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EXHIBIT 23(e)-1
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made this
15th day of April, 1999, by and between XXXXXX INVESTMENT PORTFOLIO TRUST, a
business trust organized and existing under the laws of the State of Delaware
(the "Trust"), and XXXXXX DISTRIBUTORS, INC., a corporation organized and
existing under the laws of the State of Colorado (the "Distributor"). This
Agreement applies separately to each series of the Trust, whether now existing
or hereafter created, listed on Exhibit A hereto as it may be amended from time
to time (each a "Fund" and collectively the "Funds").
RECITALS
A. The Trust is engaged in business as an open-end management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
B. The Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and is registered
as a broker-dealer under the laws of each state of the United States and in each
other jurisdiction in which the Distributor engages in business to the extent
that the laws of such states and such jurisdictions require such registration,
and is a member of the National Association of Securities Dealers, Inc. (the
"NASD") (such registration and membership are referred to collectively as the
"Registrations").
C. The Trust and the Distributor desire the Distributor to act
as the principal underwriter for the public offering of the shares of beneficial
interest (the "Shares") of each Fund, whether now existing or hereafter created.
D. This Agreement effects an amendment of that certain
Distribution Agreement, originally entered into and dated the 31st of March,
1997, and amended on May 21, 1998, between the Trust and the Distributor.
AGREEMENT
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Appointment. The Trust appoints the Distributor to act as
distributor of the Shares of each Fund.
2. Trust to Furnish Documents. The Trust shall furnish the
Distributor with copies of any registration statements, prospectuses or
statements of additional information pertaining to any Fund filed by the Trust
with the Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "1933 Act"), or the 1940 Act, together with any
financial statements and exhibits included therein, and all amendments or
supplements thereto hereafter filed.
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The Trust shall also furnish the Distributor with such other
certificates or documents as the Distributor may from time to time, in its
discretion, reasonably deem necessary or appropriate in order to perform its
duties under this Agreement properly.
3. Solicitation of Orders for Purchase of Shares.
(a) Subject to the provisions of Sections 4 and 7
hereof, and to such minimum purchase requirements as may from time to time be
indicated in each Fund's prospectus or statement of additional information, the
Distributor is authorized to solicit, as agent on behalf of the Trust,
unconditional orders for purchases of each Fund's Shares authorized for issuance
and registered under the 1933 Act, provided that:
(1) The Distributor shall act solely as a
disclosed agent on behalf of and for the account of the Trust;
(2) The Distributor shall confirm or arrange
with the transfer agent for the Shares to confirm all purchases of the Shares.
Such confirmation shall conform to the requirements of the 1934 Act and the
rules thereunder and shall clearly state that the Distributor is acting as agent
in the transaction;
(3) The Distributor shall have no liability
for payment for purchases of Shares it sells as agent, but will use reasonable
efforts to assure that each Fund receives payment for Shares purchased through
the Distributor in accordance with the requirements of applicable law and
regulations; and
(4) Each order to purchase Shares of a Fund
received by the Distributor shall be subject to acceptance by the Trust and
entry of the order on such Fund's records or shareholder accounts and is not
binding until so accepted and entered.
The purchase price of a Fund's Shares to the
public shall be the public offering price described in Section 6 hereof.
(b) The Distributor shall use reasonable efforts (but
only in states and jurisdictions in which the Distributor may lawfully do so) to
solicit from investors unconditional orders to purchase Shares of each Fund.
(c) In exercising its authority and discharging its
responsibilities under this Section 3, the Distributor may enter into sales or
servicing agreements with securities dealers, investment advisers, financial
institutions and other industry professionals, provided that any such agreements
shall comply with all applicable laws and regulations and Rules of the NASD.
4. Solicitation of Orders to Purchase Shares by Trust. The
rights granted to the Distributor shall be non-exclusive in that the Trust
reserves the right to otherwise solicit purchases from, and sell Shares to,
investors, including without limitation the right to issue Shares in connection
with the merger or consolidation of any other investment company, trust or
personal
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holding company with a Fund, or a Fund'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.
5. No Compensation; Payment of Expenses. The Distributor will
not be entitled to any compensation with respect to its services under this
Agreement. The Distributor shall pay its own expenses incurred in the discharge
of its duties hereunder, but shall not be responsible to pay any expenses of the
Trust or any Fund, including without limitation, any charges of the Trust's
transfer, recordkeeping, dividend disbursing and redemption agents, if any; any
expenses of preparation, printing and mailing of confirmations; any expenses of
preparation and printing of annual or more frequent revisions of each Fund's
prospectus and statement of additional information and of supplying copies
thereof to shareholders; any expenses of registering and maintaining the
registrations of the Trust under the 1940 Act and the sale of the Trust's Shares
under the 1933 Act; and any expenses of registering or qualifying and
maintaining registrations or qualifications of each Fund and of the Shares for
sale under securities laws of various states or other jurisdictions and of
registration or qualification of the Trust and each Fund under all laws
applicable to the Trust or its business activities.
6. Public Offering Price. All solicitations by the Distributor
pursuant to this Agreement shall be for orders to purchase Shares of a Fund at
the public offering price. The public offering price for each accepted order for
a Fund's Shares will be the net asset value per Share next determined by the
Trust after it or its authorized agent or designee accepts such order. The net
asset value per Share of the Shares shall be determined in the manner provided
in the Trust's Trust Instrument and Bylaws as now in effect or as may be
amended, and as reflected in the then current prospectus and statement of
additional information pertaining to such Fund.
7. 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 shall be accepted by the Trust except such
unconditional orders placed with the Trust and accepted by it before the
suspension. In addition, the Trust reserves the right to suspend sales of Shares
of a Fund if, in the judgment of the Trustees, it is in the best interest of the
Fund to do so, such suspension to continue for such period as may be determined
by the Trustees; and in that event, (i) at the direction of the Trust, the
Distributor shall suspend its solicitation of orders to purchase Shares of such
Fund until otherwise instructed by the Trust and (ii) no orders to purchase
Shares of such Fund shall be accepted by the Trust while such suspension remains
in effect unless otherwise directed by its Trustees.
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8. Solicitation Materials; Authorized Representations.
(a) The Trust shall make available to the
Distributor, without cost to the Trust, such number of copies of each Fund's
currently effective prospectus and statement of additional information and
reports to shareholders and copies of all other information that the Distributor
may reasonably request for use in connection with the distribution of Shares.
(b) The Distributor is not authorized by the Trust to
give with respect to any Fund any information or to make any representations in
connection with the sale of Shares other than the information and
representations contained in the Trust's registration statement, or such Fund's
prospectus or statement of additional information, as amended or supplemented
from time to time, or contained in shareholder reports or other material
pertaining to such Fund that may be prepared by or on behalf of the Trust or
approved by the Trust for the Distributor's use.
9. Registration of Additional Shares. The Trust hereby agrees
to register either (i) an indefinite number of Shares pursuant to Rule 24f-2
under the 1940 Act, or (ii) a definite number of Shares as the Trust shall deem
advisable pursuant to Rule 24e-2 under the 1940 Act, or both. The Trust will, in
cooperation with the Distributor, take such action as may be necessary from time
to time to register or qualify the Shares of each Fund (so registered or
otherwise qualified for sale under the 1933 Act), in any state or jurisdiction
mutually agreeable to the Distributor and the Trust, and to maintain such
registration or qualification; provided, however, that nothing herein shall be
deemed to prevent the Trust from registering or qualifying the Shares without
approval of the Distributor in any state or jurisdiction it deems appropriate.
10. Conformity With Law. The Distributor agrees that in
soliciting orders to purchase Shares it shall duly conform in all respects with
applicable federal and state laws and with the rules and regulations of the
NASD. The Distributor will use its best efforts to maintain its Registrations in
good standing during the term of this Agreement and will promptly notify the
Trust in the event of (i) the suspension or termination of any of the
Registrations, (ii) the occurrence of any event that would disqualify the
Distributor from acting as the principal underwriter of the Trust or any of its
Funds pursuant to Section 9(a) of the 1940 Act or otherwise, or (iii) the
institution of any administrative, regulatory or judicial proceeding against the
Distributor.
11. Independent Contractor. The Distributor shall be an
independent contractor and none of its officers, directors, employees or
representatives shall be acting as an employee or other agent of the Trust in
the performance of the Distributor's duties hereunder. The Distributor 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 or to insure that persons
other than the Trust will pay all compensation and taxes due with respect to the
activities of its agents and employees.
12. Indemnification. The Distributor agrees to indemnify and
hold harmless the Trust and each of its Trustees, officers, employees and
representatives, and each person, if any, who controls the Trust 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
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defending any alleged loss, liability, damage, claim or expense and reasonable
legal counsel fees incurred in connection therewith) to which the Trust or such
Trustees, 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 offer or sale of any Shares of any Fund or any
other security to any person which (i) may be based upon any wrongful act by the
Distributor or any of the Distributor's 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 such Fund filed or made public by the Trust 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 written information furnished or confirmed by the
Distributor to the Trust. In no case is the Distributor's indemnity in favor of
the Trust, or any person indemnified, to be deemed to protect the Trust or such
indemnified person against any liability to which the Trust or such person would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its or such person's duties or by reason of its
or such person's reckless disregard of its or such person's obligations and
duties under this Agreement. The Trust or any person indemnified, as the case
may be, shall notify the Distributor 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 is served upon the Trust or upon such person (or after
the Trust or such person shall have received notice of such service on any
designated agent); however, failure to so notify the Distributor of any such
claim shall not relieve the Distributor from any liability hereunder unless and
to the extent that its ability to defend against such claim is prejudiced by
such failure, nor from any liability that the Distributor may have to the Trust
or any person against whom such action is brought otherwise than on account of
the Distributor's indemnity agreement contained in this section.
The Distributor shall be entitled to participate, at its own
expense, in the defense or, if Distributor so elects, to assume the defense of
any action brought to enforce any such claim but, if the Distributor elects to
assume the defense, such defense shall be conducted by legal counsel chosen by
the Distributor and reasonably satisfactory to the persons indemnified who are
defendants in the action. In the event that the Distributor elects to assume the
defense of any such action and retain such legal counsel, persons indemnified
who are defendants in the action shall bear the fees and expenses of any
additional legal counsel retained by them. If the Distributor does not elect to
assume the defense of any such action, the Distributor shall reimburse persons
indemnified who are defendants in such action for the reasonable fees of any
legal counsel retained by them in such litigation.
The Trust agrees to indemnify and hold harmless the
Distributor and each of its directors, officers, employees and representatives,
and each person, if any, who controls the Distributor within the meaning of
Section 15 of the 1933 Act, against any and all losses, liabilities, damages,
claims or expenses (including the reasonable costs of investigating or defending
any alleged loss, liability, damage, claim or expenses and reasonable legal
counsel fees incurred in connection therewith) to which the Distributor or such
of its directors, officers, employees, representatives or controlling person or
persons may become subject under the 1933 Act, under any
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other statute, at common law, or otherwise, arising out of the offer or sale of
any Shares of any Fund to any person which (i) may be based upon any wrongful
act by the Trust or any of its Trustees, officers, employees or representatives
other than the Distributor, 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 the Trust 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 written information furnished or confirmed by the
Distributor to the Trust. In no case is the Trust's indemnity in favor of the
Distributor or any person indemnified to be deemed to protect the Distributor or
such indemnified person against any liability to which the Distributor or such
indemnified person would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of its or such person's duties
or by reason of its or such person's reckless disregard of its or such person's
obligations and duties under this Agreement. The Distributor or any person
indemnified, as the case may be, shall notify the Trust 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 is served upon the Distributor or
upon such person (or after the Distributor or such person shall have received
notice of such service on any designated agent); however, failure to so notify
the Trust of any such claim shall not relieve the Trust from any liability
hereunder unless and to the extent that its ability to defend against such claim
is prejudiced by such failure, nor from any liability which the Trust may have
to the Distributor or any person against whom such action is brought otherwise
than on account of the Trust's indemnity agreement contained in this section.
The Trust shall be entitled to participate, at its own
expense, in the defense or, if the Trust so elects, to assume the defense of any
action brought to enforce such claim but, if the Trust elects to assume the
defense, such defense shall be conducted by legal counsel chosen by the Trust
and reasonably satisfactory to the persons indemnified who are defendants in the
action. In the event that the Trust elects to assume the defense of any such
action and retain such legal counsel, the persons indemnified who are defendants
in the action shall bear the fees and expenses of any additional legal counsel
retained by them. If the Trust does not elect to assume the defense of any such
action, the Trust shall reimburse the persons indemnified who are defendants in
such action for the reasonable fees and expenses of any legal counsel retained
by them in such litigation.
13. Duration and Termination of this Agreement. This Agreement
shall become effective with respect to each Fund on the Effective Date specified
on Exhibit A hereto with respect to such Fund, and unless terminated as provided
herein, shall remain in effect until the Termination Date specified on Exhibit A
hereto with respect to such Fund, and shall continue thereafter from year to
year, but only so long as such continuance is specifically approved at least
annually (a) by a vote of a majority of the Trustees who are not interested
persons of the Distributor or of the Trust, voting in person at a meeting called
for the purpose of voting on such approval, and (b) by the vote of either the
Trustees or a majority of the outstanding voting securities of the Fund. If the
continuance of this Agreement is not approved as to a Fund, this Agreement shall
nonetheless continue with respect to those Funds as to which such continuance
has been approved. This Agreement may be terminated with respect to an
individual Fund at any time, without the payment of any penalty (a) on 60 days'
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written notice, by the Trustees or by a vote of a majority of the outstanding
voting securities of such Fund, or by the Distributor, or (b) immediately, on
written notice by the Trustees, in the event of termination or suspension of any
of the Registrations. This Agreement will automatically terminate in the event
of its assignment.
In interpreting the provisions of this Section 13, the terms
"assignment," "approved at least annually," "interested persons" and "vote of a
majority of the outstanding voting securities" shall have same meanings as when
used in the 1940 Act (in each case as the 1940 Act is now in effect or hereafter
may be amended) and the rules and regulations thereunder, subject to such
orders, exemptions and interpretations as may be issued by the SEC under the
1940 Act and as may be then in effect. Where the effect of a requirement of the
federal securities laws reflected in any provision of this Agreement is made
less restrictive by a rule, regulation, order, interpretation or other authority
of the SEC, whether of special or general application, such provisions shall be
deemed to incorporate the effect of such rule, regulation or order.
14. 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 the Trust should at any
time deem it necessary or advisable in the best interests of a Fund 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 or tax laws and notifies the Distributor of the
form of such amendment, and the reasons therefor, and if the Distributor should
decline to assent to such amendment, the Trust may immediately thereupon
terminate this Agreement as to that Fund.
15. Limitation on Personal Liability. NOTICE IS HEREBY GIVEN
that the Trust is a business trust organized under the Delaware Business Trust
Act pursuant to a Certificate of Trust filed in the office of the Secretary of
State of the State of Delaware. All parties to this Agreement acknowledge and
agree that the Trust is a series trust and all debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to a
particular series shall be enforceable against the assets held with respect to
such series only, and not against the assets of the Trust generally or against
the assets held with respect to any other series and further that no Trustee,
officer or holder of shares of beneficial interest of the Trust shall be
personally liable for any of the foregoing.
16. Notification by the Trust. The Trust agrees to advise the
Distributor immediately:
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(a) of any request by the SEC for amendments to the
Trust's registration statement insofar as it relates to any of the Funds, the
prospectus or the statement of additional information pertaining to any Fund or
for additional information,
(b) in the event of the issuance by the SEC of any
stop order suspending the effectiveness of the Trust's registration statement
insofar as it relates to any of the Funds, the prospectus or the statement of
additional information pertaining to any Fund or the initiation of any
proceeding for that purpose,
(c) of the occurrence of any material event which
makes untrue any statement made in the Trust's registration statement insofar as
it relates to any of the Funds, the prospectus or the statement of additional
information pertaining to any Fund or which requires the making of a change in
order to make the statements therein not misleading, and
(d) of all actions of the SEC with respect to any
amendments to the Trust's registration statement insofar as it relates to any of
the Funds, the prospectus or the statement of additional information pertaining
to any Fund which may from time to time be filed with the SEC under the 1933
Act.
17. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Colorado (without giving effect to the
conflicts of laws principles thereof) and the 1940 Act. To the extent that the
applicable laws of the State of Colorado conflict with the applicable provisions
of the 1940 Act, the latter shall control.
18. Miscellaneous. The captions in this Agreement are included
for convenience of 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. 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.
19. 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 the Trust: 000 Xxxxxxxxxx Xxxxxxxxx, #000
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
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If to the Distributor: 000 Xxxxxxxxxx Xxxxxxxxx, #000
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
XXXXXX DISTRIBUTORS, INC.
By:
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XXXXXX INVESTMENT PORTFOLIO TRUST
By:
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EXHIBIT A
FUND EFFECTIVE TERMINATION
DATE DATE
Xxxxxx Small Company March 31, 1997 April 30, 1998
Growth Fund
Xxxxxx New Generation Fund March 31, 1997 April 30, 1998
Xxxxxx Balanced Fund September 3, 1997 April 30, 1999
Xxxxxx Select Fund December 31, 1997 April 30, 1999
Xxxxxx Mid Cap Growth Fund December 31, 1997 April 30, 1999
Xxxxxx Mid Cap Value Fund June 30, 1998 April 30, 2000
Xxxxxx Information Technology July 1, 1999 April 30, 2001
Fund
Xxxxxx Large Cap Value Fund September 28, 2001 April 30, 2003
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