XXXXXX OTC & EMERGING GROWTH FUND
DISTRIBUTOR'S CONTRACT
Distributor's Contract dated June 10, 2005, by and between XXXXXX OTC &
EMERGING GROWTH FUND, a Massachusetts business trust (the "Fund"), and
XXXXXX RETAIL MANAGEMENT LIMITED PARTNERSHIP, a Massachusetts limited
partnership ("Putnam").
WHEREAS, the Fund and Putnam are desirous of entering into this agreement to
provide for the distribution by Xxxxxx of shares of the Fund;
NOW, THEREFORE, in consideration of the mutual agreements contained in the
Terms and Conditions of Distributor's Contract attached to and forming a
part of this Contract (the "Terms and Conditions"), the Fund hereby appoints
Xxxxxx as a distributor of shares of the Fund, and Xxxxxx hereby accepts
such appointment, all as set forth in the Terms and Conditions.
A copy of the Agreement and Declaration of Trust of the Fund is on file with
the Secretary of The Commonwealth of Massachusetts and notice is hereby
given that this instrument is executed on behalf of the Trustees of the Fund
as Trustees and not individually, and that the obligations of or arising out
of this instrument are not binding upon any of the Trustees, officers or
shareholders individually but are binding only upon the assets and property
of the Fund.
IN WITNESS WHEREOF, XXXXXX OTC & EMERGING GROWTH FUND and XXXXXX RETAIL
MANAGEMENT LIMITED PARTNERSHIP have each caused this Distributor's Contract
to be signed in its behalf, all as of the day and year first above written.
XXXXXX OTC & EMERGING GROWTH FUND
/s/ Xxxxxxx X. Xxxxxx
By: -----------------------
Xxxxxxx X. Xxxxxx
Executive Vice President, Associate Treasurer
and Principal Executive Officer
XXXXXX RETAIL MANAGEMENT
LIMITED PARTNERSHIP
/s/ Xxxxxxx X. Xxxxxxxx
By: -----------------------
Xxxxxxx X. Xxxxxxxx
President
TERMS AND CONDITIONS
OF
DISTRIBUTOR'S CONTRACT
1. Reservation of Right Not to Sell. The Fund reserves the right to refuse
at any time or times to sell any of its shares of beneficial interest
("shares") hereunder for any reason deemed adequate by it.
2. Payments to Xxxxxx. In connection with the distribution of shares of the
Fund, Xxxxxx will be entitled to receive: (a) payments pursuant to any
Distribution Plan and Agreement from time to time in effect between the Fund
and Xxxxxx with respect to the Fund or any particular class of shares of the
Fund, (b) any contingent deferred sales charges applicable to the redemption
of shares of the Fund or of any particular class of shares of the Fund,
determined in the manner set forth in the then current Prospectus and
Statement of Additional Information of the Fund and (c) subject to the
provisions of Section 3 below, any front-end sales charges applicable to the
sale of shares of the Fund or of any particular class of shares of the Fund,
less any applicable dealer discount.
3. Sales of Shares to Xxxxxx and Sales by Xxxxxx. Xxxxxx will have the
right, as principal, to sell shares of the Fund to investment dealers
against orders therefor (a) at the public offering price (calculated as
described below) less a discount determined by Xxxxxx, which discount shall
not exceed the amount of the sales charge referred to below, or (b) at net
asset value. Upon receipt of an order to purchase Fund shares from an
investment dealer with whom Xxxxxx has a Sales Contract, Xxxxxx will
promptly purchase shares from the Fund to fill such order. The public
offering price of a class of shares shall be the net asset value of such
shares then in effect, plus any applicable front-end sales charge determined
in the manner set forth in the then current Prospectus and Statement of
Additional Information of the Fund or as permitted by the Investment Company
Act of 1940, as amended, and the Rules and Regulations of the Securities and
Exchange Commission promulgated thereunder. In no event shall the public
offering price exceed 1000/915ths of such net asset value, and in no event
shall any applicable sales charge exceed 8 1/2% of the public offering
price. The net asset value of the shares shall be determined in the manner
provided in the Agreement and Declaration of Trust of the Fund as then
amended and when determined shall be applicable to transactions as provided
for in the then current Prospectus and Statement of Additional Information
of the Fund.
Xxxxxx will also have the right, as principal, to purchase shares from the
Fund at their net asset value and to sell such shares to the public against
orders therefor at the public offering price or at net asset value.
Xxxxxx will also have the right, as principal, to sell shares at their net
asset value and not subject to a contingent deferred sales charge to such
persons as may be approved by the Trustees of the Fund, all such sales to
comply with the provisions of the Investment Company Act of 1940, as
amended, and the Rules and Regulations of the Securities and Exchange
Commission promulgated thereunder.
Xxxxxx will also have the right, as agent for the Fund, to sell shares at
the public offering price or at net asset value to such persons and upon
such conditions as the Trustees of the Fund may from time to time determine.
On every sale the Fund shall receive the applicable net asset value of the
shares. Xxxxxx will reimburse the Fund for any increased issue tax paid on
account of sales charges. Upon receipt of registration instructions in
proper form and payment for shares, Xxxxxx will transmit such instructions
to the Fund or its agent for registration of the shares purchased.
4. Sales of Shares by the Fund. The Fund reserves the right to issue shares
at any time directly to its shareholders as a stock dividend or stock split
and to sell shares to its shareholders or to other persons approved by
Xxxxxx at not less than net asset value.
5. Repurchase of Shares. Xxxxxx will act as agent for the Fund in
connection with the repurchase of shares by the Fund upon the terms and
conditions set forth in the then current Prospectus and Statement of
Additional Information of the Fund.
6. Basis of Purchases and Sales of Shares. Xxxxxx will use its best efforts
to place shares sold by it on an investment basis. Xxxxxx does not agree to
sell any specific number of shares. Shares will be sold by Xxxxxx only
against orders therefor. Xxxxxx will not purchase shares from anyone other
than the Fund except in accordance with Section 5, and will not take "long"
or "short" positions in shares contrary to the Agreement and Declaration of
Trust of the Fund.
7. Rules of NASD, etc. Xxxxxx will conform to the Rules of Fair Practice of
the National Association of Securities Dealers, Inc. and the sale of
securities laws of any jurisdiction in which it sells, directly or
indirectly, any shares. Xxxxxx also agrees to furnish to the Fund
sufficient copies of any agreements or plans it intends to use in connection
with any sales of shares in adequate time for the Fund to file and clear
them with the proper authorities before they are put in use, and not to use
them until so filed and cleared.
8. Xxxxxx Independent Contractor. Xxxxxx shall be an independent contractor
and neither Xxxxxx nor any of its officers or employees as such is or shall
be an employee of the Fund. Xxxxxx is responsible for its own conduct and
the employment, control and conduct of its agents and employees and for
injury to such agents or employees or to others through its agents or
employees. Xxxxxx assumes full responsibility for its agents and employees
under applicable statutes and agrees to pay all employer taxes thereunder.
Xxxxxx will maintain at its own expense insurance against public liability
in such an amount as the Trustees of the Fund may from time to time
reasonably request.
9. Expenses. Xxxxxx will pay all expenses of qualifying shares for sale
under the so-called "Blue Sky" laws of any state (except expenses of any
action by the Trust relating to its Agreement and Declaration of Trust or
other matters approved by the Trustees), and expenses of preparing, printing
and distributing advertising and sales literature. Xxxxxx shall not be
responsible for any expenses of registering shares under the Securities Act
of 1933, as amended, or the preparation, printing and distribution of
Prospectuses, Statements of Additional Information and shareholders'
reports, except that Xxxxxx will pay the cost of the printing and
distributing any Prospectuses, Statements of Additional Information and
shareholders' reports used by it and by others in the offer or sale of
shares to persons who, at the time of such offer or sale were not already
shareholders of the Fund, to the extent such cost is not paid by others.
10. Indemnification of Fund. Xxxxxx agrees to indemnify and hold harmless
the Fund and each person who has been, is, or may hereafter be a Trustee of
the Fund against expenses reasonably incurred by any of them in connection
with any claim or in connection with any action, suit or proceeding to which
any of them may be a party, which arises out of or is alleged to arise out
of any misrepresentation or omission to state a material fact, or out of any
alleged misrepresentation or omission to state a material fact, on the part
of Xxxxxx or any agent or employee of Xxxxxx or any other person for whose
acts Xxxxxx is responsible or is alleged to be responsible unless such
misrepresentation or omission was made in reliance upon written information
furnished by the Fund. Xxxxxx also agrees likewise to indemnify and hold
harmless the Fund and each such person in connection with any claim or in
connection with any action, suit or proceeding which arises out of or is
alleged to arise out of Xxxxxx'x (or an affiliate of Xxxxxx'x) failure to
exercise reasonable care and diligence with respect to its services rendered
in connection with investment, reinvestment, automatic withdrawal and other
plans for shares. The term "expenses" includes amounts paid in satisfaction
of judgments or in settlements which are made with Xxxxxx'x consent. The
foregoing rights of indemnification shall be in addition to any other rights
to which the Fund or a Trustee may be entitled as a matter of law.
11. Assignment Terminates this Contract; Amendments of this Contract. This
Contract shall automatically terminate, without the payment of any penalty,
in the event of its assignment. This Contract may be amended only if such
amendment be approved either by action of the Trustees of the Fund or at a
meeting of the shareholders of the Fund by the affirmative vote of a
majority of the outstanding shares of the Fund, and by a majority of the
Trustees of the Fund who are not interested persons of the Fund or of Xxxxxx
by vote cast in person at a meeting called for the purpose of voting on such
approval.
12. Effective Period and Termination of this Contract. This Contract shall
take effect upon the date first above written and shall remain in full force
and effect continuously (unless terminated automatically as set forth in
Section 11) until terminated as follows:
(a) Either by the Fund or Xxxxxx by not more than sixty (60) days' nor less
than ten (10) days' written notice delivered or mailed by registered mail,
postage prepaid, to the other party; or
(b) If the continuance of this Contract is not specifically approved at
least annually by the Trustees of the Fund or the shareholders of the Fund
by the affirmative vote of a majority of the outstanding shares of the Fund,
and by a majority of the Trustees of the Fund who are not interested persons
of the Fund or of Xxxxxx by vote cast in person at a meeting called for the
purpose of voting on such approval, then this Contract shall automatically
terminate at the close of business on the second anniversary of its
execution, or upon the expiration of one year from the effective date of the
last such continuance, whichever is later.
Action by the Fund under (a) above may be taken either (i) by vote of its
Trustees or (ii) by the affirmative vote of a majority of the outstanding
shares of the Fund. The requirement under (b) above that continuance of
this Contract be "specifically approved at least annually" shall be
construed in a manner consistent with the Investment Company Act of 1940, as
amended, and the Rules and Regulations thereunder.
Termination of this Contract pursuant to this Section 12 shall be without
the payment of any penalty.
13. Certain Definitions. For the purposes of this Contract, the
"affirmative vote of a majority of the outstanding shares of the Fund" means
the affirmative vote, at a duly called and held meeting of shareholders of
the Fund, (a) of the holders of 67% or more of the shares of the Fund
present (in person or by proxy) and entitled to vote at such meeting, if the
holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting are present in person or by proxy, or (b) of the
holders of more than 50% of the outstanding shares of the Fund entitled to
vote at such meeting, whichever is less.
For the purposes of this Contract, the terms "interested person" and
"assignment" shall have the meanings defined in the Investment Company Act
of 1940, as amended, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act.
