Exhibit m(6)
SERVICE AGREEMENT
This Service Agreement ("Agreement") is entered into as of December, 1997,
by and between Xxxxx Xxxxxx Incorporated, a Delaware corporation ("Xxxxx
Xxxxxx") and Xxxxxxxx Financial Services, Inc., a Delaware corporation
("Distributor").
RECITALS
1. Xxxxx Xxxxxx is the sponsor of a mutual fund advisory program
("Program") on behalf of certain clients of Xxxxx Xxxxxx and charges account
management fees on all assets invested pursuant to the Program. Clients of Xxxxx
Xxxxxx who participate in the Program are referred to in this Agreement as
"Program Clients";
2. Program Clients may purchase the shares of certain proprietary and
nonproprietary open-end management investment companies;
3. Distributor is the principal underwriter and distributor for each of the
registered investment companies listed on Exhibit A (such registered investment
companies and the specific series or classes of shares listed in Exhibit A being
referred to as the "Fund(s)"), each of which is registered with the Securities
and Exchange Commission ("SEC") as an open-end management investment company
under the Investment Company Act of 1940 ("1940 Act"), and offers for sale
shares of the Funds, which may include shares issued in separate series or
classes;
4. Xxxxx Xxxxxx and Distributor each wish to allow Class A shares of the
Funds ("Shares") to be sold to Program Clients at net asset value without the
imposition of initial or contingent deferred sales charges, subject to the terms
and conditions of this Agreement; and
5. Xxxxx Xxxxxx and Distributor each wish to allow Shares that Program
Clients have purchased outside the Program, to be brought within the Program,
subject to the terms and conditions of this Agreement.
THEREFORE, in consideration of the foregoing and the mutual promises
contained in this Agreement, the parties agree as follows:
1. Certain Defined Terms: As used in this Agreement, the term "Prospectus" means
a Fund's current statutory prospectus and the term "Statement of Additional
Information" or "SAI" means a Fund's current statement of additional
information, whether in paper format or electronic format, each as included in
the Fund's currently effective registration statement (or post-effective
amendment thereto) filed with the SEC pursuant to the Securities Act of 1933
("1933 Act"). The terms "Prospectus" and "SAI" include any information that the
Fund files with the SEC under the 1933 Act as a supplement to such prospectus or
statement of additional information, respectively. "Business Day" shall mean any
day that the New York Stock Exchange is open for trading.
2. Sale of Shares. (a) Xxxxx Xxxxxx may, in its sole discretion, make available
to its Program Clients Shares of any or all of the Funds listed on Exhibit A.
Distributor will make available Shares to Program Clients, as Xxxxx Xxxxxx may
request. Xxxxx Xxxxxx will have the right to discontinue the use of any Funds in
the Program at any time. Notwithstanding the foregoing, Distributor reserves the
right in its sole discretion to suspend sales or withdraw the offering of Shares
of any Fund at any time after Xxxxx Xxxxxx has received reasonable notice that
such Shares will no longer available to the public, provided, however, that in
the event that
Distributor or a Fund is required by law or regulation to suspend sales, or
withdraw the offering of Shares of any Fund, the Distributor may immediately
suspend sales or withdraw the offering of such Shares and will use its best
efforts to notify Xxxxx Xxxxxx prior to such suspension or withdrawal.
(b) Distributor and each Fund agree that all transaction involving Shares
that are effected pursuant to this Agreement will be made (i) without any
initial sales charges, loads, transaction fees, contingent deferred sales loads,
or any fee charged to exchange one Fund's Shares for Shares of another Fund, and
(ii) no minimum amount will be required to make an additional purchase or
redemption of Shares (whether by direct investment or exchange). However,
Program Clients will continue to be subject to the Funds' requirements regarding
minimum initial investments.
(c) Xxxxx Xxxxxx will not receive discount, commission or other concession
with respect to any such sales, but will be entitled to receive service fees as
set forth in Section 5 hereof.
(d) With regard to each transaction in Shares for, and any services
provided to, a Program Client: (i) except as provided in Section 2(f) below,
Xxxxx Xxxxxx will act solely as agent for its client, and in no circumstances
will Xxxxx Xxxxxx be authorized by this Agreement to act as agent for
Distributor or for any Fund; (ii) Xxxxx Xxxxxx will initiate transactions only
upon its client's order; (iii) Distributor will effect transactions only upon
receiving instructions from Xxxxx Xxxxxx as agent for its client; (iv) as
between Xxxxx Xxxxxx and its client, the client will have full beneficial
ownership of all Shares; and (v) each transaction will be for the client's
account and not for Xxxxx Xxxxxx'x own account.
(e) Xxxxx Xxxxxx agrees to make Shares available to its Program Clients
only at their net asset value per share, as determined in accordance with the
Fund's Prospectus and SAI. Xxxxx Xxxxxx assumes no responsibility or liability
for the determination of that net asset value or the total price.
(f) Distributor hereby appoints Xxxxx Xxxxxx as its agent for the limited
purpose of accepting orders of purchase and redemption by Program Clients and
receipt by Xxxxx Xxxxxx shall therefore constitute receipt by the Distributor of
such orders for purposes of determining the net asset value at which such orders
will be executed.
(g) Xxxxx Xxxxxx and each Fund or its transfer, shareholder servicing
and/or other agent has entered into a separate written agreement to facilitate
the transmission of information regarding such accounts through the NETWORKING
system of the National Securities Clearing Corporation ("NSCC") (that agreement
and any exhibits thereto, the "NETWORKING Agreement"). The parties agree that
each such account will be maintained through the NSCC's NETWORKING system at
matrix level 3.
(h) Transactions in Shares will be effected and evidenced by book-entry on
the records maintained by the Funds. If Xxxxx Xxxxxx clients submit share
certificates for transfer into Program accounts, Xxxxx Xxxxxx will deposit such
certificates, properly endorsed, with the Fund or its agent in accordance with
the NETWORKING Agreement, applicable NSCC rules and procedures, and any other
procedures that the parties may agree upon from time to time.
(i) Except as specifically set forth herein, nothing in this Agreement will
be deemed or construed to make Xxxxx Xxxxxx a partner, employee, representative,
or agent of Distributor or
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any Fund or to create partnership, joint venture, syndicate, or association
between or among said parties. Neither this Agreement nor the performance of the
services of the parties hereunder will be considered to constitute an exclusive
arrangement by either party.
3. Program Clients. (a) Xxxxx Xxxxxx and Distributor agree that only clients of
Xxxxx Xxxxxx who participate in the Program may be offered Shares at net asset
value pursuant to this Agreement. Distributor agrees to notify Xxxxx Xxxxxx
promptly of any change to any Fund's Prospectus or SAI that changes the
requirements for offering the Shares to Program Clients at net asset value.
(b) Xxxxx Xxxxxx represents that it will charge account management fees on
all assets invested in the Program.
(c) Xxxxx Xxxxxx will maintain with the Fund's shareholders servicing agent
separate accounts for each Program Client who purchases Shares pursuant to this
Agreement.
(d) Distributor acknowledges that the identities of Program Clients and any
other clients of Xxxxx Xxxxxx (including any retirement plans), information
about those clients, and all computer programs and procedures developed by Xxxxx
Xxxxxx or its agents in connection with their operations constitute Xxxxx
Xxxxxx'x valuable property. Distributor hereby agrees that should it or its
affiliates come into possession of any list or compilation of the identities of
or other information about Xxxxx Xxxxxx'x clients, or any other property of
Xxxxx Xxxxxx, its affiliates or agents, distributor and each Fund and their
affiliates will hold such information or property in confidence and refrain from
using, disclosing, or distributing any such information or other property except
(i) with Xxxxx Xxxxxx'x prior written consent, (ii) as required by law,
regulation, or judicial process, or (iii) upon request by any regulatory agency.
Distributor acknowledges that any breach of the foregoing agreements would
result in immediate and irreparable harm to the other party for which there
would be no adequate remedy at law and agrees that in the event of such a
breach, the nonbreaching party will be entitled to equitable relief by way of
temporary and permanent injunctions, as well as such other relief as any court
of competent jurisdiction deems appropriate. Any reports or records related to
the Program or to Xxxxx Xxxxxx clients that Xxxxx Xxxxxx may provide to
Distributor or the Funds or any of their affiliates from time to time constitute
the proprietary information of Xxxxx Xxxxxx; each Fund, Distributor and their
affiliates shall hold such information in confidence and shall refrain from
using, disclosing, or distributing any of such information, except (i) with
Xxxxx Xxxxxx'x prior written consent, (ii) as required by law, regulation or
judicial process, or (iii) upon request of any regulatory agency.
(4) Services to be Provided by Xxxxx Xxxxxx. Pursuant to this Agreement, Xxxxx
Xxxxxx will render or cause to be rendered ongoing services to, and maintenance
of shareholder accounts for Program Clients who hold Shares. These services may
include but are not limited to:
(a) providing Program Clients with Fund Prospectuses, SAIs, educational
publications and other Fund information;
(b) helping Program Clients to complete Fund forms and to designate and
update dividend options, account designations, and mailing addresses;
(c) processing telephonic, mail and in-person inquiries regarding the
Funds;
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(d) researching and providing historical activity information about Shares
for periods prior to client's entry into Program;
(e) coordinating bank-to-bank wire transfers in connection with
transactions in Shares, on transfers for which no separate fee is
charged to Program Clients; and
(f) providing such other assistance and support to Program Clients as the
parties may agree upon from time to time.
In no event shall such services include investment advice, subtransfer agency
services or administrative services.
5. Compensation. (a) As compensation for providing the services described in
Section 4 hereof, Distributor will pay Xxxxx Xxxxxx a service fee, which will be
calculated and accrued as .25% per annum of the value of the average daily net
assets in the Program that are invested in each Fund, to be computed and paid on
a quarterly basis. Xxxxx Xxxxxx acknowledges that Distributor's payments to
Xxxxx Xxxxxx will be funded by payments Distributor receives from the Funds
under a plan of distribution adopted by the Funds pursuant to Rule 12b-1 under
the Investment Company Act of 1940("12b-1 Plan").
(b) For any communication to Fund shareholders that Xxxxx Xxxxxx makes on
behalf of Distributor pursuant to this Agreement, Distributor will provide Xxxxx
Xxxxxx with copies of the communications in amounts as Xxxxx Xxxxxx may
reasonably request and Distributor will reimburse Xxxxx Xxxxxx for all
reasonable out-of-packet expenses that Xxxxx Xxxxxx incurs in mailing such
shareholder communications, including the cost of any mailing agent. In
addition, Distributor will reimburse Xxxxx Xxxxxx for any reasonable
out-of-packet costs it incurs to receive, tabulate and transmit proxies.
(c) Upon execution of an amendment pursuant to Section 11 of this
Agreement, the parties may change or discontinue any fee schedule of agree on a
revised schedule. With respect to services provided after the effective date of
any change in or discontinuance of a fee schedule, any fees will be allowable or
payable to Xxxxx Xxxxxx only in accordance with such change, discountenance, or
termination. Services provided before the effective date of any such change,
discountenance, or termination will be subject to the fee schedule that was in
effect at the time the services were provided.
6. Information Relating to the Funds. (a) No person is authorized to make any
representations concerning shares of Fund that are inconsistent with the Fund's
currently effective registration statement, including exhibits thereto, or in
the offering documents, sales literature, and marketing materials described in
Section 6(b) below. Xxxxx Xxxxxx assumes no responsibility or liability for the
representations contained in such registration statement or other materials.
(b) Xxxxx Xxxxxx will furnish, or cause to be furnished, to Distributor or
its designee any offering documents, sales literature, and marketing materials
(including materials disseminated through radio, television, or other electronic
media) in which Distributor, any Fund, its investment adviser or subadviser is
named, except that Xxxxx Xxxxxx may use advertising, promotional, and other
written materials relating to the availability of Shares through the Program if
that material refers to the Funds or the Distributor only insofar as it includes
the names of particular Funds and indicates that they are available to Program
Clients or indicates generally that Xxxxx Xxxxxx makes available to its clients
certain funds distributed by Distributor.
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(c) Xxxxx Xxxxxx will furnish or cause to be furnished to Distributor sales
material required to be furnished pursuant to section 6(b) of this Agreement at
least five Business Days prior to use, except that if an item of sales material
has already been reviewed by Distributor and then is revised solely with respect
to statistical data relating to the Funds, Xxxxx Xxxxxx will furnish that
material or cause it to be furnished to Distributor at least three days prior to
use.
(d) No sales material that must be submitted to Distributor or its designee
under this subparagraph shall be used if the Distributor of its designee objects
to such use within five Business Days after receipt of such material (or, with
respect to previously reviewed material that is being revised solely with
respect to statistical data on the Funds, within three Business Days), provided
however, that such consent shall not be unreasonably withheld. Advertising and
promotional materials for the Program also may refer generally to the
availability of Shares at net asset value, "no load," or "load waived;" provided
that such materials also reflect that Program Clients will be charged an account
management fee in connection with their participation in the Program.
(e) Xxxxx Xxxxxx acknowledges that it is Xxxxx Xxxxxx'x (and not the
Distributor's) obligation to make all required filings of sales literature and
marketing material it develops with the National Association of Securities
Dealers, Inc. (the "NASD").
(f) Xxxxx Xxxxxx will use its best efforts to ensure that any information
provided by Distributor or a Fund that is marked confidential, or otherwise
indicates that it is intended for internal use only, is not distributed or made
available to investors.
(g) Distributor acknowledges that Distributor may provide information about
the Funds to CDA Investment Technologies, Inc. ("CDA") for publication on the
CDA information system. Distributor will review for completeness and accuracy
any and all such information as it appears on the CDA system. Xxxxx Xxxxxx
assumes no responsibility or liability for information about the Funds available
on the CDA system.
7. Compliance with Registration Requirements. Distributor hereby represents and
warrants that each Fund's Shares have been registered or qualified for sale
under the federal securities laws and that appropriate notice filings or other
qualifications have been made under the securities laws of those states and
jurisdictions in which Distributor has advised Xxxxx Xxxxxx that such Shares may
be offered and sold, and that each Fund's registration statement complies in all
material respects with applicable regulatory and disclosure requirements.
Distributor will provide Xxxxx Xxxxxx with a list of all such states and
jurisdictions. Distributor agrees to comply with the Understanding Regarding the
Accuracy, Completeness and Circumstances of Providing Written Materials,
attached hereto as Exhibit B, and hereby makes the representations, warranties,
and covenants set forth therein which shall be deemed to continue throughout the
term of this Agreement.
8. Non-Cash Redemptions. In the event that any Fund determines to redeem Shares
held by Program Clients in assets other than cash, Distributor and such Fund(s)
agree to work with Xxxxx Xxxxxx to develop a contingency plan for, and to use
all reasonable efforts to assist Xxxxx Xxxxxx in effecting, such non-cash
redemptions with respect to Program Clients.
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9. Authorization. (a) Distributor represents and warrants to Xxxxx Xxxxxx that
the person executing this Agreement on behalf of Distributor is duly authorized
to execute and deliver this Agreement on behalf of Distributor.
(b) Xxxxx Xxxxxx represents and warrants that it and the persons executing
this Agreement on its behalf are duly authorized to execute and deliver this
Agreement on behalf of Xxxxx Xxxxxx.
10. Indemnification. (a) Distributor will indemnify and hold harmless Xxxxx
Xxxxxx, each director, officer, employee, and agent of Xxxxx Xxxxxx, and each
person who is or may be deemed to be controlling, controlled by or under common
control with Xxxxx Xxxxxx from and against any and all direct and indirect
claims, damages, losses, liabilities, or expenses (including the reasonable
costs of investigation and reasonable attorney's fees) resulting from (i) the
willful misconduct or negligence, as measured by industry standards, of
Distributor, its agents and employees, in the performance of, or failure to
perform, its obligations under this Agreement; provided, however, that
Distributor will not be liable for indemnification under this subparagraph (i)
to the extent that any claim, damage, loss, liability, or expense results from
the willful misconduct or negligence, as measured by industry standards, of
Xxxxx Xxxxxx or its affiliates; (ii) any violation of any law, rule, or
regulation relating to the registration or qualification of shares of a Fund,
except to the extent such violation results from the willful misconduct or
negligence, as measured by industry standards, of Xxxxx Xxxxxx; (iii) any untrue
statement, or alleged untrue statement, of a material fact contained in any
Fund's registration statement or any offering documents, sales literature, or
marketing materials that Distributor, a Fund or any of their affiliates provide
to Xxxxx Xxxxxx or to CDA, or any omission, or alleged omission, to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; or (iv) any breach or violation of the representations,
warranties, or covenants set forth in Exhibit B hereto. Such right of
indemnification will survive the termination of this Agreement.
(b) Xxxxx Xxxxxx will indemnify and hold harmless Distributor and each
director, officer, employee, and agent of Distributor and each person who is or
may be deemed to be controlling, controlled by or under common control with
Distributor, from and against any and all direct and indirect claims, damages,
losses, liabilities, or expenses (including the reasonable costs of
investigation and reasonable attorney's fees) resulting from (i) the willful
misconduct or negligence as measured by industry standards, of Xxxxx Xxxxxx, its
agents and employees, in the performance of, or failure to perform, its
obligations under this Agreement, or (ii) any untrue statement, or alleged
untrue statement, of a material fact contained in offering documents, sales
literature, or marketing materials that Xxxxx Xxxxxx or any of its affiliates
produces and provides to Program Clients who are Fund shareholders, or any
omission, or alleged omission, to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided,
however, that Xxxxx Xxxxxx will not be liable for indemnification hereunder to
the extent that any claim, damage, loss, liability, or expense results from the
willful misconduct of negligence, as measured by industry standards, of
Distributor or its affiliates. This right of indemnification will survive the
termination of this Agreement.
(c) If any action, suit, or proceeding is initiated against any party
indemnified hereunder ("Indemnified Party") with respect to which such party
intends to seek indemnification, the Indemnified Party will notify the other
party ("Indemnifying Party") of such action, suit, or proceeding promptly after
service of the summons or other first legal process. Such notice will
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be given by a means of prompt delivery that provides confirmation of receipt to
the address detailed below under Section 14. The failure of the Indemnified
Party so to notify the Indemnifying Party will relieve the Indemnifying Party of
its indemnity obligation with respect to that action, suit, or proceeding to the
extent that such omission results in the forfeiture of substantive rights or
defenses by the Indemnifying Party; failure to give prompt notice will not
relieve the Indemnifying Party of any liability that it otherwise may have to
the Indemnified Party. The Indemnifying Party will be entitled to assume the
defense of such action, suit, or proceeding. If the Indemnifying Party elects to
assume the defense thereof and retains counsel, the Indemnified Party will bear
the fees and expenses of any additional counsel retained by it, unless (1) the
employment of counsel by the Indemnified Party has been authorized in writing by
the Indemnifying Party, (2) the Indemnified Party has reasonably concluded that
there may be legal defenses available to it or other Indemnified Parties that
are different from, or in addition to those available to the Indemnifying Party
(in which case the Indemnifying Party will not have the right to direct the
defense of such action on behalf of the Indemnified Party) or (3) the
Indemnifying Party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees and expenses of
counsel will be at the expense of the Indemnifying Party or Parties. All such
fees and expenses will be reimbursed promptly as they are incurred. An
Indemnifying Party will not be liable for any settlement of any action or claim
effected without its written consent, or, in connection with any proceeding or
related proceeding in the same jurisdiction, for the fees and expenses of more
than one separate counsel for all indemnified parties, except to the extent
provided herein. The Indemnifying Party will keep the Indemnified Party informed
of all material developments and events relating to such action, suit, or
proceeding. If the Indemnifying Party does not elect to assume the defense, the
Indemnifying Party will reimburse the Indemnified Party for the reasonable fees
and expenses of any counsel retained by it, which fees and expenses will be
payable to the Indemnified Party at such intervals as the parties may determine
or upon the Indemnifying Party's receipt of a xxxx related thereto.
(d) In no case shall the indemnification provided in this Section 10 be
available to protect any person against any liability to which any such person
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its or his obligations or duties hereunder, or
by reason of its or his reckless disregard of its or his obligations and duties
hereunder
11. Amendments. This Agreement may be amended only by an instrument in writing
signed by each party.
12. Duration and Termination of Agreement: (a) This Agreement will continue in
effect unless terminated as provided herein. A party may terminate this
Agreement without cause by giving the other party at least sixty (60) days'
written notice of its intention to terminate. This Agreement will terminate
automatically in the event of its "assignment" (as defined in the 1940 Act). The
termination of this Agreement with respect to any given Fund will not cause its
termination with respect to any other Fund.
(b) In the event that (i) an application for a protective decree under the
provisions of the Securities Investor Protection Act of 1970 is filed against a
party; (ii) a party files a petition in bankruptcy or a petition seeking similar
relief under any bankruptcy, insolvency, or similar law, or a proceeding is
commenced against a party seeking such relief; (iii) a party is found by the
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SEC, the National Association of Securities Dealers ("NASD"), or any other
federal or state regulatory agency or authority to have violated any applicable
federal or state law, rule, or regulation arising out of its activities in
connection with this Agreement; (iv) a Fund rescinds or removes any authority or
approval necessary for Distributor to enter into this Agreement; or (v) this
Agreement is assigned (as contemplated by Rule 12b-1 of the 0000 Xxx) or a Fund
terminates or reduces the fees payable pursuant to its 12b-1 Plan, this
Agreement will terminate effective immediately upon notice of termination by the
other party. Each party agrees to notify the other promptly in the event of any
such filing, finding of violation, or other action under this subparagraph.
(c) The failure of a party to terminate this Agreement for a particular
cause will not constitute a waiver of the right to terminate this Agreement at a
later date for the same or another cause; provided, however, that any
termination for an event specified in Section 12(b) above must occur within 120
days of the date on which the terminating party receives notice of the
applicable filing or finding of violation.
(d) After the date of termination of this Agreement (the "Termination
Date"), the compensation described in Section 5 hereof will continue to be due
with respect to any Shares held by Xxxxx Xxxxxx clients pursuant to the Program
on the Termination Date for so long as such shares are held in a Program account
and Xxxxx Xxxxxx continues to provide the services described in Section 4 hereof
(other than services relating to shares purchased after the Termination Date);
provided, however, that if this Agreement is terminated pursuant to Section
12(a) above because of assignment of the Agreement or pursuant to Section
12(b)(v) because of termination or reduction of a Fund's 12b-1 fees, such
compensation shall not be payable with respect to services provided after the
Termination Date. Xxxxx Xxxxxx agrees that, in the event of termination of the
Agreement as provided in this Section 12, it shall provide Distributor with such
reports and certificates as Distributor may reasonably request as necessary to
determine that the continued payment of compensation has been calculated in
accordance with this Agreement.
(e) If Xxxxx Xxxxxx permits a client that withdraws from the Program to
move Shares held in the Program to a Xxxxx Xxxxxx brokerage account or to a
different Xxxxx Xxxxxx advisory program, the payment of compensation by the
Distributor to Xxxxx Xxxxxx with respect to such shares shall be governed by the
dealer agreement between Distributor and Xxxxx Xxxxxx or, in the case of an
advisory program, by the agreement between Distributor and Xxxxx Xxxxxx that
relates to that advisory program.
13. Arbitration. In the event of a dispute with respect to this Agreement that
the parties are unable to resolve themselves, such dispute will be settled by
arbitration before arbitrators sitting in the Borough of Manhattan, New York,
New York in accordance with the then existing NASD Code of Arbitration Procedure
("NASD Code"). The arbitrators will act by majority decision, and their award
may allocate attorneys' fees and arbitration costs between the parties. Their
award will be final and binding between the parties. Their award will be final
and binding between the parties, and such award may be entered as a judgment in
any court of competent jurisdiction. The parties agree that, to the extent
permitted by the NASD Code, the arbitrators will be selected from the securities
industry.
14. Notices. Except as otherwise specifically provided in this Agreement, all
notices required or permitted to be given under this Agreement will be given in
writing and delivered by personal service, by postage prepaid mail -- return
receipt requested, or by facsimile machine or a similar
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means of same day delivery which provides evidence of receipt (with a confirming
copy by mail as set forth herein). All notices to Xxxxx Xxxxxx will be given or
sent to Xxxxx Xxxxxx at its offices at 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxxx, Director of Mutual Fund Sales and
Marketing, Copy to: Xxxxxxxx Xxxxxxxxx, General Counsel, Xxxxxxxx Xxxxxxxx Asset
Management Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000.
All notices to Distributor will be given or sent to:
Xxxxxx Xxxxxx, Vice President
Xxxxxxxx Financial Services, Inc.
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
with a copy to:
Senior Vice President, Law and Regulation
Xxxxxxxx Financial Services, Inc.
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Each party may change the address to which notices will be sent by giving notice
to the other party in accordance with this Section 14.
15. Rule 12b-1 Provisions. As described in Section 5 above, the parties
acknowledge that Distributor's payments to Xxxxx Xxxxxx will be funded by
payments Distributor receives from the Funds under the 12b-1 Plan and that
Sections 5 and 12(b) above and this Section 15 constitute a "related agreement"
as such term is used in Rule 12b-1; provided, however, that the parties also
acknowledge that Xxxxx Xxxxxx is not a "person authorized to direct the
disposition of monies paid or payable" pursuant to the 12b-1 Plan or any related
agreement and shall have no reporting obligations with respect thereto. The
provisions of Sections 5 and 12(b) above and this Section 15 applicable to a
Fund will remain in effect through December 31, 1997 and thereafter for
successive annual periods only so long as such continuance is specifically
approved at least annually in conformity with Rule 12b-1 and the 1940 Act.
16. Miscellaneous. (a) This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of choice of laws.
(b) If any provisions of this Agreement is held or made invalid by a court
or regulatory agency decision, statute, rule or otherwise, the remainder of the
Agreement will continue to be valid and enforceable.
The captions in this Agreement are included for convenience of reference only
and in no way define or limit any of the provisions of the Agreement or
otherwise affect their meaning or interpretation.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date set
forth above by a duly authorized representative of the parties hereto:
(please print or type)
Xxxxxxxx Financial Services, Inc.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
Director of Marketing
PAINEWEBBER INCORPORATED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Sr. Vice President
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EXHIBIT A
Distributor is the principal underwriter and distributor for each of the
following Funds:
(Insert Fund Names Here; Please Type)
EXHIBIT B
UNDERSTANDING REGARDING THE
ACCURACY, COMPLETENESS AND CIRCUMSTANCES OF PROVIDING
WRITTEN MATERIALS
Xxxxx Xxxxxx Incorporated and its affiliates ("Xxxxx Xxxxxx") have a formal
policy relating to all offering documents, sales literature, and marketing
materials(1) of outside mutual fund products made available through Xxxxx
Xxxxxx'x Program, including all such materials distributed or made available by
you. All such materials must be up-to-date as of the time they are distributed
or made available by you to Xxxxx Xxxxxx personnel, including, but not limited
to, Xxxxx Xxxxxx'x employees, agents and representatives. In addition, for all
such materials that you distribute or make available to Xxxxx Xxxxxx personnel,
you represent, warrant and covenant now and for such materials in the future
that:
1. Public Materials: All materials intended for public dissemination which
are distributed or made available by you to Xxxxx Xxxxxx personnel (a) have been
submitted to and cleared by the United States Securities and Exchange Commission
and/or (b) have been submitted to the National Association of Securities
Dealers, Inc. and all necessary changes will be made to satisfy all applicable
standards upon reprinting of such materials.
2. "Internal Use Only" Materials: No Materials will be distributed or made
available to Xxxxx Xxxxxx personnel which is intended for "internal" or "broker
use only," except for such material submitted and approved in advance by Xxxxx
Xxxxxx (to the attention of: Xxxxx Xxxxx, 0000 Xxxxxx Xxxx, Xxxxxxxx X, 00xx
Xxxxx, Xxxxxxxxx, XX 00000).
3. Continuing Compliance: Your acknowledge that the distribution to Xxxxx
Xxxxxx personnel of the above-referenced materials that are not in compliance
with the above statements is strictly prohibited, and you acknowledge that Xxxxx
Xxxxxx is relying on you fulfilling your obligations and agreements hereunder.
Further, you will take all reasonable actions to prevent the distribution to
Xxxxx Xxxxxx personnel of any such materials that are inconsistent with these
representations.
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(1) Sales literature, marketing materials and "Internal Use Only" documents
include, but are not limited to: broker-dealer kits; brochure; newsletters;
advertisements; documents regarding sales promotions or contests; questions and
answer sheets; scripts; speech outlines or other public presentations;
prospecting or solicitation letters; slide presentations; audiotapes and
videotapes; columns prepared for outside publications; reprints or excerpts from
published materials; and any documents or materials adapted from the above
materials.
