AMENDMENT TO DISTRIBUTION AGREEMENT
December 1, 2005
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Reference is made to that certain distribution agreement (the
"Agreement"), dated as of June 5, 2000, between Xxxxx Xxxxxx
Aggressive Growth Fund Inc. (the "Investment Company"),with
respect to one or more separate series listed on Exhibit A (each a
"Fund") and Citigroup Global Markets Inc. This letter agreement
(the "Amendment") amends or supplements certain terms of the
Agreement as set forth below. Except as expressly amended hereby,
the provisions of the Agreement are and shall remain in full force
and effect. Capitalized terms not defined in this Amendment shall
have the meanings given to them in the Agreement.
We acknowledge that Xxxx Xxxxx Inc. ("Xxxx Xxxxx") and
Citigroup Inc. ("Citigroup") have entered into that certain Amended
and Restated Global Distribution Agreement (the "Global
Distribution Agreement"), dated as of October 3, 2005, which
provides, for a period of three years from December 1, 2005, for the
distribution by Citigroup distributors of Citigroup investment
products and Xxxx Xxxxx investment products within the United
States and internationally and for Citigroup"s access to certain Xxxx
Xxxxx investment products pursuant to the terms of the Global
Distribution Agreement.
1. Services as a Non-Exclusive Principal Underwriter and
Distributor
Notwithstanding anything to the contrary contained in
the Agreement:
1.1 You shall be, for the period of the Agreement as
amended by this Amendment, a non-exclusive principal underwriter
and distributor of the Fund.
1.2 You may perform any services for any entity,
including investment companies that are not advised or administered
by Citigroup or its subsidiaries.
1.3 You shall retain all rights to the information of your
customers, including, but not limited to, the names, addresses,
telephone numbers and social security numbers of applicants for,
purchasers of, and other customers of the Fund as well as other
identity and private information in respect of your customers,
employees, registered representatives and agents ("Confidential
Information"); provided, however, that Confidential Information
shall not include any customer information that: (x) was previously
known by us from a source other than you without obligations of
confidence; (y) was or is rightfully received by us from a third party
without obligations of confidence to you or from publicly available
sources without obligations of confidence to you; or (z) was or is
developed by means independent of information obtained from you.
2. Termination
In addition to the termination rights already contained in the
Agreement, (i) at any time prior to the second anniversary hereof, at
your option you may terminate the Agreement at any time in order
for you to enter into a mutually satisfactory mutual fund dealer
agreement with the principal underwriter that is an affiliate of Xxxx
Xxxxx for the Investment Company (a "Dealer Agreement") and (ii)
at any time following the second anniversary of the date hereof,
either party may at its option terminate the Agreement at any time in
order for you to enter into a Dealer Agreement ; provided, that any
such termination shall only be effective upon execution and delivery
of a Dealer Agreement which shall be, unless the parties thereto
otherwise agree, in substantially the form presented to the Board of
the Investment Company and attached hereto as Exhibit B with such
additional changes as may be appropriate to reflect changes in
applicable laws, regulations or industry practice.
3. Dealer and Other Agreements
You may not enter into dealer or similar agreements with
unaffiliated brokers, dealers, banks or other similar firms or
recordkeeping, shareholder servicing and sub-accounting services
with unaffiliated intermediaries without the written consent of the
Investment Company or its authorized designee. No such
unaffiliated intermediary is authorized to act as agent for the
Investment Company in connection with the offering or sale of
Shares of the Fund to the public or otherwise, except for the limited
purpose of determining the time as of which transactions in Shares
are deemed to have been received.
4. Compliance Matters
(a) You shall act as a distributor and principal
underwriter of Shares in compliance in all material respects with all
applicable laws, rules and regulations, including, without limitation,
all rules and regulations made or adopted pursuant to (i) the 1940
Act, (ii) the Securities Exchange Act of 1934 ("1934 Act"), (iii) any
securities association registered under the 1934 Act, including
without limitation the NASD Conduct Rules or rules of any other
applicable self-regulatory organization. You shall offer the Shares,
and accept purchases, redemptions and exchanges for Shares, in
compliance with the Fund"s registration statement (including its
prospectus and statement of additional information), as it may be
amended or supplemented from time to time ("Registration
Statement"). You will comply with and abide by the terms of a
Fund"s Plan, as it may be amended from time to time.
(b) You agree to submit sales literature and marketing
materials (including memorandums, bulletins, and/or information or
related materials) intended for public distribution ("CGMI
Marketing Materials") to the co-principal underwriter of the
Investment Company which is an affiliate of Xxxx Xxxxx prior to
distribution or publication for written approval. Such CGMI
Marketing Materials shall be submitted 15 days in advance for
review. You shall be responsible for reviewing and making such
filings with the NASD, as required, of CGMI Marketing Materials
relating to each Fund.
(c) You shall adopt and follow procedures for the
confirmation of sales to investors and qualified securities dealers,
banks and other intermediaries (collectively "Intermediaries")
timeliness of orders, the collection of amounts payable by investors
and Intermediaries on such sales, the correction of errors related to
distribution of Shares, the cancellation of unsettled transactions, and
assisting with the solicitation of proxies, and any other matters
governed by Rule 38a-1 under the 1940 Act (as may apply to a
distributor or principal underwriter for a registered investment
company), each as may be necessary to comply with the
requirements of the NASD, any other self-regulatory organization,
and the federal securities laws. You shall provide reports or other
information to the Investment Company at the Investment
Company"s reasonable request, including, without limitation,
reports related to the operation and implementation of the
Investment Company"s policies related to customer privacy,
safeguarding of customer information, anti-money-laundering, sales
and marketing practices, the operation of your code of ethics or other
policies and procedures of the Investment Company.
(d) You represent, warrant and agree that you have
adopted and implemented: (i) an anti-money-laundering program in
compliance with the USA Patriot Act of 2001, the regulations
thereunder and NASD Conduct Rules, including, without limitation,
customer identification program procedures, monitoring for
suspicious activity, and (ii) procedures to comply with applicable
law and regulation related to cash transaction reporting requirements,
as well as monitoring and reporting under FinCEN, OFAC and other
government watch lists.
(e) The Investment Company agrees that the
information exchanged under the Agreement and information about
the respective customers and potential customers of each is
confidential and as such shall not be disclosed by the Fund, sold or
used by the Fund in any way except to carry out the terms of this
Agreement. Notwithstanding the foregoing, such customer
information may be disclosed by the Investment Company on a
"need to know" basis as set forth in applicable privacy rules and
regulations. The obligations regarding confidentiality hereunder
shall not apply to any information which is (i) otherwise publicly
available, (ii) already possessed by the entity to whom the
information was disclosed prior to disclosure hereunder, (iii)
independently developed by the entity, or (iv) disclosed pursuant to
law, rule, regulation or court or administrative order. The
Investment Company shall have the right to use any list of
shareholders of the Fund or any other list of investors which it
obtains in connection with its provision of services under this
Agreement, provided that such use is consistent with applicable law
and your privacy policies of the Investment Company, including the
provision of information to the Fund"s transfer agent or to agents
used for the solicitation of proxies. You agree that you will comply
with all of the foregoing obligations of this to the extent that
information is treated as customer information of the Fund under
applicable law or regulation, including without limitation
Regulation S-P. Each party further agrees to take commercially
reasonable steps, in accordance with applicable law, to safeguard
customer information. The provisions of this paragraph will survive
termination of the Agreement.
(f) From time to time, each Fund may implement
policies, procedures or charges in an effort to avoid the potential
adverse effects on the Fund of short-term trading by market timers.
You agree to provide other assistance reasonably designed to
achieve compliance with these policies. You will maintain and
enforce policies with respect to frequent trading and share
redemption as are reasonable and customary in the industry. To the
extent that accounts are held in street name, you agree to cooperate
with the Investment Company and the Investment Company"s Chief
Compliance Officer (including, to the extent practicable, providing
account level sales and redemption information) to assist in
compliance with the frequent trading and redemption fee provisions
as set forth in the Fund's prospectus and other policies set forth in the
Fund's Registration Statement.
(g) Purchases, exchanges and redemptions of Shares
through you will be at the public offering price of such Shares (the net
asset value of the Shares, with appropriate adjustments for any
applicable sales charge), as determined in accordance with the then
effective Registration Statement used in connection with the offer and
sale of the Shares. The public offering price will reflect scheduled
variations in or the elimination of sales charges on sales of Shares
either generally to the public or in connection with special purchase
plans, as described in the Registration Statement. You agree to apply
any scheduled variation in or waivers of sales charges uniformly to all
customers meeting the qualifications therefor as specified in the
Registration Statement. With respect to Funds sold with an initial
sales charge, your customers will be entitled to reduced sales charges
on purchases made under any letter of intent or right of accumulation
as described in the Registration Statement.. In such case, the
concession from the public offering price retained by you will be
based upon such reduced sales charge. When placing wire trades,
your agree to advise the Funds of any letter of intent executed by its
customer or any available right of accumulation. The minimum
initial purchase and the minimum subsequent purchase of any Shares
shall be as set forth in the applicable Registration Statement. All
orders are subject to acceptance or rejection by the applicable Fund
in its sole discretion for any reason.
(h) The handling and settlement of purchase, exchange
and redemption orders will be subject to the provisions of the
Registration Statement and such further procedures as the
Investment Company and you may determine to be appropriate from
time-to-time, consistent with this Amendment. Citigroup Global
Markets" internal systems are suitably designed to handle such
orders. Each Fund shall notify you of the states or jurisdictions in
which its Shares are currently available for sale to the public. The
Investment Company shall have no obligation to register or make
available Fund shares in any state or jurisdiction. You will be
responsible for the accuracy, timeliness and completeness of
purchase, redemption or exchange orders accepted by you.
(j) The Investment Company acknowledges that the
co-principal underwriter which is affiliated with Xxxx Xxxxx shall be
responsible for reviewing the Registration Statement of the Fund for
the accuracy and completeness of all disclosure concerning the
distribution of Shares and that you shall not have such responsibility,
except, in each case, to the extent the disclosure information is
provided by you or pertains to information concerning your
operations. Notwithstanding the foregoing, nothing in this paragraph
shall alter your responsibilities for complying with the terms of the
Registration Statement in your offering of Shares.
5. Records. Upon the Investment Company"s reasonable
request, you will provide access to or make copies of any such
records the Investment Company does not possess in order to: (a)
comply with a request from a government body or self-regulatory
organization; (b) verify compliance by the other party of the terms of
this Agreement; or (c) make required regulatory reports.
6. Section 9 of the 1940 Act. You agree to promptly notify
the Investment Company should you cease to be a member of the
NASD through expulsion or otherwise or if its membership is
suspended or should you be subject to any limitations on your
conduct under Section 9 of the 1940 Act.
7. Indemnification
You agree to indemnify, defend and hold the Investment
Company, its several officers and Board members, and any person
who controls the Investment Company within the meaning of
Section 15 of the 1933 Act, free and harmless from and against any
and all claims, demands, liabilities and expenses (including the cost
of investigating or defending such claims, demands or liabilities and
any counsel fees incurred in connection therewith) which the
Investment Company, its officers or Board members, or any such
controlling person may incur, under the 1933 Act or under common
law or otherwise, on account of any act of yours or any of your
employees constituting willful misfeasance, bad faith, or gross
negligence in the performance of its duties, or by reason of your
reckless disregard of your obligations and duties under the
Agreement or this Amendment. The foregoing indemnification
provisions supplement the indemnification provisions of the
Agreement. The indemnifications provisions of this Amendment
and the Agreement shall survive the termination of the Agreement
and/or this Amendment.
If the foregoing is in accordance with your understanding,
kindly indicate your acceptance of this Amendment by signing and
returning to us the enclosed copy, whereupon this Amendment will
become binding on you.
Very truly yours,
Xxxxx Xxxxxx Aggressive
Growth Fund Inc.
By:
______________________
_
Name: R. Xxx Xxxxxx
Title: Chief Executive
Officer
Agreed to as of the date first above written:
Citigroup Global Markets Inc.
By: _____________________________
Name:
Title:
EXHIBIT A
Fund
Date Added:
Xxxxx Xxxxxx Aggressive
Growth Fund Inc.
December 1, 2005
EXHIBIT B
DEALER AGREEMENT
