AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
AGREEMENT made this 1st day of November, 1999 by and between XXXXXX
XXXXXX FUNDS, a Massachusetts business trust (the "Trust"), and XXXXXX XXXXXX
DISTRIBUTORS, L.P., a Delaware limited partnership (the "Distributor").
W I T N E S S E T H:
In consideration of the premises and covenants hereinafter contained,
the Trust and the Distributor agree as follows:
1. DISTRIBUTOR. The Trust hereby appoints the Distributor as general
distributor of shares of beneficial interest of each series ("Series")
of the Trust ("Series shares") during the term of this Agreement. The
Trust reserves the right, however, to refuse at any time or times to
sell any Series shares hereunder for any reason deemed adequate by the
Board of Trustees of the Trust.
2. SALE AND PAYMENT. Under this agreement, the following provisions shall
apply with respect to the sale of and payment for Series shares:
(a) The Distributor shall have the right, as principal, to
purchase Series shares from the Trust at their net asset value
and to sell such shares to the public against orders therefor
at such net asset value, together with, in the case of the
Series shares of the Xxxxxx Xxxxxx Managed Bond Fund and Class
J shares of the Xxxxxx Xxxxxx Investment Grade Bond Fund, the
applicable sales charge, as set forth in the current
prospectus(es) of the Trust relating to the Series shares of
such Series.
(b) Prior to the time of delivery of any shares by the Trust to,
or on the order of, the Distributor, the Distributor shall pay
or cause to be paid to the Trust or to its order an amount in
Boston or New York clearing house funds equal to the
applicable net asset value of such shares.
3. FEE. For its services as general distributor of the Series shares, the
Trust shall pay to the Distributor on behalf of the Series a
distribution fee at the rate and upon the terms and conditions set
forth in the Distribution Plan(s) attached as Exhibit A hereto, and as
amended from time to time. The Distribution Fee shall be accrued daily
and paid monthly to the Distributor as soon as practicable after the
end of the calendar month in which it accrues, but in any event within
five business days following the last day of the month. In addition,
the Distributor shall, in the case of Series shares of the Xxxxxx
Xxxxxx Managed Bond Fund and Class J shares of the Xxxxxx Xxxxxx
Investment Grade Bond Fund, be entitled to retain any applicable sales
charge, as set forth in the current prospectus(es) of the Trust
relating to Series shares of such Series.
4. PUBLIC OFFERING PRICE. The public offering price shall be the net asset
value of Series shares, together with, in the case of the Xxxxxx Xxxxxx
Managed Bond Fund and Class J shares of the Xxxxxx Xxxxxx Investment
Grade Bond Fund, the applicable sales charge, as set forth in the
current prospectus(es) of the Trust relating to the Series shares of
such Series. The net asset value of Series shares shall be determined
in accordance with the provisions of the agreement and declaration of
trust and by-laws of the Trust and the current prospectus(es) of the
Trust relating to the Series shares.
5. TRUST ISSUANCE OF SERIES SHARES. The delivery of Series shares shall be
made promptly by a credit to a shareholder's open account for the
relevant Series. The Trust reserves the right (a) to issue Series
shares at any time directly to the shareholders of the Series as a
stock dividend or stock split, (b) to issue to such shareholders Series
shares, or rights to subscribe to Series shares, as all or part of any
dividend that may be distributed to shareholders of the Series or as
all or part of any optional or alternative dividend that may be
distributed to shareholders of the Series, and (c) to sell Series
shares in accordance with any current applicable prospectus of the
Trust relating to the Series shares.
6. REPURCHASE. The Distributor shall act as agent for the Trust in
connection with the repurchase of Series shares by the Trust to the
extent and upon the terms and conditions set forth in the current
applicable prospectus(es) of the Trust relating to the Series shares,
and the Trust agrees to reimburse the Distributor, from time to time
upon demand, for any reasonable expenses incurred in connection with
such repurchases of shares.
7. UNDERTAKING REGARDING SALES. The Distributor shall use reasonable
efforts to sell Series shares but does not agree hereby to sell any
specific number of Series shares and shall be free to act as
distributor of the shares of other investment companies. Series shares
will be sold by the Distributor only against orders therefor. The
Distributor shall not purchase Series shares from anyone except in
accordance with Sections 2 and 6 and shall not take "long" or "short"
positions in Series shares contrary to the agreement and declaration of
trust or by-laws of the Trust.
8. COMPLIANCE. The Distributor shall conform to the Conduct Rules of the
National Association of Securities Dealers, Inc. ("NASD") and the sale
of securities laws of any jurisdiction in which it sells, directly or
indirectly, any Series shares. The Distributor agrees to make timely
filings, with the Securities and Exchange Commission (the "SEC") in
Washington, D.C., the NASD and such other regulatory authorities as may
be required, of any sales literature relating to the Series and
intended for distribution to prospective investors. The Distributor
also agrees to furnish to the Trust sufficient copies of any agreements
or plans it intends to use in connection with any sales of Series
shares in adequate time for the Trust to file and clear them with the
proper
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authorities before they are put in use (which the Trust agrees to use
its best efforts to do as expeditiously as reasonably possible), and
not to use them until so filed and cleared.
9. REGISTRATION AND QUALIFICATION OF SERIES SHARES. The Trust agrees to
execute such papers and to do such acts and things as shall from time
to time be reasonably requested by the Distributor for the purpose of
qualifying and maintaining qualification of the Series shares for sale
under the so-called Blue Sky Laws of any state or for maintaining the
registration of the Trust and of the Series shares under the federal
Investment Company Act of 1940 (the "1940 Act") and the federal
Securities Act of 1933, to the end that there will be available for
sale from time to time such number of Series shares as the Distributor
may reasonably be expected to sell. The Trust shall advise the
Distributor promptly of (a) any action of the SEC or any authorities of
any state or territory, of which it may be advised, affecting
registration or qualification of the Trust or the Series shares, or
rights to offer Series shares for sale, and (b) the happening of any
event which makes untrue any statement or which requires the making of
any change in the Trust's registration statement or its prospectus
relating to the Series shares in order to make the statements therein
not misleading.
10. DISTRIBUTOR INDEPENDENT CONTRACTOR. The Distributor shall be an
independent contractor and neither the Distributor nor any of its
officers or employees as such is or shall be an employee of the Trust.
The Distributor is responsible for its own conduct and the employment,
control and conduct of its agents and employees and for injury to such
agents or employees or to others through its agents or employees. The
Distributor assumes full responsibility for its agents and employees
under applicable statutes and agrees to pay all employer taxes
thereunder.
11. EXPENSES PAID BY DISTRIBUTOR. While the Distributor continues to act as
agent of the Trust to obtain subscriptions for and to sell Series
shares, the Distributor shall pay the following:
(a) all expenses of printing (exclusive of typesetting) and
distributing any prospectus for use in offering Series shares
for sale, and all other copies of any such prospectus used by
the Distributor, and
(b) all other expenses of advertising and of preparing, printing
and distributing all other literature or material for use in
connection with offering Series shares for sale.
12. INTERESTS IN AND OF DISTRIBUTOR. It is understood that any of the
shareholders, trustees, officers, employees and agents of the Trust may
be a shareholder, director, officer, employee or agent of, or be
otherwise interested in, the Distributor, any affiliated person of the
Distributor, any organization in which the Distributor may have an
interest or any organization which may have an interest in the
Distributor; that the
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Distributor, any such affiliated person or any such organization may
have an interest in the Trust; and that the existence of any such dual
interest shall not affect the validity hereof or of any transaction
hereunder except as otherwise provided in the agreement and declaration
of trust or by-laws of the Trust, in the limited partnership agreement
of the Distributor or by specific provision of applicable law.
13. EFFECTIVE DATE AND TERMINATION. This Agreement shall become effective
as of the date of its execution, and
(a) Unless otherwise terminated, this Agreement shall continue in
effect with respect to the shares of a Series so long as such
continuation is specifically approved at least annually (i) by
the Board of Trustees of the Trust or by the vote of a
majority of the votes which may be cast by shareholders of the
Series and (ii) by a vote of a majority of the Board of
Trustees of the Trust who are not interested persons of the
Distributor or the Trust, cast in person at a meeting called
for the purpose of voting on such approval.
(b) This Agreement may at any time be terminated on sixty days'
notice to the Distributor either by vote of a majority of the
Trust's Board of Trustees then in office or by the vote of a
majority of the votes which may be cast by shareholders of the
Series.
(c) This Agreement shall automatically terminate in the event of
its assignment.
(d) This Agreement may be terminated by the Distributor on ninety
days' written notice to the Trust.
Termination of this Agreement pursuant to this section shall be without payment
of any penalty.
14. DEFINITIONS. For purposes of this Agreement, the following definitions
shall apply:
(a) The "vote of a majority of the votes which may be cast by
shareholders of the Series" means (1) 67% or more of the votes
of the Series present (in person or by proxy) and entitled to
vote at such meeting, if the holders of more than 50% of the
outstanding shares of the Series entitled to vote at such
meeting are present; or (2) the vote of the holders of more
than 50% of the outstanding shares of the Series entitled to
vote at such meeting, whichever is less.
(b) The terms "affiliated person," "interested person" and
"assignment" shall have their respective meanings as defined
in the 1940 Act subject, however, to such exemptions as may be
granted by the SEC under the 1940 Act.
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15. AMENDMENT. This Agreement may be amended at any time by mutual consent
of the parties, provided that such consent on the part of the Series
shall be approved (i) by the Board of Trustees of the Trust or by vote
of a majority of the votes which may be cast by shareholders of the
Series and (ii) by a vote of a majority of the Board of Trustees of the
Trust who are not interested persons of the Distributor or the Trust
cast in person at a meeting called for the purpose of voting on such
approval.
16. APPLICABLE LAW AND LIABILITIES. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of
Massachusetts. All sales hereunder are to be made, and title to the
Series shares shall pass, in Boston, Massachusetts.
17. LIMITED RECOURSE. The Distributor hereby acknowledges that the Trust's
obligations hereunder are binding only on the assets and property
belonging to the Trust.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
XXXXXX XXXXXX FUNDS
By:
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Xxxxxx X. Xxxx
President
XXXXXX XXXXXX DISTRIBUTORS, L.P.
By: Xxxxxx Xxxxxx Distributors, Incorporated,
its general partner
By:
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Xxxxxx X. Xxxxxxx
President
A copy of the Agreement and Declaration of Trust establishing Xxxxxx
Xxxxxx Funds (the "Trust") is on file with the Secretary of The Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed on
behalf of the Trust by officers of the Trust as officers and not individually
and that the obligations of or arising out of this Agreement are not binding
upon any of the trustees, officers or shareholders of the Trust individually but
are binding only upon the assets and property of the Trust.
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