Form of Columbia Management Distributors, Inc.
Mutual Fund Sales Agreement
From and after the Effective Date (as defined below), we will be the exclusive
distributors of the shares of the funds of the fund families set forth in
Schedule A(collectively, together with any funds that may hereafter become part
of such fund families, the "CMD Distributed Funds"). We invite you to
participate in the offer and sale of the shares of those CMD Distributed Funds
(or classes thereof) as we may determine from time to time (each a "Fund" and
collectively the "Funds") on the terms set forth below.
1. Effective Date: This Agreement shall become effective on the date set forth
on the signature page hereto.
2. Your Regulatory Status: If you are a registered broker or dealer under the
Securities Exchange Act of 1934 ("1934 Act"), you agree that the terms in
Schedule B apply. Otherwise, you agree that the terms in Schedule C apply.
3. Appointment: We appoint you to provide the services set forth in this
Agreement on a non-exclusive basis, subject to and in compliance with all
terms of this Agreement, the Funds' then-current prospectuses and
statements of additional information including any supplements thereto
(collectively, the "Prospectus"), the Funds' new account applications,
applicable laws, regulations and rules of self-regulatory or clearing
organizations (collectively "Applicable Law") and such procedures and
instructions as we may communicate to you.
4. Offer and Sale of Fund Shares:
(a) You agree to offer and sell the Funds' shares, but to do so only in
the states and other jurisdictions in which we have indicated to you
that you may make such offers and sales. You may act either as
principal or as agent of your customers ("Customers") who purchase
Fund shares through you. In connection with your offers and sales of
Fund shares, you agree that we have no responsibility for determining
whether the Funds' shares are suitable for your Customers. You agree
never to make any statement or representation in connection with us,
our affiliates or the Funds other than that as contained in the
Prospectus, shareholder reports and sales literature issued by us
("Sales Literature") or as otherwise approved in writing by us.
(b) If you sell shares for which a distribution plan has been adopted
pursuant to Rule 12b-l under the Investment Company Act of 1940 ("1940
Act"), you agree to provide reasonable sales support assistance,
including forwarding Sales Literature to your Customers and providing
other sales support assistance as we may request. You shall perform
all support services in a professional, competent and timely manner.
(c ) We shall furnish you upon request with a reasonable quantity of
copies of the Sales Literature. Ifwe supply you with copies of any
Fund prospectus or statement of additional information supplements,
you agree to affix copies of the supplements as appropriate and
distribute only appropriately supplemented prospectuses or statements
of additional information. You agree not to use Sales Literature with
your Customers unless
Form of Selling Agreement (Dealer) (9/07)
accompanied or preceded by the Prospectus. You agree not to amend or
translate any Sales Literature. You agree that any supplemental
literature we provide you regarding hypothetical investments may be
used only in "one-on-one presentations" within the meaning of the
rules of the National Association of Securities Dealers, Inc.
("NASD").
(d) You shall submit any sales literature or materials or advertising you
prepare regarding the Funds to us for our prior approval. We may
withdraw our approval of any such materials upon notice. You shall
then immediately discontinue using those materials. You are
responsible for ensuring that any such materials are prepared and
distributed in accordance with Applicable Law, including any filing
obligations.
5. Purchase, Redemption and Exhchange of Fund Shares:
(a) You agree: (i) to offer and sell each class of each Fund's shares at
the applicable public offering price; (ii) that redemptions of shares
will be made at the net asset value of such shares, less any
applicable deferred sales charges or redemption fees; and (iii) that
exchanges of shares will be made at the net asset value of such
shares, less any applicable sales charges and/or redemption fees, all
as provided in the Prospectus.
(b) All purchase and exchange orders are subject to acceptance and
confirmation by us, the Funds and their transfer agent (the "Transfer
Agent"). You agree to date and time stamp all orders you receive and
to forward all orders to the Transfer Agent in proper form for
processing at the next-determined share price after your receipt.
(c) You agree to offer and sell the Funds' shares in compliance with the
Funds' Prospectus requirements and you further agree that you have
systems, procedures and/or policies in place designed to ensure that
you are complying with all tenns of this Agreement, the Prospectus
requirements and all relevant rules and regulations regarding the
handling of mutual fund share orders on a timely basis.
(d) You may not make any conditional or contingent orders for any Fund's
shares. We may in our sole discretion reject any purchase order in
whole or in part. We also may in our discretion suspend sales or
withdraw the offering of shares, in whole or part, without notice to
you.
(e) If you place a purchase order and payment for shares is not received
or made within the time set forth in the Prospectus, the sale may be
canceled without any responsibility or liability on the part of us,
the Funds or the Transfer Agent or we may elect to buy the shares. We
shall have no liability for any check or other item returned unpaid to
you after you have paid us on behalf of a Customer.
(f) If you place a redemption order and the Transfer Agent does not
receive instructions in proper form, including any outstanding
certificates, within the time set forth in the Prospectus, the
redemption may be canceled without any responsibility or liability on
the part of us, the Funds or the Transfer Agent or we may elect to buy
the shares redeemed. We may refuse to liquidate an investment or part
of an investment unless we receive your Customer's signed
authorization of the liquidation.
(g) You agree that if a Customer's Fund shares are redeemed within seven
business days after the confirmation of the original order, you will
refund the full concession allowed. The provisions of this sub-Section
shall survive the termination of this Agreement.
Form of Selling Agreement (Dealer) (9/07)
(h) You agree to be responsible to the Funds, the Transfer Agent and us
for any losses, claims, damages or expenses resulting from your: (i)
failure to make any payment for, or settle any redemption of, Fund
shares pursuant to this Agreement or (ii) correction or cancellation
of any order after its trade date. You will immediately pay such loss,
claim, damage or expense to us, the Transfer Agent or the Funds, as
appropriate, upon notification.
(i) You acknowledge that the Funds do not issue share certificates.
(j) You further agree:
(i) to purchase shares only to cover purchase orders you already have
received, or for your own investment;
(ii) to maintain records of all transactions in Fund shares made
through you and to furnish us with copies on request;
(iii) not to withhold placing Customers' orders for shares so as to
profit as a result of such withholding;
(iv) to comply with the standards for reducing or eliminating sales
charges as set forth in the Prospectus and to not place orders
for Fund shares in amounts just below the breakpoint at which
sales charges are reduced so as to benefit from a higher sales
charge applicable to the amount below the breakpoint; and
(v) to purchase Fund shares only through us.
6. Shareholder Information: The terms of Schedule 22c-2 hereto are
incorporated herein by reference.
7. Servicing Beneficial Owners of Fund Shares: If your Customers hold
positions in shares of a class or classes upon which you receive
shareholder servicing or shareholder administration fees, you agree that
the provisions of Schedule D shall apply.
8. Compensation:
(a) The total sales charges and your dealer concessions (if any) on each
purchase of Fund shares shall be as stated in the Prospectus, subject
to Applicable Law including NASD rules. You must notify the Transfer
Agent that an order qualifies for a reduction in, or waiver of, sales
charges at the time of the order placement in order for the Customer
to obtain the reduction or waiver. If you fail to so notify, neither
we, the Transfer Agent nor any of the Funds will be liable for
reimbursing the Customer for the reduction or waiver that should have
been effected. You agree to ensure that every Customer receives the
benefit of any appropriate reduction in or waiver of a sales charge as
described in the Prospectus. There is no sales charge or discount on
reinvested dividends.
(b) As compensation for the sales support assistance described in
sub-Section 4(b), we also may arrange for you to be paid a periodic
fee based upon a percentage of the average daily net asset value of
the respective Fund's shares attributable to you. We will inform you
of the amount of the fee (if any) and may arrange for the fee payable
to be changed upon prior notice. Our liability to you for the payment
of a distribution or service fee related to a Fund for any period is
limited solely to the proceeds of that Fund's distribution or service
fee
Form of Selling Agreement (Dealer) (9/07)
actually received by us for such period. We may stop paying
distribution and service fees for any Fund at any time without notice
to you. Each Fund reserves the right to establish and change minimum
asset amounts at the representatives level and dealer level as
conditions for its obligations to pay service fees.
(c) You may charge reasonable service fees to your Customers for
processing exchange or redemption orders, provided you disclose the
fees to your Customers and that such fees do not constitute sales
loads as defined in Section 2(a)(35) of the 1940 Act.
9. Compliance with Law:
(a) You represent and warrant to us that: (i) your compliance personnel
have sufficient expertise and experience to implement this Agreement
in accordance with its terms; (ii) you have in place compliance
systems, policies and procedures designed to detect and prevent late
trading of mutual fund shares; and (iii) you have adequate qualified
personnel and systems to comply with any restrictions and limitations
on purchases, redemptions and exchanges described in the Prospectus,
including any restrictions or prohibitions relating to frequent
purchases and redemptions (i.e., market timing) and any share purchase
eligibility requirements.
(b) You agree to comply with Applicable Law and, if applicable, the rules
of the National Securities Clearing Corporation ("NSCC"). You shall
have sole responsibility for the registration and licensing of persons
selling Fund shares on your behalf and the manner of sale of Fund
shares by you or those that sell on your behalf.
(c) You agree to cooperate fully with any and all efforts by us or the
Funds to assure ourselves that you have implemented effective
compliance policies and procedures administered by qualified personnel
including, without limitation:
(i) permitting us and the Funds to become familiar with your
operations and understand those aspects of your operations that
expose us or the Funds to compliance risks;
(ii) permitting us and the Funds to maintain an active working
relationship with your compliance personnel;
(iii) providing us and the Funds with periodic and special reports III
the event of compliance problems;
(iv) providing us and the Funds with such certifications as we may
require on a periodic or special basis; and
(v) making your personnel and applicable policies and procedures
available to such audit personnel as we or the Funds may
designate to audit the effectiveness of your compliance controls.
10. Customer Instructions:
(a) You represent and warrant that you have full authority to act on
behalf of each Customer and will act only in accordance with the scope
of your authority when acting on behalf of the Customer.
Form of Selling Agreement (Dealer) (9/07)
(b) If a Customer's account with a Fund is established without the
Customer signing an account application, you represent and warrant
that the instructions relating to account establishment and
shareholder options (whether on the account application, in another
document or orally) are in accordance with the Customer's
instructions.
(c) You agree to provide all necessary information for us and the Funds to
comply properly with all federal, state and local reporting
requirements for your Customer accounts. You represent and warrant
that all Taxpayer Identification Numbers ("TINs") you provide are
certified and that you will not establish an account without a
certified TIN.
(d) You agree to be responsible to the Funds, the Transfer Agent and us
for any losses, claims, damages or expenses resulting from acting upon
such authority, instructions and performance.
11. Distribution of Information to Shareholders: You agree that we, the Funds
and the Transfer Agent may mail or otherwise distribute to Fund
shareholders any material concerning the Funds or other funds or services.
If you hold Fund shares in record name or as nominee for your Customers,
all Prospectuses, proxy statements, shareholder reports, and other printed
material will be sent to you, and any confirmations and other
communications to shareholders will be transmitted to you. You will be
responsible for forwarding such printed material, confirmations, and
communications, or the information contained therein, to all Customers for
whose account you hold Fund shares.
12. Nature of Relationship: You have no authority to act as agent for, partner
of, or participant in a joint venture with, the Funds or us or any of our
affiliates. Nothing in this Agreement shall constitute either of us the
agent of the other or you or the Funds the agent of each other, except that
you shall be deemed an agent of the Funds for the sole and limited purpose
of receiving orders for Fund shares pursuant to sub-Section 5(b), to the
extent that such an agency relationship is required by Applicable Law.
13. Protection Against Unauthorized Use Of Recordkeeping Systems: You agree to
provide such security as is necessary to prevent any unauthorized use of
the Funds' recordkeeping systems, accessed via any computer hardware or
software provided to you by us or the Transfer Agent.
14. Reports: Upon our request, you agree to report to us in writing on the
amounts you spend in connection with providing services pursuant to Section
4 and their purposes. You also agree to cooperate with us in our reporting
to the Board of Trustees of CMD Distributed Funds or regulators concerning
this Agreement and the amounts you spend.
15. Disclosures to Shareholders: You agree to disclose your compensation under
this Agreement, together with any other compensation you receive in
connection with your Customers' investments in Fund shares, to your
Customers as required by Applicable Law and to the extent necessary to
ensure that your Customers fully understand all such compensation and any
conflicts of interest related to your receipt of such compensation. You
also agree and warrant that your Customers will authorize your compensation
and that your compensation will not be excessive or unreasonable.
Form of Selling Agreement (Dealer) (9/07)
16. Privacy and Confidential Information:
(a) "Confidential Information" means this Agreement and all proprietary
information, data, trade secrets, business information and other
information of any kind which (a) a party ("Discloser") discloses to
the other party ("Recipient") or to which Recipient obtains access in
connection with this Agreement and (b) relates to (i) the Discloser,
(ii) in your case, us, the Funds, the Transfer Agent or our
affiliates, or (iii) third-party suppliers or licensors who have made
confidential or proprietary information available. Confidential
Information includes Customer and account information.
(b) The Recipient shall not disclose or use Confidential Information other
than in the course of ordinary business to carry out the purpose for
which the Confidential Information was provided to the Recipient. The
Recipient also shall not disclose Customer information on other than a
"need to know" basis and then only to: (i) Recipient's employees or
officers; (ii) affiliates of Recipient provided they shall be
restricted in use and redisclosure to the same extent as Recipient; or
(iii) carefully selected subcontractors that have entered into
confidentiality agreements no less restrictive than the terms of this
Agreement; or pursuant to the exceptions set forth in 15 USC 6802( e)
and associated regulations. Prior to any disclosure of Confidential
Information as required by law, the Recipient shall (i) notify the
Discloser of any actual or threatened legal compulsion of disclosure
and any actual legal obligation of disclosure immediately upon
becoming so obligated and (ii) cooperate with the Discloser's
reasonable, lawful efforts to resist, limit or delay disclosure.
Nothing in this Section shall require any notice or other action by us
or our affiliates in connection with requests or demands for
Confidential Information by applicable regulators. The restrictions
set forth herein shall survive the termination of this Agreement.
(c) These confidentiality obligations do not apply to information which:
Recipient already rightfully possesses when disclosed by Discloser;
Recipient independently develops; becomes publicly known other than by
breach of this Section; or Recipient rightfully receives from a third
party without the obligation of confidentiality.
(d) You acknowledge that we must comply with the information security
standards of the Xxxxx-Xxxxx-Xxxxxx Act (15 USC 6801, 6805(b)(1)) and
the regulations promulgated thereunder and with other statutory and
regulatory requirements as well as our internal information security
program. You will reasonably assist us in complying and conforming
with our information protection policies. We will inform you of our
requirements in this regard.
17. Know Your Customer/Anti-Money Laundering: Upon request, you will promptly
provide us such documentation regarding your know your customer and
anti-money laundering policies and/or evidencing the identity of the
beneficial owners of Fund shares as is necessary to permit us, the Funds
and the Transfer Agent to comply with applicable "know your customer" and
anti-money laundering laws and regulations. You agree to monitor for
suspicious transactions and to assist us in monitoring for such
transactions upon our or the Funds' request. You further represent and
warrant that you: (i) have established policies and procedures designed to
prevent and detect money laundering and to meet applicable antimoney
laundering legal and regulatory requirements; (ii) have procedures to
ensure that none of your Customers holding Fund shares appear on or are
covered by any lists of prohibited persons, entities, and jurisdictions
maintained and administered by the U.S. Treasury Department's Office of
Foreign Assets Control ("OFAC"); (iii) have identified, will continue to
identify and will retain all documentation necessary to identify your
Customers and their
Form of Selling Agreement (Dealer) (9/07)
sources of funds; and (iv) do not believe, have no current reason to
believe and will notify us immediately if you come to have reason to
believe that any of your Customers holding Fund shares through you are
engaged in money-laundering activities or are associated with any terrorist
or other individuals, entities or organizations sanctioned by the United
States or the jurisdictions in which you do business, or appear on any
lists of prohibited persons, entities, and jurisdictions maintained and
administered by OF AC.
18. Indemnification: You shall indemnify and hold harmless us, each Fund, the
Transfer Agent, and our and their respective subsidiaries, affiliates,
officers, directors, trustees, agents and employees from all direct or
indirect liabilities, damages, losses, costs or expenses (including
attorneys' fees) arising from, related to or otherwise connected with (i)
any breach by you of any provision of this Agreement; (ii) any violation by
you of Applicable Law; or (iii) any actions or omissions by us, any Fund,
the Transfer Agent, and our and their subsidiaries, affiliates, officers,
directors, trustees, agents and employees made in reliance upon any
instructions believed to be genuine and to have been given on your behalf.
The provisions of this Section shall survive the termination of this
Agreement.
19. Third Party Beneficiaries: Each Fund is an intended third party beneficiary
of Section 3 of Schedule D of this Agreement. Each Fund and the Transfer
Agent are intended third party beneficiaries of Section 5(h) of this
Agreement. Each Fund, the Transfer Agent and their respective subsidiaries,
affiliates, officers, directors, trustees, agents and employees are
intended third party beneficiaries of Section 18 of this Agreement. Any
such intended third party beneficiary shall be treated as a party to this
Agreement solely to the extent necessary for such third party beneficiary
to enforce its rights under this Agreement.
20. Clearing Services: If you provide brokerage clearing services to financial
intermediaries who wish to sell Fund shares ("Originating Firms"), the
terms of Schedule E shall apply.
21. NSCC: If you and we use the services of the NSCC, the terms of Schedule F
shall apply.
22. Wrap and Similar Programs: If you intend to offer and sell the Funds'
shares through a wrap or similar managed account, you shall be subject to a
separate supplement with us regarding the treatment of such account, which
shall be incorporated by reference into and considered a part of this
Agreement.
23. Amendment and Termination of Agreement: From and after the Effective Date,
this Agreement shall cancel and supersede any and all prior similar
agreements or contracts relating to the distribution of the shares between
you and the Funds or their distributor. We reserve the right to amend or
assign (to the extent assignment is permitted under Applicable Law) this
Agreement at any time. You shall accept any amendment to or assignment of
this Agreement by us by placing an order after the date set forth in any
notice of amendment or assignment we send you. This Agreement shall
automatically terminate upon its assignment (as defined in the 1940 Act).
You shall provide us reasonable written notice of such an assignment.
Either party may terminate this Agreement upon reasonable written notice
and all obligations to make payments under this Agreement shall terminate
upon such termination. This Agreement also may be terminated automatically
and without payment of penalty with respect to a Fund by a vote of the
majority of the independent directors/trustees of the legal entity of which
the Fund is a series, or upon 60 days notice by a vote of the majority (as
defined in the 0000 Xxx) of the Fund's outstanding shares.
Form of Selling Agreement (Dealer) (9/07)
24. Notices:
You will send any notice to us by first class mail, postage prepaid, or by
confirmed telefacsimile at:
Columbia Management Services, Inc.
Attn: Dealer File Department
Xxx Xxxxxxxxx Xxxxxx
XX0-000-00-00
Xxxxxx, XX 00000
Telefacsimile: (000) 000-0000
We or the Funds will send any notice to you by first class mail, postage
prepaid, or by confirmed telefacsimile to you at your address or te1efacsimile
number as set forth below or such other address or telefacsimile number as we
may reasonably believe appropriate.
Firm: American United Life Insurance Co.
Attn: Xxxxx Xxxxx cc: Xxxxxxx Xxxxxx
Address: Xxx Xxxxxxxx Xxxxxx, X.X. Xxx 000
Xxxxxxxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Telefacismile: 000-000-0000
A party that changes its address or telefacsimile number shall promptly notify
the other party.
25. Use of Trademarks, Servicemarks and Fund Names: We, our affiliates and the
Funds own certain registered trademarks, service marks and Fund names
(collectively, the "Logos"). If you wish to include Logos in your
promotional materials (collectively, "Sales Materials") or use a Logo as a
hyperlink from an Internet Web site you own and/or control, we grant you a
non-exclusive, non-transferable, royalty-free license to use the Logos in
Sales Materials and as a hyperlink, provided:
(a) You agree that we, our affiliates and the Funds own all rights, title
and interest in the Logos. You agree to do nothing inconsistent with
our, our affiliates' and the Funds' ownership of the Logos and not to
contest or aid anyone contesting any registration or application for
registration of the Logos by us, our affiliates and the Funds;
(b) You agree to use the Logos only in the form and manner we pre-approve.
You agree to use only those Logos as we may specify as hyperlinks. You
shall not use a Logo as a hyperlink in any manner that would imply
that we, our affiliates or the Funds endorse or recommend any of your
products or services.
(c) You agree to place all necessary and proper notices and legends on the
Sales Materials in order to protect our, our affiliates' and the
Funds' interests in the Logos including symbols indicating trademarks,
servicemarks and registered trademarks or servicernarks, as we
request.
(d) You agree to notify us of any unauthorized use of the Logos by others
promptly after it comes to your attention and that we have the sole
right and discretion to commence actions
Form of Selling Agreement (Dealer) (9/07)
or other proceedings for infringement, unfair competition or the like
involving the Logos. You shall cooperate in any such proceedings if we
request.
(e) The license granted shall terminate automatically upon our notice or
upon termination of this Agreement. In those events, you agree to
cease using all Logos in Sales Materials immediately and to destroy at
your expense all Sales Materials in your possession bearing the Logos.
You also agree that all rights in the Logos and in any connected
goodwill shall remain our property.
26. Governing Law/Dispute Resolution:
(a) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts without giving effect to
conflict of laws principles.
(b) It is agreed and understood that if you are a member of the NASD, to
the extent applicable the rules of the NASD will apply to resolution
of disputes between you and us. You further agree that if for any
reason any dispute under this Agreement is not subject to resolution
through dispute resolution procedures of the NASD and cannot be
resolved through informal discussion between you and us, the dispute
will be submitted to mediation administered by JAMS (Judicial
Arbitration and Mediation Service) at the JAMS office located in
Boston, Massachusetts. Any such mediation will be conducted with a
JAMS mediator and under then-applicable JAMS rules and procedures. You
and we will share equally the fees of JAMS and the mediator, but will
bear your or our respective attorneys fees and other expenses of
participating in the mediation. If the dispute is not resolved through
informal discussion or mediation, you or we may file a lawsuit in
Massachusetts. You hereby consent to the jurisdiction of the state or
federal courts in the state of Massachusetts to adjudicate any such
lawsuit and to bring any such lawsuit only in a state or federal court
in Massachusetts. Further, you agree that trial of any such lawsuit
will be conducted without a jury, that any and all issues of fact or
law will be determined by the court sitting without a jury, and that
the court will determine and enter the verdict in the trial of any
such lawsuit. You waive any right to trial by jury of any lawsuit
involving any dispute under this Agreement.
27. Miscellaneous:
(a) This Agreement is in all respects subject to the Conduct Rules of the
NASD, which shall control and override any provision to the contrary
in this Agreement. You acknowledge that this Agreement is subject to
Applicable Law, and has been entered into pursuant to Rule l2b-l under
the 1940 Act if you sell shares for which a distribution plan has been
adopted pursuant to Rule l2b-l.
(b) If any of your accounts with us pursuant to this Agreement have a
debit balance, we may offset and recover the amount owed from any
other account you have with us or our affiliates, without notice or
demand to you.
(c) The headings in this Agreement are for convemence only and are not to
be used 111 interpreting this Agreement.
(d) This is the entire agreement and understanding between us and you as
to the matters set forth herein. It shall be binding upon the parties
when signed by us and accepted by you.
Form of Selling Agreement (Dealer) (9/07)
(e) This Agreement may be executed in couterparts.
(f) The illegality, invalidity or unenforceability of any provision of
this Agreement under the law of any jurisdiction shall not affect its
legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any other
provision.
Colubia Management Distributors, Inc.
By: /s/ Xxxx Xxx Xxxxx
Title: Managing Director
Effective Date: 1/24/08
You accept this invitation and agree to abide by the foregoing terms and
conditions.
Firm Name: American United Life Insurance Co.
By: /s/ Xxxxx X. Xxxxx
Title: Assistant Vice President
Please execute this Agreement in duplicate and return both copies to us.
Form of Selling Agreement (Dealer) (9/07)
SCHEDULE A
Fund Familes:
Columbia Funds
Excelsior Funds
SCHEDULE B
Additional terms for registered broker-dealers:
1. You represent that you are a member in good standing of the NASD, will
comply with the NASD Conduct Rules and are qualified to act as a
broker-dealer in each state or other jurisdiction in which you transact
business, and agree to maintain such registrations, qualifications and
membership in good standing in full force and effect throughout the term of
this Agreement.
2. You agree that this Agreement shall automatically terminate without notice
if:
(a) an application for a protective decree under the provisions of the
Securities Investor Protection Act of 1970 has been filed against you;
(b) the SEC revokes or suspends your registration as a broker-dealer;
(c) any national securities exchange or national securities association
revokes or suspends your membership; or
(d) under any applicable net capital rule of the SEC or any national
securities exchange, your aggregate indebtedness exceeds l,OOO% of
your net capital.
You agree that you shall notify us immediately of any such proceeding,
application, revocation, suspension or indebtedness level.
Form of Selling Agreement (Dealer) (9/07)
SCHEDULE C
Additional terms for entities that are not registered broker-dealers.
1. You represent and warrant that you are exempt from registration as a
broker-dealer under the U.S. federal securities laws, and that you will
conduct your activities hereunder and otherwise in a manner so as to remain
exempt from such registration and in compliance with all laws and
regulations that are now applicable, or which may become applicable, to you
and your activities hereunder.
2. You represent and warrant that you are exempt from being required to
register or qualify to act as a broker or dealer in the states or other
jurisdictions where you transact business. If such exemption becomes no
longer available to you, you agree to immediately become registered or
qualified to act in such capacity in those jurisdictions where such
exemption is no longer available.
3. You agree that this Agreement will terminate without notice if any court or
regulatory authority with jurisdiction determines that you are acting as a
broker, dealer or similar entity on an umegistered basis in violation of
Applicable Law. You agree that you shall notify us immediately of any such
determination.
Form of Selling Agreement (Dealer) (9/07)
SCHEDULE D
This Schedule D comprises the agreement pursuant to which you may be compensated
for providing administrative support services to your Customers who may from
time to time beneficially own shares in one or more of the Funds that have a
Board approved shareholder servicing plan. To the extent that any terms of this
Schedule D conflict with any other terms of the Agreement, the tenns of this
Schedule D shall prevail as to the subject matter hereof.
(a) You agree to provide personal services to your Customers who are
investors in the Funds and/or maintain shareholder accounts, all to
the extent you are permitted to do so under Applicable Law.
(b) You shall perform such services in a professional, competent and
timely manner.
(c) You will provide such office space and equipment, telephone facilities
and personnel (which may be any part of the space, equipment and
facilities currently used in your business, or any personnel employed
by you) as may be reasonably necessary or beneficial in order to
provide the support services contemplated hereby. You and your
employees will, upon request, be available during normal business
hours to consult with us or our designees concerning the performance
of your responsibilities under this Agreement.
(d) You represent, warrant and agree that the services described in
Section lea) of this Schedule D are primarily intended to provide
administrative support to your Customers who own shares of the Funds,
not to sell shares issued by the Funds.
2. Status of Servicing Agent: For all purposes of this Agreement you will be
deemed to be an independent servicing agent, and will have no authority to
act as agent for us or the Funds in any other capacity, except as expressly
provided herein.
By your written acceptance of this Agreement, you agree to and do release,
indemnify and hold us and the Funds harmless from and against any and all direct
or indirect liabilities or losses resulting from requests, directions, actions
or inactions of or by you or your officers, employees or agents regarding your
responsibilities hereunder for the purchase, redemption, transfer or
registration of the Funds' shares (or orders relating to the same) by or on
behalf of Customers.
(a) In consideration of the services and facilities provided by you
hereunder, we or the Funds may pay to you a periodic fee based upon a
percentage of the average daily net asset value of the Fund shares
attributable to you up to the maximum fee disclosed in the prospectus
as full payment for your services. The fee rate payable to you may be
prospectively increased or decreased by the Fund, in their sole
discretion, at any time upon notice to you.
(b) Compensation payable under this Schedule D is subject to, among other
things, the NASD Conduct Rules governing receipt by NASD members of
service fees from
Form of Selling Agreement (Dealer) (9/07)
registered investment companies (the "NASD Service Fee Rule"). Such
compensation shall only be paid if permissible under the NASD Service
Fee Rule and shall not be payable for services that are deemed to be
distribution-related services.
5. Reports
You agree to furnish us and the Funds with such information as we or they
may reasonably request (including, without limitation, periodic
certifications confirming the provision to Customers of the services
described herein), and will otherwise cooperate with us and the Funds
(including, without limitation, any auditors or legal counsel designated by
us or the Funds), in connection with the preparation of reports to our
Board(s) of Directors/Trustees concerning this Agreement and the monies
paid or payable by us pursuant hereto, as well as any other reports or
filings that may be required by Applicable Law.
6. Agreement Not Exclusive
We or the Funds may enter into other similar agreements with any other person or
persons without your consent.
7. Effectiveness and Termination
(a) The Agreement, including this Schedule D, shall cancel and
supersede any and all prior Shareholder Servicing Agreements or
similar agreements or contracts relating to the provision of
similar support services between you and us or the Funds.
(b) Notwithstanding any other provision of the Agreement, this
Schedule D is terminable with respect to any series of Shares,
without penalty, at any time by the Funds (which termination may
be by a vote of a maj ority of the Directors/Trustees who are not
interested persons, as that term is defined in the 1940 Act, of
the applicable legal entity for the series of shares, as
appropriate) or by you upon written notice to us and the Funds.
Form of Selling Agreement (Dealer) (9/07)
SCHEDULE E
Clearing Services
You represent that you and each such Originating Firm are parties to a
clearing agreement which conforms to the requirements of Rule 3230 of the
NASD Conduct Rules or, as applicable, the rules of a national securities
exchange. In addition, you agree that (a) you are responsible for ensuring
that Fund shares are offered and sold by Originating Firms in compliance
with all terms and conditions of this Agreement and the Prospectus as if
you had conducted such offers and sales yourself and (b) your agreements
with each Originating Firm will comply with all arrangements of Regulation
S-P of the U.S. Securities and Exchange Commission ("SEC") and will require
each Originating Firm to adopt policies and procedures that address
suitable safeguards for the protection of consumer records and information.
Form of Selling Agreement (Dealer) (9/07)
1. You may settle Fund share redemptions via NSCC FundlServ and without a
guaranteed endorsement provided: (a) the wire order redemption request is
placed through NSCC FundlServ and (b) in the case of certificated shares,
the appropriate certificate( s) are received as settlement and the reverse
of such certificate(s) is not completed or signed in a manner deemed
inconsistent by us or the Transfer Agent.
2. If we agree to participate in the NSCC "Networking" program with you, you
and we may execute a separate agreement provided that, to the extent that
any terms of this Agreement conflict with the terms of such separate
agreement, the terms of this Agreement shall prevail. We agree that you may
act through the Transfer Agent, the Networking channels and FundlServ
without supporting documentation from your Customers (including customers
of Originating Firms if you are a clearing broker), provided:
(a) You provide all necessary, requested, updating and reconciling
information to ensure the accuracy of records and to enable the
Transfer Agent to maintain an accurate cross-reference file between
Customer records and the Fund account records, which shall remain the
official records of all Fund shareholder accounts. You agree that the
Transfer Agent will not be responsible for changes to the file until a
reasonable time after receipt.
(b) You promptly will provide us with all applicable information regarding
adverse claims, governmental and legal inquiries and correspondence.
(c) You will report to your Customers all information the Funds must
report on shareholder confimlations or otherwise under any Applicable
Law or the terms of the Prospectus or which we, the Transfer Agent or
the Funds provide you. Such reporting shall be complete, accurate and
timely.
(d) You will ensure that cash distributions are accurately paid to your
Customer at the time specified by the Fund and you shall be solely
responsible for any liabilities arising from payments reported by
Customers as lost, stolen or forged.
3. You further agree: that if you are acting as a clearing broker, you have
obtained the prior written consent of each Originating Firm to all terms of
this Schedule and the separate agreement and that all actions taken will be
approved in advarice by the applicable Originating Firm; to perform all
duties, functions or responsibilities described herein and in any
associated Networking Agreement in a businesslike and competent manner;
that you or the Originating Firm has the prior sufficient consent of each
Customer whose account is to be placed in or transferred to a Networking
account, having first informed each Customer in writing of all related
material facts; that all your instructions and actions regarding Networked
accounts will be accurate, complete and in the appropriate format; that you
will be deemed to guarantee in proper order of your Customer's signature
and the taking of any action as to which the Transfer Agent normally
requires a signature guarantee; that you will obtain and maintain, and
provide upon request, all documents or information for each Networking
account required by Applicable Law; that you will maintain adequate
insurance coverage for your obligations hereunder and provide us upon
request with an appropriate certificate of insurance; and that you will
Form of Selling Agreement (Dealer) (9/07)
perform all federal, state and local tax reporting with respect to
transactions in shares through the NSCC Fund/Serv program.
Form of Selling Agreement (Dealer) (9/07)
SCHEDULE 22C-2
As used in this Schedule 22c-2, the following terms shall have the
following meanings, unless a different meaning is clearly required by the
contexts:
The term "Intermediary" shall mean (i) any broker, dealer, bank, or other
entity that holds securities of record issued by the Fund in nominee name; and
(ii) in the case of a participantdirected employee benefit plan that owns
securities issued by the Fund (1) a retirement plan administrator under ERISA or
(2) any entity that maintains the plan's participant records.
The term "Fund" shall mean an open-ended management investment company that
is registered or required to register under section 8 of the Investment Company
Act of 1940, as amended (" 1940 Act") and includes (i) an investment adviser to
or administrator for the Fund, (ii) the principal underwriter or distributor for
the Fund ("Fund Agent"), or (iii) the transfer agent for the Fund. The term does
not include any "excepted funds" as defined in SEC Rule 22c-2(b) under the 1940
Act.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, the Fund Agent and the Intermediary
hereby agree as follows:
Shareholder Infomation:
a. Agreement to Provide Information. Intermediary agrees to provide a
Fund, Fund Agent or its affiliates or designee promptly upon written
request, the taxpayer identification number ("TIN"), ifknown, the
Individual/International Taxpayer Identification Number ("ITIN"), or
other government-issued identifier ("GII") associated with the
Shareholder, if known, of any or all Shareholder(s) of the account and
the amount, date, name or other identifier of any investment
professional(s) associated with the Shareholder(s) or account (if
known), and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange of
Shares held through an account maintained by Intermediary during the
period covered by the request.
i. Period Covered by Request. Requests must set forth a
specific period, not to exceed ninety (90) days from the
date of the request, for which transaction information is
sought. The Fund may request transaction information older
than ninety (90) days from the date of the request as it
deems necessary to investigate compliance with policies
established by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding Shares
issued by the Fund.
ii. Form and Timing of Response. Intermediary agrees to transmit
the requested information that is on its books and records
to the Fund, Fund Agent or its designee promptly, but in any
event not later than five (5) business days, after receipt
of a request. If the requested information is not on
Intermediary's books and records, Intermediary agrees to:
(i) provide or arrange to provide to the Fund the requested
information from shareholders who hold an account with an
indirect intermediary; or (ii) if directed by the Fund,
block further purchases of Fund shares from such indirect
intennediary. In such instance, Intermediary agrees to
inform the Fund whether it plans to perform (i) or (ii).
Responses required by
Form of Selling Agreement (Dealer) (9/07)
this paragraph must be communicated in writing and in a
format mutually agreed upon by the parties. To the extent
practicable, the format for any transaction information
provided to the Fund should be consistent with the NSCC
Standardized Data Reporting Format. For purposes of this
provision, an "indirect intermediary" has the same meaning
as in SEC Rule 22c-2 under the 1940 Act.
iii. Limitations on Use of Information. The Fund and Fund Agent
agree not to use the information received pursuant to this
Agreement for any purpose other than as necessary to comply
with the provisions of Rule 22c-2 or to fulfill other
regulatory or legal requirements subject to the privacy
provisions of Title V of the Oramm-Xxxxx-Xxxxxx Act (Public
Law 106-102) and comparable state laws.
b. Agreement to Restrict Trading. Intermediary agrees to execute written
instructions from the Fund or Fund Agent to restrict or prohibit
further purchases or exchanges of Shares by a Shareholder that has
been identified by the Fund as having engaged in transactions of the
Fund's Shares (directly or indirectly through the Intermediary's
account) that violate policies established by the Fund for the purpose
of eliminating or reducing any dilution of the value of the
outstanding Shares issued by the Fund.
i. Form of Instructions. Instructions must include the TIN,
ITIN or OIl and the participant account number associated
with the Shareholder, if known, and the specific
restriction(s) to be executed, including how long the
restriction(s) is(are) to remain in place. If the TIN, ITIN,
OIl or the participant account number associated with the
Shareholder is not known, the instructions must include an
equivalent identifying number of the Shareholder(s) or
account(s) or other agreed upon information to which the
instruction relates.
ii. Timing of Response. Intermediary agrees to execute
instructions as soon as reasonably practicable, but not
later than five (5) business days after receipt of the
instructions by the Intermediary.
iii. Confirmation by Intermediary. Intermediary must provide
written confirmation to the Fund and Fund Agent that
instructions have been executed. Intermediary agrees to
provide confirmation as soon as reasonably practicable, but
not later than ten (10) business days after the instructions
have been executed.
c. Definitions. For purpsoes of this Scheudle 22c-2
i. The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities ofrecord issued
by the Fund under the 1940 Act that are held by the
Intermediary.
ii. The term "Shareholder" means the beneficial owner of Shares,
whether the Shares are held directly or by the Intermediary
in nominee name.
Form of Selling Agreement (Dealer) (9/07)
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