EXHIBIT (6)(b)
XXXXXXXX CAPITAL FUNDS (DELAWARE)
DISTRIBUTION AGREEMENT
AGREEMENT, made as of the 9th day of January, 1996, between Xxxxxxxx
Capital Funds (Delaware) (the "Company") and Xxxxxxxx Fund Advisors Inc. (the
"Distributor") as follows:
1. The Trust is an open-end investment company organized as a Delaware
business trust, and consists of one or more separate investment portfolios as
may be established and designated by the Board of Trustees of the Trust from
time to time (the "Funds"). This Agreement shall pertain to such Funds as shall
be designated in Appendix A to this Agreement, as further agreed between the
Trust and the Distributor. A separate class of shares of Common Stock of the
Trust is offered to investors with respect to each Fund. The Trust engages in
the business of investing and reinvesting the assets of the Funds in the manner
and in accordance with the investment objectives and restrictions specified in
the currently effective prospectus or prospectuses and statement of additional
information (collectively, the "Prospectus") relating to the Trust and the Funds
included in the Trust's Registration Statement, as amended from time to time
(the "Registration Statement"), filed by the Trust under the Investment Company
Act of 1940 (the "1940 Act") and the Securities Act of 1933 (the "1933 Act").
Copies of the documents referred to in the preceding sentence have been
furnished to the Distributor. Any amendment to those documents shall be
furnished to the Distributor promptly. The Trust has entered into an investment
advisory agreement or agreements (the "Advisory Agreement") with respect to the
Funds with such advisers as are designated therein (each such adviser is
hereinafter referred to as an "Adviser") and an Administrative Services
Agreement (the "Administrative Services Agreement") with the Distributor with
respect to certain of the Funds. The Trust has also adopted a Distribution Plan
(the "Plan") pursuant to Rule 12b-1 under the 1940 Act with respect to certain
of the Funds.
2. As the Trust's agent, the Distributor shall be the exclusive
distributor (except as provided in paragraph 5) for the unsold portion of shares
of classes pertaining to the designated Funds (the "Shares") which may from time
to time be registered under the 0000 Xxx.
3. The Trust shall sell though the Distributor, as the Trust's agent,
shares to the eligible investors as described in the Prospectus. All orders
through the Distributor shall be subject to acceptance and confirmation by the
Trust. The Trust shall have the right, at its election, to deliver either shares
issued upon original issue or treasury shares.
4. As the Trust's agent, the Distributor may sell and distribute shares
in such manner not inconsistent with the provisions hereof and the Trust's
Prospectus as the Distributor may determine from time to time. In this
connection, the Distributor shall comply with all laws, rules and regulations
applicable to it, including, without limiting the generality of the foregoing,
all
applicable rules or regulations under the 1940 Act of 1934 (the "1940 Act")
in which it is a member.
5. The Trust reserves the right to sell shares to purchasers to the
extent that it or the transfer agent for its shares receives purchase requests
therefor.
6. All shares offered for sale and sold by the Distributor shall be
offered for sale and sold by the Distributor to designated investors at the
price per share (the "offering price") specified and determined as provided in
the Prospectus. The Trust shall determine and promptly furnish to the
Distributor a statement of the offering price at least once on each day on which
the New York Stock Exchange is open for trading and on each additional day on
which each Fund's net asset value might be materially affected by changes in the
value of its portfolio securities. Each offering price shall become effective at
the time and shall remain in effect during the period specified in the
statement. Each such statement shall show the basis of its computation.
7. The Trust shall furnish the Distributor from time to time, for use
in connection with the sale of shares, such written information with respect to
the Trust as the Distributor may reasonably request. In each case such written
information shall be signed by an authorized officer of the Trust. The Trust
represents and warrants that such information, when signed by one of its
officers, shall be true and correct. The Trust also shall furnish to the
Distributor copies of its reports to its shareholders and such additional
information regarding the Trust's financial condition as the Distributor may
reasonably request from time to time.
8. The Registration Statement and the Prospectus have been or will be,
as the case may be, prepared in conformity with the 1933 Act, the 1940 Act and
the rules and regulations of the Securities and Exchange Commission (the "SEC").
The Trust represents and warrants to the Distributor that the Registration
Statement and the Prospectus contain or will contain all statements required to
be stated therein in accordance with the 1933 Act, the 1940 Act and the rules
and regulations thereunder, that all statements of fact contained or to be
contained therein are or will be true and correct at the time indicated or the
effective date, as the case may be, and that neither the Registrations Statement
nor the Prospectus, when it shall become effective under the 1933 Act or be
authorized for use, shall include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading to a purchaser of shares. The Trust shall from
time to time file such amendment or amendments to the Registration Statement and
the Prospectus as, in the light of future developments, shall, in the opinion of
the Trust's counsel, be necessary in order to have the Registration Statement
and the Prospectus at all times contain all material facts required to be stated
therein or necessary to make the statements therein not misleading to a
purchaser of shares. If the Trust shall not file such an amendment or amendments
within 15 days after receipt by the Trust of a written request from the
Distributor to do so, the Distributor may, at its option, terminate this
Agreement immediately. The Trust shall not file any amendment to the
Registration Statement or the Prospectus without giving the Distributor
reasonable notice thereof in advance, provided that nothing in this Agreement
shall in any way limit the Trust's right to file at any time such amendments to
the Registration Statement or the Prospectus as the Trust may deem advisable.
The Trust represents and warrants to the Distributor that any amendment to the
Registration Statement or the Prospectus filed hereafter by the Trust will, when
it becomes effective under the 1933 Act, contain all statements required to be
stated therein in accordance with the 1933 Act, the 1940 Act and the rules and
regulations thereunder, that all statements of fact contained therein will, when
the same shall become effective, be true and correct, and that no such
amendment, when it becomes effective, will include an untrue statement of a
material fact or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading to a
purchaser of shares.
9. The Trust shall prepare and furnish to the Distributor from time to
time such number of copies of the most recent form of the Prospectus filed with
the SEC as the Distributor may reasonably request. The Trust authorizes the
Distributor to use the Prospectus, in the form furnished to the Distributor from
time to time, in connection with the sale of shares. The Trust shall indemnify,
defend and hold harmless the Distributor, its officers and trustees and any
person who controls the Distributor within the meaning of the 1933 Act, from and
against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Distributor, its
officers and trustees or any such controlling person may incur under the 1933
Act, the 1940 Act, common law or otherwise, arising out of or based upon any
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or arising out of or based upon any alleged omission
to state a material fact required to be stated in either or necessary to make
the statements in either not misleading. This contract shall not be construed to
protect the Distributor against any liability to the Trust or its shareholders
to which the Distributor would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement and shall not be construed to provide indemnification to the extent
that indemnification under the circumstances would be prohibited by the 1933 Act
or the 1940 Act. This indemnity agreement is expressly conditioned upon the
Trust being notified of any action brought against the Distributor, its officers
or Trustees or any such controlling person, which notification shall be given by
letter, telex or facsimile addressed to the Trust at its principal office in
Portland, Maine, and sent to the Trust by the person against whom such actions
is brought within 10 days after the summons or other first legal process shall
have been served. The failure to notify the Trust of any such action shall not
relieve the Trust from any liability which it may have to the person against
whom such action is brought by reason of any such alleged untrue statement or
omission otherwise than on account of the indemnity agreement contained in this
paragraph 9. The Trust shall be entitled to assume the defense of any suit
brought to enforce any such claim, demand or liability, but, in such case, the
defense shall be conducted by counsel chosen by the Trust and approved by the
Distributor. If the Trust elects to assume the defense of any such suit and
retain counsel approved by the Distributor, the defendant or defendants in such
suit shall bear the fees and expenses of any additional counsel retained by any
of them, but in case the Trust does not elect to assume the defense of any such
suit, or in case the Distributor does not approve of counsel chosen by the
Trust, the Trust will reimburse the Distributor, its officers and trustees or
the controlling person or persons named as defendant or defendants in such suit,
for the fees and expenses of any counsel retained by the Distributor or them. In
addition, the Distributor shall have the right to employ counsel to represent
it, its officers and trustees and any such controlling person who may be subject
to liability arising out
of any claim in respect of which indemnity may be sought by the Distributor
against the Trust hereunder if is the reasonable judgment of the Distributor it
is advisable for the Distributor, its officers and trustees or such controlling
person to be represented by separate counsel, in which event the fees and
expenses of such separate counsel shall be borne by the Trust. This indemnity
agreement and the Trust's representations and warranties in this Agreement shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Distributor, its officers and trustees or any such
controlling person. This indemnity agreement shall inure exclusively to the
benefit of the Distributor and its successors, the Distributor's officers and
trustees and their respective estates and any such controlling persons and their
successors and estates. The Trust shall promptly notify the Distributor of the
commencement of any litigation or proceedings against it in connection with the
issue and sale of any shares.
10. The Distributor agrees to indemnify, defend and hold harmless the
Trust, its officers and trustees and any person who controls the Trust within
the meaning of the 1033 Act, from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) which the Trust, its officers or trustees or any such controlling
person, may incur under the 1933 Act, the 1940 Act, common law or otherwise, but
only to the extent that such liability or expense incurred by the Trust, its
officers or trustees or such controlling person resulting from such claims or
demands shall arise out of or be based upon (a) any alleged untrue statement of
a material fact contained in information furnished in writing by the Distributor
to the Trust specifically for use in the Registration Statement or the
Prospectus or shall arise out of or be based upon any alleged omission to state
a material fact in connection with such information required to be stated in the
Registration Statement or the Prospectus or necessary to make such information
not misleading and (b) any alleged act or omission on the Distributor's part as
the Trust's agent that has not been expressly authorized by the Trust in
writing. This indemnity agreement is expressly conditioned upon the Distributor
being notified of any action brought against the Trust, its officers or trustees
or any such controlling person, which notification shall be given by letter,
telex or facsimile, addressed to the Distributor at its principal office in New
York, New York, and sent to the Distributor by the person against whom such
action is brought, within 10 days after the summons or other first legal process
shall have been served. The failure to notify the Distributor of any such action
shall not relieve the distributor from any liability which it may have to the
Trust, its officers or trustees or such controlling person by reason of any such
alleged misstatement or omission on the Distributor's part otherwise than on
account of the indemnity agreement contained in this paragraph 10. The
Distributor shall have a right to control the defense of such action with
counsel of its own choosing and approved by the Trust if such action is based
solely upon such alleged misstatement or omission on the Distributor's part, and
in any other event the Trust, its officers and trustees or such controlling
person shall each have the right to participate in the defense or preparation of
the defense of any such action at their own expense.
11. No shares shall be sold through the Distributor or by the Trust
under this Agreement and no orders for the purchase of shares shall be confirmed
or accepted by the Trust if and so long as the effectiveness of the Registration
Statement shall be suspended under any of the provisions of the 1933 Act.
Nothing contained in this paragraph 11 shall in any way restrict,
limit or have any application to or bearing upon the Trust's obligation to
redeem shares from any shareholder in accordance with the provisions of its
Trust Instrument and the 1940 Act. The Trust will use its best efforts at all
times to have shares effectively registered under the 1933 Act.
12. The Trust agrees to advise the Distributor immediately:
(a) of any request by the SEC for amendments to the
Registration Statement or the Prospectus or for additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
Prospectus under the 1933 Act or the initiation of any proceedings for
that purpose;
(c) of the happening of any material event which makes untrue
any statement made in the Registration Statement or the Prospectus or
which requires the making of a change in either thereof in order to
make the statements therein not misleading; and
(d) of all action of the SEC with respect to any amendments to
the Registration Statement or the Prospectus which may from time to
time be filed with the SEC under the 1933 Act or the 1940 Act.
13. Insofar as they concern the Trust, the Trust shall comply with all
applicable laws, rules and regulations, including, without limiting the
generality of the foregoing, all rules or regulations made or adopted pursuant
to the 1933 Act, the 1940 Act or by any securities association registered under
the 1934 Act applicable to it.
14. The Distributor may, if it desires and at its own cost and expense,
appoint or employ agents to assist it in carrying out its obligations under this
Agreement, but no such appointment or employment shall relieve the Distributor
of any of its responsibilities or obligations to the Trust under this Agreement.
15. (a) The Distributor shall from time to time employ or associate
with it such persons as it believes necessary to assist it in carrying
out its obligations under this Agreement. The compensation of such
persons shall be paid by the Distributor.
(b) The Distributor shall pay all expenses incurred in
connection with its qualification as a dealer or broker under Federal
or state law.
(c) The Trust shall pay all expenses incurred in connection
with (i) the preparation, printing and distribution to shareholders of
the Prospectus and reports and other communications to shareholder,
(ii) future registrations of shares under the 1933 Act and the 0000
Xxx, (xxx) amendments of the Registration Statement subsequent to the
initial public offering of shares, (iv) qualification of shares for
sale in jurisdictions designated by the Distributor, (v) qualification
of the Trust as a dealer or broker under the laws of jurisdictions
designated by Distributor, (vi) qualification of the Trust as a foreign
corporation authorized to do business in any jurisdiction if the
Distributor determines that such qualification is necessary or
desirable for the purpose of facilitating sales of shares, (vii)
maintaining facilities for the issue and transfer of shares, and (viii)
supplying information, prices and other data to be furnished by the
Trust under this Agreement.
(d) The Trust shall pay any original issue taxes or transfer
taxes applicable to the sale or delivery of shares or certificates
therefor.
(e) The Trust shall execute all documents and furnish any
information which may be reasonably necessary in connection with the
qualification of shares of the Trust for sale in jurisdictions
designated by the Distributor.
16. Except to the extent set forth in paragraph 15, the Distributor
will render all service hereunder without compensation or reimbursement,
provided, however, that notwithstanding anything set forth in paragraphs 14 and
15 and this paragraph 16 to the contrary, the Distributor shall be entitled to
seek reimbursement from designated Funds for any costs or expenses incurred by
it in connection with its services rendered in distributing and marketing shares
of designated Funds to the extent provided for in the Plan, subject in all cases
to the limitations on payments and reimbursements pertaining to each designated
Fund set forth therein.
17. This Agreement shall become effective with respect to the Trust and
each Fund on January 9, 1996, and shall continue in effect until such time as
there shall remain no unsold balance of shares registered under the 1933 Act,
PROVIDED that this Agreement shall continue in effect for a period of more than
one year only so long as such continuance is specifically approved at least
annually by (a) the Trust's Board of Trustees or by the vote of a majority of
such Fund's outstanding voting securities (as defined in the 1940 Act), and (b)
by the vote, cast in person at a meeting called for the purpose, of a majority
of the Trust's Trustees who are not parties to this Agreement or "interested
persons" (as defined in the 0000 Xxx) of any such party. This Agreement shall
terminate automatically in the event of its assignment (as defined in the 1940
Act). This Agreement may, in any event, be terminated at any time, without the
payment of any penalty, by the Trust upon 60 days' written notice to the
Distributor and by the Distributor upon 60 days' written notice to the Trust.
18. Except to the extent necessary to perform the Distributor's
obligations under this Agreement, nothing herein shall be deemed to limit or
restrict the right of the Distributor, or any affiliate of the Distributor, or
any employee of the Distributor to engage in any other business or to devote
time and attention to the management or other aspects of any other business,
whether of a similar or dissimilar nature, or to render services of any kind to
any other corporation, firm, individual or association.
19. This Agreement shall be construed and its provisions interpreted,
in accordance with the laws of the state of New York.
If the foregoing correctly sets forth the agreement between the Trust
and the Distributor, please so indicate by signing and returning to the Trust
the enclosed copy hereof.
XXXXXXXX CAPITAL FUNDS (DELAWARE)
By /S/ XXXXX X. LUCKYN-XXXXXX
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Title:
XXXXXXXX FUND ADVISORS INC.
By /S/ XXXXXXXXX XXXXX
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Title:
XXXXXXXX CAPITAL FUNDS (DELAWARE)
DISTRIBUTION AGREEMENT
APPENDIX A
FUNDS OF THE TRUST
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FUND
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AS OF MARCH 15, 1996
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Xxxxxxxx Emerging Markets Fund Institutional Portfolio
Xxxxxxxx International Fund
Xxxxxxxx Latin American Fund
Xxxxxxxx Global Asset Allocation Fund
Xxxxxxxx U.S. Smaller Companies Fund
Xxxxxxxx International Smaller Companies Fund
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AS OF NOVEMBER 26, 1996
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Xxxxxxxx Emerging Markets Fund
Xxxxxxxx European Growth Fund
Xxxxxxxx Asia Fund
Xxxxxxxx Japan Fund
Xxxxxxxx United Kingdom Fund
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AS OF MARCH 5, 1997
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Xxxxxxxx Cash Reserves Fund
Xxxxxxxx International Bond Fund
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AS OF JUNE 4, 1997
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Xxxxxxxx Micro Cap Fund
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