EXHIBIT 6
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made this ____ day of
________________, 1998, by and between XXXXXX INVESTMENT PORTFOLIO TRUST, a
business trust organized and existing under the laws of the State of Delaware
(the "Trust"), and XXXXXX DISTRIBUTORS, INC., a corporation organized and
existing under the laws of the State of Colorado (the "Distributor"). This
Agreement applies separately to each series of the Trust, whether now existing
or hereafter created, listed on Exhibit A hereto as it may be amended from time
to time (each a "Fund" and collectively the "Funds").
RECITALS
A. The Trust 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 Trust and the Distributor desire the Distributor to act as the
principal underwriter for the public offering of the shares of beneficial
interest (the "Shares") of each Fund, whether now existing or hereafter created.
D. This Agreement effects an amendment of that certain Distribution
Agreement, originally entered into and dated the 31st day of March, 1997,
between the Trust and the Distributor.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. APPOINTMENT. The Trust appoints the Distributor to act as distributor
of the Shares of each Fund.
2. TRUST TO FURNISH DOCUMENTS. The Trust shall furnish the Distributor
with copies of any registration statements, prospectuses or statements of
additional information pertaining to any Fund filed by the Trust 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 Trust 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 each
Fund's prospectus or statement of additional information, the Distributor is
authorized to solicit, as agent on behalf of the Trust, unconditional orders for
purchases of each 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 Trust;
(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 each 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 a Fund received by the
Distributor shall be subject to acceptance by the Trust and entry of the order
on such Fund's records or shareholder accounts and is not binding until so
accepted and entered.
The purchase price of a 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 each Fund.
(c) In exercising its authority and discharging its responsibilities
under this Section 3, the Distributor may enter into sales or servicing
agreements with securities dealers, investment advisers, financial institutions
and other industry professionals, provided that any such agreements shall comply
with all applicable laws and regulations and Rules of the NASD.
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4. SOLICITATION OF ORDERS TO PURCHASE SHARES BY TRUST. The rights
granted to the Distributor shall be non-exclusive in that the Trust 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 a Fund, or a 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 Trust
or any Fund, including without limitation, any charges of the Trust'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 each 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 Trust under the 1940 Act and the sale of the Trust's Shares
under the 1933 Act; and any expenses of registering or qualifying and
maintaining registrations or qualifications of each Fund and of the Shares for
sale under securities laws of various states or other jurisdictions and of
registration or qualification of the Trust and each Fund under all laws
applicable to the Trust 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 a Fund at the public
offering price. The public offering price for each accepted order for a Fund's
Shares will be the net asset value per Share next determined by the Trust 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
Trust's Trust Instrument 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 such Fund.
7. SUSPENSION OF SALES. If and whenever the determination of a Fund's
net asset value is suspended and until such suspension is terminated, no further
orders for Shares shall be accepted by the Trust except such unconditional
orders placed with the Trust and accepted by it before the suspension. In
addition, the Trust reserves the right to suspend sales of Shares of a Fund if,
in the judgment of the Trustees, 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
Trustees; and in that event, (i) at the direction of the Trust, the Distributor
shall suspend its solicitation of orders to purchase Shares of such Fund until
otherwise instructed by the Trust and (ii) no orders to purchase Shares of such
Fund shall be accepted by the Trust while such suspension remains in effect
unless otherwise directed by its Trustees.
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8. SOLICITATION MATERIALS; AUTHORIZED REPRESENTATIONS.
(a) The Trust shall make available to the Distributor, without cost
to the Trust, such number of copies of each 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 Trust to give with
respect to any Fund any information or to make any representations in connection
with the sale of Shares other than the information and representations contained
in the Trust's registration statement, or such 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 such Fund that
may be prepared by or on behalf of the Trust or approved by the Trust for the
Distributor's use.
9. REGISTRATION OF ADDITIONAL SHARES. The Trust 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 Trust shall deem
advisable pursuant to Rule 24e-2 under the 1940 Act, or both. The Trust will,
in cooperation with the Distributor, take such action as may be necessary from
time to time to register or qualify the Shares of each Fund (so registered or
otherwise qualified for sale under the 1933 Act), in any state or jurisdiction
mutually agreeable to the Distributor and the Trust, and to maintain such
registration or qualification; provided, however, that nothing herein shall be
deemed to prevent the Trust 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 Trust 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 Trust or any of its Funds 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 Trust 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
Trust 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 Trust and each of its Trustees, officers, employees and
representatives, and each person, if any,
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who controls the Trust 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 Trust or such Trustees, 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 such
Fund filed or made public by the Trust 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 Trust. In no
case is the Distributor's indemnity in favor of the Trust, or any person
indemnified, to be deemed to protect the Trust or such indemnified person
against any liability to which the Trust 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 Trust 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 Trust or upon such person (or after the Trust 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 Trust 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 Trust 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
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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 any Fund to any
person which (i) may be based upon any wrongful act by the Trust or any of its
Trustees, 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 Trust 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 Trust. In no case
is the Trust'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 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 Trust 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 Trust of any such claim
shall not relieve the Trust 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 Trust may have to the Distributor or
any person against whom such action is brought otherwise than on account of the
Trust's indemnity agreement contained in this section.
The Trust shall be entitled to participate, at its own expense, in the
defense or, if the Trust so elects, to assume the defense of any action brought
to enforce such claim but, if the Trust elects to assume the defense, such
defense shall be conducted by legal counsel chosen by the Trust and reasonably
satisfactory to the persons indemnified who are defendants in the action. In
the event that the Trust 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 Trust does not elect to assume the defense of any such action,
the Trust 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 each Fund on the Effective Date specified on
Exhibit A hereto with respect to such Fund, and unless terminated as provided
herein, shall remain in effect until the Termination Date specified on Exhibit A
hereto with respect to such Fund, 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 Trustees who are not interested
persons of the Distributor or of the Trust, voting in person at a meeting called
for the purpose of voting on such
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approval, and (b) by the vote of either the Trustees or a majority of the
outstanding voting securities of the Fund. If the continuance of this Agreement
is not approved as to a Fund, this Agreement shall nonetheless continue with
respect to those Funds as to which such continuance has been approved. This
Agreement may be terminated with respect to an individual Fund at any time,
without the payment of any penalty (a) on 60 days' written notice, by the
Trustees or by a vote of a majority of the outstanding voting securities of such
Fund, or by the Distributor, or (b) immediately, on written notice by the
Trustees, 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, 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 Trust should at any time deem it
necessary or advisable in the best interests of a 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 Trust may immediately thereupon
terminate this Agreement as to that Fund.
15. LIMITATION ON PERSONAL LIABILITY. NOTICE IS HEREBY GIVEN that the
Trust is a business trust organized under the Delaware Business Trust Act
pursuant to a Certificate of Trust filed in the office of the Secretary of State
of the State of Delaware. All parties to this Agreement acknowledge and agree
that the Trust is a series trust and all debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular series shall be enforceable against the assets held with respect to
such series only, and not against the assets of the Trust generally or against
the assets held with respect to any other series and further that no Trustee,
officer or holder of shares of beneficial interest of the Trust shall be
personally liable for any of the foregoing.
16. NOTIFICATION BY THE TRUST. The Trust agrees to advise the Distributor
immediately:
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(a) of any request by the SEC for amendments to the Trust's
registration statement insofar as it relates to any of the Funds, the prospectus
or the statement of additional information pertaining to any Fund or for
additional information,
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Trust's registration statement insofar as it
relates to any of the Funds, the prospectus or the statement of additional
information pertaining to any 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 Trust's registration statement insofar as it relates to
any of the Funds, the prospectus or the statement of additional information
pertaining to any 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
Trust's registration statement insofar as it relates to any of the Funds, the
prospectus or the statement of additional information pertaining to any Fund
which may from time to time be filed with the SEC under the 1933 Act.
17. 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.
18. 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
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.
19. 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 Trust: 000 Xxxxxxxxxx Xxxxxxxxx, #000
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
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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 INVESTMENT PORTFOLIO TRUST
By:
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