Exhibit 24(b)(6)
DISTRIBUTION AGREEMENT
between
BRAZOS MUTUAL FUNDS
and
XXXXXX SQUARE DISTRIBUTORS, INC.
THIS DISTRIBUTION AGREEMENT is made as of the ____ day of
_______________, 1996, between Brazos Mutual Funds, a Delaware business trust
(the "Trust"), having its principal place of business in Dallas, Texas, and
Xxxxxx Square Distributors, Inc., a corporation organized under the laws of the
State of Delaware (the "Distributor"), having its principal place of business in
Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company,
and offers for sale one or more series ("Series") of shares of beneficial
interest;
WHEREAS, each share of a Series represents an undivided interest in the
assets, subject to the liabilities, allocated to that Series and each Series has
a separate investment objective and policies;
WHEREAS, at the present time, the Trust has established two Series, each
of which consisting of one class of shares, and the Trust may establish
additional Series and/or classes in the future; and
WHEREAS, the Trust desires to avail itself of the services of the
Distributor, with such assistance from its affiliates as the latter may provide;
and the Distributor is willing to furnish such services to the Trust with
respect to each of the Series listed on Schedule A to this Agreement (each a
"Fund" or collectively "Funds") on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties agree as follows:
1. Sale of Shares. The Trust grants to the Distributor the right to sell
shares of beneficial interest in all Series of the Trust, now or
hereafter created (the "Shares"), on its behalf during the term of this
Agreement and subject to the registration requirements of the Securities
Act of 1933, as amended (the "1933 Act"), and of the laws governing the
sale of securities in various states (the "Blue Sky Laws") under the
following terms and conditions: the Distributor (i) shall have the right
to sell, as agent on behalf of the Trust, Shares authorized for issue and
registered under the 1933 Act; (ii) may sell Shares under offers of
exchange, if available, between and among the funds distributed by
Distributor and advised by Xxxxxx Square Management Corporation or
Wilmington Trust Company; and (iii) shall sell such Shares only in
compliance with the terms set forth in the Trust's currently effective
registration statement. Distributor may enter into selling agreements
with selected dealers and others for the sale of Trust Shares, and will
act only on its own behalf as principal in entering into such selling
agreements.
2. Sale of Shares by the Trust. The rights granted to the Distributor shall
be non-exclusive in that the Trust reserves the right to sell its Shares
to investors on applications received and accepted by the Trust. Further,
the Trust reserves the right to issue Shares in connection with (a) the
merger or consolidation, or acquisition by the Trust through purchase or
otherwise, with any other investment company, trust or personal holding
company; and (b) a pro rata distribution directly to the holders of
Shares in the nature of a stock dividend or split-up.
3. Shares Covered by this Agreement. This Agreement shall apply to issued
Shares of all Series of the Trust, Shares of all Series of the Trust held
in its treasury in the event that in the discretion of the Trust treasury
Shares shall be sold, and Shares of all Series of the Trust repurchased
for resale.
4. Suspension of Sales. If and whenever the determination of net asset value
is suspended and until such suspension is terminated, no further orders
for Shares shall be processed by the Distributor except such
unconditional orders placed with the Distributor before it had knowledge
of the suspension. In addition, the Trust reserves the right to suspend
sales and the Distributor's authority to process orders for Shares on
behalf of the Trust if, in the judgment of the Trust, it is in the best
interests of the Trust to do so. Suspension will continue for such period
as may be determined by the Trust. In addition, the Distributor reserves
the right to reject any purchase order.
5. Solicitation of Sales. In consideration of these rights granted to the
Distributor, the Distributor agrees to use all reasonable efforts,
consistent with its other business, to secure purchasers for Shares of
the Trust. This shall not prevent the Distributor from entering into like
arrangements (including arrangements involving the payment of
underwriting commissions) with other issuers. Distributor agrees to use
all reasonable efforts to ensure that taxpayer identification numbers
provided for shareholders of the Trust are correct.
6. Authorized Representations. The Distributor is not authorized by the
Trust to give any information or to make any representations other than
those contained in the appropriate registration statements, Prospectuses
or Statements of Additional Information ("SAIs") filed with the
Securities and Exchange Commission under the 1933 Act (as those
registration statements, Prospectuses and SAIs may be amended from time
to time), or contained in shareholder reports or other material that may
be prepared by or on behalf of the Trust for the Distributor's use. This
shall not be construed to prevent the Distributor from preparing and
distributing, in compliance with applicable laws and regulations, sales
literature or other material as it may deem appropriate. Distributor will
furnish or cause to be furnished copies of such sales literature or other
material to the President of the Trust or his designee, and will provide
him with a reasonable opportunity to comment on the same. Distributor
agrees to take appropriate action to cease using such sales literature or
other material to which the Trust reasonably objects as promptly as
practicable after receipt of the objection.
7. Portfolio Securities. Portfolio securities of every Series of the Trust
may be bought or sold by or through the Distributor, and the Distributor
may participate directly or indirectly in brokerage commissions or
"spreads" for transactions in portfolio securities of any Series of the
Trust. However, all sums of money received by the Distributor as a result
of such purchases and sales or as a result of such participation must,
after reimbursement of actual expenses of the Distributor in connection
with such activity, be paid over by the Distributor to or for the benefit
of the applicable Series.
8. Registration of Shares. The Trust agrees that it will take all action
necessary to register Shares under the 1933 Act (subject to the necessary
approval, if any, of its shareholders) so that there will be available
for sale the number of Shares the Distributor may reasonably be expected
to sell. The Trust shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor
may reasonably request for use in connection with the distribution of
Shares of each series of the Trust.
9. Expenses, Compensation and Reimbursement
-35-
(a) The Trust shall pay all fees and expenses:
(i) in connection with the preparation, setting in type and filing of
any registration statement, Prospectus and SAI under the 1933 Act,
and any amendments thereto, for the issue of its Shares;
(ii) in connection with the registration and qualification of Shares
for sale in the various states in which the Board of Trustees (the
"Trustees") of the Trust shall determine it advisable to qualify
such Shares for sale (including registering the Trust or Series as
a broker or dealer or any officer of the Trust as agent or
salesperson in any state);
(iii) of preparing, setting in type, printing and mailing any report or
other communication to shareholders of the Trust in their capacity
as such; and
(iv) of preparing, setting in type, printing and mailing Prospectuses,
SAIs, and any supplements thereto, sent to existing shareholders.
(b) The Distributor shall pay expenses of:
(i) printing and distributing Prospectuses, SAIs and reports prepared
for its use in connection with the offering of the Shares for sale
to the public;
(ii) any other literature used in connection with such offering; and
(iii) advertising in connection with such offering.
(c) In addition to the services described above, Distributor will provide
services including assistance in the production of marketing and
advertising materials for the sale of Shares of the Trust and their
review for compliance with applicable regulatory requirements; entering
into dealer agreements with broker-dealers to sell Shares of the Trust
and monitoring their financial strength and contractual compliance; and
providing, directly or through its affiliates, certain investor support
services, personal service, and the maintenance of shareholder accounts.
(d) In connection with the services to be provided by the Distributor under
this Agreement, the Distributor shall receive reimbursement from the
Trust's investment adviser for fees and expenses previously agreed to by
the Adviser (which may include, without limitation, reimbursement for the
expenses incurred pursuant to Section 9(b) hereof).
10. Indemnification.
(a) The Trust agrees to indemnify and hold harmless the Distributor and each
of its directors and officers and each person, if any, who controls the
Distributor within the meaning of Section 15 of the 1933 Act and/or
Section 20(a) of the Securities Exchange Act of 1934 (the "1934 Act")
against any loss, liability, claim, damages or expense (including the
reasonable cost of investigating or defending any alleged loss,
liability, claim, damages, or expense, and reasonable counsel fees
incurred in connection therewith) arising by reason of any person
acquiring any Shares, based upon the 1933 Act or any other statute or
common law, alleging any wrongful act of the Trust or any of its
employees or representatives, or based upon the grounds that the
registration statements, Prospectuses, SAIs, shareholder reports or other
information filed or made public by the Trust (as from time to time
amended) included an untrue statement of a material fact or omitted to
state a material fact required to be stated or necessary in order to make
the statements made therein not misleading. However, the Trust does not
agree to indemnify the Distributor or hold it harmless to the extent that
the statement or omission was made in reliance upon, and in conformity
with, information furnished to the
-36-
Trust in writing by or on behalf of the Distributor. In no case (i) is
the indemnity of the Trust in favor of the Distributor or any person
indemnified to be deemed to protect the Distributor or any person against
any liability to the Trust or its security holders to which the
Distributor or such person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of
its duties, or by reason of its reckless disregard of its obligations and
duties under this Agreement, or (ii) is the Trust to be liable under its
indemnity agreement contained in this Section 10(a) with respect to any
claim made against the Distributor or any person indemnified unless the
Distributor or person, as the case may be, shall have notified the Trust
in writing of the claim within a reasonable time after the summons or
other first written notification giving information of the nature of the
claim shall have been served upon the Distributor or any such person or
after the Distributor or such person shall have received notice of
service on any designated agent. However, failure to notify the Trust of
any claim shall not relieve the Trust from any liability which it may
have to the Distributor or any person against whom such action is brought
other than on account of its indemnity agreement contained in this
Section 10(a). The Trust shall be entitled to participate at its own
expense in the defense, or, if it so elects, to assume the defense of any
suit brought to enforce any claims, but if the Trust elects to assume the
defense, the defense shall be conducted by counsel chosen by it and
satisfactory to the Distributor, or person or persons defendant or
defendants in the suit. In the event the Trust elects to assume the
defense of any suit and retain counsel, the Distributor, officers or
directors or controlling person(s) or defendant(s) in the suit shall bear
the fees and expenses of any additional counsel retained by them. If the
Trust does not elect to assume the defense of any suit, it will reimburse
the Distributor, officers or directors or controlling person(s) or
defendant(s) in the suit for the reasonable fees and expenses of any
counsel retained by them. The Trust agrees to notify the Distributor
promptly of the commencement of any litigation or proceedings against it
or any of its officers or Trustees in connection with the issuance or
sale of any of the Shares.
(b) The Distributor also covenants and agrees that it will indemnify and hold
harmless the Trust and each of the members of its Trustees and officers
and each person, if any, who controls the Trust within the meaning of
Section 15 of the 1933 Act, against any loss, liability, damages, claim
or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, damages, claim or expense, and reasonable
counsel fees incurred in connection therewith) arising by reason of any
person acquiring any Shares, based upon the 1933 Act or any other statute
or common law, alleging any wrongful act of the Distributor or any of its
employees or representatives, or alleging that the registration
statements, Prospectuses, SAIs, shareholder reports or other information
filed or made public by the Trust (as from time to time amended) included
an untrue statement of a material fact or omitted to state a material
fact required to be stated or necessary in order to make the statements
made therein not misleading, insofar as the statement or omission was
made in reliance upon, and in conformity with, information furnished in
writing to the Trust by or on behalf of the Distributor. In no case (i)
is the indemnity of the Distributor in favor of the Trust or any person
indemnified to be deemed to protect the Trust or any person against any
liability to which the Trust or such person would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Distributor
to be liable under its indemnity agreement contained in this Section
10(b) with respect to any claim made against the Trust or any person
indemnified unless the Trust or person, as the case may be, shall have
notified the Distributor in writing of the claim within a reasonable time
after the summons or other first written notification giving information
of
-37-
the nature of the claim shall have been served upon the Trust or any such
person or after the Trust or such person shall have received notice of
service on any designated agent. However, failure to notify the
Distributor of any claim shall not relieve the Distributor from any
liability which it may have to the Trust or any person against whom the
action is brought other than on account of its indemnity agreement
contained in this Section 10(b). In the case of any notice to the
Distributor, it shall be entitled to participate, at its own expense, in
the defense, or, if it so elects, to assume the defense of any suit
brought to enforce any claims, but if the Distributor elects to assume
the defense, the defense shall be conducted by counsel chosen by it and
satisfactory to the Trust, to its officers and Trustees and to any
controlling person(s) or any defendants(s) in the suit. In the event the
Distributor elects to assume the defense of any suit and retain counsel,
the Trust or controlling person(s) or defendant(s) in the suit, shall
bear the fees and expenses of any additional counsel retained by them. If
the Distributor does not elect to assume the defense of any suit, it will
reimburse the Trust, its officers or Trustees, controlling person(s) or
defendant(s) in the suit, for the reasonable fees and expenses of any
counsel retained by them. The Distributor agrees to notify the Trust
promptly of the commencement of any litigation or proceedings against it
in connection with the issue and sale of any of the Shares.
11. Effectiveness, Termination, etc. This Agreement shall become effective on
the day and year first written above, and unless terminated as herein
provided, shall continue in force for one (1) year from the date of its
execution, and thereafter from year to year, provided continuance after
the one (1) year period is approved at least annually by either (i) the
vote of a majority of the Trustees of the Trust, or by the vote of a
majority of the outstanding voting securities of the Trust, and (ii) the
vote of a majority of those Trustees of the Trust who are not interested
persons of the Trust, who have no direct or indirect financial interest
in the operation of any Rule 12b-1 Plan of the Trust or any agreements
related to any such Plan and who are not parties to this Agreement or
interested persons of any party, cast in person at a meeting called for
the purpose of voting on the approval. This Agreement shall automatically
terminate in the event of its assignment. As used in this Section 12, the
terms "vote of a majority of the outstanding voting securities,"
"assignment" and "interested person" shall have the respective meanings
specified in the 1940 Act and the rules enacted thereunder as now in
effect or as hereafter amended. In addition to termination by failure to
approve continuance or by assignment, this Agreement may at any time be
terminated without the payment of any penalty by vote of a majority of
the Trustees of the Trust who are not interested persons of the Trust and
who have no direct or indirect financial interest in the operation of any
Rule 12b-1 Plan of the Trust or any agreements related to any such Plan,
or by vote of a majority of the outstanding voting securities of the
Trust, on not more than sixty (60) days' written notice to the Trust.
This Agreement may be terminated by the Distributor upon not less than
sixty (60) days' prior written notice to the Trust.
12. Notice. Any notice under this Agreement shall be given in writing
addressed and hand delivered or sent by registered or certified mail,
postage prepaid, to the other party to this Agreement at its principal
place of business.
13. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
14. Governing Law. To the extent that state law has not been preempted by the
provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement
shall be administered, construed and enforced according to the laws
(without regard, however, to laws as to conflicts of law) of the State of
Delaware.
-38-
15. Shareholder Liability. The Distributor is hereby expressly put on notice
of the limitation of shareholder liability as set forth in the Trust
Instrument of the Trust and agrees that obligations assumed by the Trust
pursuant to this Agreement shall be limited in all cases to the Trust and
its assets, and if the liability relates to one or more series, the
obligations hereunder shall be limited to the respective assets of such
series. The Distributor further agrees that it shall not seek
satisfaction of any such obligation from the shareholders or any
individual shareholder of a series of the Trust, nor from the Trustees or
any individual Trustee of the Trust.
16. Miscellaneous. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes
hereof. The captions 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. This Agreement
may be executed in two counterparts, each of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
BRAZOS MUTUAL FUNDS
By: _____________________________
Name, Title
XXXXXX SQUARE DISTRIBUTORS, INC.
By: _____________________________
Xxxxxxx X. Xxxxxxx, President
Acknowledgment as to reimbursement with respect to
marketing expenses of Xxxxxx Square Distributors, Inc. as
Distributor.
XXXX XxXXXX INVESTMENT COUNSEL, as Investment Adviser
By: _____________________
Name, Title
Date:
-00-
XXXXXX XXXXXX DISTRIBUTORS, INC.
SELECTED DEALER AGREEMENT FOR NON-PROPRIETARY FUNDS
THIS SELECTED DEALER AGREEMENT is made as of the _____ day of
_______________, 1996, between Xxxxxx Square Distributors, Inc. ("RSD") and the
broker-dealer listed in Schedule B ("BD").
WHEREAS, each company listed on Schedule A hereof (each a "Fund" and
collectively, the "Funds") is registered under the Investment Company Act of
1940 (the "1940 Act"), as amended as an open-end management investment company
and each Fund is authorized to issue one or more series of shares of common
stock or beneficial interest, as the case may be ("Shares");
WHEREAS, RSD is the exclusive distributor of the Shares pursuant to
certain agreement(s) with the (respective) Fund(s); and
WHEREAS, BD desires to serve as a selected dealer for the Shares;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed among the parties as follows:
1. Purchase of Shares. BD may, from time to times purchase Shares from RSD
in accordance with the terms of this Agreement. In connection with each
such purchase, BD shall act as principal for its own account; BD shall
have no authority to act as agent for RSD or any of the Funds. BD
agrees that it shall purchase Shares only from RSD, either directly or
through a securities dealer, such as Fund/Serv ("Clearing Broker") with
which BD and RSD have established clearing arrangements. BD agrees to
purchase Shares of the Funds only in transactions contemplating the
simultaneous resale of such Shares to investors and in no event shall
BD place orders for Shares unless it has already received customers
orders to purchase Shares at the applicable Public Offering Price.
2. Acceptance of Purchase Orders. Orders received from BD for the purchase
of Shares ("Purchase Orders") shall be accepted by RSD only at the
price ("Public Offering Price") set forth in the then effective
prospectus used in connection with the sale of such shares (the
"Prospectus"). Purchase Orders shall be handled in accordance with such
oral or written instructions that RSD may forward to BD from time to
time and shall be subject to procedures relating to the purchase of
Shares disclosed in the Prospectus. Purchase Orders for Shares of the
"Money Market Funds" as listed in Schedule A must be received together
with full payment in Federal Funds. Payment for Shares of the "Load
Funds" as listed in Schedule A must be received by RSD within three
business days after receipt of the Purchase Order. RSD reserves the
right, from time to time and in our sole discretion, to limit the
aggregate orders for Shares of the Load Funds placed by BD for which
payment has not yet been received. In addition, all orders are subject
to acceptance or rejection by RSD or the relevant Fund in the sole
discretion of either. Purchase Orders shall be subject to receipt by
the Funds' Transfer Agent of all required documents in proper form and
to the minimum initial and subsequent purchase requirements set forth
in the Prospectus.
3. Dealer Reallowance. BD shall receive compensation in connection with
the sale of Shares of Load Funds in the form of dealer reallowances at
the percentage of the Public Offering Price applicable to Shares
purchased by BD, specified in the Prospectus. It is understood that the
-40-
Public Offering Price may reflect variations in sales charges, if any,
applicable to the sales of such Shares in accordance with certain
purchase plans set forth in such Prospectus. BD agrees that it will
apply any such variations uniformly to all offerees in accordance with
the provisions of the Prospectus and will not combine customer orders
to reach "breakpoints" established in the Prospectus unless expressly
permitted by the Prospectus or in writing by RSD or withhold any
customer order so as to profit therefrom. BD agrees and understands
that dealer reallowances will be paid based upon the schedule set forth
in the Prospectus and that, in accordance with such schedule, dealer
reallowances will be lower in the case of purchases to which reduced
sales charges apply. However, where the reduced sales charge is in
connection with a letter of intent, adjustment to a higher dealer
reallowance will be made to reflect actual purchases by the investor if
investor should fail to fulfill the letter of intent. No dealer
reallowances shall be payable in respect of Load Fund Shares purchased
through reinvestment of dividends or distributions or with respect to
Load Fund Shares purchased in exchange for other Shares unless
specifically set forth in the Prospectus. If any Load Fund Shares sold
to BD under the terms of this Agreement are tendered for redemption or
repurchase within seven business days after the date of confirmation to
BD of its purchase order therefor, BD agrees to pay forthwith to RSD
the full amount of the dealer reallowance on the original sale.
4. Redemptions, Repurchases and Exchanges. Orders for the redemption or
repurchase of Shares ("Redemption Orders") as well as exchange requests
shall be handled in accordance with procedures set forth in the
Prospectus and, to the extent consistent with the Prospectus, oral or
written instruction forwarded to BD by RSD from time to time. RSD will,
upon request assist BD in processing Redemption Orders and exchange
requests. All such orders and requests are subject to the timely
receipt by the Funds' Transfer Agent of all required documents in good
order. If such documents are not received within a reasonable time
after the order or request is placed, it will be subject to
cancellation, in which case BD agrees to be responsible for any
resulting loss incurred by RSD or the Funds.
5. Compliance with Securities Laws. BD shall not offer or sell any Shares
except under circumstances that will result in compliance with the
applicable federal and state securities laws. In connection with sales
and offers to sell Shares, BD will furnish or cause to be furnished to
each person to whom any such sale or offer is made, at or prior to the
time of offering or sale, a copy of the Prospectus and, if requested,
the related statement of additional information ("SAI"). RSD shall,
upon request, supply BD with reasonable quantities of Prospectuses and
SAIs for its use in connection with the offer and sale of the Shares.
BD shall will not furnish to any person any information in connection
with the sale of Shares that is inconsistent in any respect with the
information contained in such Prospectus or SAI.
RSD shall, from time to time, inform BD as to the states and
jurisdictions in which RSD believes the Shares have been qualified for
sale under, or are exempt from the requirements of, the respective
securities laws of such states and jurisdictions. BD agree that it will
not offer or sell Shares in any state or jurisdiction in which such
Shares are not registered, unless any such offer or sale is made in a
transaction that qualifies for an exemption from such registration. BD
agrees to indemnify RSD and the Fund(s) against any claim, liability,
expense or loss in any way arising out of any sale or exchange of
Shares by BD in any state or jurisdiction in which Shares are not so
registered or qualified.
BD hereby agrees to maintain all records required by law relating to
transactions on the Shares, and upon the request of RSD, or of the
Funds, promptly make such of these records available to RSD or the
Funds' Administrator as are requested. In addition BD hereby agrees to
establish
-41-
appropriate procedures and reporting forms and/or mechanisms and
schedules in conjunction with RSD and the Funds' Administrator, to
enable the Funds to identify the location, type of, and sales to all
accounts opened and maintained by BD's customers or by BD on behalf of
BD's customers.
BD hereby agrees to abide by the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. (the "NASD") and all applicable
federal and state laws. Reference is specifically made to Section 26 of
Article III of such Rules, which Section is incorporated herein by
reference. RSD assumes no responsibility in connection with the
registration of the BD under the laws of the various states or under
federal law or BD's qualification under any such law to offer or sell
Shares. BD agrees to indemnify RSD and the Fund(s) against any claim,
liability, expense or loss in any way arising out of any sale or
exchange of Shares by BD in any state or jurisdiction in which BD is
not so registered or qualified.
The signing of this Agreement and the purchase of Shares pursuant
hereto is a representation to RSD that BD is a member in good standing
of the NASD and a properly registered broker-dealer under the 1934 Act.
This Agreement shall terminate automatically in the event of BD ceases
to be a member in good standing of the NASD or upon the occurrence of
any event adversely affecting BD's registration as a broker-dealer
under the 1934 Act
BD represents and warrants that it is a member of the Securities
Investor Protection Corporation (SIPC) in good standing and agrees to
notify RSD of any changes in BD's status with the SIPC. Notwithstanding
the aforementioned, BD agrees to make a notation on all confirmations
for transaction stating that it is not a member of the SIPC as required
by Rule 10b-10 of the 1934 Act.
6. Use of Sales Materials. BD shall not use any advertising or sales
materials of any kind relating to the Funds or using the name of the
Funds or RSD or any affiliate of either unless such material is
provided to BD by RSD or unless BD has obtained the prior written
consent of RSD. Neither BD nor any other person is authorized to make
any representation in connection with the offer and sale of the Shares
except those contained in the Prospectus and SAI or as expressly
authorized in writing by RSD. If BD should make any such unauthorized
representation, or use, or cause others to use, advertising or sales
material not provided to BD by RSD or without RSD's prior approval, BD
shall indemnify RSD and the (relevant) Fund from and against any and
all claims, liability, expense or losses in any way arising out of or
in any way connected with such representation.
7. Confirmations. BD agrees to send confirmations of orders to its
customers as required by Rule 10b-10 of the Securities Exchange Act of
1934 (the "1934 Act") and agrees to pay any costs in connection
therewith. BD agrees to use all reasonable efforts to ensure that
taxpayer identification numbers provided by it on behalf of investors
are correct.
8. Suspension of Sales; Amendments. RSD shall have full authority to take
such action as it may deem advisable in respect of all matters
pertaining to the continuous offering of Shares; in particular and
without limitation, the right in its discretion and without notice to
BD to suspend sales or withdraw the offering of Shares. Upon notice to
BD, RSD may amend this Agreement and BD agrees that any Purchase Order
placed by it after notice of any amendment to this Agreement has been
sent to BD shall constitute its agreement to such amendment.
-42-
9. Distribution Fees Pursuant to Rule 12b-1 Plans. BD shall be entitled to
receive distribution fees in connection with its sales and promotional
efforts hereunder in accordance with any Plan of Distribution adopted
by the Fund. Such fees shall be payable in the amounts and in the
manner set forth in Schedule C to this agreement, which Schedule is
expressly incorporated herein.
10. No Agency Created. Nothing in this Agreement shall be deemed or
construed to make BD an employee, agent, representative or partner of
any of the Funds or of RSD, and BD is not authorized to act for RSD or
for any Fund or to make any representations on RSD's or the Funds'
behalf. BD acknowledges that this Agreement is not exclusive and that
RSD may enter into similar arrangement with others. BD and RSD agree
that each will be responsible for its own expenses in connection with
its activities hereunder and each will be responsible for complying
with the federal and state laws governing the operation of their
respective business and the NASD Rules.
11. Termination and Assignment. This Agreement shall also be terminable
without penalty upon thirty (30) days' written notice to RSD by BD and
upon ten (10) days' written notice to BD by RSD; provided, however,
that any termination of this Agreement by operation of this Section 11
shall not affect any unpaid obligations under Sections 2, 3 or 9 of
this Agreement or the liability, indemnity and legal fee provisions of
Sections 5, 6, 12 and 17 of this Agreement. This Agreement shall not be
assignable by any of the parties hereto. Nothing in this Agreement is
intended to confer upon any person other than the parties hereto and
their successors, any rights or remedies under or by reason of this
Agreement, other than those expressly set forth herein.
12. Legal Fees. If any claims are asserted against RSD or the Funds
regarding claims to which BD has indemnified these parties herein, the
parties shall have the right to engage in their own defense, including
the selection and engagement of counsel of their choosing and all costs
of such defense shall be borne by BD.
13. Notice. Any notice required or permitted to be given by either party to
the other shall be deemed sufficient if sent by registered or certified
mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the
party giving notice: if to RSD, at 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx, 00000; if to BD at the address listed on Schedule B.
14. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby. This Agreement
constitutes the entire agreement between the parties and supersedes all
prior agreements.
15. Governing Law. To the extent that state law has not been preempted by
the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement
shall be administered, construed and enforced according to the laws
(without regard, however, to laws as to conflicts of law) of the State
of Delaware.
16. Miscellaneous. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof. The captions 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.
-43-
17. Clearing Brokers. RSD acknowledges that BD may utilize the services of
one or more Clearing Brokers with respect to purchases of Shares by
BD's customers. BD acknowledges that this agreements authorizes only
it, and not any Clearing Broker employed by BD, to offer or sell Shares
under this Agreement. RSD agrees to accept Purchase Orders from any
Clearing Broker that BD identifies to RSD in writing as authorized to
place orders on BD's behalf, provided that BD agrees that RSD and the
Funds shall be entitled to treat such orders as though they had been
placed by BD directly. In addition, except where the context otherwise
requires, references in this Agreement to BD shall be deemed to include
references to any Clearing Broker employed by BD. BD agrees to cause
any such Clearing Broker to abide by BD's obligations and agreements
under this Agreement, and that BD's agreement with any such Clearing
Broker will reflect the Clearing Broker's obligation to abide by such
obligations and agreements. Neither RSD nor the Funds shall be liable
hereunder to BD or to any Clearing Broker for any claim, liability,
expense or loss in any way arising from BD's arrangements with such
Clearing Broker, and BD agrees to hold RSD and the Funds harmless from
and against any claim, liability, expense or loss in any way arising
from the activities of the Clearing Broker in connection with Purchase
Orders, Redemption Orders or exchange requests initiated by BD.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXX SQUARE DISTRIBUTORS, INC.
By: _____________________________
Xxxxxxx X. Xxxxxxx, President
XXXXXXXX SECURITIES, INC.
By: _____________________________
(Name,Title)
-00-
XXXXXX XXXXXX DISTRIBUTORS, INC.
SELECTED DEALER AGREEMENT FOR NON-PROPRIETARY FUNDS
SCHEDULE A
No Load Funds
BRAZOS/JMIC Small/Emerging Growth Portfolio
BRAZOS/JMIC Real Estate Securities Portfolio
Load Funds
None
-45-
XXXXXX SQUARE DISTRIBUTORS, INC.
SELECTED DEALER AGREEMENT FOR NON-PROPRIETARY FUNDS
SCHEDULE B
Xxxxxxxx Securities, Inc.
Address: 0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn:__________________________
Phone:_________________________
Fax:___________________________
-00-
XXXXXX XXXXXX DISTRIBUTORS, INC.
SELECTED DEALER AGREEMENT FOR NON-PROPRIETARY FUNDS
SCHEDULE C
Set forth below is a table of total sales charges or underwriting commissions
and dealer concessions for the load funds. The Distributor may provide
additional compensation to dealers in connection with sales of shares of the
Fund(s).
-47-
