Exhibit No. 5(b)
XXXXXXXX XXXXXXXX LIR MONEY SERIES
DISTRIBUTION CONTRACT
CONTRACT made as of January 12, 2000, between XXXXXXXX XXXXXXXX LIR MONEY
SERIES, a Delaware business trust ("Trust"), and XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC., a Delaware corporation ("Xxxxxxxx Xxxxxxxx").
WHEREAS the Trust is registered under the Investment Company Act of l940,
as amended ("l940 Act"), as an open-end management investment company, and has
established distinct series of shares of beneficial interest, two of which
correspond to distinct portfolios designated as LIR Premier Money Market Fund
and LIR Premier Tax-Free Money Market Fund; and
WHEREAS the Trust's board of trustees ("Board") has established an
unlimited number of shares of beneficial interest of the above-referenced series
(together with shares of any series of the Trust to which this Contract
hereafter is made applicable ("Shares"); and
WHEREAS the Trust has adopted a Plan of Distribution pursuant to Rule
12b-1 under the 1940 Act for the Shares ("Plan") and desires to retain Xxxxxxxx
Xxxxxxxx as principal distributor in connection with the offering and sale of
the Shares of the above-referenced Series and of such other Series as to which
this Contract hereafter is made applicable (each a "Series"); and
WHEREAS Xxxxxxxx Xxxxxxxx is willing to act as principal distributor of
the Shares of each such Series on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Trust hereby appoints Xxxxxxxx Xxxxxxxx as its
exclusive agent to be the principal distributor to sell and to arrange for the
sale of the Shares on the terms and for the period set forth in this Contract.
Xxxxxxxx Xxxxxxxx hereby accepts such appointment and agrees to act hereunder.
As used in this Contract, the term "Registration Statement" shall mean the
currently effective registration statement of the Trust, and any supplements
thereto, under the Securities Act of 1933, as amended ("1933 Act"), and the 1940
Act.
2. SERVICES AND DUTIES OF XXXXXXXX XXXXXXXX.
(a) Xxxxxxxx Xxxxxxxx agrees to sell Shares on a best efforts basis
from time to time during the term of this Contract as agent for the Trust and
upon the terms described in the Registration Statement.
(b) Upon the later of the date of this Contract or the initial
offering of the Shares to the public by a Series, Xxxxxxxx Xxxxxxxx will hold
itself available to receive purchase orders, satisfactory to Xxxxxxxx Xxxxxxxx,
for Shares of that Series and will accept such orders on behalf of the Trust as
of the time of receipt of such orders and promptly transmit such orders as are
accepted to the Trust's transfer agent with respect to the Series. Purchase
orders shall be deemed effective at the time and in the manner set forth in the
Registration Statement.
(c) Xxxxxxxx Xxxxxxxx in its discretion may enter into agreements to
sell Shares to such registered and qualified retail dealers, including but not
limited to PaineWebber Incorporated ("PaineWebber"), as it may select. In making
agreements with such dealers, Xxxxxxxx Xxxxxxxx shall act only as principal and
not as agent for the Trust.
(d) The offering price of the Shares of each Series shall be the net
asset value per Share as next determined by the Trust following receipt of an
order at the Series' transfer agent. The Trust shall promptly furnish Xxxxxxxx
Xxxxxxxx with a statement of each computation of net asset value.
(e) Xxxxxxxx Xxxxxxxx shall not be obligated to sell any certain
number of Shares.
(f) To facilitate redemption of Shares by shareholders directly or
through dealers, Xxxxxxxx Xxxxxxxx is authorized but not required on behalf of
the Trust to repurchase Shares presented to it by shareholders and dealers at
the price determined in accordance with, and in the manner set forth in, the
Registration Statement.
(g) Xxxxxxxx Xxxxxxxx or an affiliate shall provide or arrange for
the provision of ongoing shareholder services, which include responding to
shareholder inquiries, providing shareholders with information on their
investments in the Shares and any other services.
(h) Xxxxxxxx Xxxxxxxx shall have the right to use any list of
shareholders of the Trust or any other list of investors which it obtains in
connection with its provision of services under this Contract; provided,
however, that Xxxxxxxx Xxxxxxxx shall not sell or knowingly provide such list or
lists to any unaffiliated person.
3. AUTHORIZATION TO ENTER INTO DEALER AGREEMENTS AND TO DELEGATE DUTIES AS
DISTRIBUTOR. With respect to the Shares of any or all Series, Xxxxxxxx Xxxxxxxx
may enter into dealer agreements with PaineWebber or any other registered and
qualified dealer with respect to sales of the Shares or the provision of service
activities. In a separate contract or as part of any such dealer agreement,
Xxxxxxxx Xxxxxxxx also may delegate to PaineWebber or another registered and
qualified dealer ("sub-distributor") any or all of its duties specified in this
Contract, provided that such separate contract or exclusive dealer agreement
imposes on the sub-distributor bound thereby all applicable duties and
conditions to which Xxxxxxxx Xxxxxxxx is subject under this Contract, and
further provided that such separate contract or exclusive dealer agreement meets
all requirements of the 1940 Act and rules thereunder.
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4. SERVICES NOT EXCLUSIVE. The services furnished by Xxxxxxxx Xxxxxxxx
hereunder are not to be deemed exclusive and Xxxxxxxx Xxxxxxxx shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby. Nothing in this Contract shall limit or restrict the
right of any director, officer or employee of Xxxxxxxx Xxxxxxxx, who may also be
a trustee, officer or employee of the Trust, to engage in any other business or
to devote his or her time and attention in part to the management or other
aspects of any other business, whether of a similar or a dissimilar nature.
5. COMPENSATION.
(a) As compensation for its activities under this contract with
respect to the distribution of the Shares, Xxxxxxxx Xxxxxxxx or an affiliate
shall receive from the Trust such service and distribution fees at the rate and
under the terms and conditions of the Plan adopted by the Trust with respect to
the Shares of the Series, as such Plan is amended from time to time, and subject
to any further limitations on such fees as the Board may impose.
(b) Xxxxxxxx Xxxxxxxx or an affiliate may reallow any or all of the
service and distribution fees which it is paid under this Contract to such
dealers as Xxxxxxxx Xxxxxxxx or an affiliate may from time to time determine.
6. DUTIES OF THE TRUST.
(a) The Trust reserves the right at any time to withdraw offering
Shares of any or all Series by written notice to Xxxxxxxx Xxxxxxxx at its
principal office.
(b) The Trust shall determine in its sole discretion whether
certificates shall be issued with respect to the Shares. If the Trust has
determined that certificates shall be issued, the Trust will not cause
certificates representing Shares to be issued unless so requested by
shareholders. If such request is transmitted by Xxxxxxxx Xxxxxxxx, the Trust
will cause certificates evidencing Shares to be issued in such names and
denominations as Xxxxxxxx Xxxxxxxx shall from time to time direct.
(c) The Trust shall keep Xxxxxxxx Xxxxxxxx fully informed of its
affairs and shall make available to Xxxxxxxx Xxxxxxxx copies of all information,
financial statements, and other papers which Xxxxxxxx Xxxxxxxx may reasonably
request for use in connection with the distribution of Shares, including,
without limitation, certified copies of any financial statements prepared for
the Trust by its independent public accountant and such reasonable number of
copies of the most current prospectus, statement of additional information, and
annual and interim reports of any Series as Xxxxxxxx Xxxxxxxx may request, and
the Trust shall cooperate fully in the efforts of Xxxxxxxx Xxxxxxxx to sell and
arrange for the sale of the Shares of the Series and in the performance of
Xxxxxxxx Xxxxxxxx under this Contract.
(d) The Trust shall take, from time to time, all necessary action,
including payment of the related filing fee, as may be necessary to register the
Shares under the 1933 Act to the end that there will be available for sale such
number of Shares as Xxxxxxxx Xxxxxxxx may be expected to sell. The Trust agrees
to file, from time to time, such amendments, reports, and other
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documents as may be necessary in order that there will be no untrue statement of
a material fact in the Registration Statement, nor any omission of a material
fact which omission would make the statements therein misleading.
(e) The Trust shall use its best efforts to qualify and maintain the
qualification of an appropriate number of Shares of each Series for sale under
the securities laws of such states or other jurisdictions as Xxxxxxxx Xxxxxxxx
and the Trust may approve, and, if necessary or appropriate in connection
therewith, to qualify and maintain the qualification of the Trust as a broker or
dealer in such jurisdictions; provided that the Trust shall not be required to
amend its Trust Instrument or By-Laws to comply with the laws of any
jurisdiction, to maintain an office in any jurisdiction, to change the terms of
the offering of the Shares in any jurisdiction from the terms set forth in its
Registration Statement, to qualify as a foreign corporation in any jurisdiction,
or to consent to service of process in any jurisdiction other than with respect
to claims arising out of the offering of the Shares. Xxxxxxxx Xxxxxxxx shall
furnish such information and other material relating to its affairs and
activities as may be required by the Trust in connection with such
qualifications.
7. EXPENSES OF THE TRUST. The Trust shall bear all costs and expenses of
registering the Shares with the Securities and Exchange Commission and
qualifying the Shares with state and other regulatory bodies, and shall assume
expenses related to communications with shareholders of each Series, including
(i) fees and disbursements of its counsel and independent public accountant;
(ii) the preparation, filing and printing of registration statements and/or
prospectuses or statements of additional information required under the federal
securities laws; (iii) the preparation and mailing of annual and interim
reports, prospectuses, statements of additional information and proxy materials
to shareholders; and (iv) the qualifications of Shares for sale and of the Trust
as a broker or dealer under the securities laws of such jurisdictions as shall
be selected by the Trust and Xxxxxxxx Xxxxxxxx pursuant to Paragraph 6(e)
hereof, and the costs and expenses payable to each such jurisdiction for
continuing qualification therein.
8. EXPENSES OF XXXXXXXX XXXXXXXX. Xxxxxxxx Xxxxxxxx shall bear all costs
and expenses of (i) preparing, printing and distributing any materials not
prepared by the Trust and other materials used by Xxxxxxxx Xxxxxxxx in
connection with the sale of Shares under this Contract, including the additional
cost of printing copies of prospectuses, statements of additional information,
and annual and interim shareholder reports other than copies thereof required
for distribution to existing shareholders or for filing with any federal or
state securities authorities; (ii) any expenses of advertising incurred by
Xxxxxxxx Xxxxxxxx in connection with such offering; (iii) the expenses of
registration or qualification of Xxxxxxxx Xxxxxxxx as a broker or dealer under
federal or state laws and the expenses of continuing such registration or
qualification; and (iv) all compensation paid to Xxxxxxxx Xxxxxxxx' employees
and others for selling Shares, and all expenses of Xxxxxxxx Xxxxxxxx, its
employees and others who engage in or support the sale of Shares as may be
incurred in connection with their sales efforts. For the purposes of this
paragraph 8, references to Xxxxxxxx Xxxxxxxx shall include any of its delegates.
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9. INDEMNIFICATION.
(a) The Trust agrees to indemnify, defend and hold Xxxxxxxx
Xxxxxxxx, its officers and directors, and any person who controls, within the
meaning of Section 15 of the 1933 Act, is controlled by, or is under common
control with Xxxxxxxx Xxxxxxxx ("Indemnified Parties"), 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 Indemnified Parties may
incur under the 1933 Act, or under common law or otherwise, arising out of or
based upon any alleged untrue statement of a material fact contained in the
Registration Statement or arising out of or based upon any alleged omission to
state a material fact required to be stated in the Registration Statement or
necessary to make the statements therein not misleading, except insofar as such
claims, demands, liabilities or expenses arise out of or are based upon any such
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information furnished in writing by an
Indemnified Party to the Trust for use in the Registration Statement; provided,
however, that this indemnity agreement shall not inure to the benefit of any
person who is also an officer or trustee of the Trust or who controls the Trust
within the meaning of Section 15 of the 1933 Act, unless a court of competent
jurisdiction shall determine, or it shall have been determined by controlling
precedent, that such result would not be against public policy as expressed in
the 1933 Act; and further provided, that in no event shall anything contained
herein be so construed as to protect an Indemnified Party against any liability
to the Trust or to the shareholders of any Series to which and Indemnified Party
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 under this Contract. The Trust shall not be liable
to an Indemnified Party under this indemnity agreement with respect to any claim
made against Indemnified Party unless that Indemnified Party 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 Indemnified Party (or after the Indemnified
Party 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 an Indemnified Party against whom such action is
brought otherwise than on account of this indemnity agreement. 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 subject
to this indemnity agreement. If the Trust elects to assume the defense of any
such claim, the defense shall be conducted by counsel chosen by the Trust and
satisfactory to indemnified defendants in the suit whose approval shall not be
unreasonably withheld. In the event that the Trust elects to assume the defense
of any suit and retain counsel, the indemnified defendants shall bear the fees
and expenses of any additional counsel retained by them. If the Trust does not
elect to assume the defense of a suit, it will reimburse the indemnified
defendants for the reasonable fees and expenses of any counsel retained by the
indemnified defendants. The Trust agrees to notify Xxxxxxxx Xxxxxxxx as
representative of the Indemnified Parties 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 its Shares.
(b) Xxxxxxxx Xxxxxxxx agrees to indemnify, defend, and hold the
Trust, its officers and trustees and any person who controls the Trust within
the meaning of Section 15 of
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the 1933 Act, free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending
against such claims, demands or liabilities and any counsel fees incurred in
connection therewith) which the Trust, its trustees or officers, or any such
controlling person may incur under the 1933 Act or under common law or otherwise
arising out of or based upon any alleged untrue statement of a material fact
contained in information furnished in writing by Xxxxxxxx Xxxxxxxx to the Trust
for use in the Registration Statement, arising out of or based upon any alleged
omission to state a material fact in connection with such information required
to be stated in the Registration Statement necessary to make such information
not misleading, or arising out of any agreement between Xxxxxxxx Xxxxxxxx and
any retail dealer, or arising out of any supplemental sales literature or
advertising used by Xxxxxxxx Xxxxxxxx in connection with its duties under this
Contract. Xxxxxxxx Xxxxxxxx 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 the claim, but if Xxxxxxxx Xxxxxxxx elects to assume the
defense, the defense shall be conducted by counsel chosen by Xxxxxxxx Xxxxxxxx
and satisfactory to the indemnified defendants whose approval shall not be
unreasonably withheld. In the event that Xxxxxxxx Xxxxxxxx elects to assume the
defense of any suit and retain counsel, the defendants in the suit shall bear
the fees and expenses of any additional counsel retained by them. If Xxxxxxxx
Xxxxxxxx does not elect to assume the defense of any suit, it will reimburse the
indemnified defendants in the suit for the reasonable fees and expenses of any
counsel retained by them.
10. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS OF THE TRUST.
The trustees of the Trust and the shareholders of any Series shall not be liable
for any obligations of the Trust or any Series under this Contract, and Xxxxxxxx
Xxxxxxxx agrees that, in asserting any rights or claims under this Contract, it
shall look only to the assets and property of the Trust or the particular Series
in settlement of such right or claims, and not to such trustees or shareholders.
11. SERVICES PROVIDED TO THE TRUST BY EMPLOYEES OF XXXXXXXX XXXXXXXX. Any
person, even though also an officer, director, employee or agent of Xxxxxxxx
Xxxxxxxx, who may be or become an officer, trustee, employee or agent of the
Trust, shall be deemed, when rendering services to the Trust or acting in any
business of the Trust, to be rendering such services to or acting solely for the
Trust and not as an officer, director, employee or agent or one under the
control or direction of Xxxxxxxx Xxxxxxxx even though paid by Xxxxxxxx Xxxxxxxx.
12. DURATION AND TERMINATION.
(a) This Contract shall become effective upon the date written
above, provided that, with respect to any Series, this Contract shall not take
effect unless such action has first been approved by vote of a majority of the
Board and by vote of a majority of those trustees of the Trust who are not
interested persons of the Trust, and have no direct or indirect financial
interest in the operation of the Plan relating to the Series or in any
agreements related thereto (all such trustees collectively being referred to
herein as the "Independent Trustees"), cast in person at a meeting called for
the purpose of voting on such action.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for one year from the above written date. Thereafter, if not
terminated, this Contract
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shall continue automatically for successive periods of twelve months each,
provided that such continuance is specifically approved at least annually (i) by
a vote of a majority of the Independent Trustees, cast in person at a meeting
called for the purpose of voting on such approval, and (ii) by the Board or with
respect to any given Series by vote of a majority of the outstanding voting
securities of the Shares of such Series.
(c) Notwithstanding the foregoing, with respect to any Series, this
Contract may be terminated at any time, without the payment of any penalty, by
vote of the Board, by vote of a majority of the Independent Trustees or by vote
of a majority of the outstanding voting securities of the Shares of such Series
on sixty days' written notice to Xxxxxxxx Xxxxxxxx or by Xxxxxxxx Xxxxxxxx at
any time, without the payment of any penalty, on sixty days' written notice to
the Trust or such Series. This Contract will automatically terminate in the
event of its assignment.
(d) Termination of this Contract with respect to any given Series
shall in no way affect the continued validity of this Contract or the
performance thereunder with respect to any other Series.
13. AMENDMENT OF THIS CONTRACT. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
14. GOVERNING LAW. This Contract shall be construed in accordance with the
laws of the State of Delaware and the 1940 Act. To the extent that the
applicable laws of the State of Delaware conflict with the applicable provisions
of the l940 Act, the latter shall control.
15. NOTICE. Any notice required or permitted to be given by either party
to the other shall be deemed sufficient upon receipt in writing at the other
party's principal offices.
16. MISCELLANEOUS. The captions in this Contract 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. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms "majority of the outstanding voting securities," "interested person"
and "assignment" shall have the same meaning as such terms have in the l940 Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first above
written.
ATTEST: XXXXXXXX XXXXXXXX LIR MONEY SERIES
/s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. X'Xxxxxxx
---------------------------- --------------------------------
Assistant Secretary Secretary and Vice President
ATTEST:
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------- --------------------------------------
Vice President First Vice President
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