SELECTED BROKER AGREEMENT
COVERING SHARES OF COMMON STOCK OF
XXXXXXXX NEW TECHNOLOGIES FUND, INC.
BETWEEN
XXXXXXXX ADVISORS, INC.
AND
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(NAME OF SELECTED BROKER)
The Selected Broker 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 Broker Signature Xxxxxxxx Advisors, Inc.
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Principal Officer Xxxxxxx X. Xxxxxxx, President
---------------------------- XXXXXXXX ADVISORS, INC.
Address 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
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Employer Identification No. Date
The Selected Broker 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 Broker, on the
date of this Agreement and will terminate on a date to be notified to the
Selected Broker by the Distributor. The Distributor may extend the Offering
Period in its sole discretion and will notify the Selected Broker 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 Broker 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 Broker understands that
neither the Fund nor the Distributor has any obligation or intention to purchase
any Shares from the Selected Broker 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 Broker 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 by the Selected Broker only at the applicable
public offering price. The Distributor will make a reasonable effort to notify
the Selected Broker 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 Broker 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
Broker 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 Broker, from its own resources, a concession equal to $0.25 per Share
in respect of each Share sold by the Selected Broker.
No concessions will be paid to the Selected Broker for the investment of
dividends or other distributions in additional Shares.
6. Except for sales to and purchases from the Selected Broker's retail
customers, the Selected Broker agrees to make Shares available 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 Broker
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 Broker 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
Broker 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 Broker 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 Broker under
this Agreement, the Selected Broker will act as agent for its customers on a
fully disclosed basis. The names of the Selected Broker's customers shall remain
the sole property of the Selected Broker and shall not be used by the
Distributor for any purpose except for servicing and informational mailings in
the normal course of business to Fund shareholders. The Selected Broker 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 Broker 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 Broker 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 Broker.
10. During the Offering Period, the Distributor will furnish to the Selected
Broker, 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 Broker 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 Broker. 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 Broker
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
Broker 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 Broker 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 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 Broker, 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 Broker 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
Broker of Shares pursuant to this Agreement; or (ii) the breach by the Selected
Broker of any of its representations and warranties specified herein or the
Selected Broker'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
Broker 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
Broker with a list of the states and other jurisdictions in which the Shares
have been qualified for sale.
