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Exhibit (e)
DISTRIBUTOR'S CONTRACT
XXXXXXXX SERIES TRUST
This Distributor's Contract dated as of July 5, 1995, as amended and
restated as of June 4, 1997, by and between XXXXXXXX SERIES TRUST, a
Massachusetts business trust (the "Trust"), and XXXXXXXX FUND ADVISORS INC., a
New York corporation ("Distributor").
WHEREAS, the Trust and Distributor are desirous of entering into an
agreement providing for the distribution by Distributor of shares of beneficial
interest ("shares") of each of the series (each, a "Fund") of the Trust;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Trust hereby appoints Distributor as a distributor of shares of each
of the Funds, and Distributor hereby accepts such appointment, all as set forth
below:
1. RESERVATION OF RIGHT NOT TO SELL. The Trust reserves the right
to refuse at any time or times to sell any of its shares hereunder for any
reason.
2. SALES OF SHARES TO DISTRIBUTOR AND SALES BY DISTRIBUTOR.
Distributor will, as agent for the Trust, sell shares of each Fund at their
public offering price to such persons and upon such conditions as the Trustees
of the Trust may from time to time determine. The public offering price of
shares of a Fund shall be the net asset value of such shares then in effect. On
every sale the Trust shall receive the applicable net asset value of the shares.
3. SALES OF SHARES BY THE TRUST. The Trust 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 at not
less than net asset value.
4. REPURCHASE OF SHARES. Distributor will act as agent for the
Trust in connection with the repurchase of shares of the various Funds by the
Trust upon the terms and conditions set forth in the then current Prospectus and
Statement of Additional Information of the Trust.
5. BASIS OF PURCHASES AND SALES OF SHARES. Distributor does not
agree to sell any specific number of shares. Shares will be sold by Distributor
only against orders therefor. Distributor will not purchase shares from anyone
other than the Trust except in accordance with Section 4, and will not take
"long" or "short" positions in shares contrary to the Agreement and Declaration
of Trust of the Trust.
6. RULES OF NASD, ETC. Distributor will conform to the Rules of
Fair Practice of the National Association of Securities Dealers, Inc. and the
laws regarding the sale of securities in any jurisdiction in which it sells,
directly or indirectly, any shares. Distributor also agrees to furnish to the
Trust sufficient copies of any agreements or plans it intends to use
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in connection with any sales of shares in adequate time for the Trust 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.
7. DISTRIBUTOR INDEPENDENT CONTRACTOR. Distributor shall be an
independent contractor, and neither Distributor nor any of its officers or
employees, as such, is or shall be an employee of the Trust. 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. Distributor assumes full responsibility for its
agents and employees under applicable statutes and agrees to pay all employer
taxes thereunder.
Distributor will maintain at its own expense insurance against public
liability in such an amount as the Trustees of the Trust may from time to time
reasonably request.
8. EXPENSES. Distributor will pay all of its own expenses in
performing itsobligations hereunder.
9. INDEMNIFICATION OF TRUST. Distributor agrees to indemnify and
hold harmless the Trust and each person who has been, is, or may hereafter be a
Trustee, officer, or employee of the Trust 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 Distributor or any agent or employee of Distributor or any
other person for whose acts Distributor is responsible or is alleged to be
responsible unless such misrepresentation or omission was made in reliance upon
written information furnished to Distributor by the Trust or agents or
representatives of the Trust. Distributor agrees likewise to indemnify and hold
harmless the Trust 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 Distributor's 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 Distributor's consent. The foregoing rights of
indemnification shall be in addition to any other rights to which the Trust or
any such person may be entitled as a matter of law.
10. 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 Trust or
at a meeting of the shareholders of the affected Fund or Funds by the
affirmative vote of a majority of the outstanding shares of such Fund or Funds,
and by a majority of the Trustees of the Trust who are not interested persons of
the Trust or of Distributor by vote cast in person at a meeting called for the
purpose of voting on such approval.
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11. 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 10) until terminated in respect of any Fund or Funds:
(a) Either by the Trust or Distributor 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 the Contract after July 5, 1996
is not specifically approved at least annually by the Trustees of the
Trust or the shareholders of the affected Fund or Funds by the
affirmative vote of a majority of the outstanding shares of the
affected Fund or Funds, and by a majority of the Trustees of the Trust
who are not interested persons of the Trust or of Distributor by vote
cast in person at a meeting called for the purpose of voting on such
approval.
Action by the Trust or any Fund under (a) above may be taken either (i)
by vote of the Trustees or (ii) by the affirmative vote of a majority of the
outstanding shares of the Trust or the affected Fund or Funds. 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 and the Rules and Regulations thereunder.
Termination of this Contract pursuant to this Section 11 shall be
without the payment of any penalty.
12. CERTAIN DEFINITIONS. For purposes of this Contract, the
"affirmative vote of a majority of the outstanding shares" of the Trust or a
Fund means the affirmative vote, at a duly called and held meeting of
shareholders of the Trust or the Fund, as the case may be, (a) of the holders of
67% or more of the shares of the Trust or 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 Trust or 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 Trust or the Fund entitled to vote at such meeting,
whichever is less.
For the purposes of the Contract, the terms "interested person" and
"assignment" shall have the meanings defined in the Investment Company Act of
1940, subject however, to such exemptions as may be granted by the Securities
and Exchange Commission under said Act.
A copy of the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of State of The Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually,
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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 Trust.
IN WITNESS WHEREOF, each of XXXXXXXX SERIES TRUST and XXXXXXXX FUND
ADVISORS INC. has caused this Distributor's Contract to be signed in duplicate
in its behalf.
XXXXXXXX SERIES TRUST
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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XXXXXXXX FUND ADVISORS INC.
By: /s/ Xxxxxx X. Xxxxx
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