Exhibit 99.B6(a)
DISTRIBUTION AGREEMENT
October 16, 1997
GE Investment Services Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements set out below,
GE Institutional Funds, a business trust organized under the laws of the State
of Delaware (the "Trust"), has agreed that GE Investment Services Inc. ("XXXX")
will be, for the period of this Agreement, the distributor of shares of
beneficial interest of each series of the Trust (individually a "Fund" and
collectively the "Funds").
1. SERVICES AS DISTRIBUTOR.
1.1 XXXX agrees to solicit orders for the sale of shares of the Trust and
to undertake advertising and promotion that it believes reasonable in connection
with the solicitation.
1.2 XXXX will act as agent for the distribution of shares of the Trust
covered by, and in accordance with, the Trust's Registration Statement on Form
N-1A then in effect under the Securities Act of 1933, as amended (the
"Securities Act"), the Registration Statement on Form N-1A, together with the
prospectuses (the "Prospectuses") and statement of additional information (the
"Statement") included as part of the Registration Statement on Form N-1A, any
amendments to the Registration Statement on Form N-1A, and any supplements to,
or material incorporated by reference into the Prospectuses or Statement, being
referred to collectively in this Agreement as the "Registration Statement."
1.3 All activities by XXXX as distributor of shares of the Trust will
comply with all applicable laws, rules and regulations, including, without
limitation, all rules and regulations made or adopted pursuant to the Securities
Act or the Investment Company Act of 1940, as amended (the "1940 Act"), by
the Securities and Exchange Commission (the "Commission") or any securities
association registered under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
1.4 (a) XXXX will have the right to purchase from the Trust the shares
needed, but not more than the shares needed (except for clerical errors in
transmission), to fill unconditional orders for shares placed through XXXX. The
price that XXXX will pay for the shares so purchased from the Trust will be the
current public offering price on which the orders were based, as described in
paragraph (b) of this Section 1.4.
(b) The public offering price of the shares of the Trust will be the net
asset value determined as set forth in the Registration Statement, plus any
applicable sales charge.
(c) XXXX will have the right to enter into selected dealer or selling
agreements. All dealers or selling parties of Trust shares will act in
accordance with the Registration Statement then in effect under the Securities
Act. All activities by dealers or selling parties of Trust shares will comply
with all applicable laws, rules and regulations, including, without limitation,
all rules and regulations made or adopted pursuant to the Securities Act and the
1940 Act by the Commission or any securities association registered under the
Exchange Act.
(d) The Trust's transfer and dividend agent, or any other agent designated
in writing by the Trust, will be promptly advised by XXXX of all purchase orders
for shares of the Trust. The Trust may cease, on the basis of market, economic
or political conditions, or on the basis of any other abnormal conditions, to
accept any orders for Trust shares or continue to sell shares until the Trustees
deem it advisable to accept the orders and to make the sales. The Trust will
promptly advise XXXX of the determination to recommence accepting orders or
selling shares. The Trust (or its agent) will confirm orders for shares upon
their receipt, or in accordance with any exemptive order of the Commission, and
will make appropriate book entries pursuant to the instructions of XXXX. XXXX
agrees to cause payment for shares and instructions as to book entries to be
delivered promptly to the Trust (or its agent).
1.5 The outstanding shares of the Trust are subject to redemption as set
forth in the Trust's Declaration of Trust dated
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as of August 29, 1997, as amended from time to time (the "Declaration of
Trust"), and in accordance with the applicable provisions set forth in the
Prospectuses. The price to be paid to redeem the shares will be equal to their
net asset value, determined as set forth in the Prospectuses.
1.6 XXXX will provide one or more persons, during normal business hours, to
respond to telephone questions with respect to the Trust.
1.7 The Trust 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 (a) registering shares under the
Securities Act to the extent necessary to have available for sale the number of
shares as may reasonably be expected to be purchased and (b) the qualification
and maintenance of the qualification of shares of the Trust for sale in such
states as XXXX may designate, except that the Trust will not be obligated to
execute a general consent to service of process in any state.
1.8 The Trust will furnish XXXX from time to time, for use in connection
with the sale of shares of the Trust such information with respect to the Trust
and its shares as XXXX may reasonably request, all of which information must be
signed by one or more of the Trust's duly authorized officers; and the Trust
warrants that the statements contained in any such information, when so signed
by the Trust's officers, will be true and correct. The Trust will also furnish
XXXX upon request with: (a) financial statements of the Trust or any series of
the Trust audited at least annually by independent public accountants regularly
retained by the Trust, (b) quarterly earnings statements of the Trust or any
series of the Trust prepared by the Trust, (c) a monthly itemized list of the
securities in the portfolio of the Trust or any series of the Trust, (d) monthly
balance sheets with respect to the Trust or any series of the Trust as soon as
practicable after the end of each month and (e) from time to time any additional
information regarding the financial condition of the Trust or any series of the
Trust as XXXX may reasonably request.
1.9 The Trust represents to XXXX that the Registration Statement filed by
the Trust with the Commission under the Securities Act has been carefully
prepared in conformity with the requirements of the Securities Act and the 1940
Act and the
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respective rules and regulations of the Commission thereunder. The Trust
represents and warrants to XXXX that the Registration Statement, upon its
becoming effective, will contain all statements required to be stated therein in
conformity with the Securities Act and the rules and regulations of the
Commission thereunder; that all statements of fact contained in the Registration
Statement will be true and correct when the Registration Statement becomes
effective; and that the Registration Statement, upon its becoming effective,
will not 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. The Trust may, but will not be obligated to, propose
from time to time such amendment or amendments to the Registration Statement and
such supplement or supplements to the Prospectuses as may, in the Trust's
judgment, be necessary or advisable. If the Trust does not propose an amendment
or amendments or supplement or supplements within 15 days after receipt by the
Trust of a written request from XXXX to do so, XXXX may, at its option,
terminate this Agreement in accordance with the requirements of Section 2 of
this Agreement or decline to make offers of the Trust's securities until the
amendments are made. The Trust will not file any amendment to the Registration
Statement or supplement to the Prospectuses without giving XXXX reasonable
notice thereof in advance; provided, however, that nothing contained in this
Agreement will in any way limit the Trust's right to file at any time such
amendments to the Registration Statement or supplements to the Prospectuses, of
whatever character, as the Trust may deem advisable, this right being in all
respects absolute and unconditional.
1.10 (a) The Trust authorizes XXXX to use any prospectuses with respect to
the Trust or series of the Trust in the forms furnished to XXXX from time to
time in connection with the sale of Trust shares and agrees to furnish such
quantities of the prospectuses as XXXX may reasonably request. XXXX will devote
reasonable time and effort to effect sales of Trust shares, but will not be
obligated to sell any specific number of shares. The services of XXXX under this
Agreement are not to be deemed exclusive and nothing contained in this Agreement
should be deemed to prevent XXXX from entering into distribution arrangements
with other investment companies so long as the performance of its obligations
under this Agreement is not impaired by XXXX'x doing so.
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(b) In selling the shares of the Trust, XXXX and selected dealers will
use their best efforts in all respects duly to conform with the requirements of
all federal and state laws and regulations of the National Association of
Securities Dealers, Inc. (the "NASD") relating to the sale of the shares.
Neither XXXX nor any other person is authorized by the Trust to give any
information or to make any representations, other than those contained in the
Registration Statement or in any sales literature specifically approved by the
Trust.
(c) XXXX will adopt and follow procedures, as approved by the Trust,
for the confirmation of sales to purchasers of Trust shares, the collection of
amounts payable by those purchasers, and the cancellation of unsettled
transactions, as may be necessary to comply with the requirements of the NASD
and applicable rules and regulations of the Commission.
(d) XXXX represents to the Trust that XXXX is a broker-dealer
registered with the Commission under the Exhange Act, is a member of the NASD,
and is registered or licensed under the laws of all jurisdictions in which its
activities require it to be so registered or licensed. XXXX shall maintain such
registration or license in effect at all times during the term of this Agreement
and will immediately notify the Trust of the occurrence of any event that would
disqualify XXXX from serving as the distributor of shares of the Funds by
operation of Section 9(a) of the 1940 or otherwise.
1.11 (a) The Trust agrees promptly to notify XXXX of the commencement of
any litigation or proceedings against the Trust or any of its officers or
trustees in connection with the issuance and sale of any shares of the Trust.
(b) The Trust agrees to indemnify and hold XXXX, its several officers
and directors, and any person who controls XXXX within the meaning of Section 15
of the Securities Act, free and harmless from and against any and all claims,
demands, liabilities and expenses (including the cost of investigating or
defending those claims, demands or liabilities and any counsel fees incurred in
connection with them) that XXXX, its officers and directors, or the controlling
person may incur under the Securities 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 the Registration Statement or the Prospectuses
or arising out of or based upon any omission, or
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alleged omission, to state a material fact required to be stated in either the
Registration Statement or Prospectuses or necessary to make the statements in
either not misleading; provided, however, that the Trust's agreement to
indemnify XXXX, its officers and directors, and the controlling person will 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
in the Registration Statement or Prospectuses made in reliance upon and in
conformity with written information furnished to the Trust by XXXX specifically
for use in the preparation of the Registration Statement.
(c) The Trust's agreement to indemnify XXXX, its officers and
directors, and any controlling person, described in paragraph (b) of this
Section 1.11, is expressly conditioned upon the Trust's being notified of any
action brought against XXXX, its officers or directors, or any controlling
person, such notification to be given by letter or by telegram addressed to the
Trust at its principal office in Stamford, Connecticut within ten days after the
summons or other first legal process is served. The failure to notify the Trust
in this manner of any such action will relieve the Trust from any liability that
the Trust may have to the person against whom the action is brought by reason of
any such untrue, or alleged untrue, statement or omission, or alleged omission,
otherwise than on account of the Trust's indemnity agreement contained in this
Section 1.11.
(d) The Trust will be entitled to assume the defense of any suit
brought to enforce any claim, demand or liability contemplated by this Section
1.11, but, in such case, the defense will be conducted by counsel of good
standing chosen by the Trust and approved by XXXX (who will not, except with the
consent of XXXX, be counsel to the Trust). In the event the Trust elects to
assume the defense of any such suit and retain counsel of good standing approved
by XXXX, the defendant or defendants in the suit will bear the fees and expenses
of any additional counsel retained by any of them; but in case the Trust does
not elect to assume the defense of any such suit, or in case XXXX does not
approve of counsel chosen by the Trust, the Trust will reimburse XXXX, its
officers and directors, or the controlling person or persons named as defendant
or defendants in the suit, for the fees and expenses of any counsel retained by
XXXX or them.
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(e) The Trust's indemnification agreement contained in this Section
1.11 and the Trust's representations and warranties in this Agreement will
remain operative and in full force and effect regardless of any investigation
made by or on behalf of XXXX, its officers and directors, or any controlling
person, and will survive the delivery of any shares of the Trust. The Trust's
agreement of indemnity will inure exclusively to XXXX'x benefit, to the benefit
of its several officers and directors, and their respective estates, and to the
benefit of any controlling persons and their successors, except that the Trust
will not be obligated to indemnify any entity or person pursuant to this Section
1.11 against any liability to which XXXX, its officers and directors, or any
controlling person would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in performance of, or reckless disregard of, the
obligations and duties set forth in this Agreement.
1.12 (a) XXXX agrees to indemnify and hold the Trust, its several officers
and trustees, and any person, if any, who controls the Trust within the meaning
of Section 15 of the Securities Act, free and harmless from and against any and
all claims, demands, liabilities and expenses (including the cost of
investigating or defending those claims, demands or liabilities and any counsel
fees incurred in connection with them) that the Trust, its officers or trustees,
or the controlling person, may incur under the Securities Act, or under common
law or otherwise, but only to the extent that the liability or expense incurred
by the Trust, its officers or trustees, or the controlling person resulting from
the claims or demands arise out of or are based upon any untrue, or alleged
untrue statement of a material fact contained in information furnished in
writing by XXXX to the Trust specifically for use in the Registration Statement
and used in the Trust's answers to any of the items of the Registration
Statement or in the corresponding statements made in the Prospectuses, or arise
out of or are based upon any omission, or alleged omission, to state a material
fact in connection with the information furnished in writing by XXXX to the
Trust and required to be stated in the answers or necessary to make the
information not misleading.
(b) XXXX'x agreement to indemnify the Trust, its officers and
trustees, and any controlling person under this Section 1.12 is expressly
conditioned upon XXXX being notified of any action brought against the Trust,
its officers or trustees, or any controlling person, such notification to be
given by
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letter or telegram addressed to XXXX at its principal office in Stamford,
Connecticut and sent to XXXX by the person against whom the action is brought,
within ten days after the summons or other first legal process is served. The
failure to notify XXXX of any such action will not relieve XXXX from any
liability that XXXX may have to the Trust, its officers or trustees, or to the
controlling person otherwise than on account of XXXX'x indemnity agreement
contained in this Section 1.12.
(c) XXXX will have the right to control the defense of any action
contemplated by this Section 1.12, with counsel of its own choosing,
satisfactory to the Trust, unless the action referred to in paragraph (a) of
this Section 1.12 is not based solely upon an alleged misstatement or omission
on XXXX'x part. In such event, the Trust, its officers or trustees or the
controlling person will each have the right to participate in the defense or
preparation of the defense of the action.
(d) XXXX will not be obligated to indemnify any entity or person
pursuant to this Section 1.12 against any liability to which the Trust, its
officers and trustees, or any controlling person would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in performance of,
or reckless disregard of, the obligations and duties set forth in this
Agreement.
1.13 No shares of the Trust may be offered by XXXX, selected dealers,
selling parties or the Trust under any of the provisions of this Agreement, and
no orders for the purchase or sale of shares of the Trust pursuant to this
Agreement may be accepted by the Trust if and so long as the effectiveness of
the Registration Statement is suspended under any of the provisions of the
Securities Act or if and so long as a current prospectus as required by Section
10 of the Securities Act is not on file with the Commission; provided, however,
that nothing contained in this Section 1.13 will in any way restrict or have an
application to or bearing upon the Trust's obligation to redeem its shares from
any shareholder in accordance with the provisions of Section 1.5 of this
Agreement and provided, further, that XXXX may continue to offer shares of the
Trust until XXXX has been notified in writing of the occurrence of any of the
foregoing events.
1.14 The Trust agrees to advise XXXX immediately in writing:
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(a) of any request by the Commission for amendments to the
Registration Statement or the Prospectuses or any additional information
regarding the Trust or any of its series;
(b) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement 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 or the Prospectuses or that
requires the making of any change in the Registration Statement or the
Prospectuses in order to make the statements therein not misleading; and
(d) of all actions of the Commission with respect to any amendments to
the Registration Statement or the Prospectuses that may from time to time be
filed with the Commission.
2. TERM.
This Agreement will become effective as of the date herein and thereafter
will continue automatically for successive annual periods, so long as its
continuance is specifically approved at least annually (a) by the Trustees of
the Trust or (b) by a vote of a majority (as defined in the 0000 Xxx) of the
Trust's outstanding voting securities, provided that in either event the
continuance is also approved by a majority of the Trustees who are not parties
to this Agreement or interested persons (as defined in the 0000 Xxx) of any
party by vote cast in person at a meeting called for the purpose of voting on
the approval. This Agreement is terminable without penalty, (a) on not less than
60 days' notice (i) by action of the Trustees who are not interested persons (as
defined in the 0000 Xxx) of the Trust, or (ii) by the vote of holders of a
majority of the Trust's shares, or (b) upon not less than 60 days' written
notice by XXXX. This Agreement will also terminate automatically in the event of
its assignment (as defined in the 1940 Act and the rules under the 1940 Act).
3. AMENDMENTS.
This Agreement may be amended by the parties only if the amendment is
specifically approved by (a) the Trustees of the Trust, or by the vote of a
majority of outstanding voting securities of the Trust, and (b) a majority of
those Trustees of the Trust who are not parties to this Agreement or interested
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persons (as defined in the 0000 Xxx) of any party cast in person at a meeting
called for the purpose of voting on the approval.
4. MISCELLANEOUS.
4.1 (a) The Trust will bear all costs and expenses including fees and
disbursements of its counsel and independent accountants, in connection with the
preparation and filing of any registration statements and prospectuses under the
Securities Act and the 1940 Act, and all amendments and supplements thereto, and
the expense of preparing, printing, mailing and otherwise distributing
prospectuses, annual or interim reports or proxy materials to shareholders.
(b) The Trust will bear all costs and expenses of qualification of its
shares for sale in such states of the United States or other jurisdictions as
selected by XXXX pursuant to Section 1.7 of this Agreement and the cost and
expenses payable to each for continuing qualification therein.
4.2 (a) The Trust represents that a copy of the Certificate of Trust is on
file with the Secretary of the State of Delaware. The Trust further represents
that a copy of the Declaration of Trust is maintained by the Trust.
(b) The Trust and XXXX agree that the obligations of the Trust under
this Agreement will not be binding upon any of the Trustees, shareholders,
nominees, officers, employees or agents, whether past, present or future, of the
Trust, individually, but are binding only upon the assets and property of the
Trust, as provided in the Declaration of Trust. The execution and delivery of
this Agreement have been authorized by the Trustees of the Trust, and signed by
an authorized officer of the Trust, acting as such, and neither the
authorization by the Trustees nor the execution and delivery by the officer will
be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but will bind only the trust property of
the Trust as provided in the Declaration of Trust. No class or series of the
Trust will be liable for any claims against any other class or series.
* * * * *
If the terms and conditions described above are in
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accordance with your understanding, kindly indicate your acceptance of this
Agreement by signing and returning to us the enclosed copy of this Agreement.
Very truly yours,
GE INSTITUTIONAL FUNDS
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
Accepted:
GE INVESTMENT SERVICES INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary
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