Exhibit (e)(2)
SELLING AGREEMENT FOR
THE GOVETT FUNDS
TO: FIRST DATA DISTRIBUTORS, INC.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
FROM:
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Name of Firm
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Address of Principal Office
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City, State, Zip Code
Ladies and Gentlemen:
For the mutual promises contained herein and other good and valuable
consideration, we enter into this Agreement with you for the sale of the shares
(the "Shares") of THE GOVETT FUNDS (the "Fund") of which you are the
Distributor and whose Shares are offered at the net asset value next determined
after a purchase order is effective plus any applicable sales charge (the
"Current Offering Price"). Upon acceptance of this Agreement by you, we
understand that we may offer and sell Shares of the Fund (including Shares of
any and all series or portfolios thereof (individually, a "Portfolio" and
collectively, the "Portfolios") and any classes thereof) subject, however, to
all of the terms and conditions hereof and to your right, without notice, to
suspend or terminate the sale of Shares.
1. We understand that we will be compensated by you as set forth in the
applicable current Prospectus for each Portfolio for services that we
provide pursuant to this Agreement. The term "Prospectus" herein refers to
the prospectus on file with the Securities and Exchange Commission (the
"SEC") which is part of the registration statement of the Fund under the
Securities Act of l933, as amended. We acknowledge that any compensation
paid to us is subject to the terms of the Rule 12b-1 Plan adopted by the
Portfolios (the "Plan"), Rule 12b-1 promulgated pursuant to the Investment
Company Act of 1940, as amended, and all rules and regulations of the
National Association of Securities Dealers, Inc. (the "NASD").
2. We desire to make the Shares available to our customers and you will
confirm transactions in accordance with the terms and conditions set forth
herein.
a. The customers in question are for all purposes our customers and not
your customers. You shall execute our transactions for each of our
customers only upon our authorization; it being understood in all
cases that (i) we are acting as the agent for the customer; (ii) as
between us and the customer, the customer will have beneficial
ownership of the securities; (iii) each transaction is initiated
solely upon the order of the customer; (iv) each transaction shall be
executed by the Fund only upon receipt of instructions from us acting
as agent for our customer, and (v) each transaction is for the account
of the customer and not for our account. We represent and warrant
that we will have the full right, power and authority to effect
transactions (including without limitation, placing any purchase and
redemptions) in Shares on behalf of all customer accounts provided by
us to you or to any transfer agent of the Fund as such term is defined
in the Prospectus of the Fund (the "Transfer Agent"). We shall be
responsible for opening and approving and monitoring customer
accounts, all in accordance with applicable law, including the rules
of the SEC and NASD.
b. Orders for Shares received from us will be accepted by you only at the
price and other terms, applicable to each order as described in the
then current prospectus of the Fund or the Portfolio.
c. We will provide the following support services to customers who may
from time to time beneficially own Shares of the Fund: (i)
aggregating and processing purchase and redemption requests for Shares
from customers and placing net purchase and redemption orders with the
Distributor; (ii) providing customers
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FIRST DATA DISTRIBUTORS INC. ON BEHALF OF THE GOVETT FUNDS
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with a service that invests the assets of their accounts in Shares
pursuant to specific or pre-authorized instructions; (iii) processing
dividend payments from the Fund on behalf of customers; (iv) providing
information periodically to customers showing their positions in the
Fund's Shares; (v) arranging for bank wire transfer of funds to or
from a customer's account; (vi) responding to inquiries from customers
relating to the services performed under this Agreement; (vii)
forwarding to customers proxy statements and proxies containing any
proposals regarding the Fund or a Portfolio; (viii) rendering ongoing
advice respecting the suitability of particular investment
opportunities offered by the Fund in light of the customer's needs;
and (ix) providing such other similar services as the Distributor may
reasonably request to the extent that we are permitted to do so under
applicable statutes, rules, or regulations. We 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 our business, or any personnel employed by us) as may be reasonably
necessary or beneficial in order to provide such services to
customers.
In no transaction shall we have any authority to act as agent for the Fund
or for you. We understand and agree that, as Distributor for the Shares,
you are acting as a disclosed agent of the Fund and are not liable to the
Fund for payment for purchases of Shares.
3. We understand that the Shares will be offered and sold at the then Current
Offering Price per Share in effect at the time the order for such Shares is
confirmed and accepted by you or your agent. All orders for redemption of
any Shares shall be executed at the net asset value per Share minus any
applicable sales charge as described in the Prospectus. The minimum dollar
purchase of Shares shall be the applicable minimum amount described in the
then current applicable Prospectus and no order for less than such amount
will be accepted hereunder. All purchase requests and applications
submitted by us are subject to acceptance or rejection in your sole
discretion, and, if accepted, each purchase will be deemed to have been
consummated at your office. The procedures for handling orders shall be
subject to the instructions which you shall forward to us from time to
time. The Fund reserves the right, at its discretion and without notice,
to suspend the sale of Shares or withdraw entirely the sale of Shares of
any or all Portfolios of the Fund.
4. We certify (a) that we are a member of the NASD and agree to maintain
membership in the NASD or (b) in the alternative, that we are a foreign
dealer not eligible for membership in the NASD. In either case, we agree
to abide by all the rules and regulations of the SEC and the NASD,
including, without limitation, Rule 2830 of the NASD Conduct Rules, all of
which are incorporated herein as if set forth in full. We further agree to
comply with all applicable state and Federal laws and the rules and
regulations of authorized regulatory agencies. We agree that we will not
sell or offer for sale Shares in any state or jurisdiction where they have
not been qualified for sale. You will make available to us a current list
of the jurisdictions in which the Shares are qualified for sale, but you
shall have no obligation or responsibility to make Shares available for
sale to our customers in any jurisdiction. We agree to notify you
immediately in the event of our expulsion or suspension from the NASD.
5. We will offer and sell the Shares only in accordance with the terms and
conditions of the current Prospectus and Statement of Additional
Information ("SAI") and we will make no representations not included in
said Prospectus or SAI or in any authorized supplemental material supplied
by you. We shall have no authority to act as agent for the Fund or for
you. In connection with the offers to sell and sales of Shares, we agree
to deliver or cause to be delivered to each person to whom such offer or
sale is made, at or prior to the time of completion of such sale, a copy of
the Prospectus and, upon request, SAI of the Portfolio involved. You will
furnish us without charge reasonable quantities of Prospectuses and SAIs,
with any supplements currently in effect, and copies of current shareholder
reports of the Fund, and sales materials issued from time to time. Unless
otherwise mutually agreed in writing, you shall deliver or cause to be
delivered to each of the customers who purchase Shares through us copies of
all annual and interim reports and any other information and materials
relating to the Fund and prepared by or on behalf of you, the Fund or its
investment adviser, custodian transfer agent or dividend disbursing agent
for distribution to such customer. We may not publish any advertisement or
distribute sales literature or other written material to the public which
makes reference to you or the Fund (except material which you have
furnished to us) without your prior written approval. We agree to be
responsible for the proper instruction and training of all sales personnel
employed or registered as a broker or sales representative with us, in
order that the shares will be offered in accordance with the terms and
conditions of this Agreement, and all applicable laws, rules and
regulations. We further agree to obtain from each customer to whom we sell
Shares any taxpayer identification number certification required by Section
3406 of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations promulgated thereunder, and to provide you or your designee
with timely written notice of any failure to obtain such taxpayer
identification number certification in order to enable the implementation
of any required backup withholding in accordance with Section 3406 of the
Code and the regulations thereunder.
6. We will maintain all records required by law to be kept by us relating to
transactions in Shares and, upon request by the Fund, promptly make
available such records and other records to the Fund, its designee or you
as the Fund or you may reasonably request.
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FIRST DATA DISTRIBUTORS INC. ON BEHALF OF THE GOVETT FUNDS
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7. In the case of purchase of Shares hereunder that are sold with a sales
load, an agency commission shall be payable to us as hereinafter provided.
In determining the amount of any agency commission payable to us hereunder,
you reserve the right to exclude any accounts with you reasonably determine
are not initiated, and any subsequent purchases for any accounts which you
reasonably determine are not made, in accordance with the terms of the
applicable Prospectus and the provisions of this Agreement. Unless at the
time of transmitting an order we advise you or the Transfer Agent to the
contrary, the Shares ordered will be deemed to be the total holding of the
specified customer.
8. Exchanges (i.e., the investment of the proceeds from the liquidation of
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Shares of one Portfolio in the Shares of another Portfolio or shares of
another registered open-end investment fund specified in the Prospectus)
shall, where available, be made in accordance with the terms of each
Portfolio's Prospectus.
9. The procedures relating to purchase, redemption or exchange orders and the
handling thereof will be subject to the terms of the Prospectus of the
Portfolio involved and instructions received by us from you or the Transfer
Agent from time to time. We understand and agree that, if any Shares of
the Portfolios sold under this Agreement are redeemed or repurchased by the
Portfolios or by you as disclosed agent for the Portfolios or are tendered
for redemption within seven business days after the date of confirmation of
the initial purchase of such Shares, we shall forfeit and repay to you any
portion of a sales charge reallowed by you to us with respect to such
Shares. We will not present any conditional purchase orders, and we
understand that no conditional orders will be accepted by the Fund or its
agents. We agree that purchase orders placed by us will be made only for
the purpose of covering purchase orders already received from our customers
and that we will not make purchases for any securities dealer or broker.
Further, we shall not withhold the placement of such orders so as to profit
ourselves; provided, however, that the foregoing shall not prevent the
purchase of Shares by us for our own bona fide investment.
10. Payment for purchases of Shares made by wire order from us shall be made
directly to the Transfer Agent, as per the prospectus intstructions, in an
amount equal to the Current Offering Price per Share being purchased
without deduction for our agency commission, if any. If such payment is
not received at the customary or required time for settlement of the
transaction, we understand that you reserve the right, without notice,
forthwith, to cancel the sale, in which case we may be held responsible for
any loss, including loss of profit, suffered by the Fund or you resulting
from our failure to make the aforesaid payment.
11. On the settlement date of each transaction, we on behalf of our customers
will remit the full purchase price, and our customer will be credited with
an investment in the Shares of the Fund equal to such purchase price. Our
agency commission, if any, shall be payable on at least a monthly basis.
12. Your obligations to us under this Agreement are subject to all applicable
provisions of any Distribution Agreement entered into between you and the
Fund. We understand and agree that in performing our services covered by
this Agreement we are acting as agent for the customer, and you are in no
way responsible for the manner of our performance or for any of our acts or
omissions in connection therewith.
13. We hereby represent and warrant that: (a) we are a corporation,
partnership, national association or other entity duly organized and
validly existing in good standing under the laws of the jurisdiction in
which we are organized; (b) the execution and delivery of this Agreement
and the performance of the transactions contemplated hereby have been duly
authorized by all necessary action and all other authorizations and
approvals (if any) required for our lawful execution and delivery of this
Agreement and our performance hereunder have been obtained; and (c) upon
execution and delivery by us, and assuming due and valid execution and
delivery by you, this Agreement will constitute a valid and binding
agreement, enforceable against us in accordance with its terms.
14. We agree that you, your directors, officers, employees, shareholders and
agents shall not be liable for any error of judgment or mistake of law or
for any loss suffered by us in connection with the performance of your
obligations and duties under this Agreement, except a loss resulting from
your willful misfeasance, bad faith or negligence in the performance of
such obligations and duties, or by your reckless disregard thereof.
Neither party may assert any cause of action against the other party under
this Agreement that accrued more than two years prior to the filing of the
suit (or commencement of arbitration proceedings) alleging such cause of
action.
Each party shall have the duty to mitigate damages for which the other
party may become responsible.
Notwithstanding anything in this Agreement to the contrary, in no event
shall you, your affiliates or any of your or their directors, officers,
employees agents or subcontractors be liable to us under any theory of
tort, contract, strict liability or other legal or equitable theory for
lost profits, exemplary, punitive, special, incidental, indirect or
consequential damages, each of which is hereby excluded by agreement of the
parties regardless of whether such damages were foreseeable or whether
either party or any entity has been advised of the possibility of such
damages.
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FIRST DATA DISTRIBUTORS INC. ON BEHALF OF THE GOVETT FUNDS
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15. We agree to indemnify you and hold you, your affiliates and the Fund and
its affiliates (including all officers, trustees, directors, employees and
agents thereof) (an "Indemnified Party") harmless from and against any and
all claims, losses, demands, liabilities or expenses (including reasonable
attorney's fees) of any sort or kind which may be asserted against an
Indemnified Party for which an Indemnified Party may be held liable in
connection with this Agreement (a "Claim") unless such Claim resulted from
a negligent act or omission to act or bad faith by you in the performance
of your duties hereunder. All expenses which we incur in connection with
our activities under this Agreement shall be borne by us.
16. We may terminate this Agreement by notice in writing to you, which
termination shall become effective sixty (60) days after the date of
mailing such notice to you. We agree that you have and reserve the right,
in your sole discretion, to modify, amend or cancel this Agreement upon
written notice to us of such modification, amendment or cancellation, which
shall be effective on the date stated in such notice. This Agreement may
be terminated with respect to a Fund or a class of Shares thereof at any
time, without payment of any penalty, by vote of a majority of the
Disinterested Trustees (as defined in the Plan), or by vote of a majority
of the class of Shares of such Fund for which services are provided
hereunder, on not more than 60 days' written notice. This Agreement shall
terminate automatically in the event of its assignment (as such term is
defined in the Investment Company Act of 1940, as amended). Without
limiting the foregoing, you may terminate this Agreement for cause on
violation by us of any of the provisions of this Agreement, said
termination to become effective on the date of mailing notice to us of such
termination. Without limiting the foregoing, any provision hereof to the
contrary notwithstanding, our expulsion from the NASD will automatically
terminate this Agreement without notice and our suspension from the NASD or
our violation of applicable state or Federal laws or rules and regulations
of an authorized regulatory agencies will terminate this Agreement
effective upon the date of your mailing notice to us of such termination.
Waiver of any breach of any provision of this Agreement will not be
construed as a waiver of the provision or of your right to enforce said
provision thereafter. Your failure to terminate for any cause shall not
constitute a waiver of your right to terminate at a later date for any such
cause. All notices hereunder shall be to the respective parties at the
addresses listed hereon, unless changed by notice given in accordance with
this Agreement.
17. This Agreement shall become effective as of the date when it is executed
and dated by you below and shall be in substitution of any prior agreement
between you and us covering the Fund. This Agreement and all the rights
and obligations of the parties hereunder shall be governed by and construed
under the laws of the Commonwealth of Massachusetts. This Agreement is not
assignable or transferable, except that your firm may assign or transfer
this Agreement to any successor firm or corporation which becomes the
Distributor of the Fund.
[NAME OF BROKER-DEALER]
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BY:
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Print Name and Title of Signatory
SEC Broker Dealer Res. No. __________; NASD Firm CRD No. __________
Accepted:
FIRST DATA DISTRIBUTORS, INC.
By: __________________________________________________________
Date: ___________day of_______________,1999
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FIRST DATA DISTRIBUTORS INC. ON BEHALF OF THE GOVETT FUNDS
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ADDENDUM A
FUNDS
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GOVETT GLOBAL INCOME FUND
GOVETT SMALLER COMPANIES FUND
GOVETT INTERNATIONAL SMALLER COMPANIES FUND
GOVETT EMERGING MARKETS EQUITY FUND
GOVETT INTERNATIONAL EQUITY FUND
12B-1 DISTRIBUTION & COMPENSATION PLAN
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Payout is based on 25 basis points per year,
calculated and paid out quarterly.
Minimum Check of $ 10.00 or greater is required.
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FIRST DATA DISTRIBUTORS INC. ON BEHALF OF THE GOVETT FUNDS
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FIRST DATA INVESTOR SERVICES GROUP, INC.
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Fund Serve Call Sheet:
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Name of Firm: ______________________________________________
NSCC Clearing #: _______________________________________________
NSCC Executing Symbol: _______________________________________________
Contact Name: _______________________________________________
Phone #: _______________________________________________
Fax #: _______________________________________________
Clearing Executing Relationship: _________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Dealer Agreement on file: Yes / No
List address: _________________________________
_________________________________
_________________________________
_________________________________
Have Dealer fax/mail branch listing: ________________________
Send Branch file to FDC to update MFO and T Net: ________________________
Fax a list of funds that are available
on Fund / Serv: ________________________
Wrap Fee Agreement (Yes / No): ________________________
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FIRST DATA DISTRIBUTORS INC. ON BEHALF OF THE GOVETT FUNDS
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FIRST DATA INVESTOR SERVICES GROUP, INC.
NETWORKING CALL SHEET
Name of Firm: ______________________________________________________
NSCC Clearing # ______________________________________________________
Networking Alpha ______________________________________________________
NSCC Executing # ______________________________________________________
Contact Name ______________________________________________________
Phone # ______________________________________________________
Fax # ______________________________________________________
Networking Levels to be supported:
Level 1:__________________________ 1st & 3rd Friday: ________________
Level 2:__________________________ 2nd & 4th Friday ________________
Level 3:__________________________ Other: ________________
Firm to send updated Branch and Rep Listing: (Yes or No) ________________
Approximate # of accounts to be networked: ________________
Funds to be networked: _________________________________________________
_________________________________________________________________________
Scrub tape required? (Yes / No) ________________________________________
_________________________________________________________________________
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FIRST DATA DISTRIBUTORS INC. ON BEHALF OF THE GOVETT FUNDS
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