Exhibit 23(e)(1)
XXXXX NEW YORK VENTURE FUND, INC.
DISTRIBUTING AGREEMENT
AGREEMENT dated as of January 1, 0000 xxxxxxx Xxxxx Xxx Xxxx Venture Fund, Inc.,
a Maryland corporation, hereinafter called the "Company," and Xxxxx
Distributors, LLC, a Delaware limited liability company, hereinafter called the
"Distributor."
W I T N E S S E T H:
1. APPOINTMENT OF FUND DISTRIBUTOR. The Company hereby appoints the
Distributor as the exclusive distributor to sell as principal and not
as agent shares of capital stock of the Company during the term of this
Agreement.
2. SALES OF CAPITAL STOCK. The Company agrees to sell and deliver to the
Distributor, upon the terms set forth herein, such fully-paid and
non-assessable shares of capital stock of the Company ("Shares") then
effectively registered for continuous offering under the Securities Act
of 1933 (the "Act") as Distributor shall order from the Company, but
only to the extent that the Distributor shall have received purchase
orders therefor. All orders from the Distributor shall be subject to
confirmation by the Company, and the Company authorizes the Distributor
to reject any purchase order.
The Distributor as principal may sell and distribute any Shares so
purchased, through dealers or otherwise, in such manner not
inconsistent with law and all applicable rules and regulations,
including those of any applicable self-regulatory organizations, and
the provisions of this Agreement, as the Distributor may from time to
time determine. The Distributor agrees to use its best efforts to
effect sales of Shares, but does not undertake to sell any specific
number of Shares thereof.
The Distributor may in its discretion sell the Shares to such
registered and qualified retail dealers as it may select. In making
agreements with its dealers or others for sale of the Shares, the
Distributor shall act only as principal and in no sense as agent for
the Company.
3. SALES BY DISTRIBUTOR - OFFERING PRICE. All Shares, whether purchased
from the Company or otherwise, shall be offered for sale and sold by
the Distributor at a price per share (hereinafter called the "Offering
Price") in accordance with the provisions of the current prospectus
applicable to such offer and sale. Any sales charge and any reduction
or elimination thereof shall be determined by the Distributor in a
manner not inconsistent with law and all applicable rules and
regulations and the provisions of this Agreement, and the Company
agrees to amend its current prospectus to the extent necessary from
time to time to reflect any such determination. The Company will cause
such net asset value to be determined with such frequency and as of
such times and will cause the Offering Price to be effective for such
periods as are set forth in the current prospectus of the Company. The
Company will cause such determinations to be furnished to the
Distributor as often as they are made and shall make available to the
Distributor upon request the computations underlying any such
determination.
Anything to the contrary herein notwithstanding, the Company may
suspend the Offering Price currently in effect and may decline to
accept or confirm any orders for, or to make any sales of, any Shares
to the Distributor under this Agreement until such time as it shall
deem it advisable to accept and confirm such orders and to make such
sales. During any period during which the Offering Price currently in
effect shall be suspended or during which the Company shall decline to
accept or confirm any such orders or make any such sales, the Company
shall be under no obligation to confirm or accept any such orders or
make any such sales at any price.
4. PAYMENT. At or prior to the time of delivery by the Company to, or on
the order of the Distributor of any Shares, the Distributor will pay or
cause to be paid to the Company or to its order an amount equal to the
Offering Price of such shares at which such order had been confirmed,
less the sales charge, if
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any, included thereon as aforesaid. The Distributor agrees to cause to
be remitted to the Company for the benefit of the Company or to its
order all such funds promptly after receipt thereof.
5. DELIVERY OF SHARE CERTIFICATES. Delivery of certificates for Shares
shall be made as promptly as practicable after receipt by the Company
of the purchase price therefor and written request by the Distributor
for such certificates. Such certificates shall be registered in such
names and amounts as the Distributor may specify to the Company in
writing.
6. COMPENSATION OF DISTRIBUTOR. Any sales charges and any compensation to
be paid the Distributor out of any Distribution Plan described in 7(e)
below shall constitute the entire compensation of the Distributor. Out
of such sales charge the Distributor may allow concessions to dealers
as the Distributor shall from time to time determine.
7. ALLOCATION OF EXPENSES. The Company shall pay all expenses connected
with: (i) the organization of the Company or any Fund thereof; and (ii)
the offering of Shares, including without limitation all expenses of:
(a) Registering Shares for offer or sale under the federal
securities laws, except for prospectus printing costs as set
forth below; and
(b) Reports required by and under the federal securities laws; and
(c) Issuance of Shares, including cost of stock certificates,
issue taxes (if any) and fees of legal counsel and of the
transfer agent; and
(d) Registering or qualifying Shares for offer or sale under the
securities laws of any state or other jurisdiction in which
the Distributor may arrange for the sale of the Shares; and
(e) Any Distribution Plan adopted in accordance with Rule 12b-1
under the Investment Company Act of 1940 (the "1940 Act")
providing for any payments by the Company or any Fund thereof.
The Distributor will pay, or promptly reimburse the Company for, all
expenses in connection with:
(a) Preparing, printing and distributing advertising and sales
literature for use in offering the Shares to the public,
including the cost of printing copies of the prospectus and
the additional cost of printing reports to stockholders other
than copies thereof required for distribution to stockholders
or for filing with any securities authorities; and
(b) The registration or qualification of the Distributor as a
dealer or broker under state or federal laws.
Transfer taxes, if any, which may be payable in connection with the issue
and delivery of certificates in a name or names other than the name of the
Distributor will not be borne by the Company and the Distributor agrees to
indemnify and hold the Company harmless against any such transfer taxes.
Any other taxes in connection with the sale of Shares pursuant to this
Agreement will be borne by the Company.
8. COMPANY TO FURNISH INFORMATION. The Company shall furnish the
Distributor for use in connection with the sale of the Shares such
information with respect to the Company and the Shares as the
Distributor may reasonably request, including copies of documents filed
with or furnished to any federal or state securities authorities or
sent to its stockholders.
9. REPRESENTATIONS AND AGREEMENTS WITH RESPECT TO REGISTRATION STATEMENT
AND PROSPECTUS.
(a) As used in this Agreement, the term "registration statement"
shall include any registration statement with respect to the
Shares which is effective under the Act including any
amendment
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thereto, and the term "prospectus" shall include any
prospectus and statement of additional information filed as
part of such registration statement.
(b) The Company represents that the registration statement and
prospectus will conform in all material respects to the Act
and the rules and regulations thereunder and will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that this
representation will not apply to any statements or omissions
made in reliance upon and in conformity with information
furnished in writing to the Company by the Distributor
expressly for use in the registration statement or prospectus.
(c) The Company agrees to advise the Distributor promptly:
(i) of any request of the Securities and Exchange
Commission for amendments to the registration
statement or prospectus or for additional
information;
(ii) in the event of the issuance by the Securities and
Exchange Commission of any stop order suspending the
effectiveness of the registration statement or
prospectus or the initiation of any proceedings for
that purpose;
(iii)of the happening of any event which makes untrue any
statement, or which requires the making of any
change, in the registration statement or prospectus
in order to make the statements therein not
misleading; and
(iv) of all actions of the Securities and Exchange
Commission with respect to any amendments to the
registration statement or prospectus which may from
time to time be filed with the Securities and
Exchange Commission under the Act.
10. INDEMNIFICATION. The Company agrees to indemnify, defend and hold the
Distributor, its officers and directors and any person who controls the
Distributor within the meaning of Section 15 of the Act, free and
harmless from and against any and all claims, demands, liabilities and
expenses (including the cost of investigating or defending such claims,
demands or liabilities and any counsel fees incurred in connection
therewith) which the Distributor, its officers, directors or any such
controlling person may incur under the Act, or under common law or
otherwise, arising out of or based upon any untrue statement of a
material fact contained in the registration statement or prospectus
relating to the Company or arising out of or based upon any alleged
omission to state a material fact required to be stated in either
thereof or necessary to make the statements in either thereof not
misleading, except insofar as such claims, demands, liabilities or
expenses arise out of or are based upon any such untrue statement or
omission or alleged untrue statement or omission made in reliance upon
and in conformity with information furnished in writing by the
Distributor to the Company for use in the registration statement or
prospectus relating to the Company; provided, however, that this
indemnity agreement, to the extent that it might require indemnity for
liability arising under the Act of any person who is also an officer or
director of the Company or who controls the Company within the meaning
of Section 15 of the Act, shall not inure to the benefit of such
officer, director or controlling person unless a court of competent
jurisdiction shall determine, or it shall have been determined by
controlling precedent, that such result would not be against public
policy as expressed in the Act; and further provided, that in no event
shall anything contained herein be so construed as to protect the
Distributor against any liability to the Company or to its security
holders to which the Distributor would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence, in the
performance of its duties, or by reason of its reckless disregard of
its obligations under this Agreement. The Company's agreement to
indemnify the Distributor, its officers and directors and any such
controlling person as aforesaid is expressly conditioned upon the
Company being promptly notified of any action brought against the
Distributor, its officers or directors, or any such controlling person,
such notification to be given by letter or telegram addressed to the
Company at its principal business office. The Company agrees to
promptly notify the Distributor of the commencement of any litigation
or proceedings against it or any of its officers or directors in
connection with the issue and sale of any Shares.
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The Distributor agrees to indemnify, defend and hold the Company, its
officers and directors and any person who controls the Company, if any,
within the meaning of Section 15 of the Act free and harmless from and
against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands
or liabilities and any counsel fees incurred in connection therewith)
which the Company, its directors or officers or any such controlling
person may incur under the Act or under common law or otherwise, but
only to the extent that such liability or expense incurred by the
Company, its directors or officers or such controlling person resulting
from such claims or demands shall arise out of or be based upon any
alleged untrue statement of a material fact contained in information
furnished in writing by the Distributor to the Company for use in the
Company's registration statement or prospectus or shall arise out of or
be based upon any alleged omission to state a material fact in
connection with such information not misleading or shall arise out of
or be based on any false or misleading or allegedly false or misleading
sales literature relating to the Company and prepared by the
Distributor. The Distributor's agreement to indemnify the Company, its
directors and officers, and any such controlling person as aforesaid is
expressly conditioned upon the Distributor being promptly notified of
any action brought against the Company, its officers or directors or
any such controlling person, such notification being given to the
Distributor at its principal business office.
11. COMPLIANCE WITH SECURITIES LAWS. The Company represents that it is
registered as an open-end diversified management investment company
under the Investment Company Act of 1940, and agrees that it will
comply with all of the provisions of such Act and of the rules and
regulations thereunder. The Company and the Distributor each agree to
comply with all of the applicable terms and provisions of the
Investment Company Act of 1940, the Securities Act of 1933 and, subject
to the following provisions of this paragraph 11, all applicable state
securities ("Blue Sky") laws. The Distributor agrees to comply with all
of the applicable terms and provisions of the Securities Exchange Act
of 1934. The Company will cooperate with the Distributor (to the extent
of supplying all necessary documents, exhibits and information), and
will execute and permit to be filed with the proper public bodies, such
applications (including amendments and renewals thereof), instruments,
papers and exhibits as may be appropriate to enable the Shares to be
offered for sale under the laws of such states as the Distributor shall
reasonably determine, and will cooperate with the Distributor in the
presentation of said applications (including amendments and renewals
thereof), to the end that Shares may be qualified in such states under
the respective Blue Sky laws thereof; provided that the Company shall
not be required to amend its Articles of Incorporation or By-Laws to
comply with the laws of any state, to maintain an office in any state,
to change the terms of the offering of Shares in any state from the
terms set forth in its registration statement and prospectus, to
qualify as a foreign corporation in any state or to consent to service
of process in any state other than with respect to claims arising out
of Shares. The Distributor will furnish to the Company any information
known to the Distributor which is necessary or desirable in the
preparation of the Company's registration statement and prospectus and
any amendments or supplements thereto.
12. EFFECT ON DISTRIBUTION PLAN OR DISTRIBUTION PLAN AND AGREEMENT. Any
Distribution Plan or Distribution Plan and Agreement in effect on the
effective date of this Agreement which has been adopted in accordance
with Rule 12b-1 under the 1940 Act shall remain in effect and any
reference therein to a Distributing Agreement or other underwriting
agreement between the parties as of any date prior thereto shall be
deemed to be a reference to this Agreement.
13. EFFECTIVE PERIOD; TERMINATION. This Agreement shall become effective
for an initial period of not more than two years from the date of its
execution, and shall continue in full force and effect continuously
thereafter provided that such continuance is approved at least annually
as required by the 1940 Act. This Agreement shall automatically
terminate in the event of its assignment (as defined by the 1940 Act).
In addition, this Agreement may be terminated at any time, without
penalty, by either party on not more than sixty days' nor less than
thirty days' written notice delivered or mailed by registered mail,
postage prepaid, to the other party.
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IN WITNESS WHEREOF, Xxxxx New York Venture Fund, Inc. and Xxxxx
Distributors, LLC have caused this instrument to be signed in several
counterparts, each of which shall be an original and which together
shall constitute one and the same Agreement, by an officer or officers
thereunto duly authorized, as of the day and year first above written.
XXXXX NEW YORK VENTURE FUND, INC.
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By: Xxxxxx Xxxx, Vice President
XXXXX DISTRIBUTORS, LLC
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By; Xxxxxx Xxxx, Vice President
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