Agreement Dated
October ____, 2000
between
Xxxxxxxx Research Corp.
and
Xxxxxxx, Sachs & Co.
This Agreement is made as of the ____ day of October, 2000, between
Xxxxxxx, Xxxxx & Co. ("Goldman") and Xxxxxxxx Research Corp. ("Fund Party").
WHEREAS, Fund Party is the investment adviser or distributor of the
Xxxxxxxx Funds, an open-ended investment company (the "Fund"); and
WHEREAS, Fund Party and Goldman wish to make shares of the Fund
available to Xxxxxxx'x clients subject to the provisions set forth below; and
WHEREAS, Goldman intends that certain purchase, redemption and exchange
orders for Fund shares on behalf of its clients will be placed through an
omnibus clearing relationship with a broker/dealer (the "Clearing Broker") that
has an account or accounts with the Fund and/or Fund Party for such purposes
under a direct contractual relationship with the Fund and/or Fund Party to which
Goldman is not a party (the "Fund Party/Clearing Broker Arrangement").
NOW, THEREFORE, in consideration of the premises and the mutual
promises set forth herein, and Goldman and Fund Party, intending to be legally
bound, agree as follows:
1. Placement and Payment of Orders. With respect to purchase,
redemption and exchange orders for Fund shares on behalf of Goldman clients
placed through an omnibus clearing relationship with the Clearing Broker, the
rules and procedures for the placement and payment of these orders will be
governed solely and exclusively by the Fund Party/Clearing Broker Arrangement.
2. Investment Minimums. Goldman may waive any applicable account
investment minimums with respect to purchase orders for Fund shares placed on
behalf of its clients through the Clearing Broker pursuant to the Fund
Party/Clearing Broker Arrangement.
3. Use of Names. Goldman is authorized to use the names or other
identifying marks of Fund Party and/or the Funds in connection with the offer
and sale of Fund shares. Fund Party may withdraw this authorization as to any
particular use of any such name or identifying marks at any time (a) upon Fund
Party's reasonable determination that such use would have a material adverse
effect on the reputation or marketing efforts of Fund Party or the Fund, or (b)
if the Fund ceases to be offered by Goldman; provided, however, that Goldman
may, in its discretion, continue to use materials prepared or printed prior to
the withdrawal of such authorization or in the process of being prepared or
printed at the time of such withdrawal. Goldman further acknowledges and agrees
that, in each case where such materials constitute "advertising" or "sales
literature" for purposes of NASD Conduct Rule 2210, Goldman shall be responsible
for compliance with the review and filing requirements of such Rule with respect
to such materials.
4. Blue Sky. Upon execution of this Agreement, Fund Party will advise
Goldman of the states and other jurisdictions in which shares of the Fund are
registered and qualified for sale. Thereafter, Fund Party will promptly advise
Xxxxxxx Sachs of any changes with respect to the states and other jurisdictions
in which shares of the Fund are registered and qualified for sale.
5. Confidentiality of Identity of Goldman Clients. All information
relating to Xxxxxxx'x clients, including, but not limited to, the names and
addresses of Xxxxxxx'x clients, will remain Xxxxxxx'x sole property and neither
Fund Party, the Fund nor their respective directors, trustees, officers,
partners, employees, agents or affiliates may copy, reproduce, sell, assign,
license, market, transfer or otherwise dispose of, give or disclose such
information to third parties or use such information for any purposes other than
to provide services contemplated by this Agreement. Fund Party and the Fund will
advise each of their respective directors, trustees, officers, partners,
employees, agents and affiliates who may be exposed to such proprietary and
confidential information to keep such information confidential. This provision
will survive expiration or termination of this Agreement.
6. Use of Goldman Names. Fund Party and the Fund will not, without
prior written consent of Goldman in each instance, (a) use in advertising,
publicity or otherwise the name of "Xxxxxxx Xxxxx," including the name of any
affiliate, partner or employee of Goldman, nor any trade name, trademark, trade
device, service xxxx, symbol or any abbreviation, contraction or simulation
thereof owned by Goldman, including, without limitation, "xx.xxx"; or (b)
represent, directly or indirectly, that any product or any service provided by
Fund Party has been approved or endorsed by Goldman. This provision will survive
this termination of this Agreement.
7. Indemnification.
Indemnification of Goldman by Fund Party
Fund Party hereby agrees to indemnify and hold harmless Goldman, each
person, if any, who controls Goldman within the meaning of Section 15
of the Securities Act of 1933, and each of their directors, trustees,
officers, partners and employees from and against all losses,
liabilities, claims, demands, damages or expenses (including the
reasonable cost of investigating and defending against any claims
therefor and reasonable counsel fees incurred, but excluding
consequential damages) in connection with or arising out of: (a) any
failure of Fund Party, its employees, agents, directors, trustees,
officers, partners and/or affiliates, acting within or outside the
scope of their employment, to fully comply with the terms of this
Agreement; (b) any breach of any representation or warranty provided by
Fund Party in this Agreement; (c) any misleading or untrue or alleged
untrue statement of material fact contained in the registration
statements (including the related prospectuses and statements of
additional information), annual or other periodic reports or proxy
statement of the Fund, and any amendments or supplements thereto,
and/or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except to the extent that such statement or
omission is based upon information provided by Goldman for inclusion
therein; (d) any misleading or untrue or alleged untrue statement of
material fact contained in any advertising or sales literature prepared
or approved by or for Fund Party, its employees, agents, directors,
trustees, officers and/or affiliates, and/or any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except to
the extent that such statement or omission is based upon information
provided by Goldman for inclusion therein; and (e) any material breach
by Fund Party, its employees, agents, directors, trustees, officers
and/or affiliates, in connection with the offer or sale of shares of
the Fund, of any federal or state law including, without limitation,
any federal or state securities law; provided, that no such
indemnification will extend to any loss, liability, claim, demand,
damage or expense directly caused by the failure, act or omission of
Goldman, its employees, agents, directors, trustees, officers and/or
affiliates to comply with the terms of this Agreement.
Indemnification of Fund Party by Goldman
Goldman hereby agrees to indemnify and hold harmless Fund Party and the
Fund, and each person, if any, who controls the Fund Party or the Fund
within the meaning of Section 15 of the Securities Act of 1933, and
each of its directors, trustees, officers, partners and employees from
and against all losses, liabilities, claims, demands, damages or
expenses (including the reasonable cost of investigating and defending
against any claims therefor and reasonable counsel fees incurred, but
excluding consequential damages) in connection with or arising out of:
(a) any failure of Goldman, its employees, agents, directors, trustees,
officers, partners and/or affiliates, acting within or outside the
scope of their employment, to fully comply with the terms of this
Agreement; (b) any breach of any representation or warranty provided by
Goldman in this Agreement; and (c) any advertising or sales literature
relating to the Fund or Fund Party that Goldman prepared and used
without Fund Party's consent except to the extent that the same is
accurately based on information published or provided by Fund Party or
the Fund; provided that no such indemnification shall extend to any
loss, liability, claim, demand, damage or expense directly caused by
the failure, act or omission of Fund Party, its employees, agents,
directors, trustees, officers and/or affiliates to comply with the
terms of this Agreement.
The indemnification provisions herein will survive the termination of
this Agreement.
8. Amendment. This Agreement may be amended, modified or supplemented
at any time by mutual written agreement of the parties.
9. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by a duly
authorized representative of each of the parties hereto as of the date first set
forth above.
Xxxxxxxx Research Corp. Xxxxxxx, Sachs & Co.
By: _____________________ By: _____________________
Name: Name: Xxxxxxxxx Xxxxxxxx
Title: Title: Managing Director
