Exhibit 6.1a
Distribution Agreement for Class B shares
DISTRIBUTION AGREEMENT
CLASS B SHARES
This AGREEMENT is made this ____ day of ______, 1994, by and between
Phoenix Total Return Fund, Inc. (the "Fund"), a Massachusetts corporation
authorized to issue shares of beneficial interest, and Phoenix Equity Planning
Corporation (the "Distributor"), a Connecticut corporation.
WITNESSETH THAT:
1. The Fund hereby grants to the Distributor the right to purchase Class B
shares of beneficial interest of the Fund established and designated as of the
date hereof and to resell Class B shares of the Fund (the "Shares") as principal
and not as agent. The Distributor accepts such appointment and agrees to render
the services described in this Agreement for the compensation herein provided.
2. The Distributor's right to purchase Shares shall be exclusive except that
the terms of this Agreement shall not apply to Shares issued or transferred:
a) pursuant to an offer of exchange exempted under Section 22(d) of the
Investment Company Act of 1940, as amended (the "Act") by reason of
the fact that said offer is permitted by Section 11 of the Act,
including any offer made pursuant to clause (1) or (2) of Section
11(b);
b) upon the sale to a registered unit investment trust which is the
issuer of periodic payment plan certificates the net proceeds of
which are invested in redeemable securities;
c) pursuant to an offer made solely to all registered holders of Shares,
proportionate to their holdings or proportionate to any cash
distribution made to them by the Fund (subject to appropriate
qualifications designed solely to avoid issuance of fractional
securities);
d) in connection with any merger or consolidation of the Fund with any
other investment company or the acquisition by the Fund, by purchase
or otherwise, of any other investment company;
e) pursuant to sales exempted from Section 22(d) of the Act, by rule or
regulation or order of the Securities and Exchange Commission as
provided in the then current registration statement of the Fund; or
f) in connection with the reinvestment by Fund shareholders of dividend
and capital gains distributions.
3. The "Net Asset Value" and the "Public Offering Price" of the Shares as
referred to in this Agreement shall be computed in accordance with the
provisions of the then current registration statement of the Fund. The
Distributor shall be notified promptly by the Fund of such computations.
1
4. Each day the Distributor shall have the right to purchase from the Fund, as
principal, the amount of Shares needed to fill unconditional orders for Shares
received by the Distributor from dealers or investors, but no more than the
Shares needed, at a price equal to the Net Asset Value of the Shares. Any
purchase of Shares by the Distributor under this Agreement shall be subject to
reasonable adjustment for clerical errors, delays and errors of transmission and
cancellation of orders.
5. With respect to transactions other than with dealers, the Distributor will
sell Shares only at the Public Offering Price then in effect, except to the
extent that sales at less than the Public Offering Price may be allowed by the
Act, any rule or regulation promulgated thereunder or by order of the Securities
and Exchange Commission, provided, however, that any such sales at less than the
Public Offering Price shall be consistent with the terms of the then current
registration statement of the Fund. Any sale of Shares to or through a person
other than a dealer will be at the Public Offering Price; however, the
Distributor may pay a commission to such person equal to no more than the
difference between the Public Offering Price and the Net Asset Value of those
Shares. The Distributor will sell at Net Asset Value Shares of any Series which
are offered by the then current registration statement or prospectus of the Fund
of sale at such Net Asset Value.
6. Sales at a discount from the Public Offering Price shall be made in
accordance with the terms and conditions of uniform selling agreements allowing
such discounts. Such discounts shall not exceed the difference between the Net
Asset Value and the Public Offering Price.
7. The Fund shall furnish the Distributor with copies of its Declaration of
Fund, as amended from time to time. The Fund shall also furnish the Distributor
with any other documents of the Fund which will assist the Distributor in the
performance of its duties hereunder.
8. The Distributor agrees to use its best efforts (in states where it may
lawfully do so) to obtain from investors unconditional orders for Shares
authorized for issue by the Fund and registered under applicable Federal
securities laws, and, so long as it does so, nothing herein contained shall
prevent the Distributor from entering into similar arrangements with other
registered investment companies. The Distributor may, in the exercise of its
discretion, refuse to accept orders for Shares from any person.
9. Upon receipt by the Fund of a purchase order from the Distributor,
accompanied by proper applications for the purchase of Shares and delivery
instructions, the Fund shall, as promptly as practicable thereafter, cause
evidence of ownership of such Shares to be delivered as indicated in such
purchase order. Payment for such Shares shall be made by the Distributor to
the Fund in a manner acceptable to the Fund, provided that the Distributor
shall pay for such Shares no later than the tenth business day after the
Distributor shall have contracted to purchase such shares.
10. In connection with offering for sale and selling Shares, the Fund
authorizes the Distributor to give only such information and to make only
such statements or representations as are contained
2
in the then current registration statement of the Fund or in then current sales
literature or advertisements.
11. The Fund agrees to pay the following expenses:
a) the cost of mailing stock certificates representing Shares;
b) fees and expenses (including legal expenses) of registering and
maintaining registrations of the Fund with the Securities and
Exchange Commission including the preparation and printing of
registration statements and prospectuses for filing with said
Commission;
c) fees and expenses (including legal expenses) incurred in registering
and qualifying Shares for sale with any state regulatory agency and
fees and expenses of maintaining, renewing, increasing or amending
such registrations and qualifications;
d) the expense of any issue or transfer taxes upon the sale of Shares to
the Distributor by the Fund; and
e) the cost of preparing and distributing reports and notices to
shareholders.
12. The Distributor agrees to pay the following expenses:
a) all expenses of printing prospectuses and statements of additional
information sued in connection with the sale of Shares and printing
and preparing all other sales literature;
b) all fees and expenses in connection with the qualification of the
Distributor as a dealer in the various states and countries;
c) the expense of any stock transfer tax required in connection with the
sale of Shares by the Distributor as principal to dealers or to
investors; and
d) all other expenses in connection with offering for sale and the sale
of Shares which have not been herein specifically allocated to the
Fund.
13. The Fund hereby appoints the Distributor its agent to receive requests to
accept the Fund's offer to repurchase Shares upon such terms and conditions as
may be described in the Fund's then current registration statement. The agency
granted in this paragraph 13 is terminable at the discretion of the Fund.
14. The Fund agrees to indemnify and hold harmless the Distributor, its
officers and directors and each person, if any, who controls the Distributor
within the meaning of section 15 of the Securities Act of 1933, as amended,
against any losses, claims, damages, liabilities and expenses (including the
cost of any legal fees incurred in connection therewith) which the Distributor,
its officers, directors or any such controlling person may incur under said
Act, under any other statute, at common law or otherwise, arising out of or
based upon
3
a) any untrue statement or alleged untrue statement of a material fact
contained in the Fund's registration statement or prospectus
(including amendments and supplements thereto), or
b) any omission or alleged omission to state a material fact required to
be stated in the Fund's registration statement or prospectus or
necessary to make the statements in either not misleading, provided,
however, that insofar as losses, claims, damages, liabilities or
expenses arise out of or are based upon any such untrue statement or
omission or alleged untrue statement or omission made in reliance and
in conformity with information furnished to the Fund by the
Distributor for use in the Fund's registration statement or
prospectus, such indemnification is not applicable. In no case shall
the Fund indemnify the Distributor or its controlling persons as to
any amounts incurred for any liability arising out of or based upon
any action for which the Distributor, its officers and directors or
any controlling person would otherwise be subject to liability by
reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties or by reason of the reckless disregard of
its obligations and duties under this Agreement.
15. The Distributor agrees to indemnify and hold harmless the Fund, its
officers and trustees and each person, if any, who controls the Fund within
the meaning of Section 15 of the Securities Act of 1933, as amended, against
any losses,claims, damages, liabilities and expenses (including the cost of
any legal fees incurred in connection therewith) which the Fund, its officers,
trustees or any such controlling person any incur under said Act, under any
other statute, at common law or otherwise arising out of the acquisition of
any shares by any person which
a) may be based upon any wrongful act by the Distributor or any of its
employees or representatives, or
b) may be based upon any untrue statement or alleged untrue statement of
a material fact contained in the Fund's registration statement or
prospectus (including amendments and supplements thereto), or any
omission or alleged omission to state 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
information furnished or confirmed in writing to the Fund by the
Distributor.
16. It is understood that;
a) directors, officers, employees, agents and shareholders of the Fund
are or may be interested persons, as that term is defined in the Act
("Interested Persons"), of the Distributor as directors, officers,
stockholders or otherwise;
b) directors, officers, employees, agents and stockholders of the
Distributor are or may be Interested Persons of the Fund as
directors, officers, shareholders or otherwise;
c) the Distributor may be an Interested Person of the Fund as
shareholder or otherwise; and
4
d) the existence of any such dual interest shall not offset the validity
hereof or of any transactions hereunder.
17. The Fund may terminate this Agreement by 60 days written notice to the
Distributor at any time, without the payment of any penalty, by vote of the
Directors or by a vote of a majority of the outstanding voting securities, as
that term is defined in the Act, of the Fund. The Distributor may terminate this
Agreement by 60 days written notice to the Fund, without the payment of any
penalty. This Agreement shall immediately terminate in the event of its
assignment, as that term is defined in the Act.
18. Subject to prior termination as provided in paragraph 17, this Agreement
shall continue in force for one year from the date of execution and from year to
year thereafter so long as the continuance after such one year period shall be
specifically approved at least annually by vote of the Directors, or by a vote
of a majority of the Class B outstanding voting securities, as that term is
defined in the Act, of the Fund. Additionally, each annual renewal of this
Agreement must be approved by the vote of a majority of the Directors who are
not parties to the Agreement or Interested Persons of any such party, cast in
person at a meeting of the Directors called for the purpose of voting on such
approval.
19. This Agreement shall become effective upon the date first set forth above.
This Agreement shall be governed by the laws of The Commonwealth of
Massachusetts and shall be binding on the successors and assigns of the parties
to the extend permitted by law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers as of the day and year first written above.
PHOENIX TOTAL RETURN FUND, INC.
By:______________________________
PHOENIX EQUITY PLANNING CORPORATION
By:______________________________
fund\718
5
