Exhibit 6(b)
FORM OF
DISTRIBUTION AGREEMENT
This Distribution Agreement is made as of this 4th day of
February, 1997 by and between ST. CLAIR FUNDS, INC. a Maryland
corporation (the "Fund"), and LONGROW SECURITIES, INC., a Missouri
corporation ("Longrow Securities").
WHEREAS, the Fund is an open-end management investment
company and is so registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Fund desires to retain Longrow Securities as
Distributor for the Fund's shares of common stock in the Fund's
five separate portfolios, Munder S&P 500 Index Equity Fund, Munder
S&P MidCap Index Equity Fund, Munder S&P SmallCap Index Equity
Fund, Munder Foreign Equity Fund and the Munder Aggregate Bond
Index Fund (individually, a "Portfolio" and collectively, the
"Portfolios"), to provide for the sale and distribution of shares
of the Portfolios (the "Shares"), and Longrow Securities is
willing to render such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth herein and intending to be legally bound
hereby, the parties hereto agree as follows:
I. DELIVERY OF DOCUMENTS
The Fund has delivered to Longrow Securities copies of each
of the following documents and will deliver to it all future
amendments and supplements thereto, if any:
(a) Resolutions of the Fund's Board of Directors
authorizing the execution and delivery of this Agreement;
(b) The Fund's Articles of Incorporation as filed with the
State of Maryland Department of Assessments and Taxation on May
23, 1984;
(c) The Fund's By-Laws;
(d) The Fund's Notification of Registration on Form N-8A
under the 1940 Act as filed with the Securities and Exchange
Commission ("SEC");
(e) The Fund's Registration Statement on Form N-1A (the
"Registration Statement") under the Securities Act of 1933 (the
"1933 Act") and the 1940 Act, as filed with the SEC; and
(f) The Fund's most recent Prospectus(es) and Statements
of Additional Information and all amendments and supplements
thereto (collectively, the "Prospectuses").
II. DISTRIBUTION
1. Appointment of Distributor. The Fund hereby appoints
Longrow Securities as distributor of the Portfolios' Shares and
Longrow Securities hereby accepts such appointment and agrees to
render the services and duties set forth in Section 2. In the
event that the Fund establishes one or more additional portfolios
or classes of shares other than the Portfolios and the Shares with
respect to which it decides to retain Longrow Securities to act as
distributor hereunder, the Fund shall notify Longrow Securities in
writing. If Longrow Securities is willing to render such
services, it shall so notify the Fund in writing whereupon such
portfolio and such shares shall become a Portfolio and Shares
hereunder and shall be subject to the provisions of this
Agreement, except to the extent that said provision is modified
with respect to such portfolio or shares in writing by the Fund
and Longrow Securities at the time.
2. Services and Duties.
(a) The Fund agrees to sell through Longrow Securities, as
agent, from time to time during the term of this Agreement, Shares
(whether authorized but unissued or treasury shares, in the Fund's
sole discretion) upon the terms and at the current offering price
as described in the applicable Prospectus. Longrow Securities
will act only in its own behalf as principal in making agreements
with selected dealers or others for the sale and redemption of
Shares, and shall sell Shares only at the offering price thereof
as set forth in the applicable Prospectus. Longrow Securities
shall devote appropriate efforts to effect sales of Shares of each
of the Portfolios, but shall not be obligated to sell any certain
number of Shares.
(b) In all matters relating to the sale and redemption of
Shares, Longrow Securities will act in conformity with the Fund's
Articles of Incorporation, By-Laws and applicable Prospectuses and
with the instructions and directions of the Board of Directors of
the Fund and will conform to and comply with the requirements of
the 1933 Act, the 1940 Act, the regulations of the National
Association of Securities Dealers, Inc. and all other applicable
Federal or state laws and regulations.
(c) All Shares of the Portfolios offered for sale by
Longrow Securities shall be offered for sale at a price per share
(the "offering price") equal to their net asset value (determined
in the manner set forth in the applicable Prospectuses). The
offering price, if not an exact multiple of one cent, shall be
adjusted to the nearest cent.
(d) In consideration of its services hereunder and pursuant
to the Shareholder Servicing Agreement dated February 4, 1997, the
Fund shall pay to Longrow Securities a fee of 0.10 percent of the
average daily net assets of the Funds.
3. Sales and Redemptions.
(a) The Fund shall pay all costs and expenses in connection
with the registration of the Shares under the 1933 Act, and all
expenses in connection with maintaining facilities for the issue
and transfer of the Shares and for supplying information, prices
and other data to be furnished by the Fund hereunder, and all
expenses in connection with preparing, printing and distributing
the Prospectuses which are not covered by insurance companies
which have entered into participation agreements with the Fund.
(b) The Fund shall execute all documents, furnish all
information and otherwise take all actions which may be reasonably
necessary in the discretion of the Fund's officers in connection
with the sale of the Shares in such states as Longrow Securities
may designate to the Fund and the Fund may approve, and the Fund
shall pay all filing fees which may be incurred in connection with
such sales. Longrow Securities shall pay all other expenses
incurred by Longrow Securities in connection with the sale of the
Shares, except as otherwise specifically provided in this
Agreement.
(c) The Fund shall have the right to suspend the sale of
Shares at any time in response to conditions in the securities
markets or otherwise, and to suspend the redemption of Shares of
any Portfolio at any time permitted by the 1940 Act or the rules
of the SEC ("Rules").
(d) The Fund reserves the right to reject any order for
Shares, but will not do so arbitrarily or without reasonable
cause.
III. LIMITATIONS OF LIABILITY
Longrow Securities shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Fund or
any Portfolio in connection with the matters to which this
Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement.
IV. CONFIDENTIALITY
Longrow Securities will treat confidentially and as
proprietary information of the Fund all records and other
information relative to the Fund, to the Fund's prior or current
shareholders and to those persons or entities who respond to
Longrow Securities' inquiries concerning investment in the Fund,
and, except as provided below, will not use such records and
information for any purpose other than the performance of its
responsibilities and duties hereunder. Any other use by Longrow
Securities of the information and records referred to above may be
made only after prior notification to and approval in writing by
the Fund. Such approval shall not be unreasonably withheld and
may not be withheld where: (i) Longrow Securities may be exposed
to civil or criminal contempt proceedings for failure to divulge
such information; (ii) Longrow Securities is requested to divulge
such information by duly constituted authorities; or (iii) Longrow
Securities is so requested by the Fund.
V. INDEMNIFICATION
1. Fund Representation. The Fund represents and warrants
to Longrow Securities that at all times the Registration Statement
and Prospectuses will in all material respects conform to the
applicable requirements of the 1933 Act, the 1940 Act, and the
Rules thereunder and will not include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not
misleading, except that no representation or warranty in this
subsection shall apply to statements or omissions made in reliance
upon and in conformity with written information furnished to the
Fund by or on behalf of and with respect to Longrow Securities
expressly for use in the Registration Statement or Prospectuses.
2. Longrow Securities Representation. Longrow Securities
represents and warrants to the Fund that it is duly organized as a
Missouri corporation and is and at all times will remain duly
authorized and licensed to carry out its services as contemplated
herein.
3. Fund Indemnification. The Fund, on behalf of each
Portfolio, agrees that each Portfolio will indemnify, defend and
hold harmless Longrow Securities, its several officers and
directors, and any person who controls Longrow Securities within
the meaning of Section 15 of the 1933 Act, from and against any
losses, claims, damages or liabilities, joint or several, to which
any of them may become subject under the 1933 Act, the 1940 Act,
other securities laws, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement, the Prospectuses, the sales
literature or other promotional material of the Fund or in any
application or other document executed by or on behalf of a
Portfolio, or arise out of or based upon, information furnished by
or on behalf of a Portfolio, filed in any state in order to
qualify the Shares under the securities or blue sky laws thereof
("Blue Sky Application"), 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, or arise out of, or are based upon any
breach of or failure to perform any obligation of the Fund under
the Participation Agreement of even date and will reimburse
Longrow Securities, its several officers and directors, and any
person who controls Longrow Securities within the meaning of
Section 15 of the 1933 Act, for any legal or other expenses
reasonably incurred by any of them in investigating, defending or
preparing to defend any such action, proceeding or claim;
provided, however, that neither the Fund nor any Portfolio shall
be liable in any case to the extent that such loss, claim, damage
or liability arises out of, or is based upon, any untrue
statement, alleged untrue statement, or omission or alleged
omission made in the Registration Statement, the Prospectuses, any
Blue Sky Application or any application or other document executed
by or on behalf of the Fund in reliance upon and in conformity
with written information furnished to the Fund by or on behalf of
Longrow Securities specifically for inclusion therein.
A Portfolio shall not indemnify any person pursuant to this
subsection 3 unless the court or other body before which the
proceeding was brought has rendered a final decision on the merits
that such person was not liable by reason of his willful
misfeasance, bad faith or gross negligence in the performance of
his duties, or his reckless disregard of his obligations and
duties, under this Agreement ("disabling conduct") or, in the
absence of such a decision, a reasonable determination (based upon
a review of the facts) that such person was not liable by reason
of disabling conduct has been made by the vote of a majority of a
quorum of Directors of the Fund who are neither "interested
parties" of the Fund (as defined in the 0000 Xxx) nor parties to
the proceeding, or by an independent legal counsel in a written
opinion.
Each Portfolio shall advance attorneys' fees and other
expenses incurred by any person in defending any claim, demand,
action or suit which is the subject of a claim for indemnification
pursuant to this subsection 3, so long as: (i) such person shall
undertake to repay all such advances unless it is ultimately
determined that he or she is entitled to indemnification
hereunder; and (ii) such person shall provide security for such
undertaking, or the Portfolio shall be insured against losses
arising by reason of any lawful advances, or a majority of a
quorum of the disinterested, non-party Directors of the Fund (or
an independent legal counsel in a written opinion) shall determine
based on a review of readily available facts (as opposed to a full
trial-type inquiry) that there is reason to believe that such
person ultimately will be found entitled to indemnification
hereunder.
The obligations of each Portfolio under this subsection 3
shall be the several (and not joint or joint and several)
obligation of each Portfolio.
4. Longrow Securities Indemnification. Longrow
Securities will indemnify, defend and hold harmless the Fund, each
Portfolio, the Fund's several officers and Directors and any
person who controls the Fund or any Portfolio within the meaning
of Section 15 of the 1933 Act, from and against any losses,
claims, damages or liabilities, joint or several, to which any of
them may become subject under the 1933 Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or
proceedings in respect hereof) arise out of, or are based upon,
any breach of its representations, warranties and agreements
herein, or which arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement, the Prospectuses, any Blue Sky
Application or any application or other documents executed by or
on behalf of the Fund or 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, which statement or
omission was made in reliance upon and in conformity with
information furnished in writing to the Fund or any of its several
officers and Directors by or on behalf of Longrow Securities
specifically for inclusion therein, and will reimburse the Fund,
each Portfolio, the Fund's several officers and Directors, and any
person who controls the Fund or any Portfolio within the meaning
of Section 15 of the 1933 Act, for any legal or other expenses
reasonably incurred by any of them in investigating, defending or
preparing to defend any such action, proceeding or claim.
5. General Indemnity Provision. No indemnifying party
shall be liable under its indemnity agreement contained in
subsection 3 or 4 hereof with respect to any claim made against
such indemnifying party unless the indemnified party shall have
notified the indemnifying party in writing within a reasonable
time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon
the indemnified party (or after the indemnified party shall have
received notice of such service on any designated agent), but
failure to notify the indemnifying party of any such claim shall
not relieve it from any liability which it may otherwise have to
the indemnified party. The indemnifying party will be entitled to
participate at its own expense in the defense or, if it so elects,
to assume the defense of any suit brought to enforce any such
liability, and if the indemnifying party elects to assume the
defense, such defense shall be conducted by counsel chosen by it
and reasonably satisfactory to the indemnified party. In the
event the indemnifying party elects to assume the defense of any
such suit and retain such counsel, the indemnified party shall
bear the fees and expenses of any additional counsel retained by
the indemnified party.
VI. DURATION AND TERMINATION
This Agreement shall become effective as of the date first
above written, and, unless sooner terminated as provided herein,
shall continue until February 4, 1998. Thereafter, if not
terminated, this Agreement shall continue automatically for
successive terms of one year, provided that such continuance is
specifically approved at least annually by a vote of the majority
of the Board of Directors of the Fund, including a majority of the
Directors who are not "interested persons" of the Fund and have no
direct or indirect financial interest in the operation of the
Plan, this Agreement, or in any agreement relating to the Plan
(the "Plan Directors"), by vote cast in person at a meeting called
for the purpose of voting on such approval; provided, however,
that this Agreement may be terminated with respect to any
Portfolio by the Fund at any time, without the payment of any
penalty, by vote of a majority of the Plan Directors or by a vote
of a "majority of the outstanding voting securities" of such
Portfolio on 60 days' written notice to Longrow Securities, or by
Longrow Securities at any time, without the payment of any
penalty, on 60 days' written notice to the Fund. This Agreement
will automatically and immediately terminate in the event of its
"assignment." (As used in this Agreement, the terms "majority of
the outstanding voting securities," "interested person" and
"assignment" shall have the same meanings as such terms have in
the 1940 Act.)
VII. AMENDMENT OF THIS AGREEMENT
No provision of this Agreement may be changed, waived,
discharged or terminated except by an instrument in writing signed
by the party against which an enforcement of the change, waiver,
discharge or termination is sought.
VIII. NOTICES
Notices of any kind to be given to the Fund hereunder by
Longrow Securities shall be in writing and shall be duly given if
mailed or delivered to the Fund at 000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxx Xxxxxx, with a copy to
Xxxx X. Xxxx, Esq., Dechert Price & Xxxxxx, 0000 X Xxxxxx X.X.,
Xxxxxxxxxx, X.X. 00000-0000, or at such other address or to such
individual as shall be so specified by the Fund to Longrow
Securities. Notices of any kind to be given to Longrow Securities
hereunder by the Fund shall be in writing and shall be duly given
if mailed or delivered to Longrow Securities at 00000 Xxxxx
Xxxxxxxxx, Xxxxx 000, Xx. Xxxxx, XX 00000 Attention: Xxxxx
Xxxxxxxxx or at such other address or to such individual as shall
be so specified by Longrow Securities to the Fund.
IX. 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. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
Subject to the provisions of Section VI hereof, this Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and shall be
governed by Maryland Law; provided, however, that nothing herein
shall be construed in a manner inconsistent with the 1940 Act or
any rule or regulation of the SEC thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of
the day and year first above written.
ST. CLAIR FUNDS, INC.
By:
Name: Xxx X. Xxxxxx
Title: President
Attest:
LONGROW SECURITIES, INC.
By:
Name:
Title:
Attest:
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