GENERAL DISTRIBUTOR'S AGREEMENT
BETWEEN
XXXXXXXXXXX XXXXXX VALUE FUND
AND
XXXXXXXXXXX FUNDS DISTRIBUTOR, INC.
Date: ______________, 2001
XXXXXXXXXXX FUNDS DISTRIBUTOR, INC.
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Dear Sirs:
XXXXXXXXXXX MIDCAP VALUE FUND, a Massachusetts business trust (the
"Fund"), is registered as an investment company under the Investment Company Act
of 1940 (the "1940 Act"), and an indefinite number of one or more classes of its
shares of beneficial interest ("Shares") have been registered under the
Securities Act of 1933 (the "1933 Act") to be offered for sale to the public in
a continuous public offering in accordance with the terms and conditions set
forth in the Prospectus and Statement of Additional Information ("SAI") included
in the Fund's Registration Statement as it may be amended from time to time (the
"current Prospectus and/or SAI").
In this connection, the Fund desires that your firm (the "General
Distributor") act in a principal capacity as General Distributor for the sale
and distribution of Shares which have been registered as described above and of
any additional Shares which may become registered during the term of this
Agreement. You have advised the Fund that you are willing to act as such General
Distributor, and it is accordingly agreed by and between us as follows:
1. Appointment of the Distributor. The Fund hereby appoints you as the
sole General Distributor, pursuant to the aforesaid continuous public offering
of its Shares, and the Fund further agrees from and after the date of this
Agreement, that it will not, without your consent, sell or agree to sell any
Shares otherwise than through you, except (a) the Fund may itself sell shares
without sales charge as an investment to the officers, trustees or directors and
bona fide present and former full-time employees of the Fund, the Fund's
Investment Adviser and affiliates thereof, and to other investors who are
identified in the current Prospectus and/or SAI as having the privilege to buy
Shares at net asset value; (b) the Fund may issue shares in connection with a
merger, consolidation or acquisition of assets on such basis as may be
authorized or permitted under the 1940 Act; (c) the Fund may issue shares for
the reinvestment of dividends and other distributions of the Fund or of any
other Fund if permitted by the current Prospectus and/or SAI; and (d) the Fund
may issue shares as underlying securities of a unit investment trust if such
unit investment trust has elected to use Shares as an underlying investment;
provided that in no event as to any of the foregoing exceptions shall Shares be
issued and sold at less than the then-existing net asset value.
2. Sale of Shares. You hereby accept such appointment and agree to use
your best efforts to sell Shares, provided, however, that when requested by the
Fund at any time because of market or other economic considerations or abnormal
circumstances of any kind, or when agreed to by mutual consent of the Fund and
the General Distributor, you will suspend such efforts. The Fund may also
withdraw the offering of Shares at any time when required by the provisions of
any statute, order, rule or regulation of any governmental body having
jurisdiction. It is understood that you do not undertake to sell all or any
specific number of Shares.
3. Sales Charge. Shares shall be sold by you at net asset value plus a
front-end sales charge not in excess of 8.5% of the offering price, but which
front-end sales charge shall be proportionately reduced or eliminated for larger
sales and under other circumstances, in each case on the basis set forth in the
Fund's current Prospectus and/or SAI. The redemption proceeds of shares offered
and sold at net asset value with or without a front-end sales charge may be
subject to a contingent deferred sales charge ("CDSC") under the circumstances
described in the current Prospectus and/or SAI. You may reallow such portion of
the front-end sales charge to dealers or cause payment (which may exceed the
front-end sales charge, if any) of commissions to brokers through which sales
are made, as you may determine, and you may pay such amounts to dealers and
brokers on sales of shares from your own resources (such dealers and brokers
shall collectively include all domestic or foreign institutions eligible to
offer and sell the Shares), and in the event the Fund has more than one class of
Shares outstanding, then you may impose a front-end sales charge and/or a CDSC
on Shares of one class that is different from the charges imposed on Shares of
the Fund's other class(es), in each case as set forth in the current Prospectus
and/or SAI, provided the front-end sales charge and CDSC to the ultimate
purchaser do not exceed the respective levels set forth for such category of
purchaser in the Fund's current Prospectus and/or SAI.
4. Purchase of Shares.
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(a) As General Distributor, you shall have the right to accept or
reject orders for the purchase of Shares at your discretion. Any consideration
which you may receive in connection with a rejected purchase order will be
returned promptly.
(b) You agree promptly to issue or to cause the duly appointed
transfer or shareholder servicing agent of the Fund to issue as your agent
confirmations of all accepted purchase orders and to transmit a copy of such
confirmations to the Fund. The net asset value of all Shares which are the
subject of such confirmations, computed in accordance with the applicable rules
under the 1940 Act, shall be a liability of the General Distributor to the Fund
to be paid promptly after receipt of payment from the originating dealer or
broker (or investor, in the case of direct purchases) and not later than eleven
business days after such confirmation even if you have not actually received
payment from the originating dealer or broker or investor. In no event shall the
General Distributor make payment to the Fund later than permitted by applicable
rules of the National Association of Securities Dealers, Inc.
(c) If the originating dealer or broker shall fail to make timely
settlement of its purchase order in accordance with applicable rules of the
National Association of Securities Dealers, Inc., or if a direct purchaser shall
fail to make good payment for shares in a timely manner, you shall have the
right to cancel such purchase order and, at your account and risk, to hold
responsible the originating dealer or broker, or investor. You agree promptly to
reimburse the Fund for losses suffered by it that are attributable to any such
cancellation, or to errors on your part in relation to the effective date of
accepted purchase orders, limited to the amount that such losses exceed
contemporaneous gains realized by the Fund for either of such reasons with
respect to other purchase orders.
(d) In the case of a canceled purchase for the account of a directly
purchasing shareholder, the Fund agrees that if such investor fails to make you
whole for any loss you pay to the Fund on such canceled purchase order, the Fund
will reimburse you for such loss to the extent of the aggregate redemption
proceeds of any other shares of the Fund owned by such investor, on your demand
that the Fund exercise its right to claim such redemption proceeds. The Fund
shall register or cause to be registered all Shares sold to you pursuant to the
provisions hereof in such names and amounts as you may request from time to time
and the Fund shall issue or cause to be issued certificates evidencing such
Shares for delivery to you or pursuant to your direction if and to the extent
that the shareholder account in question contemplates the issuance of such
certificates. All Shares when so issued and paid for, shall be fully paid and
non-assessable by the Fund (which shall not prevent the imposition of any CDSC
that may apply) to the extent set forth in the current Prospectus and/or SAI.
5. Repurchase of Shares.
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(a) In connection with the repurchase of Shares, you are appointed
and shall act as Agent of the Fund. You are authorized, for so long as you act
as General Distributor of the Fund, to repurchase, from authorized dealers,
certificated or uncertificated shares of the Fund ("Shares") on the basis of
orders received from each dealer ("authorized dealer") with which you have a
dealer agreement for the sale of Shares and permitting resales of Shares to you,
provided that such authorized dealer, at the time of placing such resale order,
shall represent (i) if such Shares are represented by certificate(s), that
certificate(s) for the Shares to be repurchased have been delivered to it by the
registered owner with a request for the redemption of such Shares executed in
the manner and with the signature guarantee required by the then-currently
effective prospectus of the Fund, or (ii) if such Shares are uncertificated,
that the registered owner(s) has delivered to the dealer a request for the
redemption of such Shares executed in the manner and with the signature
guarantee required by the then-currently effective prospectus of the Fund.
(b) You shall (a) have the right in your discretion to accept or
reject orders for the repurchase of Shares; (b) promptly transmit confirmations
of all accepted repurchase orders; and (c) transmit a copy of such confirmation
to the Fund, or, if so directed, to any duly appointed transfer or shareholder
servicing agent of the Fund. In your discretion, you may accept repurchase
requests made by a financially responsible dealer which provides you with
indemnification in form satisfactory to you in consideration of your acceptance
of such dealer's request in lieu of the written redemption request of the owner
of the account; you agree that the Fund shall be a third party beneficiary of
such indemnification.
(c) Upon receipt by the Fund or its duly appointed transfer or
shareholder servicing agent of any certificate(s) (if any has been issued) for
repurchased Shares and a written redemption request of the registered owner(s)
of such Shares executed in the manner and bearing the signature guarantee
required by the then-currently effective Prospectus or SAI of the Fund, the Fund
will pay or cause its duly appointed transfer or shareholder servicing agent
promptly to pay to the originating authorized dealer the redemption price of the
repurchased Shares (other than repurchased Shares subject to the provisions of
part (d) of Section 5 of this Agreement) next determined after your receipt of
the dealer's repurchase order.
(d) Notwithstanding the provisions of part (c) of Section 5 of this
Agreement, repurchase orders received from an authorized dealer after the
determination of the Fund's redemption price on a regular business day will
receive that day's redemption price if the request to the dealer by its customer
to arrange such repurchase prior to the determination of the Fund's redemption
price that day complies with the requirements governing such requests as stated
in the current Prospectus and/or SAI.
(e) You will make every reasonable effort and take all reasonably
available measures to assure the accurate performance of all services to be
performed by you hereunder within the requirements of any statute, rule or
regulation pertaining to the redemption of shares of a regulated investment
company and any requirements set forth in the then-current Prospectus and/or SAI
of the Fund. You shall correct any error or omission made by you in the
performance of your duties hereunder of which you shall have received notice in
writing and any necessary substantiating data; and you shall hold the Fund
harmless from the effect of any errors or omissions which might cause an over-
or under-redemption of the Fund's Shares and/or an excess or non-payment of
dividends, capital gains distributions, or other distributions.
(f) In the event an authorized dealer initiating a repurchase order
shall fail to make delivery or otherwise settle such order in accordance with
the rules of the National Association of Securities Dealers, Inc., you shall
have the right to cancel such repurchase order and, at your account and risk, to
hold responsible the originating dealer. In the event that any cancellation of a
Share repurchase order or any error in the timing of the acceptance of a Share
repurchase order shall result in a gain or loss to the Fund, you agree promptly
to reimburse the Fund for any amount by which any loss shall exceed
then-existing gains so arising.
6. 1933 Act Registration. The Fund has delivered to you a copy of its
current Prospectus and SAI. The Fund agrees that it will use its best efforts to
continue the effectiveness of the Registration Statement under the 1933 Act. The
Fund further agrees to prepare and file any amendments to its Registration
Statement as may be necessary and any supplemental data in order to comply with
the 1933 Act. The Fund will furnish you at your expense with a reasonable number
of copies of the Prospectus and SAI and any amendments thereto for use in
connection with the sale of Shares.
7. 1940 Act Registration. The Fund has already registered under the 1940
Act as an investment company, and it will use its best efforts to maintain such
registration and to comply with the requirements of the 1940 Act.
8. State Blue Sky Qualification. At your request, the Fund will take such
steps as may be necessary and feasible to qualify Shares for sale in states,
territories or dependencies of the United States, the District of Columbia, the
Commonwealth of Puerto Rico and in foreign countries, in accordance with the
laws thereof, and to renew or extend any such qualification; provided, however,
that the Fund shall not be required to qualify shares or to maintain the
qualification of shares in any jurisdiction where it shall deem such
qualification disadvantageous to the Fund.
9. Duties of Distributor. You agree that:
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(a) Neither you nor any of your officers will take any long or short
position in the Shares, but this provision shall not prevent you or your
officers from acquiring Shares for investment purposes only; and
(b) You shall furnish to the Fund any pertinent information required
to be inserted with respect to you as General Distributor within the purview of
the Securities Act of 1933 in any reports or registration required to be filed
with any governmental authority; and
(c) You will not make any representations inconsistent with the information
contained in the current Prospectus and/or SAI; and
(d) You shall maintain such records as may be reasonably required
for the Fund or its transfer or shareholder servicing agent to respond to
shareholder requests or complaints, and to permit the Fund to maintain proper
accounting records, and you shall make such records available to the Fund and
its transfer agent or shareholder servicing agent upon request; and
(e) In performing under this Agreement, you shall comply with all
requirements of the Fund's current Prospectus and/or SAI and all applicable
laws, rules and regulations with respect to the purchase, sale and distribution
of Shares.
10. Allocation of Costs. The Fund shall pay the cost of composition and
printing of sufficient copies of its Prospectus and SAI as shall be required for
periodic distribution to its shareholders and the expense of registering Shares
for sale under federal securities laws. You shall pay the expenses normally
attributable to the sale of Shares, other than as paid under the Fund's
Distribution Plan under Rule 12b-1 of the 1940 Act, including the cost of
printing and mailing of the Prospectus (other than those furnished to existing
shareholders) and any sales literature used by you in the public sale of the
Shares and for registering such shares under state blue sky laws pursuant to
paragraph 8.
11. Duration. This Agreement shall take effect on the date first written
above, and shall supersede any and all prior General Distributor's Agreements by
and among the Fund and you. Unless earlier terminated pursuant to paragraph 12
hereof, this Agreement shall remain in effect until September 30, 1996. This
Agreement shall continue in effect from year to year thereafter, provided that
such continuance shall be specifically approved at least annually: (a) by the
Fund's Board of Trustees or by vote of a majority of the voting securities of
the Fund; and (b) by the vote of a majority of the Trustees, who are not parties
to this Agreement or "interested persons" (as defined the 0000 Xxx) of any such
person, cast in person at a meeting called for the purpose of voting on such
approval.
12. Termination. This Agreement may be terminated (a) by the General
Distributor at any time without penalty by giving sixty days' written notice
(which notice may be waived by the Fund); (b) by the Fund at any time without
penalty upon sixty days' written notice to the General Distributor (which notice
may be waived by the General Distributor); or (c) by mutual consent of the Fund
and the General Distributor, provided that such termination by the Fund shall be
directed or approved by the Board of Trustees of the Fund or by the vote of the
holders of a "majority" of the outstanding voting securities of the Fund. In the
event this Agreement is terminated by the Fund, the General Distributor shall be
entitled to be paid the CDSC under paragraph 3 hereof on the redemption proceeds
of Shares sold prior to the effective date of such termination.
13. Assignment. This Agreement may not be amended or changed except in
writing and shall be binding upon and shall enure to the benefit of the parties
hereto and their respective successors; however, this Agreement shall not be
assigned by either party and shall automatically terminate upon assignment.
14. Disclaimer of Shareholder Liability. The General Distributor
understands and agrees that the obligations of the Fund under this Agreement are
not binding upon any Trustee or shareholder of the Fund personally, but bind
only the Fund and the Fund's property; the General Distributor represents that
it has notice of the provisions of the Declaration of Trust of the Fund
disclaiming Trustee and shareholder liability for acts or obligations of the
Fund.
15. Section Headings. The heading of each section is for descriptive
purposes only, and such headings are not to be construed or interpreted as part
of this Agreement.
If the foregoing is in accordance with your understanding, so indicate by
signing in the space provided below.
XXXXXXXXXXX XXXXXX VALUE FUND
By: ________________________________
Xxxxxx X. Xxxxxxx, Secretary
Accepted:
XXXXXXXXXXX FUNDS DISTRIBUTOR, INC.
By: ____________________________________
Xxxxxxxxx X. Xxxx
Vice President & Secretary
