FINANCIAL INSTITUTION SALES CONTRACT
Between: [ ] and
XXXXXX RETAIL MANAGEMENT
General Distributor of
The Xxxxxx Family of Mutual Funds
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
As general distributor of The Xxxxxx Family of Mutual Funds (the "Funds"),
we agree that you will make available to your customers, under an agency
relationship with your customers, shares of beneficial interest issued by
the Funds (the "Shares"), subject to any limitations imposed by any of the
Funds and to confirmation by us of each transaction. By your acceptance
hereof, you agree to all of the following terms and conditions:
1. Offering Prices and Fees
The public offering price at which you may make the Shares available to
your customers is the net asset value thereof, as computed from time to
time, plus any applicable sales charge described in the then-current
Prospectus of the applicable Fund. In the case of purchases by you, as
agent for your customers, of Shares sold with a sales charge, you shall
receive an agency commission consisting of a portion of the public
offering price, determined on the same basis as the "dealer discount"
described in the then-current Prospectus of the Fund, and such other
compensation to dealers as may be described therein, which shall be
payable to you at the same time and on the same basis as the same is
paid to such dealers, consistent with applicable law, rules and
regulations. In determining the amount of any agency commission payable
to you hereunder, we reserve the right to exclude any purchases for any
accounts which we reasonably determine are not made in accordance with
the terms of the applicable Fund Prospectus and the provisions of this
Contract. We reserve the right to revise the agency commission referred
to herein upon ten days' written notice to you. We will furnish you
upon request with the public offering prices for the Shares, and you
agree to quote such prices in connection with any Shares made available
by you as agent for your customers. Your attention is specifically
called to the fact that each purchase of Shares by your customers is
always made subject to confirmation by us at the public offering price
next computed after receipt of the order. There is no sales charge or
agency commission to you on the reinvestment of dividends and
distributions.
2. Manner of Making Shares Available for Purchase
We will, upon request, deliver to you a copy of each Fund's then-current
Prospectus and will provide you with such number of copies of each
Fund's then-current Prospectus, Statement of Additional Information and
shareholder reports and of supplementary sales materials prepared by us,
as you may reasonably request. It shall be your obligation to ensure
that all such information and materials are distributed to your
customers who own Shares, in accordance with securities and/or banking
law and regulations and any other applicable regulations. Neither you
nor any other person is authorized to give any information or to make
any representations other than those contained in such Prospectuses,
Statements of Additional Information and shareholder reports or in such
supplementary sales materials. You shall not furnish or cause to be
furnished to any person, display or publish any information or materials
relating to any Fund (including, without limitation, promotional
materials and sales literature, advertisements, press releases,
announcements, statements, posters, signs or other similar material),
except such information and materials as may be furnished to you by us
or the Fund, and such other information and materials as may be approved
in writing by us.
You hereby agree:
(i) to not purchase any Shares as agent for any customer, unless you
deliver or cause to be delivered to such customer, at or prior to the
time of such purchase, a copy of the then-current Prospectus of the
applicable Fund unless such customer has acknowledged receipt of the
Prospectus of such Fund. You hereby represent that you understand your
obligation to deliver a prospectus to customers who purchase Shares
pursuant to federal securities laws and you have taken all necessary
steps to comply with such prospectus delivery requirements;
(ii) to transmit to us promptly upon receipt any and all orders received
by you, it being understood that no conditional orders will be accepted;
(iii) to obtain from each customer for whom you act as agent for the
purchase of Shares any taxpayer identification number certification and
backup withholding information required under the Internal Revenue Code
of 1986, as amended from time to time (the "Code"), and the regulations
promulgated thereunder, or other sections of the Code which may become
applicable, and to provide us or our designee with timely written notice
of any failure to obtain such taxpayer identification number
certification or information in order to enable the implementation of
any required backup withholding in accordance with the Code and the
regulations thereunder; and
(iv) to pay to us the offering price, less any agency commission to
which you are entitled, within three (3) business days of our
confirmation of your customer's order, or such shorter time as may be
required by law. You may, subject to our approval, remit the total
public offering price to us, and we will return to you your agency
commission. If such payment is not received within said time period, we
reserve the right, without prior notice, to cancel the sale, or at our
option to return the Shares to the issuer for redemption or repurchase.
In the latter case, we shall have the right to hold you responsible for
any loss resulting to us. Should payment be made by local bank check,
liquidation of Shares may be delayed pending clearance of your check.
In the event your check is dishonored for any reason, you shall remain
liable for the purchase price and any loss incurred by us. In addition,
should payment be made by means of a second or third party check, you
shall be deemed to have made all presentment, transfer and other
applicable warranties set forth in the Uniform Commercial Code, and in
the event such check is either dishonored or subsequently determined to
be invalid for any reason (including without limitation as a result of
such check having been lost, stolen or unauthorized) you shall remain
liable for the purchase price and any loss incurred by us.
Unless otherwise mutually agreed in writing or except as provided below,
each transaction placed by you shall be promptly confirmed by us in writing
to you, and shall be confirmed to the customer promptly upon receipt by us
of instructions from you as to such customer. In the case of a purchase
order by customer's application, each transaction shall be promptly
confirmed in writing directly to the customer and a copy of each
confirmation shall be sent simultaneously to you. We reserve the right, at
our discretion and without notice, to suspend the sale of Shares or
withdraw entirely the sale of Shares of any or all of the Funds. All
orders are subject to acceptance or rejection by us in our sole discretion,
and by the Funds in their sole discretion. The procedure stated herein
relating to the pricing and handling of orders shall be subject to
instructions which we may forward to you from time to time.
3. Compliance With Law
You hereby represent that you are either (1) a "bank" as defined in
Section 3(a)(6) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and at the time of each transaction in shares of the
Funds, are not required to register as a broker-dealer under the
Exchange Act or regulations thereunder; or (2) registered as a
broker-dealer under the Exchange Act, a member in good standing of the
National Association of Securities Dealers, Inc. ("NASD") and affiliated
with a bank.
(a) If you are a bank, not required to register as a broker-dealer under
the Exchange Act: You further represent and warrant to us that with
respect to any sales in the United States, you will use your best
efforts to ensure that any purchase of Shares by your customers
constitutes a suitable investment for such customers. You shall not
effect any transaction in, or induce any purchase or sale of, any Shares
by means of any manipulative, deceptive or other fraudulent device or
contrivance, and shall otherwise deal equitably and fairly with your
customers with respect to transactions in Shares of a Fund.
(b) If you are a NASD member broker-dealer affiliated with a bank and
registered under the Exchange Act: You further represent and warrant to
us that with respect to any sales in the United States, you agree to
abide by all of the applicable laws, rules and regulations including
applicable provisions of the Securities Act of 1933, as amended, and the
applicable rules and regulations of the NASD, including, without
limitation, its Rules of Conduct, and the applicable rules and
regulations of any jurisdiction in which you make Shares available for
sale to your customers.
You agree not to make available for sale to your customers the Shares in
any jurisdiction in which the Shares are not qualified for sale or in
which you are not qualified as a broker-dealer. We shall have no
obligation or responsibility as to your right to make Shares of any
Funds available to your customers in any jurisdiction. You agree to
notify us immediately in the event of (i) your expulsion or suspension
from the NASD or your becoming subject to any enforcement action by the
Securities and Exchange Commission, NASD, or any other self-regulatory
organization, or (ii) your violation of any applicable federal or state
law, rule or regulation including, but not limited to, those of the SEC,
NASD or other self-regulatory organization, arising out of or in
connection with this Agreement, or which may otherwise affect in any
material way your ability to act in accordance with the terms of this
Contract.
You shall not make Shares of any Fund available to your customers,
including your fiduciary customers, except in compliance with all
federal and state laws and rules and regulations of regulatory agencies
or authorities applicable to you, or any of your affiliates engaging in
such activity, which may affect your business practices. You confirm
that you are not in violation of any banking law or regulations as to
which you are subject.
4. Relationship with Customer
With respect to any and all transactions in the Shares of any Fund
pursuant to this Contract, it is understood and agreed in each case
that: (a) you shall be acting solely as agent for the account of your
customer; (b) each transaction shall be initiated solely upon the order
of your customer; (c) we shall execute transactions only upon receiving
instructions from you acting as agent for your customer or upon
receiving instructions directly from your customer; (d) as between you
and your customer, your customer will have full beneficial ownership of
all Shares; (e) each transaction shall be for the account of your
customer and not for your account; and (f) unless otherwise agreed in
writing we will serve as a clearing broker for you on a fully disclosed
basis, and you shall serve as the introducing agent for your customers'
accounts. Subject to the foregoing, however, and except for Shares sold
subject to a contingent deferred sales charge, you may maintain record
ownership of such customers' Shares in an account registered in your
name or the name of your nominee, for the benefit of such customers.
With respect to Shares sold subject to a contingent deferred sales
charge, you agree not to hold shares of such Funds in an account
registered in your name or in the name of your nominee for the benefit
of certain of your customers. You understand that such Shares must be
held in a separate account for each shareholder of such Funds. Each
transaction shall be without recourse to you provided that you act in
accordance with the terms of this Agreement. You represent and warrant
to us that you will have full right, power and authority to effect
transactions (including, without limitation, any purchases and
redemptions) in Shares on behalf of all customer accounts provided by
you.
5. Relationship With Financial Institution
Neither this Contract nor the performance of the services of the
respective parties hereunder shall be considered to constitute an
exclusive arrangement, or to create a partnership, association or joint
venture between you and us. In making available Shares of the Funds
under this Contract, nothing herein shall be construed to constitute you
or any of your agents, employees or representatives as our agent or
employee, or as an agent or employee of the Funds, and you shall not
make any representations to the contrary. As general distributor of the
Funds, we shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the distribution of
the Shares. We shall not be under any obligation to you, except for
obligations expressly assumed by us in this Contract.
6. Termination
Either party hereto may terminate this Contract, without cause, upon ten
days' written notice to the other party. We may terminate this Contract
for cause upon the violation by you of any of the provisions hereof,
such termination to become effective on the date such notice of
termination is mailed to you. If you are registered as a broker-dealer
and affiliated with a bank, this Contract shall terminate automatically
if either Party ceases to be a member of the NASD.
7. Assignability
This Contract is not assignable or transferable, except that we may
assign or transfer this Contract to any successor which becomes general
distributor of the Funds.
8. Miscellaneous
(a) All communications mailed to us should be sent to the above address.
Any notice to you shall be duly given if mailed or delivered to you at
the address specified by you below.
(b) This Contract constitutes the entire agreement and understanding
between the parties and supercedes any and all prior agreements between
the parties.
(c) This Contract and the rights and obligations of the parties
hereunder shall be governed by and construed under the laws of The
Commonwealth of Massachusetts.
Very truly yours,
XXXXXX RETAIL MANAGEMENT LIMITED
PARTNERSHIP
By:
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Xxxxxxx X. Xxxxxxxx
President
We accept and agree to the foregoing Contract as of the date set forth
below.
Financial Institution:
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By:
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Authorized Signature, Title
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Address
Dated:
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Please return the signed Xxxxxx copy of this sales Contract to Xxxxxx
Retail Management, P. X. Xxx 00000, Xxxxxxxxxx, XX 00000-0000
