XXXX XXXXXXX SERIES TRUST
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
December 2, 1996
Xxxx Xxxxxxx Funds, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Distribution Agreement
Dear Sir:
Xxxx Xxxxxxx Series Trust (the "Trust") has been organized as a business trust
under the laws of the Commonwealth of Massachusetts to engage in the business of
an investment company. The Trust's Board of Trustees has selected you to act as
principal underwriter (as such term is defined in Section 2(a)(29) of the
Investment Company Act of 1940, as amended) of the shares of beneficial interest
("shares") of each series of the Trust. The Trust intends to offer shares in two
series designated as Xxxx Xxxxxxx Emerging Growth Fund and Xxxx Xxxxxxx Global
Technology Fund, together with all other series subsequently established by the
Trust (each, a "Fund" and collectively, the "Funds") and made subject to this
Distribution Agreement (the "Agreement"). You are willing, as agent for the
Trust, to sell the shares to the public, to broker-dealers or to both, in the
manner and on the conditions hereinafter set forth. Accordingly, the Trust
hereby agrees with you as follows:
1. Delivery of Documents. The Trust will furnish you promptly with copies,
properly certified or otherwise authenticated, of any registration
statements filed by it with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, or the Investment Company Act of
1940, as amended, together with any financial statements and exhibits
included therein, and all amendments or supplements thereto hereafter
filed.
2. Registration and Sale of Additional Shares. The Trust will from time to
time use its best efforts to register under the Securities Act of 1933, as
amended, such shares not already so registered as you may reasonably be
expected to sell as agent on behalf of the Trust. This Agreement relates to
the issue and sale of shares that are duly authorized and registered and
available for sale by the Trust if, but only if, the Trust sees fit to sell
them. You and the Trust will cooperate in taking such action as may be
necessary from time to time to qualify shares for sale in Massachusetts and
in any other states mutually agreeable to you and the Trust, and to
maintain such qualification if and so long as such shares are duly
registered under the Securities Act of 1933, as amended.
3. Solicitation of Orders. You will use your best efforts (but only in states
in which you may lawfully do so) to obtain from investors unconditional
orders for shares authorized for issue by the Trust and registered under
the Securities Act of 1933, as amended, provided that you may in your
discretion refuse to accept orders for such shares from any particular
applicant.
4. Sale of Shares. Subject to the provisions of Sections 5 and 6 hereof and to
such minimum purchase requirements as may from time to time be indicated in
the Funds' current prospectus, you are authorized to sell as agent on
behalf of the Trust authorized and issued shares registered under the
Securities Act of 1933, as amended. Such sales may be made by you on behalf
of the Trust by accepting unconditional orders to purchase such shares
placed with your investors. The sales price to the public of such shares
shall be the public offering price as defined in Section 6 hereof.
5. Sale of Shares to Investors by the Funds. Any right granted to you to
accept orders for shares or make sales on behalf of the Funds will not
apply to shares issued in connection with the merger or consolidation of
any other investment company with any Fund or its acquisition, by purchase
or otherwise, of all or substantially all the assets of any investment
company or substantially all the outstanding shares of any such company,
and such right shall not apply to shares that may be offered or otherwise
issued by a Fund to shareholders by virtue of their being shareholders of
that Fund.
6. Public Offering Price. All shares sold by you as agent for the Funds will
be sold at the public offering price, which will be determined in the
manner provided in the Fund's prospectus or statement of additional
information, as now in effect or as it may be amended .
7. No Sales Discount. The respective Fund shall receive the applicable net
asset value on all sales of shares by you as agent of the Trust.
8. Delivery of Payments. You will deliver to the Transfer Agent all payments
made pursuant to orders accepted by you, and accompanied by proper
applications for the purchase of shares, no later than the first business
day following the receipt by you in your home office of such payments and
applications.
9. Suspension of Sales. If and whenever a suspension of the right of
redemption or a postponement of the date of payment or redemption has been
declared pursuant to the Trust's Declaration of Trust and has become
effective, then, until such suspension or postponement is terminated, no
further orders for shares shall be accepted by you except such
unconditional orders placed with you before you have knowledge of the
suspension. Each Fund reserves the right to suspend the sale of shares and
your authority to accept orders for shares on behalf of the Fund if, in the
judgment of a majority of the Trust's Board of Trustees, it is in the best
interests of the Fund to do so, such suspension to continue for such period
as may be determined by such majority; and in that event, no shares will be
sold by the Fund or by you on behalf of the Fund while such suspension
remains in effect except for shares necessary to cover unconditional orders
accepted by you before you had knowledge of the suspension.
10. Expenses. The Trust will pay (or will enter into arrangements providing
that persons other than you will pay) all fees and expenses in connection
with the preparation and filing of any registration statement and
prospectus or amendments thereto under the Securities Act of 1933, as
amended, covering the issue and sale of shares and in connection with the
qualification of shares for sale in the various states in which the Funds
shall determine it advisable to qualify such shares for sale. It will also
pay the issue taxes or (in the case of shares redeemed) any initial
transfer taxes thereon. You will pay all expenses of printing prospectuses
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and other sales literature, all fees and expenses in connection with your
qualification as a dealer in various states, and all other expenses in
connection with the sale and offering for sale of the shares of the Fund
which have not been herein specifically allocated to the Fund.
11. Conformity with Law. You agree that in selling the shares you will duly
conform in all respects with the laws of the United States and any state in
which such shares may be offered for sale by you pursuant to this
Agreement.
12. Indemnification. You agree to indemnify and hold harmless the Trust and
each of its Board members and officers and each person, if any, who
controls the Trust or any Fund within the meaning of Section 15 of the
Securities Act of 1933, as amended, against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to
which the Trust, the Funds or such Board members, officers or controlling
person may become subject under such Act, under any other statute, at
common law or otherwise, arising out of the acquisition of any shares by
any person which (a) may be based upon any wrongful act by you or any of
your employees or representatives or (b) may be based upon any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement, prospectus or statement of additional information
covering shares of the Trust or any amendment thereof or supplement thereto
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading if such statement or omission was made in reliance upon
information furnished or confirmed in writing to the Trust by you, or (c)
may be incurred or arise by reason of your acting as the Trust's agent
instead of purchasing and reselling shares as principal in distributing
shares to the public, provided that in no case is your indemnity in favor
of a Board member or officer of the Funds or the Trust or any other person
deemed to protect such Board member or officer of the Funds or the Trust or
other person against any liability to which any such person would otherwise
be subject by reason of willful misfeasance, bad faith, or gross negligence
in the performance of his duties or by reason of his reckless disregard of
obligations and duties under this Agreement.
You are not authorized to give any information or to make any
representations on behalf of the Funds or the Trust or in connection with the
sale of shares other than the information and representations contained in a
registration statement, prospectus, or statement of additional information
covering shares, as such registration statement, prospectus and statement of
additional information may be amended or supplemented from time to time. No
person other than you is authorized to act as principal underwriter for the
Trust.
13. Duration and Termination of this Agreement. This Agreement shall remain in
force until the conclusion of the first meeting of shareholders of each
Fund following the first public offering of shares and, if approved at that
meeting, from year to year thereafter, but only so long as such continuance
is specifically approved at least annually by (a) a majority of the Board
of Trustees who are not interested persons of you (other than as Board
members) or of the Trust, cast in person at a meeting called for the
purpose of voting on such approval, and (b) either (i) the Board of
Trustees of the Trust, or (ii) a majority of the outstanding voting
securities of the Trust. This Agreement may, on 60 days' written notice, be
terminated at any time, without the payment of any penalty, by the Board of
Trustees of the Trust, by a vote of a majority of the outstanding voting
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securities of the Trust, or by you. This Agreement will automatically
terminate in the event of its assignment by you. In interpreting the
provisions of this Section 13, the definitions contained in Section 2(a) of
the Investment Company Act of 1940 (particularly the definitions of
"interested person", "assignment" and "voting security") shall be applied.
14. Amendment of this Agreement. No provision of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change,
waiver, discharge or termination is sought. If the Trust should at any time
deem it necessary or advisable in the best interests of the Trust that any
amendment of this Agreement be made in order to comply with the
recommendations or requirements of the Securities and Exchange Commission
or other governmental authority or to obtain any advantage under state or
federal tax laws and should notify you of the form of such amendment, and
the reasons therefor, and if you should decline to assent to such
amendment, the Trust may terminate this Agreement forthwith. If you should
at any time request that a change be made in the Trust's Declaration of
Trust or By-Laws, or in its methods of doing business, in order to comply
with any requirements of federal law or regulations of the Securities and
Exchange Commission or of a national securities association of which you
are or may be a member, relating to the sale of shares, and the Trust
should not make such necessary change within a reasonable time, you may
terminate this Agreement forthwith.
15. Miscellaneous. The captions in this Agreement are included for convenience
of reference only and in no way define or limit any of the provisions
hereof or otherwise affect their construction or effect. This Agreement may
be executed simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same instrument.
Very truly yours,
XXXX XXXXXXX SERIES TRUST
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Xxxx X. Xxxxxxx
President
The foregoing Agreement is hereby
accepted as of the date hereof.
XXXX XXXXXXX FUNDS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
Chairman, President and CEO
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