Exhibit (6)(c)
BROKER-DEALER AGREEMENT
FOR XXXXXXXX XXXXX FUNDS
(FULLY DISCLOSED BASIS)
Provident Distributors, Inc.,
Four Falls Corporate Center, 6th Floor
West Conshobocken, PA 79428 2961
Ladies and Gentlemen:
We desire to enter into an Agreement with you for the sale of shares of
common stock of Xxxxxxxx Xxxxx Government Fund, Inc; Xxxxxxxx-Xxxxx Growth Fund,
Inc., open-end registered investment companies (hereinafter referred to as the
"Companies") of which you are the principal underwriter as such term is defined
in the Investment Company Act of 1940, as amended, and for which you are the
exclusive agent for the continuous distribution of shares pursuant to the terms
of a Distribution Agreement between you and the Companies. Unless the context
otherwise requires, as used herein the term "Prospectus" shall mean the
prospectus and related statement of additional information (the "Statement of
Additional Information") incorporated therein by reference, as amended and
supplemented, of each investment portfolio of the Companies ("Fund") included in
the then currently effective registration statement (or post-effective amendment
thereto) of the Companies, as filed with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Registration
Statement").
In consideration for the mutual covenants contained herein, it is hereby
agreed that our respective rights and obligations shall be as follows:
1. In all sales of Fund shares to the public, we shall act as dealer for our
own account and in no transaction shall we have any authority to act as agent
for the Company, any Fund, for you or for any other dealer.
2. All orders for the purchase of any Fund shares shall be executed at the
then current public offering price per share (i.e., the net asset value per
share plus the applicable sales load, if any) and all orders for the redemption
of any Fund shares shall be executed at the net asset value per shares, in each
case as described in the Prospectus of such Fund. The minimum initial purchase
order and minimum subsequent purchase order shall be as set forth in the
Prospectus of such Fund. All orders are subject to acceptance or rejection by
you at your sole discretion. Unless otherwise mutually agreed in writing, each
transaction shall be confirmed promptly in writing directly to the customer on a
fully disclosed basis and a copy of each confirmation shall be sent
simultaneously to us. We acknowledge that the Company has reserved the right, at
its discretion and without notice, to suspend the sale of shares or withdraw
entirely the sale of shares of any or all of the Funds.
3. In ordering shares of any Fund, we shall rely solely and conclusively on
the representations contained in the Prospectus of such Fund. We agree that we
shall not offer or sell shares of any Fund except in compliance with all
applicable federal and state securities laws and the rules and regulations of
applicable regulatory agencies or authorities. In connection with offers to sell
and sales of shares of each Fund, we agree to deliver or cause to be delivered
to each person to whom any such offer or sale is made, at or prior to time of
such offer or sale, a copy of the Prospectus and, upon request, the Statement of
Additional Information of such Fund. We further agree to obtain from each
customer to whom we sell Fund shares any taxpayer identification number
certification required under Section 3406 of the Internal Revenue Code of 1986,
as amended (the "Code"), and the regulations promulgated thereunder, and to
provide you or your designee with timely written notice of any failure to obtain
such taxpayer identification number certification in order to enable the
implementation of any required backup withholding in accordance with
Section 3406 of the Code and the regulations thereunder. Unless otherwise
mutually agreed in writing, you shall deliver or cause to be delivered to each
customer who purchases shares of any Funds from or through us copies of all
annual and interim reports, proxy solicitation materials, and any other
information and materials relating to such Funds and prepared by or on behalf of
you, the Fund or its investment adviser, custodian, transfer agent or dividend
disbursing agent for distribution to each such customer. You agree to supply us
with copies of the Prospectus, Statement of Additional Information, annual
reports, interim reports, proxy solicitation materials and any such other
information and materials relating to each Fund in reasonable quantities upon
request.
4. We shall not make any representations concerning any Fund shares other than
those contained in the Prospectus of such Fund or in any promotional materials
or sales literature furnished to us by you or the Fund. Except as otherwise
provided in Paragraph 3 of this Agreement, we shall not furnish or cause to be
furnished to any person or display or publish any information or materials
relating to any Fund (including, without limitation, promotional materials and
sale literature, advertisements, press releases, announcements, statements,
posters, signs or other similar material), except such information and materials
as may be furnished to us by you or the Fund, and such other information and
materials as may be approved in writing by you.
5. In determining the amount of any dealer reallowance payable to us
hereunder, you reserve the right to exclude any sales which you reasonably
determine are not made in accordance with the terms of the applicable Fund
Prospectuses and the provisions of this Agreement.
6. (a) In the case of any Fund shares sold with a sales load, customers may
be entitled to a reduction in sales load on purchases made from a Fund which
utilizes a letter of intent ("Letter of Intent") in accordance with such Fund's
Prospectus. In such case, our dealer reallowance will be paid based upon the
reduced sales load, but an adjustment to the dealer reallowance will be made in
accordance with the Prospectus of the applicable Fund to reflect the investor's
actual purchases if he or she should fail to fulfill the commitment in the
Letter of Intent. The sales load and/or dealer reallowance may be changed at any
time in your sole discretion upon written notice to us.
(b) Subject to and in accordance with the terms of the Prospectus of each Fund
sold with a sales load, a reduced sales load may be applicable with respect to
customer accounts through a right of accumulation under which customers are per-
mitted to purchase shares of a Fund at the then current public offering price
per share applicable to the total of (i) the dollar amount of shares then being
purchased plus (ii) an amount equal to the then current net asset value or
public offering price originally paid per share, whichever is higher, of the
customer's combined holdings of the shares of such Fund and of any other open-
end registered investment companies which may be permitted by the applicable
Fund prospectus. In such case, we agree to furnish to you if orders are made by
wire, or to the transfer agent as such term is defined in the Prospectus of each
Fund (the"Transfer Agent") if orders are made by mail, sufficient information to
permit your confirmation of qualification for a reduced sales load; acceptance
of the purchase order is subject to such confirmation.
(c) With respect to Fund shares sold with a sales load, we agree to advise you
promptly at your request as to amounts of any and all sales by us qualifying for
a reduced sales load.
(d) Exchanges (i.e., the investment of the proceeds from the liquidation of
shares of one Fund in the shares of another Fund) shall, where available, be
made subject to and in accordance with the terms of each Fund Prospectus.
7. Subject to and in accordance with the terms of each Fund Prospectus and the
Service Plan, if any, adopted by the Board of Directors of the Company pursuant
to Rule 12h-1 under the Investment Company Act of 1940, as amended, we
understand that you may pay to certain financial institutions (which may include
banks), securities dealers and other industry professionals with which you have
entered into a Service Agreement in substantially the form annexed hereto as
Appendix A (or such other form as may be approved from time to time by the Board
of Directors of the Company) such fees as may be determined by you in accordance
with such Service Agreement for shareholder and administrative services as
described therein.
8. The procedures relating to all orders and the handling thereof will be
subject to the terms of the Prospectus of each Fund and your written
instructions to us from time to time. No conditional orders will be accepted. We
agree to place orders with you immediately for the same number of shares and at
the same price as any sales by us. We shall not withhold placing orders received
from customers so as to profit ourselves as a result of such withholding by a
change in the net asset value from that used in determining the offering price
to such customers, or otherwise; provided, however, that the foregoing shall not
prevent the purchase of shares of any Fund by us for our own bona fide
investment. We agree that: (a) we shall not effect any transactions (including,
without limitation, my purchases and redemptions) in any Fund shares registered
in the name of, or beneficially owned by, any customer unless such customer has
granted us full right, power and authority to effect such transactions on his or
her behalf and (b) you, each Fund, each Transfer Agent and your and their
respective officers, directors or trustees, agents, employees and affiliates
shall not be liable for, and shall be fully indemnified and held harmless by us
from and against, any and all claims, demands, liabilities and expenses
(including without limitation, reasonable attorneys fees) which may be incurred
by you or any of the foregoing persons entitled to indemnification from us
hereunder arising out of or in connection with the execution of any transactions
in Fund shares registered in the name of, or beneficially owned by, any customer
in reliance upon any oral or written instructions believed to be genuine and to
have been given by or on behalf of us.
9. (a) We agree to pay for purchase orders of any Fund shares from us in
accordance with the terms of the Prospectus of the applicable fund. On or before
the settlement date of each purchase order for shares of any Fund, we shall
either (i) remit to an account designated by you with the Transfer Agent an
amount equal to the then current public offering price of the shares of such
Fund being purchased less our dealer reallowance, if any, with respect to such
purchase order as determined by you in accordance with the terms of the
applicable Fund Prospectus, or (ii) remit to an account designated by you with
the Transfer Agent an amount equal to the then current public offering price of
the shares of each Fund being purchased without deduction for our dealer
reallowance, if any, with respect to such purchase order as determined by you in
accordance with the terms of the applicable Fund Prospectus, in which case our
dealer reallowance, if any, shall be payable to us on at least a monthly basis.
If payment for any purchase order is not received in accordance with the terms
of the applicable Fund Prospectus, you reserve the right, without notice, to
cancel the sale and to hold us responsible for any loss sustained as a result
thereof.
(b) If any shares sold to us under the terms of this Agreement are sold with a
sales load and are redeemed for the account of the Fund or are tendered for
redemption within seven (7) days after confirmation of our purchase order for
such shares: (i) we shall forthwith refund to you the full dealer reallowance
received by us on the sale; and (ii) you shall forthwith pay to the Fund your
portion of the sales load on the sale which had been retained by you and shall
also pay to the Fund the amount refunded by us.
10. Certificates for shares sold to us hereunder shall only be issued in
accordance with the terms of each Fund Prospectus upon our customer's specific
request and, upon such request, shall be promptly delivered to us by the
Transfer Agent unless we make other arrangements. However, in making delivery of
such share certificates to us, the Transfer Agent shall have adequate time to
clear any checks drawn for the payment of Fund shares.
11. We hereby represent and warrant to you that:
(a) we are a corporation, partnership or other entity duly organized and
validly existing in good standing under the laws of the jurisdiction in which
we were organized;
(b) the execution and delivery of this Agreement and the performance of the
transactions contemplated hereby have been duly authorized by all necessary
action and all other authorization and approvals (if any) required for our
lawful execution and delivery of this Agreement and our performance hereunder
have been obtained; and
(c) upon execution and delivery by us, and assuming due and valid execution and
delivery by you, this Agreement will constitute a valid and binding agreement,
enforceable against us in accordance with its terms.
12. We further represent and warrant to you that we are a member of the NASD
and, with respect to any sales in the United States, we agree to abide by all of
the rules and regulations of the NASD, including, without limitation, its
Business Conduct Rules. We agree to comply with all applicable federal and state
laws, rules and regulations. You agree to inform us, upon our
request, as to the states in which you believe the shares of the Funds have
qualified for sale under, or are exempt from the requirements of the respective
securities laws of such states, but you shall have no obligation or
responsibility as to our right to sell shares in any jurisdiction. We agree to
notify you immediately in the event of (a) our expulsion or suspension from the
NASD, or (b) our violation of any applicable federal or state law, rule or
regulation arising out of or in connection with this Agreement or which may
otherwise affect in any material way our ability to act as a dealer in
accordance with the terms of this Agreement. Our expulsion from the NASD will
automatically terminate this Agreement immediately without notice. Our
suspension from the NASD for violation of any applicable federal or state law,
rule or regulation will terminate this Agreement effective immediately upon your
written notice to us of termination.
13. In the event that you breach any of the terms and conditions of this
Agreement, you will indemnify us, the funds, and our affiliates for any damages,
losses, costs and expenses (including reasonable attorneys' fees and expenses)
arising out of or relating to such breach. In the event that we breach any of
the terms and conditions of this Agreement, we will indemnify you and your
affiliates for any damages, losses, costs and expenses (including reasonable
attorneys' fees and expenses) arising out of or relating to such breach.
14. The names and addresses and other information concerning our customers are
and shall remain our sole property,and neither you nor your affiliates shall use
such names, addresses or other information for any purpose except in connection
with the performance of your duties and responsibilities hereunder and except
for servicing and informational mailings relating to the Funds. Notwithstanding
the foregoing, this Paragraph 14 shall not prohibit you or any of your
affiliates from utilizing for any purposes the names, addresses or other
information concerning any of our customers if such names, addresses or other
information is obtained in any manner other than from us pursuant to this
Agreement. The provisions of this Paragraph 14 shall survive the termination of
this Agreement.
15. We agree to serve as a service organization, in accordance with the terms
of the form of Service Agreement annexed hereto as Appendix A. By executing this
Agreement, each of the parties hereto agrees to be bound by all terms,
conditions, rights and obligations set forth in the form of Service Agreement
annexed hereto as Appendix A and further agrees that such form of Service
Agreement supersedes any and all prior service agreements between the parties
hereto.
16. By requesting expedited redemption, we agree that you, the Company, the
Transfer Agent, and your and their respective officers, directors or trustees,
agents, employees and affiliates shall not be liable for and shall be fully
indemnified and held harmless by us from and against any and all claims,
demands, liabilities and expenses (including, without limitation, reasonable
attorneys' fees) arising out of or in connection with any expedited redemption
payments.
17. Neither this Agreement nor the performance of the services of the
respective paries hereunder shall be considered to constitute an exclusive
arrangement, or to create a partnership, association or joint venture between
you and us. Neither party hereto shall be, act as, or represent itself as, the
agent or representative of the other, nor shall either party have the right or
authority to assume, create or incur any liability or any obligation of any
kind, express or implied, against or in the name of, or on behalf of, the other
party. This Agreement is not intended to, and shall not, create any rights
against either party hereto by any third party solely on account of this
Agreement. Neither party hereto shall use the name of the other party in any
manner without the other party's prior written consent, except as required by
any applicable federal or state law, rule or regulation, and except pursuant to
any promotional programs mutually agreed upon in writing by the parties hereto.
18. Except as otherwise specifically provided herein, all notices required or
permitted to be given pursuant to this Agreement shall be given in writing and
delivered by personal delivery or by postage prepaid, registered or certified
United States first class mail, return receipt requested, or by telex, telegram
or similar means of same day delivery (with a confirming copy by mail as
provided herein). Unless otherwise notified in writing, all notices to you shall
be given or sent to you at your offices, located at Four Falls Corporate Center,
0xx Xxxxx, Xxxx Xxxxxxxxxxxx, XX 00000-0000 and all notices to us shall be given
or sent to us at the address shown below.
19. This Agreement shall become effective only when accepted and signed by you,
and may be terminated at any time by either party hereto upon fifteen (15) days
prior written notice to the other party. Not withstanding the termination of
this Agreement all unfulfilled obligations, duties and liabilities of either
party to the other as of the date of termination including, without limitation,
all obligations of indemnification of either to the other shall remain the
responsibility of the respective party. This Agreement may be amended only by a
written instrument signed by both the parties hereto and, may not be assigned by
either party without the prior written consent of the other party. This
agreement constitutes the entire agreement and understanding between the parties
hereto relating to the subject matter hereof and supersedes any and all prior
agreements between the parties hereto relating to the subject matter hereof.
20. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware, without given effect to principles of
conflicts of laws.
Very truly yours,
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Name of Broker-Dealer (Please Print or Type)
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Address
Dated:
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By: --------------------------------------------------------------------------
Authorized Dealer
Note:
Please sign and return both copies of this Agreement to Provident Distributors,
Inc. Upon acceptance a countersigned copy will be returned to you for your
files.
Accepted:
Provident Distributors, Inc.
Date:
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By:
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Authorized Signature
