DISTRIBUTING AGREEMENT
DISTRIBUTING AGREEMENT, dated as of January 1, 1993, between XXXXXXXX
INCOME FUND, INC., a Maryland corporation (the "Fund"), and XXXXXXXX FINANCIAL
SERVICES, INC., a Delaware corporation ("Xxxxxxxx Financial Services").
In consideration of the mutual agreements herein made, the parties
hereto agree as follows:
1. EXCLUSIVE DISTRIBUTOR. The Fund hereby agrees that Xxxxxxxx Financial
Services shall be for the period of this Agreement exclusive agent for
distribution within the United States and its territories, and Xxxxxxxx
Financial Services agrees to use its best efforts during such period to
effect such distribution of shares of Capital Stock ("Shares") of the
Fund; PROVIDED, HOWEVER, that nothing herein shall prevent the Fund, if
it so elects, from selling or otherwise distributing its Shares
directly to any persons other than dealers. The Fund understands that
Xxxxxxxx Financial Services also acts as agent for distribution of the
shares of capital stock or beneficial interest of other open-end
investment companies which have entered into management agreements with
J. & X. Xxxxxxxx & Co. Incorporated (the "Manager").
2. SALES OF SHARES. Xxxxxxxx Financial Services is authorized, as agent
for the Fund and not as principal, (a) to sell Shares of the Fund to
such dealers as Xxxxxxxx Financial Services may select pursuant to the
terms of written sales agreements (which may also relate to sales of
shares of capital stock or shares of beneficial interest of other
open-end investment companies which have entered into management
agreements with the Manager), in form or forms approved by the Fund,
and (b) to sell Shares of the Fund to other purchasers on such terms as
may be provided in the then current prospectus of the Fund relating to
such Shares; PROVIDED, HOWEVER, that no sales of Shares shall be
confirmed by Xxxxxxxx Financial Services at any time when, according to
advice received by Xxxxxxxx Financial Services from the Fund, the
officers of the Fund have for any reason sufficient to them temporarily
or permanently suspended or discontinued the sale and issuance of the
Shares. Each sale of Shares shall be effected by Xxxxxxxx Financial
Services only at the applicable price determined by the Fund in the
manner prescribed in its then current prospectus relating to such
Shares. Xxxxxxxx Financial Services shall comply with all applicable
laws, rules and regulations including, without limiting the generality
of the foregoing, all rules or regulations made or adopted pursuant to
Section 22 of the Investment Company Act of 1940 (the "1940 Act") by
the Securities and Exchange Commission or any securities association
registered under the Securities Exchange Act of 1934.
The Fund agrees, as long as its Shares may legally be issued, to fill
all orders confirmed by Xxxxxxxx Financial Services in accordance with
the provisions of this Agreement.
3. REPURCHASE AGENT. Xxxxxxxx Financial Services is authorized, as agent
for the Fund and not as principal, to accept offers for resale to the
Fund and to repurchase on behalf of the Fund Shares of the Fund at net
asset values determined by the Fund in conformity with its then current
prospectus relating to such Shares.
4. COMPENSATION. As compensation for the services of Xxxxxxxx Financial
Services under this Agreement, Xxxxxxxx Financial Services shall be
entitled to receive the sales charge, determined in conformity with the
Fund's then current prospectus relating to such Shares, on all sales of
Shares of the Fund confirmed by Xxxxxxxx Financial Services hereunder
and for which payment has been received, less the dealers' concession
allowed in respect of such sales. In addition, in accordance with the
terms of the Fund's Administration, Shareholder Services and
Distribution Plan (the "Plan"), the Fund may make payments from time to
time to Xxxxxxxx Financial Services in accordance with the terms and
limitations of, and for the purposes set forth in the Plan.
5. EXPENSES. Xxxxxxxx Financial Services agrees promptly to pay or
reimburse the Fund for all expenses (except expenses incurred by the
Fund in connection with the preparation, printing and distribution of
any prospectus or report or other communication to shareholders, to the
extent that such expenses are incurred to effect compliance with any
Federal or State law or to enable such distribution to shareholder(s)
(a) of printing and distributing copies of any prospectus and of
preparing, printing and distributing any other material used by
Xxxxxxxx Financial Services in connection with offering Shares of the
Fund for sale, and (b) of advertising in connection with such offering.
The Fund agrees to pay all expenses in connection with the registration
of Shares of the Fund under the Securities Act of 1933 (the "Act"), all
fees and related expenses which may be incurred in connection with the
qualification of Shares of the Fund for sale in such States (as well as
the District of Columbia, Puerto Rico and other territories) as
Xxxxxxxx Financial Services may designate, and all expenses in
connection with maintaining facilities for the issue and transfer of
its Shares, of supplying information, prices and other data to be
furnished by it hereunder, and through Union Data Service Center, Inc.,
of all data processing and related services related to the share
distribution activity contemplated hereby.
The Fund agrees to execute such documents and to furnish such
information as may be reasonably necessary, in the discretion of the
Directors of the Fund, in
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connection with the qualification of Shares of the Fund for sale in
such States (as well as the District of Columbia, Puerto Rico and other
territories) as Xxxxxxxx Financial Services may designate. Xxxxxxxx
Financial Services also agrees to pay all fees and related expenses
connected with its own qualification as a broker or dealer under
Federal or State laws and, except as otherwise specifically provided in
this Agreement or agreed to by the Fund, all other expenses incurred by
Xxxxxxxx Financial Services in connection with the sale of Shares of
the Fund as contemplated in this Agreement (including the expenses of
qualifying the Fund as a dealer or broker under the laws of such States
as may be designated by Xxxxxxxx Financial Services, if deemed
necessary or advisable by the Fund).
It is understood and agreed that any payments made to Xxxxxxxx
Financial Services pursuant to the Plan may be used to defray some or
all of the expenses incurred by Xxxxxxxx Financial Services pursuant to
this Agreement.
6. PROSPECTUS AND OTHER INFORMATION. The Fund represents and warrants to
and agrees with Xxxxxxxx Financial Services that:
(a) A registration statement, including one or more prospectuses
relating to the Shares, has been filed by the Fund under the
Act and has become effective. Such registration statement, as
now in effect and as from time to time hereafter amended, and
also any other registration statement relating to the Shares
which may be filed by the Fund under the Act which shall
become effective, is herein referred to as the "Registration
Statement", and any prospectus or prospectuses filed by the
Fund as a part of the Registration Statement, as the
"Prospectus".
(b) At all times during the term of this Agreement, except when
the officers of the Fund have suspended or discontinued the
sale and issuance of Shares of the Fund as contemplated by
Section 2 hereof, the Registration Statement and Prospectus
will conform in all respects to the requirements of the Act
and the rules and regulations of the Securities and Exchange
Commission, and neither of such documents will include any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statement therein not misleading, except that the
foregoing does not apply to any statements or omissions in
either of such documents based upon written information
furnished to the Fund by Xxxxxxxx Financial Services
specifically for use therein.
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The Fund agrees to prepare and furnish to Xxxxxxxx Financial Services
from time to time a copy of its Prospectus, and authorizes Xxxxxxxx
Financial Services to use such Prospectus, in the form furnished to
Xxxxxxxx Financial Services from time to time, in connection with the
sale of the Fund's Shares. The Fund also agrees to furnish Xxxxxxxx
Financial Services from time to time, for use in connection with the
sale of such Shares, such information with respect to the Fund and its
Shares as Xxxxxxxx Financial Services may reasonably request.
7. REPORTS. Xxxxxxxx Financial Services will prepare and furnish to the
Directors of the Fund at least quarterly a written report complying
with the requirements of Rule 12b-1 under the 1940 Act setting forth
all amounts expended under the Plan and the purposes for which such
expenditures were made.
8. INDEMNIFICATION. (a) The Fund will indemnify and hold harmless Xxxxxxxx
Financial Services and each person, if any, who controls Xxxxxxxx
Financial Services within the meaning of the Act against any losses,
claims, damages or liabilities to which Xxxxxxxx Financial Services or
such controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Fund's
Registration Statement or Prospectus or any other written sales
material prepared by the Fund which is utilized by Xxxxxxxx Financial
Services in connection with the sale of Shares or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or (in the case of the Registration
Statement and Prospectus) necessary to make the statements therein not
misleading or (in the case of such other sales material) necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made; and will reimburse Xxxxxxxx
Financial Services and each such controlling person for any legal or
other expenses reasonably incurred by Xxxxxxxx Financial Services or
such controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however,
that the Fund will not be -------- ------- liable in any such case to
the extent that any such loss, claim, damage or liability arises out of
or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or
Prospectus in conformity with written information furnished to the Fund
by Xxxxxxxx Financial Services specifically for use therein; and
provided, further, that nothing herein shall be so construed as to
protect Xxxxxxxx Financial Services against any liability to the Fund
or its security holders to which Xxxxxxxx Financial Services would
otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence, in the performance of its duties, or by reason of the
reckless disregard by Xxxxxxxx Financial Services of its obligations
and duties under this Agreement.
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This indemnity agreement will be in addition to any liability which the Fund may
otherwise have.
(b) Xxxxxxxx Financial Services will indemnify and hold harmless the Fund,
each of its Directors and officers and each person, if any, who
controls the Fund within the meaning of the Act, against any losses,
claims, damages or liabilities to which the Fund or any such Director,
officer or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or Prospectus or any sales material not
prepared by the Fund which is utilized in connection with the sale of
Shares or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein
or (in the case of the Registration Statement and Prospectus) necessary
to make the statements therein not misleading or (in the case of such
other sales material) necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made, in the case of the Registration Statement and Prospectus to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in conformity
with written information furnished to the Fund by Xxxxxxxx Financial
Services specifically for use therein; and Xxxxxxxx Financial Services
will reimburse any legal or other expenses reasonably incurred by the
Fund or any such Director, officer or controlling person in connection
with investigating or defending any such loss, claim, damage, liability
or action. This indemnity agreement will be in addition to any
liability which Xxxxxxxx Financial Services may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from liability which it may have to any
indemnified party otherwise than under this Section. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the
indemnifying party will not be
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liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
9. EFFECTIVE DATE. This Agreement shall become effective upon its
execution by an authorized officer of the respective parties to this
Agreement, but in no event prior to shareholder approval of the Plan.
10. TERM OF AGREEMENT. This Agreement shall continue in effect until
December 31 of the year in which it is first effective and through
December 31 of each year thereafter if such continuance is approved in
the manner required by the 1940 Act and the rules thereunder and
Xxxxxxxx Financial Services shall not have notified the Fund in writing
at least 60 days prior to the anniversary date of the previous
continuance that it does not desire such continuance. This Agreement
may be terminated at any time, without payment of penalty on 60 days'
written notice to the other party by vote of a majority of the
Directors of the Fund who are not interested persons (as defined in the
0000 Xxx) of the Fund and have no direct or indirect financial interest
in the operation of the Plan or any agreement related thereto, or by
vote of a majority of the outstanding voting securities of the Fund (as
defined in the 1940 Act). This Agreement shall automatically terminate
in the event of its assignment (as defined in the 1940 Act).
11. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to
the contrary notwithstanding, this Agreement shall not be construed to
require, or to impose any duty upon, either of the parties to do
anything in violation of any applicable laws or regulations.
IN WITNESS WHEREOF, the Fund and Xxxxxxxx Financial Services have
caused this Agreement to be executed by their duly authorized officers as of the
date first above written.
XXXXXXXX INCOME FUND, INC.
By
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Xxxxxx X. Xxxxxxxxx, President
XXXXXXXX FINANCIAL SERVICES, INC.
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By
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Xxxxxx X. Xxxxx, President
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