Exhibit (m)(10)
XXXXX XXXXXX INC.
MUTUAL FUND DEALER AGREEMENT
TO THE UNDERSIGNED DISTRIBUTOR:
Ladies and Gentlemen:
We understand that you are principal distributor of shares of certain mutual
funds ("Funds") registered with the Securities and Exchange Commission under the
Investment Company Act of 1940 ("1940 Act"). You desire that Xxxxx Xxxxxx Inc.
("Xxxxx Xxxxxx") act as a dealer with respect to the sale of Shares to its
customers. In consideration of the mutual covenants stated below, you and Xxxxx
Xxxxxx agree as follows:
1. Purchase of Shares at Public Offering Price. Xxxxx Xxxxxx will use such
efforts to sell Shares as it in its sole discretion determines, and will
not be required to sell any specified or minimum number of Shares of any
Fund. Sales of Shares through Xxxxx Xxxxxx will be at the public offering
price of such Shares (the net asset value of the Shares plus any applicable
sales charge), as determined in accordance with the then effective
prospectus(es) and statement(s) of additional information used in
connection with the offer and sale of the Shares (collectively, the
"Prospectus"). The public offering price may reflect scheduled variations
in or the elimination of sales charges on sales of Shares either generally
to the public or in connection with special purchase plans, as described in
the Prospectus. Xxxxx Xxxxxx agrees to apply any scheduled variation in or
waivers of sales charges uniformly to all customers meeting the
qualifications therefor as specified in the Prospectus.
2. Rights of Accumulation and Letters of Intent. With respect to Funds sold
with an initial sales charge, Xxxxx Barney's customers will be entitled to
reduced sales charges on purchases made under any letter of intent or right
of accumulation described in the Prospectus. In such case, the concession
from the public offering price retained by Xxxxx Xxxxxx will be based upon
such reduced sales charge; however, if a Xxxxx Xxxxxx customer fails to
fulfill a letter of intent, thereafter you will pay Xxxxx Xxxxxx the amount
required to reflect the appropriate concession based on the actual
purchases made by the customer. When placing wire trades, Xxxxx Xxxxxx
agrees to advise you of any letter of intent executed by its customer or
any available right of accumulation.
3. Exchanges and Redemptions. Exchanges of Shares between Funds and
redemptions of Shares by a Fund or repurchases of Shares by you will be
effected in the manner and upon the terms described in the Prospectus.
Exchanges will be subject to such restrictions and charges as are provided
for in the Prospectus. Redemptions and repurchases will be subject to any
applicable contingent deferred sales charges, redemption fees or other
charges as are provided for in the Prospectus. Any order placed by Xxxxx
Xxxxxx for the
repurchase or redemption of Shares is subject to the timely receipt by you
or the pertinent Fund's transfer agent of all required documents in good
order.
4. Handling and Receipt of Orders. The handling and settlement of purchase,
exchange and redemption orders will be subject to the provisions of the
Prospectus and such further procedures you and Xxxxx Xxxxxx determine to be
appropriate from time-to-time, consistent with this Agreement. Orders which
Xxxxx Xxxxxx receives prior to the close of business as defined in the
Prospectus and placed with you within the applicable time frame set forth
in or consistent with the Prospectus shall be executed at the public
offering price next computed after they are received by Xxxxx Xxxxxx. You
will provide such assistance to Xxxxx Xxxxxx in processing orders as Xxxxx
Xxxxxx reasonably requests. Xxxxx Xxxxxx will be responsible for the
accuracy, timeliness and completeness of purchase, redemption or exchange
orders it transmits to you by wire or telephone. All orders shall be
subject to your confirmation. Xxxxx Xxxxxx shall purchase Shares on behalf
of its customers only through you, and shall sell Shares on behalf of its
customers only to you or the applicable fund or its redemption agent. No
wire orders under $1000 may be placed for initial purchases. The Funds
reserve the right, without prior notice, to suspend or withdraw the sale of
Shares.
5. Shareholder Servicing. If you and Xxxxx Xxxxxx agree, on an ongoing basis
Xxxxx Xxxxxx will provide shareholder servicing to its customers who
maintain investments in Shares. In so doing, Xxxxx Xxxxxx and its employees
and representatives may provide the following services, among others:
answer customer inquiries regarding the Funds and customer investments
therein; assist customers in changing dividend options; answer questions
about special investment and withdrawal plans, and assist customers in
enrolling in such plans; distribute reports and materials relating to the
Funds to customers; assist in the establishment and maintenance of accurate
customer accounts and records, including assisting in processing changes in
addresses and other customer information; and assist in processing
purchase, exchange and redemption orders.
6. Compensation and Expenses
A. With respect to Shares which are sold with an initial sales
charge, Xxxxx Xxxxxx will retain such concessions from the public
offering price as are specified in the Prospectus. With respect
to Shares which are not sold with an initial sales charge, you
will pay commissions to Xxxxx Xxxxxx at such rates as you and
Xxxxx Xxxxxx may determine from time-to-time, consistent with
this Agreement and as set for in the Prospectus. No concession
will be paid to Xxxxx Xxxxxx for the investment of dividends in
additional shares. Consistent with the Prospectus and applicable
law and regulation, from time-to-time you and Xxxxx Xxxxxx may
determine that Xxxxx Xxxxxx will retain the full amount of
initial sales charges and/or that you will pay Xxxxx Xxxxxx
additional compensation in connection with Xxxxx Barney's sales
of shares.
B. If Xxxxx Xxxxxx provides shareholder services pursuant to
Paragraph 5 of this Agreement, you will pay Xxxxx Xxxxxx ongoing
service fees at such rates as you
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and Xxxxx Xxxxxx may determine from time-to-time. Such payments
shall be consistent with applicable law and regulation and this
Agreement and shall be subject to the terms and conditions set
forth in the plan of distribution adopted under Rule 12b-1 under
the 1940 Act (a "12b-1 Plan") by the relevant Fund. Your
obligation to make payments to Xxxxx Xxxxxx under this
Subparagraph 6B shall survive any termination of this Agreement,
and shall continue, subject to Section 15 hereof, so long as
Xxxxx Xxxxxx provides shareholder services described in Paragraph
5 of this Agreement to its customers who hold Shares.
C. You will pay Xxxxx Xxxxxx ongoing trail commission compensation
with respect to holdings by Xxxxx Xxxxxx of Shares of Funds with
respect to which you pay such compensation generally to dealers,
at such rates as you and Xxxxx Xxxxxx may determine from
time-to-time. Payments under this Subparagraph 6C may be in
addition to the payment of service fees as described in
Subparagraph 6B of this Agreement, and are subject to applicable
law and regulation and this Agreement, and shall be subject to
the terms and conditions, set forth in the 12b-1 Plan adopted by
the relevant Fund. Your obligation to make payments to Xxxxx
Xxxxxx under this Subparagraph 6C shall survive any termination
of this Agreement, and shall continue, subject to Section 15
hereof, so long as Xxxxx Barney's customers maintain their
investments in Shares.
D. With respect to expenses not specifically addressed elsewhere in
this Agreement, each party hereto will be responsible for the
expenses it incurs in acting hereunder. Consistent with the
Prospectus and applicable law and regulation, from time-to-time
you and Xxxxx Xxxxxx may determine that you will pay or reimburse
Xxxxx Xxxxxx for expenses it incurs in connection with selling
Shares.
7. State Registration of Fund Shares. You agree to advise Xxxxx Xxxxxx in
writing on a current basis of the identity of those states and
jurisdictions in which the Shares are registered or qualified for sale to
the public.
8. NASD Regulation. Each party to this Agreement represents that it is a
member of the National Association of Securities Dealers, Inc. ("NASD") and
each party agrees to notify the other should it cease to be such a member.
Termination of such membership shall terminate this Agreement and shall
relieve you of your payment obligations under Paragraph 6 hereof. With
respect to the sale of Shares hereunder, you and Xxxxx Xxxxxx agree to
abide by the Conduct Rules of the NASD, including but not limited to the
following:
A. Xxxxx Xxxxxx shall not withhold placing customers orders for
Shares so as to profit itself as a result of such withholding.
Xxxxx Xxxxxx shall not purchase any Shares from you other than
for its own investment or to cover purchase orders already
received by it from its customers.
B. If any Shares purchased by Xxxxx Xxxxxx are repurchased by the
Fund which issued such Shares or by you for the account of that
Fund, or are tendered for redemption, within seven (7) business
days after confirmation by you of the original purchase order for
such Shares, no compensation as set forth in Paragraph
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6 above will be payable to Xxxxx Xxxxxx with respect to such
Shares, and Xxxxx Xxxxxx will refund to you the full amount of
any such compensation paid or allowed to it on the original sale.
You agree to notify Xxxxx Xxxxxx in writing of any such
repurchase or redemption within ten (10) business days of the
date on which the redemption is requested or Share certificates
are tendered to you, the pertinent Fund or its transfer agent.
Termination or cancellation of this Agreement will not relieve
the parties from the requirements of this subparagraph.
C. Neither party to this Agreement will, as principal, purchase any
Shares from a customer at a price lower than the net asset value
next determined by or for the Fund that issued such Shares.
Nothing in this subparagraph shall prevent Xxxxx Xxxxxx from
selling Shares for a customer to you or to the Fund which issued
such Shares at the net asset value then quoted by or for such
Fund (less any applicable contingent deferred sales charge or
other charges) and charging a fair commission or service fee for
handling the transaction.
D. Xxxxx Xxxxxx shall be responsible for properly advising its
customers as to the appropriate class of Shares in which to
invest.
9. Suspension or Withdrawal of Offering. You reserve the right to suspend
sales of Shares of any Fund or withdraw any offering of Shares entirely.
10. Provision of Materials. At your expense, you will furnish Xxxxx Xxxxxx with
current prospectuses and statements of additional information of the Funds
(including any supplements thereto), periodic reports to Fund shareholders
and marketing and other materials you have prepared relating to the Funds
to be furnished to dealers generally, in such quantities as Xxxxx Xxxxxx
reasonably requests.
11. No Agency; Representations by Xxxxx Xxxxxx Concerning the Funds. Xxxxx
Xxxxxx is not for any purpose employed or retained or authorized to act as
broker, agent or employee of any Fund or, except for the limited purpose
set forth in Paragraph 4, of you. Xxxxx Xxxxxx and its agents and employees
are not authorized to make any representations concerning the Funds or
their Shares except those contained in or consistent with the Prospectus
and such other written materials you provide relating to the Funds or other
statements or representations, written or oral, which you furnish or make
to Xxxxx Xxxxxx about the Funds.
12. Prospectus Delivery. Xxxxx Xxxxxx will provide each of its customers
purchasing Shares with the pertinent prospectus(es) prior to or at the time
of purchase. Xxxxx Xxxxxx will provide any customer who so requests with
the pertinent statement(s) of additional information.
13. Liability and Indemnification
A. You agree to be liable for, to hold Xxxxx Xxxxxx, its officers,
directors and employees harmless from and to indemnify each of
them for any losses and costs arising from: (i) any of your
actions, and the actions of your employees and
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affiliates, relating to the sale of Fund shares, including but
not limited to any statements or representations contained in any
sales or other material relating to the Funds you or your
affiliates provide to Xxxxx Xxxxxx or any other statements or
representations, written or oral, concerning the Funds that you,
your employees and your affiliates make to Xxxxx Xxxxxx, provided
that, at the time Xxxxx Xxxxxx provides such materials to its
Customers, such material is reasonably believed by Xxxxx Xxxxxx
to be current; (ii) any material misstatement in or omission of a
material fact from a Fund's current prospectus or statement of
additional information; and (iii) any failure of any Fund or its
Shares to be properly registered and available for sale under any
applicable federal law and regulation or the laws and regulations
of any state, any U.S. territory or the District of Columbia when
you have represented to Xxxxx Xxxxxx that the Fund and its Shares
are so registered and qualified; and (iv) any of your actions, or
the actions of your affiliates, relating to the processing of
purchase, exchange and redemption orders and the servicing of
shareholder accounts. You shall not be liable for any
consequential damages.
B. Xxxxx Xxxxxx agrees to be liable for, to hold you, your officers,
directors and employees harmless from and to indemnify them from
any losses and costs arising from: (i) any statements or
representations that Xxxxx Xxxxxx or its employees make
concerning the Funds that are inconsistent with either the
pertinent Funds' current prospectus and statement of additional
information or any other material you have provided or any other
statements or representations, written or oral, you have made to
Xxxxx Xxxxxx relating to the Funds; (ii) any sale of Shares of a
Fund where the Fund or its Shares were not properly registered or
qualified for sale in any state, any U.S. territory or the
District of Columbia, when you have indicated to Xxxxx Xxxxxx
that the Fund and its Shares were not properly registered and
qualified; and (iii) any of Xxxxx Barney's actions relating to
the processing of purchase, exchange and redemption orders and
the servicing of shareholder accounts. Xxxxx Xxxxxx shall not be
liable for any consequential damages.
C. The provisions of this Paragraph 13 shall survive the termination
of this Agreement.
14. Arbitration. If a dispute arises between you and Xxxxx Xxxxxx with respect
to this Agreement which the parties are unable to resolve themselves, it
shall be settled by arbitration in accordance with the then-existing NASD
Code of Arbitration Procedure ("NASD Code"). The parties agree, that to the
extent permitted by the NASD Code, the arbitrator(s) shall be selected from
the securities industry.
15. Miscellaneous. This Agreement shall be governed by the laws of New York
State. This Agreement may be amended only upon the written agreement of
both parties hereto, and may be terminated by either party on ten days'
written notice to the other. If your payments 5 to Xxxxx Xxxxxx under
Subparagraphs 6B and/or 6C hereunder in whole or in part are financed by a
Fund in accordance with its 12b-1 Plan, then with respect to such Fund this
Agreement (a) is subject to annual approval by vote of such Fund's board of
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directors or trustees and a majority of those directors/trustees who are
not "interested persons" (as defined in the 0000 Xxx) of the Fund and have
no direct or indirect financial interest in the operation of the 12b-1 Plan
adopted by such Fund or in any agreement related thereto ("Disinterested
Directors") cast in person at a meeting called for the purpose of voting on
such approval and (b) is terminable, without penalty, at any time by such
Fund by a vote of a majority of the Disinterested Directors or by vote of
the holders of a majority of the voting securities (as such term is defined
in the 0000 Xxx) of such Fund upon 60 days' notice in writing to you. Xxxxx
Xxxxxx agrees to provide to you and each such Fund's board of directors or
trustees such information as you and such Fund's board of directors or
trustees may reasonably request in order to enable you and the board to
fulfill the requirements of Rule 12b-1 and such Fund's 12b-1 Plan. In the
event of the termination of such a 12b-1 Plan by a Fund's board of
directors or trustees or shareholders, you and Xxxxx Xxxxxx agree to
negotiate in good faith with respect to whether and to what extent you will
continue to make payments from your own resources to Xxxxx Xxxxxx as
required by Subparagraphs 6B and 6C hereunder. This Agreement constitutes
the entire agreement between you and Xxxxx Xxxxxx and supersedes all prior
oral or written agreements (except for the Telephone Exchange Agreement
dated October 14, 1993 between the parties) between you and Xxxxx Xxxxxx
and its predecessors relating to the sale of Shares.
Sincerely,
XXXXX XXXXXX INC.
By: _____________________________________
Dated: ___________________________________
AGREED AND ACCEPTED:
Distributor Name: ___________________________
Fund Complex: _____________________________
By: ______________________________________
Dated: ___________________________________
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