Exhibit (e)
DISTRIBUTION AGREEMENT
AGREEMENT made as of this 12 day of October, 1999, by and between COMMONFUND
INSTITUTIONAL FUNDS, a Delaware business trust (the "Company"), and COMMONFUND
SECURITIES, INC., a Delaware corporation (the "Distributor").
W I T N E S S E T H:
WHEREAS, the Company is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as a diversified open-end management investment
company and it is in the interest of the Company to offer its shares of
beneficial interest in one or more series ("Shares") for sale continuously and
to appoint a principal underwriter for the purpose of facilitating such offers
and sales;
WHEREAS, the Company and the Distributor have entered into an arrangement with
respect to the solicitation of indications of interest in the Shares in the
period before effectiveness (the "Pre-effective Period") of its initial
registration statement filed pursuant to the Securities Act of 1933, as
amended, (the "1933 Act") and the 1940 Act;
WHEREAS, the Company and the Distributor wish to enter into an agreement and
with respect to the continuous offering and sale of Shares, after the
effectiveness of such registration statement.
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor.
The Company hereby appoints the Distributor its underwriter in connection with
the offering and sale of the Shares on the terms set forth in this Agreement and
the Distributor hereby accepts such appointment and agrees to act hereunder
Section 2. Services and Duties of the Distributor.
(a) The Distributor hereby confirms its agreement to solicit indications of
interest in the Shares as agent for the Company during the Pre-effective Period
and agrees to offer and sell shares as agent for the Company after the
Pre-effective Period and during the remaining term of this Agreement. Offers
and sales will be upon the terms described in the Prospectus. As used hereafter
in this Agreement, the term "Prospectus" shall mean the prospectus included as
part of the Company's Registration Statement, as such prospectus may be amended
or supplemented from time to time, and the term "Registration Statement" shall
mean the Registration Statement most recently filed from
1
time to time by the Company with the Securities and Exchange Commission and
effective under the 1933 Act and the 1940 Act, as such Registration Statement
is amended by any amendments thereto at the time in effect.
(b) The Distributor will hold itself available to receive orders, satisfactory
to the Distributor, for the purchase of Shares and will accept such orders on
behalf of the Company and will transmit any orders to purchase Shares received
by it to the Company's transfer and shareholder servicing agent as promptly as
practicable after receipt. The Distributor will not accept funds tendered to
purchase Shares and shall promptly forward to the Company's Custodian any
checks or other orders for payment in favor of the Company in respect of
purchases of Shares in accordance with the instructions of the Company's
Administrator. Purchase orders shall be deemed effective at the time and in the
manner set forth in the Prospectus.
(c) The offering price of the Shares shall be the net asset value (determined
as set forth in the Prospectus) per Share next determined following receipt of
an order.
(d) The Distributor shall not be obligated to sell any certain number of Shares
and nothing herein contained shall prevent the Distributor from entering into
like distribution arrangements with other investment companies. At the present
time, Distributor privately places shares for certain private investment
companies.
Section 3. Duties of the Company.
(a) The Company agrees to sell its Shares so long as it has Shares available
for sale and to cause the Company's transfer and shareholder servicing agent to
record on its books the ownership of (or deliver certificates, if any, for)
such Shares registered in such names and amounts as the Distributor has
requested in writing or other means of data transmission, as promptly as
practicable after receipt by the Company of the net asset value thereof and
written request of the Distributor therefor.
(b) The Company shall keep the Distributor fully informed with regard to its
affairs and shall furnish to the Distributor copies of all information,
financial statements and other papers which the Distributor may reasonably
request for use in connection with the distribution of Shares of the Company,
and this shall include one certified copy, upon request by the Distributor, of
all financial statements prepared for the Company by independent accountants
and such reasonable number of copies of its most current Prospectus and annual
and interim reports as the Distributor may request and shall cooperate fully in
the efforts of the Distributor to sell and arrange for the sale of the Shares
and in the performance of the Distributor under this Agreement.
(c) The Company shall take, from time to time, such steps, including payment of
the related filing fees, as may be necessary to register its Shares under the
1933 Act to the end that there will be available for sale such number of Shares
as the Distributor may be expected to sell. The Company agrees to file from
time to time such amendments, reports and other documents as may be necessary
in order that there may be no untrue statement
2
of a material fact in a Registration Statement or Prospectus, or necessary in
order that there may be no omission to state a material fact in the
Registration Statement or Prospectus which omission would make the statements
therein misleading.
(d) The Company shall use its best efforts to qualify and maintain the
qualification of an appropriate number of its Shares for sale under the
securities laws of such states as the Distributor and the Company may approve
provided that the Company shall not be required to amend its Agreement and
Declaration of Trust or By-Laws to comply with the laws of any state, to
maintain an office in any state, to change the terms of the offering of the
Shares in any state from the terms set forth in its Registration Statement and
Prospectus, to qualify as a foreign corporation in any state or to consent to
service of process in any state other than with respect to claims arising out
of the offering of the Shares. The Distributor shall furnish such information
and other material relating to its affairs and activities as may be required by
the Company in connection with such qualifications,
Section 4. Expenses.
(a) The Company shall bear all costs and expenses of the continuous offering of
the Shares in connection with (i) fees and disbursements of its counsel and
independent accountants, (ii) the preparation, filing and printing of any
registration statements and/or prospectuses required to be filed by and under
the federal and state securities laws, (iii) the preparation and mailing of
annual and interim reports, prospectuses and proxy materials to shareholders
and (iv) the qualifications of Shares for sale under the securities laws of
such states or other jurisdictions as shall be selected by the Company and the
Distributor pursuant to Section 3(d) hereof and the cost and expenses payable
to each such state for continuing qualification therein.
(b) The Distributor shall bear (i) the costs and expenses of preparing,
printing and distributing any materials not prepared by the Company and other
materials used by the Distributor in connection with its offering of the Shares
for sale to the public, including the additional cost of printing copies, at
printer's over-run cost, of the Prospectus and of annual and interim reports to
shareholders other than copies thereof required for distribution to
shareholders or for filing with any federal and state securities authorities,
(ii) any expenses of advertising incurred by the Distributor in connection with
such offering and (iii) the expenses of registration or qualification of the
Distributor as a dealer or broker under federal or state laws and the expenses
of continuing such registration or qualification.
Section 5. Compensation. No compensation shall be payable by the Company to the
Distributor for the services to be rendered and the expenses assumed by the
Distributor with respect to this Agreement.
Section 6. Indemnification. The Company agrees to indemnify, defend and hold
the Distributor, its officers and directors and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act, free and harmless
from and against any and
3
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,
directors or any such controlling person may incur under the 1933 Act, or under
common law or otherwise, arising out of or based upon any untrue statement of a
material fact contained in the Registration Statement or Prospectus or arising
out of or based upon any alleged omission to state a material fact required to
be stated in either thereof or necessary to make the statements in either
thereof not misleading, except insofar as such claims, demands, liabilities or
expenses arise out of or are based upon any such untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with information furnished in writing by the Distributor to the Company for use
in the Registration Statement or Prospectus; provided, however, that this
indemnity agreement, to the extent that it might require indemnity of any
person who is also an officer or Director of the Company or who controls the
Company within the meaning of Section 15 of the 1933 Act, shall not inure to
the benefit of such officer, Director or controlling person unless a court of
competent jurisdiction shall determine, or it shall have been determined by
controlling precedent, that such result would not be against public policy as
expressed in the 1933 Act; and further provided, that in no event shall
anything contained herein be so construed as to protect the Distributor against
any liability to the Company or to its security holders 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 under this Agreement. The Company's
agreement to indemnify the Distributor, its officers and directors and any such
controlling person as aforesaid is expressly conditioned upon the Company's
being promptly notified of any action brought against the Distributor, its
officers or directors, or any such controlling person, such notification to be
given to the Company at its principal business office. The Company agrees
promptly to notify the Distributor of the commencement of any litigation or
proceedings against it or any of its officers or Directors in connection with
the issue and sale of any Shares.
The Distributor agrees to indemnify, defend and hold the Company, its Directors
and officers and any person who controls the Company, if any, 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 against such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Company, its Directors
or officers or any such controlling person may incur under the 1933 Act or
under common law or otherwise, but only to the extent that such liability or
expense incurred by the Company, its Directors or officers or such controlling
person resulting from such claims or demands shall arise out of or be based
upon any alleged untrue statement of a material fact contained in information
furnished in writing by the Distributor to the Company for use in the
preparation of the Registration Statement or Prospectus or shall arise out of
or be based upon any alleged omission to state a material fact in such
information or a fact necessary to make such information not misleading, it
being understood that the Company will rely upon the information provided by
the Distributor for use in the preparation of the Registration Statement and
Prospectus. The Distributor's agreement to indemnify the Company, its Directors
and
4
officers, and any such controlling person as aforesaid is expressly conditioned
upon the Distributor's being promptly notified of any action brought against
the Company, its Directors or officers or any such controlling person, such
notification to be given to the Distributor at its principal business office.
Section 7. Compliance with Securities Laws. The Company represents that it is
registered as an open-end management investment company under the 1940 Act, and
agrees that it will comply with the provisions of the 1940 Act and of the rules
and regulations thereunder. The Company and the Distributor each agree to
comply with the applicable terms and provisions of the 1940 Act, the 1933 Act
and, subject to the provisions of Section 3(d), applicable state "Blue Sky"
laws. The Distributor agrees to comply with the applicable terms and provisions
of the Securities Exchange Act of 1934.
Section 8. Term of Agreement, Termination. This Agreement shall commence on the
date first set forth above. This Agreement shall continue in effect for a
period more than two years from the date hereof only so long as such
continuance is specifically approved at least annually in conformity with the
requirements of the 1940 Act.
This Agreement shall terminate automatically in the event of its assignment (as
defined by the 1940 Act). In addition, this Agreement may be terminated by
either party at any time, without penalty, on not more than sixty days' nor
less than thirty days' written notice to the other party.
Section 9. Notices. Any notice required to be given pursuant to this Agreement
shall be deemed duly given if delivered or mailed by registered mail, postage
prepaid, (1) to the Distributor at 000 Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000, Attention: President, or (2) to the Company at 000 Xxxx Xxxx Xxxx,
Xxxxxxxx,. Xxxxxxxxxxx 00000, Attention: President. The foregoing addresses may
be changed by the party entitled to notice by providing notice as contemplated
in this Section.
Section 10. Notice. The Directors of the Company have authorized the execution
of this Agreement in their capacity as Directors and not individually and the
Distributor agrees that neither the shareholders nor the Directors nor any
officer, employee, representative or agent of the Company shall be personally
liable upon, nor shall resort be had to their private property for the
satisfaction of, obligations given, executed or delivered on behalf of or by
the Company, that the shareholders, Directors, officers, employees,
representatives and agents of the Company shall not be personally liable
hereunder, and that the Distributor shall look solely to the property of the
Company for the satisfaction of any claim hereunder.
Section 11. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
5
COMMONFUND SECURITIES, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------
COMMONFUND INSTITUTIONAL FUNDS
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
6
