American Portfolios Advisors, Inc. Advisory Services Agreement (for financial consulting/financial planning and asset management services)

Transcription

1 American Portfolios Advisors, Inc. Advisory Services Agreement (for financial consulting/financial planning and asset management services) Instructions for the Advisory Services Agreement APA s Advisory Services Agreement addresses the need of providing clients with financial advisory services in two different capacities: Financial Consulting, or Financial Planning and Asset Management. This agreement provides the ability to charge clients a flat fee, hourly fee or a combination of a flat and hourly fee for any advisory services provided to the client. The Consultative Only portion of this agreement is located in Schedule A. Schedule A provides the ability to provide oneoff services for the client while charging a flat fee or hourly fee for the services. If providing Consultative Only services, please complete Schedule A only. Schedule A contains the following sections: Description of Services Payment Schedule Client Acknowledgements and Signature The Consultative Asset Management portion of this agreement is located in Schedule B. Schedule B provides the ability to provide ongoing asset management to the client for a flat fee or hourly fee for the services provided, as well as additional expenses incurred. The expense detail must be provided to the client. If providing Consultative Asset Management services, please complete both pages of Schedule B only. Schedule B contains the following sections: Client Questionnaire Services Provided Payment Schedule Client Acknowledgements and Signature Please do not complete both Schedule A and B; only complete the appropriate schedule for the services being provided to the Client, as indicated above. Additional requirements for the Advisory Services Agreement include: Completion of the APFS New Account Form (NAF). Delivery of the Advisor Brochure (formally known as ADV Part II) and Advisor Brochure Supplement (formally known as ADV Part II B Resume) to all clients; the Client s signature is required on this agreement, and stands as client acknowledgement of receipt of the Resume. All documents must be sent to the BPM, and all BPM submissions will be reviewed. If STARS training for blottering documents is required, contact the advisory services department. o If the documents are in good order, the account will be approved for billing. o If the documents are not in good order, a notification will be sent to the advisor. Please respond immediately as the account cannot become active or billed until everything is in good order. All payments from the client should be sent to Finance Supervisor Michelle Schwab in the APFS accounting department. o Please ensure that the Client name and the type of agreement in place is reflected in the agreement. o The Memo section of the Client s payment should include the Advisor s name. American Portfolios Advisors, Inc. 1 of 9 Updated November 2011

2 This agreement is made by and between the aforementioned client ( Client ), the investment advisor representative ( IAR or Advisor ) and American Portfolios Advisors, Inc. ( APA ). I. Services The IAR agrees to consult with Client for the purpose of acquiring information concerning Client's assets, liabilities, present and future foreseeable obligations, present and future income requirements, Client's desired financial goals, and Client's tolerance for risk as well as other data related to the foregoing. Client agrees to provide such information and data to the IAR. In addition, Client hereby certifies that to the best of his or her knowledge such information is true, accurate, and complete. All information and recommendations furnished by either Client or APA and its IARs to the other shall at all times be treated in strict confidence and shall not be disclosed to third persons, with the following exceptions: as may be required by law, upon the prior written approval of Client to this Agreement, in accordance with the Privacy Policy, or, if necessary, to help in the fulfillment of services listed in Section V, List of Services: Schedule A. In reliance upon the accuracy and completeness thereof, the IAR agrees to furnish Client with one or more of the services noted in Section V, List of Services: Schedule A, and such services are available at an hourly rate or a total flat fee. II. Representations A. Client represents and confirms that: (i.) Client has full power and authority to enter into this agreement; (ii.) the terms of this agreement do not violate any obligation by which Client is bound, whether arising by contract, operation of law, or otherwise; and (iii.) this agreement has been duly authorized and will be binding according to its terms. B. If this agreement is entered into by a trustee or other fiduciary, such trustee or fiduciary acknowledges that the services provided by APA and the IAR are within the scope of services authorized by the governing instruments of Client, and/or applicable laws and regulations, and that such trustee or fiduciary is duly authorized to enter into this agreement. The trustee or fiduciary will provide APA with an executed trustee certification or investment powers form or with copies of the governing instruments authorizing participation in the program. The trustee or the fiduciary will advise APA and the IAR of any material change in his or her authority or the propriety of participation in the program. III. Fee(s) for Services Provided A. At no time may the IAR or Advisor be compensated on the basis of a share of capital gains or capital appreciation of the funds or any portion of the funds invested by the Client. The Client may pay more or less for these services than may otherwise be available through other investment advisors. B. The Client and IAR shall agree upon a total flat fee or hourly rate or a combination of both for the advisory services to be provided as set forth in Section V, List of Services: Schedule A. The Client shall pay a total flat fee or hourly rate or a combination of both as indicated below and detailed in Section XI, Payment Schedule. Please choose one type of billing method: Total Flat Fee: $ Hourly Rate $ Combination of Flat Fee and Hourly Rate: Flat Fee Portion: $ Hourly Rate Portion $ C. Client is under no obligation to implement the advice by executing transactions through APA. However, if Client chooses, at his or her sole discretion, to effect transactions with APA or through American Portfolios Financial Services, Inc. (APFS), APA, at its sole discretion, may elect to waive any part of the Fee owed by Client under this agreement. APA is under no contractual obligation to waive such fees, regardless of whether Client chooses to effect transactions with APA or APFS. APA is affiliated with APFS, a broker-dealer; as a result, a potential conflict may arise between the Client s interests and APA s interest in executing transactions through the affiliated broker-dealer, APFS. IV. Assignment Client may not assign rights or delegate obligations under this agreement, in whole or in part, without the prior written consent of APA. APA may not assign this Agreement, as the term assign is defined under the Investment Advisers Act of 1940, as amended, without Client s consent. V. Form ADV Delivery Client hereby acknowledges, by his or her signature set to this agreement, that Client has received the APA Advisor Brochure and Advisor Brochure Supplement, attached hereto and made a part of this agreement, in accordance with rule of the Investment Advisors Act of As such, the Client acknowledges that they have fully read and understood the contents of the APA Advisor Brochure and Advisor Brochure Supplement 48 hours prior to entering into this agreement for the services of the Advisor. Alternatively, the Client acknowledges that they have fully read and understand the contents of the Advisor Brochure and Advisor Brochure Supplement at the time this agreement is executed; as such, the client will have the opportunity to rescind this contract within five (5) days, without penalty. American Portfolios Advisors, Inc. 2 of 9 Updated November 2011

3 VI. Termination Either party may terminate this agreement at any time without penalty upon written notice. However, such termination shall not affect liabilities or obligations incurred prior to such termination, including the provisions regarding arbitration, which shall survive any expiration or termination of this agreement. Certain fees and penalties may apply if a third party is used along with this agreement. VII. Entire Agreement This agreement represents the entire understanding between the parties with regard to the matters specified herein. No other agreements, covenants, representations, or warranties, expressed or implied, oral or written, have been made by any party hereto to any other party hereto concerning the subject matter of this agreement. VIII. Validity If any part of this agreement is found to be invalid or unenforceable, that part will be stricken and it will not affect the validity and enforceability of the remainder of the agreement. IX. Potential Conflicts of Interest As previously stated, APA and broker-dealer APFS are affiliated. As a result, a potential conflict may arise between the Client s interests and APA s interest in executing transactions through the affiliated broker-dealer APFS. If Client chooses, at his or her sole discretion, to effect transactions with APFS, APA may collect transaction fees and commission separate from the total flat fee or hourly rate charged by APA described herein. The IAR is an IAR of APA and may or may not be a registered representative of APFS, and thus may be involved in executing transactions for a Client. Client understands that the products, comments, or a course of action recommended by the advice presented may be limited to those that the IAR is licensed to purchase or sell as a broker-dealer representative. More information about potential conflicts of interest is contained in the APA Form ADV, Part II and Schedule H. X. Risk Client recognizes that any advice or strategy developed by the IAR of APA pursuant to this agreement involves the IAR s judgment and that the IAR s views, recommendations, suggestions, or strategies regarding the economy and the securities markets, like all predictions of future events, cannot be guaranteed to be accurate. Client represents that no party to this agreement has made any guarantee, either oral or written, that Client s project specifications or objectives will be achieved. In the absence of malfeasance, negligence, or violation of applicable law, APA or the IAR will not be liable for any action performed or omitted to be performed or for any errors of judgment or mistake in preparing the information for the project, undertaking, or session. Nothing in this agreement shall constitute a waiver or limitation of any rights, which Client may have under the rules of arbitration found in this contract under the section titled Arbitration Agreement. XI. Applicable Law This agreement will be constructed and governed according to the laws of the State of New York, without reference to principles of conflict of laws, if there is no inconsistency with federal laws. XII. Amendments APA will have the right to amend this agreement by modifying or rescinding any of its existing provisions or by adding new provisions. Any such amendment will be effective as of thirty (30) days after APA has notified Client in writing of any change or such later date as is established by APA. XIII. The USA Patriot Act The USA Patriot Act, which contains U.S. federal and judicial anti money laundering regulations, is a tool designed to help the government fight the funding of terrorism and money-laundering activities. Federal law requires all institutions to obtain, verify, and record the identities of each person or entity who are clients in the financial services industry. These rules have affected and will continue to affect the conduct of business. When Client opens an account with APA or APFS, Client will be asked for his or her name, address, date of birth, and other information that will allow APA/APFS to document his or her identity. APA or APFS may also need proof of identity by obtaining a photocopy of Client s driver s license, Social Security card, passport, or other government-issued identification. Information obtained from Client may be shared with third parties to verify Client s identity in compliance with federal law. XIV. Other Disclosure Statements A. Custody The IAR and Advisor, under no circumstances, shall have custody of Client funds or Securities. B. Registration APA represents and warrants that it is registered as an investment advisor with the Securities and Exchange Commission (SEC) pursuant to the Investment Advisors Act of 1940 as amended, and that such registration is currently effective. Such registration does not indicate or represent any mark of approval by the SEC. The IAR and APA also represent and warrant that they are appropriately filed with any applicable state jurisdiction and comply with state requirements concerning IAR activity. American Portfolios Advisors, Inc. 3 of 9 Updated November 2011

4 C. Outside Services It is expressly understood and agreed that neither APA nor APFS will provide Client any legal advice or prepare any legal documents for Client. It is expressly understood and agreed that neither APA nor APFS will give Client any tax advice or prepare tax returns or other tax-related documents. In addition, some IARs are also properly licensed or qualified to offer the following products/services: Prepare income tax returns Sell insurance products Provide legal advice Provide real estate services Provide accounting services All such services are independent of APA and APFS. Any fees paid in connection with any outside service, unless expressly noted on Schedule A, are not part of this Agreement. As such, neither APA nor APFS make a warranty of such services. D. Proxies It is expressly understood that Client retains the right to vote all proxies that are solicited for securities held in the Account. The IAR and Advisor are hereby expressly precluded from voting proxies for securities held in the Account and will not be required to take action or render any advice with respect to the voting of proxies. E. Fiduciaries Client understands that if this agreement is entered into by a trustee or other fiduciary, including but not limited to fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) or an employee benefit plan subject to ERISA, such or other fiduciary represents and warrants that Client's participation in this agreement is authorized by the trust, agreement, or other documentation which establishes the fiduciary relationship. F. Notice Any notice or other communication required or permitted to be given pursuant to this agreement will be deemed to be duly given when hand-delivered, transmitted by facsimile, or delivered by overnight courier, or three days after delivery to the United States mail (first class, postage prepaid). Send all notices or communications to: American Portfolios Advisory Services, Inc., 4250 Veterans Memorial Highway, Suite 420E, Holbrook, NY 11741, Attention: Advisory Services Department. All notices or communications to Client will be sent to the address listed on the American Portfolios New Account Form. XV. Arbitration Agreement A. Arbitration is final and binding on the parties. B. The parties waive their right to seek remedies in court, including the right to jury trial. C. Pre-arbitration discovery is generally more limited than and different from court proceedings. D. The arbitrators award is not required to include factual findings or legal reasoning and any party s right to appeal or to seek modification of rulings by the arbitrator is strictly limited. E. The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry. F. The rules of the arbitration forum in which the claim is filed, and any amendments thereto, shall be incorporated into this agreement. Any controversy or dispute that may arise between Client and another party to this agreement concerning any transaction or the construction, performance, or breach of this agreement will be settled by arbitration. Any arbitration will be conducted before an arbitration panel convened by the Financial Industry Regulatory Authority. Client may also select any other national securities exchange s arbitration forum upon which the other party is legally required to arbitrate controversy. Such arbitration will be governed by the rules of the organization convening the panel. The award of the arbitrators will be final and binding on the parties, and judgment upon the award rendered may be entered into in any court, state or federal, having jurisdiction. The agreement to arbitrate does not entitle Client to obtain arbitration of claims that would be barred by the relevant statute of limitations if such claims were brought in a court or competent jurisdiction. If at the time a demand for arbitration is made or an election or notice of intention to arbitrate is served, the claims sought to be arbitrated would have been barred by the relevant statute of limitations or other time bar, any party to this agreement may assert the limitations as a bar to the arbitration by applying to any court of competent jurisdiction, and Client expressly agrees that any issues relating to the application of a statute of limitations or other time bar are referable to such a court. The failure to assert such bar by application to a court, however, shall not preclude its assertion before the arbitrators. American Portfolios Advisors, Inc. 4 of 9 Updated November 2011

5 SCHEDULE A FINANCIAL CONSULTING Please check appropriate services provided: Estate account establishment and distribution to heirs Dissolution of trust assets Transfer of IRA assets Research cost basis and historical prices Reregister personal assets for estate purposes Consulting with client s third party advisors and administrators Other (Please provide descriptions below) EXPLANATION OF SERVICES: Payment Schedule Fee Structure Payments A. Flat Fee Options* Deposit Retainer for Services: $ Total Fee Amount: $ of Deposit: B. Hourly Rate* Hourly Rate: $ Balance Due: $ Estimated** Hours for Project(s): Estimated** Total for Services: Balance Due By: A detailed breakdown of services performed must be submitted with fee. * Please, make all payments for services rendered payable to American Portfolios Advisors, Inc. Please reference your Advisor s name in the memo field. ** An estimate is an educated guess and does not represent a final or finite number. Although the IAR must take care in estimating hours for services, it would be reasonable to expect a variance, which may lead to additional costs. Client Acknowledgments: This agreement is duly authorized and will be binding upon the parties in accordance with its terms upon its acceptance by APA. All participants to the agreement must sign. Fiduciaries must indicate the capacity in which they are acting. This agreement may be executed in counterparts and shall be binding on the parties hereto as if executed in one document. The client further acknowledges receipt of American Portfolios Advisors Advisor Brochure and Advisor Brochure Supplement. This agreement contains a pre-dispute arbitration agreement. The Client acknowledges receipt of a copy of this agreement, including the pre-dispute arbitration clause. Client Signature (Owner/Trustee) Client Name and Title (if Fiduciary) Client Signature (Joint/Trustee) Joint Client Name and Title (if Fiduciary) Advisor Signature Advisor Name American Portfolios Advisors, Inc. 5 of 9 Updated November 2011

6 SCHEDULE B FINANCIAL PLANNING AND ASSET MANAGEMENT Custodian Questionnaire Place a check mark in the appropriate box Expected Return: Given historical returns on different kinds of investments, my desired level of investment return is above average Risk Tolerance: I am willing to bear an above-average level of investment risk (volatility). I can accept occasional years with negative investment returns. Holding Period: I am willing to maintain investment positions over a reasonably long period of time (generally considered 10 years or more). Liquidity: I do not need to be able to readily convert my investments into cash. Aside from my portfolio, I have adequate liquid net worth to meet major near-term expenses. Ease of Management: I want to be very actively involved in the monitoring and decision-making required to manage my investments. Dependents: There are none or only a few dependents that rely on my income and my investment portfolio for support. 7. Income Source: My major source of income is adequate, predictable, and steadily growing. Strongly Disagree Strongly Agree Insurance Coverage: I have an adequate degree of insurance coverage. 9. Investment Experience: I have prior investment experience with stocks, bonds, and international investments. I understand the concept of investment risk. 10. Debt/Credit: My debt level is low and my credit history is excellent. Column Subtotal Total Score *Subtotal each of the column answers (each column is assigned a value at the top) for example, answers in first column (strongly disagree) have a value of 1, answers in the second column have a value of 2, answers in the fifth column have a value of 5, etc. Add each of the respective subtotals to get a total score. Score Range Investment Objectives Risk Tolerance [ ] Preservation of Capital/Income Conservative/Low [ ] Growth and Income/Balanced Moderate [ ] Growth/Aggressive Growth Fairly Aggressive/Moderately High [ ] Speculation/Trading Aggressive/High American Portfolios Advisors, Inc. 6 of 9 Updated November 2011

7 If other, please specify: Services Provided for Consultative Asset Management Check all applicable advisory services: Cash Flow and Net Worth Statement Portfolio Analysis Goal Setting Review of current portfolio Risk Tolerance Analysis Proposed portfolio Investment Investment policy statement Review risk/reward profile Insurance Proposed asset allocation Review annuities Review of current allocation Life insurance analysis Financial Planning Disability analysis Prepare a financial plan Home, auto and health analysis Needs analysis Long-term care analysis Asset projections Retirement Plan Analysis Budgeting and cash flow analysis 401(k) asset allocation Monte Carlo analysis IRA/Roth IRA analysis Income Tax Analysis SIMPLE/SEP/Keogh analysis Estate Planning OTHER specify below Education Funding Analysis Payment Schedule Fee Structure Payments A. Flat Fee Options* Deposit Retainer for Services: $ Total Fee Amount: $ Balance Due: $ Due by: Or Use Quarterly Payment Schedule B. Hourly Rate* Quarterly Payment Schedule Total Fee Amount**: $ Hourly Rate: $ 1 st Quarter Due /Amount: / $ Estimated** Hours for Project(s): 2 nd Quarter Due /Amount: / $ Estimated** Total for Services: 3 rd Quarter Due /Amount: / $ A detailed breakdown of services performed must be submitted with fee. 4 th Quarter Due /Amount: / $ * Please make all payments for services rendered payable to American Portfolios Advisors, Inc. Please reference the IAR in the memo field. **An estimate is an educated guess and does not represent a final or finite number. Although the IAR must take care in estimating hours for services, it would be reasonable to expect a variance, which may lead to additional costs. Client Acknowledgments: This agreement is duly authorized and will be binding upon the parties in accordance with its terms upon its acceptance by APA. All participants to the agreement must sign. Fiduciaries must indicate the capacity in which they are acting. This agreement may be executed in counterparts and shall be binding on the parties hereto as if executed in one document. The client further acknowledges receipt of American Portfolios Advisors Advisor Brochure and Advisor Brochure Supplement. This agreement contains a pre-dispute arbitrations agreement. The Client acknowledges receipt of a copy of this agreement, including the pre-dispute arbitration clause. Client Signature (Owner/Trustee) Client Name and Title (if Fiduciary) Client Signature (Joint/Trustee) Joint Client Name and Title (if Fiduciary) Advisor Signature Advisor Name American Portfolios Advisors, Inc. 7 of 9 Updated November 2011

8 THIS NOTICE IS FOR YOUR INFORMATION. NO RESPONSE IS REQUIRED. American Portfolios Financial Services, Inc. American Portfolios Advisors, Inc Veterans Memorial Highway 4 th Floor, Suite 420E Holbrook, NY (631) Privacy Statement American Portfolios Financial Services, Inc. and American Portfolios Advisors, Inc. considers privacy to be a fundamental part of their relationships with you. We have developed practices and procedures to protect the confidentiality and security of your non-public personal information. Our practices and procedures apply to current and former customers. You have privacy choices and may limit our disclosure of your personal information. Personal Information We Collect and Disclose We collect the following kinds of non-public personal information about you: information we receive from you; information about your transactions with us, our affiliates, or others; or Information we receive from a consumer reporting agency. We reserve the right to disclose all of the non-public personal information about you that we collect. Nonaffiliated Third Parties To Whom We Disclose Personal Information We respect the relationship that you have with your registered representative or investment advisor. If your representative or advisor elects to leave us and join another firm, we will disclose, and permit your representative or advisor to disclose, all of the information we collect, as described above, to the new firm in order to assist you with the timely and orderly transition of your account and to allow your representative or advisor to continue to serve you at the new firm. We also make disclosures to other nonaffiliated third parties as permitted by law. Affiliates To Whom We Disclose Personal Information We disclose all of the information we collect, as described above, to our affiliates to assist us in processing transactions and servicing your account and to share eligibility information for products and services. Confidentiality and Security We restrict access to non-public personal information to those employees who need to know that information to provide products or services to you. We maintain physical, electronic, and procedural safeguards that comply with applicable laws to guard your non-public personal information. Privacy Choices We are permitted to disclose non-public personal information about you to nonaffiliated third parties and to our affiliates in connection with processing transactions and servicing your account. If you prefer that we do not disclose non-public personal information about you to nonaffiliated third parties (other than those parties needed to process and service your account), or to our affiliates for their own marketing purposes, you may direct us not to make those disclosures (other than disclosures permitted by law) by opting out. If you wish to opt out of these disclosures, you may call the following toll-free number: , ext If two or more customers jointly have an account with us, we will treat an opt-out direction by one of those customers as applying to all of the associated joint customers. California and Vermont Customers For an account with a primary mailing address in California, we will not disclose your personal information to nonaffiliated third parties except as permitted by California law. We will also limit the sharing of personal information about you with our affiliates to comply with California privacy laws. You may restrict our sharing of personal information with our affiliates by calling our aforementioned toll-free number. For an account with a primary mailing address in Vermont, we will not disclose your personal information to nonaffiliated third parties or our affiliates except as permitted by Vermont law. For both California and Vermont, we are permitted to share non-public personal information with nonaffiliated third parties and our affiliates to process transactions and service your account. American Portfolios Advisors, Inc. 8 of 9 Updated November 2011

9 BUSINESS CONTINUITY PLAN (Disaster Recovery) Our Plan is located at Please contact your AP representative if you require a paper copy. Amended 9/2008 American Portfolios Advisors, Inc. (APA), registered investment advisor, strongly believes in protecting the confidentiality and security of information we collect about you. This notice refers to APA by using the terms us, we, or our. This notice describes our privacy policy and describes how we treat the information we receive about you. Why We Collect and How We Use Information We collect and use information for business purposes with respect to our business relationships involving you. These business purposes include evaluating a request for products or services, administering our products or services, and processing transactions requested by you. We may also use information to offer you other products or services we provide. How We Collect Information We get most information directly from you. The information that you give us when applying for our products or services generally provides the information we need. If we need to verify information or need additional information, we may obtain information from third parties. Information collected may relate to your finances, employment, avocations, or other personal characteristics as well as your transactions with us or with others. How We Protect Information We treat information in a confidential manner. Our employees, registered representatives, and investment advisor representatives acting on our behalf are required to protect the confidentiality of information. These representatives may access information only when there is an appropriate reason to do so, such as to administer or offer our products or services. We also may maintain physical, electronic, and procedural safeguards to protect information; these safeguards comply with all applicable laws. Employees, registered representatives, and investment advisor representatives are required to comply with our established policies. Information Disclosure We may disclose information when we believe it necessary for conducting our business or where disclosure is required by law. For example, information may be disclosed to others to enable them to provide business services for us, including general administrative activities and assisting us in processing a transaction requested by you. Information may also be disclosed for audit or research purposes, or to law enforcement and regulatory agencies to help us prevent fraud. Information may be disclosed to others that are outside APA, such as companies that process data for us or companies that provide general administrative services for us. We make other disclosures of information as permitted by law. Information may also be shared with our affiliates so that they may offer you their products or services. We may also provide information to (i) certain nonaffiliates, such as marketing companies, to assist us in offering our products and services to you, and (ii) nonaffiliated financial services companies with which we have a joint marketing agreement, such as an agreement with another broker-dealer or registered investment advisor to enable us to offer you certain of its products or services. We do not make any other disclosures of information to other companies who may want to sell their products or services to you. For example, we will not sell your name to catalogue companies. We may disclose any information, other than a consumer report or health information, for the purposes described in this paragraph. Access to and Correction of Information Generally, upon your written request, we will make information available for your review. Information collected in connection with, or in anticipation of, any claim or legal proceeding will not be made available. If you notify us that the information is incorrect, we will review it. If we agree that is incorrect, we will correct our records. If we do not agree that it is incorrect, you may submit a short statement of dispute, which we will include in any future disclosure information. Further Information In addition to any other privacy notice we may provide, a recently enacted federal law established new privacy standards and required us to provide this summary of our privacy policy. You may have additional rights under other applicable laws. For additional information regarding our privacy policy, please write to us at 4250 Veterans Memorial Highway, Suite 420E, Holbrook, NY American Portfolios Advisors, Inc. 9 of 9 Updated November 2011