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EXHIBIT 99.B6(a)
UNDERWRITING AND DISTRIBUTION SERVICES AGREEMENT
AGREEMENT made this 4th day of January, 1996, between XXXXXX
GLOBAL INCOME FUND, a Massachusetts business trust (the "Fund"), and
XXXXXX DISTRIBUTORS, INC., a Delaware corporation ("KDI").
In consideration of the mutual covenants hereinafter contained,
it is hereby agreed by and between the parties hereto as follows:
1. The Fund hereby appoints KDI to act as agent for the distribution
of shares of beneficial interest (hereinafter called "shares") of the
Fund in jurisdictions wherein shares of the Fund may legally be
offered for sale; provided, however, that the Fund in its absolute
discretion may (a) issue or sell shares directly to holders of shares
of the Fund upon such terms and conditions and for such
consideration, if any, as it may determine, whether in connection
with the distribution of subscription or purchase rights, the payment
or reinvestment of dividends or distributions, or otherwise; or (b)
issue or sell shares at net asset value to the shareholders of any
other investment company, for which KDI shall act as exclusive
distributor, who wish to exchange all or a portion of their
investment in shares of such other investment company for shares of
the Fund. KDI shall appoint various financial service firms ("Firms")
to provide distribution services to investors. The Firms shall
provide such office space and equipment, telephone facilities,
personnel, literature distribution, advertising and promotion as is
necessary or beneficial for providing information and distribution
services to existing and potential clients of the Firms. KDI may also
provide some of the above services for the Fund.
KDI accepts such appointment as distributor and principal
underwriter and agrees to render such services and to assume the
obligations herein set forth for the compensation herein provided.
KDI shall for all purposes herein provided be deemed to be an
independent contractor and, unless expressly provided herein or
otherwise authorized, shall have no authority to act for or represent
the Fund in any way. KDI, by separate agreement with the Fund, may
also serve the Fund in other capacities. The services of KDI to the
Fund under this Agreement are not to be deemed exclusive, and KDI
shall be free to render similar services or other services to others
so long as its services hereunder are not impaired thereby.
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In carrying out its duties and responsibilities hereunder, KDI
will, pursuant to separate written contracts, appoint various Firms
to provide advertising, promotion and other distribution services
contemplated hereunder directly to or for the benefit of existing and
potential shareholders who may be clients of such Firms. Such Firms
shall at all times be deemed to be independent contractors retained
by KDI and not the Fund.
KDI shall use its best efforts with reasonable promptness to
sell such part of the authorized shares of the Fund remaining
unissued as from time to time shall be effectively registered under
the Securities Act of 1933 ("Securities Act"), at prices determined
as hereinafter provided and on terms hereinafter set forth, all
subject to applicable federal and state laws and regulations and to
the Agreement and Declaration of Trust of the Fund.
2. KDI shall sell shares of the Fund to or through qualified Firms
in such manner, not inconsistent with the provisions hereof and the
then effective registration statement (and related prospectus) of the
Fund under the Securities Act, as KDI may determine from time to
time, provided that no Firm or other person shall be appointed or
authorized to act as agent of the Fund without the prior consent of
the Fund. In addition to sales made by it as agent of the Fund, KDI
may, in its discretion, also sell shares of the Fund as principal to
persons with whom it does not have selling group agreements.
Shares of any class of any series of the Fund offered for sale
or sold by KDI shall be so offered or sold at a price per share
determined in accordance with the then current prospectus. The price
the Fund shall receive for all shares purchased from it shall be the
net asset value used in determining the public offering price
applicable to the sale of such shares. Any excess of the sales price
over the net asset value of the shares of the Fund sold by KDI as
agent shall be retained by KDI as a commission for its services
hereunder. KDI may compensate Firms for sales of shares at the
commission levels provided in the Fund's prospectus from time to
time. KDI may pay other commissions, fees or concessions to Firms,
and may pay them to others in its discretion, in such amounts as KDI
shall determine from time to time. KDI shall be entitled to receive
and retain any applicable contingent deferred sales charge as
described in the Fund's prospectus. KDI shall also receive any
distribution services fee payable by the Fund as provided in Section
8 hereof.
KDI will require each Firm to conform to the provisions hereof
and the Registration Statement (and related prospectus) at the time
in effect under the Securities Act with respect to the public
offering price or net asset value, as applicable, of the Fund's
shares, and neither KDI nor any such Firms shall withhold the placing
of purchase orders so as to make a profit thereby.
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3. The Fund will use its best efforts to keep effectively registered
under the Securities Act for sale as herein contemplated such shares
as KDI shall reasonably request and as the Securities and Exchange
Commission shall permit to be so registered. Notwithstanding any
other provision hereof, the Fund may terminate, suspend or withdraw
the offering of shares whenever, in its sole discretion, it deems
such action to be desirable.
4. The Fund will execute any and all documents and furnish any and
all information that may be reasonably necessary in connection with
the qualification of its shares for sale (including the qualification
of the Fund as a dealer where necessary or advisable) in such states
as KDI may reasonably request (it being understood that the Fund
shall not be required without its consent to comply with any
requirement which in its opinion is unduly burdensome). The Fund will
furnish to KDI from time to time such information with respect to the
Fund and its shares as KDI may reasonably request for use in
connection with the sale of shares of the Fund.
5. KDI shall issue and deliver or shall arrange for various Firms to
issue and deliver on behalf of the Fund such confirmations of sales
made by it pursuant to this agreement as may be required. At or prior
to the time of issuance of shares, KDI will pay or cause to be paid
to the Fund the amount due the Fund for the sale of such shares.
Certificates shall be issued or shares registered on the transfer
books of the Fund in such names and denominations as KDI may specify.
6. KDI shall order shares of the Fund from the Fund only to the
extent that it shall have received purchase orders therefor. KDI will
not make, or authorize Firms or others to make (a) any short sales of
shares of the Fund; or (b) any sales of such shares to any trustee or
officer of the Fund or to any officer or director of KDI or of any
corporation or association furnishing investment advisory, managerial
or supervisory services to the Fund, or to any corporation or
association, unless such sales are made in accordance with the then
current prospectus relating to the sale of such shares. KDI, as agent
of and for the account of the Fund, may repurchase the shares of the
Fund at such prices and upon such terms and conditions as shall be
specified in the current prospectus of the Fund. In selling or
reacquiring shares of the Fund for the account of the Fund, KDI will
in all respects conform to the requirements of all state and federal
laws and the Rules of Fair Practice of the National Association of
Securities Dealers, Inc., relating to such sale or reacquisition, as
the case may be, and will indemnify and save harmless the Fund from
any damage or expense on account of any wrongful act by KDI or any
employee, representative or agent of KDI. KDI will observe and be
bound by all the provisions of the Agreement and Declaration of Trust
of the Fund (and of any fundamental policies
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adopted by the Fund pursuant to the Investment Company Act of 1940,
notice of which shall have been given to KDI) which at the time in
any way require, limit, restrict, prohibit or otherwise regulate any
action of the part of KDI hereunder.
7. The Fund shall assume and pay all charges and expenses of its
operations not specifically assumed or otherwise to be provided by
KDI under this Agreement. The Fund will pay or cause to be paid
expenses (including the fees and disbursements of its own counsel) of
any registration of the Fund and its shares under the United States
securities laws and expenses incident to the issuance of shares of
beneficial interest, such as the cost of share certificates, issue
taxes, and fees of the transfer agent. KDI will pay all expenses
(other than expenses which one or more Firms may bear pursuant to any
agreement with KDI) incident to the sale and distribution of the
shares issued or sold hereunder, including, without limiting the
generality of the foregoing, all (a) expenses of printing and
distributing any prospectus and of preparing, printing and
distributing or disseminating any other literature, advertising and
selling aids in connection with the offering of the shares for sale
(except that such expenses need not include expenses incurred by the
Fund in connection with the preparation, typesetting, printing and
distribution of any registration statement or prospectus, report or
other communication to shareholders in their capacity as such), (b)
expenses of advertising in connection with such offering and (c)
expenses (other than the Fund's auditing expenses) of qualifying or
continuing the qualification of the shares for sale and, in
connection therewith, of qualifying or continuing the qualification
of the Fund as a dealer or broker under the laws of such states as
may be designated by KDI under the conditions herein specified. No
transfer taxes, if any, which may be payable in connection with the
issue or delivery of shares sold as herein contemplated or of the
certificates for such shares shall be borne by the Fund, and KDI will
indemnify and hold harmless the Fund against liability for all such
transfer taxes.
8. For the services and facilities described herein in connection
with Class B shares and Class C shares of each series of the Fund,
the Fund will pay to KDI at the end of each calendar month a
distribution services fee computed at the annual rate of .75% of
average daily net assets attributable to the Class B shares and Class
C shares of each such series. For the month and year in which this
Agreement becomes effective or terminates, there shall be an
appropriate proration on the basis of the number of days that the
Agreement is in effect during the month and year, respectively. The
foregoing fee shall be in addition to and shall not be reduced or
offset by the amount of any contingent deferred sales charge received
by KDI under Section 2 hereof.
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The net asset value shall be calculated in accordance with the
provisions of the Fund's current prospectus. On each day when net
asset value is not calculated, the net asset value of a share of any
class of any series of the Fund shall be deemed to be the net asset
value of such a share as of the close of business on the last
previous day on which such calculation was made. The distribution
services fee for any class of a series of the Fund shall be based
upon average daily net assets of the series attributable to the class
and such fee shall be charged only to such class.
9. KDI shall prepare reports for the Board of Trustees of the Fund
on a quarterly basis in connection with the Fund's distribution plan
for Class B shares and Class C shares showing amounts paid to the
various Firms and such other information as from time to time shall
be reasonably requested by the Board of Trustees.
10. To the extent applicable, this Agreement constitutes the plan for
the Class B shares and Class C shares of each series of the Fund
pursuant to Rule 12b-1 under the Investment Company Act of 1940; and
this Agreement and plan shall be approved and renewed in accordance
with Rule 12b-1 for such Class B shares and Class C shares
separately.
This Agreement shall become effective on the date hereof and
shall continue until March 1, 1996; and shall continue from year to
year thereafter only so long as such continuance is approved in the
manner required by the Investment Company Act of 1940.
This Agreement shall automatically terminate in the event of its
assignment and may be terminated at any time without the payment of
any penalty by the Fund or by KDI on sixty (60) days written notice
to the other party. The Fund may effect termination with respect to
any class of any series of the Fund by a vote of (i) a majority of
the Board of Trustees, (ii) a majority of the trustees who are not
interested persons of the Fund and who have no direct or indirect
financial interest in this Agreement or in any agreement related to
this Agreement, or (iii) a majority of the outstanding voting
securities of the class. Without prejudice to any other remedies of
the Fund, the Fund may terminate this Agreement at any time
immediately upon KDI's failure to fulfill any of its obligations
hereunder.
This Agreement may not be amended to increase the amount to be
paid to KDI by the Fund for services hereunder with respect to a
class of any series of the Fund without the vote of a majority of the
outstanding voting securities of such class. All material amendments
to this Agreement must in any event be approved by a vote of the
Board of Trustees of the Fund including the trustees who are not
interested persons of the Fund and who have no direct or indirect
financial interest in this Agreement or in any
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agreement related to this Agreement, cast in person at a meeting
called for such purpose.
The terms "assignment", "interested" and "vote of a majority of
the outstanding voting securities" shall have the meanings set forth
in the Investment Company Act of 1940 and the rules and regulations
thereunder.
Termination of this Agreement shall not affect the right of KDI
to receive payments on any unpaid balance of the compensation
described in Section 8 earned prior to such termination.
11. KDI will not use or distribute, or authorize the use,
distribution or dissemination by Firms or others in connection with
the sale of Fund shares any statements other than those contained in
the Fund's current prospectus, except such supplemental literature or
advertising as shall be lawful under federal and state securities
laws and regulations. KDI will furnish the Fund with copies of all
such material.
12. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder shall
not be thereby affected.
13. Any notice under this Agreement shall be in writing, addressed
and delivered or mailed, postage prepaid, to the other party at such
address as such other party may designate for the receipt of such
notice.
14. All parties hereto are expressly put on notice of the Fund's
Agreement and Declaration of Trust, and all amendments thereto, all
of which are on file with the Secretary of The Commonwealth of
Massachusetts, and the limitation of shareholder and trustee
liability contained therein. This Agreement has been executed by and
on behalf of the Fund by its representatives as such representatives
and not individually, and the obligations of the Fund hereunder are
not binding upon any of the Trustees, officers or shareholders of the
Fund individually but are binding upon only the assets and property
of the Fund. With respect to any claim by KDI for recovery of any
liability of the Fund arising hereunder allocated to a particular
series or class, whether in accordance with the express terms hereof
or otherwise, KDI shall have recourse solely against the assets of
that series or class to satisfy such claim and shall have no recourse
against the assets of any other series or class for such purpose.
15. This Agreement shall be construed in accordance with applicable
federal law and (except as to Section 14 hereof which shall be
construed in accordance with the laws of The Commonwealth of
Massachusetts) the laws of the State of Illinois.
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16. This Agreement is the entire contract between the parties
relating to the subject matter hereof and supersedes all prior
agreements between the parties relating to the subject matter hereof.
IN WITNESS WHEREOF, the Fund and KDI have caused this Agreement
to be executed as of the day and year first above written.
XXXXXX GLOBAL INCOME FUND
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
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ATTEST:
/s/ Xxxxxx X. Xxxxxxx
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Title: Secretary
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XXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Title: Chief Financial Officer
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and Treasurer
ATTEST:
/s/ Xxxxx X. Xxxxxxxxxxx
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Title: Secretary
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