Dealer Agreement – Class A, Class C and Institutional Class Shares
EX.99(e)(3)
XXXXXXX FUNDS
Dealer Agreement – Class A, Class C and Institutional Class Shares
Selected Dealer Agreement between Xxxxxxx Investment Management (US) Corporation (“Distributor”) (“Dealer”) dated as of .
WHEREAS, the investment company listed in Appendix A hereto (the “Trust”) has appointed Distributor as its exclusive agent to sell and distribute each class of shares of each of its current and hereinafter created series (each a “Fund”), which shares are distributed by Distributor and sold by the Trust at their offering prices as set forth in the Trust’s Prospectus and Statement of Additional Information and as provided in Distributor’s Distribution Contract with respect to such Funds; and
WHEREAS, Distributor and Dealer desire that Dealer participate as a selected dealer in the distribution of those classes of shares of the Funds listed in Appendix A hereto for which Distributor now or hereinafter serves as principal underwriter, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, Distributor and Dealer hereby agree to the following terms and conditions:
1. Shares. Each Trust offers for each Fund up to three classes of shares covered by this Agreement – one class which generally bears only a front-end sales charge (the “Class A Shares”), (the “Class C Shares”) and one institutional class of shares (“Institutional Class Shares”). Class A Shares and Class C Shares are also subject to a contingent deferred sales charge in certain circumstances. The Class A Shares, Class C Shares and Institutional Class Shares are collectively referred to as the “Shares.” Each Trust also may offer additional classes of shares which are not covered by this Agreement.
2. Sales. Dealer will offer and sell the Shares only at the public offering prices which shall be currently in effect, in accordance with the terms of the applicable then-current Prospectuses, including any summary Prospectuses, and Statement of Additional Information of the Trust(s) (together, the “Prospectuses”). Xxxxxx agrees to act only as principal in such transactions and shall not have authority to act as an agent, broker or employee with respect to the
Trust(s), Distributor or any other dealer in any respect. The minimum dollar purchase of shares of each Fund by any investor shall be the applicable minimum amount described in the applicable then-current Prospectuses, subject to any such waivers as may be described in the Prospectuses. All orders are subject to acceptance by Distributor on behalf of the Trust(s) and become effective only upon confirmation by Distributor on behalf of the Trust(s); the Trust(s) and Distributor reserve the right to reject any purchase or exchange order for any reason or for no reason at all.
3. Sales Charges & Commissions.
(a) The sales charge applicable to any sale of Class A Shares by Dealer and the dealer discount (commission) applicable to any order from Dealer for the purchase of Class A Shares accepted by Distributor shall be that percentage of the applicable public offering price determined as set forth in the applicable Trust’s Prospectuses, subject to the rules of the Financial Industry Regulatory Authority (“FINRA”) and applicable law. With respect to Class A Shares sold by
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Dealer, Dealer will be paid by Distributor a servicing fee equal to the percentage of the aggregate net asset value of such Class A Shares sold as set forth in the applicable Trust’s Prospectuses.
(b) With respect to Class C Shares sold by Dealer, Dealer will be paid by Distributor distribution and servicing fees, at the times and equal to the percentages of the aggregate net asset value of such Class C Shares sold as set forth in Section 12 and the applicable Trust’s then-current Prospectuses.
(c) With respect to Institutional Class Shares sold by Dealer, Dealer will be paid by Distributor distribution and servicing fees, at the times and equal to the percentages of the aggregate net asset value of such Institutional Class Shares sold as set forth in Section 12 and the applicable Trust’s then-current Prospectuses.
(d) The rates of any sales charge, dealer discount (commission), distribution fee or servicing fee paid with respect to any Shares, including remaining payments, if any, with respect to outstanding Shares, are subject to change by Distributor from time to time, upon 10 days’ written notice, and any new orders placed after the effective date of such change will be subject to the rate(s) in effect at the time of receipt of the order by Distributor.
(e) Sales charges and dealer discounts (commissions) to selected dealers are subject to reductions under a variety of circumstances as may be described in the applicable Trust’s then-current Prospectuses. To obtain any such reductions, Distributor must be notified when the sale(s) takes place which would qualify for the reduced charge and the basis on which the reduction is applicable. There is currently no sales charge or dealer discount on acquisitions of Shares by the reinvestment of dividends.
4. CDSC. Distributor shall be entitled to any contingent deferred sales charges (“CDSC”)
on any Shares sold as set forth in the Trust’s then-current Prospectuses. If, with respect to any Shares sold by Dealer, any CDSC is waived for certain partial or complete redemptions as described in the applicable then-current Prospectuses, then in any such case Dealer shall remit to Distributor promptly upon notice an amount equal to the commission or distribution fee paid by Distributor to Dealer on such Shares when initially sold less an adjustment equal to the payments received by Distributor on such Shares pursuant to the Plans which are defined in Section 12 hereof.
5. Authorization. As a selected dealer, Dealer is hereby authorized: (i) to place orders through Distributor with the Funds for their Shares to be sold by the Funds to Dealer subject to the applicable terms and conditions governing the placement and acceptance of orders and subject to the applicable compensation provisions and other terms set forth in the Distribution Contract(s) between the Trust(s) and Distributor and in the Trust(s)’s applicable then-current Prospectuses, and (ii) to tender Shares directly to the Funds or their agent for redemption subject to the applicable terms and conditions set forth in said Distribution Contract(s) and Prospectuses.
6. Repurchases. Repurchase of Shares will be made at the net asset value of such Shares in accordance with the applicable then- current Prospectuses less any applicable CDSC payable to Distributor.
Such transactions, unless otherwise agreed, will settle in accordance with the provisions of the applicable Fund’s then-current Prospectuses, provided, however, that the Distributor may delay the payment of redemption proceeds to the Dealer except as prohibited by applicable law.
7. Timing of Transactions; Compliance Matters. Dealer agrees to comply with provisions of the Prospectuses of the Trust(s), and with all applicable federal, state and non-U.S. securities laws. Among other
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things, (a) Dealer shall be responsible for reasonably assuring that only orders to purchase, redeem or exchange Shares received by Dealer or any Indirect Intermediary (as defined in Section 21 (ii) hereof) prior to the Valuation Time (as defined in this Section 7) shall be submitted directly or indirectly by Dealer to the Trust(s) or its transfer agent or other applicable agent for receipt of a price based on the net asset value per Share calculated for that day in accordance with Rule 22c-1 under the 1940 Act (orders to purchase, redeem or exchange Fund shares received by Dealer subsequent to the Valuation Time on any given day shall receive a price based on the next determined net asset value per Share in accordance with Rule 22c-1 under the 1940 Act); and (b) Dealer shall cause to be imposed and/or waived applicable redemption fees only in accordance with the relevant Fund’s then-current Prospectuses and/or as instructed by Distributor. Dealer further agrees to make reasonable efforts to assist the Funds and their service providers (including but not limited to Distributor) to detect, prevent and report market timing or excessive short-term trading of Shares. To the extent Dealer has actual knowledge of violations of Trust policies (as set forth in the applicable then-current Prospectuses) regarding: (i) the timing of purchase, redemption or exchange orders and pricing of Shares, (ii) market timing or excessive short-term trading, or
(iii) the imposition of redemption fees, Indirect Intermediary (as defined) agrees to report such known violations to Distributor. For purposes of this Agreement, the term “Valuation Time” refers to the time as of which the Shares are valued on each business day, currently the close of regular trading on the New York Stock Exchange (normally, 4:00 p.m., Eastern Time) on each day that the New York Stock Exchange is open for business.
8. FINRA. Each party hereto represents that it is a member in good standing of the Financial Industry Regulatory Authority
(“FINRA”) and agrees to notify the other should it cease to be a member of FINRA and to the automatic termination of this Agreement at that time. Further, each party hereto agrees to abide by the Rules of FINRA. This Agreement is in all respects subject, without limitation, to Rule 2830 of the Conduct Rules of FINRA which shall control any provisions to the contrary in this Agreement.
9. Transaction Conditions. Dealer agrees:
(a) To purchase Shares only from the Trust(s) through Distributor or only from Dealer’s customers.
(b) To purchase Shares from the Trust(s) only for the purpose of covering purchase orders already received or for Dealer’s bona fide investment.
(c) That Dealer will not purchase any Shares from Dealer’s customers at prices lower than the redemption or repurchase net asset values next determined by the Trust(s). If Dealer acts as principal for its own account in purchasing shares for resale to Distributor, Xxxxxx agrees to pay its customer not less than the price that it receives from Distributor. If Dealer acts as agent for its customer in selling shares to Distributor, Xxxxxx agrees not to charge its customer more than a fair commission or fee for handling the transaction, except that Dealer agrees to receive no compensation of any kind based on the reinvestment of redemption or repurchase proceeds pursuant to the repurchase privilege, as described in the applicable then-current Prospectuses.
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(d) That Dealer will not intentionally withhold placing customers’ orders for Shares so as to profit Dealer as a result of such withholding.
10. Settlements. With respect to all orders Dealer places for the purchase of Fund Shares, unless otherwise agreed, settlement shall be made with the Trust(s) within three
(3) business days (or such shorter period as may be required by law or agreed between Distributor and Dealer) after acceptance of the order by the Trust(s) or its agents. If payment is not so received or made, the transaction may be cancelled forthwith by the Trust(s) or Distributor or, as applicable, and at Distributor’s option, Distributor may also cause the Shares ordered to be redeemed by the relevant Fund (in which case Distributor may hold Dealer responsible for any loss). In the event of such a cancellation by the Trust(s) or the Distributor, or in the event that Dealer cancels an order for Shares for any reason, the cancellation shall not be the responsibility of, or result in any liability to, Distributor or the Trust(s) or any Fund, and Dealer shall be responsible for any loss, including loss of profit, suffered by a Fund, the Trust(s) or Distributor resulting from Dealer’s failure to make payments as aforesaid or Dealer’s cancellation of an order, and Dealer shall not be entitled to any gains generated thereby. Dealer also assumes responsibility for any loss to the Trust(s) or a Fund caused by any order placed by Dealer on an “as-of” basis subsequent to the trade date for the order, and Dealer shall immediately pay such loss to the Trust(s) or applicable Fund upon notification or demand. Any such “as of” orders shall be acceptable only as permitted by the Trust(s) and shall be subject to the applicable Trust’s policies pertaining thereto, which may include a requirement for receipt of an executed letter of indemnity in a form acceptable to the Trust(s) or Distributor and/or prior to the applicable Trust’s acceptance of any such order.
11. Various Responsibilities Concerning Sales. In connection with sales and offers to sell Shares, Dealer will furnish to each person to whom any such sale or offer is made a copy of the applicable then-current Prospectus (and/or, as applicable, a summary Prospectus) of the applicable Fund(s). Distributor shall be under no liability to Dealer except for lack of good faith and for obligations expressly assumed by Distributor herein. Notice and other applicable filings for Shares of the Funds in various states are the responsibility of the Distributor or another agent of the Trust(s). Dealer is responsible for any notices or other applicable filings that may be necessary to permit Dealer to engage in the selling of mutual fund shares in various states. Any printed information which Distributor furnishes Dealer other than the Prospectuses, proxy solicitation materials, and periodic reports is Distributor’s sole responsibility and not the responsibility of the Trust(s), and Dealer agrees that the Trust(s) shall have no liability or responsibility to Dealer in these respects unless expressly assumed in connection therewith. Nothing herein contained, however, shall be deemed to be a condition, stipulation or provision binding any persons acquiring any security to waive compliance with any provision of the Securities Act of 1933, as amended, or of the rules and regulations of the Securities and Exchange Commission, or to relieve the parties hereto from any liability arising under the Securities Act of 1933, as amended. Dealer will use its best efforts in the development and promotion of sales of Shares and will be responsible for the proper instruction and training of all sales personnel employed by it. Dealer will, upon request, from time to time, supply Distributor with a list of the names and addresses of Dealer’s clients who are shareholders of any Fund.
12. Distribution and Service Fee Provisions. So long as Distributor is the sole principal underwriter of the Trust(s) and this Agreement remains in effect, Distributor agrees to pay Dealer each quarter a
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distribution and/or service fee at annual rate(s) as set forth in the Prospectus and Appendix B. The fees will be accrued daily as of each business day and paid quarterly in arrears by the 15th day of each quarter; provided, however, that such fees will be paid only upon receipt by Distributor of such distribution and service fees paid by the Trust(s). Such fees will be paid by Distributor to Dealer only out of a Fund’s applicable distribution and service fees paid pursuant to the distribution and servicing plans (each a “Plan” and, collectively, the “Plans”) adopted by the Trust(s) pursuant to Rule 12b-1 (“Rule 12b-1”) under the 1940 Act in consideration of Dealer furnishing distribution and client services hereunder with respect to a Fund and its shareholders. In addition to any terms and conditions set forth in the applicable Prospectus or required by applicable law, any such payments made pursuant to this Section 12 shall be subject to the following terms and conditions:
(a) Any such payment shall be in such amounts as Distributor may from time to time advise Dealer in writing but in any event not in excess of the amounts permitted by the applicable Plans. Any such payments shall be in addition to any dealer discount allowed to Dealer pursuant to this Agreement.
(b) The provisions of this Section 12 relate to the Plans. In accordance with Rule 12b-1, any person authorized to direct the disposition of monies paid or payable by the Trust(s) pursuant to this Section 12 shall provide each Trust’s Board of Trustees, and the Trustees shall review, at least quarterly, a written report of the amounts so expended and the purposes for which such expenditures were made.
(c) Dealer shall provide to Distributor and the Trust(s) each calendar quarter such information as shall reasonably be requested by the Distributor or the Trustees of the
Trust(s) with respect to the fees paid to Dealer pursuant to this Section 12.
(d) Dealer will permit representatives of the Trust(s) and Distributor reasonable access to its personnel and its records to enable them to monitor the quality of services being provided by Dealer pursuant to this Agreement. Dealer shall promptly deliver to the Board of Trustees of the Trust(s) such information as is reasonably necessary to permit the Board of Trustees to make an informed determination whether to continue the Plans or any of them or this Section 12.
(e) The provisions of this Section 12 applicable to each Fund shall remain in effect for not more than a year and thereafter for successive annual periods only so long as such continuance is specifically approved by the Trustees of the Trust(s) at least annually in conformity with the Plans, Rule 12b-1 and the 1940 Act. In the event of the assignment (as defined by the 1940 Act) of this Agreement or in the event any Plan terminates, is not continued or ceases to remain in effect, then the provisions of this Section 12 shall automatically terminate with respect to the Shares covered by such assignment or such terminated Plan. This Section 12 may be terminated at any time with respect to any Fund without payment of any penalty, by vote of a majority of the Independent Trustees of the Trust(s) (as defined in the respective Plan or Plans) or by vote of a majority of the outstanding voting securities of such Fund on not more than 60 days’ written notice to the parties to this Agreement. In addition, the provisions of this Section 12 may be terminated at any time, without penalty, by either party with respect to any Fund on not more than 60 days’ nor less than 30 days’ written notice in accordance with Section 15 hereof.
13. Prospectuses and Sales Material. No person is authorized to make any representations concerning Shares of the Funds except those contained in the
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applicable then-current Prospectus (including the Statement of Additional Information) and printed information issued by the Trust(s) or by Distributor as information supplemental to the Prospectus. Distributor shall supply Prospectuses (and/or, as applicable, summary Prospectuses) at no cost to Dealer and reasonable quantities of supplemental sales literature, sales bulletins and additional information as issued. Dealer agrees not to use other advertising or sales material relating to the Funds, unless approved in writing by Distributor in advance of such use.
14. Termination. In addition to the termination provisions set forth in Section 12 hereof, either party may cancel this Agreement by giving 30 days’ written notice to the other party.
15. Notice. Any notice under this Agreement shall be in writing and shall be deemed to have been given on the date on which it was either delivered personally to the other party or any officer or partner thereof, or was mailed postpaid or sent by facsimile transmission (with machine confirmation) or delivered by overnight courier to the other party at its address as shown below:
Xxxxxxx Investment Management (US) Corporation
000 0xx Xxx
New York, NY 10017
Dealer:
16. Amendment.
(a) If, in the future, the Trust(s) offers one or more additional class(es) of shares, the Distributor may amend this Agreement on 10
days’ written notice to Dealer to insert provisions relating to such class(es).
(b) The Distributor may amend Appendix A or B to this Agreement on 10 days’ written notice to Dealer.
(c) In addition, Dealer and Distributor agree that Distributor may also, by 30 days’ written notice to the Dealer, amend or modify this Agreement without the affirmative consent of Dealer. Notice for all purposes shall be deemed to be given when mailed or electronically transmitted to Dealer. Dealer’s submission and the applicable Trust’s or its designee’s acceptance of an order to purchase, redeem or exchange Shares of any Fund after the transmission of such notice shall represent Dealer’s acknowledgement and acceptance of the terms and conditions of any such amendment.
17. WRAP Programs.
If Dealer is the broker for one or more wrap fee programs where Dealer is paid a single, inclusive fee for brokerage and investment management service (each a “Program” and, collectively, the “Programs”) and if Dealer desires to have its clients in the Programs (each a “Program Client” and, collectively, “Program Clients”) acquire Class A Shares or Institutional Class Shares of the Funds at the net asset value thereof without any sales charge, then:
(a) Dealer may, subject to Distributor’s approval, maintain either (i) one omnibus account per Fund per Program for the Program Clients of such Program or (ii) one account per Fund per Program Client provided each such account is a Level 1 or Level 3 account on National Securities Clearing Corporation’s Fund/SERV System. This Section applies only to Class A Shares or Institutional Class Shares of the Funds, but “Funds” shall include all presently existing Funds and those created after the date hereof which offer Class A Shares or Institutional Class Shares.
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(b) When an account has been established after approval by Distributor, Dealer may purchase and sell to the Program Clients covered by such account Class A Shares or Institutional Class Shares of any Fund at net asset value (without any sales charges on purchases or contingent deferred sales charges on sales/redemptions but including any applicable redemption fees) upon the instructions of Dealer and all in accordance with the terms of this Section, the Prospectuses and the terms of Distributor’s Distribution Contract(s) with the Fund, as amended from time to time, and in accordance with applicable law. Notwithstanding the foregoing, the waiver of contingent deferred sales charges on sales/redemptions is conditioned upon the Dealer providing Distributor on each business day separately for each account all purchase, sale and exchange orders for such day. Dealer and its affiliates shall not prepare, use or distribute brochures, written materials or advertising in any form that refers to sales of shares of any Fund as “no- load,” except that in brochures relating to any Program it may refer to the Funds as available at net asset value and subject to a service fee if the brochure also clearly reflects that, although such Class A Shares or Institutional Class Shares are available at net asset value through such Program, the clients of such Program will be charged a fee in connection with such Program.
(c) Dealer hereby confirms that it maintains in its files proper Program Client authorization to exercise full and continuing authority with regard to the transactions contemplated hereby and with regard to withdrawing and transferring funds on behalf of each Program Client. With respect to each Program Client, Dealer will examine such documents and satisfy itself that they are authentic and properly authorized and duly executed and delivered to Dealer by the Program Client or the designated agents thereof.
(d) Distributor’s ability to rely on Dealer’s authorization to act on behalf of each Program Client shall be continuing and unqualified and remain in full force and effect until Distributor receives written notice of revocation from Dealer and/or the respective Program Client. Such revocation, however, shall not affect any liability in any way resulting from transactions initiated prior to Distributor’s receipt of such notice.
(e) It is understood and agreed that neither Dealer nor any broker/dealer or financial institution involved in the sale of Class A Shares or Institutional Class Shares of the Funds to any Program Client shall be entitled to any sales commissions, discount or other concession in connection with such sales but one such entity (determined by Distributor) shall be entitled to receive any service fees otherwise payable with respect thereto to the extent provided from time to time in the applicable Fund’s Prospectuses.
18. Assignment. This Agreement shall inure to the benefit of the successors and assigns of either party hereto, provided, however, that Dealer may not assign this Agreement without the prior written consent of Distributor.
19. Privacy. Each party agrees to comply, to the extent applicable, with the requirements of Title V of the Xxxxx-Xxxxx-Xxxxxx Act,
15 U.S.C. §§ 6801 et seq., as may be amended from time to time, and any regulations adopted thereto, including Regulation S-P of the Securities and Exchange Commission, as well as with any other applicable federal or state privacy laws and regulations, including but not limited to the Massachusetts Standards for the Protection of Personal Information, 201 CMR 17.00, et seq. The parties agree that any “Non-Public Personal Information,” as the term is defined in Regulation S-P, that may be disclosed hereunder is disclosed for the specific purpose of permitting the other party to perform the services set forth in this
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Agreement. Each party agrees that, with respect to such information, it will comply with Regulation S-P and that it will not disclose any Non-Public Personal Information received in connection with this Agreement to any other party, except: (i) to the extent required to carry out the services set forth in this Agreement; (ii) as otherwise required or permitted by law or regulation; or (iii) as requested by any regulatory body or governmental agency or body having jurisdiction over the disclosing party.
20. Anti-Money Laundering. Each party to this Agreement hereby agrees to abide by and comply with all applicable anti-money laundering laws and regulations including the Money Laundering Abatement Act and relevant provisions of the USA Patriot Act of 2001, as amended from time to time, and any rules or regulations adopted there- under (together, the “PATRIOT Act”). Each party represents that it has established an Anti-Money Laundering Program that complies with all material aspects of the Patriot Act and other applicable anti-money laundering laws and regulations and is otherwise in compliance with such laws and regulations. Each party also hereby agrees to take action to comply with any new or additional anti- money laundering laws and regulations. Dealer certifies that it has obtained and verified the requisite information with respect to each investor on whose behalf Dealer is acting with respect to the Funds and, unless otherwise prohibited by applicable law, Dealer agrees to notify the Distributor promptly whenever, with respect to any such investor, it detects potential indications of any: (i) suspicious activity that would require a broker/dealer, bank (as applicable), registered investment company or registered investment adviser to file a suspicious activity report or (ii) Office of Foreign Asset Control matches.
21. Anti-Corruption Warranties. Each party is now and has at all relevant times been in compliance with the laws of the United.
States as well as the laws of any other countries or jurisdictions that are applicable to the transactions contemplated herein and will remain in compliance with all such laws.
Each party is not a government official, not a member of any political party and not an employee of any government corporation and has not taken and will not take any actions in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any government official (including any officer or employee of a government or government-controlled entity or instrumentality or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or official thereof, or candidate for political office, all of the foregoing being referred to as “Government Officials”) or to any other person while knowing or having reason to know that all or some portion of the money or value will be offered, given or promised to a Government Official for the purpose of influencing official action or securing an improper advantage in relation to the business of the Dealer.
No part of the payments or other value received by the Dealer, directly or indirectly, from Distributor will be used by the Dealer or by any third party for any purpose which would cause a violation of the Laws of the United States or any other applicable jurisdiction by anyone.
In relation to or in connection with the services provided or to be provided by Dealer under this agreement, Dealer has not made or procured, or agreed to make or procure any offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any third party save as disclosed in writing to Distributor.
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22. Agreement to Provide Information. Dealer agrees to provide Distributor or its designee (“Fund Agent”), upon written request, the taxpayer identification number (“TIN”) the Individual/International Tax- payer Identification Number (“ITIN”), or other government-issued identifier (“GII”), if known, of any or all Shareholder(s) of the account, the name or other identifier of any investment professional(s) associated with the Shareholder(s) or account (if known), and the amount, date and transaction type (purchase, redemption, transfer, or exchange) of every purchase, redemption, transfer, or exchange of Shares held through an account maintained by Dealer during the period covered by the request.
(i) Period Covered by Request. Requests must set forth a specific period, not to exceed 180 days from the date of the request, for which transaction information is sought. Fund Agent may request transaction information older than 180 days from the date of the request as it deems necessary to investigate compliance with policies established by a Trust for the purpose of eliminating or reducing any dilution of the value of the outstanding Shares issued by a Fund. If mutually agreed upon by Fund Agent and Dealer, Dealer will provide the information specified for each trading day in the period.
(ii) Form and Timing of Response. Dealer agrees to provide, promptly upon request of Fund Agent, the requested information specified in this Section 22. If requested by Fund Agent, Xxxxxx agrees to use its best efforts to determine promptly whether any specific person about whom it has received the identification and trans- action information specified in this Section 22 is itself a “financial intermediary,” as that term is defined in Rule 22c-2 under the 1940 Act (an “Indirect Intermediary”) and, upon further request of Fund Agent, promptly either (i) provide (or arrange to have provided) the information set forth in
this Section 22 for those Shareholders (as hereinafter defined) who hold an account with an Indirect Intermediary or (ii) restrict or prohibit the Indirect Intermediary from purchasing, in nominee name on behalf of other persons, Xxxxxx. Xxxxxx additionally agrees to inform Fund Agent whether it plans to perform (i) or (ii) above. Responses required by this paragraph must be communicated in writing and in a format mutually agreed upon by Dealer and Fund Agent. To the extent practicable, the format for any Shareholder and transaction information provided to Fund Agent should be consistent with the NSCC Standardized Data Reporting Format.
(iii) Limitations on Use of Information. Distributor agrees not to use and agrees to use its best efforts to cause the Trust(s) not to use the information received for marketing or any other similar purpose without the prior written consent of the Dealer; provided, however, that this provision shall not limit the use of publicly available information, information already in the possession of Fund Agent, the Trust(s) or their affiliates at the time the information is received pursuant to this Agreement or information which comes into the possession of Fund Agent, the Trust(s) or their affiliates from a third party.
23. Agreement to Restrict Trading. Dealer agrees to execute written instructions from Fund Agent to restrict or prohibit further purchases or exchanges of Shares of the Funds by a Shareholder that has been identified by Fund Agent as having engaged in transactions in Shares (directly or indirectly through the Dealer’s account) that violate policies established or utilized by the Trust(s) or Fund Agent for the purpose of eliminating or reducing any dilution of the value of the outstanding Shares issued by a Fund (e.g., market timing and late trading policies).
(i) Form of Instructions. Instructions must include the TIN, ITIN or GIC, if
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known, and the specific restriction(s) to be executed. If the TIN, ITIN or GIC is not known, the instructions must include an equivalent identifying number of the Shareholder(s) or account(s) or other agreed upon information to which the instruction relates.
(ii) Timing of Response. Xxxxxx agrees to execute instructions from Fund Agent as soon as reasonably practicable, but not later than five business days after receipt of the instructions by the Dealer.
(iii) Confirmation by Dealer. Dealer must provide written confirmation to Fund Agent or its designee that Fund Agent’s instructions to restrict or prohibit trading have been executed. Xxxxxx agrees to provide confirmation as soon as reasonably practicable, but not later than ten business days after the instructions have been executed.
24. Detecting Violations. Dealer agrees to make reasonable efforts to assist the Trust(s) and its service providers (including Distributor) in preventing and detecting market timing and excessive short-term trading with respect to the Shares of the Funds.
25. Agreement Relating to SAS-70/Third Party Control Reviews. Dealer agrees to require any organization that performs a Statement on Auditing Standards (SAS) No.
70 review, or other third party review, of Dealer’s controls, to include in such review control objectives relating to:
(i) ensuring that orders relating to Fund Shares (“Fund Orders”) received by the Dealer prior to the Valuation Time are effectively segregated from Fund Orders received by the Dealer after the Valuation Time and that only Fund Orders received prior to the Valuation Time on a day are transmitted to the Trust(s) or its designee for execution at that day’s net asset value.
(ii) imposing redemption fees, or only permitting waivers of such fees, in accordance with the applicable Fund’s then- current Prospectus(es);
(iii) providing to Fund Agent the Shareholder identification and transaction information identified in Section 22 above and adhering to Fund Agent’s instructions provided under Section 23 above; and
(iv) making reasonable efforts to assist the Trust(s) in detecting and preventing market timing or excessive short-term trading with respect to the Shares of the Funds.
26. Indemnity
(i) Distributor agrees to indemnify and hold harmless Dealer and its affiliates from all taxes, charges, expenses, assessments, claims, judgments, damages and liabilities, including (without limitation) attorneys’ fees and disbursements (collectively, “Losses”) arising out of or in connection with (a) any breach of any provision of this Agreement by Distributor or (b) Distributor’s willful misconduct, willful misfeasance, bad faith, negligence, or reckless disregard of its duties and obligations under this Agreement. Neither Dealer, nor any of its affiliates, shall be indemnified against any Losses (or any expenses incident to such liability) arising out of Dealer’s or its affiliates’ own willful misfeasance, bad faith, negligence or reckless disregard of its duties and obligations under this Agreement.
(ii) Dealer agrees to indemnify and hold harmless Distributor and all of its affiliates against all Losses arising out of or in connection with (i) Dealer’s dissemination of information regarding a Trust or a Fund that includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading and that was not
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provided to Dealer, or approved in writing, by the Distributor; (ii) Dealer’s willful misconduct, willful misfeasance, bad faith, negligence or reckless disregard of its duties and obligations under this Agreement; or (iii) Dealer’s breach of any of the terms or conditions of this Agreement. Neither Distributor, nor any of its affiliates, shall be indemnified against any Losses (or any expenses incident to such liability) arising out of Distributor’s or its affiliates’ own willful misfeasance, bad faith, negligence or reckless disregard of its duties and obligations under this Agreement.
This Section 26 shall survive the termination of this Agreement.
27. Definitions. For purposes of Sections 22 to 28 of this Agreement, the following terms shall have the following meanings, unless a different meaning is clearly required by the context:
(i) The term “Funds” shall mean the constituent series of each Trust, but for the purposes of Section 22 of this Agreement shall not include Funds excepted from the requirements of paragraph (a) of Rule 22c-2 under the 1940 Act by paragraph (b) of Rule 22c-2.
(ii) The term “promptly” shall mean as soon as practicable but in no event later than 5 business days from Dealer’s request of the request for information from Fund Agent.
(iii) The term “Shares” means the interests of Shareholders corresponding to the redeemable securities of record issued by a Fund.
(iv) The term “Shareholder” shall have the meaning set forth in Rule 22c-2 under the 1940 Act.
(v) The term “written” includes electronic writings and facsimile trans-missions.
In addition, for purposes of Sections 22 through 28, the term “purchase” does not include the automatic reinvestment of dividends or distributions.
28. Scope. Dealer acknowledges and agrees that this Agreement shall apply to the handling of all transactions in Shares, whether authorized under this Agreement or any other agreement between or among Dealer and the Trust(s), any transfer agent of the Trust(s), Distributor, any other Fund Agent or any of their affiliates. Dealer acknowledges and agrees that Sections 7 and 22 to 27 of this Agreement shall apply to the handling of all Fund Orders, whether authorized under this Agreement or any other agreement with the Trust(s), Distributor, its affiliates or any Transfer Agent.
29. FATCA. Dealer has fully and accurately completed and delivered to the Fund the appropriate U.S. Internal Revenue Service Form W-8 or any successor form (“Form W- 8”) or U.S. Internal Revenue Service Form W-9 (or successor form) (“Form W-9”), as applicable, and agrees to provide an updated Form W-8 or Form W-9, as applicable, immediately upon demand by the Fund or the Distributor and immediately upon learning that any such Form W-8 or Form W-9, as applicable, previously provided has become inaccurate or obsolete (including by operation of law). The Dealer agrees to provide any requested information, documentation or certifications requested by the Fund or the Distributor that is required for the Fund, the Distributor or any of their affiliates to comply with any applicable law or regulations, including any provision of Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended, and any regulations or guidance issued thereunder (collectively “FATCA”), and to avoid any withholding on payments made to or by the Fund or the Distributor pursuant to FATCA. The Dealer agrees to promptly inform the Fund and the Distributor in the event of any
| Xxxxxxx Funds | ||||
| Selected Dealer Agreement –Class A, Class C and Institutional Class Shares.
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change in such information, documentation or certification, and will execute and deliver to the Fund or the Distributor such additional forms or certifications as the Fund or the Distributor may reasonably request. The Dealer acknowledges that the Fund or the Distributor may withhold on amounts remitted to the Dealer if required pursuant to FATCA in the reasonable judgment of the Fund or the Distributor and the information and documentation provided to the Fund and the Distributor may be disclosed to the Internal Revenue Service and third parties as appropriate in the reasonable judgment of the Fund, the Distributor or the administrator of the Funds.
The Dealer further agrees to indemnify the Fund, the Distributor and any of their affiliates for any losses (including taxes, interest and penalties) incurred by the Fund, the Distributor or any of their affiliates as a result of (and the Fund or the Distributor may terminate the Agreement with the Dealer after) the Dealer’s failure to provide the Fund information, documentation and/or certifications pursuant to this Section 29.
30. Intentionally left blank.
31. Governing Law; Arbitration. This Agreement shall be construed in accordance with the laws of the State of New York. Any disputes between the parties hereto arising in connection with this Agreement shall be submitted to arbitration in accordance with the Code of Arbitration Procedure of FINRA, or similar rules or code as in effect at the time of the submission of any such dispute.
31. Other Agreements. This Agreement shall be binding upon both parties hereto when executed by both parties and supersedes any prior agreement or understanding between Distributor and Dealer with respect to the sale of Shares of any of the Funds of the Trust(s).
32. Headings. The Section headings in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect.
| Xxxxxxx Funds | ||||
| Selected Dealer Agreement –Class A, Class C and Institutional Class Shares.
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| Xxxxxxx Investment Management (US) Corporation |
| By: |
| Title: |
| Dealer |
| By: |
| Title: Director of Mutual Funds and ETFs |
Appendix A
List of Trusts, Funds and Classes
Xxxxxxx Funds
Class A Class C and Institutional Class shares of each current or hereafter created series of Xxxxxxx Funds other than those series, if any, listed below:
Excluded series: none.
| Xxxxxxx Funds | ||||
| Selected Dealer Agreement –Class A, Class C and Institutional Class Shares.
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Appendix B
Class A Servicing Fee
All Funds 0.25%
Class C Servicing Fee
All funds 0.25%
Class C Distribution Fee
All funds 0.75%
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