SALES AGREEMENT WITH X.X. XXXXXXX AND COMPANY
This Agreement is entered into between the financial institution executing
this Agreement ("Financial Institution") and X.X. Xxxxxxx and Company ("BCZ")
with respect to the Xxxxx Funds(TM) (the "Trust"), which may be offered in one
or more series (the "Funds") and classes (the "Classes") of shares ("Shares"),
for which BCZ serves as Distributor of shares of beneficial interest or capital
stock. The Trusts or Classes to which this Agreement applies are any current and
future Trusts or Classes issued by the Trust.
1. Status of Financial Institution as "Bank" or Registered Broker-Dealer.
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The Financial Institution represents and warrants to BCZ that:
(a) It is either a "bank" as that term is defined in Section 3(a)(6)
of the Securities Exchange Act of 1934 ("Exchange Act") or a
broker-dealer registered with the Securities and Exchange
Commission.
(b) If the Financial Institution is a "bank", it is a duly organized
and validly existing bank in good standing under the laws of the
jurisdiction in which it is organized. The Financial Institution
agrees to give written notice to BCZ promptly in the event that
it shall cease to be a ""bank""as defined in Section(a)(6) of the
Exchange Act. In that event, this Agreement shall be
automatically terminated upon such written notice.
(c) If the Financial Institution is a registered broker-dealer, it is
a member of the NASD and it agrees to abide by all of the rules
and regulations of the NASD including, without limitation, the
NASD Rules of Fair Practice. The Financial Institution agrees to
notify BCZ immediately in the event of (1) its expulsion or
suspension from the NASD, or (2) its being found to have violated
any applicable federal or state law, rule or regulation arising
out of its activities as a broker-dealer or in connection with
this Agreement, or which may otherwise affect in any material way
its ability to act in accordance with the terms of this
Agreement. The Financial Institution's expulsion from the NASD
will automatically terminate this Agreement immediately without
notice. Suspension of the Financial Institution from the NASD for
violation of any applicable federal or state law, rule or
regulation will terminate this Agreement effective immediately
upon NASD's written notice of termination to the Financial
Institution.
2. Financial Institution Act as Agent for its Customers.
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The parties agree that in each transaction in the Shares of the Trust: (a)
the Financial Institution is acting as agent for the customer; (b) each
transaction is initiated solely upon the order of the customer; (c) as between
the Financial Institution and its customer, the customer will have full
beneficial ownership of all Shares of the Trust to which this Agreement applies;
(d) each transaction shall be for the account of the customer and not for the
Financial Institution's account; and (e) each transaction shall be without
recourse to the Financial Institution provided that the Financial Institution
acts in accordance with the terms of this Agreement. The financial Institution
shall not have any authority in any transaction to act as BCZ's agent or as
agent for the Trust.
3. Execution of Orders for Purchase and Redemption of Shares.
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(a) All orders for the purchase of any Shares shall be executed at
the then current public offering price per share (i.e., the net
asset value per share plus the applicable sales load, if any) and
all orders for the redemption of any Share shall be executed at
the net asset value per share, plus any applicable contingent
deferred sales charge or redemption charge, in each case as
described in the prospectus of the Trust or Class. BCZ and the
Trust reserve the right to reject any purchase request at their
sole discretion. If required by law, each transaction shall be
confirmed in writing on a fully disclosed basis and, if confirmed
by BCZ, a copy of each confirmation shall be sent simultaneously
to the Financial Institution if the Financial Institution so
requests.
(b) The procedures relating to all orders and the handling of them
will be subject to the terms of the prospectus of each Trust or
Class and BCZ's written instructions to the Financial Institution
from time to time.
(c) Payments for Shares shall be made as specified in the applicable
Trust or Class prospectus. If payment for any purchase order is
not received in accordance with the terms of the applicable Trust
or Class prospectus, BCZ reserves the right without notice, to
cancel the sale and to hold the Financial Institution responsible
for any loss sustained as a result thereof.
(d) The Financial Institution agrees to provide such security as is
necessary to prevent any unauthorized use of the Fund's
recordkeeping system, accessed via any computer hardware or
software provided to the Financial Institution by BCZ.
4. Fees Payable to the Financial Institution from Sales Loads.
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(a) On each order accepted by BCZ, in exchange for the performance of
sales and/or administrative services, the Financial Institution
will be entitled to receive from the amount paid by the Financial
Institution's customer the applicable percentage of the sales
load, if any, as established by BCZ. The sales loads for any
Trust or Class shall be those set forth in its prospectus. The
portion of the sales load payable to the Financial Institution
may be changed at any time at BCZ's sole discretion upon thirty
(30) days' written notice to the Financial Institution and the
Trust.
(b) Transactions may be settled by the Financial Institution: (1) by
payment of the full purchase price to BCZ less an amount equal to
the Financial Institution's applicable percentage of the sales
load, or (2) by payment of the full purchase price to BCZ, in
which case BCZ shall pay to the Financial Institution, not less
frequently than monthly, the aggregate fees due it on orders
received and settled.
5. Payment of Rule 12b-1 Fees to the Financial Institution.
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Subject to and in accordance with the terms of each Trust or Class
prospectus and the Rule 12b-1 Plan, if any, duly adopted, by any Fund or Class
pursuant to Rule 12b-1 under the Investment Company Act of 1940, BCZ may notify
the investment advisor to the Fund to pay fees for sales and/or distribution
services to certain financial institutions (such as banks and securities
dealers).
6. Delivery of Prospectuses to Customers.
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The Financial Institution will deliver or cause to be delivered to each
customer, at or prior to the time of any purchase of Shares, a copy of the
prospectus of the Trust or Class. The Financial Institution shall not make any
representations concerning any Shares other than those contained in the
prospectus of the Trust or Class or in any promotional materials or sales
literature furnished to the financial Institution by BCZ or the Trust or Class.
7. Indemnification
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(a) The Financial Institution shall indemnify and hold harmless BCZ,
the Trust, the transfer agents of the Trust, and their respective
subsidiaries, affiliates,
officers, directors, agents and employees from all direct or
indirect liabilities, losses or costs (including attorneys fees)
arising from, related to or otherwise connected with: (1) any
breach by the Financial Institution of any provision of this
Agreement; or (2) any actions or omissions of BCZ, the Trust, the
transfer agents of the Trust, and their subsidiaries, affiliates,
officers, directors, agents and employees in reliance upon any
oral, written or computer or electronically transmitted
instructions believed to be genuine and to have been given by or
on behalf of the Financial Institution.
(b) BCZ shall indemnify and hold harmless the Financial Institution
and its subsidiary affiliates, officers, directors, agents and
employees from and against any and all direct or indirect
liabilities, losses or costs (including attorneys fees) arising
from, related to or otherwise connected with: (1) any breach by
BCZ of any provision of this Agreement; or (2) any alleged untrue
statement of a material fact contained in the Trust's
Registration Statement or Prospectuses, or as a result of or
based upon any alleged omission to state a material fact required
to be stated, or necessary to make the statements not misleading.
(c) The agreement of the parties in this Paragraph to indemnify each
other is conditioned upon the party entitled to indemnification
(Indemnified Party) giving notice to the party required to
provide indemnification (Indemnifying Party) promptly after the
summons or other first legal process for any claim as to which
indemnity may be sought is served on the Indemnified Party. The
Indemnified Party shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting from
it, provided that counsel for the Indemnifying Party who shall
conduct the defense of such claim or litigation shall be approved
by the Indemnified Party (which approval shall not unreasonably
be withheld), and that the Indemnified Party may participate in
such defense at its expense. No Indemnifying Party, in the
defense of any such claim or litigation, shall, without the
consent of the Indemnified Party, consent to entry of any
judgement or enter into any settlement that does not include as
an unconditional term given by the claimant or plaintiff to the
Indemnified Party of a release from all liability in respect to
such claim or litigation.
(d) The provisions of this Paragraph 7 shall survive the termination
of this Agreement.
8. Customer Names Proprietary to the Financial Institution.
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(a) The names of the Financial Institution's customers are and shall
remain the Financial Institution's sole property and shall not be
used by BCZ or its affiliates for any purpose except the
performance of its duties and responsibilities under this
Agreement and except for servicing and informational mailings
relating to the Trust. Notwithstanding the foregoing, this
Paragraph 8 shall not prohibit BCZ or any of its affiliates from
utilizing the names of the Financial Institution's customers for
any purpose if the names are obtained in any manner other than
from the Financial Institutions pursuant to this Agreement.
(b) Neither party shall use the names of the other party in any
manner without the other party's written consent, except as
required by any applicable federal or state law, rule or
regulation, and except pursuant to any mutually agreed upon
promotional programs.
(c) The provisions of this Paragraph 8 shall survive the termination
of this Agreement.
9. Solicitation of Proxies.
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The Financial Institution agrees not to solicit or cause to be solicited
directly, or indirectly, at any time in the future, any proxies from the
shareholders of the Trust in opposition to proxies solicited by management of
the Trust, unless a court of competent jurisdiction shall have determined that
the conduct of a majority of the Board of Directors of the Trust constitutes
willful misfeasance, bad faith, gross negligence or reckless disregard of their
duties. The provisions of this Paragraph 9 shall survive the term of this
Agreement.
10. Certification of Customers' Taxpayer Identification Numbers.
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The Financial Institution agrees to obtain any taxpayer identification
number certification from its customers required under Section 3406 of the
Internal Revenue code, and any applicable Treasury regulations, and to provide
BCZ or its designee with timely written notice of any failure to obtain such
taxpayer identification number certification in order to enable the
implementation of any required backup withholding.
11. Notices.
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Except as otherwise specifically provided in the Agreement, all notices
required or permitted to be given pursuant to this Agreement shall be in writing
and delivered by personal delivery or by postage prepaid, registered or
certified United States first class mail, return receipt requested, or by telex,
telegram or similar means of same day delivery (with a confirming copy by mail
as provided herein). Unless otherwise notified in wiring, all notices to BCZ
shall be given or sent to BCZ at its offices located at 000 X. Xxxx Xx., Xxxx
Xxxx, XX 00000, and all notices to the Financial Institution shall be given or
sent to it at its address shown below.
12. Termination and Amendments.
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(a) This Agreement shall become effective in this form as of the date
set forth below and may be terminated at any time by either party
upon thirty (30) days' prior notice to the other party. This
Agreement supersedes any prior sales agreement between the
parties.
(b) This Agreement may be amended by BCZ from time to time by the
following procedures. BCZ will mail a copy of the amendment to
the Financial Institution's address, as shown below. If the
Financial Institution does not object to the amendment within
thirty (30) days after its receipt, the amendment will become
part of the Agreement. The Financial Institution's objection must
be in writing and be received by BCZ within such thirty (30)
days.
13. Governing Law.
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This Agreement shall be construed in accordance with the laws of the State
of Wisconsin.
X. X. Xxxxxxx and Company ___________________________________
000 X. Xxxx Xxxxxx Financial Institution
Xxxx Xxxx XX 00000
___________________________________
By: __________________________________ Address
Xxxxxx X. Xxxxxxxxx
Managing Director ___________________________________
City State Zip Code
Dated:_____________________________
By:________________________________
Authorized Signature
___________________________________
Title
___________________________________
Print Name or Type Title
