Exhibit 5(b)
SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
The undersigned distributor (the "Distributor" or "us" or "we"), which is
a member firm of the National Association of Securities Dealers, Inc. ("NASD"),
has an agreement with certain mutual funds (the "Funds"), including those listed
on Schedule A, pursuant to which it acts as the distributor for the sale of
shares of the Funds ("Shares") and as such has the right to distribute Shares
for resale. (We may amend Schedule A from time to time to add or delete Funds
upon notice to you.) The Funds are open-end investment companies registered
under the Investment Company Act of 1940, as amended (the "Investment Company
Act"), and the Shares are registered under the Securities Act of 1933, as
amended (the "Securities Act"). The terms "Prospectus" and "SAI" used herein
refer to the prospectus and statement of additional information, respectively,
on file with respect to each Fund with the Securities and Exchange Commission
(the "Commission") which are part of the most recent effective registration
statement pursuant to the Securities Act. We offer to sell to you, as a member
of the Selected Dealers Group, Shares of the Classes indicated on Scheduled A
upon the following terms and conditions:
1. In all sales of Shares to the public, you shall act either as dealer
for your own account or as agent on behalf of your customer and in no
transaction shall you have any authority to act as agent for any Fund, for us or
for any other member of the Selected Dealers Group, except in connection with
special programs as we may from time to time agree, in which case you shall have
authority to offer and sell shares, as agent for a Fund, to participants in such
program.
2. Orders received from you will be accepted through us only at the public
offering price applicable to each order, as set forth in the current Prospectus
and SAI of each Fund. The procedure relating to the handling of orders shall be
subject to Section 5 hereof and instructions that we or the Funds shall forward
from time to time to you. All orders are subject to acceptance or rejection by
the Distributor or a Fund in the sole discretion of either. The minimum initial
and subsequent purchase requirements are as set forth in the current Prospectus
and SAI of each Fund.
3. The Distributor agrees to pay to you the sales charges and/or ongoing
Selected Dealer payments specified in the applicable Prospectus and SAI or in
Schedule A. If there is any conflict between a term of Schedule A and a term of
The applicable Prospectus or SAI, the term of the Prospectus or SAI shall
prevail. You acknowledge and agree that, notwithstanding purchases of additional
Shares through you by your customers or the establishment of a customer account
with you, you shall not be paid for purchases of Shares by Fund shareholders who
have already purchased Shares either directly with us or from a period prior to
any customer relationship between you and such shareholders.
4. (a) You shall not place orders for any of the Shares unless you have
already received purchase orders for such Shares from you customers at the
applicable public offering prices and subject to the terms of this Agreement,
the Prospectus and the SAI.
(b) You shall indemnify and hold harmless the Distributor, each Fund and
each person affiliated with the Distributor or a Fund, and their respective
officers, directors, employees, partners and shareholders from and against any
loss, liability, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage or expense
and reasonable counsel fees incurred in connection therewith), as incurred,
arising in connection with your violation of any of the provisions of this
Agreement, provided, however, that in no case is the foregoing indemnity to be
deemed to protect the Distributor or any such affiliated persons, officers,
directors, shareholder, partners or employees thereof against any liability to a
Fund or its security holders to which the Distributor or any
such person would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of their duties or by reason of the
reckless disregard of their obligations and duties under this Agreement.
5. As a selected dealer, you are hereby authorized (i) to place orders
directly with the Funds for Shares to be resold by us to you or exchanged
subject to the applicable terms and conditions governing the placement of orders
and subject to the compensation provisions set forth in this Agreement, the
Prospectus and the SAI, and (ii) to tender Shares directly to the Funds or their
agent for redemption subject to the applicable terms and conditions set forth in
this Agreement, the Prospectus and the SAI. You agree that your transactions
with us will be through National Securities Clearing Corporation ("NSCC")
Networking and Fund/SERV pursuant to NSCC standard procedures and the operating
procedures of the Distributor and the Funds' transfer agent as communicated to
you from time to time, or as otherwise provided by us and agreed to by you. You
warrant that any information provided by you through NSCC is accurate and
complete and in the format prescribed by the NSCC.
6. 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.
7. Payment for Shares purchased by you shall be made on the settlement
date specified in the confirmation through NSCC Fund/SERV, if applicable, or by
Federal Funds wire. If such payment is not received by us, we reserve the right,
without notice, to either cancel the purchase or, at our option, to sell the
Shares back to the Fund, and in either case, we may hold you responsible for any
direct loss suffered by us or by the Fund resulting from your failure to make
payment as aforesaid.
8. You agree to take full responsibility for the suitability and proper
supervision of mutual fund recommendations to your customers and to ensure that,
to the extent customers request to purchase a class of shares in a Fund
different from what they already hold in the Fund, such customers are aware of
the advantages and disadvantages of selecting one class of shares over other
classes of shares and are aware of the available methods of mutual fund
financing.
9. If any Shares sold to you under the terms of this Agreement are
repurchased by the Funds or by us for the account of the Funds or are tendered
for redemption within seven business days after the date of the confirmation of
the original purchase by you, it is agreed that you shall forfeit your right to,
and refund to us, any compensation received by you on such Shares.
10. No person is authorized to make any representations concerning Shares
except those contained in the current Prospectus and SAI of each Fund and in
such information subsequently issued by us or the Fund as information
supplemental to such Prospectus and SAI. In purchasing Shares through us you
shall rely solely on the representations contained in the Prospectuses and SAIs
and supplemental information above mentioned. Any information that we furnish to
you other than Prospectuses, SAIs, periodic reports and proxy solicitation
material is our sole responsibility and not the responsibility of the Funds, and
you agree that no Fund shall have any liability or responsibility to you in
these respects unless expressly assumed in connection therewith. You shall not
furnish to any person any information relating to the Shares that is
inconsistent in any respect with the information contained in the Prospectus and
SAI (as then amended or supplemented). You shall not use through the internet or
otherwise any sales literature or advertisement regarding the Funds without our
prior written consent, unless it is solely a listing of product offerings or has
been provided by us for such purpose.
11. You agree to deliver to each of the investors making purchases from
you a copy of the relevant then current Prospectus at or prior to the time of
offering or sale and, if requested, the SAI within
three business days of receipt of request. You agree thereafter to deliver to
such investors copies of the annual and interim reports and proxy solicitation
materials of the Funds. You further agree to endeavor to obtain proxies from
such purchasers. Additional copies of Prospectuses and SAIs, annual or interim
reports and proxy solicitation materials of the Funds will be supplied to you in
reasonable quantities upon request.
12. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Shares entirely or to certain persons or
entities in a class or classes specified by us. Each party hereto has the right
to cancel this agreement upon notice to the other party. Cancellation will not
affect any outstanding order or transaction, any provision of this Agreement
intended to survive cancellation, or any legal right or obligations which may
have arisen prior to cancellation. This Agreement may not be amended or modified
in any respect, nor may any provision be waived, without the written agreement
of both parties.
13. 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 the
Shares. We shall be under no liability to you or to your customers except for
lack of good faith and for obligations expressly assumed by us herein. Nothing
contained in this paragraph is intended to operate as, and the provisions of
this paragraph shall not in any way whatsoever constitute, a waiver by you of
compliance with any provision of the Securities Act, or of the rules and
regulations of the Securities and Exchange Commission issued thereunder.
14. You represent that you are a broker-dealer registered under the
Securities Exchange Act of 1934 and a member in good standing with the National
Association of Securities Dealers, Inc. ("NASD"). You agree to notify us
immediately if you cease to be registered or licensed as a broker or dealer, or
fail to be a member in good standing of the NASD. In connection with the offer,
sale, redemption or exchange of shares, each party agrees to comply with the
Conduct Rules of such Association, including Rule 2830, and with all the
applicable Federal and State securities laws. You agree to promptly advise the
Distributor if you receive notice of any investor complaint, litigation
initiated or threatened, or communication by a regulatory authority which
relates to a Fund or to a transaction in Shares by you, and you agree to provide
us information and documentation thereon as we may request.
15. Upon application to us, we will inform you as to the States in which
we believe notifications of the intention to sell Shares have been duly filed or
where no such notification is required, but we assume no responsibility or
obligation as to your right to sell Shares in any jurisdiction. We will file
with the Department of State in New York a Further State Notice with respect to
the Shares, if necessary. Shares may only be offered or sold to U.S. persons in
States where notifications regarding the Shares have been duly filed or where no
such notifications are required.
16. All communications to us should be sent to the address below. Any
notice to you shall be duly given if mailed or telegraphed to you at the address
specified by you below.
17. Your first order placed pursuant to this Agreement for the purchase of
Shares will represent your acceptance of this Agreement.
18. This Agreement represents the entire agreement between the parties and
supersedes any prior Selected Dealer Agreement entered into by the parties
hereto (or their respective predecessors) with respect to Shares.
19. This Agreement shall be governed by the laws of the State of New York
without reference to conflicts of law principles. If a dispute arises between us
and you with respect to this Agreement that we are unable to resolve ourselves,
it shall be settled by arbitration in accordance with the
then existing NASD Code of Arbitration Procedure. We agree that, to the extent
permitted by such Code, the arbitrator(s) shall be selected from the securities
industry.
IN WITNESS WHEREOF, the parties have executed this Selected Dealer Agreement
effective as of the date written below.
FAM DISTRIBUTORS INC.
By: /s/ Xxx Xxxxxx
------------------
Title: Vice President
Accepted:
/s/ Xxxxxx X. Banco
---------------------
(authorized signature)
Firm Name: Midatlantic Capital Corporation
Print Name: Xxxxxx X. Banco
Title: Chief Financial Officer
Address: The Times Building
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Date: July 09, 2002
Please return one signed original
of this agreement by US Mail and a copy by fax to:
FAM DISTRIBUTORS, INC.
Legal Advisory
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
SCHEDULE A
List of Xxxxxxx Xxxxx Funds and Selected Dealer Compensation
You shall be entitled to sell Shares of the following Funds:
Xxxxxxx Xxxxx Premier Institutional Fund
Xxxxxxx Xxxxx Institutional Fund
Xxxxxxx Xxxxx Government Fund
Xxxxxxx Xxxxx Treasury Fund
Xxxxxxx Xxxxx Institutional Tax-Exempt Fund
of Xxxxxxx Xxxxx Funds for Institutions Series
Subject to the provisions of Section 3 of this Agreement, you shall be entitled
to compensation of [0.05%] per annum of the average daily net assets of the
Funds attributable to the sale of Shares by you.
The Times Building
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Mid Atlantic Institutional Shares, Inc. (000) 000-0000 Fax (000) 000-0000
October 1, 2002
Xxxxxxx Xxxxx Funds
Attn: Xxx Xxxxxx
Xxx Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Re: Selected Dealer Agreement (the "Contract(s)")
Ladies and Gentlemen:
Mid Atlantic Institutional Shares, Inc. ("MAIS") proposes to sell
substantially all of its business to SunGard Institutional Brokerage Inc.
("SIBI"), including the [MoneyFundTrader/FundStream] portion of its business
that provides customer services with respect to the Contract(s) (the "Sale").
The Sale will result in the transfer and assignment of all of the rights and
obligations under the Contract(s) from Mid Atlantic Capital Corporation
("MACC"), an affiliate of MAIS, to SIBI. Although the
[MoneyFundTrader/FundStream] business is being sold, the management will remain
in place. Additionally, the assignment of the Contract(s) as part of the Sale
provides for SIBI's continued performance of the obligations under the
Contract(s). Thus, the Company can expect that the Contract(s) will continue to
be performed as in the past.
The Company's consent to the assignment of MACC's rights and obligations
under the Contract(s) to SIBI is required. This notice seeks to obtain the
Company's consent to the assignment of the Contract(s) and any and all rights
and obligations arising thereunder to SIBI in connection with the Sale, and an
acknowledgement that, with respect to the Sale, this letter satisfies any notice
required to be given under, or relating to, the Contract(s).
Please acknowledge your agreement and consent to the foregoing by signing
below and returning a copy to the attention of Xxx Friday, President & CEO of
MAIS, via facismile at (000) 000-0000 and the original also to Xxx via regular
or overnight mail.
The Sale is anticipated to occur within the next few weeks. In light of
the short time frame before the scheduled closing of the Sale, we would greatly
appreciate your prompt attention to this matter. If we do not receive a response
within ten (10) days, then the parties will assume that the Company's consent to
assignment is not being withheld and SIBI will perform under the terms of the
Contract(s) effective upon the closing of the Sale. To the extent that the
closing of the Sale does not occur, this Consent shall automatically and without
further notice be considered to be void and of no further effect.
Thank you for your assistance with this manner.
Sincerely,
MID ATLANTIC INSTITUTIONAL SHARES, INC.
By: /s/ Xxxxxxx Friday
-------------------------------
Xxxxxxx Friday, President & CEO
Agreed to an accepted by:
FAM Distributors Inc.
By: /s/ Xxx Xxxxxx
------------------
Name: Xxx Xxxxxx
Title: Vice President
Date: October 9, 2002
