EXHIBIT 6
THE XXXXXX TRUST
DISTRIBUTION AGREEMENT
AGREEMENT made this 31st day of December, 1992, between The Xxxxxx Trust
(the "Trust"), a business trust organized under the laws of the State of
Delaware with its principal place of business at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and Forum Financial Services, Inc. (the "Distributor"), a corporation
organized under the laws of State of Delaware with its principal place of
business at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "Act") as an open-end management investment company and may
issue its shares of beneficial interest, no par value (the "Shares") in separate
series and classes; and
WHEREAS, the Trust desires that the Distributor offer the Shares of the
Trust representing interests in each of the separate investment portfolios of
the Trust as listed on Schedule A hereto (each a "Fund" and, collectively, the
"Funds") as the Trust's principal underwriter, and Distributor is willing to act
as principal underwriter on the terms and conditions set forth in this
Agreement;
NOW THEREFORE, the Trust and Distributor agree as follows:
SECTION 1. APPOINTMENT
The Trust hereby appoints Distributor, and Distributor hereby agrees, to
act as distributor of the Shares for the period and on the terms set forth in
this Agreement. In connection therewith, the Trust has delivered to the
Distributor copies of its Trust Instrument and Bylaws, the Trust's Registration
Statement and all amendments thereto filed pursuant to the Securities Act of
1933, as amended (the "Securities Act"), or the Act (the "Registration
Statement") and the current Prospectus and Statement of Additional Information
of each Fund (collectively, as currently in effect and as amended or
supplemented, the "Prospectus") and, shall promptly furnish the Distributor with
all amendments of or supplements to the foregoing.
SECTION 2. DISTRIBUTION SERVICES
Subject to the direction and control of the Trust's Board of Trustees (the
"Board"), the Distributor shall serve as distributor of the Shares.
(a) As agent of and sole distributor for the Trust, Distributor shall
offer, and solicit offers to subscribe to, the unsold balance of Shares as shall
then be effectively registered under the Securities Act and applicable state
securities laws. All subscriptions for Shares obtained by Distributor shall be
directed to the Trust for acceptance and shall not be binding on the Trust until
accepted by it. Distributor
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shall have no authority to make binding subscriptions on behalf of the Trust.
The Trust reserves the right to sell Shares directly to investors through
subscriptions received by the Trust. Distributor's rights hereunder shall not
apply to Shares issued in connection with (a) the merger or consolidation of the
Trust or its series or classes with any other investment company or series or
class thereof, (b) the Trust's acquisition by purchase or otherwise of all or
substantially all of the assets or stock of any other investment company, or (c)
the reinvestment in Shares by the Trust's shareholders of dividends or other
distributions or any other offering by the Trust of securities to its
shareholders.
(b) Distributor shall use its best efforts to obtain subscriptions to
Shares upon the terms and conditions contained herein and in the Prospectus,
including the offering price. Distributor shall send to the Trust promptly all
subscriptions placed with Distributor. The Trust shall advise Distributor in
its capacity as distributor of the approximate net asset value per Share at any
time requested by Distributor that is a net asset value determination time as
disclosed in the Prospectus and at such other times as it shall have been
determined. The Trust shall furnish Distributor from time to time, for use in
connection with the offering of Shares, such other information with respect to
the Trust and Shares as Distributor may reasonably request. The Trust shall
supply Distributor with such copies of the Prospectus as Distributor may
reasonably request. Distributor may use its employees, agents and other persons
who need not be its employees, at its cost and expense, to assist it in carrying
out its obligations hereunder, but no such employee, agent or other person shall
be deemed to be an agent of the Trust or have any rights under this Agreement.
(c) The Trust reserves the right to suspend the offering of Shares at any
time, in the absolute discretion of the Board, and upon notice of such
suspension Distributor shall cease to offer shares of stock.
(d) The Trust and Distributor will cooperate with each other in taking
such action as may be necessary to qualify Shares for sale under the securities
laws of such states as the Trust may designate, provided, that Distributor shall
not be required to register as a broker-dealer or file a consent to service of
process in any such state. Subject to any agreement by the Trust's investment
adviser to reimburse expenses of the Trust that relate to the Funds, the Trust
shall be responsible for payment of all fees and expenses of registering Shares
under the Securities Act and of registering or qualifying Shares and the Trust's
qualification under applicable state securities laws. Distributor shall pay all
expenses relating to its broker-dealer qualification.
(e) The Trust represents that its Registration Statement and Prospectus
under the Securities Act have been or will be, as the case may be, carefully
prepared in conformity with the requirements of the Securities Act and the rules
and regulations of the Securities and Exchange Commission (the "Commission")
thereunder. The Trust represents and warrants that its Registration Statement
and Prospectus contain or will contain all statements required to be stated
therein in accordance
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with the Securities Act and the rules and regulations of the Commission
thereunder, and that all statements of fact contained or to be contained therein
are or will be true and correct at the time indicated or on the effective date
as the case may be; that the Trust's Registration Statement and Prospectus, when
they shall become effective or be authorized for use, will not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading to a
purchaser of Shares. The Trust will from time to time file such amendment or
amendments to its Registration Statement and Prospectus as, in the light of
future developments, shall, in the opinion of the Trust's counsel, be necessary
in order to have such Registration Statement and Prospectus at all times contain
all material facts required to be stated therein or necessary to make any
statements therein not misleading to a purchaser of Shares, but, if the Trust
shall not file such amendment or amendments within fifteen days after receipt of
a written request from Distributor to do so, Distributor may, at its option,
terminate this Agreement immediately. The Trust shall not file any amendment to
its Registration Statement and Prospectus without giving Distributor reasonable
notice thereof in advance; provided, however, that nothing contained in this
Agreement shall in any way limit the Trust's right to file at any time such
amendments to its Registration Statement and Prospectus, of whatever character,
as it deems advisable, such right being in all respects absolute and
unconditional. The Trust represents and warrants that any amendment to its
Registration Statement and Prospectus hereafter filed will, when it becomes
effective, contain all statements required to be stated therein in accordance
with the Securities Act and the rules and regulations of the Commission
thereunder, that all statements of fact contained therein will, when the same
shall become effective, be true and correct and that no such amendment, when it
becomes effective, will include an untrue statement of a material fact or will
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading to a purchaser of Shares.
(f) The Trust will indemnify, defend and hold Distributor, its several
officers and directors, and any person who controls Distributor within the
meaning of Section 15 of the Securities Act (collectively, the "Distributor
Indemnitees"), free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) that any Distributor Indemnitee may incur, under the Securities Act,
or under common law or otherwise, arising out of or based upon any alleged
untrue statement of a material fact contained in the Trust's Registration
Statement and Prospectus under the Securities Act or arising out of or based
upon any alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that in no event shall anything contained in this paragraph (f) be so construed
as to protect Distributor against any liability to the Trust or its security
holders to which Distributor would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of its duties, or
by reason of its reckless disregard of its obligations and duties under this
Section 2. This agreement to
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indemnify Distributor Indemnitees is expressly conditioned upon the Trust being
notified of any action brought against any Distributor Indemnitee, such
notification to be given by letter, facsimile transmission or telegram to the
Trust and referring to the person against whom such action is brought within ten
days after the summons or other first legal process shall have been served on
such person. The failure so to notify the Trust of any such action shall not
relieve the Trust from any liability which it may have to any Distributor
Indemnitee otherwise than on account of the indemnification provided for in this
paragraph (f). The Trust will be entitled to assume the defense of any suit
brought to enforce any such claim, and to retain counsel of good standing chosen
by it and approved by Distributor. In the event the Trust elects to assume the
defense of any such suit and retain counsel of good standing approved by
Distributor, the defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them. In the event the Trust does not
elect to assume the defense of any such suit, or in case Distributor does not
approve of counsel chosen by the Trust or has been advised that it may have
available defenses or claims which are not available to or conflict with those
available to the Trust, the Trust will reimburse any Distributor Indemnitee
named as defendant in such suit for the fees and expenses of any counsel
retained by any such person. The indemnification provisions contained in this
paragraph (f) and the Trust's representations and warranties in this Agreement
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Distributor Indemnitee and shall
survive the sale of any Shares made pursuant to subscriptions obtained by
Distributor. The indemnification provisions of this paragraph (f) will inure
exclusively to the benefit of the Distributor Indemnitees and their respective
successors and assigns. The Trust agrees promptly to notify Distributor of the
commencement of any litigation or proceeding against the Trust or any of its
trustees or officers in connection with the issue or sale of Shares.
(g) Distributor agrees to indemnify, defend and hold the Trust, its
several officers and directors, and any person who controls the Trust within the
meaning of Section 15 of the Securities Act (collectively, the "Trust
Indemnitees"), free and harmless from and against any and all claims, demands,
liabilities, and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any reasonable counsel fees incurred in
connection therewith) which any Trust Indemnitee may incur under the Act, or
under common law or otherwise, but only to the extent that such liability, or
expense incurred by the Trust Indemnitees resulting from such claims or demands
shall arise out of or be based upon any alleged untrue statement of a material
fact contained in information furnished in writing by Distributor in its
capacity as distributor to the Trust for use in the Trust's Registration
Statement or Prospectus under the Securities Act, or shall arise out of or be
based upon any alleged omission to state a material fact in connection with such
information required to be stated in the Registration Statement or Prospectus or
necessary to make such information not misleading. Distributor's agreement to
indemnify the Trust Indemnitees is expressly conditioned upon Distributor being
notified of any action brought against a Trust Indemnitee, such notification to
be given by letter, facsimile transmission or telegram
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addressed and referring to the person against whom such action is brought within
ten days after the summons or other first legal process shall have been served
on such person. Distributor shall have a right to control the defense of such
action, with counsel of its own choosing, satisfactory to the Trust, if such
action is based solely upon such alleged misstatement or omission on
Distributor's part, and in any other event Distributor and the Trust Indemnitees
named shall each have the right to participate in the defense or preparation of
the defense of any such action. The failure so to notify Distributor of any
such action shall not relieve Distributor from any liability which it may have
to any Trust Indemnitee otherwise than on account of the indemnification
provisions in this paragraph (g).
(h) The Trust shall advise Distributor immediately: (i) of any request by
the Commission for amendments to the Trust's Registration Statement or
Prospectus or for additional information; (ii) in the event of the issuance by
the Commission of any stop order suspending the effectiveness of the Trust's
Registration Statement or Prospectus or the initiation of any proceedings for
that purpose; (iii) of the happening of any material event which makes untrue
any statement made in the Trust's Registration Statement or Prospectus or which
requires the making of a change in either thereof in order to make the
statements therein not misleading; and (iv) of all action of the Commission with
respect to any amendments to the Trust's Registration Statement or Prospectus
which may from time to time be filed with Commission under the Act or the
Securities Act.
SECTION 3. STANDARD OF CARE
The Distributor shall give the Trust the benefit of its best judgment and
efforts in rendering its services to the Trust and shall not be liable for error
of judgment or mistake of law, or in any event whatsoever, provided that nothing
herein shall be deemed to protect, or purports to protect, the Distributor
against any liability to the Trust or to the security holders of the Trust to
which it would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of its duties hereunder, or by reason of
reckless disregard of its obligations and duties hereunder.
SECTION 4. EXPENSES; COMPENSATION
(a) Subject to any agreement by the Trust's investment adviser to
reimburse or pay expenses of the Trust, the Trust shall be responsible and
assumes the obligation for payment of all its expenses.
(b) The Distributor shall be entitled to no compensation or reimbursement
of expenses for the distribution services provided by the Distributor pursuant
to this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, the
Distributor and its affiliated persons may receive compensation or reimbursement
from the Trust with respect to (i) the provision of shareholder support or other
services, (ii) the provision of management services or (iii) service as a
Trustee or officer of the Trust.
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SECTION 5. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective on the date on which the Trust's
Registration Statement relating to the shares of the Xxxxxx Equity Income Fund,
the Xxxxxx Approved List Equity Fund and the Xxxxxx Government Securities Fund
becomes effective and shall relate to every other Fund as of the date on which
the Trust's Registration Statement relating to the shares of such Fund becomes
effective. Upon the effectiveness of this Agreement, it shall supersede all
previous agreements between the Trust and the Distributor covering the subject
matter hereof.
(b) Unless otherwise terminated pursuant to its terms, this Agreement
shall continue in effect for twelve months and, thereafter, shall continue in
effect for successive twelve-month periods, provided that such continuance is
specifically approved at least annually (i) by the Board or by a vote of a
majority of the outstanding voting securities of the Trust and (ii) by a vote of
a majority of Trustees of the Trust 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. If the continuation of this Agreement is
not approved, the Distributor may continue to render the services described
herein in the manner and to the extent permitted by the Act.
(c) This Agreement may be terminated at any time, without the payment of
any penalty, (i) by the Board or by a vote of a majority of the outstanding
voting securities of the Trust on 60 days' written notice to the Distributor or
(ii) by the Distributor on 60 days' written notice to the Trust. This Agreement
shall automatically terminate in the event of its assignment.
SECTION 6. ACTIVITIES OF DISTRIBUTOR
Except to the extent necessary to perform its obligations under this
Agreement, nothing herein shall be deemed to limit or restrict the Distributor's
right, or the right of any of its officers, directors or employees (whether or
not they are a director, officer, employee or other affiliated person of the
Trust) to engage in any other business or to devote time and attention to the
management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other corporation,
trust, firm, individual or association.
SECTION 7. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Fund shall not be
liable for any obligations of the Trust or of the Funds under this Agreement,
and the Distributor agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Trust or the
Fund to which the Distributor's rights or claims relate in settlement of such
rights or claims, and not to the Trustees of the Trust or the shareholders of
the Funds.
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SECTION 8. MISCELLANEOUS
(a) Except for Schedule A, no provision of this Agreement may be amended
or modified in any manner except by a written agreement properly authorized and
executed by both parties hereto and, if required by the Act, by a vote of a
majority of the outstanding voting securities of the Trust.
(b) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did no contain the particular part, term or provision held to be illegal or
invalid.
(c) Section headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(d) Notices, requests, instructions and communications received by the
parties at their respective principal places of business, or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given.
(e) This Agreement shall be governed by and shall be construed in
accordance with the laws of the State of New York.
(f) The terms "vote of a majority of the outstanding voting securities,"
"interested person," "affiliated person" and "assignment" shall have the
meanings ascribed thereto in the Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
THE XXXXXX TRUST
By:/s/ XXXX X. XXXXXX
Xxxx X. Xxxxxx
President
FORUM FINANCIAL SERVICES, INC.
By:/s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Vice President
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THE XXXXXX TRUST
DISTRIBUTION AGREEMENT
SCHEDULE A
FUNDS OF THE TRUST
Xxxxxx Equity Income Fund
Xxxxxx Approved List Equity Fund
Xxxxxx Government Securities Fund
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