EX.99B6(a)
DISTRIBUTION AGREEMENT
NATIONS FUND PORTFOLIOS, INC.
Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Gentlemen:
This is to confirm that, in consideration of the agreements
hereinafter contained, the undersigned, Nations Fund Portfolios, Inc. (the
"Company"), a Maryland corporation, has agreed that Xxxxxxxx Inc. (the
"Distributor") shall be, for the period of this Agreement, the exclusive
distributor of the shares of common stock in all classes of shares ("Shares") of
the investment portfolios of the Company listed on Schedule I (individually, a
"Fund" and collectively the "Funds"). Absent written notification to the
contrary by either the Company or the Distributor, each new investment portfolio
established in the future shall automatically become a "Fund" for all purposes
hereunder and shares of each new class established in the future shall
automatically become "Shares" for all purposes hereunder as if set forth on
Schedule I.
1. Services as Distributor.
1.1. The Distributor will act as agent for the distribution of Shares in
accordance with the instructions of the Company's Board of Directors and the
Company's registration statement and prospectus then in effect under the
Securities Act of 1933, as amended (the "1933 Act"), and will transmit promptly
any orders received by it for the purchase or redemption of Shares to the
Company or its transfer agent.
1.2. The Distributor agrees to use appropriate efforts to solicit orders
for the sale of Shares and will undertake such advertising and promotion as it
believes appropriate in connection with such solicitation. The Company
understands that the Distributor is and may in the future be the distributor of
shares of other investment company portfolios ("Portfolios") including
Portfolios having investment objectives similar to those of the Funds. The
Company further understands that existing and future investors in the Funds may
invest in shares of such other Portfolios. The Company agrees that the
Distributor's duties to such Portfolios shall not be deemed in conflict with its
duties to the Company under this paragraph 1.2.
1.3. The Distributor shall, at its own expense, finance such activities as
it deems reasonable and which are primarily intended to result in the sale of
Shares, including, but not limited to, advertising, compensation of
underwriters, dealers and sales personnel, the printing and mailing of
prospectuses to other than current shareholders, and the printing and mailing of
sales literature. The Distributor shall be responsible for reviewing and
providing advice and counsel on all sales literature (e.g., advertisements,
brochures and shareholder communications) with respect to each of the Funds. In
addition, the Distributor will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to the Funds.
1.4. All activities by the Distributor and its agents and employees as
distributor of Shares shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations made or
adopted pursuant to the Investment Company Act of 1940, as amended ("1940 Act")
by the Securities and Exchange Commission (the "SEC") or any securities
association registered under the Securities Exchange Act of 1934.
1.5. Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by other circumstances of any kind,
the Company's officers may decline to accept any orders for, or make any sales
of Shares until such time as those officers deem it advisable to accept such
orders and to make such sales.
1.6. The Company agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the registration or
qualification of Shares for sale in such states as the Distributor may designate
to the Company and the Company may approve, and the Company shall pay all fees
and other expenses incurred in connection with such registration or
qualification.
1.7. The Company shall furnish from time to time, for use in connection
with the sale of Shares, such information with respect to the Funds and Shares
as the Distributor may reasonably request; and the Company warrants that the
statements contained in any such information shall fairly show or represent what
they purport to show or represent. The Company shall also furnish the
Distributor upon request with: (a) audited annual and unaudited semi-annual
statements of the Company's books and accounts with respect to each Fund, and,
(b) from time to time such additional information regarding the Funds' financial
condition as the Distribution may reasonably request.
1.8. The Distributor may be reimbursed for all or a portion of the
expenses described above to the extent permitted by a distribution plan adopted
by the Company on behalf of a Fund pursuant to Rule 12b-1 under the 1940 Act. No
provision of this Agreement shall be deemed to prohibit any payments by a Fund
to the Distributor or by a Fund or the Distributor to investment dealers, banks
or other financial institutions through whom shares of the Fund are sold where
such payments are made under a distribution plan adopted by the Company on
behalf of such Fund pursuant to Rule 12b-1 under the 1940 Act. In addition, the
Distributor shall be entitled to retain any front-end sales charge imposed upon
the sale of the shares (and reallow a portion thereof) as specified in the
Fund's Registration Statement and the Company shall pay to the Distributor the
proceeds from any contingent deferred sales charge imposed on the redemption of
the shares as specified in the Fund's Registration Statement.
2
1.9. The Distributor will execute and deliver agreements with
broker/dealers, financial institutions and other industry professionals based on
the forms attached hereto or based on the additional forms of agreement approved
from time to time by the Company's Board of Directors with respect to the
various classes of shares of the Funds, including but not limited to forms of
sales support agreements approved in connection with a distribution approved in
accordance with Rule 12b-1 under the 0000 Xxx.
2. Representations; Indemnification.
2.1. The Company represents to the Distributor that all registration
statements and prospectuses filed by the Company with the SEC under the 1933
Act, with respect to Shares have been prepared in conformity with the
requirements of the 1933 Act and rules and regulations of the SEC thereunder. As
used in this Agreement, the terms "registration statement" and "prospectus"
shall mean any registration statement and then current prospectus (together with
any related then current statement of additional information) filed with the SEC
with respect to Shares, and any amendments and supplements thereto which at any
time shall have been filed therewith. The Company represents and warrants to the
Distributor that any registration statement and prospectus, when such
registration statement becomes effective, will contain all statements required
to be stated therein in conformity with the 1933 Act and the rules and
regulations of the SEC; that all statements of fact contained in any such
registration statement and prospectus will be true and correct when such
registration statement and prospectus become effective; and that neither any
registration statement nor any prospectus when any 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 Shares. The Company 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 which in light of future developments, may, in the opinion of the
Company's counsel, be necessary or advisable. The Company shall promptly notify
the Distributor of any advice given to it by the Company's counsel regarding the
necessity or advisability so to amend or supplement such registration statement
or prospectus. If the Company shall not propose such amendment or amendments
and/or supplement or supplements within fifteen days after receipt by the
Company of a written request from the Distributor to do so, the Distributor may,
at its option, terminate this Agreement. The Company shall not file any
amendment to any registration statement or supplement to any prospectus without
giving the Distributor reasonable notice thereof in advance; provided, however,
that nothing contained in this Agreement shall in any way limit the Company's
right to file at any time such amendments to any registration statement and/or
supplements to any prospectus, of whatever character, as the Company may deem
advisable, such right being in all respects absolute and unconditional.
3
2.2. The Company authorizes the Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of Shares and represented by the Company as being the then current form of
prospectus. The Company agrees to indemnify, defend and hold the Distributor,
its several officers and directors, and any person who controls the Distributor
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 Distributor, its
officers and directors, or any such controlling person, may incur under the 1933
Act or under 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 or any prospectus 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 or prospectus or necessary to make any statement in
such documents not misleading; provided, however, that the Company's agreement
to indemnify the Distributor, its officers or directors, and any such
controlling person shall not be deemed to cover any claims, demands, liabilities
or expenses arising out of any untrue statement or alleged untrue statement or
omission or alleged omission made in any registration statement or prospectus or
in any financial or other statements in reliance upon and in conformity with any
information furnished to the Company by the Distributor or any affiliate thereof
and used in the preparation thereof; and further provided that the Company's
agreement to indemnify the Distributor and the Company's representations and
warranties herein set forth shall not be deemed to cover any liability to the
Company 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 the Distributor's reckless disregard
of its obligations and duties under this Agreement. The Company's agreement to
indemnify the Distributor, its officers and directors, and any such controlling
person, as aforesaid, is expressly conditioned upon the Company's being notified
of any action brought against the Distributor, its officers or directors, or any
such controlling person, such notification to be given by letter or by telegram
addressed to the Company at its principal office and sent to the Company by the
person against whom such action is brought, within a reasonable period of time
after the summons or other first legal process shall have been served. The
failure to so notify the Company of any such action shall not relieve the
Company from any liability which the Company may have to the person against whom
such action is brought by reason of any such untrue, or allegedly untrue,
statement or omission, or alleged omission, otherwise than on account of the
Company's indemnity agreement contained in this paragraph 2.2. The Company will
be entitled to assume the defense of any suit brought to enforce any such claim,
demand or liability, but, in such case, such defense shall be conducted by
counsel of good standing chosen by the Company and approved by the Distributor,
which approval shall not unreasonably be withheld. In the event the Company
elects to assume the defense of any such suit and retain counsel of good
standing 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 Company 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 Company, the Company will reimburse the Distributor, its officers and
directors, 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. The Company's indemnification agreement contained in this
paragraph 2.2 and the Company'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
directors, or any controlling person, and shall survive the delivery of any
Shares. This agreement of indemnity will inure exclusively to the Distributor'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 Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against the Company or any of its
officers or directors in connection with the issue and sale of any Shares.
4
2.3. The Distributor agrees to indemnify, defend and hold the Company, its
several officers and directors, and any person who controls the Company 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
investigation or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which the Company, its officers or
directors or any such controlling person, may incur under the 1933 Act or under
common law or otherwise, but only to the extent that such liability or expense
incurred by the Company, its officers or directors, or such controlling person
resulting from such claims or demands, shall arise out of or be based upon any
untrue, or alleged untrue, statement of a material fact contained in information
furnished by the Distributor or any affiliate thereof to the Company or its
counsel and used in the Company's registration statement or corresponding
statements made in the prospectus, 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 by the Distributor or any affiliate thereof to the Company
or its counsel required to be stated in such answers or necessary to make such
information not misleading. The Distributor's agreement to indemnify the
Company, its officers and directors, and any such controlling person, as
aforesaid, is expressly conditioned upon the Distributor's being notified of any
action brought against the Company, its officers or directors, or any such
controlling person, such notification to be given by letter or telegram
addressed to the Distributor at its principal office in Little Rock, Arkansas
and sent to the Distributor by the person against whom such action is brought,
within a reasonable period of time after the summons or other first legal
process shall have been served. The Distributor shall have the right to control
the defense of such action, with counsel of its own choosing, satisfactory to
the Company, if such action is based solely upon such alleged misstatement or
omission on the Distributor's part or any affiliate thereof, and in any other
event the Company, its officers or directors or such controlling person shall
each have the right to participate in the defense or preparation of the defense
of any such action. The failure so to notify the Distributor of any such action
shall not relieve the Distributor or any affiliate thereof from any liability
which the Distributor or any affiliate thereof may have to the Company, 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 Distributor's indemnity agreement contained in this
paragraph 2.3.
2.4. No Shares shall be offered by either the Distributor or the Company
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Company if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the 1933
Act, or if and so long as a current prospectus, as required by Section 10(b) of
the 1933 Act is not on file with the SEC; provided, however, that nothing
contained in this paragraph 2.4 shall in any way restrict or have any
application to or bearing upon the Company's obligation to repurchase Shares
from any shareholder in accordance with the provisions of the Company's
prospectus or Articles of Incorporation.
5
2.5. The Company agrees to advise the Distributor as soon as reasonably
practical:
(a) of any request by the SEC for amendments to the registration
statement or prospectus then in effect;
(b) of the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement or prospectus then in effect or of
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 or prospectus then in effect
or which requires the making of a change in such registration statement or
prospectus in order to make the statements therein not misleading;
(d) of all actions of the SEC with respect to any amendment to any
registration statement or prospectus which may from time to time be filed with
the SEC; and
(e) if a current prospectus is not on file with the SEC.
For purposes of this section, informal requests by or acts of the Staff of
the SEC shall not be deemed actions of or requests by the SEC.
3. Confidentiality.
The Distributor agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Company all records and
other information relative to the Funds and/or the Company and its prior,
present or potential shareholders, and not to use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing by the
Company, which approval shall not be unreasonably withheld and may not be
withheld where the Distributor may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such information by
duly constituted authorities, or when so requested by the Company.
4. Limitations of Liability.
Except as provided in paragraph 2.3, the Distributor shall not be liable
for any error of judgment or mistake or law or for any loss suffered by the
Company or any Fund in connection with 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 of its
obligations and duties under this agreement.
6
5. Term.
This agreement shall become effective on the date of its execution and,
unless sooner terminated as provided herein, shall continue thereafter with
respect to each Fund for successive annual periods, provided such continuance is
specifically approved at least annually by (i) the Company's Board of Directors
or (ii) by a vote of a majority (as defined in the 0000 Xxx) of the outstanding
voting securities of the Fund, provided that in either event the continuance is
also approved by the majority of the Company's Directors who are not parties to
this agreement or interested persons (as defined in the 0000 Xxx) of any such
party, by vote cast in person at a meeting called for the purpose of voting on
such approval. This agreement is not assignable and is terminable with respect
to a Fund, without penalty, on not less than sixty days' notice, by the
Company's Board of Directors, by vote of a majority (as defined in the 0000 Xxx)
of the outstanding voting securities of such Fund, or by the Distributor. This
agreement will also terminate automatically in the event of its assignment (as
defined in the 1940 Act).
6. Miscellaneous.
6.1. No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
6.2. This agreement shall be governed by the laws of the State of
Arkansas.
7
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place indicated below,
whereupon it shall become a binding agreement between us.
Yours very truly,
NATIONS FUND PORTFOLIOS, INC.
By: /s/ A. Xxx Xxxxxx
----------------------------
Name: A. Xxx Xxxxxx
Title: President
Accepted:
XXXXXXXX INC.
By: /s/ R. Xxxx Xxxxxx
-------------------------
Name: R. Xxxx Xxxxxx
Title: Senior Vice President
Dated as of July 1, 1995
8
SCHEDULE I
1. Nations Global Government Income Fund
2. Nations Pacific Growth Fund
3. Nations Emerging Markets Fund
