Exhibit 99.e(2)
FORESIDE FUND SERVICES, LLC
FORM OF DEALER AGREEMENT
Re: [Funds] Date: ____________________
Ladies and Gentlemen:
As the distributor of the shares ("Shares") of each investment company portfolio
("Fund"), of the investment company or companies referenced above and covered
hereunder (collectively, "Company") which may be amended by us from time to
time, Foreside Fund Services, LLC ("Distributor") hereby invites you to
participate in the selling group on the following terms and conditions. In this
letter, the terms "we," "us," and similar words refer to the Distributor, and
the terms "you," "your," and similar words refer to the dealer executing this
agreement, including its associated persons.
1. Dealer. You hereby represent that you are a broker-dealer properly registered
and qualified under all applicable federal, state and local laws to engage in
the business and transactions described in this agreement, and that you are a
member in good standing of the Financial Industry Regulatory Authority ("FINRA")
and the Securities Investor Protection Corporation ("SIPC"). You agree that it
is your responsibility to determine the suitability of any Fund Shares as
investments for your customers, and that we have no responsibility for such
determination. You further agree to maintain all records required by Applicable
Laws (as defined below) or that are otherwise reasonably requested by us
relating to your transactions in Fund Shares. In addition, you agree to notify
us immediately in the event your status as a member of FINRA or SIPC changes.
You agree that you will at all times comply with (i) the provisions of this
Dealer Agreement related to compliance with all applicable rules and
regulations; and (ii) the terms of each registration statement and prospectus
for the Funds.
2. Qualification of Shares. The Fund will make available to you a list of the
states or other jurisdictions in which Fund Shares are registered for sale or
are otherwise qualified for sale, which may be revised by the Fund from time to
time. You will make offers of Shares to your customers only in those states, and
you will ensure that you (including your associated persons) are appropriately
licensed and qualified to offer and sell Shares in any state or other
jurisdiction that requires such licensing or qualification in connection with
your activities.
3. Orders. All orders you submit for transactions in Fund Shares shall reflect
orders received from your customers or shall be for your account for your own
bona fide investment, and you will date and time-stamp your customer orders and
forward them promptly each day and in any event prior to the time required by
the applicable Fund prospectus (the "Prospectus," which for purposes of this
agreement includes the Statement of Additional Information incorporated
therein). As agent for your customers, you shall not withhold placing customers'
orders for any Shares so as to profit yourself or your customer as a result of
such withholding. You are hereby authorized to: (i) place your orders directly
with the relevant investment company (the "Company") for the purchase of Shares
and (ii) tender Shares directly to the Company for redemption, in each case
subject to the terms and conditions set forth in the Prospectus and any
operating procedures and policies established by us or the Fund (directly or
through its Transfer Agent) from time to time. All purchase orders you submit
are subject to acceptance or rejection, and we reserve the right to suspend or
limit the sale of Shares. You are not authorized to make any representations
concerning Shares of any Fund except such representations as are contained in
the Prospectus and in such supplemental written information that the Fund or the
Distributor (acting on behalf of the Fund) may provide to you with respect to a
Fund. All orders that are accepted for the purchase of Shares shall be executed
at the next determined public offering price per share (i.e., the net asset
value per share plus the applicable sales load, if any) and all orders for the
redemption of Shares shall be executed at the next determined net asset value
per share and subject to any applicable redemption fee or contingent deferred
sales load, in each case as described in the Prospectus.
4. Compliance with Applicable Laws; Distribution of Prospectus and Reports;
Confirmations. In connection with its respective activities hereunder, each
party agrees to abide by the Conduct Rules of FINRA and all other rules of
self-regulatory organizations of which the relevant party is a member, as well
as all laws, rules and regulations, including federal and state securities laws,
that are applicable to the relevant party (and its associated persons) from time
to time in connection with its activities hereunder ("Applicable Laws"). You are
authorized to distribute to your customers the current Prospectus, as well as
any supplemental sales material received from the Fund or the Distributor
(acting on behalf of the Fund) (on the terms and for the period specified by us
or stated in such material). You are not authorized to distribute, furnish or
display any other sales or promotional material relating to a Fund without our
prior written approval, but you may identify the Funds in a listing of mutual
funds available through you to your customers. Unless otherwise mutually agreed
in writing, you shall deliver or cause to be delivered to each customer who
purchases shares of any Funds from or through you, copies of all annual and
interim reports, proxy solicitation materials, and any other information and
materials relating to such Funds and prepared by or on behalf of the Funds or
us. If required by Rule 10b-10 under the Securities Exchange Act or other
Applicable Laws, you shall send or cause to be sent confirmations or other
reports to your customers containing such information as may be required by
Applicable Laws.
5. Sales Charges and Concessions. On each purchase of Shares by you (but not
including the reinvestment of any dividends or distributions), you shall be
entitled to receive such dealer allowances, concessions, sales charges or other
compensation, if any, as may be set forth in the Prospectus. Sales charge
reductions and discounts may be available as provided in the Prospectus. To
obtain any such reductions, the Company or its transfer agent must be notified
promptly when a transaction or transactions would qualify for the reduced charge
and you must submit information that is sufficient (in the discretion of the
Company) to substantiate qualification therefor. The foregoing shall include
advising us of any Letter of Intent signed by your customer or of any Right of
Accumulation available to such customer. If you fail to so advise the Fund, you
will be liable for the return of any commissions plus interest thereon. Rights
of accumulation (including rights under a Letter of Intent) are available, if at
all, only as set forth in the Prospectus, and you authorize any adjustment to
your account (and will be liable for any refund) to the extent any allowance,
discount or concession is made and the conditions therefor are not fulfilled.
Each price is always subject to confirmation, and will be based upon the net
asset value next determined after receipt of an order that is in good form. If
any Shares purchased are tendered for redemption or repurchased by the Fund for
any reason within seven business days after confirmation of the purchase order
for such Shares, you agree to promptly refund the full sales load or other
concession and you will forfeit the right to receive any compensation allowable
or payable to you on such Shares. The Fund reserves the right to waive sales
charges. You represent to us that you are eligible to receive any such sales
charges and concessions paid to you by us under this section.
6. Transactions in Fund Shares. With respect to all orders you place for the
purchase of Fund Shares, unless otherwise agreed, settlement shall be made with
the Company within three (3) business days after acceptance of the order. If
payment is not so received or made, the transaction may be cancelled. In this
event or in the event that you cancel the trade for any reason, you agree to be
responsible for any loss resulting to the Funds or to us from your failure to
make payments as aforesaid. You shall not be entitled to any gains generated
thereby. You also assume responsibility for any loss to a Fund caused by any
order placed by you on an "as-of" basis subsequent to the trade date for the
order, and will immediately pay such loss to the Fund upon notification or
demand. Such orders shall be acceptable only as permitted by the Company and
shall be subject to the Company's policies pertaining thereto, which may include
receipt of an executed Letter of Indemnity in a form acceptable to the Fund and
/or to us prior to the Company's acceptance of any such order.
7. Accuracy of Orders; Customer Signatures. You shall be responsible for the
accuracy, timeliness and completeness of any orders transmitted by you on behalf
of your customers by any means, including wire or telephone. In addition, you
agree to guarantee the signatures of your customers when such guarantee is
required by the Company and you agree to indemnify and hold harmless all
persons, including us and the Funds' transfer agent, from and against any and
all loss, cost, damage or expense suffered or incurred in reliance upon such
signature guarantee.
8. Indemnification. You agree to indemnify hold harmless us, our officers,
directors, agents and employees from and against any claims, liabilities,
expenses (including reasonable attorneys' fees) and losses resulting from (i)
any failure by you to comply with Applicable Laws in connection with activities
performed under this agreement, or (ii) any unauthorized representation made by
you concerning an investment in Fund Shares.
We agree to indemnify and hold harmless you and your officers, directors,
agents and employees from and against any claims, liabilities, expenses
(including reasonable attorneys fees) and losses resulting from (i) any failure
by us to comply with Applicable Laws in connection with our activities as
Distributor under this agreement, or (ii) any untrue statement of a material
fact set forth in a Fund's Prospectus or supplemental sales material provided to
you by us (and used by you on the terms and for the period specified by us or
stated in such material), or omission to state a material fact required to be
stated therein to make the statements therein not misleading.
9. Multi-Class Distribution Arrangements. You understand and acknowledge that
the Funds may offer Shares in multiple classes, and you represent and warrant
that you have established compliance procedures designed to ensure that your
customers are made aware of the terms of each available class of Fund Shares, to
ensure that each customer is offered only Shares that are suitable investments
for him or her, to ensure that each customer is availed of the opportunity to
obtain sales charge break points as detailed in the Prospectus, and to ensure
proper supervision of your representatives in recommending and offering the
Shares of multiple classes to your customers.
10. Anti-Money Laundering Compliance. Each party to this agreement acknowledges
that it is a financial institution subject to the USA PATRIOT Act of 2001 and
the Bank Secrecy Act (collectively, the "AML Acts"), which require, among other
things, that financial institutions adopt compliance programs to guard against
money laundering. Each party represents and warrants that it is in compliance
and will continue to comply with the AML Acts and applicable rules thereunder
("AML Laws"), including NASD Conduct Rule 3011, in all relevant respects. You
agree to cooperate with us to satisfy AML due diligence policies of the Company
and Distributor, which may include annual compliance certifications and periodic
due diligence reviews and/or other requests deemed necessary or appropriate by
us or the Company to ensure compliance with AML Laws. Dealer also agrees to
provide for screening its own new and existing customers against the Office of
Foreign Asset Control ("OFAC") list and any other government list that is or
becomes required under the AML Acts.
11. Privacy. The parties agree that any Non-public Personal Information, as the
term is defined in Regulation S-P ("Reg S-P") of the Securities and Exchange
Commission, that may be disclosed hereunder is disclosed for the specific
purpose of permitting the other party to perform the services set forth in this
agreement. Each party agrees that, with respect to such information, it will
comply with Reg S-P and that it will not disclose any Non-Public Personal
Information received in connection with this agreement to any other party,
except to the extent required to carry out the services set forth in this
agreement or as otherwise permitted by law.
12. Distribution and/or Service Fees. Subject to and in accordance with the
terms of each Prospectus and the Distribution Plan and/or Service Plan, if any,
adopted by resolution of the Board pursuant to Rule 12b-1 under the Investment
Company Act of 1940 (the "1940 Act"), we may pay financial institutions with
which we have entered into an agreement in substantially the form annexed hereto
as Appendix A or such other form as may be approved from time to time by the
Funds' Board (the "Fee Agreement") such fees as may be determined in accordance
with such Fee Agreement, for distribution, shareholder or administrative
services, as described therein.
13. Order Processing. In accordance with NASD Notice to Members 03-50 (reminding
members of their responsibility to ensure that they have in place policies and
procedures reasonably designed to detect and prevent the occurrence of mutual
fund transactions that would violate Rule 22c-1 under the 1940 Act, NASD Conduct
Rule 2110 and other applicable rules and regulations), you represent that you
have reviewed your policies and procedures to ensure that they are adequate with
respect to preventing violations of law and prospectus requirements related to
timely order-taking and market timing activity, in that such policies and
procedures (i) prevent the submission of any order received after the deadline
for submission of orders in each day that are eligible for pricing at that day's
net asset value per share ("NAV"); and (ii) prevent the purchase of Fund Shares
by an individual or entity whose stated objectives are not consistent with the
stated policies of a Fund in protecting the best interests of longer-term
investors, particularly where such investor may be seeking market timing or
arbitrage opportunities through such purchase. You represent that you will be
responsible for the collection and payment to the Company of any Redemption Fees
based upon the terms outlined in the Company's prospectus.
14. Amendments. This agreement may be amended from time to time by the following
procedure. We will mail a copy of the amendment to you at your address shown
below or as registered as your main office from time to time with FINRA. If you
do not object to the amendment within fifteen (15) days after its receipt, the
amendment will become a part of this agreement. Your objection must be in
writing and be received by us within such fifteen (15) days. All amendments
shall be in writing and except as provided above shall be executed by both
parties.
15. Termination. This agreement may be terminated by either party, without
penalty, upon ten days' prior written notice to the other party. Any unfulfilled
obligations hereunder, and all obligations of indemnification, shall survive the
termination of this agreement.
16. Assignment. This agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted assigns. No party may
assign this agreement nor any rights, privileges, duties or obligations
hereunder without the prior written consent of the other parties, except that we
may assign or transfer this agreement to any broker-dealer which becomes the
underwriter of the Company without obtaining your written consent. For the
avoidance of doubt, the parties agree that a change of control of the
Distributor shall not constitute an assignment of this agreement.
17. Notices. All notices and communications to us shall be sent to us at Three
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Legal/Compliance, or at such
other address as we may designate in writing. All notices and other
communication to you shall be sent you at the address set forth below or at such
other address as you may designate in writing. All notices required or permitted
to be given pursuant to this agreement shall be given in writing and delivered
by personal delivery, by postage prepaid mail, electronic mail, or by facsimile
or similar means of same-day delivery, with a confirming copy by mail.
18. Authorization. Each party represents to the other that all requisite
corporate proceedings have been undertaken to authorize it to enter into and
perform under this agreement as contemplated herein, and that the individual
that has signed this agreement below on its behalf is a duly elected officer
that has been empowered to act for and on behalf of such party with respect to
the execution of this agreement.
19. Directed Brokerage Prohibitions. The Distributor and Dealer agree that
neither of them shall direct Fund portfolio securities transactions or related
remuneration to satisfy any compensation obligations under this Agreement. The
Distributor also agrees that it will not directly or indirectly compensate the
dealer executing this agreement in contravention of Rule 12b-1(h) of the 1940
Act.
20. Shareholder Information. The dealer executing this agreement agrees to
comply with the requirements set forth on Appendix B attached hereto regarding
the provision of shareholder information pursuant to Rule 22c-2 of the 1940 Act.
21. Miscellaneous. This agreement supersedes any other agreement between the
parties with respect to the offer and sale of Fund Shares and other matters
covered herein. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term or
provision hereof. This agreement may be executed in any number of counterparts,
which together shall constitute one instrument. This agreement shall be governed
by and construed in accordance with the laws of the state of Delaware without
regard to conflict of laws principles, and shall bind and inure to the benefit
of the parties hereto and their respective successors and assigns.
[The Balance of this Page is Intentionally Left Blank]
* * * *
If the foregoing corresponds with your understanding of our agreement, please
sign this document and the accompanying copies thereof in the appropriate space
below and return the same to us, whereupon this agreement shall be binding upon
each of us.
FORESIDE FUND SERVICES, LLC
By:______________________________________________
Insert Name: _____________________________________
Title: ___________________________________________
Agreed to and accepted:
_______________________________________ [Insert Dealer Name]
By:________________________________________________
Print Name: _______________________________________
Title: ____________________________________________
Address of Dealer:
___________________________________________________
___________________________________________________
Operations Contact:
Name: _____________________________________________
Phone: ____________________________________________
Email: ____________________________________________
Appendix A
FORESIDE FUND SERVICES, LLC
DISTRIBUTION/SERVICE FEE AGREEMENT
[FUNDS] Date: ________________________
Ladies and Gentlemen:
This Fee Agreement ("Agreement") confirms our understanding and agreement with
respect to Rule 12b-1 payments to be made to you in accordance with the Dealer
Agreement between you and us (the "Dealer Agreement"), which entitles you to
serve as a selected dealer of certain Funds for which we serve as Distributor.
Capitalized terms used but not defined herein shall have the respective meanings
set forth in the Dealer Agreement.
1. From time to time during the term of this Agreement, we may make payments to
you pursuant to one or more distribution and service plans (the "Plans") adopted
by certain of the Funds pursuant to Rule 12b-1 of the Investment Company Act of
1940 (the "1940 Act"). You agree to furnish sales and marketing services and/or
shareholder services to your customers who invest in and own Fund Shares,
including, but not limited to, answering routine inquiries regarding the Funds,
processing shareholder transactions, and providing any other shareholder
services not otherwise provided by a Fund's transfer agent. With respect to such
payments to you, we shall have only the obligation to make payments to you
after, for as long as, and to the extent that, we receive from the Fund an
amount equivalent to the amount payable to you. The Fund reserves the right,
without prior notice, to suspend or eliminate the payment of such Rule 12b-1
Plan payments or other dealer compensation by amendment, sticker or supplement
to the then-current Prospectus of the Fund or other written notice to you.
2. Any such fee payments shall reflect the amounts described in the Fund's
prospectus. Payments will be based on the average daily net assets of Fund
Shares which are owned by those customers of yours whose records, as maintained
by the Funds or the transfer agent, designate your firm as the customer's dealer
of record. No such fee payments will be payable to you with respect to shares
purchased by or through you and redeemed by the Funds within seven business days
after the date of confirmation of such purchase. You represent that you are
eligible to receive any such payments made to you under the Plans.
3. You agree that all activities conducted under this Agreement will be
conducted in accordance with the Plans, as well as all applicable state and
federal laws, including the 1940 Act, the Securities Exchange Act of 1934, the
Securities Act of 1933 and any applicable rules of FINRA.
4. Upon request, on a quarterly basis, you shall furnish us with a written
report describing the amounts payable to you pursuant to this Agreement and the
purpose for which such amounts were expended. We shall provide quarterly reports
to the Funds' Board of amounts expended pursuant to the Plans and the purposes
for which such expenditures were made. You shall furnish us with such other
information as shall reasonably be requested by us in connection with our
reports to the Board with respect to the fees paid to you pursuant to this
Agreement.
5. This Agreement shall continue in effect until terminated in the manner
prescribed below or as provided in the Plans or in Rule 12b-1. This Agreement
may be terminated, with respect to one or more Funds, without penalty, by either
of us, upon ten days' prior written notice to the other party. In addition, this
Agreement will be terminated with respect to any Fund upon a termination of the
relevant Plan or the Dealer Agreement, if a Fund closes to new investments, or
if our Distribution Agreement with the Funds terminates.
6. This Agreement may be amended by us from time to time by the following
procedure. We will mail a copy of the amendment to you at your address shown
below or as registered from time to time with FINRA. If you do not object to the
amendment within fifteen (15) days after its receipt, the amendment will become
a part of this Agreement. Your objection must be in writing and be received by
us within such fifteen days.
7. This Agreement shall become effective as of the date when it is executed and
dated by us below. This Agreement and all the rights and obligations of the
parties hereunder shall be governed by and construed under the laws of the state
of Delaware, without regard to conflict of laws principles.
8. All notices and other communications shall be given as provided in the Dealer
Agreement. If the foregoing is acceptable to you, please sign this Agreement in
the space provided below and return the same to us.
Foreside Fund Services, LLC
Agreed to and Accepted
Name and Address of Dealer firm:
By:
----------------------------------- --------------------------------
Insert Name:
------------------------- --------------------------------
Title:
------------------------------- --------------------------------
By:
-----------------------------
Insert Name:
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Title:
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APPENDIX B
Information Regarding the Provision of Shareholder Information Pursuant to Rule
22c-2
(a). Agreement to Provide Information. Dealer agrees to provide the Fund,
upon request, the taxpayer identification number ("TIN"), if known, (or in the
case of a non U.S. shareholder, if the TIN is unavailable, the International
Taxpayer Identification Number or other government issued identifier) of any or
all Shareholder(s) who have purchased, redeemed, transferred, or exchanged fund
shares held through an account with Dealer and the amount, date, name or other
identifier of any investment professional(s) associated with the Shareholder(s)
or account (if known), and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange of Shares held
through an account maintained by the Dealer during the period covered by the
request.
i. Period Covered by Request. Requests must set forth a specific period,
not to exceed 90 days from the date of the request, for which transaction
information is sought. The Fund may request transaction information older
than 90 days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
ii. Form and Timing of Response. Dealer agrees to transmit the requested
information that is on its books and records to the Fund or its designee
promptly, but in any event not later than five business days, after
receipt of a request. If the requested information is not on the Dealer's
books and records, Dealer agrees to use best efforts to: (x) provide or
arrange to provide to the Fund the requested information from shareholders
who hold an account with an indirect intermediary, including a
determination on whether any specific person about whom Dealer has
received information, is itself a financial intermediary; or (y) if
directed by the Fund, restrict or prohibit further purchases or exchanges
of Fund Shares by a shareholder who has been identified by the Fund as
having engaged in transactions of Fund shares (directly or indirectly)
that violate policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
securities issued by the Fund. In such instance, Dealer agrees to inform
the Fund whether it plans to perform (x) or (y). Responses required by
this paragraph must be communicated in writing and in a format mutually
agreed upon by the parties. To the extent practicable, the format for any
transaction information provided to the Fund should be consistent with the
NSCC Standardized Data Reporting Format. For purposes of this provision,
an "indirect intermediary" has the same meaning as in SEC Rule 22c-2 under
the Investment Company Act.
iii. Limitations on Use of Information. The Fund agrees not to use the
information received for marketing or any other similar purpose without
the prior written consent of the Dealer.
(b) Agreement to Restrict Trading. Dealer agrees to execute written instructions
from the Fund to restrict or prohibit further purchases or exchanges of Fund
shares by a Shareholder who has been identified by the Fund as having engaged in
transactions of the Fund's Shares (directly or indirectly through the Dealer's
account) that violate policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding Shares
issued by the Fund.
i. Form of Instructions. Instructions must include the TIN, if known, and
the specific restriction(s) to be executed. If the TIN is not known, the
instructions must include an equivalent identifying number of the
Shareholder(s) or account(s) or other agreed upon information to which the
instruction relates.
ii. Timing of Response. Dealer agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after
receipt of the instructions by the Dealer.
iii. Confirmation by Dealer. Dealer must provide written confirmation to
the Fund that instructions have been executed. Dealer agrees to provide
confirmation as soon as reasonably practicable, but not later than ten
business days after the instructions have been executed.
(c) Definitions. For purposes of this Appendix B:
i. The term "Fund" includes the fund's investment adviser, principal
underwriter and transfer agent. The term does not include any "excepted
funds" as defined in SEC Rule 22c-2(b) under the Investment Company Act of
1940(1)
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(1) As defined in SEC Rule 22c-2(b), the term "excepted fund" means any: (1)
money market fund; (2) fund that issues securities that are listed on a
national exchange; and (3) fund that affirmatively permits short-term
trading of its securities, if its prospectus clearly and prominently
discloses that the fund permits short-term trading of its securities and
that such trading may result in additional costs for the fund.
ii. The term "Shares" means the interests of Shareholders corresponding to
the redeemable securities of record issued by the Fund under the
Investment Company Act of 1940 that are held by the Dealer.
iii. The term "Shareholder" means the beneficial owner of Shares, whether
the Shares are held directly or by the Dealer in nominee name or,
alternatively, for use with retirement plan recordkeepers, the term means
the Plan participant notwithstanding that the Plan may be deemed to be the
beneficial owner of Shares.
iv. The term "written" includes electronic writings and facsimile
transmissions.
v. The term "Dealer" shall mean a "financial intermediary" as defined in
SEC rule 22c-2.