XXXXXX CAPITAL APPRECIATION FUND
DISTRIBUTOR'S CONTRACT
Distributor's Contract dated June 10, 2005, by and between XXXXXX CAPITAL
APPRECIATION FUND, a Massachusetts business trust (the "Fund"), and XXXXXX
RETAIL MANAGEMENT LIMITED PARTNERSHIP, a Massachusetts limited partnership
("Putnam").
WHEREAS, the Fund and Putnam are desirous of entering into this agreement
to provide for the distribution by Xxxxxx of shares of the Fund;
NOW, THEREFORE, in consideration of the mutual agreements contained in the
Terms and Conditions of Distributor's Contract attached to and forming a
part of this Contract (the "Terms and Conditions"), the Fund hereby
appoints Xxxxxx as a distributor of shares of the Fund, and Xxxxxx hereby
accepts such appointment, all as set forth in the Terms and Conditions.
A copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of The Commonwealth of Massachusetts and notice is
hereby given that this instrument is executed on behalf of the Trustees of
the Fund as Trustees and not individually, and that the obligations of or
arising out of this instrument are not binding upon any of the Trustees,
officers or shareholders individually but are binding only upon the assets
and property of the Fund.
IN WITNESS WHEREOF, XXXXXX CAPITAL APPRECIATION FUND and XXXXXX RETAIL
MANAGEMENT LIMITED PARTNERSHIP have each caused this Distributor's Contract
to be signed in its behalf, all as of the day and year first above written.
XXXXXX CAPITAL APPRECIATION FUND
/s/ Xxxxxxx X. Xxxxxx
By: _______________________________
Xxxxxxx X. Xxxxxx
Executive Vice President, Associate
Treasurer and Principal Executive
Officer
XXXXXX RETAIL MANAGEMENT
LIMITED PARTNERSHIP
/s/ Xxxxxxx X. Xxxxxxxx
By: _______________________________
Xxxxxxx X. Xxxxxxxx
President
TERMS AND CONDITIONS
OF
DISTRIBUTOR'S CONTRACT
1. Reservation of Right Not to Sell. The Fund reserves the right to
refuse at any time or times to sell any of its shares of beneficial
interest ("shares") hereunder for any reason deemed adequate by it.
2. Payments to Xxxxxx. In connection with the distribution of shares of
the Fund, Xxxxxx will be entitled to receive: (a) payments pursuant to
any Distribution Plan and Agreement from time to time in effect between
the Fund and Xxxxxx with respect to the Fund or any particular class of
shares of the Fund, (b) any contingent deferred sales charges applicable
to the redemption of shares of the Fund or of any particular class of
shares of the Fund, determined in the manner set forth in the then
current Prospectus and Statement of Additional Information of the Fund
and (c) subject to the provisions of Section 3 below, any front-end
sales charges applicable to the sale of shares of the Fund or of any
particular class of shares of the Fund, less any applicable dealer
discount.
3. Sales of Shares to Xxxxxx and Sales by Xxxxxx. Xxxxxx will have the
right, as principal, to sell shares of the Fund to investment dealers
against orders therefor (a) at the public offering price (calculated as
described below) less a discount determined by Xxxxxx, which discount
shall not exceed the amount of the sales charge referred to below, or
(b) at net asset value. Upon receipt of an order to purchase Fund shares
from an investment dealer with whom Xxxxxx has a Sales Contract, Xxxxxx
will promptly purchase shares from the Fund to fill such order. The
public offering price of a class of shares shall be the net asset value
of such shares then in effect, plus any applicable front-end sales
charge determined in the manner set forth in the then current Prospectus
and Statement of Additional Information of the Fund or as permitted by
the Investment Company Act of 1940, as amended, and the Rules and
Regulations of the Securities and Exchange Commission promulgated
thereunder. In no event shall the public offering price exceed
1000/915ths of such net asset value, and in no event shall any
applicable sales charge exceed 8 1/2% of the public offering price. The
net asset value of the shares shall be determined in the manner provided
in the Agreement and Declaration of Trust of the Fund as then amended
and when determined shall be applicable to transactions as provided for
in the then current Prospectus and Statement of Additional Information
of the Fund.
Xxxxxx will also have the right, as principal, to purchase shares from the
Fund at their net asset value and to sell such shares to the public against
orders therefor at the public offering price or at net asset value.
Xxxxxx will also have the right, as principal, to sell shares at their net
asset value and not subject to a contingent deferred sales charge to such
persons as may be approved by the Trustees of the Fund, all such sales to
comply with the provisions of the Investment Company Act of 1940, as
amended, and the Rules and Regulations of the Securities and Exchange
Commission promulgated thereunder.
Xxxxxx will also have the right, as agent for the Fund, to sell shares at
the public offering price or at net asset value to such persons and upon
such conditions as the Trustees of the Fund may from time to time
determine.
On every sale the Fund shall receive the applicable net asset value of the
shares. Xxxxxx will reimburse the Fund for any increased issue tax paid on
account of sales charges. Upon receipt of registration instructions in
proper form and payment for shares, Xxxxxx will transmit such instructions
to the Fund or its agent for registration of the shares purchased.
4. Sales of Shares by the Fund. The Fund reserves the right to issue
shares at any time directly to its shareholders as a stock dividend or
stock split and to sell shares to its shareholders or to other persons
approved by Xxxxxx at not less than net asset value.
5. Repurchase of Shares. Xxxxxx will act as agent for the Fund in
connection with the repurchase of shares by the Fund upon the terms and
conditions set forth in the then current Prospectus and Statement of
Additional Information of the Fund.
6. Basis of Purchases and Sales of Shares. Xxxxxx will use its best
efforts to place shares sold by it on an investment basis. Xxxxxx does
not agree to sell any specific number of shares. Shares will be sold by
Xxxxxx only against orders therefor. Xxxxxx will not purchase shares
from anyone other than the Fund except in accordance with Section 5, and
will not take "long" or "short" positions in shares contrary to the
Agreement and Declaration of Trust of the Fund.
7. Rules of NASD, etc. Xxxxxx will conform to the Rules of Fair Practice
of the National Association of Securities Dealers, Inc. and the sale of
securities laws of any jurisdiction in which it sells, directly or
indirectly, any shares. Xxxxxx also agrees to furnish to the Fund
sufficient copies of any agreements or plans it intends to use in
connection with any sales of shares in adequate time for the Fund to
file and clear them with the proper authorities before they are put in
use, and not to use them until so filed and cleared.
8. Xxxxxx Independent Contractor. Xxxxxx shall be an independent
contractor and neither Xxxxxx nor any of its officers or employees as
such is or shall be an employee of the Fund. Xxxxxx 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. Xxxxxx assumes full responsibility for
its agents and employees under applicable statutes and agrees to pay all
employer taxes thereunder.
Xxxxxx will maintain at its own expense insurance against public liability
in such an amount as the Trustees of the Fund may from time to time
reasonably request.
9. Expenses. Xxxxxx will pay all expenses of qualifying shares for sale
under the so-called "Blue Sky" laws of any state (except expenses of any
action by the Trust relating to its Agreement and Declaration of Trust
or other matters approved by the Trustees), and expenses of preparing,
printing and distributing advertising and sales literature. Xxxxxx shall
not be responsible for any expenses of registering shares under the
Securities Act of 1933, as amended, or the preparation, printing and
distribution of Prospectuses, Statements of Additional Information and
shareholders' reports, except that Xxxxxx will pay the cost of the
printing and distributing any Prospectuses, Statements of Additional
Information and shareholders' reports used by it and by others in the
offer or sale of shares to persons who, at the time of such offer or
sale were not already shareholders of the Fund, to the extent such cost
is not paid by others.
10. Indemnification of Fund. Xxxxxx agrees to indemnify and hold
harmless the Fund and each person who has been, is, or may hereafter be
a Trustee of the Fund against expenses reasonably incurred by any of
them in connection with any claim or in connection with any action, suit
or proceeding to which any of them may be a party, which arises out of
or is alleged to arise out of any misrepresentation or omission to state
a material fact, or out of any alleged misrepresentation or omission to
state a material fact, on the part of Xxxxxx or any agent or employee of
Xxxxxx or any other person for whose acts Xxxxxx is responsible or is
alleged to be responsible unless such misrepresentation or omission was
made in reliance upon written information furnished by the Fund. Xxxxxx
also agrees likewise to indemnify and hold harmless the Fund and each
such person in connection with any claim or in connection with any
action, suit or proceeding which arises out of or is alleged to arise
out of Xxxxxx'x (or an affiliate of Xxxxxx'x) failure to exercise
reasonable care and diligence with respect to its services rendered in
connection with investment, reinvestment, automatic withdrawal and other
plans for shares. The term "expenses" includes amounts paid in
satisfaction of judgments or in settlements which are made with Xxxxxx'x
consent. The foregoing rights of indemnification shall be in addition to
any other rights to which the Fund or a Trustee may be entitled as a
matter of law.
11. Assignment Terminates this Contract; Amendments of this Contract.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment. This Contract may be amended
only if such amendment be approved either by action of the Trustees of
the Fund or at a meeting of the shareholders of the Fund by the
affirmative vote of a majority of the outstanding shares of the Fund,
and by a majority of the Trustees of the Fund who are not interested
persons of the Fund or of Xxxxxx by vote cast in person at a meeting
called for the purpose of voting on such approval.
12. Effective Period and Termination of this Contract. This Contract
shall take effect upon the date first above written and shall remain in
full force and effect continuously (unless terminated automatically as
set forth in Section 11) until terminated as follows:
(a) Either by the Fund or Xxxxxx by not more than sixty (60) days' nor less
than ten (10) days' written notice delivered or mailed by registered mail,
postage prepaid, to the other party; or
(b) If the continuance of this Contract is not specifically approved at
least annually by the Trustees of the Fund or the shareholders of the Fund
by the affirmative vote of a majority of the outstanding shares of the
Fund, and by a majority of the Trustees of the Fund who are not interested
persons of the Fund or of Xxxxxx by vote cast in person at a meeting called
for the purpose of voting on such approval, then this Contract shall
automatically terminate at the close of business on the second anniversary
of its execution, or upon the expiration of one year from the effective
date of the last such continuance, whichever is later.
Action by the Fund under (a) above may be taken either (i) by vote of its
Trustees or (ii) by the affirmative vote of a majority of the outstanding
shares of the Fund. The requirement under (b) above that continuance of
this Contract be "specifically approved at least annually" shall be
construed in a manner consistent with the Investment Company Act of 1940,
as amended, and the Rules and Regulations thereunder.
Termination of this Contract pursuant to this Section 12 shall be without
the payment of any penalty.
13. Certain Definitions. For the purposes of this Contract, the
"affirmative vote of a majority of the outstanding shares of the Fund"
means the affirmative vote, at a duly called and held meeting of
shareholders of the Fund, (a) of the holders of 67% or more of the
shares of the Fund 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 Fund entitled to vote at such meeting are present in
person or by proxy, or (b) of the holders of more than 50% of the
outstanding shares of the Fund entitled to vote at such meeting,
whichever is less.
For the purposes of this Contract, the terms "interested person" and
"assignment" shall have the meanings defined in the Investment Company Act
of 1940, as amended, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act.
