SELLING GROUP MEMBER AGREEMENT
Re: [FILL IN NAME OF FUND]
Ladies and Gentlemen:
As the distributor of the shares ("Shares") of each investment company portfolio
("Fund"), of the investment company or companies referenced above and covered
hereunder (collectively, "Company") which may be amended by us from time to
time, Foreside Fund Services, LLC ("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 intermediary executing
this agreement, including its associated persons.
1. SELLING GROUP MEMBER. You hereby represent that you are properly qualified
under all applicable federal, state and local laws to engage in the business and
transactions described in this agreement. In addition, you agree to comply with
the rules of the Financial Industry Regulatory Authority ("FINRA") as if they
were applicable to you in connection with your activities under this agreement.
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. You agree that you
will at all times comply with (i) the provisions of this Selling Group Member
Agreement related to compliance with all applicable rules and regulations; and
(ii) the terms of each registration statement and prospectus for the Funds.
2. QUALIFICATION OF SHARES. The Fund 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 by the Fund 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 time-stamp 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 or the Fund (directly or
through its Transfer Agent) 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 the Fund or the
Distributor (acting on behalf of the Fund) 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 FINRA 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 the Fund or the Distributor
(acting on behalf of the Fund) (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
prior 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. [NOT APPLICABLE].
6. TRANSACTIONS IN FUND 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 the Fund and
/or 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
supplemental sales 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, 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. You
agree to cooperate with us 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 or the Company to ensure compliance with AML Laws. You also agree to provide
for screening its own new and existing customers against the Office of Foreign
Asset Control ("OFAC") list and any other government list that is or becomes
required under the AML Acts.
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. 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 shareholder or administrative services, as described therein. You
hereby represent that you are permitted under applicable laws to receive all
payments for shareholder services contemplated herein.
13. ORDER PROCESSING. 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, in that such policies and procedures (i) prevent the
submission of any order received after the deadline for submission of orders in
each day that are eligible
for pricing at that day's net asset value per share ("NAV"); and (ii) prevent
the purchase of Fund Shares by an individual or entity whose stated objectives
are not consistent with the stated policies of a Fund in protecting the best
interests of longer-term investors, particularly where such investor may be
seeking market timing or arbitrage opportunities through such purchase. 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. 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 shall inure to the benefit of the successors and
assigns of either party hereto, provided, however, that you may not assign this
agreement without our prior written consent. 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 Two
Portland Square, 1st floor, Xxxxxxxx, XX 00000, Attn: Chief Compliance Officer,
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, electronic 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. DIRECTED BROKERAGE PROHIBITIONS. The Distributor and Selling Group Member
agree that neither of them shall direct Fund portfolio securities transactions
or related remuneration to satisfy any compensation obligations under this
Agreement. The Distributor also agrees that it will not directly or indirectly
compensate the Selling Group Member executing this agreement in contravention of
Rule 12b-1(h) of the 1940 Act.
19. SHAREHOLDER INFORMATION. The Selling Group Member executing this agreement
agrees to comply with the requirements set forth on Appendix B attached hereto
regarding the provision of shareholder information pursuant to Rule 22c-2 of the
1940 Act.
20. 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 Delaware 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.
FORESIDE FUND SERVICES, LLC
By:
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Insert Name:
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Title:
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Date:
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Agreed to and accepted:
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By:
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Insert Name:
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Title:
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Date:
Address of Intermediary:
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Email Address of Intermediary Contact Person:
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APPENDIX A
FORESIDE FUND SERVICES, LLC
SERVICE FEE AGREEMENT
[FILL IN NAME OF FUND]
Ladies and Gentlemen:
This Fee Agreement ("Agreement") confirms our understanding and agreement with
respect to Rule 12b-1 payments to be made to you in accordance with the Selling
Group Member Agreement between you and us (the "Selling Group Member
Agreement"), which entitles you to serve as a selling group member of certain
Funds for which we serve as Distributor. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Selling Group Member
Agreement.
1. From time to time during the term of this Agreement, we may make payments to
you pursuant to one or more distribution and service plans (the "Plans") adopted
by certain of the Funds pursuant to Rule 12b-1 of the Investment Company Act of
1940 (the "1940 Act"). You agree to furnish sales and marketing services and/or
shareholder services to your customers who invest in and own Fund Shares,
including, but not limited to, answering routine inquiries regarding the Funds,
processing shareholder transactions, and providing any other shareholder
services not otherwise provided by a Fund's transfer agent. With respect to such
payments to you, we shall have only the obligation to make payments to you
after, for as long as, and to the extent that, we receive from the Fund an
amount equivalent to the amount payable to you. The Fund reserves the right,
without prior notice, to suspend or eliminate the payment of such Rule 12b-1
Plan payments or other compensation by amendment, sticker or supplement to the
then-current Prospectus of the Fund or other written notice to you.
2. Any such fee payments shall reflect the amounts described in the Fund's
Prospectus. Payments will be based on the dollar amount of Fund Shares which are
owned by those customers of yours whose records, as maintained by the Funds or
the transfer agent, designate your firm as the customer's intermediary of
record. No such fee payments will be payable to you with respect to shares
purchased by or through you and redeemed by the Funds within seven business days
after the date of confirmation of such purchase. You represent that you are
eligible to receive any such payments made to you under the Plans.
3. You agree that all activities conducted under this Agreement will be
conducted in accordance with the Plans, as well as all applicable state and
federal laws, including the 1940 Act, the Securities Exchange Act of 1934, the
Securities Act of 1933 and any applicable rules of FINRA.
4. Upon request, on a quarterly basis, you shall furnish us with a written
report describing the amounts payable to you pursuant to this Agreement and the
purpose for which such amounts were expended. We shall provide quarterly reports
to the Funds' Board of amounts expended pursuant to the Plans and the purposes
for which such expenditures were made. You shall furnish us with such other
information as shall reasonably be requested by us in connection with our
reports to the Board with respect to the fees paid to you pursuant to this
Agreement.
5. This Agreement shall continue in effect until terminated in the manner
prescribed below or as provided
in the Plans or in Rule 12b-1. This Agreement may be terminated, with respect to
one or more Funds, without penalty, by either of us, upon ten days' prior
written notice to the other party. In addition, this Agreement will be
terminated with respect to any Fund upon a termination of the relevant Plan or
the Selling Group Member Agreement, if a Fund closes to new investments, or if
our Distribution Agreement with the Funds terminates.
6. This Agreement may be amended by us from time to time by the following
procedure. We will mail a copy of the amendment to you at your address shown
below. 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 days.
7. This Agreement shall become effective as of the date when it is executed and
dated by us below. This Agreement and all the rights and obligations of the
parties hereunder shall be governed by and construed under the laws of the state
of Delaware, without regard to conflict of laws principles.
8. All notices and other communications shall be given as provided in the
Selling Group Member Agreement.
If the foregoing is acceptable to you, please sign this Agreement in the space
provided below and return the same to us.
FORESIDE FUND SERVICES, LLC
Agreed to and Accepted
Name and Address of Intermediary:
By:
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Insert Name:
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Title:
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Date: By:
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Insert Name:
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Title:
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Date:
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APPENDIX B
[THIS WILL BE WHATEVER THE FUND HAS PREVIOUSLY AGREED TO BE THEIR
22C-2 LANGUAGE]
INFORMATION REGARDING THE PROVISION OF SHAREHOLDER INFORMATION PURSUANT TO RULE
22C-2
(a). AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide the Fund,
upon request, the taxpayer identification number ("TIN"), if known, (or in the
case of a non U.S. shareholder, if the TIN is unavailable, the International
Taxpayer Identification Number or other government issued identifier) of any or
all Shareholder(s) who have purchased, redeemed, transferred, or exchanged fund
shares held through an account with Intermediary and the amount, date, name or
other identifier of any investment professional(s) associated with the
Shareholder(s) or account (if known), and transaction type (purchase,
redemption, transfer, or exchange) of every purchase, redemption, transfer, or
exchange of Shares held through an account maintained by the Intermediary during
the period covered by the request.
i. PERIOD COVERED BY REQUEST. Requests must set forth a specific
period, not to exceed 90 days from the date of the request, for which
transaction information is sought. The Fund may request transaction
information older than 90 days from the date of the request as it deems
necessary to investigate compliance with policies established by the
Fund for the purpose of eliminating or reducing any dilution of the
value of the outstanding shares issued by the Fund.
ii. FORM AND TIMING OF RESPONSE. Intermediary agrees to transmit the
requested information that is on its books and records to the Fund or
its designee promptly, but in any event not later than five business
days, after receipt of a request. If the requested information is not
on the Intermediary's books and records, Intermediary agrees to use
best efforts to: (x) provide or arrange to provide to the Fund the
requested information from shareholders who hold an account with an
indirect intermediary, including a determination on whether any
specific person about whom Intermediary has received information, is
itself a financial intermediary; or (y) if directed by the Fund,
restrict or prohibit further purchases or exchanges of Fund Shares by a
shareholder who has been identified by the Fund as having engaged in
transactions of Fund shares (directly or indirectly) that violate
policies established by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding securities issued
by the Fund. In such instance, Intermediary agrees to inform the Fund
whether it plans to perform (x) or (y). Responses required by this
paragraph must be communicated in writing and in a format mutually
agreed upon by the parties. To the extent practicable, the format for
any transaction information provided to the Fund should be consistent
with the NSCC Standardized Data Reporting Format. For purposes of this
provision, an "indirect intermediary" has the same meaning as in SEC
Rule 22c-2 under the Investment Company Act.
iii. LIMITATIONS ON USE OF INFORMATION. The Fund agrees not to use the
information received for marketing or any other similar purpose without
the prior written consent of the Intermediary.
(b) AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Fund shares by a Shareholder who has been identified by the Fund as
having engaged in transactions of the Fund's Shares (directly or indirectly
through the Intermediary's account) that violate policies established by the
Fund for the purpose of eliminating or reducing any dilution of the value of the
outstanding Shares issued by the Fund.
i. FORM OF INSTRUCTIONS. Instructions must include the TIN, if known,
and the specific restriction(s) to be executed. If the TIN is not
known, the instructions must include an equivalent identifying number
of the Shareholder(s) or account(s) or other agreed upon information to
which the instruction relates.
ii. Timing of Response. Intermediary agrees to execute instructions as
soon as reasonably practicable, but not later than five business days
after receipt of the instructions by the Intermediary.
iii. Confirmation by Intermediary. Intermediary must provide written
confirmation to the Fund that instructions have been executed.
Intermediary agrees to provide confirmation as soon as reasonably
practicable, but not later than ten business days after the
instructions have been executed.
(c) DEFINITIONS. For purposes of this Appendix B:
i. The term "Fund" includes the fund's investment adviser, principal
underwriter and transfer agent. The term does not include any "excepted
funds" as defined in SEC Rule 22c-2(b) under the Investment Company Act
of 1940.(1)
ii. The term "Shares" means the interests of Shareholders corresponding
to the redeemable securities of record issued by the Fund under the
Investment Company Act of 1940 that are held by the Intermediary.
iii. The term "Shareholder" means the beneficial owner of Shares,
whether the Shares are held directly or by the Intermediary in nominee
name or, alternatively, for use with retirement plan recordkeepers, the
term means the Plan participant notwithstanding that the Plan may be
deemed to be the beneficial owner of Shares.
iv. The term "written" includes electronic writings and facsimile
transmissions.
v. The term "Intermediary" shall mean a "financial intermediary" as
defined in SEC rule 22c-2.
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(1) As defined in SEC Rule 22c-2(b), the term "excepted fund" means any: (1)
money market fund; (2) fund that issues securities that are listed on a national
exchange; and (3) fund that affirmatively permits short-term trading of its
securities, if its prospectus clearly and prominently discloses that the fund
permits short-term trading of its securities and that such trading may result in
additional costs for the fund.
