Exhibit 6
DISTRIBUTION AGREEMENT
BETWEEN
XXXXXX ADVISORS TRUST
AND
WAM BROKERAGE SERVICES, L.L.C.
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made as of this 1st day of
January, 1998 by and between XXXXXX ADVISORS TRUST, a business trust organized
and existing under the laws of the Commonwealth of Massachusetts ("WAT"), and
WAM BROKERAGE SERVICES, L.L.C., a limited liability company organized and
existing under the laws of the State of Illinois ("WAM BD").
RECITALS:
WHEREAS, WAT is engaged in business as an open-end management investment
company registered under the Investment Company Act of 1940, as amended ("1940
Act");
WHEREAS, WAM BD is registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended ("1934 Act"), and the laws of each state
(including the District of Columbia and Puerto Rico) in which it engages in
business to the extent such law requires, and is a member of the National
Association of Securities Dealers ("NASD") (such registrations and membership
are referred to collectively as the "Registrations");
WHEREAS, WAT desires WAM BD to act as the distributor in the public
offering of its shares of beneficial interest (hereinafter called "Shares")
which are divided into two series, Xxxxxx U.S. Small Cap Advisor and Xxxxxx
International Small Cap Advisor(hereinafter called, collectively, the "Funds"
and, individually, the "Fund");
WHEREAS, WAT has entered into investment advisory agreements with Xxxxxx
Asset Management, L.P. ("WAM"), an affiliate of WAM BD, pursuant to which WAM
has agreed to pay all expenses incurred in the sale and promotion of shares of
WAT;
NOW, THEREFORE, the parties hereto agree as follows:
1. Appointment. WAT appoints WAM BD to act as principal underwriter (as
such term is defined in Section 2(a)(29) of the 1940 Act of its Shares.
2. Delivery of WAT Documents. WAT has furnished WAM BD with properly
certified or authenticated copies of each of the following in effect on the date
hereof and shall furnish WAM BD from time to time properly certified or
authenticated copies of all amendments or supplements thereto:
(a) Agreement and Declaration of Trust;
(b) By-Laws;
(c) Resolutions of its Board of Trustees (hereinafter referred to as
the "Board") selecting WAM BD as distributor and approving this
form of agreement and authorizing its execution.
WAT shall furnish WAM BD promptly with copies of any registration
statements filed by it with the Securities and Exchange Commission ("SEC") under
the Securities Act of 1933 (the "1933 Act") or the 1940 Act, together with any
financial statements and exhibits included therein, and all amendments or
supplements thereto hereafter filed.
WAT also shall furnish WAM BD such other certificates or documents which
WAM BD may from time to time, in its discretion, reasonably deem necessary or
appropriate in the proper performance of its duties.
3. Solicitation of Orders for Purchase of Shares.
(a) Subject to the provisions of Paragraphs 5, 6 and 8 hereof, and to such
minimum purchase and investor eligibility requirements as may from time to time
be indicated in WAT's Prospectus, WAM BD is authorized to solicit, as agent on
behalf of WAT, unconditional orders for purchases of WAT's Shares authorized for
issuance and registered under the 1933 Act, provided that:
(1) WAM BD shall act solely as a disclosed agent on behalf of and for
the account of WAT;
(2) WAT's transfer agent shall receive directly from investors all
payments for the purchase of WAT's Shares and also shall pay
directly to shareholders amounts due to them for the redemption
or repurchase of all WAT's Shares, with WAM BD having no rights
or duties to accept such payment or to effect such redemptions or
repurchases; if a payment for the purchase of WAT's Shares be
delivered to WAM BD, such payment shall not be negotiated by WAM
BD but shall be delivered as soon as reasonably practicable to
WAT's transfer agent;
(3) WAM BD shall confirm all orders received for purchase of WAT's
Shares which confirmation shall clearly state (i) that WAM BD is
acting as agent of WAT in the transaction, (ii) that all
certificates for redemption, remittances and registration
instructions should be sent directly to WAT and (iii) WAT's
mailing address;
(4) WAM BD shall have no liability for payment for purchases of WAT's
Shares it sells as agent; and
(5) Each order to purchase Shares of WAT received by WAM BD shall be
subject to acceptance by an officer of WAT in Chicago and entry
of the order on WAT's records or shareholder accounts and is not
binding until so accepted and entered.
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The purchase price to the public of WAT's Shares shall be the public
offering price as defined in Paragraph 7 hereof.
(b) In consideration of the rights granted to WAM BD under this Agreement,
WAM BD will use its best efforts (but only in states in which WAM BD may
lawfully do so) to solicit from investors unconditional orders to purchase
Shares of WAT. WAT shall make available to WAM BD, at WAM BD's cost, such
number of copies of WAT's currently effective Prospectus and Statement of
Additional Information and copies of all information, financial statements and
other papers which WAM BD may reasonably request for use in connection with the
distribution of Shares.
4. Selling Agreements. WAM BD is authorized, as agent on behalf of WAT,
to enter into agreements with other broker-dealers providing for the
solicitation of unconditional orders for purchases of WAT's Shares authorized
for issuance and registered under the 1933 Act. All such agreements shall be
either in the form of agreement attached hereto or in such other form as may be
approved by the officers of WAT ("Selling Agreement"). All solicitations made
by other broker-dealers pursuant to a Selling Agreement shall be subject to the
same terms as are applied by this Agreement to solicitations made by WAM BD.
5. Solicitation of Orders to Purchase Shares by WAT. The rights granted
to WAM BD shall be non-exclusive in that WAT reserves the right to solicit
purchases from, and sell its Shares to, investors, including insurance company
separate accounts through which Fund shares are offered in connection with
variable annuity contracts or other arrangements. Further, WAT reserves the
right to issue Shares in connection with the merger or consolidation of any
other investment company, trust or personal holding company with WAT, or WAT's
acquisition, by the purchase or otherwise, of all or substantially all of the
assets of an investment company, trust or personal holding company, or
substantially all of the outstanding shares or interests of any such entity.
Any right granted to WAM BD to solicit purchases of Shares will not apply to
Shares that may be offered by WAT to shareholders by virtue of their being
shareholders of WAT.
6. Shares Covered by this Agreement. This Agreement relates to the
solicitation of orders to purchase Shares that are duly authorized and
registered and available for sale by WAT, including redeemed or repurchased
Shares if and to the extent that they may be legally sold and if, but only if,
WAT authorizes WAM BD to sell them.
7. Public Offering Price. All solicitations by WAM BD pursuant to this
Agreement shall be for orders to purchase Shares of WAT at the public offering
price. The public offering price for each accepted subscription for WAT's
Shares will be the net asset value per share of the particular Fund subscribed
for next determined by WAT after it accepts such subscription. The net asset
value per share shall be determined in the manner provided in WAT's Agreement
and Declaration of Trust as now in effect or as they may be amended, and as
reflected in WAT's then current Prospectus and Statement of Additional
Information.
8. Suspension of Sales. If and whenever the determination of a Fund's net
asset value is suspended and until such suspension is terminated, no further
orders for Shares of such
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Fund shall be accepted by WAT except such unconditional orders placed with WAT
and accepted by it before the suspension. In addition, WAT reserves the right
to suspend sales of Shares if, in the judgment of the Board of WAT, it is in the
best interest of WAT to do so, such suspension to continue for such period as
may be determined by WAT's Board; and in that event, (i) at the direction of
WAT, WAM BD shall suspend its solicitation of orders to purchase Shares of WAT
until otherwise instructed by WAT and (ii) no orders to purchase Shares shall be
accepted by WAT while such suspension remains in effect unless otherwise
directed by its Board.
9. Authorized Representations. WAT is not authorized by WAM BD to give on
behalf of WAM BD any information or to make any representations other than the
information and representations contained in WAT's registration statement filed
with the SEC under the 1933 Act and/or the 1940 Act as it may be amended from
time to time.
WAM BD is not authorized by WAT to give on behalf of WAT or any Fund any
information or to make any representations in connection with the sale of Shares
other than the information and representations contained in WAT's registration
statement filed with the SEC under the 1933 Act and/or the 1940 Act, covering
Shares, as such registration statement or WAT's prospectus may be amended or
supplemented from time to time, or contained in shareholder reports or other
material that may be prepared by or on behalf of WAT or approved by WAT for WAM
BD's use. No person other than WAM BD is authorized to act as principal
underwriter (as such term is defined in the 1940 Act, as amended) for WAT.
10. Registration of Additional Shares. WAT hereby agrees to register an
indefinite number of Shares pursuant to Rule 24f-2 under the 1940 Act, as
amended. WAT will, in cooperation with WAM BD, take such action as may be
necessary from time to time to permit such Shares (so registered or otherwise
qualified for sale under the 0000 Xxx) to be sold in any state mutually
agreeable to WAM BD and WAT, and to maintain such qualification; provided,
however, that nothing herein shall be deemed to prevent WAT from taking action,
without approval of WAM BD, to permit its Shares to be sold in any state it
deems appropriate.
11. Conformity With Law. WAM BD agrees that in soliciting orders to
purchase Shares it shall conform in all respects with applicable federal and
state laws and the rules and regulations of the NASD. WAM BD will use its best
efforts to maintain its Registrations in good standing during the term of this
Agreement and will promptly notify WAT and WAM, in the event of the suspension
or termination of any of the Registrations.
12. Independent Contractor. WAM BD shall be an independent contractor and
neither WAM BD, nor any of its members, managers, officers, directors, employees
or representatives is or shall be an employee of WAT in the performance of WAM
BD's duties hereunder. WAM BD shall be responsible for its own conduct and the
employment, control and conduct of its agents and employees and for injury to
such agents or employees or to others through its agents and employees and
agrees to pay all employee taxes thereunder.
13. Indemnification. WAM BD agrees to indemnify and hold harmless WAT and
each of the members of its Board and its officers, employees and representatives
and each
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person, if any, who controls WAT within the meaning of Section 15 of the 1933
Act against any and all losses, liabilities, damages, claims and expenses
(including the reasonable costs of investigating or defending any alleged loss,
liability, damage, claim or expense and reasonable legal counsel fees incurred
in connection therewith) to which WAT or such of the members of its Board and of
its officers, employees, representatives, or controlling person or persons may
become subject under the 1933 Act, under any other statute, at common law, or
otherwise, arising out of the acquisition or sale of any Shares of WAT by any
person which (i) may be based upon any wrongful act by WAM BD or any of WAM BD's
members, managers, directors, officers, employees or representatives, or (ii)
may be based upon any untrue statement or alleged untrue statement of a material
fact contained in a registration statement, Prospectus, Statement of Additional
Information, shareholder report or other information covering Shares of WAT
filed or made public by WAT or any amendment thereof or supplement thereto or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon information furnished to
WAT by WAM BD in writing. In no case (i) is WAM BD's indemnity in favor of WAT,
or any person indemnified, to be deemed to protect WAT or such indemnified
person against any liability to which WAT or such person would otherwise be
subject by reason of willful misfeasance, bad faith or negligence in the
performance of its or his duties or by reason of its or his reckless disregard
of its or his obligations and duties under this Agreement, or (ii) is WAM BD to
be liable under its indemnity agreement contained in this paragraph with respect
to any claim made against WAT or any person indemnified unless WAT or such
person, as the case may be, shall have notified WAM BD in writing of the claim
within a reasonable time after the summons, or other first written notification,
giving information of the nature of the claim served upon WAT or upon such
person (or after WAT or such person shall have received notice of such service
on any designated agent). However, failure to notify WAM BD of any such claim
shall not relieve WAM BD from any liability which WAM BD may have to WAT or any
person against whom such action is brought otherwise than on account of WAM BD's
indemnity agreement contained in this Paragraph.
WAM BD shall be entitled to participate, at its own expense, in the
defense, or, if WAM BD so elects, to assume the defense of any suit brought to
enforce any such claim but, if WAM BD elects to assume that defense, such
defense shall be conducted by legal counsel chosen by WAM BD and satisfactory to
the persons indemnified who are defendants in the suit. In the event that WAM
BD elects to assume the defense of any such suit and retain such legal counsel,
persons indemnified who are defendants in the suit shall bear the fees and
expenses of any additional legal counsel retained by them. If WAM BD does not
elect to assume the defense of any such suit, WAM BD will reimburse persons
indemnified who are defendants in such suit for the reasonable fees of any legal
counsel retained by them in such litigation.
WAT agrees to indemnify and hold harmless WAM BD and each of its members,
managers, directors, officers, employees, and representatives and each person,
if any, who controls WAM BD within the meaning of Section 15 of the 1933 Act
against any and all losses, liabilities, damages, claims or expenses (including
the damage, claim or expense and reasonable legal counsel fees incurred in
connection therewith) to which WAM BD or such of its members, managers,
directors, officers, employees, representatives or controlling person or persons
may
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otherwise become subject under the 1933 Act, under any other statute, at common
law, or otherwise arising out of the acquisition of any Shares by any person
which (i) may be based upon any wrongful act by WAT or any of the members of
WAT's Board, or WAT's officers, employees or representatives other than WAM BD,
or (ii) may be based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, Prospectus, Statement of
Additional Information, shareholder report or other information covering Shares
filed or made public by WAT or any amendment thereof or supplement thereto, or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading unless
such statement or omission was made in reliance upon information furnished by
WAM BD to WAT. In no case (i) is WAT's indemnity in favor of WAM BD or any
person indemnified to be deemed to protect WAM BD or such indemnified person
against any liability to which WAM BD or such indemnified person would otherwise
be subject by reason of willful misfeasance, bad faith, or negligence in the
performance of its or his duties or by reason of its or his reckless disregard
of its or his obligations and duties under this Agreement, or (ii) is WAT to be
liable under its indemnity agreement contained in this Paragraph with respect to
any claim made against WAM BD or any person indemnified unless WAM BD, or such
person, as the case may be, shall have notified WAT in writing of the claim
within a reasonable time after the summons, or other first written notification,
giving information of the nature of the claim served upon WAM BD or upon such
person (or after WAM BD or such person shall have received notice of such
service on any designated agent). However, failure to notify WAT of any such
claim shall not relieve WAT from any liability which WAT may have to WAM BD or
any person against whom such action is brought otherwise than on account of
WAT's indemnity agreement contained in this Paragraph.
WAT shall be entitled to participate, at its own expense, in the defense
or, if WAT so elects, to assume the defense of any suit brought to enforce such
claim but, if WAT elects to assume the defense, such defense shall be conducted
by legal counsel chosen by WAT and satisfactory to the persons indemnified who
are defendants in the suit. In the event that WAT elects to assume the defense
of any such suit and retain such legal counsel, the persons indemnified who are
defendants in the suit shall bear the fees and expenses of any additional legal
counsel retained by them. If WAT does not elect to assume the defense of any
such suit, WAT will reimburse the persons indemnified who are defendants in such
suit for the reasonable fees and expenses of any legal counsel retained by them
in such litigation.
14. Duration and Termination of this Agreement. This Agreement shall
become effective upon its execution ("Effective Date") and unless terminated as
provided herein, shall remain in effect through December 31, 1999, and from year
to year thereafter, but only so long as such continuance is specifically
approved at least annually by (a) a vote of majority of the members of the Board
of WAT who are not interested persons of WAM BD or WAT, voting in person at a
meeting called for the purpose of voting on such approval, and (b) the vote of
either the Board of WAT or a majority of the outstanding Shares of WAT. This
Agreement may be terminated at any time, without the payment or any penalty (a)
on 60 days' written notice, by the Board of WAT or by or by a vote of a majority
of the outstanding Shares of WAT, or by WAM BD, or (b) immediately, on written
notice by the Board of WAT, in the event of termination or suspension of any of
the Registrations. This Agreement will automatically terminate in the event
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of its assignment. In interpreting the provisions of this Paragraph 14, the
definitions contained in Section 2(a) of the 1940 Act (particularly the
definitions of "interested person," "assignment" and "majority of the
outstanding shares") shall be applied.
15. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by each party against which enforcement of the change, waiver,
discharge or termination is sought. If WAT should at any time deem it necessary
or advisable in the best interests of WAT that any amendment of this Agreement
be made in order to comply with the recommendations or requirements of the SEC
or any other governmental authority or to obtain any advantage under state or
Federal tax laws and notifies WAM BD of the form of such amendment and the
reasons therefore, and if WAM BD should decline to assent to such amendment, WAT
may terminate this Agreement forthwith. If WAM BD should at any time request
that a change be made in WAT's Agreement and Declaration of Trust, By-Laws or
its methods of doing business, in order to comply with any requirements of
Federal law or regulations of the SEC, or of a national securities association
of which WAM BD is or may be a member, relating to the sale of Shares, and WAT
should not make such necessary changes within a reasonable time, WAM BD may
terminate this Agreement forthwith.
16. Liability. It is understood and expressly stipulated that neither the
shareholders of WAT nor the members of the Board of WAT shall be personally
liable hereunder. The obligations of WAT are not personally binding upon, nor
shall resort to the private property of, any of the members of the Board of WAT
nor of the shareholders, officers, employees or agents of WAT, but only WAT's
property shall be bound.
17. Miscellaneous. The captions in this Agreement are included for
convenience or reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
18. Notice. Any notice required or permitted to be given by a party to
this Agreement or to any other party hereunder shall be deemed sufficient if
delivered in person or sent by registered or certified mail, postage prepaid,
addressed by the party giving notice to each such other party at the address
provided below or to the last address furnished by each such other party to the
party giving notice.
If to WAT: 000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
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If to WAM BD: 000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxx
If to WAM: 000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
WAM BROKERAGE SERVICES, L.L.C.
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxxxx X. Xxxxxx, Vice President
XXXXXX ADVISORS TRUST
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxxxx X. Xxxxxx, Senior Vice President
and Secretary
ACKNOWLEDGED:
XXXXXX ASSET MANAGEMENT, L.P.
By: /s/ Xxxxxx X. Xxxx
---------------------------
Xxxxxx X. Xxxx, Principal
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