Exhibit e
FORM OF PLACEMENT AGENCY AGREEMENT
Xxxxxxx Xxxxx Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the trusts listed on the signature pages hereto (each, a "Trust,"
and collectively the "Trusts"), each an open-end diversified management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act") and organized as a New York trust, has agreed that
Xxxxxxx Xxxxx Barney, Inc. ("Salomon") shall be the exclusive placement agent
(the "Placement Agent") of beneficial interests in the Trust ("Trust
Interests").
1. SERVICES AS PLACEMENT AGENT
1.1 Salomon will act as exclusive Placement Agent of the Trust Interests
covered by the applicable registration statement then in effect under
the 1940 Act. In acting as Placement Agent under this Placement Agent
Agreement, neither Salomon nor its employees nor any agents thereof
shall make any offer or sale of Trust Interests in a manner which would
require the Interests to be registered under the Securities Act of 1933,
as amended (the "1933 Act").
1.2 All activities by Salomon and its agents and employees as Placement
Agent of Trust Interests shall comply with all applicable laws, rules
and regulations, including, without limitation, all rules and
regulations adopted pursuant to the 1940 Act by the Securities and
Exchange Commission (the "Commission").
1.3 Salomon shall perform such specified activities and conduct all of its
activities as Placement Agent of Trust Interests, including any
activities described herein, as set forth in the Operating Policies and
Procedures (the "Operating Procedures") of the applicable Trust (in such
form as may be approved from time to time by the Trust's Board of
Trustees). To the extent that any provision of this Agreement shall
conflict with any provision of the Operating Procedures, the applicable
provision of the Operating Procedures shall be deemed to govern.
1.4 Nothing herein shall be construed to require a Trust to accept any offer
to purchase any Trust Interests, all of which shall be subject to
approval by the Trust's Board of Trustees.
1.5 Each Trust shall furnish from time to time for use in connection with
the sale of Trust Interests such information with respect to the Trust
and Trust Interests as Salomon may reasonably request. Each Trust shall
also furnish Salomon upon request with: (a) unaudited semi-annual
statements of the Trust's books and accounts prepared by the Trust, and
(b) from time to time such additional information regarding the Trust's
financial or regulatory condition as Salomon may reasonably request.
1.6 Each Trust represents to Salomon that all registration statements filed
by or on behalf of the Trust with the Commission under the 1940 Act with
respect to Trust Interests have been prepared in conformity with the
requirements of such statute and the rules and regulations of the
Commission thereunder. As used in this Agreement the term "registration
statement" shall mean any registration statement filed with the
Commission as modified by any amendments thereto that at any time shall
have been filed with the Commission by or on behalf of a Trust. Each
Trust represents and warrants to Salomon that any registration statement
filed by or on behalf of the Trust will contain all statements required
to be stated therein in conformity with both such statute and the rules
and regulations of the Commission; that all statements of fact contained
in any such registration statement will be true and correct in all
material respects at the time of filing of such registration statements
or amendments thereto; and that no registration statement filed by or on
behalf of the Trust will include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser
of Trust Interests. Each Trust may, but shall not be obligated to,
propose from time to time such amendment to any registration statement
as in the light of future developments may, in the opinion of the
Trust's counsel, be necessary or advisable. If a Trust shall not propose
such amendment and/or supplement within fifteen days after receipt by
the Trust of a written request from Salomon to do so, Salomon may, at
its option, terminate this Agreement as to that Trust. A Trust shall not
file any amendment to any registration statement pertaining to that
Trust without giving Salomon reasonable notice thereof in advance;
provided, however, that nothing contained in this Agreement shall in any
way limit a Trust's right to file at any time such amendment to any
registration statement as the Trust may deem advisable, such right being
in all respects absolute and unconditional.
1.7 In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of
Salomon, each Trust agrees to indemnify Salomon, its officers and
directors, and any person which controls Salomon within the meaning of
the 1933 Act against any and all claims, demands, liabilities and
expenses that any such indemnified party may incur under the 1933 Act,
or common law or otherwise, arising out of or based upon any alleged
untrue statement of a material fact contained in the registration
statement for that Trust or any of its series (each, a "Portfolio"), or
any advertisements or sales literature prepared by or on behalf of the
Trust for Salomon's use, or any omission to state a material fact
therein, the omission of which makes any statement contained therein
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 Salomon. Nothing herein contained shall
require a Trust to take any action contrary to any provision of its
Declaration of Trust or any applicable statute or regulation.
1.8 Salomon agrees to indemnify each Trust, its officers and Trustees and
any person which controls the Trust within the meaning of the 1933 Act
against any and all claims, demands, liabilities and expenses that any
such indemnified party may incur under the 1933 Act, or common law or
otherwise, arising out of or based upon (i) any alleged untrue statement
of a material fact contained in the registration statement for any Trust
or any Portfolio, or any advertisements or sales literature prepared by
or on behalf of the Trust for Salomon's use, or any omission to state a
material fact therein, the omission of which makes any statement
contained therein misleading, if 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 Salomon; and (ii) any act or
deed of Salomon or its sales representatives that has not been
authorized by the Trust in any registration statement or by this
Agreement.
1.9 No Trust Interests shall be offered by either Salomon or a Trust under
any of the provisions of this Agreement and no orders for the purchase
or sale of Trust Interests hereunder shall be accepted by a Trust if and
so long as the effectiveness of the registration statement pertaining to
that Trust or any necessary amendments thereto shall be suspended under
any of the provisions of the 1940 Act; provided, however, that nothing
contained in this paragraph shall in any way restrict or have an
application to or bearing on a Trust's obligation to redeem Trust
Interests from any investor in accordance with the provisions of the
Trust's registration statement or Declaration of Trust, as amended from
time to time.
1.10 Each Trust agrees to advise Salomon as soon as reasonably practical by a
notice in writing delivered to Salomon or its counsel:
(a) of any request by the Commission for amendments to the registration
statement pertaining to the Trust then in effect or for additional
information;
(b) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement pertaining to
the Trust then in effect or the initiation by service of process on the
Trust of any proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement of a
material fact made in the registration statement pertaining to the Trust
then in effect or that requires the making of a change in such
registration statement in order to make the statements therein not
misleading; and
(d) of all action of the Commission with respect to any amendment to any
registration statement pertaining to the Trust that may from time to
time be filed with the Commission.
For purposes of this paragraph 1.10, informal requests by or acts of the Staff
of the Commission shall not be deemed actions of or requests by the Commission.
1.11 Salomon agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trusts all records
and other information not otherwise publicly available relative to each
Trust and its prior, present or potential investors and not to use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except after prior notification
to and approval in writing by the appropriate Trust, which approval
shall not be unreasonably withheld and may not be withheld where Salomon
may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, or when so requested by a Trust.
1.12 In addition to Salomon's duties as Placement Agent, each Trust
understands that Salomon may, in its discretion, perform additional
functions in connection with transactions in Trust Interests.
The processing of Trust Interest transactions may include, but is not limited
to, compilation of all transactions from Salomon's various offices; creation of
a transaction tape and timely delivery of it to the applicable Trust's transfer
agent for processing; reconciliation of all transactions delivered to a Trust's
transfer agent; and the recording and reporting of these transactions executed
by the applicable Trust's transfer agent in customer statements; rendering of
periodic customer statements; and the reporting of IRS Form 1099 information at
year end if required.
Salomon may also provide other investor services, such as communicating with
Trust investors and other functions in administering customer accounts for
Trust investors.
Salomon understands that these services may result in cost savings to the
Trusts or to the Trusts' investment manager and neither the Trusts nor the
Trusts' investment manager will compensate Salomon for all or a portion of the
costs incurred in performing functions in connection with transactions in Trust
Interests. Nothing herein is intended, nor shall be construed, as requiring
Salomon to perform any of the foregoing functions.
2. TERM.
(a) This Agreement shall become effective with respect to a Trust or
Portfolio on the date indicated on Exhibit A attached hereto. Exhibit A
may be amended from time to time to add additional series of a Trust as
agreed by that Trust and Salomon. This Agreement shall continue with
respect to a Trust or Portfolio, as the case may be, for successive
annual periods after its effectiveness so long as each such continuance
is specifically approved by votes of a majority of both the Trustees of
the applicable Trust and the Trustees of the Trust who are not parties
to this Agreement or interested persons (as defined in the 0000 Xxx) of
any such party and who have no direct or indirect financial interest in
this Agreement ("Independent Trustees"), cast in person at a meeting
called for the purpose of voting on such approval.
(b) This Agreement is terminable as to a Trust or any Portfolio, without
penalty, on 60 days' notice by the Trustees of the applicable Trust, by
vote of the holders of a majority of the Trust Interests or beneficial
interests in the Portfolio, as applicable, or on 90 days' notice by
Salomon.
(c) This Agreement shall automatically terminate in the event of its
assignment (as defined in the 1940 Act).
3. LIMITATION OF LIABILITY.
Each party acknowledges and agrees that all obligations of each Trust under
this Agreement are binding only with respect to that Trust or, if the Trust
Interests have been divided into series, the applicable Portfolio; that any
liability of the Trust under this Agreement, or in connection with the
transactions contemplated herein, shall be discharged only out of the assets of
that Trust or Portfolio, as the case may be; and that no other series of the
Trust shall be liable with respect to this Agreement or in connection with the
transactions contemplated herein.
The obligations of each Trust hereunder shall not be binding upon any of the
Trustees or officers of the Trust or holders of beneficial interests in the
Trust personally, but shall bind only the assets and property of the particular
Trust or, if the beneficial interests in the Trust have been divided into
series, the particular Portfolio or Portfolios in question, and not any other
Portfolio or series of the Trust or any other Trust that is party to this
Agreement. Any reference to a Trust hereunder means and refers to the Trustees
from time to time serving under the Declaration of Trust of the Trust. The
execution and delivery of this Agreement has been authorized by the Trustees,
and this Agreement has been signed on behalf of each Trust by an authorized
officer of the Trust, acting as such and not individually, and neither such
authorization by such Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the assets and
property of the Trust as provided in the Declaration of Trust.
4. REPRESENTATIONS AND WARRANTIES.
Salomon and each Trust each hereby represents and warrants to the other that it
has all requisite authority to enter into, execute, deliver and perform its
obligations under this Agreement and that, with respect to it, this Agreement
is legal, valid and binding, and enforceable in accordance with its terms.
5. CONCERNING APPLICABLE PROVISIONS OF LAW, ETC.
This Agreement shall be subject to all applicable provisions of law, including
the applicable provisions of the 1940 Act and to the extent that any provisions
herein contained conflict with any such applicable provisions of law, the
latter shall control.
If the contract set forth herein is acceptable to you, please so indicate by
executing the enclosed copy of this Agreement and returning the same to the
undersigned, whereupon this Agreement shall constitute a binding contract
between the parties hereto effective at the closing of business on the date
hereof.
Yours very truly,
THE PREMIUM PORTFOLIOS
ASSET ALLOCATION PORTFOLIOS
CASH RESERVES PORTFOLIO
U.S. TREASURY RESERVES PORTFOLIO
TAX FREE RESERVES PORTFOLIO
each on behalf of itself and its series listed on Exhibit A attached hereto
By:________________________
Title:
Accepted:
XXXXXXX XXXXX XXXXXX, INC.
By:________________________
Title:
EXHIBIT A
TRUST AND PORTFOLIO EFFECTIVE DATE
THE PREMIUM PORTFOLIOS
Government Income Portfolio __________
International Equity Portfolio __________
Large Cap Growth Portfolio __________
Small Cap Growth Portfolio __________
ASSET ALLOCATION PORTFOLIOS
Large Cap Value Portfolio __________
Small Cap Value Portfolio __________
International Portfolio __________
Foreign Bond Portfolio __________
CASH RESERVES PORTFOLIO __________
U.S. TREASURY RESERVES
PORTFOLIO __________
TAX FREE RESERVES
PORTFOLIO __________
