1
EXHIBIT (H)(16)
AGREEMENT DATED
NOVEMBER 10, 2000
BETWEEN
XXXXXXXX XXXXX FUNDS
AND
XXXXXXX, SACHS & CO.
This Agreement is made as of 10th day of November, 2000, between
Xxxxxxx, Xxxxx & Co. ("Goldman") and Xxxxxxxx Xxxxx Funds ("Fund Party").
WHEREAS, Fund Party is the investment adviser or distributor of
open-end investment companies (each a "Fund"); and
WHEREAS, Fund Party and Goldman wish to make shares of the Funds
available to Xxxxxxx'x clients subject to the provisions set forth below; and
WHEREAS, Goldman intends that certain purchase, redemption and exchange
orders for Fund shares on behalf of its clients will be placed through an
omnibus clearing relationship with a broker/dealer (the "Clearing Broker") that
has an account or accounts with the Funds and/or Fund Party for such purposes
under a direct contractual relationship with the Funds and/or Fund Party to
which Goldman is not a party (the "Fund Party/Clearing Broker Arrangement"); and
WHEREAS, Goldman also intends that other purchase, redemption and
exchange orders for Fund shares on behalf of some of its clients may be placed
by means other than through the Clearing Broker.
NOW, THEREFORE, in consideration of the premises and the mutual
promises set forth herein, and Goldman and Fund Party, intending to be legally
bound, agree as follows:
5. PLACEMENT AND PAYMENT OF ORDERS. With respect to purchase, redemption
and exchange orders for Fund shares on behalf of Goldman clients placed
through an omnibus clearing relationship with the Clearing Broker, the
rules and procedures for the placement and payment of these orders will
be governed solely and exclusively by the Fund Party/Clearing Broker
Arrangement.
6. INVESTMENT MINIMUMS. Goldman may waive any applicable account
investment minimums with respect to purchase orders for Fund shares
placed on behalf of its clients through the Clearing Broker pursuant to
the Fund Party/Clearing Broker Arrangement.
7. USE OF NAMES. Goldman is authorized to use the names or other
identifying marks of Fund Party and/or the Funds in connection with the
offer and sale of Fund shares. Fund Party may withdraw this
authorization as to any particular use of any such name or identifying
marks at any time (a) upon Fund Party's reasonable determination that
such use would have a material adverse effect on the reputation or
marketing efforts of Fund Party or such Funds, or (b) if any of the
Funds cease to be offered by Goldman; provided, however, that Goldman
may, in its discretion, continue to use materials prepared or printed
prior to the withdrawal of such authorization or in the process of
being prepared or printed at the time of such withdrawal.
1
2
8. BLUE SKY. Upon execution of this Agreement, Fund Party will advise
Xxxxxxx Xxxxx of the states and other jurisdictions in which shares of
the Funds are registered and qualified for sale. Thereafter, Fund Party
will promptly advise Xxxxxxx Sachs of any changes with respect to the
states and other jurisdictions in which shares of the Funds are
registered and qualified for sale.
9. CONFIDENTIALITY OF IDENTITY OF GOLDMAN CLIENTS. All information
relating to Xxxxxxx'x clients, including, but not limited to, the names
and addresses of Xxxxxxx'x clients, will remain Xxxxxxx'x sole property
and neither Fund Party, the Funds nor their respective directors,
trustees, officers, partners, employees, agents or affiliates may copy,
reproduce, sell, assign, license, market, transfer or otherwise dispose
of, give or disclose such information to third parties or use such
information for any purposes other than to provide services
contemplated by this Agreement. Fund Party and the Funds will advise
each of their respective directors, trustees, officers, partners,
employees, agents and affiliates who may be exposed to such proprietary
and confidential information to keep such information confidential.
This provision will survive expiration or termination of this
Agreement.
10. USE OF GOLDMAN NAMES. Fund Party and the Funds will not, without prior
written consent of Goldman in each instance, (a) use in advertising,
publicity or otherwise the name of "Xxxxxxx Xxxxx," including the name
of any affiliate, partner or employee of Goldman, nor any trade name,
trademark, trade device, service xxxx, symbol or any abbreviation,
contraction or simulation thereof owned by Goldman, including, without
limitation, "xx.xxx"; or (b) represent, directly or indirectly, that
any product or any service provided by Fund Party has been approved or
endorsed by Goldman. This provision will survive this termination of
this Agreement.
11. INDEMNIFICATION.
Indemnification of Goldman by Fund Party
Fund Party hereby agrees to indemnify and hold harmless Goldman, each
person, if any, who controls Goldman within the meaning of Section 15
of the Securities Act of 1933, and each of their directors, trustees,
officers, partners and employees from and against all losses,
liabilities, claims, demands, damages or expenses (including the
reasonable cost of investigating and defending against any claims
therefore and reasonable counsel fees incurred, but excluding
consequential damages) in connection with or arising out of: (a) any
failure of Fund Party, its employees, agents, directors, trustees,
officers, partners and/or affiliates, acting within or outside the
scope of their employment, to fully comply with the terms of this
Agreement; (b) any breach of any representation or warranty provided by
Fund Party in this Agreement; (c) any misleading or untrue or alleged
untrue statement of material fact contained in the registration
statements (including the related prospectuses and statements of
additional information), annual or other periodic reports or proxy
statement of the Funds, and any amendments or supplements thereto,
and/or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except to the extent that such statement or
omission is based upon information provided by Goldman for inclusion
therein; (d) any misleading or untrue or alleged untrue statement of
material fact contained in any advertising or sales literature prepared
or approved by or for Fund Party, its employees, agents, directors,
trustees, officers and/or affiliates, and/or any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except to
the extent that such statement or omission is based upon information
provided by Goldman for inclusion therein; and (e) any material breach
by Fund Party, its employees, agents, directors, trustees, officers
and/or affiliates, in connection with the offer or sale of shares of a
Fund, of any federal or state law including, without limitation, any
federal or state securities law; provided, that no such indemnification
will extend to any loss, liability, claim, demand,
2
3
damage or expense directly caused by the failure, act or omission of
Goldman, its employees, agents, directors, trustees, officers and/or
affiliates to comply with the terms of this Agreement.
Indemnification of Fund Party by Goldman
Goldman hereby agrees to indemnify and hold harmless Fund Party, and
each of its directors, trustees, officers, partners and employees from
and against all losses, liabilities, claims, demands, damages or
expenses (including the reasonable cost of investigating and defending
against any claims therefore and reasonable counsel fees incurred, but
excluding consequential damages) in connection with or arising out of:
(a) any failure of Goldman, its employees, agents, directors, trustees,
officers, partners and/or affiliates, acting within or outside the
scope of their employment, to fully comply with the terms of this
Agreement; (b) any breach of any representation or warranty provided by
Goldman in this Agreement; and (c) any advertising or sales literature
relating to a Fund or Fund Party that Goldman prepared and used without
Fund Party's consent except to the extent that the same is accurately
based on information published or provided by Fund Party or a Fund;
provided that no such indemnification shall extend to any loss,
liability, claim, demand, damage or expense directly caused by the
failure, act or omission of Fund Party, its employees, agents,
directors, trustees, officers and/or affiliates to comply with the
terms of this Agreement.
The indemnification provisions herein will survive the termination of
this Agreement.
12. AMENDMENT. This Agreement may be amended, modified or supplemented at
any time by mutual written agreement of the parties.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by a duly
authorized representative of each of the parties hereto as of the date first set
forth above.
XXXXXXXX XXXXX FUNDS XXXXXXX, SACHS & CO.
By: /s/ Xxxx X. Xxxxxxxx By: /s/
----------------------- ------------------------
Xxxx X. Xxxxxxxx, CPA
Chairman & Secretary
3
