Xxxxxxxx Funds, Inc. Distributor's Contract, dated October 31, 2002
Exhibit (e)(i) under Form N-1A
Exhibit (1) under Item 601/Reg. S-K
DISTRIBUTOR'S CONTRACT
This contract is made this 31st day of October, 2002, by and between
Edgewood Services, Inc. ("Edgewood"), a New York corporation, and Xxxxxxxx
Funds, Inc. ("Investment Company"), a Wisconsin corporation having its principal
office and place of business at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Investment Company hereby appoints Edgewood as its agent to sell and
distribute shares of the Investment Company which may be offered in one or
more portfolios (the "Funds") consisting of one or more classes (the
"Classes") of shares (the "Shares"), as described and set forth on one or
more exhibits to this Agreement, at the current offering price thereof as
described and set forth in the current Prospectuses of the Investment
Company. Edgewood hereby accepts such appointment and agrees to provide
such other services for the Investment Company, if any, and accept such
compensation from the Investment Company, if any, as set forth in the
applicable exhibits to this Agreement.
2. The sale of any Shares may be suspended without prior notice whenever in
the judgment of the Investment Company it is in its best interest to do so.
3. Neither Edgewood nor any other person is authorized by the Investment
Company to give any information or to make any representation relative to
any Shares other than those contained in the Registration Statement,
Prospectuses, or Statements of Additional Information ("SAIs") filed with
the Securities and Exchange Commission, as the same may be amended from
time to time, or in any supplemental information to said Prospectuses or
SAIs approved by the Investment Company. Edgewood agrees that any other
information or representations other than those specified above which it or
any dealer or other person who purchases Shares through Edgewood may make
in connection with the offer or sale of Shares, shall be made entirely
without liability on the part of the Investment Company. No person or
dealer, other than Edgewood, is authorized to act as agent for the
Investment Company for any purpose. Edgewood agrees that in offering or
selling Shares as agent of the Investment Company, it will, in all
respects, duly conform to all applicable state and federal laws and the
rules and regulations of the National Association of Securities Dealers,
Inc., including its Conduct Rules. Edgewood will submit to the Investment
Company copies of all sales literature before using the same and will not
use such sales literature if disapproved by the Investment Company.
4. This Agreement is effective with respect to each Fund and each Class, as
applicable, as of the date of execution of the applicable exhibit and shall
continue in effect with respect to each Fund or Class presently set forth
on an exhibit and any subsequent Funds or Classes added pursuant to an
exhibit during the initial term of this Agreement for one year from the
date set forth above, and thereafter for successive periods of one year if
such continuance is approved at least annually by the Directors of the
Investment Company including a majority of the members of the Board of
Directors of the Investment Company who are not "interested persons" (as
that term is defined by the Investment Company Act of 1940 ("1940 Act")) of
the Investment Company and have no direct or indirect financial interest in
the operation of any Distribution Plan relating to the Investment Company
or in any related documents to such Plan ("Independent Directors") cast in
person at a meeting called for that purpose. If a Fund or Class is added
after the first annual approval by the Directors as described above, this
Agreement will be effective as to that Fund or Class upon execution of the
applicable exhibit and will continue in effect until the next annual
approval of this Agreement by the Directors and thereafter for successive
periods of one year, subject to approval as described above.
5. This Agreement may be terminated with regard to a particular Fund or Class
at any time, without the payment of any penalty, by the vote of a majority
of the Independent Directors or by a majority of the outstanding voting
securities of the particular Fund or Class on not more than sixty (60)
days' written notice to any other party to this Agreement. This Agreement
may be terminated with regard to a particular Fund or Class by Edgewood on
sixty (60) days' written notice to the Investment Company.
6. This Agreement may not be assigned by Edgewood and shall automatically
terminate in the event of an assignment by Edgewood as defined in the 1940
Act, provided, however, that Edgewood may employ such other person,
persons, corporation or corporations as it shall determine in order to
assist it in carrying out its duties under this Agreement.
7. Edgewood shall not be liable to the Investment Company for anything done or
omitted by it, except acts or omissions involving willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties imposed by
this Agreement.
8. This Agreement may be amended at any time by mutual agreement in writing of
all the parties hereto, provided that such amendment is approved by the
Directors of the Investment Company, including a majority of the
Independent Directors of the Investment Company cast in person at a meeting
called for that purpose.
9. This Agreement shall be construed in accordance with and governed by the
laws of the Commonwealth of Pennsylvania.
10.(a) Subject to the conditions set forth below, the Investment Company agrees
to indemnify and hold harmless Edgewood and each person, if any, who
controls Edgewood within the meaning of Section 15 of the Securities Act of
1933 ("1933 Act") and Section 20 of the Securities and Exchange Act of 1934
("1934 Act") against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever) arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, Prospectuses or SAIs
(as they may be amended or supplemented from time to time), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, unless
such statement or omission was made in reliance upon and in conformity with
written information furnished to the Investment Company about Edgewood by
or on behalf of Edgewood expressly for use in the Registration Statement,
Prospectuses or SAIs, or any amendment or supplement thereto.
If any action is brought against Edgewood or any controlling person thereof
with respect to which indemnity may be sought against the Investment
Company pursuant to the foregoing paragraph, Edgewood shall promptly notify
the Investment Company in writing of the institution of such action and the
Investment Company shall assume the defense of such action, including the
employment of counsel selected by the Investment Company and payment of
expenses. Edgewood or any such controlling person thereof shall have the
right to employ separate counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of Edgewood or such
controlling person unless the employment of such counsel shall have been
authorized in writing by the Investment Company in connection with the
defense of such action or the Investment Company shall not have employed
counsel to have charge of the defense of such action, in any of which
events such fees and expenses shall be borne by the Investment Company.
Despite anything to the contrary in this paragraph, the Investment Company
shall not be liable for any settlement of any such claim of action effected
without its written consent. The Investment Company agrees promptly to
notify Edgewood of the commencement of any litigation or proceedings
against the Investment Company or any of its officers or Directors or
controlling persons in connection with the issue and sale of Shares or in
connection with the Registration Statement, any Prospectuses and SAIs, or
any amendment or supplement thereto.
(b) Subject to the conditions set forth below, Edgewood agrees to indemnify and
hold harmless the Investment Company, each of its Directors, each of its
officers who have signed the Registration Statement and each other person,
if any, who controls the Investment Company within the meaning of Section
15 of the 1933 Act and Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense whatsoever (including but not
limited to any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, Prospectuses or SAIs (as they may be amended
or supplemented from time to time), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, provided that such statement or
omission was made in reliance upon and in conformity with written
information furnished to the Investment Company about Edgewood by or on
behalf of Edgewood expressly for use in the Registration Statement,
Prospectuses or SAIs, or any amendment or supplement thereto.
If any action is brought against the Investment Company, any controlling
person thereof, or any other person so indemnified, with respect to which
indemnity may be sought against Edgewood pursuant to the foregoing
paragraph, the Investment Company shall promptly notify Edgewood in writing
of the institution of such action and Edgewood shall assume the defense of
such action, including the employment of counsel selected by Edgewood and
payment of expenses. The Investment Company, any such controlling person
thereof or any other person so indemnified, shall have the right to employ
separate counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Investment Company or such persons
unless the employment of such counsel shall have been authorized in writing
by Edgewood in connection with the defense of such action or Edgewood shall
not have employed counsel to have charge of the defense of such action, in
any of which events such fees and expenses shall be borne by Edgewood.
Despite anything to the contrary in this paragraph, Edgewood shall not be
liable for any settlement of any such claim or for any other action
effected without its written consent. Edgewood agrees promptly to notify
the Investment Company of the commencement of any litigation or proceedings
against Edgewood or any of its controlling persons in connection with the
issue and sale of Shares or in connection with the Registration Statement,
Prospectuses or SAIs.
(c) Nothing herein contained shall be deemed to protect any person against
liability to the Investment Company or its shareholders to which such
person would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of the duties of such person
or by reason of the reckless disregard by such person of the obligations
and duties of such person under this Agreement.
(d) Insofar as indemnification for liabilities may be permitted pursuant to
Section 17 of the 1940 Act for Directors, officers, Edgewood and
controlling persons of the Investment Company by the Directors pursuant to
this Agreement, the Investment Company is aware of the position of the
Securities and Exchange Commission as set forth in the Investment Company
Act Release No. IC-11330. Therefore, the Investment Company undertakes that
in addition to complying with the applicable provisions of this Agreement,
in the absence of a final decision on the merits by a court or other body
before which the proceeding was brought, that an indemnification payment
will not be made unless in the absence of such a decision, a reasonable
determination based upon factual review has been made (i) by a majority
vote of a quorum of non-party Independent Directors, or (ii) by independent
legal counsel in a written opinion that the indemnitee was not liable for
an act of willful misfeasance, bad faith, gross negligence or reckless
disregard of duties. The Investment Company further undertakes that
advancement of expenses incurred in the defense of a proceeding (upon
undertaking for repayment unless it is ultimately determined that
indemnification is appropriate) against an officer, Directors, Edgewood or
controlling person of the Investment Company will not be made absent the
fulfillment of at least one of the following conditions: (i) the indemnitee
provides security for his undertaking; (ii) the Investment Company is
insured against losses arising by reason of any lawful advances; or (iii) a
majority of a quorum of non-party Independent Directors or independent
legal counsel in a written opinion makes a factual determination that there
is reason to believe the indemnitee will be entitled to indemnification.
11. This Agreement will become binding on the parties hereto upon the execution
of the attached exhibits to the Agreement.
12. Edgewood or its affiliate will review and file all sales literature
(advertisements, brochures and shareholder communications) for the
Investment Company in accordance with rules and regulations of the National
Association of Securities Dealers, Inc.
13. Edgewood agrees to maintain the security and confidentiality of nonpublic
personal information ("NPI") of Fund customers and consumers, as those
terms are defined in Xxxxxxxxxx X-X, 00 XXX Part 248. Edgewood agrees to
use and redisclose such NPI for the limited purposes of processing and
servicing transactions; for specified law enforcement and miscellaneous
purposes; and to service providers or in connection with joint marketing
arrangements directed by the Funds, in each instance in furtherance of
fulfilling Edgewood's obligations under this contract and consistent with
the exceptions provided in 17 CFR Sections 248.14, 248.15 and 248.13,
respectively.
EDGEWOOD SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President
XXXXXXXX FUNDS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
Exhibit A
to the
Distributor's Contract
(Share Classes that are not covered by a Rule 12b-1 Plan)
XXXXXXXX FUNDS, INC.
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FUNDS CLASS
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Xxxxxxxx Equity Income Fund Investor Class of Shares
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Xxxxxxxx Large-Cap Growth & Income Fund Investor Class of Shares
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Xxxxxxxx Mid-Cap Value Fund Investor Class of Shares
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Xxxxxxxx Mid-Cap Growth Fund Investor Class of Shares
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Xxxxxxxx Small-Cap Growth Fund Investor Class of Shares
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Xxxxxxxx International Stock Fund Investor Class of Shares
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Xxxxxxxx Government Income Fund Investor Class of Shares
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Xxxxxxxx Intermediate Bond Fund Investor Class of Shares
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Marshall Short-Term Income Fund Investor Class of Shares
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Xxxxxxxx Money Market Fund Investor Class of Shares
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Marshall Short-Term Income Fund Advisor Class of Shares
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In consideration of the mutual covenants set forth in the Distributor's
Contract dated dated October 31, 2002, between Xxxxxxxx Funds, Inc. ("Investment
Company") and Edgewood Services, Inc. ("Edgewood") with respect to the Class of
shares set forth above.
Witness the due execution hereof this 31st day of October, 2002.
XXXXXXXX FUNDS, INC. EDGEWOOD SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Secretary Title: President
Exhibit B
to the
Distributor's Contract
(Share Class covered by a Rule 12b-1 Plan)
XXXXXXXX FUNDS, INC.
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FUNDS CLASS
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Xxxxxxxx Equity Income Fund Advisor Class of Shares
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Xxxxxxxx Large-Cap Growth & Income Fund Advisor Class of Shares
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Xxxxxxxx Mid-Cap Value Fund Advisor Class of Shares
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Xxxxxxxx Mid-Cap Growth Fund Advisor Class of Shares
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Xxxxxxxx Small-Cap Growth Fund Advisor Class of Shares
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Xxxxxxxx International Stock Fund Advisor Class of Shares
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Xxxxxxxx Government Income Fund Advisor Class of Shares
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Xxxxxxxx Intermediate Bond Fund Advisor Class of Shares
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Xxxxxxxx Money Market Fund Advisor Class of Shares
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The following provisions are hereby incorporated and made part of the
Distributor's Contract dated October 31, 2002, between Xxxxxxxx Funds, Inc.
("Investment Company") and Edgewood Services, Inc. ("Edgewood") with respect to
the Class of shares set forth above.
1. The Investment Company hereby appoints Edgewood to engage in activities
principally intended to result in the sale of shares of the above-listed
Class ("Shares"). Pursuant to this appointment, Edgewood is authorized to
select a group of financial institutions ("Financial Institutions") to sell
Shares at the current offering price thereof as described and set forth in
the respective prospectuses of the Investment Company.
2. During the term of this Agreement, the Investment Company will pay Edgewood
for services pursuant to this Agreement, a monthly fee computed at the
annual rate of 0.25% (or 0.30% in the case of the Money Market Fund,
Advisor Class of Shares) of the average aggregate net asset value of Shares
held during the month. For the month in which this Agreement becomes
effective or terminates, there shall be an appropriate proration of any fee
payable on the basis of the number of days that the Agreement is in effect
during the month.
3. Edgewood may from time-to-time and for such periods as it deems appropriate
reduce its compensation to the extent any Class' expenses exceed such lower
expense limitation as Edgewood may, by notice to the Investment Company,
voluntarily declare to be effective.
4. Edgewood will enter into separate written agreements with various Financial
Institutions to provide certain of the services set forth in Paragraph 1
herein. Edgewood, in its sole discretion, may pay Financial Institutions a
periodic fee in respect of Shares owned from time to time by their clients
or customers. The schedules of such fees and the basis upon which such fees
will be paid shall be determined from time to time by Edgewood in its sole
discretion.
5. Edgewood will prepare reports to the Board of Directors of the Investment
Company on a quarterly basis showing amounts expended hereunder including
amounts paid to Financial Institutions and the purpose for such
expenditures.
In consideration of the mutual covenants set forth in the Distributor's
Contract dated October 31, 2002, between the Investment Company and Edgewood,
the Investment Company executes and delivers this Exhibit on behalf of the
Funds, and with respect to the Share Classes thereof, first set forth in this
Exhibit.
Witness the due execution hereof this 31st day of October, 2002.
XXXXXXXX FUNDS, INC. EDGEWOOD SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Secretary Title: President
