ADVANTUS FUNDS
DEALER SALES AGREEMENT
THIS AGREEMENT, made this ______ day of ___________, 199__, by and
between Ascend Financial Services, Inc., a Minnesota corporation (the
"Underwriter"), having its principal office at 000 Xxxxxx Xxxxxx Xxxxx, Xx.
Xxxx, Xxxxxxxxx, 00000, and ______________ (the "Dealer") having its
principal office at __________________________________________.
WHEREAS, the Underwriter has entered into Distribution Agreements with
certain registered management investment companies (the "Funds"), as listed
on Schedule A hereto and made a part hereof, which Schedule A may be amended
without notice from time to time by the Underwriter, under which the
Underwriter has been engaged and agreed to act as principal underwriter for
the Funds in the sale and distribution of shares of the Funds to the public,
either through dealers or otherwise; and
WHEREAS, the parties hereto desire that the Dealer be a member of a
selling group to sell and distribute shares of the Funds to the public;
NOW, THEREFORE, the Dealer hereby offers to become a member in a selling
group to sell and distribute shares of the Funds to the public subject to the
following terms and conditions.
1. ACCEPTANCE OF SUBSCRIPTIONS; PROSPECTUS AND REGISTRATION
STATEMENT. Subscriptions solicited by the Dealer will be accepted only in
the amounts and on the terms which are set forth in the then current
Prospectus (and/or Statement of Additional Information, if any) for the
Funds. Underwriter represents and warrants that the Prospectus (and/or
Statement of Additional Information, if any) for the Funds shown on Schedule
A are or will be filed with the Securities and Exchange Commission ("SEC"),
that such filings conform in all material respects with the requirements of
the SEC and that, except as Underwriter has given written notice to Dealer,
there is an effective Registration Statement relating to such Funds.
Underwriter shall give written notice to Dealer either (i) of specified
states or jurisdiction in which the Funds may be offered and sold by the
Dealer or (ii) of all states or jurisdictions where the Funds may not be
offered or sold, but Underwriter does not assume any responsibility as to the
Dealer's right to sell the Funds in any state or jurisdiction. Underwriter,
during the term of this Agreement, shall (i) notify Dealer in writing of the
issuance by the SEC of any stop order with respect to a Registration
Statement or the initiation of any proceedings for such purpose or any other
purpose relating to the registration and/or offering of the Funds, (ii) of
any other action or circumstance known to them that may prevent the lawful
sale of the Funds in any state or jurisdiction, and (iii) advise the Dealer
in writing of any amendment to the Registration Statement or supplement to
any Prospectus. The Underwriter shall make available to Dealer such number
of copies of the Prospectus, as amended or supplemented, (and/or Statements
of Additional Information, if any) or any Approved Supplemental Sales
Literature (as defined in Paragraph 5) as the Dealer may reasonably request.
2. DEALER DISCOUNT AND OTHER COMPENSATION. The Dealer shall receive,
for sales of shares of the Funds' common stock, the applicable Dealer
Commission or other compensation as set forth in Schedule A attached hereto
and made a part hereof. Additionally, with respect to certain of the Funds,
the Dealer may be entitled to receive additional compensation upon such terms
and conditions and in such amounts as set forth in Schedule A hereto for
providing to Fund shareholders certain personal and account maintenance
services (including, but not limited to, responding to shareholder inquiries
and providing information on their investments) not otherwise required to be
provided by the applicable Funds' investment adviser or transfer agent
("Service Fees") or (in addition to the aforementioned Dealer Discount) for
sales of shares of the applicable Fund's common stock ("Distribution Fees").
Schedule A may be amended in whole or in part without notice from time to
time by the Underwriter. Dealer assumes sole responsibility to pay
commissions due Dealer's agents or registered representatives in connection
with sales of the Funds' shares of common stock. Upon termination of this
Agreement, for any reason, all compensation otherwise payable to Dealer
hereunder shall cease automatically, including any Service Fees or
Distribution Fees.
3. ORDERS. Orders to purchase shares of the Funds shall be placed as
described in the then current Prospectus (and/or Statement of Additional
Information, if any) of the Funds and as instructed from time to time by the
Underwriter. Orders shall be placed promptly upon receipt, and there shall
be no postponement of orders received so as to profit the Dealer by reason of
such postponement. Each order shall be confirmed by the Dealer to the
Underwriter in writing on the day such order was placed.
All monies or other settlements received by the Dealer for or on behalf
of the Underwriter shall be received by the Dealer in fiduciary capacity in
trust for the Underwriter and shall be immediately transmitted to the
Underwriter, and, in no event, shall the Dealer commingle such monies with
other funds. The Dealer shall keep correct accounts and records of all
business transacted and monies collected by him for the Underwriter to the
extent required by the Underwriter, which accounts and records shall be open
at all times to inspection and examination by the Underwriter's authorized
representative. All accounts, records and any supplies furnished to the
Dealer by the Underwriter shall remain the property of the Underwriter and
shall be returned to the Underwriter upon demand.
4. FAILURE OF ORDER. The Underwriter reserves the right at any time
to refuse to accept and approve any application for the purchase of shares of
the Funds obtained by the Dealer, and also reserves the right to settle any
claims against the Underwriter arising from the sale of shares of the Funds
by the Dealer and to refund to the investor payments made by him on his
shares, without the Dealer's consent. In the event any order for the
purchase of shares of the Funds is rejected by the Underwriter or any payment
received for the purchase of shares of the Funds cannot be collected or
otherwise proves insufficient or worthless, any compensation paid to the
Dealer hereunder shall, promptly upon notice to the Dealer, be returned by
the Dealer to the Underwriter either in cash or as a charge against the
Dealer's account with the Underwriter, as the Underwriter may elect, and the
Dealer hereby agrees that until the Underwriter receives full reimbursement
in cash, the amount of compensation due and owing the Underwriter shall
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constitute a debt to the Underwriter which the Underwriter may collect by any
lawful means, with interest thereon at the maximum rate possible.
5. DEALER'S UNDERTAKINGS. In offering and selling shares of the
Funds, the Dealer shall comply with all applicable state and federal laws and
regulations and all applicable rules of the National Association of
Securities Dealers, Inc. (the "NASD"). In the event of the suspension,
revocation, cancellation or other impairment of the Dealer's membership in
the NASD or the Dealer's registration, license or qualification to sell
shares of the Funds under any applicable state or federal law or regulation,
the Dealer shall give the Underwriter prompt notice of such suspension,
revocation, cancellation or other impairment, and the Dealer's authority
under this Agreement shall thereupon terminate as provided in paragraph 10.
The Dealer shall not sell shares of the Funds pursuant to this
Agreement unless the then current Prospectus is furnished to the purchaser
prior to the offer and sale. The Dealer shall not use any supplemental sales
literature of any kind without prior written approval of the Underwriter
unless it is furnished by the Underwriter for such purpose ("Approved
Supplemental Sales Literature"). No person is authorized to make any
representation concerning shares of the Funds except those contained in the
then current Prospectus (and/or Statement of Additional Information, if any)
or Approved Supplemental Sales Literature. In offering and selling shares of
the Funds, the Dealer shall rely solely on the representations contained in
the then current Prospectus (and/or Statement of Additional Information, if
any) or Approved Supplemental Sales Literature.
With respect to any Fund offering multiple classes of shares, the
Dealer shall disclose to prospective investors the existence of all available
classes of such Fund and shall determine the suitability of each available
class as an investment for each such prospective investor.
The Dealer understands and agrees that each shareholder account which
includes shares of any Fund subject to the Fund's contingent deferred sales
charge (as described in the applicable Fund's current Prospectus and
Statement of Additional Information) shall not be included in the Dealer's
Omnibus or house account, if any, but shall be established as a separate
shareholder account in which purchase and redemption transactions are
reported separately to the Underwriter.
Dealer agrees to furnish to Underwriter such information as may from
time to time be requested by Underwriter for the purpose of complying with
the applicable provisions of federal or state securities laws and the
by-laws, rules or regulations of the NASD or any other securities regulatory
authority. Dealer shall immediately notify the Compliance Department of
Underwriter of any proceeding, suit or action, whether criminal, civil or
administrative, or the commencement by the NASD or any other securities
regulatory authority or any other state or federal authority of any
investigation, if such proceeding, suit, action or investigation arises out
of or in connection with Dealer's activities as broker or dealer with respect
to the Funds. Dealer shall also immediately notify the Compliance Department
of Underwriter of any complaint by a customer or prospective customer or
regulatory authority regarding the Funds or Dealer's activities as broker or
dealer with respect to the Funds.
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Except for those books and records required by law or regulation to be
maintained by Dealer, all books, documents, prospectuses, application forms
or other materials or supplies in the possession of Dealer which pertain to
the Funds or to the business of Underwriter shall be the property of
Underwriter, which at any and all times shall be open to inspection by any
duly authorized representative of Underwriter and at the termination of this
Agreement shall be returned to Underwriter.
6. REPRESENTATIONS AND AGREEMENTS OF THE DEALER. By accepting this
Agreement, the Dealer represents that it: (i) is registered as a
broker-dealer under the Securities Exchange Act of 1934 (the "1934 Act"), as
amended; (ii) is qualified to act as a dealer in each jurisdiction in which
it will offer shares of the Funds; (iii) is a member in good standing of the
NASD; and (iv) will maintain such registrations, qualifications and
memberships throughout the term of this Agreement.
7. DEALER'S EMPLOYEES. By accepting this Agreement, the Dealer
assumes full responsibility for the actions and course of conduct of its
registered representatives in the solicitation of purchases of shares of the
Funds. The Dealer shall provide thorough and prior training to its
registered representatives concerning the selling methods to be used in
connection with the offer and sale of shares of the Funds, giving special
emphasis to the principles of full and fair disclosure to prospective
investors. The Dealer may solicit sales of shares of the Funds only through
properly licensed registered representatives of the Dealer.
8. INDEMNIFICATION PROVISIONS.
A. INDEMNIFICATION BY UNDERWRITER. The Underwriter hereby agrees
to indemnify and to hold harmless the Dealer and each person, if any, who
controls the Dealer within the meaning of Section 15 of the Securities Act of
1933 (the "1933 Act") or Section 20(a) of the 1934 Act and their respective
successors and assigns (hereinafter in this paragraph separately and
collectively referred to as the "Defendants") from and against any and all
losses, claims, demands or liabilities (or actions in respect thereof), joint
or several, to which the Defendants may become subject under the 1933 Act, at
common law or otherwise (including any legal or other expense reasonably
incurred in connection therewith), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue or allegedly untrue statement of a material fact contained in
the then current Prospectus (and/or Statement of Additional Information, if
any) of the Funds or arise out of or are based upon the omission or alleged
omission to state therein a material fact that is required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or arise out of any
claim based upon any Approved Supplemental Sales Literature, or (ii) the
failure of Underwriter or its officers, directors, employees or agents to
comply with any applicable provisions of this Agreement; provided that this
indemnity agreement is subject to the condition that notice be given as
provided below.
B. FIDELITY BOND OF DEALER AND INDEMNIFICATION BY DEALER. Dealer
represents that all directors, officers, partners, employees or registered
representatives of Dealer who are
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authorized pursuant to this Agreement to sell shares of the Funds or who have
access to monies belonging to the Underwriter, including but not limited to
monies submitted with applications for purchase of shares of the Funds or
monies being returned to investors, are and shall be covered by a blanket
fidelity bond, including coverage for larceny and embezzlement, issued by a
reputable bonding company. This bond shall be maintained by Dealer at
Dealer's expense. Such bond shall be at least of the form, type and amount
required under the NASD Rules of Fair Practice. The Underwriter may require
evidence, satisfactory to it, that such coverage is in force. Dealer shall
give prompt written notice to the Underwriter of any notice of cancellation
or change of coverage with respect to such bond.
Dealer hereby assigns any proceeds received from the fidelity
bonding company to the Underwriter to the extent of the Underwriter's loss
due to activities covered by the bond. If there is any deficiency amount,
whether due to a deductible or otherwise, Dealer shall promptly pay to the
Underwriter such amount on demand, and Dealer hereby indemnifies and holds
harmless the Underwriter from any such deficiency and from the costs of
collection thereof, including reasonable attorneys fees.
Dealer also agrees to indemnify and hold harmless the Underwriter
and its officers, directors and employees and each person who controls them
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act and their respective successors and assigns (hereinafter in this
paragraph separately and collectively referred to as Defendants) against any
and all losses, claims, damages or liabilities, including reasonable
attorneys fees, to which they may become subject under the 1933 Act, the 1934
Act, or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon: (i) any oral or written
misrepresentation, any unauthorized action or statement, or any other
willful, reckless or negligent violation of any law, regulation, contract or
other arrangement by Dealer or its officers, directors, employees or agents,
or (ii) the failure of Dealer or its officers, directors, employees or agents
to comply with any applicable provisions of this Agreement; provided, that
this indemnity agreement is subject to the condition that notice be given as
provided below.
C. NOTICE AND DEFENSE. Upon the presentation in writing of any
claim or the commencement of any suit against any Defendant in respect of
which indemnification may be sought from the indemnifying party on account of
its agreement contained in the preceding paragraphs, such Defendant shall
with reasonable promptness give notice in writing of such suit to the
indemnifying party, but failure to so give such notice shall not relieve the
indemnifying party from any liability that it may have to the Defendants
otherwise than on account of this indemnity agreement. The indemnifying
party shall be entitled to participate at its own expense in the defense, or,
if it so elects, to assume the defense of any such claim or suit with counsel
chosen by it and satisfactory to the Defendants who are parties to such suit
or against whom such claim is presented. If the indemnifying party elects to
assume the defense and retain such counsel as herein provided, such Defendant
shall bear the fees and expenses subsequently incurred of any additional
counsel retained by them, except the reasonable costs of investigation and
such costs as are approved by the indemnifying party; provided, that if
counsel for an indemnified Defendant determines in good faith that there is a
conflict which requires separate representation for the indemnified
Defendant, the indemnified Defendant shall be entitled to indemnification for
the reasonable expenses of one additional counsel and local counsel to the
extent provided above. Such counsel shall, to the fullest extent consistent
with its professional
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responsibilities, cooperate with the indemnifying party and its counsel. The
indemnifying party's obligations under this Paragraph 8 shall survive the
termination of this Agreement.
D. SETTLEMENT; CONTRIBUTION. The indemnifying party shall not
be liable under this Agreement for any settlement made by an indemnified
party without the indemnifying party's prior written consent, and the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of the settlement of
any claim or action with the consent of the indemnifying party. The
indemnifying party shall not settle any such claim or action without prior
written consent of the indemnified party. If the foregoing indemnifications
should, for reasons of public policy, not be available to any indemnified
party, then the indemnifying party will contribute to the amount paid or
payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and such
indemnified party on the other arising out of the matters contemplated by
this Agreement.
9. ASSIGNMENT. This Agreement may not be assigned by the Dealer
without prior written consent of the Underwriter.
10. TERMINATION. Either party may terminate this Agreement at any
time upon giving written notice to the other party hereto. This Agreement
shall terminate automatically in the event of the suspension, revocation,
cancellation or other impairment of the Dealer's membership in the NASD or
the Dealer's registration, license or qualification to sell shares of the
Funds under any applicable state or federal law or regulation.
11. FIRST CLAIM ON EARNINGS. Underwriter shall have first claim on
all of Dealer's earnings under this Agreement. This means that Underwriter
as and when it elects may keep all or any part of such earnings to reduce any
debt Dealer owes Underwriter. While Underwriter may release Dealer's
earnings while Dealer owes a debt to Underwriter, this does not mean
Underwriter has waived this right of first claim to Dealer's earnings.
Underwriter's claim also takes precedence over claims of Dealer's creditors.
All Dealer's earnings kept by Underwriter will be used to reduce debt owed to
Underwriter.
12. CONFIDENTIALITY. During the term of this Agreement, a party may
acquire access to confidential or proprietary information of another,
including, but not limited to, the Underwriter's or the Dealer's business
affairs, customers, property, methods of operation, procedures, marketing
policies and practices, computer software and operational systems
(collectively, "Confidential Information"); provided, however, that the term
"Confidential Information" does not include information which: (a) becomes
generally available to the public other than as a result of a disclosure by a
party or its agents or employees; (b) was available to a party prior to its
disclosure to the other; (c) has become available to a party from a source
other than that of the parties to this Agreement; (d) is intended to be
transferred to another person or entity upon the termination of this
Agreement; (e) is required to be disclosed to any regulatory authority or
self-regulatory organization or pursuant to a court order or subpoena; or (f)
is
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derived from customers. Confidential Information designated as such by a
party shall constitute proprietary information and/or trade secrets of such
party and will be the sole property of such party. Each party agrees that:
(a) it shall use such Confidential Information only for
the purposes of carrying out its obligations under, and performing any
inspections or audits permitted by, this Agreement;
(b) all Confidential Information and any physical and
electronic embodiments thereof will be held by each party in strict
confidence;
(c) it shall take reasonable steps to ensure that its
employee, representatives and agents are informed of the contents of this
Paragraph 12 and that they shall comply with its terms;
(d) it will not reveal, disclose, publish, sell or
distribute such Confidential Information to other present or future agents or
broker-dealers, or to any other person or entity, without prior written
consent of the other parties;
(e) the parties shall immediately return any
Confidential Information in their possession to the other upon (i) such
party's request at any time or (ii) the termination of this Agreement.
The parties recognize that the disclosure of Confidential
Information by the other or its employees, representatives or agents may give
rise to irreparable injury, which may not be adequately compensated damages.
Accordingly, in the event of a breach or threatened breach by a party or its
employees, representatives or agents of the provisions of this Paragraph 12,
the non-breaching party shall be entitled to an injunction restraining the
other party and its employees from disclosing, in whole or in part, the
Confidential Information.
13. NATURE OF RELATIONSHIP; LIMITATIONS ON DEALER'S AUTHORITY. In
soliciting purchases of shares of the Funds, the Dealer shall act as an
independent contractor and not on behalf or subject to the control of the
Underwriter. Nothing herein shall constitute the Dealer as a partner of the
Underwriter, any other broker-dealer, any registered representative of the
Underwriter or the Funds, or render any such entity liable for obligations of
the Dealer. The Dealer's participation in the sale and distribution of shares
of the Funds as contemplated by this Agreement is not exclusive and the
Underwriter may engage other broker-dealers and/or its registered
representatives to participate in the sale and distribution of shares of the
Funds on terms and conditions which may differ from the terms and conditions
of this Agreement. The Dealer understands that Dealer has no authority to
start any legal proceedings on Underwriter's behalf or in its name or to
incur any expenses or obligations in the name of the Underwriter, and Dealer
agrees to indemnify and save the Underwriter harmless from any and all
expenses, or obligations incurred by Dealer in the name of the Underwriter
for which Dealer is responsible. Dealer agrees to pay all expenses incurred
by Dealer in connection with Dealer's work.
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14. SECTION HEADINGS. The titles of the sections and paragraphs of
this Agreement are for convenience only and shall not in any way affect the
interpretation of any provision or condition of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in counterparts
which, taken together, shall constitute the whole of the Agreement as between
the parties.
16. NOTICE. Any notice to be given to a party hereto pursuant to
this Agreement shall be in writing, addressed to such party at the address of
such party set forth in the preamble hereof, or such other address as such
other party may from time to time designate in writing to the party hereto
giving notice. Any notice delivered by the mails, postage fully prepaid,
shall be deemed to have been given five (5) days after mailing or, if
earlier, upon receipt.
17. WAIVER. No failure, neglect or forbearance on the part of the
Underwriter to require strict performance of this Agreement shall be
construed as a waiver of the rights or remedies of the Underwriter hereunder.
18. SUSPENDING SALES, AMENDING OR CANCELING THIS AGREEMENT. The
Underwriter may, at any time, without notice, suspend sales or withdraw any
offering of shares entirely. The Underwriter reserves the right to amend or
cancel this Agreement upon notice to Dealer. The Dealer agrees that any
order to purchase shares of Funds placed after notice of any amendment to
this Agreement has been sent to the Dealer shall constitute the Dealer's
agreement to any such amendment.
19. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Minnesota.
DEALER:
----------------------------------- -----------------------------------
(Name) (NSCC Clearing Number)
----------------------------------- -----------------------------------
(Tax Identification Number) (NSCC Executing Broker symbol)
----------------------------------- -----------------------------------
(Street Address) (Telephone Number)
-----------------------------------
(City) (State) (Zip)
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Date of offer:______________, 199___
By
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Please Print Name
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Its
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(Title)
Accepted by
ASCEND FINANCIAL SERVICES, INC.
Date of acceptance: , 19
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By
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(Signature)
Its
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(Title)
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SCHEDULE A (Standard)
Dealer Compensation Schedule
Effective
-------------
I. Advantus Horizon Fund, Inc.
Advantus Mortgage Securities Fund, Inc.
Advantus Spectrum Fund, Inc.
Advantus Bond Fund, Inc.
Advantus Cornerstone Fund, Inc.
Advantus Enterprise Fund, Inc.
Advantus International Balanced Fund, Inc.
Advantus Venture Fund, Inc.
Advantus Index 500 Fund, Inc.
Advantus Real Estate Securities Fund, Inc.
Advantus Money Market Fund, Inc.
A. DEALER COMMISSIONS
DEALER CONCESSION AS PERCENTAGE OF OFFERING PRICE
CLASS A SHARES CLASS B SHARES
MORTGAGE MORTGAGE
SECURITIES FUND CLASS A SHARES SECURITIES FUND CLASS B SHARES
AND BOND ALL OTHER AND BOND ALL OTHER CLASS C
AMOUNT OF SALE FUND ONLY FUNDS FUND ONLY FUNDS SHARES
-------------- --------- ----- --------- ----- ------
Less than $50,000 4.05% 4.95% 3.37% 4.12% -0-
$50,000 but less
than $100,000 4.05% 4.05% 3.37% 3.37% -0-
$100,000 but less
than $250,000 3.15% 3.15% 2.62% 2.62% -0-
$250,000 but less
than $500,000 2.25% 2.25% 1.87% 1.87% -0-
$500,000 but less
than $1,000,000 1.80% 1.80% 1.50% 1.50% -0-
$1,000,000 .9%* .9%* n/a* n/a* n/a*
* Orders of $1,000,000 or more will be accepted only for Class A Shares.
No initial sales charge will be assessed the customer for purchase of Class A
Shares of at least $1,000,000, but a
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contingent deferred sales charge of 1.00% will be imposed if the customer
redeems such shares within one year of the date of purchase.
B. Distribution and Service Fees
In addition to the Dealer Commissions, the Dealer shall
receive quarterly Distribution and/or Service Fees, equal
to a percentage of average daily net assets attributable to
Shares held in accounts by customers for whom the Dealer
is the holder or agent of record or with whom the Dealer
maintains a servicing relationship in accordance with the
following table:
QUARTERLY QUARTERLY
DISTRIBUTION FEE SERVICE FEE
CLASS C CLASS A CLASS B CLASS C
------- ------- ------- -------
1/4 of .75% 1/4 of .25% 1/4 of .25% 1/4 of .25%
No Service Fee will be paid on an account unless or until the
assets have been in the account for 15 months or longer.
Distribution Fees are not subject to the 15 month retention
requirement.
II. Advantus Money Market Fund, Inc.
No commissions are paid on sales of Advantus Money Market Fund.
Shares of Advantus Money Market Fund acquired in an exchange from
any of the other Advantus Funds may be exchanged at relative net
asset values for shares of any of the other Advantus Funds. Shares
of Advantus Money Market Fund not acquired in an exchange from any
of the other Advantus Funds may be exchanged at relative net asset
values plus applicable sales load for shares of any of the other
Advantus Funds. In the event Dealer's customer exchanges shares
of Advantus Money Market Fund for shares of another Advantus Fund
and pays a sales load in connection with such exchange, the Dealer
shall receive a Dealer Commission as described above.
III. Termination of Compensation
All compensation payable to Dealer hereunder, including Service
Fees or Distribution Fees, shall automatically cease upon the
termination of the Advantus Funds Dealer Sales Agreement, for
any reason.
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