Exhibit 6(d)
XXXXXXX & ASSOCIATES, L.P.
SELLING DEALER AGREEMENT
FOR SHARES OF THE OLSTEIN FUNDS
THIS SELLING DEALER AGREEMENT is made as of the 30th day of November,
1995, between Xxxxxxx & Associates, L.P. (the "Distributor") and the broker-
dealer executing this Agreement (the "Selling Dealer") who may be acting on
behalf of a correspondent broker/dealer for whom it performs clearing
services.
WHEREAS, The Xxxxxxx Funds (the "Trust") is registered under the
Investment Company Act of 1940 (the "1940 Act"), as amended, as an open-end
management investment company and each series of the Trust (each a "Fund" and
collectively, the "Funds") is authorized to issue one or more series or
classes of shares of common stock or beneficial interest, as the case may be
("Shares");
WHEREAS, Xxxxxxx & Associates, L.P. and Xxxxxx Square Distributors, Inc.
(a wholly owned subsidiary of Wilmington Trust Company) are the exclusive
national distributors (the "National Distributors") of the Shares pursuant to
an agreement with the Trust; and
WHEREAS, the Selling Dealer desires to serve as a selling dealer for
Shares,
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed among the parties as follows:
1. PURCHASE OF SHARES. The Selling Dealer- may, from time to time purchase
Shares from the National Distributors in accordance with the terms of
this Agreement. In connection with each such purchase, the Selling
Dealer shall act as principal for its own account; the Selling Dealer
shall have no authority to act as agent for the National Distributors or
any of the Funds. The Selling Dealer agrees that it shall purchase
Shares only from the National Distributors, either directly or through a
securities dealer, such as Fund/SERV (any such entity being referred to
as a "Clearing Broker") with which the Selling Dealer and the National
Distributors have established clearing arrangements. The Selling Dealer
agrees to purchase Shares of the Funds only in transactions contemplating
the simultaneous resale of such Shares to investors, or for its own
investment account, and in no event shall the Selling Dealer place orders
for Shares unless it has already received customer orders (including
orders for its correspondents) to purchase Shares at the applicable
Public Offering Price.
2. ACCEPTANCE OF PURCHASE ORDERS. Orders received from the Selling Dealer
for the purchase of Shares ("Purchase Orders") shall be accepted by the
National Distributors only at the price ("Public Offering Price") set
forth in the then effective prospectus used in connection with the sale
of such shares (the "Prospectus"). Purchase Orders shall be handled in
accordance with such oral or written instructions as the National
Distributors may forward to the Selling Dealer from time to time and
shall be subject to procedures relating to the purchase of Shares
disclosed in the Prospectus. Purchase Orders for Shares of any money
market fund listed in Schedule A must be accompanied by full payment in
Federal Funds for such Order to be effective. Payment for Shares of any
funds listed in Schedule A which are subject to a front-end sales load,
or for which Selling Dealers receive commissions advanced by the
Distributor ("Load Funds") must be received by the National Distributors
within five business days after receipt of the Purchase Order. The
National Distributors reserve the right, from time to time and in their
commercially reasonable discretion, to limit the aggregate orders for
Shares of Load Funds placed by a Selling Dealer, for which payment has
not yet been received. In addition, all orders are subject to acceptance
or rejection by the National Distributors or the relevant Fund in the
commercially reasonable discretion of either. Purchase Orders shall be
subject to receipt by the Trust's Transfer Agent of all required
documents in proper form and to the minimum initial and subsequent
purchase requirements set forth in the Prospectus.
3. DEALER COMPENSATION. The Selling Dealer shall receive compensation in
connection with the sale of Shares of Load Funds in the form of
commissions or dealer reallowances, all of which are calculated as a
percentage of the Public Offering Price applicable to Shares purchased by
the Selling Dealer, as specified in the Prospectus, as indicated in
Schedule C of this Agreement.
(a) Advanced Commissions
The Selling Dealer shall receive compensation in connection with the sale
of Shares of the Trust which are not subject to a front-end sales load in
accordance with the provisions of Schedule C of this agreement. Such
compensation may include sales commissions advanced by the Distributor in
accordance with the prospectus and Schedule C. Selling Dealers and other
shareholder servicing agents may also receive compensation for
shareholder services as set forth in the prospectus and Schedule C.
(b) Front End Sales Loads
It is understood that for Shares subject to a sales charge the Public
Offering Price may reflect variations in sales charges, if any,
applicable to the sales of such Shares in accordance with certain
purchase plans set forth in such Prospectus and Schedule C of this
Agreement. The Selling Dealer agrees that it will make reasonable
efforts to apply any such variations uniformly to all offerees in
accordance with the provisions of the Prospectus and will not combine
customer orders to reach "breakpoints" established in the Prospectus or
withhold any customer order so as to profit therefrom. The Selling
Dealer agrees and understands that dealer reallowances will be paid based
upon the schedule set forth in the Prospectus and that, in accordance
2
with such schedule, dealer reallowances will be lower in the case of
purchases to which reduced sales charges apply. However, where the
reduced sales charge is in connection with a letter of intent, adjustment
to a higher dealer reallowance will be made to reflect actual purchases
by the investor if investor should fail to fulfill the letter of intent.
No dealer reallowances shall be payable in respect of Load Fund Shares
purchased through reinvestment of dividends or distributions or with
respect to Load Fund Shares purchased in exchange for other Shares. If
any Load Fund Shares sold to the Selling Dealer under the terms of this
Agreement are tendered for redemption or repurchase within thirty
business days after the date of confirmation to the Selling Dealer of its
purchase order therefor, the Selling Dealer agrees to pay forthwith to
the Distributor the full amount of the dealer reallowance on the original
sale.
4. REDEMPTIONS, REPURCHASES AND EXCHANGES. Orders for the redemption or
repurchase of Shares ("Redemption Orders") as well as exchange requests
shall be handled in accordance with procedures set forth in the
Prospectus and, to the extent consistent with the Prospectus, oral or
written instruction forwarded to the Selling Dealer by the National
Distributors from time to time. The National Distributors will, upon
request, assist the Selling Dealer in processing Redemption Orders and
exchange requests. All such orders and requests are subject to the
timely receipt by the Trust's Transfer Agent of all required documents in
good order. If such documents are not received within a reasonable time
after the order or request is placed, it will be subject to cancellation,
in which case the Selling Dealer agrees to be responsible for any
resulting loss incurred by the National Distributors or the Funds.
5. COMPLIANCE WITH SECURITIES LAWS. The Selling Dealer shall not offer or
sell any Shares except under circumstances that will result in compliance
with the applicable federal and state securities laws. In connection
with sales and offers to sell Shares, the Selling Dealer will make
reasonable efforts to furnish or cause to be furnished to each person to
whom any such sale or offer is made, at or prior to the time of offering
or sale, a copy of the Prospectus and, if requested, the related
statement of additional information (the "SAI"). The National
Distributors shall, upon request, supply the SeIIing Dealer with
sufficient quantities of Prospectuses and SAls for its use in connection
with the offer and sale of the Shares. The Selling Dealer will not
furnish to any person any information in connection with the sale of
Shares that is inconsistent in any respect with the information contained
in such Prospectus or SAI.
The National Distributors shall, from time to time, inform the Selling
Dealer as to the states and jurisdictions in which the Distributor
believes the Shares have been qualified for sale under, or are exempt
from the requirements of, the respective securities laws of such states
and jurisdictions. The Selling Dealer agrees that it will not offer or
sell Shares in any state or Jurisdiction in which such Shares are not
registered, unless any such offer or sale is made in a transaction that
it believes in good faith qualifies for an exemption from such
registration. The Selling Dealer agrees to indemnify the National
Distributors and the Trust against any claim, liability, expense or loss
3
in any way arising out of any sale or exchange of Shares by the Selling
Dealer in any state or jurisdiction in which Shares are not so registered
or qualified, provided Selling Dealer has not been previously advised by
National Distributors that such state or jurisdiction was a qualified or
exempt state or jurisdiction.
The Selling Dealer hereby agrees to maintain all records required by law
relating to transactions on the Shares, and upon the reasonable request
of the National Distributors, or of the Trust, promptly make such of
these records available to the National Distributors or the Trust's
Administrator as are reasonably requested. In addition the Selling
Dealer hereby agrees to establish reasonably appropriate procedures and
reporting forms and/or mechanisms and schedules in conjunction with the
National Distributors and the Trust's Administrator, to enable the Trust
to identify the location, type of, and sales to all accounts opened and
maintained by the Selling Dealer's customers or by the Selling Dealer on
behalf of the Selling Dealer's customers.
The Selling Dealer hereby agrees to abide by the Rules of Fair Practice
of the National Association of Securities Dealers, Inc. (the "NASD") and
all applicable federal and state laws. Reference is specifically made to
Section 26 of Article III of such Rules, which Section is incorporated
herein by reference. The National Distributors assumes no responsibility
in connection with the registration of the Selling Dealer under the laws
of the various states or under federal law or the Selling Dealer's
qualification under any such law to offer or sell Shares. The Selling
Dealer agrees to indemnify the National Distributors and the Funds
against any claim, liability, expense or loss arising solely out of any
sale or exchange of Shares by the Selling Dealer in any state or
jurisdiction in which the Selling Dealer is not so registered or
qualified.
The signing of this Agreement and the purchase of Shares pursuant hereto
is a representation to the National Distributors that the Selling Dealer
is a member in good standing of the NASD and a properly registered broker-
dealer under the Securities Exchange Act of 1934 (the "1934 Act"), as
amended. This Agreement shall terminate automatically in the event of
the Selling Dealer ceases to be a member in good standing of the NASD or
upon the occurrence of any event adversely affecting the Selling Dealers
registration as a broker-dealer under the 1934 Act.
The Selling Dealer represents and warrants that it is a member of the
Securities Investor Protection Corporation ("SIPC") in good standing and
agrees to notify the Selling Dealer of any changes in the Selling Dealers
status with the SIPC. Notwithstanding the aforementioned, the Selling
Dealer agrees to make a notation on all confirmations for transactions
stating, when appropriate, that it is a not a member of the SIPC as
required by Rule 10b-10 of the 1934 Act.
4
6. USE OF SALES MATERIALS. The Selling Dealer shall not use any advertising
or sales materials of any kind relating to the Funds or using the name of
the Trust, the Funds or the National Distributors, or any affiliate
thereof, unless such material is provided to the Selling Dealer by the
National Distributors or unless the Selling Dealer has obtained the prior
written consent of the National Distributors. Neither the Selling Dealer
nor any other person is authorized to make any representation in
connection with the offer and sale of the Shares except those contained
in the Prospectus and SAI or as expressly authorized in writing by the
National Distributors. If the Selling Dealer should make any such
unauthorized representation, or use, or cause others to use, advertising
or sales material not provided to the Selling Dealer by the National
Distributors or without the National Distributors' prior approval, the
Selling Dealer shall indemnify the National Distributors and the relevant
Fund from and against any and all claims, liability, expense or losses
arising solely out of such representation.
7. CONFIRMATIONS. The Selling Dealer agrees to send confirmations of orders
to its customers as required by Rule 10b-10 of the 1934 Act and agrees to
pay any costs in connection therewith. The Selling Dealer agrees to use
all reasonable efforts to ensure that taxpayer identification numbers
provided by it on behalf of investors are correct.
8. SUSPENSION OF SALES; AMENDMENTS. The Distributor shall have full
authority to take such commercially reasonable action as it may deem
advisable in respect of all matters pertaining to the continuous offering
of Shares, in particular and without limitation, the right in its
reasonable discretion and without notice to the Selling Dealer to suspend
sales or withdraw the offering of Shares. Upon notice to the Selling
Dealer, the Distributor may amend this Agreement and the Selling Dealer
agrees that any Purchase Order placed by it after notice and acceptance
of any amendment to this Agreement has been sent to the Selling Dealer
shall constitute its agreement to such amendment.
9. FEES PURSUANT TO RULE 12B-I PLAN. The Selling Dealer shall be entitled
to receive certain fees in connection with its sales, promotional and
shareholder servicing efforts hereunder in accordance with the Plan of
Distribution adopted by the Fund. Such fees shall be payable in the
amounts and in the manner set forth in Schedule C to this agreement,
which Schedule C is expressly incorporated herein.
10. NO AGENCY CREATED. Nothing in this Agreement shall be deemed or
construed to make the Selling Dealer an employee, agent, representative
or partner of the Trust or of any of the Funds or of the National
Distributors, and the Selling Dealer is not authorized to act for the
National Distributors or for the Trust or any Fund or to make any
representations on their behalf. The Selling Dealer acknowledges that
this Agreement is not exclusive and that the National Distributors may
enter into similar arrangement with others. The Selling Dealer and the
National Distributors agree that each will be responsible for its own
expenses in connection with its activities hereunder and each will be
responsible for complying with the federal and state laws governing the
operation of their respective business and the NASD Rules.
5
11. TERMINATION AND ASSIGNMENT. This Agreement shall also be terminable
without penalty upon thirty (30) days' written notice to the Distributor
by the Selling Dealer and upon thirty (30) days' written notice to the
Selling Dealer by the Distributor; provided, however, that any
termination of this Agreement by operation of this Section 11 shall not
affect any unpaid obligations under Sections 2, 3 or 9 of this Agreement.
This Agreement shall not be assignable by any of the parties hereto.
Nothing in this agreement is intended to confer upon any person other
than the parties hereto and their successors, any rights or remedies
under or by reason of this Agreement, other than those expressly set
forth herein.
12. LEGAL FEES. If any claims are asserted against the National Distributors
or the Trust solely regarding claims as to which the Selling Dealer has
indemnified such parties herein, the parties shall have the right to
engage in their own defense, including the selection and engagement of
counsel of their choosing and all costs of such defense shall be borne by
the Selling Dealer, provided shall have the right to approve such counsel
after written application by such National Distributors or trust has been
made. Such consent shall not be unreasonably withheld.
13. NOTICE. Any notice required or permitted to be given by either party to
the other shall be deemed sufficient if sent by registered or certified
mail, postage prepaid, addressed by the party giving notice to the other
party at the last address furnished by the other party to the party
giving notice: if to the National Distributors, at 0000 X. Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx, 00000; if to the Selling Dealer at the address
listed on Schedule B.
14. SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement constitutes
the entire agreement between the parties and supersedes all prior
agreements.
15. GOVERNING LAW. To the extent that state law has not been preempted by
the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement
shall be administered, construed and enforced according to the laws of
the State of New York without regard to the conflict of law rules.
Any controversy relating to the rights and obligations of the parties,
the terms of this agreement or the interpretation thereof shall be
decided by arbitration in accordance with the arbitration rules then in
effect and before a panel of arbitrators appointed by the NASD.
16. MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
6
17. CLEARING BROKERS. The National Distributors acknowledge that the Selling
Dealer may act as a clearing broker, or may utilize the services of one
or more Clearing Brokers with respect to purchases of Shares by the
Selling Dealers customers. The Selling Dealer acknowledges that this
agreement authorizes only it, and not any correspondent for which Selling
Dealer clears, to offer or sell Shares under this Agreement. The
National Distributors agrees to accept Purchase Orders from any
correspondent that the Selling Dealer identifies to the National
Distributors in writing as authorized to place orders on the Selling
Dealer's behalf, provided that the Selling Dealer agrees that the
National Distributors and the Funds shall be entitled to treat such
orders as though they had been placed by the Selling Dealer directly. In
addition, except where the context otherwise requires, references in this
Agreement to the Selling Dealer shall be deemed to include references to
the Selling Dealer or any correspondent for which it clears. The Selling
Dealer agrees to make reasonable efforts to make any such correspondent
aware of the Selling Dealers obligations and agreements under this
Agreement. Neither the National Distributors nor the Trust shall be
liable hereunder to the Selling Dealer or to any Clearing Broker for any
claim, liability, expense or loss arising solely from the Selling Dealers
arrangements with such Clearing Broker, and the Selling Dealer agrees to
hold the National Distributors and the Trust harmless from and against
any claim, liability, expense or loss arising solely from the activities
of the Clearing Broker in connection with Purchase Orders, Redemption
Orders or exchange requests actually initiated by the Selling Dealer.
18. INDEMNIFICATION. Xxxxxxx & Associates, L.P. and the funds for which
Xxxxxx Square Distributors, Inc. acts as distributor ("Olstein") agree to
indemnify Bear, Xxxxxxx & Co., Inc. and Bear Steams Securities Corp.
("Bear Steams"), its officers, directors, employees and any person who is
or may be deemed a controlling person of Bear Steams, harmless from and
against any losses, claims, damages, liabilities or expenses (including
reasonable fees of counsel) to which Bear Steams or any such person or
entity may become subject insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of or
are based on a) any untrue statement or alleged untrue statement of
material fact or any omission or alleged omission to state a material
fact made or omitted by Olstein any offering, sales or other document
supplied to or utilized by Bear Steams, or b) any misfeasance, misconduct
or negligence on the part of Olstein, its employees, officers, directors,
agents or assigns in the performance of its duties or obligations
hereunder.
7
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXXX & ASSOCIATES, L.P. SELLING DEALER:
By: /s/ Xxxxxx X. Xxxxxxx BEAR XXXXXXX SECURITIES CORP.
Xxxxxx X. Xxxxxxx, President
By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Vice President
8
XXXXXXX & ASSOCIATES, L.P.
SELLING DEALER AGREEMENT
SCHEDULE A
LOAD FUNDS
THE OLSTEIN FUNDS
THE OLSTEIN FINANCIAL ALERT FUND
A-1
XXXXXXX & ASSOCIATES, L.P.
SELLING DEALER AGREEMENT
SCHEDULE B
Broker/Dealer Name: Bear Xxxxxxx & Co., Inc.
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
B-1
XXXXXXX & ASSOCIATES, L.P.
SELLING DEALER AGREEMENT
DEALER COMPENSATION SCHEDULE
As compensation for sales of shares of the Olstein Financial Alert Fund
(the "Fund") by the Selling Dealer, and as compensation for such Selling
Dealer's ongoing shareholder servicing and distribution functions, the Selling
Dealer will receive the following fees:
* 1.5% of the dollar amount of shares sold (excluding any shares sold
to customers through reinvestment of dividends and/or capital
gains), to be paid by Xxxxxxx & Associates, L.P., provided that the
shares are not redeemed or repurchased by the Fund within seven (7)
business days after confirmation of the original purchase order for
such shares. In the event the full purchase price of the Shares is
transmitted to the Fund for investment, this payment shall be made
by Xxxxxxx & Associates, L.P. If the Selling Dealer remits payment
to the Fund net of this amount, Xxxxxxx & Associates, L.P. will pay
to the Fund the amount required to fulfill the investment. Selling
Dealer agrees that it will be obligated for any amount retained if
the Shares are redeemed within seven (7) business days.
* For outstanding shares of the Fund held in accounts for which the
Selling Dealer continues to be named as the broker of record one (1)
year following the original purchase, the Selling Dealer will
receive, payable quarterly, from the end of the first year until the
end of the fifth year following the original purchase, 90% of the
total annual 12b-I fees paid by the Fund in relation to such shares.
The Selling Dealer's payment will consist of one-hundred percent
(100%) of the administrative 12b-1 fee (currently 0.25% per annum),
and eighty-six and two-thirds percent (86 2/3%) of the distribution
12b-1 fee (currently 0.75% per annum).
* For outstanding shares of the Fund held in accounts for which the
Selling Dealer continues to be named as the broker of record five
(5) years following the original purchase, from such fifth year and
until such shares are redeemed, the Selling Dealer will receive,
payable quarterly, 75 % of the total 12b-1 fees paid by the Fund in
relation to such shares.
It is understood that the above compensation arrangement may be amended at any
time, subject to written approval by all interested parties.
