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DISTRIBUTION AGREEMENT
________________, 1996
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements
hereinafter contained, the undersigned, Xxxxx Xxxxxx Concert Series Inc.
a Corporation organized under the laws of the State of Maryland has agreed
that Xxxxx Xxxxxx Inc.("Xxxxx Xxxxxx") shall be, for the period of this
Agreement, the distributor of shares (the "Shares") of the Fund.
1. Services as Distributor
1.1 Xxxxx Xxxxxx will act as agent for the distribution of Shares
covered by the registration statement, prospectus and statement of additional
information then in effect under the Securities Act of 1933, as amended (the
"1933 Act"), and the Investment Company Act of 1940, as amended (the "1940
Act").
1.2 Xxxxx Xxxxxx agrees to use its best efforts to solicit
orders for the sale of Shares and will undertake such advertising and
promotion as it believes is reasonable in connection with such solicitation.
1.3 All activities by Xxxxx Xxxxxx as distributor of the
Shares shall comply with all applicable laws, rules, and regulations,
including, without limitation, all rules and regulations made or adopted
by the Securities and Exchange Commission (the "SEC") or by any securities
association registered under the Securities Exchange Act of 1934.
1.4 Xxxxx Xxxxxx will provide one or more persons during normal
business hours to respond to telephone questions concerning the Fund.
1.5 Xxxxx Xxxxxx will transmit any orders received by it for
purchase or redemption of Shares to First Data Investor Services Group Inc.
(the "Transfer Agent"), the Fund's transfer and dividend agent, or any
successor Transfer Agent of which the Fund has notified Xxxxx Xxxxxx in
writing.
1.6 Whenever in their judgment such action is warranted
for any reason, including, without limitation, market, economic or
political conditions, the Fund's officers may decline to accept any orders
for, or make any sales of, the Shares until such time as those officers deem
it advisable to accept such orders and to make such sales.
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1.7 Xxxxx Xxxxxx will act only on its own behalf as principal
should it choose to enter into selling agreements with selected dealers or
others.
1.8 The Fund will pay to Xxxxx Xxxxxx an annual fee in
connection with the offering and sale of the Shares under this Agreement.
The annual fee paid to Xxxxx Xxxxxx, will be calculated daily and paid monthly
by the Fund at an annual rate set forth in the Services and Distribution
Plan (the "Plan") based on the average daily net assets of each portfolio of
the Fund which has adopted a Plan; provided that payment shall be made in
any month only to the extent that such payment shall not exceed the sales
charge limitations established by the National Association of Securities
Dealers, Inc.
The annual fee paid to Xxxxx Xxxxxx under this Section 1.8 maybe
used by Xxxxx Xxxxxx to cover any expenses primarily intended to result in the
sale of Shares, including, but not limited to, the following:
(a) cost of payments made to Xxxxx Xxxxxx investments
representatives and other employees of Xxxxx Xxxxxx or other
broker-dealers that engage in the distribution of the Fund's
Shares;
(b) payments made to, and expenses of, persons who provide
support services in connection with the distribution of the Fund's
Shares, including, but not limited to, office space and equipment,
telephone facilities, answering routine inquiries regarding the Fund,
processing shareholder transactions and providing any other
shareholder services not provided by the Fund's Transfer Agent;
(c) costs relating to the formulation and
implementation of marketing and promotional activities, including,
but not limited to, direct mail promotions and television, radio,
newspaper, magazine and other mass media advertising;
(d) costs of printing and distributing prospectuses and
reports of the Fund to prospective shareholders of the Fund;
(e) costs involved in preparing, printing and distributing
sales literature pertaining to the Fund; and
(f) costs involved in obtaining whatever information,
analyses and reports with respect to marketing and promotional
activities that the Fund may, from time to time, deem advisable;
except that distribution expenses shall not include any expenditures
in connection with services which Xxxxx Xxxxxx, any of its
affiliates, or any other person have agreed to bear without
reimbursement.
1.9 Xxxxx Xxxxxx shall prepare and deliver reports to the
Treasurer of the Fund on a regular, at least quarterly, basis, showing the
distribution expenses incurred pursuant to this Agreement and the Plan and
the purposes therefor, as well as any supplemental reports as the
Trustees, from time to time, may reasonably request.
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2. Duties of the Fund
2.1 The Fund agrees at its own expense to execute any and all
documents, to furnish any and all information and to take any other
actions that may be reasonably necessary in connection with the qualification
of the Shares for sale in those states that Xxxxx Xxxxxx may designate.
2.2 The Fund shall furnish from time to time for use in connection
with the sale of the Shares, such information reports with respect to the
Fund and its Shares as Xxxxx Xxxxxx 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 reports, when so
signed by the Fund's officers, shall be true and correct. The Fund shall also
furnish Xxxxx Xxxxxx upon request with (a) annual audits of the Fund's books
and accounts made by independent certified public accountants regularly
retained by the Fund; (b) semi-annual unaudited financial statements
pertaining to the Fund; (c) quarterly earnings statements prepared by the
Fund; (d) a monthly itemized list of the securities in the Fund's portfolio;
(e) monthly balance sheets as soon as practicable after the end of each
month; and (f) from time to time such additional information regarding the
Fund's financial condition as Xxxxx Xxxxxx may reasonably request.
3. Representations and Warranties
The Fund represents to Xxxxx Xxxxxx that all registration
statements, prospectuses and statements of additional information filed by the
Fund with the SEC under the 1933 Act and the 1940 Act with respect to the
Shares have been carefully prepared in conformity with the requirements of
the 1933 Act, the 1940 Act and the rules and regulations of the SEC
thereunder. As used in this Agreement, the terms "registration statement",
"prospectus" and "statement of additional information" shall mean any
registration statement, prospectus and statement of additional
information filed by the Fund with the SEC and any amendments and
supplements thereto which at any time shall have been filed with the SEC. The
Fund represents and warrants to Xxxxx Xxxxxx that any registration statement,
prospectus and statement of additional information, when such
registration statement becomes effective, will include all statements
required to be contained therein in conformance with the 1933 Act, the 1940
Act and the rules and regulations of the SEC; that all statements of fact
contained in any registration statement, prospectus or statement of
additional information will be true and correct when such registration
statement becomes effective; and that neither any registration statement nor
any prospectus or statement of additional information 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 stated therein or
necessary to make the statements therein not misleading to a purchaser of the
Fund's Shares. 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 or statement of
additional information 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 Xxxxx Xxxxxx to do so, Xxxxx Xxxxxx may, at its option, terminate
this Agreement. The Fund shall not file any amendment to any registration
statement or supplement to any prospectus or statement of additional
information without giving Xxxxx Xxxxxx 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 or
statement of additional information, of whatever character, as the Fund may
deem advisable, such right being in all respects absolute and
unconditional.
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4. Indemnification
4.1 The Fund authorizes Xxxxx Xxxxxx and dealers to use any
prospectus or statement of additional information furnished by the Fund from
time to time, in connection with the sale of the Shares. The Fund agrees to
indemnify, defend and hold Xxxxx Xxxxxx, its several officers and
directors, and any person who controls Xxxxx Xxxxxx 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
such counsel fees incurred in connection therewith) which Xxxxx Xxxxxx, its
officers and directors, or any such controlling person, may incur under the
1933 Act or under common law or otherwise, arising out of or based upon any
untrue statement, or alleged untrue statement, of a material fact contained in
any registration statement, any prospectus or any statement of additional
information or arising out of or based upon any omission, or alleged omission,
to state a material fact required to be stated in any registration
statement, any prospectus or any statement of additional information
or necessary to make the statements in any thereof not misleading;
provided, however, that the Fund's agreement to indemnify Xxxxx Xxxxxx, its
officers or directors, and any such controlling person shall not be
deemed to cover any claims, demands, liabilities or expenses arising out
of any statements or representations made by Xxxxx Xxxxxx or its
representatives or agents other than such statements and representations
as are contained in any prospectus or statement of additional information
and in such financial and other statements as are furnished to Xxxxx Xxxxxx
pursuant to paragraph 2.2 of this Agreement; and further provided that the
Fund's agreement to indemnify Xxxxx Xxxxxx and the Fund's representations and
warranties herein before set forth in paragraph 3 of this Agreement shall
not be deemed to cover any liability to the Fund or its shareholders to
which Xxxxx Xxxxxx would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of Xxxxx Barney's reckless disregard of its obligations
and duties under this Agreement. The Fund's agreement to indemnify Xxxxx
Xxxxxx, its officers and directors, and any such controlling person, as
aforesaid, is expressly conditioned upon the Fund's being notified of
any action brought against Xxxxx Xxxxxx, its officers or directors, or any
such controlling person, such notification to be given by letter or by
telegram addressed to the Fund at its principal office in New York, New
York and sent to the Fund by the person against whom such action is brought,
within ten days after the summons or other first legal process shall have been
served. The failure so to notify the Fund of any such action shall not relieve
the Fund from any liability that the Fund may have to the person against
whom such action is brought by reason of any such untrue, or alleged untrue,
statement or omission, or alleged omission, otherwise than on account of the
Fund's indemnity agreement contained in this paragraph 4.1. The Fund will
be entitled to assume the defense of any suit brought to enforce any such
claim, demand or liability, but, in such case, such defense shall be
conducted by counsel of good standing chosen by the Fund and approved by
Xxxxx Xxxxxx. In the event the Fund elects to assume the defense of any such
suit and retains counsel of good standing approved by Xxxxx Xxxxxx,
the defendant or defendants in such suit shall bear the fees and expenses
of any additional counsel retained by any of them; but if the Fund does not
elect to assume the defense of any such suit, or if Xxxxx Xxxxxx does not
approve of counsel chosen by the Fund, the Fund will reimburse Xxxxx Xxxxxx,
its officers and directors, or the controlling person or persons named as
defendant or defendants in such suit, for the fees and expenses of any
counsel retained by Xxxxx Xxxxxx or them. The Fund's indemnification
agreement contained in this paragraph 4.1 and the Fund's representations
and warranties in this Agreement shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of
Xxxxx Xxxxxx, its officers and directors, or any controlling person, and
shall survive the delivery of any of the Fund's Shares. This agreement of
indemnity will inure exclusively to Xxxxx Barney's benefit, to the benefit
of its several officers and directors, and their respective estates,
and to the benefit of the controlling persons and their successors. The
Fund agrees to notify Xxxxx Xxxxxx promptly of the commencement of any
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litigation or proceedings against the Fund or any of its officers or
trustees in connection with the issuance and sale of any of the Fund's Shares.
4.2 Xxxxx Xxxxxx agrees to indemnify, defend and hold the
Fund, its several officers and Directors, and any person who controls the
Fund 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 costs of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) that the
Fund, its officers or Directors or any such controlling person may incur
under the 1933 Act, or under common law or otherwise, but only to the
extent that such liability or expense incurred by the Fund, its officers or
Directors, or such controlling person resulting from such claims or demands
shall arise out of or be based upon any untrue, or alleged untrue,
statement of a material fact contained in information furnished in
writing by Xxxxx Xxxxxx to the Fund and used in the answers to any of the
items of the registration statement or in the corresponding statements
made in the prospectus or statement of additional information, or shall
arise out of or be based upon any omission, or alleged omission, to state
a material fact in connection with such information furnished in writing
by Xxxxx Xxxxxx to the Fund and required to be stated in such answers or
necessary to make such information not misleading. Xxxxx Barney's agreement
to indemnify the Fund, its officers or Directors, and any such controlling
person, as aforesaid, is expressly conditioned upon Xxxxx Xxxxxx being
notified of any action brought against the Fund, its officers or Directors,
or any such controlling person, such notification to be given by letter or
telegram addressed to Xxxxx Xxxxxx at its principal office in New York,
New York and sent to Xxxxx Xxxxxx by the person against whom such action is
brought, within ten days after the summons or other first legal process
shall have been served. Xxxxx Xxxxxx shall have the right to control the
defense of such action, with counsel of its own choosing, satisfactory to
the Fund, if such action is based solely upon such alleged misstatement
or omission on Xxxxx Barney's part, and in any other event the Fund, its
officers or Directors or such controlling person shall each have the right
to participate in the defense or preparation of the defense of any such
action. The failure to so notify Xxxxx Xxxxxx of any such action shall
not relieve Xxxxx Xxxxxx from any liability that Xxxxx Xxxxxx may have to the
Fund, its officers or Directors, or to such controlling person by reason of
any such untrue, or alleged untrue, statement or omission, or alleged
omission, otherwise than on account of Xxxxx Barney's indemnity
agreement contained in this paragraph 4.2. Xxxxx Xxxxxx agrees to
notify the Fund promptly of the commencement of any litigation or
proceedings against Xxxxx Xxxxxx or any of its officers or directors in
connection with the issuance and sale of any of the Fund's Shares.
4.3 In case any action shall be brought against any
indemnified party under paragraph 4.1 or 4.2, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall
wish to do so, to assume the defense thereof with counsel satisfactory to
such indemnified party. If the indemnifying party opts to assume the defense
of such action, the indemnifying party will not be liable to the indemnified
party for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than (a)
reasonable costs of investigation or the furnishing of documents or
witnesses and (b) all reasonable fees and expenses of separate counsel to
such indemnified party if (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel or (ii) the
indemnified party shall have concluded reasonably that representation of the
indemnifying party and the indemnified party by the same counsel would be
inappropriate due to actual or potential differing interests between them in
the conduct of the defense of such action.
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5. Effectiveness of Registration
None of the Fund's Shares shall be offered by either Xxxxx Xxxxxx
or the Fund under any of the provisions of this Agreement and no orders for
the purchase or sale of the Shares under this Agreement 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 provision of the 1933 Act or if and so long as a current
prospectus as required by Section 5(b) (2) of the 1933 Act is not on file
with the SEC; provided, that nothing contained in this paragraph 5 shall
in any way restrict or have an application to or bearing upon the Fund's
obligation to repurchase its Shares from any shareholder in accordance
with the provisions of the Fund's prospectus, statement of additional
information or Articles of Incorporation dated Articles of Incorporation, as
amended from time to time.
6. Notice to Xxxxx Xxxxxx
The Fund agrees to advise Xxxxx Xxxxxx immediately in writing:
(a) of any request by the SEC for amendments to the registration
statement, prospectus or statement of additional information then in
effect or for additional information;
(b) In the event of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement,
prospectus or statement of additional information then in effect
or the initiation of any proceeding for that purpose;
(c) of the happening of any event that makes untrue any
statement or a material fact made in the registration statement,
prospectus or statement of additional information then in effect or
that requires the making of a change in such registration
statement, prospectus or statement of additional information in
order to make the statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendment to
any registration statement, prospectus or statement of additional
information which may from time to time be filed with the SEC.
7. Term of the Agreement
This Agreement shall become effective on the date first written above
and shall continue for successive annual periods thereafter so long as
such continuance is specifically approved at least annually by (a) the Fund's
Board of Directors or (b) by a vote of a majority (as defined in the
0000 Xxx) of the Fund's outstanding voting securities, provided that in
either event the continuance is also approved by a majority of the Directors
of the Fund who are not interested persons (as defined in the 0000 Xxx) 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,
without penalty, on 60 days' notice by the Fund's Board of Directors, by vote
of the holders of a majority of the Fund's Shares, or on 90 days' notice by
Xxxxx Xxxxxx. This Agreement will also terminate automatically in the
event of its assignment (as defined in the 1940 Act).
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If the foregoing is in accordance with your understanding, kindly
indicate your acceptance of this Agreement by signing and returning to us the
enclosed copy of this Agreement.
Very truly yours,
Xxxxx Xxxxxx Concert Series Inc.
By:
Xxxxx X. XxXxxxxx
Chairman of the Board
Accepted:
Xxxxx Xxxxxx Inc.
By:
Xxxxx X. XxXxxxxx
Managing Director
