Exhibit (e)(8)
XXXXXXX X. XXXXXXXXX FUND, INC.
DISTRIBUTION AGREEMENT
AGREEMENT dated as of October 2, 2000 between XXXXXXX X. XXXXXXXXX FUND, INC., a
Maryland corporation (the "Fund"), on behalf of the Xxxxxxxxx Government Short
Duration Portfolio, the Xxxxxxxxx Short Duration Plus Portfolio, the Xxxxxxxxx
Intermediate Duration Portfolio, the Xxxxxxxxx Diversified Municipal Portfolio,
the Xxxxxxxxx California Municipal Portfolio, the Xxxxxxxxx New York Municipal
Portfolio, the Xxxxxxxxx Short Duration Diversified Municipal Portfolio, the
Xxxxxxxxx Short Duration California Municipal Portfolio, the Xxxxxxxxx Short
Duration New York Municipal Portfolio, the Xxxxxxxxx Tax-Managed International
Value Portfolio, the Xxxxxxxxx International Value Portfolio II, and the
Xxxxxxxxx Emerging Markets Value Portfolio above, and XXXXXXX X. XXXXXXXXX &
CO., LLC, a Delaware Limited Liability Company (the "Distributor").
In consideration of the mutual covenants contained herein, the parties agree as
follows:
1. Appointment of the Distributor. The Fund, on behalf of the
Portfolios, hereby appoints the Distributor as its exclusive agent to sell the
stock of the Portfolios (the "Shares"), on a best efforts basis, and to process
share purchase and redemption requests transmitted to its office and the
Distributor hereby accepts such appointment. All sales by the Distributor shall
be subject to acceptance by the Fund on behalf of the Portfolios. The
Distributor shall be the exclusive representative of the Fund to act as
principal underwriter and distributor, except that:
The exclusive rights granted to the Distributor to sell Shares on
behalf of the Fund shall not apply to Shares issued in connection with the
merger or consolidation of any other investment company or personal holding
company with the Fund or any Portfolio or the acquisition by purchase or
otherwise of all (or substantially all) the assets or the outstanding shares of
any such company by the Fund or any Portfolio. Such exclusive rights shall also
not apply to shares issued by the Fund or any Portfolio pursuant to reinvestment
of dividends or capital gains distributions.
2. Sale of Shares. The Distributor agrees that (i) all Shares sold by
the Distributor shall be sold at the net asset value thereof as described in
Section 3 hereof, and (ii) the Fund, on behalf of the Portfolios, shall receive
100% of such net asset value.
The Distributor may enter into agreements, in form and substance
satisfactory to the Fund on behalf of the Portfolios, with dealers selected by
the dealer, providing for l) the sale to such dealers and resale by such dealers
of Shares, or 2) the sale of Shares through such dealer acting as agent, either
to clients of the dealer or other persons, in all cases at the Shares' net asset
value. The Fund shall have the right to suspend the sale of Shares at times when
redemption is suspended pursuant to the conditions set forth in Section 4
hereof. The Fund, on behalf of the Portfolios, shall also have the right to
suspend the sale of Shares if trading on the New York Stock Exchange shall have
been suspended, if a banking moratorium shall have been declared by Federal or
New York authorities, or if there shall have been some other event, which, in
the judgment of the Fund, makes it impracticable or inadvisable to sell the
shares.
3. Net Asset Value. The Fund, on behalf of the Portfolios, agrees to
supply to the Distributor, promptly after the time or times at which the net
asset value for each Portfolio is determined, on each day on which the net asset
value of that Portfolio is determined as set forth in the then-current
Prospectus of the Fund or that Portfolio, (each such day being hereinafter
called a "business day") a statement of the net asset value per share of that
Portfolio determined in the manner set forth in the then-current Prospectus and
Statement of Additional Information of the Fund or the Portfolio. Each
determination of net asset value per Share shall take effect as of such time or
times on each business day as set forth in the then-current Prospectus of the
Fund or any Portfolio and shall prevail until the time as of which the next
determination is made.
The Distributor may reject any order for Shares. The Fund, on behalf of
the Portfolios, or any agent of the Fund designated in writing by the Fund,
shall be promptly advised of all purchase orders for Shares received by the
Distributor. Any order may be rejected by the Fund (or its agent) on behalf of
any Portfolio. The Fund (or its agent) will confirm orders upon their receipt,
will make appropriate book entries and upon receipt by the Fund (or its agent)
of payment therefor, will deliver any required certificates for such Shares
pursuant to the instructions of the Distributor. The Distributor agrees to cause
payment and such instructions to be delivered promptly to the Fund (or its
agent).
4. Repurchase or Redemption of Shares by the Fund. Any of the
outstanding Shares may be tendered for redemption at any time, and the Fund, on
behalf of the Portfolios, agrees to repurchase or redeem the Shares so tendered
on behalf of the Portfolios in accordance with its obligations as set forth in
Article V of its Articles of Incorporation, as amended from time to time, and in
accordance with the applicable provisions set forth in the then-current
Prospectus. The price to be paid to redeem or repurchase the Shares shall be
equal to the net asset value per share determined as set forth in the then
current Prospectus. All payments by the Fund on behalf of the Portfolios
hereunder shall be made in the manner set forth below.
The Fund, on behalf of the Portfolio, shall pay the total amount of the
redemption price as defined in the above paragraph pursuant to the instructions
of the Distributor on or before the seventh business day subsequent to its
having received the notice of redemption in proper form. The proceeds of any
redemption of Shares shall be paid by the Fund to or for the account of the
redeeming stockholder, in accordance with applicable provisions of the
then-current Prospectus of the Fund or any Portfolio.
Redemption of, or payment with regard to, the Shares of any Portfolio
may be suspended at times when the New York Stock Exchange is closed, when
trading on said Exchange is closed, when trading on said Exchange is restricted,
when an emergency exists as a result of which disposal by the Fund of securities
owned by it on behalf of any Portfolio is not reasonably practicable or it is
not reasonably practicable for the Fund fairly to determine the value of any
Portfolio's net assets, or during any other period when the Securities and
Exchange Commission, by order, so permits.
5. Sales Literature. The Fund, on behalf of the Portfolios, shall have
the right to review, to the extent it deems appropriate, all sales literature
and advertisements used by the Distributor in connection with sales of Shares.
No such sales literature or advertisements shall be used if the Fund objects
thereto. The Fund authorizes the Distributor, in connection with the sale or
arranging for the sale of Shares, to provide only such information and to make
only such statements or representations as are contained in the Fund's or any
Portfolio's then-current Prospectus or Statement of Additional Information,
sales literature or advertisements or in such financial and other statements as
are furnished to the Distributor pursuant to the next paragraph. Neither the
Fund nor any Portfolio shall be responsible in any way for any information
provided, or statements or representations made, by the Distributor or its
representatives or agents other than the information, statements and
representations described in the preceding sentence.
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6. Expenses. The Distributor shall pay all of its expenses arising from
the performance of its obligations under Section 1 of this Agreement. The
Distributor shall not be required to pay any other expenses of the Fund or the
Portfolios, including (a) the fees payable to Alliance Capital Management LP
("Alliance") under the Investment Management Agreement and the Shareholder
Servicing and Administrative Agreement between the Fund and Alliance; (b) the
fees and expenses of Directors who are not affiliated with the Distributor or
Alliance; (c) the fees and expenses of the Custodian and Transfer Agent,
including but not limited to fees and expenses relating to Fund accounting,
pricing of Portfolio shares, and computation of net asset value; (d) the fees
and expenses of calculating yield and/or performance of the Portfolios; (e) the
charges and expenses of legal counsel and independent accountants; (f) all taxes
and corporate fees payable to governmental agencies; (g) the fees of any trade
association of which the Portfolios or the Fund is a member; (h) reimbursement
of the Portfolios' share of the organization expenses of the Portfolios or the
Fund; (i) the fees and expenses involved in registering and maintaining
registration of the Fund and the Portfolios' shares with the Securities and
Exchange Commission ("SEC"), registering the Fund as a broker or dealer and
qualifying the shares of the Portfolios under state securities laws, including
the preparation and printing of the registration statements and prospectuses for
such purposes, allocable communications expenses with respect to investor
services, all expenses of shareholders' and Board of Directors' meetings and
preparing, printing and mailing proxies, prospectuses and reports to
shareholders; (j) brokers' commissions, dealers' xxxx-ups and any issue or
transfer taxes chargeable in connection with the Portfolios' transactions; (k)
the cost of stock certificates representing shares of the Portfolios; (1)
insurance expenses, including, but not limited to, the cost of a fidelity bond,
directors and officers insurance and errors and omissions insurance; and (m)
litigation and indemnification expenses, expenses incurred in connection with
mergers, and other extraordinary expenses not incurred in the ordinary course of
the Portfolios' business.
7. Duties of the Fund. The Fund shall maintain a currently effective
Registration Statement on the appropriate form and shall file with the SEC
("SEC") such reports and other documents as may be required under the Securities
Act of 1933, as amended, and the Investment Company Act of 1940, as amended (the
"1940 Act"), or by the rules and regulations of the SEC thereunder. The Fund
shall keep the Distributor fully informed with regard to its affairs and the
affairs of the Portfolios, shall furnish the Distributor with a certified copy
of all financial statements and a signed copy of each report prepared by its
independent auditors, and shall cooperate fully in the efforts of the
Distributor to negotiate and sell the Shares and in the performance by the
Distributor of all its duties under this Agreement.
8. Indemnification. The Fund, on behalf of the Portfolios, shall
indemnify and hold harmless the Distributor, and the directors, officers and
employees of 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 expenses and reasonable counsel fees incurred
in connection therewith) arising out of its activities as a Distributor to the
Fund or any Portfolio, provided, however, that nothing herein shall be deemed to
protect the Distributor or any director, officer, or employee thereof against
any liability to the Fund or its stockholders, to which the Distributor or any
director, officer, or employee thereof would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties under this
Agreement.
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9. Limitation of Liability. Subject to Section 36 of the Act, the
Distributor, and the directors, officers, and employees of the Distributor,
shall not be liable to the Fund or the Portfolios for any error of judgment or
mistake of law or for any loss arising out of the performance or non-performance
of duties under this Agreement, except for willful misfeasance, bad faith or
gross negligence in the performance of, or by reason of reckless disregard of,
obligations and duties under this Agreement.
10. Term of Agreement. This Agreement shall continue in effect with
respect to any Portfolio for a period of more than two years from the date
hereof only so long as such continuance is specifically approved at least
annually in conformity with the requirements of the Act; provided, however, that
this Agreement may be terminated at any time, without the payment of any
penalty, by the Fund on behalf of any or all of the Portfolios, by the Board of
Directors of the Fund or, with respect to any Portfolio, by vote of a majority
of the outstanding voting securities (as defined in the 0000 Xxx) of that
Portfolio, or by the Distributor, on not more than 60 days' nor less than 30
days' written notice to the other party.
11. Miscellaneous. This Agreement may be amended by mutual written
consent. This Agreement contains the entire agreement between the parties hereto
and supersedes all prior agreements, understandings and arrangements with
respect to the subject matter hereof. 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. The Distributor may perform the
same services to other persons or other entities, including other investment
companies.
IN WITNESS WHEREOF, the Fund, on behalf of the Portfolios, and the
Distributor have caused this Agreement to be executed by their duly authorized
officers as of the date first above written.
XXXXXXX X. XXXXXXXXX FUND, INC.
By: s/ Xxxxx Xxxxxx, President
XXXXXXX X. XXXXXXXXX & CO., LLC
By: s/Xxxx X. Xxxxx, Chief Executive Officer
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