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EXHIBIT 99.B6(a)
UNDERWRITING AND DISTRIBUTION SERVICES AGREEMENT
AGREEMENT made this ______ day of ____________, 199_, between [NAME OF
FUND], a [Massachusetts business trust] [Maryland corporation] (the "Fund"),
and ZURICH XXXXXX DISTRIBUTORS, INC., a Delaware corporation ("ZKDI").
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 ZKDI 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 ZKDI 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. ZKDI 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. ZKDI may also provide some of the
above services for the Fund.
ZKDI 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. ZKDI 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. ZKDI, by separate agreement with the Fund, may
also serve the Fund in other capacities. The services of ZKDI to the Fund
under this Agreement are not to be deemed exclusive, and ZKDI 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, ZKDI 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 ZKDI and not the Fund.
ZKDI 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
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hereinafter set forth, all subject to applicable federal and state laws and
regulations and to the Fund's organizational documents.
2. ZKDI 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 ZKDI 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, ZKDI 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
ZKDI 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 ZKDI as
agent shall be retained by ZKDI as a commission for its services hereunder.
ZKDI may compensate Firms for sales of shares at the commission levels provided
in the Fund's prospectus from time to time. ZKDI may pay other commissions,
fees or concessions to Firms, any may pay them to others in its discretion, in
such amounts as ZKDI shall determine from time to time. ZKDI shall be entitled
to receive and retain any applicable contingent deferred sales charge as
described in the Fund's prospectus. ZKDI shall also receive any distribution
services fee payable by the Fund as provided in the Fund's Amended and Restated
12b-1 Plan, as amended from time to time (the "Plan").
ZKDI 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 ZKDI 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 ZKDI
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 ZKDI 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 ZKDI from time to time such information
with respect to the Fund and its shares as ZKDI may reasonably request for use
in connection with the sale of shares of the Fund.
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5. ZKDI 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, ZKDI 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 ZKDI may specify.
6. ZKDI shall order shares of the Fund from the Fund only to the extent
that it shall have received purchase orders therefor. ZKDI 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 Board member or officer of the Fund or to
any officer or Board member of ZKDI 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. ZKDI, 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, ZKDI 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 ZKDI or any
employee, representative or agent of ZKDI. ZKDI will observe and be bound by
all the provisions of the Fund's organizational documents (and of any
fundamental policies adopted by the Fund pursuant to the Investment Company Act
of 1940 (the "Investment Company Act"), notice of which shall have been given
to ZKDI) which at the time in any way require, limit, restrict, prohibit or
otherwise regulate any action on the part of ZKDI hereunder.
7. The Fund shall assume and pay all charges and expenses of its
operations not specifically assumed or otherwise to be provided by ZKDI under
this Agreement or the Plan. 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. ZKDI will pay
all expenses (other than expenses which one or more Firms may bear pursuant to
any agreement with ZKDI) 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 ZKDI under the conditions herein specified. No transfer taxes,
if any, which may be payable in connection with the issue or delivery of shares
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sold as herein contemplated or of the certificates for such shares shall be
borne by the Fund, and ZKDI will indemnify and hold harmless the Fund against
liability for all such transfer taxes.
8. This Agreement shall become effective on the date hereof and shall
continue until _______________; 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.
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 ZKDI 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 members 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 (ii) a majority of the outstanding voting securities of such
series or class. Without prejudice to any other remedies of the Fund, the Fund
may terminate this Agreement at any time immediately upon ZKDI's failure to
fulfill any of its obligations hereunder.
All material amendments to this Agreement must be approved by a vote of a
majority of the Board, and of the Board members 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 agreement related to the Plan,
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
Investment Company Act and the rules and regulations thereunder.
ZKDI shall receive such compensation for its distribution services as set
forth in the Plan. Termination of this Agreement shall not affect the right of
ZKDI to receive payments on any unpaid balance of the compensation earned prior
to such termination, as set forth in the Plan.
9. ZKDI 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. ZKDI 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, 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.
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12. [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 ZKDI 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, ZKDI 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.
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IN WITNESS WHEREOF, the Fund and ZKDI have caused this Agreement to be
executed as of the day and year first above written.
[NAME OF FUND]
By: ______________________________
Title: ___________________________
ATTEST:
______________________________
Title: _______________________
ZURICH XXXXXX DISTRIBUTORS, INC.
By: ______________________________
Title: ___________________________
ATTEST:
______________________________
Title: _______________________
