Exhibit 5(G)
DISTRIBUTION AGREEMENT
THE XXXXXXX FUNDS, INC.
DEM MULTI-MANAGER BOND FUND
The World Trade Center-Baltimore
28th Floor
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
February 11, 1998
The Xxxxxxx Co.
The World Trade Center -- Baltimore
28th Floor
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
This is to confirm that, in consideration of the agreements
hereinafter contained, the undersigned, The Xxxxxxx Funds, Inc. an open-end,
diversified, management investment company organized as a corporation under the
laws of the State of Maryland (the "Corporation"), on behalf of DEM
Multi-Manager Bond Fund, a series of the Corporation (the "Fund"), has agreed
that The Xxxxxxx Co. shall be, for the period of this Agreement, the distributor
of shares of DEM Multi-Manager Bond Fund Investor Class and Institutional Class
Common Stock, par value $.001 per share ("Investor Shares" and "Institutional
Shares," respectively).
1. SERVICES AS DISTRIBUTOR
1.1 The Xxxxxxx Co. will act as agent for the distribution of
the Investor Shares and Institutional Shares covered by the post-effective
amendment to the Fund's registration statement on Form N-1A, under the
Securities Act of 1933, as amended (the "1933 Act"), and the Investment Company
Act of 1940, as amended (the "1940 Act") pertaining to the Investor Shares and
the Institutional Shares of the Fund (the post-effective amendment to the
registration statement, together with the prospectuses (the "prospectus") and
statement of additional information (the "statement of additional information")
included as part thereof, any amendments or supplements thereto, or material
incorporated by reference into the prospectus or statement of additional
information, being referred to collectively in this Agreement as the
"registration statement").
The Xxxxxxx Co.
February 11, 1998
Page 2
1.2 The Xxxxxxx Co. agrees to use appropriate efforts to
solicit orders for the sale of the Investor Shares and Institutional Shares at
such prices and on the terms and conditions set forth in the registration
statement and will undertake such advertising and promotion as it believes is
reasonable in connection with such solicitation.
1.3 All activities by The Xxxxxxx Co. as distributor of the
Investor Shares and Institutional Shares shall comply with all applicable laws,
rules and regulations, including, without limitation, all rules and regulations
made or adopted by the Securities and Exchange Commission (the "SEC") or by any
securities association registered under the Securities Exchange Act of 1934, as
amended.
1.4 The Xxxxxxx Co. agrees to (a) provide one or more persons
during normal business hours to respond to telephone questions concerning the
Fund and its performance and (b) perform such other services as are described in
the registration statement and in the Investor Class Distribution Plan (the
"Investor Class Plan") and in the Institutional Class Distribution Plan (the
"Institutional Class Plan"), each adopted by the Fund pursuant to Rule 12b-1
under the 1940 Act ("Rule 12b-1") to be performed by The Xxxxxxx Co., without
limitation, distributing and receiving subscription order forms and receiving
written redemption requests.
1.5 (a) The Xxxxxxx Co. will be paid fees under the Investor
Class Plan to compensate The Xxxxxxx Co. or enable The Xxxxxxx Co. to compensate
other persons, ("Service Providers"), including any other distributor of
Investor Shares, for providing: (i) services primarily intended to result in the
sale of Investor Shares ("Investor Selling Services"), and (ii) stockholder
servicing, administrative and accounting services ("Investor Administrative
Services" and collectively with Investor Selling Services, "Investor Services").
Investor Selling Services may include, but are not limited to: the printing and
distribution to prospective investors in Investor Shares of prospectuses and
statements of additional information describing the Fund; the preparation,
including printing, and distribution of sales literature, reports and media
advertisements relating to the Investor Shares; providing telephone services
relating to the Fund; distributing Investor Shares; costs relating to the
formulation and implementation of marketing and promotional activities,
including, but not limited to, direct mail promotions and television, radio,
newspaper, magazine and other mass media advertising, and related travel and
entertainment expenses; and costs involved in obtaining whatever information,
analyses and reports with respect to marketing and promotional activities that
the Fund may, from time to time, deem advisable. In providing compensation for
Investor Selling Services in accordance with the Investor Class Plan, The
Xxxxxxx Co. is
The Xxxxxxx Co.
February 11, 1998
Page 3
expressly authorized (i) to make, or cause to be made, payments reflecting an
allocation of overhead and other office expenses related to providing Investor
Services; (ii) to make, or cause to be made, payments, or to provide for the
reimbursement of expenses of, persons who provide support services in connection
with the distribution of Investor Shares including, but not limited to, office
space and equipment, telephone facilities, answering routine inquiries regarding
the Fund, and providing any other Investor Service; and (iii) to make, or cause
to be made, payments to compensate selected dealers or other authorized persons
for providing any Investor Services. Administrative Services may include, but
are not limited to, (i) responding to inquiries of prospective investors
regarding the Fund; (ii) services to stockholders not otherwise required to be
provided by the Fund's custodian or any co-administrator; (iii) establishing and
maintaining accounts and records on behalf of Fund stockholders; (iv) processing
purchase, redemption and exchange transactions in Investor Shares; and (v) other
similar services not otherwise required to be provided by the Fund's transfer
agent or any co-administrator. Payments under the Investor Class Plan are not
tied exclusively to the selling and administrative expenses actually incurred by
The Xxxxxxx Co. or any Service Provider, and the payments may exceed expenses
actually incurred by The Xxxxxxx Co. and/or a Service Provider. Furthermore, any
portion of any fee paid to The Xxxxxxx Co. or to any of its affiliates by the
Fund or any of their past profits or other revenue may be used in their sole
discretion to provide services to stockholders of the Fund or to xxxxxx
distribution of Investor Shares.
(b) Pursuant to the Investor Class Plan, the Fund
will pay The Xxxxxxx Co. on the first business day of each quarter a fee for the
previous quarter calculated at an annual rate of up to .75% of the average daily
net assets of the Investor Shares of the Fund consisting of up to .50% as
compensation for Investor Selling Services and .25% as compensation for Investor
Administrative Services provided by The Xxxxxxx Co. to the Investor Shares
pursuant to this Agreement.
1.6 (a) The Xxxxxxx Co. will be paid fees under the
Institutional Class Plan to compensate The Xxxxxxx Co. or enable The Xxxxxxx Co.
to compensate other persons, including any other distributor of the
Institutional Shares or institutional stockholders of record of the
Institutional Shares, including but not limited to retirement plans,
broker-dealers, depository institutions, and other financial intermediaries
("Institutions"), who own Institutional Shares on behalf of their customers,
clients or (in the case of retirement plans) participants ("Customers") and
companies providing certain services to Customers (collectively with
Institutions, "Service Organizations"), for providing (i) services primarily
intended to result in the sale of the Institutional Shares ("Institutional
Selling Services"), and (ii) stockholder servicing,
The Xxxxxxx Co.
February 11, 1998
Page 4
administrative and accounting services to Customers ("Institutional
Administrative Services").
(b) The annual fee paid to The Xxxxxxx Co. with
respect to Institutional Selling Services will compensate The Xxxxxxx Co., or
allow The Xxxxxxx Co. to compensate Service Organizations, to cover certain
expenses primarily intended to result in the sale of the Institutional Shares,
including, but not limited to: (i) costs of payments made to employees that
engage in the distribution of the Institutional Shares; (ii) payments made to,
and expenses of, persons who provide support services in connection with the
distribution of the Institutional Shares, including, but not limited to, office
space and equipment, telephone facilities, processing stockholder transactions
and providing any other stockholder services not otherwise provided by the
Fund's transfer agent; (iii) costs relating to the formulation and
implementation of marketing and promotional activities, including, but not
limited to, direct mail promotions and television, radio, newspaper, magazine
and other mass media advertising; (iv) costs of printing and distributing
prospectuses, statements of additional information and reports of the Fund to
prospective holders of the Institutional Shares; (v) costs involved in
preparing, printing and distributing sales literature pertaining to the Fund,
and (vi) costs involved in obtaining whatever information, analyses and reports
with respect to marketing and promotional activities that the Fund may, from
time to time, deem advisable.
(c) The annual fee paid to The Xxxxxxx Co. with
respect to Institutional Administrative Services will compensate The Xxxxxxx
Co., or allow The Xxxxxxx Co. to compensate Service Organizations, for personal
service and/or the maintenance of Customer accounts, including but not limited
to (i) responding to Customer inquiries, (ii) providing information on Customer
investments, and (iii) providing other stockholder liaison services and for
administrative and accounting services to Customers, including, but not limited
to: (a) aggregating and processing purchase and redemption requests from
Customers and placing net purchase and redemption orders with the Fund's
distributor or transfer agent; (b) providing Customers with a service that
invests the assets of their accounts in the Institutional Shares; (c) processing
dividend payments from the Fund on behalf of Customers; (d) providing
information periodically to Customers showing their positions in the
Institutional Shares; (e) arranging for bank wires; (f) providing sub-accounting
with respect to the Institutional Shares beneficially owned by Customers or the
information to the Fund necessary for sub-accounting; (g) forwarding stockholder
communications from the Fund (for example, proxies, stockholder reports, annual
and semi-annual financial statements and dividend, distribution and tax notices)
to Customers, if required by law and, (h) providing other
The Xxxxxxx Co.
February 11, 1998
Page 5
similar services to the extent permitted under applicable statutes, rules and
regulations. Payments under the Institutional Class Plan are not tied
exclusively to the selling and administrative expenses actually incurred by The
Xxxxxxx Co. or any Service Organization, and the payments may exceed expenses
actually incurred by The Xxxxxxx Co. or any Service Organization. Furthermore,
any portion of any fee paid to The Xxxxxxx Co. or to any of its affiliates by
the Fund or any of their past profits or other revenue may be used in their sole
discretion to provide services to stockholders of the Fund or to xxxxxx
distribution of the Institutional Shares.
(d) Pursuant to the Institutional Class Plan, the
Fund will pay The Xxxxxxx Co. on the first business day of each quarter a fee
for the previous quarter calculated at an annual rate of up to .25% of the
average daily net assets of the Institutional Shares of the Fund for Selling
Services and Administrative Services provided by The Xxxxxxx Co. or any Service
Organizations to the Institutional Shares pursuant to this Agreement.
1.7 The Xxxxxxx Co. acknowledges that, whenever in the
judgment of the Corporation's officers such action is warranted for any reason,
including, without limitation, market, economic or political conditions, those
officers may decline to accept any orders for, or make any sales of, the
Investor Shares or Institutional Shares until such time as those officers deem
it advisable to accept such orders and to make such sales.
1.8 The Xxxxxxx Co. will transmit any orders received by it
for purchase or redemption of the Investor Shares and Institutional Shares to
Fund/Plan Services, Inc. ("Fund/Plan"), the Fund's transfer and dividend
disbursing agent, or its successor of which The Xxxxxxx Co. is notified in
writing. The Fund will promptly advise The Xxxxxxx Co. of the determination to
cease accepting orders or selling Investor Shares or Institutional Shares or to
recommence accepting orders or selling Investor Shares or Institutional Shares.
The Fund (or its agent) will confirm orders for Investor Shares and
Institutional Shares placed through The Xxxxxxx Co. upon their receipt, or in
accordance with any exemptive order of the SEC, and will make appropriate book
entries pursuant to the instructions of The Xxxxxxx Co. The Xxxxxxx Co. agrees
to cause payment for Investor Shares and Institutional Shares and instructions
as to book entries to be delivered promptly to the Fund (or its agent).
1.9 The outstanding Investor Shares and Institutional Shares
are subject to redemption as set forth in the prospectus. The price to be paid
to redeem the Investor Shares and Institutional Shares will be determined as set
forth in the prospectus.
The Xxxxxxx Co.
February 11, 1998
Page 6
1.10 The Xxxxxxx Co. will prepare and deliver reports to the
Treasurer of the Corporation on a regular, at least quarterly, basis, showing
the distribution expenses incurred pursuant to this Agreement, the Investor
Class Plan and the Institutional Class Plan adopted by the Fund pursuant to Rule
12b-1 and the purposes therefor, as well as any supplemental reports as the
Directors from time to time may reasonably request.
1.11 The Xxxxxxx Co. will create and maintain all records
required of it pursuant to its duties hereunder in accordance with all
applicable laws, rules and regulations, including records required by Section
31(a) of the 1940 Act. All such records will be the property of the Corporation
and will be available upon request of the Corporation for inspection, copying
and use by the Corporation and will be surrendered to the Corporation promptly
upon demand of the Corporation. Where applicable, such records will be
maintained by The Xxxxxxx Co. for the periods and in the places required by Rule
31a-2 under the 1940 Act. Upon termination of this Agreement, The Xxxxxxx Co.
will promptly surrender all such records to the Corporation or such person as
the Corporation may designate.
2. DUTIES OF THE FUND
2.1 The Corporation, on behalf of the Fund, agrees at its own
expense to execute any and all documents, to furnish any and all information and
to take any other actions that may be reasonably necessary in connection with
the qualification of the Investor Shares and Institutional Shares for sale in
those states that The Xxxxxxx Co. may designate.
2.2 The Corporation shall furnish from time to time, for use
in connection with the sale of the Investor Shares and Institutional Shares,
such informational reports with respect to the Fund and the Investor Shares and
Institutional Shares as The Xxxxxxx Co. may reasonably request, all of which
shall be signed by one or more of the Corporation's duly authorized officers;
and the Corporation warrants that the statements contained in any such reports,
when so signed by one or more of the Corporation's officers, shall be true and
correct. The Corporation shall also furnish The Xxxxxxx Co. upon request with:
(a) annual audits of the Fund's books and accounts made by independent public
accountants regularly retained by the Corporation, (b) semiannual unaudited
financial statements pertaining to the Fund, (c) quarterly earnings statements
prepared by the Corporation, (d) a monthly itemized list of the securities held
by the Fund, (e) monthly balance sheets as soon as practicable after the end of
each month
The Xxxxxxx Co.
February 11, 1998
Page 7
and (f) from time to time such additional information regarding the Fund's
financial condition as The Xxxxxxx Co. may reasonably request.
3. REPRESENTATIONS AND WARRANTIES
The Corporation, on behalf of the Fund, represents to The
Xxxxxxx Co. that the registration statement has been or will be carefully
prepared in conformity with the requirements of the 1933 Act, the 1940 Act and
the rules and regulations of the SEC thereunder. The Fund represents and
warrants to The Xxxxxxx Co. that any registration statement pertaining to the
Investor Shares and/or Institutional Shares, or prospectus and statement of
additional information contained therein, when such registration statement
becomes effective, will include all statements required to be contained therein
in conformity with the 1933 Act, the 1940 Act and the rules and regulations of
the SEC; that all statements of fact contained in any registration statement
with respect to the Investor Shares and/or Institutional Shares, prospectus or
statement of additional information will be true and correct when such
registration statement becomes effective; and that neither any registration
statement nor any prospectus or statement of additional information with respect
to the Investor Shares and/or Institutional Shares when such registration
statement becomes effective will include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading to a purchaser of the Investor Shares
and/or Institutional Shares. The Xxxxxxx Co. may, but shall not be obligated to,
propose from time to time such amendment or amendments to any registration
statement and such supplement or supplements to any prospectus or statement of
additional information as, in the light of future developments, may, in the
opinion of The Xxxxxxx Co.'s counsel, be necessary or advisable. If the
Corporation shall not propose such amendment or amendments and/or supplement or
supplements within fifteen (15) days after receipt by the Corporation of a
written request from The Xxxxxxx Co. to do so, The Xxxxxxx Co. may, at its
option, terminate this Agreement. The Corporation shall not file any amendment
to any registration statement or supplement to any prospectus or statement of
additional information without giving The Xxxxxxx Co. reasonable notice thereof
in advance; provided, however, that nothing contained in this Agreement shall in
any way limit the Corporation's right to file at any time such amendments to any
registration statement and/or supplements to any prospectus or statement of
additional information with respect to the Investor Shares and/or Institutional
Shares, of whatever character, as the Corporation may deem advisable, such right
being in all respects absolute and unconditional.
The Xxxxxxx Co.
February 11, 1998
Page 8
4. INDEMNIFICATION
4.1 The Corporation, on behalf of the Fund, agrees to
indemnify, defend and hold The Xxxxxxx Co., its several officers and directors,
and any person who controls The Xxxxxxx Co. within the meaning of Section 15 of
the 1933 Act, free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) which The Xxxxxxx Co., its officers and directors, or any such
controlling person, may incur under the 1933 Act, the 1940 Act or common law or
otherwise, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any registration statement, any
prospectus or any statement of additional information with respect to the
Investor Shares and/or Institutional Shares, or arising out of or based upon any
omission or alleged omission to state a material fact required to be stated in
any registration statement, any prospectus or any statement of additional
information with respect to the Investor Shares and/or Institutional Shares, or
necessary to make the statements in any of them not misleading; provided,
however, that the Corporation's agreement, on behalf of the Fund, to indemnify
The Xxxxxxx Co., its officers, or directors, and any such controlling person,
and any claims, demands, liabilities or expenses arising out of or based upon
such indemnity shall be limited to the "assets belonging to" (as such expression
is defined in the Corporation's charter) the Fund; and further provided that the
Corporation's agreement, on behalf of the Fund, to indemnify The Xxxxxxx Co.,
its officers or directors, and any such controlling person shall not be deemed
to cover any claims, demands, liabilities or expenses arising out of or based
upon any statements or representations made by The Xxxxxxx Co. or its
representatives or agents other than such statements and representations as are
contained in any registration statement, prospectus or statement of additional
information with respect to the Investor Shares and/or Institutional Shares and
in such financial and other statements as are furnished to The Xxxxxxx Co.
pursuant to paragraph 2.2 hereof; and further provided that the Corporation's
agreement, on behalf of the Fund, to indemnify The Xxxxxxx Co. and the
Corporation's representations and warranties, on behalf of the Fund,
hereinbefore set forth in paragraph 3 shall not be deemed to cover any liability
to the Fund or its stockholders to which The Xxxxxxx Co. would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of The Xxxxxxx Co.'s reckless disregard
of its obligations and duties under this Agreement. The Corporation's agreement,
on behalf of the Fund, to indemnify The Xxxxxxx Co., its officers and directors,
and any such controlling person, as aforesaid, is expressly conditioned upon the
Corporation's being notified of any action brought against The Xxxxxxx Co., its
officers or directors, or any such controlling person, such notification to be
given by letter or by telegram addressed to the Corporation
The Xxxxxxx Co.
February 11, 1998
Page 9
at its principal office in Baltimore, Maryland and sent to the Corporation by
the person against whom such action is brought, within ten (10) days after the
summons or other first legal process shall have been served. The failure to so
notify the Corporation of any such action shall not relieve the Corporation from
any liability that the Corporation may have to the person against whom such
action is brought by reason of any such untrue or alleged untrue statement or
omission or alleged omission otherwise than on account of the Corporation's
indemnity agreement, on behalf of the Fund, contained in this paragraph 4.1. The
Corporation's indemnification agreement, on behalf of the Fund, contained in
this paragraph 4.1 and the Corporation's representations and warranties, on
behalf of the Fund, in this Agreement shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of The Xxxxxxx
Co., its officers and directors, or any controlling person, and shall survive
the delivery of any of the Corporation's shares. This agreement of indemnity
will inure exclusively to The Xxxxxxx Co.'s benefit, to the benefit of its
several officers and directors, and their respective estates, and to the benefit
of the controlling persons and their successors. The Corporation, on behalf of
the Fund, agrees to notify The Xxxxxxx Co. promptly of the commencement of any
litigation or proceedings against the Corporation or any of its officers or
directors in connection with the issuance and sale of any of the Investor Shares
and/or Institutional Shares.
4.2 The Xxxxxxx Co. agrees to indemnify, defend and hold the
Corporation, its several officers and directors, and any person who controls the
Corporation or the Fund within the meaning of Section 15 of the 1933 Act, free
and harmless from and against any and all claims, demands, liabilities and
expenses (including the costs of investigating or defending such claims, demands
or liabilities and any counsel fees incurred in connection therewith) that the
Corporation, its officers or directors or any such controlling person may incur
under the 1933 Act, the 1940 Act or common law or otherwise, but only to the
extent that such liability or expense incurred by the Corporation, its officers
or directors or such controlling person resulting from such claims or demands
shall arise out of or be based upon (a) any unauthorized sales literature,
advertisements, information, statements or representations or (b) any untrue or
alleged untrue statement of a material fact contained in information furnished
in writing by The Xxxxxxx Co. to the Corporation specifically for use in the
registration statement and used in the answers to any of the items of the
registration statement or in the corresponding statements made in the prospectus
or statement of additional information, or shall arise out of or be based upon
any omission or alleged omission to state a material fact in connection with
such information furnished in writing by The Xxxxxxx Co. to the Corporation and
required to be stated in such answers or necessary to make such information not
misleading. The Xxxxxxx Co.'s agreement to indemnify the Corporation, its
officers and directors, and any such controlling person, as aforesaid, is
The Xxxxxxx Co.
February 11, 1998
Page 10
expressly conditioned upon The Xxxxxxx Co.'s being notified of any action
brought against the Corporation, its officers or directors, or any such
controlling person, such notification to be given by letter or telegram
addressed to The Xxxxxxx Co. at its principal office in Baltimore, Maryland and
sent to The Xxxxxxx Co. by the person against whom such action is brought,
within ten (10) days after the summons or other first legal process shall have
been served. The failure to so notify The Xxxxxxx Co. of any such action shall
not relieve The Xxxxxxx Co. from any liability that The Xxxxxxx Co. may have to
the Corporation, its officers or directors, or to such controlling person by
reason of any such untrue or alleged untrue statement or omission or alleged
omission otherwise than on account of The Xxxxxxx Co.'s indemnity agreement
contained in this paragraph 4.2. The Xxxxxxx Co. agrees to notify the
Corporation promptly of the commencement of any litigation or proceedings
against The Xxxxxxx Co. or any of its officers or directors in connection with
the issuance and sale of any of the Investor Shares and/or Institutional Shares.
4.3 In case any action shall be brought against any
indemnified party under paragraph 4.1 or 4.2, and it shall timely notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish to do so, to
assume the defense thereof with counsel satisfactory to such indemnified party.
If the indemnifying party opts to assume the defense of such action, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than (a) reasonable costs of investigation or the
furnishing of documents or witnesses and (b) all reasonable fees and expenses of
separate counsel to such indemnified party if (i) the indemnifying party and the
indemnified party shall have agreed to the retention of such counsel or (ii) the
indemnified party shall have concluded reasonably that representation of the
indemnifying party and the indemnified party by the same counsel would be
inappropriate due to actual or potential differing interests between them in the
conduct of the defense of such action.
5. EFFECTIVENESS OF REGISTRATION
None of the Investor Shares or Institutional Shares shall be
offered by either The Xxxxxxx Co. or the Corporation under any of the provisions
of this Agreement and no orders for the purchase or sale of the Investor Shares
or Institutional Shares shall be accepted by the Corporation if and so long as
the effectiveness of the registration statement shall be suspended under any of
the provisions of the 1933 Act or if and so long as the prospectus is not on
file with the SEC; provided, however, that nothing contained in this paragraph 5
shall in any way restrict or have an application to or bearing
The Xxxxxxx Co.
February 11, 1998
Page 11
upon the Corporation's obligation to repurchase its shares from any stockholder
in accordance with the provisions of the prospectus or statement of additional
information.
6. NOTICE TO THE XXXXXXX CO.
The Corporation, on behalf of the Fund, agrees to advise The
Xxxxxxx Co. immediately in writing:
(a) of any request by the SEC for amendments to the
registration statement, prospectus or statement of additional
information then in effect with respect to the Investor Shares and/or
Institutional Shares or for additional information;
(b) in the event of the issuance by the SEC of any
stop order suspending the effectiveness of the registration statement,
prospectus or statement of additional information then in effect with
respect to the Investor Shares and/or Institutional Shares or the
initiation of any proceeding for that purpose;
(c) of the happening of any event that makes untrue
any statement of a material fact made in the registration statement,
prospectus or statement of additional information then in effect with
respect to the Investor Shares and/or Institutional Shares or that
requires the making of a change in such registration statement,
prospectus or statement of additional information in order to make the
statements therein not misleading; and
(d) of all actions of the SEC with respect to any
amendment to any registration statement, prospectus or statement of
additional information with respect to the Investor Shares or
Institutional Shares which may from time to time be filed with the SEC.
7. TERM OF AGREEMENT
This Agreement shall continue until December 29, 1998 with
respect to each of the Investor Shares and Institutional Shares, and thereafter
shall continue automatically for successive annual periods ending on the
anniversary of such date, provided such continuance is specifically approved at
least annually by (a) a vote of a majority of the Corporation's Board of
Directors or (b) a vote of a majority (as defined in the 0000 Xxx) of each of
the outstanding Investor Shares and Institutional Shares, respectively, provided
that the continuance is also approved by a vote of a majority of the
The Xxxxxxx Co.
February 11, 1998
Page 12
Corporation's Directors who are not interested persons (as defined in the 0000
Xxx) of the Corporation and who have no direct or indirect financial interest in
the operation of the Investor Class Plan or the Institutional Class Plan, in
this Agreement or in any agreement related to the Investor Class Plan or
Institutional Class Plan ("Qualified Directors"), by vote cast in person at a
meeting called for the purpose of voting on such approval. This Agreement is
terminable with respect to the Investor Shares or the Institutional Shares
without penalty (a) on sixty (60) days' written notice, by a vote of a majority
of the Fund's Qualified Directors or by vote of a majority (as defined in the
0000 Xxx) of the outstanding Investor Shares or Institutional Shares, as
applicable, or (b) on ninety (90) days' written notice by The Xxxxxxx Co. This
Agreement will also terminate automatically in the event of its assignment (as
defined in the 1940 Act).
8. AMENDMENTS
This Agreement may not be amended to increase materially the
amount of the fee with respect to the Investor Shares and/or Institutional
Shares described in Section 1.5 above without approval of at least a majority
(as defined in the 0000 Xxx) of the outstanding Investor Shares and/or
Institutional Shares, respectively. In addition, all material amendments to this
Agreement must be approved by a vote of the Corporation's Board of Directors,
and by a vote of a majority of the Qualified Directors, cast in person at a
meeting called for the purpose of voting on the approval.
The Xxxxxxx Co.
February 11, 1998
Page 13
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
Very truly yours,
THE XXXXXXX FUNDS, INC., ON
BEHALF OF DEM MULTI-MANAGER BOND
FUND
By: /s/ XXXXXX X. XXXXXXX, XX.
------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
Accepted:
THE XXXXXXX CO.
By: /s/ XXXXXX X. XXXXXXX, XX.
--------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
