EXHIBIT (E)(3)
MUTUAL FUNDS
SALES AND SERVICE
AGREEMENT
This Agreement is entered into between the Financial Institution executing
this Agreement ("Financial Institution"), and XXXXXXXX-XXXXXXXXX SECURITIES
("Xxxxxxxx-Xxxxxxxxx"), with respect to those investment companies listed in
Exhibit A hereto (referred to individually as the "Fund" and collectively as the
"Funds") for whose shares of beneficial interest or capital stock ("Shares")
Xxxxxxxx-Xxxxxxxxx serves as Distributor and provides or coordinates shareholder
services.
A. FINANCIAL INSTITUTION.
1. STATUS OF FINANCIAL INSTITUTION AS REGISTERED BROKER-DEALER.
Financial Institution represents and warrants to Xxxxxxxx-Xxxxxxxxx:
(a) that it is a broker or dealer as defined in Section 3(a)(4) or
3(a)(5) of the Securities Exchange Act of 1934 ("Exchange Act");
that it is registered with the Securities and Exchange Commission
pursuant to Section 15 of the Exchange Act; that it is a member
in good standing of the National Association of Securities
Dealers, Inc.("NASD"); that its customers' accounts are insured
by the Securities Investors Protection Corporation ("SIPC"); and
that, during the term of this Agreement, it will abide by all of
the rules and regulations of the NASD including, without
limitation, the NASD Rules of Fair Practice. Financial
Institution agrees to notify Xxxxxxxx-Xxxxxxxxx immediately in
the event of: (1) termination of its coverage by the SIPC; (2)
its expulsion or suspension from the NASD; or (3) its being found
to have violated any applicable federal or state law, rule or
regulation arising out of its activities as a broker-dealer or in
connection with this Agreement, or which may otherwise affect in
any material way its ability to act in accordance with the terms
of this Agreement. Xxxxxxxx-Xxxxxxxxx'x Securities expulsion from
the NASD will automatically terminate this Agreement immediately
without notice. Suspension of Financial Institution from the NASD
for violation of any applicable federal or state law, Rule or
regulation will terminate this Agreement effective immediately
upon Xxxxxxxx-Xxxxxxxxx'x written notice of termination to
Financial Institution; or
(b) that it is a "bank," as that term is defined in Section 3(a)(6) of
the Exchange Act and that, during the term of this Agreement, it
will abide by the rules and regulations of those state and
federal banking authorities with appropriate jurisdiction over
the Financial Institution, especially regulations dealing with
the activities of the Financial Institution as described under
this Agreement. Financial Institution agrees to notify
Xxxxxxxx-Xxxxxxxxx immediately of any action by or communication
from state or federal banking authorities, state securities
authorities, the Securities Exchange Commission, or any other
party which may affect its status as a bank, or which may
otherwise affect in any material way its ability to act in
accordance with the terms of this Agreement. Any action or
decision of any of the foregoing regulatory authorities or any
court of appropriate jurisdiction which affects Financial
Institution's ability to act in accordance with the terms of this
agreement, including the loss of its exemption from registration
as a broker or dealer, will terminate this Agreement effective
upon Xxxxxxxx-Xxxxxxxxx'x written notice of termination to
Financial Institution; and
(c) that Financial Institution is registered with the appropriate
securities authorities in all states in which its activities make
such registration necessary.
2. FINANCIAL INSTITUTION ACTS AS AGENT FOR ITS CUSTOMERS.
The parties agree that in each transaction in the Shares of any Fund and with
regard to any services rendered pursuant to this Agreement: (a) Financial
Institution is acting as agent for the customer; (b) each transaction is
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initiated solely upon the order of the customer; (c) as between Financial
Institution and its customer, the customer will have full beneficial ownership
of all Shares of the Funds; (d) each transaction shall be for the account of the
customer and not for Financial Institution account; and (e) each transaction
shall be without recourse to Financial Institution provided that Financial
Institution acts in accordance with the terms of this Agreement. Financial
Institution shall not have any authority in any transaction to act as
Xxxxxxxx-Xxxxxxxxx'x agent or as agent for the Funds.
B. SALES OF FUND SHARES.
3. EXECUTION OF ORDERS FOR PURCHASE AND REDEMPTION OF SHARES.
(a) All orders for the purchase of any Shares shall be executed at the
then-current public offering price per share (i.e., the net asset value
per share plus the applicable initial sales load, if any) and all orders
for the redemption of any Shares shall be executed at the net asset value
per share, in each case as described in the prospectus of the Fund. If
required by law, each transaction shall be confirmed in writing on a fully
disclosed basis and, if confirmed by Xxxxxxxx-Xxxxxxxxx, a copy of each
confirmation shall be sent simultaneously to Financial Institution if
Financial Institution so requests.
(b) The procedures relating to all orders will be subject to the terms of the
prospectus of each Fund and Xxxxxxxx-Xxxxxxxxx'x written instructions to
Financial Institution from time to time.
(c) Payments for Shares shall be made as specified in the applicable Fund
prospectus. If payment for any purchase order is not received in
accordance with the terms of the applicable Fund prospectus,
Xxxxxxxx-Xxxxxxxxx reserves the right, without notice, to cancel the sale
and to hold Financial Institution responsible for any loss sustained as a
result thereof.
C. SHAREHOLDER SERVICES.
4. AGREEMENT TO PROVIDE SHAREHOLDER AND ACCOUNT MAINTENANCE SERVICES.
With regard to those Funds which pay a Shareholder Services Fee to Financial
Institution, as noted on Exhibit B hereto (or, if more recently published, the
Fund's current prospectus), Financial Institution agrees to render or cause to
be rendered personal services to shareholders of the Funds and/or the
maintenance of accounts of shareholders of the Funds ("Shareholder Services").
Financial Institution agrees to provide Shareholder Services which in its best
judgment are necessary or desirable for its customers who are investors in the
Funds. Financial Institution further agrees to provide Xxxxxxxx-Xxxxxxxxx, upon
request, a written description of the Shareholder Services which Financial
Institution is providing hereunder.
5. SHAREHOLDER SERVICE FEES PAYABLE TO FINANCIAL INSTITUTION.
During the term of this Agreement, Xxxxxxxx-Xxxxxxxxx will pay Financial
Institution the Shareholder Service Fees set forth in Exhibit B to this
Agreement (or, if more recently published, the Fund's current prospectus). For
the payment period in which this Agreement becomes effective or terminates,
there shall be an appropriate proration of the fee on the basis of the number of
days that this Agreement is in effect during the quarter. Financial Institution
represents that the fees received pursuant to this Agreement will be disclosed
to its customers, will be authorized by its customers (either directly or by
operation of applicable law), and will not result in an excessive fee to
Financial Institution.
D. MISCELLANEOUS.
6. DELIVERY OF PROSPECTUSES TO CUSTOMERS.
Financial Institution will deliver or cause to be delivered to each customer,
at or prior to the time of any purchase of Shares, a copy of the current
Prospectus of the Fund and, upon request by a customer or shareholder, a copy of
the Fund's current Statement of Additional Information. Financial Institution
shall not make any representations
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concerning any Shares other than those contained in the Prospectus or
Statement of Additional Information of the Fund or in any promotional
materials or sales literature furnished to Financial Institution by
Xxxxxxxx-Xxxxxxxxx or the Fund.
7. ERISA ASSETS.
(a) Financial Institution understands that the Department of Labor views
ERISA as prohibiting fiduciaries of discretionary ERISA assets from
receiving administrative service fees or other compensation from funds in
which the fiduciary's discretionary ERISA assets are invested. To date, the
Department of Labor has not issued any exemptive order or advisory opinion
that would exempt fiduciaries from this interpretation. Without specific
authorization from the Department of Labor, fiduciaries should carefully
avoid investing discretionary assets in any fund pursuant to an arrangement
where the fiduciary is to be compensated by the fund for such investment.
Receipt of such compensation could violate ERISA provisions against
fiduciary self-dealing and conflict of interest and could subject the
fiduciary to substantial penalties.
(b) Financial Institution will not perform or provide any duties which would
cause it to be a fiduciary under Section 4975 of the Internal Revenue
Code, as amended. For purposes of that Section, Financial Institution
understands that any person who exercises any discretionary authority or
discretionary control with respect to any individual retirement account or
its assets, or who renders investment advice for a fee, or has any
authority or responsibility to do so, or has any discretionary authority
or discretionary responsibility in the administration of such an account,
is a fiduciary.
8. INDEMNIFICATION.
(a) Financial Institution shall indemnify and hold harmless Xxxxxxxx-Xxxxxxxxx,
each Fund, and their respective subsidiaries, affiliates, officers,
directors, agents, partners and employees from all direct or indirect
liabilities, losses or costs (including attorneys fees) arising from,
related to or otherwise connected with: (1) any breach by Financial
Institution of any provision of this Agreement; or (2) any actions or
omissions of Xxxxxxxx-Xxxxxxxxx, any Fund, and their subsidiaries,
affiliates, officers, directors, agents, partners and employees in reliance
upon any oral, written or computer or electronically transmitted
instructions believed to be genuine and to have been given by or on behalf
of Financial Institution.
(b) Xxxxxxxx-Xxxxxxxxx shall indemnify and hold harmless Financial Institution
and its subsidiaries, affiliates, officers, directors, agents and employees
from and against any and all direct or indirect liabilities, losses or
costs (including attorneys fees) arising from, related to or otherwise
connected with: (1) any breach by Xxxxxxxx-Xxxxxxxxx of any provision of
this Agreement; or (2) any alleged untrue statement of a material fact
contained in any Fund's Prospectus or Statement of Additional Information,
or as a result of or based upon any alleged omission to state a material
fact required to be stated therein or necessary to make the statements
contained therein not misleading.
(c) The agreement of the parties in this Paragraph to indemnify each other is
conditioned upon the party entitled to indemnification ("Indemnified
Party") giving notice to the party required to provide indemnification
("Indemnifying Party") promptly after the summons or other first legal
process for any claim as to which indemnity may be sought is served on the
Indemnified Party. The Indemnified Party shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting
from it, provided that counsel for the Indemnifying Party who shall conduct
the defense of such claim or litigation shall be approved by the
Indemnified Party (which approval shall not unreasonably be withheld), and
that the Indemnified Party may participate in such defense at its expense.
The failure of the Indemnified Party to give notice as provided in this
subparagraph (c) shall not relieve the Indemnifying Party from any
liability other than its indemnity obligation under this Paragraph. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
without the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement that does not include as an
unconditional term the giving by the claimant or plaintiff to the
Indemnified Party of a release from all liability in respect to such claim
or litigation.
(d) The provisions of this Paragraph 8 shall survive the termination of this
Agreement.
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9. CUSTOMER NAMES PROPRIETARY TO FINANCIAL INSTITUTION.
(a) The names of Financial Institution customers are and shall remain
Financial Institution's sole property and shall not be used by
Xxxxxxxx-Xxxxxxxxx, or their affiliates for any purpose except the
performance of their respective duties and responsibilities under this
Agreement and except for servicing and informational mailings relating to
the Funds. Notwithstanding the foregoing, this Paragraph 9 shall not
prohibit Xxxxxxxx-Xxxxxxxxx, or any of their affiliates from utilizing
the names of Financial Institution's customers for any purpose if the
names are obtained in any manner other than from Financial Institution
pursuant to this Agreement.
(b) Neither party shall use the name of the other party in any manner without
the other party's written consent, except as required by any applicable
federal or state law, rule or regulation, and except pursuant to any
mutually agreed upon promotional programs.
(c) The provisions of this Paragraph 9 shall survive the termination of this
Agreement.
10. CERTIFICATION OF CUSTOMERS' TAXPAYER IDENTIFICATION NUMBERS.
Financial Institution agrees to obtain any taxpayer identification number
certification from its customers required under Section 3406 of the Internal
Revenue Code, and any applicable Treasury regulations, and to provide
Xxxxxxxx-Xxxxxxxxx or their respective 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.
11. MONEY LAUNDERING.
(a) Financial Institution agrees to comply with all applicable money laundering
laws, regulations and U.S. government guidance, including cash and
suspicious activity reporting and recordkeeping requirements and to have
adequate policies, procedures and internal controls in place to ensure
compliance.
(b) Financial Institution agrees to provide the Funds and the Distributor upon
request and within a reasonable time copies of the BSA and anti-money
laundering compliance programs or materials, including compliance policies
and procedures.
12. NOTICES.
Except as otherwise specifically provided in this Agreement, 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, overnight
courier services, or by facsimile or similar electronic means of delivery with a
confirming copy by mail as provided herein). Unless otherwise notified in
writing, all notices to Xxxxxxxx-Xxxxxxxxx shall be given or sent to
Xxxxxxxx-Xxxxxxxxx at their offices located at 000 Xxxx Xxxxxxxx, 00xx xxxxx,
Xxx Xxxxx, XX 00000, and all notices to Financial Institution shall be given or
sent to it at its address shown below.
13. TERMINATION AND AMENDMENT.
(a) This Agreement shall become effective in this form as of the date set
forth below or as of the first date thereafter upon which Financial
Institution executes any transaction, performs any service, or receives
any payment pursuant hereto. This Agreement supersedes any prior sales,
distribution, shareholder service, or administrative service agreements
between the parties.
(b) With respect to each Fund, this Agreement shall continue in effect for one
year from the date of its execution, and thereafter for successive periods
of one year if the form of this Agreement is approved at least annually by
the Directors or Trustees of the Funds, including a majority of the
members of the Board of Directors or Trustees of the Funds who are not
interested persons of the Funds and have no direct or indirect financial
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interest in the operation of the Funds' Distribution or Shareholder
Services Plan or in any related documents to either such Plan
("Independent Directors or Trustees") cast in person at a meeting called
for that purpose.
(c) This Agreement, including Exhibit A hereto, may be amended by
Xxxxxxxx-Xxxxxxxxx from time to time by the following procedure.
Xxxxxxxx-Xxxxxxxxx will mail a copy of the amendment to Financial
Institution's address as shown below. If Financial Institution does not
object to the amendment within thirty (30) days after its receipt, the
amendment will become part of the Agreement. Financial Institution
objection must be in writing and be received by Xxxxxxxx-Xxxxxxxxx within
such thirty days.
(d) Notwithstanding subparagraph 12(b) and in addition to subparagraph 1 (a),
this Agreement may be terminated as follows:
(i) at any time, without the payment of any penalty, by the vote of a
majority of the Independent Directors or Trustees of the Fund or by a
vote of a majority of the outstanding voting securities of the Funds as
defined in the Investment Company Act of 1940 on not more than sixty
(60) days' written notice to the parties to this Agreement;
(ii) automatically in the event of the Agreement's assignment as defined in
the Investment Company Act of 1940, upon the termination of the
Distributor's Contract between the Fund and Xxxxxxxx-Xxxxxxxxx, or upon
the termination of the Distribution Plan and the Shareholder Services
Plan to which this Agreement is related; and
(iii) by any party to the Agreement without cause by giving the other party
at least sixty (60) days written notice of its intention to terminate.
(e) The termination of this Agreement with respect to any one Fund will not
cause the Agreement's termination with respect to any other Fund.
14. Governing Law.
This Agreement shall be construed in accordance with the laws of California.
XXXXXXXX-XXXXXXXXX SECURITIES FINANCIAL INSTITUTION
By: By:
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Name: Name:
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Title: Title:
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Address:
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Date:
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City
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State / Zip:
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Date:
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EXHIBIT A
XXXXXXXX-XXXXXXXXX INSTITUTIONAL FUND
MUTUAL FUND SALES
AND SERVICE AGREEMENT
EFFECTIVE AS OF JULY 27, 2001
CLASS I SHARES:
XXXXXXXX-XXXXXXXXX WORLDWIDE GROWTH FUND
XXXXXXXX-XXXXXXXXX GLOBAL BLUE CHIP FUND
XXXXXXXX-XXXXXXXXX GLOBAL TECHNOLOGY FUND
XXXXXXXX-XXXXXXXXX INTERNATIONAL CORE GROWTH FUND
XXXXXXXX-XXXXXXXXX INTERNATIONAL SMALL CAP GROWTH FUND XXXXXXXX-XXXXXXXXX
EMERGING COUNTRIES FUND XXXXXXXX-XXXXXXXXX PACIFIC RIM FUND XXXXXXXX-XXXXXXXXX
LATIN AMERICA FUND XXXXXXXX-XXXXXXXXX LARGE CAP GROWTH FUND XXXXXXXX-XXXXXXXXX
MID CAP GROWTH FUND XXXXXXXX-XXXXXXXXX SMALL CAP GROWTH FUND XXXXXXXX-XXXXXXXXX
MINI CAP GROWTH FUND XXXXXXXX-XXXXXXXXX VALUE FUND XXXXXXXX-XXXXXXXXX
CONVERTIBLE FUND XXXXXXXX-XXXXXXXXX HIGH QUALITY BOND FUND XXXXXXXX-XXXXXXXXX
HIGH YIELD BOND FUND
CLASS R SHARES:
XXXXXXXX-XXXXXXXXX INTERNATIONAL CORE GROWTH FUND XXXXXXXX-XXXXXXXXX EMERGING
COUNTRIES FUND XXXXXXXX-XXXXXXXXX LARGE CAP GROWTH FUND XXXXXXXX-XXXXXXXXX MID
CAP GROWTH FUND XXXXXXXX-XXXXXXXXX SMALL CAP GROWTH FUND XXXXXXXX-XXXXXXXXX
VALUE FUND XXXXXXXX-XXXXXXXXX HIGH QUALITY BOND FUND
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EXHIBIT B
XXXXXXXX-XXXXXXXXX INSTITUTIONAL FUNDS
FEE SCHEDULE FOR MUTUAL FUND SALES
AND SERVICE AGREEMENT
WITH FINANCIAL SERVICES COMPANY
EFFECTIVE AS OF MARCH 27, 2001
SHAREHOLDER SERVICE FEE
CLASS I SHARES: NONE
CLASS R SHARES:
XXXXXXXX-XXXXXXXXX INTERNATIONAL CORE GROWTH FUND 0.25%
XXXXXXXX-XXXXXXXXX EMERGING COUNTRIES FUND 0.25%
XXXXXXXX-XXXXXXXXX LARGE CAP GROWTH FUND 0.25%
XXXXXXXX-XXXXXXXXX MID CAP GROWTH FUND 0.25%
XXXXXXXX-XXXXXXXXX SMALL CAP GROWTH FUND 0.25%
XXXXXXXX-XXXXXXXXX VALUE FUND 0.25%
XXXXXXXX-XXXXXXXXX HIGH QUALITY BOND FUND 0.25%
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