DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT, made this 1st day
of December, 2005 by and between Xxxxx Xxxxxx
Institutional Cash Management Fund Inc. ("Investment
Company"), a Maryland corporation and Xxxx Xxxxx
Investor Services, LLC ("Distributor").
WHEREAS, the Investment Company is registered
with the Securities and Exchange Commission ("SEC") as
an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940
Act"), and has registered its shares for the series
thereof listed on Appendix A ("Shares"), as it may be
amended from time to time by agreement between the
Distributor and the Investment Company (each such series
thereof, a "Fund") for sale to the public under the
Securities Act of 1933, as amended (the "1933 Act") and
filed appropriate notices under various state securities
laws; and
WHEREAS, the Investment Company wishes to retain
the Distributor as the principal underwriter in connection
with the offering and sale of the Shares and to furnish
certain other services to the Investment Company as specified
in this Agreement; and
WHEREAS, this Agreement has been approved by separate
votes of the Investment Company's Board of Directors ("Board")
and of those Board members who are not "interested persons"
of the Investment Company, as defined in the 1940 Act and who
have no direct or indirect financial interest in the operation
of the plan of distribution adopted pursuant to Rule 12b-1
under the 1940 Act ("Plan") of a Fund or in any agreements
related to such plan ("Independent Board Members") in
conformity with Section 15 of, and Rule 12b-1 under, the 1940
Act; and
WHEREAS, the Distributor is willing and able to furnish
such services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and
mutual covenants herein contained, it is agreed as follows:
1. (a)The Investment Company hereby appoints the
Distributor as non-exclusive principal underwriter and
distributor in connection with the offering and sale of Shares
of the Fund to the public directly and through registered and
qualified securities dealers, banks and other intermediaries
(collectively, "Intermediaries"), and the Distributor hereby
accepts such appointment, on the terms and for the period set
forth in this Agreement. The Distributor, as agent for the
Investment Company, shall, in accordance with applicable federal
and state law and the organizational documents of the Investment
Company and the registration statement most recently filed by
the Investment Company with the SEC and effective under the 1940
Act and 1933 Act, as such Registration Statement may be amended
or supplemented from time to time ("Registration Statement"):
(i) promote the Fund; (ii) solicit orders for the purchase of
the Shares subject to such terms and conditions as the Investment
Company may specify; and (iii) accept orders for the purchase of
the Shares on behalf of the Investment Company (collectively,
"Distribution Services"). The Distributor shall comply with all
applicable federal and state laws and offer the Shares of the
Fund on an agency or "best efforts" basis under which the
Investment Company shall issue only such Shares as are actually
sold.
(b) The Distributor may pay for ongoing shareholder liaison
services, including responding to shareholder inquiries, providing
shareholders with information on their investments, and any other
services now or hereafter deemed to be appropriate subjects for the
payments of "service fees" under Conduct Rule 2830 of the National
Association of Securities Dealers, Inc. ("NASD") (collectively,
"Shareholder Services"), as appropriate.
2.The Distributor may also enter into dealer or similar
agreements with qualified Intermediaries it may select for the
performance of Distribution Services and Shareholder Services. The
Distributor may also enter into agreements with Intermediaries and
other qualified entities to perform recordkeeping, shareholder
servicing and sub-accounting services. In making such arrangements,
the Distributor shall act only as principal and not as agent for
the Investment Xxxxxxx.Xx such Intermediary is authorized to act as
agent for the Investment Companyin connection with the offering or
sale of Shares to the public or otherwise, except for the limited
purpose of determining the time as of which orders for the purchases,
sales and exchanges of Shares are deemed to have been received.
3.The public offering price of the Shares of the Fund shall
be the net asset value per share (as determined by the Investment
Company) of the outstanding Shares of the Fund (or class thereof)
next determined after receipt of an order by the Fund or its
designated agent plus any applicable sales charge, as described in
the Registration Statement of the Investment Company.
0.Xx compensation for providing Distribution Services under
this Agreement, the Distributor shall retain the sales charge, if
any, on purchases of Shares or retain deferred sales charges upon
redemption of Shares, as set forth in the Registration Statement.
The Distributor is authorized to collect the gross proceeds derived
from the sale of the Shares, remit the net asset value thereof to the
Investment Company upon receipt of the proceeds and retain the sales
charge, if any. The Distributor shall receive from each Fund fees at
the rates and under the terms and conditions of the Plan adopted by
the Investment Company with respect to each Fund, as such Plan is in
effect from time to time, and subject to any further limitations on
such fees as the Board may impose. The Distributor may reallow any or
all of the sales charges that it has received under this Agreement
to such Intermediaries as it may from time to time determine,
consistent with the Registration Statement and applicable law. The
Distributor may pay any or all of the distribution fees and service
fees that it has received under this Agreement to such Intermediaries
as it may from time to time determine, consistent with the
Registration Statement and applicable law. The Distributor may
securitize or borrow against amounts to be received by the Distributor
under a Plan, in which case payments of the fees under the Plan by
the Fund may be made directly to the lender, security-holder or an
agent thereof pursuant to written instructions of the Distributor;
provided, however, that no such arrangement shall be deemed to give
rise to any obligation on the part of an Investment Company or its
Board to continue such payments if the Board determines that such
payments are not in the best interests of the Fund or its shareholders,
or to create any obligation of the Fund or Investment Company to the
lender.
0.Xx used in this Agreement, the terms "Prospectus" and "
Statement of Additional Information" shall mean, respectively, the form
of prospectus and statement of additional information with respect to
the Fund filed by the Investment Company as part of the Registration
Statement, or as they may be amended or supplemented from time to time.
6.The Distributor shall print and distribute to prospective
investors current Prospectuses, and shall print and distribute, upon
request, to prospective investors current Statements of Additional
Information, and may print and distribute such other sales literature,
reports, forms and advertisements in connection with the sale and offers
of sale of the Shares as it deems appropriate. In connection with such
sales and offers of sale, the Distributor and any Intermediary shall
give only such information and make only such statements or
representations as are contained in the Fund's Registration Statement,
or in information furnished in writing to the Distributor by the
Investment Company and intended for such use or approved in writing by
authorized representatives of the Investment Company or the Investment
Company's investment adviser, and the Investment Company shall not be
responsible in any way for any other information, statements or
representations given or made by the Distributor or any Intermediary.
Except as specifically provided in this Agreement, the Investment
Company shall bear none of the expenses of the Distributor in connection
with its offer and sale of the Shares.
7.Subject to the right of the Investment Company to cease to offer
Shares as set forth in paragraph 11 hereof, the Investment Company agrees
at its own expense to register, qualify or determine the exemption for
registration or qualification of the Shares then offered with the SEC,
state and other regulatory bodies, and to prepare and file from time to
time such Fund's Registration Statement, amendments thereto, reports and
other documents as may be necessary to maintain the registration or
qualification. The Distributor and Intermediaries shall provide the
Investment Company promptly with all information required for such
registration or qualification. Each Fund shall bear all expenses related
to preparing and typesetting such Prospectuses, Statements of Additional
Information, and other materials required by law and such other expenses,
including printing and mailing expenses, related to such Fund's
communications with persons who are shareholders of that Fund.
8.(a) The Distributor shall act as distributor of Shares in
compliance in all material respects with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations made
or adopted pursuant to (i) the 1940 Act, (ii) the 0000 Xxx, (xxx) the
Securities Exchange Act of 1934 ("1934 Act"), (iv) any securities
association registered under the 1934 Act, including without limitation
the NASD Conduct Rules or rules of any other applicable self-regulatory
organization. The Distributor shall offer the Shares, and accept purchases,
redemptions and exchanges for Shares, in compliance with the Fund's
Registration Statement and applicable law.
(b) The Distributor shall be responsible for reviewing and making
such filings with the NASD, as required, of advertisements and sales
literature relating to each Fund. The Distributor shall be responsible
for reviewing the Registration Statement of each Fund, as applicable, for
compliance with the requirement of the NASD Conduct Rules that a Fund's
prospectus contain disclosure of the details of any arrangement by which
special cash compensation arrangements are made available to an NASD member
distributing the Fund's securities, which arrangements are not made
available on the same terms to all NASD members who distribute the Fund's
securities.
(c) The Distributor shall adopt and follow procedures for the
confirmation of sales to investors and Intermediaries timeliness of orders,
the collection of amounts payable by investors and Intermediaries on such
sales, the correction of errors related to distribution of Shares, the
cancellation of unsettled transactions, and assisting with the solicitation
of proxies, and any other matters governed by Rule 38a-1 under the 1940 Act
(as may apply to a principal underwriter for a registered investment
company), each as may be necessary to comply with the requirements of the
NASD, any other self-regulatory organization, and the federal and state
securities laws. The Distributor shall provide reports or other
information to the Investment Company at the Investment Company's reasonable
request, including, without limitation, reports related to the operation and
implementation of the Fund's policies related to customer privacy,
safeguarding of customer information, sales and marketing practices or other
policies and procedures of the Investment Company.
9. The Distributor agrees that it has adopted and implemented an
anti-money-laundering program in compliance with the USA PATRIOT Act of 2001,
the regulations thereunder and NASD Conduct Rules, including, without
limitation, customer identification program procedures and monitoring for
suspicious activity. The Distributor additionally agrees that it has adopted
and implemented procedures to comply with applicable law and regulation
related to cash transaction reporting requirements, as well as monitoring
and reporting under FinCEN, OFAC and other government watch lists. The
Distributor shall provide reports or other information to the Investment
Company at the Investment Company's reasonable request, related to the
operation and implementation of any of the Fund's anti-money-laundering
policies for which the Distributor is responsible.
10.(a)The Investment Company agrees to indemnify, defend and hold
the Distributor, its officers, directors and employees and any person who
controls the Distributor within the meaning of Section 15 of the 1933 Act,
free and harmless from and against any and all claims, demands, liabilities
and expenses (including the reasonable cost of investigating or defending
such claims, demands or liabilities and any counsel fees incurred in
connection therewith) which the Distributor, its officers, directors and
employees or any such controlling person may incur, under the 1933 Act or
under common law or otherwise, arising out of or based upon any alleged
untrue statement of a material fact contained in the Registration Statement
or arising out of or based upon any alleged omission to state a material
fact required to be stated or necessary to make the Registration Statement
not misleading, provided that in no event shall anything contained in this
Agreement be construed so as to protect the Distributor or such other parties
against any liability to the Investment Company or its shareholders to which
the Distributor or such other parties would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of
their duties, or by reason of reckless disregard of their obligations and
duties under this Agreement, and further provided that, notwithstanding the
foregoing, the Investment Company shall not indemnify the Distributor or such
other parties if such indemnification obligations arose, directly or
indirectly, as a result of conduct as set forth in paragraph 10(b). The
Distributor agrees that it shall look only to the assets of the Fund, and
not to any other series of the Investment Company, for satisfaction of any
obligation created by this paragraph or otherwise arising under this
Agreement.
(b) The Distributor agrees to indemnify, defend and hold the
Investment Company, its several officers and Board members, and any person
who controls the Investment Company within the meaning of Section 15 of the
1933 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 Investment Company, its officers or Board
members, or any such controlling person may incur, under the 1933 Act or under
common law or otherwise, on account of any act of the Distributor or its
directors, officers, employees or agents, constituting 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 arising out of or based upon any alleged untrue statement of a material
fact contained in information furnishedin writing by the Distributor to the
Investment Company for use in the Registration Statement or arising out of or
based upon any alleged omission to state a material fact in connection with
such information required to be stated in the Registration Statement or
necessary to make such information not misleading. As used in this paragraph,
the term "employee" shall not include a corporate entity under contract to
provide services to the Fund, or any employee of such a corporate entity,
unless such person is otherwise an employee of the Investment Company.
(c) Each party agrees to promptly notify the other of the commencement
of any litigation or proceedings involving any indemnified party. The
indemnification provisions of this paragraph 10 shall survive the termination
of this Agreement.
11. The Investment Company reserves the right at any time to withdraw
any or all offerings of the Shares of a Fund, and at its discretion to
recommence offering any time thereafter, by written notice to the Distributor
at its principal office.
12. The Distributor may at its sole discretion, directly or through
Intermediaries, repurchase Shares offered for sale by the shareholders or
Intermediaries. Repurchase of Shares by the Distributor shall be at the net
asset value (less any applicable sales, redemption or other charges, as
described in the Fund's Registration Statement) next determined after a
repurchase order has been received. The Distributor will receive no
commission or other remuneration for repurchasing Shares, other than
deferred sales charges as described in the Fund's Registration Statement.
At the end of each business day, the Distributor shall notify, by means of
electronic transmission (as may be agreed-upon by the parties to this
Agreement) or in writing, the Investment Company and the Investment Company's
transfer agent, of the orders for repurchase of Shares received by the
Distributor since the last such report, the amount to be paid for such Shares,
and the identity of the shareholders or Intermediaries offering Shares for
repurchase.Upon such notice, the Investment Company shall pay the Distributor
such amounts as are required by the Distributor to pay for the repurchase of
such Shares in cash or in the form of a credit against moneys due the
Investment Company from the Distributor as proceeds from the sale of Shares.
The Investment Companyreserves the right to suspend such repurchase right
upon written notice to the Distributor. The Distributor further agrees to
act as agent for the Investment Company to receive and transmit promptly to
the Investment Company's transfer agent shareholder and Intermediary requests
for redemption of Shares.
13. The Distributor is an independent contractor and shall be agent
for the Investment Company only in respect to the sale, redemption and
exchange of the Shares, including for the limited purpose of determining the
time as of which Share transactions are deemed to have been received.
14. The services of the Distributor to the Investment Company under
this Agreement are not to be deemed exclusive, and the Distributor shall be
free to render similar services or other services to others so long as its
services hereunder are not impaired thereby.
15. The Distributor shall prepare reports for the Board on a quarterly
basis, or more frequently as reasonably requested by the Board, showing such
information concerning expenditures related to this Agreement or related to
the operation and implementation of a Fund's Plan.
16. As used in this Agreement, the terms "assignment, " "interested
person" and "majority of the outstanding voting securities" shall have the
meanings given to them by Section 2(a) of the 1940 Act, subject to such
exemptions as may be granted by the SEC or its staff, as appropriate, by any
rule, regulation, order, or no-action or interpretative letter.
17. This Agreement will become effective with respect to the Fund on
the date first written above and, unless sooner terminated as provided
herein, will continue in effect for two years from the above written date.
Thereafter, if not terminated, this Agreement shall continue in effect with
respect to each Fund for successive annual periods ending on the same date of
each year, provided that such continuance is specifically approved at least
annually (i) by the Board or (ii) by a vote of a majority of the outstanding
voting securities (as defined the in 0000 Xxx) of the Fund, provided that in
either event the continuance is also approved by a majority of the Investment
Company's Independent Board Members, by vote cast in person at a meeting
called for the purpose of voting on such approval.
18. This Agreement is terminable with respect to some or all of the
Funds without penalty by the Board, by vote of a majority of the outstanding
voting securities of the Fund (as defined in the 1940 Act), or by the
Distributor, on not less than 60 days' written notice to the other party,
and such notice period may be waived upon the mutual written consent of the
Distributor and the Investment Company. This Agreement will also
automatically and immediately terminate in the event of its assignment
(as defined in Section 16 of this Agreement).
19. Shares of any Fund may have been divided into separate classes,
as described in the applicable Fund's Registration Statement, and may have
sales charges or discounts or waivers available for certain categories of
investor.
20. The Fund and the Distributor agree that the information
exchanged hereunder and information about the respective customers and
potential customers of each is confidential and as such shall not be
disclosed, sold or used in any way except to carry out the terms of this
Agreement. Notwithstanding the foregoing, such confidential information may
be disclosed on a "need to know" basis as set forth in applicable privacy
rules and regulations. The obligations regarding confidentiality hereunder
shall not apply to any information which is (i) otherwise publicly available,
(ii) already possessed by the entity to whom the information was disclosed
prior to disclosure hereunder, (iii) independently developed by the entity,
or (iv) disclosed pursuant to law, rule, regulation or court or
administrative order. The Distributor shall have the right to use any list
of shareholders of the Fund or any other list of investors which it obtains
in connection with its provision of services under this Agreement, provided
that such use is consistent with applicable law and the privacy policies of
the Distributor and the Fund. The Distributor further agrees to take
commercially reasonable steps, in accordance with applicable law, to
safeguard customer information. The provisions of this paragraph 20 will
survive termination of this Agreement.
21. From time to time, each Fund may implement policies, procedures
or charges in an effort to avoid the potential adverse effects on the Funds
of short-term trading by market timers. The Distributor agrees to
cooperate in good faith with the Investment Company in the implementation
of (i)any such policies, procedures and/or charges, and (ii) the imposition
and payment over to the Fund of redemption fees specified in the
Registration Statement. The Distributor agrees, where appropriate, to make
reasonable efforts to obtain the agreement of Intermediaries to comply with
the Funds' frequent trading and other policies set forth in the Funds'
Registration Statement or to take alternative actions reasonably designed
to achieve compliance with these policies.
22. No provision of this Agreement may be changed, waived, discharged
or terminated, except by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
This Agreement may be executed in multiple counterparts.
23. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Maryland.
24. Notices shall be provided to each party, as noted below:
To the Distributor:
Attn: Xxxxxx Xxxxx
Xxxx Xxxxx Investor Services, LLC
c/x Xxxx Xxxxx, Inc.,
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
To the Investment Company:
Xxxxx Xxxxxx Institutional Cash Management Fund Inc.
000 Xxxxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Secretary and Chief Legal Officer
25. The Articles of Incorporation of the Investment Company, amended
from time to time, which is on file with the Maryland State Department of
Assessments and Taxation, provides that to the fullest extent permitted by
Maryland law, no Board member or officer of the Investment Company shall be
personally liable to the Investment Company or its stockholders for money
damages, except to the extent such exemption from liability or limitation
thereof is not permitted by the 1940 Act.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be
executed by their officers thereunto duly authorized.
ATTEST:
By: _____________________________ By: ________________________________
Assistant Secretary
ATTEST: XXXX XXXXX INVESTOR SERVICES, LLC
By: ______________________________ By: _________________________________
Appendix A
Fund Date Added:
Cash Portfolio December 1, 2005
Government Portfolio December 1, 2005
Municipal Portfolio December 1, 2005
