MUTUAL FUND DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Strong Investments, Inc. ("Distributor") and ("Servicer") have agreed
that Servicer will perform administrative functions and support services
("Services") for clients of Servicer who purchase shares ("Shares") of any of
the Strong family of funds (each a "Fund" and collectively the "Funds"), or
series thereof (as they may exist from time to time), including any classes
thereof, as identified on Schedule A to this Agreement, for which Distributor
now or in the future serves as distributor, subject to the terms of this Mutual
Fund Distribution and Shareholder Services Agreement (the "Agreement"). Any such
additional Funds will be included in this Agreement upon written notification to
Servicer. Nothing in this Agreement shall limit Servicer's right to engage one
or more subcontractors or agents, but no such engagement shall relieve Servicer
of its duties, responsibilities, obligations, agreements or liabilities under
this Agreement.
1. LICENSING
a. Servicer represents and warrants that it and all of its
partners, directors, officers, employees and agents ("Servicer's Personnel") are
licensed by the appropriate regulatory agency of each state or other
jurisdiction in which Servicer or Servicer's Personnel provides the Services
contemplated by this Agreement, to the extent necessary to perform the Services
and assume the duties and responsibilities contemplated by this Agreement.
b. Servicer agrees that termination or suspension of its
license to do business by any state or other jurisdiction or federal regulatory
agency, shall immediately cause the automatic termination of this Agreement.
Servicer further agrees to immediately notify Distributor in writing of any such
action or event.
2. DUTIES OF SERVICER
a. Servicer is hereby authorized and may from time to time
undertake to provide Services to clients in connection with clients' investment
in the Shares of a Fund, which Services may include, but are not limited to: the
provision of personal, continuing services to shareholders in each Fund
including advisory and educational services; communicating as needed with
shareholders and answering questions from shareholders; and providing such other
similar services as the Distributor may reasonably request, from time to time,
to the extent the Servicer is permitted to do so under applicable statues,
rules, or regulations.
b. Servicer acknowledges that it has agreed to provide
additional services and to assume other duties and responsibilities not
contemplated by this Agreement in accordance with the terms and conditions set
forth in another Services Agreement, dated as of ____________, between Servicer
and Distributor ("Other Agreement") as may be amended from time to time, the
terms and conditions of which may set forth procedures governing, among other
things, the establishment of Servicer's accounts, pricing of Shares and the
placement and settlement of orders. To the extent that the current prospectus
and statement of additional information (including any supplements, stickers or
amendments thereto) relating to each Fund, as filed with the Securities and
Exchange Commission ("SEC") for a Fund ("Prospectus") contains provisions that
are inconsistent with this Agreement or any Other Agreement, the terms of the
Prospectus shall be controlling.
c. Servicer agrees to maintain all records as required by law
to be maintained in connection with providing the Services under this Agreement
and to furnish Distributor or regulatory authorities with copies of such records
upon request. Servicer represents and agrees that all Taxpayer Identification
Numbers ("TINs") provided are certified, and that no account that requires a
certified TIN will be established without such certified TIN.
d. Servicer agrees that all out-of-pocket expenses incurred by
it in connection with its activities under this Agreement will be borne by
Servicer.
3. SERVICER COMPENSATION
a. With respect to the Services provided by Servicer with
respect to any Fund or class thereof that is authorized to make payments of
service fees (I.E., payments of fees and expenses made in accordance with a
service plan adopted by certain Funds or classes thereof pursuant to Rule 12b-1
("Rule 12b-1 Plan") under the Investment Company Act of 1940, as amended ("1940
Act")), all payments to Servicer shall be in accordance with the Rule 12b-1 Plan
adopted by that Fund or classes thereof as specified in each applicable
Prospectus for each Fund or class thereof. With respect to any Fund or class
thereof that offers Shares for which a Rule 12b-1 Plan has been adopted,
Distributor is authorized to pay Servicer continuing service fees, as specified
in the relevant Prospectus to the extent that Servicer provides the Services
specified in Section 2.a. above regarding the servicing of shareholder accounts
for its clients. Distributor reserves the right, without prior notice, to
suspend or eliminate the payment of such Rule 12b-1 Plan payments or other
compensation to Servicer by amendment, sticker or supplement to the Prospectus
for each Fund.
b. In connection with the receipt of service fees under Rule
12b-1 Plans applicable to the Services provided for Servicer's clients,
Distributor directs Servicer to provide the Services specified in Section 2.a.
above. (Redemption levels of shareholder accounts assigned to Servicer will be
considered in evaluating Servicer's continued ability to receive payments of
service fees.) Further, Servicer agrees to provide Distributor with supporting
documentation concerning the shareholder services provided, as Distributor may
reasonably request from time to time.
c. All Rule 12b-1 Plan servicing fees shall be based on the
value of Shares attributable to Servicer's clients and eligible for such payment
under a Rule 12b-1 Plan, and shall be calculated on the basis of and at the
rates set forth in the Prospectus for each Fund or class thereof. Servicer
represents and warrants that Distributor has made no representations with
respect to the Rule 12b-1 Plans of such Funds in addition to, or conflicting
with, the description set forth in their respective Prospectuses. Without prior
approval by a majority of the outstanding shares of a Fund, the aggregate annual
fees paid to Servicer pursuant to any Rule 12b-1 Plan shall not exceed the
amounts stated as the "annual maximums" in each Fund's Prospectus, which amount
shall be a specified percent of the value of the Fund's net assets held in
Servicer's clients' accounts that are eligible for payment pursuant to the Rule
12b-1 Plans (determined in the same manner as each Fund uses to compute its net
assets as set forth in its Prospectus).
d. The provisions of any Rule 12b-1 Plan and distribution
agreement between the Funds and the Distributor shall control over this
Agreement in the event of any inconsistency. Each Rule 12b-1 Plan in effect on
the date of this Agreement is described in the relevant Fund's Prospectus.
Servicer hereby acknowledges that all payments under Rule 12b-1 Plans are
subject to limitations contained in such Rule 12b-1 Plans and distribution
agreements and may be varied or discontinued at any time; in particular,
Servicer acknowledges that the Rule 12b-1 Plan may be terminated at any time by
a vote of a majority of the independent directors of the Fund, or by a vote of a
majority of the outstanding voting securities of a Fund.
4. MULTIPLE CLASSES OF SHARES
Distributor may, from time to time, provide Servicer with
written guidelines or standards relating to the servicing of Funds offering
multiple classes of Shares having different sales loads, Rule 12b-1 Plan fees,
and expenses and other operating expenses.
5. FUND INFORMATION
Servicer agrees that neither it nor any of its partners,
directors, officers, employees, and agents is authorized to give any information
or make any representations concerning Shares of any Fund except those contained
in the Fund's Prospectus or in materials provided by Distributor.
6. INDEMNIFICATION
a. Servicer agrees to indemnify, defend and hold harmless
Distributor and the Funds and their predecessors, successors, and affiliates,
each current or former director, officer, employee, shareholder or agent and
each person who controls or is controlled by Distributor from any and all
losses, claims, liabilities, costs, and expenses, including reasonable attorney
fees, that may be assessed against or suffered or incurred by any of them
howsoever they arise, and as they are incurred, which relate in any way to: (i)
any alleged violation of any statute or regulation (including without limitation
the securities laws and regulations of the United States or any state or foreign
country) or any alleged tort or breach of contract, related to the provision of
Services by Servicer pursuant to this Agreement (except to the extent that
Distributor's gross negligence or failure to follow correct instructions
received from Servicer is the cause of such loss, claim, liability, cost or
expense); (ii) any redemption or exchange pursuant to instructions received from
Servicer or Servicer's Personnel; or (iii) the breach by Servicer of any of its
representations and warranties specified herein or Servicer's failure to comply
with the terms and conditions of this Agreement, whether or not such action,
failure, error, omission, misconduct or breach is committed by Servicer or its
predecessor, successor, or affiliate, each current or former partner, officer,
director, employee or agent and each person who controls or is controlled by
Servicer. This indemnity agreement is in addition to any other liability which
Servicer may otherwise have.
b. Distributor agrees to indemnify, defend and hold harmless
Servicer and its predecessors, successors and affiliates, each current or former
partner, officer, director, employee or agent, and each person who controls or
is controlled by Servicer from any and all losses, claims, liabilities, costs
and expenses, including reasonable attorney fees, that may be assessed against
or suffered or incurred by any of them which arise, and which relate to any
untrue statement of or omission to state a material fact contained in the
Prospectus or any written sales literature or other marketing materials provided
by the Distributor to the Servicer, required to be stated therein or necessary
to make the statements therein not misleading. This indemnity agreement is in
addition to any other liability which Distributor may otherwise have.
c. Promptly after receipt by a party entitled to
indemnification under this Section 6 (an "Indemnified Party") of notice of the
commencement of an investigation, action, claim or proceeding, such Indemnified
Party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6 (the "Indemnifying Party"), notify the
Indemnifying Party of the commencement thereof; but the omission so to notify
the Indemnifying Party shall not relieve it from any liability which it may have
to any Indemnified Party otherwise than under this Section 6. In case any such
action is brought against any Indemnified Party, and it notified the
Indemnifying Party of the commencement thereof, the Indemnifying Party shall be
entitled to participate therein and, to the extent that it may wish, assume the
defense thereof, with counsel satisfactory to such Indemnified Party. After
notice from the Indemnifying Party of its intention to assume the defense of an
action, the Indemnified Party shall bear the expenses of any additional counsel
obtained by it, and the Indemnifying Party shall not be liable to such
Indemnified Party under this Section 6 for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation. The Indemnified Party may
not settle any action without the written consent of the Indemnifying Party. The
Indemnifying Party may not settle any action without the written consent of the
Indemnified Party unless such settlement completely and finally releases the
Indemnified Party from any and all liability. In either event, consent shall not
be unreasonably withheld.
d. Each party's obligations under these indemnification
provisions shall survive any termination of this Agreement.
7. TERMINATION; AMENDMENT
a. In addition to the automatic termination of this Agreement
specified in Section 1.b. of this Agreement, each party to this Agreement may
unilaterally cancel its participation in this Agreement by giving sixty (60)
days prior written notice to the other party. In addition, each party to this
Agreement may terminate this Agreement immediately by giving written notice to
the other party of that other party's material breach of this Agreement.
b. The termination of this Agreement by any of the foregoing
means shall not relieve Servicer of its obligations, duties and indemnities
specified in this Agreement; provided, however, that Distributor's obligation to
pay fees to Servicer shall survive for a period no longer than one year from the
date of termination (unless termination is the result of an event described in
Section 1.b., in which case Distributor's obligation to pay such fees shall end
as of the date of such termination).
c. This Agreement is not assignable or transferable and will
terminate automatically in the event of its "assignment," as defined in the
Investment Company Act of 1940, as amended and the rules, regulations and
interpretations thereunder. The Distributor may, however, transfer any of its
rights or duties under this Agreement to any entity that controls or is under
common control with Distributor.
d. This Agreement may be amended by Distributor at any time by
written notice to Servicer.
8. DISTRIBUTOR'S REPRESENTATIONS AND WARRANTIES
Distributor represents and warrants that:
a. It is a corporation duly organized and existing and in good
standing under the laws of the state of Wisconsin and is duly registered or
exempt from registration as a broker-dealer in all states and jurisdictions in
which it provides services as a non-exclusive distributor for the Funds.
b. It is a member in good standing of the NASD.
c. It is empowered under applicable laws and by Distributor's
organizational documents to enter into this Agreement and perform all activities
and services of the Distributor provided for herein and that there are no
impediments, prior or existing, regulatory, self-regulatory, administrative,
civil or criminal matters affecting Distributor's ability to perform under this
Agreement.
d. All requisite actions have been taken to authorize
Distributor to enter into and perform this Agreement.
9. ADDITIONAL SERVICER REPRESENTATIONS AND WARRANTIES
In addition to the representations and warranties found
elsewhere in this Agreement, Servicer represents and warrants that:
a. It is duly organized and existing and in good standing
under the laws of the state, commonwealth or other jurisdiction in which
Servicer is organized.
b. It is empowered under applicable laws and by Servicer's
organizational documents to enter into this Agreement and perform all activities
and services of the Servicer provided for herein and that there are no
impediments (prior, existing or threatened) regulatory, self-regulatory,
administrative, civil or criminal matters affecting or reasonably likely to
affect Servicer's ability to perform under this Agreement.
c. All requisite actions have been taken to authorize Servicer
to enter into and perform this Agreement.
d. It is not, at the time of the execution of this Agreement,
subject to any enforcement or other proceeding with respect to its activities
under state or federal securities, banking or commodities laws, rules or
regulations.
e. This Agreement constitutes the legal, valid and binding
obligation of Servicer and is enforceable against Servicer in accordance with
its terms.
10. GOVERNING LAW
This Agreement shall be governed and construed in accordance
with the laws of the state of Wisconsin, not including any provision or judicial
interpretation that would require the general application of the law of another
jurisdiction.
11. INVESTIGATIONS AND PROCEEDINGS
The parties to this Agreement agree to cooperate fully in any
securities regulatory investigation or proceeding or judicial proceeding with
respect to each party's activities under this Agreement and promptly to notify
the other party of any such investigation or proceeding.
12. CAPTIONS
All captions used in this Agreement are for convenience only,
are not a part hereof, and are not to be used in construing or interpreting any
aspect hereof.
13. SEVERABILITY
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law.
If, however, any provision of this Agreement is held under applicable law to be
invalid, illegal, or unenforceable in any respect, such provision shall be
ineffective only to the extent of such invalidity, and the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected or impaired in any way.
14. RELATIONSHIP OF PARTIES
Unless expressly provided for elsewhere in this Agreement, all
services performed under this Agreement by Servicer shall be as an independent
contractor and not as an employee or agent of Distributor or the Funds, and none
of the parties shall hold itself out as an agent of any other party with the
authority to bind such party. Neither the execution nor performance of this
Agreement shall be deemed to create a partnership or joint venture by and among
any of the parties.
15. CONFIDENTIALITY
Each party agrees to take all steps necessary to comply with
all applicable laws, rules and regulations (including, without limitation, the
Securities and Exchange Commission Regulation S-P) protecting the privacy of
consumer nonpublic personal financial information ("Consumer Information")
disclosed to each party under this Agreement. Each party agrees not to disclose
or use Consumer Information other than to carry out the purposes for which such
Consumer Information is disclosed or as otherwise permitted by law.
16. NOTICES
All notices under this Agreement shall be given in writing
(and shall be deemed to have been duly given upon receipt) by delivery in
person, by facsimile, by registered or certified mail or by overnight delivery
(postage prepaid, return receipt requested) to the respective parties as
follows:
if to Servicer:
National City Bank
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Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to Distributor:
Strong Investments, Inc.
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Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
17. ENTIRE AGREEMENT
This Agreement, along with any attached schedules if approved,
contains the entire understanding of the parties hereto with respect to the
subject matter contained herein and supersedes all previous agreements and/or
understandings of the parties. This Agreement shall be binding upon the parties
hereto when signed by Servicer and accepted by Distributor.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date set forth below.
STRONG INVESTMENTS, INC.
By: _________________________________
(Signature)
Name: _________________________________
Title: _________________________________
[SERVICER NAME HERE]
By: _________________________________
(Signature)
Name: _________________________________
Title: _________________________________
Address:________________________________
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Telephone: _____________________________
Date: _________________________________________
Strong Servicer #___________ (Internal Use Only)
SCHEDULE A
