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 Investment
Funds 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
Xxxxxxxxx.Xxx 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 Investment Funds 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 Investment Grade Bond Fund December 1, 2005
Xxxxx Xxxxxx Multiple Discipline Funds
Balanced All Cap Growth and Value Fund December 1, 2005
Xxxxx Xxxxxx Multiple Discipline Funds
Large Cap Growth and Value Fund December 1, 2005
Xxxxx Xxxxxx Multiple Discipline Funds
All Cap Growth and Value Fund December 1, 2005
Xxxxx Xxxxxx Multiple Discipline Funds
Global All Cap Growth and Value Fund December 1, 2005
Xxxxx Xxxxxx Multiple Discipline Funds
All Cap and International Fund December 1, 2005
Xxxxx Xxxxxx Government Securities Fund December 1, 2005
Xxxxx Xxxxxx Xxxxxxxxxx Global Value Fund December 1, 2005
Xxxxx Xxxxxx Real Return Strategy Fund December 1, 2005
Xxxxx Xxxxxx Small Cap Growth Fund December 1, 2005
Xxxxx Xxxxxx Small Cap Value Fund December 1, 2005
EXHIBIT B
DEALER AGREEMENT
