EXHIBIT 99.6
DISTRIBUTION AGREEMENT
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AGREEMENT made this 30th day of December, 1988
between XXXXXXX XXXXX U.S.A. GOVERNMENT RESERVES, a trust
organized under the laws of Massachusetts (the "Fund"), and
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC., a Delaware corporation
(the "Distributor");
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Fund is registered under the investment Company
Act of 1940, as amended (the "Investment Company Act"), as a
diversified open-end investment company and it is affirmatively
in the interest of the Fund to offer its shares for sale in a
continuous offering; and
WHEREAS, the Distributor is a securities firm engaged in the
business of selling shares of investment companies either
directly to investors or through other securities dealers; and
WHEREAS, the Fund and the Distributor wish to enter into an
agreement with each other with respect to the continuous offering
of the Fund's shares to commence after the effectiveness of its
initial registration statement filed pursuant to the Securities
Act of 1933, as amended (the "Securities Act").
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Fund hereby
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appoints the Distributor as the exclusive distributor and
representative of the Fund to sell shares of beneficial interest,
par value $.10 per share (the "shares") to the public and the
Distributor hereby accepts such appointment. The Fund during the
term of this Agreement shall sell its shares to the Distributor
upon the terms and conditions set forth below.
Section 2. Exclusive Nature of Duties. The Distributor
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shall be the exclusive representative of the Fund to act as
principal underwriter and distributor, except that such exclusive
rights shall not apply to shares issued by the Trust pursuant to
reinvestments of dividends and capital gains distributions.
Section 3. Purchase of Shares from the Fund.
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(a) The Distributor shall have the right to buy from the
Fund the shares needed, but not more than the shares needed
(except for clerical errors in transmission) to fill
unconditional orders for shares of the Fund placed with the
Distributor by investors or securities dealers. The price which
the Distributor shall pay for the shares so purchased from the
Fund shall be the net asset value, determined as set forth in
Section @(c) hereof, used in determining the public offering
price described below on which such orders were based.
(b) The shares are to be resold by the Distributor to
investors at the public offering price, as set forth in Section
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3(c) hereof, or to securities dealers having agreements with the
Distributor upon the terms and conditions set forth in Section 7
hereof.
(c) The public offering price of the shares, i.e., the price,
per share at which the Distributor may sell shares to the public,
shall be the public offering price as set forth in the currently
effective prospectus of the Fund under the Securities Act (the
"Prospectus") relating to such shares, which shall be the net
asset value thereof, as determined in accordance with the
description thereof contained in the Prospectus.
(d) The Fund, or any agent of the Fund designated in
writing by it, shall be promptly advised of all purchase orders
for shares received by the Distributor. Procedures may be
established by the Fund and the Distributor whereby purchase
orders for shares are presented directly to the Fund or an agent
designated by the Fund upon the condition that in such cases it
shall be deemed that the sale of the shares to be purchased is
made pursuant to this Section 3. Any order may be rejected by
the Fund or the Distributor, provided, however, that neither will
arbitrarily or without reasonable cause refuse to accept or
confirm orders for the purchase of shares. The Fund (or its
agent) will confirm orders upon their receipt, or in accordance
with any exemptive order of the Securities and Exchange
Commission, and will make appropriate book entries pursuant to
the instructions of the Distributor. Purchase orders are
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effective when Federal Funds become available to the Fund. The
Distributor agrees to cause such payment and such instructions to
be delivered promptly to the Fund (or its agent).
Section 4. Redemption or Repurchase of Shares by the Fund.
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(a) Outstanding shares may be tendered for redemption or
repurchase in accordance with the Prospectus and the Fund shall
redeem or repurchase the shares so tendered in accordance with
its obligations and rights as set forth in its Declaration of
Trust, as amended from time to time, and in accordance with the
applicable provisions contained in the Prospectus. The Fund
shall pay the total amount of the redemption price as determined
in accordance with such procedures as are set forth in the
Declaration of Trust, as amended from time to time, and the
Prospectus.
(b) The Fund reserves the right to reject any order for
repurchase through a securities dealer, but the right to redeem
shares, or to receive payment with respect to any such
redemption, upon the presentation of properly submitted
redemption requests in accordance with the procedures set forth
in the Prospectus may only be suspended in accordance with the
provisions of the Investment Company Act.
Section 5. Duties of the Fund.
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(a) The Fund shall furnish to the Distributor copies of all
information, financial statements and other documents which the
Distributor may reasonably request for use in connection with the
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distribution of shares of the Fund, and this shall include one
certified copy, upon request by the Distributor, of all financial
statements of the Fund by independent public accountants. The
Fund shall make available to the Distributor such number of
copies of the Prospectus as the Distributor shall reasonably
request.
(b) The Fund shall take, from time to time, all necessary
action to register shares under the Securities Act to the end
that there will be available for sale such number of shares as
the Distributor may reasonably be expected to sell.
(c) The Fund shall use its best efforts to qualify and
maintain the qualification of an appropriate number of shares for
sale under the securities laws of such states as the Distributor
and the Fund may approve. Any such qualification may be
withheld, terminated or withdrawn by the Fund at any time in its
discretion. As provided in Section 8(c) hereof, the expense of
qualification and maintenance of qualification shall be borne by
the Fund. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be
required by the Fund in connection with such qualifications.
(d) The Fund will furnish to the Distributor, in reasonable
quantities upon request by the Distributor, copies of annual and
interim reports.
Section 6. Duties of the Distributor.
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(a) The Distributor shall devote reasonable time and effort
to effect sales of shares of the Fund, but shall not be obligated
to sell any specific number of shares. The services of the
Distributor hereunder are not to be deemed exclusive and nothing
herein contained shall prevent the Distributor from entering into
distribution arrangements with other investment companies so long
as the performance of its obligations hereunder is not impaired
thereby.
(b) In selling the shares of the Fund, the Distributor shall
use its best efforts in all respects duly to conform with the
requirements of all federal and state laws and regulations and
the regulations of the National Association of Securities
Dealers, Inc. (the "NASD") relating to the sale of such
securities. Neither the Distributor nor any other person is
authorized by. the Fund to give any information or to make any
representations, other than those contained in the Prospectus or
any sales literature specifically approved by the Fund.
(c) The Distributor shall adopt and follow procedures, as
approved by the Fund, for the confirmation of sales to investors
and selected dealers, the collection of amounts payable by
investors on such sales, and the cancellation of unsettled
transactions, as may be necessary to comply with the requirements
of the NASD, as such requirements may from time to time exist.
Section 7. Selected Dealer Agreements.
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(a) The Distributor shall have the right to enter into
selected dealer agreements with securities dealers of its choice
("selected dealers") for the sale of shares; provided, however,
that the form of selected dealer agreement shall be approved by
the Trust. Shares sold to selected dealers shall be for resale
by such dealers only in accordance with
the provisions of the Prospectus. The form of selected dealer
agreement is appended hereto as Exhibit A.
(b) Within the United States, the Distributor shall offer
and sell shares only to such selected dealers as are members in
good standing of the NASD.
Section 8. Payment of Expenses.
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(a) The Fund shall bear all of its costs and expenses,
including fees and disbursements of its counsel and auditors, in
connection with the preparation and filing of any required
registration statements and prospectuses under the Investment
Company Act, the Securities Act, and all amendments and
supplements thereto, and the expense of preparing, printing,
mailing and otherwise distributing prospectuses, annual or
interim reports and proxy materials to its shareholders.
(b) After the prospectuses and annual and interim reports
have been prepared, set in type and mailed to shareholders, the
Distributor shall bear the costs and expenses of printing and
distributing any copies thereof which are used in connection with
the offering of the shares. The Distributor shall bear the costs
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and expenses of preparing, printing and distributing any
supplementary Xxxxx literature used by the Distributor in
connection with the offering of the shares for sale. Any
expenses of advertising incurred in connection with such offering
will also be the obligation of the Distributor.
(c) The Fund shall bear the cost and expenses of
qualification of the shares for sale, and, if necessary or
advisable in connection therewith, of qualifying the Fund as a
broker or dealer, in such states of the United States or other
jurisdictions as shall be selected by the Fund and the
Distributor, and the cost and expenses payable to each such state
for continuing qualification therein until the Fund decides to
discontinue such qualification.
Section 9. Indemnification.
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(a) The Fund shall indemnify and hold harmless the
Distributor and each person, if any, who controls the Distributor
against any loss, liability, claim, damage or expense (including
the reasonable cost of investigating or defending any alleged
loss, liability, claim, damage or expense and reasonable counsel
fees incurred in connection therewith, arising by reason of any
person acquiring any shares, which may be based upon the
Securities Act, or on any other statute or at common law, on the
ground that the registration statement or related Prospectus, as
from time to time amended and supplemented, or an annual or
interim report to shareholders of the Fund includes an untrue
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statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, unless such statement or
omission was made in reliance upon, and in conformity with,
information furnished to the Fund in connection therewith by or
on behalf of the Distributor; provided, however, that in no case
(i) is the indemnity of the Fund in favor of the Distributor and
any such controlling persons to be deemed to protect such
Distributor or any such controlling persons thereof against any
liability to the Fund or its security holders to which the
Distributor or any such controlling persons would otherwise be
subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of
reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Fund to be liable under its indemnity
agreement contained in this paragraph with respect to any claim
made against the Distributor or any such controlling persons,
unless the Distributor or such controlling persons, as the case
may be, shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been
served upon the Distributor or such controlling persons (or after
the Distributor or such controlling persons shall have received
notice-of such service on any designated agent), but failure to
notify the Fund of any such claim shall not relieve it from any
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liability which it may have to the person against whom such
action is brought otherwise than on account of its indemnity
agreement contained in this paragraph. The Fund will be entitled
to participate at its own expense in the defense, or, if it so
elects, to assume the defense of any suit brought to enforce any
such liability, but if the Fund elects to assume the defense,
such defense shall be conducted by counsel chosen by it and
satisfactory to the Distributor or such controlling person or
persons, defendant or defendants in the suit. In the event the
Fund elects to assume the defense of any such suit and retain
such counsel, the Distributor or such controlling person or
persons, defendant or defendants in the suit, shall bear the fees
and expenses of any additional counsel retained by them, but, in
case the Fund does not elect to assume the defense of any such
suit, it will reimburse the Distributor or such controlling
person or persons, defendant or defendants in the suit, for the
reasonable fees and expenses of any counsel retained by them.
The Fund shall promptly notify the Distributor of the
commencement of any litigation or proceedings against it or any
of its officers or Trustees in connection with the issuance or
sale of any of the shares.
(b) The Distributor shall indemnify and hold harmless the
Fund and each of its Trustees and officers and each person, if
any, who controls the Fund against any loss, liability, claim,
damage, or expense described in the foregoing indemnity contained
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in subsection (a) of this Section, but only with respect to
statements or omissions made in reliance upon, and in conformity
with, information furnished to the Fund in writing by or on
behalf of the Distributor for use in connection with the
registration statement or related Prospectus, as from time to
time amended, or the annual or interim reports to shareholders
of the Fund. In case any action shall be brought against the
Fund or any person so indemnified, in respect of which indemnity
may be sought against the Distributor, the Distributor shall have
the rights and duties given to the Fund, and the Fund and each
person so indemnified shall have the rights and duties given to
the Distributor by the provisions of subsection (a) of this
Section 9.
section 10. Duration and Termination of this Agreement.
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This Agreement shall become effective as of the date-first above
written and shall remain in force until May 31, 1984 and
thereafter, but only so long as such continuance is specifically
approved at least annually by (i) the Trustees of the Fund, or by
the vote of a majority of the outstanding voting securities of
the Fund, and (ii) a majority of those Trustees who are not
parties to this Agreement or interested persons of any such party
cast in person at a meeting called for the purpose of voting on
such approval.
This Agreement may be terminated at any time, without the
payment of any penalty, by the Trustees of the Fund or by vote of
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a majority of the outstanding voting securities of the Fund, or
by the distributor, on sixty days' written notice to the other
party. This Agreement shall automatically terminate in the event
of its assignment.
Section 11. Amendments. This Agreement may be amended by
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the parties hereto only if such amendment is specifically
approved (i) by the Trustees of the Fund, or by the vote of a
majority of outstanding voting securities of the Fund, and
(ii) by a majority of those Trustees who are not parties to this
Agreement or interested persons of any such party, which vote
must be cast in person at a meeting called for the purpose of
voting on such approval.
Section 12. Definitions of Certain Terms. The terms "vote
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of a majority of the outstanding voting securities",
"assignment", "interested person" and "affiliated person", when
used in this Agreement, shall have the respective meanings
specified in the Investment Company Act.
Section 13. Governing Law. This Agreement shall be
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construed in accordance with the laws of the State of New York
and the applicable provisions of the Investment Company Act. To
the extent the applicable law of the State of New York, or any of
the provisions herein, conflict with the applicable provisions of
the Investment Company Act, the latter shall control.
Section 14. Personal Liability. The Declaration of Trust
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establishing Xxxxxxx Xxxxx U.S.A. Government Reserves, dated
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July 29, 1982, a copy of which, together with all amendments
thereto (the "Declaration"), is on file in the office of the
Secretary of the Commonwealth of Massachusetts, provides that the
name "Xxxxxxx Xxxxx U.S.A. Government Reserves" refers to the
Trustees under the Declaration collectively as Trustees, but not
as individuals or personally; and no Trustee, shareholder,
officer, employee or agent of Xxxxxxx Xxxxx U.S.A. Government
Reserves shall be held to any personal liability, nor shall
resort be had to their private property for the satisfaction of
any obligation or claim or otherwise in connection with the
affairs of said Xxxxxxx Xxxxx U.S.A. Government Reserves, but the
Trust Property only shall be liable.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the day and year first above
written.
XXXXXXX XXXXX U.S.A. GOVERNMENT RESERVES
By
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XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By
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Exhibit A
XXXXXXX XXXXX U.S.A. GOVERNMENT RESERVES
SHARES OF BENEFICIAL INTEREST
SELECTED DEALER AGREEMENT
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1982
Gentlemen:
Xxxxxxx Xxxxx Funds Distributor, Inc. (the "Distributor")
has an agreement with Xxxxxxx Xxxxx U.S.A. Government Reserves, a
Massachusetts business trust (the "Fund"), pursuant to which it
acts as the distributor for the sale of shares of beneficial
interest, par value $.10 per share (the "shares"), of the Fund,
and as such has the right to distribute shares for resale. The
Fund is a diversified open-end investment company registered
under the Investment Company Act of 1940, as amended, and the
shares being offered are registered under the Securities Act of
1933, as amended. You have received a copy of the Distribution
Agreement between ourselves and the Fund and reference is made
herein to certain provisions of such Distribution Agreement. The
term "Prospectus" as used herein refers to the prospectus on file
with the Securities and Exchange Commission which is part of the
most recent effective registration statement relating to the
shares filed pursuant to the Securities Act of 1933, as amended.
As principal, we offer to sell to you, as a selected dealer,
shares of the Fund upon the following terms and conditions:
1. In all sales of these shares to the public you shall act
as dealer for your own account, and in no transaction shall you
have any authority to act as agent for the Fund or for us.
2. Shares may be offered by you only as described in the
Prospectus. Orders received from you will be accepted through us
only at the public offering price applicable to each order, as
set forth in the Prospectus. The procedure relating to the
handling of orders shall be subject to Section 4 hereof and
instructions which we or the Fund shall forward to you from time
to time. All orders are subject to acceptance or rejection by
the Distributor or the Fund in the sole discretion of either.
The minimum initial and subsequent purchase requirements are as
set forth in the Prospectus.
3. You agree that you will not place orders for any shares
except in accordance with the procedures described in the
Prospectus. You agree that you will not offer or sell any of the
shares except under circumstances that will result in compliance
with the applicable Federal and state securities laws and that in
connection with sales and offers to sell shares you will furnish
to each person to whom any such sale or offer is made a copy of
the Prospectus (as then amended or supplemented) and will not
furnish to any person any information relating to the shares
which is inconsistent in any respect with the information
contained in the Prospectus (as then amended or supplemented) or
cause any advertisement to be published in any newspaper or
posted in any public place without our consent and the consent of
the Fund.
4. As a selected dealer, you are hereby authorized (i) to
place orders directly with the Fund for shares to be sold by us
to you subject to the applicable terms and conditions governing
the placement of orders by us set forth in Section 3 of the
Distribution Agreement, and (ii) to tender shares directly to the
Fund or its agent for redemption subject to the applicable terms
and conditions set forth in Section 4 of the Distribution
Agreement and the Prospectus.
5. You shall not withhold placing orders received from your
customers so as to profit yourself as a result of such
withholding: e.g., by a change in the "net asset value" from that
used in determining the offering price to your customers.
6. No person is authorized to make any representations
concerning shares except those contained in the Prospectus and in
such printed information subsequently issued by us or the Fund as
information supplemental to such Prospectus. In purchasing
shares through us you shall rely solely on the representations
contained in the Prospectus and supplemental information above
mentioned. Any printed information which we furnish you other
than the Fund's Prospectus, periodic reports and proxy
solicitation material are our sole responsibility and not the
responsibility of the Fund, and you agree that the Fund shall
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have no liability or responsibility to you in these respects
unless expressly assumed in connection therewith.
7. You agree to deliver to any purchasers whose shares you
are holding as record holder copies of the Prospectus, as amended
from time to time, and the annual and interim reports and proxy
solicitation materials relating to the Fund. You further agree
to make reasonable efforts to endeavor to obtain proxies from
such purchasers whose shares you are holding as record holder.
Additional copies of the Prospectus, annual or interim reports
and proxy solicitation materials of the Fund will be supplied to
you in reasonable quantities upon request.
8. We reserve the right in our discretion, without notice,
to suspend sales or withdraw the offering of shares entirely.
Each party hereto has the right to cancel this agreement upon
notice to the other party.
9. We shall have full authority to take such action as we
may deem advisable in respect of all matters pertaining to the
continuous offering. We shall be under no liability to you
except for lack of good faith and for obligations expressly
assumed by us herein. Nothing contained in this paragraph is
intended to operate as, and the provisions of this paragraph
shall not in any way whatsoever constitute, a waiver by you of
compliance with any provisions of the Securities Act of 1933, as
amended, or of the rules and regulations of the Securities and
Exchange Commission issued thereunder.
10. You represent that you are a member of the National
Association of Securities Dealers, Inc. and, with respect to any
sales in the United States, we both hereby agree to abide by the
Rules of Fair Practice of such Association.
11. upon application to us, we will inform you as to the
states or other jurisdictions in which we believe the shares have
been qualified for sale under, or are exempt from the
requirements of, the respective securities laws of such states,
but we assume no responsibility or obligation as to your right to
sell shares in any jurisdiction. We will file with the
Department of State in New York a Further State Notice with
respect to the shares, if necessary.
12. We shall have full authority to act upon your-express
instructions to effect transactions in shares-through us on
behalf of your customers under the terms and conditions provided
in the Prospectus. You agree to hold us free and harmless as a
result of action taken with respect to authorized repurchases or
exchanges upon your express instructions.
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13. All communications to us should be sent to 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice to you shall be
duly given if mailed or telegraphed to you at the same address.
Please indicate your acceptance of this Agreement by signing
and returning one copy to us at our address specified above.
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By
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(Authorized Signature)
Accepted:
Firm Name:
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By:
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Address:
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Date:
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