Exhibit 6(b)
[NAME OF DEALER]
[ADDRESS]
[ADDRESS]
SELECTED DEALER AGREEMENT
FOR SUBSCRIPTION PERIOD
Dear Sirs and Mesdames:
You have an agreement with ____________________________________
(the "Fund"), a series of _______________________________________
and an open-end investment company, pursuant to which you act as
the principal underwriter and distributor for the sale of Fund
shares, and as such have the right to distribute Fund shares for
resale. We have received a copy of the ________________________
__________ [name of relevant underwriting/distribution agreement]
(the "Distribution Agreement") between yourself and the Fund and
reference is made herein to certain provisions of such
Distribution Agreement. This Agreement relates solely to the
subscription period described in such Distribution Agreement.
Subject to the foregoing, you have invited us to become a selected
dealer to distribute Fund shares on the following terms:
1. Purchases of Fund Shares for Sale to Customers
(a) We agree, subject to the provisions of the Distribution
Agreement with respect to the subscription period and the
conditions contained herein, to purchase from you on the
next business day following the termination of the
subscription period, or such other date as you may advise
us (the "Closing Date"), such number of Fund shares as to
which we have placed orders with you not later than 8:00
p.m., New York time, on the last business day of the
subscription period.
(b) We agree that all purchases by us from you shall be made
only to cover orders received by us from our customers, or
for our own bona fide investment.
(c) We agree to sell shares of the Fund to our customers
subject to minimum investment requirements applicable to
each order and at the applicable public offering price
described in the prospectus and statement of additional
information of such Fund in effect during the subscription
period (the prospectus and statement of additional
information in effect during the subscription period being
sometimes referred to together herein as the "then current
prospectus").
(d) We understand that all orders are subject to acceptance or
rejection by you or the Fund in the sole discretion of
either. The handling of orders by the parties shall be
subject to such procedures as may be mutually agreed upon
from time to time.
(e) Payment for Fund shares purchased by us shall be made on
the Closing Date by Federal Funds wire. We agree that the
cost of such wire, and the interest cost associated with
any delayed wire, shall be our responsibility.
2. Selling Procedures/Sales Materials
(a) "Sales Material," as used herein, shall include, without
limitation, promotional materials, sales literature,
advertisements, press releases, announcements, circulars,
research reports, market letters, performance reports or
summaries, form letters, posters, signs and other similar
materials, whether in print, hypertext, video, audio or
other media, and any items derived from the foregoing, and
including sales materials intended for wholesale use
(i.e., broker/dealer use only) or retail use.
(b) We shall not make any representation concerning the Fund
or its securities except those contained in the then
current prospectus or any Sales Materials furnished by you
relating to the Fund. (We assume no responsibility or
liability for representations contained in any of such
documents.) You agree to notify us in writing at the
address specified in paragraph (c) of any change to the
prospectus or statement of additional information of the
Fund, specifying such change, at least 10 days before
making such change, provided that if such notice is not
reasonably practicable, you may provide us with the
required notice within such other period as is reasonable
under the circumstances, but, in any event, not later than
concurrently with such change.
(c) You agree to supply to us at your expense additional
copies of the prospectus and statement of additional
information for the Fund and any printed supplemental
material in reasonable quantities upon request. Such
materials shall be mailed to us at ________________
________________________________________________________
______________________________ [DEALER NAME AND ADDRESS].
We agree to deliver copies of the above materials to our
customers in accordance with applicable law and the rules
of the Securities and Exchange Commission ("SEC").
(d) In distributing Fund materials within our offices or
through our offices to our customers, we assume no
responsibility or liability for the representations or any
omissions contained in any Sales Materials nor for
representations or any omissions contained in the
prospectus or statement of additional information relating
to the Fund.
(e) With the exception of (i) listings of product offerings;
(ii) materials in the public domain (e.g., magazine
articles and trade publications); and (iii) materials used
by us on an internal basis only, we agree not to furnish
or cause to be furnished to any third parties or to
display publicly or publish any Sales Materials, except
such Sales Materials relating to the Fund as may be
distributed to us by you or approved for distribution by
you upon our request.
3. Compensation
(a) We understand that you will compensate us only in the case
of purchases made for our customers, or our own bona fide
investment, and then only where an order for the purchase
of securities is obtained by a registered representative
in the employ of ________________________ ("Dealer") or a
direct or indirect subsidiary or other affiliate thereof.
(b) We understand and agree that the dealer concession or
selling concession payable by you to us for the sale of
Fund shares will be in an amount as set forth in Schedule
I hereto, as amended from time to time by mutual agreement
of the parties.
(c) Paragraphs (a) through (c) shall survive the termination
of this Agreement.
4. NASD Membership
(a) You and we are registered and/or licensed as a broker
and/or dealer under the Federal and applicable state laws.
You and we represent and warrant to each other that you
and we are each members of the National Association of
Securities Dealers, Inc. (the "NASD").
(b) Each of us agrees to notify the other immediately if we
cease to be registered or licensed as a broker or dealer
or fail to be a member in good standing of the NASD.
(c) You and we agree to abide by the rules and regulations of
the NASD, including, without limitation, Rule 2830 of the
Conduct Rules of the NASD.
5. Compliance with Regulatory Requirements
You represent and warrant to us the following:
(a) The Fund has filed a registration statement (a
"Registration Statement") with the SEC relating to its
shares under the Securities Act of 1933, as amended (the
"1933 Act"), on Form N-1A, including a prospectus and a
statement of additional information. The Registration
Statement (including the prospectus and the statement of
additional information) conforms in all respects to the
requirements of the 1933 Act, the Investment Company Act
of 1940, as amended (the "1940 Act"), and the rules
thereunder.
(b) To the extent required by law, the Fund is registered and
its shares are qualified for sale in all states and other
jurisdictions in the United States unless we are notified
in writing to the contrary. We may rely solely on such
representation in selling the shares, but you assume no
responsibility or obligation as to our right as a broker-
dealer to sell shares of the Fund in any state or
jurisdiction.
(c) The then current prospectus of the Fund contains such
disclosure with respect to fees paid by you to us in
connection with the sale of Fund shares as is necessary to
comply with the rules and regulations of the NASD,
including, without limitation, disclosure of all
compensation of the type described in Section 3 hereof as
required by Rule 2830 of the Conduct Rules of the NASD.
Such fees will be in compliance with the rules and
regulations of the NASD, including, without limitation,
Rule 2830 of the Conduct Rules of the NASD.
(d) The Fund is a "no load" or "no sales charge" fund as
defined in Rule 2830 of the Conduct Rules of the NASD.
(e) Each investment adviser of the Fund is registered as an
investment adviser under the Investment Advisers Act of
1940, as amended, and in any state where registration is
required.
(f) The Registration Statement (including the prospectus and
statement of additional information) and any Sales
Materials relating to the Fund provided by you to us do
not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(g) All Sales Materials will comply in all material respects
with the rules and regulations of the SEC, the NASD and
any states having such rules and regulations and will be
filed with the NASD or SEC and the relevant states as
required by the rules and regulations of the NASD, the SEC
and such states, respectively.
(h) The foregoing representations and warranties will be true
and correct at all times during the term of this Agreement
(with references to the Registration Statement being
deemed to refer to the Registration Statement in effect at
the time such reference is made and to the then current
prospectus of the Fund).
6. Indemnification
(a) You agree to indemnify us (for the purposes of Sections 6
and 7, "us" and "we" shall mean Dealer, the officers,
directors, employees and agents of Dealer, and any person
who is or may be deemed to be a controlling person of
Dealer) and hold us harmless against any and all losses,
claims, damages, liabilities or expenses (including the
reasonable costs of investigation and attorney's fees and
expenses as such expenses are incurred by us in any action
or proceeding between the parties hereto or between us and
any third party) to which we may become subject under the
1933 Act, the 1940 Act, or otherwise, insofar as any such
loss, claim, damage, liability or expense (or actions with
respect thereto) arises out of or is based on any untrue
statement of a material fact or alleged untrue statement
of a material fact contained in any Registration Statement
of the Fund (including any prospectus or statement of
additional information which is part of any such
Registration Statement) or any amendment or supplement
thereto or in any Sales Materials relating to the Fund
provided to us by you (whether or not we have approved the
use of such Sales Materials, or arises out of or is based
on the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary
to make the statements therein not misleading. This
indemnity agreement will be in addition to any liability
which you may otherwise have. No indemnity by you
hereunder shall apply in respect of any prospectus,
statement of additional information or Sales Materials
used at a time not authorized under the 1933 Act or the
regulations adopted thereunder, provided that you have
informed us in writing that there is no such
authorization.
(b) If we seek indemnity under this Section we shall, promptly
after receipt of notice of commencement of any action,
suit or proceeding against us, give written notice of the
commencement of such action, suit or proceeding to you,
but the omission so to notify you shall not relieve you
from any obligation you may otherwise have. In case such
notice of any such action shall be so given, you shall be
entitled to participate at your own expense in the
defense, or, if you so elect, to assume the defense of
such action, in which event such defense shall be
conducted by counsel (satisfactory to us) chosen by you;
provided, however, that you shall not have the right to
assume the defense of any action in which the named
parties (including any implied parties) include both you
and us in which counsel to either of us has advised that
there may be legal defenses available to us which are
different from or in addition to those available to you.
If you do not elect to assume the defense of such action
and in cases where separate counsel is retained because of
the availability of different defenses, you will reimburse
us for the reasonable fees and expenses of any counsel
retained by us. Payment (other than the reimbursement of
our legal and other related fees and expenses, which will
be payable to us upon your receipt of our bill related
thereto) shall be made upon any final determination of
liability resulting from such claim or misstatement or
omission by a court, panel of arbitrators, administrative
agency or self-regulatory organization, or upon any
statement of any dispute, the subject of which involves
such a claim. In any action in which you have elected to
assume the defense, we shall bear the fees and expenses of
any additional counsel we retain, unless either of us has
retained separate counsel because there are legal defenses
available to one of us which are different from or in
addition to those available to the other of us, in which
case you shall bear the fees and expenses of our counsel
as well.
(c) This Section 6 shall survive the termination of this
Agreement.
7. Contribution
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by such
party under this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of
such party in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses,
as well as any other relevant equitable considerations.
The relevant benefits received by you on the one hand and by us on
the other hand under this Agreement shall be deemed to be in the
same respective proportions as the total gross dollar amount of
sales of Fund shares received by you from us (the "Amount X") less
the Amount Y (defined below), and the total dollar amount of
dealer concessions or selling concession received by us from you
(the "Amount Y"), bear to the Amount X (i.e., your relative
benefit shall be deemed to be in the same proportion as the Amount
X less the Amount Y bears to the Amount X, and our relative
benefit shall be deemed to be in the same proportion as the Amount
Y bears to the Amount X).
The relative fault of a party shall be determined by reference to,
among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by such
party and such party's relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above
in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission
or alleged omission.
Notwithstanding the provisions of this Section 7, we shall not be
required to contribute any amount in excess of the amount by which
the total price at which Fund shares were offered to the public
exceeds the amount of any damages which we have otherwise been
required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
This Section 7 shall survive the termination of this Agreement.
8. Termination
This Agreement shall terminate at the close of business on the
Closing Date. Prior to the Closing Date, this Agreement may be
terminated by us immediately upon written notice to you at any
time. Prior to the Closing Date, this Agreement may be terminated
by you immediately upon written notice to us at least five
business days prior to the date of our mailing of any materials
relating to the offering of shares of the Fund to our customers.
If this Agreement is terminated by you pursuant to this Section 8,
you shall reimburse us promptly for all expenses incurred by us
prior to the termination under this Agreement. If this Agreement
is terminated by us pursuant to this Section 8, we shall be
responsible for our own expenses incurred under this Agreement.
This Agreement may be amended upon the mutual written agreement of
the parties hereto. This Agreement shall be in substitution of
any prior agreement between us regarding the distribution of Fund
shares.
9. Miscellaneous
(a) We understand and agree that we have no authority in any
case to act as agent for the Fund or you, and that we are
in no way responsible for the manner of your performance
or for any of your acts or omissions in connection
therewith. Nothing shall constitute us as a syndicate,
association, joint venture, partnership, unincorporated
business, or other separate entity or otherwise partners
with you.
(b) The Fund reserves the right in its discretion and you
reserve the right, in your discretion and without notice
to us, subject to applicable law, to withdraw the offering
of shares of the Fund. If the offering is withdrawn
pursuant to this paragraph, you shall reimburse us
promptly for all expenses incurred by us prior to the
withdrawal under this Agreement and, if such withdrawal
occurs after we have mailed any materials relating to the
offering to our customers, for reasonable expenses we
incur in notifying our customers of the withdrawal.
(c) All communications shall be sent to us at our offices at
___________________________________________ [NAME AND
ADDRESS OF DEALER], and to you at the address you have
provided at the end of this Agreement. Notice shall be
deemed to have been given on the date it was either
delivered personally to the other party or any officer or
member thereof or was either received by express delivery
or telecopy (with receipt) by the other party at his or
her address specified in this Agreement. Either party may
change the address to which communications to it shall be
sent by giving notice thereof in accordance with this
provision.
(d) This Agreement shall become effective as of the date when
it is executed and dated by you below. This Agreement
shall be governed by the laws and the State of
_________________.
(e) The parties agree that, notwithstanding the rules of the
NASD or the Constitution and Rules of the New York Stock
Exchange, Inc. or the rules concerning arbitration of any
other self-regulatory organizations to which the parties
might be members, any claims that we have against each
other arising out of this Agreement or the subject matter
hereof shall be brought in either the United States
District Court for the ____________________ District of
_____________ or the [insert name of appropriate state
courts of the State of ___________________], and you
hereby consent to the jurisdiction of such courts for the
purposes of any such claims; provided, however, that in
the event any claim is brought against us by a third-party
in any court or arbitral forum involving the subject
matter of this Agreement, you agree that we may assert a
cross-claim or third-party claim against you in such court
or arbitral proceeding, and you hereby consent to the
jurisdiction of the court in any such judicial proceeding,
and agree and consent to arbitration before any such
arbitral forum, for the purpose of us asserting such a
cross-claim or third party claim.
[NAME OF DEALER]
By:_____________________________
(Authorized Signature)
______________________________
Name
______________________________
Title
Accepted:
Firm Name:_________________
By:________________________
___________________________
Name
___________________________
Title
Address:___________________
Date: _____________________
