DEALER SALES CONTRACT
Between: ▇▇▇▇▇▇ Retail Management, L.P. and
General Distributor of [Name of Dealer]
TH ▇▇▇, ▇▇▇▇▇▇ Investment Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
As general distributor of TH ▇▇▇, ▇▇▇▇▇▇ Investment Trust (the "Trust"), we
agree to sell you shares of beneficial interest (the "Shares") issued by any
series of the Trust (each, a "Fund"), subject to any limitations imposed by any
Fund and to confirmation by us in each instance of such sales. By your
acceptance hereof, you agree to all of the following terms and conditions:
1. OFFERING PRICE AND FEES
The public offering price at which you may offer the Shares is the net asset
value thereof, as computed from time to time, plus any applicable sales charge
described in the then-current Prospectus of the applicable Fund. As compensation
for each sale of Shares made by you, you will be allowed the dealer discount if
any, on such Shares described in the then-current Prospectus of the Fund whose
Shares are sold. We reserve the right to revise the dealer discount referred to
herein upon ten days' written notice to you. We will furnish you upon request
with the public offering prices for the Shares, and you agree to quote such
prices in connection with any Shares offered by you for sale. Your attention is
specifically called to the fact that each sale is always made subject to
confirmation by us at the public offering price next computed after receipt of
the order. There is no sales charge or dealer discount to dealers on the
reinvestment of dividends and distributions.
In addition to the dealer discount, if any, allowed pursuant to the foregoing
provisions of this Section 1, we may, at our expense, provide additional
promotional incentives or payments to dealers. If non-cash concessions are
provided, each dealer earning such a concession may elect to receive an amount
in cash equivalent to the cost of providing such concessions. Notice of the
availability of concessions will be given to you by us. All dealer discounts,
promotional incentives, payments and concessions will be made by us in
accordance with National Association of Securities Dealers, Inc. ("NASD")
guidelines and rules.
2. MANNER OF OFFERING,
SELLING AND PURCHASING SHARES
We have delivered to you a copy of the applicable Fund's current Prospectus and
will provide you with such number of copies of the Fund's Prospectus, Statement
of Additional Information and shareholder reports and of supplementary sales
materials prepared by us, as you may reasonably request. You will offer and sell
the Shares only in accordance with the terms and conditions of the current
Prospectus and Statement of Additional Information of the applicable
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Fund. Neither you nor any other person is authorized to give any information or
to make any representations other than those contained in such Prospectuses,
Statements of Additional Information and shareholder reports or in such
supplementary sales materials. You agree that you will not use any other
offering materials for the Fund without our written consent.
You hereby agree:
(i) to exercise your best efforts to find purchasers for the Shares of the
applicable Fund,
(ii) to furnish to each person to whom any sale is made a copy of the
then-current Prospectus of the applicable Fund,
(iii) to transmit to us promptly upon receipt any and all orders received
by you, and
(iv) to pay to us the offering price, less any dealer discount to which you
are entitled, within three (3) business days of our confirmation of your
order, or such shorter time as may be required by law. If such payment is
not received within said time period, we reserve the right, without prior
notice, to cancel the sale, or at our option to return the Shares to the
issuer for redemption or repurchase. In the latter case, we shall have the
right to hold you responsible for any loss resulting to us. Should payment
be made by check, liquidation of Shares may be delayed pending clearance of
the check. In the event your check is dishonored for any reason, you shall
remain liable for the purchase price and any loss incurred by us. In
addition, should payment be made by means of a second or third party check,
you shall be deemed to have made all presentment, transfer and other
applicable warranties set forth in the Uniform Commercial Code, and in the
event such check is either dishonored or subsequently determined to be
invalid for any reason (including without limitation as a result of such
check having been lost, stolen or unauthorized) you shall remain liable for
the purchase price and any loss incurred by us.
3. COMPLIANCE WITH LAW
You hereby represent that you are registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, and are licensed and qualified as a
broker-dealer or otherwise authorized to offer and sell the Shares under the
laws of each jurisdiction in which the Shares will be offered and sold by you.
You further confirm that you are a member in good standing of the NASD and agree
to maintain such membership in good standing or, in the alternative, you are a
foreign dealer not eligible for membership in the NASD.
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You agree that in selling Shares you will comply with all applicable laws, rules
and regulations, including the applicable provisions of the Securities Act of
1933, as amended, the applicable rules and regulations of the NASD, and the
applicable rules and regulations of any jurisdiction in which you sell, directly
or indirectly, any Shares. You agree not to offer for sale or sell the Shares in
any jurisdiction in which the Shares are not qualified for sale or in which you
are not qualified as a broker-dealer.
4. RELATIONSHIP WITH DEALERS
In offering and selling Shares under this Contract, you shall be acting as
principal and nothing herein shall be construed to constitute you or any of your
agents, employees or representatives as our agent or employee, or as an agent or
employee of any Fund. As general distributor of the Funds, we shall have full
authority to take such action as we may deem advisable in respect of all matters
pertaining to the distribution of the Shares. We shall not be under any
obligation to you, except for obligations expressly assumed by us in this
Contract.
5. TERMINATION
Either party hereto may terminate this Contract, without cause, upon ten days'
written notice to the other party. We may terminate this Contract for cause upon
the violation by you of any of the provisions hereof, such termination to become
effective on the date such notice of termination is mailed to you. This Contract
shall terminate automatically if either Party ceases to be a member of the NASD.
6. ASSIGNABILITY
This Contract is not assignable or transferable, except that we may assign or
transfer this Contract to any successor which becomes general distributor of the
Funds.
7. GOVERNING LAW
This Contract and the rights and obligations of the parties hereunder shall be
governed by and construed under the laws of The Commonwealth of Massachusetts.
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If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement between us.
Very truly yours,
▇▇▇▇▇▇ RETAIL MANAGEMENT. L.P.
By: _________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Managing Director and
Chief of Mutual Fund Business
We accept and agree to the foregoing Contract as of the date set forth below.
Please indicate which best Dealer: ______________________________
describes your firm's entity:
/ / Partnership By: _________________________________
/ / Corporation Authorized Signature, Title
/ / Other - please specify:
__________________ ______________________________________
______________________________________
______________________________________
Address
Please provide your organization's
Tax Identification Number on the
following line:
________________________ Dated: _______________________________
Please return the signed ▇▇▇▇▇▇ copy to ▇▇▇▇▇▇ Retail Management, L.P., ▇.▇. ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Approval: ____________________________
Date required: _______________________
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ADDENDUM
TO
DEALER SALES CONTRACT
THIS ADDENDUM (the "Addendum") to the Dealer Sales Contract (the "Contract")
between ▇▇▇▇▇▇ Retail Management, L.P. (the "Distributor") and the undersigned
broker-dealer (the "Dealer") is entered into as of the ______ day of June, 2001.
WHEREAS, the parties have previously entered into the Contract, which
establishes the terms and conditions upon which the Distributor will sell
to the Dealer shares of certain investment companies for which ▇▇▇▇▇▇
Investments L.L.C. and its affiliates act as investment manager; and
WHEREAS, the parties desire to amend the Contract to cause it to apply to
the TH ▇▇▇, ▇▇▇▇▇▇ Emerging Opportunities Portfolio (the "Portfolio") of
the TH ▇▇▇, ▇▇▇▇▇▇ Investment Trust (the "Fund") and to add certain
additional terms and conditions applicable to shares of the Portfolio (the
"Shares");
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
hereby agree as follows:
1. Subject to the terms and conditions set forth in this Addendum, the
Contract shall apply, from the date of this Addendum, to shares of
beneficial interest (the "Shares") of the TH ▇▇▇, ▇▇▇▇▇▇ Emerging
Opportunities Portfolio (the "Portfolio") of the TH ▇▇▇, ▇▇▇▇▇▇ Investment
Trust (the "Trust").
2. The following additional terms and conditions, which shall apply only with
respect to the Shares, are added to Section 2 (Manner of Offering, Selling
and Purchasing Shares) of the Contract:
a. You agree that you will offer and sell the Shares only to persons who
are "qualified clients," as such term is defined in Rule 205-3 under
the Investment Advisers Act of 1940. All orders for the Shares are
subject to acceptance or rejection by us in our sole discretion.
Without limitation to the foregoing, we reserve the right to reject
any order or portion thereof as to which you are unable to deliver a
certificate in the form attached hereto as Exhibit A.
b. Shares may be offered to the public during an initial offering period
(the "Offering Period") that commences, with respect to you, on the
date of this Addendum and will terminate on a date to be notified to
you by us. We may extend the Offering Period in our sole discretion
and will notify you of any such extension.
c. An order for Shares will be confirmed at the public offering price as
disclosed in the Portfolio's prospectus (expected to be $23.88 per
Share plus a sales charge of up to $1.13 per Share determined as set
forth in the prospectus of the Portfolio) at the close of the Offering
Period as determined by us. No orders will be accepted until the
Trust's registration statement filed with the Securities and Exchange
Commission (the "SEC") has been declared effective by the SEC. You
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understand that the registration statement is not currently effective
and is not expected to be declared effective until shortly prior to
the close of the Offering Period, including any extensions thereof,
and that due to extensions of the Offering Period such effectiveness
may occur in a later calendar month than contemplated on the date of
this Agreement. We may terminate the Offering Period at any time.
d. The minimum size for orders at the close of the Offering Period is
$25,000. Orders will be accepted in increments of $1,000 above the
minimum.
e. You understand that the Shares are not redeemable and that neither the
Portfolio nor we have any obligation or intention to purchase any
Shares from you at any price, except that the Portfolio intends to
make quarterly repurchase offers as described in the prospectus. Any
representation as to a repurchase offer by the Portfolio, other than
that which is set forth in its then current prospectus, is expressly
prohibited.
f. The Portfolio may from time to time in the future make additional
Shares available for offer and sale. So long as this Addendum remains
in effect, we will invite you to participate in any such future
offerings in accordance with the terms of the Contract, including
paragraphs (a) and (e) of this Addendum.
3. The Contract is in all other respects ratified and confirmed.
4. This Addendum shall terminate automatically upon any termination of the
Contract. In addition, either party hereto may terminate this Addendum
(without thereby also terminating the Contract) without cause, upon ten
days' written notice to the other party. The Distributor may terminate this
Addendum (without thereby also terminating the Contract) for cause upon the
violation by the Dealer of any of the provisions hereof, such termination
to become effective on the date such notice of termination is mailed to the
Dealer.
5. This Addendum and the rights and obligations of the parties hereunder shall
be governed by and construed under the laws of The Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the parties have caused this Addendum to be signed by their
duly authorized officers as of the date first above written.
▇▇▇▇▇▇ RETAIL MANAGEMENT, L.P.
By: _________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director and
Chief of Mutual Fund Business
DEALER: _______________________________
By: _____________________________
Name:
Title:
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EXHIBIT A
OFFICER'S CERTIFICATE
To: ▇▇▇▇▇▇ Retail Management, L.P.
I am a duly elected ____________ of the broker-dealer identified below (the
"Dealer"), and I do hereby certify as follows with respect to the Dealer's order
for __________ shares of beneficial interest (the "Shares") in the TH ▇▇▇,
▇▇▇▇▇▇ Emerging Opportunities Portfolio (the "Portfolio") of the TH ▇▇▇, ▇▇▇▇▇▇
Investment Trust:
1. The Dealer has implemented procedures designed to ensure that its sales
force has accepted orders to purchase Shares only from persons that members
of such sales force reasonably believe to be "qualified clients" (as such
term is defined in Rule 205-3 under the Investment Advisers Act of 1940.
Such procedures include a prominent statement in the broker sales material
to the effect that the Shares may be sold only to qualified clients and
that the Shares are subject to restrictions limiting transfers to qualified
clients that will hold such Shares through a broker or dealer that has
entered into a Shareholder Servicing Agreement with the Portfolio, and the
receipt of the certifications referred to below.
2. The Dealer has received from each prospective purchaser of the Shares a
certification in substantially the form attached to the Portfolio's
Prospectus as Appendix A, with such exceptions as are noted below:
|_| No exceptions
|_| Exceptions: _____________ Shares.
3. The Dealer has informed each purchaser of any of the Shares who is its
client, at or prior to the confirmation of sale, of the existence of
transfer restrictions on the Shares, as described in the Prospectus for the
Shares under the caption "Investor Qualifications and Transfer
Restrictions."
IN WITNESS WHEREOF, I have executed this certificate as of the ________ day of
July, 2001.
Dealer: _______________________ ________________________________
Name:
Title:
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