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EXHIBIT 6
PLACEMENT AGENT AGREEMENT
AGREEMENT made as of January 1, 1997, between XXXXXXX XXXXX INDEX
TRUST, a Delaware business trust (the "Trust"), on behalf of its series listed
on Appendix A hereto (the "Series"), and XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.,
a Delaware corporation (the "Placement Agent"). The obligations of each Series
hereunder shall be limited to the assets of that Series, shall be separate from
the obligations of each other Series, and no Series shall be liable for the
obligations of any other Series.
W I T N E S S E T H :
WHEREAS, the Trust has filed a registration statement (the
"Registration Statement") pursuant to Section 8(b) of the Investment Company
Act of 1940, as amended (the "Investment Company Act"); and
WHEREAS, the Trustees (the "Trustees") are authorized to establish
separate series relating to separate portfolios of securities, each of which
may offer beneficial interests in the Series ("Interests"); and
WHEREAS, the Trustees have established and designated the Series as
series of the Trust; and
WHEREAS, the Trust and the Placement Agent wish to enter into an
agreement with each other with respect to the distribution of Interests in the
Series.
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Placement Agent; Private Offering.
(a) The Trust hereby appoints the Placement Agent as placement
agent in connection with the distribution of the Interests.
(b) The Placement Agent understands that: (i) The Interests are
not being registered under the Securities Act of 1933, as amended (the
"Securities Act"); (ii) Such Interests are to be issued
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solely in private placement transactions that do not involve any "public
offering" within the meaning of Section 4(2) of the Securities Act; (iii)
Investments in the Series may be made only by a limited number of institutional
investors, including investment companies, common or commingled trust funds,
group trusts and certain other "accredited investors" within the meaning of
Regulation D under the Securities Act; and (iv) The Registration Statement is
not intended to constitute an offer to sell, or the solicitation of an offer to
buy, any beneficial interests in the Series.
(c) In carrying out its duties hereunder, the Placement Agent
agrees that it will act in a manner consistent with the foregoing and, unless
otherwise instructed by the Trust in writing, will not take any actions which
would cause the Trust to make a "public offering" within the meaning of Section
4(2) of the Securities Act.
Section 2. Exclusive Nature of Duties. The Placement Agent shall be
the exclusive representative of the Series to act as placement agent in respect
of the distribution of the Interests, except that:
(a) The Trust may, with respect to any Series, upon written notice to
the Placement Agent, from time to time designate other placement agents with
respect to areas other than the United States as to which the Placement Agent
may have expressly waived in writing its right to act as such. If such
designation is deemed exclusive, the right of the Placement Agent under this
Agreement in respect of such areas so designated shall terminate, but this
Agreement shall remain otherwise in full effect until terminated in accordance
with the other provisions hereof.
(b) The exclusive right granted to the Placement Agent hereunder
shall not apply to Interests issued in connection with the merger or
consolidation of any other investment company or personal
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holding company with a Series or the acquisition by purchase or otherwise of
all (or substantially all) the assets or the outstanding shares of any such
company by a Series.
(c) Such exclusive right also shall not apply to Interests issued by
a Series pursuant to reinvestment of dividends or capital gains distributions.
(d) Such exclusive right also shall not apply to Interests issued by
a Series pursuant to any conversion, exchange or reinstatement privilege
afforded redeeming shareholders or to any other Interests as shall be agreed
between the Trust and the Placement Agent from time to time.
Section 3. Duties of the Trust.
(a) The Trust shall furnish to the Placement Agent copies of all
information, financial statements and other papers which the Placement Agent
may reasonably request for use in connection with its duties hereunder, and
this shall include, upon request by the Placement Agent, one certified copy of
all financial statements prepared for the Trust by independent public
accountants.
(b) Consistent with Section 1 hereof, the Trust shall use its best
efforts to qualify and maintain the qualification of the Interests for sale
under the securities laws of such jurisdictions as the Placement Agent and the
Trust may approve. Any such qualification may be withheld, terminated or
withdrawn by the Trust at any time in its discretion. The expense of
qualification and maintenance of qualification shall be borne by the Trust. The
Placement Agent shall furnish such information and other material relating to
its affairs and activities as may be required by the Trust in connection with
such qualification.
(c) The Trust will furnish, in reasonable quantities upon request by
the Placement Agent, copies of annual and interim reports of the Series.
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Section 4. Duties of the Placement Agent.
(a) The Placement Agent shall devote reasonable time and effort to
its duties hereunder. The services of the Placement Agent to the Trust
hereunder are not to be deemed exclusive and nothing herein contained shall
prevent the Placement Agent from entering into like arrangements with other
investment companies so long as the performance of its obligations hereunder is
not impaired thereby.
(b) In performing its duties hereunder, the Placement Agent shall use
its best efforts in all respects duly to conform with the requirements of all
applicable laws relating to the sale of securities. Neither the Placement
Agent nor any other person is authorized by Trust to give any information or to
make any representations, other than those contained in the Trust's
registration statement or any supplemental literature specifically approved by
the Trust.
Section 5. Payment of Expenses.
(a) The Trust shall bear all costs and expenses of the Series,
including fees and disbursements of its counsel and auditors, in connection
with the preparation and filing of any required registration statements under
the Investment Company Act, and all amendments and supplements thereto, and
preparing and mailing annual and interim reports and proxy materials to
shareholders (including but not limited to the expense of setting in type any
such registration statements, or interim reports or proxy materials).
(b) The Trust shall bear any cost and expenses of qualification of
the Shares for sale pursuant to this Agreement and, if necessary or advisable
in connection therewith, of qualifying the Trust as a broker or dealer in such
states of the United States or other jurisdictions as shall be selected by the
Trust and the Placement Agent pursuant to Section 3 hereof and the cost and
expenses payable to
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each such state for continuing qualification therein until the Trust decides to
discontinue such qualification pursuant to Section 3 hereof.
Section 6. Indemnification.
(a) The Trust shall indemnify and hold harmless the Placement Agent
and each person, if any, who controls the Placement Agent against any loss,
liability, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage or
expense and reasonable counsel fees incurred in connection therewith), as
incurred, arising by reason of any person acquiring any Interests, which may be
based upon the Securities Act, or on any other statute or at common law, on the
ground that any registration statement or other offering materials, as from
time to time amended and supplemented, or an annual or interim report to
interestholders of the Series, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, unless such statement or
omission was made in reliance upon, and in conformity with, information
furnished to the Trust in connection therewith by or on behalf of the Placement
Agent; provided, however, that in no case (i) is the indemnity of the Trust in
favor of the Placement Agent and any such controlling persons to be deemed to
protect such Placement Agent or any such controlling persons thereof against
any liability to the Trust or its interestholders to which the Placement Agent
or any such controlling persons would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of their duties
or by reason of the reckless disregard of their obligations and duties under
this Agreement; or (ii) is the Trust to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against the
Placement Agent or any such controlling persons, unless the Placement Agent or
such controlling persons, as the case may be, shall have
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notified the Trust 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 the Placement Agent or such controlling persons (or after
the Placement Agent or such controlling persons shall have received notice of
such service on any designated agent), but failure to notify the Trust 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 Trust 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 Trust
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Placement Agent or such controlling person or
persons, defendant or defendants in the suit. In the event the Trust elects to
assume the defense of any such suit and retain such counsel, the Placement
Agent or such controlling person or persons, defendant or defendants in the
suit shall bear the fees and expenses, as incurred, of any additional counsel
retained by them, but in case the Trust does not elect to assume the defense of
any such suit, it will reimburse the Placement Agent or such controlling person
or persons, defendant or defendants in the suit, for the reasonable fees and
expenses, as incurred, of any counsel retained by them. The Trust shall
promptly notify the Placement Agent 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 of the Interests.
(b) The Placement Agent shall indemnify and hold harmless the Trust
and each of its Trustees and officers and each person, if any, who controls the
Trust against any loss, liability, claim, damage or expense, as incurred,
described in the foregoing indemnity contained in subsection (a) of this
Section, but only with respect to statements or omissions made in reliance
upon, and in conformity
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with, information furnished to the Trust in writing by or on behalf of the
Placement Agent for use in connection with the registration statement or other
offering materials, as from time to time amended, or the annual or interim
reports to shareholders. In case any action shall be brought against the Trust
or any person so indemnified, in respect of which indemnity may be sought
against the Placement Agent, the Placement Agent shall have the rights and
duties given to the Trust, and the Trust and each person so indemnified shall
have the rights and duties given to the Placement Agent by the provisions of
subsection (a) of this Section 6.
Section 7. Duration and Termination of this Agreement. This
Agreement shall become effective as of the date first above written and shall
remain in force until December 31, 1998 and thereafter, but only for so long as
such continuance is specifically approved at least annually by (i) the Trustees
or by the vote of a majority of the outstanding voting securities of the Trust
and (ii) by the vote of a majority of those Trustees 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.
This Agreement may be terminated at any time, without the payment of
any penalty, by the Trustees or by vote of a majority of the outstanding voting
securities of the Trust, or by the Placement Agent, on sixty days' written
notice to the other party. This Agreement shall automatically terminate in the
event of its assignment.
The terms "vote of a majority of the outstanding voting securities",
"assignment", "affiliated person" and "interested person", when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act.
Section 8. Amendments of this Agreement. This Agreement may be
amended by the parties only if such amendment is specifically approved by (i)
the Trustees or by the vote of a majority of
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outstanding voting securities of the Trust and (ii) by the vote of a majority
of those Trustees 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.
Section 9. Governing Law. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of New York
as at the time in effect and the applicable provisions of the Investment
Company Act. To the extent that the applicable law of the State of New York,
or any of the provisions herein, conflict with the applicable provisions of the
Investment Company Act, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
XXXXXXX XXXXX INDEX TRUST
By /s/ Xxxxx X. Xxxxx
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Title: President
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and Treasurer
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Appendix A
SERIES OF XXXXXXX XXXXX INDEX TRUST
Xxxxxxx Xxxxx S&P 500 Index Series
Xxxxxxx Xxxxx Small Cap Index Series
Xxxxxxx Xxxxx Aggregate Bond Index Series
Xxxxxxx Xxxxx International Index Series
As of January 1, 1997
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