Exhibit E(ii)
BISYS FUND SERVICES LIMITED PARTNERSHIP, Distributor [LOGO]
DEALER AGREEMENT
Re: [List entities in Fund Family] ("Company")
Ladies and Gentlemen:
As the distributor of the shares ("Shares") of each investment company portfolio
("Fund"), of the investment company or companies covered hereunder
(collectively, "Company") which may be amended by us from time to time, BISYS
Fund Services Limited Partnership ("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 National
Association of Securities Dealers, Inc. ("NASD") 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
the NASD or SIPC changes.
2. Qualification of Shares. We 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 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 from time to time. All purchase orders you
submit are subject to acceptance or rejection, and we reserve the right to
suspend or the 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 we 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, 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 the NASD 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 us (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 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 Distributor 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 and/or us) 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 us, 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. We reserve 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 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 us and hold us harmless 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 you and hold you
harmless 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; provided, however, that the indemnification in this clause
(ii) shall be limited to indemnification actually received by us as
Distributor from the Funds, except to the extent that the relevant claims,
liabilities, expenses and losses result from our own failure to exercise
reasonable care in the preparation or review of the Prospectus or such
other materials.
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. The parties agree to cooperate with
one another 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 to ensure compliance with AML Laws.
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 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, and you hereby provide the
confirmation set forth on Appendix B hereto. 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 the NASD. 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 will terminate automatically upon the
termination of the Distribution Agreement between us and the Funds. 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. Notices. All notices and communications to us shall be sent to us at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
Broker-Dealer Compliance Department, 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, or by facsimile or similar
means of same-day delivery, with a confirming copy by mail.
17. 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.
18. 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 Commonwealth of Massachusetts 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.
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.
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS FUND SERVICES, INC.
By:
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Insert Name:
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Title:
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Date:
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Agreed to and accepted:
_____________________________________ [Dealer]
By:
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Insert Name:
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Title:
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Date:
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Address of Dealer:
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Appendix A
[Fund Family]
BISYS FUND SERVICES LIMITED PARTNERSHIP, Distributor
Distribution/Service Fee Agreement
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 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 or us, as Distributor, each 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.
2. Any such fee payments shall reflect the amounts described in a Fund's
Prospectus. Payments will be based on the dollar amount 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 or is
agreed to by us and the 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 Investment Company Act of 1940, the Securities
Exchange Act of 1934, the Securities Act of 1933 and any applicable rules of the
NASD.
4. At the end of each month (or quarterly, upon request), 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 the NASD. 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
Commonwealth of Massachusetts.
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.
BISYS FUND SERVICES LIMITED PARTNERSHIP Agreed to and Accepted:
By: BISYS FUND SERVICES, INC. Name and Address of Dealer firm:
By:
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Insert Name:
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Title:
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Date: By:
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Insert Name:
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Title:
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Date:
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Appendix B
To: BISYS FUND SERVICES LIMITED PARTNERSHIP
as Distributor of [Fund Family]
Confirmation Pursuant to NASD Notice to Members 03-50
As a selected dealer of the Shares of the above-referenced Funds, and pursuant
to the terms of our Dealer Agreement, we hereby certify to you that we will at
all times comply with (i) the provisions of our Dealer Agreement related to
compliance with all applicable rules and regulations; and (ii) the terms of each
registration statement and prospectus for the Funds.
We have performed a review of our internal controls and procedures to ensure
that such controls and procedures are adequate to (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
customer-investor may be seeking market timing or arbitrage opportunities
through such purchase.