EXHIBIT 22(e)(ii)
BROKER-DEALER AGREEMENT
FOR WT MUTUAL FUND
(FULLY DISCLOSED BASIS)
Professional Funds Distributor, LLC
000 Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Ladies and Gentlemen:
We desire to enter into an Agreement with you for the sale of shares of
beneficial interest in WT Mutual Fund, a Delaware business trust (hereinafter
referred to as the "Trust") of which you are the principal underwriter as such
term is defined in the Investment Company Act of 1940, as amended, (the "1940
Act") and for which you are the exclusive agent for the continuous distribution
of shares pursuant to the terms of a Distribution Agreement between you and the
Trust. Unless the context otherwise requires, as used herein the term
"Prospectus" shall mean the prospectus and related statement of additional
information (the "Statement of Additional Information") incorporated therein by
reference, as amended and supplemented, of each investment portfolio of the
Trust ("Fund") included in the then currently effective registration statement
(or post-effective amendment thereto) of the Trust, as filed with the Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Registration Statement").
In consideration for the mutual covenants contained herein, it is hereby agreed
that our respective rights and obligations shall be as follows:
1. In all sales of Fund shares to the public, we shall act as dealer for our own
account and in no transaction shall we have any authority to act as agent for
the Trust, any Fund, for you or for any other dealer.
2. All orders for the purchase of any Fund shares shall be executed at the then
current 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 any
Fund shares shall be executed at the net asset value per share, in each case as
described in the Prospectus of such Fund and pursuant to Rule 22c-1(a) under the
1940 Act. The minimum initial purchase order and minimum subsequent purchase
order shall be as set forth in the Prospectus of such Fund. All orders are
subject to acceptance or rejection by you at your sole discretion. Unless
otherwise mutually agreed in writing, each transaction shall be confirmed
promptly in writing directly to the customer on a fully disclosed basis and a
copy of each confirmation shall be sent simultaneously to us. We acknowledge
that the Trust has reserved 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
of the Funds.
3. In ordering shares of any Fund, we shall rely solely and conclusively on the
representations contained in the Prospectus of such Fund. We agree that we shall
not offer or sell shares of any Fund except in compliance with all applicable
federal and state securities laws and the rules and regulations of applicable
regulatory agencies or authorities. In connection with offers to sell and sales
of shares of each Fund, we agree to deliver or cause to be delivered to each
person to whom any such offer or sale is made, at or prior to time of such offer
or sale, a copy of the Prospectus and, upon request, the Statement of Additional
Information of such Fund. We further agree to obtain from each customer to whom
we sell Fund shares any taxpayer identification number certification required
under 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. 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 us 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 you, the Fund or its investment adviser,
custodian, transfer agent or dividend disbursing agent for distribution to each
such customer. You agree to supply us with copies of the Prospectus, Statement
of Additional Information, annual reports, interim reports, proxy solicitation
materials and any such other information and materials relating to each Fund in
reasonable quantities upon request.
4. We shall not make any representations concerning any Fund shares other than
those contained in the
Prospectus of such Fund or in any promotional materials or sales literature
furnished to us by you or the Fund. Except as otherwise provided in Paragraph 3
of this Agreement, we shall not furnish or cause to be furnished to any person
or display or publish any information or materials relating to any Fund
(including, without limitation, promotional materials and sale literature,
advertisements, press releases, announcements, statements, posters, signs or
other similar material), except such information and materials as may be
furnished to us by you or the Fund, and such other information and materials as
may be approved in writing by you.
5. In determining the amount of any dealer reallowance payable to us hereunder,
you reserve the right to exclude any sales which you reasonably determine are
not made in accordance with the terms of the applicable Fund Prospectuses and
the provisions of this Agreement.
6. (a) In the case of any Fund shares sold with a sales load, customers may be
entitled to a reduction in sales load on purchases made from a Fund which
utilizes a letter of intent ("Letter of Intent") in accordance with such Fund's
Prospectus. In such case, our dealer reallowance will be paid based upon the
reduced sales load, but an adjustment to the dealer reallowance will be made in
accordance with the Prospectus of the applicable Fund to reflect the investor's
actual purchases if he or she should fail to fulfill the commitment in the
Letter of Intent. The sales load and/or dealer reallowance may be changed at any
time in your sole discretion upon written notice to us.
(b) Subject to and in accordance with the terms of the Prospectus of each Fund
sold with a sales load, a reduced sales load may be applicable with respect to
customer accounts through a right of accumulation under which customers are
permitted to purchase shares of a Fund at the then current public offering price
per share applicable to the total of (i) the dollar amount of shares then being
purchased plus (ii) an amount equal to the then current net asset value or
public offering price originally paid per share, whichever is higher, of the
customer's combined holdings of the shares of such Fund and of any other
open-end registered investment companies which may be permitted by the
applicable Fund prospectus. In such case, we agree to furnish to you if orders
are made by wire, or to the transfer agent as such term is defined in the
Prospectus of each Fund (the "Transfer Agent") if orders are made by mail,
sufficient information to permit your confirmation of qualification for a
reduced sales load; acceptance of the purchase order is subject to such
confirmation.
(c) With respect to Fund shares sold with a sales load, we agree to advise you
promptly at your request as to amounts of any and all sales by us qualifying for
a reduced sales load.
(d) Exchanges (i.e., the investment of the proceeds from the liquidation of
shares of one Fund in the shares of another Fund) shall, where available, be
made subject to and in accordance with the terms of each Fund Prospectus.
7. We agree to provide distribution and marketing services in the promotion and
sale of Fund shares and to furnish services and assistance to our customers who
invest in or own Fund shares. For such services, you agree to compensate us in
accordance with the current schedule of dealer compensation that you have
furnished us. We acknowledge that we will only receive compensation with respect
to those Funds that have adopted a 12b-1 plan of distribution and that we will
only receive compensation with respect to a particular Fund so long as the Rule
12b-1 plan for that Fund remains in effect. We further acknowledge that you will
provide to the Funds' Board of Trustees, and the Boards of Trustees will review,
at least quarterly, a written report of the amounts expended pursuant to this
Agreement and the purposes for which such expenditures were made. In connection
with such reviews, we will furnish you or your designees with such information
as you or they may reasonably request (including, without limitation, periodic
certifications confirming the provision to our customers of the services
described herein), and will otherwise cooperate with you and your designee
(including, without limitation, any auditors designated by you), in connection
with the preparation of reports to the Funds' Board of Trustees concerning this
Agreement and the monies paid or payable by you pursuant hereto, as well as any
other reports or filings that may be required by law.
8. The procedures relating to all orders and the handling thereof will be
subject to the terms of the Prospectus of each Fund and your written
instructions to us from time to time. No conditional orders will be accepted. We
agree to place orders with you immediately for the same number of shares and at
the same price as any sales by us. We shall not withhold placing orders received
from customers so as to profit ourselves as a result of such withholding by a
change in the net asset value from that used in determining the offering price
to such customers, or otherwise; provided, however, that the foregoing shall not
prevent the purchase of shares of any Fund by us for our own bona fide
investment. We agree that: (a) we shall not effect any transactions (including,
without
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limitation, any purchases and redemptions) in any Fund shares registered in the
name of, or beneficially owned by, any customer unless such customer has granted
us full right, power and authority to effect such transactions on his or her
behalf and (b) you, each Fund, each Transfer Agent and your and their respective
officers, directors or trustees, agents, employees and affiliates shall not be
liable for, and shall be fully indemnified and held harmless by us from and
against, any and all claims, demands, liabilities and expenses (including
without limitation, reasonable attorneys fees) which may be incurred by you or
any of the foregoing persons entitled to indemnification from us hereunder
arising out of or in connection with the execution of any transactions in Fund
shares registered in the name of, or beneficially owned by, any customer in
reliance upon any oral or written instructions believed to be genuine and to
have been given by or on behalf of us.
9. (a) We agree to pay for purchase orders of any Fund shares from us in
accordance with the terms of the Prospectus of the applicable Fund. On or before
the settlement date of each purchase order for shares of any Fund, we shall
either (i) remit to an account designated by you with the Transfer Agent an
amount equal to the then current public offering price of the shares of such
Fund being purchased less our dealer reallowance, if any, with respect to such
purchase order as determined by you in accordance with the terms of the
applicable Fund Prospectus, or (ii) remit to an account designated by you with
the Transfer Agent an amount equal to the then current public offering price of
the shares of such Fund being purchased without deduction for our dealer
reallowance, if any, with respect to such purchase order as determined by you in
accordance with the terms of the applicable Fund Prospectus, in which case our
dealer reallowance, if any, shall be payable to us on at least a monthly basis.
If payment for any purchase order is not received in accordance with the terms
of the applicable Fund Prospectus, you reserve the right, without notice, to
cancel the sale and to hold us responsible for any loss sustained as a result
thereof.
(b) If any shares sold to us under the terms of this Agreement are sold with a
sales load and are redeemed for the account of the Fund or are tendered for
redemption within seven (7) days after confirmation of our purchase order for
such shares: (i) we shall forthwith refund to you the full dealer reallowance
received by us on the sale; and (ii) you shall forthwith pay to the Fund your
portion of the sales load on the sale which had been retained by you and shall
also pay to the Fund the amount refunded by us.
10. We hereby represent and warrant to you that:
(a) we are a corporation, partnership or other entity duly organized and validly
existing in good standing under the laws of the jurisdiction in which we were
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 authorization 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.
11. We further represent and warrant to you that we are a member of the NASD
and, with respect to any sales in the United States, we agree to abide by all of
the rules and regulations of the NASD, including, without limitation, its
Business Conduct Rules. We agree to comply with all applicable federal and state
laws, rules and regulations. You agree to inform us, upon our request, as to the
states in which you believe the shares of the Funds have qualified for sale
under, or are exempt from the requirements of the respective securities laws of
such states, but you shall have no obligation or responsibility as to our right
to sell shares in any jurisdiction. We agree to notify you immediately in the
event of (a) our expulsion or suspension from the NASD, or (b) our violation of
any applicable federal or state law, rule or regulation arising out of or in
connection with this Agreement or which may otherwise affect in any material way
our ability to act as a dealer in accordance with the terms of this Agreement.
Our expulsion from the NASD will automatically terminate this Agreement
immediately without notice. Our suspension from the NASD for violation of any
applicable federal or state law, rule or regulation will terminate this
Agreement effective immediately upon your written notice to us of termination.
12. In the event that you breach any of the terms and conditions of this
Agreement, you will indemnify us, the Funds, and our affiliates for any damages,
losses, costs and expenses (including reasonable attorneys' fees and expenses)
arising out of or relating to such breach. In the event that we breach any of
the terms and conditions of this Agreement, we will indemnify you and your
affiliates for any damages, losses, costs and expenses (including reasonable
attorneys' fees
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and expenses) arising out of or relating to such breach.
13. The names and addresses and other information concerning our customers are
and shall remain our sole property, and neither you nor your affiliates shall
use such names, addresses or other information for any purpose except in
connection with the performance of your duties and responsibilities hereunder
and except for servicing and informational mailings relating to the Funds.
Notwithstanding the foregoing, this Paragraph 14 shall not prohibit you or any
of your affiliates from utilizing for any purposes the names, addresses or other
information concerning any of our customers if such names, addresses or other
information is obtained in any manner other than from us pursuant to this
Agreement. The provisions of this Paragraph 14 shall survive the termination of
this Agreement.
14. By requesting expedited redemption, we agree that you, the Trust, the
Transfer Agent, and your and their respective officers, directors or trustees,
agents, employees and affiliates shall not be liable for and shall be fully
indemnified and held harmless by us from and against any and all claims,
demands, liabilities and expenses (including, without limitation, reasonable
attorneys fees) arising out of or in connection with any expedited redemption
payments.
15. Neither this Agreement nor the performance of the services of the respective
parties hereunder shall be considered to constitute an exclusive arrangement, or
to create a partnership, association or joint venture between you and us.
Neither party hereto shall be, act as, or represent itself as, the agent or
representative of the other, nor shall either party have the right or authority
to assume, create or incur any liability or any obligation of any kind, express
or implied, against or in the name of, or on behalf of, the other party. This
Agreement is not intended to, and shall not, create any rights against either
party hereto by any third party solely on account of this Agreement. Neither
party hereto shall use the name of the other party in any manner without the
other party's prior written consent, except as required by any applicable
federal or state law, rule or regulation, and except pursuant to any promotional
programs mutually agreed upon in writing by the parties hereto.
16. Except as otherwise specifically provided herein, all notices required or
permitted to be given pursuant to this Agreement shall be given in writing and
delivered by personal delivery or by postage prepaid, registered or certified
United States first class mail, return receipt requested, or by telex, telegram
or similar means of same day delivery (with a confirming copy by mail as
provided herein). Unless otherwise notified in writing, all notices to you shall
be given or sent to you at your offices, located at 000 Xxxxx Xxxx, Xxxx xx
Xxxxxxx, XX 00000 and all notices to us shall be given or sent to us at our
address shown below.
17. This Agreement shall become effective only when accepted and signed by you,
and may be terminated at any time by either party hereto upon fifteen (15) days
prior written notice to the other party. Not withstanding the termination of
this Agreement all unfulfilled obligations, duties and liabilities of either
party to the other as of the date of termination including, without limitation,
all obligations of indemnification of either to the other shall remain the
responsibility of the respective party. This Agreement may be amended only by a
written instrument signed by both the parties hereto and, may not be assigned by
either party without the prior written consent of the other party. This
Agreement constitutes the entire agreement and understanding between the parties
hereto relating to the subject matter hereof and supersedes any and all prior
agreements between the parties hereto relating to the subject matter hereof.
18. Notwithstanding anything in this Agreement to the contrary, we agree that
any Nonpublic Personal Information, as defined under Section 248.3(t) of
Regulation S-P ("Regulation S-P"), promulgated under the Xxxxx-Xxxxx-Xxxxxx Act
(the "Act"), disclosed hereunder is for the specific purpose of permitting us to
perform the services set forth in this Agreement. We agree that, with respect to
such information, it will comply with Regulation S-P and the Act and that we
will not disclose any Nonpublic Personal Information received in connection with
this Agreement, to any other party, except to the extent as necessary to carry
out the services set forth in this Agreement or as otherwise permitted by
Regulation S-P or the Act.
19. We shall have policies and procedures in place in order to comply with the
provisions of the Money Laundering Abatement Act, USA Patriot Act and the Bank
Secrecy Act, and any other Anti-Money Laundering law, rule, regulation
appropriate to us.
20. We shall have policies and procedures in place which are reasonably designed
to be appropriate and sufficient with respect to orders of Fund shares in
accordance with the Trust's prospectus requirements and the placement of orders
with you or the Trust's transfer agent for purchases or redemptions of Trust
shares on a timely basis.
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21. We agree that if you or the Trust is required to supply guidance to a
self-regulatory organization ("SRO") or government department or agency about
the Trust's Customer Identification Program ("CIP") or the measures taken to
obtain information and verify the identity of specific clients of the Trust, you
shall allow the Trust, such SRO or government department or agency to examine
your files and records.
22. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware, without given effect to principles of
conflicts of laws.
Very truly yours,
___________________________________________
Name of Broker_Dealer (Please Print or Type)
___________________________________________
___________________________________________
Address
Date:______________________________________
By:________________________________________
Authorized Dealer
Note:
Please sign and return both copies of this Agreement to Professional Funds
Distributor, LLC. Upon acceptance a countersigned copy will be returned to you
for your files.
Accepted:
PROFESSIONAL FUNDS DISTRIBUTOR, LLC
Date:______________________________________
By:________________________________________
Authorized Signature
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