[NAME OF FUND]
FORM OF
DISTRIBUTION AGREEMENT
_________,
2000
PFS Distributors, Inc.
0000 Xxxxxxxxxxxx Xxxx., Xxxx. 000
Xxxxxx Xxxxxxx 00000-0000
Dear Sirs:
This is to confirm that, in consideration of the agreements
hereinafter contained, the above-named investment company (the
"Fund") has agreed that you shall be, for the period of this
Agreement, the non-exclusive principal underwriter and co-
distributor of shares of the Fund and each Series of the Fund.
For purposes of this Agreement, the term "Shares" shall mean
shares of the each Series, or one or more Series, as the context
may require.
1. Services as Principal Underwriter and Distributor
1.1 You will act as agent for the distribution of
Shares covered by, and in accordance with, the registration
statement, 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"), and will transmit or cause to be transmitted promptly
any orders received by you or those with whom you have sales or
servicing agreements for purchase or redemption of Shares to the
Transfer and Dividend Disbursing Agent for the Fund of which the
Fund has notified you in writing.
1.2 You agree to use your best efforts to solicit
orders for the sale of Shares. It is contemplated that you will
enter into sales or servicing agreements with registered
securities brokers and banks and into servicing agreements with
financial institutions and other industry professionals, such as
investment advisers, accountants and estate planning firms. In
entering into such agreements, you will act only on your own
behalf as principal underwriter and distributor. You will not be
responsible for making any distribution plan or service fee
payments pursuant to any plans the Fund may adopt or agreements it
may enter into.
1.3 You shall act as the non-exclusive principal
underwriter and co-distributor of Shares in compliance with all
applicable laws, rules, and regulations, including, without
limitation, all rules and regulations made or adopted from time to
time by the Securities and Exchange Commission (the "SEC")
pursuant to the 1933 Act or the 1940 Act or by any securities
association registered under the Securities Exchange Act of 1934,
as amended.
1.4 Whenever in their judgment such action is
warranted for any reason, including, without limitation, market,
economic or political conditions, the Fund's officers may decline
to accept any orders for, or make any sales of, any Shares until
such time as those officers deem it advisable to accept such
orders and to make such sales and the Fund shall advise you
promptly of such determination.
2. Duties of the Fund
2.1 The Fund agrees to pay all costs and expenses in
connection with the registration of Shares under the 1933 Act, and
all expenses in connection with maintaining facilities for the
issue and transfer of Shares and for supplying information, prices
and other data to be furnished by the Fund hereunder, and all
expenses in connection with the preparation and printing of the
Fund's prospectuses and statements of additional information for
regulatory purposes and for distribution to shareholders; provided
however, that nothing contained herein shall be deemed to require
the Fund to pay any costs of advertising or marketing the sale of
Shares.
2.2 The Fund agrees to execute any and all documents
and to furnish any and all information and otherwise to take any
other actions that may be reasonably necessary in the discretion
of the Fund's officers in connection with the qualification of
Shares for sale in such states and other U.S. jurisdictions as the
Fund may approve and designate to you from time to time, and the
Fund agrees to pay all expenses that may be incurred in connection
with such qualification. You shall pay all expenses connected
with your own qualification as a securities broker or dealer under
state or Federal laws and, except as otherwise specifically
provided in this Agreement, all other expenses incurred by you in
connection with the sale of Shares as contemplated in this
Agreement.
2.3 The Fund shall furnish you from time to time, for
use in connection with the sale of Shares, such information
reports with respect to the Fund or any relevant Series and the
Shares as you may reasonably request, all of which shall be signed
by one or more of the Fund's duly authorized officers; and the
Fund warrants that the statements contained in any such reports,
when so signed by the Fund's officers, shall be true and correct.
The Fund also shall furnish you upon request with (a) the reports
of the annual audits of the financial statements of the Fund for
each Series made by independent certified public accountants
retained by the Fund for such purpose; (b) semi-annual unaudited
financial statements pertaining to each Series; (c) quarterly
earnings statements prepared by the Fund for any Series; (d) a
monthly itemized list of the securities in each Series' portfolio;
(e) monthly balance sheets as soon as practicable after the end of
each month; (f) the current net asset value and offering price
per share for each Series on each day such net asset value is
computed and (g) from time to time such additional information
regarding the financial condition of each Series of the Fund as
you may reasonably request.
3. Representations and Warranties
The Fund represents to you that all registration statements,
prospectuses and statements of additional information filed by the
Fund with the SEC under the 1933 Act and the 1940 Act with respect
to the Shares have been prepared in conformity with the
requirements of said Acts 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 Fund with the SEC and any
amendments and supplements thereto filed by the Fund with the SEC.
The Fund represents and warrants to you that any such registration
statement, prospectus and statement of additional information,
when such registration statement becomes effective and as such
prospectus and statement of additional information are amended and
supplemented, includes at the time of such effectiveness,
amendment or supplement 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 material
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 Fund's Shares. The Fund 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 Fund, be necessary or advisable. If the Fund shall
not propose such amendment or amendments and/or supplement or
supplements within fifteen days after receipt by the Fund of a
written request from you to do so, you may, at your option,
terminate this Agreement or decline to make offers of the Fund's
Shares until such amendments are made. The Fund shall not file
any amendment to any registration statement or supplement to any
prospectus or statement of additional information without giving
you reasonable notice thereof in advance; provided, however, that
nothing contained in this Agreement shall in any way limit the
Fund'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
Fund may deem advisable, such right being in all respects absolute
and unconditional.
4. Indemnification
4.1 The Fund authorizes you to use any prospectus or
statement of additional information furnished by the Fund from
time to time, in connection with the sale of Shares. The Fund
agrees to indemnify, defend and hold you, your several officers
and directors, and any person who controls you 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 such counsel fees incurred in connection
therewith) which you, your officers and 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, 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 of them not misleading; provided,
however, that the Fund's agreement to indemnify you, your 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 you or your
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 you pursuant to paragraph 2.3 of this
Agreement; and further provided that the Fund's agreement to
indemnify you and the Fund's representations and warranties herein
before set forth in paragraph 3 of this Agreement shall not be
deemed to cover any liability to the Fund or its shareholders to
which you would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of
your duties, or by reason of your reckless disregard of your
obligations and duties under this Agreement. The Fund's agreement
to indemnify you, your officers and directors, and any such
controlling person, as aforesaid, is expressly conditioned upon
the Fund's being notified of any action brought against you, your
officers or directors, or any such controlling person, such
notification to be given by letter or by telegram addressed to the
Fund at its principal office in New York, New York and sent to the
Fund 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 Fund of any such action
shall not relieve the Fund from any liability that the Fund 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 Fund's
indemnity agreement contained in this paragraph 4.1. The Fund
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 Fund. In the event the Fund elects to assume the defense
of any such suit and retains counsel of good standing, 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 Fund does not elect to assume the defense of any such suit,
the Fund will reimburse you, your officers and directors, or the
controlling person or persons named as defendant or defendants in
such suit, for the reasonable fees and expenses of any counsel
retained by you or them. The Fund's indemnification agreement
contained in this paragraph 4.1 and the Fund'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 you, your officers and directors, or any controlling
person, and shall survive the delivery of any of the Fund's
Shares. This agreement of indemnity will inure exclusively to
your benefit, to the benefit of your several officers and
directors, and their respective estates, and to the benefit of the
controlling persons and their successors. The Fund agrees to
notify you promptly of the commencement of any litigation or
proceedings against the Fund or any of its officers or Board
members in connection with the issuance and sale of any of the
Fund's Shares.
4.2 You agree to indemnify, defend and hold the Fund,
its several officers and Board members, and any person who
controls the Fund 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 Fund,
its officers or Board members 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
Fund, its officers or Board members, 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 you to the
Fund 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 you to the Fund and required to be stated
in such answers or necessary to make such information not
misleading. Your agreement to indemnify the Fund, its officers or
Board members, and any such controlling person, as aforesaid, is
expressly conditioned upon your being notified of any action
brought against the Fund, its officers or Board members, or any
such controlling person, such notification to be given by letter
or telegram addressed to you at your principal office in Boston,
Massachusetts and sent to you by the person against whom such
action is brought, within ten days after the summons or other
first legal process shall have been served. You shall have the
right to control the defense of such action, with counsel of your
own choosing, satisfactory to the Fund, if such action is based
solely upon such alleged misstatement or omission on your part or
with the Fund's consent, and in any event the Fund, its officers
or Board members or such controlling person shall each have the
right to participate in the defense or preparation of the defense
of any such action with counsel of its own choosing reasonably
acceptable to you but shall not have the right to settle any such
action without your consent, which will not be unreasonably
withheld. The failure to so notify you of any such action shall
not relieve you from any liability that you may have to the Fund,
its officers or Board members, 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 your
indemnity agreement contained in this paragraph 4.2. You agree to
notify the Fund promptly of the commencement of any litigation or
proceedings against you or any of your officers or directors in
connection with the issuance and sale of any of the Fund's Shares.
5. Effectiveness of Registration
No Shares shall be offered by either you or the Fund under
any of the provisions of this Agreement and no orders for the
purchase or sale of such Shares under this Agreement shall be
accepted by the Fund 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 provisions 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, however, that nothing contained in this paragraph 5
shall in any way restrict or have any application to or bearing
upon the Fund's obligation to repurchase its Shares from any
shareholder in accordance with the provisions of the Fund's
prospectus, statement of additional information or charter
documents, as amended from time to time.
6. Offering Price
Shares of any class of any Series of the Fund offered for
sale by you shall be offered for sale at a price per share (the
"offering price") equal to (a) their net asset value (determined
in the manner set forth in the Fund's charter documents and the
then-current prospectus and statement of additional information)
plus (b) a sales charge, if applicable, which shall be the
percentage of the offering price of such Shares as set forth in
the Fund's then-current prospectus relating to such Series. In
addition to or in lieu of any sales charge applicable at the time
of sale, Shares of any class of any Series of the Fund offered for
sale by you may be subject to a contingent deferred sales charge
as set forth in the Fund's then-current prospectus and statement
of additional information. You shall be entitled to receive any
sales charge levied at the time of sale in respect of the Shares
without remitting any portion to the Fund. Any payments to a
broker or dealer through whom you sell Shares shall be governed by
a separate agreement between you and such broker or dealer and the
Fund's then-current prospectus and statement of additional
information. Any payments to any provider of services to you
shall be governed by a separate agreement between you and such
service provider.
7. Notice to You
The Fund agrees to advise you 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 the
registration statement, or any
supplement to the prospectus or
statement of additional information,
which may from time to time be filed
with the SEC.
8. Term of the Agreement
This Agreement shall become effective on the date hereof,
shall have an initial term of one year from the date hereof, and
shall continue for successive annual periods thereafter so long as
such continuance is specifically approved at least annually by (a)
the Fund's Board or (b) by a vote of a majority (as defined in the
0000 Xxx) of the Fund's outstanding voting securities, provided
that in either event the continuance is also approved by a
majority of the Board members of the Fund 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
with or without cause, without penalty, on 60 days' notice by the
Fund's Board or by vote of holders of a majority of the relevant
Series outstanding voting securities, or on 90 days' notice by
you. This Agreement will also terminate automatically, as to the
relevant Series, in the event of its assignment (as defined in the
1940 Act and the rules and regulations thereunder).
9. Arbitration
Any claim, controversy, dispute or deadlock arising
under this Agreement (collectively, a "Dispute") shall be settled
by arbitration administered under the rules of the American
Arbitration Association ("AAA") in New York, New York. Any
arbitration and award of the arbitrators, or a majority of them,
shall be final and the judgment upon the award rendered may be
entered in any state or federal court having jurisdiction. No
punitive damages are to be awarded.
10. Miscellaneous
So long as you act as a principal underwriter and
distributor of Shares, you shall not perform any services for any
entity other than investment companies advised or administered by
Citigroup Inc. or its subsidiaries. The Fund recognizes that the
persons employed by you to assist in the performance of your
duties under this Agreement may not devote their full time to such
service and nothing contained in this Agreement shall be deemed to
limit or restrict the persons employed by you or any of your
affiliates right to engage in and devote time and attention to
other businesses or to render services of whatever kind or nature,
provided, however, that in conducting such business or rendering
such services your employees and affiliates would take reasonable
steps to assure that the other parties involved are put on notice
as to the legal entity with which they are dealing. This
Agreement and the terms and conditions set forth herein shall be
governed by, and construed in accordance with, the laws of the
State of New York without giving effect to its conflict of
interest principles.
11. Limitation of Liability
The Fund and you agree that the obligations of the Fund
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 Fund, individually, but
are binding only upon the assets and property of the Fund, 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 Fund, 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 Fund 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, whereupon this Agreement will
become binding on you.
Very truly yours,
[NAME OF FUND]
By: _____________________
Authorized Officer
Accepted:
PFS DISTRIBUTORS, INC.
By: __________________________
Authorized Officer
Page: 3
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\Distrib(PFS).doc 8
FORM OF
DISTRIBUTION AGREEMENT
[Date]
Xxxxxxx Xxxxx Xxxxxx 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, [Fund Name] (the "Fund") a
[corporation/business trust] organized under the laws of [the
State of Maryland/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
Fund (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 Fund.
1.5 Xxxxxxx Xxxxx Barney will transmit any orders
received by it for purchase or redemption of Shares to the Fund'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 Fund'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 Fund 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 Fund at an annual
rate set forth in the Services and Distribution Plan (the "Plan")
based on the average daily net assets of the Fund; 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 Fund, 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 Fund to prospective shareholders of the
Fund;
(e) costs involved in preparing, printing and
distributing sales literature pertaining to the Fund; and
(f) costs involved in obtaining whatever
information, analyses and reports with respect to marketing
and promotional activities that the Fund 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 Fund and to the sub-investment advisor
and/or administrator of the Fund 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 Fund
2.1 The Fund 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 Fund shall furnish from time to time for use
in connection with the sale of the Shares, such information
reports with respect to the Fund and its Shares as Xxxxxxx Xxxxx
Barney may reasonably request, all of which shall be signed by one
or more of the Fund's duly authorized officers; and the Fund
warrants that the statements contained in any such reports, when
so signed by the Fund's officers, shall be true and correct. The
Fund shall also furnish Salomon Xxxxx Xxxxxx upon request with (a)
annual audits of the Fund's books and accounts made by independent
certified public accountants regularly retained by the Fund; (b)
semi-annual unaudited financial statements pertaining to the Fund;
(c) quarterly earnings statements prepared by the Fund; (d) a
monthly itemized list of the securities in the Fund'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 Fund's financial condition as Xxxxxxx Xxxxx Barney
may reasonably request.
3. Representations and Warranties
The Fund represents to Xxxxxxx Xxxxx Xxxxxx that all
registration statements, prospectuses and statements of additional
information filed by the Fund 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 Fund with the SEC and any amendments and
supplements thereto which at any time shall have been filed with
the SEC. The Fund 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 Fund 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 Fund's counsel,
be necessary or advisable. If the Fund shall not propose such
amendment or amendments and/or supplement or supplements within
fifteen days after receipt by the Fund of a written request from
Xxxxxxx Xxxxx Xxxxxx to do so, Xxxxxxx Xxxxx Barney may, at its
option, terminate this Agreement. The Fund 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 Fund'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 Fund may deem advisable, such right being in all
respects absolute and unconditional.
4. Indemnification
4.1 The Fund authorizes Xxxxxxx Xxxxx Xxxxxx and
dealers to use any prospectus or statement of additional
information furnished by the Fund from time to time, in connection
with the sale of the Shares. The Fund 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 Fund'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 Fund's agreement
to indemnify Xxxxxxx Xxxxx Barney and the Fund's representations
and warranties herein before set forth in paragraph 3 of this
Agreement shall not be deemed to cover any liability to the Fund
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 Fund's agreement to indemnify
Xxxxxxx Xxxxx Barney, its officers and directors, and any such
controlling person, as aforesaid, is expressly conditioned upon
the Fund'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 Fund at its principal office in New York, New
York and sent to the Fund 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 Fund
of any such action shall not relieve the Fund from any liability
that the Fund 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
Fund's indemnity agreement contained in this paragraph 4.1. The
Fund 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 Fund and approved by Xxxxxxx Xxxxx Barney. In the event
the Fund 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 Fund does not elect to assume the defense of any such suit, or
if Xxxxxxx Xxxxx Barney does not approve of counsel chosen by the
Fund, the Fund 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 Fund's
indemnification agreement contained in this paragraph 4.1 and the
Fund'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 Fund'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 Fund agrees to notify Xxxxxxx
Xxxxx Xxxxxx promptly of the commencement of any litigation or
proceedings against the Fund or any of its officers or Directors
in connection with the issuance and sale of any of the Fund's
Shares.
4.2 Xxxxxxx Xxxxx Barney agrees to indemnify, defend
and hold the Fund, its several officers and Directors, and any
person who controls the Fund 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 Fund,
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 Fund, 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 Fund 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 Fund and required to be stated in such answers or necessary to
make such information not misleading. Xxxxxxx Xxxxx Xxxxxx'x
agreement to indemnify the Fund, 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 Fund, 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 Fund, if such action is based solely upon such alleged
misstatement or omission on Xxxxxxx Xxxxx Barney's part, and in
any other event the Fund, 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 Fund, 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 Fund 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 Fund'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 Fund 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 Fund 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 Fund's obligation to repurchase its Shares from
any shareholder in accordance with the provisions of the Fund'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 Fund 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], and
continue for successive annual periods thereafter so long as such
continuance is specifically approved at least annually by (a) the
Fund'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 Fund'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 Fund 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 Fund agrees
that, at Xxxxxxx Xxxxx Barney's request, the Fund's license to use
the words "Xxxxxxx Xxxxx Xxxxxx" will terminate and that the Fund
will take all necessary action to change the name of the Fund to a
name not including the words "Xxxxxxx Xxxxx Barney."
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,
[FUND NAME]
By:
__________________
________
Title
Accepted:
XXXXXXX XXXXX XXXXXX INC.
By: __________________________
Authorized Officer
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