ADVANTUS FUNDS
DEALER SALES AGREEMENT
THIS AGREEMENT, made this _____ day of ________________, 19___, by
and between MIMLIC Sales Corporation, a Minnesota corporation (the
"Underwriter"), having its principal office at 000 Xxxxxx Xxxxxx Xxxxx,
Xx. Xxxx, Xxxxxxxxx, 00000, and ________________ (the "Dealer") having its
principal office at ___________________________________________.
WHEREAS, the Underwriter has entered into Distribution Agreements
with certain registered management investment companies (the "Funds"), as
listed on Schedule A hereto and made a part hereof, which Schedule A may
be amended without notice from time to time by the Underwriter, under
which the Underwriter has been engaged and agreed to act as principal
underwriter for the Funds in the sale and distribution of shares of the
Funds to the public, either through dealers or otherwise; and
WHEREAS, the parties hereto desire that the Dealer be a member of a
selling group to sell and distribute shares of the Funds to the public;
NOW, THEREFORE, the Dealer hereby offers to become a member in a
selling group to sell and distribute shares of the Funds to the public
subject to the following terms and conditions.
1. ACCEPTANCE OF SUBSCRIPTIONS; REGISTRATION STATEMENT; PROSPECTUS.
Subscriptions solicited by the Dealer will be accepted only
in the amounts and on the terms which are set forth in the then current
Prospectus (and/or Statement of Additional Information, if any) for the
Funds. Underwriter represents and warrants that the Prospectus (and/or
Statement of Additional Information, if any) for the Funds shown on
Schedule A are or will be filed with the Securities and Exchange
Commission ("SEC"), that such filings conform in all material respects
with the requirements of the SEC and that, except as Underwriter has given
written notice to Dealer, there is an effective Registration Statement
relating to such Funds. Underwriter shall give written notice to Dealer
either (i) of specified states or jurisdiction in which the Funds may be
offered and sold by the Dealer or (ii) of all states or jurisdictions
where the Funds may not be offered or sold, but Underwriter does not
assume any responsibility as to the Dealer's right to sell the Funds in
any state or jurisdiction. Underwriter, during the term of this
Agreement, shall (i) notify Dealer in writing of the issuance by the SEC
of any stop order with respect to a Registration Statement or the
initiation of any proceedings for such purpose or any other purpose
relating to the registration and/or offering of the Funds, (ii) of any
other action or circumstance known to them that may prevent the lawful
sale of the Funds in any state or jurisdiction, and (iii) advise the
Dealer in writing of any amendment to the Registration Statement or
supplement to any Prospectus. The Underwriter shall make available to
Dealer such number of copies of the Prospectus (as amended or
supplemented) (and/or Statements of Additional Information, if any) or any
supplemental sales literature created by the Underwriter as the Dealer may
reasonably request.
2. DEALER DISCOUNT AND OTHER COMPENSATION. The dealer shall
receive, for sales of shares of the Funds' common stock, the applicable
Dealer Discount or other compensation as set forth in Schedule A attached
hereto and made a part hereof. Additionally, with respect to certain of
the Funds, the Dealer may be entitled to receive additional compensation
upon such terms and conditions and in such amounts as set forth in
Schedule A hereto for providing to Fund shareholders certain personal and
account maintenance services (including, but not limited to, responding to
shareholder inquiries and providing information on their investments) not
otherwise required to be provided by the applicable Funds' investment
adviser or transfer agent ("Service Fees") or (in addition to the
aforementioned Dealer Discount) for sales of shares of the applicable
Fund's common stock ("Distribution Fees"). Schedule A may be amended in
whole or in part without notice from time to time by the Underwriter.
3. ORDERS. Orders to purchase shares of the Funds shall be
placed as described in the then current Prospectus (and/or Statement of
Additional Information, if any) of the Funds and as instructed from time
to time by the Underwriter. Orders shall be placed promptly upon receipt,
and there shall be no postponement of orders received so as to profit the
Dealer by reason of such postponement. Each order shall be confirmed by
the Dealer to the Underwriter in writing on the day such order was placed.
All monies or other settlements received by the Dealer for or on
behalf of the Underwriter shall be received by the Dealer in fiduciary
capacity in trust for the Underwriter and shall be immediately transmitted
to the Underwriter, and, in no event, shall the Dealer commingle such
monies with other funds. The Dealer shall keep correct accounts and
records of all business transacted and monies collected by him for the
Underwriter to the extent required by the Underwriter, which accounts and
records shall be open at all times to inspection and examination by the
Underwriter's authorized representative. All accounts, records and any
supplies furnished to the Dealer by the Underwriter shall remain the
property of the Underwriter and shall be returned to the Underwriter upon
demand.
4. FAILURE OF ORDER. The Underwriter reserves the right at any
time to refuse to accept and approve any application for the purchase of
shares of the Funds obtained by the Dealer, and also reserves the right to
settle any claims against the Underwriter arising from the sale of shares
of the Funds by the Dealer and to refund to the investor payments made by
him on his shares, without the Dealer's consent. In the event any order
for the purchase of shares of the Funds is rejected by the Underwriter or
any payment received for the purchase of shares of the Funds cannot be
collected or otherwise proves insufficient or worthless, any compensation
paid to the
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Dealer hereunder shall, promptly upon notice to the Dealer, be returned by
the Dealer to the Underwriter either in cash or as a charge against the
Dealer's account with the Underwriter, as the Underwriter may elect, and
the Dealer hereby agrees that until the Underwriter receives full
reimbursement in cash, the amount of compensation due and owing the
Underwriter shall constitute a debt to the Underwriter which the
Underwriter may collect by any lawful means, with interest thereon at the
maximum rate possible.
5. GENERAL. In soliciting purchases of shares of the Funds, the
Dealer shall act as an independent contractor and not on behalf or subject
to the control of the Underwriter. Nothing herein shall constitute the
Dealer as a partner of the Underwriter, any other broker-dealer, any
registered representative of the Underwriter or the Funds, or render any
such entity liable for obligations of the Dealer. The Dealer understands
that Dealer has no authority to incur any expenses or obligations in the
name of the Underwriter, and Dealer agrees to indemnify and save the
Underwriter harmless from any and all expenses, or obligations incurred by
Dealer in the name of the Underwriter for which Dealer is responsible.
Dealer agrees to pay all expenses incurred by Dealer in connection with
Dealer's work. The Dealer's participation in the sale and distribution of
shares of the Funds as contemplated by this Agreement is not exclusive and
the Underwriter may engage other broker-dealers and/or its registered
representatives to participate in the sale and distribution of shares of
the Funds on terms and conditions which may differ from the terms and
conditions of this Agreement.
The Dealer understands and agrees that each shareholder account which
includes shares of any Fund subject to the Fund's contingent deferred
sales charge (as described in the applicable Fund's current Prospectus and
Statement of Additional Information) shall not be included in the Dealer's
omnibus or house account, if any, but shall be established as a separate
shareholder account in which purchase and redemption transactions are
reported separately to the Underwriter.
6. DEALER'S UNDERTAKINGS. No person is authorized to make any
representation concerning shares of the Funds except those contained in
the then current Prospectus (and/or Statement of Additional Information,
if any). The Dealer shall not sell shares of the Funds pursuant to this
Agreement unless the then current Prospectus is furnished to the purchaser
prior to the offer and sale. The Dealer shall not use any supplemental
sales literature of any kind without prior written approval of the
Underwriter unless it is furnished by the Underwriter for such purpose.
In offering and selling shares of the Funds, the Dealer shall rely solely
on the representations contained in the then current Prospectus (and/or
Statement of Additional Information, if any). In offering and selling
shares of the Funds, the Dealer shall comply with all applicable state and
federal laws and regulations and all applicable rules of the National
Association of Securities Dealers, Inc. (the "NASD"). In the event of the
suspension, revocation, cancellation or other impairment of the Dealer's
membership in the NASD or the Dealer's registration, license or
qualification to sell shares of the Funds under any applicable state or
federal law or regulation, the Dealer shall give the Underwriter prompt
notice of such
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suspension, revocation, cancellation or other impairment, and the Dealer's
authority under this Agreement shall thereupon terminate as provided in
paragraph 12.
With respect to any Fund offering multiple classes of shares, the
Dealer shall disclose to prospective investors the existence of all
available classes of such Fund and shall determine the suitability of each
available class as an investment for each such prospective investor.
7. REPRESENTATIONS AND AGREEMENTS OF THE DEALER. By accepting
this Agreement, the Dealer represents that it: (i) is registered as a
broker-dealer under the Securities Exchange Act of 1934, as amended; (ii)
is qualified to act as a dealer in each jurisdiction in which it will
offer shares of the Funds; (iii) is a member in good standing of the NASD;
and (iv) will maintain such registrations, qualifications and memberships
throughout the term of this Agreement.
8. DEALER'S EMPLOYEES. By accepting this Agreement, the Dealer
assumes full responsibility for the actions and course of conduct of its
registered representatives in the solicitation of purchases of shares of
the Funds. The Dealer shall provide thorough and prior training to its
registered representatives concerning the selling methods to be used in
connection with the offer and sale of shares of the Funds, giving special
emphasis to the principles of full and fair disclosure to prospective
investors. The Dealer may solicit sales of shares of the Funds only
through properly licensed registered representatives of the Dealer.
9. INDEMNIFICATION BY UNDERWRITER. The Underwriter hereby agrees
to indemnify and to hold harmless the Dealer and each person, if any, who
controls the Dealer within the meaning of Section 15 of the Securities Act
of 1933 (the "Act") and their respective successors and assigns
(hereinafter in this paragraph separately and collectively referred to as
the "Defendants") from and against any and all losses, claims, demands or
liabilities (or actions in respect thereof), joint or several, to which
the Defendants may become subject under the Act, at common law or
otherwise (including any legal or other expense reasonably incurred in
connection therewith), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue or allegedly untrue statement of a material fact contained in
the then current Prospectus (and/or Statement of Additional Information,
if any) of the Funds or arise out of or are based upon the omission or
alleged omission to state therein a material fact that is required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided
that this indemnity agreement is subject to the condition that notice be
given as provided below. Upon the presentation in writing of any claim or
the commencement of any suit against any Defendant in respect of which
indemnification may be sought from the Underwriter on account of its
agreement contained in the preceding sentence, such Defendant shall with
reasonable promptness give notice in writing of such suit to the
Underwriter, but failure so to give such notice shall not relieve the
Underwriter from any liability that it may have to the Defendants
otherwise than on account of said indemnity agreement. The Underwriter
shall be entitled to participate at its own expense in the defense, or, if
it so elects, to assume the defense of any such claim or suit, but if
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the Underwriter elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory to the Defendants who
are parties to such suit or against whom such claim is presented. If the
Underwriter elects to assume the defense and retain such counsel as herein
provided, such Defendant shall bear the fees and expenses subsequently
incurred of any additional counsel retained by them, except the reasonable
costs of investigation and such other costs as are approved by the
Underwriter; provided, that if counsel for an indemnified Defendant
determines in good faith that there is a conflict which requires separate
representation for the indemnified Defendant, the indemnified Defendant
shall be entitled to indemnification for the reasonable expenses of one
additional counsel and local counsel to the extent provided above. Such
counsel shall, to the fullest extent consistent with its professional
responsibilities, cooperate with the Underwriter and its counsel. The
Underwriter agrees to notify the Dealer promptly, as soon as it has
knowledge thereof, of the commencement of any litigation or proceedings
against the Underwriter or the Funds or any of their directors or
officers, in connection with the offer or sale of shares of the Funds to
the public. The Underwriter's obligation under this paragraph shall
survive the termination of this Agreement.
10. FIDELITY BOND OF DEALER AND INDEMNIFICATION BY DEALER. Dealer
represents that all directors, officers, partners, employees or registered
representatives of Dealer who are authorized pursuant to this Agreement to
sell shares of the Funds or who have access to monies belonging to the
Underwriter, including but not limited to monies submitted with
applications for purchase of shares of the Funds or monies being returned
to investors, are and shall be covered by a blanket fidelity bond,
including coverage for larceny and embezzlement, issued by a reputable
bonding company. This bond shall be maintained by Dealer at Dealer's
expense. Such bond shall be at least of the form, type and amount
required under the NASD Rules of Fair Practice. The Underwriter may
require evidence, satisfactory to it, that such coverage is in force.
Dealer shall give prompt written notice to the Underwriter of any notice
of cancellation or change of coverage with respect to such bond. Dealer
hereby assigns any proceeds received from the fidelity bonding company to
the Underwriter to the extent of the Underwriter's loss due to activities
covered by the bond. If there is any deficiency amount, whether due to a
deductible or otherwise, Dealer shall promptly pay to the Underwriter such
amount on demand, and Dealer hereby indemnifies and holds harmless the
Underwriter from any such deficiency and from the costs of collection
thereof, including reasonable attorneys fees.
Dealer also agrees to indemnify and hold harmless the Underwriter and
its officers, directors and employees and each person who controls them
within the meaning of Section 15 of the Securities Act of 1933
(hereinafter in this paragraph referred to as Defendants) against any and
all losses, claims, damages or liabilities, including reasonable attorneys
fees, to which they may become subject under the Securities Act of 1933,
the Securities Exchange Act of 1934, or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon: (i) any oral or written misrepresentation, any
unauthorized action or statement, or any other willful, reckless or
negligent violation of any law, regulation, contract or other arrangement
by Dealer or its officers, directors, employees or agents, or (ii) the
failure of Dealer or its officers, directors, employees or agents to
comply with any applicable provisions of this Agreement;
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provided, that this indemnity agreement is subject to the condition that
notice be given as provided below. Upon the presentation in writing of
any claim or the commencement of any suit against any Defendant in respect
of which indemnification may be sought from the Dealer on account of its
agreement contained in the preceding sentence, such Defendant shall with
reasonable promptness give notice in writing of such suit to the Dealer,
but failure to so give such notice shall not relieve the Dealer from any
liability that it may have to the Defendants otherwise than on account of
this indemnity agreement. The Dealer shall be entitled to participate at
its own expense in the defense, or, if it so elects, to assume the defense
of any such claim or suit with counsel chosen by it and satisfactory to
the defendants who are parties to such suit or against whom such claim is
presented. If the Dealer elects to assume the defense and retain such
counsel as herein provided, such Defendant shall bear the fees and
expenses subsequently incurred of any additional counsel retained by them,
except the reasonable costs of investigation and such other costs as are
approved by the Dealer; provided, that if counsel for an indemnified
Defendant determines in good faith that there is a conflict which requires
separate representation for the indemnified Defendant, the indemnified
Defendant shall be entitled to indemnification for the reasonable expenses
of one additional counsel and local counsel to the extent provided above.
Such counsel shall, to the fullest extent consistent with its professional
responsibilities, cooperate with the Dealer and its counsel. The Dealer's
obligations under this paragraph shall survive the termination of this
Agreement.
11. ASSIGNMENT AND TERMINATION. This Agreement may not be
assigned by the Dealer without consent of the Underwriter.
12. TERMINATION. Either party may terminate this Agreement at any
time upon giving written notice to the other party hereto. This Agreement
shall terminate automatically in the event of the suspension, revocation,
cancellation or other impairment of the Dealer's membership in the NASD or
the Dealer's registration, license or qualification to sell shares of the
Funds under any applicable state or federal law or regulation.
13. FIRST CLAIM ON EARNINGS AND LEGAL PROCEEDINGS. Underwriter
shall have first claim on all of Dealer's earnings under this Agreement.
This means that Underwriter as and when it elects may keep all or any part
of such earnings to reduce any debt Dealer owes Underwriter. While
Underwriter may release Dealer's earnings while Dealer owes a debt to
Underwriter, this does not mean Underwriter has waived this right of first
claim to Dealer's earnings. Underwriter's claim also takes precedence
over claims of Dealer's creditors. All Dealer's earnings kept by
Underwriter will be used to reduce debt owed to Underwriter. Dealer has
no right to start any legal proceedings on Underwriter's behalf or in its
name.
14. NOTICE. Any notice to be given to a party hereto pursuant to
this Agreement shall be in writing, addressed to such party at the address
of such party set forth in the preamble hereof, or such other address as
such other party may from time to time designate in writing to the party
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hereto giving notice. Any notice delivered by the mails, postage fully
prepaid, shall be deemed to have been given five (5) days after mailing
or, if earlier, upon receipt.
15. WAIVER. No failure, neglect or forbearance on the part of the
Underwriter to require strict performance of this Agreement shall be
construed as a waiver of the rights or remedies of the Underwriter
hereunder.
16. SUSPENDING SALES, AMENDING OR CANCELING THIS AGREEMENT. The
Underwriter may, at any time, without notice, suspend sales or withdraw
any offering of shares entirely. The Underwriter reserves the right to
amend or cancel this Agreement upon notice to Dealer. The Dealer agrees
that any order to purchase shares of Funds placed after notice of any
amendment to this Agreement has been sent to the Dealer shall constitute
the Dealer's agreement to any such amendment.
17. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Minnesota.
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DEALER:
__________________________ ___________________________________
(Name) (NSCC Clearing Number)
__________________________ ___________________________________
(Tax Identification Number) (NSCC Executing Broker Symbol)
__________________________ ___________________________________
(Street Address) (Telephone Number)
__________________________
(City) (State) (Zip)
Date of offer:___________________________________, 19____
By ______________________________________________________________
(Signature)
Please Print Name __________________________________________________
Its_______________________________________________________________
(Title)
Accepted by
MIMLIC SALES CORPORATION
Date of acceptance: _____________________, 19___
By ______________________________________________________________
(Signature)
Its_______________________________________________________________
(Title)
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SCHEDULE A
Dealer Compensation Schedule
Effective March 1, 1995
I. Advantus Horizon Fund, Inc.
Advantus Mortgage Securities Fund, Inc.
Advantus Spectrum Fund, Inc.
Advantus Bond Fund, Inc.
Advantus Cornerstone Fund, Inc.
Advantus Enterprise Fund, Inc.
Advantus International Balanced Fund, Inc.
(International Fund offers only Class A and Class C Shares.)
A. DEALER COMMISSIONS
DEALER CONCESSION AS PERCENTAGE OF OFFERING PRICE
-------------------------------------------------
CLASS A CLASS B CLASS C
AMOUNT OF SALE SHARES SHARES SHARES
-------------- ------ ------ ------
Less than $50,000 4.50% 3.75% -0-
$50,000 but less
than $100,000 4.05 3.38 -0-
$100,000 but less
than $250,000 3.15 2.63 -0-
$250,000 but less
than $500,000 2.25 1.88 -0-
$500,000 but less
than $1,000,000 1.35 1.13 -0-
$1,000,000 and over .9* n/a* n/a*
* Orders of $1,000,000 or more will be accepted only for Class A Shares. MIMLIC
does not receive a sales load on sales of Class A Shares of $1,000,000 or more.
The Dealer will receive the commission indicated on such sales; provided,
however, that if the customer redeems any portion of such investment within 18
months after purchase, the pro rated commission paid on
the portion redeemed shall be charged back against the Dealer's compensation
account in an amount determined as follows:
PERCENTAGE OF COMMISSION MONTH AFTER SALE
CHARGED BACK WHEN REDEMPTION OCCURS
------------ ----------------------
100% 0-6
66 2/3 7-12
33 1/3 13-18
B. DISTRIBUTION AND SERVICE FEES
In addition to the Dealer Commissions, the Dealer shall receive
quarterly Distribution and/or Service Fees, equal to a percentage of
average daily net assets attributable to Shares held in accounts by
customers for whom the Dealer is the holder or agent of record or with
whom the Dealer maintains a servicing relationship in accordance with
the following table:
DISTRIBUTION FEES SERVICE FEES
----------------- ------------
CLASS A CLASS C CLASS B CLASS C
------- ------- ------- -------
1/4 of .25% 1/4 of .75% 1/4 of .25% 1/4 of .25%
II. Advantus Money Market Fund, Inc.
MIMLIC does not receive a sales load on sales of Advantus Money Market
Fund. Shares of Advantus Money Market Fund acquired in an exchange from
any of the other Advantus Funds may be exchanged at relative net asset
values for shares of any of the other Advantus Funds. Shares of Advantus
Money Market Fund not acquired in an exchange from any of the other
Advantus Funds may be exchanged at relative net asset values plus
applicable sales load for shares of any of the other Advantus Funds. In
the event Dealer's customer exchanges shares of Advantus Money Market Fund
for shares of another Advantus Fund and pays a sales load in connection
with such exchange, the Dealer shall receive a Dealer Discount as described
above.
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