Exhibit (e)(2)
SELLING DEALER AGREEMENT
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Xxxxxxxxxx & Co. Inc. ("Xxxxxxxxxx") as the principal underwriter of
shares of beneficial interest ("Shares") of the Xxxxxxxxxx Funds (the "Issuer"),
agrees to sell to _____________ __________ ("Dealer") Shares purchased by
Xxxxxxxxxx as principal from the Issuer for resale by Dealer as principal upon
the following terms and conditions:
1. This Agreement shall apply only to such series of Shares and to
such class or classes of Shares of such series (each, a "Class") as are offered
by Xxxxxxxxxx as principal underwriter for sale to Dealer hereunder and
designated as such by notice to Dealer. Each such series is referred to herein
as a "Fund".
2. (a) In all resales to the public of Shares sold to Dealer by
Xxxxxxxxxx: (i) Dealer shall sell at the applicable public offering price giving
effect to cumulative or quantity discounts or other purchase programs, plans or
services described in the then current prospectus of the Fund whose Shares are
being resold; (ii) Dealer shall act as principal for its own account, and (iii)
the discount, if any, to which Dealer shall be entitled with respect to the
resale shall be as set forth in the applicable schedule of discounts issued by
Xxxxxxxxxx and in effect at the time of the sale by Xxxxxxxxxx to Dealer of such
Shares or as set forth in the then current prospectus. Such discount schedules
are subject to change or discontinuance by Xxxxxxxxxx or the Funds from time to
time as set forth in paragraph 7 below.
(b) In the case of a Fund or Class with respect to which there is
a distribution and service plan pursuant to Rule 12b-1 under the Investment
Company Act of 1940 (a "Plan"), Xxxxxxxxxx may elect from time to time to make
payments to Dealer as provided under such Plan. In the case of a Fund or Class
with respect to which there is no currently effective Plan, Xxxxxxxxxx may elect
to make payments to Dealer from Xxxxxxxxxx'x own funds. Any such payments shall
be made in the amount and manner set forth in the applicable schedule of
distribution and service payments issued by Xxxxxxxxxx and then in effect or as
set forth in the then current prospectus. Such schedule of distribution and
service payments may be changed or discontinued by Xxxxxxxxxx from time to time
and shall be in effect with respect to a Fund or Class with respect to which
there is a Plan in effect only so long as such Plan remains in effect with
respect to such Fund or Class.
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3. (a) The placing of orders with Xxxxxxxxxx shall be governed by
instructions which Xxxxxxxxxx shall issue from time to time. Payment for shares
ordered from Xxxxxxxxxx shall be made in accordance with such instructions in
New York Clearing House funds received by Xxxxxxxxxx within three business days,
within the meaning of Securities Exchange Act Rule 15c6-1, after acceptance by
Xxxxxxxxxx of Dealer's order. If such payment is not received by Xxxxxxxxxx,
Xxxxxxxxxx reserves the right, without notice, forthwith to cancel the sale or,
at its option, to sell the Shares ordered back to the Issuer, in which latter
case Xxxxxxxxxx may hold Dealer responsible for any loss, including loss of
profit, suffered by Xxxxxxxxxx as a result of Dealer's failure to make payment
as aforesaid.
(b) Certificates evidencing Shares shall be available only upon
request and only upon payment for such Shares in accordance with paragraph 3(a)
above. A confirmation evidencing the purchase, transfer, redemption, repurchase
or sale ("Transaction") with respect to Shares shall be transmitted to Dealer.
Any Transaction in uncertificated shares shall be effected and evidenced by book
entry on the records maintained by the transfer agent for the applicable Fund.
(c) Dealer appoints the transfer agent for each Fund as its agent
(i) to execute Transactions in Shares of such Fund sold to Dealer by Xxxxxxxxxx
in accordance with the terms and provisions of any account, program, plan or
service established or used by Dealer's customers, and (ii} to confirm each such
Transaction to Dealer's customers on Dealer's behalf. Each instruction from
Dealer with respect to a Transaction shall constitute a guarantee by Dealer that
its customer has the legal capacity to effect such Transaction.
(d) Dealer may instruct each Fund's transfer agent to register
Shares of such Fund purchased in Dealer's name and account as nominee for
Dealer's customers, in which event all prospectuses, proxy statements, periodic
reports and other printed material, and all confirmation and other
communications to shareholders will be transmitted to Dealer. Dealer shall be
responsible for forwarding such printed material, confirmations and
communications, or the information contained therein, to all customers for whom
Dealer holds such Shares as nominee. However, Xxxxxxxxxx or the Funds' transfer
agent on behalf of itself or the Funds shall be responsible for the costs
associated with Dealer's forwarding such printed material, confirmations and
communications and shall reimburse Dealer in full for such costs. Dealer shall
also be responsible for complying with all reporting and tax withholding
requirements with respect to the customers for whose account Dealer is holding
such shares.
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4. Upon request, Xxxxxxxxxx will furnish Dealer a reasonable number
of copies of the then current prospectus and statement of additional information
of each of the Funds and the printed information referred to in paragraph 6
below issued as supplements thereto.
5. (a) Dealer represents that it is and will remain a member in good
standing of the National Association of Securities Dealers, Inc. ("NASD") and
will abide by all NASD rules and regulations, including the Rules of Fair
Practice. Dealer further agrees to comply with all applicable state and federal
laws and rules and regulations of regulatory agencies having jurisdiction over
Transactions in the Shares. Reference is hereby specifically made to NASD Rule
2830, which is incorporated herein as if set forth in full. The termination of
Dealer's membership in the NASD or any breach of said Rule 2830 will immediately
and automatically terminate this Agreement.
(b) Xxxxxxxxxx shall not purchase Shares from the Issuer except
for the purpose of covering purchase orders already received by Xxxxxxxxxx, and
Dealer shall not purchase Shares from Xxxxxxxxxx other than for investment
except for the purpose of covering purchase orders already received by Dealer.
(c) Dealer shall not withhold placing customers' orders for
Shares so as to result in a profit to Dealer, e.g., by virtue of a change in the
net asset value per Share from that used in determining the offering price to
Dealer's customers.
(d) Xxxxxxxxxx will not accept a conditional order for Shares.
(e) If, within seven business days after confirmation by
Xxxxxxxxxx of Dealer's original purchase order for Shares, such Shares are
repurchased by the Issuer or by Xxxxxxxxxx for the account of the Issuer or are
tendered for redemption by the customer: (i) Dealer shall forthwith refund to
Xxxxxxxxxx the full discount, if any, retained by Dealer on the original sale
and any distribution and service payments made to Dealer pursuant to paragraph
2(b) above; and (ii) Xxxxxxxxxx shall forthwith pay to the Issuer in respect of
the appropriate Fund Xxxxxxxxxx'x share of the sales charge, if any, on the
original sale by Xxxxxxxxxx and shall also pay the Issuer in respect of the
appropriate Fund the refund received under clause (i) when Xxxxxxxxxx receives
it. Dealer shall refund to the Issuer in respect of the appropriate Fund
immediately upon receipt by Dealer the amount of any dividends or distributions
paid to Dealer as nominee for Dealer's customers with respect to redeemed or
repurchased Shares to the extent that the proceeds of such redemption or
repurchase may include the dividends or distributions payable on such Shares. In
the case of certificated Shares, Dealer shall be notified by Xxxxxxxxxx of
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such repurchase or redemption within ten days of the date on which a properly
executed share certificate and stock power together with appropriate supporting
papers are delivered to Xxxxxxxxxx or to the appropriate Fund. In the case of
uncertificated Shares, Dealer shall be notified by Xxxxxxxxxx of such repurchase
or redemption within ten days of such repurchase or redemption. Delivery to a
Fund's transfer agent is delivery to the Fund.
(f) If any adjustment in the discount retained by Dealer on any
sale under paragraph 2(a) or in the distribution and service payments made to
Dealer under paragraph 2(b) shall result in an overpayment by Xxxxxxxxxx of such
discount or payment, Dealer shall forthwith remit such overpayment. The term
"adjustment" as used in the preceding sentence shall not include any changes in
amounts paid to, retained by, or due to Dealer because a change in or
discontinuance of such discounts or distribution and service payments (as
provided under paragraphs 2(a), 2(b) and 7) prior to the effective date of such
change or discontinuance of the discount or distribution and service payment.
Dealer acknowledges that the foregoing shall in no way limit Xxxxxxxxxx'x right
to change or discontinue such discounts or distribution and service payment as
provided in paragraphs 2 and 7 hereof, and that, after the effective date of a
change in or discontinuance by Xxxxxxxxxx of the discount schedules or of the
distribution and service payments or termination of any Plan, discounts retained
by Dealer under paragraph 2(a) or amounts paid under 2(b) shall be in amounts
and made in accordance with such change, discontinuation or termination.
(g) Neither Xxxxxxxxxx nor Dealer shall, as principal, purchase
Shares from a holder of record of such Shares at a price lower than the bid
price next quoted by or for such Shares.
(h) Nothing in this Agreement shall prevent Dealer from selling
Shares for the account of an owner to Xxxxxxxxxx or the Issuer and charging the
owner a reasonable handling charge, provided that Dealer discloses to the owner
that direct redemption of the shares can be accomplished by the record owner
without incurring such charge.
6. (a) Nothing in this Agreement shall authorize Dealer to act or
hold it out as an agent for Xxxxxxxxxx, the Issuer, or any Fund, and nothing in
this Agreement, including the use of the words "discount" or "payment", shall
cause Dealer to be a partner, employee, or agent nor give Dealer any authority
to act for Xxxxxxxxxx, the Issuer or any Fund. Neither Xxxxxxxxxx, the Issuer
nor any Fund shall be liable for any of Dealer's acts or obligations under this
Agreement.
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(b) No person is authorized to make any representations
concerning Fund shares except those contained in such Fund's then current
prospectus and statement of additional information and in such printed
information subsequently issued to Dealer by Xxxxxxxxxx or by the Issuer with
respect to a Fund as a supplement to such prospectus or statement of additional
information. In buying Shares from Xxxxxxxxxx or selling Shares to Xxxxxxxxxx
hereunder, Dealer shall rely solely on the representations contained in the
appropriate prospectus and statement of additional information and in any
supplemental information referred to in the preceding sentence. Xxxxxxxxxx or
the Issuer shall bear the expense of qualifying Shares under the securities laws
of the various states. Any printed information which Xxxxxxxxxx shall furnish
Dealer (other than the Fund's prospectuses, statements of additional
information, periodic reports and supplemental information) is the sole
responsibility of Xxxxxxxxxx and not the responsibility of the Issuer or the
respective Funds, and Dealer agrees that the Issuer shall have no liability or
responsibility to Dealer with respect to any such printed information. No sales
literature or advertising material (including material disseminated through
radio, television or other electronic media) concerning Shares, other than such
printed information furnished to Dealer by Xxxxxxxxxx, shall be used by Dealer
in connection with the offer or sale of Shares without obtaining the prior
written approval of Xxxxxxxxxx. Dealer shall not distribute or make available to
investors any printed information furnished by Xxxxxxxxxx which is marked "FOR
DEALER USE ONLY" or which otherwise indicates that it is confidential or not
intended to be distributed to investors.
(c) Dealer will comply with all applicable state and federal laws
and with the rules and regulations of authorized regulatory agencies thereunder.
Dealer will not offer Shares for sale unless such Shares are duly registered
under the applicable state and federal statutes and the rules and regulations
thereunder.
7. All orders are subject to acceptance or rejection by Xxxxxxxxxx.
Xxxxxxxxxx reserves the right in its discretion, without notice, to suspend
sales or to withdraw the offering of Shares, in whole or in part, or to make a
limited offering of Shares. Either of the parties hereto may cancel this
Agreement by telephonic or written notice to the other. Upon telephonic or
written notice to Dealer, Xxxxxxxxxx may also change or amend any provision of
this Agreement. Upon telephonic or written notice to Dealer, Xxxxxxxxxx or the
Issuer may, with respect to any Fund, change, amend or discontinue any schedule
or schedules of discounts or distribution and service payments issued by
Xxxxxxxxxx from time to time and may issue a new or replacement schedule or
schedules of discounts or distribution and service payments from time to time.
Dealer hereby agrees that it shall have no vested interest in any type, amount
or rate of discount
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or distribution and service payment and that Dealer shall have no claim against
Xxxxxxxxxx, the Issuer or any Fund by virtue of any change or diminution in the
rate or amount of, or discontinuance of, any discount or distribution and
service payment in connection with the Shares of any Fund.
8. Failure of either party to terminate this Agreement upon the
occurrence of any event set forth in this Agreement as a cause for termination
shall not constitute a waiver of the right to terminate this Agreement at a
later time on account of such occurrence.
9. Any dispute arising under or with respect to this Agreement shall
be settled by arbitration in New York, New York in accordance with the rules
then in effect of the National Association of Securities Dealers, Inc. The
arbitrators shall act by majority decision and their award may allocate
attorneys' fees and arbitration costs between the parties. Such award shall be
final and binding between the parties and judgement thereon may be entered in
any court of competent jurisdiction.
10. All communications to Xxxxxxxxxx should be sent to its address as
set forth on the discount schedule as in effect from time to time. Any notice
to Dealer shall be duly given if mailed or telegraphed to Dealer at the address
specified by Dealer below. This Agreement shall become binding upon receipt by
Xxxxxxxxxx of a counterpart hereof duly accepted and signed by you. This
Agreement is made in, and shall be construed in accordance with the laws of, the
State of New York.
11. This Agreement supersedes and cancels all previous agreements
between Xxxxxxxxxx, whether oral or written.
Dated: _____________
XXXXXXXXXX & CO. INC.
By________________________
Accepted:
Firm_______________________
By_________________________
Authorized Representative
Address:___________________
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