Exhibit (e)(2)
SELLING AGREEMENT
We at ALPS Distributors, Inc. invite you, ( ) to distribute
shares of the open-end investment companies, or the separate series or classes
of the open-end investment companies, listed on Schedule A attached hereto and
incorporated herein by reference (the "Funds"). We may periodically change the
list of Funds by giving you written notice of the change. We are the Funds'
principal underwriter and, as agent for the Funds, we offer to sell Fund shares
to you on the following terms and conditions:
1. Certain Defined Terms. As used in this Agreement, the term "Prospectus"
means the applicable Fund's prospectus and related statement of additional
information, whether in paper format or electronic format, included in the
Fund's then currently effective registration statement (or post-effective
amendment thereto), and any information that we or the Fund may issue to you as
a supplement to such prospectus or statement of additional information (a
"sticker"), all as filed with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933, as amended.
2. Purchases of Fund Shares for Sale to Customers.
(a) In offering and selling Fund shares to your customers, you
agree to act as 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 Fund.
(b) You agree to offer and sell Fund shares to your customers only
at the applicable public offering price, giving effect to
cumulative or quantity discounts or other purchase programs,
plans or services described in the applicable Prospectus. You
agree to deliver or cause to be delivered to each customer, at
or prior to the time of any purchase of shares, a copy of the
then current prospectus (including any stickers thereto), and
to each customer who so requests, a copy of the then current
statement of additional information (including any stickers
thereto).
(c) You agree to purchase Fund shares from us only to cover
purchase orders that you have already received from your
customers. You agree not to purchase any Fund shares from your
customers at a price lower than the applicable redemption
price, determined in the manner described in the Prospectus.
You shall not withhold placing customers' orders for Fund
shares so as to profit yourself as a result of such
withholding (e.g., by virtue of a change in a Fund's net asset
value from that used in determining the offering price to your
customers).
(d) We will accept your purchase orders only at the public
offering price applicable to each order, as determined in
accordance with the Prospectus. We will not accept from you a
conditional order for Fund shares. All orders are subject to
acceptance or rejection by us in our sole discretion. We
reserve the right in our discretion, and without notice to
you, to suspend sales or to withdraw the offering of Fund
shares, in whole or in part, or to make a limited offering of
Fund shares.
(e) The placing of orders with us will be governed by instructions
that we will periodically issue to you. You must pay for Fund
shares in federal funds in accordance with such instructions,
and we must receive your payment on or before the settlement
date established in accordance with Rule 15c6-1 under the
Securities Exchange Act of 1934. If we do not receive your
payment on or before such settlement date, we may, without
notice, cancel the sale, or, at our option, sell the shares
that you ordered back to the issuing Fund, and we may hold you
responsible for any loss suffered by us or the issuing Fund as
a result of your failure to make payment as required.
(f) 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 Fund for
sale unless such shares are duly registered under the
applicable state and federal laws and the rules and
regulations thereunder.
(g) Any transaction in Fund shares shall be effected and evidenced
by book-entry on the records maintained by the transfer agent
of the Funds. A confirmation statement evidencing transactions
in Fund shares will be transmitted to you by the transfer
agent.
3. Account Options.
(a) You may appoint the transfer agent for the Funds as your agent
to execute customers' transactions in Fund 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.
(b) You may instruct the Funds' 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, the Funds' transfer agent, or the Funds
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.
(c) Accounts opened or maintained pursuant to the Networking
system of the National
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Securities Clearing Corporation ("NSCC") will be governed by
applicable NSCC rules and procedures and any agreement or
other arrangement with us relating to Networking.
4. Your Compensation.
(a) Your concession, if any, on your sales of Fund shares will be
as provided in the Prospectus or in the applicable schedule of
concessions issued by us and in effect at the time of our sale
to you. Upon written notice to you, we, or any Fund, may
change or discontinue any schedule of concessions, or issue a
new schedule.
(b) In the case of a Fund or class thereof which has adopted a
Plan of Distribution (a "Plan") pursuant to Rule 12b-1 under
the Investment Company Act of 1940 (the "1940 Act"), we may
elect from time to time to make payments to you as provided
under such Plan. 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 Fund which has a Plan only so long as such Fund's
Plan remains in effect. In the case of a Fund 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.
(c) In the event that Rule 2830 of the National Association of
Securities Dealers (the "NASD") Conduct Rules precludes any
Fund or class thereof from imposing, or us from receiving, a
sales charge (as defined in that Rule) or any portion thereof,
then you shall not be entitled to any payments from us
hereunder from the date that the Fund or class thereof
discontinues or is required to discontinue imposition of some
or all of its sales charges. If the Fund 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 Fund extends to us.
(d) After the effective date of any change in or discontinuance of
any schedule of concessions, distribution payments, or service
payments, or the termination of a Plan, any concessions,
distribution payments, or service payments will be allowable
or payable to you only in accordance with such change,
discontinuance, or termination. You agree that you will have
no claim against us or any Fund by virtue of any such change,
discontinuance, or termination. In the event of any
overpayment by us of any concession, distribution payment, or
service payment, you will remit such overpayment.
(e) If, within seven business days after confirmation by us of
your original purchase order for shares of a Fund, such shares
are repurchased by the issuing Fund or by us for the account
of such Fund or are tendered for redemption by the customer,
you shall forthwith refund to us the full discount retained by
you on the original sale and any distribution and service
payments made to you. You shall refund to the Fund
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immediately upon receipt the amount of any dividends or
distributions paid to you as nominee for your customers with
respect to redeemed or repurchased Fund 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 Funds' transfer agent is delivery to the Fund.
5. Status as Registered Broker/Dealer.
(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 Conduct. 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 2830 of the
Conduct Rules of the NASD, which is incorporated herein by
reference. The termination of your membership in the NASD or
any breach of said Section 2830 will immediately and
automatically terminate this Agreement. You further represent
that you are qualified to act as a broker/dealer in the states
where you transact business.
(b) Nothing in this Agreement shall cause you to be our partner,
employee, or agent, or give you any authority to act for us or
for any Fund. Neither we nor the Funds shall be liable for any
of your acts or obligation as a dealer under this Agreement.
6. Information Relating to the Funds.
(a) No person is authorized to make any representations concerning
Fund shares except those contained in such Fund'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. Upon your request, we will
furnish you with a reasonable number of copies of the Funds'
current prospectuses or statements of additional information
or both (including any stickers thereto).
(b) You may not use any sales literature or advertising material
(including material disseminated through radio, television or
other electronic media) concerning Fund shares, other than the
Funds' Prospectuses or such printed information that is given
to you by us 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.
7. Indemnification. Each party ("indemnifying party") will indemnify and
hold the other party ("indemnified party") harmless from any claim,
demand, loss, expense, or cause of action resulting from the misconduct
or negligence, as measured by industry standards, of the indemnifying
party, its agents and employees, in carrying out its obligations under
this Agreement. Such indemnification will survive the termination of
this Agreement.
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8. Term. This Agreement, with respect to any Plan, will continue in effect
for one year from its effective date, and thereafter will continue
automatically for successive annual periods; provided, however, that
such continuance is subject to termination at any time without penalty
if a majority of a Fund's Trustees who are not interested persons of
the Fund (as defined in the 1940 Act), or a majority of the outstanding
shares of the Fund, vote to terminate or not to continue a Plan. This
Agreement, other than with respect to a Plan, will continue in effect
from year to year after its effective date, unless terminated as
provided herein.
9. Amendment and Termination of Agreement. We may change or amend any
provision of this Agreement by giving you written notice of the change
or amendment. Either party to this Agreement may terminate the
Agreement without cause by giving the other party at least thirty (30)
days written notice of its intention to terminate. This Agreement will
automatically terminate in the event of its assignment, as defined in
the 1940 Act.
10. Arbitration. In the event of a dispute, such dispute shall be settled
by arbitration before arbitrators sitting in Denver, Colorado in
accordance with the NASD's Code of Arbitration Procedure in effect at
the time of the dispute. The arbitrators shall act by majority
decision, and their award may allocate attorneys' fees and arbitration
costs between us. Their award shall be final and binding between us,
and such award may be entered as a judgment in any court of competent
jurisdiction.
11. Notices. All notices required or permitted to be given under this
Agreement shall be given in writing and delivered by personal delivery,
by postage prepaid mail, or by facsimile or a similar means of same day
delivery (with a confirming copy by mail). All notices to us shall be
given or sent to us at our offices located at 0000 Xxxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000, Attn: General Counsel. All notices to you
shall be given or sent to you at the address specified by you below.
Each of us may change the address to which notices shall be sent by
giving notice to the other party in accordance with this paragraph.
12. Miscellaneous. This Agreement shall become effective as of the date
when it is accepted and dated below by us. This Agreement shall be
construed in accordance with the laws of the state of Colorado. The
captions in this Agreement are included for convenience of reference
only and in no way define or limit any of the provisions of this
Agreement or otherwise affect their construction or effect. This
Agreement supersedes and cancels any prior agreement between us,
whether oral or written, relating to the sale of shares of the Funds or
any other subject covered by this Agreement. 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. The termination of this Agreement with respect to any
one Fund will not cause its termination with respect to any other Fund.
13. Anti-Money Laundering Program. You represent and warrant that you have
adopted an anti-money laundering program ("AML Program") that complies
with the Bank Secrecy Act, as amended by the USA PATRIOT Act, and any
future amendments (the "PATRIOT Act", and
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together with the Bank Secrecy Act, the "Act"), the rules and
regulations under the Act, and the rules, regulations and regulatory
guidance of the SEC, the NASD or any other applicable self-regulatory
organization (collectively, "AML Rules and Regulations"). You further
represent that your AML Program, at a minimum, (a) designates a
compliance officer to administer and oversee the AML Program, (b)
provides ongoing employee training, (c) includes an independent audit
function to test the effectiveness of the AML Program, (d) establishes
internal policies, procedures, and controls that are tailored to your
particular business, (e) includes a customer identification program
consistent with the rules under sec. 326 of the Act, (f) provides for
the filing of all necessary anti-money laundering reports including,
but not limited to, currency transaction reports and suspicious
activity reports, (g) provides for screening all new and existing
customers against the Office of Foreign Asset Control ("OFAC") list and
any other government list that is or becomes required under the Act,
and (h) allows for appropriate regulators to examine your AML books and
records.
14. Regulation S-P. In accordance with Regulation S-P, if non-public
personal information regarding shareholders is disclosed to either
party in connection with this Agreement, the party receiving such
information will not disclose or use that information other than as
necessary to carry out the purposes of this Agreement. Any privacy
notice that you deliver to Xxxxxxxx Capital Liquid Assets Fund's
customers will comply with the Xxxxx-Xxxxx-Xxxxxx Act and Regulation
S-P, as each may be amended, and will notify customers that non-public
personal information may be provided to financial service providers
such as security broker-dealers or investment companies and as
permitted by law.
Very truly yours,
Dated as of: ___________ ALPS DISTRIBUTORS, INC.
By: ________________________________
Name: _____________________________
Title: ____________________________
ACCEPTED AND AGREED:
_____________________________________
Firm
By: ________________________________
Name: _____________________________
Title: ____________________________
Address: ___________________________
_____________________________________
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____________________________________
NSCC Dealer # ______________________ Fax Number: ____________________________
NSCC Dealer Alpha Code _____________ Date: __________________________________
NSCC Clearing # ____________________ Mutual Fund Coordinator/Primary Contact:
Phone Number: ______________________ ________________________________________
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SCHEDULE A
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SELLING AGREEMENT FEE SCHEDULE
NAME OF FUND ANNUAL DEALER COMPENSATION
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ALPS Distributors, Inc. shall pay you a fee based on the average daily net
assets throughout the quarter of [name of Fund]. Such fee shall be computed
daily and paid quarterly. The determination of daily net assets shall be made at
the close of each business day throughout the quarter and computed in the manner
specified in the Fund's then-current Prospectus for the determination of the net
asset value of shares of the Fund.
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