Exhibit (m)(4)
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
You have invited us to become a selected dealer to distribute shares of the
open-end investment companies listed on Schedule A hereto, as amended from time
to time in accordance with paragraph 10 (d) hereunder (hereinafter collectively
referred to as the "Funds" or, individually, as the "Fund"), for which you are
the principal underwriter and distributor on the following terms:
1. Purchases of Fund Shares for Sale to Customers
(a) We agree that all purchases by us from you shall be made only to cover
orders received by us from our customers, or for our own bona fide investment.
We agree that except for shares of the Funds sold by us to or purchased by us
from customers, we will purchase shares of the Funds only through you and not
from any other sources and will sell shares only to you or one of the Funds.
(b) We agree to sell shares of the Funds to our customers subject to
minimum investment requirements applicable to each order and at the applicable
public offering price described in the prospectus and statement of additional
information of such Fund in effect on the date of the sale (the
prospectus and statement of additional information as of any such sale date or
of any applicable redemption or repurchase date being sometimes referred to
together herein as the "then current prospectus"), provided, however, that it is
understood that we assume no responsibility or liability for the determination
of such price.
(c) We shall not withhold placing orders received from our customers so as
to profit ourself as a result of such withholding (e.g., by a change in the net
asset value from that used in determining the public offering price to our
customers). We shall not purchase shares of any of the Funds other than for
investment, except for the purpose of covering purchase orders already received.
(d) We understand that all orders are subject to acceptance or rejection by
you or the Fund in the sole discretion of either. No conditional order will be
accepted by the Fund on any basis other than a definite price. The handling of
orders by the parties shall be subject to such procedures as may be mutually
agreed upon from time to time.
(e) Payment for Fund shares purchased by us shall be made on the settlement
date specified in your confirmation by New York Clearing House Funds or by
Federal Funds wire. If such payment is not received by you, you reserve the
right, without notice, either to cancel the sale, or, at your option, to sell
the shares ordered back to such Fund, and in either case, we shall reimburse you
for any direct loss suffered by you or by such Fund resulting from our failure
to make payment as aforesaid.
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2. Selling Procedures/Sales Materials
(a) "Sales Material," as used herein, shall include, without limitation,
promotional materials, sales literature, advertisements, press releases,
announcements, circulars, research reports, market letters, performance reports
or summaries, form letters, posters, signs and other similar materials, whether
in print, hypertext, video, audio or other media, and any items derived from the
foregoing, and including sales materials intended for wholesale use (i.e.,
broker/dealer use only) or retail use.
(b) We shall not make any representation concerning the Funds or their
securities except those contained in the then current prospectus or any Sales
Materials furnished by you relating to the Funds. (We assume no responsibility
or liability for representations contained in any of such documents.) You agree
to notify us in writing at the address specified in paragraph (c) of any change
to the prospectus or statement of additional information of each Fund,
specifying such change, at least 10 days before making such change, provided
that if such notice is not reasonably practicable, you may provide us with the
required notice within such other period as is reasonable under the
circumstances, but, in any event, not later than concurrently with such change.
(c) You agree to supply to us at your expense additional copies of the
prospectus, statement of additional information, shareholder materials, periodic
reports and proxy statements for each of the Funds and any printed supplemental
material in reasonable quantities upon request We agree to
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deliver copies of the above materials to customers and potential customers in
accordance with applicable law and the rules of the Securities and Exchange
Commission ("SEC"). Further, you agree to provide to our Mutual Funds Marketing
Department (the "Marketing Department") copies of the most recent amended or
supplemented prospectus and statement of additional information of each Fund,
and such other SEC filing as we may request, in reasonable quantities upon our
request. Such materials shall be mailed to us at Xxxxxxx Xxxxx Mutual Funds
Marketing, Attention: Mutual Funds Administration, 000 Xxxxxxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000
(d) You agree not to distribute any Sales Materials (other than copies of
the then current prospectus) to any of our employees or sales offices unless the
distribution of such materials has been approved in writing by our Marketing
Department in accordance with written procedures (as amended from time to time)
distributed by the Marketing Department. In approving such materials for
distribution within our offices or through our sales offices to our customers,
we assume no responsibility or liability for the representations or any
omissions contained in any Sales Materials nor for representations or any
omissions contained in the prospectus or statement of additional information
relating to the Fund.
(e) With the exception of (i) listings of product offerings; (ii) materials
in the public domain (e.g., magazine articles and trade publications); and (iii)
materials used by us on the internal basis only, we agree not to furnish or
cause
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to be furnished to any third parties or to display publicly or publish any Sales
Materials, except such Sales Materials relating to the Fund as may be
distributed to us by you or approved for distribution by you upon our request.
(f) With respect to Funds offering multiple classes of shares subject to
differing sales charges, we have established compliance procedures designed to
ensure that our customers are aware of the available methods of mutual fund
financing and to ensure proper supervision of mutual fund recommendations.
3. Redemption/Repurchase/Transfer of Fund Shares and Exchanges
(a) If we purchase shares from our customers for redemption by the Fund or
repurchase by you, we agree to pay such customers not less than the applicable
redemption price (i.e., the currently quoted net asset value minus any
applicable sales charges or redemption fees) determined as set forth in the then
current prospectus of the Fund, provided, however, that it is understood that we
assume no responsibility or liability for the determination of such price.
(b) We shall not withhold placing redemption or repurchase orders received
from our customers so as to profit ourself as a result of such withholding
(e.g., by a change in the net asset value from that used in determining the
public offering price to our customers).
(c) Redemption and repurchase orders are subject to the terms and
conditions set forth in each Fund's current prospectus and such additional
procedures, consistent therewith, as may be mutually agreed upon from time to
time, provided that any order placed by us regarding the redemption or
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repurchase of Fund shares is subject to timely receipt by you or the Fund's
shareholder service agent of all required documents.
(d) Where shares of a Fund are held in the name of our customer directly at
the Fund's shareholder service agent with us listed as the broker-dealer of
record, and the customer requests that such shares be transferred to the name of
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") as nominee,
you undertake to provide to us as soon as is practicable the account history in
connection with processing a transfer request. Following a period of ten days
after we request such information pursuant to this subparagraph, you agree to
pay a fee of $5 per order for each information request that is outstanding for
the next 30 days or less. For information requests outstanding after the
expiration of 30 days following the initial five day period, you agree to pay an
additional monthly fee of $20 per order for every additional 30 days that such
information request remains outstanding. Such fee will be payable to us upon
your receipt of our xxxx related thereto.
(e) Exchanges of shares between Funds will be effected in the manner and
subject to the restrictions and charges described in the then current
prospectuses of the relevant Funds. The handling of exchanges will be further
subject to such other procedures, consistent with the current prospectus, as may
be mutually agreed upon from time to time.
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4. Pricing Errors
You agree to notify us promptly whenever an error is made in the pricing of
shares of a Fund and to indemnify us and hold us harmless against any and all
losses, claims, damages, liabilities or expenses (including, but not limited to,
any direct losses (but not any indirect or consequential damages) suffered by
our clients and any additional costs and expenses related to the price
correction, such as research costs, expenses related to developing computer
software specifically for the price correction, processing overtime and notices
to customers) to which we may become subject insofar as any such loss, claim,
damage, liability or expense arises out of or is based on any material error
made in the pricing of shares of a Fund. To the extent such costs and expenses
are expected to exceed $15,000 in respect of any one pricing error we shall give
you notice of such expectation. Payment shall be made by you promptly upon
receipt of a xxxx from us stating the indemnifiable costs of the price
correction and the expenses related thereto. In determining materiality for the
purposes of this provision, we agree to follow the pricing error guidelines that
the Securities and Exchange Commission has accepted for the net asset value
materiality standard.
5. Compensation
(a) We understand that you will compensate us only in the case of purchases
made for our customers, and then only where (i) an order for the purchase of
securities is obtained by a registered representative in the employ of Xxxxxxx
Xxxxx & Co., Inc. ("ML & Co.") or a direct or indirect subsidiary or other
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affiliate thereof and remitted to you promptly by us; (ii) a subsequent
investment is made to an account established by registered representative of ML
& Co. or other affiliate thereof; (iii) a subsequent investment is made to an
account established by a broker-dealer other than us and is accompanied by a
signed request from the account shareholder that a registered representative in
the employ of ML & Co. or a direct or indirect subsidiary or other affiliate
thereof is to be named as broker-dealer of record in such account; or (iv)
shares of a Fund are held by a customer directly at the Fund's shareholder
service agent where we are listed as the broker-dealer of record.
(b) We understand and agree that the applicable sales charge (whether
assessed on a front-end or deferred basis) and the dealer concession payable to
us for the sale of each class of shares of each Fund will be in an amount as set
forth in the then current prospectus of the Fund or, in the alternative, as set
forth in Schedule B hereto, as amended from time to time by mutual agreement of
the parties. The parties agree that the applicable sales charge and dealer
concession for any Fund added by amendment to this Agreement shall be the sales
charge and dealer concession as set forth in the then current prospectus of such
Fund or, in the alternative, as set forth in an amendment to Schedule B. If,
with respect to a redemption of any Class B shares or Class D shares sold by us,
the CDSL is waived because the redemption qualifies for a waiver set forth in a
Fund's prospectus, we shall promptly remit to you, upon your request, an amount
equal
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to the payment made, if any, by us to you at the time of sale with respect to
such Class B shares or Class D Shares.
(c) We understand and agree that in accordance with paragraph (b), shares
may be purchased by our customers pursuant to a right of accumulation, a letter
of intention, or other circumstance permitting a reduction or waiver of any
applicable sales charge or dealer concession; however, if our customer fails to
fulfill a letter of intention, you will pay us the amount required to reflect
the appropriate concession based on actual purchases made by the customer. We
agree to advise you of any letter of intention executed by our customers or any
available right of accumulation in accordance with applicable procedures.
(d) In the case of any sale of shares of a Fund for which a front-end sales
charge is waived because of the size of the purchase, you agree to pay to us a
"finder's fee" in such amount as set forth in the then current prospectus of the
Fund or as agreed upon by us in Schedule B. Such fee will be payable on the 5th
and 20th of each month for all settled trades.
(e) Certain of the Funds have adopted or may, in the future, adopt a plan
(the "Plan") pursuant to Rule 12b-1 under the Investment Company Act of 1940
(the "1940 Act"). To the extent we provide services under the terms of the Plan
in connection with the sale of a Fund's shares or servicing of the accounts of
our customers, you shall pay us a fee upon the terms and conditions as set forth
in the Plan and in the then current prospectus of such Fund. This provision (a)
shall remain in effect, with respect to a Fund, only so long as such continuance
is specially approved at least annually by a vote of the board of directors or
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trustees who are not "interested persons" (as defined in the 0000 Xxx) of the
Fund and have no direct or indirect financial interest in the operation of the
Plan adopted by such Fund or in any agreement related thereto cast in person at
a meeting called for the purpose of voting on such approval and (b) will be
terminable, without penalty, at any time by such Fund by a vote of a majority of
the Disinterested Directors or by vote of a majority of the voting securities
(as such term in defined is the 1940 Act) of such Fund upon 60 days written
notice to you. This provision will also automatically terminate in the event of
assignment of this Agreement. To the extent the Plan is terminated for any
reason, including without limitation, failure of the Plan to be approved
annually in accordance with the 1940 Act, you agree to negotiate with us an
appropriate asset-based fee that is reasonable with respect to the services
provided by us.
(f) In addition to the fees discussed above and notwithstanding any
termination of a Plan as described in paragraph (e), you shall pay us a fee as
set forth in Schedule D hereto in exchange for which we will provide the
services listed in Schedule D. Any obligation previously incurred under
paragraphs (a) through (f) shall survive the termination of this Agreement.
6. NASD Membership
(a) You and we are registered and/or licensed as a broker and/or dealer
under the federal and applicable state laws. You and we represent and warrant to
each other that you and we are each members of the National Association of
Securities Dealers, Inc. (the "NASD").
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(b) Each of us agrees to notify the other immediately if we cease to be
registered or licensed as a broker or dealer or fail to be a member in good
standing of the NASD. Termination of such membership at any time shall terminate
this Agreement forthwith regardless of any other provisions of this Agreement.
(c) You and we agree to abide by the rules and regulations of the NASD,
including, without limitation, Section 26 of Article III of the NASD Rules of
Fair Practice.
7. Compliance with Regulatory Requirements
You represent and warrant to us the following:
(a) Each Fund has filed a registration statement (a "Registration
Statement") with the SEC relating to its shares under the Securities Act of 1933
(the "1933 Act") on Form N-lA, including a prospectus and a statement of
additional information. The Registration Statement (including the prospectus and
the statement of additional information) conforms in all respects to the
requirements of the 1933 Act, the 1940 Act and the rules thereunder.
(b) To the extent required by law, each Fund is registered and its shares
are qualified for sale in all states and other jurisdictions in the United
States unless we are notified in writing to the contrary. We may rely solely on
such representation in selling the shares, but you assume no responsibility or
obligation as to our right as a broker-dealer to sell shares of the Funds in any
state or jurisdiction.
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(c) The then current prospectus for each of the Funds contains such
disclosure with respect to fees paid and charges imposed in connection with the
sale of the Fund shares as is necessary to comply with the rules and regulations
of the NASD, including, without limitation, disclosure of all compensation of
the type described in paragraph 5 hereof as required by Rule 2830 of Conducts
Rules. Such fees and charges will be in compliance with the rules and
regulations of the NASD, including, without limitation, Rule 2830 of Conduct
Rules of the NASD Rules of Fair Practice.
(d) Each investment adviser of each Fund is registered as an investment
adviser under the Investment Advisers Act of 1940 and in any state where
registration is required.
(e) The Registration Statement (including the prospectus and statement of
additional information) and any Sales Materials relating to the Fund provided
by you to us do not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
(f) All Sales Materials will comply in all material respects with the rules
and regulations of the SEC, the NASD and any states having such rules and
regulations and will be filed with the NASD or SEC and the relevant states if
and as required by the rules and regulations of the NASD, the SEC and such
states, respectively.
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(g) The foregoing representations and warranties will be true and correct
at all times during the term of this Agreement (with references to the
Registration Statement being deemed to refer to the Registration Statement in
effect at the time such reference is made and to the then current prospectus of
the Fund).
8. Indemnification
(a) You agree to indemnify us (for the purposes of this Section 8, "us" and
"we" shall mean Xxxxxxx Xxxxx, the officers, directors and employees of Xxxxxxx
Xxxxx, and any person who is or may be deemed to be a controlling person of
Xxxxxxx Xxxxx) and hold us harmless against any and all losses, claims, damages,
liabilities or expenses (including the reasonable costs of investigation and
reasonable attorney's fees and expenses as such expenses are incurred by us in
any action or proceeding between the parties hereto or between us and any third
party) to which we may become subject under the 1933 Act, the 1940 Act, or
otherwise, insofar as any such loss, claim, damage, liability or expense (or
actions with respect thereto) arises out of or is based on any untrue statement
of a material fact or alleged untrue statement of a material fact contained in
any Registration Statement of the Fund (including any prospectus or statement of
additional information which is part of any such Registration Statement) or any
amendment or supplement thereto or in any Sales Material relating to the Fund
provided to us by you (whether or not we have approved the use of such Sales
Materials), or arises out of or is based on the omission or the alleged omission
to
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state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading. This indemnity agreement will be in
addition to any liability which you may otherwise have. No indemnity by you
hereunder shall apply in respect of any prospectus, statement of additional
information or Sales Materials used at a time not authorized under the 1933 Act
or the regulations adopted thereunder or otherwise because of conflict with the
NASD advertising rules relating to the timeliness of Sales Materials provided
that you have informed us in writing that there is no such authorization.
(b) If we seek indemnity under this Section we shall, promptly after
receipt of notice of commencement of any action, suit or proceeding against us,
give written notice of the commencement of such action, suit or proceeding to
you, but the omission so to notify you shall not relieve you from any such
obligation you may otherwise have. In case such notice of any such action shall
be so given, you shall be entitled to participate at your own expense in the
defense, or, if you so elect, to assume the defense of such action, in which
event such defense shall be conducted by counsel (satisfactory to us) chosen by
you; provided, however, that you shall not have the right to assume the defense
of any action in which the named parties (including any implied parties) include
both you and us and in which counsel to either of us has advised that there may
be legal defenses available to us which are different from or in addition to
those available to you. If you do not elect to assume the defense of such action
and in cases where separate counsel is retained because of the availability of
different
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defenses, you will reimburse us for the reasonable fees and expenses of any
counsel retained by us. Payment (other than the reimbursement of our legal and
other related fees and expenses, which will be payable to us upon your receipt
of our xxxx related thereto) shall be made upon any final determination of
liability resulting from such claim or misstatement or omission by a court,
panel of arbitrators, administrative agency or self-regulatory organization, or
upon any settlement of any dispute, the subject of which involves such a claim.
In any action in which you have elected to assume the defense, we shall bear the
fees and expenses of any additional counsel we retain, unless either of us has
retained separate counsel because there are legal defenses available to one of
us which are different from or in addition to those available to the other of
us, in which case you shall bear the fees and expenses of our counsel as well.
(c) This Section 8 shall survive the termination of this Agreement.
9. Termination
Either party hereto may cancel this Agreement upon 30 days' prior written
notice to the other. This Agreement shall be in substitution of any prior
agreement between us regarding the distribution of these shares.
10. Miscellaneous
(a) We understand and agree that we are acting as principal under this
Agreement, and that we are not for any purpose employed or retained as or
authorized to act as broker, agent or employee of any Fund or affiliate of such
Fund. Neither party is in any way responsible for the manner of the other's
15
performance or for any of the other's acts or omissions in connection therewith.
Nothing shall constitute us as a syndicate, association, joint venture,
partnership, unincorporated business, or other separate entity or otherwise
partners with you.
(b) Each Fund reserves the right in its discretion and you reserve the
right, in your discretion and without notice to us, subject to applicable law,
to suspend sales or redemptions or to withdraw the offering of shares of the
Fund.
(c) All communication shall be sent to us at our offices at Xxxxxxx Xxxxx
Mutual Funds Marketing, Attention: Mutual Funds Administration, 000 Xxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 and to you at the address you have
provided at the end of this Agreement. Notice shall be deemed to have been given
on the date it was either delivered personally to the other party or any officer
or member thereof or was either received by express delivery or telecopy (with
receipt) by the other party at his or her address specified in this Agreement.
Either party may change the address to which communications to it shall be sent
by giving notice thereof in accordance with this provision.
(d) This Agreement may be amended only by mutual agreement of the parties
in writing; provided however, that any amendment to Schedule A of this Agreement
to add additional Fund(s) shall be deemed effective and part of this Agreement
upon the first day of sale by us of any shares of such Fund(s).
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(e) This Agreement shall become effective as of the date when it is
executed and dated by you below. This Agreement shall be governed by the laws of
the State of New York without giving effect to conflict of law provisions.
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(f) If a dispute arises between us and you with respect to this Agreement
which the parties are unable to resolve themselves, it shall be settled by
arbitration in accordance with the then existing NASD Code of Arbitration
Procedure (the "NASD Code"). The parties agree, that to the extent permitted by
the NASD Code, the arbitrator(s) shall be selected from the securities industry.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
---------------------------------
(Authorized Signature)
---------------------------------
Name
---------------------------------
Title
Accepted:
Xxxxxxxx Financial Servicing, Inc.
By:
-----------------------------------
Name:
Title:
Address:
Date:
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SCHEDULE A
XXXXXXXX CAPITAL FUND, INC.
XXXXXXXX CASH MANAGEMENT FUND, INC.
XXXXXXXX COMMON STOCK FUND, INC.
XXXXXXXX COMMUNICATIONS AND INFORMATION FUND, INC.
XXXXXXXX FRONTIER FUND, INC.
XXXXXXXX GROWTH FUND, INC.
XXXXXXXX XXXXXXXXX GLOBAL FUND SERIES, INC.:
XXXXXXXX XXXXXXXXX INTERNATIONAL FUND
XXXXXXXX XXXXXXXXX EMERGING MARKETS GROWTH FUND
XXXXXXXX XXXXXXXXX GLOBAL GROWTH OPPORTUNITIES FUND
XXXXXXXX XXXXXXXXX GLOBAL SMALLER COMPANIES FUND
XXXXXXXX XXXXXXXXX GLOBAL TECHNOLOGY FUND
XXXXXXXX HIGH INCOME FUND SERIES:
SELIGMAN U.S. GOVERNMENT SECURITIES SERIES
SELIGMAN HIGH-YIELD BOND SERIES
XXXXXXXX INCOME FUND, INC.
XXXXXXXX MUNICIPAL FUND SERIES, INC.:
XXXXXXXX COLORADO MUNICIPAL SERIES
XXXXXXXX GEORGIA MUNICIPAL SERIES
XXXXXXXX LOUISIANA MUNICIPAL SERIES
SELIGMAN MARYLAND MUNICIPAL SERIES
SELIGMAN MASSACHUSETTS MUNICIPAL SERIES
SELIGMAN MICHIGAN MUNICIPAL SERIES
SELIGMAN MINNESOTA MUNICIPAL SERIES
SELIGMAN MISSOURI MUNICIPAL SERIES
SELIGMAN NATIONAL MUNICIPAL SERIES
SELIGMAN NEW YORK MUNICIPAL SERIES
SELIGMAN OHIO MUNICIPAL SERIES
SELIGMAN OREGON MUNICIPAL SERIES
SELIGMAN SOUTH CAROLINA MUNICIPAL SERIES
XXXXXXXX MUNICIPAL SERIES TRUST:
XXXXXXXX CALIFORNIA MUNICIPAL HIGH-YIELD SERIES
XXXXXXXX CALIFORNIA MUNICIPAL QUALITY SERIES
XXXXXXXX FLORIDA MUNICIPAL SERIES
XXXXXXXX NORTH CAROLINA MUNICIPAL SERIES
XXXXXXXX NEW JERSEY MUNICIPAL FUND
XXXXXXXX PENNSYLVANIA FUND SERIES, INC.
XXXXXXXX VALUE FUND SERIES, INC.
XXXXXXXX LARGE-CAP VALUE FUND
XXXXXXXX SMALL-CAP VALUE FUND
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