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EXHIBIT 99.(E)
DISTRIBUTION AGREEMENT
AGREEMENT made as of the ___ day of _____________, 2000, by and between
the Xxxxxxx Xxxxx Investment Managers Funds, Inc. (the "Corporation"), on behalf
of its portfolios, the Xxxxxxx Xxxxx Low Duration Fund and the Xxxxxxx Xxxxx
Total Return Bond Fund (each a "Fund," and collectively the "Funds"), and FAM
DISTRIBUTORS, INC., a Delaware corporation (the "Distributor").
W I T N E S S E T H :
WHEREAS, the Corporation is registered under the Investment Company Act
of 1940, as amended (the "Investment Company Act"), as an open-end investment
company, and it is affirmatively in the interest of each Fund to offer its
shares for sale continuously; and
WHEREAS, the Articles of Incorporation of the Corporation have
established and designated the funds; and
WHEREAS, each Fund may offer one or more separate classes of shares of
common stock (the "Shares"); and
WHEREAS, the Distributor is a securities firm engaged in the business of
selling shares of investment companies either directly to purchasers or through
financial intermediaries, including, without limitation, brokers, dealers,
retirement plans, financial consultants, registered investment advisers and
mutual fund supermarkets ("financial intermediaries"); and
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WHEREAS, the Corporation and the Distributor wish to enter into an
agreement with each other with respect to the continuous offering of each class
of each Fund's shares;
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. Each Fund hereby appoints the
Distributor as its principal underwriter and distributor to sell its Shares to
eligible investors (as defined below) and hereby agrees during the term of this
Agreement to sell the Shares to the Distributor upon the terms and conditions
herein set forth.
Section 2. Exclusive Nature of Duties. The Distributor shall be each
Fund's exclusive representative to act as principal underwriter and distributor
of its Shares, except that:
(a) Each Fund may, upon written notice to the Distributor, from time to
time designate other principal underwriters and distributors of Shares with
respect to areas other than the United States as to which the Distributor may
have expressly waived in writing its right to act as such. If such designation
is deemed exclusive, the right of the Distributor under this Agreement to sell
Shares in the areas so designated shall terminate, but this Agreement shall
remain otherwise in full effect until terminated in accordance with the other
provisions hereof.
(b) The exclusive rights granted to the Distributor to purchase Shares
from each Fund shall not apply to Shares issued in connection with the merger or
consolidation of any other investment company or personal holding company with a
Fund or a Fund's acquisition by purchase or otherwise of all (or substantially
all) the assets or the outstanding Shares of any such company.
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(c) Such exclusive rights also shall not apply to Shares issued by a
Fund pursuant to reinvestment of dividends or capital gains distributions.
(d) Such exclusive rights also shall not apply to Shares of any class
issued by a Fund pursuant to any conversion, exchange or reinstatement privilege
afforded redeeming shareholders or to any other Shares as shall be agreed
between the Fund and the Distributor from time to time.
Section 3. Purchase of Shares from the Fund.
(a) Prior to the continuous offering of the Shares of a Fund, commencing
on a date agreed upon by that Fund and the Distributor, the Distributor may
solicit subscriptions for Shares during a subscription period that shall last
for such period as may be agreed upon by the parties hereto. Subscriptions will
be payable within three business days after the termination of the relevant
subscription period, at which time the Shares will be issued against payment and
such Fund will commence operations.
(b) After a Fund commences operations, the Fund will commence an
offering of its Shares, and thereafter the Distributor shall have the right to
buy from the Fund the Shares needed, but not more than the Shares needed (except
for clerical errors in transmission), to fill unconditional orders for Shares of
a Fund placed with the Distributor by eligible investors or financial
intermediaries. Investors eligible to purchase each class of Shares of each Fund
shall be those persons so identified in the currently effective prospectus and
statement of additional information of a Fund (the "prospectus" and "statement
of additional information," respectively)
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under the Securities Act of 1933, as amended (the "Securities Act"), relating to
such class of Shares ("eligible investors"). The price that the Distributor
shall pay for Shares so purchased from a Fund shall be the net asset value,
determined as set forth in Section 3(e) hereof, used in determining the public
offering price on which such orders were based.
(c) The Shares are to be resold by the Distributor to eligible investors
at the public offering price, as set forth in Section 3(d) hereof, or to
financial intermediaries having agreements with the Distributor pursuant to
Section 7 hereof.
(d) The public offering price of each class of Shares, i.e., the price
per share at which the Distributor or financial intermediaries may sell the
Shares to eligible investors, shall be the public offering price as set forth in
the prospectus and statement of additional information relating to such class of
Shares, or as otherwise permissible under the federal and state securities laws.
If the public offering price does not equal an even cent, the public offering
price may be adjusted to the nearest cent. All payments to the Funds hereunder
shall be made in the manner set forth in Section 3(g).
(e) The net asset value of Shares shall be determined by the Fund or any
agent of the Fund in accordance with the method set forth in each Fund's
prospectus and statement of additional information and guidelines established by
the Board of Directors.
(f) Each Fund shall have the right to suspend the sale of its Shares at
times when redemption is suspended pursuant to the conditions set forth in
Section 4(b) hereof. Each Fund shall also have the right to suspend the sale of
its Shares if trading on the New York Stock
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Exchange shall have been suspended, if a banking moratorium shall have been
declared by Federal or New York authorities, or if there shall have been some
other event, which, in the judgment of that Fund, makes it impracticable or
inadvisable to sell the Shares.
(g) A Fund, or any agent of a Fund designated in writing by that Fund,
shall be promptly advised of all purchase orders for Shares received by the
Distributor. Any order may be rejected by a Fund; provided, however, that a Fund
will not arbitrarily or without reasonable cause refuse to accept or confirm
orders for the purchase of Shares from eligible investors. A Fund (or its agent)
will confirm orders upon their receipt, will make appropriate book entries and,
upon receipt by a Fund (or its agent) of payment therefor, will deliver deposit
receipts or certificates for such Shares pursuant to the instructions of the
Distributor. Payment shall be made to that Fund through the National Securities
Clearing Corporation ("NSCC") in New York Clearing House funds or by Federal
Funds wire. The Distributor agrees to cause such payment and such instructions
to be delivered promptly to that Fund (or its agent).
Section 4. Repurchase or Redemption of Shares by a Fund.
(a) Any of the outstanding Shares may be tendered for redemption at any
time, and each Fund agrees to repurchase or redeem the Shares so tendered in
accordance with its obligations as set forth in the Articles of Incorporation,
as amended from time to time, and in accordance with the applicable provisions
set forth in the prospectus and statement of additional information relating to
the applicable Fund. The price to be paid to redeem or repurchase the Shares
shall be equal to the net asset value calculated in accordance with the
provisions of Section 3(e) hereof, less any contingent deferred sales charge
("CDSC"), redemption fee or other
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charge(s), if any, set forth in the prospectus and statement of additional
information relating to the applicable Fund. All payments by a Fund hereunder
shall be made in the manner set forth below. The redemption or repurchase by a
Fund of any of the Shares purchased by or through the Distributor will not
affect the applicable sales charge, if any, secured by the Distributor or any
financial intermediary in the course of the original sale, except that if any
Shares are tendered for redemption or repurchase within seven business days
after the date of the confirmation of the original purchase, the right to the
sales charge, if any, shall be forfeited by the Distributor and the financial
intermediary that sold such Shares.
Each Fund shall pay the total amount of the redemption price as defined
in the above paragraph pursuant to the instructions of the Distributor through
NSCC, in New York Clearing House funds or by Federal Funds wire on or before the
seventh business day subsequent to its having received the notice of redemption
in proper form. The proceeds of any redemption of Shares shall be paid by each
Fund as follows: (i) any applicable CDSC shall be paid to the Distributor, and
(ii) the balance shall be paid to or for the account of the Shareholder, in each
case in accordance with the applicable provisions of the prospectus and
statement of additional information.
(b) Redemption of Shares or payment may be suspended at times when the
New York Stock Exchange is closed, when trading on said Exchange is suspended,
when trading on said Exchange is restricted, when an emergency exists as a
result of which disposal by a Fund of securities owned by it is not reasonably
practicable or it is not reasonably practicable for a Fund
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fairly to determine the value of its net assets, or during any other period when
the Securities and Exchange Commission, by order, so permits.
Section 5. Duties of each Fund.
(a) Each Fund shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of Shares of that
Fund, and this shall include, upon request by the Distributor, one certified
copy of all financial statements prepared for the Fund by independent public
accountants. Each Fund shall make available to the Distributor such number of
copies of the prospectus and statement of additional information as the
Distributor shall reasonably request.
(b) Each Fund shall take, from time to time, but subject to any
necessary approval of a Fund's shareholders, such steps as may be necessary to
register the Fund's Shares under the Securities Act, to the end that there will
be available for sale such number of Shares of each class as the Distributor may
reasonably be expected to sell.
(c) Each Fund shall use its best efforts to file notices and maintain
the notification regarding an appropriate number of its Shares for sale under
the securities laws of such states as the Distributor and that Fund may approve.
Any such notification may be withheld, terminated or withdrawn by a Fund at any
time in its discretion. As provided in Section 8(c) hereof, the expense of
notices and maintenance of notification shall be borne by each Fund. The
Distributor
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shall furnish such information and other material relating to its affairs and
activities as may be required by a Fund in connection with such notification.
(d) Each Fund will furnish, in reasonable quantities upon request by the
Distributor, copies of its annual and interim reports.
Section 6. Duties of the Distributor.
(a) The Distributor shall devote reasonable time and effort to effect
sales of Shares of each Fund but shall not be obligated to sell any specific
number of Shares. The services of the Distributor to the Funds hereunder are not
to be deemed exclusive and nothing herein contained shall prevent the
Distributor from entering into like arrangements with other investment companies
so long as the performance of its obligations hereunder is not impaired thereby.
(b) In selling the Shares of the Funds, the Distributor shall use its
best efforts in all respects duly to conform with the requirements of all
Federal and state laws relating to the sale of such securities. Neither the
Distributor nor any financial intermediary having an agreement to offer and sell
shares pursuant to Section 7 hereof, nor any other person is authorized by any
Fund to give any information or to make any representations, other than those
contained in its registration statement or related prospectus and statement of
additional information and any sales literature specifically approved by such
Fund.
(c) The Distributor shall adopt and follow procedures, as approved by
the officers of the Corporation, for the confirmation of sales to eligible
investors and financial intermediaries, the collection of amounts payable by
eligible investors and financial intermediaries on such
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sales, and the cancellation of unsettled transactions, as may be necessary to
comply with the requirements of the National Association of Securities Dealers,
Inc. (the "NASD"), as such requirements may from time to time exist.
Section 7. Agreements with Financial Intermediaries.
(a) The Distributor shall have the right to enter into agreements with
financial intermediaries of its choice for the sale of Shares and to fix therein
the portion of the sales charge that may be allocated to the financial
intermediaries on such terms and conditions as the Distributor shall deem
necessary or appropriate; provided, however, that the Distributor shall
periodically inform the Directors of the nature and substance of such
agreements. Shares sold to financial intermediaries shall be for resale by such
intermediaries only at the public offering price(s) set forth in the applicable
prospectus and statement of additional information or as otherwise permissible
under the federal and state securities laws.
(b) With respect to financial intermediaries who are acting as brokers
or dealers within the United States, the Distributor shall offer and sell Shares
only to such financial intermediaries who are members in good standing of the
NASD and who agree to abide by the Conduct Rules of the NASD, as amended from
time to time.
Section 8. Payment of Expenses.
(a) Each Fund shall bear all costs and expenses of the Fund, including
fees and disbursements of its counsel and auditors, in connection with the
preparation and filing of any required registration statements and/or
prospectuses and statements of additional information
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under the Investment Company Act, the Securities Act, and all amendments and
supplements thereto, and preparing and mailing annual and interim reports and
proxy materials to Shareholders (including but not limited to the expense of
setting in type any such registration statements, prospectuses, statements of
additional information, annual or interim reports or proxy materials).
(b) The Distributor shall be responsible for any payments made to
financial intermediaries. In addition, after the prospectuses, statements of
additional information and annual and interim reports have been prepared and set
in type, the Distributor shall bear the costs and expenses of printing and
distributing any copies thereof which are to be used in connection with the
offering of Shares to financial intermediaries or eligible investors pursuant to
this Agreement. The Distributor shall bear the costs and expenses of preparing,
printing and distributing any other literature used by the Distributor or
furnished by it for use by financial intermediaries in connection with the
offering of the Shares for sale to eligible investors and any expenses of
advertising incurred by the Distributor in connection with such offering. It is
understood and agreed that so long as any Distribution Plan pursuant to Rule
12b-1 under the Investment Company Act with respect to a particular class of
Shares of a Fund remains in effect, any expenses incurred by the Distributor
hereunder in connection with distribution and/or account maintenance activities
for such class of Shares, as applicable, may be paid from amounts recovered by
it from the Fund under such Plan.
(c) Each Fund shall bear the cost and expenses of qualification of its
Shares for sale pursuant to this Agreement and, if necessary or advisable in
connection therewith, of qualifying
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the Fund as a broker or dealer in such states of the United States or other
jurisdictions as shall be selected by the Funds and the Distributor pursuant to
Section 5(c) hereof and the cost and expenses payable to each such state for
continuing notification therein until the Fund decides to discontinue such
notification pursuant to Section 5(c) hereof.
Section 9. Indemnification.
(a) Each Fund severally shall indemnify and hold harmless the
Distributor and each person, if any, who controls the Distributor against any
loss, liability, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage or expense
and reasonable counsel fees incurred in connection therewith), as incurred,
arising by reason of any person acquiring any of its Shares, which may be based
upon the Securities Act, or on any other statute or at common law, on the ground
that the registration statement or related prospectus and statement of
additional information, as from time to time amended and supplemented, or an
annual or interim report to the Fund's shareholders, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, unless such statement or omission was made in reliance upon, and in
conformity with, information furnished to the Fund in connection therewith by or
on behalf of the Distributor; provided, however, that in no case (i) is the
indemnity of the Fund in favor of the Distributor and any such controlling
persons to be deemed to protect such Distributor or any such controlling persons
thereof against any liability to the Fund or its security holders to which the
Distributor or any such controlling persons would otherwise be subject by reason
of willful misfeasance, bad faith or gross
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negligence in the performance of their duties or by reason of the reckless
disregard of their obligations and duties under this Agreement; or (ii) is the
Fund to be liable under its indemnity agreement contained in this paragraph with
respect to any claim made against the Distributor or any such controlling
persons, unless the Distributor or such controlling persons, as the case may be,
shall have notified the Fund in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon the Distributor or such controlling persons
(or after the Distributor or such controlling persons shall have received notice
of such service on any designated agent), but failure to notify the Fund of any
such claim shall not relieve it from any liability which it may have to the
person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. Each Fund will be entitled to
participate at its own expense in the defense or, if it so elects, to assume the
defense of any suit brought to enforce any such liability, but if the Fund
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Distributor or such controlling person or persons,
defendant or defendants in the suit. In the event a Fund elects to assume the
defense of any such suit and retain such counsel, the Distributor or such
controlling person or persons, defendant or defendants in the suit shall bear
the fees and expenses of any additional counsel retained by them, but in case
the Fund does not elect to assume the defense of any such suit, it will
reimburse the Distributor or such controlling person or persons, defendant or
defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. Each Fund shall promptly notify the Distributor of the
commencement of any litigation or proceedings against it or any of the
Corporation's officers or Directors in connection with the issuance or sale of
any of the Shares.
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(b) The Distributor shall indemnify and hold harmless each Fund and each
of the Corporation's Directors and officers and each person, if any, who
controls the Fund against any loss, liability, claim, damage or expense
described in the foregoing indemnity contained in subsection (a) of this
Section, but only with respect to statements or omissions made in reliance upon,
and in conformity with, information furnished to the Fund in writing by or on
behalf of the Distributor for use in connection with the registration statement
or related prospectus and statement of additional information, as from time to
time amended, or the annual or interim reports to shareholders. In case any
action shall be brought against a Fund or any person so indemnified, in respect
of which indemnity may be sought against the Distributor, the Distributor shall
have the rights and duties given to each Fund, and each Fund and each person so
indemnified shall have the rights and duties given to the Distributor by the
provisions of subsection (a) of this Section 9.
Section 10. Fee-Based or Other Programs. In connection with certain
fee-based or other programs offered by a Fund's investment adviser or its
affiliates or by financial intermediaries having agreements with the Distributor
pursuant to Section 7 hereof, the Distributor and its affiliates are authorized
to offer and sell Shares of each Fund, as agent for the Fund, to participants in
such programs. Similarly, any Shares of a Fund sold through a fee-based or other
program offered by a financial intermediary shall be sold by such intermediary
acting as agent. The terms of this Agreement shall apply to such sales,
including terms as to the offering price of Shares, the proceeds to be paid to
the Funds, the duties of the Distributor, the payment of expenses and
indemnification obligations of the Funds and the Distributor.
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Section 11. Duration and Termination of this Agreement. This Agreement
shall become effective as of the date first above written and shall remain in
force until two years after the date first above written, and thereafter, but
only for so long as such continuance is specifically approved at least annually
by (i) the Board of Directors, or with respect to any one Fund, by the vote of a
majority of the outstanding voting securities of that Fund and (ii) by the vote
of a majority of those Directors who are not parties to this Agreement or
interested persons of any such party cast in person at a meeting called for the
purpose of voting on such approval.
This Agreement may be terminated at any time, without the payment of any
penalty, with respect to any Fund or Funds by the Board of Directors or by vote
of a majority of the outstanding voting securities of the applicable Fund(s), or
by the Distributor, on sixty days' written notice to the other party. This
Agreement shall automatically terminate in the event of its assignment.
The terms "vote of a majority of the outstanding voting securities,"
"assignment," "affiliated person" and "interested person," when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act.
Section 12. Amendments of this Agreement. This Agreement may be amended
by the parties only if such amendment is specifically approved by (i) the Board
of Directors or by the vote of a majority of outstanding voting securities of
the Fund and (ii) by the vote of a majority of those Directors who are not
parties to this Agreement or interested persons of any such party cast in person
at a meeting called for the purpose of voting on such approval.
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Section 13. Governing Law. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of New York
as at the time in effect and the applicable provisions of the Investment Company
Act. To the extent that the applicable law of the State of New York, or any of
the provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXX XXXXX INVESTMENT MANAGERS FUNDS, INC.
By:
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Title:
FAM DISTRIBUTORS, INC.
By:
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Title:
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SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
The undersigned distributor (the "Distributor" or "us" or "we"),
which is a member firm of the National Association of Securities Dealers, Inc.
("NASD"), has an agreement with each of the mutual funds listed on Schedule A
("Funds") pursuant to which it acts as the distributor for the sale of shares of
the Funds ("Shares") and as such has the right to distribute Shares for resale.
(We may amend Schedule A from time to time to add or delete Funds upon written
notice to you.) The Funds are open-end investment companies registered under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the Shares are registered under the Securities Act of 1933, as amended (the
"Securities Act"). The terms "Prospectus" and "SAI" used herein refer to the
prospectus and statement of additional information, respectively, on file with
respect to each Fund with the Securities and Exchange Commission (the
"Commission") which are part of the most recent effective registration statement
pursuant to the Securities Act. We offer to sell to you, as a member of the
Selected Dealers Group, Shares of the Classes indicated on Schedule A upon the
following terms and conditions:
1. In all sales of Shares to the public, you shall act as dealer for
your own account and in no transaction shall you have any authority to act as
agent for any Fund, for us or for any other member of the Selected Dealers
Group, except in connection with special programs as we may from time to time
agree, in which case you shall have authority to offer and sell Shares, as agent
for a Fund, to participants in such program.
2. Orders received from you will be accepted through us only at the
public offering price applicable to each order, as set forth in the current
Prospectus and SAI of each Fund. The procedure relating to the handling of
orders shall be subject to Section 5 hereof and instructions that we or the
Funds shall forward from time to time to you. All orders are subject to
acceptance or rejection by the Distributor or a Fund in the sole discretion of
either. The minimum initial and subsequent purchase requirements are as set
forth in the current Prospectus and SAI of each Fund.
3. Sales charges are specified in the applicable Prospectus and SAI and
Selected Dealer payments are specified in such Prospectus and SAI or in Schedule
A. If there is any conflict between a term of Schedule A and a term of the
applicable Prospectus or SAI, the term of the Prospectus or SAI shall prevail.
4. (a) You shall not place orders for any of the Shares unless you have
already received purchase orders for such Shares from your customers at the
applicable public offering prices and subject to the terms of this Agreement,
the Prospectus and the SAI.
(b) You shall indemnify and hold harmless the Distributor, each
Fund and each person, if any, who controls the Distributor or a Fund, and their
respective officers, directors, employees, partners and shareholders from and
against any loss, liability, claim, damage or expense (including the reasonable
cost of investigating or defending any alleged loss, liability, claim, damage or
expense and reasonable counsel fees incurred in connection therewith), as
incurred, arising in connection with your violation of any of the provisions of
this Agreement, provided, however, that in no case is the foregoing indemnity to
be deemed to protect the Distributor or any such controlling persons, officers,
directors, shareholders, partners or employees thereof against any liability to
a Fund or its security holders to which the Distributor or any such person would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of their duties or by reason of the reckless
disregard of their obligations and duties under this Agreement.
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5. As a selected dealer, you are hereby authorized (i) to place orders
directly with the Funds for Shares to be resold by us to you or exchanged
subject to the applicable terms and conditions governing the placement of orders
and subject to the compensation provisions set forth in this Agreement, the
Prospectus and the SAI, and (ii) to tender Shares directly to the Funds or their
agent for redemption subject to the applicable terms and conditions set forth in
this Agreement, the Prospectus and the SAI. You agree that your transactions
with us will be through National Securities Clearing Corporation ("NSCC")
Networking and Fund/SERV pursuant to NSCC standard procedures and the operating
procedures of the Distributor and the Funds' transfer agent as communicated to
you from time to time. You warrant that any information provided by you through
NSCC is accurate and complete and in the format prescribed by the NSCC.
6. You shall not withhold placing orders received from your customers so
as to profit yourself as a result of such withholding, e.g., by a change in the
"net asset value" from that used in determining the offering price to your
customers.
7. Payment for Shares purchased by you shall be made on the settlement
date specified in the confirmation through NSCC Fund/SERV or by Federal Funds
wire. If such payment is not received by us, we reserve the right, without
notice, to either cancel the sale or, at our option, to sell the Shares back to
the Fund, and in either case, we may hold you responsible for any direct loss
suffered by us or by the Fund resulting from your failure to make payment as
aforesaid.
8. You agree to take full responsibility for the suitability and proper
supervision of mutual fund recommendations and to ensure that, to the extent
customers request to purchase a class of shares in a Fund different from what
they already hold in the Fund, such customers are aware of the advantages and
disadvantages of selecting one class of shares over other classes of shares and
are aware of the available methods of mutual fund financing.
9. If any Shares sold to you under the terms of this Agreement are
repurchased by the Funds or by us for the account of the Funds or are tendered
for redemption within seven business days after the date of the confirmation of
the original purchase by you, it is agreed that you shall forfeit your right to,
and refund to us, any compensation received by you on such Shares.
10. No person is authorized to make any representations concerning
Shares except those contained in the current Prospectus and SAI of each Fund and
in such printed information subsequently issued by us or the Fund as information
supplemental to such Prospectus and SAI. In purchasing Shares through us you
shall rely solely on the representations contained in the Prospectuses and SAIs
and supplemental information above mentioned. Any printed information that we
furnish you other than Prospectuses, SAIs, periodic reports and proxy
solicitation material is our sole responsibility and not the responsibility of
the Funds, and you agree that no Fund shall have any liability or responsibility
to you in these respects unless expressly assumed in connection therewith. You
shall not furnish to any person any information relating to the Shares that is
inconsistent in any respect with the information contained in the Prospectus and
SAI (as then amended or supplemented). You shall not use through the internet or
otherwise any sales literature or advertisement regarding the Funds without our
prior written consent, unless it is solely a listing of product offerings or has
been provided by us for such purpose.
11. You agree to deliver to each of the investors making purchases from
you a copy of the relevant then current Prospectus at or prior to the time of
offering or sale and, if requested, the SAI within three business days of
receipt of request, and you agree thereafter to deliver to such investors copies
of the annual and interim reports and proxy solicitation materials of the Funds.
You further agree to endeavor to
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obtain proxies from such purchasers. Additional copies of Prospectuses and SAIs,
annual or interim reports and proxy solicitation materials of the Funds will be
supplied to you in reasonable quantities upon request.
12. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Shares entirely or to certain persons or
entities in a class or classes specified by us. Each party hereto has the right
to cancel this agreement upon notice to the other party. Cancellation will not
affect any outstanding order or transaction, any provision of this Agreement
intended to survive cancellation, or any legal right or obligations which may
have arisen prior to cancellation. This Agreement may not be amended or modified
in any respect, nor may any provision be waived, without the written agreement
of both parties.
13. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the continuous offering. We
shall be under no liability to you or to your customers except for lack of good
faith and for obligations expressly assumed by us herein. Nothing contained in
this paragraph is intended to operate as, and the provisions of this paragraph
shall not in any way whatsoever constitute, a waiver by you of compliance with
any provision of the Securities Act, or of the rules and regulations of the
Securities and Exchange Commission issued thereunder.
14. You represent that you are a member of the NASD and, with respect to
any sales in the United States, we both hereby agree to comply with the Conduct
Rules of such Association, including Rule 2830, and to comply with the
applicable Federal and State securities laws. You agree to notify us immediately
if you cease to be registered or licensed as a broker or dealer, or fail to be a
member in good standing of the NASD. You agree to promptly advise the
Distributor if you receive notice of any investor complaint, litigation
initiated or threatened, or communication by a regulatory authority which
relates to a Fund or to a transaction in Shares by you, and you agree to provide
us information and documentation thereon as we may request.
15. Upon application to us, we will inform you as to the States in which
we believe notifications of the intention to sell Shares have been duly filed or
where no such notification is required, but we assume no responsibility or
obligation as to your right to sell Shares in any jurisdiction. We will file
with the Department of State in New York a Further State Notice with respect to
the Shares, if necessary. Shares may only be offered or sold to U.S. persons in
States where notifications regarding the Shares have been duly filed or where no
such notifications are required.
16. All communications to us should be sent to the address below. Any
notice to you shall be duly given if mailed or telegraphed to you at the address
specified by you below.
17. Your first order placed pursuant to this Agreement for the purchase
of Shares will represent your acceptance of this Agreement.
18. This Agreement supersedes any prior Selected Dealer Agreement
entered into by the parties hereto with respect to Shares.
19. This Agreement shall be governed by the laws of the State of New
York without reference to conflicts of law principles. If a dispute arises
between us and you with respect to this Agreement that we are unable to resolve
ourselves, it shall be settled by arbitration in accordance with the then
existing NASD Code of Arbitration Procedure. We agree that, to the extent
permitted by such Code, the arbitrator(s) shall be selected from the securities
industry.
[SIGNATURES FOLLOW]
-3-
19
IN WITNESS WHEREOF, the parties have executed this Selected Dealer Agreement
effective as of the date written below.
FAM DISTRIBUTORS, INC.
By:
-----------------------------------------
Title:
--------------------------------------
Accepted:
-----------------------------
(authorized signature)
Firm Name:
----------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
Address:
------------------------------------
Date:
---------------------------------------
Please return one signed original of this agreement by US Mail and a copy by fax
to:
FAM DISTRIBUTORS, INC.
000 Xxxxxxxx Xxxx Xxxx, 0X
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Fax: 609/000-0000
-4-
20
SCHEDULE A
With respect to the following Schedule, information about reduced sales charges
pursuant to Right of Accumulation or Letter of Intent is set forth in the
applicable Prospectus and SAI. You shall advise us promptly at our request as to
amounts of any sales made by you to eligible investors qualifying for reduced
sales charges.
Rule 12b-1 trail payments are pursuant to plans adopted pursuant to Rule 12b-1
under the Investment Company Act and are paid to the extent you provide services
under the terms of the Plan in connection with the sale of shares or the
maintenance of the accounts of your customers. Rule 12b-1 payments are accrued
daily and paid monthly, at the annual rate shown of average daily net assets
outstanding sold by you. We shall not owe any such fees to you unless and until
we receive payment under the applicable Rule 12b-1 plan.
21
SCHEDULE A
XXXXXXX XXXXX FUNDS SELECTED DEALER COMPENSATION
--------------------------------------------------------------------------------------------------------------------------------
MAXIMUM
FUND UPFRONT COMPENSATION 12b-1 TRAIL PAYMENTS
-------------------------------------------------------------------------------------------- ----------------------------------
CLASS A(1) CLASS B CLASS C CLASS D(1) CLASS B(2) CLASS C(2) CLASS D
------- ------- ------- ---------- ---------- ---------- --------
-------------------------------------------------------------------------------------------- ----------------------------------
EQUITY:
-------
ML Basic Value Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Capital Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Convertible Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Developing Capital Markets Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Disciplined Equity Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Dragon Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML EuroFund 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Fundamental Growth Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Global Allocation Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Global Financial Services Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Global Growth Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Global Resources Trust 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Global SmallCap Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Global Technology Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Global Value Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Growth Fund 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Healthcare Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML International Equity Fund 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Latin America Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Mid Cap Value Fund 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Pacific Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Phoenix Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Real Estate Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Special Value Fund, Inc. 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML Strategic Dividend Fund 5.00% 4.00% 1.00% 5.00% 0.25% 1.00% 0.25%
ML International Index Fund 0% N/A N/A 0% N/A N/A 0.25%
ML S & P 500 Index Fund 0% X/X X/X 0% X/X X/X 0.25%
ML Small Cap Index Fund 0% X/X X/X 0% X/X X/X 0.25%
FIXED INCOME:
-------------
ML Adjustable Rate Securities Fund, Inc. 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML Americas Income Fund, Inc. 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML Corporate Bond - High Income, Inc. 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML Corporate Bond - Investment Grade, Inc. 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML Global Bond Fund for Invest & Retire 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML Global Utility Fund, Inc. 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML Municipal Bond - Insured, Inc. 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML Municipal Bond - National, Inc. 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML Short-Term Global Income Fund, Inc. 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML U.S. High Yield Fund, Inc. 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML U.S. Government Mortgage Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML World Income Fund, Inc. 3.75% 4.00% 1.00% 3.75% 0.25% 0.80% 0.25%
ML Arizona Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Arkansas Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML California Insured Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML California Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Colorado Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Connecticut Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Florida Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Low Duration Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Maryland Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Massachusetts Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Michigan Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Minnesota Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML North Carolina Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML New Jersey Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML New Mexico Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML New York Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Ohio Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Oregon Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Pennsylvania Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Texas Municipal Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Total Return Bond Fund 3.75% 4.00% 1.00% 3.75% 0.25% 0.60% 0.10%
ML Aggregate Bond Index Fund 0% X/X X/X 0% X/X X/X 0.25%
INTERMEDIATE/LIMITED MATURITY:(3)
---------------------------------
ML California Ltd. Maturity Muni Bond Fund 0.95% 1.00% N/A 0.95% 0.15% 0.15% 0.10%
ML Florida Ltd. Maturity Muni Bond Fund 0.95% 1.00% N/A 0.95% 0.15% 0.15% 0.10%
ML Municipal Bond - Ltd. Maturity Fund, Inc. 0.95% 1.00% N/A 0.95% 0.15% 0.15% 0.10%
ML Corporate Bond - Intermediate, Inc. 0.95% 1.00% N/A 0.95% 0.25% 0.25% 0.10%
ML Intermediate Government Bond Fund 0.95% 1.00% N/A 0.95% 0.25% 0.25% 0.10%
ML Municipal Intermediate Term Fund 0.95% 1.00% N/A 0.95% 0.20% 0.20% 0.10%
MONEY MARKET:
-------------
Summit Cash Reserves Fund 0% X/X X/X X/X X/X X/X X/X
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--------------------------------------------------------------------------------------------------------------------------------
FUND MAXIMUM
UPFRONT COMPENSATION 12B-1 TRAIL PAYMENTS(2)
--------------------------------------------------------------------------------------------------------------------------------
CONTINUOUSLY OFFERED CLOSED-END FUNDS:
--------------------------------------
ML High Income Municipal Bond Fund, Inc. 3.00% 0.25%
ML Municipal Strategy Fund, Inc. 3.00% 0.25%
ML Senior Floating Rate Fund, Inc. 3.00% 0.25%
ML Senior Floating Rate Fund II, Inc. 1.00% 0.75%
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22
SCHEDULE A
XXXXXXX XXXXX FUNDS SELECTED DEALER COMPENSATION
------------------------------------
Notes:
(1) Class A and Class D Front Load:
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EQUITY FIXED INCOME
-----------------------------------------------------------------------------------------------------------------------------------
SALES DEALER SALES DEALER
CHARGE COMPENSATION CDSC* CHARGE COMPENSATION CDSC*
Less than $25,000 5.25% 5.00% Less than $25,000 4.00% 3.75%
25,000 but less than 50,000 4.75 4.50 25,000 but less than 50,000 3.75 3.50
50,000 but less than 100,000 4.00 3.75 50,000 but less than 100,000 3.25 3.00
100,000 but less than 250,000 3.00 2.75 100,000 but less than 250,000 2.50 2.25
250,000 but less than 1,000,000 2.00 1.80 250,000 but less than 1,000,000 1.50 1.25
1,000,000 and greater NAV ** 1.00% 1,000,000 and greater NAV ** 1.00%
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*If redeemed within one year.
**1.00% on amounts over $1,000,000 - $2,000,000
0.80% on amounts over $2,000,000 - $3,000,000
0.50% on amounts over $3,000,000 - $50,000,000
0.25% on amounts over $50,000,000 - $100,000,000
0.15% on amounts over $100,000,000
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--------------------------------------------------------------------------------
INTERMEDIATE/LIMITED MATURITY FUNDS
--------------------------------------------------------------------------------
SALES CHARGE DEALER CDSC*
COMPENSATION
Less than $100,000 1.00% 0.95%
100,000 but less than 250,000 0.75 0.70
250,000 but less than 500,000 0.50 0.45
500,000 but less than 1,000,000 0.30 0.27
1,000,000 and greater NAV 0.20 0.20%
*If redeemed within one year.
--------------------------------------------------------------------------------
(2) 12b-1 trail payments for Class B, Class C and the Continuously Offered
Closed-End Funds begin in the 13th month.
(3) Class C of the Intermediate/Limited Maturity Funds is available for
exchanges only.
