Exhibit 23(e)(v)
LADENBURG XXXXXXXX & CO. INC.
000 XXXXXXX XXXXXX
00xx XXXXX
XXX XXXX, XX 00000
000-000-0000
DEALER'S AGREEMENT
Ladenburg Xxxxxxxx & Co. Inc. ("Underwriter") invites you, as a selected
dealer, to participate as principal in the distribution of shares (the "Shares")
of Xxxxx Value Fund, Inc. (the "Fund"), of which it is the exclusive
underwriter. Underwriter agrees to sell to you, subject to any limitations
imposed by the Fund, Shares issued by the Fund and to promptly confirm each sale
to you. All sales will be made according to the following terms:
1. All offerings and sales of any of the Shares by you must be made at
the public offering price and on the conditions of offering set forth
in the then current Prospectus of the Fund and to the terms and
conditions herein set forth, and you agree to comply with all
requirements applicable to you of all applicable laws, including
federal and state securities laws, the rules and regulations of the
Securities and Exchange Commission, and the Conduct Rules of the
National Association of Securities Dealers, Inc. (the "NASD"),
including Section 2400 of the Conduct Rules of the NASD. You will not
offer the Shares for sale in any state or other jurisdiction where
they are not qualified for sale under the Blue Sky Laws and
regulations of such state or jurisdiction where you are not qualified
to act as a dealer. Upon application to Underwriter, Underwriter will
inform you as to the states or other jurisdictions in which
Underwriter believes the Shares may legally be sold.
2. Sales of Shares by you to the public shall earn a commission amounting
to a percentage of the applicable public offering price and which
varies with the size and nature of each such purchase. The terms and
conditions affecting the applicable public offering prices, including
features such as rights of accumulation, letters of intention and net
asset value purchases, are described in the current Prospectus. The
schedule of commissions generally payable with respect to sales of
Shares are stated below. Commission checks for less than $10 will not
be issued.
The Underwriter may, from time to time, offer additional commissions
or bonuses on sales of Shares made by you or your representatives
without otherwise revising this Agreement. Any such additional
commissions or bonuses shall take effect in accordance with the terms
and conditions contained in written notification to you. If for any
reason a purchase transaction is reversed, you shall not be entitled
to receive or retain any part of any commission or bonus on such
purchase and shall pay to Underwriter on demand in full the amount of
such commission or bonus received by you in connection with such
purchase. Underwriter may withhold and retain from the amount of any
commission or bonus due you a sum sufficient to discharge any amount
due and payable by you to Underwriter.
3. With Respect to all Class A share accounts for which you are
designated as Dealer of Record, you will receive a service fee,
payable quarterly, at the annual rate of .25% of the average balance
of all such accounts during such quarter. With Respect to all Class C
share accounts (when available) for which you are designated as Dealer
of Record, you will receive a service fee, payable quarterly, at the
annual rate of 1.00% of the average balance of all such accounts
during such quarter, starting after one year. With Respect to all
Class F share accounts for which you are designated as Dealer of
Record; there will be no service fee. You hereby authorize Underwriter
to act as your agent in connection with all transactions in open
accounts in which you are designated as Dealer of Record. All
designations as Dealer of Record, and all authorizations of
Underwriter to act as your Agent pursuant thereto, shall cease upon
the termination of this Agreement or upon the investor's instructions
to transfer his open account to another Dealer of Record.
4. Service fees will be paid to you at the address of your principal
office, as indicated below in your acceptance of this Agreement.
5. Underwriter reserves the right to cancel this Agreement at any time
without notice if any Shares shall be offered for sale by you at less
than the then current public offering price determined by, or for, the
Fund.
6. All orders are subject to acceptance or rejection by Underwriter in
its sole discretion. The Underwriter reserves the right, in its
discretion, without notice, to suspend sales or withdraw the offering
of Shares entirely.
7. Payment of the amount due for Shares sold by you shall be made to the
Fund and shall be received by its Transfer Agent within three (3)
business days after the acceptance of your order or such shorter time
as may be required by law. With respect to all Shares ordered by you
for which payment has not been received, you hereby assign and pledge
to Underwriter all of your right, title and interest in such Shares to
secure payment therefor. You appoint Underwriter as your agent to
execute and deliver all documents necessary to effectuate any of the
transactions described in this paragraph. If such payment is not
received within the required time period, Underwriter reserves the
right, without notice, and at its option, forthwith (a) to cancel the
sale, (b) to sell the Shares ordered by you back to the Fund, or (c)
to assign your payment obligation, accompanied by all pledged Shares,
to any person. You agree that Underwriter may hold you responsible for
any loss, including loss of profit, suffered by the Fund, its Transfer
Agent or Underwriter, resulting from your failure to make payment
within the required time period.
8. As Dealer of Record, you are responsible for assessing breakpoint
availability and disclosing any availability to your customers.
9. No person is authorized to make any representations concerning shares
of the Fund except those contained in the current applicable
Prospectus and Statement of Additional Information and in sales
literature issued and furnished by Underwriter and in supplements to
such Prospectus. Underwriter will furnish additional copies of the
current Prospectus and Statement of Additional Information and such
sales literature and other releases and information issued by
Underwriter in reasonable quantities upon request.
10. Under this Agreement, you act as principal and are not employed by
Underwriter as broker, agent or employee. You are not authorized to
act for Underwriter or to make any representation on its behalf; and
in purchasing or selling shares hereunder, you rely only upon the
current Prospectus and Statement of Additional Information furnished
to you by Underwriter from time to time and upon such written
representations as may hereafter by made by Underwriter to you over
its signature.
11. You appoint the transfer agent for the Fund as your agent to execute
the purchase transactions of Shares in accordance with the terms and
provisions of any account, program, plan or service established or
used by your customers and to confirm such purchase to your customers
on your behalf, and you guarantee the legal capacity of your customers
purchasing such Shares and any co-owners of such Shares.
12. You will (a) maintain all records required by law relating to
transactions in the Shares, and upon the request of Underwriter, or
the request of the Fund, promptly make such records available to
Underwriter or to the Fund as are requested, and (b) promptly notify
Underwriter if you experience any difficulty in maintaining the
records required in the foregoing clause in an accurate and complete
manner. In addition, you will establish appropriate procedures and
reporting forms and schedules, approved by Underwriter and by the
Fund, to enable the parties hereto and the Fund to identify all
accounts opened and maintained by your customers.
13. Each party hereto represents that it is presently, and, at all times
during the term of this Agreement, will be, a member in good standing
with the NASD and agrees to abide by all its Conduct Rules including,
but not limited to, the following provisions:
(a) You shall not withhold placing customers' orders for any
Shares so as to profit yourself as a result of such
withholding. You shall not purchase any Shares from
Underwriter other than for investment, except for the
purpose of covering purchase orders already received.
(b) All conditional orders received by Underwriter must be at a
specified definite price.
(c) Neither Underwriter, as exclusive underwriter for the Fund,
nor you as principal, shall purchase any Shares from a
record holder at a price lower than the public offering
price based on the net asset value then quoted by, or for,
the Fund. Nothing in this sub-paragraph shall prevent you
from selling Shares for the account of a record holder to
Underwriter or the Fund at the net asset value currently
quoted by, or for, the Fund and charging the investor a fair
commission for handling the transaction.
(d) You warrant on behalf of yourself and your registered
representatives and employees that any purchase of Shares
pursuant to the terms of the Prospectus of the Fund is for
investment purposes only and not for purposes of resale.
Shares so purchased may be resold only to the Fund.
14. Each party (as the "Indemnifying Party") shall indemnify, defend and
hold harmless the other (including such party's parents, subsidiaries
and affiliates and their respective directors, officers, employees,
agents, stockholders, successors, assigns, subcontractors and
sub-licensees, collectively the "indemnified Party" from and against
all claims, actions, demands, suits, judgments, losses, expenses,
damages, and costs, including reasonable attorney's fees and
settlement expenses that may arise in connection with or related to
the Indemnifying Party's breach of this Agreement (including breach of
any of its representations and warranties hereunder). Indemnification
is contingent upon the Indemnifying Party (i) being notified promptly
of such claim, suit or proceeding in writing by the Indemnified Party
and (ii) having the right to control the defense or settlement of any
such claim. The Indemnified Party shall have the right to participate
in the defense at its own expense.
15. This Agreement will automatically terminate in the event of its
assignment. Either party hereto may cancel this Agreement without
penalty upon ten days' written notice. This Agreement may also be
terminated at any time without penalty by the vote of a majority of
the members of the Board of Directors of the Fund who are not
"interested persons" (as such term is defined in the Investment
Company Act of 1940) and who have no direct or indirect financial
interest in the Fund's Distribution Expense Plan pursuant to Rule
12b-1 under the Investment Company Act of 1940 or any agreement
relating to such Plan, including this Agreement, or by a vote of a
majority of the outstanding voting securities of the Fund on ten days'
written notice.
16. All communications to Underwriter should be sent to Claymore
Securities, Inc., 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx, XX 00000, Attn:
Mutual Fund Coordinator or at such other address as Underwriter may
designate in writing. Any notice to you shall be duly given if mailed
or telegraphed to you at the address of your principal office, as
indicated below in your acceptance of this agreement.
17. This Agreement supersedes any other agreement with you relating to the
offer and sale of the shares, and relating to any other matter
discussed herein.
18. This Agreement shall be binding (i) upon placing your first order with
Underwriter for the purchase of Shares, or (ii) upon receipt by
Underwriter in Lisle, Illinois of a counterpart of this Agreement duly
accepted and signed by you, whichever shall occur first. This
Agreement shall be construed in accordance with the substantive laws
of the State of Illinois without regard to its conflict of law
provisions. Any dispute arising out of this Agreement shall be settled
by binding
arbitration administered by NASD Dispute Resolution in accordance with
the rules of said organization. A judgment on the award rendered by
the arbitrator(s) may be entered in any court having jurisdiction.
19. ANTI-MONEY LAUNDERING COMPLIANCE PROVISION
The parties acknowledge that they are financial institutions subject
to the USA Patriot Act of 2001 and the Bank Secrecy Act (collectively,
the "AML Acts"), which require among other things, that financial
institutions adopt compliance programs to guard against money
laundering. The parties further acknowledge that they are in
compliance and will continue to comply with the AML Acts and
applicable anti-money laundering rules of self regulatory
organizations, including Rule 3011 of the NASD, in all relevant
respects.
20. GLB PRIVACY PROVISION:
The purpose and intent of this provision is to comply with Regulation
S-P as adopted and codified at 17 CFR pt. 248 ("Regulation S-P") as it
applies to the business relationship between the parties.
The parties understand that they may have provided, and may in the
future provide, to each other information about customers including,
but not limited to, nonpublic information ("Customer Information") for
the purpose of carrying out their business relationship.
Pursuant to Regulation S-P, the parties shall not disclose Customer
Information to any other person or entity or use any Customer
Information other than to carry out the purpose for which the Customer
Information was provided, including any used under an exception set
forth in section 248.14 and/or 248.15 of Regulation S-P, in the
ordinary course of business.
The parties specifically agree to:
(a) Limit access to Customer Information which is provided pursuant
to the parties' business relationship to those employees who have
a need to know such Customer Information in order to carry out
the purpose of the parties' business relationship, except as
allowed under an exception to Regulation S-P;
(b) Safeguard and maintain the confidentiality and security of
Customer Information, which is provided pursuant to the parties'
business relationship; and
(c) Use Customer Information obtained pursuant to the parties'
business relationship only to carry out the purposes for which
the Customer Information was provided, except as allowed under an
exception to Regulation S-P.
21. The undersigned, executing this Agreement on behalf of Dealer, hereby
warrants and represents that he is duly authorized to so execute this
Agreement on behalf of Dealer.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return all copies of this Agreement to the Underwriter.
ACCEPTED BY DEALER
BY:
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AUTHORIZED SIGNATURE LADENBURG XXXXXXXX & INC.
BY:
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TYPE OR PRINT NAME, POSITION
-------------------------------- ------------------------------------
DEALER NAME DATE
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ADDRESS
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ADDRESS
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PHONE
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DATE
August 2004
A SHARES
DEALER
SALES LOAD AS % OF REALLOWANCE
PUBLIC NET AS % OF
OFFERING AMOUNT PUBLIC
AMOUNT OF INVESTMENT PRICE INVESTED OFFERING PRICE
-------------------- ----------- ----------- --------------
Less than $50,000 5.00% 5.25% 4.50%
$50,000 but less than $100,000 4.50% 4.72% 4.00%
$100,000 but less than $250,000 3.50% 3.63% 3.00%
$250,000 but less than $500,000 2.95% 3.04% 2.70%
$500,000 but less than $1,000,000 2.25% 2.31% 2.00%
$1,000,000 or more None(a) None(a) None
C SHARES (WHEN AVAILABLE)
DEALER
SALES LOAD AS % OF REALLOWANCE
PUBLIC NET AS % OF
OFFERING AMOUNT PUBLIC
AMOUNT OF INVESTMENT PRICE INVESTED OFFERING PRICE
-------------------- ----------- ----------- --------------
Less than $50,000 None(b) None(b) 1.00%
$50,000 but less than $100,000 None(b) None(b) 1.00%
$100,000 but less than $250,000 None(b) None(b) 1.00%
$250,000 but less than $500,000 None(b) None(b) 1.00%
$500,000 but less than $1,000,000 None(b) None(b) 1.00%
$1,000,000 or more None(b) None(b) 1.00%
F SHARES (WHEN AVAILABLE)
DEALER
SALES LOAD AS % OF REALLOWANCE
PUBLIC NET AS % OF
OFFERING AMOUNT PUBLIC
AMOUNT OF INVESTMENT PRICE INVESTED OFFERING PRICE
-------------------- ----------- ----------- --------------
Less than $50,000 None None None
$50,000 but less than $100,000 None None None
$100,000 but less than $250,000 None None None
$250,000 but less than $500,000 None None None
$500,000 but less than $1,000,000 None None None
$1,000,000 or more None None None
(a) There is no front-end sales load on purchases of $1 million or more but a
contingent deferred sales load of 1% may apply if a commission was paid to
a participating unaffiliated dealer and the shares are redeemed within 12
months from the date of purchase.
(b) A contingent deferred sales load of 1% may apply if a commission was paid
to a participating unaffiliated dealer and the shares are redeemed within
12 months from the date of purchase.
