XXXXX XXXXXX MUTUAL FUNDS
BROKER DEALER CONTRACT
CFBDS, Inc.
00 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We, CFBDS, Inc. ("CFBDS"), have agreements
with certain investment companies for which Mutual
Management Corp. serves as investment adviser and/or
administrator (each a "Fund") pursuant to which we act
as nonexclusive principal underwriter and distributor for
the sale of shares of capital stock ("shares") of the
various series of such Funds, and as such have the right
to distribute shares for resale. Each Fund is an open-
end investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act") and the
shares being offered to the public are registered under
the Securities Act of 1933, as amended (the "1933 Act").
Each series of each Fund covered by a Distribution
Agreement from time to time is referred to in this
agreement as a "Series" and collectively as the "Series."
The term "Prospectus", as used herein, refers to the
prospectus and related statement of additional
information (the "Statement of Additional Information")
incorporated therein by reference (as amended or
supplemented) on file with the Securities and Exchange
Commission at the time in question. As a broker in the
capacity of principal underwriter and distributor for the
Trust, we offer to sell to you, as a broker or dealer,
shares of each Fund upon the following terms and
conditions:
1. In all sales to the public you shall act
as broker for your customers or as dealer for your own
account, and in no transaction shall you have any
authority to act as agent for the Trust, for us or for
any other dealer.
2. Orders received from you will be
accepted through us only at the public offering price per
share (i.e. the net asset value per share plus the
applicable front-end sales charge, if any) applicable to
each order, and all orders for redemption of any shares
shall be executed at the net asset value per share less
any contingent deferred sales charge, if any, in each
case as set forth in the Prospectus. You will be
entitled to receive and retain any contingent deferred
sales charge amounts in partial consideration of your
payment to financial consultants of commission amounts at
the time of sale and we will obligate any other brokers
with whom we enter into similar agreements to pay such
amounts directly to you. The procedure relating to the
handling of orders shall be subject to paragraph 4 hereof
and instructions which we or the Fund shall forward from
time to time to you. All orders are subject to
acceptance or rejection by the applicable Fund or us in
the sole discretion of either. The minimum initial
purchase and the minimum subsequent purchase of any
shares shall be as set forth in the Prospectus pertaining
to the relevant Series.
3. You shall not place orders for any
shares unless you have already received purchase orders
for those shares at the applicable public offering price
and subject to the terms hereof. You agree that you will
not offer or sell any shares except under circumstances
that will result in compliance with the applicable
Federal and state securities laws, the applicable rules
and regulations thereunder and the rules and regulations
of applicable regulatory agencies or authorities and that
in connection with sales and offers to sell shares you
will furnish to each person to whom any such sale or
offer is made, a copy of the Prospectus and, upon
request, the Statement of Additional Information, and
will not furnish to any person any information relating
to shares which is inconsistent in any respect with the
information contained in the Prospectus or Statement of
Additional Information (as then amended or supplemented).
You shall not furnish or cause to be furnished to any
person or display or publish any information or materials
relating to the shares (including, without limitation,
promotional materials and sales literature,
advertisements, press releases, announcements,
statements, posters, signs or other similar material),
except such information and materials as may be furnished
to you by or on behalf of us or the Funds, and such other
information and materials as may be approved in writing
by or on behalf of us or the Funds.
4. As a broker dealer, you are hereby
authorized (i) to place orders directly with the
applicable Fund or Series for shares subject to the
applicable terms and conditions governing the placement
of orders by us set forth in the Prospectus and (ii) to
tender shares directly to each Fund or its agent for
redemption subject to the applicable terms and conditions
governing the redemption of shares applicable to us set
forth in the Prospectus.
5. You shall not withhold placing orders
received from your customers so as to profit yourself as
a result of such withholding, e.g., by a change in the
"net asset value" from that used in determining the
offering price to your customers.
6. In determining the amount of any sales
concession payable to you hereunder, we reserve the right
to exclude any sales which we reasonably determine are
not made in accordance with the terms of the 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 holdings of the specified investor.
7. (a) You agree that payment for orders
from you for the purchase of shares will be made in
accordance with the terms of the Prospectus. On or
before the business day following the settlement date of
each purchase order for shares, you shall transfer same
day funds to an account designated by us with the
transfer agent in an amount equal to the public offering
price on the date of purchase of the shares being
purchased less your sales concession, if any, with
respect to such purchase order determined in accordance
with the Prospectus. If payment for any purchase order
is not received in accordance with the terms of the
Prospectus, we reserve the right, without notice, to
cancel the sale and to hold you responsible for any loss
sustained as a result thereof.
(b) If any shares sold under the terms of
this Agreement are sold with a sales charge and are
redeemed or are tendered for redemption within seven (7)
business days after confirmation of your purchase order
for such shares: (i) you shall forthwith refund to us
the full sales concession received by you on the sale;
and (ii) we shall forthwith pay to the applicable Series
our portion of the sales charge on the sale which has
been retained by us, if any, and shall also pay to the
applicable Series the amount refunded by you.
(c) We will not be obligated to pay or cause
to be paid to you any ongoing trail commission or
shareholder service fees with respect to shares of the
Series purchased through you and held by or for your
customers, which you shall collect directly from the
Funds.
(d) Certificates evidencing shares shall be
available only upon request. Upon payment for shares in
accordance with paragraph 7(a) above, the transfer agent
will issue and transmit to you or your customer a
confirmation statement evidencing the purchase of such
shares. Any transaction in uncertificated shares,
including purchases, transfers, redemptions and
repurchases, shall be effected and evidenced by
book-entry on the records of the transfer agent.
8. No person is authorized to make any
representations concerning shares except those contained
in the current Prospectus and Statement of Additional
Information and in printed information subsequently
issued by us or the Funds as information supplemental to
the Prospectus and the Statement of Additional
Information. In purchasing or offering shares pursuant
to this Agreement you shall rely solely on the
representations contained in the Prospectus, the
Statement of Additional Information and the supplemental
information above mentioned.
9. You agree to deliver to each purchaser
making a purchase of shares from or through you a copy of
the Prospectus at or prior to the time of offering or
sale, and, upon request, the Statement of Additional
Information. You may instruct the transfer agent to
register shares purchased in your name and account as
nominee for your customers. You agree thereafter to
deliver to any purchaser whose shares you or your nominee
are holding as record holder copies of the annual and
interim reports and proxy solicitation materials and any
other information and materials relating to the Trust and
prepared by or on behalf of us, the Funds or the
investment adviser, custodian, transfer agent or dividend
disbursing agent for distribution to beneficial holders
of shares. The Funds shall be responsible for the costs
associated with forwarding such reports, materials and
other information and shall reimburse you in full for
such costs. You further agree to make reasonable efforts
to endeavor to obtain proxies from such purchasers whose
shares you or your nominee are holding as record holder.
You further agree to obtain from each customer to whom
you sell 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 us or
our 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. Additional copies
of the Prospectus, Statement of Additional Information,
annual or interim reports, proxy solicitation materials
and any such other information and materials relating to
the Trust will be supplied to you in reasonable
quantities upon request.
10. (a) In accordance with the terms of the
Prospectus, a reduced sales charge may be available to
customers, depending on the amount of the investment or
proposed investment. In each case where a reduced sales
charge is applicable, you agree to furnish to the
transfer agent sufficient information to permit
confirmation of qualification for a reduced sales charge,
and acceptance of the purchase order is subject to such
confirmation. Reduced sales charges may be modified or
terminated at any time in the sole discretion of each
Fund.
(b) You acknowledge that certain classes of
investors may be entitled to purchase shares at net asset
value without a sales charge as provided in the
Prospectus and Statement of Additional Information.
(c) You agree to advise us promptly as to
the amount of any and all sales by you qualifying for a
reduced sales charge or no sales charge.
(d) Exchanges (i.e., the investment of the
proceeds from the liquidation of shares of one Series in
the shares of another Series, each of which is managed by
the same or an affiliated investment adviser) shall,
where available, be made in accordance with the terms of
each Prospectus.
11. We and each Fund reserve the right in
our discretion, without notice, to suspend sales or
withdraw the offering of any shares entirely. Each party
hereto has the right to cancel the portions of this
Agreement to which it is party upon notice to the other
parties; provided, however, that no cancellation shall
affect any party's obligations hereunder with respect to
any transactions or activities occurring prior to the
effective time of cancellation. We reserve the right to
amend this Agreement in any respect effective on notice
to you.
12. We shall have full authority to take such
action as we may deem advisable in respect of all matters
pertaining to the continuous offering of shares. We shall
be under no liability to you except for lack of good faith
and for obligations expressly assumed by us herein. Nothing
contained in this paragraph 12 is intended to operate as,
and the provisions of this paragraph 12 shall not in any way
whatsoever constitute a waiver by you of compliance with,
any provisions of the 1933 Act or of the rules and
regulations of the Securities and Exchange Commission issued
thereunder.
13. You agree that: (a) you shall not
effect any transactions (including, without limitation,
any purchases and redemptions) in any shares registered
in the name of, or beneficially owned by, any customer
unless such customer has granted you full right, power
and authority to effect such transactions on his behalf,
(b) we shall have full authority to act upon your express
instructions to sell, repurchase or exchange shares
through us on behalf of your customers under the terms
and conditions provided in the Prospectus and (c) we, the
Funds, the investment adviser, the administrator, the
transfer agent and our 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 you from and against, any and all
claims, demands, liabilities and expenses (including,
without limitation, reasonable attorneys' fees) which may
be incurred by us or any of the foregoing persons
entitled to indemnification from you hereunder arising
out of or in connection with (i) the execution of any
transactions in 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 you, (ii) any
statements or representations that you or your employees
or representatives make concerning the Funds that are
inconsistent with the applicable Fund's Prospectus, (iii)
any written materials used by you or your employees or
representatives in connection with making offers or sales
of shares that were not furnished by us, the Funds or the
investment adviser or an affiliate thereof and (iv) any
sale of shares of a Fund where the Fund or its shares
were not properly registered or qualified for sale in any
state, any U.S. territory or the District of Columbia,
when we have indicated to you that the Fund or its shares
were not properly registered or qualified. The
indemnification agreement contained in this Paragraph 13
shall survive the termination of this Agreement.
14. You represent that: (a) you are a
member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD"), or, if a foreign
dealer who is not eligible for membership in the NASD,
that (i) you will not make any sales of shares in, or to
nationals of, the United States of America, its
territories or its possessions, and (ii) in making any
sales of shares you will comply with the NASD's Conduct
Rules and (b) you are a member in good standing of the
Securities Investor Protection Corporation ("SIPC"). You
agree that you will provide us with timely written notice
of any change in your NASD or SIPC status.
15. We shall inform you as to the states or
other jurisdictions in which the Fund has advised us that
shares have been qualified for sale under, or are exempt
from the requirements of, the respective securities laws
of such states, but we assume no responsibility or
obligation as to your qualification to sell shares in any
jurisdiction.
16. Any claim, controversy, dispute or
deadlock arising under this Agreement (collectively, a
"Dispute") shall be settled by arbitration administered
under the rules of the American Arbitration Association
("AAA") in New York, New York. Any arbitration and
award of the arbitrators, or a majority of them, shall be
final and the judgment upon the award rendered may be
entered in any state or federal court having jurisdiction.
No punitive damages are to be awarded.
17. All communications to us should be
sent, postage prepaid, to 00 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 Attention: Xxxxxx Xxxxxxxx. Any
notice to you shall be duly given if mailed, telegraphed
or telecopied to you at the address specified by you
below. Communications regarding placement of orders for
shares should be sent, postage prepaid, to First Data
Investor Services Group, Inc., X.X. Xxx 0000,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000.
18. This Agreement shall be binding upon
both parties hereto when signed by us and accepted by you
in the space provided below.
19. This Agreement and the terms and
conditions set forth herein shall be governed by, and
construed in accordance with, the laws of the State of
New York.
CFBDS, INC.
By:
(Authorized
Signature)
Accepted:
Firm Name:
Address:
Accepted By (signature):
Name (print):
Title: Date:
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