AMENDMENT TO DISTRIBUTION AGREEMENT
December 1, 2005
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Reference is made to that certain distribution
agreement (the "Agreement"), dated as of June 5, 2000,
between Xxxxx Xxxxxx Investment Trust (the "Investment
Company"), with respect to one or more separate series
listed on Exhibit A (each a "Fund") and Citigroup Global
Markets Inc. This letter agreement (the "Amendment") amends
or supplements certain terms of the Agreement as set forth
below. Except as expressly amended hereby, the provisions
of the Agreement are and shall remain in full force and
effect. Capitalized terms not defined in this Amendment
shall have the meanings given to them in the Agreement.
We acknowledge that Xxxx Xxxxx Inc. ("Xxxx Xxxxx") and
Citigroup Inc. ("Citigroup") have entered into that certain
Amended and Restated Global Distribution Agreement (the
"Global Distribution Agreement"), dated as of October 3,
2005, which provides, for a period of three years from
December 1, 2005, for the distribution by Citigroup
distributors of Citigroup investment products and Xxxx Xxxxx
investment products within the United States and
internationally and for Citigroup's access to certain Xxxx
Xxxxx investment products pursuant to the terms of the
Global Distribution Agreement.
1. Services as a Non-Exclusive Principal Underwriter and
Distributor
Notwithstanding anything to the contrary contained
in the Agreement:
1.1 You shall be, for the period of the Agreement as
amended by this Amendment, a non-exclusive principal
underwriter and distributor of the Fund.
1.2 You may perform any services for any entity, including
investment companies that are not advised or administered by
Citigroup or its subsidiaries.
1.3 You shall retain all rights to the information of your
customers, including, but not limited to, the names,
addresses, telephone numbers and social security numbers of
applicants for, purchasers of, and other customers of the
Fund as well as other identity and private information in
respect of your customers, employees, registered
representatives and agents ("Confidential Information");
provided, however, that Confidential Information shall not
include any customer information that: (x) was previously
known by us from a source other than you without obligations
of confidence; (y) was or is rightfully received by us from
a third party without obligations of confidence to you or
from publicly available sources without obligations of
confidence to you; or (z) was or is developed by means
independent of information obtained from you.
2. Termination
In addition to the termination rights already contained
in the Agreement, (i) at any time prior to the second
anniversary hereof, at your option you may terminate the
Agreement at any time in order for you to enter into a
mutually satisfactory mutual fund dealer agreement with the
principal underwriter that is an affiliate of Xxxx Xxxxx for
the Investment Company (a "Dealer Agreement") and (ii) at
any time following the second anniversary of the date
hereof, either party may at its option terminate the
Agreement at any time in order for you to enter into a
Dealer Agreement ; provided, that any such termination shall
only be effective upon execution and delivery of a Dealer
Agreement which shall be, unless the parties thereto
otherwise agree, in substantially the form presented to the
Board of the Investment Company and attached hereto as
Exhibit B with such additional changes as may be appropriate
to reflect changes in applicable laws, regulations or
industry practice.
3. Dealer and Other Agreements
You may not enter into dealer or similar agreements
with unaffiliated brokers, dealers, banks or other similar
firms or recordkeeping, shareholder servicing and sub-
accounting services with unaffiliated intermediaries without
the written consent of the Investment Company or its
authorized designee. No such unaffiliated intermediary is
authorized to act as agent for the Investment Company in
connection with the offering or sale of Shares of the Fund
to the public or otherwise, except for the limited purpose
of determining the time as of which transactions in Shares
are deemed to have been received.
4. Compliance Matters
(a) You shall act as a distributor and principal
underwriter of Shares in compliance in all material respects
with all applicable laws, rules and regulations, including,
without limitation, all rules and regulations made or
adopted pursuant to (i) the 1940 Act, (ii) the Securities
Exchange Act of 1934 ("1934 Act"), (iii) any securities
association registered under the 1934 Act, including without
limitation the NASD Conduct Rules or rules of any other
applicable self-regulatory organization. You shall offer
the Shares, and accept purchases, redemptions and exchanges
for Shares, in compliance with the Fund's registration
statement (including its prospectus and statement of
additional information), as it may be amended or
supplemented from time to time ("Registration Statement").
You will comply with and abide by the terms of a Fund's
Plan, as it may be amended from time to time.
(b) You agree to submit sales literature and
marketing materials (including memorandums, bulletins,
and/or information or related materials) intended for public
distribution ("CGMI Marketing Materials") to the co-
principal underwriter of the Investment Company which is an
affiliate of Xxxx Xxxxx prior to distribution or publication
for written approval. Such CGMI Marketing Materials shall
be submitted 15 days in advance for review. You shall be
responsible for reviewing and making such filings with the
NASD, as required, of CGMI Marketing Materials relating to
each Fund.
(c) You shall adopt and follow procedures for the
confirmation of sales to investors and qualified securities
dealers, banks and other intermediaries (collectively
"Intermediaries") timeliness of orders, the collection of
amounts payable by investors and Intermediaries on such
sales, the correction of errors related to distribution of
Shares, the cancellation of unsettled transactions, and
assisting with the solicitation of proxies, and any other
matters governed by Rule 38a-1 under the 1940 Act (as may
apply to a distributor or principal underwriter for a
registered investment company), each as may be necessary to
comply with the requirements of the NASD, any other self-
regulatory organization, and the federal securities laws.
You shall provide reports or other information to the
Investment Company at the Investment Company's reasonable
request, including, without limitation, reports related to
the operation and implementation of the Investment Company's
policies related to customer privacy, safeguarding of
customer information, anti-money-laundering, sales and
marketing practices, the operation of your code of ethics or
other policies and procedures of the Investment Company.
(d) You represent, warrant and agree that you
have adopted and implemented: (i) an anti-money-laundering
program in compliance with the USA Patriot Act of 2001, the
regulations thereunder and NASD Conduct Rules, including,
without limitation, customer identification program
procedures, monitoring for suspicious activity, and (ii)
procedures to comply with applicable law and regulation
related to cash transaction reporting requirements, as well
as monitoring and reporting under FinCEN, OFAC and other
government watch lists.
(e) The Investment Company agrees that the
information exchanged under the Agreement and information
about the respective customers and potential customers of
each is confidential and as such shall not be disclosed by
the Fund, sold or used by the Fund in any way except to
carry out the terms of this Agreement. Notwithstanding the
foregoing, such customer information may be disclosed by the
Investment Company on a "need to know" basis as set forth in
applicable privacy rules and regulations. The obligations
regarding confidentiality hereunder shall not apply to any
information which is (i) otherwise publicly available, (ii)
already possessed by the entity to whom the information was
disclosed prior to disclosure hereunder, (iii) independently
developed by the entity, or (iv) disclosed pursuant to law,
rule, regulation or court or administrative order. The
Investment Company shall have the right to use any list of
shareholders of the Fund or any other list of investors
which it obtains in connection with its provision of
services under this Agreement, provided that such use is
consistent with applicable law and your privacy policies of
the Investment Company, including the provision of
information to the Fund's transfer agent or to agents used
for the solicitation of proxies. You agree that you will
comply with all of the foregoing obligations of this to the
extent that information is treated as customer information
of the Fund under applicable law or regulation, including
without limitation Regulation S-P. Each party further
agrees to take commercially reasonable steps, in accordance
with applicable law, to safeguard customer information. The
provisions of this paragraph will survive termination of the
Agreement.
(f) From time to time, each Fund may implement
policies, procedures or charges in an effort to avoid the
potential adverse effects on the Fund of short-term trading
by market timers. You agree to provide other assistance
reasonably designed to achieve compliance with these
policies. You will maintain and enforce policies with
respect to frequent trading and share redemption as are
reasonable and customary in the industry. To the extent
that accounts are held in street name, you agree to
cooperate with the Investment Company and the Investment
Company's Chief Compliance Officer (including, to the extent
practicable, providing account level sales and redemption
information) to assist in compliance with the frequent
trading and redemption fee provisions as set forth in the
Fund's prospectus and other policies set forth in the Fund's
Registration Statement.
(g) Purchases, exchanges and redemptions of
Shares through you will be at the public offering price of
such Shares (the net asset value of the Shares, with
appropriate adjustments for any applicable sales charge), as
determined in accordance with the then effective
Registration Statement used in connection with the offer and
sale of the Shares. The public offering price will 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
Registration Statement. You agree to apply any scheduled
variation in or waivers of sales charges uniformly to all
customers meeting the qualifications therefor as specified
in the Registration Statement. With respect to Funds sold
with an initial sales charge, your customers will be
entitled to reduced sales charges on purchases made under
any letter of intent or right of accumulation as described
in the Registration Statement.. In such case, the
concession from the public offering price retained by you
will be based upon such reduced sales charge. When placing
wire trades, your agree to advise the Funds of any letter of
intent executed by its customer or any available right of
accumulation. The minimum initial purchase and the minimum
subsequent purchase of any Shares shall be as set forth in
the applicable Registration Statement. All orders are
subject to acceptance or rejection by the applicable Fund in
its sole discretion for any reason.
(h) The handling and settlement of purchase,
exchange and redemption orders will be subject to the
provisions of the Registration Statement and such further
procedures as the Investment Company and you may determine
to be appropriate from time-to-time, consistent with this
Amendment. Citigroup Global Markets' internal systems are
suitably designed to handle such orders. Each Fund shall
notify you of the states or jurisdictions in which its
Shares are currently available for sale to the public. The
Investment Company shall have no obligation to register or
make available Fund shares in any state or jurisdiction.
You will be responsible for the accuracy, timeliness and
completeness of purchase, redemption or exchange orders
accepted by you.
(j) The Investment Company acknowledges that the
co-principal underwriter which is affiliated with Xxxx Xxxxx
shall be responsible for reviewing the Registration
Statement of the Fund for the accuracy and completeness of
all disclosure concerning the distribution of Shares and
that you shall not have such responsibility, except, in each
case, to the extent the disclosure information is provided
by you or pertains to information concerning your
operations. Notwithstanding the foregoing, nothing in this
paragraph shall alter your responsibilities for complying
with the terms of the Registration Statement in your
offering of Shares.
5. Records. Upon the Investment Company's reasonable
request, you will provide access to or make copies of any
such records the Investment Company does not possess in
order to: (a) comply with a request from a government body
or self-regulatory organization; (b) verify compliance by
the other party of the terms of this Agreement; or (c) make
required regulatory reports.
6. Section 9 of the 1940 Act. You agree to promptly
notify the Investment Company should you cease to be a
member of the NASD through expulsion or otherwise or if its
membership is suspended or should you be subject to any
limitations on your conduct under Section 9 of the 1940 Act.
7. Indemnification
You agree to indemnify, defend and hold the Investment
Company, its several officers and Board members, and any
person who controls the Investment Company within the
meaning of Section 15 of the 1933 Act, free and harmless
from and against any and all claims, demands, liabilities
and expenses (including the cost of investigating or
defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the
Investment Company, its officers or Board members, or any
such controlling person may incur, under the 1933 Act or
under common law or otherwise, on account of any act of
yours or any of your employees constituting willful
misfeasance, bad faith, or gross negligence in the
performance of its duties, or by reason of your reckless
disregard of your obligations and duties under the Agreement
or this Amendment. The foregoing indemnification provisions
supplement the indemnification provisions of the Agreement.
The indemnifications provisions of this Amendment and the
Agreement shall survive the termination of the Agreement
and/or this Amendment.
If the foregoing is in accordance with your
understanding, kindly indicate your acceptance of this
Amendment by signing and returning to us the enclosed copy,
whereupon this Amendment will become binding on you.
Very truly yours,
Xxxxx Xxxxxx Investment
Trust
By:
_______________________
Name: R. Xxx Xxxxxx
Title: Chief Executive
Officer
Agreed to as of the date first above written:
Citigroup Global Markets Inc.
By: _____________________________
Name:
Title:
EXHIBIT A
Fund Date Added:
Xxxxx Xxxxxx Intermediate December 1, 2005
Maturity California
Municipals Fund
Xxxxx Xxxxxx Intermediate December 1, 2005
Maturity New York Municipals
Fund
Xxxxx Xxxxxx Large December 1, 2005
Capitalization Growth Fund
Xxxxx Xxxxxx S&P 500 Index December 1, 2005
Fund
Xxxxx Xxxxxx Mid Cap Core December 1, 2005
Fund
Xxxxx Xxxxxx Classic Values December 1, 2005
Fund
EXHIBIT B
DEALER AGREEMENT
