-1-
FINANCIAL INSTITUTION
SALES CONTRACT
Between:
and
XXXXXX MUTUAL FUNDS CORP.
General Distributor of
The Xxxxxx Family of Mutual Funds
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
As general distributor of The Xxxxxx Family of Mutual Funds (the
"Funds"), we agree that you will make available to your customers,
under
an agency relationship with your customers, shares of beneficial
interest issued by the Funds (the "Shares"), subject to any
limitations
imposed by any of the Funds and to confirmation by us of each
transaction. By your acceptance hereof, you agree to all of the
following terms and conditions:
1. OFFERING PRICES AND FEES
The public offering price at which you may make the Shares
available to your customers is the net asset value thereof, as computed from
time to time, plus any applicable sales charge described in the then-
current Prospectus of the applicable Fund. In the case of purchases by
you, as agent for your customers, of Shares sold with a sales charge, you
shall receive an agency commission consisting of a portion of the public
offering price, determined on the same basis as the "dealer
discount" described in the then-current Prospectus of the Fund, and such
other compensation to dealers as may be described therein, which shall
be payable to you at the same time and on the same basis as the same
is paid to such dealers, consistent with applicable law, rules and
regulations. In determining the amount of any agency commission
payable to you hereunder, we reserve the right to exclude any purchases
for any accounts which we reasonably determine are not made in accordance
with the terms of the applicable Fund Prospectus and the provisions of
this Contract. We reserve the right to revise the agency commission
referred to herein upon ten days' written notice to you. We will furnish
you upon request with the public offering prices for the Shares, and
you agree to quote such prices in connection with any Shares made
available by you as agent for your customers. Your attention is
specifically called to the fact that each purchase of Shares by your customers
is always made subject to confirmation by us at the public offering
price next computed after receipt of the order. There is no sales
charge or agency commission to you on the reinvestment of dividends and
distributions.
2. MANNER OF MAKING SHARES AVAILABLE FOR PURCHASE
We will, upon request, deliver to you a copy of each Fund's
then current Prospectus and will provide you with such number of copies of each
Fund's then-current Prospectus, Statement of Additional
Information and shareholder reports and of supplementary sales materials
prepared by us, as you may reasonably request. It shall be your obligation to
ensure that all such information and materials are distributed to your
customers who own Shares, in accordance with securities and/or
banking law and regulations and any other applicable regulations. Neither
you nor any other person is authorized to give any information or to
make any representations other than those contained in such
Prospectuses, Statements of Additional Information and shareholder reports or in
such supplementary sales materials. You shall not furnish or cause to
be furnished to any person, display or publish any information or materials
relating to any Fund (including, without limitation, promotional materials
and sales literature, advertisements, press releases, announcements,
statements, posters, signs or other similar material), except such
information and materials as may be furnished to you by us or the
Fund, and such other information and materials as may be approved in
writing by us.
You hereby agree:
(i) to not purchase any Shares as agent for any customer,
unless you deliver or cause to be delivered to such customer,
at or prior to the time of such purchase, a copy of the then-
current Prospectus of the applicable Fund unless such customer has
acknowledged receipt of the Prospectus of such Fund. You
hereby represent that you understand your obligation to deliver a
prospectus to customers who purchase Shares pursuant to
federal securities laws and you have taken all necessary steps to
comply with such prospectus delivery requirements;
(ii) to transmit to us promptly upon receipt any and all
orders received by you, it being understood that no
conditional orders will be accepted;
(iii) to obtain from each customer for whom you act as agent for
the purchase of Shares any taxpayer identification number
certification and backup withholding information required
under the Internal Revenue Code of 1986, as amended from time to time
(the "Code"), and the regulations promulgated thereunder, or other
sections of the Code which may become applicable, and to
provide us or our designee with timely written notice of any failure to
obtain such taxpayer identification number certification or
information in order to enable the implementation of any required backup
withholding in accordance with the Code and the regulations
thereunder; and
(iv) to pay to us the offering price, less any agency
commission to which you are entitled, within three (3) business days of our
confirmation of your customer's order, or such shorter time
as may be required by law. You may, subject to our approval, remit
the total public offering price to us, and we will return to you
your agency commission. If such payment is not received within
said time period, we reserve the right, without prior notice, to
cancel the sale, or at our option to return the Shares to the issuer
for redemption or repurchase. In the latter case, we shall have
the right to hold you responsible for any loss resulting to us.
Should payment be made by local bank check, liquidation of Shares
may be delayed pending clearance of your check.
Unless otherwise mutually agreed in writing or except as provided
below, each transaction placed by you shall be promptly confirmed by us
in writing to you, and shall be confirmed to the customer promptly
upon receipt by us of instructions from you as to such customer. In
the case of a purchase order by customer's application, each transaction
shall be promptly confirmed in writing directly to the customer and a copy
of each confirmation shall be sent simultaneously to you. We reserve
the right, at our discretion and without notice, to suspend the sale
of Shares or withdraw entirely the sale of Shares of any or all of
the Funds. All orders are subject to acceptance or rejection by us in
our sole discretion, and by the Funds in their sole discretion. The
procedure stated herein relating to the pricing
and handling of orders shall be subject to instructions which we
may forward to you from time to time.
3. COMPLIANCE WITH LAW
You hereby represent that you are either (1) a "bank" as defined
in Section 3(a)(6) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and at the time of each transaction in shares of
the Funds, are not required to register as a brokerdealer under the
Exchange Act or regulations thereunder; or (2) registered as a broker-
dealer under the Exchange Act, a member in good standing of the National
Association of Securities Dealers, Inc. ("NASD") and affiliated
with a bank.
(a) If you are a bank, not required to register as a brokerdealer
under the Exchange Act: You further represent and warrant to us that
with respect to any sales in the United States, you will use your best
efforts to ensure that any purchase of Shares by your customers
constitutes a suitable investment for such customers. You shall
not effect any transaction in, or induce any purchase or sale of, any
Shares by means of any manipulative, deceptive or other fraudulent device
or contrivance, and shall otherwise deal equitably and fairly with
your customers with respect to transactions in Shares of a Fund.
(b) If you are a NASD member broker-dealer affiliated with a bank
and registered under the Exchange Act: You further represent and
warrant to us that with respect to any sales in the United States, you agree
to abide by all of the applicable laws, rules and regulations
including applicable provisions of the Securities Act of 1933, as amended,
and the applicable rules and regulations of the NASD, including, without
limitation, its Rules of Fair Practice, and the applicable rules
and regulations of any jurisdiction in which you make Shares available
for sale to your customers. You agree not to make available for sale
to your customers the Shares in any jurisdiction in which the Shares
are not qualified for sale or in which you are not qualified as a
broker-dealer. We shall have no obligation or responsibility as to your
right to make Shares of any Funds available to your customers in any
jurisdiction. You agree to notify us immediately in the event of
(i)your expulsion or suspension from the NASD or your becoming
subject to any enforcement action by the Securities and Exchange Commission,
NASD, or any other selfregulatory organization, or (ii) your violation
of any applicable federal or state law, rule or regulation including, but
not limited to, those of the SEC, NASD or other self-regulatory
organization, arising out of or in connection with this Agreement,
or which may otherwise affect in any material way your ability to act
in accordance with the terms of this Contract.
You shall not make Shares of any Fund available to your customers,
including your fiduciary customers, except in compliance with all
federal and state laws and rules and regulations of regulatory
agencies or authorities applicable to you, or any of your affiliates
engaging in such activity, which may affect your business practices. You
confirm that you are not in violation of any banking law or regulations as
to which you are subject.
4. RELATIONSHIP WITH CUSTOMER
With respect to any and all transactions in the Shares of any Fund
pursuant to this Contract, it is understood and agreed in each
case that: (a) you shall be acting solely as agent for the account of
your customer; (b) each transaction shall be initiated solely upon the
order of your customer; (c) we shall execute
transactions only upon receiving instructions from you acting as
agent for your customer or upon receiving instructions directly from
your customer; (d) as between you and your customer, your customer will
have full beneficial ownership of all Shares; (e) each transaction
shall be for the account of your customer and not for your account; and (f)
unless otherwise agreed in writing we will serve as a clearing
broker for you on a fully disclosed basis, and you shall serve as the
introducing agent for your customers' accounts. Subject to the
foregoing, however, and except for Shares sold subject to a
contingent deferred sales charge, you may maintain record ownership of such
customers' Shares in an account registered in your name or the
name of your nominee, for the benefit of such customers. With respect to
Shares sold subject to a contingent deferred sales charge, you agree not
to hold shares of such Funds in an account registered in your name or
in the name of your nominee for the benefit of certain of your
customers.
You understand that such Shares must be held in a separate account
for each shareholder of such Funds. Each transaction shall be without
recourse to you provided that you act in accordance with the terms
of this Agreement. You represent and warrant to us that you will
have full right, power and authority to effect transactions (including,
without limitation, any purchases and redemptions) in Shares on behalf of
all customer accounts provided by you.
5. RELATIONSHIP WITH FINANCIAL INSTITUTION
Neither this Contract nor the performance of the services of the
respective parties hereunder shall be considered to constitute an
exclusive arrangement, or to create a partnership, association or
joint venture between you and us. In making available Shares of the
Funds under this Contract, nothing herein shall be construed to
constitute you or any of your agents, employees or representatives as our agent
or employee, or as an agent or employee of the Funds, and you shall
not make any representations to the contrary. As general distributor
of the Funds, we shall have full authority to take such action as we may
deem advisable in respect of all matters pertaining to the distribution
of the Shares. We shall not be under any obligation to you, except
for obligations expressly assumed by us in this Contract.
6. TERMINATION
Either party hereto may terminate this Contract, without cause,
upon ten days' written notice to the other party. We may terminate this
Contract for cause upon the violation by you of any of the provisions
hereof, such termination to become effective on the date such notice of
termination is mailed to you. If you are registered as a broker-
dealer and affiliated with a bank, this Contract shall terminate
automatically if either Party ceases to be a member of the NASD.
7. ASSIGNABILITY
This Contract is not assignable or transferable, except that we
may assign or transfer this Contract to any successor which becomes
general distributor of the Funds.
8. MISCELLANEOUS
(a) All communications mailed to us should be sent to the above
address. Any notice to you shall be duly given if mailed or
delivered to you at the address specified by you below.
(b) This Contract constitutes the entire agreement and
understanding between the parties and supercedes any and all
prior agreements between the parties.
(c) This Contract and the rights and obligations of the parties
hereunder shall be governed by and construed under the laws of The
Commonwealth of Massachusetts.
Very truly yours,
XXXXXX MUTUAL FUNDS CORP.
By: -----------------------------
Xxxxxxx X. Xxxxxxxx, President
and Chief Executive Officer
We accept and agree to the foregoing Contract as of the date
set forth below.
Financial Institution: ---------------------------
By: ----------------------------
Authorized Signature, Title
----------------------------
----------------------------
Address
Dated: ----------------------------
Please return the signed Xxxxxx copy of this sales Contract to
Xxxxxx Mutual Funds Corp., P. O. Box 41203,
Providence, RI 029401203
