THE BEAR XXXXXXX FUNDS
DEALER AGREEMENT
___________________
Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") has entered into a distribution
agreement (the "Distribution Agreement"), dated February 22, 1995 with The Bear
Xxxxxxx Funds (the "Trust") in which Bear Xxxxxxx has agreed to act as
distributor (the "Distributor") of shares of each series ("Series") of the
Trust. For purposes of this Agreement, the term ("Shares") shall mean the
authorized shares of the relevant Series (or "Class" thereof) of the Trust.
This Dealer Agreement shall herein be referred to as the "Agreement." For
purposes of this Agreement, "Bear Xxxxxxx" shall mean Bear, Xxxxxxx & Co. Inc.
in our capacity as Distributor.
1. Role of Bear Xxxxxxx. Pursuant to the Distribution Agreement, we have
--------------------
agreed to use our best efforts to make arrangements for securities dealers
("Authorized Dealers") which can make the representation set forth in Section 6
of this Agreement to solicit from the public orders to purchase Shares. This
will confirm our mutual agreement as to the terms and conditions applicable to
your participation as an Authorized Dealer. You understand (a) that we may, at
any time at our option, act as an Authorized Dealer, (b) that we are seeking to
enter into this Agreement in counterparts with you and certain other securities
dealers, which also may act as Authorized Dealers, (c) that, except as we may
otherwise agree with you, we may enter into agreements (which may or may not be
the same as this Agreement) with other Authorized Dealers, (d) that the Trust
and we may modify, suspend, terminate or withdraw entirely the offering of
Shares at any time without giving notice to you pursuant to Section 14 and
without incurring any liability or obligation to you, (e) that we may, upon
notice, change the public offering price, sales load, or dealer allowance or
modify, cancel or change the terms of this Agreement, and (f) we shall be under
no liability to you except for lack of good faith and for obligations expressly
assumed by us herein. All purchases of Shares from, and redemptions of Shares
by, the Trust shall be effected through us acting on behalf of the Trust. You
understand that we shall have no obligation to sell Shares to you at such times
as we are not acting as Distributor for the Shares.
2. Role of Authorized Dealers. (a) As an Authorized Dealer, you shall
--------------------------
have no obligation to purchase or sell or to solicit the purchase or sale of
Shares. As, when and if you determine to purchase Shares or you receive a
customer order for the purchase of Shares and you determine to accept such
order, you shall comply with the procedures for the purchase of Shares set forth
in the relevant Prospectus and Statement of Additional Information (the "SAI")
as most currently amended or supplemented. The procedure relating to the
handling of orders shall be subject to such further instructions as we shall
forward to you in writing from time to time.
(b) You agree to offer Shares to the public at the then-applicable public
offering price and subject to the minimum investment amount set forth in the
relevant Prospectus and SAI, subject to any waivers or reductions of sales load
(the "Sales Load") or dealer allowances (the "Dealer Allowances") as described
in the relevant Prospectus and SAI as amended from time to time. Any amendment
to a Prospectus and SAI which affects the Sales Load, Dealer Allowances, waivers
or discounts shall not affect the Sales Load, Dealer Allowances, discounts
or waivers with respect to sales on which orders have been accepted by us prior
to the date of notice of such amendment. Your placement of an order for Shares
after the date of any notice of such amendment shall conclusively evidence your
agreement to be bound thereby. The Trust and Bear Xxxxxxx reserve the right to
modify any minimum investment requirements, subsequent investment requirements,
the manner in which Shares are offered and the Sales Load rates applicable to
future purchase of Shares. You also acknowledge that the amounts charged to the
public for Shares may include such transaction fees ("Transaction Fees") as may
be described in the relevant Prospectus and SAI. In addition, you may make
available Shares through a "no transaction fee" program, to the extent permitted
in the relevant Prospectus and SAI. Bear Xxxxxxx shall make a reasonable effort
to notify you of any redetermination or suspension of the public offering price,
but Bear Xxxxxxx shall be under no liability for failure to do so. Reduced Sales
Loads also may be available as a result of a cumulative discount or pursuant to
a right of accumulation as set forth in the relevant Prospectus and SAI. You
agree to advise us promptly as to the amounts of any sales made by you to the
public qualifying for reduced Sales Loads.
(c) You agree to purchase Shares from us only to cover purchase orders
already received from your customers, or for your own bona fide investment. You
will not withhold placing with us orders received from your customers so as to
profit yourself as a result of such withholding. All orders for Shares are
subject to acceptance or rejection by Bear Xxxxxxx or the Trust in the sole
discretion of either.
(d) In purchasing Shares through us, you shall rely solely on the
representations contained in the relevant Prospectus and SAI and any
supplemental sales material. We will indemnify you and hold you harmless as to
any representations made in the then-current Prospectus, SAI and any other
supplemental material which we supply to you and you have not altered. You will
not furnish to any person any information relating to the Shares, the Trust, any
Series or us that is inconsistent with information contained in the relevant
Prospectus and SAI, or any printed information issued by the Trust or us as
information supplemental to such Prospectus and SAI or cause any advertisement
to be published or posted in any public place without our consent and the
consent of the Trust.
(e) In all sales of Shares to the public, you shall act as dealer for your
own account, whether as agent or principal. Nothing herein shall be deemed to
constitute you or any other Authorized Dealer as agent for the Trust, us, or any
other Authorized Dealer. You agree not to act as our agent and not to claim to
act as our agent or as agent of any of the foregoing. You shall be deemed to be
an independent contractor and you shall have no authority to act for or
represent the Trust. You will not act as an "underwriter" or "distributor" of
Shares, as those terms are used in the Investment Company Act of 1940, as
amended (the "Investment Company Act"), the Securities Act of 1933, as amended
(the "Securities Act"), and the rules and regulations thereunder.
You agree to buy Shares only through us and not from any other source and
to sell Shares only to us, as the Trust's redemption agent, and not to any other
purchaser.
(f) You agree to accept orders for the redemption of Shares and to transmit
to the Trust such orders and all additional material required to complete the
redemption as described in the relevant Prospectus and SAI.
2
(g) You agree that we shall have full authority to act upon your express
instructions to repurchase or exchange Shares through us on behalf of your
customers under the terms and conditions provided in the relevant Prospectus and
SAI. You agree to hold us, our parent company, subsidiaries, affiliates and
their respective officers, directors, employees and agents harmless as a result
of any action taken with respect to authorized repurchases or exchanges upon
your express instructions.
3. Compensation. (a) You will be entitled to receive that portion of
------------
the Sales Load allocated to Authorized Dealers as set forth in the relevant
Prospectus and SAI in connection with purchases of Shares effected by or through
you. You acknowledge that the relevant Prospectus and SAI will set forth a
description of waivers or reduction of the Sales Load in certain cases and you
hereby waive such portion of the Sales Load otherwise allocated to you. We will
promptly remit or cause to be remitted to you, by wire transfer of same day
funds to an account you shall designate, that portion of the Sales Load or
Transaction Fees, if any, to which you are entitled, after deduction of the
portion allocated to us, which was received by us and not yet paid to you.
(b) If payment in Federal Funds is not received by the third business day
after the execution of the order, Bear Xxxxxxx reserves the right, without any
notice, to cancel the sale and to hold you responsible for any loss, including
loss of profits, suffered by Bear Xxxxxxx or by the Trust resulting from such
failure.
4. Orders and Payment for Shares. Upon receipt from you of any order to
-----------------------------
purchase Shares and, if a new account, receipt of a fully executed Account
Information Form, we shall confirm such order to you in writing or by wire to be
followed by a confirmation in writing. If any such orders are faxed to the
Transfer Agent, they must be transmitted no later than 4:00 p.m. Eastern
Standard Time. Any faxes sent to the Transfer Agent must be followed with a
phone call to confirm receipt. Additional instructions may be forwarded to you
from time to time. Payment for Shares ordered from us shall be made in Federal
Funds and must be received by the Trust's agent, PFPC Inc., within three
business days of a receipt and acceptance by us of an order. You agree that
before transmitting investors' funds, you will comply with Rule 15c2-4 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
5. Blue Sky Registration. The Trust has registered an indefinite number
---------------------
of Shares under the Securities Act. Upon application by you, we shall inform
you as to any advice received by us concerning the jurisdictions in which the
Shares have been registered for offer or sale or are exempt under the securities
or blue sky laws of such jurisdictions, but we assume no obligation or
responsibility as to your right to offer or sell Shares in any jurisdiction
(other than under the federal laws of the United States). You agree to offer
shares only in those states in which the Shares are registered for offer or sale
or exempt under the securities or blue sky laws of such state. You acknowledge
that you may not offer or sell Shares outside the United States, its territories
or its possessions, and you agree to take, at your expense, such action, if any,
as may be necessary to comply with the laws of such foreign jurisdictions.
6. Representations, Warranties and Undertakings. You represent and
--------------------------------------------
warrant to and undertake that:
3
(a) You are familiar with Securities Act Release No. 4968, Rule 15c2-8
under the Exchange Act, Section 4(3) of Securities Act and Section 24(d) of the
Investment Company Act relating to the distribution and delivery of preliminary
and final prospectuses and will comply therewith. You will deliver thereafter
to any customer whose Shares you are holding as record holder copies of the
annual and interim reports and proxy solicitation materials relating to the
Shares.
(b) You agree to keep an accurate record of distributions (including dates,
number of copies and persons to whom sent) of copies of any Prospectus (and any
SAI) for each Series of the Trust (or any amendment or supplement) and, promptly
upon request by Bear Xxxxxxx, to bring all subsequent changes to such Prospectus
to the attention of anyone to whom such material shall have been distributed.
You further agree to furnish to persons who receive a confirmation of sale of
shares of any Series of the Trust a copy of the relevant Prospectus for such
Series of the Trust filed pursuant to Rule 497 under the Securities Act. You
further agree to furnish a copy of the relevant SAI to anyone who requests it
within three business days of your receipt of the request.
(c) You will make all reasonable efforts to obtain proxies from such
purchasers whose Shares you are holding as record holder. Additional copies of
a Series' Prospectuses, SAI, annual or interim reports, proxy solicitation
materials and any other printed information supplemental to such material will
be supplied as reasonably requested.
(d) You are a broker-dealer registered with the Securities and Exchange
Commission (the "SEC") and a member in good standing of the National Association
of Securities Dealers, Inc. (the "NASD") or, in the alternative, you are a
foreign dealer or bank, not required to be registered as a broker-dealer with
the SEC and not required or eligible to be a member of the NASD. If you are
such an NASD member, you agree that in making sales of shares of the one or more
Classes of Shares of each Series of the Trust, you will comply with all
applicable rules of the NASD, including without limitation, rules pertaining to
the opening, approval, supervision and monitoring of customer accounts, the
NASD's Interpretation with Respect to Free-Riding and Withholding and Sections
2730, 2740 and 2750 of the NASD's Conduct Rules. If you are such an
unregistered foreign dealer or bank, you agree not to offer or sell, or to agree
to offer or sell, directly or indirectly, any shares to any party to whom such
shares may not be sold (unless the seller is so registered and a member of the
NASD), and in making sales of such shares you agree to comply with the NASD's
Interpretation with Respect to Free-Riding and Withholding and Sections 2730,
2740 and 2750 of the NASD's Conduct Rules as though you were a member in good
standing of the NASD and to comply with Section 2420 of such Conduct Rules as it
applies to a nonmember broker or dealer in a foreign country. You agree to
abide by all other Rules and Regulations of the NASD, including Section 2830 of
its Conduct Rules, and all applicable state and Federal laws, rules and
regulations. Your acceptance also constitutes a representation that you have
been duly authorized by proper corporate or partnership action to enter into
this Agreement and to perform your obligations hereunder. You will not accept
any orders from any broker, dealer or financial institution that is purchasing
Shares from you with a view toward distribution unless you have obtained such
person's or entity's written consent to be bound by the terms of this Agreement.
4
(e) You undertake to comply, with respect to your offering of Shares to the
public pursuant to this Agreement, with all applicable provisions of the
Securities Act, the Exchange Act the Investment Company Act, the rules and
regulations under these Acts and with applicable rules of the NASD.
(f) You represent that any compensation payable to you hereunder (i) will
be disclosed to your customers; (ii) will be authorized by your customers; and
(iii) will not result in an excessive fee to you. In addition, if an issue
relating to a Class' 12b-1 Plan (as defined below) is submitted for shareholder
approval, you will vote any Shares held for your own account in the same
proportion as the vote of the Shares held by your customers on such issue. You
further represent that in effecting the purchase or redemption of Shares in
accordance with the terms of this Agreement: (i) you shall act solely as agent
for the account of your customer; (ii) purchases or redemptions of Shares shall
be initiated solely upon the instruction and order of your customer; (iii) the
customer will have full beneficial ownership of any Shares purchased upon its
authorization and order; and (iv) all transactions shall be for the account of
the customer and under no circumstances for your account, and shall be without
recourse to you. Under no circumstances will you make any oral or written
representations to the contrary.
7. l2b-1 Plan. Those Series or Classes set forth as having a l2b-1 Plan
----------
have adopted a plan pursuant to Rule l2b-1 under the Investment Company Act (a
"12b-1 Plan") as described in the relevant Prospectus and SAI. To the extent
you provide services of the type contemplated by a 12b-1 Plan, you may be
entitled to receive compensation from us as set forth in that Plan. All
compensation, including fees under the l2b-1 Plan, shall be payable to you only
to the extent that funds are received and are in the possession of the
Distributor.
8. Shareholder Servicing Plan. Those Series or Classes set forth as
--------------------------
having a Shareholder Servicing Plan have adopted such plan as described in the
relevant Prospectus and SAI. To the extent that you provide services of the
type contemplated by the Shareholder Servicing Plan, you may be entitled to
receive compensation from us as set forth in that Plan. Such services may
include: (i) establishing and maintaining accounts and records relating to
shareholders; (ii) processing dividend and distribution payments from the Trust
on behalf of shareholders; (iii) providing information periodically to
shareholders showing their positions in shares and integrating such statements
with those of other transactions and balances in shareholders' other accounts
serviced by such financial institution; (iv) arranging for bank wires; (v)
responding to shareholder inquiries relating to the services performed; (vi)
responding to routine inquiries from shareholders concerning their investments;
(vii) providing subaccounting with respect to shares beneficially owned by
shareholders, or the information to the Trust necessary for subaccounting;
(viii) if required by law, forwarding shareholder communications from the Trust
(such as proxies, shareholder reports, annual and semi-annual financial
statements and dividend, distribution and tax notices) to shareholders; (ix)
assisting in processing purchase, exchange and redemption requests from
shareholders and in placing such orders with our service contractors; (x)
assisting shareholders in changing dividend options, account designations and
addresses; (xi) providing shareholders with a service that invests the assets of
their accounts in shares pursuant to specific or pre-authorized instructions;
and (xii) providing such other similar services as the Trust or the Distributor
may reasonably request to the extent you are permitted to do so under applicable
statutes, rules and regulations. All compensation, including the fees
5
under the Shareholder Servicing Plan, shall be payable to you only to the extent
that funds are received and are in the possession of the Distributor.
9. Indemnification. The parties to this Agreement hereby agree to
---------------
indemnify and hold harmless each other, their officers and directors, and any
person who is or may be deemed to be a controlling person of each other, and any
person who is or may be deemed to be a controlling person of each other, from
and against any losses, claims, damages, liabilities or expenses (including
reasonable fees of counsel) to which any such person or entity may become
subject insofar as such losses, claims, damages, liabilities or expense (or
actions in respect thereof) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of material fact, or any omission or
alleged omission to state a material fact made or omitted by it herein, or (b)
any willful misfeasance or gross misconduct by it in the performance of its
duties and obligations hereunder.
10. NSCC Indemnity - Shareholder and House Accounts. In consideration of
-----------------------------------------------
the Distributor liquidating, exchanging and/or transferring uncertificated
Shares for your customers without the use of original or underlying
documentation supporting such instruction (e.g. a signed stock power or
signature guarantees), you hereby agree to indemnify the Distributor and the
Trust against any losses, including reasonable attorney's fees, that may arise
from such liquidation, exchange and/or transfer of uncertificated Shares upon
your direction. This indemnification shall apply only to the liquidation,
exchange and/or transfer of uncertificated Shares in shareholder and house
accounts executed as wire orders transmitted via NSCC's Fund/SERV system. You
represent and warrant to the Trust and the Distributor that all such
transactions shall be authorized by your customers.
This indemnification shall not apply to any losses (including attorneys
fees) caused by the Distributor or the Trust to comply with any of your
instructions governing any of the above transactions, or any negligent act or
omission of the Distributor or the Trust, or any of their directors, officers,
employees or agents. All transactions shall be settled upon your confirmation
through NSCC transmission to the Distributor.
11. Termination. Either party to this Agreement may cancel this Agreement
-----------
by written notice to the other party. Such cancellation shall be effective upon
receipt of such notice. Bear Xxxxxxx agrees to cancel this Agreement upon
instruction to do so by a majority of the Trustees who are not "interested
persons" of the Trust (as defined in the Investment Company Act) and who have no
direct or indirect financial interest in the operation of this Agreement.
12. Representations to Survive. The agreements, representations,
--------------------------
warranties and other statements set forth in or made pursuant to this Agreement
will remain in full force and effect, to the extent permitted by applicable law,
regardless of any investigation made by or on behalf of us or any Authorized
Dealer. The provisions of Section six and nine of this Agreement shall survive
the offer and sale of the Shares and the termination or cancellation of this
Agreement, to the extent permitted by applicable law.
13. No Association. Nothing herein contained constitutes an agreement to
--------------
become partners with you or with any other Authorized Dealer, but you shall be
liable for your proportionate share of any tax, liability or expense based on
any claim arising from the sale of
6
Shares under this Agreement. We and you hereby agree that there is no intent to
form a partnership, and agree not to take any position inconsistent with that
intent. We shall not be under any liability to you, except for obligations
expressly assumed by us in this Agreement and liabilities under Section 11(f) of
the Securities Act, and no obligations on our part shall be implied or inferred
herefrom.
14. Recordkeeping. You will maintain all records required by law to be
-------------
kept by you relating to transactions in the Shares and, upon request by the
Trust, promptly make such of these records available to the Trust as the Trust
may reasonably request in connection with its operations.
15. Notices. Notices hereunder shall be deemed to have been duly given if
-------
delivered by hand or facsimile (a) if to you, at your address or facsimile
number set forth below and (b) if to us, to Bear, Xxxxxxx & Co. Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx or, in
each case, such other address as may be notified to the other party.
16. Amendments. We may modify this Agreement at any time by written
----------
notice to you. The first order placed by you subsequent to the giving of such
notice shall be deemed to be acceptance by you of the modification described in
such notice.
17. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New York.
18. Arbitration. Any controversy or claim arising out of or relating to
-----------
this Agreement, or any breach thereof, shall be settled by arbitration in
accordance with the Rules of the New York Stock Exchange, Inc. Such arbitration
shall be commenced within one year after the cause of action forming the basis
of the controversy or claim accrued. The arbitration shall be conducted in New
York, New York before three arbitrators, all of whom shall be from the
securities industry. Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
7
Please confirm your agreement by signing and returning to us the two
enclosed duplicate copies of this Agreement. Upon our acceptance hereof, the
Agreement shall constitute a valid and binding contract between us. After our
acceptance, we will deliver to you one fully executed copy of this Agreement.
Very truly yours,
BEAR, XXXXXXX & CO. INC.
By:___________________________
Name: __________________
Title: ___________________
Confirmed:
______________________________
(Name of Authorized Dealer)
Date:
By:___________________________
(Authorized Signature)
Name: ____________________
Title: _____________________
______________________________
Street Address
______________________________
City State Zip
______________________________
Facsimile No.
______________________________
Telephone No.
______________________________
Telex No.
______________________________
Firm Taxpayer Identification No.
8
BEAR XXXXXXX FUNDS DEALER PROFILE SHEET
===============================================================================================================================
1. Has signed dealer agreement been sent to distributor? Yes__ or No__ Date Sent:______
-------------------------------------------------------------------------------------------------------------------------------
2. Dealer name:_____________________________________________________________
-------------------------------------------------------------------------------------------------------------------------------
3. Dealer address:___________________________________________________________
-------------------------------------------------------------------------------------------------------------------------------
4. Dealer contact:___________________________________________________________
-------------------------------------------------------------------------------------------------------------------------------
5. Dealer phone number & fax number:_________________________________________
===============================================================================================================================
QUESTIONS PRECEDED BY ** RELATE TO FUND\SERV
IF NOT A FUND\SERV PARTICIPANT, PLEASE SKIP TO QUESTION #10
===============================================================================================================================
**6. Is the dealer using Fund\Serv? Yes______ or No______
-------------------------------------------------------------------------------------------------------------------------------
**7. Is the dealer using networking? Yes______ or No______
If yes, when would they like to receive position files? Choices are:
_______1/st/ & 3/rd/ Friday_______ 2/nd/ & 4/th/ Friday_______ 1/s/t & 3/rd/ Thursday_______ 2/nd/ & 4/th/ Thursday
Please note: Any additional position files are on an as
requested basis. Please contact Broker services at the 800 number
listed below.
-------------------------------------------------------------------------------------------------------------------------------
**8. If using networking, indicate network level:_____________________________________________
-------------------------------------------------------------------------------------------------------------------------------
**9. If another dealer is clearing for them, what is the other dealer's name:
_________________________________________________
Address: ________________________________________________
________________________________________________
________________________________________________
NSCC number:________________________________________________________________
Alpha indicator:____________________________________________________________
Network level:______________________________________________________________
Contact name:_______________________________________________________________
Contact phone: Area Code:(_____) ___________________
-------------------------------------------------------------------------------------------------------------------------------
10. What is the address of the main office for mailing purposes of commission checks? (MAIN OFFICE ONLY)
-------------------------------------------------------------------------------------------------------------------------------
11. Will statements go to main office or branch? Main Office_________________Branch
-------------------------------------------------------------------------------------------------------------------------------
12. Omnibus account? Yes __________ or No_________
-------------------------------------------------------------------------------------------------------------------------------
Completed fact sheet to be forwarded with signed
Selected Dealer Agreement to:
Bear Xxxxxxx Asset Management Inc.
000 Xxxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Any questions regarding the completion of this form, please
contact Xxxx Xxxxxx at (000) 000-0000
================================================================================
9
