Exhibit
Number Exhibit
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(e)(1)(d) Distribution and Service Agreement between Registrant
and Xxxxxx on behalf of The Oklahoma Municipal Fund.
Exhibit (e)(1)(d)
DISTRIBUTION AND SERVICES AGREEMENT
THIS DISTRIBUTION AND SERVICES AGREEMENT dated _______________, by and
between XXXXXX MANAGED PORTOLIOS a Massachusetts business trust (the "Fund"),
and XXXXXX CAPITAL CORPORATION, a Kansas corporation, (the "Distributor").
1. APPOINTMENT OF DISTRIBUTOR. The Fund appoints the Distributor as the
principal underwriter and exclusive Distributor of shares of The Oklahoma
Municipal Fund series of Xxxxxx Managed Portfolios (the
"Shares"), effective as of the date upon which the continuous public offering
of the Fund's Shares shall commence (the "Effective Date"). The Fund reserves
the right, however, to refuse at any time or times to sell Shares hereunder for
any reason deemed adequate by the Trustees of the Fund. The term "Fund" as
used herein shall refer to either Xxxxxx Managed Portfolios or The Oklahoma
Municipal Fund as the context may require.
The Distributor will use its best efforts to sell through its organization
and through other dealers the Shares which the Distributor has the right to
purchase under Section 2 hereof, but the Distributor does not undertake to sell
any specific number of Shares.
The Distributor agrees that it will not take any long or short positions
in the Shares, except for long positions in those Shares purchased by the
Distributor in accordance with any systematic sales plan or any similar plan
described in the then current Prospectus of the Fund and except as permitted by
Section 2 hereof, and that so far as it can control the situation, it will
prevent any of its directors, officers or stockholders from taking any long
or short positions in the Shares, except for legitimate investment purposes.
2. SALE OF SHARES TO THE DISTRIBUTOR. The Fund hereby grants to the
Distributor the right, except as herein otherwise provided, to purchase Shares
upon the terms herein set forth. Such right hereby granted shall not apply to
Shares issued or transferred or sold at net asset value: (a) in connection with
the merger or consolidation of the Fund with any other investment company or
the acquisition by the Fund of all or substantially all of the assets or of
the outstanding Shares of any investment company; (b) in connection with a pro
rata distribution directly to the holders of Fund Shares in the nature of a
stock dividend or stock split; (c) upon the exercise of purchase or
subscription rights granted to the holders of Shares on a pro rata basis;
(d) in connection with the automatic reinvestment of dividends and
distribution from the Fund; or (e) in connection with the issue and sale
of Shares to Trustees, officers and employees of the Fund, and to directors,
officers and employees of the investment adviser (or any portfolio manager)
of the Fund or any principal underwriter (including the Distributor) of the
Fund, and to any trust, pension, profit-sharing or other benefit plan for any
of the aforesaid persons or any other such persons as described in the then
current Prospectus of the Fund, as permitted by Rule 22d-1 under the
Investment Company Act of 1940.
The Distributor shall have the right to buy from the Fund the Shares
needed, but not more than the Shares needed (except for reasonable allowances
for clerical errors, delays and errors of transmission and cancellation of
orders) to fill unconditional orders for Shares received by the Distributor
from dealers and investors during each period when a particular net asset
value and public offering price are in effect as provided in Section 3 hereof;
and the price which the Distributor shall pay for the Shares so purchased
shall be the net asset value used in determining the public offering price on
which such orders were based. The Distributor shall notify the Fund at the end
of each such period, or as soon thereafter on that business day as the orders
received in such period have been compiled, of the number of Shares which the
Distributor elects to purchase hereunder.
3. PUBLIC OFFERING PRICE. The public offering price per Share shall
be determined in accordance with the then current Prospectus of the Fund.
In no event shall the public offering price exceed the net asset value per
Share plus a sales charge of 8.5% of the public offering price. The net
asset value per Share shall be determined in the Agreement and Declaration
of Trust of the Fund as then amended and in accordance with the current
Prospectus of the Fund. The Fund will cause immediate notice to be given
to the Distributor of each change in net asset value as soon as it is
determined. Discounts to dealers purchasing Shares from the Distributor
for resale shall be set forth in the form of Dealer Agreement between the
Distributor and securities dealers, as from time to time amended, and, if
such discounts are described in the then current Prospectus for the Fund,
shall be as so set forth.
4. COMPLIANCE WITH NASD RULES, ETC. In selling Fund Shares, the
Distributor will in all respects duly conform with all state and Federal
laws relating to the sale of such securities and with all applicable rules
and regulations of all regulatory bodies, including without limitation, the
Rules of Fair Practice of the National Association of Securities Dealers,
Inc. and all applicable rules and regulations of the Securities and
Exchange Commission under the Investment Company Act of 1940, and will
indemnify and save the Fund harmless from any damage or expense on account
of any unlawful act by the Distributor or its agents or employees. The
Distributor is not, however, to be responsible for the acts of other dealers.
Neither the distributor, any dealer, nor any other person is authorized by
the Fund to give any information or to make any representations, other than
those contained in the Registration Statement or Prospectus heretofore or
hereafter filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (as any such Registration Statement and
Prospectus may have been or may be amended from time to time), covering the
Shares, and in any supplemental information to any such Prospectus approved
by the Fund in connection with the offer or sale of Shares. All such sales
shall be made by the Distributor as principal for its own account.
5. EXPENSES.
(a) The fund will pay or cause to be paid:
(i) all expenses in connection with the registration of Fund Shares under
the Federal securities laws, and the Fund will exercise its best efforts to
obtain said registration and qualification;
(ii) all expenses of qualifying and maintaining qualification of the
Shares for sale under the securities laws of the various states after the
initial registration in such states of the Shares;
(iii) all expenses in connection with the printing of any notices of
shareholders' meetings, proxy and proxy statements and enclosures therewith,
as well as any other notice or communication sent to shareholders or otherwise,
any annual, semi-annual or other report of communications sent to the
shareholders, and the expenses of sending prospectuses relating to the Shares
to existing shareholders;
(iv) all expenses of any Federal or state original issue tax or transfer
tax payable upon the issuance, transfer or delivery of Shares from the Fund
to the Distributor; and
(v) the cost of preparing and issuing any Share certificates which may
be issued to represent Shares.
(b) The expenses of preparing, printing and distributing advertising
and sales literature; of printing and distributing prospectuses relating
to the Shares (other than deliveries to existing shareholders), reports to
shareholders and proxy material used in connection with the sale of Shares;
of initially qualifying the Shares for sale under the securities laws of
the various states; and of any other activity which is primarily intended
to result in the sale of Shares issued by the Fund will be paid by the
Distributor, except to the extent described in Section 7 of this Agreement.
The Distributor will also permit its officers and employees to serve without
compensation as Trustees and officers of the Fund if duly elected to such
positions.
6. REPURCHASE OF SHARES. The Fund hereby authorizes the Distributor
to repurchase, upon the terms and conditions hereinafter set forth, as the
Fund's agent and for the Fund's account, such as may be offered for sale to
the Fund from time to time by holders of such Shares or their agents:
(a) Subject to and in conformity with all applicable Federal and state
legislation, any applicable rules of the National Association of Securities
Dealers, Inc. and any applicable rules and regulations of the Securities and
Exchange Commission under the Investment Company Act of 1940, the Distributor
may accept offers of holders of Shares to resell such Shares to the Fund on
such term and conditions and at such prices as described and provided for
in the then current Prospectus of the Fund.
(b) The Distributor agrees to notify the Fund at such times as the
Fund may specify of the number of Shares repurchased for the Fund's account
and the time or times of such repurchases, and the Fund shall notify the
Distributor of the prices applicable to such repurchases.
(c) The Fund shall have the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by
telegraph or by written instrument from any of the Fund's officers. In the
event that the Distributor's authorization is, by the terms of such notice,
suspended for more than twenty-four hours or until further notice, the
authorization given by this Section 6 shall not be revived except by vote
of the Board of Trustees of the Fund.
(d) The Distributor agrees that all repurchases of Shares made by the
Distributor shall be made only as agent for the Fund's account and pursuant
to the terms and conditions herein set forth.
(e) The Fund agrees to authorize and direct its Custodian for the Fund
to pay for the Fund's account the repurchase price of any Shares so repurchased
for the Fund against delivery of the certificates representing such Shares
in proper form for transfer to the Fund or against the authorized transfer
of book Shares from an Open Account and against delivery of any other
documentation required by the Board of Trustees of the Fund.
(f) The Distributor shall receive no commissions or other compensation
in respect to any repurchases of Shares for the Fund under the foregoing
authorization and appointment as agent.
(g) If any shares sold to the Distributor under the terms of this
Agreement are redeemed or repurchased by the Fund or by the Distributor as
agent or are tendered for redemption within seven business days after the date
of the Fund's confirmation of the original purchase, the Distributor shall
forfeit the amount above the net asset value received by it in respect of
such Shares, provided that the portion, if any, of such amount reallowed by
he Distributor to dealers shall be repayable to the Fund only to the extent
recovered by the Distributor from the dealer concerned. The Distributor shall
include in the form of Dealer Agreement with securities dealers a corresponding
provision for the forfeiture by dealer of their concession with respect to
Shares purchased by them and redeemed or repurchased by the Fund or by the
Distributor, as agent within seven business days after the date of the Fund's
confirmation of their purchases.
7. SERVICE FEE. The Fund will pay an annual fee to the Distributor (the
"Distributor's Fee") of .25% times the average of the net asset values of the
Fund. The Distributor may pay a fee on a quarterly basis (the "Servicing Fee")
to broker-dealers, including the Distributor and affiliates of the adviser and
portfolio manager of the Fund, banks and savings and loan institutions and
their affiliates and associated broker-dealers that have entered into service
agreements with the Distributor ("Service Organizations") of annual amounts of
up to 0.25% of the average net asset value of all Shares owned by shareholders
with whom the Service Organization has a servicing relationship (the
"Accounts"), provided that no such payment of a Service Fee with respect to an
Account shall be made until the Service Organization has been servicing such
Account for more than a year (the "Eligible Accounts"). To the extent the
Servicing Fee is not paid to Service Organizations out of the Distributor's
Fee, the Distributor may use such fee to pay any of the expenses set forth in
Section 5(b) of this Agreement.
(a) the amount which the Fund will pay the Distributor for the
Distributor's Fee in any calendar month shall be calculated by multiplying
1/12th of 0.25% times the average of the net asset value of the Fund on
each day during the month.
(b) The amount which the Distributor may pay the Service Organizations in
any calendar quarter shall be calculated by multiplying 1/4th of the
percentage set forth in the Service Agreement with each Service
Organization (up to a maximum of 0.25%) times the average net asset value
of the Eligible Accounts with respect to such Service Organization during
such quarter.
(c) For the purpose of determining the maximum amounts payable or
reimbursable under this Agreement, the net asset value of the Fund shall
be determined as described in Section 3 of this Agreement.
(d) The Distributor shall provide the Trustees, at least quarterly, a
written report of all amounts expended by the Distributor pursuant to this
Section 7 and, to the extent applicable, Section 5, stating in such report
the purposes for which such amounts were expended.
8. INDEMNIFICATION. 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 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 or necessary in order to make the statements not
misleading under the 1933 Act, or any other statute or the common law.
However, the Fund does not agree to indemnify the Distributor or hold it
harmless to the extent that the statement or omission was made in reliance
upon, and in conformity with, information furnished to the Fund by or on
behalf of the Distributor. 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 person against any liability to the Fund or its
security holders to which the Distributor or such person would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of their duties or by reason of their reckless disregard
of their obligations and duties under this Agreement, or (ii) is the fund
to be liable under its indemnity agreement contained in this section with
respect to any claim made against the Distributor or any person (or after the
Distributor or the person shall have received notice or service on any
designated agent). However, failure to notify the Fund of any claim shall
not relieve the Fund 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 claims,
but if the Fund elects to assume the defense, the defense shall be conducted
by counsel chosen by it and elects to assume the defense of any suit and
retain counsel, the Distributor, officers or Trustees or 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 suit, it will reimburse the Distributor,
officers or Trustees or 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 to notify the Distributor promptly 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.
The Distributor also covenants and 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 stature 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
or necessary in order to make the statements not misleading, insofar as the
statement or omission was made in reliance upon, and in conformity with
information furnished to the Fund by or on behalf of the Distributor. 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 person against
any liability to which the Fund or such person 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 and duties under this Agreement, 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 person, as the case may be, shall have notified 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 shall have been served upon the Fund or person (or after the
Fund or such person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim shall not
relieve the Distributor from any liability which it may have to the Fund or
any person against whom the action is brought otherwise than on account of
its indemnity agreement contained in this paragraph. In the case of any
notice to the Distributor, it 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 the claim, but if the Distributor elects to assume
the defense, the defense shall be conducted by counsel chosen by it 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 suit and retain counsel,
the Fund or controlling persons, defendant or defendants in the suit, shall
bear the fees and expense of any additional counsel retained by it. If the
Distributor does not elect to assume the defense of any suit, it will
reimburse the Fund, officers and Trustees or controlling person or persons,
defendant or defendants in the suit, for the reasonable fees and expenses
of any counsel retained by it. The Distributor agrees to notify the Fund
promptly of the commencement of any litigation or proceedings against it
in connection with the issue and sale of any of the Shares.
9. CONTINUATION, AMENDMENT OR TERMINATION OF THE AGREEMENT. This
Agreement shall become effective on the Effective Date (it having been
approved prior to such date by a majority of the Fund's Board of Trustees
including a majority of the Disinterested Trustees, as defined below) and
shall remain in full force until the second anniversary of the Effective
Date unless sooner terminated as provided herein. This Agreement shall
continue in force from year to year hereafter so long as such continuance
is approved in the manner required by the Investment Company Act of 1940
(a) this Agreement shall immediately terminate in the event of its assignment;
and (b) this Agreement may be terminated by the Distributor or the Fund on
ninety (90) days' written notice. Upon termination of this Agreement, the
obligations of the parties hereunder shall cease and terminate as of the
date of such termination, except for any obligation to respond for a breach
of this Agreement committed prior to such termination.
This Agreement may be amended at any time by mutual consent of the
parties, provided that such consent on the part of the Fund shall have
been approved (i) by the Trustees of the Fund, and (ii) by vote of a majority
of the Disinterested Trustees cast in person at a meeting called for the
purpose of voting on such amendment.
For the purpose of this section, the term "assignment" shall have
the meaning defined in the Investment Company Act of 1940, as amended.
10. NOTICE. Any notice under this Agreement shall be given in writing,
addressed and delivered, or mailed postpaid, to the other party at any office
of such party or ast such other address as such party shall have designated
in writing.
11. LIMITATION OF LIABILITY. The parties hereto are expressly put on
notice of the Fund's Agreement and Declaration of Trust dated August 10,
1990 and all amendments thereto, all of which are on file with the Secretary
of The Commonwealth of Massachusetts, and the limitation of shareholder
and Trustee liability contained therein. This agreement has been executed
by and on behalf of the Fund by its representatives as such representatives
and not individually, and the obligations of the Fund hereunder are not
binding upon any of the Trustees, officers or shareholders of the Fund
individually but are binding upon only the assets and property of the Fund.
With respect to any claim by the Distributor for recovery of that portion
of the Distribution Fee (or any other liability of the Fund arising hereunder)
allocated to a particular portfolio, if there is more than one, whether in
accordance with the express terms hereof or otherwise, the Distributor shall
have recourse solely against the assets of that portfolio to satisfy such
claim and shall have no recourse against the assets of any other portfolio
for such purpose.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be executed on their behalf on the day and year first above written.
Xxxxxx Managed Portfolios
By: /s/Xxxxxx X. Xxxxxxx
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XXXXXX CAPITAL CORPORATION
By: /s/Xxxxxx X. Xxxxxxx
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