Xxxxxxxx Funds Sales Agreement
Exhibit (m)(xi) under Form N-1A
Exhibit (10) under Item 601/Reg. X-X
XXXXXXXX FUNDS
INVESTOR CLASS OF SHARES (CLASS Y)
SALES AGREEMENT
This Agreement is entered into between the financial institution
executing this Agreement ("Financial Institution") and Edgewood Services,
Inc. ("ESI") with respect to the series and classes of the Xxxxxxxx Funds
listed on Exhibit A hereto (referred to individually as the "Fund" and
collectively as the "Funds") for whose shares of beneficial interest or
capital stock ("Shares") ESI serves as Distributor.
A. Financial Institution.
1. Status of Financial Institution.
Financial Institution represents and warrants to ESI:
(a) that it is a broker or dealer as defined in Section
3(a)(4) or 3(a)(5) of the Securities Exchange Act of 1934
("Exchange Act"); that it is registered with the
Securities and Exchange Commission pursuant to Section 15
of the Exchange Act; that it is a member of the National
Association of Securities Dealers, Inc.; that its
customers' accounts are insured by the Securities
Investors Protection Corporation ("SIPC"); and that,
during the term of this Agreement, it will abide by all of
the rules and regulations of the NASD including, without
limitation, the NASD Rules of Fair Practice. Financial
Institution agrees to notify ESI immediately in the event
of (1) the termination of its coverage by the SIPC; (2)
its expulsion or suspension from the NASD, or (3) its
being found to have violated any applicable federal or
state law, rule or regulation arising out of its
activities as a broker-dealer or in connection with this
Agreement, or which may otherwise affect in any material
way its ability to act in accordance with the terms of
this Agreement. Financial Institution's expulsion from
the NASD will automatically terminate this Agreement
immediately without notice. Suspension of Financial
Institution from the NASD for violation of any applicable
federal or state law, rule or regulation will terminate
this Agreement effective immediately upon ESI's written
notice of termination to Financial Institution; or
(a)(ii) that it is a "bank," as that term is defined in Section 3(a)(6)
of the Exchange Act and that, during the term of this Agreement,
it will abide by the rules and regulations of those state and
federal banking authorities with appropriate jurisdiction over
the Institution, especially those regulations dealing with the
activities of the Institution as described under this
Agreement. The Institution agrees to notify ESI immediately of
any action by or communication from state or federal banking
authorities, state securities authorities, the Securities and
Exchange Commission, or any other party which may affect its
status as a bank, or which may otherwise affect in any material
way its ability to act in accordance with the terms of this
Agreement. Any action or decision of any of the foregoing
regulatory authorities or any court of appropriate jurisdiction
which affects the Institution's ability to act in accordance
with the terms of this agreement, including the loss of its
exemption from registration as a broker or dealer, will
terminate this Agreement effective upon FSC's written notice of
termination to the Institution; or
(a)(iii) that its activities and business, including the services
which are rendered under this Agreement, do not require the
Institution to register as a broker or a dealer with the
Securities and Exchange Commission. The Institution agrees to
notify ESI immediately of any action by or communication from
state securities authorities, the Securities and Exchange
Commission, or any other party which action or communication may
in any material way affect its ability to act in accordance with
the terms of this Agreement. Any action or decision of any of
the foregoing regulatory authorities or any court of appropriate
jurisdiction which affects the Institution's ability to act in
accordance with the terms of this agreement, including the loss
of its exemption from registration as a broker or dealer, will
terminate this Agreement effective upon ESI's written notice of
termination to the Institution; and
(b) that Financial Institution is registered with the appropriate
securities authorities in all states in which its activities
make such registration necessary.
2. Financial Institution Acts as Agent for its Customers.
The parties agree that in each transaction in the Shares of any Fund
and with regard to any services rendered pursuant to this Agreement: (a)
Financial Institution is acting as agent for the customer; (b) each
transaction is initiated solely upon the order of the customer; (c) as
between Financial Institution and its customer, the customer will have full
beneficial ownership of all Shares of the Funds; (d) each transaction shall
be for the account of the customer and not for Financial Institution's
account; and (e) each transaction shall be without recourse to Financial
Institution provided that Financial Institution acts in accordance with the
terms of this Agreement. Financial Institution shall not have any
authority in any transaction to act as ESI's agent or as agent for the
Funds.
B. Sales of Fund Shares.
3. Execution of Orders for Purchase and Redemption of Shares.
(a) All orders for the purchase or redemption of any Shares shall be
executed at the then-current net asset value per share, in each case
as described in the prospectus of the Fund. Any applicable
redemption fee will be deducted by the Fund prior to the transmission
of the redemption proceeds to Financial Institution or its customer.
ESI and the Funds reserve the right to reject any purchase request in
their sole discretion. If required by law, each transaction shall be
confirmed in writing on a fully disclosed basis and, if confirmed by
ESI, a copy of each confirmation shall be sent simultaneously to
Financial Institution if Financial Institution so requests.
(b) The procedures relating to all orders will be subject to the terms of
the prospectus of each Fund and ESI's written instructions to
Financial Institution from time to time.
(c) Payments for Shares shall be made as specified in the applicable Fund
prospectus. If payment for any purchase order is not received in
accordance with the terms of the applicable Fund prospectus, ESI
reserves the right, without notice, to cancel the sale and to hold
Financial Institution responsible for any loss sustained as a result
thereof.
C. Miscellaneous.
4. Delivery of Prospectuses to Customers.
Financial Institution will deliver or cause to be delivered to each
customer, at or prior to the time of any purchase of Shares, a copy of the
current prospectus of the Fund and, upon request by a customer or
shareholder, a copy of the Fund's current Statement of Additional
Information. Financial Institution shall not make any representations
concerning any Shares other than those contained in the prospectus or
Statement of Additional Information of the Fund or in any promotional
materials or sales literature furnished to Financial Institution by ESI or
the Fund.
5. Indemnification.
(a) Financial Institution shall indemnify and hold harmless ESI, each
Fund, the transfer agent of the Funds, and their respective
subsidiaries, affiliates, officers, directors, agents and employees
from all direct or indirect liabilities, losses or costs (including
attorneys fees) arising from, related to or otherwise connected with:
(1) any breach by Financial Institution of any provision of this
Agreement; or (2) any actions or omissions of ESI, any Fund, the
transfer agents of the Funds, and their subsidiaries, affiliates,
officers, directors, agents and employees in reliance upon any oral,
written or computer or electronically transmitted instructions
believed to be genuine and to have been given by or on behalf of
Financial Institution.
(b) ESI shall indemnify and hold harmless Financial Institution and its
subsidiaries, affiliates, officers, directors, agents and employees
from and against any and all direct or indirect liabilities, losses
or costs (including attorneys fees) arising from, related to or
otherwise connected with: (1) any breach by ESI of any provision of
this Agreement; or (2) any alleged untrue statement of a material
fact contained in any Fund's Registration Statement or Prospectus, or
as a result of or based upon any alleged omission to state a material
fact required to be stated therein or necessary to make the
statements contained therein not misleading.
(c) The agreement of the parties in this Paragraph to indemnify each
other is conditioned upon the party entitled to indemnification
(Indemnified Party) giving notice to the party required to provide
indemnification (Indemnifying Party) promptly after the summons or
other first legal process for any claim as to which indemnity may be
sought is served on the Indemnified Party. The Indemnified Party
shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting from it, provided that counsel for
the Indemnifying Party who shall conduct the defense of such claim or
litigation shall be approved by the Indemnified Party (which approval
shall not unreasonably be withheld), and that the Indemnified Party
may participate in such defense at its expense. The failure of the
Indemnified Party to give notice as provided in this subparagraph (c)
shall not relieve the Indemnifying Party from any liability other
than its indemnity obligation under this Paragraph. No Indemnifying
Party, in the defense of any such claim or litigation, shall, without
the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement that does not include as an
unconditional term the giving by the claimant or plaintiff to the
Indemnified Party of a release from all liability in respect to such
claim or litigation.
(d) The provisions of this Paragraph 5 shall survive the termination of
this Agreement.
6. Customer Names Proprietary to Financial Institution.
(a) The names of Financial Institution's customers are and shall remain
Financial Institution's sole property and shall not be used by ESI,
or its affiliates for any purpose except the performance of their
respective duties and responsibilities under this Agreement and
except for servicing and informational mailings relating to the
Funds. Notwithstanding the foregoing, this Paragraph 6 shall not
prohibit ESI, or any of its affiliates from utilizing the names of
Financial Institution's customers for any purpose if the names are
obtained in any manner other than from Financial Institution pursuant
to this Agreement.
(b) Neither party shall use the name of the other party in any manner
without the other party's written consent, except as required by any
applicable federal or state law, rule or regulation, and except
pursuant to any mutually agreed upon promotional programs.
(c) The provisions of this Paragraph 6 shall survive the termination of
this Agreement.
7. Security Against Unauthorized Use of Funds' Recordkeeping Systems.
Financial Institution agrees to provide such security as is necessary
to prevent any unauthorized use of the Funds' recordkeeping system,
accessed via any computer hardware or software provided to Financial
Institution by ESI.
8. Certification of Customers' Taxpayer Identification Numbers.
Financial Institution agrees to obtain any taxpayer identification
number certification from its customers required under Section 3406 of the
Internal Revenue Code, and any applicable Treasury regulations, and to
provide ESI, or its designee with timely written notice of any failure to
obtain such taxpayer identification number certification in order to enable
the implementation of any required backup withholding.
9. Notices.
Except as otherwise specifically provided in this Agreement, all
notices required or permitted to be given pursuant to this Agreement shall
be given in writing and delivered by personal delivery or by postage
prepaid, registered or certified United States first class mail, return
receipt requested, overnight courier services, or by facsimile or similar
electronic means of delivery (with a confirming copy by mail as provided
herein). Unless otherwise notified in writing, all notices to ESI shall be
given or sent to ESI at its offices located at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, and all notices to Financial
Institution shall be given or sent to it at its address shown below.
10. Termination and Amendment.
(a) This Agreement shall become effective in this form as of the date set
forth below or as of the first date thereafter upon which Financial
Institution executes any transaction, performs any service, or
receives any payment pursuant hereto.
(b) This Agreement, including Exhibit A hereto, may be amended by ESI
from time to time by the following procedure. ESI will mail a copy
of the amendment to Financial Institution's address, as shown below.
If Financial Institution does not object to the amendment within
thirty (30) days after its receipt, the amendment will become part of
the Agreement. Financial Institution's objection must be in writing
and be received by ESI within such thirty days.
(c) In addition to subparagraph 1(a), this Agreement may be terminated as
follows:
(i) at any time, without the payment of any penalty, by the vote of
a majority of the Directors or Trustees of the Fund or by a vote
of a majority of the outstanding voting securities of the Fund
as defined in the Investment Company Act of 1940 on not more
than sixty (60) days' written notice to the parties to this
Agreement;
(ii) automatically in the event of the Agreement's assignment as
defined in the Investment Company Act of 1940, upon the
termination of the "Distributor's Contract" between the Fund and
ESI, or upon the termination of the Distribution Plan to which
this Agreement is related; and
(iii) by any party to the Agreement without cause by giving the other
party at least sixty (60) days' written notice of its intention
to terminate.
(d) The termination of this Agreement with respect to any one Fund will
not cause the Agreement's termination with respect to any other Fund.
11. Governing Law.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania.
EDGEWOOD SERVICES, INC.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: President
By:
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
The Northern Trust Company
Financial Institution Name
(Please Print or Type)
Attn.: Xxxxxx Xxxxx
000 Xxxxx Xxxxx Xxxxxx X0/Xxxxx
Xxxxxxx
Xxxxxxx, XX 00000
City State Zip Code
By:
Authorized Signature
Title
Print Name or Type Name
Dated:
EXHIBIT A
Investor Class of Shares (Class Y)
Xxxxxxxx Funds, Inc.
Xxxxxxxx Equity Income Fund
Xxxxxxxx Government Income Fund
Xxxxxxxx Intermediate Bond Fund
Xxxxxxxx Intermediate Tax-Free Fund
Xxxxxxxx International Stock Fund
Xxxxxxxx Large-Cap Growth & Income Fund
Xxxxxxxx Mid-Cap Growth Fund
Xxxxxxxx Mid-Cap Value Fund
Xxxxxxxx Money Market Fund
Marshall Short-Term Income Fund
Xxxxxxxx Small-Cap Growth Fund
