Exhibit 6(a)
DISTRIBUTION AGREEMENT
BETWEEN
KALMAR POOLED TRUST
AND
XXXXXX SQUARE DISTRIBUTORS, INC.
THIS DISTRIBUTION AGREEMENT is made as of the ____ day of
_______________, 1996, between Kalmar Pooled Trust, a Delaware business
trust (the "Trust"), having its principal place of business in Wilmington,
Delaware, and Xxxxxx Square Distributors, Inc., a corporation organized
under the laws of the State of Delaware (the "Distributor"), having its
principal place of business in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment
company, and offers for sale one or more series of shares of beneficial
interest;
WHEREAS, each share of a Series represents an undivided interest in the
assets, subject to the liabilities, allocated to that Series and each
Series has a separate investment objective and policies;
WHEREAS, at the present time, the Trust has established two Series, of
which one Series consists of the two separate classes of shares and the
Trust may establish additional Series and/or classes in the future; and
WHEREAS, the Trust desires to avail itself of the services of
Distributor, with such assistance from its affiliates as the latter may
provide; and the Distributor is willing to furnish such services to the
Trust with respect to each of the Series listed on Schedule A to this
Agreement (each a "Fund" or collectively "Funds") on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties agree as follows:
1. SALE OF SHARES. The Trust grants to the Distributor the right to sell
shares of beneficial interest in all series of the Trust, now or
hereafter created, (the "Shares") on its behalf during the term of this
Agreement and subject to the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and of the laws
governing the sale of securities in various states (the "Blue Sky
Laws") under the following terms and conditions: the Distributor (i)
shall have the right to sell, as agent on behalf of the Trust, Shares
authorized for issue and registered under the 1933 Act; (ii) may sell
Shares under offers of exchange, if available, between and among the
funds distributed by Distributor and advised by Xxxxxx Square
Management Corporation or Wilmington Trust Company; and (iii) shall
sell such Shares only in compliance with the terms set forth in the
Trust's currently effective registration statement. Distributor may
enter into selling agreements with selected dealers and others for the
sale of Trust Shares and will act only on its own behalf as principal
in entering into such selling agreements.
2. SALE OF SHARES BY THE TRUST. The rights granted to the Distributor
shall be non-exclusive in that the Trust reserves the right to sell its
Shares to investors on applications received and accepted by the Trust.
Further, the Trust reserves the right to issue Shares in connection
with (a) the merger or consolidation, or acquisition by the Trust
through purchase or otherwise, with any other investment company, trust
or personal holding company; and (b) a pro rata distribution directly
to the holders of Shares in the nature of a stock dividend or split-up.
3. SHARES COVERED BY THIS AGREEMENT. This Agreement shall apply to issued
Shares of all series of the Trust, Shares of all series of the Trust
held in its treasury in the event that in the discretion of the Trust
treasury Shares shall be sold, and Shares of all series of the Trust
repurchased for resale.
4. SUSPENSION OF SALES. If and whenever the determination of net asset
value is suspended and until such suspension is terminated, no further
orders for Shares shall be processed by the Distributor except such
unconditional orders placed with the Distributor before it had
knowledge of the suspension. In addition, the Trust reserves the right
to suspend sales and the Distributor's authority to process orders for
Shares on behalf of the Trust if, in the judgment of the Trust, it is
in the best interests of the Trust to do so. Suspension will continue
for such period as may be determined by the Trust. In addition, the
Distributor reserves the right to reject any purchase order.
5. SOLICITATION OF SALES. In consideration of these rights granted to the
Distributor, the Distributor agrees to use all reasonable efforts,
consistent with its other business, to secure purchasers for Shares of
the Trust. This shall not prevent the Distributor from entering into
like arrangements (including arrangements involving the payment of
underwriting commissions) with other issuers. Distributor agrees to
use all reasonable efforts to ensure that taxpayer identification
numbers provided for shareholders of the Trust are correct.
6. AUTHORIZED REPRESENTATIONS. The Distributor is not authorized by the
Trust to give any information or to make any representations other than
those contained in the appropriate registration statements,
Prospectuses or Statements of Additional Information ("SAIs") filed
with the Securities and Exchange Commission under the 1933 Act (as
those registration statements, Prospectuses and SAIs may be amended
from time to time), or contained in shareholder reports or other
material that may be prepared by or on behalf of the Trust for the
Distributor's use. This shall not be construed to prevent the
Distributor from preparing and distributing, in compliance with
applicable laws and regulations, sales literature or other material as
it may deem appropriate. Distributor will furnish or cause to be
furnished copies of such sales literature or other material to the
President of the Trust or his designee and will provide him with a
reasonable opportunity to comment on it. Distributor agrees to take
appropriate action to cease using such sales literature or other
material to which the Trust reasonably objects as promptly as
practicable after receipt of the objection.
7. PORTFOLIO SECURITIES. Portfolio securities of every series of the
Trust may be bought or sold by or through the Distributor, and the
Distributor may participate directly or indirectly in brokerage
commissions or "spreads" for transactions in portfolio securities of
any series of the Trust. However, all sums of money received by the
Distributor as a result of such purchases and sales or as a result of
such participation must, after reimbursement of actual expenses of the
Distributor in connection with such activity, be paid over by the
Distributor to or for the benefit of the applicable series.
8. REGISTRATION OF SHARES. The Trust agrees that it will take all action
necessary to register Shares under the 1933 Act (subject to the
necessary approval, if any, of its shareholders) so that there will be
available for sale the number of Shares the Distributor may reasonably
be expected to sell. The Trust shall furnish to the Distributor copies
of all information, financial statements and other papers which the
Distributor may reasonably request for use in connection with the
distribution of Shares of each series of the Trust.
9. EXPENSES, COMPENSATION AND REIMBURSEMENT
(a)The Trust shall pay all fees and expenses:
(i) in connection with the preparation, setting in type and filing
of any registration statement, Prospectus and SAI under the
1933 Act, and any amendments thereto, for the issue of its
Shares;
(ii)in connection with the registration and qualification of Shares
for sale in the various states in which the Board of Trustees
(the "Trustees") of the Trust shall determine it advisable to
qualify such Shares for sale (including registering the Trust
or Series as a broker or dealer or any officer of the Trust as
agent or salesperson in any state);
(iii)of preparing, setting in type, printing and mailing any report
or other communication to shareholders of the Trust in their
capacity as such; and
(iv) of preparing, setting in type, printing and mailing
Prospectuses, SAIs, and any supplements thereto, sent to
existing shareholders.
(b)The Distributor shall pay expenses of:
(i) printing and distributing Prospectuses, SAIs and reports
prepared for its use in connection with the offering of the
Shares for sale to the public;
(ii) any other literature used in connection with such offering; and
(iii)advertising in connection with such offering.
(c) In addition to the services described above, Distributor will
provide services including assistance in the production of
marketing and advertising materials for the sale of Shares of the
Trust and their review for compliance with applicable regulatory
requirements, entering into dealer agreements with broker-dealers
to sell Shares of the Trust and monitoring their financial strength
and contractual compliance, providing, directly or through its
affiliates certain investor support services, personal service, and
the maintenance of shareholder accounts.
(d) In connection with the services to be provided by the
Distributor under this Agreement, the Distributor shall receive
reimbursement from the Trust's investment adviser for fees and
expenses (which may include without limitation reimbursement
for the expenses incurred pursuant to Section 9(b) hereof).
10.INDEMNIFICATION.
(a) The Trust agrees to indemnify and hold harmless the Distributor and
each of its directors and officers and each person, if any, who
controls the Distributor within the meaning of Section 15 of the
1933 Act and Section 20(a) of the Securities Act of 1934 (the "1934
Act") against any loss, liability, claim, damages or expense
(including the reasonable cost of investigating or defending any
alleged loss, liability, claim, damages, or expense and reasonable
counsel fees incurred in connection therewith) arising by reason of
any person acquiring any Shares, based upon the 1933 Act or any
other statute or common law, alleging any wrongful act of the Trust
or any of its employees or representatives, or based upon the
grounds that the registration statements, Prospectuses, SAIs,
shareholder reports or other information filed or made public by
the Trust (as from time to time amended) included an untrue
statement of a material fact or omitted to state a material fact
required to be stated or necessary in order to make the statements
not misleading. However, the Trust does not agree to indemnify the
Distributor or hold it harmless to the extent that the statement or
omission was made in reliance upon, and in conformity with,
information furnished to the Trust in writing by or on behalf of
the Distributor. In no case (i) is the indemnity of the Trust in
favor of the Distributor or any person indemnified to be deemed to
protect the Distributor or any person against any liability to the
Trust or its security holders to which the Distributor or such
person would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties
under this Agreement, or (ii) is the Trust to be liable under its
indemnity agreement contained in this Section 10(a) with respect to
any claim made against the Distributor or any person indemnified
unless the Distributor or person, as the case may be, shall have
notified the Trust in writing of the claim within a reasonable time
after the summons or other first written notification giving
information of the nature of the claim shall have been served upon
the Distributor or any such person or after the Distributor or such
person shall have received notice of service on any designated
agent. However, failure to notify the Trust of any claim shall not
relieve the Trust from any liability which it may have to the
Distributor or any person against whom such action is brought other
than on account of its indemnity agreement contained in this
Section 10(a). The Trust shall be entitled to participate at its
own expense in the defense, or, if it so elects, to assume the
defense of any suit brought to enforce any claims, but if the Trust
elects to assume the defense, the defense shall be conducted by
counsel chosen by it and satisfactory to the Distributor, or person
or persons, defendant or defendants in the suit. In the event the
Trust elects to assume the defense of any suit and retain counsel,
the Distributor, officers or directors or controlling person(s) or
defendant(s) in the suit, shall bear the fees and expenses of any
additional counsel retained by them. If the Trust does not elect
to assume the defense of any suit, it will reimburse the
Distributor, officers or directors or controlling person(s) or
defendant(s) in the suit, for the reasonable fees and expenses of
any counsel retained by them. The Trust agrees to notify the
Distributor promptly of the commencement of any litigation or
proceedings against it or any of its officers or Trustees in
connection with the issuance or sale of any of the Shares.
(b) The Distributor also covenants and agrees that it will indemnify
and hold harmless the Trust and each of the members of its Trustees
and officers and each person, if any, who controls the Trust within
the meaning of Section 15 of the 1933 Act, against any loss,
liability, damages, claim or expense (including the reasonable cost
of investigating or defending any alleged loss, liability, damages,
claim or expense and reasonable counsel fees incurred in connection
therewith) arising by reason of any person acquiring any Shares,
based upon the 1933 Act or any other statute or common law,
alleging any wrongful act of the Distributor or any of its
employees or representatives, or alleging that the registration
statements, Prospectuses, SAIs, shareholder reports or other
information filed or made public by the Trust (as from time to time
amended) included an untrue statement of a material fact or omitted
to state a material fact required to be stated or necessary in
order to make the statements not misleading, insofar as the
statement or omission was made in reliance upon, and in conformity
with, information furnished in writing to the Trust by or on behalf
of the Distributor. In no case (i) is the indemnity of the
Distributor in favor of the Trust or any person indemnified to be
deemed to protect the Trust or any person against any liability to
which the Trust or such person would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of
its obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in
this Section 10(b) with respect to any claim made against the Trust
or any person indemnified unless the Trust or person, as the case
may be, shall have notified the Distributor in writing of the claim
within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall
have been served upon the Trust or any such person or after the
Trust or such person shall have received notice of service on any
designated agent. However, failure to notify the Distributor of
any claim shall not relieve the Distributor from any liability
which it may have to the Trust or any person against whom the
action is brought other than on account of its indemnity agreement
contained in this Section 10(b). In the case of any notice to the
Distributor, it shall be entitled to participate, at its own
expense, in the defense, or, if it so elects, to assume the defense
of any suit brought to enforce any claims, but if the Distributor
elects to assume the defense, the defense shall be conducted by
counsel chosen by it and satisfactory to the Trust, to its officers
and Trustees and to any controlling person(s) or any defendants(s)
in the suit. In the event the Distributor elects to assume the
defense of any suit and retain counsel, the Trust or controlling
person(s) or defendant(s) in the suit, shall bear the fees and
expenses of any additional counsel retained by them. If the
Distributor does not elect to assume the defense of any suit, it
will reimburse the Trust, its officers or Trustees, controlling
person(s) or defendant(s) in the suit, for the reasonable fees and
expenses of any counsel retained by them. The Distributor agrees
to notify the Trust promptly of the commencement of any litigation
or proceedings against it in connection with the issue and sale of
any of the Shares.
11.EFFECTIVENESS, TERMINATION, ETC. This Agreement shall become effective
on the day and year first written above, and unless terminated as
provided, shall continue in force for one (1) year from the date of its
execution and thereafter from year to year, provided continuance after
the one (1) year period is approved at least annually by either (i) the
vote of a majority of the Trustees of the Trust, or by the vote of a
majority of the outstanding voting securities of the Trust, and (ii)
the vote of a majority of those Trustees of the Trust who are not
interested persons of the Trust, who have no direct or indirect
financial interest in the operation of any Plan of the Trust or any
agreements related to the Plan and who are not parties to this
Agreement or interested persons of any party, cast in person at a
meeting called for the purpose of voting on the approval. This
Agreement shall automatically terminate in the event of its assignment.
As used in this Section 12, the terms "vote of a majority of the
outstanding voting securities," "assignment" and "interested person"
shall have the respective meanings specified in the 1940 Act and the
rules enacted thereunder as now in effect or as hereafter amended. In
addition to termination by failure to approve continuance or by
assignment, this Agreement may at any time be terminated without the
payment of any penalty by vote of a majority of the Trustees of the
Trust who are not interested persons of the Trust and who have no
direct or indirect financial interest in the operation of any Plan of
the Trust or any agreements related to the Plan, or by vote of a
majority of the outstanding voting securities of the Trust, on not more
than sixty (60) days' written notice to the Trust. This Agreement may
be terminated by the Distributor upon not less than sixty (60) days'
prior written notice to the Trust.
12.NOTICE. Any notice under this Agreement shall be given in writing
addressed and hand delivered or sent by registered or certified mail,
postage prepaid, to the other party to this Agreement at its principal
place of business.
13.SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
14.GOVERNING LAW. To the extent that state law has not been preempted by
the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement
shall be administered, construed and enforced according to the laws of
the State of Delaware.
15.SHAREHOLDER LIABILITY. The Distributor is hereby expressly put on
notice of the limitation of shareholder liability as set forth in the
Trust Instrument of the Trust and agrees that obligations assumed by
the Trust pursuant to this Agreement shall be limited in all cases to
the Trust and its assets, and if the liability relates to one or more
series, the obligations hereunder shall be limited to the respective
assets of such series. The Distributor further agrees that it shall
not seek satisfaction of any such obligation from the shareholders or
any individual shareholder of a series of the Trust, nor from the
Trustees or any individual Trustee of the Trust.
16.MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or effect.
This Agreement may be executed in two counterparts, each of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
KALMAR POOLED TRUST
By: -----------------------------
Name, Title
XXXXXX SQUARE DISTRIBUTORS, INC.
By: ------------------------------
Xxxxxxx X. Xxxxxxx, President
Acknowledgment as to reimbursement with respect to marketing expenses
of Xxxxxx Square Distributors, Inc. as Distributor.
Kalmar Investment Adviser, as Investment Adviser
By: -----------------------------
Ford X. Xxxxxx, President
Date: ---------------------------
