Distribution Agreement
AGREEMENT made this 1st day of January, 1997 by and between XXXXXX XXXXXX
FUNDS, a Massachusetts business trust (the "Trust"), and XXXXXX XXXXXX
DISTRIBUTORS, L.P., a Delaware limited partnership (the "Distributor").
W I T N E S S E T H:
In consideration of the premises and covenants hereinafter contained, the
Trust and the Distributor agree as follows:
1. Distributor. The Trust hereby appoints the Distributor as general
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distributor of shares of beneficial interest ("Series shares") of the
Trust's Xxxxxx Xxxxxx Growth Fund series, Xxxxxx Xxxxxx Core Value Fund
series, Xxxxxx Xxxxxx Small Cap Value Fund series, Xxxxxx Xxxxxx
International Equity Fund series, Xxxxxx Xxxxxx High Yield Fund series,
Xxxxxx Xxxxxx Worldwide Fund series, Xxxxxx Xxxxxx Bond Fund series, Xxxxxx
Xxxxxx Global Bond Fund series, Xxxxxx Xxxxxx Short-Term Bond Fund series,
Xxxxxx Xxxxxx Small Company Growth Fund series, Xxxxxx Xxxxxx Mid-Cap Value
Fund series, Xxxxxx Xxxxxx Mid-Cap Growth Fund series, Xxxxxx Xxxxxx
Strategic Value Fund series, Xxxxxx Xxxxxx Investment Grade Bond Fund series
and Xxxxxx Xxxxxx Intermediate Maturity Bond Fund series (each a "Series")
during the term of this Agreement. The Trust reserves the right, however, to
refuse at any time or times to sell any Series shares hereunder for any
reason deemed adequate by the Board of Trustees of the Trust.
2. Sale and Payment. Under this agreement, the following provisions shall
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apply with respect to the sale of and payment for Series shares:
(a) The Distributor shall have the right, as principal, to purchase Series
shares from the Trust at their net asset value and to sell such shares
to the public against orders therefor at such net asset value.
(b) Prior to the time of delivery of any shares by the Trust to, or on the
order of, the Distributor, the Distributor shall pay or cause to be paid
to the Trust or to its order an amount in Boston or New York clearing
house funds equal to the applicable net asset value of such shares.
3. Fee. For its services as general distributor of the Series shares, the
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Trust shall pay to the Distributor on behalf of the Series, a distribution
fee at the rate and upon the terms and conditions set forth in the
Distribution Plan(s) attached as Exhibit A hereto, and as
amended from time to time. The Distribution Fee shall be accrued daily and
paid monthly to the Distributor as soon as practicable after the end of the
calendar month in which it accrues, but in any event within five business
days following the last day of the month.
4. Public Offering Price. The public offering price shall be the net asset
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value of Series shares. The net asset value of Series shares shall be
determined in accordance with the provisions of the agreement and
declaration of trust and by-laws of the Trust and the current prospectus(es)
of the Trust relating to the Series shares.
5. Trust Issuance of Series Shares. The delivery of Series shares shall be
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made promptly by a credit to a shareholder's open account for the relevant
Series. The Trust reserves the right (a) to issue Series shares at any time
directly to the shareholders of the Series as a stock dividend or stock
split, (b) to issue to such shareholders Series shares, or rights to
subscribe to Series shares, as all or part of any dividend that may be
distributed to shareholders of the Series or as all or part of any optional
or alternative dividend that may be distributed to shareholders of the
Series, and (c) to sell Series shares in accordance with any current
applicable prospectus of the Trust relating to the Series shares.
6. Repurchase. The Distributor shall act as agent for the Trust in connection
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with the repurchase of Series shares by the Trust to the extent and upon the
terms and conditions set forth in the current applicable prospectus(es) of
the Trust relating to the Series shares, and the Trust agrees to reimburse
the Distributor, from time to time upon demand, for any reasonable expenses
incurred in connection with such repurchases of shares.
7. Undertaking Regarding Sales. The Distributor shall use reasonable efforts
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to sell Series shares but does not agree hereby to sell any specific number
of Series shares and shall be free to act as distributor of the shares of
other investment companies. Series shares will be sold by the Distributor
only against orders therefor. The Distributor shall not purchase Series
shares from anyone except in accordance with Sections 2 and 6 and shall not
take "long" or "short" positions in Series shares contrary to the agreement
and declaration of trust or by-laws of the Trust.
8. Compliance. The Distributor shall conform to the Conduct Rules of the
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National Association of Securities Dealers, Inc. ("NASD") and the sale of
securities laws of any jurisdiction in which it sells, directly or
indirectly, any Series shares. The Distributor agrees to make timely
filings, with the Securities and Exchange Commission (the "SEC") in
Washington, D.C., the NASD and such other regulatory authorities as may be
required, of any sales literature relating to the Series and intended for
distribution to prospective investors. The Distributor also agrees to
furnish to the Trust sufficient copies of any agreements or plans it intends
to use in connection with any sales of
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Series shares in adequate time for the Trust to file and clear them with
the proper authorities before they are put in use (which the Trust agrees
to use its best efforts to do as expeditiously as reasonably possible), and
not to use them until so filed and cleared.
9. Registration and Qualification of Series Shares. The Trust agrees to
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execute such papers and to do such acts and things as shall from time to
time be reasonably requested by the Distributor for the purpose of
qualifying and maintaining qualification of the Series shares for sale
under the so-called Blue Sky Laws of any state or for maintaining the
registration of the Trust and of the Series shares under the federal
Investment Company Act of 1940 (the "1940 Act") and the federal Securities
Act of 1933, to the end that there will be available for sale from time to
time such number of Series shares as the Distributor may reasonably be
expected to sell. The Trust shall advise the Distributor promptly of (a)
any action of the SEC or any authorities of any state or territory, of
which it may be advised, affecting registration or qualification of the
Trust or the Series shares, or rights to offer Series shares for sale, and
(b) the happening of any event which makes untrue any statement or which
requires the making of any change in the Trust's registration statement or
its prospectus relating to the Series shares in order to make the
statements therein not misleading.
10. Distributor Independent Contractor. The Distributor shall be an
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independent contractor and neither the Distributor nor any of its officers
or employees as such is or shall be an employee of the Trust. The
Distributor 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. The Distributor
assumes full responsibility for its agents and employees under applicable
statutes and agrees to pay all employer taxes thereunder.
11. Expenses Paid by Distributor. While the Distributor continues to act as
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agent of the Trust to obtain subscriptions for and to sell Series shares,
the Distributor shall pay the following:
(a) all expenses of printing (exclusive of typesetting) and distributing
any prospectus for use in offering Series shares for sale, and all
other copies of any such prospectus used by the Distributor, and
(b) all other expenses of advertising and of preparing, printing and
distributing all other literature or material for use in connection
with offering Series shares for sale.
12. Interests in and of Distributor. It is understood that any of the
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shareholders, trustees, officers, employees and agents of the Trust may be
a shareholder, director, officer, employee or agent of, or be otherwise
interested in, the Distributor, any affiliated
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person of the Distributor, any organization in which the Distributor may
have an interest or any organization which may have an interest in the
Distributor; that the Distributor, any such affiliated person or any such
organization may have an interest in the Trust; and that the existence of
any such dual interest shall not affect the validity hereof or of any
transaction hereunder except as otherwise provided in the agreement and
declaration of trust or by-laws of the Trust, in the limited partnership
agreement of the Distributor or by specific provision of applicable law.
13. Words "Xxxxxx" and "Xxxxxx". The Distributor and its parent, Xxxxxx,
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Xxxxxx & Company, L.P., retain proprietary rights in the words "Xxxxxx" and
"Xxxxxx," which may be used by the Trust and the Series only with the
consent of the Distributor. The Distributor consents to the use by the
Series of the name "Xxxxxx Xxxxxx Investment Grade Bond Fund" or any other
name embodying the words "Xxxxxx" or "Xxxxxx," in such forms as the
Distributor shall in writing approve, but only on condition and so long as
(i) this Agreement shall remain in full force and (ii) the Trust shall
fully perform, fulfill and comply with all provisions of this Agreement
expressed herein to be performed, fulfilled or complied with by it. No such
name shall be used by the Trust or the Series at any time or in any place
or for any purposes or under any conditions except as in this section
provided. The foregoing authorization by the Distributor to the Trust and
the Series to use said words or letters as part of a business or name is
not exclusive of the right of the Distributor itself to use, or to
authorize others to use, the same; the Trust acknowledges and agrees that
as between the Distributor and the Trust and the Series, the Distributor
has the exclusive right so to use, or authorize others to use, said words
and letters, and the Trust agrees to take such action as may reasonably be
requested by the Distributor to give full effect to the provisions of this
section (including, without limitation, consenting to such use of said
words or letters). Without limiting the generality of the foregoing, the
Trust agrees that, upon any termination of this Agreement by either party
or upon the violation of any of its provisions by the Trust, the Trust
will, at the request of the Distributor made within six months after the
Distributor has knowledge of such termination or violation, use its best
efforts to change the name of the Trust and the Series so as to eliminate
all reference, if any, to the words "Xxxxxx" and "Xxxxxx" and will not
thereafter transact any business in a name containing the words "Xxxxxx" or
"Xxxxxx" in any form or combination whatsoever, or designate itself as the
same entity as or successor to any entity of such name, or otherwise use
the words "Xxxxxx" or "Xxxxxx" or any other reference to the Distributor.
Such covenants on the part of the Trust and each Series shall be binding
upon it, its trustees, officers, shareholders, creditors and all other
persons claiming under or through it.
14. Effective Date and Termination. This Agreement shall become effective as
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of the date of its execution, and
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(a) Unless otherwise terminated, this Agreement shall continue in effect
with respect to the shares of a Series so long as such continuation is
specifically approved at least annually (i) by the Board of Trustees of
the Trust or by the vote of a majority of the votes which may be cast
by shareholders of the Series and (ii) by a vote of a majority of the
Board of Trustees of the Trust who are not interested persons of the
Distributor or the Trust, cast in person at a meeting called for the
purpose of voting on such approval.
(b) This Agreement may at any time be terminated on sixty days' notice to
the Distributor either by vote of a majority of the Trust's Board of
Trustees then in office or by the vote of a majority of the votes which
may be cast by shareholders of the Series.
(c) This Agreement shall automatically terminate in the event of its
assignment.
(d) This Agreement may be terminated by the Distributor on ninety days'
written notice to the Trust.
Termination of this Agreement pursuant to this section shall be without payment
of any penalty.
15. Definitions. For purposes of this Agreement, the following definitions
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shall apply:
(a) The "vote of a majority of the votes which may be cast by shareholders
of the Series" means (1) 67% or more of the votes of the Series 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 Series
entitled to vote at such meeting are present; or (2) the vote of the
holders of more than 50% of the outstanding shares of the Series
entitled to vote at such meeting, whichever is less.
(b) The terms "affiliated person", "interested person" and "assignment"
shall have their respective meanings as defined in the 1940 Act
subject, however, to such exemptions as may be granted by the SEC under
the 1940 Act.
16. Amendment. This Agreement may be amended at any time by mutual consent of
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the parties, provided that such consent on the part of the Series shall be
approved (i) by the Board of Trustees of the Trust or by vote of a majority
of the votes which may be cast by shareholders of the Series and (ii) by a
vote of a majority of the Board of Trustees of the Trust who are not
interested persons of the Distributor or the Trust cast in person at a
meeting called for the purpose of voting on such approval.
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17. Applicable Law and Liabilities. This Agreement shall be governed by and
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construed in accordance with the laws of The Commonwealth of Massachusetts.
All sales hereunder are to be made, and title to the Series shares shall
pass, in Boston, Massachusetts.
18. Limited Recourse. The Distributor hereby acknowledges that the Trust's
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obligations hereunder with respect to the shares of the Series are binding
only on the assets and property belonging to the Series.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
XXXXXX XXXXXX FUNDS,
on behalf of its Xxxxxx Xxxxxx Growth Fund
series, Xxxxxx Xxxxxx Core Value Fund
series, Xxxxxx Xxxxxx Small Cap Value Fund
series, Xxxxxx Xxxxxx International Equity
Fund series, Xxxxxx Xxxxxx Worldwide Fund
series, Xxxxxx Xxxxxx Bond Fund series,
Xxxxxx Xxxxxx Global Bond Fund series,
Xxxxxx Xxxxxx High Yield Fund series, Xxxxxx
Xxxxxx Short-Term Bond Fund series, Xxxxxx
Xxxxxx Small Company Growth Fund series,
Xxxxxx Xxxxxx Mid-Cap Value Fund series,
Xxxxxx Xxxxxx Mid-Cap Growth Fund series,
Xxxxxx Xxxxxx Strategic Value Fund series,
Xxxxxx Xxxxxx Intermediate Maturity Bond
Fund series and Xxxxxx Xxxxxx Investment
Grade Bond Fund series
By________________________________
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XXXXXX XXXXXX DISTRIBUTORS, L.P.
By: Xxxxxx Xxxxxx Distributors, Incorporated,
its general partner
By________________________________
A copy of the Agreement and Declaration of Trust establishing Xxxxxx Xxxxxx
Funds (the "Trust") is on file with the Secretary of The Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed with
respect to the Trust's Xxxxxx Xxxxxx Growth Fund series, Xxxxxx Xxxxxx Core
Value Fund series, Xxxxxx Xxxxxx Small Cap Value Fund series, Xxxxxx Xxxxxx
International Equity Fund series, Xxxxxx Xxxxxx Worldwide Fund series, Xxxxxx
Xxxxxx Bond Fund series, Xxxxxx Xxxxxx Global Bond Fund series, Xxxxxx Xxxxxx
High Yield Fund series, Xxxxxx Xxxxxx Short-Term Bond Fund series, Xxxxxx Xxxxxx
Small Company Growth Fund series, Xxxxxx Xxxxxx Mid-Cap Value Fund series,
Xxxxxx Xxxxxx Mid-Cap Growth Fund series, Xxxxxx Xxxxxx Strategic Value Fund
series, Xxxxxx Xxxxxx Intermediate Maturity Bond Fund series and Xxxxxx Xxxxxx
Investment Grade Bond Fund series (each a "Series") on behalf of the Trust by
officers of the Trust as officers and not individually and that the obligations
of or arising out of this Agreement are not binding upon any of the trustees,
officers or shareholders of the Trust individually but are binding only upon the
assets and property of the Series.
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