XXXXX XXXXXX MULTIPLE DISCIPLINE TRUST
DISTRIBUTION AGREEMENT
_____________, 2002
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Xxxxx Xxxxxx Multiple Discipline Trust (the "Trust")
a business trust organized under the laws of the Commonwealth of Massachusetts,
has agreed that Xxxxxxx Xxxxx Barney Inc. ("Xxxxxxx Xxxxx Xxxxxx") shall be, for
the period of this Agreement, the distributor of shares of the Trust (the
"Shares").
1. Services as Distributor
1.1 Xxxxxxx Xxxxx Barney will act as agent for the distribution of
Shares covered by the registration statement, including the prospectus and
statement of additional information, then in effect 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 Xxxxxxx Xxxxx Xxxxxx agrees to use its best efforts to solicit
orders for the sale of Shares and will undertake such advertising and promotion
as it believes is reasonable in connection with such solicitation.
1.3 All activities by Xxxxxxx Xxxxx Barney as distributor of the
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 Xxxxxxx Xxxxx Xxxxxx will provide one or more persons during
normal business hours to respond to telephone questions concerning the Trust.
1.5 Xxxxxxx Xxxxx Barney will transmit any orders received by it for
purchase or redemption of Shares to the Trust's transfer and dividend disbursing
agent.
1.6 Whenever in their judgment such action is warranted for any
reason, including, without limitation, market, economic or political conditions,
the Trust's officers may decline to accept any orders for, or make any sales of,
the Shares until such time as those officers deem it advisable to accept such
orders and to make such sales.
1.7 Xxxxxxx Xxxxx Xxxxxx will act only on its own behalf as principal
should it choose to enter into selling agreements with selected dealers or
others.
1.8 The Trust will pay to Xxxxxxx Xxxxx Barney an annual fee in
connection with the offering and sale of the Shares under this Agreement. The
annual fee paid to Xxxxxxx
Xxxxx Xxxxxx will be calculated daily and paid monthly by the Trust at an
annual rate set forth in the Services and Distribution Plan (the "Plan") based
on the average daily net assets of the Trust; provided that payment shall be
made in any month only to the extent that such payment shall not exceed the
sales charge limitations established by the National Association of Securities
Dealers, Inc.
The annual fee paid to Xxxxxxx Xxxxx Barney under this Section 1.8 may
be used by Xxxxxxx Xxxxx Xxxxxx to cover any expenses primarily intended to
result in the sale of Shares, including , but not limited to, the
following:
(a) cost of payments made to Xxxxxxx Xxxxx Barney Financial
Consultants and other employees of Xxxxxxx Xxxxx Xxxxxx or other
broker-dealers that engage in the distribution of the Shares;
(b) payments made to, and expenses of, persons who provide support
services in connection with the distribution of the Shares, including, but
not limited to, office space and equipment, telephone facilities, answering
routine inquiries regarding the Trust, processing shareholder transactions
and providing any other shareholder services;
(c) costs relating to the formulation and implementation of marketing
and promotional activities, including, but not limited to, direct mail
promotions and television, radio, newspaper, magazine and other mass media
advertising;
(d) costs of printing and distributing prospectuses and reports of
the Trust to prospective shareholders of the Trust;
(e) costs involved in preparing, printing and distributing sales
literature pertaining to the Trust; and
(f) costs involved in obtaining whatever information, analyses and
reports with respect to marketing and promotional activities that the Trust
may, from time to time, deem advisable;
except that distribution expenses shall not include any expenditures in
connection with services which Xxxxxxx Xxxxx Xxxxxx, any of its affiliates, or
any other person have agreed to bear without reimbursement.
1.9 Xxxxxxx Xxxxx Barney shall prepare and deliver reports to the
Treasurer of the Trust and to the sub-investment advisor and/or administrator of
the Trust on a regular, at least quarterly, basis, showing the distribution
expenses incurred pursuant to this Agreement and the Plan and the purposes
therefor, as well as any supplemental reports as the Trustees, from time to
time, may reasonably request.
2. Duties of the Trust
2.1 The Trust 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 Shares
for sale in those states that Xxxxxxx Xxxxx Xxxxxx may designate.
2.2 The Trust shall furnish from time to time for use in connection
with the sale of the Shares, such information reports with respect to the Trust
and its Shares as Xxxxxxx Xxxxx Barney may reasonably request, all of which
shall be signed by one or more of the Trust's duly authorized officers; and the
Trust warrants that the statements contained in any such reports, when so signed
by the Trust's officers, shall be true and correct. The Trust shall also furnish
Salomon Xxxxx Xxxxxx upon request with (a) annual audits of the Trust's books
and accounts made by independent certified public accountants regularly retained
by the Trust; (b) semi-annual unaudited financial statements pertaining to the
Trust; (c) quarterly earnings statements prepared by the Trust; (d) a monthly
itemized list of the securities in the Trust'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 Trust's financial condition as
Xxxxxxx Xxxxx Barney may reasonably request.
3. Representations and Warranties
The Trust represents to Xxxxxxx Xxxxx Xxxxxx that all registration
statements, prospectuses and statements of additional information filed by the
Trust with the SEC under the 1933 Act and the 1940 Act with respect to the
Shares have been carefully 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 Trust with the
SEC and any amendments and supplements thereto which at any time shall have been
filed with the SEC. The Trust represents and warrants to Xxxxxxx Xxxxx Barney
that any registration statement, prospectus and statement of additional
information, when such registration statement becomes effective, will include
all statements required to be contained therein in conformance with the 1933
Act, the 1940 Act and the rules and regulations of the SEC; that all statements
of fact contained in any registration statement, prospectus or statement of
additional information will be true and correct when such registration statement
becomes effective; and that neither any registration statement nor any
prospectus or statement of additional information when such registration
statement becomes effective will 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 the Shares. The
Trust may, but shall not be obligated to, propose from time to time such
amendment or amendments to any 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 the Trust's counsel, be
necessary or advisable. If the Trust shall not propose such amendment or
amendments and/or supplement or supplements within fifteen days after receipt by
the Trust of a written request from Xxxxxxx Xxxxx Xxxxxx to do so, Xxxxxxx Xxxxx
Barney may, at its option, terminate this Agreement. The Trust shall not file
any amendment to any registration statement or supplement to any prospectus or
statement of additional information without giving Xxxxxxx Xxxxx Xxxxxx
reasonable notice thereof in advance; provided, however, that nothing contained
in this Agreement shall in any way limit the Trust's right to file at any time
such amendments to any registration statement and/or supplements to any
prospectus or statement of additional information, of whatever character, as the
Trust may deem advisable, such right being in all respects absolute and
unconditional.
4. Indemnification
4.1 The Trust authorizes Xxxxxxx Xxxxx Xxxxxx and dealers to use any
prospectus or statement of additional information furnished by the Trust from
time to time, in connection with the sale of the Shares. The Trust agrees to
indemnify, defend and hold Xxxxxxx
Xxxxx Barney, its several officers and directors, and any person who controls
Xxxxxxx Xxxxx Xxxxxx 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 Xxxxxxx
Xxxxx Barney, its officers and directors, or any such controlling person, may
incur under the 1933 Act, the 1940 Act or under common law or otherwise, arising
out of or based upon any untrue statement, or alleged untrue statement, of a
material fact contained in any 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
any registration statement, any prospectus or any statement of additional
information or necessary to make the statements in any thereof not misleading;
provided, however, that the Trust's agreement to indemnify Xxxxxxx Xxxxx Xxxxxx,
its officers or directors, and any such controlling person shall not be deemed
to cover any claims, demands, liabilities or expenses arising out of any
statements or representations made by Xxxxxxx Xxxxx Barney or its
representatives or agents other than such statements and representations as are
contained in any prospectus or statement of additional information and in such
financial and other statements as are furnished to Xxxxxxx Xxxxx Xxxxxx pursuant
to paragraph 2.2 of this Agreement; and further provided that the Trust's
agreement to indemnify Xxxxxxx Xxxxx Barney and the Trust's representations and
warranties herein before set forth in paragraph 3 of this Agreement shall not be
deemed to cover any liability to the Trust or its shareholders to which Xxxxxxx
Xxxxx Xxxxxx would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason of
Xxxxxxx Xxxxx Xxxxxx'x reckless disregard of its obligations and duties under
this Agreement. The Trust's agreement to indemnify Xxxxxxx Xxxxx Barney, its
officers and directors, and any such controlling person, as aforesaid, is
expressly conditioned upon the Trust's being notified of any action brought
against Xxxxxxx Xxxxx Xxxxxx, its officers or directors, or any such controlling
person, such notification to be given by letter or by telegram addressed to the
Trust at its principal office in New York, New York and sent to the Trust 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
Trust of any such action shall not relieve the Trust from any liability that the
Trust 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 Trust's indemnity agreement contained in this
paragraph 4.1. The Trust 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 Trust and
approved by Xxxxxxx Xxxxx Barney. In the event the Trust elects to assume the
defense of any such suit and retains counsel of good standing approved by
Xxxxxxx Xxxxx Xxxxxx, the defendant or defendants in such suit shall bear the
fees and expenses of any additional counsel retained by any of them; but if the
Trust does not elect to assume the defense of any such suit, or if Xxxxxxx Xxxxx
Barney does not approve of counsel chosen by the Trust, the Trust will reimburse
Xxxxxxx Xxxxx Xxxxxx, its officers and directors, or the controlling person or
persons named as defendant or defendants in such suit, for the fees and expenses
of any counsel retained by Xxxxxxx Xxxxx Barney or them. The Trust's
indemnification agreement contained in this paragraph 4.1 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
Xxxxxxx Xxxxx Xxxxxx, its officers and directors, or any controlling person, and
shall survive the delivery of any of the Trust's Shares. This agreement of
indemnity will inure exclusively to Xxxxxxx Xxxxx Barney's 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 Trust agrees
to notify Xxxxxxx Xxxxx Xxxxxx promptly of the commencement of any litigation or
proceedings against the Trust or any of its officers or Directors in connection
with the issuance and sale of any of the Trust's Shares.
4.2 Xxxxxxx Xxxxx Barney agrees to indemnify, defend and hold the
Trust, its several officers and Directors, and any person who controls the Trust
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 Trust, its officers or
Directors or any such controlling person may incur under the 1933 Act, the 1940
Act or under common law or otherwise, but only to the extent that such liability
or expense incurred by the Trust, its officers or Directors, or such controlling
person resulting from such claims or demands shall arise out of or be based upon
any untrue, or alleged untrue, statement of a material fact contained in
information furnished in writing by Xxxxxxx Xxxxx Xxxxxx to the Trust and used
in the answers to any of the items of the registration statement or in the
corresponding statements made in the prospectus or statement of additional
information, 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 Xxxxxxx Xxxxx Barney to the Trust and required to be stated in
such answers or necessary to make such information not misleading. Xxxxxxx Xxxxx
Xxxxxx'x agreement to indemnify the Trust, its officers or Directors, and any
such controlling person, as aforesaid, is expressly conditioned upon Xxxxxxx
Xxxxx Barney being notified of any action brought against the Trust, its
officers or Directors, or any such controlling person, such notification to be
given by letter or telegram addressed to Xxxxxxx Xxxxx Xxxxxx at its principal
office in New York, New York and sent to Xxxxxxx Xxxxx Barney by the person
against whom such action is brought, within ten days after the summons or other
first legal process shall have been served. Xxxxxxx Xxxxx Xxxxxx shall have the
right to control the defense of such action, with counsel of its own choosing,
satisfactory to the Trust, if such action is based solely upon such alleged
misstatement or omission on Xxxxxxx Xxxxx Barney's part, and in any other event
the Trust, 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 Xxxxxxx Xxxxx Xxxxxx of any such action
shall not relieve Xxxxxxx Xxxxx Barney from any liability that Xxxxxxx Xxxxx
Xxxxxx may have to the Trust, 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 Xxxxxxx Xxxxx Barney's
indemnity agreement contained in this paragraph 4.2. Xxxxxxx Xxxxx Xxxxxx agrees
to notify the Trust promptly of the commencement of any litigation or
proceedings against Xxxxxxx Xxxxx Barney or any of its officers or directors in
connection with the issuance and sale of any of the Trust's Shares.
4.3 In case any action shall be brought against any indemnified party
under paragraph 4.1 or 4.2, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish to do so, to assume the defense
thereof with counsel satisfactory to such indemnified party. If the indemnifying
party opts to assume the defense of such action, the indemnifying party will not
be liable to the indemnified party for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof other
than (a) reasonable costs of investigation or the furnishing of documents or
witnesses and (b) all reasonable fees and expenses of separate counsel to such
indemnified party if (i) the indemnifying party and the indemnified party shall
have agreed to the retention of such counsel or (ii) the indemnified party shall
have concluded reasonably that representation of the indemnifying party and the
indemnified party by the same counsel would be inappropriate due to actual or
potential differing interests between them in the conduct of the defense of such
action.
5. Effectiveness of Registration
None of the Shares shall be offered by either Xxxxxxx Xxxxx Xxxxxx or the
Trust under any of the provisions of this Agreement and no orders for the
purchase or sale of the Shares under this Agreement shall be accepted by the
Trust if and so long as the effectiveness of the registration statement then in
effect or any necessary amendments thereto shall be suspended under any of the
provision 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, that
nothing contained in this paragraph 5 shall in any way restrict or have an
application to or bearing upon the Trust's obligation to repurchase its Shares
from any shareholder in accordance with the provisions of the Trust's
prospectus, statement of additional information or Corrected Restated Articles
of Incorporation dated September 21, 1992, as amended from time to time.
6. Notice to Xxxxxxx Xxxxx Barney
The Trust agrees to advise Xxxxxxx Xxxxx Xxxxxx 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, prospectus
or statement of additional information then in effect 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,
prospectus or statement of additional information then in effect or
that requires the making of a change in such registration statement,
prospectus or statement of additional information in order to make the
statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendment to
any registration statement, prospectus or statement of additional
information which may from time to time be filed with the SEC.
7. Term of the Agreement
This Agreement shall become effective as of the date hereof, and continue
for successive annual periods thereafter so long as such continuance is
specifically approved at least annually by (a) the Trust's Board or (b) by a
vote of a majority (as defined in the 0000 Xxx) of the outstanding Shares,
provided that in either event the continuance is also approved by a majority of
the Board 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 terminable, without
penalty, on 60 days' notice by the Trust's Board, by vote of the holders of a
majority of the Shares, or on 90 days' notice by Xxxxxxx Xxxxx Barney. This
Agreement will also terminate automatically in the event of its assignment (as
defined in the 1940 Act).
8. Miscellaneous
The Trust recognizes that directors, officers and employees of Xxxxxxx
Xxxxx Xxxxxx may from time to time serve as directors, trustees, officers and
employees of corporations and
business trust (including other investment companies) and that such other
corporations and trusts may include the name "Xxxxxxx Xxxxx Xxxxxx Xxxxxxxx" as
part of their name, and that Xxxxxxx Xxxxx Barney or its affiliates may enter
into distribution or other agreements with such other corporations and trusts.
If Xxxxxxx Xxxxx Xxxxxx ceases to act as the distributor of the Shares, the
Trust agrees that, at Xxxxxxx Xxxxx Barney's request, the Trust's license to use
the words "Xxxxxxx Xxxxx Xxxxxx" will terminate and that the Trust will take all
necessary action to change the name of the Trust to a name not including the
words "Xxxxxxx Xxxxx Barney."
9. Limitation of Liability
The Trust and you agree that the obligations of the Trust under this
Agreement shall not be binding upon any of the Trustees, shareholders, nominees,
officers, employees or agents, whether past, present or future, of the Trust,
individually, but are binding only upon the assets and property of the Trust, as
provided in the Master Trust Agreement. The execution and delivery of this
Agreement have been authorized by the Trustees and signed by an authorized
officer of the Trust, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Trust as provided in
its Master Trust Agreement.
If the foregoing is in accordance with your understanding, kindly indicate
your acceptance of this Agreement by signing and returning to us the enclosed
copy of this Agreement.
Very truly yours,
XXXXX XXXXXX MULTIPLE DISCIPLINE TRUST
By:
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Title
Accepted:
XXXXXXX XXXXX BARNEY INC.
By:
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Authorized Officer
