DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT
DISTRIBUTION AND SHAREHOLDER SERVICING AGREEMENT, dated as of March 16,
2000, between XXXXXXXX PORTFOLIOS, INC., a Maryland corporation (the "Fund"),
and XXXXXXXX ADVISORS, INC., a Delaware corporation ("Xxxxxxxx Advisors").
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended ("1940 Act"), as an open-end, diversified management investment
company and has established several separate series of shares (each a
"Portfolio"), with each Portfolio having its own assets and investment policies;
WHEREAS, the Portfolios propose to issue and sell their shares of capital
stock ("Shares") to separate accounts of participating insurance companies to
fund benefits of variable annuity contracts and, upon the receipt of an
exemptive order from the Securities and Exchange Commission ("SEC"), variable
life insurance contracts; and
WHEREAS, the Fund desires to retain Xxxxxxxx Advisors to furnish
distribution services to each Portfolio of the Fund listed in Schedule A
attached hereto, and Xxxxxxxx Advisors is willing to furnish such services.
NOW THEREFORE, in consideration of the mutual agreements herein made, the
parties hereto agree as follows:
1. Exclusive Distributor. The Fund hereby agrees that Xxxxxxxx Advisors shall
be for the period of this Agreement exclusive agent for distribution within
the United States and its territories, and Xxxxxxxx Advisors agrees to use
its best efforts during such period to effect such distribution of Shares
of the Portfolios. The Fund understands that Xxxxxxxx Advisors also acts as
agent for distribution of the shares of capital stock or beneficial
interest of other open-end investment companies which have entered into
management agreements with J. & X. Xxxxxxxx & Co. Incorporated (the
"Manager").
2. Sales of Shares. Xxxxxxxx Advisors is authorized, as agent for the Fund and
not as principal, to sell Shares of the Portfolios to (a) separate accounts
of participating insurance companies in accordance with participation
agreements between the Fund and participating insurance companies to fund
variable annuity contracts and, upon receipt by the Fund of an exemptive
order from the SEC, variable life insurance contracts; or (b) pension or
retirement plans intended to qualify under Sections 401(a) and 501(c) of
the Internal Revenue Code of 1986, as amended; provided, however, that no
sales of Shares shall be confirmed by Xxxxxxxx Advisors at any time when,
according to advice received by Xxxxxxxx Advisors from the Fund, the
officers of the Fund have for any reason sufficient to them temporarily or
permanently suspended or discontinued the sale and issuance of the Shares.
Each sale of Shares of a Portfolio shall be effected by Xxxxxxxx
Advisors only at net asset value, determined in accordance with the Fund's
then current prospectus relating to such Shares. Xxxxxxxx Advisors shall
comply with all applicable laws, rules and regulations including, without
limiting the generality of the foregoing, all rules or regulations made or
adopted pursuant to Section 22 of the Investment Company Act of 1940 (the
"1940 Act") by the Securities and Exchange Commission or any securities
association registered under the Securities Exchange Act of 1934.
The Fund agrees, as long as its Shares may legally be issued, to fill all
orders confirmed by Xxxxxxxx Advisors in accordance with the provisions of
this Agreement.
3. Repurchase Agent. Xxxxxxxx Advisors is authorized, as agent for the Fund
and not as principal, to accept offers for resale to the Fund and to
repurchase on behalf of the Fund Shares of the Portfolios at net asset
values determined by the Fund in conformity with its then current
prospectus relating to such Shares.
4. Compensation. In accordance with the terms of the Portfolios' Shareholder
Servicing and Distribution Plan (the "Plan"), each Portfolio may make
payments from time to time to Xxxxxxxx Advisors in accordance with the
terms and limitations of, and for the purposes set forth in the Plan.
Xxxxxxxx Advisors may use such payments, in its discretion, to compensate
participating insurance companies or other entities who provide
distribution assistance and/or shareholder services to the extent permitted
by the Plan. Xxxxxxxx Advisors will not be entitled to any other
compensation under this Agreement.
5. Expenses. Except as provided in this Agreement and in accordance with the
Plan, Xxxxxxxx Advisors shall pay all its own costs and expenses incurred
in connection with the sale of Shares. Xxxxxxxx Advisors also agrees to pay
all fees and related expenses connected with its own qualification as a
broker or dealer under Federal or State laws.
The Fund agrees to pay all fees and expenses in connection with the
preparation, printing and distribution of copies of any prospectus,
statement of additional information, report or other communication to
shareholders, or any other material used by Xxxxxxxx Advisors in connection
with offering Shares of the Portfolios for sale, all expenses in connection
with the registration of Shares of the Portfolios under the Securities Act
of 1933 (the "Act"), all fees and related expenses which may be incurred in
connection with the qualification of Shares of the Portfolios for sale in
such States (as well as the District of Columbia, Puerto Rico and other
territories) as Xxxxxxxx Advisors may designate, and all expenses in
connection with maintaining facilities for the issue and transfer of
Shares, of
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supplying information, prices and other data to be furnished by it
hereunder, and through [Xxxxxxxx Data Corp.], of all data processing and
related services related to the share distribution activity contemplated
hereby.
The Fund agrees to execute such documents and to furnish such information
as may be reasonably necessary, in the discretion of the Directors of the
Fund, in connection with the qualification of Shares of the Portfolios for
sale in such States (as well as the District of Columbia, Puerto Rico and
other territories) as Xxxxxxxx Advisors may designate, and to pay all
expenses of qualifying the Fund as a dealer or broker under the laws of
such States as may be designated by Xxxxxxxx Advisors, if deemed necessary
or advisable by the Fund.
It is understood and agreed that any payments made to Xxxxxxxx Advisors
pursuant to the Plan may be used to defray some or all of the expenses
incurred by Xxxxxxxx Advisors pursuant to this Agreement.
6. Prospectus and Other Information. The Fund represents and warrants to and
agrees with Xxxxxxxx Advisors that:
(a) A registration statement, including prospectuses relating to the
Shares of the Portfolios, has been filed by the Fund under the Act and
has become effective. Such registration statement, as now in effect
and as from time to time hereafter amended, and also any other
registration statement relating to the Shares which may be filed by
the Fund under the Act which shall become effective, is herein
referred to as the "Registration Statement", and any prospectuses
filed by the Fund as a part of the Registration Statement, as the
"Prospectuses".
(b) At all times during the term of this Agreement, except when the
officers of the Fund have suspended or discontinued the sale and
issuance of Shares of the Portfolios as contemplated by Section 2
hereof, the Registration Statement and Prospectuses will conform in
all respects to the requirements of the Act and the rules and
regulations of the Securities and Exchange Commission, and neither of
such documents will include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statement therein not misleading, except that
the foregoing does not apply to any statements or omissions in either
of such documents based upon written information furnished to the Fund
by Xxxxxxxx Advisors specifically for use therein.
The Fund agrees to prepare and furnish to Xxxxxxxx Advisors from time to
time a copy of its Prospectuses, and authorizes Xxxxxxxx Advisors to use
such
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Prospectuses, in the form furnished to Xxxxxxxx Advisors from time to time,
in connection with the sale of the Portfolios' Shares. The Fund also agrees
to furnish Xxxxxxxx Advisors from time to time, for use in connection with
the sale of such Shares, such information with respect to the Portfolios
and their Shares as Xxxxxxxx Advisors may reasonably request.
7. Reports. Xxxxxxxx Advisors will prepare and furnish to the Directors of the
Fund at least quarterly a written report complying with the requirements of
Rule 12b-1 under the 1940 Act setting forth all amounts expended under the
Plan and the purposes for which such expenditures were made.
8. Indemnification.
(a) The Fund will indemnify and hold harmless Xxxxxxxx Advisors and each
person, if any, who controls Xxxxxxxx Advisors within the meaning of
the Act against any losses, claims, damages or liabilities to which
Xxxxxxxx Advisors or such controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Fund's Registration Statement or any Prospectus
or any other written sales material prepared by the Fund which is
utilized by Xxxxxxxx Advisors in connection with the sale of Shares or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or (in the
case of the Registration Statement and any Prospectus) necessary to
make the statements therein not misleading or (in the case of such
other sales material) necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made; and will reimburse Xxxxxxxx Advisors and each such controlling
person for any legal or other expenses reasonably incurred by Xxxxxxxx
Advisors or such controlling person in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the Fund will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration
Statement or Prospectus in conformity with written information
furnished to the Fund by Xxxxxxxx Advisors specifically for use
therein; and provided, further, that nothing herein shall be so
construed as to protect Xxxxxxxx Advisors against any liability to the
Fund or its security holders to which Xxxxxxxx Advisors would
otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence, in the performance of its duties, or by reason of
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the reckless disregard by Xxxxxxxx Advisors of its obligations and
duties under this Agreement. This indemnity agreement will be in
addition to any liability which the Fund may otherwise have.
(b) Xxxxxxxx Advisors will indemnify and hold harmless the Fund, each of
its Directors and officers and each person, if any, who controls the
Fund within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Fund or any such Director, officer
or controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus or any sales material not
prepared by the Fund which is utilized in connection with the sale of
Shares or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or (in the case of the Registration Statement and Prospectus)
necessary to make the statements therein not misleading or (in the
case of such other sales material) necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, in the case of the Registration Statement and any
Prospectus to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in conformity with written information furnished to the Fund
by Xxxxxxxx Advisors specifically for use therein; and Xxxxxxxx
Advisors will reimburse any legal or other expenses reasonably
incurred by the Fund or any such Director, officer or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which Xxxxxxxx Advisors may otherwise
have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from liability which it may have to any
indemnified party otherwise than under this Section. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to
such indemnified party of its
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election to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation.
9. Effective Date. This Agreement shall become effective upon its execution by
an authorized officer of the respective parties to this Agreement, but in
no event prior to shareholder approval of the Plan.
10. Term of Agreement. This Agreement shall continue in effect until December
31, 2001 and through December 31 of each year thereafter if such
continuance is approved in the manner required by the 1940 Act and the
rules thereunder and Xxxxxxxx Advisors shall not have notified the Fund in
writing at least 60 days prior to the anniversary date of the previous
continuance that it does not desire such continuance. This Agreement may be
terminated with respect to a Portfolio at any time, without payment of
penalty on 60 days' written notice to the other party by vote of a majority
of the Directors of the Fund who are not interested persons (as defined in
the 0000 Xxx) of the Fund and have no direct or indirect financial interest
in the operation of the Plan or any agreement related thereto, or by vote
of a majority of the outstanding voting securities of such Portfolio (as
defined in the 1940 Act). This Agreement shall automatically terminate in
the event of its assignment (as defined in the 1940 Act).
11. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require,
or to impose any duty upon, either of the parties to do anything in
violation of any applicable laws or regulations.
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IN WITNESS WHEREOF, the Fund and Xxxxxxxx Advisors have caused this
Agreement to be executed by their duly authorized officers as of the date first
above written.
XXXXXXXX PORTFOLIOS, INC.
By /s/ Xxxxx X. Xxxx
-----------------------------------
Xxxxx X. Xxxx, President
XXXXXXXX ADVISORS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx, President
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SCHEDULE A
Xxxxxxxx Bond Portfolio Xxxxxxxx Global Technology Portfolio
Xxxxxxxx Capital Portfolio Xxxxxxxx International Growth Portfolio
Xxxxxxxx Cash Management Portfolio Xxxxxxxx High-Yield Bond Portfolio
Xxxxxxxx Common Stock Portfolio Xxxxxxxx Income Portfolio
Xxxxxxxx Communications and Information Xxxxxxxx Large-Cap Growth Portfolio
Portfolio
Xxxxxxxx Frontier Portfolio Xxxxxxxx Large-Cap Value Portfolio
Xxxxxxxx Global Growth Portfolio Xxxxxxxx Small-Cap Value Portfolio
Xxxxxxxx Global Smaller Companies
Portfolio
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