EXHIBIT 6(d)
CLASS D SHARES
DISTRIBUTION AGREEMENT
AGREEMENT made as of the day of , 1997 between XXXXXXX XXXXX
CONVERTIBLE FUND, INC., a Maryland corporation (the "Company"), and XXXXXXX
XXXXX FUNDS DISTRIBUTOR, INC., a Delaware corporation (the "Distributor").
W I T N E S S E T H :
WHEREAS, the Company is registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), as an open-end investment
company, and it is affirmatively in the interest of the Company to offer its
shares for sale continuously; and
WHEREAS, the Distributor is a securities firm engaged in the business of
selling shares of investment companies either directly to purchasers or
through other securities dealers; and
WHEREAS, the Company and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of the Class D shares
of common stock in the Company.
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Company hereby appoints
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the Distributor as the principal underwriter and distributor of the Company
to sell Class D shares of common stock in the Company (sometimes herein
referred to as "Class D shares") to the public and hereby agrees during the
term of this Agreement to sell Class D shares of the Company to the
Distributor upon the terms and conditions herein set forth.
Section 2. Exclusive Nature of Duties. The Distributor shall be the
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exclusive representative of the Company to act as principal
underwriter and distributor, except that:
(a) The Company may, upon written notice to the Distributor, from time
to time designate other principal underwriters and distributors of Class D
shares with respect to areas other than the United States as to which the
Distributor may have expressly waived in writing its right to act as such.
If such designation is deemed exclusive, the right of the Distributor under
this Agreement to sell Class D shares in the areas so designated shall
terminate, but this Agreement shall remain otherwise in full effect until
terminated in accordance with the other provisions hereof.
(b) The exclusive right granted to the Distributor to purchase Class D
shares from the Company shall not apply to Class D shares issued in
connection with the merger or consolidation of any other investment company
or personal holding company with the Company or the acquisition by purchase
or otherwise of all (or substantially all) the assets or the outstanding
Class D shares of any such company by the Company.
(c) Such exclusive right also shall not apply to Class D shares issued
by the Company pursuant to reinvestment of dividends or capital gains
distributions.
(d) Such exclusive right also shall not apply to Class D shares issued
by the Company pursuant to any conversion, exchange or reinstatement
privilege afforded redeeming shareholders or to any other Class D shares as
shall be agreed between the Company and the Distributor from time to time.
Section 3. Purchase of Class D Shares from the Company.
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(a) The Company will commence an offering of its Class D shares, and
thereafter the Distributor shall have the right to buy from the Company the
Class D shares needed, but not more than the Class D shares needed (except
for clerical errors in transmission) to fill unconditional orders for Class D
shares of the Company placed with the Distributor by eligible investors or
securities dealers. Investors eligible to purchase Class D shares shall be
those persons so identified in the currently effective prospectus and
statement of additional information of the Company (the "prospectus" and
"statement of additional information", respectively) under the Securities Act
of 1933, as amended (the "Securities Act"), relating to such Class D shares.
The price which the Distributor shall pay for the Class D shares so purchased
from the Company shall be the net asset value, determined as set forth in
Section 3(d) hereof, used in determining the public offering price on which
such orders were based.
(b) The Class D shares are to be resold by the Distributor to investors
at the public offering price, as set forth in Section 3(c) hereof, or to
securities dealers having agreements with the Distributor upon the terms and
conditions set forth in Section 7 hereof.
(c) The public offering price(s) of the Class D shares, i.e., the price
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per share at which the Distributor or selected dealers may sell Class D
shares to the public, shall be the public offering price as set forth in
the prospectus and statement of additional information relating to such
Class D shares, but not to exceed the net asset value at which the
Distributor is to purchase the Class D shares, plus a sales charge not
to exceed 5.25% of the public offering price (5.54% of the net amount
invested), subject to reductions for volume purchases. Class D shares may
be sold to certain Directors, officers and employees of the Company,
directors and employees of Xxxxxxx Xxxxx & Co., Inc. and its subsidiaries,
and to certain other persons described in the prospectus and statement of
additional information, without a sales charge or at a reduced sales
charge, upon terms and conditions set forth in the prospectus and
statement of additional information. If the public offering price does
not equal an even cent, the public offering price may be adjusted to the
nearest cent. All payments to the Company hereunder shall be made in the
manner set forth in Section 3(f).
(d) The net asset value of Class D shares shall be determined by the
Company or any agent of the Company in accordance with the method set forth
in the prospectus and statement of additional information of the Company and
guidelines established by the Directors.
(e) The Company shall have the right to suspend the sale of its Class D
shares at times when redemption is suspended pursuant to the conditions set
forth in Section 4(b) hereof. The Company shall also have the right to
suspend the sale of its Class D shares if trading on the New York Stock
Exchange shall have been suspended, if a banking moratorium shall have been
declared by Federal or New York authorities, or if there shall have been some
other event, which, in the judgment of the Company, makes it impracticable or
inadvisable to sell the Class D shares.
(f) The Company, or any agent of the Company designated in writing by
the Company, shall be promptly advised of all purchase orders for Class D
shares received by the Distributor. Any order may be rejected by the
Company; provided, however, that the Company will not arbitrarily or without
reasonable cause refuse to accept or confirm orders for the purchase of Class
D shares. The Company (or its agent) will confirm orders upon their receipt,
will make appropriate book entries and, upon receipt by the Company (or its
agent) of payment therefor, will deliver deposit receipts or certificates for
such Class D shares pursuant to the instructions of the Distributor. Payment
shall be made to the Company in New York Clearing House funds. The
Distributor agrees to cause such payment and such instructions to be
delivered promptly to the Company (or its agent).
Section 4. Repurchase or Redemption of Class D shares by the Company.
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(a) Any of the outstanding Class D shares may be tendered for
redemption at any time, and the Company agrees to repurchase or redeem the
Class D shares so tendered in accordance with its obligations as set forth in
Article VI of its Articles of Incorporation, as amended from time to time,
and in accordance with the applicable provisions set forth in the prospectus
and statement of additional information. The price to be paid to redeem or
repurchase the Class D shares shall be equal to the net asset value
calculated in accordance with the provisions of Section 3(d) hereof, less any
contingent deferred sales charge ("CDSC"), redemption fee or other charge(s),
if any, set forth in the prospectus and statement of additional information
of the Company. All payments by the Company hereunder shall be made in the
manner set forth below. The redemption or repurchase by the Company of any
of the Class D shares purchased by or through the Distributor will not affect
the sales charge secured by the Distributor or any selected dealer in the
course of the original sale, except that if any Class D shares are tendered
for redemption or repurchase within seven business days after the date of the
confirmation of the original purchase, the right to the sales charge shall be
forfeited by the Distributor and the selected dealer which sold such Class D
shares.
The Company shall pay the total amount of the redemption price as
defined in the above paragraph pursuant to the instructions of the
Distributor in New York Clearing House funds on or before the seventh
business day subsequent to its having received the notice of redemption in
proper form. The proceeds of any redemption of shares shall be paid by the
Company as follows: (i) any applicable CDSC shall be paid to the
Distributor, and (ii) the balance shall be paid to or for the account of the
shareholder, in each case in accordance with the applicable provisions of the
prospectus and statement of additional information.
(b) Redemption of Class D shares or payment may be suspended at times
when the New York Stock Exchange is closed, when trading on said Exchange is
suspended, when trading on said Exchange is restricted, when an emergency
exists as a result of which disposal by the Company of securities owned by it
is not reasonably practicable or it is not reasonably practicable for the
Company fairly to determine the value of its net assets, or during any other
period when the Securities and Exchange Commission, by order, so permits.
Section 5. Duties of the Company.
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(a) The Company 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 Class D
shares of the Company, and this shall include, upon request by the
Distributor, one certified copy of all financial statements prepared for the
Company by independent public accountants. The Company shall make available
to the Distributor such number of copies of the prospectus and statement of
additional information as the Distributor shall reasonably request.
(b) The Company shall take, from time to time, but subject to any
necessary approval of the Class D shareholders, all necessary action to fix
the number of authorized Class D shares and such steps as may be necessary to
register the same under the Securities Act, to the end that there will be
available for sale such number of Class D shares as the Distributor may
reasonably be expected to sell.
(c) The Company shall use its best efforts to qualify and maintain the
qualification of an appropriate number of its Class D shares for sale under
the securities laws of such states as the Distributor and the Company may
approve. Any such qualification may be withheld, terminated or withdrawn by
the Company at any time in its discretion. As provided in Section 8(c)
hereof, the expense of qualification and maintenance of qualification shall
be borne by the Company. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be required by
the Company in connection with such qualification.
(d) The Company will furnish, in reasonable quantities upon request by
the Distributor, copies of annual and interim reports of the Company.
Section 6. Duties of the Distributor.
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(a) The Distributor shall devote reasonable time and effort to effect
sales of Class D shares of the Company but shall not be obligated to sell any
specific number of Class D shares. The services of the Distributor to the
Company hereunder are not to be deemed exclusive and nothing herein contained
shall prevent the Distributor from entering into like arrangements with other
investment companies so long as the performance of its obligations hereunder
is not impaired thereby.
(b) In selling the Class D shares of the Company, the Distributor shall
use its best efforts in all respects duly to conform with the requirements of
all Federal and state laws relating to the sale of such securities. Neither
the Distributor nor any selected dealer, as defined in Section 7 hereof, nor
any other person is authorized by the Company to give any information or to
make any representations, other than those contained in the registration
statement or related prospectus and statement of additional information and
any sales literature specifically approved by the Company.
(c) The Distributor shall adopt and follow procedures, as approved by
the officers of the Company, for the confirmation of sales to investors and
selected dealers, the collection of amounts payable by investors and selected
dealers on such sales, and the cancellation of unsettled transactions, as may
be necessary to comply with the requirements of the National Association of
Securities Dealers, Inc. (the "NASD"), as such requirements may from time to
time exist.
Section 7. Selected Dealers Agreements.
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(a) The Distributor shall have the right to enter into selected dealers
agreements with securities dealers of its choice ("selected dealers") for the
sale of Class D shares and fix therein the portion of the sales charge which
may be allocated to the selected dealers; provided that the Company shall
approve the forms of agreements with dealers and the dealer compensation set
forth therein. Class D shares sold to selected dealers shall be for resale
by such dealers only at the public offering price(s) set forth in the
prospectus and statement of additional information. The form of agreement
with selected dealers to be used in the continuous offering of the Class D
shares is attached hereto as Exhibit A.
(b) Within the United States, the Distributor shall offer and sell
Class D shares only to such selected dealers as are members in good standing
of the NASD.
Section 8. Payment of Expenses.
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(a) The Company shall bear all costs and expenses of the Company,
including fees and disbursements of its counsel and auditors, in connection
with the preparation and filing of any required registration statements
and/or prospectuses and statements of additional information under the
Investment Company Act, the Securities Act, and all amendments and
supplements thereto, and preparing and mailing annual and interim reports and
proxy materials to Class D shareholders (including but not limited to the
expense of setting in type any such registration statements, prospectuses,
statements of additional information, annual or interim reports or proxy
materials).
(b) The Distributor shall be responsible for any payments made to
selected dealers as reimbursement for their expenses associated with payments
of sales commissions to financial consultants. In addition, after the
prospectuses, statements of additional information and annual and interim
reports have been prepared and set in type, the Distributor shall bear the
costs and expenses of printing and distributing any copies thereof which are
to be used in connection with the offering of Class D shares to selected
dealers or investors pursuant to this Agreement. The Distributor shall bear
the costs and expenses of preparing, printing and distributing any other
literature used by the Distributor or furnished by it for use by selected
dealers in connection with the offering of the Class D shares for sale to the
public and any expenses of advertising incurred by the Distributor in
connection with such offering. It is understood and agreed that so long as
the Company's Class D Shares Distribution Plan pursuant to Rule 12b-1 under
the Investment Company Act remains in effect, any expenses incurred by the
Distributor hereunder in connection with account maintenance activities may
be paid from amounts recovered by it from the Company under such plan.
(c) The Company shall bear the cost and expenses of qualification of
the Class D shares for sale pursuant to this Agreement and, if necessary or
advisable in connection therewith, of qualifying the Company as a broker or
dealer in such states of the United States or other jurisdictions as shall be
selected by the Company and the Distributor pursuant to Section 5(c) hereof
and the cost and expenses payable to each such state for continuing
qualification therein until the Company decides to discontinue such
qualification pursuant to Section 5(c) hereof.
Section 9. Indemnification.
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(a) The Company shall indemnify and hold harmless the Distributor and
each person, if any, who controls the Distributor against any loss,
liability, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage or
expense and reasonable counsel fees incurred in connection therewith), as
incurred, arising by reason of any person acquiring any Class D shares, which
may be based upon the Securities Act, or on any other statute or at common
law, on the ground that the registration statement or related prospectus and
statement of additional information, as from time to time amended and
supplemented, or an annual or interim report to shareholders of the Company,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, unless such statement or omission was made
in reliance upon, and in conformity with, information furnished to the
Company in connection therewith by or on behalf of the Distributor; provided,
however, that in no case (i) is the indemnity of the Company in favor of the
Distributor and any such controlling persons to be deemed to protect such
Distributor or any such controlling persons thereof against any liability to
the Company or its security holders to which the Distributor or any such
controlling persons would otherwise be subject by reason of willful mis-
feasance, bad faith or gross negligence in the performance of their duties or
by reason of the reckless disregard of their obligations and duties under
this Agreement; or (ii) is the Company to be liable under its indemnity
agreement contained in this paragraph with respect to any claim made against
the Distributor or any such controlling persons, unless the Distributor or
such controlling persons, as the case may be, shall have notified the Company
in writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon the Distributor or such controlling persons (or after the Distributor or
such controlling persons shall have received notice of such service on any
designated agent), but failure to notify the Company of any such claim shall
not relieve it from any liability which it may have to the person against
whom such action is brought otherwise than on account of its indemnity
agreement contained in this paragraph. The Company will 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 such liability, but if the
Company elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to the Distributor or such controlling
person or persons, defendant or defendants in the suit. In the event the
Company elects to assume the defense of any such suit and retain such
counsel, the Distributor or such controlling person or persons, defendant or
defendants in the suit shall bear the fees and expenses of any additional
counsel retained by them, but in case the Company does not elect to assume
the defense of any such suit, it will reimburse the Distributor or such
controlling person or persons, defendant or defendants in the suit, for the
reasonable fees and expenses of any counsel retained by them. The Company
shall promptly notify the Distributor of the commencement of any litigation
or proceedings against it or any of its officers or Directors in connection
with the issuance or sale of any of the Class D shares.
(b) The Distributor shall indemnify and hold harmless the Company and
each of its Directors and officers and each person, if any, who controls the
Company against any loss, liability, claim, damage or expense described in
the foregoing indemnity contained in subsection (a) of this Section, but only
with respect to statements or omissions made in reliance upon, and in
conformity with, information furnished to the Company in writing by or on
behalf of the Distributor for use in connection with the registration state-
ment or related prospectus and statement of additional information, as from
time to time amended, or the annual or interim reports to Class D
shareholders. In case any action shall be brought against the Company or any
person so indemnified, in respect of which indemnity may be sought against
the Distributor, the Distributor shall have the rights and duties given to
the Company, and the Company and each person so indemnified shall have the
rights and duties given to the Distributor by the provisions of subsection
(a) of this Section 9.
Section 10. Xxxxxxx Xxxxx Mutual Fund Adviser Program. In connection
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with the Xxxxxxx Xxxxx Mutual Fund Adviser Program, the Distributor and its
affiliate, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, are
authorized to offer and sell shares of the Company, as agent for the
Company, to participants in such program. The terms of this Agreement
shall apply to such sales, including terms as to the offering price of
shares, the proceeds to be paid to the Company, the duties of the
Distributor, the payment of expenses and indemnification obligations of
the Company and the Distributor.
Section 11. Duration and Termination of this Agreement. This Agreement
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shall become effective as of the date first above written and shall remain
in force until , 1999 and thereafter, but only for so long as
such continuance is specifically approved at least annually by (i) the
Directors or by the vote of a majority of the outstanding voting securities
of the Company and (ii) by the vote of a majority of those Directors
who are not parties to this Agreement or interested persons of any such
party cast in person at a meeting called for the purpose of voting on such
approval.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Directors or by vote of a majority of the outstanding voting
securities of the Company, or by the Distributor, on sixty days' written
notice to the other party. This Agreement shall automatically terminate in
the event of its assignment.
The terms "vote of a majority of the outstanding voting securities,"
"assignment," "affiliated person" and "interested person," when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act.
Section 12. Amendments of this Agreement. This Agreement may be
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amended by the parties only if such amendment is specifically approved by
(i) the Directors or by the vote of a majority of outstanding voting
securities of the Company and (ii) by the vote of a majority of those
Directors of the Company who are not parties to this Agreement or
interested persons of any such party cast in person at a meeting called
for the purpose of voting on such approval.
Section 13. Governing Law. The provisions of this Agreement shall be
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construed and interpreted in accordance with the laws of the State of New
York as at the time in effect and the applicable provisions of the
Investment Company Act. To the extent that the applicable law of the State
of New York, or any of the provisions herein, conflict with the applicable
provisions of the Investment Company Act, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXX XXXXX CONVERTIBLE FUND, INC.
By
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Title:
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By
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Title:
EXHIBIT A
XXXXXXX XXXXX CONVERTIBLE FUND, INC.
CLASS D SHARES OF COMMON STOCK
SELECTED DEALERS AGREEMENT
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Ladies and Gentlemen:
Xxxxxxx Xxxxx Funds Distributor, Inc. (the "Distributor") has an
agreement with Xxxxxxx Xxxxx Convertible Fund, Inc., a Maryland corporation
(the "Company"), pursuant to which it acts as the distributor for the sale of
Class D shares of common stock, par value $0.10 per share (herein referred to
as "Class D shares"), of the Company and as such has the right to distribute
Class D shares of the Company for resale. The Company is an open-end
investment company registered under the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and its Class D shares are registered
under the Securities Act of 1933, as amended (the "Securities Act"). You
have received a copy of the Class D shares Distribution Agreement (the
"Distribution Agreement") between ourself and the Company and reference is
made herein to certain provisions of such Distribution Agreement. The terms
"Prospectus" and "Statement of Additional Information" used herein refer to
the prospectus and statement of additional information, respectively, on file
with the Securities and Exchange Commission which is part of the most recent
effective registration statement pursuant to the Securities Act. We offer to
sell to you, as a member of the Selected Dealers Group, Class D shares of the
Company upon the following terms and conditions:
1. In all sales of these Class D shares to the public, you shall act as
dealer for your own account and in no transaction shall you have any
authority to act as agent for the Company, for us or for any other member of
the Selected Dealers Group, except in connection with the Xxxxxxx Xxxxx
Mutual Fund Adviser program and such other special programs as we from time
to time agree, in which case you shall have authority to offer and sell
shares, as agent for the Company, to participants in such program.
2. Orders received from you will be accepted through us only at the
public offering price applicable to each order, as set forth in the current
Prospectus and Statement of Additional Information of the Company. The
procedure relating to the handling of orders shall be subject to Section 5
hereof and instructions which we or the Company shall forward from time to
time to you. All orders are subject to acceptance or rejection by the
Distributor or the Company in the sole discretion of either. The minimum
initial and subsequent purchase requirements are as set forth in the current
Prospectus and Statement of Additional Information of the Company.
3. The sales charges for sales to eligible investors, computed as
percentages of the public offering price and the amount invested, and the
related discount to Selected Dealers are as follows:
Discount to
Selected
Sales Charge Dealers as
Sales Charge as Percentage* Percentage
as Percentage of the Net of the
of the Amount Offering
Amount of Purchase Offering Price Invested Price
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Less than $25,000.... 5.25% 5.54% 5.00%
$25,000 but less
than $50,000........ 4.75 4.99 4.50
$50,000 but less
than $100,000........ 4.00 4.17 3.75
$100,000 but less
than $250,000....... 3.00 3.09 2.75
$250,000 but less
than $1,000,000....... 2.00 2.04 1.80
$1,000,000 and over**.. 0.00 0.00 0.00
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* Rounded to the nearest one-hundredth percent.
** Initial sales charges will be waived for certain classes of offerees as
set forth in the current Prospectus and Statement of Additional Information
of the Company. Such purchases may be subject to a contingent deferred sales
charge as set forth in the current Prospectus and Statement of Additional
Information.
The term "purchase" refers to a single purchase by an individual, or to
concurrent purchases, which in the aggregate are at least equal to the
prescribed amounts, by an individual, his spouse and their children under the
age of 21 years purchasing Class D shares for his or their own account and to
single purchases by a trustee or other fiduciary purchasing Class D shares
for a single trust estate or single fiduciary account although more than one
beneficiary is involved. The term "purchase" also includes purchases by any
"company" as that term is defined in the Investment Company Act but does not
include purchases by any such company which has not been in existence for at
least six months or which has no purpose other than the purchase of Class D
shares of the Company or Class D shares of other registered investment
companies at a discount; provided, however, that it shall not include
purchases by any group of individuals whose sole organizational nexus is that
the participants therein are credit cardholders of a company, policyholders
of an insurance company, customers of either a bank or broker-dealer or
clients of an investment adviser.
The reduced sales charges are applicable through a right of accumulation
under which certain eligible investors are permitted to purchase Class D
shares of the Company at the offering price applicable to the total of (a)
the dollar amount then being purchased plus (b) an amount equal to the then
current net asset value or cost, whichever is higher, of the purchaser's
combined holdings of Class A, Class B, Class C and Class D shares of the
Company and of any other open-end investment company advised by Xxxxxxx Xxxxx
Asset Management, L.P. or Fund Asset Management, L.P. (together "MLAM-advised
mutual funds"). For any such right of accumulation to be made available, the
Distributor must be provided at the time of purchase, by the purchaser or
you, with sufficient information to permit confirmation of qualification, and
acceptance of the purchase order is subject to such confirmation.
The reduced sales charges are applicable to purchases aggregating
$25,000 or more of Class A shares or of Class D shares of any other MLAM-
advised mutual fund made through you within a thirteen-month period starting
with the first purchase pursuant to a Letter of Intention in the form pro-
vided in the Prospectus. A purchase not originally made pursuant to a Letter
of Intention may be included under a subsequent letter executed within 90
days of such purchase if the Distributor is informed in writing of this
intent within such 90-day period. If the intended amount of shares is not
purchased within the thirteen-month period, an appropriate price adjustment
will be made pursuant to the terms of the Letter of Intention.
You agree to advise us promptly at our request as to amounts of any
sales made by you to eligible investors qualifying for reduced sales charges.
Further information as to the reduced sales charges pursuant to the right of
accumulation or a Letter of Intention is set forth in the Prospectus and
Statement of Additional Information.
4. You shall not place orders for any of the Class D shares unless you
have already received purchase orders for such Class D shares at the
applicable public offering prices and subject to the terms hereof and of the
Distribution Agreement. You agree that you will not offer or sell any of the
Class D shares except under circumstances that will result in compliance with
the applicable Federal and state securities laws and that in connection with
sales and offers to sell Class D shares you will furnish to each person to
whom any such sale or offer is made a copy of the Prospectus and, if
requested, the Statement of Additional Information (as then amended or
supplemented) and will not furnish to any person any information relating to
the Class D shares of the Company which is inconsistent in any respect with
the information contained in the Prospectus and Statement of Additional
Information (as then amended or supplemented) or cause any advertisement to
be published in any newspaper or posted in any public place without our
consent and the consent of the Company.
5. As a selected dealer, you are hereby authorized (i) to place orders
directly with the Company for Class D shares of the Company to be resold by
us to you subject to the applicable terms and conditions governing the
placement of orders by us set forth in Section 3 of the Distribution
Agreement and subject to the compensation provisions of Section 3 hereof and
(ii) to tender Class D shares directly to the Company or its agent for
redemption subject to the applicable terms and conditions set forth in
Section 4 of the Distribution Agreement.
6. You shall not withhold placing orders received from your customers
so as to profit yourself as a result of such withholding: e.g., by a change
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in the "net asset value" from that used in determining the offering price to
your customers.
7. If any Class D shares sold to you under the terms of this Agreement
are repurchased by the Company or by us for the account of the Company or are
tendered for redemption within seven business days after the date of the
confirmation of the original purchase by you, it is agreed that you shall
forfeit your right to, and refund to us, any discount received by you on such
Class D shares.
8. No person is authorized to make any representations concerning Class
D shares of the Company except those contained in the current Prospectus and
Statement of Additional Information of the Company and in such printed
information subsequently issued by us or the Company as information
supplemental to such Prospectus and Statement of Additional Information. In
purchasing Class D shares through us you shall rely solely on the
representations contained in the Prospectus and Statement of Additional
Information and supplemental information above mentioned. Any printed
information which we furnish you other than the Company's Prospectus,
Statement of Additional Information, periodic reports and proxy solicitation
material is our sole responsibility and not the responsibility of the
Company, and you agree that the Company shall have no liability or
responsibility to you in these respects unless expressly assumed in
connection therewith.
9. You agree to deliver to each of the purchasers making purchases from
you a copy of the then current Prospectus and, if requested, the Statement of
Additional Information at or prior to the time of offering or sale and you
agree thereafter to deliver to such purchasers copies of the annual and
interim reports and proxy solicitation materials of the Company. You further
agree to endeavor to obtain proxies from such purchasers. Additional copies
of the Prospectus and Statement of Additional Information, annual or interim
reports and proxy solicitation materials of the Company will be supplied to
you in reasonable quantities upon request.
10. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Class D shares entirely or to certain
persons or entities in a class or classes specified by us. Each party hereto
has the right to cancel this agreement upon notice to the other party.
11. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the continuous offering.
We shall be under no liability to you except for lack of good faith and for
obligations expressly assumed by us herein. Nothing contained in this
paragraph is intended to operate as, and the provisions of this paragraph
shall not in any way whatsoever constitute, a waiver by you of compliance
with any provision of the Securities Act, or of the rules and regulations of
the Securities and Exchange Commission issued thereunder.
12. You represent that you are a member of the National Association of
Securities Dealers, Inc. and, with respect to any sales in the United States,
we both hereby agree to abide by the Rules of Fair Practice of such
Association.
13. Upon application to us, we will inform you as to the states in
which we believe the Class D shares have been qualified for sale under, or
are exempt from the requirements of, the respective securities laws of such
states, but we assume no responsibility or obligation as to your right to
sell Class D shares in any jurisdiction. We will file with the Department of
State in New York a Further State Notice with respect to the Class D shares,
if necessary.
14. All communications to us should be sent to the address below. Any
notice to you shall be duly given if mailed or telegraphed to you at the
address specified by you below.
15. Your first order placed pursuant to this Agreement for the purchase
of Class D shares of the Company will represent your acceptance of this
Agreement.
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By
----------------------------
(Authorized Signature)
Please return one signed copy
of this agreement to:
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
X.X. Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Accepted:
Firm Name:
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By:
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Address:
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Date:
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