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EXHIBIT 6
DISTRIBUTION AGREEMENT
October 13, 1992
Xxxxx & Company
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Xxxxx Funds, Inc. (the "Fund"), a corporation
organized under the laws of the State of Maryland, has agreed that Xxxxx &
Company ("Cowen") shall be, for the period of this Agreement, the distributor of
shares of each of the series of the Fund.
1. Services as Distributor
1.1 Cowen will act as agent for the distribution of shares of the Fund covered
by the Fund's registration statement on Form N-1A (the "Registration Statement")
under the Securities Act of 1933, as amended (the "1933 Act"), and the
Investment Company Act of 1940, as amended (the "1940 Act").
1.2 Cowen agrees to use its best efforts to solicit orders for the sale of
shares of the Fund at the public offering price, as determined in accordance
with the Registration Statement, and will undertake such advertising and
promotion as it believes is reasonable in connection with such solicitation.
Cowen agrees to bear all selling expenses, including the cost of printing
prospectuses and statements of additional information and distributing them to
prospective shareholders.
1.3 All activities by Cowen as distributor of the Fund's shares shall comply
with all applicable laws, rules and regulations, including, without limitation,
all rules and regulations made or adopted by the Securities and Exchange
Commission (the "SEC") or by any securities association registered under the
Securities Exchange Act of 1934.
1.4 Cowen will provide one or more persons during normal business hours to
respond to telephone questions concerning the Fund.
1.5 Cowen acknowledges that, whenever in the judgment of the Fund's officers
such action is warranted for any reason, including, without limitation, market,
economic or political conditions, those officers may decline to accept any
orders for, or make any sales of, the Fund's shares
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until such time as those officers deem it advisable to accept such orders and to
make such sales.
1.6 Cowen will act only on its own behalf as principal should it choose to enter
into selling agreements with selected dealers or others.
2. Duties of the Fund
2.1 The Fund agrees at its own expense to execute any and all documents, to
furnish any and all information and to take any other actions that may be
reasonably necessary in connection with the qualification of the Fund's shares
for sale in those states that Cowen may designate.
2.2 The Fund shall furnish from time to time, for use in connection with the
sale of the Fund's shares, such information and reports with respect to the Fund
and its shares as Cowen may reasonably request, all of which shall be signed by
one or more of the Fund's duly authorized officers; and the Fund warrants that
the statements contained in any such reports, when so signed by one or more of
the Fund's officers, shall be true and correct. The Fund shall also furnish
Cowen upon request with: (a) annual audits of the Fund's books and accounts made
by independent public accountants regularly retained by the Fund, (b)
semi-annual unaudited financial statements pertaining to the Fund, (c) quarterly
earnings statements prepared by the Fund, (d) a monthly itemized list of the
securities in the Fund's portfolio, (e) monthly balance sheets as soon as
practicable after the end of each month and (f) from time to time such
additional information regarding the Fund's financial condition as Cowen may
reasonably request.
3. Representations and Warranties
The Fund represents to Cowen that the Registration Statement, including the
prospectuses and statement of additional information forming parts thereof, has
been prepared in conformity with the requirements of the 1933 Act, the 1940 Act
and the rules and regulations of the SEC thereunder. As used in this Agreement
the terms "Registration statement", "prospectus" and "statement of additional
information" shall mean any registration statement, prospectus and statement of
additional information filed by the Fund with the SEC and any amendments and
supplements thereto which at any time shall have been filed with the SEC. The
Fund represents and warrants to Cowen that the Registration Statement, when such
becomes effective, will include all statements required to be contained therein
in conformity with the 1933 Act, the 1940 Act and the rules and regulations of
the SEC; that all statements contained in the Registration Statement will not be
true and correct when such becomes effective; and that the Registration
Statement when such becomes effective will include an untrue
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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 the Fund's shares. Cowen may, but shall not be obligated to,
propose from time to time such amendment or amendments to the Registration
Statement and such supplement or supplements to any prospectus or statement of
additional information as, in the light of future developments, may, in the
opinion of Xxxxx'x counsel, be necessary or advisable. If the Fund shall not
propose such amendment or amendments and/or supplement or supplements within
fifteen days after receipt by the Fund of a written request from Cowen to do so,
Cowen may, at its option, terminate this Agreement. The Fund shall not file any
amendment to the Registration Statement or supplement to any prospectus or
statement of additional information without giving Cowen reasonable notice
thereof in advance; provided, however, that nothing contained in this Agreement
shall in any way limit the Fund's right to file at any time such amendments to
the Registration Statement and/or supplements to any prospectus or statement of
additional information, of whatever character, as the Fund may deem advisable,
such right being in all respects absolute and unconditional.
4. Indemnification
4.1 The Fund authorizes Cowen and any dealers with whom Cowen has entered into
dealer agreements to use any prospectus or statement of additional information
furnished by the Fund from time to time, in connection with the sale of the
Fund's shares. The Fund agrees to indemnify, defend and hold Cowen, its several
officers and directors, and any person who controls Cowen within the meaning of
Section 15 of the 1933 Act, free and harmless 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 Cowen, its officers and directors, or any such
controlling person, may incur under the 1933 Act, the 1940 Act or common law or
otherwise, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
prospectus or any statement of additional information, or arising out of or
based upon any omission or alleged omission to state a material fact required to
be stated in the Registration Statement, any prospectus or any statement of
additional information, or necessary to make the statements in any of them not
misleading; provided, however, that the Fund's agreement to indemnify Cowen, its
officers or directors, and any such controlling person shall not be deemed to
cover any claims, demands, liabilities or expenses arising out of or based upon
any statements or representations made by Cowen or its representatives or agents
other than such statements and representations as are contained in the
Registration Statement, prospectus or statement of additional
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information and in such financial and other statements as are furnished to Cowen
pursuant to paragraph 2.2 hereof; and further provided that the Fund's agreement
to indemnify Cowen and the Fund's representations and warranties hereinbefore
set forth in paragraph 3 shall not be deemed to cover any liability to the Fund
or its shareholders to which Cowen would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of Xxxxx'x reckless disregard of its obligations and duties
under this Agreement. The Fund's agreement to indemnify Cowen, its officers and
directors, and any such controlling person, as aforesaid, is expressly
conditioned upon the Fund's being notified of any action brought against Cowen,
its officers or directors, or any such controlling person, such notification to
be given by letter or by telegram addressed to the Fund at its principal office
in New York, New York and sent to the Fund by the person against whom such
action is brought, within ten days after the summons or other first legal
process shall have been served. The failure so to notify the Fund of any such
action shall not relieve the-Fund from any liability that the Fund may have to
the person against whom such action is brought by reason of any such untrue or
alleged untrue statement or omission or alleged omission otherwise than on
account of the Fund's indemnity agreement contained in this paragraph 4.1. The
Fund will be entitled to assume the defense of any suit brought to enforce any
such claim, demand or liability, but, in such case, such defense shall be
conducted by counsel of good standing chosen by the Fund and approved by Cowen.
In the event the Fund elects to assume the defense of any such suit and retain
counsel of good standing approved by Cowen, 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 Fund does not elect to assume the defense of any such
suit, or in case Cowen does not approve of counsel chosen by the Fund, the Fund
will reimburse Cowen, its officers and directors, or the controlling person or
persons named as defendant or defendants in such suit, for the fees and expenses
or any counsel retained by Cowen or them. The Fund's indemnification agreement
contained in this paragraph 4.1 and the Fund'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 Cowen, its officers and directors, or
any controlling person, and shall survive the delivery of any of the Fund's
shares. This agreement of indemnity will inure exclusively to Xxxxx'x benefit,
to the benefit of its several officers and directors, and their respective
estates, and to the benefit of the controlling persons and their successors. The
Fund agrees to notify Cowen promptly of the commencement of any litigation or
proceedings against the Fund or any of its officers or directors in connection
with the issuance and sale of any of the Fund's shares.
4.2 Cowen agrees to indemnify, defend and hold the Fund, its several
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officers and directors, and any person who controls the Fund within the meaning
of Section 15 of the 1933 Act, free and harmless from and against any and all
claims, demands, liabilities and expenses (including the costs of investigating
or defending such claims, demands or liabilities and any counsel fees incurred
in connection therewith) that the Fund, its officers or directors or any such
controlling person may incur under the 1933 Act, the 1940 Act or common law or
otherwise, but only to the extent that such liability or expense incurred by the
Fund, its officers or directors or such controlling person resulting from such
claims or demands shall arise out of or be based upon (a) any unauthorized sales
literature, advertisements, information, statements or representations or (b)
any untrue or alleged untrue statement of a material fact contained in
information furnished in writing by Cowen to the Fund and used in the answers to
any of the items of the Registration Statement, or shall arise out of or be
based upon any omission or alleged omission to state a material fact in
connection with such information furnished in writing by Cowen to the Fund and
required to be stated in such answers or necessary to make such information not
misleading. Xxxxx'x agreement to indemnify the Fund, its officers and directors,
and any such controlling person, as aforesaid, is expressly conditioned upon
Xxxxx'x being notified of any action brought against the Fund, its officers or
directors, or any such controlling person, such notification to be given by
letter or telegram addressed to Cowen at its principal office in New York, New
York and sent to Cowen by the person against whom such action is brought, within
ten days after the summons or other first legal process shall have been served.
Cowen shall have the right of first control of the defense of such action, with
counsel of its own choosing, satisfactory to the Fund, if such action is based
solely upon such alleged misstatement or omission on Xxxxx'x part, and in any
other event the Fund, its officers or directors or such controlling person shall
each have the right to participate in the defense or preparation of the defense
of any such action. The failure so to notify Cowen of any such action shall not
relieve Cowen from any liability that Cowen may have to the Fund, its officers
or directors, or to such controlling person by reason of any such untrue or
alleged untrue statement or omission or alleged omission otherwise than on
account of Xxxxx'x indemnity agreement contained in this paragraph 4.2, Cowen
agrees to notify the Fund promptly of the commencement of any litigation or
proceedings against Cowen or any of its officers or directors in connection with
the issuance and sale of any of the Fund's shares.
5. Effectiveness of Registration
None of the Fund's shares shall be offered by either Cowen or the Fund under any
of the provisions of this Agreement and no orders for the purchase or sale of
the shares hereunder shall be accepted by the Fund if
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and so long as the effectiveness of the Registration Statement or any necessary
amendments thereto shall be suspended under any of the provisions of the 1933
Act or if and so long as a current prospectus as required by Section 5(b)(2) of
the 1933 Act is not on file with the SEC; provided, however, that nothing
contained in this paragraph 5 shall in any way restrict or have an application
to or bearing upon the Fund's obligation to repurchase its shares from any
shareholder in accordance with the provisions of the Fund's prospectuses,
statement of additional information or articles of incorporation.
6. Notice to Cowen
The Fund agrees to advise Cowen immediately in writing:
(a) of any request by the SEC for amendments to the registration
statement, prospectus or statement of additional information then in effect
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 initiation of any
proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement of a material
fact made in the Registration Statement then in effect or that requires the
making of a change in the Registration Statement in order to make the statements
therein not misleading; and
(d) of all actions of the SEC with respect to any amendment to the Registration
Statement which may from time to time be filed with the SEC.
7. Term of Agreement
This Agreement shall become effective, as to any series of the Fund, at such
time as that series commences sales of its shares and shall continue for an
initial two year term and thereafter shall continue automatically, provided such
continuance is specifically approved at least annually by (a) the Fund's Board
of Directors or (b) a vote of a majority (as defined in the 0000 Xxx) of the
Fund's outstanding voting securities, provided that in either event the
continuance is also approved by a majority of the Directors of the Fund who are
not interested persons (as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. This Agreement is term inable, without penalty, on 60 days'
written notice, by the Fund's Board of Directors or by vote of the holders of a
majority of the Fund's shares or on
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90 days' written notice, by Cowen. This agreement will also terminate
automatically in the event of its assignment (as defined in the 1940 Act and the
Rules thereunder).
Please confirm that the foregoing is in accordance with your understanding by
indicating your acceptance hereof at the place below indicated, whereupon it
shall become a binding agreement between us.
Very truly yours,
XXXXX FUNDS, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx, Vice President
Accepted and Agreed:
XXXXX & COMPANY
By: /s/ Xxxxxxxxx X. Xxxx, Authorized Officer
