DISTRIBUTION AGREEMENT
THIS AGREEMENT made as of April 10, 2001 by and between X.X. XXXXXX
FUNDS (the "Company"), a Massachusetts Business Trust, and X.X. XXXXXX FUND
DISTRIBUTORS, INC. (the "Distributor"), an indirect wholly-owned subsidiary of
THE BISYS GROUP, INC., a Delaware corporation.
W I T N E S S E T H :
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In consideration of the mutual covenants herein contained and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
FIRST:
(A) The Company on behalf of each of its series and any new series to
be created hereby appoints the Distributor as its exclusive underwriter to
promote and arrange for the sale of shares of beneficial interest of each series
of the Company in jurisdictions wherein shares may legally be offered for sale.
The Company shall notify the Distributor in writing of all states in which its
shares are qualified for offer and sale, including any limitations with respect
to offers or sales in such states. In addition, the Distributor shall receive
payment for certain distribution expenses if and to the extent provided for
pursuant to Rule 12b-1 distribution plans ("12b-1 Plans") adopted by the
Company.
(B) The Company agrees to sell and deliver its unissued shares of each
series, as from time to time shall be effectively registered under the
Securities Act of 1933 (the "1933 Act"), upon the terms hereinafter set forth.
SECOND: The Company hereby authorizes the Distributor, subject to law
and the Declaration of Trust of the Company (the "Declaration of Trust"), to
accept, for the account of each series of the Company, orders for the purchase
of shares, satisfactory to the Distributor, as of the time of receipt of such
orders or as otherwise described in the then current Prospectuses and Statements
of Additional Information of the Company.
THIRD: The price at which the shares may be sold (the "offering price")
shall be the net asset value per share plus any sales charge that may be imposed
on any class of shares. For the purpose of computing the offering price, the net
asset value per share and the sales charge, if any, shall be determined in the
manner provided in the Registration Statement of the Company, as amended from
time to time.
FOURTH: The Distributor shall use its best efforts with reasonable
promptness to promote and sell shares of each of the series of the Company. The
Distributor, with the consent of the Company, may enter into agreements with
selected broker-dealers ("Selected Dealers") for the purpose of sale and
redemption of shares of each of the series of the Company upon terms consistent
with those found in this Agreement. The Distributor shall not be obligated to
sell any certain number of shares of beneficial interest. Each series of the
Company reserves the right to issue shares in connection with any merger or
consolidation of the Company or any series with any other investment company or
any personal holding company or in connection
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with offers of exchange exempted from Section 11(a) of the Investment Company
Act of 1940 (the "Act").
FIFTH: All sales literature and advertisements used by the Distributor
in connection with sales of shares of any series of the Company shall be subject
to the approval of the Company. The Company authorizes the Distributor in
connection with the sale or arranging for the sale of the shares to give only
such information and to make only such statements or representations as are
contained in the then current Prospectuses and Statements of Additional
Information of the Company or in sales literature or advertisements approved for
any series by the Company or in such financial statements and reports as are
furnished to the Distributor pursuant to this Agreement. The Company shall not
be responsible in any way for any information, statements or representations
given or made by the Distributor or its representative or agents other than such
information, statements or representations contained in the then current
Prospectuses and Statement of Additional Information or other financial
statements of the Company or any sales literature or advertisements approved by
the Company.
SIXTH: The Distributor, as agent of the Company, and any Selected
Dealer entering into a Selected Dealer Agreement with the Distributor are
authorized, subject to the direction of the Company, to accept shares of the
series of the Company for redemption at their net asset value less any
applicable deferred sales charge, determined as prescribed in the then current
Prospectuses and Statements of Additional Information of the Company.
SEVENTH: The Company shall cause to be delivered to the Distributor all
books, records, and other documents and papers relating to the federal and state
registration of Company shares, as well as all books, records and other
documents and papers relating in any way to the distribution of Company shares.
EIGHTH: The Company shall bear:
(A) the costs and expenses incurred in connection with the registration
of the shares of each series of the Company under the 1933 Act (including any
amendment to any Registration Statement or Prospectuses or Statements of
Additional Information), and all expenses in connection with preparing, printing
and distributing the Prospectuses or Statements of Additional Information except
as set forth in Paragraph NINTH hereof;
(B) the expenses of qualification of the shares of each series of the
Company for sale in connection with such public offerings in such states as
shall be selected by the Distributor and of continuing the qualification therein
until the Distributor notifies the Company that it does not wish such
qualification continued; and
(C) all legal expenses in connection with the foregoing.
NINTH: The Distributor shall provide certain distribution services
including:
(A) review and approval of all required filings of advertising and
promotional materials with the National Association of Securities Dealers, Inc.,
which filings shall be made by X.X. Xxxxxx Advisors, Inc. or another registered
broker-dealer that is affiliated with X.X. Xxxxxx Chase & Co.;
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(B) bearing the expenses of:
(i) the printing, distribution and filing of prospectuses and
statements of additional information after such have been typeset (other than
those prospectuses and statements of additional information required by
applicable laws and regulations to be distributed to the existing shareholders
of the Company, unless paid for by any 12b-1 Plan adopted by the Company);
(ii) any promotional or sales literature which are used by the
Distributor or furnished by the Distributor to purchasers or dealers in
connection with the Distributor's activities pursuant to this Agreement (unless
paid for by any 12b-1 Plan adopted by the Company);
(iii) any advertising used by the Distributor in connection with such
public offering (unless paid for by any 12b-1 Plan adopted by the Company); and
(iv) all legal expenses in connection with the foregoing; and
(C) such other activities as the Company shall direct.
TENTH: The Distributor will accept orders for shares of a series of the
Company only to the extent of purchase orders actually received and not in
excess of such orders, and it will not avail itself of any opportunity of making
a profit by expediting or withholding orders.
ELEVENTH: The Company shall keep the Distributor fully informed with
regard to its affairs and shall furnish the Distributor with a certified copy of
all financial statements and any amendments to its Registration Statement under
the 1933 Act.
TWELFTH:
(A) The Company and the Distributor shall each comply with all
applicable provisions of the Act, the 1933 Act and the rules and regulations of
the National Association of Securities Dealers, Inc. and of all other Federal
and state laws, rules and regulations governing the issuance and sale of shares
of the series of Company.
(B) The Distributor shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Company in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the Distributor's part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement.
(C) In the absence of willful misfeasance, bad faith, gross negligence
or reckless disregard of obligations or duties hereunder on the part of the
Distributor or any of its officers, directors or employees, the Company agrees
to indemnify the Distributor and any controlling person of the Distributor
against any and all claims, demands, liabilities and expenses (including
reasonable attorney's fees) which the Distributor may incur (i) based on any act
or omission the course of, or connected with, rendering services hereunder, (ii)
based on any representations made herein by the Company; (iii) based on any act
or omission of any prior Distributor (in its capacity as Distributor or
Sub-Administrator), Administrator or Adviser to the Company, including the
registration or failure to register any shares of the Company in accordance with
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state or federal laws or resulting from or relating to any books or records
delivered to the Distributor in connection with its responsibilities under this
Agreement and occurring prior to the date of this Agreement; and (iv) under the
1933 Act, or common law or otherwise, arising out of or based upon any alleged
untrue statement of a material fact contained in any Registration Statement,
Statements of Additional Information or Prospectuses of the Company, or any
omission to state a material fact therein, the omission of which makes any
statement contained therein misleading, unless such statement or omission was
made in reliance upon, and in conformity with written information furnished to
the Company in connection therewith by or on behalf of the Distributor.
(D) The Distributor shall indemnify the Company against any and all
claims, demands, liabilities and expenses which the Company may incur under the
1933 Act, or common law or otherwise, arising out of or based upon any alleged
untrue statement of material fact contained in any Registration Statement,
Statements of Additional Information or Prospectuses of the Company, or any
omission to state a material fact therein if such statement or omission was made
in reliance upon, and in conformity with, written information furnished to the
Company in connection therewith by the Distributor.
THIRTEENTH: Nothing herein contained shall require the Company to take
any action contrary to any provision of its Declaration of Trust or to any
applicable statute or regulation.
FOURTEENTH:
(A) This Agreement shall go into effect at the close of business on
the date hereof and, unless terminated as hereinafter provided, shall continue
in effect until August 31, 2001, and from year to year thereafter, but only so
long as such continuance is specifically approved at least annually by the
Company's Board of Directors, including the vote of a majority of the Directors
who are not parties to this Agreement or "interested persons" (as defined in the
Act) of any such party cast in person at a meeting called for the purpose of
voting on such approval, or by the vote of the holders of a "majority" (as so
defined) of the outstanding voting securities of the applicable series and by
such vote of the Directors.
(B) This Agreement may be terminated by the Distributor at any time
without penalty upon giving the Board of Directors of the Company sixty (60)
days' written notice (which notice may be waived by the Company) and may be
terminated by the Board of Directors of the Company at any time without penalty
upon giving the Distributor sixty (60) days' written notice (which may be waived
by the Distributor), provided that such termination by the Board of Directors of
the Company shall be directed or approved by the vote of a majority of all of
its Directors in office at the time, including a majority of the Directors who
are not interested persons (as defined in the Act) of the Company, or by the
vote of the holders of a majority (as defined in the Act) of the voting
securities of each series of the Company at the time outstanding and entitled to
vote. This Agreement shall automatically terminate in the event of its
assignment, the term "assignment" for this purpose having the meaning defined in
Section 2(a)(4) of the Act.
FIFTEENTH: The Distributor may at any time or times in its discretion
and at its own expense appoint (and may at any time remove) an agent or agents
to carry out such of the provisions of Article NINTH herein as the Distributor
may from time to time direct; PROVIDED,
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HOWEVER, that the appointment of any agent shall not relieve the Distributor of
its responsibilities or liabilities hereunder.
SIXTEENTH: A copy of the Declaration of Trust is on file with the
Secretary of the State of Massachusetts, and notice is hereby given that this
instrument is executed on behalf of the Directors of the Company as Directors
and not individually, and that the obligations of this instrument are not
binding upon any of the Directors or shareholders individually but are binding
only upon the assets and property of the Company, and all persons dealing with
any class of shares of the Company must look solely to the Company property
belonging to such class for the enforcement of any claims against the Company.
SEVENTEENTH: Any notice under this Agreement shall be in writing,
addressed and delivered, or mailed, postage paid, to the other party at such
address as such other party may designate for the receipt of such notices. Until
further notice to the other party, it is agreed that the address of the Company
and the Distributor shall be 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
ATTEST: X.X. XXXXXX FUNDS
By:
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X.X. XXXXXX FUND DISTRIBUTORS,
INC., an indirect wholly-owned
ATTEST: subsidiary of THE BISYS GROUP, INC.
By:
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