AMT Capital Fund, Inc.
U.S. Selected Growth Portfolio - Class B Shares
Dealer Agreement
AGREEMENT made this ___ day of_____________, 199_, by and between the
AMT Capital Services, Inc., (the "Distributor"), a Delaware corporation, and
Xxxxxx Brothers, Inc. (the "Dealer"), a ___________corporation.
In consideration of the agreements hereinafter contained, Distributor
has agreed that Dealer for the period of this Agreement shall distribute the
Class B shares (the "Shares") of the U.S. Selected Growth Portfolio (the
"Portfolio"), a separate series of the AMT Capital Fund, Inc. (the "Fund")
for which the Distributor serves as principal underwriter. The parties
hereto, intending to be legally bound hereby, agree as follows:
1. Licensing.
(a) Dealer represents that it is a member in good standing of the
National Association of Securities Dealers, Inc. ("NASD") and is presently
licensed to the extent necessary by the appropriate regulatory agency of each
state in which it will offer and sell Shares of the Portfolio. Dealer agrees
that termination or suspension of such membership with the NASD, or of its
license to do business by any state or federal regulatory agency, at any time
shall terminate or suspend this Agreement forthwith and shall require Dealer
to notify Distributor in writing of such action. This Agreement is in all
respects subject to Rule 26 of the Rules of Fair Practice of the NASD which
shall control any provision to the contrary in this Agreement.
(b) Dealer agrees to notify Distributor immediately in writing if at any
time Dealer is not in good standing with the Securities Investor Protection
Corporation ("SIPC").
2. Sales of Portfolio Shares. Dealer may offer and sell Shares of the
Portfolio only at the public offering price which shall be applicable to, and
in effect at the time of, each transaction. The procedures relating to all
orders and the handling of them shall be subject to the terms of the then
current prospectus and statement of additional information (hereafter, the
"prospectus") and new account application, including amendments, for the
Portfolio, and Distributor's written instructions furnished to Dealer from
time to time. This Agreement is not exclusive and either party may enter
into similar agreements with third parties.
3. Duties of Dealer : In General, Dealer agrees:
(a) To act as principal, or agent on behalf of Dealer's customers, in all
transactions in Shares of the Portfolio except as provided in paragraph 4
hereof. Dealer shall not have any authority to act as agent for the issuer
(the Portfolio), for the Distributor, or for any other dealer in any respect,
nor will Dealer represent to any third party that Dealer has such authority
or is acting in such capacity.
(b) To purchase Shares only from Distributor or from Dealer's customers.
(c) To enter orders for the purchase of Shares of the Portfolio only with
Distribution of the Portfolio and only for the purpose of covering purchase
orders Dealer has already received from Dealer's Customers or for Dealers
own bona fide investment.
(d) To maintain records of all sales and redemptions of Shares made through
Dealer and to furnish the Distributor with copies of such records on request.
(e) To distribute prospectuses and reports to Dealer's customers in
compliance with applicable legal requirements, except to the extent that the
Distributor expressly undertakes to do so on Dealer's behalf.
(f) All orders are subject to acceptance or rejection by the Distributor or
the Portfolio in the sole discretion of either.
4. Duties of Dealer: Retirement Accounts. In connection with orders for
the purchase of Shares on behalf of an Individual Retirement Account, Self-
Employed Retirement Plan or other retirement accounts, by mail, telephone, or
wire, Dealer shall act as agent for the custodian or trustee of such plans
(solely with respect to the time of receipt of the application and payments),
and Dealer shall not place such an order until the Dealer has received from the
Dealer's customer payment for such purchase and if such purchase represents the
first contribution to such a plan, the completed documents necessary to
establish the plan. Dealer agrees to indemnify Distributor and AMT Capital Fund
as applicable for any claim, loss or liability resulting from incorrect
investment instructions received from the Dealer which cause a tax liability
or other tax penalty.
5. Conditional Orders. Distributor will not accept from Dealer any
conditional orders for Shares of the Portfolio.
6. Redemptions. Redemptions or repurchases of Shares will be made at
the net asset value of such in accordance with the applicable prospectus.
Except as permitted by applicable law, Dealer agrees not to purchase
Distributor's customers at a price lower than the redemption or repurchase
prices then computed by the Portfolio.
7. Transaction Processing. All orders are subject to acceptance by the
Distributor and by the Portfolio or its transfer agent, and become effective
only upon confirmation by the Distributor. Distributor reserves the right in
its discretion, without notice, to suspend the sale of Shares or withdraw the
offering of Shares entirely. Orders will be affected at the price(s) next
computed on the day they are received from Dealer, as set forth in the
Portfolio's current prospectus, if they are received prior to the time the
price of its Shares is calculated. Orders received after that time will be
effected at the price(s) computed on the next business day. All orders must
be accompanin U.S. dollars.
8. Rule 12b-1 Plans. To the extent Dealer provides administrative and
other services, including, but not limited to, furnishing personal and other
services and assistance to Dealer's customers who own Shares of the Portfolio
pursuant to Rule 12b-1 under the 1940 Act, answering routine inquiries
regarding the Portfolio, assisting in changing account designations and
addresses, maintaining such accounts or such other services as the Portfolio
may require, to the extent permitted by applicable statutes, rules, or
regulations, Distributor shall pay the Dealer a Rule 12b-1 servicing fee. To
the extent that Dealer participates in the distribution of Portfolio Shares
which are eligible for Rule 12b-1 distribution fee, Distributor shall also
pay Dealer a Rule 12b-1 distribution fee. All Rule 12b-1 servicing and
distribution fees shall be based on the value of Shares attributable to
customers of Dealer's firm and eligible for such payment, and shall be
calculated on the basis and at the rates set forth in the compensation
schedule then in effect. Without prior approval by a majority of the
outstanding Shares of the Portfolio, the aggregate annual fees paid to the
Dealer pursuant to each Plan shall not exceed the amounts stated as the
"annual maximums" in the Portfolio's prospectus, which amount shall be a
specified percent of the value of the Portfolio's net assets held in
Dealer's customers' accounts which are eligible for payment pursuant to this
Agreement (determined in the same manner as the Portfolio uses to compute its
net assets as set forth in its effective Prospectus).
Dealer shall furnish Distributor and the Portfolio with such information as
shall reasonably be requested by the Board of Directors (herein after
referred to as "Directors") of the Fund with respect to the fees paid to
Dealer pursuant to this Agreement.
The Plan and provisions of any agreement relating to the Plan must be
approved annually by a vote of the Fund's Directors, including such persons
who are not interested persons of the Fund and who have no financial interest
in the Plan or any related agreement ("Rule 12b-1 Directors"). The Plan or
the provisions of this Agreement relating to the Plan may be terminated at
any time by the vote of a majority of the Fund's Board of Directors, including
Rule 12b-1 Directors, or by a vote of a majority of the outstanding Shares
of the Portfolio, on sixty (60) days written notice, without payment of any
penalty. The Plan or the provisions of this Agreement may also be terminated
by any act that terminates the Distribution Agreement between AMT Capital
Services, Inc. and the Portfolio. In the event of the termination of the
Plan for any reason, the provisions of this Agreement relating to the Plan
will also terminate.
Continuation of the Plan and provisions of this Agreement relating to the
Plan are conditioned on compliance with Rule 12b-1. Under Rule 12b-1,
Directors of the Fund have a duty to request and evaluate, and persons who
are party to any agreement related to a plan have a duty to furnish, such
information as may reasonably be necessary to an informed determination of
whether the Plan or any agreement should be implemented or continued. Under
Rule 12b-1, the Portfolio is permitted to implement or continue the Plan or
the provisions of this Agreement relating to such Plan from year-to-year only
if, based on certain legal considerations, the Board of Directors is able to
conclude that the Plan may be continued as set forth above. In addition, any
obligation assumed by the Portfolio pursuant to this Agreement shall be
limited in all cases to the assets of the Portfolio and no person shall seek
satisfaction thereof from shareholders of the Portfolio.
The provisions of the Rule 12b-1 Plan between the Portfolio and the
Distributor shall control over the provisions of this Agreement in the event
of any inconsistency.
9. Registration of Shares. Upon request, Distributor shall notify
Dealer of the States or other jurisdictions in which the Portfolio's Shares
are currently registered or qualified for sale to the public. Distributor
shall have no obligation to register or qualify, or to maintain registration
or qualification of the Portfolio Shares in any state or other jurisdiction.
Distributor shall have no responsibility, under the laws regulating the sale
of securities in any U.S. or foreign jurisdiction, for the qualification or
status of persons selling Portfolio Shares or for the manner of sale of
Portfolio Shares. Except as stated in this paragraph, Distributor shall not,
in any event, be liable or responsible for the issue, form, validity,
enforceability and value of such Shares or for any matter in connection
therewith, and no obligation not expressly assumed by the Distributor in this
agreement shall be implied. Nothing in this Agreement, however, shall be
deemed to be a condition, stipulation or provision binding any person
acquiring any security to waive compliance with any provision of the
securities Act of 1933, or of the rules and regulations of Securities and
Exchange Commission, or to relieve the parties hereto from any liability
arising under the Securities Act of 1933.
10. Fund information. No person is authorized to give any information or
make any representations concerning Shares of any Portfolio except those
contained in the Portfolio's current prospectus or in materials issued by the
Distributor as information supplemental to such prospectus. Distributor will
supply prospectuses and additional information as issued. Dealer agrees not
to use other advertising or sales material relating to the Portfolio except that
which (a) conforms to the requirements of any applicable laws or regulations
of any government or authorized agency in the U.S. having jurisdiction over
the offering or sale of Shares of the Portfolio, and (b) is approved in
writing by Distributor in advance of such use. Such approval may be
withdrawn by Distributor in whole or in part upon notice to Dealer, and
Dealer shall, upon receipt of such notice, immediately discontinue the use of
such sales literature, sales material and advertising. The Dealer is not
authorized to modify or translate any such materials without dealers prior
written consent.
11. Indemnification. Dealer further agrees to indemnify, defend and hold
harmless the Distributor, the Portfolio, their officers, directors and
employees from any and all losses, claims, liabilities and expenses arising
out of (1) any alleged violation by Dealer of any state or regulation
(including without limitation the securities laws and regulations of the
United States or any state or foreign country) or any alleged tort or breach
of contract, in or related to the offer and sale by Dealer of Shares of the
Portfolio pursuant to this Agreement (except to the extent that Dealer's
negligence or failure to follow correct instructions received from
Distributor is the cause of such loss, claim, liability or expense) provided
that Distributor has notified Dealer that the Portfolio or its Shares were
not properly registered or qualified in that state, (2) any redemption or
exchange pursuant to telephone instructions received from Dealer or Dealer's
agent or employees, or (3) the breach by Dealer of any of the terms and
conditions of this Agreement.
Distributor further agrees to indemnify, defend and hold harmless the Dealer,
its officers, directors and employees from any and all losses, claims,
liabilities and expenses arising out of the breach by Distributor of any of
the terms and conditions of this Agreement.
12. Termination; Succession; Amendment. Each party to this Agreement may
cancel its participation in this Agreement by giving written notice to the
other parties. Such notice shall be deemed to have been given and to be
effective on the date on which it was either delivered personally to the
other parties or any officer or member thereof, or was mailed postpaid or
delivered to a telegraph office for transmission to the other parties Chief
Legal Officers at the addresses shown herein or in the most recent NASD
Manual. This Agreement shall terminate immediately upon the appointment of a
Trustee under the Securities Investor Protection Act or any other act of
insolvency by Dealer. The termination of this Agreement by any of the
foregoing means shall have no effect upon transactions entered into prior to
the effective date of termination or Distributor's obligation to pay Dealer
Rule 12b-1 Servicing and Distribution fees under Section 8 of this Agreement
relating to Shares of the Portfolio sold prior to the termination of this
Agreement. A trade placed by Dealer subsequent to Dealer's voluntary
termination of this Agreement will not serve to reinstate this Agreement.
Reinstatement, except in the case of a temporary suspension of a dealer, will
only be effective upon written notification by us. This Agreement shall be
automatically terminated in the event of its assignment (as defined in the
Investment Company Act of 1940). Unless terminated as provided in the
preceding sentence, this Agreement shall be binding upon each party's
successors or assigns. This Agreement may be amended by Distributor at any
time by written notice to the Dealer and Dealer's placing of an order or
acceptance of payments of any kind after the affective date and receipt of
notice of any such Amendment shall constitute Dealer's acceptance of such
Amendment.
13. Setoff; Dispute Resolution. In the event of a dispute concerning any
provision of this Agreement, either party may require the dispute to be
submitted to binding arbitration under the commercial arbitration rules of
the NASD or the American Arbitration Association. Judgment upon any
arbitration award may be entered by any state or Federal court having
jurisdiction. This Agreement shall be construed in accordance with the
laws of the State of New York, not including any provision which would
require the general application of the law of another jurisdiction.
14. Acceptance; Cumulative Effect. This Agreement is cumulative and
supersedes any agreement previously in effect. It shall be binding upon the
parties hereto when signed by Xxxxxx Brothers, Inc. and accepted Services, Inc.
AMT Capital Services, Inc.
By:____________________________
Xxxx X. Xxxxxx, President
Xxxxxx Brothers, Inc. Address:
By:_____________________________ _____________________________
(Signature) _____________________________
Name:___________________________
Telephone:______________________
Title:__________________________ NASD CRD#____________________
