Exhibit 23(m)(8)
PARTICIPATION AGREEMENT
Participation Agreement, dated as of October 18, 2000 by and between Xxxxxxx
Xxxxx Xxxxxx Inc., a New York corporation ("Xxxxxxx Xxxxx Barney"), and Xxxxxxxx
Advisors, Inc., a Delaware corporation ("Company").
WHEREAS, Xxxxxxx Xxxxx Barney together with its affiliates is offering to its
clients one or more investment advisory, trading, custody and/or retirement
programs pursuant to which such clients will purchase Class A shares (referred
to as the "Shares") of mutual funds included in such program(s) at net asset
value without the imposition of initial or contingent deferred sales charges
(each a "Program" and collectively, the "Programs");
WHEREAS, Company is sponsor, investment adviser, sub-adviser, distributor and/or
administrator of, and/or otherwise acts as a service provider to, certain mutual
funds, and Xxxxxxx Xxxxx Xxxxxx and Company desire to include certain of such
funds' shares in one or more Programs (the funds that Company and Xxxxxxx Xxxxx
Barney from time to time agree will be included in one or more of the Programs
are referred to herein as the "Funds");
WHEREAS, Xxxxxxx Xxxxx Xxxxxx will perform certain services for its clients who
invest in the Funds through one or more of the Programs ("Clients"); and
WHEREAS, Company, on behalf of the shareholders of the Funds who are
participants in the Programs, desires to compensate Xxxxxxx Xxxxx Barney for
providing such services.
NOW, THEREFORE, Xxxxxxx Xxxxx Xxxxxx and Company agree as follows:
1. Transactions in the Funds
Subject to the terms and conditions of this Agreement, Company will cause each
Fund to make its shares available to be purchased, exchanged or redeemed by
Clients at the net asset value applicable to each order, as determined in
accordance with each Fund's then effective prospectus and statement of
additional information, without the imposition of initial or contingent deferred
sales charges or any other transaction related charges (e.g., redemption fees,
exchange fees and federal funds wire payment fees).
2. Services
A. As the parties may agree from time to time, and subject to the particular
parameters Xxxxxxx Xxxxx Barney establishes for each Program, Xxxxxxx Xxxxx
Xxxxxx (either directly or through one or more of its affiliates or agents) will
provide the following services:
(i) Receive Client instructions for the purchase, sale, exchange and redemption
of Fund shares ("Instructions") and communicate such Instructions, as directed,
to the Company, the Fund or the Fund's transfer agent (collectively, the
"Receiving Party") for the purpose of the Receiving Party inputting and
executing orders that correspond to such Instructions on the books of the Fund,
in a time frame and manner as the parties from time to time agree upon;
(ii) Maintain records for and on behalf of each Client reflecting Instructions
and outstanding balances of Fund shares owned by the Client;
(iii) Prepare and transmit to Clients confirmations of all transactions effected
pursuant to Instructions;
(iv) Prepare and transmit to Clients periodic consolidated account statements
indicating, with respect to shares of the Funds and shares of any other mutual
funds included in the Programs ("Other Funds"): the number of shares of each
Fund and each Other Fund owned; purchases, redemptions and exchanges of Fund
shares and shares of Other Funds made by Clients; and other information as
determined by Xxxxxxx Xxxxx Barney;
(v) Provide Clients with copies of prospectuses, statements of additional
information, proxy materials, periodic and special shareholder reports and other
materials relating to the Funds (collectively, "Fund Materials"), as may be
provided by Company or the Fund to Xxxxxxx Xxxxx Xxxxxx;
(vi) Assist with the solicitation of proxies from Clients, as requested by
Company;
(vii) Provide each Fund, and/or other parties designated by it with information,
on a daily basis, regarding the sales by state or jurisdiction of residence of
Clients for purposes of the Fund's regulatory requirements. (Such information
shall be provided in a form mutually agreeable to Xxxxxxx Xxxxx Barney and
Company);
(viii) Provide to Company, each Fund, and/or other parties designated by them
with such other information relating to transactions in and holdings of Fund
shares by Clients as the parties agree upon from time to time;
(ix) Respond to Client inquiries regarding, among other things, share prices,
account balances, dividend amounts and dividend payment dates;
(x) With respect to each Client's ownership of, or transactions with respect to,
any Fund, prepare and file with the appropriate federal agencies information and
reports regarding (a) dividends and other distributions made, (b) amounts
withheld on dividends and other distributions and payments and (c) gross
proceeds of sale transactions;
(xi) Provide each Client with access to one or more Xxxxxxx Xxxxx Xxxxxx
Financial Consultants who will provide personal service and attention with
respect to the foregoing; and
(xii) Provide such other services relating to Client holdings and transactions
in Funds included in the Programs as from time to time the parties shall
mutually agree.
B. Company agrees that, in connection with transactions in Fund shares made by
Clients through Xxxxxxx Xxxxx Barney (or its affiliates or agents) pursuant to a
Program, and except as otherwise agreed to by the parties, Company and each Fund
will follow the operating procedures set forth in Exhibit A to this Agreement.
For purpose of Section 2A(i) above, Company hereby appoints Xxxxxxx Xxxxx Xxxxxx
as agent for the limited purpose of receiving Instructions from Clients.
C. In providing services hereunder, the parties acknowledge that except for the
limited agency services provided to Company in paragraph B. above, Xxxxxxx Xxxxx
Barney shall be providing services to and acting solely for the benefit of
Clients. The parties further acknowledge that in connection with all purchases,
sales, exchanges and redemptions of Fund shares by Clients pursuant to a
Program, Xxxxxxx Xxxxx Xxxxxx shall be acting on an agency basis. Xxxxxxx Xxxxx
Barney agrees that it will not transmit orders for Shares for execution at the
net asset value of a Fund determined as of the close of the New York Stock
Exchange unless such orders have been received by Xxxxxxx Xxxxx Xxxxxx or its
affiliates before the close of the New York Stock Exchange on that day.
D. Nothing in this Agreement shall impose upon Xxxxxxx Xxxxx Barney any
obligation to include any particular Fund or Funds in any particular Program.
Xxxxxxx Xxxxx Xxxxxx reserves the right to determine, in its sole discretion,
whether any particular Fund will be made available under one more of the
Programs initially as well as whether such Fund will continue to be made
available under such Program(s).
3. Delegation by Xxxxx Xxxxxx
Xxxxxxx Xxxxx Xxxxxx may delegate some or all of its duties under this Agreement
to such other parties which in Xxxxxxx Xxxxx Barney's sole discretion it deems
to be competent to assume such duties; provided that Xxxxxxx Xxxxx Xxxxxx shall
be responsible and liable for the acts and conduct of any such delegate to the
same extent as if the acts and conduct had been performed by Xxxxxxx Xxxxx
Barney.
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4. No Limitation
The provisions of this Agreement in no way shall limit the authority of Company
or any Fund to take such action as it or they may deem appropriate or advisable
in connection with all matters relating to the operations of the Funds and/or
the sale of Fund shares.
5. Fees
A. Company agrees to pay Xxxxxxx Xxxxx Xxxxxx or its designated affiliate (or to
cause the Funds to pay Xxxxxxx Xxxxx Barney or its designated affiliate) the
fees set forth on Schedule 1. No fees provided for under any other agreement
shall be due or payable by the Company to Xxxxxxx Xxxxx Xxxxxx with respect to
the arrangements contemplated hereby. Xxxxxxx Xxxxx Barney agrees that it will
charge its Clients asset-based fees for participation in each Program.
B. For purposes of calculating the fees described in Schedule 1, the value of
Client assets invested in the Funds shall be determined in accordance with the
then effective prospectus(es) and statement(s) of additional information of the
Funds. Nothing in this Agreement shall preclude Xxxxxxx Xxxxx Xxxxxx from
crediting all or a portion of the amounts it receives under this Section 5 to
Clients in certain Programs in order to reduce the fees payable by such Clients
to Xxxxxxx Xxxxx Barney in connection with such Programs, but only to the extent
permitted by applicable law and provided that such fees are not reduced to a
nominal amount.
C. The parties agree that the fees payable to Xxxxxxx Xxxxx Xxxxxx hereunder are
being paid solely for shareholder servicing and/or account maintenance. If
Xxxxxxx Xxxxx Barney and Company agree to revise the fees payable in connection
with a Program, Schedule I will be amended and signed by the parties to this
Agreement. The terms of this Agreement will otherwise remain in effect.
6. Records and Reporting
Xxxxxxx Xxxxx Xxxxxx will maintain and preserve all records as required by law
in connection with its provision of services under this Agreement. Upon the
reasonable request of Company, a Fund or the Fund's transfer agent, Xxxxxxx
Xxxxx Barney will provide copies of: historical records relating to Instructions
involving the Fund; written communications regarding the Fund to or from
Clients; and other materials relating to the provision of services by Xxxxxxx
Xxxxx Xxxxxx under this Agreement. Xxxxxxx Xxxxx Barney will comply with
reasonable requests for such information and documents made by Company, the
board of directors or trustees of a Fund, or any governmental body or
self-regulatory organization.
7. Representations; Warranties; and Covenants
X. Xxxxxxx Xxxxx Xxxxxx represents that: (i) this Agreement has been duly
authorized by all necessary corporate action and, when executed and delivered,
shall constitute the legal, valid and binding obligation of Xxxxxxx Xxxxx
Barney, enforceable in accordance with its terms; (ii) the activities of Xxxxxxx
Xxxxx Xxxxxx contemplated by this Agreement comply with all provisions of
federal and state securities laws applicable to such activities; (iii) Xxxxxxx
Xxxxx Barney has obtained such registrations and qualifications as are necessary
to permit it to perform its obligations hereunder; (iv) the arrangements
provided for in this Agreement will be disclosed to Clients; (v) Xxxxxxx Xxxxx
Xxxxxx is duly registered as a broker-dealer under Section 15 of the Securities
Exchange Act of 1934, as amended, and is a member of the National Association of
Securities Dealers Inc.; and (vi) all Fund shares in any Program are and will be
owned beneficially by Clients and no Fund shares in any Program are or will be
owned beneficially by Xxxxxxx Xxxxx Barney. Xxxxxxx Xxxxx Xxxxxx acknowledges
that neither the Shares of the Funds nor the Funds or Company are registered
under the laws of any jurisdiction other than the United States, the states of
the United States, Puerto Rico, and the District of Columbia. Accordingly,
Xxxxxxx Xxxxx Barney represents that it will not make any offers or
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sales of Shares in any jurisdiction outside the United States that would violate
applicable law or otherwise subject the Company or the Funds to the laws of that
jurisdiction.
B. Company represents that: (i) this Agreement has been duly authorized by all
necessary corporate action and, when executed and delivered, shall constitute
the legal, valid and binding obligation of Company, enforceable in accordance
with its terms; (ii) shares of the Funds are registered and authorized for sale
in accordance with any and all applicable federal and state securities laws; and
(iii) the prospectus and statement of additional information of each Fund comply
in all material respects with any and all applicable federal and state
securities laws.
C. Company covenants and agrees that, for so long as this Agreement remains in
effect, it shall use its best efforts to cause shares of the Funds to continue
to be registered and authorized for sale in accordance with all applicable
federal and state securities laws and shall notify Xxxxxxx Xxxxx Xxxxxx promptly
in the event any Fund's shares cease to be so registered or authorized for sale.
X. Xxxxxxx Xxxxx Xxxxxx and Company each agree to comply with all provisions of
federal and state laws applicable to its respective activities under this
Agreement.
X. Xxxxxxx Xxxxx Xxxxxx and Company each agree to notify the other promptly in
the event that it is, for any reason, unable to perform any of its obligations
under this Agreement.
X. Xxxxxxx Xxxxx Xxxxxx covenants and agrees that it will not make any
representations about the Funds except to the extent such representations: (i)
are contained in a Fund's current prospectus, statement of additional
information, as amended or supplemented from time to time, or sales literature;
(ii) are consistent with information contained in such materials; or (iii) are
otherwise authorized by or on behalf of the Funds.
8. Use of Names
A. Company hereby authorizes Xxxxxxx Xxxxx Barney to use the names and other
identifying marks of Company and each Fund in connection with the marketing of
the Programs or the provision of services under this Agreement by Xxxxxxx Xxxxx
Xxxxxx. Company or any Fund may withdraw this authorization as to any particular
use of any such name or identifying marks at any time: (i) upon Company's or the
Fund's reasonable determination that such use would have a material adverse
effect on the reputation or marketing efforts of Company or such Fund; (ii) if
Company or the Fund reasonably determines that materials using such names and
identifying marks are inaccurate or misleading; or (iii) if Xxxxxxx Xxxxx Barney
is no longer providing services to Clients as described in Section 2. Xxxxxxx
Xxxxx Xxxxxx agrees that, at the request of Company or a Fund, Xxxxxxx Xxxxx
Barney shall discuss with Company and/or the Fund, and consider in good faith,
any standards or specifications relating to Xxxxxxx Xxxxx Xxxxxx'x use (or
proposed use) hereunder of the names and other identifying marks of Company
and/or the Fund.
B. Except as otherwise expressly provided for in this Agreement, neither Company
nor any Fund shall use any trademark, trade name, service xxxx or logo of
Xxxxxxx Xxxxx Xxxxxx, or any variation of any such trademark, trade name,
service xxxx or logo, without Xxxxxxx Xxxxx Xxxxxx'x prior written consent.
C. Upon request, Xxxxxxx Xxxxx Barney shall provide Company with copies of all
sales literature and other marketing materials which refer to Company or any
Fund.
9. [INTENTIONALLY OMITTED]
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10. Non-Solicitation
Company agrees, at all times during the term of this Agreement and thereafter,
that neither it nor any Fund knowingly shall solicit, directly or indirectly,
any Client to invest in the Funds or in any other investment company for which
Company acts as a sponsor, adviser, administrator, distributor, or other service
provider (a "Company Fund"); provided, that this prohibition shall not apply to:
(i) the solicitation of any Client that was an investor in a Fund or in any
Company Fund prior to the time such Client became a participant in a Program;
(ii) any solicitation that Company or a Fund engages in at the request of
Xxxxxxx Xxxxx Xxxxxx; or (iii) any solicitation undertaken by a broker-dealer
unaffiliated with Company without any direction, informational support or other
guidance from Company as to the Client or Clients who are solicited.
11. Confidentiality
A. Company agrees, at all times during the term of this Agreement and
thereafter, that it and each Fund shall maintain the confidentiality of, and not
disclose to any person, or otherwise make use of (directly or indirectly), the
names and addresses of, or other information relating to, Clients ("Client
Information"), except as expressly permitted under this Agreement, as may be
necessary in the ordinary course of performing the services and transactions
contemplated by this Agreement, or as may be required by applicable law or
judicial process. Notwithstanding the foregoing, Company and the Funds shall not
be prohibited from utilizing for any purpose Client Information if they can
establish that such information was: (i) known to them prior to this Agreement;
(ii) rightfully acquired by them from third parties whom they reasonably
believed were not under an obligation of confidentiality to any other party to
this Agreement; or (iii) independently developed by them without breaching any
provision of this Agreement.
B. Each party acknowledges and agrees that any and all technical or business
information, including without limitation financial information, business or
marketing strategies or plans or product development, but excluding Client
Information which is covered by paragraph A of this Section 11, which is
disclosed to the other party or is otherwise obtained by such party or its
affiliates or agents during the term of this Agreement (the "Proprietary
Information") constitutes the valuable property of the other party. Each party
agrees that should it come into possession of Proprietary Information, it will
use its commercially reasonable best efforts to hold such information in
confidence and shall refrain from using, disclosing or distributing any such
information except: (i) as may be necessary in the ordinary course of performing
the services and transactions contemplated by this Agreement; (ii) with the
written consent of the other party; or (iii) as required by law or judicial
process. Proprietary Information shall not include information a party to this
Agreement can establish was: (i) known to the party prior to this Agreement;
(ii) rightfully acquired by the party from third parties whom the party
reasonably believes are not under an obligation of confidentiality to any other
party to this Agreement; (iii) placed in public domain without fault of the
party or its affiliates; or (iv) independently developed by the party without
reference to or reliance upon Proprietary Information.
12. Provision of Materials
A. Company shall furnish Salomon Xxxxx Xxxxxx, or arrange for the Funds to
furnish Salomon Xxxxx Xxxxxx, at its or their expense, 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 relating to the Funds in such quantities as Xxxxxxx Xxxxx Barney
reasonably requests.
B. Company will directly notify Xxxxxxx Xxxxx Xxxxxx of any departure by a Fund
portfolio manager as soon after Company's receipt of notice of an intended
departure as is reasonably practicable; provided, that, in each such event,
Company agrees to give such direct notification to Xxxxxxx Xxxxx Barney no later
than the earlier of: (i) the time at which Company notifies any other similarly
situated third party of the departure; and (ii) the time at which Company
directly or indirectly makes a public statement of the departure.
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C. A limited number of senior Xxxxxxx Xxxxx Xxxxxx employees shall have
reasonable access to the portfolio manager(s) of each Fund for purposes of
discussing Fund performance and other significant issues.
13. Liability and Indemnification
A. Company acknowledges and agrees that neither Xxxxxxx Xxxxx Barney nor any
other Xxxxxxx Xxxxx Xxxxxx Party (as defined below) is responsible for: (i) any
information contained in any prospectus, statement of additional information,
registration statement, annual report, proxy statement, or item of advertising
or marketing material of or relating to any Fund (except for advertising or
marketing materials prepared by Xxxxxxx Xxxxx Barney); (ii) the registration or
qualification of any shares of any Fund under any federal or applicable state
laws; or (iii) the compliance or failure to comply by any Company Party (as
defined below), with any applicable federal or state law, rule, or regulations
of any self-regulatory organization with jurisdiction over any Company Party,
except to the extent that the failure to so comply by such Company Party is
caused by a Xxxxxxx Xxxxx Xxxxxx Party's failure to comply with any of the
foregoing laws, rules, or regulations or its breach of this Agreement. For
purpose of this Agreement, a "Company Party" shall include Company, its
affiliates and the Funds and any of their respective officers, directors,
trustees, employees and agents and a "Xxxxxxx Xxxxx Barney Party" shall include
Xxxxxxx Xxxxx Xxxxxx, its affiliates and any of their respective officers,
directors, trustees, employees and agents.
X. Xxxxxxx Xxxxx Xxxxxx acknowledges and agrees that neither Company nor any
other Company Party is responsible for: (i) any information contained in any
advertising or marketing materials prepared by Xxxxxxx Xxxxx Barney, except for
information provided by a Company Party or contained in any Fund prospectus,
statement of additional information, registration statement, annual report,
proxy statement, or item of advertising or marketing material prepared by a
Company Party; or (ii) the compliance or failure to comply by a Xxxxxxx Xxxxx
Xxxxxx Party with any applicable federal or state law, rule, or regulation
governing such Xxxxxxx Xxxxx Barney Party, except to the extent that the Xxxxxxx
Xxxxx Xxxxxx Party's or such agents' failure to comply with any such law, rule
or regulation is caused by the failure of a Company Party to comply with any
such applicable law, rule, or regulation or its breach of this Agreement.
C. Company shall indemnify, defend and protect each Xxxxxxx Xxxxx Barney Party
and hold each of them harmless from and against any and all claims, demands,
actions, losses, damages, liabilities, costs, charges, reasonable counsel fees,
and expenses of any nature it or they incur ("Losses") arising out of or from,
with respect to each Fund: (i) any actions of any Company Party 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
that Company Parties provide to a Xxxxxxx Xxxxx Xxxxxx Party or any other
statements or representations, written or oral, concerning the Funds that
Company Parties make to a Xxxxxxx Xxxxx Barney Party; (ii) any material
misstatement in omission of a material fact from a Fund's current prospectus,
registration statement, statement of additional information, annual report or
proxy statement or any advertising or promotional material generated by any
Company Party; (iii) any failure of any Fund or its shares to be properly
registered or qualified for sale and available for sale to the public under any
applicable federal law and regulation or the applicable laws and regulations of
any state, any US territory or the District of Columbia unless Company has
notified Xxxxxxx Xxxxx Xxxxxx in writing that the Fund and its shares are not
qualified for sale in a particular jurisdiction and Xxxxxxx Xxxxx Xxxxxx xxxxx
shares of the Fund in such jurisdiction after such notification; (iv) any
material breach by any Company Party of any representation, warranty, covenant,
or agreement contained in this Agreement; and (v) the actions of any Company
Party relating to the processing of purchase, exchange and redemption orders and
the servicing of shareholder accounts to the extent such actions constitute
willful misfeasance, bad faith or gross negligence by a Company Party.
X. Xxxxxxx Xxxxx Xxxxxx shall indemnify, defend and protect each Company Party,
and hold each of them harmless from and against any and all Losses arising out
of or from, with respect to each Fund: (i) any material statements or
representations or omissions of material facts that a Xxxxxxx Xxxxx Barney Party
makes concerning the Fund that are inconsistent with either the Fund's current
prospectus, statement of additional information, periodic reports to
shareholders, proxy statements or any other material any Company Party has
provided in writing to a Xxxxxxx Xxxxx
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Barney Party; (ii) any sale of shares of the Fund by Xxxxxxx Xxxxx Xxxxxx in a
jurisdiction where the Fund or its shares are not properly registered or
qualified for sale after Company has notified Xxxxxxx Xxxxx Barney in writing
that the Fund and its shares are not qualified for sale in such jurisdiction;
(iii) any material breach by Xxxxxxx Xxxxx Xxxxxx of any representation,
warranty, covenant, or agreement contained in this Agreement; and (iv) any
actions of a Xxxxxxx Xxxxx Barney Party in connection with its performance of
the services described in Section 2 to the extent such actions constitute
willful misfeasance, bad faith or gross negligence by such Xxxxxxx Xxxxx Xxxxxx
Party.
14. Arbitration
If a dispute arises between Xxxxxxx Xxxxx Barney and Company 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 and the arbitration proceeding shall be held in New York
City.
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15. Terms and Termination of Agreement
A. This Agreement shall become effective on the date first set forth above and
shall continue in effect until terminated as provided herein.
B. This Agreement may be terminated by either party hereto at anytime upon at
least ninety (90) days' written notice. In addition, notwithstanding the
foregoing, this Agreement is terminable: (i) upon less than ninety (90) days'
notice if required by applicable law, rule, regulation, order or instruction by
a court of competent jurisdiction or a regulatory body or self-regulatory
organization with jurisdiction over the terminating party; and (ii) by either
party at any time by giving 30 days' written notice to the other party in the
event of a material breach of this Agreement by the other party that is not
cured during such 30-day period.
C. The payments to Xxxxxxx Xxxxx Xxxxxx under the terms of this Agreement are
financed by each Fund in accordance with its plan for distribution adopted under
Rule 12b-l (a "12b-1 Plan") under the Investment Company Act of 1940, as amended
(the "1940 Act"). Accordingly, notwithstanding anything to the contrary herein,
this Agreement with respect to each Fund (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-l 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 Xxxxxxx Xxxxx
Barney. Xxxxxxx Xxxxx Xxxxxx agrees to provide to the Company and each such
Fund's board of directors or trustees such information as the Company and such
Fund's board of directors or trustees may reasonably request in order to enable
the Company and the board to fulfill the requirements of Rule 12b-1 and such
Fund's 12b-1 Plan.
D. After the termination of this Agreement, the fees described in Schedule I
will continue to be due under the circumstances described therein, except that
(a) such fees shall be payable only with respect to those Client assets held
through the Program on the date of termination and any additional assets held
through the Program if added pursuant to the automatic reinvestment of
distributions derived from those Client assets held through the Program on the
date of termination and (b) no such fees shall be payable with respect to any
Fund terminating this Agreement pursuant to paragraph C. of this Section 15;
provided, however, that the Company or an affiliate of the Company may
separately agree to make such payments to Xxxxxxx Xxxxx Barney as would
otherwise continue to be payable hereunder. Xxxxxxx Xxxxx Xxxxxx agrees that, in
the event of termination of this Agreement as provided in paragraph B. of this
Section 15, it shall provide Company and each Fund with such reports and
certificates as may be reasonably requested, including such information as
required under paragraph C. of this Section 15, to determine that the continued
payment of fees has been calculated and paid in accordance with this Agreement.
16. Notices
All notices and other communications hereunder shall be given or made in writing
and shall be delivered personally, or sent by telex, facsimile, express delivery
or registered or certified mail, postage prepaid, return receipt requested, to
the party or parties to whom they are directed at the following addresses, or at
such other addresses as may be designated by notice from such party to all other
parties.
To Company: Xxxxxxxx Advisors, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, President
With a copy to: Law & Regulation Department
(000) 000-0000 (phone)
(000) 000-0000 (facsimile)
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To Xxxxxxx Xxxxx Barney: Xxxxxxx Xxxxx Xxxxxx
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
With a copy to: Xxxxxxx Xxxxxxx
(000) 000-0000 (phone)
(000) 000-0000 (facsimile)
Any notice, demand or other communication given in a manner prescribed in this
Section 16 shall be deemed to have been delivered on receipt.
17. Nonexclusivity
Each party to this Agreement acknowledges that the other party hereto may enter
into similar agreements with third parties.
18. Miscellaneous
A. This Agreement represents the entire agreement between the parties with
regard to the matters described herein, and may not be modified or amended
except by written instrument executed by all parties. This Agreement may not be
assigned by any party hereto without the prior written consent of the other
parties. This Agreement is made and shall be construed under the laws of the
State of New York without giving effect to principles of conflict of laws. This
Agreement supersedes all previous agreements and understandings between the
parties with respect to its subject matter. If any provision of the Agreement
shall be held or made invalid by a statute, rule, regulation, decision of a
tribunal or otherwise, the remainder of the Agreement shall not be affected
thereby. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any party hereto may
execute this Agreement by signing any such counterpart.
B. As used in this Agreement, an "affiliate" of a party means any entity or
person controlling, controlled by or under common control with such party.
C. The provisions of Sections 5, 10, 11, 13, 14, 15B, 18 and Schedule I shall
survive the termination of this Agreement.
D. All Exhibits and Schedules, as they may be amended from time to time, are
incorporated herein by reference and made part of this Agreement.
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IN WITNESS HEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
XXXXXXX XXXXX XXXXXX INC. XXXXXXXX ADVISORS, INC.
By: /s/Xxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ -------------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
--------------------------- ----------------------------
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EXHIBIT A
OPERATING PROCEDURES
Except as otherwise indicated, all references to Xxxxxxx Xxxxx Xxxxxx in this
Exhibit A shall be deemed to include any affiliate or agent of Xxxxxxx Xxxxx
Barney that is involved in communicating Instructions to the Funds on behalf of
Xxxxxxx Xxxxx Xxxxxx. All time deadlines set forth below are the prevailing
times in New York City (i.e., Eastern Daylight Time or Eastern Standard Time, as
the case may be).
A. The parties agree that, in connection with transactions in Fund Shares, they
(and their affiliates) shall participate in the NSCC's Fund/SERV system
("Fund/SERV") and the NSCC Networking System in compliance with the rules and
procedures established by the NSCC, including the standard NSCC Networking
Agreement.
B. On a daily basis, the Company will cause each Fund will notify Xxxxxxx Xxxxx
Barney if the number of Fund Shares to be redeemed, whether from an Omnibus
Account or from an account established with the Fund in the name of a Client,
exceeds the aggregate number of Shares held in such accounts.
C. Each Fund will provide Xxxxxxx Xxxxx Xxxxxx with a list of the names, titles
and telephone numbers of the personnel designated and authorized to receive
Instructions from Xxxxx Xxxxxx and communicate with Xxxxxxx Xxxxx Xxxxxx
regarding corresponding Orders and related matters.
D. No Fund will make any changes to the cusip number of its shares without using
its commercially reasonable best efforts to give Xxxxxxx Xxxxx Barney reasonable
prior notice of the proposed change.
E. The Company agrees that the Funds and their transfer agent will accept
facsimile Instructions from Xxxxxxx Xxxxx Xxxxxx relating to the purchase,
exchange or redemption of Fund Shares and the transfer of Fund Shares from one
account to another account (i.e., change of ownership). Xxxxxxx Xxxxx Barney
will not provide the Funds with a hard copy of such instructions. Instructions
relating to the transfer of Fund Shares from one account to another account
shall include the standard indemnity contained in instructions of this nature.
SCHEDULE 1
FEES
I. Trading (AssetOne) and Custody Programs
Company shall pay, or cause to be paid, to Xxxxxxx Xxxxx Xxxxxx 0.25%/(1)/ (the
"Annual Fee") of the average daily net asset value of all Client assets invested
in a Fund (including assets invested through reinvestment of dividends and
distributions) through a Program, payable quarterly, in arrears. Xxxxxxx Xxxxx
Barney shall compute the fee for each calendar quarter, which shall be the
product of (a) average daily net asset value of Client assets invested in the
Funds through a Program during the quarter; (b) the number of days in the
quarter; and (c) the quotient of the Annual Fee divided by 365. Except as
provided in Section 15 of the Agreement, the Company's obligation hereunder to
pay the fees described in this paragraph I shall survive any termination of the
Participation Agreement for so long as Xxxxxxx Xxxxx Xxxxxx continues to provide
shareholder services (as described in Section 2A of the Participation Agreement)
to such Clients.
The fees described in this Schedule 1 will be payable to Xxxxxxx Xxxxx Barney as
soon as practicable following the quarter to which the fees relate. This
Schedule 1 may be amended from time to time by Xxxxxxx Xxxxx Xxxxxx and Company
executing a revised Schedule 1 and the terms of the Participation Agreement will
otherwise remain in effect. The fees payable to Xxxxxxx Xxxxx Barney hereunder
are paid exclusively for shareholder servicing and/or account maintenance.
XXXXXXX XXXXX XXXXXX INC. XXXXXXXX ADVISORS, INC.
By: /s/Xxxxxx Xxxxxxxxx By: /s/Xxxxxxx X. Xxxxxxx
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Name: Name:
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Title: Title:
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/(1)/ As of the date hereof, each open-end investment company in the Xxxxxxxx
Group of Investment Companies pays on its Class A shares a shareholder servicing
fee under its 12b-1 Plan (the "12b-1 Fee") equal to 0.25% of average daily net
assets of such shares, except for certain Xxxxxxxx municipal funds, which pay a
12b-1 fee equal to 0.10% of average daily net assets and Xxxxxxxx Cash
Management Fund, Inc., which does not pay any 12b-1 fee. If a Client purchases
shares of any Xxxxxxxx municipal fund, the Annual Fee shall be reduced to 0.10%
with respect to such shares. If a Client purchases shares of the Xxxxxxxx Cash
Management Fund, the Annual Fee shall be reduced to 0% with respect to such
shares.
