EX-99.E
DISTRIBUTION AGREEMENT
Agreement made this 1st day of September, 1998, by and between Xxxxxx
Series Trust (the "Trust"), on behalf of its portfolio known as Xxxxxx Money
Market Fund (the "Fund"), and Xxxxxx Services LLC (the "Distributor").
W I T N E S S E T H:
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end, management investment company
and the Trust has determined to offer shares of the Fund for sale to the public
in a continuous offering; and
WHEREAS, the Trust and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of each class of shares
of the Trust representing interests in the Fund, par value $0.001 per share (the
"Shares"), to commence after the effective date of the Trust's registration
statement (the "Registration Statement") filed with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933, as amended (the
"1933 Act"); and
WHEREAS, Shares shall initially be of two classes: Institutional
Shares and Administrative Shares;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Appointment of the Distributor.
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(a) The Trust hereby appoints the Distributor to serve as a
distributor of Shares of each class and to arrange for the sale of Shares of
each class to investors on the terms set forth in this Agreement and the
Distributor hereby accepts such appointment and agrees to act in such capacity
hereunder.
(b) The Distributor shall act as agent of and as a distributor for
the Trust in connection with the sale of Shares to investors and dealers, upon
the terms described herein and in the Trust's prospectus (the "Prospectus") and
statement of additional information (the "Statement of Additional Information"
or "SAI") included in the Trust's Registration Statement filed with the SEC, as
said Prospectus and Statement of Additional Information and Registration
Statement may be amended and supplemented from time to time. No sales of Shares
shall be made by the Distributor pursuant to this Agreement unless the
Registration Statement under the 1933 Act is effective at the time of such
sales.
SECTION 2. Exclusive Nature of Duties.
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The Distributor shall be the exclusive distributor of Shares of the
Trust, except that:
(a) The Trust may, upon written notice to the Distributor, from time
to time designate other distributors of Shares with respect to areas other than
the United States as to which the Distributor may have expressly waived in
writing its right to act as such. If such designation is deemed exclusive, the
right of the Distributor under this Agreement to serve as distributor in the
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 rights granted to the Distributor to act as agent in
connection with the sale of Shares shall not apply to Shares issued by the
Trust: (i) in connection with the merger or consolidation of any other
investment company or personal holding company with the Trust or the acquisition
by purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company by the Trust; or (ii) pursuant to
reinvestment of dividends, capital gains or other distributions; or (iii)
pursuant to any reinstatement privilege afforded redeeming shareholders.
SECTION 3. Purchase of Shares from the Trust and Compensation of
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Distributor.
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(a) Upon the initial effective date of the Registration Statement,
the Trust will commence a continuous offering of Institutional Shares and
Administrative Shares. The Trust may establish additional classes of Shares in
the future and make continuous offerings of Shares of such classes. During the
continuous offering of Shares of a class, the Distributor shall offer and
solicit offers to subscribe to the purchase of such Shares from investors.
(b) The Distributor shall not be paid any compensation by the Trust
pursuant to this Agreement, however, the Trust may, on behalf of one or more
classes of Shares, pay such compensation and make other payments to the
Distributor as may be permitted by a separate Plan of Distribution and Related
Agreement adopted by the Trust pursuant to Rule 12b-1 under the 1940 Act. The
Distributor may pay such concessions or reallowances to dealers as the
Distributor, in its discretion, may from time to time determine. The Trust and
the Distributor agree, however, that no concessions or reallowances shall be
paid except in compliance with applicable laws and regulations, including the
rules of the National Association of Securities Dealers, Inc. (the "NASD").
(c) The public offering price of each class of Shares, i.e., the
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price per share at which the Distributor or Dealers (as hereinafter defined) may
sell such Shares to the public, shall be the net asset value per share of such
class of Shares. If the public offering price does not equal an even cent, the
public offering price may be adjusted to the nearest cent.
(d) The net asset value per share of each class of Shares shall be
determined by the Trust or an agent appointed by the Trust, on such days, and at
such times and in such manner, as is set forth in the Prospectus and the SAI and
in guidelines that may be established by the Board of Trustees of the Trust.
(e) The Trust shall have the right to suspend the sale of Shares of
any or all classes at times when redemption is suspended pursuant to the
conditions set forth in Section
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4(b) hereof. The Trust shall also have the right to suspend the sale of Shares
if trading on the New York Stock Exchange shall have been suspended, if a
banking moratorium shall have been declared by Federal or New York authorities,
or if there shall have been some other extraordinary event or if conditions
exist, which, in the sole judgment of the Trust, makes it impracticable or
inadvisable to sell Shares.
(f) The Trust, or any agent of the Trust designated in writing by the
Trust, shall be promptly advised of all purchase orders for Shares received by
the Distributor. Any order may be rejected by the Trust; provided, however,
that the Trust will not arbitrarily or without reasonable cause refuse to accept
orders for the purchase of Shares. The Distributor will confirm orders upon
their receipt, and the Trust (or its agent), upon receipt of payment therefor
and instructions, will deliver a statement confirming the issuance of such
Shares. The Distributor agrees to cause such instructions and any payments that
it may receive to be delivered promptly to the Trust (or its agent).
(g) Nothing contained herein shall require the Trust to offer Shares
of any class, and the Trust may terminate or suspend the continuous offering of
Shares of any class at any time in its sole discretion.
SECTION 4. Redemption of Shares.
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(a) Any of the outstanding Shares may be tendered for redemption at
any time, and the Trust agrees to redeem Shares so tendered in accordance with
their terms and the procedures and requirements set forth in the Prospectus and
the SAI. The price to be paid upon the redemption of Shares of each class shall
be equal to the net asset value per share of such class calculated in accordance
with the provisions of Section 3(d) hereof. All payments by the Trust hereunder
shall be made in the manner set forth below.
Subject to Section 4(b) hereof, the Trust shall pay the total amount
of the redemption price in accordance with applicable provisions of the
Prospectus and the SAI on or before the seventh day subsequent to receipt by the
Trust (or its agent) of a request for the redemption in proper form.
(b) Redemptions of Shares may be suspended or payment by the Trust
upon the redemption of Shares may be postponed for more than seven days at
times: (i) when the New York Stock Exchange is closed for other than customary
weekend or holiday closings; (ii) when trading on said Exchange is restricted,
or when an emergency exists as a result of which disposal by the Trust of
securities owned by it is not reasonably practicable or it is not reasonably
practicable for the Trust fairly to determine the value of its net assets, as
provided by SEC rules; or (iii) during any other period when the SEC by order so
permits.
SECTION 5. Duties of the Trust.
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(a) The Trust shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of the Shares,
including one certified copy, upon request by the
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Distributor, of all financial statements prepared by the Trust, in respect of
the Fund, and examined by independent accountants. The Trust shall, at the
expense of the Distributor, make available to the Distributor such number of
copies of the Prospectus and the SAI as the Distributor shall reasonably
request.
(b) The Trust shall take, from time to time, but subject to the
necessary approval of its shareholders, all necessary action to register Shares
under the 1933 Act, to the end that there will be available for sale such number
of the Shares as investors may reasonably be expected to purchase.
(c) The Trust shall use its best efforts to qualify and maintain the
qualification of an appropriate number of Shares for sale under the securities
laws of such states as the Distributor and the Trust may approve. Any such
qualification may be withheld, terminated or withdrawn by the Trust at any time
in its discretion. As provided in Section 8(b) hereof, the expense of
qualification and maintenance of qualification shall be borne by the Trust. The
Distributor 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.
(d) The Trust shall, at the expense of the Distributor, furnish, in
reasonable quantities upon request by the Distributor, copies of annual and
interim reports of the Trust.
(e) The Trust shall promptly notify the Distributor if the
effectiveness of the Registration Statement is suspended or lapses and shall
promptly notify of the termination or withdrawal of qualification under the laws
of any state.
SECTION 6. Duties of the Distributor.
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(a) The Distributor shall devote reasonable time and effort to effect
sales of the Shares, but shall not be obligated to sell any specific number of
Shares. The services of the Distributor hereunder are not to be deemed
exclusive and nothing herein contained shall prevent the Distributor from
entering into distribution or dealer arrangements with other investment
companies so long as the performance of its obligations hereunder is not
impaired thereby.
(b) Neither the Distributor nor any Dealer nor any other person is
authorized by the Trust to give any information or to make any representations,
other than those contained in the Registration Statement or the Prospectus and
SAI. Any advertising or sales literature relating to the Trust shall be
approved by the Distributor and the contents and use thereof shall comply with
all applicable laws and regulations, including rules and interpretations of the
NASD.
(c) The Distributor shall perform its responsibilities hereunder in
accordance with applicable laws and regulations, including rules and
interpretations of the NASD.
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SECTION 7. Selected Dealer and Agency Agreements.
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(a) The Distributor shall have the right to enter into selected
dealer agreements with securities dealers (and with such other financial
institutions as may be authorized under applicable laws and regulations to act
as agent in the sale of Shares) of its choice ("Dealers") for the offering and
sale of Shares by such Dealers and agents. The Distributor may pay such
compensation and concessions to Dealers as it determines, consistent with
applicable law and the rules of the NASD. Shares offered for sale by Dealers
shall be offered on the same terms as would apply to the Distributor as set
forth herein.
(b) Within the United States, the Distributor shall enter into
selected dealer agreements only with organizations that are either members in
good standing of the NASD or financial institutions that are not required to be
NASD members.
(c) The Distributor shall adopt and follow procedures for the
confirmation of sales of Shares to investors and Dealers, the collection of
amounts payable by investors and Dealers on such sales, and the cancellation of
unsettled transactions, as may be necessary to comply with applicable laws and
regulations and the requirements of the NASD, as they may from time to time
exist.
SECTION 8. Payment of Expenses.
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(a) The Trust shall bear all of its costs and expenses, including
fees and disbursements of its counsel and auditors, in connection with: (i) the
preparation and filing of the Registration Statement, the Prospectus and the
SAI, and supplements to the foregoing, and annual and interim reports and proxy
materials; and (ii) the expense of printing, mailing and otherwise distributing
Prospectuses and SAIs (including supplements), annual and interim reports and
proxy materials for use by shareholders. The expense of printing, mailing and
otherwise distributing such materials to persons who are not shareholders shall
be bourne by the Distributor.
(b) The Trust shall bear the cost and expenses of qualification of
Shares for sale, 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 Distributor
pursuant to Section 5(c) hereof, and the cost and expenses payable to each such
state for continuing qualification therein until the Trust decides to
discontinue such qualification pursuant to Section 5(c) hereof.
SECTION 9. Indemnification.
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(a) The Trust shall indemnify and hold harmless the Distributor and
each person, if any, who controls the Distributor 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) arising by reason of any person
acquiring any Shares, which may be based upon the 1933 Act, or on any
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other statute or at common law, on the ground that the Registration Statement,
the Prospectus or the SAI, or any annual or interim report to shareholders,
includes an untrue statement of 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 Distributor; provided, however, that in no case
(i) is the indemnity of the Trust in favor of the Distributor and any such
controlling persons to be deemed to protect such Distributor or any such
controlling persons thereof against any liability to the Trust or its
shareholders to which the Distributor or any such controlling persons would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of reckless disregard
of its 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 Distributor or any such controlling persons, unless
the Distributor or such controlling persons as the case may be, shall have
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 Distributor or such controlling persons (or after the
Distributor 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 Distributor 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 Distributor or such controlling
person or persons, defendant or defendants in the suit, shall bear the fees and
the expenses 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
Distributor or such controlling person or persons, defendant or defendants in
the suit, for the reasonable fees and expenses of any counsel retained by them.
The Trust shall promptly notify the Distributor 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 the Shares.
(b) The Distributor 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 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
with, information furnished to the Trust in writing by or on behalf of the
Distributor for use in connection with the Registration Statement, the
Prospectus or the SAI, 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 Distributor, the
Distributor 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
Distributor by the provisions of subsection (a) of this Section 9.
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SECTION 10. Duration and Termination of This Agreement
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This Agreement shall remain in effect for an initial term of two years
from the date hereof and shall continue in effect from year to year thereafter
provided such continuance is approved at least annually by the vote of a
majority of the outstanding voting securities of the Fund (as defined by the
1940 Act and the rules thereunder) or by the Board of Trustees of the Trust;
provided, that in either event such continuance is also approved annually by the
vote of a majority of the trustees of the Trust who are not parties to this
Agreement or "interested persons" (as defined in the 0000 Xxx) of any such
party, which vote must be cast in person at a meeting called for the purpose of
voting on such approval; and provided, however, that: (a) the Trust may, at any
time and without the payment of any penalty, terminate this Agreement upon sixty
days' written notice to the Distributor; (b) this Agreement shall immediately
terminate in the event of its assignment (to the extent required by the 1940 Act
and the rules thereunder) unless such automatic termination shall be prevented
by an exemptive order of the SEC; and (c) the Distributor may terminate this
Agreement without payment of any penalty on sixty days' written notice to the
Trust.
SECTION 11. Amendments of this Agreement.
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This Agreement may be amended only by the written agreement of the
parties; provided that any amendment hereof must be approved by the Board of
Trustees of the Trust, including a majority of the directors of the Trust who
are not parties to this Agreement or "interested persons" (as defined by the
0000 Xxx) of any such party, by vote cast in person at a meeting called for the
purpose of voting on such approval.
SECTION 12. Governing Law.
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This Agreement shall be construed in accordance with the laws of the
State of [Illinois] and the applicable provisions of the 1940 Act. To the
extent the applicable laws of the State of [Illinois], or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control.
SECTION 13. Liability of the Trust
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The Declaration of Trust states and notice is hereby given that this
Agreement is not executed on behalf of the Trustees of the Trust as individuals,
and that the obligations of this Agreement are not binding upon any of the
Trustees, officers or shareholders or partners of the Trust individually, but
are binding only upon the assets and property of the Trust.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement on the day and year first above written.
XXXXXX SERIES TRUST
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: President
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XXXXXX SERVICES LLC
By: /s/ X. X. Xxxxxxxx, III
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Name: X. X. Xxxxxxxx, III
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Title: Secretary
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