EXHIBIT 6
XXXXXXXX SERIES TRUST II
DISTRIBUTION AGREEMENT
Agreement, dated and effective as of December 9, 1997, between Xxxxxxxx
Series Trust II, a Delaware business trust (the "Trust") and Xxxxxxxx Fund
Advisors Inc., a New York corporation (the "Adviser").
1. The Trust is an open-end investment company organized as a Delaware
business trust and is authorized to issue shares of beneficial interest
("shares") in separate series and classes (each, a "Fund"). This Agreement shall
pertain to such Fund or Funds as shall be designated in the Appendix to this
Agreement, as further agreed between the Trust and the Distributor. The Trust
engages in the business of investing and reinvesting the assets of each Fund in
the manner and in accordance with the investment objective, policies and
restrictions specified in the currently effective prospectus or prospectuses and
statement of additional information (collectively, the "Prospectus") relating to
each Fund of the Trust included in the Trust's Registration Statement, as
amended from time to time (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "Commission") under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the Securities Act of 1933
(the "1933 Act"). Copies of the documents referred to in the preceding sentence
have been furnished to the Distributor. Any amendment to those documents shall
be furnished to the Distributor promptly. The Trust has entered into an
investment advisory agreement or agreements on behalf of the Funds with such
advisers as are designated therein (each such adviser, an "Adviser") and an
administration agreement with the Distributor with respect to the Funds.
2. As the Trust's agent, the Distributor shall be the exclusive
distributor (except as provided in paragraph 5) for the unsold portion of shares
pertaining to the Funds as may from time to time be registered under the 0000
Xxx.
3. The Trust shall sell though the Distributor, as the Trust's agent,
shares to the eligible investors as described in the Prospectus. All orders
through the Distributor shall be subject to acceptance and confirmation by the
Trust.
4. As the Trust's agent, the Distributor may sell and distribute shares
in such manner not inconsistent with the provisions hereof and the Trust's
Prospectus as the Distributor may determine from time to time. In this
connection, the Distributor shall comply with all laws, rules and regulations
applicable to it, including, without limiting the generality of the foregoing,
all applicable rules or regulations under the 1940 Act and the Securities
Exchange Act of 1934 (the "1934 Act") and any self regulatory organization of
which it is a member.
5. The Trust reserves the right to sell shares to purchasers to the
extent that it or the transfer agent for its shares receives purchase requests
therefor.
6. All shares offered for sale and sold by the Distributor shall be
offered for sale and sold by the Distributor to designated investors at the
price per share (the "offering price") specified and determined as provided in
the Prospectus. The Trust shall determine and promptly furnish to the
Distributor a statement of the offering price at least once on each day on which
the New York Stock Exchange is open for trading and on each additional day on
which a Fund's net asset value might be materially affected by changes in the
value of its portfolio securities. Each offering price shall become effective at
the time and shall remain in effect during the period specified in the
statement. Each such statement shall show the basis of its computation.
7. The Trust shall furnish the Distributor from time to time, for use
in connection with the sale of shares, such written information with respect to
the Trust as the Distributor may reasonably request. In each case such written
information shall be signed by an authorized officer of the Trust. The Trust
represents and warrants
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that such information, when signed by one of its officers, shall be true and
correct. The Trust also shall furnish to the Distributor copies of its reports
to the Trust's shareholders and such additional information regarding the
Trust's financial condition as the Distributor may reasonably request from time
to time.
8. The Registration Statement and the Prospectus have been or will be,
as the case may be, prepared in conformity with the 1933 Act, the 1940 Act and
the rules and regulations of the Commission. The Trust represents and warrants
to the Distributor that the Registration Statement and the Prospectus contain or
will contain all statements required to be stated therein in accordance with the
1933 Act, the 1940 Act and the rules and regulations thereunder, that all
statements of fact contained or to be contained therein are or will be true and
correct at the time indicated or the effective date, as the case may be, and
that neither the Registrations Statement nor the Prospectus, when it shall
become effective under the 1933 Act or be authorized for use, shall include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading to
a purchaser of shares. The Trust shall from time to time file such amendment or
amendments to the Registration Statement and the Prospectus as, in the light of
future developments, shall, in the opinion of the Trust's counsel, be necessary
in order to have the Registration Statement and the Prospectus at all times
contain all material facts required to be stated therein or necessary to make
the statements therein not misleading to a purchaser of shares. If the Trust
shall not file such an amendment or amendments within 15 days after receipt by
the Trust of a written request from the Distributor to do so, the Distributor
may, at its option, terminate this Agreement immediately. The Trust shall not
file any amendment to the Registration Statement or the Prospectus without
giving the Distributor reasonable notice thereof in advance, provided that
nothing in this Agreement shall in any way limit the Trust's right to file at
any time such amendments to the Registration Statement or the Prospectus as the
Trust may deem advisable. The Trust represents and warrants to the Distributor
that any amendment to the Registration Statement or the Prospectus filed
hereafter by the Trust will, when it becomes effective under the 1933 Act,
contain all statements required to be stated therein in accordance with the 1933
Act, the 1940 Act and the rules and regulations thereunder, that all statements
of fact contained therein will, when the same shall become effective, be true
and correct, and that no such amendment, when it becomes effective, will include
an untrue statement of a material fact or will omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading to a purchaser of shares.
9. The Trust shall prepare and furnish to the Distributor from time to
time such number of copies of the most recent form of the Prospectus filed with
the SEC as the Distributor may reasonably request. The Trust authorizes the
Distributor to use the Prospectus, in the form furnished to the Distributor from
time to time, in connection with the sale of shares. The Trust shall indemnify,
defend and hold harmless the Distributor, its officers and trustees and any
person who controls the Distributor within the meaning of the 1933 Act, 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) that the Distributor, its
officers and trustees or any such controlling person may incur under the 1933
Act, the 1940 Act, common law or otherwise, arising out of or based upon any
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or arising out of or based upon any alleged omission
to state a material fact required to be stated in either or necessary to make
the statements in either not misleading. This Agreement shall not be construed
to protect the Distributor against any liability to the Trust or its
shareholders to which the Distributor 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 and duties
under this Agreement and shall not be construed to provide indemnification to
the extent that indemnification under the circumstances would be prohibited by
the 1933 Act or the 1940 Act. Indemnification under this paragraph 9 is
expressly conditioned upon the Trust being notified of any action brought
against the Distributor, its officers or Trustees or any such controlling
person, which notification shall be given by letter, telex or facsimile
addressed to the Trust at its principal office in Portland, Maine, and sent to
the Trust by the person against whom such actions is brought within 10 days
after the summons or other first legal process shall have been served. The
failure to notify the Trust of any such action shall not relieve the Trust from
any liability that it may have to the person against whom such action is brought
by reason of any such alleged untrue statement or omission otherwise than on
account of the indemnity agreement contained in this paragraph 9. The Trust
shall be entitled to assume the defense of any suit brought to enforce any such
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claim, demand or liability, but, in such case, the defense shall be conducted by
counsel chosen by the Trust and approved by the Distributor,such approval not to
which approval shall be unreasonably withheldnot be withheld unreasonably. If
the Trust elects to assume the defense of any such suit and retain counsel
approved by the Distributor, the defendant or defendants in such suit shall bear
the fees and expenses of any additional counsel retained by any of them, but in
case the Trust does not elect to assume the defense of any such suit, or in case
the Distributor reasonably does not approve of counsel chosen by the Trust, the
Trust will reimburse the Distributor, its officers and trustees or the
controlling person or persons named as defendant or defendants in such suit, for
the fees and expenses of any counsel retained by the Distributor or them. In
addition, the Distributor shall have the right to employ counsel to represent
it, its officers and trustees and any such controlling person who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the Distributor against the Trust hereunder if is the reasonable
judgment of the Distributor it is advisable for the Distributor, its officers
and trustees or such controlling person to be represented by separate counsel,
in which event the fees and expenses of such separate counsel shall be borne by
the Trust. The indemnification in this paragraph 9 and the Trust's
representations and warranties in this Agreement shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Distributor, its officers and trustees or any such controlling person. The
indemnification in this paragraph 9 shall inure exclusively to the benefit of
the Distributor and its successors, the Distributor's officers and trustees and
their respective estates and any such controlling persons and their successors
and estates. The Trust shall promptly notify the Distributor of the commencement
of any litigation or proceedings against it in connection with the issue and
sale of any shares.
10. The Distributor agrees to indemnify, defend and hold harmless the
Trust, its officers and trustees and any person who controls the Trust within
the meaning of the 1933 Act, 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) that the Trust, its officers or trustees or any such controlling
person, may incur under the 1933 Act, the 1940 Act, common law or otherwise, but
only to the extent that such liability or expense incurred by the Trust, its
officers or trustees or such controlling person resulting from such claims or
demands shall arise out of or be based upon (a) any alleged untrue statement of
a material fact contained in information furnished in writing by the Distributor
to the Trust specifically for use in the Registration Statement or the
Prospectus or shall arise out of or be based upon any alleged omission to state
a material fact in connection with such information required to be stated in the
Registration Statement or the Prospectus or necessary to make such information
not misleading and (b) any alleged act or omission on the Distributor's part as
the Trust's agent that has not been expressly authorized by the Trust in
writing. This indemnification in paragraph 10 is expressly conditioned upon the
Distributor being notified of any action brought against the Trust, its officers
or trustees or any such controlling person, which notification shall be given by
letter, telex or facsimile, addressed to the Distributor at its principal office
in New York, New York, and sent to the Distributor by the person against whom
such action is brought, within 10 days after the summons or other first legal
process shall have been served. The failure to notify the Distributor of any
such action shall not relieve the Distributor from any liability that it may
have to the Trust, its officers or Trustees or such controlling person by reason
of any such alleged misstatement or omission on the Distributor's part otherwise
than on account of the indemnification contained in this paragraph 10. The
Distributor shall have a right to control the defense of such action with
counsel of its own choosing and approved by the Trust,such approval not to which
approval shall be unreasonably withheldnot be withheld unreasonably, if such
action is based solely upon such alleged misstatement or omission on the
Distributor's part, and in any other event the Trust, its officers and trustees
or such controlling person shall each have the right to participate in the
defense or preparation of the defense of any such action at their own expense.
11. No shares shall be sold through the Distributor or by the Trust
under this Agreement, and no orders for the purchase of shares shall be
confirmed or accepted by the Trust if and so long as the effectiveness of the
Registration Statement shall be suspended under any of the provisions of the
1933 Act. Nothing contained in this paragraph 11 shall in any way restrict,
limit or have any application to or bearing upon the Trust's obligation to
redeem shares from any shareholder in accordance with the provisions of its
Trust Instrument and the 1940 Act. The Trust will use its best efforts at all
times to have shares effectively registered under the 1933 Act.
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12. The Trust agrees to advise the Distributor immediately:
(a) of any request by the Commission for amendments to the
Registration Statement or the Prospectus or for additional information;
(b) in the event of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
Prospectus under the 1933 Act or the initiation of any proceedings for
that purpose;
(c) of the happening of any material event that makes untrue
any statement made in the Registration Statement or the Prospectus or
that requires the making of a change in either thereof in order to make
the statements therein not misleading; and
(d) of all action of the Commission with respect to any
amendments to the Registration Statement or the Prospectus that may
from time to time be filed with the Commission under the 1933 Act or
the 1940 Act.
13. Insofar as they concern the Trust, the Trust shall comply with all
applicable laws, rules and regulations, including, without limiting the
generality of the foregoing, all rules or regulations made or adopted pursuant
to the 1933 Act, the 1940 Act or by any securities association registered under
the 1934 Act applicable to it.
14. The Distributor may, if it desires and at its own cost and expense,
appoint or employ agents to assist it in carrying out its obligations under this
Agreement, but no such appointment or employment shall relieve the Distributor
of any of its responsibilities or obligations to the Trust under this Agreement.
15. (a) The Distributor shall from time to time employ or associate
with it such persons as it believes necessary to assist it in carrying
out its obligations under this Agreement. The compensation of such
persons shall be paid by the Distributor.
(b) The Distributor shall pay all expenses incurred in
connection with its qualification as a dealer or broker under federal
or state law.
(c) The Trust shall pay all expenses incurred in connection
with: (i) the preparation, printing and distribution to shareholders of
the Prospectus and reports and other communications to shareholder;
(ii) future registrations of shares under the 1933 Act and the 1940
Act; (iii) amendments of the Registration Statement subsequent to the
initial public offering of shares; (iv) qualification of shares for
sale in jurisdictions designated by the Distributor; (v) qualification
of the Trust as a dealer or broker under the laws of jurisdictions
designated by Distributor; (vi) qualification of the Trust as a foreign
corporation authorized to do business in any jurisdiction if the
Distributor determines that such qualification is necessary or
desirable for the purpose of facilitating sales of shares; (vii)
maintaining facilities for the issue and transfer of shares; and (viii)
supplying information, prices and other data to be furnished by the
Trust under this Agreement.
(d) The Trust shall pay any original issue taxes or transfer
taxes applicable to the sale or delivery of shares or certificates
therefor.
(e) The Trust shall execute all documents and furnish any
information that may be reasonably necessary in connection with the
qualification of shares of the Trust for sale in jurisdictions
designated by the Distributor.
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16. Except to the extent set forth in paragraph 15, the Distributor
will render all service hereunder without compensation or reimbursement,
provided, however, that notwithstanding anything set forth in paragraphs 14 and
15 and this paragraph 16 to the contrary, if the Trust in the future adopts a
Rule 12b-1 distribution plan with respect to any Fund or a class thereof, the
Distributor shall be entitled to seek reimbursement from such Funds or class for
any costs or expenses incurred by it in connection with its services rendered in
distributing and marketing shares of the Funds or classes to the extent provided
for in the plan, subject in all cases to the limitations on payments and
reimbursements pertaining to each Fund or class as set forth in the plan.
17. This Agreement shall become effective with respect to the Trust and
each Fund as of December 9, 1997 and shall continue in effect thereafter,
PROVIDED that this Agreement shall continue in effect for a period of more than
one year only so long as such continuance is specifically approved at least
annually by: (a) the Trust's Board of Trustees or by the vote of a majority of
such Fund's outstanding voting securities (as defined in the 1940 Act); and (b)
by the vote, cast in person at a meeting called for the purpose, of a majority
of the Trust's Trustees who are not parties to this Agreement or "interested
persons" (as defined in the 0000 Xxx) of any such party. This Agreement shall
terminate automatically in the event of its assignment (as defined in the 1940
Act). This Agreement may, in any event, be terminated at any time, without the
payment of any penalty, by the Trust upon 60 days' written notice to the
Distributor and by the Distributor upon 60 days' written notice to the Trust.
18. Except to the extent necessary to perform the Distributor's
obligations under this Agreement, nothing herein shall be deemed to limit or
restrict the right of the Distributor, or any affiliate of the Distributor, or
any employee of the Distributor to engage in any other business or to devote
time and attention to the management or other aspects of any other business,
whether of a similar or dissimilar nature, or to render services of any kind to
any other corporation, firm, individual or association.
19. This Agreement shall be construed and its provisions interpreted,
in accordance with the laws of the state of New York.
If the foregoing correctly sets forth the agreement between the Trust
and the Distributor, please so indicate by signing and returning to the Trust
the enclosed copy hereof.
XXXXXXXX SERIES TRUST II
By: /S/ XXXXXXXXX X. XXXXX
-------------------------------
Xxxxxxxxx X. Xxxxx
Vice President
XXXXXXXX FUND ADVISORS INC.
By: /S/ XXXXXXXXX XXX
-----------------------------
Xxxxxxxxx Xxx
Senior Vice President
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XXXXXXXX SERIES TRUST II
DISTRIBUTION AGREEMENT
APPENDIX
AS OF DECEMBER 9, 1997
Xxxxxxxx All-Asia Fund
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