Exhibit No. 5(c)
XXXXXXXX XXXXXXXX LIR MONEY SERIES
DISTRIBUTION CONTRACT
CONTRACT made as of February 1, 2000 between XXXXXXXX XXXXXXXX LIR
MONEY SERIES, a Delaware business trust ("Fund"), and Xxxxxxxx Xxxxxxxx Asset
Management Inc., a Delaware corporation ("Xxxxxxxx Xxxxxxxx").
WHEREAS the Fund is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company and
currently has five distinct series of shares of beneficial interest, each of
which include corresponds to a distinct portfolio;
WHEREAS two of these series of shares of beneficial interest have been
designated as LIR Cash Reserves Fund and LIR Liquid Assets Fund (each a
"Series"); and
WHEREAS the Fund's board of trustees ("Board") has established an
unlimited number of shares of beneficial interest of the above-referenced Series
("Shares"); and
WHEREAS the Fund desires to retain Xxxxxxxx Xxxxxxxx as principal
distributor in connection with the offering and sale of the Shares of the
above-referenced Series; and
WHEREAS Xxxxxxxx Xxxxxxxx is willing to act as principal distributor of
the Shares of each such Series on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Fund hereby appoints Xxxxxxxx Xxxxxxxx as its
exclusive agent to be the principal distributor to sell and to arrange for the
sale of the Shares on the terms and for the period set forth in this Contract.
Xxxxxxxx Xxxxxxxx hereby accepts such appointment and agrees to act hereunder.
It is understood, however, that this appointment does not preclude sales of the
Shares directly through the Fund's transfer agent in the manner set forth in the
Registration Statement. As used in this Contract, the term "Registration
Statement" shall mean the currently effective registration statement of the
Fund, and any supplements thereto, under the Securities Act of 1933, as amended
("1933 Act"), and the 1940 Act.
2. SERVICES AND DUTIES OF XXXXXXXX XXXXXXXX.
(a) Xxxxxxxx Xxxxxxxx agrees to sell the Shares on a best
efforts basis from time to time during the term of this Contract as agent for
the Fund and upon the terms described in the Registration Statement.
(b) Upon the later of the date of this Contract or the initial
offering of the Shares by a Series, Xxxxxxxx Xxxxxxxx will hold itself available
to receive purchase orders, satisfactory to Xxxxxxxx Xxxxxxxx, for Shares of
that Series and will accept such orders on behalf
of the Fund as of the time of receipt of such orders and promptly transmit such
orders as are accepted to the Fund's transfer agent. Purchase orders shall be
deemed effective at the time and in the manner set forth in the Registration
Statement.
(c) Xxxxxxxx Xxxxxxxx in its discretion may enter into
agreements to sell Shares to such registered and qualified retail dealers as it
may select. In making agreements with such dealers, Xxxxxxxx Xxxxxxxx shall act
only as principal and not as agent for the Fund.
(d) The offering price of the Shares of each Series shall be
the net asset value per Share as determined by the Fund in accordance with each
Series' currently effective prospectus. The Fund shall promptly furnish Xxxxxxxx
Xxxxxxxx with a statement of each computation of net asset value.
(e) Xxxxxxxx Xxxxxxxx shall not be obligated to sell any
certain number of Shares.
(f) To facilitate redemption of Shares by shareholders
directly or through dealers, Xxxxxxxx Xxxxxxxx is authorized but not required on
behalf of the Fund to repurchase Shares presented to it by shareholders and
dealers at the price determined in accordance with, and in the manner set forth
in, the Registration Statement.
(g) Xxxxxxxx Xxxxxxxx shall have the right to use any list of
shareholders of the Fund or any other list of investors which it obtains in
connection with its provision of services under this Contract; provided,
however, that Xxxxxxxx Xxxxxxxx shall not sell or knowingly provide such list or
lists to any unaffiliated person.
3. AUTHORIZATION TO ENTER INTO EXCLUSIVE DEALER CONTRACTS AND TO
DELEGATE DUTIES AS DISTRIBUTOR. With respect to the Shares of any or all Series,
Xxxxxxxx Xxxxxxxx may enter into an exclusive dealer agreement with any other
registered and qualified dealer with respect to sales of the Shares. In a
separate contract or as part of any such exclusive dealer agreement, Xxxxxxxx
Xxxxxxxx also may delegate to another registered and qualified dealer
("sub-distributor") any or all of its duties specified in this Contract,
provided that such separate contract or exclusive dealer agreement imposes on
the sub-distributor bound thereby all applicable duties and conditions to which
Xxxxxxxx Xxxxxxxx is subject under this Contract, and further provided that such
separate contract or exclusive dealer agreement meets all requirements of the
1940 Act and rules thereunder.
4. SERVICES NOT EXCLUSIVE. The services furnished by Xxxxxxxx
Xxxxxxxx hereunder are not to be deemed exclusive and Xxxxxxxx Xxxxxxxx shall be
free to furnish similar services to others so long as its services under this
Contract are not impaired thereby. Nothing in this Contract shall limit or
restrict the right of any director, officer or employee of Xxxxxxxx Xxxxxxxx,
who may also be a trustee, officer or employee of the Fund, to engage in any
other business or to devote his or her time and attention in part to the
management or other aspects of any other business, whether of a similar or a
dissimilar nature.
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5. COMPENSATION AND REIMBURSEMENT OF DISTRIBUTION EXPENSES. The Fund
shall have no obligation to compensate or reimburse Xxxxxxxx Xxxxxxxx for any
services performed by it hereunder.
6. DUTIES OF THE FUND.
(a) The Fund reserves the right at any time to withdraw
offering Shares of any or all Series, or any or all class or classes thereof, by
written notice to Xxxxxxxx Xxxxxxxx at its principal office.
(b) The Fund shall determine in its sole discretion whether
certificates shall be issued with respect to the Shares. If the Fund has
determined that certificates shall be issued, the Fund will not cause
certificates representing Shares to be issued unless so requested by
shareholders. If such request is transmitted by Xxxxxxxx Xxxxxxxx, the Fund will
cause certificates evidencing Shares to be issued in such names and
denominations as Xxxxxxxx Xxxxxxxx shall from time to time direct.
(c) The Fund shall keep Xxxxxxxx Xxxxxxxx fully informed of
its affairs and shall make available to Xxxxxxxx Xxxxxxxx copies of all
information, financial statements, and other papers which Xxxxxxxx Xxxxxxxx may
reasonably request for use in connection with the distribution of Shares,
including, without limitation, certified copies of any financial statements
prepared for the Fund by its independent public accountant and such reasonable
number of copies of the most current prospectus, statement of additional
information, and annual and interim reports of any Series as Xxxxxxxx Xxxxxxxx
may request, and the Fund shall cooperate fully in the efforts of Xxxxxxxx
Xxxxxxxx to sell and arrange for the sale of the Shares of the Series and in the
performance of Xxxxxxxx Xxxxxxxx under this Contract.
(d) The Fund shall take, from time to time, all necessary
action, including payment of the related filing fee, as may be necessary to
register the Shares under the 1933 Act to the end that there will be available
for sale such number of Shares as Xxxxxxxx Xxxxxxxx may be expected to sell. The
Fund agrees to file, from time to time, such amendments, reports, and other
documents as may be necessary in order that there will be no untrue statement of
a material fact in the Registration Statement, nor any omission of a material
fact which omission would make the statements therein misleading.
(e) The Fund shall use its best efforts to qualify and
maintain the qualification of an appropriate number of Shares of each Series for
sale under the securities laws of such states or other jurisdictions as Xxxxxxxx
Xxxxxxxx and the Fund may approve, and, if necessary or appropriate in
connection therewith, to qualify and maintain the qualification of the Fund as a
broker or dealer in such jurisdictions; provided that the Fund shall not be
required to amend its Trust Instrument or By-Laws to comply with the laws of any
jurisdiction, to maintain an office in any jurisdiction, to change the terms of
the offering of the Shares in any jurisdiction from the terms set forth in its
Registration Statement, to qualify as a foreign corporation in any jurisdiction,
or to consent to service of process in any jurisdiction other than with respect
to claims arising out of the offering of the Shares. Xxxxxxxx Xxxxxxxx shall
furnish such information
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and other material relating to its affairs and activities as may be required by
the Fund in connection with such qualifications.
7. EXPENSES OF THE FUND. The Fund shall bear all costs and expenses
of registering the Shares with the Securities and Exchange Commission and
qualifying the shares with state and other regulatory bodies, and shall assume
expenses related to communications with shareholders of each Series, including
(i) fees and disbursements of its counsel and independent public accountant;
(ii) the preparation, filing and printing of registration statements and/or
prospectuses or statements of additional information required under the federal
securities laws; (iii) the preparation and mailing of annual and interim
reports, prospectuses, statements of additional information and proxy materials
to shareholders; and (iv) the qualifications of Shares for sale and of the Fund
as a broker or dealer under the securities laws of such jurisdictions as shall
be selected by the Fund and Xxxxxxxx Xxxxxxxx pursuant to Paragraph 6(e) hereof,
and the costs and expenses payable to each such jurisdiction for continuing
qualification therein.
8. EXPENSES OF XXXXXXXX XXXXXXXX. Xxxxxxxx Xxxxxxxx shall bear all
costs and expenses of (i) preparing, printing and distributing any materials not
prepared by the Fund and other materials used by Xxxxxxxx Xxxxxxxx in connection
with the sale of Shares under this Contract, including the additional cost of
printing copies of prospectuses, statements of additional information, and
annual and interim shareholder reports other than copies thereof required for
distribution to existing shareholders or for filing with any federal or state
securities authorities; (ii) any expenses of advertising incurred by Xxxxxxxx
Xxxxxxxx in connection with such offering; (iii) the expenses of registration or
qualification of Xxxxxxxx Xxxxxxxx as a broker or dealer under federal or state
laws and the expenses of continuing such registration or qualification; and (iv)
all compensation paid to Xxxxxxxx Xxxxxxxx' employees and others for selling
Shares, and all expenses of Xxxxxxxx Xxxxxxxx, its employees and others who
engage in or support the sale of Shares as may be incurred in connection with
their sales efforts.
9. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold Xxxxxxxx
Xxxxxxxx, its officers and directors, and any person who controls Xxxxxxxx
Xxxxxxxx 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
Xxxxxxxx Xxxxxxxx, its officers, 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 alleged untrue statement of a material fact contained in the
Registration Statement or arising out of or based upon any alleged omission to
state a material fact required to be stated in the Registration Statement or
necessary to make the statements therein not misleading, except insofar as such
claims, demands, 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 upon and in conformity with information furnished in writing by
Xxxxxxxx Xxxxxxxx to the Fund for use in the Registration Statement; provided,
however, that this indemnity agreement shall not inure to the benefit of any
person who is also an officer or trustee of the Fund or who controls the Fund
within the meaning of Section 15 of the 1933 Act, unless a court of competent
jurisdiction shall determine, or it shall have been
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determined by controlling precedent, that such result would not be against
public policy as expressed in the 1933 Act; and further provided, that in no
event shall anything contained herein be so construed as to protect Xxxxxxxx
Xxxxxxxx against any liability to the Fund or to the shareholders of any Series
to which Xxxxxxxx Xxxxxxxx would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations under this Contract. The
Fund shall not be liable to Xxxxxxxx Xxxxxxxx under this indemnity agreement
with respect to any claim made against Xxxxxxxx Xxxxxxxx or any person
indemnified unless Xxxxxxxx Xxxxxxxx or other such person shall have notified
the Fund in writing of the claim within a reasonable time after the summons or
other first written notification giving information of the nature of the claim
shall have been served upon Xxxxxxxx Xxxxxxxx or such other person (or after
Xxxxxxxx Xxxxxxxx or the person shall have received notice of service on any
designated agent). However, failure to notify the Fund of any claim shall not
relieve the Fund from any liability which it may have to Xxxxxxxx Xxxxxxxx or
any person against whom such action is brought otherwise than on account of this
indemnity agreement. The Fund shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume the defense of any suit
brought to enforce any claims subject to this indemnity agreement. If the Fund
elects to assume the defense of any such claim, the defense shall be conducted
by counsel chosen by the Fund and satisfactory to indemnified defendants in the
suit whose approval shall not be unreasonably withheld. In the event that the
Fund elects to assume the defense of any suit and retain counsel, the
indemnified defendants shall bear the fees and expenses of any additional
counsel retained by them. If the Fund does not elect to assume the defense of a
suit, it will reimburse the indemnified defendants for the reasonable fees and
expenses of any counsel retained by the indemnified defendants. The Fund agrees
to notify Xxxxxxxx Xxxxxxxx promptly of the commencement of any litigation or
proceedings against it or any of its officers or trustees in connection with the
issuance or sale of any of its Shares.
(b) Xxxxxxxx Xxxxxxxx agrees to indemnify, defend, and hold
the Fund, its officers and trustees, 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 cost of
investigating or defending against such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Fund, its trustees or
officers, or any such controlling person may incur under the 1933 Act or under
common law or otherwise arising out of or based upon any alleged untrue
statement of a material fact contained in information furnished in writing by
Xxxxxxxx Xxxxxxxx to the Fund for use in the Registration Statement, arising out
of or based upon any alleged omission to state a material fact in connection
with such information required to be stated in the Registration Statement
necessary to make such information not misleading, or arising out of any
agreement between Xxxxxxxx Xxxxxxxx and any retail dealer, or arising out of any
supplemental sales literature or advertising used by Xxxxxxxx Xxxxxxxx in
connection with its duties under this Contract. Xxxxxxxx Xxxxxxxx shall be
entitled to participate, at its own expense, in the defense or, if it so elects,
to assume the defense of any suit brought to enforce the claim, but if Xxxxxxxx
Xxxxxxxx elects to assume the defense, the defense shall be conducted by counsel
chosen by Xxxxxxxx Xxxxxxxx and satisfactory to the indemnified defendants whose
approval shall not be unreasonably withheld. In the event that Xxxxxxxx Xxxxxxxx
elects to assume the defense of any suit and retain counsel, the defendants in
the suit shall bear the fees and expenses of any additional counsel retained by
them. If
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Xxxxxxxx Xxxxxxxx does not elect to assume the defense of any suit, it will
reimburse the indemnified defendants in the suit for the reasonable fees and
expenses of any counsel retained by them.
10. LIMITATION OF LIABILITY OF THE TRUSTEES, OFFICERS AND SHAREHOLDERS
OF THE FUND. The trustees and officers of the Fund and the shareholders of any
Series shall not be liable for any obligations of the Fund or any Series under
this Contract, and Xxxxxxxx Xxxxxxxx agrees that, in asserting any rights or
claims under this Contract, it shall look only to the assets and property of the
Fund or the particular Series in settlement of such right or claims, and not to
such trustees, officers or shareholders.
11. SERVICES PROVIDED TO THE FUND BY EMPLOYEES OF XXXXXXXX XXXXXXXX.
Any person, even though also an officer, director, employee or agent of Xxxxxxxx
Xxxxxxxx, who may be or become an officer, trustee, employee or agent of the
Fund, shall be deemed, when rendering services to the Fund or acting in any
business of the Fund, to be rendering such services to or acting solely for the
Fund and not as an officer, director, employee or agent or one under the control
or direction of Xxxxxxxx Xxxxxxxx even though paid by Xxxxxxxx Xxxxxxxx.
12. DURATION AND TERMINATION.
(a) This Contract shall become effective upon the date written
above, provided that, with respect to any Series, this Contract shall not take
effect with respect to a class of Shares of that Series unless such action has
first been approved by vote of a majority of the Board and by vote of a majority
of those trustees of the Fund who are not interested persons of the Fund, and
have no direct or indirect financial interest in this Contract or in any
agreements related thereto (all such Trustees collectively being referred to
herein as the "Independent Trustees"), cast in person at a meeting called for
the purpose of voting on such action.
(b) Unless sooner terminated as provided herein, this Contract
shall continue in effect for two years from the above written date. Thereafter,
if not terminated, this Contract shall continue automatically for successive
periods of twelve months each, provided that such continuance is specifically
approved at least annually (i) by a vote of a majority of the Independent
Trustees, cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by the Board or, with respect to a Series or class of Shares
thereof, by vote of a majority of the outstanding voting securities of that
Series or class.
(c) Notwithstanding the foregoing, with respect to a Series or
class of Shares thereof, this Contract may be terminated at any time, without
the payment of any penalty, by vote of the Board, by vote of a majority of the
Independent Trustees or by vote of a majority of the outstanding voting
securities of that Series or class on sixty days' written notice to Xxxxxxxx
Xxxxxxxx or by Xxxxxxxx Xxxxxxxx at any time, without the payment of any
penalty, on sixty days' written notice to the Fund or such Series. This Contract
will automatically terminate in the event of its assignment.
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(d) Termination of this Contract with respect to any given
Series or class of Shares of a Series shall in no way affect the continued
validity of this Contract or the performance thereunder with respect to any
other Series or class of Shares.
13. AMENDMENT OF THIS CONTRACT. No provision of this Contract 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.
14. GOVERNING LAW. This Contract shall be construed in accordance with
the laws of the State of Delaware and the 1940 Act. To the extent that the
applicable laws of the State of Delaware conflict with the applicable provisions
of the l940 Act, the latter shall control.
15. NOTICE. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient upon receipt in writing at the
other party's principal offices.
16. MISCELLANEOUS. The captions in this Contract 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. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms "majority of the outstanding voting securities," "interested person"
and "assignment" shall have the same meaning as such terms have in the l940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first above
written.
ATTEST: XXXXXXXX XXXXXXXX LIR MONEY SERIES
/s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------- ------------------------------------
Name: Xxxxxxxx Xxxxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Vice President and Assistant
Secretary
ATTEST: XXXXXXXX XXXXXXXX ASSET MANAGEMENT
INC.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. X'Xxxxxxx
-------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. X'Xxxxxxx
Title: Vice President Title: Senior Vice President
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