FORM OF
DEALER AGREEMENT
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This Dealer Agreement (the "Agreement") is made and entered into by and
among Xxxxxxx & Xxxxxx Investor Services, Inc. ("MNIS"), a New York corporation
having its principal business offices at 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx
00000, and the undersigned dealer ("Selling Dealer").
WITNESSETH:
WHEREAS, Xxxxxxx & Xxxxxx Fund, Inc. (the "Fund"), an open-end management
investment Fund registered under the Investment Fund Act of 1940, as amended
(the "1940 Act"), offers units of beneficial interest ("shares") of a number of
its series investment funds (each a "Series"), each with its own investment
objective and strategies, and the Fund offers five classes of shares of each
such Series: the Class A shares ("Class A Shares"); the Class B shares ("Class
B Shares"); the Class C shares ("Class C Shares"); the Class D Shares ("Class D
Shares"); and the Class E Shares ("Class E Shares");
WHEREAS, the Fund has entered into a distribution agreement with MNIS (the
"Distribution Agreement") for the distribution by MNIS of the Class A, Class B,
Class C, Class D and Class E Shares;
WHEREAS, Selling Dealer desires to agree with MNIS to sell shares in the
Fund to the customers of the Selling Dealer and to pay MNIS, as principal
underwriter of the Fund, amounts due in connection with orders for shares of the
Fund;
WHEREAS, MNIS and the Selling Dealer desire to provide for the payment of
sales loads, commissions, distribution fees or shareholder service fees with
respect to sales of each class of shares of the Fund and related shareholder
services;
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
it is hereby agreed by and among the parties hereto as follows:
1. Definition of Terms. As used herein, the term "Prospectus" means the
prospectuses and, unless the context otherwise requires, related statements
of additional information (the "Statements of Additional Information")
incorporated therein by reference, as the same are amended and supplemented
from time to time, of each of the respective Funds and
each of the respective classes of shares of the respective Funds; the term
"Business Day" means any day on which the New York Stock Exchange is open;
and the term "principal underwriter" has the definition provided in the
1940 Act.
2. Selling Dealer shall use its best efforts to sell shares of the Series that
are now or hereafter available for sale to customers of Selling Dealer.
Customers of Selling Dealer that purchase shares of the Series (the
"Customers") are for all purposes customers of Selling Dealer and not
customers of the Fund or MNIS. Selling Dealer shall be responsible for
opening, approving and monitoring accounts for Customers and for the review
and supervision of these accounts, all in accordance with the rules of the
Securities and Exchange Commission ("SEC") and National Association of
Securities Dealers, Inc. (the "NASD"). In no transaction involving shares
of the Series shall Selling Dealer have any authority to act as agent for
the Fund or MNIS.
3. All orders for the purchase of Class A, Class B, Class C, Class D and Class
E Shares of the Series shall be executed at the then-current net asset
value per share and all orders for the redemption of Class A, Class B,
Class C, Class D and Class E Shares of the Series shall be executed at the
net asset value per share. The Fund will direct its transfer agent
("Transfer Agent") to withhold and pay to MNIS all contingent deferred
sales charges, if any, imposed on repurchases and redemptions of the Shares
upon the terms and conditions set forth in the Prospectus. The minimum
initial purchase order shall be as set forth in the appropriate Prospectus.
Unless otherwise mutually agreed in writing between MNIS and Selling
Dealer, each transaction for shares of any class of shares of the Series
shall be promptly confirmed in writing to the Customer on a fully disclosed
basis and a copy of each confirmation shall be sent simultaneously to
Selling Dealer. Selling Dealer agrees that, upon receipt of such duplicate
confirmations, Selling Dealer shall examine the same and promptly notify
the Transfer Agent or MNIS, as the case may be, of any errors or
discrepancies that Selling Dealer discovers and shall promptly bring to the
attention of the Transfer Agent or MNIS, as the case may be, any errors in
such confirmations claimed by any Customers.
4. The Fund and MNIS have each reserved the right to refuse at any time or
times to sell any of the Fund's shares for any reason, and the Fund and
MNIS, as the case may be, have each reserved the right to refuse at any
time to accept any order for purchase of shares for any reason. In
ordering shares of any Fund, Selling Dealer shall rely solely and
conclusively on the representations contained in the Prospectus of such
Fund. Selling Dealer agrees that Selling Dealer shall not offer or sell
shares of any Series or of any class of any Series, except in compliance
with all applicable federal and state securities laws and the rules and
regulations of applicable regulatory agencies or authorities. In
connection with offers to sell, and sales of, shares of each Series,
Selling Dealer agrees to deliver or cause to be delivered to each person to
whom any such offer or sale is made, at or prior to the time of such offer
or sale, a copy of the Prospectus and, upon request, the
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Statement of Additional Information of the Fund and the class of shares of
the Series involved.
Selling Dealer further agrees to obtain for each Customer to whom Selling
Dealer sells shares of the Series any taxpayer identification number
certification required under Section 3406 of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations thereunder, and to
provide MNIS or MNIS's designated agent with timely written notice of any
failure to obtain such taxpayer identification number certification in
order to enable the implementation of any required backup withholding in
accordance with Section 3406 of the Code and the regulations thereunder.
Unless otherwise mutually agreed in writing between MNIS and Selling
Dealer, MNIS shall deliver or cause to be delivered to each Customer that
purchases shares of any Series through Selling Dealer copies of all annual
and interim reports, proxy solicitation materials and any such other
information and materials relating to such Series or class of shares of
such Series and prepared by or on behalf of MNIS, the Fund, its investment
adviser, investment sub-adviser, custodian, transfer agent or dividend
disbursing agent for distribution to such Customer. MNIS agrees to supply
Selling Dealer with copies of the Prospectus, Statement of Additional
Information, annual reports, interim reports, proxy solicitation materials
and any such other information and materials relating to each Series and
each class of shares of each Series in reasonable quantities upon request.
Selling Dealer acknowledges that any materials or information that MNIS
furnishes to Selling Dealer, other than Prospectuses, annual and interim
reports to shareholders and proxy solicitation materials prepared by the
Fund, are the sole responsibility of MNIS and not the responsibility of the
Fund.
5. Selling Dealer shall not make any representation concerning any shares of
the Series or class of shares of the Series other than those contained in
the Prospectus of the Fund and class of shares of the Series involved or in
any promotional materials or sales literature furnished to Selling Dealer
by MNIS or the Fund. Selling Dealer shall not furnish, or cause to be
furnished, to any person, or display or publish, or cause to be displayed
or published, any information or materials relating to any Series or class
of shares of a Series (including, without limitation, promotional materials
and sales literature, advertisements, press releases, announcements,
statements, posters, signs or other similar materials), except such
information and materials as may be furnished to Selling Dealer by MNIS and
such other information and materials as may be approved in writing by MNIS.
Selling Dealer acknowledges that customers choosing between classes should
carefully consider the fee structures of the classes in order to determine
the most appropriate investment class. In accord with the NASD Rules of
Fair Practice, Selling Dealer shall have reasonable grounds for believing
that the recommendation of Fund shares is suitable based upon reasonable
efforts to obtain appropriate suitability information from the Customer.
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6. In determining the amount of any dealer allowance or sales commission
payable to Selling Dealer hereunder, MNIS reserves the right with respect
to sales of the Class A, Class B, Class C, Class D and Class E Shares to
exclude any sales which MNIS reasonably determines are not made in
accordance with the terms of the applicable Fund Prospectus and the
provisions of this Agreement. Unless, at the time of transmitting an order
with respect to Class A, Class B, Class C, Class D and Class E Shares,
Selling Dealer advises MNIS or the Transfer Agent to the contrary, the
shares of the Series ordered will be deemed to be the total holdings of the
Customer for whom the order is transmitted.
7. Each exchange of shares of the Series (the investment of the proceeds from
the redemption of shares of one class of a Series in the shares of another
class of shares of the same Series or the same or another class of shares
of another Series) shall, where available, be made in accordance with the
terms of the Prospectus.
8. The procedures relating to orders and the handling thereof will be subject
to the terms of the Prospectus and to instructions received by Selling
Dealer from MNIS or the Transfer Agent from time to time. No conditional
order will be accepted. Selling Dealer agrees that purchase orders placed
by Selling Dealer will be made only for the purpose of covering purchase
orders already received from Customers and that Selling Dealer will not
make purchases of shares of the Series for any other securities dealer or
broker. Selling Dealer shall place purchase orders from Customers with
MNIS or the Transfer Agent immediately and shall not withhold the placement
of such orders so as to profit Selling Dealer, provided, however, that the
foregoing shall not prevent the purchase of shares of any Series by Selling
Dealer for bona fide investment by Selling Dealer itself. Selling Dealer
agrees that: (a) Selling Dealer shall not effect any transactions
(including, without limitation, any purchases and redemptions) in any
shares of the Series registered in the name of, or beneficially owned by,
any Customer unless such Customer has granted Selling Dealer full right,
power and authority to effect such transactions on behalf of such Customer,
and (b) MNIS, the Fund, the Transfer Agent and the respective officers,
directors or trustees, agents, employees and affiliates of MNIS, the Fund
and each Transfer Agent (collectively, "indemnified persons") shall not be
liable for, and shall be fully indemnified and held harmless by Selling
Dealer from and against, any and all claims, demands, liabilities and
expenses (including, without limitation, reasonable attorney's fees) that
may be incurred by any indemnified person from Selling Dealer hereunder
arising out of, or in connection with, (i) the execution of any
transactions in shares of the Funds registered in the name of, or
beneficially owned by, any Customer in reliance upon any oral or written
instructions believed to be genuine by such indemnified person and to have
been given by or on behalf of Selling Dealer; and (ii) the failure of
Selling Dealer to comply with the terms of this Agreement. The
indemnification agreement contained in this Paragraph 8 shall survive the
termination of this Agreement.
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9. (a) Selling Dealer agrees that payment for orders from Selling Dealer
for the purchase of shares of the Series will be made in accordance with
the terms of the Prospectus.
(b) On or before the settlement date of each purchase order for Class
A, Class B, Class C, Class D and Class E Shares, Selling Dealer shall
either (i) remit to an account designated by MNIS with the Transfer Agent
an amount equal to the then-current net asset value in accordance with the
terms of the applicable Prospectus, or (ii) remit to an account designated
by MNIS with the Transfer Agent an amount equal to the then-current net
asset value of such classes of shares as determined by MNIS in accordance
with the terms of the applicable Prospectus, in which case Selling Dealer's
dealer allowance, if any, with respect to such purchase order, as
determined by MNIS in accordance with the terms of the applicable
Prospectus, shall be payable to Selling Dealer on at least a monthly basis
by MNIS. If payment for any purchase order for the classes of shares of a
Series of the Fund is not received in accordance with the terms of the
applicable Prospectus, MNIS reserves the right, without notice, to cancel
the sale and to hold Selling Dealer responsible for any loss sustained as a
result thereof.
10. (a) Selling Dealer will provide shareholder servicing, such as, but
not limited to, responding to Customer inquiries and providing account
information. MNIS will provide personnel during normal business hours to
provide information about the Fund in response to Customer inquiries.
(b) In addition to the fees delineated above in paragraph 9(e), MNIS
agrees, subject to the other terms and conditions of this Agreement, to pay
Selling Dealer a service fee, and Selling Dealer agrees to accept the same
as full payment therefor, accrued daily and payable quarterly at the annual
rate of 0.25% of the average daily net assets of Class A, Class B, Class C,
Class D and Class E Shares held by Customers. Accrual of such service fee
by Selling Dealer shall commence with respect to each such classes of
shares after such share is held for twelve months. Under each of the Class
A, Class B, Class C, Class D and Class E Plans, the Fund is authorized to
make expenditures of Fund assets for various distribution and support
services. Selling Dealer understands and agrees that (i) the service fees
are subject to the limitations contained in the Distribution Agreement and
the Class A, Class B, Class C, Class D and Class E Plans, which may be
amended or terminated at any time, and (ii) Selling Dealer's failure to
provide services as agreed will render Selling Dealer ineligible to receive
the service fees.
11. Selling Dealer hereby represents and warrants that: (a) Selling Dealer is
a corporation, partnership or other entity duly organized and validly
existing in good standing under the laws of the jurisdiction in which
Selling Dealer is organized; (b) the execution and delivery of this
Agreement and the performance of the transactions contemplated hereby have
been duly authorized by all necessary action and all other authorizations
and
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approvals (if any) required for Selling Dealer's lawful execution and
delivery of this Agreement and Selling Dealer's performance hereunder have
been obtained; and (c) upon execution and delivery by Selling Dealer, and
assuming due and valid execution and delivery by MNIS, this Agreement will
constitute a valid and binding agreement, enforceable against Selling
Dealer in accordance with its terms.
12. Selling Dealer further represents and warrants that Selling Dealer is a
member of the NASD and, with respect to any sales in the United States,
Selling Dealer agrees to abide by all of the rules and regulations of the
NASD, including, without limitation, its Conduct Rules. Selling Dealer
agrees to comply with all applicable federal and state laws, rules and
regulations. MNIS agrees to inform Selling Dealer, upon request, as to the
states in which MNIS believes the shares of the respective classes of the
respective Funds have been registered or qualified for sale under, or are
exempt from the requirements of, the respective securities laws of such
states, but shall have no obligation or responsibility to make shares of
any Fund available for sale to Customers in any jurisdiction. Selling
Dealer agrees to notify MNIS immediately in the event of Selling Dealer's
expulsion or suspension from the NASD. Selling Dealer's expulsion from the
NASD will automatically terminate this Agreement immediately without
notice. Selling Dealer's suspension from the NASD will terminate this
Agreement effective immediately upon written notice of termination to
Selling Dealer.
13. The names and addresses and other information concerning Customers are and
shall remain Selling Dealer's sole property, and neither MNIS nor the
affiliates of MNIS shall use such names, addresses or other information for
any purpose except in connection with the performance of the duties and
responsibilities of MNIS hereunder and except for servicing and
informational mailings relating to the Series and classes of shares of the
Fund. The provisions of this Paragraph 13 shall survive the termination of
this Agreement.
14. Neither this Agreement nor the performance of the services of the
respective parties hereunder shall be considered to constitute an exclusive
arrangement, or to create a partnership, association or joint venture
between or among any combination of MNIS and Selling Dealer. None of the
parties hereto shall be, act as, or represent itself as, the agent or
representative of any of the other parties hereto, nor shall any party
hereto have the right or authority to assume, create or incur any liability
or any obligation of any kind, express or implied, against or in the name
of, or on behalf of, any of the other parties hereto. This Agreement is
not intended to, and shall not, create any rights against any party hereto
by any third party solely on account of this Agreement. None of the
parties hereto shall use the name of any of the other parties hereto in any
manner without such other party's prior written consent, except as required
by any applicable federal or state law, rule or regulation, and except
pursuant to any promotional programs mutually agreed upon in writing by the
parties hereto.
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15. Except as otherwise specifically provided herein, all notices required or
permitted to be given pursuant to this Agreement shall be given in writing
and delivered by personal or overnight delivery or facsimile (with
confirming copy by mail as provided herein). Unless otherwise notified in
writing, all notices to MNIS shall be given or sent to MNIS at its office,
located at 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000; and all notices to
Selling Dealer shall be given or sent to Selling Dealer at Selling Dealer's
address shown below.
16. This Agreement shall become effective when accepted and signed by MNIS, and
may be terminated at any time by any party hereto upon fifteen (15) days'
prior written notice to the other parties hereto. To the extent permitted
by law or regulation, including rules or regulations of any self-regulatory
organization having jurisdiction with respect to this Agreement, this
Agreement, including any schedules hereto, shall be deemed amended as
provided in any written notice delivered by MNIS to the other parties
hereto and otherwise may be amended only by a written instrument signed by
all of the parties hereto. This Agreement may not be assigned by any party
without the prior written consent of the other parties hereto. This
Agreement constitutes the entire agreement and understanding between the
parties hereto relating to the subject matter hereof and supersedes any and
all prior agreements among the parties relating to said subject matter.
17. This Agreement shall apply to all shares of the Fund that are currently
outstanding or being offered and that are offered and sold in the future,
including the shares of all of the Series, and of all of the classes of
shares of such Series, whether such Series or classes are currently
established or are established hereafter.
18. This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of New York, without giving effect to principles
of conflicts of laws.
WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
ATTEST: XXXXXXX & XXXXXX INVESTOR
SERVICES, INC.
By:
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Name: Name:
Title: Title:
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ATTEST: NAME OF SELLING DEALER:
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Name: (Print or Type)
Title:
By:
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Name:
Title:
Address:
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Telephone Number:
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FAX Number:
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