Exhibit (e)(2)
XXXXXXX XXXXX TRUST
Distribution Agreement
April 30, 1997, as amended July 27, 1999
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Xxxxxxx Xxxxx Trust (the "Trust"), an open-end
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management investment company organized as a business trust under the laws of
the State of Delaware, and consisting of one or more separate series, has
appointed you, the "Distributor," and that you shall be the exclusive
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distributor in connection with the offering and sale of the shares of beneficial
interest, par value $.001 per share (the "Shares"), corresponding to each of the
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series of the Trust listed in Exhibit A, as the same may be supplemented from
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time to time (each such series, a "Fund"). Each Fund may offer one or more
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classes of its shares (each a "Class") which Classes shall have such relative
rights and conditions and shall be sold in the manner set forth from time to
time in the Trust's Registration Statements, as defined below. The organization,
administration and policies of each Fund are described in its respective
Prospectuses and SAIs (as those terms are defined below). (This letter, as
amended from time to time, shall be referred to hereinafter as the "Agreement".)
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1. Definitions. (a) The terms which follow, when used in this Agreement,
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shall have the meanings indicated.
"Effective Date" shall mean the date that any Registration
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Statement or any post-effective amendment thereto becomes effective.
"Preliminary Prospectus" shall mean any preliminary prospectus
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relating to the Shares of a Fund or Funds or one or more Classes
included in any Registration Statement or filed with the Securities and
Exchange Commission (the "Commission") pursuant to Rule 497(a).
"Prospectus" shall mean any prospectus relating to the Shares of
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a Fund or Funds or one or more Classes, filed with the Commission
pursuant to Rule 497 or, if no filing pursuant to Rule 497 is required,
the form of final prospectus relating thereto included in any
Registration Statement, in each case together with any amendments or
supplements thereto.
"Registration Statement" shall mean any registration statement
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on Form N-1A relating to the Shares of a Fund, including all exhibits
thereto, as of the Effective Date of the most recent post-effective
amendment thereto. The registration statements of the Trust may be
separately filed with the Commission according to its fixed income,
equity and money market fund offerings.
"Rule 497" refers to such rule (or any successor rule or rules)
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under the Securities Act (as defined in Section 2 below).
"SAI" shall mean any statement of additional information
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relating to the Shares of a Fund or Funds or one or more Classes, filed
with the Commission pursuant to Rule 497 or, if no filing pursuant to
Rule 497 is required, the final statement of additional information
included in any Registration Statement.
The "Initial Acceptance Date" of any Fund shall mean the first
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date on which the Trust sells Shares of such Fund pursuant to
any Registration Statement.
References in this Agreement to "Rules and Regulations" shall be
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deemed to be references to such rules and regulations as then in effect,
and references to this Agreement and the Fund Agreements (as defined in
Section 2 below), shall be deemed to be references to such agreements as
then in effect.
2. Representations and Warranties. The Trust represents and warrants to and
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agrees with you, for
your benefit and the benefit of each Authorized Dealer (as defined in
Section 3 below), as set forth below in this Section 2. Each of the
representations, warranties and agreements made in this Section 2 shall
be deemed made on the date hereof, on the date of any filing of any
Prospectus pursuant to Rule 497 and any Effective Date after the date
hereof, with the same effect as if made on each such date.
(a) The Trust meets the requirements for use of Form N-1A under the
Securities Act of 1933, as amended (the "Securities Act"), the
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Investment Company Act of 1940, as amended (the "Investment Company
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Act"), and the Rules and Regulations of the Commission under each such
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Act and in respect of said form (or of such successor form as the
Commission may adopt). The Trust has filed with the Commission
Registration Statements (File Number 33-17619) on Form N-1A with respect
to an indefinite number of Shares of the Funds and is duly registered as
an open-end management investment company. Prior to the date hereof, the
Trust has filed post-effective amendments to the Registration
Statements, including related Preliminary Prospectuses, for the
registration under the Securities Act and the Investment Company Act of
the offering and sale of the Shares of the Funds, each of which has
previously been furnished to you. Each such amendment has become
effective and no stop order suspending the effectiveness of any such
amendment has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission.
(b) The Trust's notification of registration on Form N-8A (as amended)
complies with the applicable requirements of the Investment Company Act
and the Rules and Regulations thereunder.
(c) Each Registration Statement, Prospectus and SAI conform, and any further
amendments or supplements to any Registration Statement, Prospectus or
SAI will conform, in all material respects, with the Securities Act and
Investment Company Act and the Rules and Regulations thereunder; the
Prospectuses and the SAIs do not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and, on each Effective Date, the
Registration Statements did not and will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein not misleading; provided, however, that the Trust makes no
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representations or warranties as to the information contained in or
omitted from any Registration Statement, Prospectus or SAI in reliance
upon and in conformity with information furnished in writing to the
Trust by you (with respect to information relating solely to your role
as distributor of the Shares of the Funds) expressly for use therein.
(d) No order preventing or suspending the use of any Preliminary Prospectus
has been issued by the Commission, and each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to the
requirements of the Securities Act and the Rules and Regulations of the
Commission thereunder, and did not contain 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, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust by you (with respect to
information relating solely to your role as the exclusive distributor of
the Shares of the Funds) expressly for use therein.
(e) The Trust has been duly created and is lawfully and validly existing as
a business trust under the laws of the State of Delaware, and has, on
the date hereof, and will have, on and after the date hereof, full power
and authority to own its properties and conduct its business as
described in each Registration Statement, Prospectus and SAI, and is
duly qualified to do business under the laws of each jurisdiction which
requires such qualification wherein it owns or leases material
properties or conducts material business.
(f) The Trust's authorized capitalization is as set forth in the
Registration Statements. Issuance of the Shares of the Funds as
contemplated by this Agreement and by each Prospectus and SAI has been
duly and validly authorized, and the Shares of the Funds, when issued
and paid for as contemplated hereby and thereby, will be fully-paid and,
except as contemplated by the Prospectus and SAI, nonassessable and will
conform to the description thereof contained in the corresponding
Prospectus and SAI. The holders of outstanding shares of each Fund are
not entitled to preemptive or other rights
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to subscribe for the Shares of any Fund, other than as contemplated by
the Prospectus and SAI relating to each Fund.
(g) This Agreement has been duly authorized, executed and delivered by the
Trust.
(h) On or prior to the Initial Acceptance Date, all of the agreements
described in each Prospectus and SAI relating to the Fund or Funds whose
Shares are first being sold on such date (collectively, the "Fund
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Agreements") will have been duly authorized, executed and delivered by
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the Trust, and will comply in all material respects with the Investment
Company Act and the Rules and Regulations thereunder.
(i) The Fund Agreements constitute or will constitute, on and after the
Initial Acceptance Date, assuming due authorization, execution and
delivery by the parties thereto other than the Trust, valid and legally
binding instruments, enforceable in accordance with their respective
terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(j) No consent, approval, authorization or order of any court or
governmental agency or body is or shall be required, as the case may be,
for the consummation from time to time of the transactions contemplated
by this Agreement and the Fund Agreements, except such as may be
required (i) under the Securities Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Investment Company Act, the
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Rules and Regulations under each of the foregoing or the Conduct Rules
of the National Association of Securities Dealers, Inc. (the "NASD")
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(any of which that were required before offers were made will have been
obtained before such offers were made and all of which will have been
obtained, with respect to each Fund, by the Effective Date of the
post-effective amendment relating to the Fund, except for those which
become required under such acts or rules or any other law or regulation
after the Fund's Effective Date but that were not required before such
Effective Date, all of which shall be obtained in a timely manner) or
(ii) state securities laws of any jurisdiction in connection with the
issuance, offer or redemption of the Shares of each Fund by the Trust.
(k) The operations and activities of the Trust and each Fund as contemplated
by the Prospectuses and the SAIs, the performance by the Trust and each
Fund of this Agreement and the Fund Agreements, the making of the offer
or the sale of Shares of each Fund and consummation from time to time of
such sales, the redemption of Shares of each Fund, or any other
transactions contemplated herein, in the Fund Agreements, in the
Prospectuses or in the SAIs, will not conflict with, result in a breach
of, or constitute a default under, the declaration of trust or the
Trust's By-laws or, in any material respect, the terms of any other
agreement or instrument to which the Trust is a party or by which it is
bound, or any order or regulation applicable to the Trust of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Trust.
(l) There is not pending, or to the best knowledge of the Trust, threatened,
any action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator to which the Trust is (or, to the
best knowledge of the Trust, is threatened to be) a party, of a
character required to be described in any Registration Statement,
Prospectus or SAI which is not described as required.
(m) There is no contract or other document of a character required to be
described in any Registration Statement, Prospectus or SAI, or to be
filed as an exhibit, which is not described or filed as required.
(n) Except as stated or contemplated in the Registration Statements,
Prospectuses and SAIs, (i) the Trust has not incurred any liabilities or
obligations, direct or contingent, or entered into any transactions,
whether or not in the ordinary course of business, that are material to
the Trust, (ii) there has not been any material adverse change, or, any
development involving a prospective material adverse change, in the
condition (financial or other) of the Trust, (iii) there has been no
dividend or distribution paid or declared in respect of the Trust, and
(iv) the Trust has not incurred any indebtedness for borrowed money.
(o) Each Fund will elect or has elected to be treated as a regulated
investment company as defined in Section 851(a) of the Internal Revenue
Code of 1986 for its first taxable year and will operate so as to
qualify as such in its current and all subsequent taxable years.
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(p) Except as stated or contemplated in any Prospectus or SAI, the Trust
owns all of its assets free and clear in all material respects of all
liens, security interests, pledges, mortgages, charges and other
encumbrances or defects.
3. Selection of Authorized Dealers; Other Services as Distributor.
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(a) With respect to each Class subject to a sales charge, the Distributor
shall have the right on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions
herein set forth, to make arrangements for (i) securities dealers
(including bank-affiliated dealers) that are members in good standing of
the NASD, (ii) foreign securities dealers which are not eligible for
membership in the NASD who have agreed to comply as though they were
NASD members with the provisions of Sections 2730, IM-2730, 2740,
IM-2740, 2750 and IM-2750 of the Conduct Rules of the NASD and with
Section 2420 thereof as that Section applies to a non-NASD member broker
or dealer in a foreign country, or (iii) banks, as defined in Section
3(a)(6) of the Exchange Act, which are duly organized and validly
existing in good standing under the laws of the jurisdiction in which
they are organized, to solicit from the public orders to purchase Shares
of the Funds. Such securities dealers and banks ("Authorized Dealers")
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selected by you in accordance with dealer agreements with you ("Dealer
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Agreements") shall solicit such orders pursuant to their respective
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Dealer Agreements. You will act only on your own behalf as principal in
entering into each such Dealer Agreement. With respect to each Class
that is not subject to a sales charge, you shall act as Principal
Underwriter of such shares.
(b) You acknowledge that the only information provided to you by the Trust
is that contained in each Registration Statement, Prospectus and SAI.
Neither you nor any Authorized 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 relevant Registration Statement,
Prospectus and SAI and any sales literature approved by appropriate
representatives of the Trust. You may undertake or arrange for such
advertising and promotion as you believe is reasonable in connection
with the solicitation of orders to purchase Shares of a Fund; provided,
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however, that you will provide the Trust with and obtain the Trust's
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approval of copies of any advertising and promotional materials
approved, produced or used by you prior to their use. You will file such
materials with the Commission and the NASD as may be required by the
Exchange Act and the Investment Company Act and the Rules and
Regulations thereunder and by the rules of the NASD.
(c) You agree to perform such services as are described in each Registration
Statement, Prospectus and SAI as to be performed by the Distributor
including, without limitation, distributing Account Information Forms.
(d) All of your activities as distributor of the Shares of the Funds shall
comply, in all material respects, with all applicable laws, Rules and
Regulations, including, without limitation, all rules and regulations
made or adopted by the Commission or by any securities association
registered under the Exchange Act, including the NASD, as in effect from
time to time.
4. Offering by the Distributor.
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(a) You will act as agent for the Trust in the distribution of Shares of the
Funds and you agree to use your best efforts to offer and sell Shares of
the Funds subject to a sales charge to the public at the public offering
price as set forth in the relevant Prospectus, subject to any waivers or
reductions of any applicable sales charges, dealer allowances and fees
as you and each of the Authorized Dealers, if any, shall have agreed to
in writing. You may also subscribe for Shares of a Fund as principals
for resale to the public or for resale to Authorized Dealers. You shall
devote reasonable time and effort to effect sales of Shares of the
Funds, but you shall not be obligated to sell any specific number of
Shares. Nothing contained herein shall prevent you from entering into
like distribution arrangements with other investment companies.
(b) The Distributor is authorized to purchase Shares of any Fund presented
to them by Authorized Dealers at the price determined in accordance
with, and in the manner set forth in, the Prospectus for such Fund.
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(c) Unless you are otherwise notified by the Trust, any right granted to you
to accept orders for Shares of any Fund or to make sales on behalf of
the Trust or to purchase Shares of any Fund for resale will not apply to
(i) Shares issued in connection with the merger or consolidation of any
other investment company with the Trust or its acquisition, by purchase
or otherwise, of all or substantially all of the assets of any
investment company or substantially all the outstanding securities of
any such company, and (ii) Shares that may be offered by the Trust to
shareholders by virtue of their being such shareholders.
5. Compensation.
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(a) With respect to any Class which is sold to the public subject to a sales
charge, you will be entitled to receive that portion of the sales
charges applicable to sales of Shares of such Class and not reallocated
to Authorized Dealers as set forth in the relevant Prospectus, subject
to any waivers or reductions of such sales charges, if any, in
accordance with Section 4 of this Agreement. In addition, you shall be
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entitled to receive the entire amount of any contingent deferred sales
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charge imposed and paid by shareholders upon the redemption or
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repurchase of Shares of any Class subject to such charges as set forth
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in the relevant Prospectus, subject to any waivers or reductions of such
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sales charges that may be disclosed in such Prospectus. With respect to
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any shares sold subject to a contingent deferred sales charge, such
charge shall be payable in such amounts as disclosed in the applicable
Prospectus as the same was in effect at the time of sale. The right to
receive any contingent deferred sales charge granted hereunder shall
apply to all shares sold during the term of this Agreement, and to the
extent permitted by the Investment Company Act and other applicable
laws, shall continue with respect to such shares notwithstanding
termination of this Agreement. In connection with each transaction in
which you are acting as an Authorized Dealer, you also will be entitled
to that portion of the sales charges, if any, payable to an Authorized
Dealer in such transaction.
(b) The Trust has entered into Plans of Distribution pursuant to Rule 12b-1
under the 1940 Act ("Rule 12b-1 Plans") with respect to certain classes
of certain Funds. The Trust shall pay to you as distributor of such
Classes the compensation pursuant to the Rule 12b-1 Plans as shall be
set forth from time to time in the Prospectuses and SAIs and provided
for under the Rule 12b-1 Plan.
(c) The amounts payable as compensation pursuant to this Section 5 shall be
subject to the limitations in Section 2830 of the Conduct Rules of the
NASD.
6. Undertakings. The Trust agrees with you, for your benefit, that:
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(a) The Trust shall sell Shares of the Funds so long as it has such Shares
available for sale and shall cause the transfer agent (the "Transfer
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Agent") to record on its books the ownership of such Shares registered
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in such names and amounts as you have requested in writing or other
means, as promptly as practicable after receipt by the Trust of the
payment therefor. The Trust will make such filings under the Investment
Company Act with, and pay such fees to, the Commission as are necessary
to register Shares of any Fund sold by you on behalf of the Trust. Prior
to the termination of this Agreement, the Trust will not file any
amendment to any Registration Statement or amendment or supplement to
any Prospectus or SAI (whether pursuant to the Securities Act, the
Investment Company Act, or otherwise) without prior notice to you;
provided, however, that nothing contained in this Agreement shall in any
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way limit the Trust's right to file such amendments to any Registration
Statement, or amendments or supplements to any Prospectus or SAI as the
Trust may deem advisable, such right being in all respects absolute and
unconditional, it being understood that this proviso shall not relieve
the Trust of its obligation to give prior notice of any such amendment
or supplement to you. Subject to the foregoing sentence, if the filing
of any Prospectus or SAI, as the case may be, contained in any
Registration Statement at the relevant Effective Date, or any amendment
or supplement thereto, is required under Rule 497, the Trust will cause
such Prospectus or SAI, and any amendment or supplement thereto, to be
filed with the Commission pursuant to the applicable paragraph of Rule
497 within the time period prescribed and will, if requested, provide
evidence satisfactory to you of such timely filing. The Trust will
promptly advise you (i) when such Prospectus or SAI shall have been
filed (if required) with the Commission pursuant to Rule 497, (ii) when,
prior to termination of this Agreement, any amendment to any
Registration Statement shall
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have been filed or become effective, (iii) of any request by the
Commission for any amendment of any Registration Statement or amendment
or supplement to any Prospectus or SAI or for any additional information
relating to or that could affect disclosure in any of the foregoing,
(iv) of the issuance by the Commission of any order suspending the
effectiveness of any Registration Statement, or suspending the
registration of the Trust under the Investment Company Act, or the
institution or (to the best knowledge of the Trust) threatening of any
proceeding for that purpose, and (v) of the receipt by the Trust of any
notification with respect to the suspension of the qualification of the
offer or sale of Shares of a Fund in any jurisdiction or the initiation
or (to the best knowledge of the Trust) threatening of any proceeding
for such purpose. The Trust will use its best efforts to prevent the
issuance of any such order or suspension and, if issued, to obtain as
soon as possible the withdrawal or suspension thereof.
(b) If, at any time when a Prospectus or SAI is required to be delivered
under the Securities Act, any event occurs as a result of which such
Prospectus or SAI would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend any Registration
Statement or amend or supplement any Prospectus or SAI to comply with
the Securities Act, the Investment Company Act or the Rules and
Regulations thereunder, the Trust will notify you promptly of any such
circumstance and promptly will prepare and file with the Commission,
subject to the third sentence of Section 6(a), an amendment or
supplement which will correct such statement or omission or effect such
compliance.
(c) As soon as practicable (giving effect to the normal periodic reporting
requirements under the Investment Company Act and the Rules and
Regulations thereunder), the Trust will make generally available to its
shareholders and, subject to Section 8 of this Agreement, to you (with
sufficient copies for the Authorized Dealers), a report containing the
financial statements required to be included in such reports under
Section 30(d) of the Investment Company Act and Rule 30d-1 thereunder.
(d) Subject to Section 8 of this Agreement, the Trust will furnish to you as
many conformed copies of the Registration Statements including exhibits
thereto, on each Effective Date, as you may reasonably request for
yourself and for delivery to the Authorized Dealers and, so long as
delivery of a Prospectus or SAI by you or any Authorized Dealer may be
required by law, the number of copies of each Prospectus and each SAI as
you may reasonably request for yourself and for delivery to the
Authorized Dealers.
(e) To the extent required by applicable state law, the Trust will use its
best efforts to arrange for the qualification of an appropriate number
of the Shares of the Funds for sale under the laws of such of the 00
xxxxxx xx xxx Xxxxxx Xxxxxx, the District of Columbia, the Commonwealth
of Puerto Rico, the Territory of Guam, and such other jurisdiction as
you and the Trust may approve, and will maintain such qualifications in
effect as long as may be reasonably requested by you, provided that the
Trust shall not be required in connection herewith or as a condition
hereto to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction. You shall furnish
such information and other material relating to your affairs and
activities as may be required by the Trust in connection with such
qualifications.
(f) The Trust shall keep you fully informed with respect to its affairs and,
subject to Section 8 of this Agreement, the Trust, if so requested, will
furnish to you, as soon as they are available (with sufficient copies
for the Authorized Dealers), copies of all reports, communications and
financial statements sent by the Trust to its shareholders or filed by,
or on behalf of, the Trust with the Commission.
(g) The Trust agrees that on each date the Trust is required to file with
the Commission a notice under paragraph (b)(1) of Rule 24f-2 under the
Investment Company Act, the Trust, if so requested, shall furnish to you
a copy of the opinion of counsel for the Trust required by such Rule to
the effect that the Shares covered by the notice were legally issued,
fully paid and nonassessable. The Trust further agrees that if, in
connection with the filing of any post-effective amendment to any
Registration Statement after the date of this Agreement:
(i) a change is made to the statements under the caption "Shares of the
Fund" in any Prospectus or SAI that is deemed material by you, the
Trust, if so requested, shall furnish to you an opinion of counsel for
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the Trust, dated the date of such post-effective amendment, to the
effect of paragraph 2 (to the extent it relates to the description of
the Shares);
(ii) the Fund Agreements are amended or modified in any manner, the Trust, if
so requested, shall furnish to you an opinion of counsel for the Trust,
dated the date of such post-effective amendment; or
(iii) any change is made to the statements under the caption "Taxation" in any
Prospectus or SAI, the Trust, if so requested, shall furnish to you an
opinion of counsel for the Trust, dated the date of such post-effective
amendment.
Any opinion or statement furnished pursuant to this Section 6(g) shall
be modified as necessary to relate to this Agreement and the Fund
Agreements and the Rules and Regulations as then in effect and shall
state that the Authorized Dealers may rely on it.
(h) The Trust, if so requested, shall furnish to you on each subsequent
Effective Date with respect to an amendment of a Registration Statement
which first includes certified financial statements for the preceding
fiscal year, in respect of a Fund, a copy of the report of the Trust's
independent public accountants with respect to the financial statements
and selected per share data and ratios relating to such Fund, addressed
to you. The Trust further agrees that the Trust, if so requested, shall
furnish to you (i) on each date on which the Trust, pursuant to the
preceding sentence, furnishes to you a report of its independent public
accountants, a certificate of its treasurer or assistant treasurer in a
form reasonably satisfactory to you describing in reasonable detail how
the figures included under the captions "Portfolio Transactions" and
"Performance Information" (or similar captions) in the Prospectus or SAI
of such Fund and the figures relating to the aggregate amounts of
remuneration paid to officers, trustees and members of the advisory
board and affiliated persons thereof (as required by Section 30(d)(5) of
the Investment Company Act) were calculated and confirming that such
calculations are in conformity with the Rules and Regulations under the
Investment Company Act and (ii) on each date the Trust files with the
Commission the Trust's required semi-annual financial statements, a
certificate of its treasurer or assistant treasurer in a form reasonably
satisfactory to you, describing the manner in which such financial
statements were prepared and confirming that such financial statements
have been prepared in conformity with the Rules and Regulations under
the Investment Company Act.
7. Conditions to Your Obligations as Distributor and Principal Underwriter.
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Your obligations as distributor of the Shares of the Funds shall be
subject to the accuracy of the representations and warranties on the
part of the Trust contained herein as of the dates when made or deemed
to have been made, to the accuracy in all material respects of the
statements made in any certificates, letters or opinions delivered
pursuant to the provisions of Sections 6 or 7 of this Agreement, to the
performance by the Trust of its obligations hereunder and to the
following additional conditions:
(a) If filing of any Prospectus or SAI, or any amendment or supplement to
any Prospectus or SAI, or any other document is required pursuant to any
applicable provision of Rule 497, such Prospectus or SAI, or any such
amendment or supplement and other document will be filed in the manner
and within the time period required by the applicable provision of Rule
497; and no order suspending the effectiveness of the amendment shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the best knowledge of the Trust, threatened and the
Trust shall have complied with any request of the Commission for
additional information (to be included in the relevant Registration
Statement, Prospectus, SAI or as the Commission otherwise shall have
requested).
(b) At the Initial Acceptance Date with respect to each Fund, you shall have
received from counsel to the Distributors, if so requested, such opinion
or opinions, dated the Initial Acceptance Date, with respect to the
issuance and sale of the Shares, the relevant Registration Statement,
Prospectus and SAI and other related matters as you may reasonably
require, and the Trust shall have furnished to such counsel such
documents as they may request for the purpose of enabling them to pass
upon such matters. Each such opinion shall state that the Authorized
Dealers may rely on it.
(c) There shall not have been any change, or any development involving a
prospective change, in or affecting the Trust the effect of which in any
case is, in your good faith judgment, so material and adverse as to make
it impractical or inadvisable to proceed with the offering of Shares of
the Funds as
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contemplated by this Agreement.
(d) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; (iii) the outbreak or
escalation of hostilities involving the United States or the declaration
of a national emergency or war if the effect of any such event specified
in this Clause (iii) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares of a Fund on the terms and in the manner contemplated in any
Prospectus.
(e) The Trust shall have furnished to you such further information,
certificates and documents as you may have reasonably requested.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions, certificates or letters mentioned
above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to you, this
Agreement and all your obligations hereunder may be cancelled by you. In
the event of such cancellation, the Trust shall remain liable for the
expenses set forth in Section 8.
8. Expenses.
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(a) The Trust will pay (or will enter into arrangements providing that
parties other than you will pay) all fees and expenses:
(1) in connection with the preparation, setting in type and filing
of the Registration Statements (including Prospectuses and SAIs)
under the Securities Act or the Investment Company Act, or both,
and any amendments or supplements thereto that may be made from
time to time;
(2) in connection with the registration and qualification of Shares
of the Funds for sale in the various jurisdictions in which it
is determined to be advisable to qualify such Shares of the
Funds for sale (including registering the Trust as a broker or
dealer or any officer of the Trust or other person as agent or
salesman of the Trust in any such jurisdictions);
(3) of preparing, setting in type, printing and mailing any notice,
proxy statement, report, Prospectus, SAI or other communication
to shareholders in their capacity as such;
(4) of preparing, setting in type, printing and mailing Prospectuses
annually, and any supplements thereto, to existing shareholders;
(5) in connection with the issue and transfer of Shares of the Funds
resulting from the acceptance by you of orders to purchase
Shares of the Funds placed with you by investors, including the
expenses of printing and mailing confirmations of such purchase
orders and the expenses of printing and mailing a Prospectus
included with the confirmation of such orders and, if requested
by the purchaser, an SAI;
(6) of any issue taxes or any initial transfer taxes;
(7) of WATS (or equivalent) telephone lines other than the portion
allocated to you in this Section 8;
(8) of wiring funds in payment of Share purchases or in satisfaction
of redemption or repurchase requests, unless such expenses are
paid for by the investor or shareholder who initiates the
transaction;
(9) of the cost of printing and postage of business reply envelopes
sent to shareholders;
(10) of one of more CRT terminals connected with the computer
facilities of the Transfer Agent other than the portion
allocated to you in this Section 8;
-8-
(11) permitted to be paid or assumed by any Fund or Funds or any
Class thereof pursuant to (a) a Rule 12b-1 Plan adopted by such
Fund or Funds in conformity with the requirements of Rule 12b-1
under the Investment Company Act ("Rule 12b-1") or any successor
----------
rule, notwithstanding any other provision to the contrary herein
or (b) any other plan adopted by a Fund providing for account
administration or shareholder liaison services (a "Service
Plan");
(12) of the expense of setting in type, printing and postage of any
periodic newsletter to shareholders other than the portion
allocated to you in this Section 8; and
(13) of the salaries and overhead of persons employed by you as
shareholder representatives other than the portion allocated to
you in this Section 8.
(b) Except as provided in any Rule 12b-1 Plan or Service Plan, you shall pay
or arrange for the payment of all fees and expenses:
(1) of printing and distributing any Prospectuses or reports
prepared for your use in connection with the offering of Shares
of the Funds to the public;
(2) of preparing, setting in type, printing and mailing any other
literature used by you in connection with the offering of Shares
of the Funds to the public;
(3) of advertising in connection with the offering of Shares of the
Funds to the public;
(4) incurred in connection with your registration as a broker or
dealer or the registration or qualification of your officers,
partners, directors, agents or representatives under Federal and
state laws;
(5) of that portion of WATS (or equivalent) telephone lines
allocated to you on the basis of use by investors (but not
shareholders) who request information or Prospectuses;
(6) of that portion of the expense of setting in type, printing and
postage of any periodic newsletter to shareholders attributable
to promotional material included in such newsletter at your
request concerning investment companies other than the Trust or
concerning the Trust to the extent you are required to assume
the expense thereof pursuant to this Section 8, except such
material which is limited to information, such as listings of
other investment companies and their investment objectives,
given in connection with the exchange privilege as from time to
time described in the Prospectuses;
(7) of that portion of the salaries and overhead of persons employed
by you as shareholder representatives attributable to the time
spent by such persons in responding to requests from investors,
but not shareholders, for information about the Trust;
(8) of any activity which is primarily intended to result in the
sale of Shares of any Class of a Fund, unless a 12b-1 Plan shall
be in effect which provides that shares of such Classes shall
bear some or all of such expenses, in which case such Class
shall bear such expenses in accordance with such Plan; and
(9) of that portion of one or more CRT terminals connected with the
computer facilities of the Transfer Agent attributable to your
use of such terminal(s) to gain access to such of the Transfer
Agent's records as also serve as your records.
Expenses which are to be allocated between you and the Trust shall be
allocated pursuant to reasonable procedures or formulae mutually agreed
upon from time to time, which procedures or formulae shall to the extent
practicable reflect studies of relevant empirical data.
9. Indemnification and Contribution.
--------------------------------
(a) The Trust will indemnify you and hold you harmless against any losses,
claims, damages or liabilities, to which you may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue
-9-
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, Registration Statement, Prospectus, or SAI
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 necessary
to make the statement therein not misleading, and will reimburse you for
any legal or other expenses reasonably incurred by you in connection
with investigating or defending any such action or claim; provided,
--------
however, that the Trust shall 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 an untrue statement or alleged untrue statement or
omission or alleged omission made in any Registration Statement, any
Preliminary Prospectus, or any Prospectus or SAI in reliance upon and in
conformity with written information furnished to the Trust by you
expressly for use therein.
(b) You will indemnify and hold harmless the Trust against any losses,
claims, damages or liabilities to which the Trust may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof), arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, any Preliminary
Prospectus, or any Prospectus or SAI, 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 necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Registration Statement, any
Preliminary Prospectus, or any Prospectus or SAI in reliance upon and in
conformity with written information furnished to the Trust by you
expressly for use therein; and will reimburse the Trust for any legal or
other expenses reasonably incurred by the Trust in connection with
investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under such subsection.
In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof
the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection for
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 9 is unavailable to,
or insufficient to hold harmless, an indemnified party under subsection
(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Trust on
the one hand and you on the other from the offering of the Shares of the
Fund or Funds in respect of which such losses, claims, damages or
liabilities (or actions in respect thereof) arose. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Trust on
the one hand and you on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof) as well as any other relative equitable
considerations. The relative benefits received by the Trust on the one
hand and you on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares of the
relevant Funds (before deducting expenses) received by the Trust bear to
the total compensation received by you in selling Shares of such Funds
under this Agreement, including any sales charge as set forth in the
Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Trust on the one hand or you
on the other and the parties' relative
-10-
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Trust and you agree that it
would not be just and equitable if the contributions pursuant to this
subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), you shall not be
required to contribute any amount in excess of the amount by which the
total price at which the Shares of the relevant Funds sold by you and
distributed to the public were offered to the public exceeds the amount
of any damages which you have otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Trust under this Section 9 shall be in addition
to any liability which the Trust may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
you within the meaning of the Securities Act; and your obligations under
this Section 9 shall be in addition to any liability which you may
otherwise have and shall extend, upon the same terms and conditions, to
each trustee or officer of the Trust (including any person who, with his
consent, is named in the relevant Registration Statement as about to
become a trustee of the Trust) and to each person, if any, who controls
the Trust within the meaning of the Securities Act.
(f) It is understood, however, that nothing in this paragraph 9 shall
protect any indemnified party against, or entitle any indemnified party
to indemnification against, or contribution with respect to, any
liability to the Trust or its shareholders to which such indemnified
party is subject, by reason of its willful misfeasance, bad faith or
gross negligence in the performance of its duties, or by reason of any
reckless disregard of its obligations and duties, under this Agreement,
or otherwise to an extent or in a manner that is inconsistent with
Section 17(i) of the Investment Company Act.
10. Term.
----
(a) This Agreement shall commence on the date first set forth above and
continue in effect until June 30, 1998 and then for successive annual
periods after June 30, 1998, provided such continuance is specifically
approved at least annually by (i) the Trustees of the Trust or (ii) a
vote of a majority (as defined in the Investment Company Act) of the
Fund's outstanding voting securities, provided that in either event the
continuance is also approved by a vote of a majority of the Trustees of
the Trust who are not interested persons (as defined in the Investment
Company Act) of the Trust or any party to this Agreement, by vote cast
in person at a meeting called for the purpose of voting on such
approval. The Trust authorizes, if and when you so determine, you to
assign to a third party any payments with respect to one or more Classes
of Shares that you are entitled to receive for your services hereunder,
including any payments of initial or deferred sales charges or payments
in accordance with a Rule 12b-1 or Service Plan so long as such Plan is
in effect, free and clear of any offset, defense or counterclaim the
Trust may have against you and except to the extent that any change or
modification after the date hereof of (x) the provisions of the
Investment Company Act, the Rules and Regulations thereunder or other
applicable law or (y) any interpretation of the Investment Company Act,
the Rules and Regulations thereunder or other applicable law shall
restrict your right to make such transfer free and clear of any offset,
defense or counterclaim.
(b) The sale of Shares of the Funds in accordance with the terms of this
Agreement shall be subject to termination or suspension in the absolute
discretion of the Trust, by notice given to you as set forth in Section
12 hereof.
(c) This Agreement will terminate automatically in the event of its
assignment (as defined in the Investment Company Act). In addition, this
Agreement may be terminated by the Trust at any time with respect to any
Class of its Shares, without the payment of any penalty, by vote of a
majority of the Trustees of the Trust who are not interested persons (as
defined in the Investment Company Act) of the Trust or by a vote of a
majority of the outstanding voting securities of such Class on 60 days'
written notice.
-11-
11. Representation and Indemnities to Survive. The respective agreements,
-----------------------------------------
representations, warranties, indemnities and other statements of the
Trust and you set forth in or made pursuant to this Agreement will, to
the extent permitted by applicable law, remain in full force and effect,
regardless of any investigation made by or on behalf of you, any
Authorized Dealer or the Trust, or any of the controlling persons
referred to in Section 9 hereof, and will survive the offer of the
Shares of the Funds. The provisions of Section 8, 9 and 11 hereof and
your right to receive any contingent deferred sale charges shall, to the
extent permitted by applicable law, survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
-------
only on receipt, and, if sent to you, mailed, delivered or telegraphed
and confirmed to you at Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxxx, Xxx
Xxxx 00000, Attention: Registration Department (Distributors - Xxxxxxx
Sachs Funds) or, if sent to the Trust, mailed, delivered or telegraphed
and confirmed to it at Xxxxxxx Xxxxx Trust, 0000 Xxxxx Xxxxx, Xxxxxxx,
Xxx. 00000, Attention: Secretary.
13. Affiliates. The Trust recognizes that your partners, officers and
----------
employees may from time to time serve as directors, trustees, officers
and employees of corporations and business entities (including other
investment companies), and that you or your affiliates may enter into
distribution or other agreements with other corporations and business
entities.
14. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and, to the
extent set forth herein, each of the officers, trustees and controlling
persons referred to in Section 9 hereof, and no other person will have
any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York.
16. Miscellaneous. The captions in 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. This
Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
The name "Xxxxxxx Sachs Trust" is the designation of the Trustees for
the time being under a Declaration of Trust dated January 28, 1997, as
amended from time to time, and all persons dealing with the Trust must
look solely to the property of the Trust for the enforcement of any
claims against the Trust as neither the Trustees, officers, agents or
shareholders assume any personal liability for obligations entered into
on behalf of the Trust. No series of the Trust shall be liable for any
claims against any other series of the Trust.
-12-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between you and
the Trust, and, to the extent set forth herein, shall be for the benefit of each
Authorized Dealer.
Very truly yours,
XXXXXXX XXXXX TRUST
By: /s/ Xxxxxxx X. Grip
--------------------------------------
Name: Xxxxxxx X. Grip
Title: President of the Trust
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
/s/ Xxxxx X. Xxxx
-----------------------------
(Xxxxxxx, Xxxxx & Co.)
-13-
EXHIBIT A
---------
Series ("Funds") of XXXXXXX SACHS TRUST, a Delaware business trust (the "Trust")
--------------------------------------------------------------------------------
XXXXXXX XXXXX FIXED INCOME FUNDS:
---------------------------------
Xxxxxxx Sachs Adjustable Rate Government Fund
Xxxxxxx Xxxxx Core Fixed Income Fund
Xxxxxxx Sachs Global Income Fund
Xxxxxxx Xxxxx Government Income Fund
Xxxxxxx Sachs Municipal Income Fund
Xxxxxxx Xxxxx Short Duration Tax-Free Fund
Xxxxxxx Sachs Short Duration Government Fund
Xxxxxxx Xxxxx High Yield Fund
XXXXXXX SACHS EQUITY FUNDS:
---------------------------
Xxxxxxx Xxxxx Balanced Fund
Xxxxxxx Sachs CORE Large Cap Growth Fund
Xxxxxxx Xxxxx CORE U.S. Equity Fund
Xxxxxxx Sachs CORE Small Cap Equity Fund
Xxxxxxx Xxxxx CORE International Equity Fund
Xxxxxxx Xxxxx CORE Large Cap Value Fund
Xxxxxxx Sachs Growth and Income Fund
Xxxxxxx Xxxxx Capital Growth Fund
Xxxxxxx Sachs International Equity Fund
Xxxxxxx Xxxxx Small Cap Value Fund
Xxxxxxx Sachs Asia Growth Fund
Xxxxxxx Xxxxx Emerging Markets Equity Fund
Xxxxxxx Sachs Mid-Cap Equity Fund
Xxxxxxx Xxxxx Real Estate Securities Fund
Xxxxxxx Sachs International Small Cap Fund
Xxxxxxx Xxxxx Japanese Equity Fund
Xxxxxxx Sachs European Equity Fund
Xxxxxxx Xxxxx Strategic Growth Fund
Xxxxxxx Sachs Growth Opportunities Fund
Xxxxxxx Xxxxx Internet Toll-Keeper Fund
XXXXXXX SACHS ASSET ALLOCATION PORTFOLIOS
-----------------------------------------
Xxxxxxx Xxxxx Growth Strategy Portfolio
Xxxxxxx Sachs Aggressive Growth Strategy Portfolio
Xxxxxxx Xxxxx Balanced Strategy Portfolio
Xxxxxxx Sachs Growth and Income Strategy Portfolio
Xxxxxxx Xxxxx Conservative Strategy Portfolio
-14-
XXXXXXX SACHS MONEY MARKET FUNDS:
---------------------------------
Xxxxxxx Xxxxx-Institutional Liquid Assets Portfolios:
-----------------------------------------------------
Prime Obligations Portfolio
Government Portfolio
Treasury Obligations Portfolio
Federal Portfolio
Money Market Portfolio
Treasury Instruments Portfolio
Tax-Exempt Diversified Portfolio
Tax-Exempt California Portfolio
Tax-Exempt New York Portfolio
Financial Square Funds:
-----------------------
Prime Obligations Fund
Government Fund
Treasury Obligations Fund
Money Market Fund
Tax-Free Money Market Fund
Federal Fund
Treasury Instruments Fund
Municipal Money Market Fund
Premium Money Market Fund
-15-
