Exhibit (e)(3)
UNDERWRITING AND DISTRIBUTION SERVICES AGREEMENT
AGREEMENT made this 13th day of November, 2000 between XXXXXXX MUTUAL FUNDS,
INC., a Maryland corporation (the "Fund"), on behalf of Xxxxxxx Gold Fund, a
series of the Fund (the "Series"), 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 principal underwriting of shares of
beneficial interest (hereinafter called "shares") of the Class A shares, Class B
shares, Class C shares, and Class I shares, as applicable, of the Series in
jurisdictions wherein shares of the Fund may legally be offered for sale;
provided, however, that the Series 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 Series; or (c) issue shares in connection with the merger or
consolidation of any other investment company with the Series or the Series'
acquisition, by purchase or otherwise, of all or substantially all of the assets
of any other investment company or all or substantially all of the outstanding
shares of any such company. 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
Series.
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.
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 Series remaining unissued as from time to time
shall be effectively registered under
the Securities Act of 1933, as amended ("Securities Act"), and the Investment
Company Act of 1940, as amended (the "1940 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 Articles of
Incorporation of the Fund, provided, however, that KDI may in its discretion
refuse to accept orders for shares from any particular applicant.
2. KDI shall sell shares of the Series to or through qualified Firms in such
manner, not inconsistent with the provisions hereof and the Fund's currently
effective registration statement, including the prospectus and statement of
additional information and any supplements or amendments thereto ("Registration
Statement"), 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 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, on behalf of the Series,
for all Fund 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 the Fund's Amended
and Restated Rule 12b-1 Plan, as amended from time to time (the "Plan").
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 Series' shares, and neither KDI nor any such Firms shall
withhold the placing of purchase orders so as to make a profit thereby.
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 Fund 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 Series shares for sale (including the qualification of the Fund
or 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 Series and its shares as
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KDI may reasonably request for use in connection with the sale of shares of the
Series.
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, on
behalf of the Series, for the sale of such Fund 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 Series from the Fund only to the extent that it
shall have received purchase orders therefore. 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 Director 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 Series 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 Series for the account of
the Series, KDI will in all respects conform to the requirements of all state
and federal laws and the Conduct Rules 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 and its Directors from any damage or
expense on account of any wrongful act or failure to act by KDI or any employee,
representative or agent of KDI. KDI will observe and be bound by all the
provisions of the Articles of Incorporation of the Fund (and of any fundamental
policies adopted by the Fund pursuant to the 1940 Act, 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 on the part of KDI hereunder.
KDI agrees to indemnify and hold harmless the Fund and each of its Board members
and officers and each person, if any, who controls the Fund within the meaning
of Section 15 of the Securities Act, against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
the Fund or such Board members, officers, or controlling persons may become
subject under such Act, under any other statute, at common law or otherwise,
arising out of the acquisition of any shares by any person which (i) may be
based upon any wrongful act by KDI or any of KDI's employees or representatives,
or (ii) may be based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading if such statement or
omission was made in reliance upon information furnished to the Fund by KDI, or
(iii) may be incurred or arise by reason of KDI's acting as the Fund's agent
instead of purchasing and reselling shares as principal in distributing the
shares to the public, provided, however, that in no case (i) is KDI's indemnity
in favor of a Board member or officer or any other person deemed to protect such
Board member or officer or other person against any liability to which any such
person would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of his duties or by reason of his
reckless disregard of obligations and duties under this Agreement or (ii) is KDI
to be liable under the indemnity agreement contained in this paragraph with
respect to any
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claim made against the Fund or any person indemnified unless the Fund or such
person, as the case may be, shall have notified KDI in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claims shall have been served upon the Fund or
upon such person (or after the Fund or such person shall have received notice of
such service on any designated agent), but failure to notify KDI of any such
claim shall not relieve KDI from any liability which KDI may have to the Fund or
any person against whom such action is brought otherwise than on account of
KDI's indemnity agreement contained in this paragraph. KDI shall be entitled to
participate, at KDI's own expense, in the defense, or, if KDI so elects, to
assume the defense of any suit brought to enforce any such liability, but if KDI
elects to assume the defense, such defense shall be conducted by counsel chosen
by KDI and satisfactory to the Fund, to its officers and Board members, or to
any controlling person or persons, defendant or defendants in the suit. In the
event that KDI elects to assume the defense of any such suit and retain such
counsel, the Fund, such officers and Board members or 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 KDI does not elect to
assume the defense of any such suit, KDI will reimburse the Fund, such officers
and Board members or controlling person or persons, defendant or defendants in
such suit for the reasonable fees and expenses of any counsel retained by them.
KDI agrees to notify the Fund promptly of the commencement of any litigation or
proceedings against it in connection with the issue and sale of any shares. The
Fund shall not, without the prior written consent of KDI, effect any settlement
of any pending or threatened action, suit or proceeding in respect of which the
Fund is or could have been a party and indemnity has or could have been sought
hereunder by the Fund, unless such settlement includes an unconditional release
of KDI from all liability on claims that are the subject matter of such action,
suit or proceeding.
The Fund agrees to indemnify and hold harmless KDI and each of KDI's directors
and officers and each person, if any, who controls KDI within the meaning of
Section 15 of the Securities Act, against any and all losses, claims, damages,
liabilities or litigation (including legal and other expenses) to which KDI or
such directors, officers or controlling persons may become subject under such
Act, under any other statute, at common law or otherwise, arising out of the
acquisition of any shares by any person which (i) may be based upon any wrongful
act by the Fund or any of its employees or representatives, or (ii) may be based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading if such statement or omission was not made
in reliance upon information furnished to KDI by the Fund; provided, however,
that in no case (i) is the Fund's indemnity in favor of a director or officer or
any other person deemed to protect such director or officer or other person
against any liability to which any such person would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the performance
of his duties or by reason of his reckless disregard of 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 claims made against
KDI or any such director, officer or controlling person unless KDI or such
director, officer or controlling person, 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 KDI or upon such director, officer or controlling person (or after
KDI or such director, officer or
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controlling person 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 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 KDI, its
directors, officers, or controlling person or persons, defendant or defendants
in the suit. In the event that the Fund elects to assume the defense of any such
suit and retain such counsel, KDI, its directors, officers or 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 KDI or such
directors, officers or controlling person or persons, defendant or defendants in
the suit, for the reasonable fees and expenses of any counsel retained by them.
The Fund agrees to notify KDI promptly of the commencement of any litigation or
proceedings against it or any of its officers or directors in connection with
the issuance or sale of any shares. KDI shall not, without the prior written
consent of the Fund, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which either KDI is or could have been a party
and indemnity has or could have been sought hereunder by KDI, unless such
settlement includes an unconditional release of the Fund from all liability on
claims that are the subject matter of such action, suit or proceeding.
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 or
the Plan. The Fund will pay (or will enter into arrangements providing that
others will pay) all fees and expenses in connection with the registration of
the Fund and its shares under the United States securities laws and the
registration and qualification of shares for sale in the various jurisdictions
in which the Fund shall determine it advisable to qualify such shares for sale
(including registering the Fund as a broker or dealer or any officer of the Fund
or other person as agent or salesman of the Fund in any such jurisdictions). 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), and (b) expenses of advertising in
connection with such offering.
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.
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.
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8. This Agreement shall become effective on the date hereof and shall continue
until September 30, 2001; and shall continue from year to year thereafter only
so long as such continuance is approved in the manner required by the 1940 Act.
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 indemnity
provisions contained herein shall remain operative and in full force and effect
regardless of any termination of this Agreement. The Fund, on behalf of the
Series, 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 Directors of the Fund, (ii) a
majority of the Directors of the Fund who are not interested persons of the Fund
and who have no direct or indirect financial interest in the operation of the
Plan, this Agreement or in any other agreement related to the Plan or this
Agreement, or (iii) a majority of the outstanding voting securities of such
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, on behalf of the Series, for services hereunder with respect to a
class 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 Directors of the Fund including the
Directors who are not interested persons of the Fund and who have no direct or
indirect financial interest in the operation of the Plan, this Agreement or in
any other agreement related to the Plan or this Agreement, cast in person at a
meeting called for such purpose.
The terms "assignment", "interested person" and "vote of a majority of the
outstanding voting securities" shall have the meanings set forth in the 1940 Act
and the rules and regulations thereunder.
KDI shall receive such compensation for its distribution services as set forth
in the Plan. Termination of this Agreement shall not affect the right of KDI to
receive payments on any unpaid balance of the compensation earned prior to such
termination, as set forth in the Plan.
Notwithstanding anything in this Agreement to the contrary, KDI shall be
contractually bound hereunder by the terms of any publicly announced waiver of
or cap on the compensation received for its distribution services under the Plan
or by the terms of any written document provided to the Board of Directors of
the Fund accounting a waiver or cap, as if such waiver or cap were fully set
forth herein.
9. 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.
10. If any provision of this Agreement shall be held or made invalid by a court
decision, statute,
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rule or otherwise, the remainder shall not be thereby affected.
11. 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.
12. 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.
13. This Agreement shall be construed in accordance with applicable federal law
and with the laws of The Commonwealth of Massachusetts.
14. 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.
XXXXXXX MUTUAL FUNDS, INC. on behalf of
Xxxxxxx Gold Fund
By:/s/Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
ATTEST:
/s/Xxxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Secretary
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XXXXXX DISTRIBUTORS, INC.
By:/s/Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title: President
ATTEST:
/s/Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
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