfolios for
resale by you as principal upon the following terms and conditions:
1. As used herein the following terms shall have the meaning hereinafter set
forth (unless a different meaning is plainly required by the context):
(a) "Funds" shall mean the open-end investment companies, series, or (in
the case of companies or series offering multiple classes of shares) classes of
one or more of the foregoing, the shares of which from time to time shall be
offered by us as principal underwriter to you hereunder and which are designated
by us as such by telephonic or written notice to you. This Agreement shall apply
only to such companies, series or classes so designated and offered by us to you
from time to time and only such companies, series or classes shall be considered
to be Funds hereunder. Until further notice in writing from us to you, such
Funds are the following series of First Funds: U.S. Treasury Money Market
Portfolio, U.S. Government Money Market Portfolio, Municipal Money Market
Portfolio, Cash Reserve Portfolio, Growth & Income Portfolio, Bond Portfolio,
and Tennessee Tax-Free Portfolio.
(b) "Portfolio" shall mean any one of the Funds.
(c) "Prospectus" shall mean a Portfolio's prospectus, statement of
additional information, any supplements thereto current at the time of any
action described herein.
2. (a) In all resales to the public of shares of the Portfolios sold to you
by us, (i) you shall sell at the applicable public offering price giving effect
to cumulative or quantity discounts or other purchase programs, plans or
services described in the Prospectus of the Portfolio or class thereof whose
shares are being resold and you shall transmit payment for such shares in
accordance with paragraph 3(a) below; (ii) you shall act as dealer; and (iii)
your discount, if any, with respect to the resale shall be as set forth in the
applicable schedule of discounts issued by us and in effect at the time of the
sale by us to you of such shares or as set forth in the Prospectus. Such
discount schedules are subject to change or discontinuance by us or the
Portfolios from time to time as set forth in paragraph 7 below.
(b) In the case of a Portfolio or class thereof which has adopted a
Distribution and Service Plan pursuant to Rule 12b-1 under the Investment
Company Act of 1940 (a "Plan"), we may elect from time to time to make payments
to you as provided under such Plan. In the case of a Portfolio or class thereof
that has no currently effective Plan, we may, to the extent permitted by
applicable law, elect to make payments to you from our own funds. Any such
payments shall be made in the amount and manner set forth in the applicable
schedule of distribution and service payments issued by us and then in effect or
as set forth in the Prospectus. Such schedule of distribution and service
payments may be discontinued or changed by us from time to time and shall be in
effect with respect to a Portfolio which has a Plan only so long as such
Portfolio's Plan remains in effect.
(c) In the event that Article III, Section 26 of the NASD Rules of Fair
Practice preclude any Portfolio or class thereof from imposing, or us from
receiving, a sales charge (as defined in that Section) or any portion thereof,
then you shall not be entitled to any payments from us hereunder from the date
that the Portfolio or class thereof discontinues or is required to discontinue
imposition of some or all of its sales charges. If the Portfolio or class
thereof resumes imposition of some or all of its sales charge, you will be
entitled to payments hereunder on the same terms as the Portfolio extends to us.
3. (a) The placing of orders with us shall be governed by instructions which
we shall issue from time to time. Payment for shares ordered from us shall be
made in accordance with such instructions in New York Clearing House funds
received by us within three business days (as defined in each Portfolio's
Prospectus) after our acceptance of the order. If such payment is not received
by us, we reserve the right, without notice forthwith, to cancel the sale, or,
at our option, to sell the shares ordered back to the issuing Portfolio, in
which latter case we may hold you responsible for any loss, including loss of
profit, suffered by us as a result of your failure to make payment as aforesaid.
(b) A purchase, transfer, redemption, repurchase or sale (each hereinafter
a "Transaction") of Portfolio shares shall be evidenced by a confirmation
statement transmitted to you. Any Transaction in Portfolio shares, shall be
effected and evidenced by book-entry on the records maintained by the transfer
agent of the Funds.
(c) You appoint the transfer agent for each Portfolio as your agent to
execute customers' Transactions in Portfolio shares sold to you by us in
accordance with the terms and provisions of any account, program, plan or
service established or used by your customers and to confirm each such
Transaction to your customers on your behalf, and at the time of the Transaction
you guarantee the legal capacity of your customers so transacting in such shares
and any co-owners of such shares.
(d) You may instruct the Portfolios' transfer agent to register shares
purchased in your name and account as nominee for your customers, in which event
all Prospectuses, proxy statements, periodic reports and other printed material
will be sent to you and all confirmations and other communications to
shareholders will be transmitted to you. You shall be responsible for forwarding
such printed material, confirmations and communications, or the information
contained therein, to all customers for whom you hold such shares as nominee.
However, we, the Portfolios' transfer agent, or the Portfolios shall be
responsible for the reasonable costs associated with your forwarding such
printed material, confirmations and communications and shall reimburse you in
full for such costs. You shall also be responsible for complying with all
reporting and tax withholding requirements with respect to the customers for
whose account you are holding such shares. With respect to customers other than
such customers, you shall provide us with all information (including, without
limitation, certification of taxpayer identification numbers and back-up
withholding instructions) necessary or appropriate for us to comply with legal
and regulatory reporting requirements.
4. Upon request, we will furnish you a reasonable number of copies of the
Prospectus of each of the Portfolios and the printed information referred to in
paragraph 6 below issued as supplements
thereto.
5. (a) You represent that you are and will remain a member in good standing
of the National Association of Securities Dealers, Inc. ("NASD"), and agree to
abide by all of its rules and regulations including its Rules of Fair Practice.
You further agree 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 26, Article III, of the Rules of Fair Practice of
the NASD, which is incorporated herein as if set forth in full. The termination
of your membership in the NASD or any breach of said Section 26 will immediately
and automatically terminate this Agreement.
(b) We shall not purchase Portfolio shares from a Portfolio except for
the purpose of covering purchase orders already received by us, and you shall
not purchase Portfolio shares from us other than for investment except for the
purpose of covering purchase orders already received by you.
(c) You shall not withhold placing customers' orders for Portfolio
shares so as to profit yourself as a result of such withholding, e.g., by virtue
of a change in a Portfolio's net asset value per share from that used in
determining the offering price to your customers.
(d) We shall not accept a conditional order for Portfolio shares on any
basis other than at a definite specified price.
(e) If, within seven business days after confirmation by us of your
original purchase order for shares of a Portfolio, such shares are repurchased
by the issuing Portfolio or by us for the account of such Portfolio or are
tendered for redemption by the customer, (i) you shall forthwith refund to us
the full discount retained by you on the original sale pursuant to paragraph
2(a) and any distribution and service payments made to you pursuant to paragraph
2(b) above, and (ii) we shall forthwith pay to such Portfolio our share of the
sales charge on the original sale by us and shall also pay such Portfolio the
refund received under clause (i) when we receive it. You shall refund to the
Portfolio immediately upon receipt the amount of any dividends or distributions
paid to you as nominee for your customers with respect to redeemed or
repurchased Portfolio shares to the extent that the proceeds of such redemption
or repurchase may include the dividends or distributions payable on such shares.
You shall be notified by us of such repurchase or redemption within ten days of
such repurchase or redemption. Delivery to the Portfolio's transfer agent is
delivery to the Portfolio.
(f) In the event any adjustment in the discount retained by you on any
sale under paragraph 2(a), or in the distribution and service payments made to
you under paragraph 2(b) shall result in an overpayment by us of such discount
or payment, you shall forthwith remit such overpayment. The term "adjustment" as
used in the preceding sentence shall not include any changes in amounts paid to,
retained by, or due you caused by a change in or discontinuance of such
discounts or distribution and service payments (as provided under paragraphs
2(a), 2(b) and 7) prior to the effective date of such change or discontinuance
of the discount or distribution and service payment. You acknowledge that the
foregoing shall in no way limit our right to change or discontinue such
discounts or distribution and service payment as provided in paragraphs 2 and 7
hereof, and that, after the effective date of a change in or discontinuance by
us of the discount
schedules or of the distribution and service payments or termination of any
Plan, discounts retained by you under paragraph 2(a) or amounts paid under 2(b)
shall be in amounts and made in accordance with such change, discontinuation or
termination.
(g) Neither we nor you shall, as principal, purchase Portfolio shares
from a record holder at a price lower than the bid price next quoted by or for
the issuing Portfolio.
(h) Nothing in this Agreement shall prevent you from selling Portfolio
shares for the account of a beneficial owner to us or the issuing Portfolio and
charging the beneficial owner a reasonable charge for handling the transaction,
provided that you disclose to such record owner that direct redemption of the
shares can be accomplished by the record owner without incurring such charge.
6. (a) In all sales of Portfolio shares to the public you shall act as a
dealer for your own account and in no transaction shall you have any authority
to act or hold yourself out as agent for us, or any Portfolio, and nothing in
this Agreement including the use of the words "discount" or "payment," shall
cause you to be our partner, employee, or agent or give you any authority to act
for us or for any Portfolio. Neither we nor any Portfolio shall be liable for
any of your acts or obligations as a dealer under this Agreement.
(b) No person is authorized to make any representations concerning
Portfolio shares except those contained in such Portfolio's Prospectus, and in
buying shares from us or selling shares to us hereunder, you shall rely solely
on the representations contained in the Prospectus. We or the Portfolio shall
bear the expense of qualifying Portfolio shares under the securities laws of the
various states. Any printed information which we shall furnish you (other than
the Portfolios' Prospectuses, periodic reports and supplemental information) is
our sole responsibility and not the responsibility of the respective Portfolios.
You agree that the Portfolios shall have no liability or responsibility to you
with respect to any such printed information. No sales literature or advertising
material (including material disseminated through radio, television or other
electronic media) concerning Portfolio shares, other than such printed
information, shall be used by you in connection with the offer or sale of
Portfolio shares without obtaining our prior written approval. You shall not
distribute or make available to investors any printed information furnished by
us which is marked "FOR BROKER/DEALER USE ONLY" or which otherwise indicates
that it is confidential or not intended to be distributed to investors.
(c) You will comply with all applicable state and federal laws and with
the rules and regulations of authorized regulatory agencies thereunder. You will
not offer shares of any Portfolio for sale unless such shares are duly
registered under the applicable state and federal statutes and the rules and
regulations thereunder.
7. All orders are subject to acceptance or rejection by us. We reserve the right
in our discretion, without notice, to suspend sales or to withdraw the offering
of Portfolio shares, in whole or in part, or to make a limited offering of
Portfolio shares. Either of us may cancel this Agreement upon telephonic or
written notice to the other. Upon telephonic or written notice to you, we may
also change, or amend any provision of this Agreement. Upon telephonic or
written notice to you, we or any Portfolio may change, amend or discontinue any
schedule or schedules of discounts or
distribution and service payments issued by us from time to time and may issue a
new or replacement schedule or schedules of discounts or distribution and
service payments from time to time. You hereby agree that you shall have no
vested interest in any type, amount or rate of discount or distribution and
service payment and that you shall have no claim against us or any Portfolio by
virtue of any change or diminution in the rate or amount of, or discontinuance
of, any discount or distribution and service payment in connection with the
shares of any Portfolio.
8. You agree, in connection with Portfolios that offer multiple classes of
Shares, to disclose to investors that are eligible to purchase the other
class(es) of such Portfolio (as set forth in the applicable Prospectus) the
availability of such other class(es). You and we each further agree to waive or
accept reduced payments pursuant to any Plan from each Portfolio that is a money
market fund within the meaning of Rule 2a-7 under the Investment Company Act of
1940 (or from any class thereof) to the extent necessary to assure that such
Portfolio and each class thereof maintains a constant $1.00 net asset value per
share.
9. Failure of either party 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.
10. In the event of a dispute, such dispute shall be settled by arbitration
before arbitrators sitting in Denver, Colorado in accordance with the commercial
rules then in effect at the NASD. The arbitrators shall act by majority
decision, and their award may allocate attorneys' fees and arbitration costs
between the parties; such award shall be final and binding between the parties
and judgment thereon may be entered in any court of competent jurisdiction.
11. All communications to us should be sent to our address. Any notice to you
shall be duly given if mailed or telegraphed to you at the address specified by
you below. This Agreement shall become binding upon receipt by us in Denver,
Colorado of a counterpart hereof duly accepted and signed by you. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO.
12. The Agent will provide the Trust or its designees such information as the
Trust or its designees may reasonably request (including, without limitation,
periodic certifications confirming the provision to Customers of the services
described herein), and will otherwise cooperate with the Trust and its designees
(including, without limitation, any auditors designated by the Trust), in
connection with the preparation of reports to its Board of Trustees concerning
this Agreement and the monies paid or payable under this Agreement, as well as
any other reports or filings that may be required by law.
13. This Agreement supersedes and cancels all previous agreements between us,
whether oral or written.
Very truly yours,
Dated as of: ___________________ ALPS MUTUAL FUNDS SERVICES,
INC.
By:__________________
_____________________
Signature
Its:_________________
ACCEPTED AND AGREED:
________________________________
Firm
By: ____________________________
Authorized Representative
________________________________
Signature
Address: _______________________
________________________________
________________________________
NSCC Dealer #____________________________ Fax Number:________________________
NSCC Dealer Alpha Code___________________ Date:______________________________
NSCC Clearing #__________________________ Mutual Fund Coordinator/
Primary Contact:
Phone Number:____________________________ ___________________________________
SCHEDULE OF DISTRIBUTION AND SERVICE PAYMENTS
FOR SALES OF CLASS III SHARES
PURSUANT TO PARAGRAPH 2(b) OF THE SELLING DEALER AGREEMENT
In consideration of sales of Class III and IV shares of the Portfolios of First
Funds (the Trust), under the terms and conditions of Paragraph 2(b) of the
Selling Dealer Agreement, the following schedule for the payment of fees shall
apply:
DEALER COMPENSATION
NAME OF PORTFOLIO CONTRACTUAL RATE CURRENT CHARGE
------------------------------------------------------------------------------------------------
CLASS III
U.S. TREASURY MONEY MARKET PORTFOLIO .45% .25%
U.S. GOVERNMENT MONEY MARKET PORTFOLIO .45% .25%
MUNICIPAL MONEY MARKET PORTFOLIO .45% .25%
CASH RESERVE PORTFOLIO .45% .25%
BOND PORTFOLIO .75% .50%
GROWTH & INCOME PORTFOLIO .75% .75%
TENNESSEE TAX-FREE PORTFOLIO .75% .50%
INTERMEDIATE BOND PORTFOLIO .75% .50%
CAPITAL APPRECIATION PORTFOLIO .75% .75%
CLASS IV
GROWTH & INCOME PORTFOLIO .75% .75%
TENNESSEE TAX-FREE PORTFOLIO .60% .60%
CAPITAL APPRECIATION PORTFOLIO .75% .75%
ALPS Mutual Funds Services, Inc. shall pay you a fee based on the monthly
average daily net assets of Class III or IV shares of each Portfolio that has
commenced operations. Such fee shall be computed daily and paid monthly. The
determination of daily net assets shall be made at the close of each business
day throughout the month and computed in the manner specified in the Portfolio's
then-current Prospectus for the determination of the net asset value of shares
of each Class, but shall exclude assets attributable to any other Class of the
Portfolio.
