BROKER AGREEMENT
This agreement is made on (date) between
("Broker")
AND
Prudential Investment Management Services LLC ("PIMS")
A. Authorization to Broker
(1) PIMS hereby authorizes Broker during the term of this Agreement to
sell, distribute and re-sell units of the products (collectively, the
"Products") listed on Attachment 1, which are sold by PIMS to eligible
plan sponsors and their employees. Broker hereby accepts such
authorization on the terms set forth herein.
B. Obligations of Broker
(1) Broker represents that it is a registered broker/dealer under the
Securities and Exchange Act of 1934 and is a member of the National
Association of Securities Dealers, Inc. (the "NASD"). Broker represents
and agrees that: (a) it will abide by the Rules of Fair Practice of the
NASD; and (b) all of its agents who will be soliciting applications for
products distributed by PIMS are registered representatives with the
NASD and appropriately licensed by any state in which the agent
conducts business.
(2) Broker agrees to use its best efforts to solicit applications for
the Products that are acceptable to PIMS. Broker shall, during the term
of this Agreement, engage in the following activities:
(a) Utilize only those prospectuses, statements of additional
information, advertising material, literature and sales
literature that has been provided by PIMS. If Broker wishes to
use any other material, (i) it must be approved by PIMS, and
(ii) Broker is responsible for securing required regulatory
approvals.
(b) Establish and maintain a system to supervise the
activities of each registered representative and associated
person that is reasonably designed to achieve compliance with
applicable Federal and State Securities laws and regulations,
including the rules of the NASD. PIMS will have no supervisory
responsibility for the registered representatives and
associated persons of Broker.
(3) As to the offer and sale of shares of the Prudential Mutual Funds (the
"Fund"), Broker agrees:
(a) To offer and sell shares of the Fund only at their net
asset value, in accordance with the current Prospectus and
Statement of Additional Information of the Fund. All
redemptions of shares will be made at their net asset value,
in accordance with the current Prospectus and Statement of
Additional Information of the Fund.
(b) To purchase shares of the Fund from PIMS or only from
Broker's customers.
(c) To purchase shares of the Fund from PIMS only for the
purpose of covering purchase orders already received or for
Broker's bona fide investment.
(d) Broker will promptly advise PIMS of all unconditional
purchase and redemption orders for shares of the Fund received
by Broker.
(e) Broker will not offer or sell any of the shares of the
Fund except under circumstances that will result in full
compliance with all applicable Federal and State securities
laws, and in connection with sales and offers to sell shares
of the Fund, Broker will furnish to each person to whom any
such sale or offer is made a copy of the then applicable
current Prospectus.
(f) No person is authorized to make any representations
concerning shares of the Fund except those contained in the
current Prospectus and printed information issued by the Fund
or by PIMS as information supplemental to the Prospectus.
(g) Broker acknowledges that the Fund has the right to suspend
the sale of its shares and that the redemption of shares or
payment may be suspended in each case as permitted by law.
C. Obligation of PIMS
PIMS shall supply prospectuses, reasonable quantities of supplemental
sales literature, sales bulletins, and additional information with
respect to the Products, as issued. Any printed information furnished
by PIMS other than the then current Prospectus and the Statement of
Additional Information, periodic reports and proxy solicitation
materials for the Products are the sole responsibility of PIMS and not
the responsibility of the issuers (including the Fund), and Broker
agrees that the issuers (including the Fund) shall have no liability or
responsibility to Broker in these respects, unless expressly assumed in
connection therewith.
D. Broker's Compensation (Expenses)
Compensation shall be determined in accordance with the terms of
Selling & Service Commission Memoranda applicable at the time of a sale
of the Products by Broker. Broker shall bear all costs and expenses
incurred in connection with its activities hereunder.
E. Complaints and Investigations
Broker and PIMS agree to cooperate fully in any insurance or securities
regulatory investigation or proceeding or judicial proceeding arising
in connection with the products marketed, sold, or serviced under this
Agreement.
F. Term of Agreement
(1) This Agreement shall become effective as of the date first written
above and shall continue in force for one year from its effective date
and thereafter shall automatically be renewed every year for a further
one year period; provided that either party may unilaterally terminate
this Agreement, without payment of any penalty, upon ten (10) days'
written
notice to the other party of its intention to do so. The notice
shall be deemed to have been given on the date on which it was either
delivered personally to the other party or any officer or partner
thereof, or was mailed postpaid, return receipt requested, or
transmitted via facsimile copier with acknowledgment received, to his
or its address as shown below.
(2) Upon termination of the Agreement, all authorizations, rights and
obligations shall cease except for the agreements contained in Section
E hereof and the indemnities set forth in Section G hereof.
G. Exculpation: Indemnity
(1) Broker shall be held to the exercise of reasonable care in
carrying out the provisions of this Agreement.
(2) PIMS shall be under no liability to Broker except for lack of good
faith and for obligations expressly assumed by PIMS herein. Nothing
herein contained, however, shall be deemed to be a condition,
stipulation or provision binding any persons acquiring any security to
waive compliance with any provision of the Securities Act of 1933, or
of the rules and regulations of the Securities and Exchange Commission
or to relieve the parties hereto from any liability arising from the
Securities Act of 1933.
(3) Broker agrees to indemnify, defend and hold harmless PIMS and any
of its affiliates and any director, officer, employee or controlling
persons of such for any legal or other expense or other expenses or
liabilities reasonably incurred by PIMS or such director, officer,
employee or controlling person in connection with investigating,
defending or paying for any loss, claim, damage, liability, or action
which arises our of or is based upon:
(a) Any unauthorized use of sales materials or any verbal or
written misrepresentations or any sales practices alleged or
found to be in violation of any law, concerning the Products
sold by Broker hereunder or its agents, employees or
associated persons;
(b) Claims by the employees, agents or associated persons of
Broker against PIMS for commissions, service fees, development
allowances or other compensation or remuneration of any type;
and,
(c) The failure of Broker, its officers, employees, agents or
associated persons to comply with the provisions of this
Agreement. This indemnity agreement will be in addition to any
liability which broker may otherwise have.
H. Assignability
This Agreement shall not be assigned by either party without the
written consent of the other.
I. Governing Law
This Agreement shall be construed and interpreted in accordance with
the laws of the State of New Jersey, as at the time in effect and the
applicable provisions of the Investment Company Act of 1940. To the
extent that the applicable law of the State of New Jersey, or
any of the provisions herein, conflict with the applicable provisions
of the Investment Company Act of 1940, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
Prudential Investment Management Broker
Services LLC Address
Gateway Center Two
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone Number (000) 000-0000 Telephone Number
Facsimile Number (000) 000-0000 Facsimile Number
By: By:
ATTACHMENT 1 TO BROKER AGREEMENT
dated
and between
Broker
AND
Prudential Investment Management Services LLC ("PIMS")
1. MEDLEY Program
2. Prudential Mutual Funds
3. Discovery Select Program
