EXHIBIT NO. 6(A)
UNDERWRITING AGREEMENT
-13-
DISTRIBUTION AGREEMENT
THE XXXXXXXXXX FUNDS
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
July 31, 1997
Funds Distributor, Inc.
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the, above-normal investment company (the "Fund") has agreed that you
shall be, for the period of this agreement the distributor of (a) shares of each
Series of the Fund set forth on Exhibit A hereto, as such Exhibit my be revised
from time to time (each, a 'Series") or (b) if no Series are set forth on such
Exhibit, shares of the Fund. For purposes of this amendment the term "Shares"
shall mean the authorized shares of the relevant Series, if any, and otherwise
shall mean the Fund's authorized share.
1. Services as Distributor
1.1 You will act as agent for the distribution of Shares
covered by, and in accordance with, the registration statement and
prospectus then in effect under the Securities Act of 1933, as amended,
and will transmit promptly any orders received by you for purchase or
redemption of Shares to the Transfer and Dividend Disbursing Agent for
the Fund of which the Fund has notified you in writing. You will
undertake and discharge your obligations hereunder as an independent
contractor and shall have no authority or power to obligate or bind us
by your actions, conduct or contracts except that you are authorized to
accept orders for the purchase or repurchase of the Shares as our
agent. You may appoint sub-agents or distribute through dealers, your
own sales representatives or otherwise as you may determine from time
to time, but this Agreement shall not be construed as authorizing any
dealer or other person to accept orders for sale or repurchase of
Shares of the Fund on our behalf or otherwise act as our agent for any
purpose.
1.2 You agree to use your best efforts to solicit orders for
the sale of Shares. It is contemplated that you may enter into sales or
servicing agreements with securities dealers, financial institutions
and other industry professionals, such as investment advisors,
accountants and estate planning firms, and in so doing you will act
only on your own behalf as principal.
1.3 You shall act as distributor of Shares in compliance with
all applicable laws, rules and regulations, including, without
limitations, the Investment Company Act of 1940, as amended, the
Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended and the National Association of Securities Dealers,
Inc.'s (the "NASD") Conduct Rules, Constitution and By-Laws. You
represent and warrant that you are a broker-dealer registered with the
Securities and Exchange Commission and that you are registered with the
relevant securities regulatory agencies in all fifty states, the
District of Columbia and Puerto Rico. You also represent and warrant
that you are a member of the NASD.
1.4 You shall file Fund advertisements, sales literature and
other marketing and sales related materials with the appropriate
regulatory agencies and shall obtain such approvals for their use as
may be required by the Securities and Exchange Commission. the National
Association of Securities Dealers, Inc. and/or state securities
administrators. You shall not disseminate to the public any such
materials without prior approval by Xxxxxxxxxx Asset Management, LLC.
1.5 Whenever in their judgment such action is warranted by
unusual market, economic or political conditions, or by abnormal
circumstances of any kind deemed by the parties hereto to render sales
of a Fund's Shares not in the best interest of the Fund, the parties
hereto may decline to accept any orders for, or make any sales of, any
Shares until such time as those parties deem it advisable to accept
such orders and to make such sales and each party shall advise promptly
advise other party of any such determination.
1.6 The Fund agrees to pay all costs and expenses in
connection with the registration of Shares under the Securities Act of
1933, as amended, and all expenses in connection with facilities for
the issue and transfer of Shares and for supplying information, prices
and other data to be furnished by the Fund hereunder, and all expenses
in connection with the preparation and printing of the Fund's
prospectuses and statements of additional information for regulatory
purposes and for distribution to shareholders; provided however, that
the Fund shall not pay any of the costs of advertising or promotion for
the sale of Shares except for the payment of Rule 12b-I fees under the
terms of a written agreement.
1.7 The Fund agrees to execute any and all documents and to
furnish any and all information and otherwise to take all actions which
may be reasonably necessary in the discretion of the Fund's officers in
connection with the qualification of Shares for sale in such states as
you may designate to the Fund and the Fund may approve, and the Fund
agrees to pay all expenses which may be incurred in connection with
your own qualification. You shall pay all
expenses connected with your own qualification as a dealer wider state
or Federal laws and, except as otherwise specifically provided in this
agreement, all other expenses incurred by you in connection with the
sale of Shares as contemplated in this agreement.
1.8 The Fund shall furnish you from time to time, for use in
connection with the sale of Shares, such information with respect to
the Fund or any relevant Series and the Shares as you 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 information, when so signed by the Fund's
officers, shall be true and correct. The Fund also shall furnish you
upon request with: (a) semi-annual reports and annual audited reports
of the Fund's books and accounts made by independent public accountants
regularly retained by the Fund. (b) quarterly earnings statements
prepared by the Fund, (c) a monthly itemized list of the securities in
the Fund's or, if applicable, each Series' portfolio, (d) monthly
balance sheets as soon as practicable after the end of each month, and
(e) from time to time such additional information regarding the Fund's
financial condition as you may reasonably request.
1.9 The Fund represents to you that all registration
statements and prospectuses filed by the Fund with the Securities Act
Exchange Commission under the Securities Act of 1933, as amended, and
under the Investment Company Act of 1940, as amended, with respect to
the Shares have been carefully prepared in conformity with the
requirements of said Acts and rules and regulations of the Securities
and Exchange Commission thereunder. As used in this agreement the terms
"registration statement" and "prospectus" shall mean any registration
statement and prospectus, including the statement of additional
information incorporated by reference therein, filed with the
Securities and Exchange Commission and any amendments and supplements
thereto which at any time shall have been filed with said Commission.
The Fund represents and warrants to you that any registration statement
and prospectus, when such registration statement becomes effective,
will contain all statements required to be stated therein in conformity
with said Acts and the rules and regulations of said Commission; that
all statements of fact contained in any such registration statement and
prospectus will be true and correct when such registration statement
becomes effective; and that neither any registration statement nor my
prospectus 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 dated therein or necessary to make the
statements therein not misleading. 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 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
you to do so stating that your internal or external legal counsel
believes such amendments or supplements to be legally required, you
may, at your option, terminate this agreement or decline to make offers
of the Fund's securities until such amendments are made. The Fund shall
not file any material amendment to any registration statement or
material supplement to any prospectus without giving you 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, of whatever character, as the
Fund may deem advisable, such right being in all respects absolute and
unconditional.
1.10 Nothing herein shall be deemed to protect you against any
liability to us or to our securities holders to which you would
otherwise be subject by reason of your willful misfeasance, bad faith
or gross negligence in the performance of your duties hereunder, or by
reason of your reckless disregard of your obligations and duties
hereunder.
1.11 We agree to indemnify and hold you harmless from and
against any and all losses, claims, damages or liabilities to which you
may become subject under the 1933 Act, the 1940 Act or any state
securities statute, and to reimburse you for any legal or other
expenses reasonably incurred by you in with any claim or litigation,
whether or not resulting in any liability, insofar as such losses,
claims, damages, liabilities, or litigation arise out of or are based
upon any untrue statement or omission or alleged untrue statement or
omission of a material fact contained in the Registration Statement of
the Trust; provided, however, that this indemnity shall not apply to
any such losses, claims, damages, liabilities, or litigation arising
out of or based upon any untrue statement or omission or alleged untrue
statement or omission of a material fact contained in the Registration
Statement, which statement or omission was made in reliance upon
information furnished to us by you for inclusion in the Registration
Statement.
You agree to indemnify and hold us harmless from and against any and
all losses, claims, damage or liabilities to which we may become
subject under the 1933 Act, the 1940 Act or any state securities
statute, and reimburse us for any legal or other expenses reasonably
incurred by us in connection with any claim or litigation, whether or
not resulting in any liability, insofar as such losses, claims,
damages, liabilities, or litigation arise out of or are based upon any
untrue statement or omission or alleged untrue Statement or omission of
a material fact contained in the Registration Statement; provided,
however, that this indemnity shall not apply to any such losses,
claims, damages, liabilities, or litigation arising out of or based
upon any untrue statement or omission of a material fact contained in
the Registration Statement, where such statement or omission was not
made in reliance upon information furnished to us by you for inclusion
in the Registration Statement.
1.12. You acknowledge that you have received notice of and
accept the limitations the Trust's liability set forth in its Agreement
and Declaration of Trust, as amended from time to time. In accordance
therewith, you agree that the Trust's obligations hereunder shall be
limited to each Fund and the assets of each Fund, and no party shall
seek satisfaction of any such obligation from any shareholder of the
Trust nor from any employee or agent of the Trust.
1.13 No Shares shall be offered by either you or the Fund
under any of the provisions of this agreement and no orders for the
purchase or sale of such Shares hereunder 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 provisions of the Securities Act of 1933, as amended or if
and so long as a current prospectus as required by Section 10 of said
Act, as amended, is not on file with the Securities and Exchange
Commission; provided, however, that nothing contained in this paragraph
1.12 shall in any way restrict or have an application to or bearing
upon the Fund's obligation to repurchase any Shares from any
shareholder in accordance with the provisions of the Fund's prospectus
or charter documents.
1.14 The Fund agrees to advise you immediately in writing:
(a) of any request by the Securities and Exchange
Commission for amendments to the registration statement or
prospectus then in effect or for additional information;
(b) in the event of the issuance by the Securities
and Exchange Commission of any stop order suspending the
effectiveness of the registration statement or prospectus then
in effect or the initiation of any proceeding for that
purpose;
(c) of the happening of any event which makes untrue
any statement of a material fact made in the registration
statement or prospectus then in effect or which requires the
making of a change in such registration statement or
prospectus in order to make the statements therein not
misleading; and
(d) of all material actions of the Securities and
Exchange Commission with respect to any material amendments to
any registration statement or prospectus which may from time
to time be filed with the Securities and Exchange Commission.
2. Offering Price
Shares of any class of the Fund offered for sale by you shall be
offered at a price per share (the "offering price") equal to (a) the net asset
value (determined in the manner set forth in the Fund's charter documents) plus
(b) a sales charge, if any and except to those persons set forth in the
then-current prospectus, which shall be the percentage of the offering price of
such Shares as set forth in the Fund's then-current prospectus. The offering
price, if not an exact multiple of one cent, shall be adjusted to the nearest
cent. In addition, Shares of any class of the Fund offered for sale by you may
be subject to a contingent deferred sales charge as set forth in the Fund's
then-current prospectus. You shall be entitled to receive any sales charge or
contingent deferred sales charge in respect of the Shams. Any payments to
dealers shall be governed by a separate agreement between you and such dealer
and the Fund's then-current prospectus.
3. Term
This Agreement shall become effective with respect to the Fund as of
the date hereof and will continue for an initial two-year term and will continue
thereafter so long as such continuance is specifically approved at least
annually (i) by the Fund's Board or (ii) by a vote of a majority of the Shares
of the Fund or the relevant Series, as the case may be, provided that in either
event its continuance also is approved by a majority of the Board members who am
not "interested persons" 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 with respect to the Fund or a Series, without penalty, on not less
than sixty days' notice, by the Fund's Board of Trustees, by vote of a majority
of the outstanding voting securities of such Fund or Series, or by you. This
Agreement will automatically and immediately terminate in the event of its
"assignment" (As used in this Agreement, the terms "majority of the outstanding
voting securities," "interested person" and "assignment" shall have the same
meanings as such terms have in the investment Company Act of 1940). You agree to
notify the Fund immediately upon the event of your expulsion or suspension by
the NASD. This Agreement will automatically and immediately terminate in the
event of your expulsion or suspension by the NASD.
4. Miscellaneous
4.1 The Fund recognizes that, except to the extent otherwise
agreed to by the parties hereto, your directors, officers and employees
may from time to time serve as directors, trustees, officers and
employees of corporations and business trusts (including other
investment companies), and that you or your affiliates may enter into
distribution or other agreements with such other corporations and
trusts.
4.2 You shall not purchase the Shares for your own account for
purposes of resale to the public, but you may purchase shares for your
own investment account upon written assurance that the purchase is for
investment purposes only and that the Shares will not be resold except
through redemption by us.
4.3 No provision of this Agreement may be changed, waived,
discharged or terminated, but only by an instrument in writing signed
by the party against which an enforcement of the change, waiver,
discharge or termination is sought.
4.4 This Agreement shall be governed by the internal laws of
the of Massachusetts without giving effect to principles of conflicts
of laws.
4.5 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. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto
and their respective successors.
Please confirm that the foregoing is in accordance with your
understanding and indicate your acceptance hereof by signing below, whereupon it
shall become a binding Agreement between us.
Very truly yours,
THE XXXXXXXXXX FUNDS
By: _______________________
Name: _____________________
Title: _____________________
Accepted:
FUNDS DISTRIBUTOR, INC.
By: _______________________
Name: _____________________
Title: __________________
EXHIBIT A
Series of Funds
THE XXXXXXXXXX FUNDS
Xxxxxxxxxx Growth Fund
Xxxxxxxxxx Equity Income, Fund
Xxxxxxxxxx Small Cap Fund
Xxxxxxxxxx Small Cap Opportunities Fund
Xxxxxxxxxx Micro Cap Fund
Xxxxxxxxxx Global Opportunities Fund
Xxxxxxxxxx Global Communications Fund
Xxxxxxxxxx international Growth Fund
Xxxxxxxxxx International Small Cap Fund
Xxxxxxxxxx Emerging Asia Fund
Xxxxxxxxxx Emerging Markets Fund
Xxxxxxxxxx Select 50 Fund
Xxxxxxxxxx Short Duration Government Bond Fund
Xxxxxxxxxx Government Reserve Fund
Xxxxxxxxxx Federal Tax-Free Money Fund
Xxxxxxxxxx California Tax-Free Intermediate Bond Fund
Xxxxxxxxxx California Tax-Free Money Fund
Xxxxxxxxxx Latin American Fund
Xxxxxxxxxx Japan Small Cap Fund
Xxxxxxxxxx Total Return Bond Fund
