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EXHIBIT 6(e)
DISTRIBUTION AGREEMENT
AGREEMENT made as of this ____ day of January, 1997, between XXXXXXX
XXXXX FUNDS FOR INSTITUTIONS SERIES, a Massachusetts business trust (the
"Trust"), with respect to XXXXXXX XXXXX PREMIER INSTITUTIONAL FUND, a series of
the Trust (the "Fund"), and XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC., a Delaware
corporation (the "Distributor");
W I T N E S S E T H:
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), as a diversified open-end
investment company and it is affirmatively in the interest of the Trust to
offer its shares for sale, continuously; and
WHEREAS, the Distributor is a securities firm engaged in the business
of selling shares of investment companies either directly to purchasers or
through other securities dealers; and
WHEREAS, the Trust and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of the shares of the
Fund after the effectiveness of the registration statement covering the shares
of the Fund filed under the Securities Act of 1933, as amended (the "Securities
Act").
NOW, THEREFORE, the parties agree as follows:
SECTION 1. APPOINTMENT OF THE DISTRIBUTOR. The Trust hereby appoints
the Distributor as the principal underwriter and distributor of the Fund to
sell shares of the Fund to the public, and the Distributor hereby accept such
appointment. The Trust, during the term of this Agreement, shall sell its
shares to the Distributor upon the terms and conditions set forth below.
SECTION 2. EXCLUSIVE NATURE OF DUTIES. The Distributor shall be the
exclusive representative of the Trust to act as principal underwriter and
distributor, except that:
(a) The Trust may, upon written notice to the Distributor, from
time to time designate other principal underwriters and distributors of its
shares with respect to areas other than the United States as to which the
Distributor may have expressly waived in writing its right to act as such. If
such designation is deemed exclusive, the right of the Distributor under this
Agreement to sell shares in the areas so designated shall terminate, but this
Agreement shall remain otherwise in full effect until terminated in accordance
with the other provisions hereof.
(b) The exclusive rights granted to the Distributor to purchase
shares from the Trust shall not apply to shares of the Trust issued in
connection with the merger or consolidation of any other investment company or
personal holding company with the Trust or the Fund or the acquisition by
purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company by the Trust or the Fund.
(c) Such exclusive rights shall also not apply to shares issued by
the Trust pursuant to reinvestment of dividends, capital gains distributions or
otherwise pursuant to its daily reinvestment program.
SECTION 3. PURCHASE OF SHARES FROM THE TRUST.
(a) The Distributor shall have the right to buy from the Trust the
shares needed, but not more than the shares needed (except for clerical errors
in transmission), to fill unconditional orders for shares of the Fund placed
with the Distributor by investors or securities dealers. The price which the
Distributor shall pay for the shares so purchased from the Trust shall be the
net asset value, determined as set forth in Section 3(d) hereof, used in
determining the public offering price on which such orders were based.
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(b) The shares are to be resold by the Distributor to investors at
the public offering price, as set forth in Section 3(c) hereof, or to
securities dealers having agreements with the Distributor upon the terms and
conditions set forth in Section 7 hereof.
(c) The public offering price of the shares, i.e., the price per
share at which the Distributor or selected dealers may sell shares to the
public, shall be the public offering price as set forth in the currently
effective prospectus of the Fund under the Securities Act (the "Prospectus",
which term for purposes of this Agreement shall be deemed to include the Fund's
Statement of Additional Information) relating to such shares, but not to exceed
the net asset value. If the resulting public offering price does not equal an
even cent, the public offering price may be adjusted to the nearest cent. All
payments to the Trust hereunder shall be made in the manner set forth in
Section 3(f).
(d) The net asset value per share of the Fund for purposes of
pricing orders for both the purchase and the redemption of Fund shares shall be
determined at the times and on the days set forth in the Prospectus of the
Fund. The net asset value shall be determined by adding the value of all
securities and other assets in the portfolio, deducting its liabilities and
dividing by the number of shares outstanding.
(e) The Trust shall have the right to suspend the sale of shares of
the Fund at times when redemption is suspended pursuant to the conditions set
forth in Section 4(b) hereof. The Trust shall also have the right to suspend
the sale of shares of the Fund if trading on the New York Stock Exchange shall
have been suspended, if a banking moratorium shall have been declared by
Federal, Massachusetts, or New York authorities, of if there shall have been
some other extraordinary event, which, in the judgment of the Trust, makes it
impracticable to sell the shares.
(f) The Trust, or any agent of the Trust, designated in writing by
it, shall be promptly advised of all purchase orders for shares received by the
Distributor. Procedures may be established whereby purchase orders are
presented directly to the Trust or its designated agent upon the condition that
in such cases it shall be deemed that the issuance of the shares to be
purchased is made pursuant to Section 3 hereof. Any order may be rejected by
the Trust or the Distributor; provided, however, that neither will arbitrarily
or without reasonable cause refuse to accept or confirm orders for the purchase
of shares. The Trust (or its agent) will confirm orders upon their receipt, and
will make appropriate book entries pursuant to the instructions of the
Distributor. Purchase orders are effective when Federal Funds become available
to the Trust. The Distributor agrees to cause such payment and such
instructions to be delivered promptly to the Trust (or its agent).
SECTION 4. REDEMPTION OR REPURCHASE OF SHARES BY THE FUND.
(a) Any of the outstanding shares may be tendered for redemption or
repurchase at any time, and the Trust shall redeem or repurchase the shares so
tendered in accordance with its obligations and rights as set forth in its
Declaration of Trust, as amended from time to time, and in accordance with the
applicable provisions set forth in the most current prospectus of the Fund. The
price to be paid to redeem or repurchase the shares shall be equal to the net
asset value calculated in accordance with the provisions of Section 3(d)
hereof. All payments by the Trust hereunder shall be made in the manner set
forth below. The Trust shall pay the total amount of the redemption price as
defined in the above paragraph pursuant to the instruction of the Distributor
and in accordance with the terms set forth in the most current prospectus.
(b) The Trust reserves the right to reject any order for repurchase
through a securities dealer, but the right to redeem shares, or to receive
payment with respect to any such redemption, upon the presentation of properly
submitted redemption requests in accordance with the procedures set forth in
the most current prospectus of the Fund, may only be suspended for any period
during which trading on the New York Stock Exchange is restricted as determined
by the Securities and Exchange Commission or such Exchange is closed (other
than customary weekend and holiday closings), for any period during which an
emergency exists as defined by the Securities and Exchange Commission as a
result of which disposal of portfolio securities or determination of the net
asset value of the Fund is not reasonably practicable, and for such other
periods as the Securities and Exchange Commission may by order permit for the
protection of shareholders of the Fund.
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SECTION 5. DUTIES OF THE TRUST.
(a) The Trust shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of shares of the
Fund, and this shall include one certified copy, upon request by the
Distributor, of all financial statements prepared for the Trust with respect to
the Fund by independent public accountants. The Trust shall make available to
the Distributor such number of copies of the most current prospectus of the
Fund as the Distributor shall reasonably request.
(b) The Board of Trustees shall take, from time to time, all
necessary action to fix the number of the Fund's authorized shares and such
steps as may be necessary to register the same under the Securities Act to the
extent that there will be available for sale such number of shares as the
Distributor reasonably may be expected to sell.
(c) The Trust shall use its best efforts to qualify and maintain
the qualification of an appropriate number of the Fund's shares for sale under
the securities laws of such states as the Distributor and the Trust may
approve. Any such qualification may be withheld, terminated or withdrawn by the
Trust at any time in its discretion. As provided in Section 8(c) hereof, the
expense of qualification and maintenance of qualification shall be borne by the
Trust. The Distributor shall furnish such information and other material
relating to its affairs and activities as may be required by the Trust in
connection with such qualifications.
(d) The Trust will furnish, in reasonable quantities upon request
by the Distributor, copies of annual and interim reports of the Fund.
SECTION 6. DUTIES OF THE DISTRIBUTOR.
(a) The Distributor shall devote reasonable time and effort to
effect sales of shares of the Fund, but shall not be obligated to sell any
specific number of shares. The services of the Distributor to the Trust
hereunder are not to be deemed exclusive and nothing herein contained shall
prevent the Distributor from entering into like arrangements with other
investment companies so long as the performance of its obligations hereunder is
not impaired thereby.
(b) In selling the shares of the Fund, the Distributor shall use
its best efforts in all respects duly to conform with the requirements of all
federal and state laws and regulations and the regulations of the National
Association of Securities Dealers, Inc. (the "NASD") relating to the sale of
such securities. Neither the Distributor nor any selected dealer nor any other
person is authorized by the Trust to give any information or to make any
representations, other than those contained in the registration statement or
related prospectus or any sales literature specifically approved by the Trust.
(c) The Distributor shall adopt and follow procedures, as approved
by the officers of the Trust, for the confirmation of sales to investors and
selected dealers, the collection of amounts payable by investors and selected
dealers on such sales, and the cancellation of unsettled transactions, as may
be necessary to comply with the requirements of the NASD, as such requirements
may from time to time exist.
(d) The Distributor shall receive amounts from Fund Asset
Management, L.P., the Fund's Investment Adviser, for payment to third parties
for providing support services to the Fund. These services may include
providing office space, equipment, telephone facilities and various personnel
as is necessary or beneficial to establish and maintain shareholders' accounts
and records, process purchase and redemption transactions, answer routine
client inquiries regarding the Fund, and provide such other services to the
Fund as the Fund may reasonably request.
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SECTION 7. SELECTED DEALER AGREEMENTS.
(a) The Distributor shall have the right to enter into selected dealer
agreement with securities dealers of its choice ("selected dealers") for the
sale of shares; provided that the form of selected dealer agreements shall be
approved by the Trust. Shares sold to selected dealers shall be for resale by
such dealers only in accordance with the provisions of the prospectus.
(b) Within the United States, the Distributor shall offer and sell
shares only to such selected dealers as are members in good standing of the
NASD.
SECTION 8. PAYMENTS OF EXPENSES.
(a) The Trust shall bear all costs and expenses of the Fund, including
fees and disbursements of its counsel and auditors, in connection with the
preparation and filing of any required registration statements and/or
prospectuses under the Investment Company Act, the Securities Act, and all
amendments and supplements thereto, and preparing and mailing annual and
interim reports and proxy materials to shareholders (including but not limited
to the expense of setting in type any such registration statements,
prospectuses, statements of additional information, annual or interim reports
or proxy materials).
(b) After the prospectuses, statements of additional information, and
annual and interim reports have been prepared and set in type, the Distributor
shall bear the costs and expenses of printing and distributing any copies
thereof which are to be used in connection with the offering of shares to
selected dealers or investors. The Distributor shall bear the costs and
expenses of preparing, printing and distributing any other literature used by
the Distributor or furnished by it for use by selected dealers in connection
with the offering of the shares for sale to the public. Any expenses of
advertising incurred in connection with such offering will be the obligation of
the Adviser.
(c) The Trust shall bear the cost or expenses (other than auditing
expenses) of qualification of the shares for sale, and, if necessary or
advisable in connection therewith, of qualifying the Trust as a broker or
dealer, in such states of the United States or other jurisdictions as shall be
selected by the Trust and the Distributor pursuant to Section 5(c) hereof and
the costs and expenses payable to each such state for continuing qualification
therein until the Trust decides to discontinue such qualification pursuant to
Section 5(c) hereof.
SECTION 8. INDEMNIFICATION.
(a) The Trust shall indemnify and hold harmless the Distributor and
each person, if any, who controls the Distributor against any loss, liability,
claim, damage or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damage or expense and reasonable
counsel fees incurred in connection therewith), arising by reason of any person
acquiring any shares, which may be based upon the Securities Act, or on any
other statute or at common law, on the ground that the registration statement
or related prospectus, as from time to time amended and supplemented, or the
annual or interim reports to shareholders of the Fund, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, unless such statement or omission was made in reliance upon, and in
conformity with, information furnished to the Trust in connection therewith by
or on behalf of the Distributor; provided, however, that in no case (i) is the
indemnity of the Trust in favor of the Distributor and any such controlling
persons to be deemed to protect such Distributor or any such controlling
persons thereof against any liability to the Trust or the Fund's security
holders to which the Distributor or any such controlling persons would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of their duties or by reason of the reckless
disregard of their obligations and duties under this Agreement, or (ii) is the
Trust to be liable under its indemnity agreement contained in this subsection
(a) with respect to any claim made against the Distributor or such controlling
persons, unless the Distributor or such controlling persons, as the case may
be, shall have notified the Trust in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon the Distributor or such controlling persons
(or after the Distributor or such controlling persons shall have received
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notice of such service on any designated agent), but failure to notify the Trust
of any such claim shall not relieve it from any liability which it may have to
the person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. The Trust will be entitled to
participate at its own expense in the defense of any suit brought to enforce any
such liability, but if the Trust elects to assume the defense, such defense
shall be conducted by counsel chosen by it and satisfactory to the Distributor
or such controlling person or persons, defendant or defendants in the suit. In
the event the Trust elects to assume the defense in any such suit and retain
such counsel, the Distributor or such controlling person or persons, defendant
or defendants in the suit, shall bear the fees and expenses of any additional
counsel retained by them but in case the Trust does not elect to assume the
defense of any such suit, it will reimburse the Distributor or such controlling
person or persons, defendant or defendants in the suit, for the reasonable fees
and expenses of any counsel retained by them. The Trust shall promptly notify
the Distributor of the commencement of any litigation or proceeding against it
or any of its offices or directors in connection with the issuance or sale of
any of the shares.
(b) The Distributor shall indemnify and hold harmless the Trust and
each of its Trustees and officers and each person, if any, who controls the
Trust against any loss, liability, claim, damage, or expense described in the
foregoing indemnity contained in subsection (a) of this Section 9, but only
with respect to statements or omissions made in reliance upon, and in
conformity with, information furnished to the Trust in writing by or on behalf
of the Distributor for use in connection with the registration statement or
related prospectus, as from time to time amended, or the annual or interim
reports to shareholders. In case any action shall be brought against the Trust
or any person so indemnified, in respect of which indemnity may be sought
against the Distributor, the Distributor shall have the rights and duties given
to the Trust, and the Trust and each person so indemnified shall have the
rights and duties given to the Distributor by the provisions of subsection (a)
of this Section 9.
SECTION 10. TERM OF AGREEMENT. This Agreement shall commence on
the date of its execution. Unless sooner terminated in accordance with the
other provisions hereof, this Agreement shall continue in effect from year to
year hereafter, but only so long as such continuance is specifically approved
at least annually by (i) the vote of a majority of the Board of Trustees who
are not parties to this Agreement or interested persons (within the meaning of
the Investment Company Act) of the Trust or the Distributor, cast in person at
a meeting called for the purpose of voting on such approval, and (ii) either
the Board of Trustees of the Trust or a vote of a majority (within the meaning
of the Investment Company Act) of the outstanding voting securities of the Fund.
SECTION 11. TERMINATION AND ASSIGNMENT.
(a) This Agreement may be terminated at any time, without payment
of any penalty, by the Board of Trustees, by vote of a majority of the
outstanding voting securities of the Fund, or by the Distributor, on sixty
days' written notice to the other party.
(b) This Agreement shall not be assignable by either party hereto
and in the event of assignment (as defined in the Investment Company Act) this
Agreement shall automatically terminate forthwith.
SECTION 12. NOTICES. Any notice required or permitted to be given
hereunder by either party to the other shall be deemed sufficiently given if
sent by registered mail, postage prepaid, addressed by the party giving such
notice to the other party at the last address furnished by such other party to
the party giving notice, and unless and until changed pursuant to the foregoing
provisions hereof addressed, if to the Fund at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, and if to the Distributor at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
SECTION 13. GOVERNING LAW. This Agreement is to the extent
applicable governed and construed in accordance with the laws of the State of
New Jersey.
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SECTION 14. LIMITATION OF LIABILITY OF TRUSTEES, SHAREHOLDERS,
OFFICERS, EMPLOYEES AND AGENTS.
The Declaration of Trust establishing the Trust, dated May 7, 1987, a
copy of which, together with all amendments thereto (the "Declaration"), is on
file in the office of the Secretary of the Commonwealth of Massachusetts,
provides that the name "Xxxxxxx Xxxxx Funds For Institutions Series" refers to
the Trustees under the Declaration collectively as trustees, but not as
individuals or personally; and no Trustee, shareholder, officer, employee or
agent of the Trust may be held to any personal liability, nor may resort be had
to their private property for the satisfaction of any obligation or claim
or otherwise in connection with the affairs of said Trust but the Trust
Property only shall be
liable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
XXXXXXX XXXXX FUNDS DISTRIBUTORS, INC.
By:
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Name:
Title:
XXXXXXX XXXXX FUNDS FOR INSTITUTIONS
SERIES
By:
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Name:
Title:
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