EXHIBIT 99.6(b)
CLASS B SHARES
DISTRIBUTION AGREEMENT
AGREEMENT made as of the day of , between Xxxxxxx
Xxxxx Retirement Series Trust, a business trust organized under the laws of
Massachusetts (the "Trust"), and XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC., a
Delaware corporation (the "Distributor").
W I T N E S S E T H :
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WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), as an open-end investment company,
and it is affirmatively in the interest of the Trust to offer its shares for
sale continuously; and
WHEREAS, the Trust is authorized to establish separate series ("Series"),
each of which will offer separate classes of shares of beneficial interest, par
value $.10 per share (collectively referred to as "shares"), to selected groups
of purchasers; and
WHEREAS, the Trustees of the Trust (the "Trustees") have established and
designated the Xxxxxxx Xxxxx Retirement Reserves Money Fund (the "Fund") as a
series of the Trust; and
WHEREAS, the Distributor is a securities firm engaged in the business of
selling shares of investment companies either directly to purchasers or through
other securities dealers; and
WHEREAS, the Trust and the Distributor wish to enter into an agreement with
each other with respect to the continuous offering of the Class B shares of the
Fund in order to promote the growth of the Fund and facilitate the distribution
of its Class B shares.
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Trust hereby appoints the
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Distributor as the principal underwriter and distributor of the Trust to sell
Class B shares of beneficial interest in the Fund (sometimes herein referred to
as "Class B shares") to the selected groups of investors specified as eligible
investors in the currently effective prospectus and statement of additional
information of the Fund (the "prospectus" and "statement of additional
information", respectively) under the Securities Act of 1933, as amended (the
"Securities Act") relating to such Class B shares and the Distributor hereby
accepts such appointment. The Trust during the term of this Agreement shall
sell Class B shares of the Fund to the Distributor upon the terms and conditions
herein set forth.
Section 2. Exclusive Nature of Duties. The Distributor shall be the
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exclusive representative of the Trust to act as
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principal underwriter and distributor of the Class B shares, except that:
(a) The exclusive right granted to the Distributor to purchase Class B
shares from the Fund shall not apply to Class B shares of the Fund issued in
connection with the merger or consolidation of any other investment company or
personal holding company with the Trust or the acquisition by purchase or
otherwise of all (or substantially all) the assets or the outstanding Class B
shares of any such company by the Trust.
(b) Such exclusive right also shall not apply to Class B shares issued
pursuant to reinvestment of dividends or capital gains distributions.
(c) Such exclusive right also shall not apply to Class B shares issued
pursuant to any conversion, exchange or reinstatement privilege afforded
redeeming shareholders or to any other Class B shares as shall be agreed between
the Trust and the Distributor from time to time.
Section 3. Purchase of Class B Shares from the Trust.
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(a) The Distributor shall have the right to buy from the Trust the Class B
shares needed, but not more than the Class B shares needed (except for clerical
errors in transmission) to fill unconditional orders for Class B shares of the
Fund placed with the Distributor by eligible investors or securities dealers.
The price which the Distributor shall pay for the Class B shares
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so purchased from the Trust shall be the net asset value, determined as set
forth in Section 3(c) hereof.
(b) The Class B shares are to be resold by the Distributor to investors at
net asset value, as set forth in Section 3(c) hereof, or to securities dealers
having agreements with the Distributor upon the terms and conditions set forth
in Section 7 hereof.
(c) The net asset value of Class B shares of the Fund shall be determined
by the Trust or any agent of the Trust in accordance with the method set forth
in the prospectus and statement of additional information (the "Prospectus" and
"Statement of Additional Information", respectively) and guidelines established
by the Trustees.
(d) The Trust shall have the right to suspend the sale of Class B shares
of the Fund at times when redemption is suspended pursuant to the conditions set
forth in Section 4(b) hereof. The Trust also shall have the right to suspend
the sale of Class B shares of the Fund if trading on the New York Stock Exchange
shall have been suspended, if a banking moratorium shall have been declared by
Federal or New York authorities, or if there shall have been some other event,
which, in the judgment of the Trust, makes it impracticable or inadvisable to
sell the Class B shares.
(e) The Trust, or any agent of the Trust designated in writing by the
Trust, shall be promptly advised of all purchase
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orders for Class B shares received by the Distributor. Any order may be
rejected by the Trust; provided, however, that the Trust will not arbitrarily or
without reasonable cause refuse to accept or confirm orders for the purchase of
Class B shares. The Trust (or its agent) will confirm orders upon their
receipt, will make appropriate book entries and, upon receipt by the Trust (or
its agent) of payment therefor, will deliver deposit receipts or certificates
for such Class B shares pursuant to the instructions of the Distributor.
Purchase orders are effective when Federal Funds become available to the Trust.
The Distributor agrees to cause such payment and such instructions to be
delivered promptly to the Trust (or its agent).
Section 4. Repurchase or Redemption of Class B Shares by the Trust.
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(a) Any of the outstanding Class B shares may be tendered for redemption
at any time, and the Trust agrees to repurchase or redeem the Class B shares so
tendered in accordance with its obligations set forth in its Declaration of
Trust, as amended from time to time, and in accordance with the applicable
provisions set forth in the Prospectus and Statement of Additional Information
of the Fund. The price to be paid to redeem or repurchase the Class B shares
shall be equal to the net asset value calculated in accordance with the
provisions of Section 3(c) hereof, less any contingent deferred sales charge,
redemption fee or other charge(s), if any, set forth in the
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Prospectus and Statement of Additional Information of the Fund. All payments by
the Trust hereunder shall be made in the manner set forth below.
The Trust shall pay the total amount of the redemption price as defined in
the above paragraph pursuant to the instructions of the Distributor to or for
the account of the shareholder, in each case in accordance with the applicable
provisions of the prospectus and statement of additional information.
(b) The Fund reserves the right to reject any order for repurchase through
a securities dealer. Redemption of Class B shares or payment may be suspended
at times when the New York Stock Exchange is closed, when trading on said
Exchange is suspended, when trading on said Exchange is restricted, when an
emergency exists as a result of which disposal by the Fund of securities owned
by it is not reasonably practicable or it is not reasonably practicable for the
Trust fairly to determine the value of its net assets, or during any other
period when the Securities and Exchange Commission, by order, so permits.
Section 5. Duties of the Trust.
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(a) The Trust shall furnish to the Distributor copies of all information,
financial statements and other papers which the Distributor may reasonably
request for use in connection with the distribution of Class B shares of the
Fund, and this shall include, upon request by the Distributor, one certified
copy of all financial statements prepared for the Fund by independent
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public accountants. The Trust shall make available to the Distributor such
number of copies of the prospectus and statement of additional information as
the Distributor shall reasonably request.
(b) The Trust shall take, from time to time, but subject to any necessary
approval of the shareholders, all necessary action to fix the number of
authorized shares and such steps as may be necessary to register the same under
the Securities Act to the end that there will be available for sale such number
of Class B shares as the Distributor reasonably may be expected to sell.
(c) The Trust shall use its best efforts to qualify and maintain the
qualification of an appropriate number of its Class B shares for sale under the
securities laws of such states as the Distributor and the Trust may approve.
Any such qualification may be withheld, terminated or withdrawn by the Trust at
any time in its discretion. As provided in Section 8(c) hereof, the expense of
qualification and maintenance of qualification shall be borne by the Trust. The
Distributor shall furnish such information and other material relating to its
affairs and activities as may be required by the Trust in connection with such
qualification.
(d) The Trust will furnish, in reasonable quantities upon request by the
Distributor, copies of annual and interim reports of the Fund.
Section 6. Duties of the Distributor.
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(a) The Distributor shall devote reasonable time and effort to effect
sales of Class B shares of the Fund but shall not be obligated to sell any
specific number of shares. The services of the Distributor to the Trust
hereunder are not to be deemed exclusive and nothing herein contained shall
prevent the Distributor from entering into like arrangements with other
investment companies so long as the performance of its obligations hereunder is
not impaired thereby.
(b) In selling the Class B shares of the Fund, the Distributor shall use
its best efforts in all respects duly to conform with the requirements of all
Federal and state laws relating to the sale of such securities. Neither the
Distributor nor any selected dealer, as defined in Section 7 hereof, nor any
other person is authorized by the Fund to give any information or to make any
representations, other than those contained in the registration statement or
related prospectus and statement of additional information and any sales
literature specifically approved by the Trust.
(c) The Distributor shall adopt and follow procedures, as approved by the
officers of the Trust, for the confirmation of sales to investors and selected
dealers, the collection of amounts payable by investors and selected dealers on
such sales, and the cancellation of unsettled transactions, as may be necessary
to comply with the requirements of the NASD Regulation,
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Inc. (the "NASD"), as such requirements may from time to time exist.
Section 7. Selected Dealer Agreements.
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(a) The Distributor shall have the right to enter into selected dealer
agreements with securities dealers of its choice ("selected dealers") for the
sale of Class B shares; provided, however, that the Trust shall approve the form
of agreements with dealers. Class B shares sold to selected dealers shall be
for resale by such dealers only in accordance with the provisions of the
Prospectus and Statement of Additional Information. The form of agreement with
selected dealers to be used during the continuous offering of the shares is
attached hereto as Exhibit A.
(b) Within the United States, the Distributor shall offer and sell Class B
shares only to such selected dealers that are members in good standing of the
NASD.
Section 8. Payment of Expenses.
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(a) The Fund shall bear all costs and expenses of the Fund, including fees
and disbursements of its counsel and auditors, in connection with the
preparation and filing of any required registration statements and/or
prospectuses and statements of additional information under the Investment
Company Act, the Securities Act, and all amendments and supplements thereto, and
the expense of preparing, printing, mailing and otherwise distributing
prospectuses, statements of additional information,
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annual or interim reports or proxy materials to Class B shareholders).
(b) After the prospectuses, statements of additional information and
annual and interim reports have been prepared, set in type and mailed to Class B
shareholders, the Distributor shall bear the costs and expenses of printing and
distributing any copies thereof which are to be used in connection with the
offering of Class B shares. The Distributor (or its affiliate, Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), pursuant to the Fund's
Class B Distribution Plan and Agreement with Xxxxxxx Xxxxx) shall bear the costs
and expenses of preparing, printing and distributing any supplementary sales
literature used by the Distributor in connection with the offering of the Class
B shares for sale to the public. Any expenses of advertising incurred in
connection with such offering will also be the obligation of the Distributor (or
Xxxxxxx Xxxxx).
(c) The Trust shall bear the cost and expenses of qualification of the
Class B shares for sale pursuant to this Agreement and, if necessary or
advisable in connection therewith, of qualifying the Fund as a broker or dealer
in such states of the United States or other jurisdictions as shall be selected
by the Trust and the Distributor pursuant to Section 5(c) hereof and the cost
and expenses payable to each such state for continuing
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qualification therein until the Trust decides to discontinue such qualification
pursuant to Section 5(c) hereof.
Section 9. Indemnification.
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(a) The Trust shall indemnify and hold harmless the Distributor and each
person, if any, who controls the Distributor against any loss, liability, claim,
damage or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damage or expense and reasonable counsel
fees incurred in connection therewith), as incurred, arising by reason of any
person acquiring any Class B shares, which may be based upon the Securities Act,
or on any other statute or at common law, on the ground that the registration
statement or related prospectus and statement of additional information, as from
time to time amended and supplemented, or an annual or interim report to Class B
shareholders of the Trust, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, unless such statement or
omission was made in reliance upon, and in conformity with, information
furnished to the Trust in connection therewith by or on behalf of the
Distributor; provided, however, that in no case (i) is the indemnity of the
Trust in favor of the Distributor and any such controlling persons to be deemed
to protect such Distributor or any such controlling persons thereof against any
liability to the Trust or its security holders to which the
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Distributor or any such controlling persons would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of
their duties or by reason of the reckless disregard of their obligations and
duties under this Agreement; or (ii) is the Trust to be liable under its
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor or any such controlling persons, unless the Distributor
or such controlling persons, as the case may be, shall have notified the Trust
in writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon the Distributor or such controlling persons (or after the Distributor or
such controlling persons shall have received notice of such service on any
designated agent), but failure to notify the Trust of any such claim shall not
relieve it from any liability which it may have to the person against whom such
action is brought otherwise than on account of its indemnity agreement contained
in this paragraph. The Trust will be entitled to participate at its own expense
in the defense or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but if the Fund elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to the
Distributor or such controlling person or persons, defendant or defendants in
the suit. In the event the Trust elects to assume the defense of any such suit
and retain
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such counsel, the Distributor or such controlling person or persons, defendant
or defendants in the suit shall bear the fees and expenses, as incurred, of any
additional counsel retained by them, but in case the Trust does not elect to
assume the defense of any such suit, it will reimburse the Distributor or such
controlling person or persons, defendant or defendants in the suit, for the
reasonable fees and expenses, as incurred, of any counsel retained by them. The
Trust shall promptly notify the Distributor of the commencement of any
litigation or proceedings against it or any of its officers or Trustees in
connection with the issuance or sale of any of the Class B shares.
(b) The Distributor shall indemnify and hold harmless the Trust and each
of its Trustees and officers and each person, if any, who controls the Trust
against any loss, liability, claim, damage or expense, as incurred, described in
the foregoing indemnity contained in subsection (a) of this Section, but only
with respect to statements or omissions made in reliance upon, and in conformity
with, information furnished to the Trust in writing by or on behalf of the
Distributor for use in connection with the registration statement or related
prospectus and statement of additional information, as from time to time
amended, or the annual or interim reports to shareholders. In case any action
shall be brought against the Trust or any person so indemnified, in respect of
which indemnity may be sought against the Distributor, the Distributor shall
have the rights
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and duties given to the Trust, and the Trust and each person so indemnified
shall have the rights and duties given to the Distributor by the provisions of
subsection (a) of this Section 9.
Section 10. Xxxxxxx Xxxxx Mutual Fund Adviser Program. In connection with
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the Xxxxxxx Xxxxx Mutual Fund Adviser Program, the Distributor and its
affiliate, Xxxxxxx Xxxxx are authorized, to the extent permissible, to offer and
sell shares of the Fund, as agent for the Trust, to participants in such
program. The terms of this Agreement shall apply to such sales, including terms
as to the offering price of shares, the proceeds to be paid to the Fund, the
duties of the Distributor, the payment of expenses and indemnification
obligations of the Trust and the Distributor.
Section 11. Duration and Termination of this Agreement. This Agreement
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shall become effective as of the date first above written and shall remain in
force until November 30, 1999 and thereafter, but only for so long as such
continuance is specifically approved at least annually by (i) the Trustees or by
the vote of a majority of the outstanding voting securities of the Fund and (ii)
by the vote of a majority of those Trustees who are not parties to this
Agreement or interested persons of any such party cast in person at a meeting
called for the purpose of voting on such approval.
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This Agreement may be terminated at any time, without the payment of any
penalty, by the Trustees or by vote of a majority of the outstanding voting
securities of the Fund, or by the Distributor, on sixty days' written notice to
the other party. This Agreement shall automatically terminate in the event of
its assignment.
The terms "vote of a majority of the outstanding voting securities",
"assignment", "affiliated person" and "interested person", when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act.
Section 12. Amendments of this Agreement. This Agreement may be amended
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by the parties only if such amendment is specifically approved by (i) the
Trustees or by the vote of a majority of outstanding voting securities of the
Fund and (ii) by the vote of a majority of those Trustees of the Trust who are
not parties to this Agreement or interested persons of any such party cast in
person at a meeting called for the purpose of voting on such approval.
Section 13. Governing Law. The provisions of this Agreement shall be
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construed and interpreted in accordance with the laws of the State of New York
as at the time in effect and the applicable provisions of the Investment Company
Act. To the extent that the applicable law of the State of New York, or any of
the provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
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Section 14. Personal Liability. The Declaration of Trust establishing
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Xxxxxxx Xxxxx Retirement Series Trust, dated July 15, 1986, a copy of which,
together with all amendments thereto (the "Declaration"), is on file in the
office of the Secretary of the Commonwealth of Massachusetts, provides that the
name "Xxxxxxx Xxxxx Retirement Series Trust" refers to the Trustees under the
Declaration collectively as Trustees, but not as individuals or personally; and
no Trustee, shareholder, officer, employee or agent of Xxxxxxx Xxxxx Retirement
Series Trust, shall be held to any personal liability, nor shall resort be had
to their private property for the satisfaction of any obligation or claim or
otherwise in connection with the affairs of said Xxxxxxx Xxxxx Retirement Series
Trust, but the Trust Estate only shall be liable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXXX XXXXX RETIREMENT SERIES TRUST
By ____________________________________
Title:
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By ____________________________________
Title:
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EXHIBIT A
XXXXXXX XXXXX RETIREMENT SERIES TRUST
CLASS B SHARES OF BENEFICIAL INTEREST
SELECTED DEALER AGREEMENT
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Gentlemen:
Xxxxxxx Xxxxx Funds Distributor, Inc. (the "Distributor") has an agreement
with Xxxxxxx Xxxxx Retirement Series Trust, a business trust organized under the
laws of Massachusetts (the "Trust"), pursuant to which it acts as the
distributor for the sale of Class B shares of beneficial interest, par value
$0.10 per share (herein referred to as the "Class B shares"), of the Xxxxxxx
Xxxxx Retirement Reserves Money Fund (the "Fund") and as such has the right to
distribute Class B shares of the Fund for resale. The Trust is an open-end
investment company registered under the Investment Company Act of 1940, as
amended, and the Class B shares of the Fund being offered to the public are
registered under the Securities Act of 1933, as amended. You have received a
copy of the Class B Shares Distribution Agreement (the "Distribution Agreement")
between ourselves and the Trust and reference is made herein to certain
provisions of such Distribution Agreement. The terms "Prospectus" and
"Statement of Additional Information" as used herein refer to the prospectus and
statement of additional information, respectively, on file with the Securities
and Exchange Commission which is part of the most recent effective registration
statement pursuant to the Securities Act of 1933, as amended. As principal, we
offer to sell to you, as a selected dealer, Class B shares of the Fund upon the
following terms and conditions:
1. In all sales of these Class B shares to the public, you shall act as
dealer for your own account and in no transaction shall you have any authority
to act as agent for the Trust, or for us, except in connection with the Xxxxxxx
Xxxxx Mutual Fund Adviser program and such other special programs as we from
time to time agree, in which case you shall have authority to offer and sell
shares, as agent for the Fund, to participants in such program.
2. Shares may be offered by you only as described in the Prospectus.
Orders received from you will be accepted through us only at the public offering
price applicable to each order, as set forth in the current Prospectus and
Statement of Additional Information. The procedure relating to the handling of
orders shall be subject to Section 4 hereof and instructions which we or
the Trust shall forward from time to time to you. All orders are subject to
acceptance or rejection by the Distributor or the Fund in the sole discretion of
either. The minimum initial and subsequent purchase requirements are as set
forth in the current Prospectus and Statement of Additional Information.
3. You shall not place orders for any Class B shares unless you have
already received purchase orders for such Class B shares at the applicable
public offering prices and subject to the terms hereof and of the Distribution
Agreement. You agree that you will not offer or sell any of the Class B shares
except under circumstances that will result in compliance with the applicable
Federal and state securities laws and that in connection with sales and offers
to sell Class B shares you will furnish to each person to whom any such sale or
offer is made a copy of the Prospectus and, if requested, the Statement of
Additional Information (as then amended or supplemented) and will not furnish to
any person any information relating to the Class B shares of the Fund which is
inconsistent in any respect with the information contained in the Prospectus and
Statement of Additional Information (as then amended or supplemented) or cause
any advertisement to be published in any newspaper or posted in any public place
without our consent and the consent of the Trust.
4. As a selected dealer, you are hereby authorized (i) to place orders
directly with the Fund for Class B shares of the Fund to be resold by us to you
subject to the applicable terms and conditions governing the placement of orders
by us set forth in Section 3 of the Class B shares Distribution Agreement and
(ii) to tender Class B shares directly to the Fund or its agent for redemption
subject to the applicable terms and conditions set forth in Section 4 of the
Distribution Agreement.
5. You shall not withhold placing orders received from your customers so
as to profit yourself as a result of such withholding: e.g., by a change in the
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"net asset value" from that used in determining the offering price to your
customers.
6. No person is authorized to make any representations concerning Class B
shares of the Fund except those contained in the current Prospectus and
Statement of Additional Information of the Fund and in such printed information
subsequently issued by us or the Fund as information supplemental to such
Prospectus and Statement of Additional Information. In purchasing Class B
shares through us you shall rely solely on the representations contained in the
Prospectus and Statement of Additional Information and supplemental information
above mentioned. Any printed information which we furnish you other than the
Fund's Prospectus, Statement of Additional Information, periodic reports
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and proxy solicitation material is our sole responsibility and not the
responsibility of the Trust, and you agree that the Trust shall have no
liability or responsibility to you in these respects unless expressly assumed in
connection therewith.
7. You agree to deliver to each of the purchasers making purchases from
you a copy of the then current Prospectus and, if requested, the Statement of
Additional Information at or prior to the time of offering or sale and you agree
thereafter to deliver to such purchasers copies of the annual and interim
reports and proxy solicitation materials of the Fund. You further agree to
endeavor to obtain proxies from such purchasers. Additional copies of the
Prospectus and Statement of Additional Information, annual or interim reports
and proxy solicitation materials of the Fund will be supplied to you in
reasonable quantities upon request.
8. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Class B shares entirely or to certain persons
or entities in a class or classes specified by us. Each party hereto has the
right to cancel this Agreement upon notice to the other party.
9. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the continuous offering. We
shall be under no liability to you except for lack of good faith and for
obligations expressly assumed by us herein. Nothing contained in this paragraph
is intended to operate as, and the provisions of this paragraph shall not in any
way whatsoever constitute, a waiver by you of compliance with any provision of
the Securities Act of 1933, as amended, or of the rules and regulations of the
Securities and Exchange Commission issued thereunder.
10. You represent that you are a member of the NASD Regulation, Inc. and,
with respect to any sales in the United States, we both hereby agree to abide by
the Conduct Rules of such Association.
11. Upon application to us, we will inform you as to the states in which
we believe the Class B shares have been qualified for sale under, or are exempt
from the requirements of, the respective securities laws of such states, but we
assume no responsibility or obligation as to your right to sell Class B shares
in any jurisdiction. We will file with the Department of State in New York a
Further State Notice with respect to the Class B shares, if necessary.
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12. All communications to us should be sent to the address below. Any
notice to you shall be duly given if mailed or telegraphed to you at the address
specified by you below.
13. Your first order placed pursuant to this Agreement for the purchase of
Class B shares of the Fund will represent your acceptance of this Agreement.
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By _________________________________
(Authorized Signature)
Please return one signed copy
of this Agreement to:
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Accepted:
Firm Name: _________________________________________________
By: ________________________________________________________
Address: ___________________________________________________
____________________________________________________________
Date: ______________________________________________________
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