SELLING AGREEMENT
ALPS Distributors, Inc.
Xxxxx 0000
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Gentlemen:
We desire to enter into an Agreement with you for the sale of shares of
beneficial interest in investment portfolios (each, a "Fund" and collectively,
"Funds") of Financial Investors Trust (the "Trust") that are now or hereafter
available for sale to our customers. You are the principal underwriter (as such
term is defined in the Investment Company Act of 1940, as amended) of the
offering of shares of the Funds and the exclusive agent for the continuous
distribution of such shares pursuant to the terms of a Distribution Agreement
between you and the Trust. As used herein the term "Prospectus" means the
prospectus and, unless the context otherwise requires, related statement of
additional information (the "Statement of Additional Information") incorporated
therein by reference, as the same are amended and supplemented from time to
time, of each of the respective Funds.
In consideration for the mutual covenants contained herein, it is hereby agreed
that our respective rights and obligations shall be as follows:
1. You acknowledge that customers of ours who purchase Fund shares are our
customers. We shall be responsible for opening, approving and monitoring
customer accounts and for the review and supervision of these accounts,
all in accordance with the rules of the Securities and Exchange Commission
("SEC") and National Association of Securities Dealers, Inc. (the "NASD").
In no transaction involving Fund shares shall we have any authority to act
as agent for the Trust or for you.
2. (a) All orders for the purchase of any Fund shares shall be executed at
the then current net asset value per share and all orders for the
redemption of any Fund shares shall be executed at the then current net
asset value per share, in each case as described in the Prospectus of such
Fund. The minimum initial purchase order and minimum subsequent purchase
order by any person shall be as set forth in the Prospectus of such Fund.
All orders are subject to acceptance or rejection by the Trust at its sole
discretion. Unless otherwise mutually agreed in writing, each transaction
shall be promptly confirmed in writing to the customer on a fully
disclosed basis and a copy of each confirmation shall be sent
simultaneously to us. We agree that upon receipt of duplicate
confirmations we will examine the same and promptly notify the Trust of
any errors or discrepancies which we discover. We shall promptly bring to
the attention of the Trust any errors in such
confirmations claimed by our customers. The Trust reserves the right, at
its discretion and without notice, to suspend the sale of shares or
withdraw entirely the sale of shares of any or all of the Funds.
(b) In the case of a Fund or class thereof which has adopted a
Distribution and Service Plan pursuant to Rule 12b-1 under the Investment
Company Act of 1940 (a "Plan"), we may elect from time to time to make
payments to you as provided under such Plan. In the case of a Fund or
class thereof that has no currently effective Plan, we may, to the extent
permitted by applicable law, elect to make payments to you from our own
funds. Any such payments shall be made in the amount and manner set forth
in the applicable schedule of distribution and service payments issued by
us and then in effect or as set forth in the Prospectus. Such schedule of
distribution and service payments may be discontinued or changed by us
from time to time and shall be in effect with respect to a Fund which has
a Plan only so long as such Fund's Plan remains in effect.
(c) In the event that Rule 2830 of the NASD Conduct Rules preclude any
Fund or class thereof from imposing, or us from receiving, a sales charge
(as defined in that Rule) or any portion thereof, then you shall not be
entitled to any payments from us hereunder from the date that the Fund or
class thereof discontinues or is required to discontinue imposition of
some or all of its sales charges. If the Fund or class thereof resumes
imposition of some or all of its sales charge, you will be entitled to
payments hereunder on the same terms as the Fund extends to us.
3. In ordering shares of any Fund, we shall rely solely and conclusively on
the representations contained in the Prospectus of such Fund. We agree
that we shall not offer or sell shares of any Fund except in compliance
with all applicable federal and state securities laws and the rules and
regulations of applicable regulatory agencies or authorities. In
connection with offers to sell and sales of shares of each Fund, we agree
to deliver or cause to be delivered to each person to whom any such offer
or sale is made, at or prior to the time of such offer or sale, a copy of
the Prospectus and, upon request, the Statement of Additional Information
of the Fund involved. We further agree to explain the procedures regarding
purchase, redemption and exchange privileges as outlined in the Prospectus
to each person to whom any such offer or sale is made. We further agree to
obtain from each customer to whom we sell Fund shares any taxpayer
identification number certification required under Section 3406 of the
Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations promulgated thereunder, and to provide you or your designee
with timely written notice of any failure to obtain such taxpayer
identification number certification in order to enable the implementation
of any required back-up withholding in accordance with Section 3406 of the
Code and the regulations thereunder. Unless otherwise mutually agreed in
writing, you shall deliver or cause to be delivered to each of the
customers who purchase shares of any Fund through us copies of all annual
and interim reports, proxy solicitation materials and any other
information and materials relating to such Fund and prepared by or on
behalf of you, the Trust or its investment adviser, custodian, transfer
agent or dividend disbursing agent for distribution to such customer. You
agree to supply us with copies of the Prospectus, Statement of Additional
Information, annual reports,
interim reports, proxy solicitation materials and any such other
information and materials relating to each Fund in reasonable quantities
upon request. We acknowledge that any material or information that you
furnish to us, other than Prospectuses, annual and interim reports to
shareholders and proxy solicitation materials prepared by the Trust, are
your sole responsibility and not the responsibility of the Trust.
4. We shall not make any representations concerning any Fund shares other
than those contained in the Prospectus of the Fund involved or in any
promotional materials or sales literature furnished to us by you or the
Trust. We shall not furnish or cause to be furnished to any person or
display or publish any information or materials relating to any Fund
(including, without limitation, promotional materials and sales
literature, advertisements, press releases, announcements, statements,
posters, signs or other similar material), except such information and
materials as may be furnished to us by you or the Trust, and such other
information and materials as may be approved in writing by you.
5. Exchanges (i.e., the investment of the proceeds from the liquidation of
shares of one Fund in the shares of another Fund) shall, where available,
be made in accordance with the terms of each Fund Prospectus.
6. The procedures relating to orders and the handling thereof will be subject
to the terms of the Prospectus of the Fund involved and instructions
received by us from you or the transfer agent (the "Transfer Agent") from
time to time. No conditional orders will be accepted. We agree that
purchase orders placed by us or our customers will be made only for the
purpose of covering purchase orders already received from our customers
and that we will not make purchases for any other securities dealer or
broker. Further, we shall place purchase orders from customers with the
Trust immediately and shall not withhold the placement of such orders so
as to profit ourselves; provided, however, that the foregoing shall not
prevent the purchase of shares of any Fund by us for our own bona fide
investment. We agree that: (a) we shall not effect any transactions
(including, without limitation, any purchases and redemptions) in any Fund
shares registered in the name of, or beneficially owned by, any customer
unless such customer has granted us full right, power and authority to
effect such transactions on his behalf, and (b) you, the Trust, each
Transfer Agent and your and their respective officers, directors, or
trustees, agents, employees and affiliates shall not be liable for, and
shall be fully indemnified and held harmless by us and our customers from
and against, any and all claims, demands, liabilities and expenses
(including, without limitation, reasonable attorney's fees) which may be
incurred by you or any of the foregoing persons entitled to
indemnification from us hereunder arising out of or in connection with the
execution of any transactions in Fund shares registered in the name of, or
beneficially owned by, any customer in reliance upon any oral or written
instructions believed to be genuine and to have been given by or on behalf
of us or directly by our customers. The indemnification agreement
contained in this Paragraph 6 shall survive the termination of this
Agreement.
7. We agree that payment for orders from us or our customers for the purchase
of Fund shares will be made in accordance with the terms of the Prospectus
of the applicable Fund. On or
before the settlement date of each purchase order for shares of any Fund,
we shall remit to an account designated by you with the Transfer Agent an
amount equal to the then current net asset value of the shares of such
Fund being purchased with respect to such purchase order as determined by
you in accordance with the terms of the applicable Fund Prospectus. If
payment for any purchase order (either from us or directly from our
customers) is not received in accordance with the terms of the applicable
Fund Prospectus, you reserve the right, without notice, to cancel the sale
and to hold us or our customers responsible for any loss sustained as a
result thereof.
8. We hereby represent and warrant that: (a) we are a corporation,
partnership or other entity duly organized and validly existing in good
standing under the laws of the jurisdiction in which we were organized;
(b) the execution and delivery of this Agreement and the performance of
the transactions contemplated hereby have been duly authorized by all
necessary action and all other authorizations and approvals (if any)
required for our lawful execution and delivery of this Agreement and our
performance hereunder have been obtained; and (c) upon execution and
delivery by us, and assuming due and valid execution and delivery by you,
this Agreement will constitute a valid and binding agreement, enforceable
against us in accordance with its terms.
9. We further represent and warrant that we are a member, in good standing,
of the NASD and, with respect to any sales in the United States, we agree
to abide by all of the rules and regulations of the NASD, including,
without limitation, its Rules of Fair Practice. We agree to comply with
all applicable federal and state laws, rules and regulations. You agree to
inform us, upon our request, as to the states in which you believe the
shares of each Fund have been qualified for sale under, or are exempt from
the requirements of, the respective securities laws of such states, but
you shall have no obligation or responsibility to make shares of any Fund
available for sale to our customers in any jurisdiction. We agree to
notify you immediately in the event of our expulsion or suspension from
the NASD. Our expulsion from the NASD will automatically terminate this
Agreement immediately without notice. Our suspension from the NASD will
terminate this Agreement effective immediately upon your written notice of
termination to us.
10. We hereby certify that: (i) we understand that pursuant to various U.S.
regulations, we are required to establish an anti-money laundering
program, which satisfies the requirements of Title III of the USA Patriot
Act (the "Act"); (ii) we have developed, implemented, and will maintain an
anti-money laundering program and will comply with all applicable laws and
regulations designed to guard against money laundering activities set out
in such program; and (iii) we will notify you, in writing, if we are
found, by our anti-money laundering compliance officer, independent
anti-money laundering auditor, or any state, federal, or self-regulatory
agency, to be in violation of the Act, any regulation implementing the
Act, or our anti-money laundering program.
11. The names and addresses and other information concerning our customers are
and shall remain our sole property, and neither you nor your affiliates
shall use such names, addresses or other information for any purpose
except in connection with the performance
of your duties and responsibilities hereunder and except for servicing
and informational mailings relating to the Funds. Notwithstanding the
foregoing, this Paragraph shall not prohibit you or any of your affiliates
from utilizing for any purpose the names, addresses or other information
concerning any of our customers if such names, addresses or other
information are obtained in any manner other than from us pursuant to this
Agreement. The provisions of this Paragraph shall survive the termination
of this Agreement.
12. Neither this Agreement nor the performance of the services of the
respective parties hereunder shall be considered to constitute an
exclusive arrangement, or to create a partnership, association or joint
venture between you and us. Neither party hereto shall be, act as, or
represent itself as, the agent or representative of the other, nor shall
either party have the right or authority to assume, create or incur any
liability or any obligation of any kind, express or implied, against or in
the name of, or on behalf of, the other party. This Agreement is not
intended to, and shall not, create any rights against either party hereto
by any third party solely on account of this Agreement. Neither party
hereto shall use the name of the other party in any manner without the
other party's prior written consent, except as required by any applicable
federal or state law, rule or regulation, and except pursuant to any
promotional programs mutually agreed upon in writing by the parties
hereto.
13. Except as otherwise specifically provided herein, all notices required or
permitted to be given pursuant to this Agreement shall be given in writing
and delivered by personal delivery or by postage prepaid, registered or
certified United States first class mail, return receipt requested, or by
telex, telegram or similar means of same day delivery (with confirming
copy by mail as provided herein). Unless otherwise notified in writing,
all notices to you shall be given or sent to you at your offices, located
at Suite 3100, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and all
notices to us shall be given or sent to us at our address shown below.
14. This Agreement shall become effective only when accepted and signed by
you, and may be terminated at any time by either party hereto upon fifteen
(15) days' prior written notice to the other party. This Agreement may be
amended only by a written instrument signed by both of the parties hereto
and may not be assigned by either party without the prior written consent
of the other party. This Agreement constitutes the entire agreement and
understanding between the parties hereto relating to the subject matter
hereof and supersedes any and all prior agreements between the parties
relating to said subject matter.
15. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Colorado, without giving effect to
principles of conflicts of law.
Very truly yours, Date: _____________________
______________________________________________
Name of Broker-Dealer (Please print or type)
_____________________________________________ Accepted:
ALPS DISTRIBUTORS, INC.
By: _______________________
_____________________________________________
Title:
Address
Date: _____________________
_____________________________________________
Name of Authorized Officer (Please print or type)
By: ________________________________________
Title:
NSCC Dealer # ______________________________ Fax Number: ___________________
NSCC Dealer Alpha Code _____________________ Date: _________________________
NSCC Clearing # ____________________________ Mutual Fund Coordinator/Primary
Contact:
Phone Number: ______________________________ _______________________________
Note: Please sign and return both copies of this Agreement to ALPS Distributors,
Inc., Inc. Upon acceptance one countersigned copy will be returned to you for
your files.
SCHEDULE OF DISTRIBUTION AND SERVICE PAYMENTS
FOR SALES OF CLASS II SHARES
PURSUANT TO PARAGRAPH 2(b) OF THE SELLING AGREEMENT
In consideration of sales of Class II shares of the Prime Money Market Fund (the
"Fund"), under the terms and conditions of Paragraph 2(b) of the Selling
Agreement, the following schedule for the payment of fees shall apply:
DEALER COMPENSATION
NAME OF FUND ANNUAL CONTRACTUAL RATE
--------------------------------------------------------------------------------
PRIME MONEY MARKET FUND .40%
ALPS Distributors, Inc. shall pay you a fee based on the average daily net
assets throughout the quarter of Class II shares of the Fund. Such fee shall be
computed daily and paid quarterly. The determination of daily net assets shall
be made at the close of each business day throughout the quarter and computed in
the manner specified in the Fund's then-current Prospectus for the determination
of the net asset value of shares of Class II, but shall exclude assets
attributable to any other Class of the Fund.
