Exhibit 10.6
DISTRIBUTION AGREEMENT
THE XXXXXXX FUNDS, INC.
DOMESTIC EMERGING MARKETS EQUITY FUND
The World Trade Center-Baltimore
28th Floor
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
October 28, 1997
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 Domestic
Emerging Markets Equity 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 Domestic Emerging Markets Equity 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.
October 28, 1997
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
The Xxxxxxx Co.
October 28, 1997
Page 3
providing compensation for Investor Selling Services in accordance with the
Investor Class Plan, The Xxxxxxx Co. is 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
The Xxxxxxx Co.
October 28, 1997
Page 4
Organizations"), for providing (i) services primarily intended to result in
the sale of the Institutional Shares ("Institutional Selling Services"), and
(ii) stockholder servicing, 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
The Xxxxxxx Co.
October 28, 1997
Page 5
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 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).
The Xxxxxxx Co.
October 28, 1997
Page 6
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.
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
The Xxxxxxx Co.
October 28, 1997
Page 7
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 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
The Xxxxxxx Co.
October 28, 1997
Page 8
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.
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
The Xxxxxxx Co.
October 28, 1997
Page 9
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 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
The Xxxxxxx Co.
October 28, 1997
Page 10
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
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.
The Xxxxxxx Co.
October 28, 1997
Page 11
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 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.
The Xxxxxxx Co.
October 28, 1997
Page 12
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
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.
October 28, 1997
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 Domestic Emerging Markets Equity
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
