EXHIBIT (6)
DISTRIBUTION CONTRACT
Distribution Contract dated March 23, 1990, between EQUIFUND-XXXXXX
NATIONAL FIDUCIARY EQUITY FUNDS, a Massachusetts business trust (the "Fund"),
and MFBT CORPORATION, a Delaware corporation (the "Distributor").
In consideration of the mutual promises and undertakings herein
contained, the parties hereto agree as follows:
1. Appointment as Distributor. The fund hereby appoints the Distributor
as a general distributor of shares of beneficial interest of the Fund (the
"shares"). Nothing herein shall be construed to prevent the Fund from employing
other general distributors of the shares or to prohibit the Fund from acting as
distributor of its shares, and the Fund reserves the right to sell its shares to
investors upon applications received by the Fund or its agents.
2. Distributions by Distributor. The Distributor will have the right to
obtain subscriptions for and to sell shares as agent of the Fund. The
Distributor shall be under no obligation to effectuate any particular amount of
sales of shares or to promote or make sales except to the extent the Distributor
deems advisable. Nothing herein shall be deemed to obligate the Distributor to
register or qualify as a broker or dealer in any state, territory or other
jurisdiction in which it is not now registered or qualified or to maintain its
registration or qualification in any state, territory or other jurisdiction in
which it is now registered or qualified. The right granted to obtain
subscriptions for and sell shares of the Funds shall be exclusive, except that
said exclusive right shall not apply to shares issued to (1) employee benefit
plans having 50 or more eligible employees; (2) charitable organizations; (as
defined in Section 501(c)(3) of the Internal Revenue Code); (3) current or
retired officers, directors, or full-time employees of the Winthrop Corporation
(or its direct or indirect subsidiaries) or current or former Trustees or
officers of a Xxxxxx managed mutual fund; (4) spouses of individuals described
in (3); (5) guardians or Trustees of a Trust for the sole benefit of the minor
child or other dependent of an individual described in (3); (6) charitable
remainder trusts or life income pools established for the benefit of a
charitable organization (as defined in Section 501(c)(3) of the Internal Revenue
Code; or, (7) participating bank trust departments purchasing shares either for
their own account or for the account of their clients, or individual clients of
Xxxxxx Inventors' Service; and in connection with the merger or consolidation of
any other investment company or personal holding company with a Fund or the
acquisition by purchase or otherwise of all (or substantially all) the assets or
the outstanding shares of any such company, by the Fund; nor shall it apply to
shares, if any, issued by a Fund in distribution of realized capital gains of
the Fund payable in shares or in cash at the option of the shareholder.
3. Public Offering Price. All subscriptions and sales of shares by the
Distributor hereunder shall be at the public offering price. The public offering
price shall be (1) the applicable net asset value of the shares in accordance
with the provisions of the current Prospectus of the Fund (2) plus any purchase
adjustment as described in the current Prospectus of the Fund and (3) the
applicable sales charge, if any.
4. Repurchase of Shares. The Distributor may act as agent for the Fund
in connection with the repurchase of shares by the Fund upon the terms and
conditions set forth in the then current Prospectus of the Fund. The Fund will
reimburse the Distributor for any reasonable expenses incurred by the
Distributor in connection with any such repurchase of shares for the account of
the Fund.
5. Cooperation by Fund. The Fund agrees to execute such papers and to
do such acts and things as shall from time to time be reasonably requested by
the Distributor for the purpose of registering or qualifying and maintaining
registration or qualification of the shares for sale under the so-called "Blue
Sky" laws of any state or territory or for maintaining the registration of the
Fund and of the shares under the Securities Act of 1933 and the Investment
Company Act of 1940, to the end that there will be available for sale from time
to time such number of shares as the Distributor may reasonably be expected to
sell. The Fund will advise the Distributor promptly of (i) any action of the
Securities and Exchange Commission or any authorities of any state or territory,
of which it may be advised, affecting registration or qualification of the Fund
or the shares, or rights to offer the shares for sale, and (ii) the happening of
any event which makes untrue any statement in the registration statement or
Prospectus or which requires the making of any change in the registration
statement or Prospectus in order to make the statements therein not misleading.
The Fund shall make available to the Distributor such copies of its currently
effective Prospectus and of all information, financial statements and other
papers as the Distributor shall reasonably request in connection with the
distribution of shares of the Fund.
6. The Distributor as Independent Contractor. The Distributor shall be
an independent contractor and neither the Distributor nor any of its officers or
employees as such is or shall be an employee of the Fund. The Distributor is
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 or employees. The Distributor assumes full responsibility for
its agents and employees under applicable statutes and agrees to pay all
employer taxes thereunder.
7. Representations. The Distributor is not authorized by the Fund to
give any information or to make any representations other than those contained
in the registration statement or Prospectus filed with the Securities and
Exchange Commission under the Securities Act of 1933 (as said registration
statement and Prospectus may be amended from time to time) or contained in
shareholder reports or other material that may be prepared by or on behalf of
the Fund for the Distributor's use. Nothing herein shall be construed to prevent
the Distributor from preparing and distributing sales literature or other
material as it may deem appropriate.
8. Expenses Payable by the Fund. The Fund shall pay for and affix any
stock issue stamps (or in the case of treasury shares transfer stamps) required
for the issue (or transfer) of shares of the Fund. The Fund shall pay all fees
and expenses in connection with (a) the preparation and filing of any
registration statement and Prospectus under the Securities Act of 1933 or the
Investment Company Act of 1940 and amendments thereto, (b) the registration or
qualification of shares for sale in the various states, territories or other
jurisdictions (including without limitation the registering or qualifying the
Fund as a broker or dealer or any officer of the Fund as agent or salesman in
any state, territory or other jurisdiction), (c) the preparation and
distribution of any report or other communication to shareholders of the Fund in
their capacity as such, and (d) the preparation and distribution of any
Prospectuses sent to existing shareholders of the Fund. The Fund shall also make
all payments (including but not limited to expenses) pursuant to any written
plan or agreement relating to the implementation of such plan approved in
accordance with Rule 12b-1 under the Investment Company Act of 1940 in
connection with the distribution of its shares.
9. Expenses Payable by the Distributor. The Distributor or its parent
will defray expenses of (a) printing and distributing any Prospectuses or
reports prepared for its use in connection with the offering of the shares for
sale to the public (other than to existing shareholders of the Fund), (b) any
other literature used by the Distributor in connection with such offering, and
(c) any advertising in connection with such offering, unless any of the expenses
listed in subparagraphs (a), (b) or (c) of this paragraph 9 are to be paid by
the Fund under a 12b-1 plan or agreement relating to the implementation of such
plan as described in paragraph 8 hereof.
10. Indemnification of the Distributor. The Fund agrees to indemnify
and hold harmless the Distributor and each of its directors and officers and
each person, if any, who controls the Distributor within the meaning of Section
15 of the 1933 Act against any loss, liability, claim, damages or expense
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damages, or expense and reasonable counsel fees incurred in
connection therewith), arising by reason of any person acquiring any shares,
based upon the ground that the registration statement, Prospectus, shareholder
reports or other information filed or made public by the Fund as from time to
time amended and supplemented, included an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading and arising under the
Securities Act of 1933, or any other statute or the common law, provided,
however, that the Fund does not agree to so indemnify the Distributor or hold it
harmless to the extent that such statement or omission was made on reliance
upon, and in conformity with, information furnished to the Fund in connection
therewith by or on behalf of the Distributor; and provided, further, that in no
case (i) is the indemnity of the Fund in favor of the Distributor or any person
indemnified to be deemed to protect the Distributor or any such person against
any liability to the Fund or its security holders to which the Distributor or
any controlling person would otherwise be subject by reason of wilful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Contract, or (ii) is the Fund to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against the
Distributor or any person indemnified unless the Distributor or such person, as
the case may be, shall have notified the Fund in writing of such claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Distributor or such person (or after the Distributor or such person shall have
received notice of such service on any designated agent), but failure to notify
the Fund of any such claim shall not relieve it from any liability which it may
have to the Distributor or any person against whom such action is brought
otherwise than on account of its indemnity agreement contained in this
paragraph. The Fund shall be entitled to participate at its own expense in the
defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such claim, but if the Fund elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to the
Distributor or such person or persons, defendant or defendants in the suit. In
the event the Fund elects to assume the defense of any such suit and retain such
counsel, the Distributor, such officers or directors or such controlling person
or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them. If the Fund does not elect
to assume the defense of any such suit, it will reimburse the Distributor, such
officers or directors or such controlling person or persons, defendant or
defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Fund agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or Trustees in connection with the issuance or sale of any of the shares.
11. Indemnification of the Fund. The Distributor agrees that it will
indemnify and hold harmless the Fund and each of its Trustees and officers and
each person, if any, who controls the Fund within the meaning of Section 15 of
the 1933 Act, against any loss, liability, damages, claim or expense (including
the reasonable cost of investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees incurred in connection
therewith) arising by reason of any person acquiring any shares, based upon the
1933 Act or any other statute or common law, alleging any wrongful act of the
Distributor or any of its employees or alleging that the registration statement,
prospectus, shareholder reports or other information filed or made public by the
Fund, as from time to time amended, included an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, insofar as any
such statement or omission was made in reliance upon, and in conformity with
information furnished to the Fund by or on behalf of the Distributor, provided,
however, that in no case (i) is the indemnity of the Distributor in favor of the
Fund or any person indemnified to be deemed to protect the Fund or any such
person against any liability to which the Fund of any such person would
otherwise be subject by reason of wilful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Contract, or (ii) is the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or such person, as the case may be, shall have
notified the Distributor in writing of such claim within a reasonable time after
the summons or other first written notification giving information of the nature
of the claim shall have been served upon the Fund or upon such person (or after
the Fund or such person shall have received notice of such service on any
designated agent), but failure to notify the Distributor of any such claim shall
not relieve it from any liability which it may have to the Fund or any person
against whom such action is brought otherwise than on account of its indemnity
agreement contained in this paragraph. In the case on any such notice to the
Distributor, the Distributor shall be entitled to participate, at its own
expense, in the defense or, if it so elects, to assume the defense of any suit
brought to enforce any such claim, but if the Distributor elects to assume the
defense, such defense shall be conducted by counsel chosen by the Distributor
and satisfactory to the Fund, to its officers and Trustees and to any
controlling person or persons, defendant or defendants in the suit. In the event
that the Distributor elects to assume the defense of any such suit and retain
such counsel, the Fund or such controlling persons, defendant or defendants in
the suit, shall bear the fees and expense of any additional counsel retained by
them. If the Distributor does not elect to assume the defense of any such suit,
it will reimburse the Fund, such officers and Trustees or controlling person or
persons, defendant or defendants in such suit, for the reasonable fees and
expenses of any counsel retained by them. The Distributor agrees promptly to
notify the Fund of the commencement of any litigation or proceedings against it
in connection with the issue and sale of any of the shares.
12. Effective Date, Termination and Amendment. This Contract shall
become effective on the date of its execution and (unless terminated as herein
provided) shall remain in full force and through and including February 2, 1991
and shall continue in full force and effect indefinitely thereafter, but only so
long as such continuance after February 2, 1991 is specifically approved at
least annually (a) by vote of a majority of the outstanding voting securities of
the Fund or by the Trustees of the Fund, and (b) by the vote of a majority of
the Trustees of the Fund who are not interested persons of the Fund or of the
Distributor cast in person at a meeting called for the purpose of voting on such
approval. This Contract may at any time be terminated without the payment of any
penalty (1) by vote of the Trustees of the Fund or by vote of a majority of the
outstanding voting securities of the Fund, on 60 days' written notice to the
Distributor, (2) automatically in the event of its assignment, and (3) by the
Distributor on 60 days' written notice to the Fund. Any notice under this
Contract shall be given in writing, addressed and delivered, or mailed postpaid,
to the other party at the Boston office of such party.
This Contract may be amended at any time by a writing signed by both
parties hereto, provided that no amendment of this Contract shall be effective
until approved (a) by vote of a majority of the outstanding voting securities of
the Fund or by vote of the Trustees of the Fund, and (b) by the vote of a
majority of the Trustees of the Fund who are not interested persons of the Fund
or of the Distributor cast in person at a meeting called for the purpose of
voting on such approval.
13. Limitation of Liability. The Distributor expressly acknowledges the
provision in the Declaration of Trust of the Fund (Article XIV, Section 2)
limiting the personal liability of shareholders of the Fund, and the Distributor
hereby agrees that is shall have recourse to the Fund for payment of claims or
obligations as between the Fund and the Distributor arising out of this Contract
and shall not seek satisfaction from the shareholders or any shareholder of the
Fund.
14. Certain Definitions. The terms "interested person", "vote of a
majority of the outstanding voting securities" and "assignment" when used in
this Contract shall have the respective meanings specified in the Investment
Company Act of 1940, subject, however, to such exemptions as may be granted by
the Securities and Exchange Commission by any rule, regulation or order.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Distribution Contract to be executed in its name and on its behalf by one of its
officers thereunto duly authorized, all as of the day and year first above
written.
EQUIFUND-XXXXXX NATIONAL FIDUCIARY EQUITY FUNDS
By /s/ Xxxxx X. Xxxxxxx
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President
MFBT CORPORATION
By /s/ A.M. Xxxxx III
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President
