EXHIBIT 23(E)(2)
SELECTED SPECIAL SHARES, INC.
DISTRIBUTION SERVICES AGREEMENTAND PLAN OF DISTRIBUTION
AGREEMENT made as of January 1, 2001, by and between SELECTED SPECIAL SHARES,
INC., a Maryland corporation (the "Fund"), and XXXXX DISTRIBUTORS, LLC, a
Delaware limited liability company (the "Underwriter").
In consideration of the mutual covenants hereinafter contained, it is hereby
agreed by and between the parties hereto as follows:
1. The Fund hereby appoints Underwriter to distribute shares of the Fund
(hereinafter called "shares") in jurisdictions wherein shares of the Fund
may legally be offered for sale; provided, however, that the Fund in its
absolute discretion may (a) issue or sell shares directly to holders of
shares of the Fund upon such terms and conditions and for such
consideration, if any, as it may determine, whether in connection with the
distribution of subscription or purchase rights, the payment or
reinvestment of dividends or distributions, or otherwise; (b) issue or sell
shares at net asset value to the shareholders of any other investment
company for which Underwriter shall act as exclusive distributor who wish
to exchange all or a portion of their investment in shares of such other
investment company for shares of the Fund; or (c) issue or sell shares at
net asset value in connection with the acquisition of part or all of the
assets or equity of any other business entity or as a party to a
reorganization, merger or consolidation.
Underwriter accepts such appointment hereunder and agrees during the term
hereof to render the services and to assume the obligation herein set forth
for the compensation herein provided. Underwriter will use its best efforts
with reasonable promptness to sell such part of the authorized shares of
the Fund remaining unissued as from time to time shall be effectively
registered under the Securities Act of 1933 ("Securities Act") at prices
determined as hereinafter provided and on terms hereinafter set forth, all
subject to applicable Federal and state laws and regulations and to the
Articles of Incorporation of the Fund. The price the Fund shall receive for
all shares purchased from the Fund shall be the net asset value used in
determining the public offering price applicable to the sale of such
shares.
Underwriter shall provide such office space and equipment, telephone
facilities, personnel, literature, distribution, advertising and promotion
as it deems necessary or beneficial for
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distributing shares of the Fund. Underwriter may provide some or all of
these services for the Fund directly and may appoint various broker-dealers
and other financial services firms ("Firms") to provide such services for
existing and potential clients of the Firms.
This Agreement applies to the single currently authorized class of shares
of the Fund. Should the Fund establish any additional class of shares
subsequent to the date hereof for which the Fund wishes to appoint
Underwriter to arrange for the sale of the shares of such class under the
terms of this Agreement, the Fund shall provide Underwriter with written
notice to such effect. If Underwriter is willing to serve in such capacity,
it shall provide the Fund with a written notice to such effect, whereupon
the shares of such class, together with the shares of any currently
authorized class of shares referred to above, shall be included in the term
"shares hereunder" and the term "Fund" shall refer to each such class of
shares.
Underwriter shall for all purposes herein provided be deemed to be an
independent contractor and, unless otherwise expressly provided or
authorized hereunder, shall have no authority to act for or represent the
Fund in any way or otherwise be deemed an agent of the Fund. The services
of Underwriter to the Fund under this Agreement are not to be deemed
exclusive, and Underwriter shall be free to render similar services or
other services to others.
In carrying out its duties and responsibilities hereunder, Underwriter may,
pursuant to separate selling group agreements, appoint various Firms to
provide distribution services contemplated hereunder directly to or for the
benefit of existing and potential shareholders who may be clients of such
Firms. Underwriter, and not the Fund, will be responsible for the payment
of compensation to such Firms for such services.
2. Underwriter may sell shares of the Fund directly to investors. In addition,
Underwriter may sell shares of the Fund to or through qualified Firms in
such manner not inconsistent with the provisions hereof and the then
effective registration statement of the Fund under the Securities Act
(including the related prospectus and statement of additional information,
collectively referred to hereinafter as the "registration statement"), as
Underwriter may determine from time to time, provided that no Firm or other
person shall be appointed or authorized to act as agent of the Fund without
the prior consent of the Fund.
Shares of the Fund offered for sale or sold by Underwriter shall be offered
or sold at a price per share determined in accordance with the then current
prospectus relating to the sale of such shares except as departure from
such prices shall be permitted by the rules and regulations of the
Securities and Exchange Commission; provided, however, the public offering
price for shares of the Fund shall be the net asset value per share. The
net asset
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value per share of the Fund shall be determined in the manner and at the
times set forth in the then current prospectus of the Fund relating to such
shares.
Underwriter will conform and will require each Firm to conform to the
provisions hereof and the registration statement at the time in effect
under the Securities Act with respect to the public offering price, manner
of sale and payment terms of the Fund's shares, and neither Underwriter nor
any such Firms shall withhold the placing of purchase orders so as to make
a profit thereby.
3. The Fund will use its best efforts to keep effectively registered under the
Securities Act for sale as herein contemplated such shares as Underwriter
shall reasonably request and as the Securities and Exchange Commission
shall permit to be so registered. Notwithstanding any other provision
hereof, the Fund may terminate, suspend or withdraw the offering of shares
whenever, in its sole discretion, it deems such action to be desirable.
4. The Fund will execute any and all documents and furnish any and all
information that may be reasonably necessary in connection with the
qualification of its shares for sale (including the qualification of the
Fund as a dealer where necessary or advisable) in such states or other
jurisdictions as Underwriter may reasonably request (it being understood
that the Fund shall not be required without its consent to comply with any
requirement that in its opinion is unduly burdensome). The Fund will
furnish to Underwriter from time to time such information with respect to
the Fund and its shares as the Underwriter may reasonably request for use
in connection with the sale of shares of the Fund.
5. Underwriter shall issue and deliver or shall arrange for various Firms to
issue and deliver on behalf of the Fund such confirmations of sales made by
it as agent pursuant to this Agreement as may be required. At or prior to
the time of issuance of shares, Underwriter will pay or cause to be paid to
the Fund the amount due the Fund for the sale of such shares. Certificates
shall be issued for shares or registered on the transfer books of the Fund
in such names and denominations as Underwriter may specify.
6. Underwriter shall order shares of the Fund from the Fund only to the extent
that it shall have received purchase orders therefor. Underwriter will not
make or authorize any Firms or others to make any short sales of shares of
the Fund. Underwriter, as agent of and for the account of the Fund, may
repurchase the shares of the Fund at such prices and upon such terms and
conditions as shall be specified in the current prospectus of the Fund. In
selling or reacquiring shares of the Fund for the account of the Fund,
Underwriter will in all respects conform to the requirements of all state
and Federal laws and the Rules of Fair Practice of the National Association
of Securities Dealers, Inc., relating to such sale or
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reacquisition, as the case may be, and will indemnify and hold harmless the
Fund from any damage or expense on account of any wrongful act by
Underwriter or any employee, representative or agent of Underwriter.
Underwriter will observe and be bound by all the provisions of the Articles
of Incorporation of the Fund (and of any fundamental policies adopted by
the Fund pursuant to the Investment Company Act of 1940, notice of which
shall have been given to Underwriter) that at the time in any way require,
limit, restrict or prohibit or otherwise regulate any action on the part of
Underwriter.
7. The Fund shall assume and pay all charges and expenses of its operations
not specifically assumed or otherwise to be provided by Underwriter under
this Agreement. The Fund will pay or cause to be paid expenses (including
the fees and disbursements of its own counsel) and all taxes and fees
payable to the Federal, state or other governmental agencies on account of
the registration or qualification of securities issued by the Fund or
otherwise. The Fund will also pay or cause to he paid expenses incident to
the issuance of shares of beneficial interest, such as the cost of share
certificates, issue taxes, and fees of the transfer agent. Underwriter will
pay all expenses (other than expenses that one or more Firms may bear
pursuant to any agreement with Underwriter) incident to the sale and
distribution of the shares issued or sold hereunder including, without
limiting the generality of the foregoing, all expenses of printing and
distributing any prospectus and of preparing, printing and distributing or
disseminating any other literature, advertising and selling aids in
connection with the offering of the shares for sale (except that such
expenses shall not include expenses incurred by the Fund in connection with
the preparation, typesetting, printing and distribution of any registration
statement, prospectus or report or other communication to shareholders in
their capacity as such), expenses of advertising in connection with such
offering, compensation to Firms referred to in Section 1 hereof and sales
compensation to Underwriter's registered representatives.
8. For the services and facilities described herein, the Fund will pay to
Underwriter at the end of each calendar month a distribution services fee
computed at an annual rate of 0.25% of the average daily net assets of the
Fund. For the month and year in which this Agreement becomes effective or
terminates, there shall be an appropriate proration on the basis of the
number of days that the Agreement is in effect during the month and year,
respectively.
9. This Agreement incorporates the plan of the Fund pursuant to Rule 12b-1
under the Investment Company Act of 1940 and such plan shall be continued,
amended and terminated in accordance with the Rule.
10. Underwriter is authorized under the Plan of Distribution to utilize monies
from any source whatsoever to finance its activities hereunder. To the
extent any management fees paid by
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the Fund may be considered to be indirectly financing any activity or
expense that is primarily intended to result in the sale of shares within
the meaning of Rule 12b-1, the payment of such fees is authorized.
11. At least quarterly, Underwriter shall prepare reports for the Board of
Directors of the Fund showing amounts expended by Underwriter hereunder and
the purposes therefor and such other information as from time to time shall
be reasonably requested by the Board of Directors.
12. This Agreement shall become effective on the date hereof and shall continue
in effect through January 1, 2002 and shall continue thereafter so long as
such continuance is specifically approved at least annually by a vote of
the Board of Directors of the Fund including the directors who are not
interested persons of the Fund and who have no direct or indirect financial
interest in this Agreement or in any agreement related to this Agreement.
To the extent this Agreement incorporates the Rule 12b-1 Distribution Plan,
this Agreement may not be amended to increase the amount to be paid to
Underwriter for services hereunder without the vote of a majority of the
outstanding voting securities of the Fund and all material amendments must
in any event be approved by a vote of the Board of Directors of the Fund
including the directors who are not interested persons of the Fund and who
have no direct or indirect financial interest in this Agreement or in any
agreement related to this Agreement, cast in person at a meeting called for
such purpose.
This Agreement shall automatically terminate in the event of its assignment
and may be terminated at any time without the payment of any penalty by the
Fund or by Underwriter on sixty (60) days' written notice to the other
party. The Fund may effect termination with respect to any Fund by a vote
of (i) a majority of the Board of Directors, (ii) a majority of the
directors who are not interested persons of the Fund and who have no direct
or indirect financial interest in this Agreement or in any agreement
related to this Agreement, or (iii) a majority of the outstanding voting
securities of the Fund. Notwithstanding the foregoing, termination of this
Agreement shall not terminate the Distribution Plan incorporated herein
(including authorized payment of fees to an underwriter) unless the Board
of Directors shall have determined that such plan is terminated.
The terms "assignment," "interested persons" and "vote of a majority of the
outstanding voting securities" shall have the meanings set forth in the
Investment Company Act of 1940 and the rules and regulations thereunder.
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Upon termination (including non-continuance) of this Agreement, the
obligation of the Fund to make payments to the Underwriter shall cease,
except that such termination shall not affect the right of Underwriter to
receive payments on any unpaid balance of the compensation described in
Section 8 earned prior to such termination.
13. Underwriter will not use or distribute or authorize the use, distribution
or dissemination by Firms or others in connection with the sale of shares,
any statements, other than those contained in the Fund's current
prospectus, except such supplemental literature or advertising as shall be
lawful under Federal and state securities laws and regulations, and will
furnish the Fund with copies of all such material.
14. If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder shall not be thereby
affected.
15. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as
such other party may designate for the receipt of such notice.
16. The Underwriter acknowledges that the use of the term "Selected" in its
name is with the acquiescence of the Fund and is subject to revocation at
any time by the Board of Directors or by a majority of the directors who
are not interested persons of the Fund.
17. This Agreement shall be construed in accordance with applicable Federal law
and the laws of the State of New Mexico.
IN WITNESS WHEREOF, the Fund and Underwriter have caused this Agreement to be
executed as of the day and year first above written.
SELECTED SPECIAL SHARES, INC.
By:
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Xxxxxx Xxxx, Vice President
XXXXX DISTRIBUTORS, LLC
By:
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Xxxxxx Xxxx, Vice President
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