XXXXX XXXXXX INC.
MUTUAL FUND DEALER AGREEMENT
TO THE UNDERSIGNED DISTRIBUTOR:
Ladies and Gentlemen:
We understand that you are principal distributor of shares of certain mutual
funds ("Funds") registered with the Securities and Exchange Commission under the
Investment Company Act of 1940 ("1940 Act"). You desire that Xxxxx Xxxxxx Inc.
("Xxxxx Xxxxxx") act as a dealer with respect to the sale of Shares to its
customers. In consideration of the mutual covenants stated below, you and Xxxxx
Xxxxxx agree as follows:
1. Purchase of Shares at Public Offering Price. Xxxxx Xxxxxx will use such
efforts to sell Shares as it in its sole discretion determines, and will
not be required to sell any specified or minimum number of Shares of any
Fund. Sales of Shares through Xxxxx Xxxxxx will be at the public offering
price of such Shares (the net asset value of the Shares plus any applicable
sales charge), as determined in accordance with the then effective
prospectus(es) and statement(s) of additional information used in
connection with the offer and sale of the Shares (collectively, the
"Prospectus"). The public offering price may reflect scheduled variations
in or the elimination of sales charges on sales of Shares either generally
to the public or in connection with special purchase plans, as described in
the Prospectus. Xxxxx Xxxxxx agrees to apply any scheduled variation in or
waivers of sales charges uniformly to all customers meeting the
qualifications therefor as specified in the Prospectus.
2. Rights of Accumulation and Letters of Intent. With respect to Funds sold
with an initial sales charge, Xxxxx Barney's customers will be entitled to
reduced sales charges on purchases made under any letter of intent or right
of accumulation described in the Prospectus. In such case, the concession
from the public offering price retained by Xxxxx Xxxxxx will be based upon
such reduced sales charge; however, if a Xxxxx Xxxxxx customer fails to
fulfill a letter of intent, thereafter you will pay Xxxxx Xxxxxx the amount
required to reflect the appropriate concession based on the actual
purchases made by the customer. When placing wire trades, Xxxxx Xxxxxx
agrees to advise you of any letter of intent executed by its customer or
any available right of accumulation.
3. Exchanges and Redemptions. Exchanges of Shares between Funds and
redemptions of Shares by a Fund or repurchases of Shares by you will be
effected in the manner and upon the terms described in the Prospectus.
Exchanges will be subject to such restrictions and charges as are provided
for in the Prospectus. Redemptions and repurchases will be subject to any
applicable contingent deferred sales charges, redemption fees or other
charges as are provided for in the Prospectus. Any order placed by Xxxxx
Xxxxxx for the repurchase or
redemption of Shares is subject to the timely receipt by you or the
pertinent Fund's transfer agent of all required documents in good order.
4. Handling and Receipt of Orders. The handling and settlement of purchase,
exchange and redemption orders will be subject to the provisions of the
Prospectus and such further procedures you and Xxxxx Xxxxxx determine to be
appropriate from time-to-time, consistent with this Agreement. Orders which
Xxxxx Xxxxxx receives prior to the close of business as defined in the
Prospectus and placed with you within the applicable time frame set forth
in or consistent with the Prospectus shall be executed at the public
offering price next computed after they are received by Xxxxx Xxxxxx. You
will provide such assistance to Xxxxx Xxxxxx in processing orders as Xxxxx
Xxxxxx reasonably requests. Xxxxx Xxxxxx will be responsible for the
accuracy, timeliness and completeness of purchase, redemption or exchange
orders it transmits to you by wire or telephone. All orders shall be
subject to your confirmation. Xxxxx Xxxxxx shall purchase Shares on behalf
of its customers only through you, and shall sell Shares on behalf of its
customers only to you or the applicable fund or its redemption agent. No
wire orders under $1000 may be placed for initial purchases. The Funds
reserve the right, without prior notice, to suspend or withdraw the sale of
Shares.
5. Shareholder Servicing. If you and Xxxxx Xxxxxx agree, on an ongoing basis
Xxxxx Xxxxxx will provide shareholder servicing to its customers who
maintain investments in Shares. In so doing, Xxxxx Xxxxxx and its employees
and representatives may provide the following services, among others:
answer customer inquiries regarding the Funds and customer investments
therein; assist customers in changing dividend options; answer questions
about special investment and withdrawal plans, and assist customers in
enrolling in such plans; distribute reports and materials relating to the
Funds to customers; assist in the establishment and maintenance of accurate
customer accounts and records, including assisting in processing changes in
addresses and other customer information; and assist in processing
purchase, exchange and redemption orders.
6. Compensation and Expenses
A. With respect to Shares which are sold with an initial sales charge,
Xxxxx Xxxxxx will retain such concessions from the public offering price as
are specified in the Prospectus. With respect to Shares which are not sold
with an initial sales charge, you will pay commissions to Xxxxx Xxxxxx at
such rates as you and Xxxxx Xxxxxx may determine from time-to-time,
consistent with this Agreement and as set for in the Prospectus. No
concession will be paid to Xxxxx Xxxxxx for the investment of dividends in
additional shares. Consistent with the Prospectus and applicable law and
regulation, from time-to-time you and Xxxxx Xxxxxx may determine that Xxxxx
Xxxxxx will retain the full amount of initial sales charges and/or that you
will pay Xxxxx Xxxxxx additional compensation in connection with Xxxxx
Barney's sales of shares.
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B. If Xxxxx Xxxxxx provides shareholder services pursuant to Paragraph 5 of
this Agreement, you will pay Xxxxx Xxxxxx ongoing service fees at such
rates as you and Xxxxx Xxxxxx may determine from time-to-time. Such
payments shall be consistent with applicable law and regulation and this
Agreement and shall be subject to the terms and conditions set forth in the
plan of distribution adopted under Rule 12b-1 under the 1940 Act (a "12b-1
Plan") by the relevant Fund. Your obligation to make payments to Xxxxx
Xxxxxx under this Subparagraph 6B shall survive any termination of this
Agreement, and shall continue, subject to Section 15 hereof, so long as
Xxxxx Xxxxxx provides shareholder services described in Paragraph 5 of this
Agreement to its customers who hold Shares.
C. You will pay Xxxxx Xxxxxx ongoing trail commission compensation with
respect to holdings by Xxxxx Xxxxxx of Shares of Funds with respect to
which you pay such compensation generally to dealers, at such rates as you
and Xxxxx Xxxxxx may determine from time-to-time. Payments under this
Subparagraph 6C may be in addition to the payment of service fees as
described in Subparagraph 6B of this Agreement, and are subject to
applicable law and regulation and this Agreement, and shall be subject to
the terms and conditions, set forth in the 12b-1 Plan adopted by the
relevant Fund. Your obligation to make payments to Xxxxx Xxxxxx under this
Subparagraph 6C shall survive any termination of this Agreement, and shall
continue, subject to Section 15 hereof, so long as Xxxxx Barney's customers
maintain their investments in Shares.
D. With respect to expenses not specifically addressed elsewhere in this
Agreement, each party hereto will be responsible for the expenses it incurs
in acting hereunder. Consistent with the Prospectus and applicable law and
regulation, from time-to-time you and Xxxxx Xxxxxx may determine that you
will pay or reimburse Xxxxx Xxxxxx for expenses it incurs in connection
with selling Shares.
7. State Registration of Fund Shares. You agree to advise Xxxxx Xxxxxx in
writing on a current basis of the identity of those states and
jurisdictions in which the Shares are registered or qualified for sale to
the public.
8. NASD Regulation. Each party to this Agreement represents that it is a
member of the National Association of Securities Dealers, Inc. ("NASD") and
each party agrees to notify the other should it cease to be such a member.
Termination of such membership shall terminate this Agreement and shall
relieve you of your payment obligations under Paragraph 6 hereof. With
respect to the sale of Shares hereunder, you and Xxxxx Xxxxxx agree to
abide by the Conduct Rules of the NASD, including but not limited to the
following:
A. Xxxxx Xxxxxx shall not withhold placing customers orders for Shares so
as to profit itself as a result of such withholding. Xxxxx Xxxxxx shall not
purchase any Shares from you other than for its own investment or to cover
purchase orders already received by it from its customers.
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B. If any Shares purchased by Xxxxx Xxxxxx are repurchased by the Fund
which issued such Shares or by you for the account of that Fund, or are
tendered for redemption, within seven (7) business days after confirmation
by you of the original purchase order for such Shares, no compensation as
set forth in Paragraph 6 above will be payable to Xxxxx Xxxxxx with respect
to such Shares, and Xxxxx Xxxxxx will refund to you the full amount of any
such compensation paid or allowed to it on the original sale. You agree to
notify Xxxxx Xxxxxx in writing of any such repurchase or redemption within
ten (10) business days of the date on which the redemption is requested or
Share certificates are tendered to you, the pertinent Fund or its transfer
agent. Termination or cancellation of this Agreement will not relieve the
parties from the requirements of this subparagraph.
C. Neither party to this Agreement will, as principal, purchase any Shares
from a customer at a price lower than the net asset value next determined
by or for the Fund that issued such Shares. Nothing in this subparagraph
shall prevent Xxxxx Xxxxxx from selling Shares for a customer to you or to
the Fund which issued such Shares at the net asset value then quoted by or
for such Fund (less any applicable contingent deferred sales charge or
other charges) and charging a fair commission or service fee for handling
the transaction.
D. Xxxxx Xxxxxx shall be responsible for properly advising its customers as
to the appropriate class of Shares in which to invest.
9. Suspension or Withdrawal of Offering. You reserve the right to suspend
sales of Shares of any Fund or withdraw any offering of Shares entirely.
10. Provision of Materials. At your expense, you will furnish Xxxxx Xxxxxx with
current prospectuses and statements of additional information of the Funds
(including any supplements thereto), periodic reports to Fund shareholders
and marketing and other materials you have prepared relating to the Funds
to be furnished to dealers generally, in such quantities as Xxxxx Xxxxxx
reasonably requests.
11. No Agency; Representations by Xxxxx Xxxxxx Concerning the Funds. Xxxxx
Xxxxxx is not for any purpose employed or retained or authorized to act as
broker, agent or employee of any Fund or, except for the limited purpose
set forth in Paragraph 4, of you. Xxxxx Xxxxxx and its agents and employees
are not authorized to make any representations concerning the Funds or
their Shares except those contained in or consistent with the Prospectus
and such other written materials you provide relating to the Funds or other
statements or representations, written or oral, which you furnish or make
to Xxxxx Xxxxxx about the Funds.
12. Prospectus Delivery. Xxxxx Xxxxxx will provide each of its customers
purchasing Shares with the pertinent prospectus(es) prior to or at the time
of purchase. Xxxxx Xxxxxx will provide any customer who so requests with
the pertinent statement(s) of additional information.
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13. Liability and Indemnification
A. You agree to be liable for, to hold Xxxxx Xxxxxx, its officers,
directors and employees harmless from and to indemnify each of them for any
losses and costs arising from: (i) any of your actions, and the actions of
your employees and affiliates, relating to the sale of Fund shares,
including but not limited to any statements or representations contained in
any sales or other material relating to the Funds you or your affiliates
provide to Xxxxx Xxxxxx or any other statements or representations, written
or oral, concerning the Funds that you, your employees and your affiliates
make to Xxxxx Xxxxxx, provided that, at the time Xxxxx Xxxxxx provides such
materials to its Customers, such material is reasonably believed by Xxxxx
Xxxxxx to be current; (ii) any material misstatement in or omission of a
material fact from a Fund's current prospectus or statement of additional
information; and (iii) any failure of any Fund or its Shares to be properly
registered and available for sale under any applicable federal law and
regulation or the laws and regulations of any state, any U.S. territory or
the District of Columbia when you have represented to Xxxxx Xxxxxx that the
Fund and its Shares are so registered and qualified; and (iv) any of your
actions, or the actions of your affiliates, relating to the processing of
purchase, exchange and redemption orders and the servicing of shareholder
accounts. You shall not be liable for any consequential damages.
B. Xxxxx Xxxxxx agrees to be liable for, to hold you, your officers,
directors and employees harmless from and to indemnify them from any losses
and costs arising from: (i) any statements or representations that Xxxxx
Xxxxxx or its employees make concerning the Funds that are inconsistent
with either the pertinent Funds' current prospectus and statement of
additional information or any other material you have provided or any other
statements or representations, written or oral, you have made to Xxxxx
Xxxxxx relating to the Funds; (ii) any sale of Shares of a Fund where the
Fund or its Shares were not properly registered or qualified for sale in
any state, any U.S. territory or the District of Columbia, when you have
indicated to Xxxxx Xxxxxx that the Fund and its Shares were not properly
registered and qualified; and (iii) any of Xxxxx Barney's actions relating
to the processing of purchase, exchange and redemption orders and the
servicing of shareholder accounts. Xxxxx Xxxxxx shall not be liable for any
consequential damages.
C. The provisions of this Paragraph 13 shall survive the termination of
this Agreement.
14. Arbitration. If a dispute arises between you and Xxxxx Xxxxxx 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 ("NASD Code"). The parties agree, that to the
extent permitted by the NASD Code, the arbitrator(s) shall be selected from
the securities industry.
15. Miscellaneous. This Agreement shall be governed by the laws of New York
State. This Agreement may be amended only upon the written agreement of
both parties hereto, and may be terminated by either party on ten days'
written notice to the other. If your payments
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to Xxxxx Xxxxxx under Subparagraphs 6B and/or 6C hereunder in whole or in
part are financed by a Fund in accordance with its 12b-1 Plan, then with
respect to such Fund this Agreement (a) is subject to annual approval by
vote of such Fund's board of directors or trustees and a majority of those
directors/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 12b-1 Plan adopted by such Fund or in any agreement
related thereto ("Disinterested Directors") cast in person at a meeting
called for the purpose of voting on such approval and (b) is terminable,
without penalty, at any time by such Fund by a vote of a majority of the
Disinterested Directors or by vote of the holders of a majority of the
voting securities (as such term is defined in the 0000 Xxx) of such Fund
upon 60 days' notice in writing to you. Xxxxx Xxxxxx agrees to provide to
you and each such Fund's board of directors or trustees such information as
you and such Fund's board of directors or trustees may reasonably request
in order to enable you and the board to fulfill the requirements of Rule
12b-1 and such Fund's 12b-1 Plan. In the event of the termination of such a
12b-1 Plan by a Fund's board of directors or trustees or shareholders, you
and Xxxxx Xxxxxx agree to negotiate in good faith with respect to whether
and to what extent you will continue to make payments from your own
resources to Xxxxx Xxxxxx as required by Subparagraphs 6B and 6C hereunder.
This Agreement constitutes the entire agreement between you and Xxxxx
Xxxxxx and supersedes all prior oral or written agreements (except for the
Telephone Exchange Agreement dated October 14, 1993 between the parties)
between you and Xxxxx Xxxxxx and its predecessors relating to the sale of
Shares.
Sincerely,
XXXXX XXXXXX INC.
By: ___________________________
Dated: ___________________________
AGREED AND ACCEPTED:
Distributor Name: ___________________________
Fund Complex: ___________________________
By: ___________________________
Dated: ___________________________
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