EXHIBIT 6
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made
effective as of the ______ day of February, 1997, by and between
XXXXXX OMNI INVESTMENT TRUST, a business trust organized and
existing under the laws of the Commonwealth of Massachusetts (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.
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.
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
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
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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 accepts such order. The net asset value per Share of the
Shares shall be determined in the manner provided in the Trust's
Declaration of Trust 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.
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.
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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 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
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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 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
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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' 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
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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 law of the
Commonwealth of Massachusetts pursuant to a Declaration of Trust
filed in the office of the Secretary of State of the Commonwealth
of Massachusetts. All parties to this Agreement acknowledge and
agree that this Agreement was made by and on behalf of the Trust
by the person whose name is set forth below as an officer of the
Trust and not individually, 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:
(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
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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
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:____________________________
XXXXXX OMNI
INVESTMENT TRUST
By:____________________________
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EXHIBIT A
EFFECTIVE
TERMINATION
FUND DATE
DATE
Xxxxxx Small Cap Value __________, 1997 April 30, 1998
Fund (all classes)
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