Exhibit (e)(2)
FORM OF
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this ___ day of ________, 2000 (the
"Agreement") by and between Northern Institutional Funds (the "Fund"), a
Delaware business trust, and Northern Funds Distributors, LLC, a Wisconsin
limited liability company (the "Distributor").
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and is currently offering shares of beneficial interest (the "Shares"),
representing interests in investment portfolios of the Fund identified on
Schedule A hereto (the "Portfolios") which are registered with the Securities
and Exchange Commission (the "SEC") pursuant to the Fund's Registration
Statement on Form N-1A (the "Registration Statement"); and
WHEREAS, the Fund desires to retain the Distributor as distributor for the
Portfolios to provide for the sale and distribution of the Shares of the
Portfolios identified on Schedule A and for such additional classes or series as
the Fund may issue, and the Distributor is prepared to provide such services
commencing on the date first written above.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth herein and intending to be legally bound hereby the parties hereto agree
as follows:
1. Service as Distributor
----------------------
1.1 The Fund hereby appoints the Distributor as exclusive distributor of the
Shares covered by the Registration Statement then in effect under the
Securities Act of 1933, as amended (the "1933 Act"), on the terms and for
the periods set forth in this Agreement. The Distributor hereby accepts
such appointment and agrees to render the services and perform the duties
set forth in this Agreement without compensation. The Distributor will
have no liability for payment for the purchase of Shares by unaffiliated
investors sold pursuant to this Agreement or with respect to redemptions or
repurchases of Shares.
1.2 The Distributor agrees to sell Shares of each of the Portfolios, as agent,
from time to time during the term of this Agreement at the Shares' then
current net asset value (with any purchase price adjustments, as
applicable). The net asset value of the Shares shall be determined in the
manner provided in the then current prospectus and statement of additional
information relating to the Shares (collectively, the "Prospectus" and
"Statement of Additional Information"), and when determined shall be
applicable to all transactions as provided in the Prospectus. The net
asset value of the Shares shall be calculated by the Fund or by another
entity on behalf of the Fund. The Distributor shall have no duty to
inquire into, or liability for, the accuracy of the net asset value per
Share as calculated.
1.3 The Distributor agrees to use appropriate efforts to solicit orders for the
sale of the Shares. The Distributor shall, at its own expense, finance
appropriate activities which are primarily intended to result in the sale
of Shares, including, but not limited to, the
distribution services set forth in Schedule B to this Agreement. It is
contemplated that the Distributor will enter into selling agreements with
securities dealers, financial institutions and other industry
professionals, such as investment advisers, accountants and estate planning
firms to the extent permitted by SEC and NASD regulations or other
governing law, with respect to the offering of Shares to the public. The
Distributor will require each dealer with whom the Distributor has a
selling agreement to conform to the applicable provisions of the
Registration Statement, with respect to the public offering price of the
Shares, and the Distributor shall not cause the Fund to withhold the
placing of purchase orders so as to make a profit thereby.
1.4 The Fund understands that the Distributor is now, and may in the future be,
the distributor of the shares of several investment companies or series
(collectively, the "Investment Entities"), including Investment Entities
having investment objectives similar to those of the Portfolios. The Fund
further understands that investors and potential investors in the
Portfolios may invest in shares of such other Investment Entities. The Fund
agrees that the Distributor's duties to such Investment Entities shall not
be deemed in conflict with its duties to the Fund under this Section 1.4.
1.5 The Distributor shall not utilize any materials in connection with the sale
or offering of Shares except the Fund's then current Prospectus and
Statement of Additional Information and such other materials as the Fund
shall provide or approve. The Fund agrees to furnish the Distributor with
sufficient copies of any and all communications with the public or other
materials which the Fund intends to use in connection with any sales of
Shares, in adequate time for the Distributor to file and clear such
materials with the proper authorities before they are put in use. The
Distributor and the Fund may agree that any such material does not need to
be filed subsequent to distribution. In addition, the Fund agrees not to
use any such materials until so filed and cleared for use, if required, by
appropriate authorities as well as by the Distributor.
1.6 All activities by the Distributor and its agents and employees, 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 SEC or the National Association of Securities Dealers.
1.7 The Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Fund.
1.8 Whenever in its judgment such action is warranted, the Fund may decline to
accept any orders for, or make any sales of, the Shares until such time as
the Fund deems it advisable to accept such orders and to make such sales,
and the Fund shall notify the Distributor promptly of any such
determination.
1.9 The Fund agrees to execute any and all documents and to furnish any and all
information and otherwise to take all actions that may be reasonably
necessary in connection with the qualification of the Shares for sale in
such states where Shares are offered for sale. The Fund shall notify the
Distributor in writing of the states in which the Shares are to be sold
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and shall notify the Distributor in writing of any changes to the
information contained in the previous notification.
1.10 The Fund shall furnish from time to time, for use in connection with the
sale of the Shares, such information with respect to the Fund and the
Shares as the Distributor may reasonably request; and the Fund warrants
that the statements contained in any such information shall fairly show or
represent what they purport to show or represent. The Fund shall also
furnish the Distributor upon request with: (a) audited annual statements
and unaudited semi-annual statements of a Portfolio's books and accounts
prepared by the Fund, (b) quarterly earnings statements of a Portfolio
prepared by the Fund, (c) a monthly itemized list of the securities in a
Portfolio, (d) monthly balance sheets as soon as practicable after the end
of each month, and (e) from time to time such additional information
regarding the financial condition of a Portfolio as the Distributor may
reasonably request.
1.11 The Fund represents to the Distributor that all Registration Statements
and Prospectuses filed by the Fund with the SEC under the 1933 Act with
respect to the Shares have been prepared in conformity with the
requirements of the 1933 Act and the rules and regulations of the SEC
thereunder. As used in this Agreement, the term "Registration Statement"
shall mean any Registration Statement and any Prospectus and any Statement
of Additional Information relating to the Fund filed with the SEC and any
amendments or supplements thereto at any time filed with the SEC. Except
as to information included in the Registration Statement in reliance upon
information provided to the Fund by the Distributor or any affiliate of
the Distributor expressly for use in the Registration Statement, the Fund
represents and warrants to the Distributor that any Registration
Statement, when such Registration Statement becomes effective, will
contain statements required to be stated therein in conformity with the
1933 Act and the rules and regulations of the SEC; that all statements of
fact contained in any such Registration Statement will be true and correct
when such Registration Statement becomes effective; and that no
Registration Statement 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
Distributor 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 as, in the light of future
developments, may, in the opinion of the Distributor's counsel, be
necessary or advisable. The Distributor shall promptly notify the Fund of
any advice given to it by its counsel regarding the necessity or
advisability of amending or supplementing such Registration Statement. 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 the Distributor to do so, the Distributor may, at its option,
terminate this Agreement. The Fund shall not file any amendment to any
Registration Statement or supplement to any Prospectus without giving the
Distributor 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, of whatever character, as the Fund
may deem
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advisable, such right being in all respects absolute and unconditional.
The Fund authorizes the Distributor to use any Prospectus or Statement of
Additional Information in the form furnished by the Fund from time to time
in connection with the sale of the Shares.
1.12 No Shares shall be offered by either the Distributor or the Fund under any
of the provisions of this Agreement and no orders for the purchase or sale
of Shares hereunder shall be accepted by the Fund if and so long as
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 Section 1.12 shall in
any way restrict or have any application to or bearing upon the Fund's
obligation to redeem Shares tendered for redemption by any shareholder in
accordance with the provisions of the Fund's Registration Statement or
Agreement and Declaration of Trust.
1.13 The Fund agrees to advise the Distributor as soon as reasonably practical
by a notice in writing delivered to the Distributor:
(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
by service of process on the Fund 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 amendments to any
Registration Statement, Prospectus or Statement of Additional
Information which may from time to time be filed with the SEC.
For purposes of this Section 1.13, informal requests by or acts of the
staff of the SEC shall not be deemed actions of or requests by the SEC.
1.14 The Fund represents and warrants to the Distributor that the Fund is an
investment company registered under the 1940 Act and the Shares sold by
each Portfolio are, and will be, registered under the 1933 Act.
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1.15 The Distributor agrees to maintain, and preserve for the periods
prescribed by Rule 31a-2 under the 1940 Act, such records as are required
to be maintained by Rule 31a-1(d) under the 1940 Act.
2. Compensation and Expenses
-------------------------
The Fund will bear the following expenses:
(a) preparation, printing and distribution of sufficient copies of the
Prospectus and Statement of Additional Information to existing
shareholders;
(b) preparation, printing and distribution of reports and other
communications (not prepared by the Distributor) to existing
shareholders;
(c) registration of the Shares under the federal and state securities
laws;
(d) maintaining facilities for the issue and transfer of Shares;
(e) supplying information, prices and other data to be furnished by the
Fund under this Agreement;
(f) any original issue taxes or other transfer taxes applicable to the
sale or delivery of the Shares or certificates therefor; and
(g) any payments made in accordance with any plan hereafter adopted
pursuant to Rule 12b-1 under the 1940 Act.
3. Indemnification
---------------
3.1 The Fund agrees to indemnify and hold the Distributor, its officers,
directors, and employees, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, free and harmless from
and against any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and liabilities of
any sort or kind which the Distributor, its officers, directors, employees
or any such controlling person may incur under the 1933 Act, under any
other statute, or under common law or otherwise, arising out of or based
upon (i) any untrue statement, or alleged untrue statement, of a material
fact contained in the Fund's Registration Statement,
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Prospectus or Statement of Additional Information (including amendments
and supplements thereto), or (ii) any omission, or alleged omission, to
state a material fact required to be stated in the Fund's Registration
Statement, Prospectus or Statement of Additional Information (including
amendments or supplements thereto) or necessary to make the statements
therein not misleading; provided, however, that insofar as any losses,
claims, damages, costs, charges, payments, liabilities or expenses arise
out of or are based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information furnished to the Fund by the Distributor or its affiliated
persons for use in the Fund's Registration Statement, Prospectus or
Statement of Additional Information (including amendments or supplements
thereto), such indemnification is not applicable; and further provided
that the Fund's agreement to indemnify the Distributor and the Fund's
representations and warranties hereinbefore set forth in Section 1.11
shall not be deemed to cover any liability to the Fund, its officers,
trustees or shareholders to which the Distributor would otherwise be
subject by reason of: (a) the Distributor's willful misfeasance, bad faith
or negligence in the performance of its duties and obligations, or by
reason of the Distributor's reckless disregard of its duties and
obligations under this Agreement; or (b) the Distributor's breach of
Section 12 of this Agreement. The Fund agrees and acknowledges that the
Distributor has not prior to the date hereof assumed, and will not assume,
any obligations or liabilities arising out of the conduct of the Fund or
its distributor prior to the date hereof of those duties which the
Distributor has agreed to perform pursuant to this Agreement. The Fund
further agrees to indemnify the Distributor against any losses, claims,
damages or liabilities to which the Distributor may become subject in
connection with the conduct by the Fund or its distributor of such duties
prior to the date hereof; provided that the Fund's agreement to indemnify
the Distributor shall not be deemed to cover any liability to the Fund,
its officers, trustees or shareholders to which the Distributor would
otherwise be subject by reason of willful misfeasance, bad faith or
negligence in the performance of its duties and obligations, or by reason
of the Distributor's reckless disregard of its duties and obligations
under this Agreement.
3.2 The Distributor agrees to indemnify and hold harmless the Fund, its
several officers and trustees and each person, if any, who controls a
Portfolio within the meaning of Section 15 of the 1933 Act, from and
against any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and liabilities of
any sort or kind which the Fund, its officers or trustees, or any such
controlling person, may incur under the 1933 Act, under any other statute,
or under common law or otherwise, but only to the extent that such
liability or expense incurred by the Fund, its officers or trustees, or
any controlling person, resulting from such claims or demands, shall arise
out of or be based upon any untrue statement, or alleged untrue statement,
of a material fact contained in the Fund's Registration Statement,
Prospectus or Statement of Additional Information (including amendments
and supplements thereto), or any omission, or alleged omission, to state 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 to the Fund by the
Distributor or its affiliated persons (as defined in the 1940 Act). The
Distributor also agrees to indemnify and hold harmless the Fund, its
officers or trustees, or any controlling person in connection with any
claim or in connection with any action, suit or proceeding which arises
out of or is alleged to arise out of: (a) the Distributor's willful
misfeasance, bad faith or negligence in the performance of its duties and
obligations, or by reason of the Distributor's reckless disregard of its
duties and obligations under this Agreement; or (b) the Distributor's
breach of Section 12 of this Agreement. The foregoing rights of
indemnification shall be in addition to any other rights to which the
Fund, its officers or trustees, or any controlling person shall be
entitled to as a matter of law.
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3.3 In any case in which one party hereto (the "Indemnifying Party") may be
asked to indemnify or hold the other party hereto (the "Indemnified
Party") harmless, the Indemnified Party will notify the Indemnifying Party
in writing promptly after identifying any situation which it believes
presents or appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party, although the
failure to do so shall not relieve the Indemnifying Party from any
liability which it may otherwise have to the Indemnified Party, and the
Indemnified Party shall keep the Indemnifying Party advised with respect
to all developments concerning such situation. The Indemnifying Party
shall be entitled to participate at its own expense in the defense, or if
it so elects, to assume the defense of, any Indemnification Claim which
may be the subject of this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be conducted by counsel
of good standing chosen by the Indemnifying Party and approved by the
Indemnified Party, which approval shall not be unreasonably withheld. In
the event the Indemnifying Party elects to assume the defense of any such
Indemnification Claim and retain such counsel, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by the
Indemnified Party. In the event that the Indemnifying Party does not elect
to assume the defense of any such Indemnification Claim, or in case the
Indemnified Party reasonably does not approve of counsel chosen by the
Indemnifying Party, or in case there is a conflict of interest between the
Indemnifying Party or the Indemnified Party, the Indemnifying Party will
reimburse the Indemnified Party for the fees and expenses of any counsel
retained by the Indemnified Party. The Fund agrees promptly to notify the
Distributor of the commencement of any litigation or proceedings against
the Fund or any of its officers or trustees in connection with the issue
and sale of any of the Shares, and the Distributor agrees promptly to
notify the Fund of the commencement of any litigation or proceedings
against the Distributor or any of its officers, directors, employees or
controlling persons in connection with the issuance and sale of any of the
Shares. The Indemnified Party will not confess any Indemnification Claim
or make any compromise in any case in which the Indemnifying Party will be
asked to provide indemnification, except with the Indemnifying Party's
prior written consent.
3.4 The obligations of the parties hereto under this Section 3 shall survive
the termination of this Agreement.
3.5 The Fund's indemnification agreement contained in this Section 3 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 the Distributor, its officers, directors and
employees, or any controlling person, and shall survive the delivery of
any Shares. This agreement of indemnity will inure exclusively to the
Distributor's benefit, to the benefit of its several officers, directors
and employees, and their respective estates and to the benefit of its
controlling persons and their successors.
3.6 The Distributor's indemnification agreement contained in this Section 3
and the Distributor'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 the Fund
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or its officers and trustees, or any controlling person, and shall survive
the delivery of any Shares.
4. Standard of Care; Limitation of Liability
-----------------------------------------
4.1 The Distributor shall not be liable to the Fund for any error of judgment
or mistake of law or for any loss suffered by the Fund in connection with
the performance of its obligations and duties under this Agreement, except
a loss resulting from: (a) the Distributor's willful misfeasance, bad
faith or negligence in the performance of such obligations and duties, or
by reason of its reckless disregard thereof; or (b) the Distributor's
breach of Section 12 of this Agreement.
4.2 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
4.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
TRUSTEES, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO THE
OTHER PARTY FOR CONSEQUENTIAL DAMAGES, PROVIDED, HOWEVER, THAT NOTHING
CONTAINED IN THIS SECTION 4.3 SHALL BE CONSTRUED SO AS TO LIMIT THE RIGHTS
OF ANY SHAREHOLDER OF THE FUND, WHETHER SUING ON HIS, HER OR ITS OWN
BEHALF OR DERIVATIVELY THROUGH THE FUND, TO CONSEQUENTIAL DAMAGES.
5. Term
----
5.1 This Agreement shall become effective on the date first written above and,
unless sooner terminated as provided herein, shall continue until March
31, 2001 and thereafter shall continue automatically for successive one-
year terms, provided such continuance is specifically approved at least
annually by (i) the Fund's Board of Trustees or (ii) by a vote of a
majority (as defined in the 1940 Act and Rule 18f-2 thereunder) of the
outstanding voting securities of the Fund, provided that in either event
the continuance is also approved by a majority of the trustees who are not
parties to this Agreement and 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 at least sixty days' written
notice, by the Fund's Board of Trustees, by vote of a majority (as defined
in the 1940 Act and Rule 18f-2 thereunder) of the outstanding voting
securities of the Fund, or by the Distributor. This Agreement will also
terminate automatically in the event of its assignment (as defined in the
1940 Act and the rules thereunder).
5.2 In the event a termination notice is given by the Fund and provided that
the Distributor is not in default under this Agreement at the time of such
termination notice, all expenses associated with movement of records and
materials and conversion thereof to a successor distributor will be borne
by the Fund.
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6. Modifications and Waivers
-------------------------
No change, termination, modification, or waiver of any term or condition
of the Agreement shall be valid unless in writing signed by each party. No
such writing shall be effective as against the Distributor unless said
writing is executed by a Senior Vice President, Executive Vice President
or President of the Distributor. No such writing shall be effective as
against the Fund unless said writing is executed by the Chairman of the
Fund's Board of Trustees. A party's waiver of a breach of any term or
condition in the Agreement shall not be deemed a waiver of any subsequent
breach of the same or another term or condition.
7. No Presumption Against Drafter
------------------------------
The Distributor and the Fund have jointly participated in the negotiation
and drafting of this Agreement. The Agreement shall be construed as if
drafted jointly by the Fund and the Distributor, and no presumptions arise
favoring any party by virtue of the authorship of any provision of this
Agreement.
8. Publicity
---------
Neither the Distributor nor the Fund shall release or publish news
releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without prior
review and written approval of the other party; provided, however, that
either party may make such disclosures as are required by legal,
accounting or regulatory requirements after making reasonable efforts in
the circumstances to consult in advance with the other party.
9. Severability
------------
The parties intend every provision of this Agreement to be severable. If a
court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not
affect the validity of the remainder of this Agreement. In such case, the
parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality
of this paragraph, if a court determines that any remedy stated in this
Agreement has failed of its essential purpose, then all other provisions
of this Agreement shall remain fully effective.
10. Force Majeure
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No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or
delay is caused, directly or indirectly, by circumstances beyond such
party's reasonable control. In any such event, the non-performing party
shall be excused from any further performance and observance of the
obligations so affected only for so long as such circumstances prevail and
such
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party continues to use commercially reasonable efforts to recommence
performance or observance as soon as practicable.
11. Miscellaneous
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11.1 Any notice or other instrument authorized or required by this Agreement to
be given in writing to the Fund or the Distributor shall be sufficiently
given if addressed to the party and received by it at its office set forth
below or at such other place as it may from time to time designate in
writing.
To the Fund:
Xxxxx X. Xxxxxx, Esq.
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx - X-0
Xxxxxxx, XX 00000
with a copy to:
W. Xxxxx XxXxxxxx, III, Esq.
One Xxxxx Square
00/xx/ xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
To the Distributor:
Northern Funds Distributors, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
11.2 The laws of the State of Delaware, excluding the applicable provisions of
the 1940 Act, shall govern the interpretation, validity, and enforcement
of this Agreement. To the extent the provisions of Delaware law or the
provisions hereof conflict with the 1940 Act, the 1940 Act shall control.
All actions arising from or related to this Agreement shall be brought in
the state and federal courts sitting in the City of Wilmington, Delaware
and the Distributor and the Fund hereby submit themselves to the exclusive
jurisdiction of those courts.
11.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
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11.4 The captions of this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
11.5 This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and is not intended to
confer upon any other person any rights or remedies hereunder.
12. Confidentiality
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12.1 The parties agree that the Proprietary Information (defined below) is
confidential information of the parties and their respective licensers.
The Fund and the Distributor shall exercise at least the same degree of
care, but not less than reasonable care, to safeguard the confidentiality
of the Proprietary Information of the other as it would protect its own
Proprietary Information. The Fund and the Distributor may use the
Proprietary Information only to exercise their respective rights or
perform their respective duties under this Agreement. Except as otherwise
required by law, the Fund and the Distributor shall not duplicate, sell or
disclose to others the Proprietary Information of the other, in whole or
in part, without the prior written permission of the other party. The Fund
and the Distributor may, however, disclose Proprietary Information to
their respective employees who have a need to know the Proprietary
Information to perform work for the other, provided that the Fund and the
Distributor shall use reasonable efforts to ensure that the Proprietary
Information is not duplicated or disclosed by their respective employees
in breach of this Agreement. The Fund and the Distributor may also
disclose the Proprietary Information to independent contractors, auditors
and professional advisors, provided they first agree in writing to be
bound by confidentiality obligations substantially similar to this Section
12. Notwithstanding the previous sentence, in no event shall either the
Fund or the Distributor disclose the Proprietary Information to any
competitor of the other without specific, prior written consent.
12.2 Proprietary Information means:
(a) any data or information that is completely sensitive material, and
not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance,
operations, customer relationships, customer profiles, sales estimates,
business plans, and internal performance results relating to the past,
present or future business activities of the Fund or the Distributor,
their respective subsidiaries and affiliated companies and the customers,
clients and suppliers of any of them;
(b) any scientific or technical information, design, process, procedure,
formula, or improvement that is commercially valuable and secret in the
sense that its confidentiality affords the Fund or the Distributor a
competitive advantage over its competitors;
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases,
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inventions, know-how, show-how and trade secrets, whether or not
patentable or copyrightable;
(d) all documents, inventions, substances, engineering and laboratory
notebooks, drawings, diagrams, specifications, bills of material,
equipment, prototypes and models, and any other tangible manifestation of
the foregoing of either party which now exist or come into the control or
possession of the other; and
(e) with respect to the Fund, all records and other information relative
to the Fund and its prior, present or potential shareholders (and clients
of such shareholders).
12.3 Notwithstanding the foregoing, it is hereby understood and agreed by the
parties hereto that any marketing strategies, financing plans, customer
profiles, sales estimates, business plans or similar items prepared or
developed by the Distributor for the benefit of the Fund shall be
considered the Proprietary Information of the Fund and nothing in this
Agreement shall be construed to prevent or prohibit the Fund from
disclosing such Proprietary Information to a successor distributor.
12.4 The obligations of the parties hereto under this Section 12 shall survive
the termination of this Agreement.
13. Trustee and Shareholder Liability
---------------------------------
This Agreement is executed by or on behalf of the Fund with respect to
each of the Portfolios and the obligations hereunder are not binding upon
any of the trustees, officers or shareholders of the Fund individually but
are binding only upon the Portfolio to which such obligations pertain and
the assets and property of such Portfolio. All obligations of the Fund
under this Agreement shall apply only on a Portfolio-by-Portfolio basis,
and the assets of one Portfolio shall not be liable for the obligations of
another Portfolio. The Fund's Declaration of Trust is on file with the
Fund.
14. Entire Agreement
----------------
This Agreement, including all Schedules hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous proposals, agreements,
contracts, representations, and understandings, whether written or oral,
between the parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
NORTHERN INSTITUTIONAL FUNDS
By:_________________________
Name:_______________________
Title:______________________
NORTHERN FUNDS DISTRIBUTORS, LLC
By:_________________________
Name:_______________________
Title:______________________
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SCHEDULE A
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NAME OF PORTFOLIOS
Government Select Portfolio
Government Portfolio
Diversified Assets Portfolio
Tax-Exempt Portfolio
Municipal Portfolio
U.S. Government Securities Portfolio
Short-Intermediate Bond Portfolio
Intermediate Bond Portfolio
U.S. Treasury Index Portfolio
Core Bond Portfolio
Bond Portfolio
International Bond Portfolio
Balanced Portfolio
Equity Index Portfolio
Diversified Growth Portfolio
Focused Growth Portfolio
Mid Cap Growth Portfolio
Small Company Index Portfolio
Small Company Growth Portfolio
International Equity Index Portfolio
International Growth Portfolio
Blue Chip 20 Portfolio (previously "MarketCommand Portfolio")
SCHEDULE B
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DISTRIBUTION SERVICES
The Distributor shall, at its own expense, finance appropriate activities which
are primarily intended to result in the sale of the Shares. Such services shall
include, but are not limited to:
1. Preparation and execution of selling agreements
monitoring accruals
monitoring expenses
making disbursements for expenses and fees
2. Advertising and sales literature submission to the NASD
3. Investor qualification calls, as necessary
4. Printing and mailing of Prospectuses to other than existing shareholders
