EXHIBIT 6
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made this 31st day of
March, 1997, by and between XXXXXX INVESTMENT PORTFOLIO TRUST, a business trust
organized and existing under the laws of the State of Delaware (the "Trust"),
and XXXXXX DISTRIBUTORS, INC., a corporation organized and existing under the
laws of the State of Colorado (the "Distributor"). This Agreement applies
separately to each series of the Trust, whether now existing or hereafter
created, listed on Exhibit A hereto as it may be amended from time to time (each
a "Fund" and collectively the "Funds").
RECITALS
A. The Trust is engaged in business as an open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act").
B. The Distributor is registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended (the "1934 Act") and is registered as a
broker-dealer under the laws of each state of the United States and in each
other jurisdiction in which the Distributor engages in business to the extent
that the laws of such states and such jurisdictions require such registration,
and is a member of the National Association of Securities Dealers, Inc. (the
"NASD") (such registration and membership are referred to collectively as the
"Registrations").
C. The Trust and the Distributor desire the Distributor to act as the
principal underwriter for the public offering of the shares of beneficial
interest (the "Shares") of each Fund, whether now existing or hereafter created.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. APPOINTMENT. The Trust appoints the Distributor to act as distributor
of the Shares of each Fund.
2. TRUST TO FURNISH DOCUMENTS. The Trust shall furnish the Distributor
with copies of any registration statements, prospectuses or statements of
additional information pertaining to any Fund filed by the Trust with the
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "1933 Act"), or the 1940 Act, together with any financial
statements and exhibits included therein, and all amendments or supplements
thereto hereafter filed.
The Trust shall also furnish the Distributor with such other certificates
or documents as the Distributor may from time to time, in its discretion,
reasonably deem necessary or appropriate in order to perform its duties under
this Agreement properly.
3. SOLICITATION OF ORDERS FOR PURCHASE OF SHARES.
(a) Subject to the provisions of Sections 4 and 7 hereof, and to such
minimum purchase requirements as may from time to time be indicated in each
Fund's prospectus or statement of additional information, the Distributor is
authorized to solicit, as agent on behalf of the Trust, unconditional orders for
purchases of each Fund's Shares authorized for issuance and registered under the
1933 Act, provided that:
(1) The Distributor shall act solely as a disclosed agent on
behalf of and for the account of the Trust;
(2) The Distributor shall confirm or arrange with the transfer
agent for the Shares to confirm all purchases of the Shares. Such confirmation
shall conform to the requirements of the 1934 Act and the rules thereunder and
shall clearly state that the Distributor is acting as agent in the transaction;
(3) The Distributor shall have no liability for payment for
purchases of Shares it sells as agent, but will use reasonable efforts to
assure that each Fund receives payment for Shares purchased through the
Distributor in accordance with the requirements of applicable law and
regulations; and
(4) Each order to purchase Shares of a Fund received by the
Distributor shall be subject to acceptance by the Trust and entry of the order
on such Fund's records or shareholder accounts and is not binding until so
accepted and entered.
The purchase price of a Fund's Shares to the public shall be the
public offering price described in Section 6 hereof.
(b) The Distributor shall use reasonable efforts (but only in states
and jurisdictions in which the Distributor may lawfully do so) to solicit from
investors unconditional orders to purchase Shares of each Fund.
4. SOLICITATION OF ORDERS TO PURCHASE SHARES BY TRUST. The rights granted
to the Distributor shall be non-exclusive in that the Trust reserves the right
to otherwise solicit purchases from, and sell Shares to, investors, including
without limitation the right to issue Shares in connection with the merger or
consolidation of any other investment company, trust or personal holding company
with a Fund, or a Fund's acquisition, by the purchase or otherwise, of all or
substantially all of the assets of an investment company, trust or personal
holding company, or substantially all of the outstanding shares or interests of
any such entity.
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5. NO COMPENSATION; PAYMENT OF EXPENSES. The Distributor will not be
entitled to any compensation with respect to its services under this Agreement.
The Distributor shall pay its own expenses incurred in the discharge of its
duties hereunder, but shall not be responsible to pay any expenses of the Trust
or any Fund, including without limitation, any charges of the Trust's transfer,
recordkeeping, dividend disbursing and redemption agents, if any; any expenses
of preparation, printing and mailing of confirmations; any expenses of
preparation and printing of annual or more frequent revisions of each Fund's
prospectus and statement of additional information and of supplying copies
thereof to shareholders; any expenses of registering and maintaining the
registrations of the Trust under the 1940 Act and the sale of the Trust's Shares
under the 1933 Act; and any expenses of registering or qualifying and
maintaining registrations or qualifications of each Fund and of the Shares for
sale under securities laws of various states or other jurisdictions and of
registration or qualification of the Trust and each Fund under all laws
applicable to the Trust or its business activities.
6. PUBLIC OFFERING PRICE. All solicitations by the Distributor pursuant to
this Agreement shall be for orders to purchase Shares of a Fund at the public
offering price. The public offering price for each accepted order for a Fund's
Shares will be the net asset value per Share next determined by the Trust after
it or its authorized agent or designee accepts such order. The net asset value
per Share of the Shares shall be determined in the manner provided in the
Trust's Trust Instrument and Bylaws as now in effect or as may be amended, and
as reflected in the then current prospectus and statement of additional
information pertaining to such Fund.
7. SUSPENSION OF SALES. If and whenever the determination of a Fund's net
asset value is suspended and until such suspension is terminated, no further
orders for Shares shall be accepted by the Trust except such unconditional
orders placed with the Trust and accepted by it before the suspension. In
addition, the Trust reserves the right to suspend sales of Shares of a Fund if,
in the judgment of the Trustees, it is in the best interest of the Fund to do
so, such suspension to continue for such period as may be determined by the
Trustees; and in that event, (i) at the direction of the Trust, the Distributor
shall suspend its solicitation of orders to purchase Shares of such Fund until
otherwise instructed by the Trust and (ii) no orders to purchase Shares of such
Fund shall be accepted by the Trust while such suspension remains in effect
unless otherwise directed by its Trustees.
8. SOLICITATION MATERIALS; AUTHORIZED REPRESENTATIONS.
(a) The Trust shall make available to the Distributor, without cost to
the Trust, such number of copies of each Fund's currently effective prospectus
and statement of additional information and reports to shareholders and copies
of all other information that the Distributor may reasonably request for use in
connection with the distribution of Shares.
(b) The Distributor is not authorized by the Trust to give with
respect to any Fund any information or to make any representations in
connection with the sale of Shares other than the information and
representations contained in the Trust's registration statement, or such Fund's
prospectus or statement of additional information, as amended or supplemented
from time to time, or contained in shareholder reports or other material
pertaining
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to such Fund that may be prepared by or on behalf of the Trust or approved by
the Trust for the Distributor's use.
9. REGISTRATION OF ADDITIONAL SHARES. The Trust hereby agrees to register
either (i) an indefinite number of Shares pursuant to Rule 24f-2 under the 1940
Act, or (ii) a definite number of Shares as the Trust shall deem advisable
pursuant to Rule 24e-2 under the 1940 Act, or both. The Trust will, in
cooperation with the Distributor, take such action as may be necessary from time
to time to register or qualify the Shares of each Fund (so registered or
otherwise qualified for sale under the 1933 Act), in any state or jurisdiction
mutually agreeable to the Distributor and the Trust, and to maintain such
registration or qualification; provided, however, that nothing herein shall be
deemed to prevent the Trust from registering or qualifying the Shares without
approval of the Distributor in any state or jurisdiction it deems appropriate.
10. CONFORMITY WITH LAW. The Distributor agrees that in soliciting orders
to purchase Shares it shall duly conform in all respects with applicable federal
and state laws and with the rules and regulations of the NASD. The Distributor
will use its best efforts to maintain its Registrations in good standing during
the term of this Agreement and will promptly notify the Trust in the event of
(i) the suspension or termination of any of the Registrations, (ii) the
occurrence of any event that would disqualify the Distributor from acting as the
principal underwriter of the Trust or any of its Funds pursuant to Section 9(a)
of the 1940 Act or otherwise, or (iii) the institution of any administrative,
regulatory or judicial proceeding against the Distributor.
11. INDEPENDENT CONTRACTOR. The Distributor shall be an independent
contractor and none of its officers, directors, employees or representatives
shall be acting as an employee or other agent of the Trust in the performance of
the Distributor's duties hereunder. The Distributor shall be responsible for its
own conduct and the employment, control and conduct of its agents and employees
and for injury to such agents or employees or to others through its agents and
employees and agrees to pay or to insure that persons other than the Trust will
pay all compensation and taxes due with respect to the activities of its agents
and employees.
12. INDEMNIFICATION. The Distributor agrees to indemnify and hold harmless
the Trust and each of its Trustees, officers, employees and representatives, and
each person, if any, who controls the Trust within the meaning of Section 15 of
the 1933 Act, against any and all losses, liabilities, damages, claims and
expenses (including the reasonable costs of investigating or defending any
alleged loss, liability, damage, claim or expense and reasonable legal counsel
fees incurred in connection therewith) to which the Trust or such Trustees,
officers, employees, representatives, or controlling person or persons may
become subject under the 1933 Act, under any other statute, at common law, or
otherwise, arising out of the offer or sale of any Shares of any Fund or any
other security to any person which (i) may be based upon any wrongful act by the
Distributor or any of the Distributor's directors, officers, employees or
representatives, or (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a registration statement,
prospectus, statement of additional information, shareholder report or other
information covering Shares of such Fund filed or made public by the Trust or
any amendment thereof or supplement thereto or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein
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not misleading, if such statement or omission was made in reliance upon written
information furnished or confirmed by the Distributor to the Trust. In no case
is the Distributor's indemnity in favor of the Trust, or any person indemnified,
to be deemed to protect the Trust or such indemnified person against any
liability to which the Trust or such person would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of its
or such person's duties or by reason of its or such person's reckless disregard
of its or such person's obligations and duties under this Agreement. The Trust
or any person indemnified, as the case may be, shall notify the Distributor in
writing of the claim within a reasonable time after the summons or other first
written notification giving information of the nature of the claim is served
upon the Trust or upon such person (or after the Trust or such person shall have
received notice of such service on any designated agent); however, failure to so
notify the Distributor of any such claim shall not relieve the Distributor from
any liability hereunder unless and to the extent that its ability to defend
against such claim is prejudiced by such failure, nor from any liability that
the Distributor may have to the Trust or any person against whom such action is
brought otherwise than on account of the Distributor's indemnity agreement
contained in this section.
The Distributor shall be entitled to participate, at its own expense, in
the defense or, if Distributor so elects, to assume the defense of any action
brought to enforce any such claim but, if the Distributor elects to assume the
defense, such defense shall be conducted by legal counsel chosen by the
Distributor and reasonably satisfactory to the persons indemnified who are
defendants in the action. In the event that the Distributor elects to assume the
defense of any such action and retain such legal counsel, persons indemnified
who are defendants in the action shall bear the fees and expenses of any
additional legal counsel retained by them. If the Distributor does not elect to
assume the defense of any such action, the Distributor shall reimburse persons
indemnified who are defendants in such action for the reasonable fees of any
legal counsel retained by them in such litigation.
The Trust agrees to indemnify and hold harmless the Distributor and each of
its directors, officers, employees and representatives, and each person, if any,
who controls the Distributor within the meaning of Section 15 of the 1933 Act,
against any and all losses, liabilities, damages, claims or expenses (including
the reasonable costs of investigating or defending any alleged loss, liability,
damage, claim or expenses and reasonable legal counsel fees incurred in
connection therewith) to which the Distributor or such of its directors,
officers, employees, representatives or controlling person or persons may become
subject under the 1933 Act, under any other statute, at common law, or
otherwise, arising out of the offer or sale of any Shares of any Fund to any
person which (i) may be based upon any wrongful act by the Trust or any of its
Trustees, officers, employees or representatives other than the Distributor, or
(ii) may be based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, statement of
additional information, shareholder report or other information covering Shares
filed or made public by the Trust or any amendment thereof or supplement
thereto, 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, unless such statement or omission was made in reliance upon written
information furnished or confirmed by the Distributor to the Trust. In no case
is the Trust's indemnity in favor of the Distributor or any person indemnified
to be deemed to protect the Distributor or such
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indemnified person against any liability to which the Distributor or such
indemnified person would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of its or such person's duties
or by reason of its or such person's reckless disregard of its or such person's
obligations and duties under this Agreement. The Distributor or any person
indemnified, as the case may be, shall notify the Trust in writing of the claim
within a reasonable time after the summons or other first written notification
giving information of the nature of the claim is served upon the Distributor or
upon such person (or after the Distributor or such person shall have received
notice of such service on any designated agent); however, failure to so notify
the Trust of any such claim shall not relieve the Trust from any liability
hereunder unless and to the extent that its ability to defend against such claim
is prejudiced by such failure, nor from any liability which the Trust may have
to the Distributor or any person against whom such action is brought otherwise
than on account of the Trust's indemnity agreement contained in this section.
The Trust shall be entitled to participate, at its own expense, in the
defense or, if the Trust so elects, to assume the defense of any action brought
to enforce such claim but, if the Trust elects to assume the defense, such
defense shall be conducted by legal counsel chosen by the Trust and reasonably
satisfactory to the persons indemnified who are defendants in the action. In the
event that the Trust elects to assume the defense of any such action and retain
such legal counsel, the persons indemnified who are defendants in the action
shall bear the fees and expenses of any additional legal counsel retained by
them. If the Trust does not elect to assume the defense of any such action, the
Trust shall reimburse the persons indemnified who are defendants in such action
for the reasonable fees and expenses of any legal counsel retained by them in
such litigation.
13. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall become
effective with respect to each Fund on the Effective Date specified on Exhibit A
hereto with respect to such Fund, and unless terminated as provided herein,
shall remain in effect until the Termination Date specified on Exhibit A hereto
with respect to such Fund, and shall continue thereafter from year to year, but
only so long as such continuance is specifically approved at least annually (a)
by a vote of a majority of the Trustees who are not interested persons of the
Distributor or of the Trust, voting in person at a meeting called for the
purpose of voting on such approval, and (b) by the vote of either the Trustees
or a majority of the outstanding voting securities of the Fund. If the
continuance of this Agreement is not approved as to a Fund, this Agreement shall
nonetheless continue with respect to those Funds as to which such continuance
has been approved. This Agreement may be terminated with respect to an
individual Fund at any time, without the payment of any penalty (a) on 60 days'
written notice, by the Trustees or by a vote of a majority of the outstanding
voting securities of such Fund, or by the Distributor, or (b) immediately, on
written notice by the Trustees, in the event of termination or suspension of any
of the Registrations. This Agreement will automatically terminate in the event
of its assignment.
In interpreting the provisions of this Section 13, the terms "assignment,"
"approved at least annually," "interested persons" and "vote of a majority of
the outstanding voting securities" shall have same meanings as when used in the
1940 Act (in each case as the 1940 Act is now in effect or hereafter may be
amended) and the rules and regulations thereunder, subject to such orders,
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exemptions and interpretations as may be issued by the SEC under the 1940 Act
and as may be then in effect. Where the effect of a requirement of the federal
securities laws reflected in any provision of this Agreement is made less
restrictive by a rule, regulation, order, interpretation or other authority of
the SEC, whether of special or general application, such provisions shall be
deemed to incorporate the effect of such rule, regulation or order.
14. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by each party against which enforcement of the change, waiver,
discharge or termination is sought. If the Trust should at any time deem it
necessary or advisable in the best interests of a Fund that any amendment of
this Agreement be made in order to comply with the recommendations or
requirements of the SEC or any other governmental authority or to obtain any
advantage under state or federal or tax laws and notifies the Distributor of the
form of such amendment, and the reasons therefor, and if the Distributor should
decline to assent to such amendment, the Trust may immediately thereupon
terminate this Agreement as to that Fund.
15. LIMITATION ON PERSONAL LIABILITY. NOTICE IS HEREBY GIVEN that the Trust
is a business trust organized under the Delaware Business Trust Act pursuant to
a Certificate of Trust filed in the office of the Secretary of State of the
State of Delaware. All parties to this Agreement acknowledge and agree that the
Trust is a series trust and all debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a particular
series shall be enforceable against the assets held with respect to such series
only, and not against the assets of the Trust generally or against the assets
held with respect to any other series and further that no Trustee, officer or
holder of shares of beneficial interest of the Trust shall be personally liable
for any of the foregoing.
16. NOTIFICATION BY THE TRUST. The Trust agrees to advise the Distributor
immediately:
(a) of any request by the SEC for amendments to the Trust's
registration statement insofar as it relates to any of the Funds, the
prospectus or the statement of additional information pertaining to any Fund
or for additional information,
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Trust's registration statement insofar as
it relates to any of the Funds, the prospectus or the statement of additional
information pertaining to any Fund or the initiation of any proceeding for that
purpose,
(c) of the occurrence of any material event which makes untrue any
statement made in the Trust's registration statement insofar as it relates to
any of the Funds, the prospectus or the statement of additional information
pertaining to any Fund or which requires the making of a change in order to make
the statements therein not misleading, and
(d) of all actions of the SEC with respect to any amendments to the
Trust's registration statement insofar as it relates to any of the Funds, the
prospectus or the
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statement of additional information pertaining to any Fund which may from time
to time be filed with the SEC under the 1933 Act.
17. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of Colorado (without giving effect to the conflicts of laws
principles thereof) and the 1940 Act. To the extent that the applicable laws of
the State of Colorado conflict with the applicable provisions of the 1940 Act,
the latter shall control.
18. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
19. NOTICE. Any notice required or permitted to be given by a party to this
Agreement or to any other party hereunder shall be deemed sufficient if
delivered in person or sent by registered or certified mail, postage prepaid,
addressed by the party giving notice to each such other party at the address
provided below or to the last address furnished by each such other party to the
party giving notice.
If to the Trust: 000 Xxxxxxxxxx Xxxxxxxxx, #000
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
If to the Distributor: 000 Xxxxxxxxxx Xxxxxxxxx, #000
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXX DISTRIBUTORS, INC.
By:
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XXXXXX INVESTMENT PORTFOLIO TRUST
By:
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EXHIBIT A
FUND EFFECTIVE TERMINATION
DATE DATE
Xxxxxx Small Company March 31, 1997 April 30, 1998
Growth Fund
Xxxxxx New Generation Fund March 31, 1997 April 30, 1998
Xxxxxx Balanced Fund September 30, 1997 April 30, 1998
