EXHIBIT 6
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made this 31st day of
March, 1997, by and between XXXXXX ONE HUNDRED AND ONE FUND, INC., doing
business as Xxxxxx Growth and Income Fund, a corporation organized and existing
under the laws of the State of Maryland (the "Fund"), and XXXXXX DISTRIBUTORS,
INC., a corporation organized and existing under the laws of the State of
Colorado (the "Distributor").
RECITALS
A. The Fund 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 Fund and the Distributor desire the Distributor to act as the
principal underwriter for the public offering of the shares of common stock (the
"Shares") of the Fund.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. APPOINTMENT. The Fund appoints the Distributor to act as
distributor of the Shares of the Fund.
2. FUND TO FURNISH DOCUMENTS. The Fund shall furnish the
Distributor with copies of any registration statements, prospectuses or
statements of additional information pertaining to the Fund filed by the Fund
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.
The Fund 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 the
Fund's prospectus or statement of additional information, the Distributor is
authorized to solicit, as agent on behalf of the Fund, unconditional orders for
purchases of the 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 Fund;
(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 the 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 the Fund received by
the Distributor shall be subject to acceptance by the Fund and entry of the
order on the Fund's records or shareholder accounts and is not binding until so
accepted and entered.
The purchase price of the 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 the Fund.
4. SOLICITATION OF ORDERS TO PURCHASE SHARES BY FUND. The rights
granted to the Distributor shall be non-exclusive in that the Fund 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 the Fund, or the 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 shall pay its own expenses incurred in the discharge
of its duties hereunder, but shall not be responsible to pay any expenses of the
Fund, including without limitation, any charges of the
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Fund'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 the
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 Fund under the 1940 Act and the sale of the Fund's Shares
under the 1933 Act; and any expenses of registering or qualifying and
maintaining registrations or qualifications of the Fund and of the Shares for
sale under securities laws of various states or other jurisdictions and of
registration or qualification of the Fund under all laws applicable to the Fund
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 the Fund at
the public offering price. The public offering price for each accepted order
for the Fund's Shares will be the net asset value per Share next determined by
the Fund after it or its authorized agent or designee accepts such order. The
net asset value per Share of the Shares shall be determined in the manner
provided in the Fund's Articles of Incorporation 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 the Fund.
7. SUSPENSION OF SALES. If and whenever the determination of the
Fund's net asset value is suspended and until such suspension is terminated, no
further orders for Shares shall be accepted by the Fund except such
unconditional orders placed with the Fund and accepted by it before the
suspension. In addition, the Fund reserves the right to suspend sales of Shares
of the Fund if, in the judgment of the Directors, 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 Directors; and in that event, (i) at the direction of the
Fund, the Distributor shall suspend its solicitation of orders to purchase
Shares of the Fund until otherwise instructed by the Fund and (ii) no orders to
purchase Shares of the Fund shall be accepted by the Fund while such suspension
remains in effect unless otherwise directed by its Directors.
8. SOLICITATION MATERIALS; AUTHORIZED REPRESENTATIONS.
(a) The Fund shall make available to the Distributor, without
cost to the Fund, such number of copies of the 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 Fund to give with
respect to the Fund any information or to make any representations in connection
with the sale of Shares other than the information and representations contained
in the Fund's registration statement, or the 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 the Fund that
may be prepared by or on behalf of the Fund or approved by the Fund for the
Distributor's use.
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9. REGISTRATION OF ADDITIONAL SHARES. The Fund 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 Fund shall deem
advisable pursuant to Rule 24e-2 under the 1940 Act, or both. The Fund will, in
cooperation with the Distributor, take such action as may be necessary from time
to time to register or qualify the Shares of the Fund (so registered or
otherwise qualified for sale under the 1933 Act), in any state or jurisdiction
mutually agreeable to the Distributor and the Fund, and to maintain such
registration or qualification; provided, however, that nothing herein shall be
deemed to prevent the Fund 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 Fund 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 Fund 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 Fund 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
Fund 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 Fund and each of its Directors, officers, employees and
representatives, and each person, if any, who controls the Fund 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 Fund or such
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 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 the Fund filed or made public by the
Fund 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 Fund. In no case is the Distributor's indemnity in favor
of
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the Fund, or any person indemnified, to be deemed to protect the Fund or such
indemnified 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 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 Fund 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 Fund or upon such person (or after
the Fund 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 Fund
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 Fund 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 the Fund to any
person which (i) may be based upon any wrongful act by the Fund or any of its
Directors, 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 Fund 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 Fund. In no case is the Fund'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
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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
Distributor or any person indemnified, as the case may be, shall notify the Fund
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 Fund of any such claim shall not relieve the
Fund 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 Fund may have to the Distributor or any person against whom such
action is brought otherwise than on account of the Fund's indemnity agreement
contained in this section.
The Fund shall be entitled to participate, at its own expense, in the
defense or, if the Fund so elects, to assume the defense of any action brought
to enforce such claim but, if the Fund elects to assume the defense, such
defense shall be conducted by legal counsel chosen by the Fund and reasonably
satisfactory to the persons indemnified who are defendants in the action. In
the event that the Fund 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 Fund does not elect to assume the defense of any such action,
the Fund 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 the Fund on the date first above written, and
unless terminated as provided herein, shall remain in effect until the last day
of April, 1998, 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 Directors who are not interested persons of the
Distributor or of the Fund, voting in person at a meeting called for the purpose
of voting on such approval, and (b) by the vote of either the Directors or a
majority of the outstanding voting securities of the Fund. This Agreement may
be terminated with respect to the Fund at any time, without the payment of any
penalty (a) on 60 days' written notice, by the Directors or by a vote of a
majority of the outstanding voting securities of the Fund, or by the
Distributor, or (b) immediately, on written notice by the Directors, 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
federal securities laws reflected in any provision of this Agreement is made
less restrictive by a rule, regulation, order,
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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 Fund should at any time deem it
necessary or advisable in the best interests of the 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 Fund may immediately thereupon
terminate this Agreement as to the Fund.
15. NOTIFICATION BY THE FUND. The Fund agrees to advise the
Distributor immediately:
(a) of any request by the SEC for amendments to the Fund's
registration statement insofar as it relates to the Fund, the prospectus or the
statement of additional information pertaining to the Fund or for additional
information,
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Fund's registration statement insofar as it
relates to the Fund, the prospectus or the statement of additional information
pertaining to the 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 Fund's registration statement insofar as it relates to
the Fund, the prospectus or the statement of additional information pertaining
to the 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 Fund's registration statement insofar as it relates to the Fund, the
prospectus or the statement of additional information pertaining to the Fund
which may from time to time be filed with the SEC under the 1933 Act.
16. 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.
17. 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
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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.
18. 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 Fund: 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:
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XXXXXX ONE HUNDRED AND ONE FUND, INC.
By:
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