FORM OF
FOREIGN FUND, INC.
SALES AND INVESTOR SERVICES AGREEMENT
Date: , 19__
_____________________
_____________________
_____________________
Ladies and Gentlemen:
Foreign Fund, Inc. (the "Fund") is an open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"), organized as a series fund and formed as a corporation under the
laws of the State of Maryland. The Fund will consist initially of seventeen
series (each, an "Index Series"), and will issue shares of common stock, par
value $.001 per share, of each Index Series (such shares are referred to herein
as "World Equity Benchmark Shares-SM-" or "WEBS-SM-"). The Fund will only sell
and redeem WEBS in aggregations of a specified number of WEBS (each, a "Creation
Unit") depending on the Index Series as set forth in the Fund's Prospectus and
Statement of Additional Information, as they may be amended from time to time.
Pursuant to a Distribution Agreement between the Fund and us (the "Distribution
Agreement"), we will act as distributor (the "Distributor") and principal
underwriter of Creation Units of WEBS of the various Index Series as exclusive
agent on behalf of the Fund. Capitalized terms not defined herein shall have
the meanings attributed to them in the current Prospectus and Statement of
Additional Information of the Fund.
Creation Units of WEBS of each Index Series will generally be sold at
net asset value, without a sales charge, in exchange for Deposit Securities and
a balancing cash payment, all as described in the Fund's Prospectus and
Statement of Additional Information. Only Authorized Participants may directly
place orders for Creation Units of WEBS.
As Distributor and principal underwriter of the Fund, we wish to enter
into this Sales and Investor Services Agreement (this "Agreement") with you
concerning (i) your solicitation of purchase orders for Creation Units of WEBS,
(ii) your provision of broker-dealer and shareholder support services to your
clients ("Clients") who may from time to time beneficially own WEBS of any Index
Series and (iii) your educational and promotional activities in the secondary
market for WEBS listed and traded on the American Stock Exchange (the "AMEX").
You understand and acknowledge that the proposed method by which
Creation Units of WEBS will be created and traded may raise certain issues under
applicable securities laws. For example, because new Creation Units of WEBS may
be issued and sold by the Fund on an ongoing basis, at any point a
"distribution", as such term is used in the 1933 Act, may occur. You understand
and acknowledge that some activities on your part may, depending on the
circumstances, result in your being deemed a participant in a distribution in a
manner which could render you a statutory underwriter and subject you to the
prospectus delivery and liability provisions of the 1933 Act. You also
understand and acknowledge that when you are not an "underwriter" but are
effecting transactions in WEBS, whether or not participating in the distribution
of WEBS, you are generally required to deliver a prospectus.
This Agreement is a related agreement as contemplated by Rule 12b-1
under the 1940 Act with respect to the Rule 12b-1 plan of the Fund ("12b-1
Plan"). Both you and we and the Fund expect that your services and educational
and promotional activities in connection with WEBS pursuant to this Agreement
will tend to increase investor interest in and the use and trading of WEBS in
the secondary market and thus further sales of WEBS of the Fund's Index Series.
In consideration of the mutual covenants contained herein, it is
hereby agreed that our respective rights and obligations shall be as follows:
1. ROLE OF DISTRIBUTOR. Pursuant to and in accordance with the
provisions of the Distribution Agreement, we will make arrangements for
securities dealers that can make the representations set forth in Section 4 of
this Agreement to solicit orders to purchase Creation Units of WEBS of each
Index Series. You are hereby invited to become one of the securities dealers
referred to herein as a "Soliciting Dealer". This will confirm our mutual
agreement as to the terms and conditions applicable to your participation as a
Soliciting Dealer, such agreement to be effective upon your confirmation hereof.
You understand that we are seeking to enter into this Agreement in counterparts
with you and other firms which also may act as
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Soliciting Dealers. All purchases of Creation Units of WEBS from the Fund shall
be effected by us, through an Authorized Participant, in our capacity as
principal underwriter and distributor acting as agent on behalf of the Fund.
You understand that we shall have no obligation to you hereunder at such times
as we are not acting as distributor and principal underwriter for the sale of
WEBS in Creation Unit aggregations.
2. ROLE OF SOLICITING DEALERS.
(a) As a Soliciting Dealer, you shall offer and solicit purchase
orders for Creation Units of WEBS. As, when and if you generate a customer
request for the purchase of Creation Units of WEBS of any Index Series and you
determine to transmit such request to us, you shall comply with the procedures
for the purchase of Creation Units of WEBS set forth in the then current
Prospectus and Statement of Additional Information of the Fund. You shall be
responsible for opening, approving and monitoring customer accounts and for the
review and supervision of these accounts, all in accordance with the rules of
the Securities and Exchange Commission ("SEC") and the National Association of
Securities Dealers, Inc. (the "NASD"). You understand that all orders for the
purchase of Creation Units of WEBS of each Index Series must be placed with us
and may be placed only through an Authorized Participant that has entered into
an Authorized Participant Agreement with us and the Fund. During any period
that you are an Authorized Participant, you may submit purchase orders to us in
such capacity. Your duties and obligations as an Authorized Participant are
determined by the terms and conditions of the Authorized Participant Agreement
and not pursuant hereto. The procedures relating to orders and the handling
thereof will be subject to the terms of the Authorized Participant Agreement,
the then current Prospectus and Statement of Additional Information of the Fund
and instructions in writing received by you from us or the Fund's transfer agent
from time to time. No conditional orders will be accepted. No Creation Units
of WEBS shall be issued except upon receipt of the consideration therefor. If
payment for any purchase order is not received in accordance with the terms of
the then current Prospectus and Statement of Additional Information, we reserve
the right, without notice, to cancel the sale and to hold you responsible for
any loss sustained as a result thereof. Unless otherwise mutually agreed in
writing, each transaction shall be promptly confirmed by the Authorized
Participant in writing to the customer on a fully disclosed basis and a copy of
each confirmation shall be sent simultaneously to you by the Authorized
Participant. You
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agree that upon receipt of duplicate confirmations you will examine the same and
promptly notify us of any errors or discrepancies which you discover and shall
promptly bring to our attention, the Authorized Participant's attention and the
Fund's attention any errors in such confirmations claimed by your customers.
(b) You agree to offer WEBS in Creation Unit size aggregations to the
public at the then current public offering price per Creation Unit of WEBS
(i.e., the next determined net asset value per WEBS) as set forth in the Fund's
then current Prospectus and Statement of Additional Information, as the same may
be amended or supplemented. All orders are subject to acceptance or rejection
by us or the Fund in our or its sole discretion.
(c) You agree to provide broker/dealer and shareholder support
services to Clients in connection with the outstanding and issued WEBS,
including one or more of the following: (i) distributing prospectuses and
shareholder reports to current shareholders; (ii) as applicable, complying with
federal and state securities laws pertaining to transactions in WEBS; (iii)
processing dividend payments on behalf of Clients; (iv) providing information
periodically to Clients showing their positions in WEBS; [(v) providing and
maintaining elective services such as check writing on the Client's account and
wire transfer services;] (vi) acting as nominee for Clients holding WEBS; (vii)
maintaining account records for Clients; (viii) issuing confirmations of
transactions; (ix) providing subaccounting with respect to WEBS beneficially
owned by Clients or the information necessary for subaccounting; (x) if required
by law, forwarding shareholder communications from us or on behalf of the Fund
(such as proxies, shareholder reports, annual and semi-annual financial
statements and dividend, distribution and tax notices); (xi) providing services
primarily intended to result in the sale of WEBS; (xii) assisting shareholders
who wish to aggregate sufficient WEBS of an Index Series to constitute a
Creation Unit for redemption; and (xiii) such other services analogous to the
foregoing as you customarily provide to clients with respect to holdings of
shares of open-end investment companies or exchange-listed stocks or as we or
the Fund may reasonably request to the extent you are permitted to do so under
applicable statutes, rules and regulations.
(d) You agree to provide educational and promotional services related
to the secondary market trading of WEBS, including the following: (i)
facilitating access for investor relations representatives for WEBS to
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designated branches or offices as set forth in Annex I for the purpose of broker
education, including through sales meetings, one-on-one broker contact and
broker luncheons; (ii) making your country allocation research available widely
through your internal systems and reformatting such allocation research to make
specific recommendations of WEBS of appropriate Index Series; (iii) working with
us and the Fund to facilitate the flow of WEBS data through your internal
information systems, which information shall include all available WEBS data
(i.e., real-time AMEX pricing on WEBS, spot foreign exchange rates, the per WEBS
value of the most recently published Portfolio Deposit and Cash Component of
each Index Series, adjusted to account for foreign exchange rates (the "Adjusted
Basket Value"), and, eventually, data on the underlying Xxxxxx Xxxxxxx Capital
International bench-xxxx indices for the Index Series) and other research and
news; (iv) support of senior management for use of WEBS as a trading and hedging
tool; and [(v) during the first 180 days following the initial sale of Creation
Units, provide sales incentives to your brokers pursuant to arrangements set
forth in a letter from you to us.]
(e) You also agree to provide such office space and equipment,
telephone facilities and personnel (which may be any part of the space,
equipment and facilities currently used in your business, or any personnel
employed by you) as may be reasonably necessary or beneficial in order to
provide the services listed in clauses 2(c) and 2(d) above to Clients and as is
otherwise provided in this Section 2.
(f) Subject to the requirements of applicable law and regulations,
nothing in this Agreement shall be construed to prohibit or restrict you from
purchasing or selling for your own account Creation Unit aggregations of WEBS,
whether as agent or principal.
3. INFORMATION.
(a) We will furnish you, without charge, the Fund's current
Prospectus and Statement of Additional Information and copies of sales materials
relating to the offer and sale of Creation Units of WEBS approved and filed with
the NASD by us ("Fund Sales Materials") in such quantities as are reasonably
requested by you and made available to us by the Fund for use in connection with
the offer and sale of Creation Units of WEBS. Such Fund Sales Materials may
include materials suitable for institutional marketing efforts, including
conferences, road shows and institutional advertisements and/or "tombstones"
related to the initial public offering of Creation Units of WEBS.
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Under this Agreement you will not act for us, the Fund or BZW Barclays Global
Fund Advisors (the "Investment Adviser"), nor make any representation on our
behalf or the Fund's behalf, or as authorized by us, the Fund or the Investment
Adviser, and in offering and selling Creation Units of WEBS hereunder you may
rely only upon, the Fund's then current prospectus and statement of additional
information and the Fund Sales Materials, provided that you are authorized to
prepare and use at your own cost and expense other brochures, advertisements (in
print or other format) or similar materials in connection with your solicitation
of purchases of Creation Units of WEBS which may constitute "sales literature"
within the meaning of Section 24(b) of the 1940 Act ("Other Soliciting
Materials"), but only if such Other Soliciting Materials (i) are prepared in
compliance with all applicable NASD and SEC rules and regulations, (ii) provided
to us a reasonable time prior to their intended use and (iii) are not used until
approved by us and the Fund and filed by us with the NASD. You understand that
the Fund will not be advertised or marketed as an open-end investment company or
mutual fund, i.e., as a mutual fund, which offers redeemable securities. Any
advertising materials, including the Fund Prospectus, will prominently disclose
that WEBS that are not in Creation Unit aggregations are not redeemable units of
beneficial interest in the Fund. In addition, any advertising material that
addresses redemptions of WEBS, including the Fund prospectus, will disclose that
the owners of WEBS may acquire and tender WEBS for redemption to the Fund in
Creation Unit aggregations only.
(b) We intend to establish a world-wide internet site to provide
certain on-line MSCI analytical data ("MSCI WEBS Analitics"). If and when
available, you will be provided access to our site and the use of MSCI WEBS
Analitics.
4. REPRESENTATIONS.
(a) You represent to us as follows, and agree to abide by all of the
rules and regulations of the NASD, including, without limitation, the following
provisions of its Rules of Fair Practice, except as otherwise permitted by the
NASD as set forth in writing, a copy of which shall be provided to you by us:
(i) you will not withhold placing customers' orders for any Creation
Units of WEBS so as to profit yourself as a result of such withholding;
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(ii) you are familiar with Rule 15c2-8 under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), Section 4(3) of the Securities
Act of 1933, as amended (the "1933 Act"), and Section 24(d) of the 1940 Act
relating to the distribution and delivery of preliminary and final
prospectuses and agree that you will comply therewith;
(iii) you are a member in good standing of the NASD or, if you are not
such a member, you are a foreign bank, dealer or institution not eligible
for membership in the NASD which agrees to make no sale within the United
States, its territories or its possessions or to persons who are citizens
thereof or residents therein, and in making other sales to comply, as
though you were a member of NASD, with the provisions of Sections 8, 24 and
36 of Article III of the Rules of Fair Practice of the NASD and with
Section 25 thereof as that Section applies to a non-NASD member broker or
dealer in a foreign country.
(b) You agree that your expulsion from the NASD will automatically
terminate this Agreement.
(c) You agree to comply with any rules of the American Stock
Exchange, Inc. or such other secondary market or markets as has or have been
approved by an order of the SEC for the trading of WEBS. A copy of the
conditions of the SEC order in accordance with which WEBS are offered are
attached hereto as Annex II.
(d) We represent to you that we are a member in good standing of the
NASD and agree to abide by all of the NASD's rules and regulations.
5. INDEPENDENT CONTRACTOR. For all purposes of this Agreement, you
will be deemed to be an independent contractor, and will have no authority to
act as agent, partner, joint venture participant or in any similar capacity for
us in any matter or in any respect. You and your officers and employees will,
upon request, be available during normal business hours to consult with us or
our designees concerning the performance of your responsibilities under this
Agreement.
6. COMPENSATION; EXPENSES. In consideration of the services and
facilities provided by you hereunder, subject to the terms and conditions of the
12b-1 Plan, in our capacity as the Distributor implementing the 12b-1 Plan, we
will pay to you and you agree to accept as full payment therefor, the fees set
forth in Annex III attached hereto.
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You understand and agree that no amount shall be paid or payable to you
hereunder except from amounts paid to us by the Fund for disbursements to you
under this Agreement and pursuant to and in accordance with the 12b-1 Plan. You
understand and agree that the Distributor is obligated to make such payments to
you only after the Fund has paid such 12b-1 payments to the Distributor.
7. REPORTS. You will provide to us and the Fund's Board of
Directors, and we and the Fund's Directors will review, at least quarterly, a
written report of the amounts so expended and the purposes for which such
expenditures were made. In addition, you will furnish us or our designees with
such information as we or they may reasonably request (including, without
limitation, periodic certifications confirming the provision to Clients by you
or your agents of the services described herein), and will otherwise cooperate
with us and our designees (including, without limitation, any auditors
designated by us or the Fund), in connection with preparation of reports to the
Fund's Board of Directors concerning this Agreement and the monies paid or
payable by us in connection the services you have agreed to provide hereunder,
as well as any other reports or filings that may be required by law.
8. RULE 12b-1 RELATED AGREEMENT. By your written acceptance of this
Agreement, you represent, warrant and agree that you understand that this
Agreement is a Rule 12b-1 related agreement under the 1940 Act, subject to the
provisions of such Rule, as well as any other applicable rules or regulations of
the SEC, and agree to conform to the applicable compliance standards adopted by
us for sale of WEBS, as in effect from time to time.
9. COMPLIANCE.
(a) You agree that your activities pursuant to this Agreement will be
at all times in conformity in all material respects with all applicable federal
and state laws, rules and regulations, including without limitation, the 1933
Act, the 1934 Act, the 1940 Act and the Rules of Fair Practice of the NASD (as
provided in Section 4 hereof). In connection with offers to sell and sales of
WEBS of each Index Series, you agree to deliver or cause to be delivered to each
person to whom any such offer of sale is made, at or prior to the time of such
offer or sale, a copy of the then current prospectus and the statement of
additional information of the Fund.
(b) We agree to inform you, as the Fund provides or causes to be
provided to us such information, as to the
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states in which we believe WEBS of the respective Index Series have been
qualified for sale under, or are exempt from the requirements of, the respective
securities laws thereof, but we shall have no obligation or responsibility to
make WEBS of any Index Series available for sale in any jurisdiction.
10. INITIAL PURCHASE BY SOLICITING DEALER. If applicable, the
soliciting dealer will be obligated to make an initial investment in WEBS as
detailed in Annex IV hereto.
11. BENEFICIAL OWNERSHIP. The Soliciting Dealer represents and
warrants to the Distributor and the Fund that (based upon the number of
outstanding WEBS of such Index Series made publicly available by the Fund) it
does not, and will not in the future, hold for the account of any single
beneficial owner of WEBS of the relevant Index Series 80 percent or more of the
currently outstanding WEBS of such relevant Index Series, so as to cause the
Fund to have a basis in the portfolio securities deposited with the Fund with
respect to such Index Series different from the market value of such portfolio
securities on the date of such deposit, pursuant to section 351 of the Internal
Revenue Code of 1986, as amended.
12. INDEMNIFICATION. The Soliciting Dealer hereby agrees to
indemnify and hold harmless the Distributor and the Fund, their respective
subsidiaries, affiliates, directors, officers, employees and agents, and each
person, if any, who controls such persons within the meaning of Section 15 of
the 1933 Act (each an "Indemnified Party") from and against any loss, liability,
cost and expense (including attorneys' fees) incurred by such Indemnified Party
as a result of (i) a breach of any representation, warranty or covenant made by
the Soliciting Dealer in this Agreement; or (ii) failure of the Soliciting
Dealer to perform any obligations set forth in the Agreement; or (iii) any
failure on the part of the Soliciting Dealer to comply with applicable laws.
The Soliciting Dealer and the Distributor understand and agree that the Fund as
a third party beneficiary to this Agreement is entitled and intends to proceed
directly against the Soliciting Dealer in the event that the Soliciting Dealer
fails to honor any obligations pursuant to this Agreement that benefit the Fund.
This paragraph shall survive the termination of this Agreement. THE DISTRIBUTOR
SHALL NOT BE LIABLE TO THE SOLICITING DEALER FOR ANY DAMAGES ARISING OUT OF
MISTAKES OR ERRORS IN DATA PROVIDED TO THE DISTRIBUTOR, OR ARISING OUT OF
INTERRUPTIONS OR DELAYS OF COMMUNICATIONS WITH THE INDEMNIFIED PARTIES WHO ARE
SERVICE PROVIDERS TO THE FUND.
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13. TERM; TERMINATION; AMENDMENT.
(a) Unless sooner terminated, this Agreement will continue for one
year following the date of its adoption as provided in Section 16, and
thereafter will continue automatically for successive annual periods provided
such continuance is specifically approved at least annually by the Fund in the
manner described in Section 16 hereof. This Agreement is terminable, without
penalty, at any time by the Fund with respect to any Index Series (which
termination may be by a vote of a majority of the Disinterested Directors as
defined in Section 16 hereof or by vote of the holders of a majority of the
voting securities (as such term is defined in the 0000 Xxx) of such Index
Series) or by you upon 60 days' notice in writing to the other party hereto.
This Agreement will also terminate automatically in the event of its assignment
(within the meaning of the 0000 Xxx) or upon the termination of the Distribution
Agreement or Rule 12b-1 Plan between the Fund and us. The Distributor, with the
prior written consent of the Fund, may amend this agreement by mailing a copy of
the amendment to the Soliciting Dealer, which amendment will become part of this
Agreement if the Soliciting Dealer does not object in writing within 10 business
days after its receipt. This Agreement may also be amended in writing by the
parties hereto.
(b) In the event that the Board of Directors of the Fund establishes
any series of WEBS listed and traded on the AMEX or any other national
securities exchange in addition to the Index Series then subject to this
Agreement, adopts a 12b-1 Plan with respect to such additional series and
approves this Agreement with respect to such additional series in accordance
with Rule 12b-1, such additional series shall be made subject to this Agreement
and shall become an "Additional Series" hereunder effective immediately upon
such adoption and approval.
14. SUSPENSION. All sales will be made subject to receipt of WEBS
from the Fund. We and the Fund reserve the right, in our sole discretion,
without notice, to suspend sales or withdraw the offering of sales of Creation
Units of WEBS of any Index Series entirely, including the sale of such WEBS to
you for the account of any client or clients.
15. NO OTHER AGREEMENT. This Agreement shall supersede any prior
agreements between us regarding the sale of Creation Units of WEBS.
16. BOARD APPROVAL. This Agreement and the 12b-1 Plan is subject to
approval by vote of (i) the Fund's Board
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of Directors and (ii) of a majority of those Directors 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 the Fund
regarding the provision of support services to the beneficial owners of WEBS of
the respective Index Series or in any agreement related thereto ("Disinterested
Directors") cast in person at a meeting called for the purpose of voting on such
approval.
17. MISCELLANEOUS.
(a) Notice. Notice shall have been duly given if delivered by hand,
mail or facsimile transmission to you, at your address or facsimile number set
forth below and (b) if to us, to Funds Distributor, Inc., Xxx Xxxxxxxx Xxxxx,
00xx Xxxxx, Xxxxxx, XX 00000, facsimile no. (000) 000-0000, Attention:
President, with a copy to General Counsel, or in each case such other addresses
as may be notified to the other party.
(b) Successors. Subject to Section 8 hereof, this Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective legal successors and the Fund, and no other person will have any
right or obligation hereunder.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
principles of conflicts of law.
The parties irrevocably submit to the non-exclusive jurisdiction of
any New York State or United States Federal Court sitting in New York City over
any suit, action or proceeding arising out of or relating to this Agreement.
18. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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Please confirm your agreement by signing and returning to us the
enclosed duplicate copies of this Agreement. Upon our acceptance hereof, this
Agreement shall constitute a valid and binding contract between us. After our
acceptance, we will deliver to you one fully executed copy of this Agreement.
Very truly yours,
FUNDS DISTRIBUTOR INC.
By_________________________________
Name:
Title:
Confirmed: , 19__
(Name of Soliciting Dealer)
By___________________________
(sign name and print title)
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Annex I
DESIGNATED BRANCHES OR OFFICES OF SOLICITING DEALER
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Annex II
CONDITIONS OF SEC ORDER
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Annex III
ANNUAL FEES
[Option 1 - At the annual rate of [.03] of 1% of the average aggregate daily net
assets of the outstanding WEBS of each Index Series, except WEBS held in your
name at the Depository Trust Company ("DTC"), computed daily and payable on a
quarterly basis, plus [.04] of 1% of the average daily net assets of the WEBS
held in your name DTC up to $250 million; 0.05 of 1% of the average daily net
assets of WEBS held in your name at DTC between $250 million and $750 million;
and 0.07 of 1% of the average daily net assets of WEBS held in your name at DTC
in excess of $750 million computed daily and payable on a quarterly basis.
[Option 2 - At the annual rate of [ ] of 1% of the average daily net assets
of WEBS held in your name at DTC computed daily and payable on a quarterly
basis.
ADDITION TERMS AND CONDITIONS
For purposes of determining the fees payable under this Annex III, the
average aggregate daily net assets of the Index Series will be computed in the
manner specified in the Fund's Registration Statement (as the same is in effect
from time to time) in connection with the computation of the net asset value of
WEBS for purposes of purchases and redemptions. Except as specifically provided
in this Annex III, you shall bear all of your own costs and expenses in
connection with your acting as a Soliciting Dealer, it being understood that we
and the Fund shall bear our and the Fund's respective costs and expenses. You
shall not be required to bear any of the costs or expenses assumed by us or any
other Soliciting Dealer except as provided for herein or as you may have agreed
with another Soliciting Dealer.
The Soliciting Dealer shall provide the Distributor with its DTC
account information in the form and manner as prescribed by the Distributor by
the 5th business day after the end of each calendar month. The Soliciting
Dealer understands and acknowledges that the Distributor shall, on a test basis,
independently verify the DTC account information provided by the Soliciting
Dealer, with the costs of such independent verification borne by the Soliciting
Dealer. Any discrepancies will be interpreted by the Distributor and the
Distributor's interpretation of such data shall be final.
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Annex IV
INITIAL INVESTMENT IN WEBS
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