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EXHIBIT 99.B6(a)
UNDERWRITING AND DISTRIBUTION SERVICES AGREEMENT
AGREEMENT made this 26th day of January, 1996, between XXXXXX
QUANTITATIVE EQUITY FUND, a Massachusetts business trust (the "Fund"), and
XXXXXX DISTRIBUTORS, INC., a Delaware corporation ("KDI").
In consideration of the mutual covenants hereinafter contained, it
is hereby agreed by and between the parties hereto as follows:
1. The Fund hereby appoints KDI to act as agent for the distribution
of shares of beneficial interest (hereinafter called "shares") of the Fund in
jurisdictions wherein shares of the Fund may legally be offered for sale;
provided, however, that the Fund in its absolute discretion may (a) issue or
sell shares directly to holders of shares of the Fund upon such terms and
conditions and for such consideration, if any, as it may determine, whether in
connection with the distribution of subscription or purchase rights, the
payment or reinvestment of dividends or distributions, or otherwise;
or (b) issue or sell shares at net asset value to the shareholders of any
other investment company, for which KDI shall act as exclusive distributor,
who wish to exchange all or a portion of their investment in shares of such
other investment company for shares of the Fund. KDI shall appoint
various financial service firms ("Firms") to provide distribution services
to investors. The Firms shall provide such office space and equipment,
telephone facilities, personnel, literature distribution, advertising and
promotion as is necessary or beneficial for providing information
and distribution services to existing and potential clients of the Firms.
KDI may also provide some of the above services for the Fund.
KDI accepts such appointment as distributor and principal underwriter
and agrees to render such services and to assume the obligations herein set
forth for the compensation herein provided. KDI shall for all purposes
herein provided be deemed to be an independent contractor and, unless
expressly provided herein or otherwise authorized, shall have no authority
to act for or represent the Fund in any way. KDI, by separate agreement with
the Fund, may also serve the Fund in other capacities. The services of KDI
to the Fund under this Agreement are not to be deemed exclusive, and KDI
shall be free to render similar services or other services to others so
long as its services hereunder are not impaired thereby.
In carrying out its duties and responsibilities hereunder, KDI will,
pursuant to separate written contracts, appoint various Firms
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to provide advertising, promotion and other distribution services
contemplated hereunder directly to or for the benefit of existing and potential
shareholders who may be clients of such Firms. Such Firms shall at all times
be deemed to be independent contractors retained by KDI and not the Fund.
KDI shall use its best efforts with reasonable promptness to sell such
part of the authorized shares of the Fund remaining unissued as from time
to time shall be effectively registered under the Securities Act of 1933
("Securities Act"), at prices determined as hereinafter provided and on terms
hereinafter set forth, all subject to applicable federal and state laws
and regulations and to the Agreement and Declaration of Trust of the Fund.
2. KDI shall sell shares of the Fund to or through qualified Firms in such
manner, not inconsistent with the provisions hereof and the then effective
registration statement (and related prospectus) of the Fund under the
Securities Act, as KDI may determine from time to time, provided that no
Firm or other person shall be appointed or authorized to act as agent of
the Fund without the prior consent of the Fund. In addition to sales made by
it as agent of the Fund, KDI may, in its discretion, also sell shares of the
Fund as principal to persons with whom it does not have selling group
agreements.
Shares of any class of any series of the Fund offered for sale or sold
by KDI shall be so offered or sold at a price per share determined in
accordance with the then current prospectus. The price the Fund shall receive
for all shares purchased from it shall be the net asset value used in
determining the public offering price applicable to the sale of such shares.
Any excess of the sales price over the net asset value of the shares of the
Fund sold by KDI as agent shall be retained by KDI as a commission
for its services hereunder. KDI may compensate Firms for sales of shares at
the commission levels provided in the Fund's prospectus from time to
time. KDI may pay other commissions, fees or concessions to Firms, and
may pay them to others in its discretion, in such amounts as KDI shall
determine from time to time. KDI shall be entitled to receive and retain any
applicable contingent deferred sales charge as described in the Fund's
prospectus. KDI shall also receive any distribution services fee payable by
the Fund as provided in Section 8 hereof.
KDI will require each Firm to conform to the provisions hereof and
the Registration Statement (and related prospectus) at the time in effect
under the Securities Act with respect to the public offering price or net
asset value, as applicable, of the Fund's shares, and neither KDI nor any
such Firms shall withhold the placing of purchase orders so as to make a profit
thereby.
3. The Fund will use its best efforts to keep effectively registered
under the Securities Act for sale as herein contemplated
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such shares as KDI shall reasonably request and as the Securities and
Exchange Commission shall permit to be so registered. Notwithstanding any
other provision hereof, the Fund may terminate, suspend or withdraw the
offering of shares whenever, in its sole discretion, it deems such action
to be desirable.
4. The Fund will execute any and all documents and furnish any and all
information that may be reasonably necessary in connection with the
qualification of its shares for sale (including the qualification of the Fund
as a dealer where necessary or advisable) in such states as KDI may reasonably
request (it being understood that the Fund shall not be required without its
consent to comply with any requirement which in its opinion is unduly
burdensome). The Fund will furnish to KDI from time to time such information
with respect to the Fund and its shares as KDI may reasonably request for
use in connection with the sale of shares of the Fund.
5. KDI shall issue and deliver or shall arrange for various Firms to
issue and deliver on behalf of the Fund such confirmations of sales made by it
pursuant to this agreement as may be required. At or prior to the time of
issuance of shares, KDI will pay or cause to be paid to the Fund the amount
due the Fund for the sale of such shares. Certificates shall be issued or
shares registered on the transfer books of the Fund in such names and
denominations as KDI may specify.
6. KDI shall order shares of the Fund from the Fund only to the extent that
it shall have received purchase orders therefor. KDI will not make, or
authorize Firms or others to make (a) any short sales of shares of the Fund;
or (b) any sales of such shares to any trustee or officer of the Fund or to
any officer or director of KDI or of any corporation or association furnishing
investment advisory, managerial or supervisory services to the Fund, or to any
corporation or association, unless such sales are made in accordance with
the then current prospectus relating to the sale of such shares. KDI, as
agent of and for the account of the Fund, may repurchase the shares of the
Fund at such prices and upon such terms and conditions as shall be
specified in the current prospectus of the Fund. In selling or reacquiring
shares of the Fund for the account of the Fund, KDI will in all respects
conform to the requirements of all state and federal laws and the Rules of Fair
Practice of the National Association of Securities Dealers, Inc., relating to
such sale or reacquisition, as the case may be, and will indemnify and save
harmless the Fund from any damage or expense on account of any wrongful act
by KDI or any employee, representative or agent of KDI. KDI will observe
and be bound by all the provisions of the Agreement and Declaration of
Trust of the Fund (and of any fundamental policies adopted by the Fund
pursuant to the Investment Company Act of 1940, notice of which shall have
been given to KDI) which at the time in any way require, limit, restrict,
prohibit or otherwise regulate any action of the part of KDI hereunder.
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7. The Fund shall assume and pay all charges and expenses of its
operations not specifically assumed or otherwise to be provided by KDI under
this Agreement. The Fund will pay or cause to be paid expenses (including the
fees and disbursements of its own counsel) of any registration of the Fund and
its shares under the United States securities laws and expenses incident to the
issuance of shares of beneficial interest, such as the cost of share
certificates, issue taxes, and fees of the transfer agent. KDI will pay all
expenses (other than expenses which one or more Firms may bear pursuant to any
agreement with KDI) incident to the sale and distribution of the shares issued
or sold hereunder, including, without limiting the generality of the foregoing,
all (a) expenses of printing and distributing any prospectus and of
preparing, printing and distributing or disseminating any other literature,
advertising and selling aids in connection with the offering of the shares
for sale (except that such expenses need not include expenses incurred by the
Fund in connection with the preparation, typesetting, printing and
distribution of any registration statement or prospectus, report or other
communication to shareholders in their capacity as such), (b) expenses of
advertising in connection with such offering and (c) expenses (other than the
Fund's auditing expenses) of qualifying or continuing the qualification of
the shares for sale and, in connection therewith, of qualifying or continuing
the qualification of the Fund as a dealer or broker under the laws of such
states as may be designated by KDI under the conditions herein specified. No
transfer taxes, if any, which may be payable in connection with the issue or
delivery of shares sold as herein contemplated or of the certificates for
such shares shall be borne by the Fund, and KDI will indemnify and hold
harmless the Fund against liability for all such transfer taxes.
8. For the services and facilities described herein in connection
with Class B shares and Class C shares of each series of the Fund, the Fund
will pay to KDI at the end of each calendar month a distribution services fee
computed at the annual rate of .75% of average daily net assets attributable
to the Class B shares and Class C shares of each such series. For the month
and year in which this Agreement becomes effective or terminates, there shall
be an appropriate proration on the basis of the number of days that the
Agreement is in effect during the month and year, respectively. The foregoing
fee shall be in addition to and shall not be reduced or offset by the amount of
any contingent deferred sales charge received by KDI under Section 2 hereof.
The net asset value shall be calculated in accordance with the
provisions of the Fund's current prospectus. On each day when net asset
value is not calculated, the net asset value of a share of any class of any
series of the Fund shall be deemed to be the net asset value of such a
share as of the close of business on the last previous day on which such
calculation was made. The distribution services fee for any class of a series
of the Fund shall be based
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upon average daily net assets of the series attributable to the class and
such fee shall be charged only to such class.
9. KDI shall prepare reports for the Board of Trustees of the Fund on a
quarterly basis in connection with the Fund's distribution plan for
Class B shares and Class C shares showing amounts paid to the various Firms
and such other information as from time to time shall be reasonably
requested by the Board of Trustees.
10. To the extent applicable, this Agreement constitutes the plan for the
Class B shares and Class C shares of each series of the Fund pursuant to Rule
12b-1 under the Investment Company Act of 1940; and this Agreement and plan
shall be approved and renewed in accordance with Rule 12b-1 for such Class B
shares and Class C shares separately.
This Agreement shall become effective on the date hereof and shall
continue until March 1, 1997; and shall continue from year to year thereafter
only so long as such continuance is approved in the manner required by the
Investment Company Act of 1940.
This Agreement shall automatically terminate in the event of its
assignment and may be terminated at any time without the payment of any
penalty by the Fund or by KDI on sixty (60) days written notice to the
other party. The Fund may effect termination with respect to any class
of any series of the Fund by a vote of (i) a majority of the Board of
Trustees, (ii) a majority of the trustees who are not interested persons of
the Fund and who have no direct or indirect financial interest in this
Agreement or in any agreement related to this Agreement, or (iii) a majority
of the outstanding voting securities of the class. Without prejudice to any
other remedies of the Fund, the Fund may terminate this Agreement at any time
immediately upon KDI's failure to fulfill any of its obligations hereunder.
This Agreement may not be amended to increase the amount to be paid to
KDI by the Fund for services hereunder with respect to a class of any series of
the Fund without the vote of a majority of the outstanding voting securities
of such class. All material amendments to this Agreement must in any event
be approved by a vote of the Board of Trustees of the Fund including the
trustees who are not interested persons of the Fund and who have no direct or
indirect financial interest in this Agreement or in any
agreement related to this Agreement, cast in person at a meeting called for
such purpose.
The terms "assignment", "interested" and "vote of a majority of the
outstanding voting securities" shall have the meanings set forth in the
Investment Company Act of 1940 and the rules and regulations thereunder.
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Termination of this Agreement shall not affect the right of KDI to
receive payments on any unpaid balance of the compensation described in Section
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11. KDI will not use or distribute, or authorize the use, distribution
or dissemination by Firms or others in connection with the sale of Fund
shares any statements other than those contained in the Fund's current
prospectus, except such supplemental literature or advertising as shall be
lawful under federal and state securities laws and regulations. KDI will
furnish the Fund with copies of all such material.
12. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder shall not be
thereby affected.
13. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as
such other party may designate for the receipt of such notice.
14. All parties hereto are expressly put on notice of the Fund's Agreement and
Declaration of Trust, and all amendments thereto, all of which are on file
with the Secretary of The Commonwealth of Massachusetts, and the limitation of
shareholder and trustee liability contained therein. This Agreement has been
executed by and on behalf of the Fund by its representatives as such
representatives and not individually, and the obligations of the Fund
hereunder are not binding upon any of the Trustees, officers or shareholders of
the Fund individually but are binding upon only the assets and property of
the Fund. With respect to any claim by KDI for recovery of any liability
of the Fund arising hereunder allocated to a particular series or class,
whether in accordance with the express terms hereof or otherwise, KDI shall
have recourse solely against the assets of that series or class to satisfy
such claim and shall have no recourse against the assets of any other
series or class for such purpose.
15. This Agreement shall be construed in accordance with applicable
federal law and (except as to Section 14 hereof which shall be construed
in accordance with the laws of The Commonwealth of Massachusetts) the
laws of the State of Illinois.
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16. This Agreement is the entire contract between the parties relating to
the subject matter hereof and supersedes all prior agreements between the
parties relating to the subject matter hereof.
IN WITNESS WHEREOF, the Fund and KDI have caused this Agreement to
be executed as of the day and year first above written.
XXXXXX QUANTITATIVE EQUITY FUND
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
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ATTEST:
/s/ Xxxxxx X. Xxxxxxx
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Title: Secretary
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XXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Chief Financial Office
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and Treasurer
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ATTEST:
/s/ Xxxxx X. Xxxxxxxxxxx
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Title: Secretary
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