EX-99.(e)
DODGE & XXX FUNDS
DISTRIBUTING AGENT AGREEMENT
Sir/Madam:
Dodge & Xxx Funds, a Delaware Business Trust ("we" "us" or "Trust"), is the
distributor of the shares of the Dodge & Xxx family of mutual funds
(collectively, the "Funds" and individually, a "Fund"). As such, we have the
exclusive right to arrange for the sale of shares of the Funds to dealers or the
public, or both. We invite you to become a distributing agent to distribute
shares of the Funds upon the following terms and conditions.
1. Availability of Fund Shares. As distributor of the Funds, we agree to
cause the Funds to sell to, redeem from and exchange for you as agent for your
customers shares of beneficial interest ("Shares") of one or more Funds, subject
to the terms and conditions of this Distributing Agent Agreement (the
"Agreement"), the Funds' then-current prospectus, any limitations imposed by any
of the Funds or the investment advisor of the Funds. To the extent that a
prospectus contains provisions that are inconsistent with the terms of this
Agreement, the terms of the prospectus shall control.
2. Purchase and Sale of Fund Shares.
(a) The public offering price at which you may offer the Shares is the net
asset value thereof, as computed from time to time as described in the then-
current prospectus of the Fund. You agree to sell Shares of the Funds to your
clients subject to minimum investment requirements applicable to each order,
unless you register your client purchases in your name and omnibus account as
nominee. You understand that all orders are subject to acceptance or rejection
by us in our sole discretion.
(b) Each transaction is always made subject to confirmation by us at the
net asset value next computed after receipt of the order. You agree to notify
the Funds' transfer agent of any material differences within twenty (20)
Business Days of receipt of the confirmation or statement of transaction
activity. Subject to Section 2(e) below, orders to purchase, redeem and
exchange Fund Shares ("Orders") received by you prior to the close of regular
trading (the "Close of Trading") on the New York Stock Exchange (the "Exchange")
on any given business day (currently 4:00 p.m. Eastern time) (each a "Business
Day") and transmitted to the Funds' transfer agent by 8:00 p.m. Eastern time on
the same Business Day will be executed at the net asset value determined as of
the Close of Trading on the Business Day you received such Order. Any Order
received by you after the Close of Trading will be transmitted to the transfer
agent by 8:00 p.m. Eastern time on the next Business Day and will be executed at
the net asset value determined as of the Close of Trading on the next Business
Day.
(c) The day as of which an Order is executed pursuant to the provisions set
forth above is referred to as the "Trade Date".
(d) Any Order by you for the purchase of shares of the Funds through us
shall be accepted at the time when it is received by us, the Funds' transfer
agent or any clearinghouse agency we may designate from time to time, unless
rejected by us or the Funds' transfer agent. We will not accept any Order from
you that is placed on a conditional basis or is subject to any delay or
contingency prior to execution.
(e) Shares will be issued by the Funds only against receipt of the purchase
price. If payment for Shares purchased is not received by the Funds' transfer
agent by wire transfer (or if such purchase is processed through a clearinghouse
agency approved by us, in collected clearinghouse agency funds) on the Business
Day next following the Trade Date ("T+1"), such Order will be delayed without
any responsibility or liability on our part or on the part of the Funds or the
Funds' transfer agent and such Order will be executed at the net asset value
next computed following receipt of payment. You shall be responsible for any
loss, expense, liability or damage, including loss of profit suffered by us and
/or the respective Funds resulting from your delay or failure to make timely
payment for such Shares.
(f) You agree not to withhold placing Orders received from any customers
for the purchase or sale of Shares so as to profit yourself as a result of such
withholding. You shall not purchase Shares through us except for the purpose of
covering purchase orders received by you. You agree to purchase Shares only
from us or your customers. If you purchase Shares from your customers, you
agree to pay such customers not less than the applicable redemption price as
established by the Fund's then-current prospectus (i.e., the currently quoted
net asset value).
(g) The procedures relating to the processing and settlement of Orders
shall be subject to such instructions, service or operating agreements as we may
forward to you from time to time.
3. Qualification as a Broker or Dealer or a Bank. You represent that you
either (i) are registered as a broker and/or dealer under the Securities
Exchange Act of 1934, as amended, and are licensed and qualified as a broker
and/or dealer or are otherwise authorized to offer and sell the Shares under the
laws of each jurisdiction in which the Shares will be offered and sold by you,
and that you are a member of the National Association of Securities Dealers,
Inc. ("NASD") and agree to maintain such membership (or in the alternative, that
you are a foreign dealer not eligible for membership in the NASD); or (ii) are a
bank as defined in Section 3(a)(6) of the Securities Exchange Act of 1934, as
amended, and in either case are duly authorized to engage in the activities to
be performed by you hereunder. You further represent that your agents and
employees are and will remain duly registered and licensed to the extent
required under applicable state and federal law. You agree to abide by all
applicable state and federal laws and the rules and regulations of the
Securities and Exchange Commission ("SEC"), the NASD, and any other authorized
regulatory agency as such laws and rules apply to a national bank that are
binding upon underwriters and dealers in the distribution of securities of open-
end investment companies, including, without limitation, Rule 2830 (formerly
Article III, Section 26) of the NASD Rules of Fair Practice, all of which are
incorporated herein as if set forth in full. You agree not to sell or offer for
sale Shares in any state or jurisdiction where they have not been qualified for
sale or in which you are not qualified as a broker, dealer or bank. You agree to
notify us immediately if you cease to be registered or licensed as a broker
and/or dealer or fail to remain as a member in good standing of the NASD, or if
you cease to be a bank, as defined above.
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4. Selling Procedures and Sales Materials.
(a) "Sales Material", as used herein, shall include, without limitation,
promotional materials, sales literature, advertisements, press releases,
announcements, research reports, market letters, performance reports or
summaries, and other similar materials, including sales materials intended for
wholesale use (i.e. broker/dealer use only) or retail use.
(b) Neither you nor any person associated with you shall give any
information or make any representation concerning the Funds or the Shares except
those contained in the then-current prospectus or any Sales Materials furnished
by us or approved by us in writing in advance for use in connection therewith
(except that Sales Materials provided by us that are designated as being for
broker/dealer use only may not be disseminated to the public). Any Sales
Materials, if distributed, must be accompanied by or preceded by, the
appropriate Fund's then-current form of prospectus. You agree that any
information given or representations made on the basis of any Sales Materials
shall be consistent with the related information and representations contained
in the applicable Fund prospectus.
(c) You agree to use your best efforts in the proper instruction and
training of all sales personnel employed by you in order that the Shares will be
offered in accordance with the terms and conditions of this Agreement and all
applicable laws, rules and regulations. You agree to hold us, our affiliates,
and the Funds, and our respective agents and employees, harmless and indemnify
us against any direct liability, loss or cost to us and/or the Funds in the
event you or any of your representatives should violate any applicable law, rule
or regulation, or any provisions of this Agreement, if such violation results in
any liability, loss or cost to us and/or the Funds, except to the extent such
liability, loss or cost is caused by our gross negligence or bad faith.
(d) We shall furnish you, without charge, reasonable quantities of
prospectuses, statements of additional information, periodic reports to
shareholders and proxy statements of the Funds, and any supplemental materials
to any of the foregoing. You shall deliver copies of the above materials to
customers and potential customers in accordance with applicable law and the
rules and regulations of the SEC. In the purchase of Shares through us, you are
entitled to rely only on the information contained in the prospectuses and
statements of additional information.
5. Additional Covenants and Representations.
(a) Each party shall comply with all provisions of federal and state laws
applicable to its respective activities under this Agreement. All obligations
of each party under this Agreement are subject to compliance with applicable
federal and state laws.
(b) You covenant and agree that all Orders transmitted to us, whether by
telephone, telecopy, or other electronic transmission acceptable to us, shall be
sent by or under the authority and direction of a person designated by you as
being duly authorized to act on behalf of the owner of the Shares held in your
accounts for your customers' benefit. We shall be entitled to rely on the
existence of such authority and to assume that any person transmitting Orders
for the purchase, redemption or transfer of Fund shares on behalf of you is "an
appropriate person" as used in Sections 8-107 and 8-401 of the Uniform
Commercial Code with respect to the transmission of instructions regarding Fund
Shares on behalf of the owner of such Fund Shares. You shall maintain the
confidentiality of all passwords and security procedures issued, installed or
otherwise put in place with respect to the use of remote computer terminals and
assume full
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responsibility for the security therefor. You further agree to be responsible
for the accuracy of all data transmitted to us by you by telephone, telecopy or
other electronic transmission acceptable to us.
(c) You represent and warrant that (i) this Agreement has been duly
authorized by all necessary corporate action and, when executed and delivered,
shall constitute your legal, valid and binding obligation, enforceable in
accordance with its terms; and (ii) your activities as contemplated by this
Agreement comply with all provisions of federal and state securities laws
applicable to you and to such activities.
(d) We represent and warrant that (i) this Agreement has been duly
authorized by all necessary corporate action and, when executed and delivered,
shall constitute our legal, valid and binding obligation, enforceable in
accordance with its terms; (ii) Shares of the Funds are registered and
authorized for sale in accordance with all federal and state securities laws;
and (iii) the prospectus of each Fund complies in all material respects with
federal and state securities laws.
6. Relationship of Parties. You understand and agree that in performing
your services covered by this Agreement, you are acting as agent for your
customers, and we are in no way responsible for the manner of your performance
or for any of your acts or omissions in connection therewith. Nothing in this
Agreement shall be construed to constitute us or any of our agents, employees or
representatives as your agent, partner, or employee. As distributor of the
Funds, we shall have full authority to take such action as we deem advisable in
respect of all matters pertaining to the distribution of the Shares. We shall
not be under any obligation to you, except for obligations expressly assumed by
us under this Agreement.
7. Indemnity.
(a) We agree to indemnify and hold harmless you and your officers,
directors, employees, agents, affiliates and each person, if any, who controls
you within the meaning of the Securities Act of 1933 (collectively, the
"Indemnified Parties" for purposes of this Section 7(a)) against any losses,
claims, expenses, damages, or liabilities (including amounts paid in settlement
thereof) or litigation expenses (including legal and other expenses)
(collectively, "Losses"), to which the Indemnified Parties may become subject,
insofar as such Losses result from a breach by us of a material provision of
this Agreement. We will reimburse any legal or other expenses reasonably
incurred by the Indemnified Parties in connection with investigating or
defending any such Losses. We shall not be liable for indemnification hereunder
if such Losses are attributable to your negligence or misconduct in performing
your obligations under this Agreement.
(b) You agree to indemnify and hold harmless us and the Funds, and our
officers, trustees, employees, agents, affiliates and each person, if any, who
controls us or the Funds within the meaning of the Securities Act of 1933
(collectively, the "Indemnified Parties" for purposes of this Section 7(b))
against any Losses to which the Indemnified Parties may become subject, insofar
as such Losses result from a breach by you of a material provision of this
Agreement. You agree to reimburse any legal or other expenses reasonably
incurred by the Indemnified Parties in connection with investigating or
defending any such Losses. You shall not be liable for indemnification
hereunder if such Losses are attributable to our negligence or misconduct in
performing our obligations under this Agreement.
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(c) Promptly after receipt by an Indemnified Party hereunder of notice of
the commencement of action, such Indemnified Party will, if a claim in respect
thereof is to be made against the Indemnifying Party hereunder, notify the
Indemnifying Party of the commencement thereof; but the omission so to notify
the Indemnifying Party will not relieve it from any liability which it may have
to any Indemnified Party otherwise than under this Section 7. In case any such
action is brought against any Indemnified Party, and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein and, to the extent that it may wish to, assume
the defense thereof, with counsel satisfactory to such Indemnified Party, and
after notice from the Indemnifying Party to such Indemnified Party of its
election to assume the defense thereof, the Indemnifying Party will not be
liable to such Indemnified Party under this Section 7 for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the Indemnifying Party assumes the defense of any such action, the
Indemnifying Party shall not, without the prior written consent of the
Indemnified Parties in such action, settle or compromise the liability of the
Indemnified Parties in such action, or permit a default or consent to the entry
of any judgment in respect thereof, unless in connection with such settlement,
compromise or consent, each Indemnified Party receives from such claimant an
unconditional release from all liability in respect of such claim.
(e) The Trust Instrument, a copy of which, together with all amendments
thereto, is on file in the Office of the Secretary of State of the State of
Delaware, provides that the name "Dodge & Xxx Funds" refers to the Trustees
under the Trust Instrument collectively as Trustees and not as individuals or
personally, and that no shareholder of the Fund, or Trustee, officer, employee
or agent of the Trust, shall be subject to claims against or obligations of the
Trust or of the Fund to any extent whatsoever, but that the Trust estate only
shall be liable. You are hereby expressly put on notice of the limitation of
liability as set forth in the Trust Instrument and you agree that the
obligations assumed by the Trust on behalf of the Fund pursuant to this
Agreement shall be limited in all cases to the Fund and its assets, and you
shall not seek satisfaction of any such obligation from the shareholders or any
shareholder of the Fund or any other series of the Trust, or from any Trustee,
officer, employee or agent of the Trust. You understand that the rights and
obligations of each Fund, or series, under the Trust Instrument are separate and
distinct from those of any and all other series.
8. Amendment. This Agreement may be amended by mutual agreement of the
parties in writing.
9. Termination. Either of us may cancel this Agreement upon 30 days'
prior written notice to the other. This Agreement shall terminate automatically
without notice if you cease to be a member of the NASD or such time as you cease
to be a bank, as defined above. We reserve the right, in our sole discretion
and without prior notice, to suspend sales of Shares of the Funds in any state
or other jurisdiction, or to withdraw entirely the offering of Shares of the
Funds, or to modify or amend the terms of our offering of Fund Shares.
10. Notices and Communications. All communications and notices to us
should be sent to the address set forth below. Any communication or notice to
you will be mailed to you at the address specified by you below or will be sent
by telecopy if a phone number is provided below.
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If to us: Dodge & Xxx Funds
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxx@xxxxxxxxxxx.xxx
Attn: Xxxxxx X. Xxxxxxx
With a copy to: General Counsel
If to you:
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Phone:
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Fax:
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Attn:
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11. Assignability. This Agreement is not assignable or transferable,
except that we may, with respect to any Fund or Funds, assign or transfer it to
any successor of ours that becomes general distributor of such Fund or Funds.
12. Confidentiality. We agree not to use any information provided to us
by you about your customers for any purpose except as necessary to comply with
the provisions of this Agreement; provided, however, that we may use any such
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information which we already possess or later receive through any other source,
including the purchase of potential client lists from third parties, as we deem
fit.
13. Choice of Law. This Agreement shall be governed by and its provisions
shall be construed in accordance with the laws of the State of Delaware (without
reference to conflicts of laws principles).
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If the foregoing correctly sets forth our understanding, please indicate
your agreement to and acceptance thereof by signing below, whereupon this
Agreement shall become a binding agreement between us as of the latest date
indicated.
Dated: , 200 DODGE & XXX FUNDS
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By:
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Name:
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Title:
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We agree to and accept the terms of the foregoing Agreement.
Dated: , 200 ----------------------------------
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By:
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Name:
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Title:
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