e2bdsellingagreement-619.htm - Generated by SEC Publisher for SEC Filing
BROKER-DEALER
SELLING AGREEMENT
Ladies and Gentlemen:
BNY Mellon Securities Corporation (“we”
or “us”), as the principal underwriter and exclusive agent for the
continuous distribution of the shares of beneficial interest or common stock of
open-end registered investment companies managed, advised or administered by BNY
Mellon Investment Adviser, Inc. (“Adviser”) or its subsidiaries or
affiliates (each, a “Fund” and collectively, the “Funds”)
pursuant to the terms of a Distribution Agreement between us and the Funds,
agrees to sell Fund shares to you, the firm specified on the signature page
hereto (“you”), in accordance with the terms and conditions set forth in
this Agreement. You may make shares of the Funds available to your customers
and, with respect to certain Fund shares, provide shareholder, administrative
or other services to your customers who own shares of the Funds in accordance
with the terms and conditions set forth in this Agreement. Unless the context
otherwise requires, as used herein the term “Prospectus” shall mean the full,
statutory prospectus (“Statutory Prospectus”) and related statement of
additional information (“SAI”) incorporated therein by reference (as
amended or supplemented) of each of the respective Funds included in the then
currently effective registration statement (or post-effective amendment
thereto) (“Registration Statement”) of each such Fund, as filed with the
Securities and Exchange Commission (“SEC”) pursuant to the Securities
Act of 1933, as amended (“1933 Act”), and the Investment Company Act of
1940, as amended (“1940 Act”).
In consideration for the mutual covenants
contained herein, the parties hereto agree as follows:
1.
Dealer; Limited Agency.
In all
sales of Fund shares to the public, you shall act as dealer for your own
account or as agent for the account of your customer and, other than for the
limited purpose of accepting orders for Fund shares from your customers for
which you shall be authorized, except as otherwise provided in this Agreement
or the Prospectus of the applicable Fund,
to act as an agent of the Fund, in no transaction shall you have any authority
to act as agent for any Fund, for us or for any other dealer.
2.
Orders; Payment for Shares; Sales Charge Reductions.
(a)
All orders for the purchase of any Fund shares shall be executed
at the then-current public offering price per share (i.e., the net asset
value per share plus the applicable sales charge, if any) and all orders for
the redemption of any Fund shares shall be executed at the net asset value per
share, less the applicable deferred sales charge, redemption fee, or similar
charge or fee, if any, in each case as described in the Prospectus of such
Fund. The minimum initial purchase order and minimum subsequent purchase order
shall be as set forth in the Prospectus of such Fund. All orders are subject
to acceptance or rejection by us or the Fund at the sole discretion of us or
the Fund, and orders are effective only upon receipt in proper form. We reserve
the right, at our 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)
The procedures relating to all orders and the handling thereof shall
be subject to the terms of the Prospectus of the relevant Fund and our written
instructions to you from time to time. No conditional orders will be accepted.
You agree to place orders with us for the same number of shares and at the
same price as any orders you receive from your customers. You shall not withhold
placing orders received from your customers so as to profit yourself as a
result of such withholding. In ordering shares of any Fund, you shall rely
solely and conclusively on the representations contained in the Prospectus of
such Fund.
(c)
You agree that you will not effect any transactions (including,
without limitation, any purchases, exchanges, conversions and redemptions) in
Fund shares registered in the name of, or beneficially owned by, any of your customers
unless such customer has granted you full right, power and authority to effect
such transactions on such customer’s behalf.
(d)
You agree to pay for purchase orders for Fund shares placed by you
in accordance with the terms of the Prospectus of the applicable Fund. In
particular, on or before the settlement date of each purchase order for shares
of any Fund, you agree to remit to an account with the Transfer Agent, as such
term is defined in the Prospectus of each Fund (“Transfer Agent”), that
is designated by us an amount equal to (i) the then-current public offering
price of the shares of such Fund being purchased less the dealer reallowance,
if any, with respect to such purchase order as determined by us in accordance
with the terms of the Prospectus of the applicable Fund, or (ii) the then-current
public offering price of the shares of such Fund being purchased without
deduction for the dealer reallowance, if any, with respect to such purchase
order as determined by you in accordance with the terms of the Prospectus of
the applicable Fund, in which case the dealer reallowance, if any, shall be
payable to you by us on at least a monthly basis. You may elect to waive the
dealer reallowance, to the extent permitted by the Prospectus of the applicable
Fund. Neither we nor the Funds are responsible for correcting the payment or
assessment of an incorrect dealer reallowance due to your failure to fulfill your
obligations under this Agreement.
(e)
If any Fund shares sold under the terms of this Agreement are
sold with a sales charge and are redeemed for the account of the Fund or are
tendered for redemption within seven (7) business days after the date of
purchase:
(i)
You shall forthwith refund to us the full dealer reallowance
received by you on the sale; and
(ii)
We shall forthwith pay to the Fund our portion of the sales
charge on the sale which had been retained by us and shall also pay to the Fund
the amount refunded by you.
(f)
If payment for any purchase order is not received in accordance
with the terms of the Prospectus of the applicable Fund, we reserve the right,
without notice, to cancel the sale and to hold you responsible for any loss sustained
as a result thereof.
(g)
You represent that you have adopted, and will at all times during
the term of this Agreement maintain, reasonable and appropriate procedures
designed to ensure that any and all orders to purchase, redeem, transfer, convert
or exchange Fund shares received by you from your customers which are treated
as received by you by the time the Fund calculates its net asset value as
described in the Prospectus of the applicable Fund (typically, the scheduled close
of trading (“Close of Trading”) on the New York Stock Exchange (“NYSE”)
(usually 4:00 p.m. Eastern time)) on a day the NYSE is scheduled to be open for
regular business (“Business Day”) are received by you prior to the Close
of Trading (or such other time as the applicable Fund calculates its net asset
value as described in the Fund’s Prospectus) on such Business Day and are not
modified after the Close of Trading (or such other time as the applicable Fund
calculates its net asset value as described in the Fund’s Prospectus), and that
all such orders received, but not rescinded, by the Close of Trading are
communicated to us or our designee for that Business Day. Each transmission of
Fund share orders by you shall constitute a representation that such orders are
accurate and complete and are as received by you by the Close of Trading (or
such other time as the applicable Fund calculates its net asset value as
described in the Fund’s Prospectus) on the Business Day for which the orders
are to
be priced and that such transmission includes
all Fund share orders received from your customers, but not rescinded, by the
Close of Trading (or such other time as the applicable Fund calculates its net
asset value as described in the Fund’s Prospectus). You will maintain records
sufficient to document the date and time of receipt of orders from your customers.
(h)
In the case of any Fund shares sold with a sales charge, your customers
may be entitled to a reduction or waiver of the sales charge on purchases in
accordance with the terms and conditions set forth in the Prospectus of the applicable
Fund, and your dealer reallowance, if any, will be paid based upon the reduced
sales charge, except as otherwise described in the Fund’s Prospectus. The
sales charge and/or dealer reallowance may be changed at any time in our sole
discretion upon notice to you.
(i)
You agree to furnish to us or the Transfer Agent sufficient
information to permit confirmation by us or the Transfer Agent of any
qualification for a reduced or waived sales charge, and acceptance of the
purchase order is subject to such confirmation. Unless at the time of
transmitting an order you advise us or the Transfer Agent to the contrary, the
shares of a Fund ordered will be deemed to be the total holdings of the
specified customer in the Funds.
(j)
You shall not be authorized to act as an agent for purposes of
Rule 22c-1 under the 1940 Act for any Fund that is a money market fund, unless
such Fund is designated as a “government” or “retail” money market fund as
defined in Rule 2a-7 under the 1940 Act or the order is on behalf of a participant
directed defined contribution plan (or similar plan) for which you are acting
as agent. Effective as of that date, all orders with respect to shares of any such
Fund from you on behalf of your customers which are not such plans will be
priced at the net asset value next calculated after the Fund receives the order
in proper form from you and accepts it. Notwithstanding the foregoing, a
redemption order that any such Fund determines, in its sole discretion, has
been received in good order by you prior to notification of the imposition or
modification of a liquidity fee or temporary suspension of redemptions (“redemption
gate”) may be paid by the Fund despite the imposition of a redemption gate
or without the deduction of a liquidity fee or modified liquidity fee in the
Fund’s sole discretion; provided, however, that the Fund may, in its sole
discretion, require you to provide sufficient evidence or other documentation
to verify that the redemption order was received in good order prior to
notification of the imposition or modification of a liquidity fee or redemption
gate.
(k)
You agree that we, each Fund, the Transfer Agent and the
respective officers, directors, trustees, agents, employees and affiliates of
us, the Fund and the Transfer Agent shall not be liable for, and shall be fully
indemnified and held harmless by you from and against any and all losses, claims,
demands, liabilities and expenses (including, without limitation, legal and
other costs, including the cost of investigating or defending such claims,
demands or liabilities) (“Losses”) which may be incurred or suffered by us
or any of the foregoing persons entitled to indemnification from you 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 of you
in reliance upon any oral or written instructions reasonably believed to be
genuine and to have been given by or on behalf of you.
3.
Delivery of Fund Prospectuses and SAIs.
(a)
In connection with offers to sell and sales of shares of any Fund,
you 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 Statutory Prospectus or the Fund’s current “summary prospectus” (as defined
in Rule 498 under the 1933 Act) (“Summary Prospectus”), each as
filed with the SEC pursuant to the 1933 Act. Delivery may
include electronic delivery in accordance with publicly-available SEC
interpretations. In addition, you agree to deliver or cause to be delivered to
each person to whom any such offer or sale is made by you, upon request
directed to you, a copy of (i) the SAI of the applicable Fund or (ii) the
Statutory Prospectus of the applicable Fund with respect to those persons who
initially received a copy of the Summary Prospectus of the Fund.
(b)
We agree to supply you with copies of the Summary Prospectus, Statutory
Prospectus and SAI relating to each Fund in reasonable quantities upon request
in connection with your delivery obligations set forth in Section 3(a) above.
4.
Shareholder, Administrative or Distribution-Related Services.
(a)
You agree to serve as a Service Agent, as such term is defined in
the relevant Fund’s Prospectus, and to provide shareholder, administrative or distribution-related
services for your customers who purchase shares of a Fund that has adopted a Shareholder
Services Plan, Administrative Services Plan, Service Plan, Distribution Plan or
similar plan (each, a “Plan” and collectively, the “Plans”), as
applicable and as described in the Fund’s Prospectus. In consideration of the provision
of such services by you as described in this Section 4, we shall pay you the
fees described as payable to Service Agents in the relevant Plan, or such other
fees as may be determined by us, subject to and in accordance with, such Plan(s)
and the Fund’s Prospectus, as applicable.
(i)
To receive fees from us pursuant to a Fund’s Shareholder Services
Plan, you agree to provide personal services and/or the maintenance of
shareholder accounts for your customers who own shares of the Fund, such as
responding to customer inquiries and providing information on their investments
in the Fund.
(ii)
To receive fees from us pursuant to a Fund’s Administrative
Services Plan or similar plan, you agree to provide administrative services for
your customers who own shares of the Fund, which services may include
(depending on the class of shares): providing your customers with statements
showing their position in the Fund; mailing periodic reports, Prospectuses and
other Fund communications to your customers; withholding taxes on non-resident
alien accounts; disbursing income dividends and capital gain distributions;
reinvesting dividends and distributions; preparing and delivering to your customers,
and state and federal authorities, including the United States Internal Revenue
Service and the SEC, such information respecting dividends and distributions
paid by the Fund as may be required by law, rule or regulation; withholding on
dividends and distributions as may be required by state or federal authorities
from time to time; receiving, tabulating, and transmitting proxies executed by your
customers; providing sweep functionality services (i.e., systematic
allocation); technical support; maintaining fund data on platform; processing
(i.e., aggregating) purchase and redemption transactions; trade reconciliation;
manual transaction processing; transmitting wires; client onboarding;
anti-money laundering and related regulatory oversight; fund statistical
reporting; blue sky support; and providing such other related services,
including such other recordkeeping and sub-accounting services, as the Fund may
reasonably request.
(iii)
To receive fees from us pursuant to a Fund’s Service Plan (or,
for certain Funds, a Shareholder Services Plan) adopted in accordance with Rule
12b-1 under the 1940 Act, you agree to provide distribution-related assistance
in connection with the sale
of shares of the Fund
and/or shareholder servicing for your customers who own shares of the Fund,
including: establishing and maintaining shareholder accounts and records; processing
purchase and redemption transactions; providing periodic statements and/or
reports showing your customer’s account balance and integrating such statements
with those of other transactions and balances in the customer’s other accounts
serviced by you; assisting your customers in changing dividend options, account
designations and addresses; arranging for bank wires; and providing such other
information and services as the Fund reasonably may request, to the extent you
are permitted by applicable statute, rule or regulation.
(iv)
To receive fees from us pursuant to a Fund’s Distribution Plan
adopted in accordance with Rule 12b-1 under the 1940 Act, you agree to provide
distribution-related assistance in connection with the sale of shares of the
Fund and, for certain Funds, shareholder servicing for your customers who own
shares of the Fund.
(b)
You shall provide such office space and equipment, telephone
facilities and personnel (which may be all or any part of the space, equipment
and facilities currently used in your business, or all or any personnel
employed by you) as is necessary or beneficial for providing information and
services to your customers who own shares of any Fund, and to assist us and the
Transfer Agent in servicing accounts of your customers.
(c)
You shall transmit promptly to your customers who own shares of any
Fund all communications sent to you for transmittal to shareholders by or on
behalf of us, the Fund, or the Fund’s investment adviser, custodian or transfer
or dividend disbursing agent.
(d)
The fees payable to you as described in this Section 4 shall be
paid monthly in arrears based on the average daily net asset value of your customers’
Fund shares held during the relevant period, and shall be paid only so long as you
perform the services described in this Section 4 for which payment is to be
made and the relevant Plan(s) and this Agreement are in effect. No director,
trustee, officer or shareholder of a Fund shall be liable individually for the
performance of the obligations hereunder or for any such payments. It is
recognized that certain parties may not be permitted to collect fees under a
Plan and, if you are such a party, you acknowledge and agree that you will not
collect such fees. Your acceptance of such fees shall constitute your representation
that receipt of such fees is lawful.
(e)
With respect to Adviser-managed money market Funds, during extraordinary
circumstances, which are defined for purposes of this Agreement as periods of
very low interest rates during which Adviser, from time to time, is waiving
receipt of a portion of its management fee and/or paying Fund operating
expenses directly in order for any such money market Fund to generate a minimum
one-day yield of up to 0.05% (on a subsidized basis), we may, in our
discretion, reduce the fees payable to you as described in this Section 4 with
respect to such money market Fund, potentially to as low as zero. The amount
of any fee rate reductions will be derived from the average percentage
reduction in total operating expenses of the money market Fund, as determined
by us on a month-to-month basis. When such expense limitations are no longer
in effect for the applicable money market Funds, we will immediately resume
payments at the original fee levels.
5.
Representations and Warranties.
(a)
Each party hereto represents and warrants to the other party
that:
(i)
it is a corporation, partnership or other entity duly organized
and validly existing in good standing under the laws of the jurisdiction in
which it was organized;
(ii)
it is duly registered as a broker-dealer with the SEC and, to the
extent required, with applicable state agencies or authorities having
jurisdiction over securities matters, and it is a member in good standing of
the Financial Industry Regulatory Authority (“FINRA”);
(iii)
it will comply with all applicable federal and state laws, and
the rules, regulations, requirements and conditions of all applicable
regulatory and self-regulatory agencies or authorities in the performance of
its duties and responsibilities under this Agreement;
(iv)
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 the lawful execution, delivery and performance of this Agreement have been
obtained; and
(v)
upon execution and delivery by it, and assuming due and valid
execution and delivery by the other party, this Agreement will constitute a
valid and binding agreement, enforceable in accordance with its terms.
(b)
You further represent and warrant that:
(i)
the compensation payable to you pursuant to this Agreement,
together with any other compensation payable to you by your customers in
connection with the investment of their assets in shares of the Funds, will be
properly disclosed by you to your customers, will be authorized by your
customers and will not result in an unauthorized fee to you;
(ii)
you will, on reasonable request, (i) provide us with
certifications and representations related to the performance of this Agreement
or your agreements, representations, warranties, covenants or agreements herein
(“Compliance Matters”) and (ii) permit us or the Funds (or agents
thereof), as well as appropriate regulatory authorities, to obtain information
and records, and to inspect your facilities, relating to Compliance Matters;
(iii)
you will provide to us and each applicable Fund such information
relating to your services pursuant to this Agreement as may be required to be
maintained by us and/or such Fund under applicable federal or state laws, and
the rules, regulations, requirements or conditions of applicable regulatory and
self-regulatory agencies or authorities;
(iv)
to the extent applicable, you will provide to the Funds or any of
their designated agents such periodic reports as any Fund shall reasonably
conclude is necessary to enable such Fund to comply with state Blue Sky
requirements;
(v)
if you make available to your customers shares of any money
market Fund that is classified as a “retail” money market fund for purposes of
Rule 2a-7 under the 1940 Act (“Retail MMF”), (a) you have adopted and
implemented policies, procedures and internal controls reasonably designed to
limit all beneficial owners of such Retail MMF shares to natural persons (as
such term is used or interpreted by the SEC or its staff); (b) you will take
commercially reasonable efforts to ensure that all current and future
beneficial owners of such Retail MMF shares are natural persons; and (c) you
will promptly redeem any such Retail MMF shares held by your customers who do
not qualify as natural persons, consistent with applicable law; and
(vi)
if you maintain an account in a Retail MMF for another financial
intermediary, such other financial intermediary has agreed or represented to
you that it has adopted and implemented policies, procedures and internal
controls reasonably designed to limit all beneficial owners of such Retail MMF
shares to natural persons.
6.
Imposition of Liquidity Fees and Redemption Gates.
You agree
to promptly take such actions reasonably requested by a money market Fund or by
us to impose, lift, or modify a liquidity fee or redemption gate, or assist such
Fund or us in imposing, lifting, or modifying a liquidity fee or redemption
gate. If a money market Fund implements a liquidity fee, you authorize such Fund
or us to calculate the liquidity fee owed to the Fund as a result of the redemption
of shares of such Fund by your customers (the “Fee Amount”) following
the imposition of the liquidity fee and to withhold an amount equal to the Fee
Amount from any redemption proceeds or other payments to you by the Fund in its
sole discretion.
7.
Notifications to Us; Status as FINRA Member.
(a)
You shall notify us immediately in the event of any of the
following:
(i)
termination or suspension of your membership with FINRA;
(ii)
termination of your Securities Investor Protection Corporation
(SIPC) coverage; or
(iii)
your violation of any applicable federal or state law, rule,
regulation, requirement or condition arising out of or in connection with this
Agreement, or which may otherwise affect in any material way your ability to
act as a dealer or otherwise fulfill your obligations in accordance with the
terms of this Agreement.
(b)
You recognize that during the period of any suspension of your FINRA
membership, no payments required by applicable FINRA rules (including in
particular FINRA Rule 2040) to be paid solely to a registered broker or dealer
shall be paid by us to you while your FINRA membership is suspended. Further,
any termination of your FINRA membership will automatically terminate this Agreement
without notice. In the event that this Agreement is terminated as a result of your
ceasing to be a member of FINRA, or for any other reason as permitted by this Agreement,
you agree to work cooperatively with us to effect an orderly transition of your
customers’ assets if such customers’ shares of a Fund are redeemed or
registrations transferred.
8.
Shareholder Information and Imposition of Trading Restrictions.
(a)
For purposes of this Section 8 only, the following definitions
apply:
(i)
“Fund” includes any open-end registered investment company managed,
advised or administered by Adviser or its subsidiaries or affiliates and does
not include any “Excepted Funds” as defined in Rule 22c-2(b) under the 1940 Act.
(ii)
“Shareholder” shall mean, as applicable, (a) the beneficial owner
of Fund shares whether the shares are held directly by the shareholder or by you
in nominee name, (b) a plan participant notwithstanding that the plan may be
deemed to be the beneficial owner of the Fund shares or (c) the holder of
interests in a Fund underlying a variable annuity or variable life insurance
contract.
(iii)
“Written” communications include electronic communications and
facsimile transmissions.
(b)
You agree to provide promptly, but not later than ten (10)
business days, to a Fund or its designee, upon Written request, the taxpayer
identification number (“TIN”), if known, of any or all Shareholders who
have purchased, redeemed, transferred, converted or exchanged Fund shares held
through an account with you (an “Account”) during the period covered by
the request and the amount, date, name or other identifier of any investment
professional(s) associated with the Shareholder or Account (if known), and
transaction type (purchase, redemption, transfer, conversion or exchange) of
every purchase, redemption, transfer, conversion or exchange of Fund shares.
To the extent practicable, the format for any transaction information provided
to the Fund or its designee should be consistent with the NSCC Standardized
Data Reporting Format.
(i)
We agree that requests by the Fund or its designee will set forth
a specific period, not to exceed ninety (90) days from the date of the request,
for which transaction information is sought. A Fund or its designee may
request transaction data older than ninety (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 dilution to
the value of the outstanding shares issued by the Fund.
(ii)
You agree to use your best efforts to determine promptly, upon
request of the Fund or its designee, but not later than ten (10) days from the
date of the request, whether any person that holds Fund shares through you is
an “indirect intermediary” as defined in Rule 22c-2 under the 1940 Act (an “Indirect
Intermediary”), and upon further request of the Fund or its designee: (1)
provide or arrange to have provided the information set forth in this Section 8(b)
regarding Shareholders who hold an account with an Indirect Intermediary; or (2)
restrict or prohibit the Indirect Intermediary from purchasing shares on behalf
of itself or other persons.
(iii)
We agree that the Fund and its designee shall not to use the
information received pursuant to this Section 8(b) for any purpose other than
the purposes outlined herein without your prior Written consent.
(c)
You agree to execute Written instructions from the Fund or its
designee to restrict or prohibit further purchases or exchanges of Fund shares
by a Shareholder that has been identified by the Fund as having engaged in
frequent trading of Fund shares (directly or indirectly through
an Account) as defined in the Prospectus of the applicable
Fund. You agree to execute instructions as soon as reasonably practical but
not later than five (5) business days after receipt of the Written instructions
by you.
(d)
Written instructions provided to you will include the TIN, if
known, and the specific restriction(s) to be executed. If the TIN is not
known, the instructions will include an equivalent identifying number of the
Shareholders or Accounts or other agreed upon information to which the
instructions relate.
(e)
You must provide Written confirmation to the Fund or its designee
that the Written instructions have been executed. You agree to provide the
confirmation as soon as reasonably practicable, but not later than ten (10) business
days after the instructions have been executed.
9.
Representations Concerning Fund Shares.
You shall
not make any representations concerning any Fund shares other than those
contained in the Prospectus of such Fund or in any promotional materials or
sales literature furnished to you by us or the Fund. You 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 materials), except such information
and materials as may be furnished to you by us or the Fund, and such other
information and materials as may be approved in writing by us.
10.
Suitability; Multiple-Class Fund Procedures.
(a)
To the extent you make a recommendation to your customers
regarding a transaction in Fund shares, you agree that it is your responsibility
to fulfill your obligations under applicable FINRA and NASD rules and to
determine the suitability of any Fund shares as investments for your customers,
and that we have no responsibility for such determination.
(b)
You understand and acknowledge that the Funds may offer shares in
multiple classes, and you represent and warrant that, to the extent you recommend
transactions in Fund shares, you have established compliance procedures
designed to ensure that: (i) in offering more than one share class of Funds to
your customers, you make each such customer aware of the terms of each class of
shares offered; (ii) your representatives recommend only shares that are
appropriate and suitable investments for your customer; (iii) the customer is
availed of the opportunity to obtain front-end sales charge discounts as
detailed in the Prospectuses of the applicable Funds; and (iv) there is proper
supervision of your representatives in recommending and offering different
classes of Fund shares to your customers.
11.
Anti-Money Laundering Program Procedures.
You represent and warrant that you have adopted and
implemented policies and procedures to comply with all anti-money laundering,
customer identification and verification, suspicious activity, currency
transaction reporting and similar laws and regulations, including, but not
limited to, the Bank Secrecy Act, as amended by the USA PATRIOT Act, and the
regulations thereunder, applicable to you, and FINRA Rule 3310. You also
represent and warrant that you will not purchase or sell Fund shares, or
otherwise facilitate any transaction, on behalf of any person on the list of
Specially Designated Nationals and Blocked Persons maintained by the Office of
Foreign Assets Control (“OFAC”), or other similar governmental lists, or
in contravention of any OFAC maintained sanctions program. You agree to share
information with the Fund for purposes of ascertaining whether a suspicious activity report (“SAR”) is warranted with respect
to any suspicious transaction involving Fund shares, provided that neither you nor
the Fund is the subject of the SAR filing. You also represent and warrant that
you have filed the requisite certification with the Financial Crimes
Enforcement Network (“FinCEN”) to allow you to share information
pursuant to Section 314(b) of the USA PATRIOT Act. In addition, you shall, to
the extent consistent with applicable law, take all steps necessary and
appropriate to provide the Funds and/or us with any requested information about
investors and accounts in the event that the Funds or us shall request such
information in response to an inquiry or investigation by an appropriate
authority.
12.
Indemnification.
(a)
Each party (the “Indemnifying Party”) agrees to indemnify,
defend and hold the other party, its several officers and directors, and any
person who controls such other party within the meaning of Section 15 of the 1933
Act, and each Fund and its several officers and directors or trustees
(collectively, the “Indemnified Party”), free and harmless from and
against any Losses which the Indemnified Party incurs or suffers, arising out
of or based upon:
(i)
any breach of any representation, warranty or covenant made by the
Indemnifying Party herein;
(ii)
any failure by the Indemnifying Party to perform its obligations
as set forth herein; or
(iii)
any negligence, bad faith or misfeasance by the Indemnifying
Party or any of its officers, directors, employees, agents, or any person who
controls such Indemnifying Party within the meaning of Section 15 of the 1933
Act.
(b)
We, as an Indemnifying Party, further agree to indemnify, defend
and hold you, your several officers and directors, and any person who controls you
within the meaning of Section 15 of the 1933 Act, as an Indemnified Party, free
and harmless from and against any Losses arising out of or based upon any
untrue statement of a material fact contained in any Prospectus, or arising out
of or based upon any omission to state a material fact required to be stated in
any Prospectus, or necessary to make the statements therein not misleading, unless
such statement or omission was made in reliance upon information furnished to us
by you for use therein.
(c)
The Indemnifying Party’s agreement to indemnify the Indemnified
Party is expressly conditioned upon the Indemnifying Party being notified of
any action, arbitration, claim, demand, dispute, investigation, lawsuit or
other proceeding (each, a “Proceeding”) brought against the Indemnified
Party, such notification to be given in writing received by the Indemnifying
Party at its address as specified in Section 17 of this Agreement within seven
(7) days after the commencement of such Proceeding; provided that, the failure
to so notify the Indemnifying Party in the absence of a showing of actual
prejudice shall not relieve the Indemnifying Party from any indemnification
liability which it may have to the Indemnified Party. The Indemnifying Party
shall be entitled to participate in, and, to
the extent that it may wish, assume the defense thereof (in its own name or in
the name and on behalf of any Indemnified Party, or both, with counsel
reasonably satisfactory to such Indemnified Party) by giving written
notice to the Indemnified Party within ten (10) days of receiving notice of the
Proceeding (or such shorter period as is required to respond to the Proceeding);
provided, however, if the defendants in any
such action include (or will include) both the Indemnified Party and an Indemnifying
Party and the Indemnified Party shall have reasonably concluded that there may
be a conflict between the positions of the Indemnified Party and an Indemnifying
Party in conducting the defense of any such action or
that there may be legal defenses available to it which are inconsistent with
those available to an Indemnifying Party, the Indemnified Party shall have the
right to select one separate counsel (in addition to local counsel) to assume
such legal defense and to otherwise participate in the defense of such action
on behalf of such Indemnified Party at such Indemnified Party’s sole expense. Upon
receipt of notice from an Indemnifying Party to such Indemnified Party of its
election so to assume the defense of such action and approval by the Indemnified
Party of counsel, which approval shall not be unreasonably withheld (and any
disapproval shall be accompanied by a written statement of the reasons
therefor), the Indemnifying Party will not be liable to such Indemnified Party
hereunder for any legal or other expenses subsequently incurred by such Indemnified
Party in connection with the defense thereof. No Indemnifying Party
shall be liable under this Agreement for any settlement of any Proceeding
entered into without its consent with respect to which indemnity may be sought
hereunder, nor shall any Indemnifying Party enter into any settlement (other
than a purely monetary “no admission” settlement) without the consent of the
Indemnified Party.
(d)
The indemnification agreements contained in Section 2(k) above,
Section 15 below and this Section 12 shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of any person
entitled to indemnification pursuant to Section 2(k) above, Section 15 below or
this Section 12, and shall survive the delivery of any Fund shares and
termination of this Agreement. Such agreements of indemnity will inure
exclusively to the benefit of the persons entitled to indemnification pursuant
to this Agreement and their respective estates, successors and assigns.
(e)
Each Fund and its several officers and directors or trustees are
expressly made third party beneficiaries of this Agreement for purposes of the indemnification
agreements contained herein to the same extent as if they had been parties
hereto.
(f)
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE
INDEMNIFYING PARTY SHALL NOT BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSS OF BUSINESS, REGARDLESS
OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER THE INDEMNIFYING PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.
Customer Information; Privacy.
Each party hereto agrees to comply with all applicable
state and federal laws and regulations relating to consumer privacy and data
security. Pursuant to Regulation S-P promulgated by the SEC under the
Gramm-Leach-Bliley Act (“Reg. S-P”), you agree to deliver the Funds’
then-current consumer privacy notice to any of your customers who purchase Fund
shares from or through you, at or prior to the time of the initial purchase, if
the customer would be considered a “consumer” or “customer” (each as defined in
Reg. S-P) of the Fund(s). The provisions of this Section 13 shall survive the
termination of this Agreement.
14.
Qualification of Fund Shares.
We agree to make available to you a list of: (i) U.S.
states or other U.S. jurisdictions in which shares of the Funds are registered and
qualified for sale and (ii) foreign countries (and attendant restrictions)
where shares of the Fund may be sold, each of which may be revised by us from
time to time (collectively, the “Jurisdiction List”). You shall make Fund
shares available to your customers only in those U.S. states,
other U.S. jurisdictions and foreign countries that are included on the
Jurisdiction List, subject to your compliance with any applicable requirements
and restrictions, including those restrictions applicable to sales in foreign
countries as set forth on the Jurisdiction List. You agree to provide us with
certifications or other documentation as we deem necessary to monitor your compliance
with such restrictions. Moreover, you will ensure that you (including your associated
persons) are properly licensed and qualified to offer and sell shares in any U.S.
state, other U.S. jurisdiction and foreign country that requires such licensing
or qualification in connection with your activities. You further agree not to
make Fund shares available in any other jurisdiction, unless you have received
prior written authorization from us.
15.
Expedited Redemption Information Form.
By
completing the Expedited Redemption Information Form annexed hereto as Appendix
A, you agree to indemnify, defend and hold us and the Transfer Agent, our
and its respective officers and directors, and any person who controls us or
the Transfer Agent within the meaning of Section 15 of the 1933 Act, and each
Fund with respect to which we permit you to exercise an expedited redemption
privilege and such Fund’s several officers and directors or trustees, free and
harmless against any Losses arising out of or in connection with any expedited
redemption payments made in reliance upon the information set forth in Appendix
A.
16.
Non-Exclusivity; Relationship of Parties; Use of Names.
The parties
hereto acknowledge and agree that: (i) neither this Agreement nor the
arrangements described herein constitute an exclusive arrangement, or create a
partnership, association or joint venture and (ii) each party hereto may enter
into similar agreements and arrangements with other entities. Other than as
specifically set forth herein, 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, regulation,
requirement or condition, and except pursuant to any promotional programs
mutually agreed upon in writing by the parties hereto. Notwithstanding the
foregoing, you may use the names of the Funds on a list of funds that you make
available to your customers without our prior approval.
17.
Notices.
Except as
otherwise specifically provided herein, all notices required or permitted to be
given pursuant to this Agreement shall be given in writing. Unless otherwise
notified in writing, all notices to us shall be given or sent to our offices,
located at 144 Glenn Curtiss Boulevard, Uniondale, New York, 11556, Attention: Director
of Institutional Services, with a copy to: 240 Greenwich Street, New York, NewYork10286, Attention: Legal Department; and all notices to you shall be given
or sent to you at your address shown below.
(a)
This Agreement may be terminated at any time by either party
hereto upon fifteen (15) days’ prior written notice to the other party. In
addition, we may terminate this Agreement as to any or all Funds immediately,
without penalty, if the present investment adviser of such
Fund(s)
ceases to serve the Fund(s) in such capacity, if we cease to act as distributor
of such Fund(s) or as otherwise provided in this Agreement.
(b)
If fees are to be received pursuant to a Plan, this paragraph
shall apply, notwithstanding anything in this Agreement to the contrary. This
Agreement shall continue so long as it is approved at least annually by the applicable
Fund’s Board of Directors or Trustees. Such continuance must be approved
specifically at least annually by a vote of a majority of (i) the Fund’s Board
of Directors or Trustees and (ii) the Fund’s Directors or Trustees who are not “interested
persons” (as defined in the 1940 Act) of the Fund and have no direct or
indirect financial interest in this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This Agreement is
terminable without penalty, at any time, by vote of a majority of the Fund’s Directors
or Trustees who are not “interested persons” (as defined in the 1940 Act) and
have no direct or indirect financial interest in this Agreement or by vote of a
majority of the outstanding voting securities of the Fund on sixty (60) days’
notice to you. Notwithstanding anything contained herein, if you fail to
perform the shareholder servicing and administrative and/or distribution
functions contemplated herein, as applicable, this Agreement shall be
terminable by us as to any or all of the Funds effective upon receipt of notice
thereof by you. This Agreement also shall terminate automatically in the event
of its “assignment” (as defined in the 1940 Act).
(c)
This Agreement, and any exhibits hereto, may be amended by us upon
written notice to you, and such amendment shall be deemed accepted by you upon
the placement of any order for the purchase of Fund shares or the acceptance of
a fee payable under this Agreement after the effective date of any such
amendment.
(d)
This Agreement may not be assigned by you without our prior
written consent.
(e)
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 hereto relating to the subject
matter hereof.
19.
Governing Law.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to principles of conflicts of laws.
Very truly yours,
BNY MELLON SECURITIES CORPORATION
Accepted:
Name of Broker-Dealer
Firm (Please Print or Type)
Dealer Code
Address
Address
for Email Notification: _____________
Date:
_____________________________ By:
Name:
Title:
Confirmed:
BNY MELLON SECURITIES CORPORATION
Date: _____________________________ By:
Name:
Title:
NOTE: Please sign and return both copies
of this Agreement to BNY Mellon Securities Corporation.
APPENDIX
A
TO BROKER-DEALER SELLING
AGREEMENT
EXPEDITED
REDEMPTION INFORMATION FORM
The following information is provided by
the Firm identified below which desires to exercise expedited redemption
privileges with respect to shares of certain mutual funds managed, advised or
administered by BNY Mellon Investment Adviser, Inc. or its subsidiaries or
affiliates, which shares are registered in the name of, or beneficially owned
by, the customers of such Firm.
(PLEASE PRINT OR
TYPE)
NAME OF FIRM
STREET ADDRESS CITY STATE ZIP
CODE
In order to speed payment, redemption
proceeds shall be sent only to the commercial bank identified below, for credit
to customer accounts of the above-named Firm.
NAME OF COMMERCIAL BANK TO RECEIVE ALL
PAYMENTS — ABA NUMBER