SELECTED DEALER AGREEMENT
COVERING SHARES OF COMMON STOCK OF
XXXXXXXX NEW TECHNOLOGIES FUND, INC.
BETWEEN
XXXXXXXX ADVISORS, INC.
AND
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(NAME OF SELECTED DEALER)
The Selected Dealer named above and Xxxxxxxx Advisors, Inc., exclusive agent for
distribution of shares of common stock of Xxxxxxxx New Technologies Fund, Inc.,
agree to the terms and conditions set forth in this agreement.
Selected Dealer Signature Xxxxxxxx Advisors, Inc.
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Principal Officer Xxxxxxx X. Xxxxxxx, President
XXXXXXXX ADVISORS, INC.
------------------------------ 000 Xxxx Xxxxxx
Xxxxxxx Xxx Xxxx, XX 00000
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Employer Identification No. Date
The Selected Dealer and Xxxxxxxx Advisors, Inc. (the "Distributor"), as
exclusive agent for distribution of shares of common stock (the "Shares") of
Xxxxxxxx New Technologies Fund, Inc. (the "Fund"), agree as follows in
connection with the initial public offering of Shares of the Fund:
1. Shares may be offered to the public during an initial offering period (the
"Offering Period") that commences, with respect to the Selected Dealer, on
the date of this Agreement and will terminate on a date to be notified to
the Selected Dealer by the Distributor. The Distributor may extend the
Offering Period in its sole discretion and will notify the Selected Dealer
of any such extension.
2. An order for Shares of the Fund will be confirmed at the public offering
price as disclosed in the Fund's prospectus (expected to be $24.25 per
Share plus a sales charge of up to $0.75 per Share determined as set forth
in the prospectus of the Fund) at the close of the Offering Period as
determined by the Distributor. No orders will be accepted until the Fund's
registration statement filed with the Securities and Exchange Commission
(the "SEC") has been declared effective by the SEC. The Selected Dealer
understands that the registration statement is not currently effective and
is not expected to be declared effective until shortly prior to the close
of the Offering Period, including any extensions thereof, and that due to
extensions of the Offering Period such effectiveness may occur in a later
calendar month than contemplated on the date of this Agreement. The
Distributor may terminate the Offering Period at any time.
3. The minimum order size is $10,000. Orders will be accepted in increments of
$1,000 above the minimum. All orders are subject to acceptance or rejection
by the Distributor in its sole discretion. The Selected Dealer understands
that neither the Fund nor the Distributor has any obligation or intention
to purchase any Shares from the Selected Dealer at any price, except that
the Fund intends to make quarterly repurchase offers as described in the
prospectus. Any representation as to a tender offer by the Fund, other than
that which is set forth in the Fund's then current prospectus, is expressly
prohibited. The Selected Dealer hereby covenants that it (i) will not make
a secondary market in any Shares of the Fund, (ii) will not purchase or
hold such Shares in inventory for the purpose of resale in the open market,
and (iii) will not repurchase such Shares in the open market.
4. Shares may be offered for sale and sold by the Selected Dealer only at the
applicable public offering price. The Distributor will make a reasonable
effort to notify the Selected Dealer of any redetermination or suspension
of the current public offering price, but shall be under no liability for
failure to do so.
5. The Selected Dealer shall remit the purchase price for all orders to the
Fund, with issuing instructions, no later than the third business day
following the termination of the Offering Period. On each purchase of
Shares, the Selected Dealer shall be entitled to a concession determined
according to the following formula:
Offering Price Concession
Amount of Purchase (per Share) (per Share)
------------------ -------------- ------------
Less than $500,000 $25.00 $0.75
$500,000 but less than $1 million 24.75 0.50
$1 million or more 24.50 0.25
In addition to the foregoing concession, the Distributor will pay to the
Selected Dealer, from its own resources, a concession equal to $0.25 per
Share in respect of each Share sold by the Selected Dealer.
No concessions will be paid to the Selected Dealer for the investment of
dividends or other distributions in additional Shares.
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6. Except for sales to and purchases from the Selected Dealer's retail
customers, the Selected Dealer agrees to buy Shares only through the
Distributor and not from any other sources and to sell Shares only to the
Distributor or the Fund and not to any other purchasers.
7. By signing this Agreement, both the Distributor and the Selected Dealer
warrant that they are members of the National Association of Securities
Dealers, Inc. (the "NASD"), and agree that termination of such membership
by either party at any time shall terminate this Agreement forthwith
regardless of the provisions of paragraph 11 hereof. Each party further
agrees to comply with all rules and regulations of the NASD and
specifically to observe the following provisions:
(a) Neither the Distributor nor the Selected Dealer shall withhold placing
customers' orders for Shares so as to profit itself as a result of
such withholding.
(b) The Distributor shall not purchase Shares from the Fund except for the
purpose of covering purchase orders already received, and the Selected
Dealer shall not purchase Shares of the Fund through the Distributor
other than for investment, except for the purpose of covering purchase
orders already received.
8. The Selected Dealer shall be solely responsible for making all
determinations pursuant to NASD Rule 2310 as to the suitability of Shares
for each customer to whom it recommends Shares.
9. In all transactions between the Distributor and the Selected Dealer under
this Agreement, the Selected Dealer will act as principal in purchasing
from or selling to the Distributor. The Selected Dealer is not for any
purposes employed or retained as or authorized to act as broker, agent or
employee of the Fund or of the Distributor, and the Selected Dealer is not
authorized in any manner to act for the Fund or the Distributor or to make
any representations on behalf of the Distributor. In purchasing and selling
Shares under this Agreement, the Selected Dealer shall be entitled to rely
only upon matters stated in the current offering prospectus of the Fund and
upon such written representations, if any, as may be made by the
Distributor to the Selected Dealer.
10. During the Offering Period, the Distributor will furnish to the Selected
Dealer, without charge, reasonable quantities of the current offering
prospectus of the Fund and sales material issued from time to time by the
Distributor. The Selected Dealer will not alter such materials in any way
or use any other materials to market the Shares.
11. Either party to this Agreement may cancel this Agreement by written notice
to the other party. Such cancellation shall be effective at the close of
business on the 5th day following the date on which such notice was given.
The Distributor may modify this Agreement at any time by written notice to
the Selected Dealer. Such notice shall be deemed to have been given on the
date upon which it was either delivered personally to the other party or
any officer or member thereof, or was mailed postage-paid, or delivered to
a telegraph office for transmission to the other party at his or its
address as shown herein.
12. This Agreement relates to offers and sales of Shares by the Selected Dealer
only during the Offering Period and does not relate to offers and sales
during any subsequent continuous offering of Shares.
13. Neither party to this Agreement shall be liable to the other party for any
loss incurred as a result of activities hereunder except for (i) acts that
constitute bad faith, willful misconduct or gross negligence and (ii)
obligations expressly assumed under this Agreement.
14. The Distributor agrees to indemnify, defend and hold harmless the Selected
Dealer and its predecessors, successors, and affiliates, each current or
former partner, officer, director, employee, shareholder or agent and each
person who controls or is controlled by the Selected Dealer from any
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and all losses, claims, liabilities, costs, and expenses, including
attorneys' fees, that may be assessed against or suffered or incurred by
any of them and which relate to any untrue statement of, or omission to
state, a material fact in the Fund's registration statement, prospectus, or
any written sales literature or other marketing materials provided by the
Distributor to the Selected Dealer, required to be stated therein or
necessary to make the statements therein not misleading (in the case of
such prospectus and sales or other marketing materials, in the light of the
circumstances under which they were made).
15. The Selected Dealer agrees to indemnify, defend and hold harmless the
Distributor and the Fund and their predecessors, successors, and
affiliates, each current or former partner, officer, director, employee,
shareholder or agent and each person who controls or is controlled by the
Distributor from any and all losses, claims, liabilities, costs, and
expenses, including attorneys' fees, that may be assessed against or
suffered or incurred by any of them howsoever they arise, and as they are
incurred, which relate in any way to: (i) any alleged violation of any
statute or regulation (including without limitation the securities laws and
regulations of the United States or any state) or any alleged tort or
breach of contact, related to the offer or sale by the Selected Dealer of
Shares pursuant to this Agreement; or (ii) the breach by the Selected
Dealer of any of its representations and warranties specified herein or the
Selected Dealer's failure to comply with the terms and conditions of this
Agreement.
16. This Agreement shall be construed in accordance with the laws of the State
of New York without regard to conflicts of law principles and shall be
binding upon both parties hereto when signed by the Distributor and by the
Selected Dealer in the spaces provided on the cover of this Agreement. This
Agreement shall not be applicable to Shares of the Fund in any jurisdiction
in which such Shares are not qualified for sale. The Distributor will
provide the Selected Dealer with a list of the states and other
jurisdictions in which the Shares have been qualified for sale.
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