EXHIBIT NO. 6
UNDERWRITING AGREEMENT
DISTRIBUTION AGREEMENT
THE XXXXXXXXXX FUNDS II
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
July 31, 1997
Funds Distributor, Inc.
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the, above-normal investment company (the "Fund") has agreed that you
shall be, for the period of this agreement the distributor of (a) shares of each
Series of the Fund set forth on Exhibit A hereto, as such Exhibit my be revised
from time to time (each, a 'Series") or (b) if no Series are set forth on such
Exhibit, shares of the Fund. For purposes of this amendment the term "Shares"
shall mean the authorized shares of the relevant Series, if any, and otherwise
shall mean the Fund's authorized share.
1. Services as Distributor
1.1 You will act as agent for the distribution of Shares
covered by, and in accordance with, the registration statement and
prospectus then in effect under the Securities Act of 1933, as amended,
and will transmit promptly any orders received by you for purchase or
redemption of Shares to the Transfer and Dividend Disbursing Agent for
the Fund of which the Fund has notified you in writing. You will
undertake and discharge your obligations hereunder as an independent
contractor and shall have no authority or power to obligate or bind us
by your actions, conduct or contracts except that you are authorized to
accept orders for the purchase or repurchase of the Shares as our
agent. You may appoint sub-agents or distribute through dealers, your
own sales representatives or otherwise as you may determine from time
to time, but this Agreement shall not be construed as authorizing any
dealer or other person to accept orders for sale or repurchase of
Shares of the Fund on our behalf or otherwise act as our agent for any
purpose.
1.2 You agree to use your best efforts to solicit orders for
the sale of Shares. It is contemplated that you may enter into sales or
servicing agreements with securities dealers, financial institutions and other
industry professionals, such as investment advisors, accountants and estate
planning firms, and in so doing you will act only on your own behalf as
principal.
1.3 You shall act as distributor of Shares in compliance with
all applicable laws, rules and regulations, including, without limitations, the
Investment Company Act of 1940, as amended, the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended and the National
Association of Securities Dealers, Inc.'s (the "NASD") Conduct Rules,
Constitution and By-Laws. You represent and warrant that you are a broker-dealer
registered with the Securities and Exchange Commission and that you are
registered with the relevant securities regulatory agencies in all fifty states,
the District of Columbia and Puerto Rico. You also represent and warrant that
you are a member of the NASD.
1.4 You shall file Fund advertisements, sales literature and
other marketing and sales related materials with the appropriate regulatory
agencies and shall obtain such approvals for their use as may be required by the
Securities and Exchange Commission. the National Association of Securities
Dealers, Inc. and/or state securities administrators. You shall not disseminate
to the public any such materials without prior approval by Xxxxxxxxxx Asset
Management, LLC.
1.5 Whenever in their judgment such action is warranted by
unusual market, economic or political conditions, or by abnormal circumstances
of any kind deemed by the parties hereto to render sales of a Fund's Shares not
in the best interest of the Fund, the parties hereto may decline to accept any
orders for, or make any sales of, any Shares until such time as those parties
deem it advisable to accept such orders and to make such sales and each party
shall advise promptly advise other party of any such determination.
1.6 The Fund agrees to pay all costs and expenses in
connection with the registration of Shares under the Securities Act of 1933, as
amended, and all expenses in connection with facilities for the issue and
transfer of Shares and for supplying information, prices and other data to be
furnished by the Fund hereunder, and all expenses in connection with the
preparation and printing of the Fund's prospectuses and statements of additional
information for regulatory purposes and for distribution to shareholders;
provided however, that the Fund shall not pay any of the costs of advertising or
promotion for the sale of Shares except for the payment of Rule 12b-I fees under
the terms of a written agreement.
1.7 The Fund agrees to execute any and all documents and to
furnish any and all information and otherwise to take all actions which may be
reasonably necessary in the discretion of the Fund's officers in connection with
the qualification of Shares for sale in such states as you may designate to the
Fund and the Fund may approve, and the Fund agrees to pay all expenses which may
be incurred in connection with your own qualification. You shall pay all
expenses connected with your own qualification as a dealer wider state or
Federal laws and, except as otherwise specifically provided in this agreement,
all other expenses incurred by you in connection with the sale of Shares as
contemplated in this agreement.
1.8 The Fund shall furnish you from time to time, for use in
connection with the sale of Shares, such information with respect to the Fund or
any relevant Series and the Shares as you may reasonably request, all of which
shall be signed by one or more of the Fund's duly authorized officers; and the
Fund warrants that the statements contained in any such information, when so
signed by the Fund's officers, shall be true and correct. The Fund also shall
furnish you upon request with: (a) semi-annual reports and annual audited
reports of the Fund's books and accounts made by independent public accountants
regularly retained by the Fund. (b) quarterly earnings statements prepared by
the Fund, (c) a monthly itemized list of the securities in the Fund's or, if
applicable, each Series' portfolio, (d) monthly balance sheets as soon as
practicable after the end of each month, and (e) from time to time such
additional information regarding the Fund's financial condition as you may
reasonably request.
1.9 The Fund represents to you that all registration
statements and prospectuses filed by the Fund with the Securities Act Exchange
Commission under the Securities Act of 1933, as amended, and under the
Investment Company Act of 1940, as amended, with respect to the Shares have been
carefully prepared in conformity with the requirements of said Acts and rules
and regulations of the Securities and Exchange Commission thereunder. As used in
this agreement the terms "registration statement" and "prospectus" shall mean
any registration statement and prospectus, including the statement of additional
information incorporated by reference therein, filed with the Securities and
Exchange Commission and any amendments and supplements thereto which at any time
shall have been filed with said Commission. The Fund represents and warrants to
you that any registration statement and prospectus, when such registration
statement becomes effective, will contain all statements required to be stated
therein in conformity with said Acts and the rules and regulations of said
Commission; that all statements of fact contained in any such registration
statement and prospectus will be true and correct when such registration
statement becomes effective; and that neither any registration statement nor my
prospectus when such registration statement becomes effective will include an
untrue statement of a material fact or omit to state a material fact required to
be dated therein or necessary to make the statements therein not misleading. The
Fund may, but shall not be obligated to, propose from time to time such
amendment or amendments to any registration statement and such supplement or
supplements to any prospectus as, in the light of future developments, may, in
the opinion of the Fund's counsel, be necessary or advisable. If The Fund shall
not propose such amendment or amendments and/or supplement or supplements within
fifteen days after receipt by The Fund of a written request from you to do so
stating that your internal or external legal counsel believes such amendments or
supplements to be legally required, you may, at your option, terminate this
agreement or decline to make offers of the Fund's securities until such
amendments are made. The Fund shall not file any material amendment to any
registration statement or material supplement to any prospectus without giving
you reasonable notice thereof in advance, provided, however, that
nothing contained in this agreement shall in any way limit the Fund's right to
file at any time such amendments to any registration statement and/or
supplements to any prospectus, of whatever character, as the Fund may deem
advisable, such right being in all respects absolute and unconditional.
1.10 Nothing herein shall be deemed to protect you against any
liability o us or to our securities holders to which you would otherwise be
subject by reason of your willful misfeasance, bad faith or gross negligence in
the performance of your duties hereunder, or by reason of your reckless
disregard of your obligations and duties hereunder.
1.11 We agree to indemnify and hold you harmless from and
against any and all losses, claims, damages or liabilities to which you may
become subject under the 1933 Act, the 1940 Act or any state securities statute,
and to reimburse you for any legal or other expenses reasonably incurred by you
in with any claim or litigation, whether or not resulting in any liability,
insofar as such losses, claims, damages, liabilities, or litigation arise out of
or are based upon any untrue statement or omission or alleged untrue statement
or omission of a material fact contained in the Registration Statement of the
Trust; provided, however, that this indemnity shall not apply to any such
losses, claims, damages, liabilities, or litigation arising out of or based upon
any untrue statement or omission or alleged untrue statement or omission of a
material fact contained in the Registration Statement, which statement or
omission was made in reliance upon information furnished to us by you for
inclusion in the Registration Statement.
You agree to indemnify and hold us harmless from and against any and all losses,
claims, damage or liabilities to which we may become subject under the 1933 Act,
the 1940 Act or any state securities statute, and reimburse us for any legal or
other expenses reasonably incurred by us in connection with any claim or
litigation, whether or not resulting in any liability, insofar as such losses,
claims, damages, liabilities, or litigation arise out of or are based upon any
untrue statement or omission or alleged untrue Statement or omission of a
material fact contained in the Registration Statement; provided, however, that
this indemnity shall not apply to any such losses, claims, damages, liabilities,
or litigation arising out of or based upon any untrue statement or omission of a
material fact contained in the Registration Statement, where such statement or
omission was not made in reliance upon information furnished to us by you for
inclusion in the Registration Statement.
1.12. You acknowledge that you have received notice of and
accept the limitations the Trust's liability set forth in its Agreement and
Declaration of Trust, as amended from time to time. In accordance therewith, you
agree that the Trust's obligations hereunder shall be limited to each Fund and
the assets of each Fund, and no party shall seek satisfaction of any such
obligation from any shareholder of the Trust nor from any employee or agent of
the Trust.
1.13 No Shares shall be offered by either you or the Fund
under any of the provisions of this agreement and no orders for the purchase or
sale of such Shares hereunder shall be accepted by the Fund if and so long as
the effectiveness of the registration statement then
in effect or any necessary amendments thereto shall be suspended under any of
the provisions of the Securities Act of 1933, as amended or if and so long as a
current prospectus as required by Section 10 of said Act, as amended, is not on
file with the Securities and Exchange Commission; provided, however, that
nothing contained in this paragraph 1.12 shall in any way restrict or have an
application to or bearing upon the Fund's obligation to repurchase any Shares
from any shareholder in accordance with the provisions of the Fund's prospectus
or charter documents.
1.14 The Fund agrees to advise you immediately in writing:
(a) of any request by the Securities and Exchange
Commission for amendments to the registration statement or
prospectus then in effect or for additional information;
(b) 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 then
in effect or the initiation of any proceeding for that
purpose;
(c) of the happening of any event which makes untrue
any statement of a material fact made in the rcgistm6on
statement or prospectus then in effect or which requires the
making of a change in such registration statement or
prospectus in order to make the statements therein not
misleading; and
(d) of all material actions of the Securities and
Exchange Commission with respect to any material amendments to
any registration statement or prospectus which may from time
to time be filed with the Securities and Exchange Commission.
2. Offering Price
Shares of any class of the Fund offered for sale by you shall be
offered at a price per share (the "offering price") equal to (a) the net asset
value (determined in the manner set forth in the Fund's charter documents) plus
(b) a sales charge, if any and except to those persons set forth in the
then-current prospectus, which shall be the percentage of the offering price of
such Shares as set forth in the Fund's then-current prospectus. The offering
price, if not an exact multiple of one cent, shall be adjusted to the nearest
cent. In addition, Shares of any class of the Fund offered for sale by you may
be subject to a contingent deferred sales charge as set forth in the Fund's
then-current prospectus. You shall be entitled to receive any sales charge or
contingent deferred sales charge in respect of the Shams. Any payments to
dealers shall be governed by a separate agreement between you and such dealer
and the Fund's then-current prospectus.
3. Term
This Agreement shall become effective with respect to the Fund as of
the date hereof and will continue for an initial two-year term and will continue
thereafter so long as such continuance is specifically approved at least
annually (i) by the Fund's Board or (ii) by a vote of a majority of the Shares
of the Fund or the relevant Series, as the case may be, provided that in either
event its continuance also is approved by a majority of the Board members who am
not "interested persons" of any party to this Agreement by vote cast in person
at a meeting called for the purpose of voting on such approval. This agreement
is terminable with respect to the Fund or a Series, without penalty, on not less
than sixty days' notice, by the Fund's Board of Trustees, by vote of a majority
of the outstanding voting securities of such Fund or Series, or by you. This
Agreement will automatically and immediately terminate in the event of its
"assignment' (As used in this Agreement, the terms "majority of the outstanding
voting securities," "interested person" and "assignment" shall have the same
meanings as such terms have in the investment Company Act of 1940). You agree to
notify the Fund immediately upon the event of your expulsion or suspension by
the NASD. This Agreement will automatically and immediately terminate in the
event of your expulsion or suspension by the NASD.
4. Miscellaneous
4.1 The Fund recognizes that, except to the extent otherwise
agreed to by the parties hereto, your directors, officers and employees may from
time to time serve as directors, trustees, officers and employees of
corporations and business trusts (including other investment companies), and
that you or your affiliates may enter into distribution or other agreements with
such other corporations and trusts.
4.1 You shall not purchase the Shares for your own account for
purposes of resale to the public, but you may purchase shares for your own
investment account upon written assurance that the purchase is for investment
purposes only and that the Shares will not be resold except through redemption
by us.
4.3 No provision of this Agreement may be changed, waived,
discharged or terminated, but only by an instrument in writing signed by the
party against which an enforcement of the change, waiver, discharge or
termination is sought.
4.4 This Agreement shall be governed by the internal laws of
the of Massachusetts without giving effect to principles of conflicts of laws.
4.5 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. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors.
Please confirm that the foregoing is in accordance with your
understanding and indicate your acceptance hereof by signing below, whereupon it
shall become a binding
Agreement between us.
Very truly yours,
THE XXXXXXXXXX FUNDS II
By: _______________________
Name: _____________________
Title: ____________________
Accepted:
FUNDS DISTRIBUTOR, INC.
By: _______________________
Name: _____________________
Title: ____________________
EXHIBIT A
Series of Funds
THE XXXXXXXXXX FUNDS II
Xxxxxxxxxx Asset Allocation Fund
Xxxxxxxxxx Institutional Series:
Emerging Markets Portfolio
