SERVICES AGREEMENT
This
Services Agreement (the "Agreement") is
made and entered into on this ____ day of February, 2008, by and between EMPIRIC ADVISORS, INC., a
Delaware corporation (“Empiric”) and XXXXXXX XXXXX & CO., INC.,
a California corporation (“Xxxxxxx Xxxxx”).
WITNESSETH:
WHEREAS,
Empiric is an investment adviser registered as such with the Securities and
Exchange Commission (the “SEC”) under the Investment Advisers Act of 1940, as
amended (the “Advisers Act”) and is the investment adviser to the Core Equity
Fund (the “Fund”), which is a series of Empiric Funds, Inc. (the “Company”), a
Maryland corporation and registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the “1940
Act”).
WHEREAS,
Xxxxxxx Xxxxx is a company offering, among other services, wholesale marketing
and distribution related services to open-end investment companies, such as the
Fund, and is registered as a broker/dealer under the Securities Act of 1934, as
amended (the “1934 Act”) and a member of the Financial Industry Regulatory
Authority, Inc. (“FINRA”); and
WHEREAS,
Empiric desires to retain Xxxxxxx Xxxxx on a non-exclusive basis to provide the
wholesale marketing and distribution related services described herein to
promote the sale of shares of the Fund.
NOW,
THEREFORE, in consideration of the premises and mutual covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Empiric and Xxxxxxx Xxxxx hereby
agree as follows:
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1.
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Appointment:
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1.1 Empiric
hereby appoints Xxxxxxx Xxxxx, as of the Effective Date of this Agreement, to
provide certain non-exclusive wholesale marketing and distribution related
services as described herein (the “Services”) with regard to the Fund for the
period and on the terms and conditions set forth in this
agreement. The Services shall limited in scope and shall relate only
those distribution channels and territories as set forth in Exhibit A attached
hereto (the “Territories”).
1.2 Xxxxxxx
Xxxxx hereby accepts such non-exclusive appointment and, in connection with such
appointment, agrees to provide the Services within the Territories on the terms
and conditions set forth in this Agreement.
1.3 Xxxxxxx
Xxxxx is an independent contractor and is not an employee, agent, joint venturer
or partner of Empiric, the Fund or the Company. Xxxxxxx Xxxxx, and
its employees and agents, shall identify themselves as such independent
contractors and shall disclose the limitations on their authority to all
potential shareholders of the Fund. Xxxxxxx Xxxxx shall not, in any
manner, accept any obligation, incur any liability, promise any performance or
pledge any credit on behalf of, or for the account of, Empiric, the Fund or the
Company.
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2.
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Xxxxxxx
Xxxxx’ Duties:
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Xxxxxxx
Xxxxx shall, at its own cost and expense:
2.1 Use its
reasonable best commercial efforts to solicit financial intermediaries,
including, but not limited to, broker/dealers, trust departments, banks and
investment advisers, and representatives and agents employed by them
(collectively, “Financial Intermediaries”), to enter into and maintain selling
agreements with the Fund’s principal underwriter, Quasar Distributors, LLC (the
“Distributor”), relating to the offer and sale of the Fund’s shares and to
encourage the clients and customers of Financial Intermediaries to purchase
shares of the Fund. The Services shall be performed by personnel of
Xxxxxxx Xxxxx (the “Wholesalers”).
2.2 Initiate
personal, written, electronic or telephonic communication with Financial
Intermediaries with a view to providing information regarding, and increasing
the awareness of Financial Intermediaries of, the Fund.
2.3 Comply
with all applicable laws, rules and regulations of regulatory authorities,
including self-regulatory organizations, having jurisdiction over the activities
of Xxxxxxx Xxxxx under this Agreement, including, without limitation, the SEC
and FINRA, and shall fully comply with all policies and procedures of Empiric,
the Fund, the Company, the Distributor and Financial Intermediaries with respect
to Xxxxxxx Xxxxx’ performance of the Services.
2.4 Deliver
to Empiric, on or before the tenth calendar day following the end of each
calendar month during the term hereof, a written report regarding the Services
for the preceding calendar month and deliver to Empiric on Monday of each week a
written report setting forth, for the immediately preceding calendar week, the
names of all Financial Intermediaries contacted, including the names of all
representatives of such Financial Intermediaries and the nature of such
contact.
2.5 Meet with
Empiric as required but, in any event, at least quarterly, or more often at the
request of Empiric upon reasonable notice, to provide Empiric with information
regarding the Services, including marketing and sales initiatives, and sales of
the Fund’s shares by or through Financial Intermediaries. Such
information shall include, without limitation, details regarding the Financial
Intermediaries contacted, Financial Intermediaries targeted, marketing and sales
consulting activities, applicable purchase and redemption transactions and such
other information as Empiric may reasonably request.
2.6 Not make,
and shall cause the Wholesalers not to make, any representations concerning or
provide any information regarding the Fund except those contained in the Fund’s
then-current prospectus and statement of additional information and printed
information prepared by or on behalf of the Fund, and furnished to Xxxxxxx Xxxxx
by Empiric or the Distributor, as advertising or information supplemental to the
aforesaid prospectus and statement of additional information.
2.7 Not use
any advertising or sales material, including, without limitation, electronic,
written, audio or visual sales material relating to the Fund unless approved in
writing by Empiric or the Distributor in advance of such use.
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2.8 Promptly
notify Empiric of any oral or written complaint with respect to the Fund,
Empiric, the Distributor or Xxxxxxx Xxxxx or notice of any regulatory
investigation or proceeding brought against any one or more of them, or any
Wholesaler, relating to the Services.
2.9 Establish,
train and maintain a staff of not less than five (5) Wholesalers who shall be
fully knowledgeable about Empiric and the Fund.
2.10
Research
and attribute sales and redemptions of the Fund’s shares to Xxxxxxx Xxxxx’
performance of the Services utilizing transfer agency reporting and platform
portal reporting systems.
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3.
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Empiric’s
Duties:
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Empiric
shall, at its own cost and expense:
3.1 Comply
with all applicable laws, rules and regulations of regulatory authorities,
including self-regulatory organizations, having jurisdiction over the activities
of Empiric under this Agreement, including, without limitation, the SEC and
FINRA, and shall fully comply with all policies and procedures of the Fund, the
Company and the Distributor in connection with its performance of its
obligations under this Agreement.
3.2 Deliver
to Xxxxxxx Xxxxx, contemporaneously with the Effective Date of this Agreement,
copies of: (a) the current prospectus and statement of additional
information of the Fund and all classes thereof; (b) any relevant
policies and procedures adopted by Empiric, the Fund, the Company or the
Distributor, or their service providers, that are applicable to the
Services; and (c) any other documents, materials or information that
Xxxxxxx Xxxxx shall reasonably request to enable it to perform the
Services.
3.3 Deliver,
as soon as reasonably practicable, any and all amendments and or supplements to
the documents and materials required to be delivered pursuant to Section 3.2,
above.
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4.
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Compensation:
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4.1 In
payment for the Services to be performed by Xxxxxxx Xxxxx hereunder, Empiric
shall pay Xxxxxxx Xxxxx a one-time fee of 100 basis points (i.e., 1%)
attributable to Purchase Transactions, as defined below, of the Fund’s shares
that originate in the Territories.
4.2 Payment
of the fee specified in Section 4.1, above, shall be made in U.S. dollars by
Empiric to Xxxxxxx Xxxxx on or before the 15th calendar day of each month during
the term hereof based upon Purchase Transactions during the immediately
preceding calendar month.
4.3 For
purposes of this Agreement, Purchase Transactions shall mean purchases of shares
of the Fund’s shares that originate in the Territories (but excluding shares
purchased through the reinvestment of dividends or distributions) and that are
identified by the Company’s transfer agent or administrator and reported to the
Fund and Empiric or as otherwise reported to Empiric by means of systems or
reports, acceptable to Empiric and Xxxxxxx Xxxxx, employed by Empiric to
identify Purchase Transactions. For purposes of this Agreement,
Purchase Transactions shall exclude sales of the Fund’s shares to persons, or
classes of persons, identified in Exhibit B attached hereto, all of which shall
be excluded from the calculation of the fees payable to Xxxxxxx Xxxxx pursuant
to Section 4.1, above. The aforesaid Exhibit B may be amended from
time to time by Empiric by providing Notice to Xxxxxxx Xxxxx in accordance with
Section 10.2, below, and Exhibit B, as so amended, shall be attached to this
Agreement in lieu of the then existing Exhibit B and shall become effective in
accordance with the terms of said Section 10.2.
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4.4 For the
purposes of this Agreement, “Purchase Transactions” are transactions that are
identifiable trades originating in the Territories. The means
employed to identify Purchase Transactions may include: (a)
transaction reports generated by the Fund’s transfer agent from time to
time: (b) systems or reports, acceptable to Empiric and Xxxxxxx
Xxxxx, employed by Empiric to identify Purchase Transactions; and (c) all
available information from portals of Financial Intermediaries that are used to
reconcile transactions between Financial Intermediaries and the Fund’s transfer
agent.
4.5 The fee
and payment specified in Sections 4.1 and 4.2, above, shall be reduced, on a
proportionate basis, to the extent shares purchased in Purchase Transactions are
redeemed within: (a) twenty four (24) months of their original
purchase date in the case of the Fund’s Class A shares that are sold pursuant to
an exemption from the sales charges otherwise applicable to such Class A shares;
(b) eighteen (18) months of their original purchase date in the case of the
Fund’s Class C shares; and (c) twelve (12) months of their original date of
purchase in the case of the Fund’s Class A shares that are sold subject to a
sales charge. The amount of any such reduction shall be applied as a
credit to the amount of any fee payable to Xxxxxxx Xxxxx pursuant to Section
4.2, above, using the means specified in Section 4.4, above. For the
avoidance of doubt and by way of example, if Empiric pays of fee of $500 with
respect to a Purchase Transaction in the amount of $50,000 with respect to Class
A shares sold pursuant to an exemption from sales charges that is effected on
February 1, 2008 (i.e., $50,000 x .01 = $500) and the investor thereafter
redeems all such shares on January 31, 2009, Empiric shall be entitled to a
credit of $250 (i.e., $500 x 12/24 = $250) against the fees payable by it on or
before February 15, 2009, with respect to Purchases Transactions effected during
the month of January, 2009.
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5.
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Term
and Termination:
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5.1 The
initial term of this Agreement shall begin on the date hereof (the “Effective
Date”) and extend for a period of one year from the Effective Date (the “Initial
Term”). Thereafter, this Agreement shall be automatically renewed, on
the same terms and conditions, for additional, successive one (1) year periods
(each, a “Renewal Term”) unless Empiric or Xxxxxxx Xxxxx provides written notice
to the other of the termination of this Agreement at least ninety (90) days
prior to the end of the Initial Term or any Renewal Term, as the case may
be. The Initial Term and any Renewal Term are hereinafter referred to
collectively as the “Term.”
5.2 Anything
in Section 5.1, above, to the contrary notwithstanding, this Agreement may also
be terminated by Empiric immediately upon written notice to Xxxxxxx Xxxxx in the
event that at any time following the Effective Date: (a) Xxxxxxx
Xxxxx fails to perform or observe any term, representation, warranty or covenant
set forth in this Agreement; (b) Xxxxxxx Xxxxx fails to maintain a
staff of five (5) wholesalers in accordance with the provisions of Section 2.8,
above; and (c) aggregate Purchase Transactions during the twelve
calendar months following: (i) the first anniversary of the date of
the Effective Date do not total $30,000,000; and (ii) the second anniversary of
the Effective Date do not total $150,000,000.
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5.3 Anything
in Sections 5.1 or 5.2, above, to the contrary notwithstanding, this Agreement
may also be terminated by either Empiric or Xxxxxxx Xxxxx, as the case may be,
immediately upon written notice to the other in the event that at any time
following the Effective Date: (a) either Empiric or Xxxxxxx Xxxxx
shall suspend or discontinue its business, or shall make an assignment for the
benefit of, or composition with, creditors, or shall become insolvent or be
unable or generally fail to pay its debts when due, or either Empiric or Xxxxxxx
Xxxxx becomes, in any jurisdiction, a party or subject to (voluntarily or
involuntarily) any liquidation or dissolution action or proceeding with respect
to itself, or to any bankruptcy, reorganization, insolvency or other proceeding
for the relief of financially distressed debtors, or a receiver, liquidator,
custodian or trustee shall be appointed for it, or a substantial part of its
assets (and with respect to an involuntary action or proceeding, an order is
entered in the proceeding is not dismissed within thirty (30) days) or it shall
take any action to effect or which indicates its acquiescence in any of the
foregoing; (b) a “change in control” of either Empiric or Xxxxxxx
Xxxxx takes place (for purposes of this Agreement, “control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies, whether through ownership of securities or
partnership or ownership interest, by contract or otherwise); (c)
either Empiric or Xxxxxxx Xxxxx assigns this Agreement, or any rights or
obligations hereunder, without the prior written consent of the other; or (d)
either Empiric or Xxxxxxx Xxxxx materially breaches this Agreement and fails to
cure such breach within thirty (30) days after written notice thereof, with the
exception of the matters set forth in Section 5.2, above, the occurrence of
which provide Empiric with an immediate right of termination.
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6.
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Representations
and Warranties of Xxxxxxx Xxxxx:
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Xxxxxxx
Xxxxx hereby warrants and represents as follows:
6.1 Xxxxxxx
Xxxxx is a corporation duly organized, validly existing in good standing under
the laws of the State of California with full power and authority to execute,
deliver and perform its obligations under this Agreement.
6.2 Xxxxxxx
Xxxxx and the Wholesalers have all necessary governmental and regulatory
registrations, qualifications, approvals and licenses as may be necessary to
perform their respective obligations under this Agreement, and, specifically,
Xxxxxxx Xxxxx is a broker/dealer registered as such with the SEC under the 1934
Act, is a member of FINRA and is duly licensed/registered as a broker/dealer in
all states comprising the Territories.
6.3 The
performance by Xxxxxxx Xxxxx of its obligations under this Agreement will not
conflict with, violate the terms of or constitute a default
under; (a) Xxxxxxx Xxxxx’ organizational documents; (b)
any other agreement or instrument to which Xxxxxxx Xxxxx is a party or by which
it is bound or to which any of the property or assets of Xxxxxxx Xxxxx is
subject; or (c) any order, rule, law, regulation or other legal
requirement applicable to Xxxxxxx Xxxxx or to the property or assets of Xxxxxxx
Xxxxx.
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6.4 There is
neither pending nor threatened any investigation, action, suit or proceeding
relating to or that may adversely affect Xxxxxxx Xxxxx or any principal of
Xxxxxxx Xxxxx in a material way or their ability to provide the Services before
or by any court or any other governmental, regulatory or self-regulatory
authority or other body to which Xxxxxxx Xxxxx or any principal of Xxxxxxx Xxxxx
is a party, or to which any asset of Xxxxxxx Xxxxx is
subject. Neither Xxxxxxx Xxxxx nor any principal of Xxxxxxx Xxxxx has
received any notice of an investigation relating to matters described in the
preceding sentence that may adversely affect Xxxxxxx Xxxxx’ business in a
material way or its ability to provide the Services.
6.5 Xxxxxxx
Xxxxx will notify Empiric immediately in the event that it receives notice of or
becomes aware of any information that it may have violated any applicable law,
rule or regulation arising out of its activities or which may adversely affect
in a material way its ability to act in accordance with the terms of this
Agreement.
6.6 Xxxxxxx
Xxxxx and the Wholesalers have the expertise to perform their duties under this
Agreement, and they will use their commercially reasonable best efforts to
market the Fund to Financial Intermediaries in the Territories and to present
information about the Fund to Financial Intermediaries in a professional and
accurate manner and in no way that is materially misleading or which omits
information that, in light of the circumstances, is material.
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7.
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Representations
and Warranties of Empiric:
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Empiric
hereby warrants and represents as follows:
7.1 Empiric
is a corporation duly organized, validly existing in good standing under the
laws of the State of Delaware with full power and authority to execute, deliver
and perform its obligations under this Agreement.
7.2 Empiric
has all necessary governmental and regulatory registrations, qualifications,
approvals and licenses as may be necessary to perform its obligations under this
Agreement, and, specifically, Empiric is an investment adviser registered as
such with the SEC under the Advisers Act.
7.3 All
materials that have been or will be furnished to Xxxxxxx Xxxxx by Empiric for
use in sales meetings or in general solicitation of Financial Intermediaries
were and will be current and accurate and in no way materially misleading or
omit any material information. If Xxxxxxx Xxxxx prepares any written
material for marketing the Fund to Financial Intermediaries, or otherwise,
Xxxxxxx Xxxxx shall deliver such material to Empiric and the Distributor for
their prior written approval before it is used. Empiric will make all
reasonable efforts, and will cause the Distributor to make all reasonable
efforts, to approve or disapprove such material within a reasonable period of
time.
7.4 The
performance by Empiric of its obligations under this Agreement will not conflict
with, violate the terms of or constitute a default under; (a) Empiric’s
organizational documents; (b) any other agreement or instrument to which Empiric
is a party or by which it is bound or to which any of the property or assets of
Empiric is subject; or (c) any order, rule, law, regulation or other legal
requirement applicable to Empiric or to the property or assets of
Empiric.
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7.5 There is
neither pending nor threatened any investigation, action, suit or proceeding
relating to or that may adversely affect Empiric, the Company or the Fund or any
principal of Empiric, the Company or the Fund in a material way or their ability
to perform their obligations under this Agreement before or by any court or any
other governmental, regulatory or self-regulatory authority or other body to
which Empiric, the Company or the Fund or any principal of Empiric, the Company
or the Fund is a party, or to which any asset of Empiric, the Company or the
Fund is subject. Neither Empiric, the Company or the Fund nor any
principal of Empiric, the Company or the Fund has received any notice of an
investigation relating to matters described in the preceding sentence that may
adversely affect Empiric’s, the Company’s or the Fund’s business in a material
way or their ability to perform their respective obligations under this
Agreement.
7.6 Empiric
will notify Xxxxxxx Xxxxx immediately in the event that it receives notice of or
becomes aware of any information that it, the Company or the Fund may have
violated any applicable law, rule or regulation arising out of their activities
or which may adversely affect in a material way their ability to act in
accordance with the terms of this Agreement.
7.7 The
Company is a corporation duly organized, validly existing in good standing under
the laws of the State of Maryland and is registered as an open-end management
investment company under the 1940 Act.
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8.
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Indemnification:
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8.1 Each
party to this Agreement (the “Indemnitor”) agrees to indemnify, defend and hold
harmless the other (the “Indemnitee”) harmless against any and all liability
imposed or claimed, or damages incurred, including reasonable attorneys’ fees
and other reasonable expenses (“Claims”) arising out of or in connection with
(a) the Indemnitor’s negligence or willful misconduct in connection with this
Agreement, (b) any failure by the Indemnitor to comply with applicable laws or
regulations in connection with the performance or its obligations under this
Agreement and (c) any material breach of this Agreement by the Indemnitor,
including claims asserted against the Indemnitor by the Indemnitee, provided,
however, that indemnification and defense shall not apply to the extent any such
claim results from the Indemnitiee’s own negligence, willful misconduct, failure
to comply with applicable law or material breach of this Agreement.
8.2 If any
legal proceeding is instituted or any claim is asserted by any third party in
respect of which the Indemnitee may seek indemnification from the Indemnitor,
the Indemnitee shall (after receipt by it of notice of the commencement of any
such legal proceeding or of any such claim) promptly cause written notice of
such legal proceeding or claim to be made to Indemnitor. The
Indemnitor may, at its option, settle or defend such claim at its expense
provided that any such settlement shall contain a full and final release of the
Indemnitee without an admission of fault or wrongdoing on the part of the
Indemnitee. The Indemnitor shall select counsel of its choice and who
shall be approved by the Indemnitee, which approval shall not be unreasonably
withheld. The Indemnitee shall have the right, at its option and at
the expense of the Indemnitor, to separate counsel in such claim and to
participate in the defense thereof, but if the Indemnitor has exercised its
option to defend such claim and is providing adequate representation and
defense, and there is no conflict of interest or additional or different defense
available to Indemnitee, then the fees and expenses of separate counsel shall be
at the expense of the Indemnitee. An Indemnitee shall not be liable
for the settlement of any claim effected without its participation and consent,
which shall not be unreasonably withheld.
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8.3 Neither
Xxxxxxx Xxxxx nor Empiric shall be liable to the other for consequential,
special or indirect damages under any provision of this Agreement.
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9.
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Confidentiality:
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9.1 Xxxxxxx
Xxxxx and Empiric (for purposes of this Section 9, a “Receiving Party”) agrees
to keep confidential all information disclosed by the other party (for the
purposes of this Section 9, a “Disclosing Party”), including, without
limitation, all forms and types of financial, business, marketing, operations,
technical and economic information of the Disclosing Party, whether tangible or
intangible.
9.2 Notwithstanding
any provision of this Agreement to the contrary, Xxxxxxx Xxxxx and Empiric agree
that the following shall not be deemed to be confidential
information: (a) information that was known to the Receiving Party
before receipt thereof from or on behalf of the Disclosing Party; (b)
information that is disclosed to the Receiving Party by a third person who has
the right to make such disclosure without any obligation of confidentiality to
the Disclosing Party; (c) information that is or becomes generally
known in the trade without violation of this Agreement by the Receiving Party;
or (d) information that is independently developed by the Receiving
Party or its employees or affiliates without reference to the Disclosing Party’s
information.
9.3 Notwithstanding
any provision of this Agreement to the contrary, Xxxxxxx Xxxxx
may: (a) provide information to Xxxxxxx Xxxxx’ counsel and to persons
engaged by Xxxxxxx Xxxxx and Empiric to provide services as described
herein; (b) provide information consistent with the policies and
procedures with respect to the services in the mutual fund industry including,
without limitation, the disclosure policies and procedures of the Company and
the Fund; (c) identify Empiric as a client of Xxxxxxx Xxxxx for
Xxxxxxx Xxxxx’ sales and marketing purposes; (d) provide information
as approved by an authorized person of Empiric, provided that, (i) such approval
shall not be unreasonably withheld or delayed and (ii) Xxxxxxx Xxxxx may release
information without the approval of Empiric if Xxxxxxx Xxxxx is advised by its
counsel, or counsel to Empiric, that failure to do so will result in liability
to Xxxxxxx Xxxxx, and provided further that in such event Xxxxxxx Xxxxx shall
endeavor to promptly advise Empiric of such advice, to the extent practicable,
in advance of any actual release of information.
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10.
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General
Provisions:
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10.1 This
Agreement shall be governed by the laws of the State of Texas, but without
reference to the choice of law provisions thereof.
10.2 Any
notice, request, demand, waiver, consent, approval or other communication
required to be given pursuant to this Agreement (each, a “Notice”) shall be in
writing and shall be deemed given: (a) upon delivery is by
hand; (b) after two (2) business days if sent by air courier or
express mail; or (c) upon transmission is sent by facsimile (provided
that a confirmation copy is sent in the manner provided in Clause (b) of this
Section 10.2 within thirty-six (36) hours after such transmission), except that
if Notice is received by facsimile after 5 p.m. on a business day at the place
of receipt, it shall be effective as of the following business
day. All Notices are to be made and given to Xxxxxxx Xxxxx and
Empiric at the addresses appearing below or to such other address as Xxxxxxx
Xxxxx or Empiric, as the case may be, may designate by a Notice given in
accordance with the provisions of this Section 10.2:
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If to
Xxxxxxx Xxxxx:
000 Xxxxx
Xxxxxx, Xxxxx #0
Xxxxxx,
Xxxxxxxxxx 00000
Attention: Xx.
Xxxxxx X. Xxxxx
Facsimile: (000)
000-0000
If to
Empiric:
0000
Xxxxxxxxxxx Xxxxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention: Xx.
Xxxx Xxxxxxx
Facsimile: (000)
000-0000
10.3 This
Agreement, together with Exhibits hereto, contains the entire agreement and
understanding of Xxxxxxx Xxxxx and Empiric with respect to the matters set forth
herein, and all prior negotiations and understanding relating to the subject
matter of this Agreement are merged herein and are superseded and cancelled by
this Agreement. This Agreement may not be modified or amended except
in a writing signed by Xxxxxxx Xxxxx and Empiric.
10.4 The
failure by Xxxxxxx Xxxxx or Empiric to require the performance of any term of
this Agreement or the waiver by Xxxxxxx Xxxxx or Empiric, as the case may be, of
any breach of this Agreement shall not operate or be construed as a waiver of
any subsequent breach of this Agreement by either Xxxxxxx Xxxxx or
Empiric.
10.5 Neither
Xxxxxxx Xxxxx nor Empiric shall assign its rights or delegate the performance of
its duties or obligations under this Agreement without the prior written consent
of the other, which consent shall not be unreasonably withheld or
delayed.
10.6 In case
any one or more provisions contained in this Agreement, or any application
thereof, shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein, and other applications thereof, shall not in any way be affected or
impaired thereby.
10.7 This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
agreement. Execution pages hereof that are executed and delivered by
facsimile shall be deemed originals for all purposes hereof.
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10.8 Any
action or proceeding brought by Xxxxxxx Xxxxx or Empiric to enforce any right,
assert any claim or obtain any relief whatsoever arising from, in connection
with or relating to this Agreement, any breach hereof, any transaction covered
hereby or the enforcement hereof shall be brought and maintained by Xxxxxxx
Xxxxx or Empiric, as the case may be, in an appropriate federal or state court
in the State of Texas, and Xxxxxxx Xxxxx and Empiric hereby consent and submit
to the exclusive jurisdiction of such court.
IN WITNESS WHEREOF, the
undersigned have executed this Agreement as of the day, month and year first
hereinabove set forth.
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Xxxxxxx
Xxxxx & Co., Inc.
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Empiric
Advisors, Inc.
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By: _______________________________
Xxxxxx
X. Xxxxx, President
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By: ________________________________
Xxxx
Xxxxxxx, Chief Executive
Officer
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EXHIBIT
A
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Arizona
Colorado
Michigan
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Florida
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Illinois
Wisconsin
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District
of Columbia
Delaware
Maryland
New
Jersey
New
York
Pennsylvania
Virginia
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Kansas
Missouri
Nebraska
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Oklahoma
Dallas/Fort
Worth, Texas and Surrounding Area
North
Texas
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California
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Southern
Texas
Connecticut
Massachusetts
Maine
New
Hampshire
Rhode
Island
Vermont
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North
Dakota
South
Dakota
Montana
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1
EXHIBIT
B
1
