Exhibit 5
DISTRIBUTION AGREEMENT
This Agreement, made as of the 30th day of April, 2000 between Xxxxxxxx-
Xxxxx Government Fund, a Maryland corporation (the "Company"), and J.J.B.
Xxxxxxxx, X.X. Xxxxx, Inc., a Kentucky corporation ("Distributor"),
WHEREAS, the Company is an open-end, diversified management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Company desires to appoint Distributor as its distributor to
provide for the sale and distribution of the shares of Common Stock, $0.01 par
value, of the Company ("Common Stock"), and Distributor is willing to render
such services;
NOW, THEREFORE, for and in consideration of the premises and the covenants
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Except as otherwise provided herein, the Company hereby appoints the
Distributor as its exclusive agent to sell and distribute shares of
Common Stock of the Company at the net asset value thereof as described
and set forth in the current prospectus of the Company, and Distributor
accepts such appointment and agrees to render the services and perform
the duties set forth in this Agreement without further compensation.
The Distributor may make sales of the shares of Common Stock of the
Company directly to the public or to or through dealers. The
compensation of any such dealers shall be the responsibility of
Distributor.
2. Notwithstanding the foregoing appointment, the Company may distribute
its shares.
3. In performing its duties as Distributor, Distributor will act in
conformity with the Articles of Incorporation, By-Laws and prospectus
of the Company and with the instructions and directions of the
Company's Board of Directors and the requirements of the Securities Act
of 1933, the 1940 Act and all other applicable Federal and State laws
and regulations.
4. After effectiveness of the Company's Registration Statement,
Distributor will hold itself available to receive by mail, telex and/or
telephone, orders for the purchase of Common Stock and will accept or
reject such orders on behalf of the Company in accordance with the
provisions of the prospectus, and will transmit such orders as are so
accepted to the Company's transfer agent as promptly as possible.
5. Distributor shall not be obligated to sell any certain number of shares
of the Company's Common Stock.
6. The sale of the Company's shares may be suspended with or without prior
notice whenever in the judgment of the Company it is in its best
interest to do so.
7. Neither the Distributor nor any other person is authorized by the
Company to give any information or to make any representation relative
to the Company's shares other than those contained in the Registration
Statement or prospectus filed with the Securities and Exchange
Commission as the same may be amended from time to time
-2-
or in any supplemental information to said prospectus approved by the
Company. The Distributor agrees that any other information or
representation other than those specified above which it or any dealer
or other person who purchases shares through the Distributor may make
in connection with the offer or sale of shares, shall be made entirely
without liability on the part of the Company. No person or dealer other
than the Distributor shall be deemed to be authorized hereby to act as
agent for the Company for any purpose. The Distributor agrees that in
offering or selling shares as agent of the Company it will in all
respects duly conform to all applicable State and Federal laws and the
rules and regulations of the National Association of Securities
Dealers, Inc. including its Code of Conduct. The Distributor will
submit to the Company copies of all sales literature before using the
same and will not use literature if disapproved by the Company.
8. Subsequent to the effectiveness of the Company's initial registration
statement under the Securities Act of 1933, the Distributor will bear
the cost of all sales and promotional expenses, including the expenses
of printing all sales literature and prospectuses, other than those
utilized for regulatory purposes and those furnished from time to time
to existing shareholders of the Company.
9. This Agreement shall continue in effect for two years from the date of
its execution and thereafter for successive periods of one year each if
such continuance is approved at least annually by the Board of
Directors of the Company including a majority of the Directors of the
Company who are not "interested persons" cast in person at a meeting
called for that purpose. The term "interested persons" shall be
construed in accordance with its definition in section 2(a)(19) of the
1940 Act. This Agreement
-3-
may be terminated upon 60 days written notice by the Company and/or the
Distributor.
10. This Agreement may not be assigned by the Distributor and shall
automatically terminate in the event of an assignment as defined in the
1940 Act; provided, however, that the Distributor may employ such other
person, persons, or corporations as it shall determine, in order to
assist it in carrying out this Agreement.
11. Distributor shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Company in connection with the
matters to which this Agreement relates, except a loss resulting from
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its
obligations and duties under the Agreement. Any person, even though
also an officer, employee or agent of Distributor, who may be or become
an officer, director, employee or agent of the Company shall be deemed,
when rendering services to the Company or acting in any business of the
Company, to be rendering such services to or acting solely for the
Company and not as an officer, partner, employee or agent or one under
the control or direction of Distributor even though paid by it.
12. This Agreement may not be amended without the affirmative votes of a
majority of the Board of Directors, including a majority of those
directors who are not "interested persons" of the Company or of the
Distributor, voting in person at a meeting called for the purpose of
voting on such approval. Subject to this condition, this Agreement may
be amended at any time by mutual agreement in writing of the parties
hereto.
-4-
13. This Agreement shall be construed in accordance with and governed by
the laws of the State of Maryland.
IN WITNESS WHEREOF, this Agreement has been executed for the Distributor
and the Company and their respective corporate seals affixed hereto by their
duly authorized officers the day and year first above written.
J.J.B. XXXXXXXX, X.X. XXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx, Executive Vice
President
XXXXXXXX-XXXXX GOVERNMENT
FUND, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx, Vice President and
Treasurer
-5-
