Exhibit (e)(2) BOSC, Inc., Distributor DEALER AGREEMENT Re: American Performance Funds Ladies and Gentlemen:
Exhibit (e)(2)
BOSC, Inc., Distributor
Ladies and Gentlemen:
As the distributor of the shares (“Shares”’) of each investment company portfolio (“Fund”), of the
investment company or companies covered hereunder (collectively, “Company”) which may be amended by
us from time to time, BOSC, Inc. (“Distributor”) hereby invites you to participate in the selling
group on the following terms and conditions. In this letter, the terms “we,” “us,” and similar
words refer to the Distributor, and the terms “you,” “your,” and similar words refer to the dealer
executing this agreement, including its associated persons.
1. Dealer. You hereby represent that you are a broker-dealer properly registered and qualified
under all applicable federal, state and local laws to engage in the business and transactions
described in this agreement, and that you are a member in good standing of the National Association
of Securities Dealers, Inc. (“NASD”) and the Securities Investor Protection Corporation (“IPC”).
You agree that it is your responsibility to determine the suitability of any Fund Shares as
investments for your customers, and that we have no responsibility for such determination. You
further agree to maintain all records required by Applicable Laws (as defined below) or that are
otherwise reasonably requested by us relating to your transactions in Fund Shares. In addition, you
agree to notify us immediately in the event your status as a member of the NASD or SIPC changes.
2. Qualification of Shares. We will make available to you a list of the states or other
jurisdictions in which Fund Shares are registered for sale or are otherwise qualified for sale,
which may be revised from time to time. You will make offers of Shares to your customers only in
those states, and you will ensure that you (including your associated persons) are appropriately
licensed and qualified to offer and sell Shares in any state or other jurisdiction that requires
such licensing or qualification in connection with your activities.
3. Orders. All orders you submit for transactions in Fund Shares shall reflect orders received
from your customers or shall be for your account for your own bona fide investment, and you will
date and timestamp your customer orders and forward them promptly each day and in any event prior
to the time required by the applicable Fund prospectus (the “Prospectus,” which for purposes of
this agreement includes the Statement of Additional Information incorporated therein). As agent for
your customers, you shall not withhold placing customers’ orders for any Shares so as to profit
yourself or your Customer as a result of such withholding. You are hereby authorized to: (i) place
your orders directly with the relevant investment company (the “Company”) for the purchase of
Shares and (ii) tender Shares directly to the Company for redemption, in each case subject to the
terms and conditions set forth in the Prospectus and any operating procedures and policies
established by us from time to time. All purchase orders you submit are subject to acceptance or
rejection, and we reserve the right to suspend or the limit the sale of Shares. You are not
authorized to make any representations concerning Shares of any Fund except such representations as
are contained in the Prospectus and in such supplemental written information that we may provide to
you with respect to a Fund. All orders that are accepted for the purchase of Shares shall be
executed at the next determined public offering price per share (i.e., the net asset value per
share plus the applicable sales load, if any) and all orders for the redemption of Shares shall be
executed at the next determined net asset value per share and subject to any applicable redemption
fee, in each case as described in the Prospectus.
4. Compliance with Applicable Laws; Distribution of Prospectus and Reports; Confirmations. In
connection with its respective activities hereunder, each party agrees to abide by the Conduct
Rules of the NASD and all other rules of self-regulatory organizations of which the relevant party
is a member, as well as all laws, rules and regulations, including federal and state securities
laws, that are applicable to the relevant party (and its associated persons) from time to time in
connection with its activities hereunder (“Applicable Laws”). You are authorized to distribute to
your customers the current Prospectus, as well as any supplemental sales material received from us
(on the terms and for the period specified by us or stated in such material). You are not
authorized to distribute, furnish or display any other sales or promotional material relating to a
Fund without our written approval, but you may identify the Funds in a listing of mutual funds
available through you to your customers. Unless otherwise mutually agreed in writing, you shall
deliver or cause to be delivered to each customer who purchases shares of any Funds from or through
you, copies of all annual and interim reports, proxy solicitation materials, and any other
information and materials relating to such Funds and prepared by or on behalf of the Funds or us.
If required by Rule 10b-10 under the Securities Exchange Act or other Applicable Laws, you shall
send or cause to be sent confirmations or other reports to your customers containing such
information as may be required by Applicable Laws.
5. Sales Charges and Concessions. On each purchase of Shares by you (but not including the
reinvestment of any dividends or distributions), you shall be entitled to receive such dealer
allowances, concessions, sales charges or other compensation, if any, as may be set forth in the
Prospectus. Sales charge reductions and discounts may be available as provided in the Prospectus.
To obtain any such reductions, the Company or Distributor must be notified promptly when a
transaction or transactions would qualify for the reduced charge and you must submit information
that is sufficient (in the discretion of the Company and/or us) to substantiate qualification
therefor. The foregoing shall include advising us of any Letter of Intent signed by your customer
or of any Right of Accumulation available to such customer. If you fail to so advise us, you will
be liable for the return of any commissions plus interest thereon. Rights of accumulation
(including rights under a Letter of Intent) are available, if at all, only as set forth in the
Prospectus, and you authorize any adjustment to your account (and will be liable for any refund) to
the extent any allowance, discount or concession is made and the conditions therefor are not
fulfilled. Each price is always subject to confirmation, and will be based upon the net asset value
next determined after receipt of an order that is in good form. If any Shares purchased are
tendered for redemption or repurchased by the Fund for any reason within seven business days after
confirmation of the purchase order for such Shares, you agree to promptly refund the full sales
load or other concession and you will forfeit the right to receive any compensation allowable or
payable to you on such Shares. We reserve the right to waive sales charges. You represent to us
that you are eligible to receive any such sales charges and concessions paid to you by us under
this section.
6. Transactions in Funds Shares. With respect to all orders you place for the purchase of Fund
Shares, unless otherwise agreed, settlement shall be made with the Company within three (3)
business days after acceptance of the order. If payment is not so received or made, the transaction
may be cancelled. In this event or in the event that you cancel the trade for any reason, you agree
to be responsible for any loss resulting to the Funds or to us from your failure to make payments
as aforesaid. You shall not be entitled to any gains generated thereby. You also assume
responsibility for any loss to a Fund caused by any order placed by you on an “as-of” basis
subsequent to the trade date for the order,
and will immediately pay such loss to the Fund upon notification or demand. Such orders shall
be acceptable only as permitted by the Company and shall be subject to the Company’s policies
pertaining thereto, which may include receipt of an executed Letter of Indemnity in a form
acceptable to us prior to the Company’s acceptance of any such order
7. Accuracy of Orders; Customer Signatures. You shall be responsible for the accuracy, timeliness
and completeness of any orders transmitted by you on behalf of your customers by any means,
including wire or telephone. In addition, you agree to guarantee the signatures of your customers
when such guarantee is required by the Company and you agree to indemnify and hold harmless all
persons, including us and the Funds’ transfer agent, from and against any and all loss, cost,
damage or expense suffered or incurred in reliance upon such signature guarantee.
8. Indemnification. You agree to indemnify us and hold us harmless from and against any claims,
liabilities, expenses (including reasonable attorneys fees) and losses resulting from (i) any
failure by you to comply with Applicable Laws in connection with activities performed under this
agreement, or (ii) any unauthorized representation made by you concerning an investment in Fund
Shares. We agree to indemnify you and hold you harmless from and against any claims, liabilities,
expenses (including reasonable attorneys fees) and losses resulting from (i) any failure by us to
comply with Applicable Laws in connection with our activities as Distributor under this agreement,
or (ii) any untrue statement of a material fact set forth in a Fund’s Prospectus or supplemental
sales material provided to you by us (and used by you on the terms and for the period specified by
us or stated in such material), or omission to state a material fact required to be stated therein
to make the statements therein not misleading; provided, however, that the indemnification in this
clause (ii) shall be limited to indemnification actually received by us as Distributor from the
Funds, except to the extent that the relevant claims, liabilities, expenses and losses result from
our own failure to exercise reasonable care in the preparation or review of the Prospectus or such
other materials
9. Multi-Class Distribution Arrangements. You understand and acknowledge that the Funds may offer
Shares in multiple classes, and you represent and warrant that you have established compliance
procedures designed to ensure that your customers are made aware of the terms of each available
class of Fund Shares, to ensure that each customer is offered only Shares that are suitable
investments for him or her, to ensure that each customer is availed of the opportunity to obtain
sales charge break points as detailed in the Prospectus, and to ensure proper supervision of your
representatives in recommending and offering the Shares of multiple classes to your customers.
10. Anti-Money Laundering Compliance. Each party to this agreement acknowledges that it is a
financial institution subject to the USA Patriot Act of 2001 and the Bank Secrecy Act
(collectively, the “AML Acts”), which require, among other things, that financial institutions
adopt compliance programs to guard against money laundering. Each party represents and warrants
that it is in compliance and will continue to comply with the AML Acts and applicable rules
thereunder (“AML Laws”), including NASD Conduct Rule 3011, in all relevant respects. The parties
agree to cooperate with one another to satisfy AML due diligence policies of the Company and
Distributor, which may include annual compliance certifications and periodic due diligence reviews
and/or other requests deemed necessary or appropriate by us to ensure compliance with AML Laws.
11. Privacy. The parties agree that any Non-public Personal Information, as the term is defined in
Regulation S-P (“Reg S-P”) of the Securities and Exchange Commission, that may be disclosed
hereunder, is disclosed for the specific purpose of permitting the other party to perform the
services set forth in this agreement. Each party agrees that, with respect to such information, it
will comply with Reg
S-P and that it will not disclose any Non-Public Personal Information received
in connection with this agreement to any other party, except to the extent required to carry out the services set forth in
this agreement or as otherwise permitted by law.
12. Distribution and/or Service Fees. Subject to and in accordance with the terms of each
Prospectus and the Distribution Plan and/or Service Plan, if any, adopted by resolution of the
Board pursuant to Rule 12b-1 under the Investment Company Act of 1940 (the “1940 Act”), we may pay
financial institutions with which we have entered into an agreement in substantially the form
annexed hereto as Appendix A or such other form as may be approved from time to time by the Board
(the “Fee Agreement”) such fees as may be determined in accordance with such Fee Agreement, for
distribution, shareholder or administrative services, as described therein.
13. Order Processing. In accordance with NASD Notice to Members 03-50 (reminding members of their
responsibility to ensure that they have in place policies and procedures reasonably designed to
detect and prevent the occurrence of mutual fund transactions that would violate Rule 22c-1 under
the 1940 Act, NASD Rule 2110 and other applicable rules and regulations), you represent that you
have reviewed your policies and procedures to ensure that they are adequate with respect to
preventing violations of law and prospectus requirements related to timely order-taking and market
timing activity, and you hereby provide the confirmation set forth on Appendix B hereto. You
represent that you will be responsible for the collection and payment to the Company of any
Redemption Fees based upon the terms outlined in the Company’s prospectus.
14. Amendments. This agreement may be amended from time to time by the following procedure. We
will mail a copy of the amendment to you at your address shown below or as registered as your main
office from time to time with the NASD. If you do not object to the amendment within fifteen (15)
days after its receipt, the amendment will become a part of this agreement. Your objection must be
in writing and be received by us within such fifteen (15) days. All amendments shall be in writing
and except as provided above shall be executed by both parties.
15. Termination. This agreement will terminate automatically upon the termination of the
Distribution Agreement between us and the Funds. This agreement may be terminated by either party,
without penalty, upon ten days’ prior written notice to the other party. Any unfulfilled
obligations hereunder, and all obligations of indemnification, shall survive the termination of
this agreement.
16. Notices. All notices and communications to us shall be sent to us at One Xxxxxxxx Center,
Plaza Level, Bank of Xxxxxxxx Xxxxx, Xxxxx, XX, 00000, Attn: Compliance, or at such other address
as we may designate in writing. All notices and other communication to you shall be sent you at the
address set forth below or at such other address as you may designate in writing. All notices
required or permitted to be given pursuant to this agreement shall be given in writing and
delivered by personal delivery, by postage prepaid mail, or by facsimile or similar means of
same-day delivery, with a confirming copy by mail.
17. Authorization. Each party represents to the other that all requisite corporate proceedings have
been undertaken to authorize it to enter into and perform under this agreement as contemplated
herein, and that the individual that has signed this agreement below on its behalf is a duly
elected officer that has been empowered to act for and on behalf of such party with respect to the
execution of this agreement.
18. Compliance with Rule 22c-2 of the Investment Company Act of 1940. You agree to enter into a
Rule 22c-2 Shareholder Information Agreement (“SIA”) regarding the American Performance Funds.
A copy of the American Performance Funds’ SIA will be provided to you along with this Dealer
Agreement. The American Performance Funds’ SIA adopts, in all relevant terms, the model contract
language proposed by the Investment Company Institute to address the Rule 22c-2 redemption fee rule
requirements.
19. Miscellaneous. This agreement supersedes any other agreement between the parties with respect
to the offer and sale of Fund Shares and other matters covered herein. The invalidity or
unenforceability of any term or provision hereof shall not affect the validity or enforceability of
any other term or provision hereof. This agreement may be executed in any number of counterparts,
which together shall constitute one instrument. This agreement shall be governed by and construed
in accordance with the laws of the State of Oklahoma without regard to conflict of laws principles,
and shall bind and inure to the benefit of the parties hereto and their respective successors and
assigns.
If the foregoing corresponds with your understanding of our agreement, please sign this document
and the accompanying copies thereof in the appropriate space below and return the same to us,
whereupon this agreement shall be binding upon each of us.
BOSC, Inc.
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