EXHIBIT 99.E2
XXXXXX XXXXXXXX INVESTMENT TRUST
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 1st day of November, 1999, by and between Xxxxxx
Xxxxxxxx Investment Trust, a Delaware business trust, with its principal office
and place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Trust"), and ICC Distributors, Inc., a Delaware corporation with its principal
office and place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 (the
"Distributor").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company, may
issue its shares of beneficial interest (the "Shares") in separate series and
classes and continuously offers for sale its Shares to the public; and
WHEREAS, the Distributor is registered under the Securities Exchange Act of
1934, as amended ("1934 Act"), as a broker-dealer and is engaged in the business
of selling shares of registered investment companies either directly to
purchasers or through other securities dealers;
WHEREAS, the Trust offers Shares in one or more series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 16 hereof, being herein referred to as a "Series," and collectively as
the "Series") and the Trust offers shares of one or more classes (each such
class together with all other classes subsequently established by a Series being
herein referred to as a "Class," and collectively as the "Classes");
WHEREAS, the Trust desires that the Distributor offer the Shares of each
Series and Class thereof to the public and the Distributor is willing to provide
those services on the terms and conditions set forth in this Agreement in order
to promote the growth of the Trust and facilitate the distribution of the
Shares;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and the Distributor hereby agree as
follows:
SECTION 1. DELIVERY OF DOCUMENTS AND APPOINTMENT
(a) The Trust has delivered to the Distributor properly certified or
authenticated copies of its Declaration of Trust and Bylaws (collectively, as
amended from time to time, "Organizational Documents"), the Trust's Notification
of Registration filed with the U.S. Securities and Exchange Commission ("SEC")
pursuant to Section 8(a) of the 1940 Act on Form N-8A under the 1940 Act, the
Trust's Registration Statement and all amendments thereto filed with the SEC
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), or
the 1940 Act (the "Registration Statement") and its current Prospectuses and
Statements of Additional Information (collectively, as currently in effect and
as amended or supplemented, the "Prospectus") and shall promptly furnish the
Distributor with all amendments of or supplements
to the foregoing, each properly certified or authenticated. In addition, the
Trust shall furnish the Distributor with properly certified or authenticated
copies of all documents, notices and reports filed with the SEC.
(b) The Trust has delivered to the Distributor certified copies of the
resolutions of the Board of Trustees (the "Board") authorizing the appointment
of the Distributor as distributor and approving this Agreement.
(c) The Trust hereby appoints the Distributor as its principal underwriter
and distributor to sell its Shares to the public and hereby agrees during the
term of this Agreement to sell its Shares to the Distributor upon the terms and
conditions herein set forth.
SECTION 2. EXCLUSIVE NATURE OF DUTIES
The Distributor shall be the exclusive representative of the Trust to act
as its principal underwriter and distributor except that the rights given under
this Agreement to the Distributor shall not apply to Shares issued in connection
with the merger, consolidation or reorganization of any other investment company
with the Trust; the Trust's acquisition by purchase or otherwise of all or
substantially all of the assets or stock of any other investment company; or the
reinvestment in Shares by the Trust's shareholders of dividends or other
distributions or any other offering by the Trust of securities to its
shareholders.
SECTION 3. PURCHASE OF SHARES; OFFERING OF SHARES
(a) The Distributor shall have the right to buy from the Trust the Shares
needed to fill unconditional orders for unsold Shares of the Trust as shall then
be effectively registered under the Securities Act placed with the Distributor
by investors or securities dealers or depository institutions or other financial
intermediaries acting as agent for their customers or on their own behalf.
Alternatively, the Distributor may act as the Trust's agent, to offer, and to
solicit offers to subscribe to, unsold Shares of the Trust as shall then be
effectively registered under the Securities Act. The Distributor will promptly
forward all orders and subscriptions for Shares of the Trust. The price which
the Distributor shall pay for Shares purchased by it from the Trust shall be the
net asset value, determined as set forth in Section 3(c) hereof, used in
determining the public offering price on which the orders are based. The price
at which the Distributor shall offer and sell Shares to investors shall be the
public offering price, as set forth in Section 3(b) hereof. The Distributor may
sell Shares to securities dealers, depository institutions or other financial
intermediaries acting as agent for their customers that have entered into
agreements with the Distributor pursuant to Section 9 hereof or acting on their
own behalf. The Trust reserves the right to sell its Shares directly to
investors through subscriptions received by the Trust, but no such direct sales
shall affect the sales charges due to the Distributor hereunder.
(b) The public offering price of the Shares of the Trust, i.e., the price
per Share at which the Distributor or selected dealers or selected agents (each
as defined in Section 11 hereof) may sell Shares to the public or to those
persons eligible to invest in Shares as described in the Trust's Prospectus,
shall be the public offering price determined in accordance with the then
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currently effective Prospectus of the Trust or Class thereof under the
Securities Act, relating to such Shares, but not to exceed the net asset value
at which the Distributor, when acting as principal, is to purchase such Shares,
plus, in the case of Shares for which an initial sales charge is assessed, an
initial charge equal to a specified percentage or percentages of the public
offering price of the Shares as set forth in the current Prospectus relating to
the Shares. In the case of Shares for which an initial sales charge may be
assessed, Shares may be sold to certain classes of persons at reduced sales
charges or without any sales charge as from time to time set forth in the
current Prospectus relating to the Shares. The Trust will advise the
Distributor of the net asset value per Share at each time as the net asset value
per Share shall have been determined by the Trust.
(c) The net asset value per Share of each Series or Class thereof shall be
determined by the Trust, or an agent of the Trust, as of the close of The New
York Stock Exchange, Inc. ("NYSE") or such other time as set forth in the
applicable Prospectus on the Trust business day in accordance with the method
set forth in the Prospectus and guidelines established by the Board.
(d) The Trust reserves the right to suspend the offering of Shares of any
Class at any time in the absolute discretion of the Board, and upon notice of
such suspension the Distributor shall cease to offer Shares of the Trust or
Classes thereof specified in the notice.
(e) The Trust, or any agent of the Trust designated in writing to the
Distributor by the Trust, shall be promptly advised by the Distributor of all
purchase orders for Shares received by the Distributor and all subscriptions for
Shares obtained by the Distributor as agent shall be directed to the Trust for
acceptance and shall not be binding until accepted by the Trust. Any order or
subscription may be rejected by the Trust; provided, however, that the Trust
will not arbitrarily or without reasonable cause refuse to accept or confirm
orders or subscriptions for the purchase of Shares. The Trust (or its agent)
will confirm orders and subscriptions upon their receipt, will make appropriate
book entries and, upon receipt by the Trust (or its agent) of payment thereof,
will issue such Shares in uncertificated or certificated (if permitted) form
pursuant to the instructions of the Distributor. The Distributor agrees to
cause such payment and such instructions to be delivered promptly to the Trust
(or its agent).
SECTION 4. REPURCHASE OR REDEMPTION OF SHARES
(a) Any of the outstanding Shares of the Trust may be tendered for
redemption at any time, and the Trust agrees to redeem or repurchase the Shares
so tendered in accordance with its obligations as set forth in the Trust's
Organizational Documents and the Prospectus relating to the Shares. The price
to be paid to redeem or repurchase the Shares of the Trust shall be equal to the
net asset value calculated in accordance with the provisions of Section 3(c)
hereof less, in the case of Shares for which a deferred sales charge is
assessed, a deferred sales charge equal to a specified percentage or percentages
of the net asset value of those Shares as from time to time set forth in the
Prospectus relating to those Shares or their cost, whichever is less. Shares
for which a deferred sales charge may be assessed and that have been outstanding
for a specified period of time may be redeemed without payment of a deferred
sales charge as from time to time set forth in the Prospectus relating to those
Shares.
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(b) The Trust or its designated agent shall pay (i) the total amount of the
redemption price consisting of the redemption price less any applicable deferred
sales charge to the redeeming shareholder or its agent and (ii) except as may be
otherwise required by the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. (the "NASD") and any interpretations
thereof, any applicable deferred sales charges to the Distributor in accordance
with the Distributor's instructions on or before the third business day
subsequent to each calendar month-end.
(c) Redemption of Shares or payment therefor may be suspended at times when
the NYSE is closed for any reason other than its customary weekend or holiday
closings, when trading thereon is restricted, when an emergency exists as a
result of which disposal by the Trust of securities owned by the Trust is not
reasonably practicable or it is not reasonably practicable for the Trust fairly
to determine the value of its net assets, or during any other period when the
SEC so permits.
SECTION 5. DUTIES AND REPRESENTATIONS OF THE DISTRIBUTOR
(a) The Distributor shall use reasonable efforts to sell Shares of the
Trust upon the terms and conditions contained herein and in the then current
Prospectus. The Distributor shall devote reasonable time and effort to effect
sales of Shares but shall not be obligated to sell any specific number of
Shares. The services of the Distributor to the Trust hereunder are not to be
deemed exclusive, and nothing herein contained shall prevent the Distributor
from entering into like arrangements with other investment companies so long as
the performance of its obligations hereunder is not impaired thereby.
(b) In selling Shares of the Trust, the Distributor shall comply with the
requirements of all federal and state laws relating to the sale of the Shares.
None of the Distributor, any selected dealer, any selected agent or any other
person is authorized by the Trust to give any information or to make any
representations other than as is contained in the Trust's Prospectus or any
advertising materials or sales literature specifically approved in writing by
the Trust or its agents.
(c) The Distributor shall adopt and follow procedures for the confirmation
of sales to investors and selected dealers or selected agents, the collection of
amounts payable by investors and selected dealers or selected agents on such
sales, and the cancellation of unsettled transactions, as may be necessary to
comply with the requirements of the NASD and any other applicable self-
regulatory organization.
(d) The Distributor will perform its duties hereunder under the supervision
of and in accordance with the directives of the Board. The Distributor will
perform its duties hereunder in accordance with the Trust's Organizational
Documents and Prospectuses and with the instructions and directions of the Board
and will conform to and comply with the requirements of the 1940 Act, the
Securities Act and other applicable laws.
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(e) The Distributor shall provide the Board with a written report of the
amounts expended in connection with this Agreement as requested by the Board.
(f) The Distributor shall be responsible for reviewing and making such
filings, as required, of advertisements and sales literature relating to the
Trust that have been furnished to the Distributor.
(g) The Distributor represents and warrants to the Trust that:
(i) It is a corporation duly organized and existing and in good standing
under the laws of the State of Delaware and it is duly qualified to carry
on its business in the State of Maine;
(ii) It is empowered under applicable laws and by its Articles of
Incorporation to enter into and perform this Agreement;
(iii) All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement;
(iv) It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement;
(v) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Distributor, enforceable against
the Distributor in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties;
(vi) It is registered under the 1934 Act with the SEC as a broker-dealer,
it is a member in good standing of the NASD, it will abide by the rules and
regulations of the NASD, and it will notify the Trust if its membership in
the NASD is terminated or suspended;
(vii) The performance by the Distributor of its obligations hereunder does
not and will not contravene any provision of its Articles of Incorporation;
and
(viii) It has taken all reasonable business steps to ensure that any
system or software used in the operation of its business that is an any way
related to the services provided herein: (A) manages and manipulates data
involving all dates from the 20th and 21st centuries without material,
functional or data abnormality related to such dates; (B) has user
interfaces and data fields formatted to distinguish between dates from the
20th and 21st centuries; and (C) represents all data to include indications
of the millennium, century, and decade, as well as the actual year.
(h) Notwithstanding anything in this Agreement, including the Appendices,
to the contrary, the Distributor makes no warranty or representation as to the
number of selected dealers or selected agents with which it has entered into
agreements in accordance with Section 11
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hereof, as to the availability of any Shares to be sold through any selected
dealer, selected agent or other intermediary or as to any other matter not
specifically set forth herein.
SECTION 6. DUTIES AND REPRESENTATIONS OF THE FUND
(a) The Trust shall furnish to the Distributor copies of all financial
statements and other documents to be delivered to shareholders or investors at
least two business days prior to such delivery and shall furnish the Distributor
copies of all other financial statements, documents and other papers or
information which the Distributor may reasonably request for use in connection
with the distribution of Shares. The Trust shall make available to the
Distributor the number of copies of its Prospectuses as the Distributor shall
reasonably request.
(b) The Trust shall take, from time to time, subject to the approval of
its Board and any required approval of its shareholders, all action necessary to
fix the number of authorized Shares (if such number is not limited) and to
register the Shares under the Securities Act, to the end that there will be
available for sale the number of Shares as reasonably may be expected to be sold
pursuant to this Agreement.
(c) The Trust shall register or qualify its Shares for sale under the
securities laws of the various states of the United States and other
jurisdictions ("States") as the Trust, in its sole discretion shall determine.
Any registration or qualification may be withheld, terminated or withdrawn by
the Trust at any time in its discretion. The Distributor shall furnish such
information and other material relating to its affairs and activities as may be
required by the Trust in connection with such registration or qualification.
(d) The Trust represents and warrants to the Distributor that:
(i) It is a business trust duly organized and existing and in good
standing under the laws of the State of Delaware;
(ii) It is empowered under applicable laws and by its Organizational
Documents to enter into and perform this Agreement;
(iii) All proceedings required by the Organizational Documents have been
taken to authorize it to enter into and perform its duties under this
Agreement;
(iv) It is registered as an open-end management investment company with
the SEC under the 1940 Act;
(v) All Shares, when issued, shall be validly issued, fully paid and
non-assessable;
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Trust, enforceable against the
Trust in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties;
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(vii) The performance by the Trust of its obligations hereunder does
not and will not contravene any provision of its Declaration of Trust.
(viii) The Trust's Registration Statement is currently effective and
will remain effective with respect to all Shares of the Trust's Series and
Classes thereof being offered for sale;
(ix) It will use its best efforts to ensure that its Registration
Statement and Prospectuses have been or will be, as the case may be,
carefully prepared in conformity with the requirements of the Securities
Act and the rules and regulations thereunder;
(x) It will use its best efforts to ensure that (A) its Registration
Statement and Prospectuses contain or will contain all statements required
to be stated therein in accordance with the Securities Act and the rules
and regulations thereunder, (B) all statements of fact contained or to be
contained in the Registration Statement or Prospectuses are or will be true
and correct at the time indicated or on the effective date as the case may
be and (C) neither the Registration Statement nor any Prospectus, when they
shall become effective or be authorized for use, will include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading to a purchaser of Shares;
(xi) It will from time to time file such amendment or amendments to its
Registration Statement and Prospectuses as, in the light of then-current
and then-prospective developments, shall, in the opinion of its counsel, be
necessary in order to have the Registration Statement and Prospectuses at
all times contain all material facts required to be stated therein or
necessary to make any statements therein not misleading to a purchaser of
Shares ("Required Amendments");
(xii) It shall not file any amendment to its Registration Statement or
Prospectuses without giving the Distributor reasonable advance notice
thereof (which shall be at least three Trust business days); provided,
however, that nothing contained in this Agreement shall in any way limit
the Trust's right to file at any time such amendments to its Registration
Statement or Prospectuses, of whatever character, as the Trust may deem
advisable, such right being in all respects absolute and unconditional; and
(xiii) It will use its best efforts to ensure that (A) any amendment to
its Registration Statement or Prospectuses hereafter filed will, when it
becomes effective, contain all statements required to be stated therein in
accordance with the 1940 Act and the rules and regulations thereunder, (B)
all statements of fact contained in the Registration Statement or
Prospectuses will, when it becomes effective, be true and correct at the
time indicated or on the effective date as the case may be and (C) no such
amendment, when it becomes effective, will include an untrue statement of a
material fact or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading to a
purchaser of the Shares.
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SECTION 7. STANDARD OF CARE
(a) The Distributor shall use its best judgment and efforts in rendering
services to the Trust under this Agreement but shall be under no duty to take
any action except as specifically set forth herein or as may be specifically
agreed to by the Distributor in writing. The Distributor shall not be liable to
the Trust or any of the Trust's shareholders for any error of judgment or
mistake of law, for any loss arising out of any investment, or for any action or
inaction of the Distributor in the absence of bad faith, willful misfeasance or
gross negligence in the performance of the Distributor's duties or obligations
under this Agreement or by reason of the Distributor's reckless disregard of its
duties and obligations under this Agreement
(b) The Distributor shall not be liable to the Trust for any action taken
or failure to act in good faith reliance upon:
(i) the advice of the Trust or of counsel, who may be counsel to the
Trust or counsel to the Distributor;
(ii) any oral instruction which the Distributor receives and which it
reasonably believes in good faith was transmitted by the person or persons
authorized by the Board to give such oral instruction (the Distributor
shall have no duty or obligation to make any inquiry or effort of
certification of such oral instruction);
(iii) any written instruction or certified copy of any resolution of the
Board, and the Distributor may rely upon the genuineness of any such
document or copy thereof reasonably believed in good faith by the
Distributor to have been validly executed; or
(iv) any signature, instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report, notice,
consent, order, or other document reasonably believed in good faith by the
Distributor to be genuine and to have been signed or presented by the Trust
or other proper party or parties;
and the Distributor shall not be under any duty or obligation to inquire into
the validity or invalidity or authority or lack thereof of any statement, oral
or written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order, or
any other document or instrument which the Distributor reasonably believes in
good faith to be genuine.
(c) The Distributor shall not be responsible or liable for any failure or
delay in performance of its obligations under this Agreement caused, directly or
indirectly, by circumstances beyond its reasonable control including, without
limitation, acts of civil or military authority, national emergencies, labor
difficulties (other than those related to the Distributor's employees), fire,
mechanical breakdowns, flood or catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power supply.
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SECTION 8. INDEMNIFICATION
(a) The Trust will indemnify, defend and hold the Distributor, its
employees, agents, directors and officers and any person who controls the
Distributor within the meaning of Section 15 of the Securities Act or Section 20
of the 1934 Act ("Distributor Indemnitees") free and harmless from and against
any and all claims, demands, actions, suits, judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of every
nature and character (including the cost of investigating or defending such
claims, demands, actions, suits or liabilities and any reasonable counsel fees
incurred in connection therewith) which any Distributor Indemnitee may incur,
under the Securities Act, under the securities laws of the various States or
under common law or otherwise based upon any alleged untrue statement of a
material fact contained in the Trust's Registration Statement or Prospectuses,
based upon any alleged omission to state a material fact required to be stated
in any one thereof or necessary to make the statements in any one thereof not
misleading, or based upon any filing made with the regulatory authorities of any
State unless such statement or omission was made in reliance upon, and in
conformity with, information furnished in writing to the Trust in connection
with the preparation of the Registration Statement, exhibits to the Registration
Statement or filings made with the regulatory authorities of any State by or on
behalf of the Distributor ("Distributor Claims").
After receipt of the Distributor's notice of termination under Section
13(e) of this Agreement, the Trust shall indemnify and hold each Distributor
Indemnitee free and harmless from and against any Distributor Claim; provided,
that the term Distributor Claim for purposes of this sentence shall mean any
Distributor Claim related to the matters for which the Distributor has requested
amendment to the Trust's Registration Statement and for which the Trust has not
filed a Required Amendment, regardless of with respect to such matters whether
any statement in or omission from the Registration Statement was made in
reliance upon, or in conformity with, information furnished to the Trust by or
on behalf of the Distributor.
(b) The Trust may assume the defense of any suit brought to enforce any
Distributor Claim and may retain counsel of good standing chosen by the Trust
and approved by the Distributor, which approval shall not be withheld
unreasonably. The Trust shall advise the Distributor that it will assume the
defense of the suit and retain counsel within ten (10) days of receipt of the
notice of the claim. If the Trust assumes the defense of any such suit and
retains counsel, the defendants shall bear the fees and expenses of any
additional counsel that they retain. If the Trust does not assume the defense of
any such suit, or if Distributor does not approve of counsel chosen by the Trust
or has been advised that it may have available defenses or claims that are not
available to or conflict with those available to the Trust, the Trust will
reimburse any Distributor Indemnitee named as defendant in such suit for the
reasonable fees and expenses of any counsel that person retains. A Distributor
Indemnitee shall not settle or confess any claim without the prior written
consent of the Trust, which consent shall not be unreasonably withheld or
delayed.
(c) The Distributor will indemnify, defend and hold the Trust and its
several officers and trustees (collectively, the "Trust Indemnitees"), free and
harmless from and against any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges,
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reasonable counsel fees and other expenses of every nature and character
(including the cost of investigating or defending such claims, demands, actions,
suits or liabilities and any reasonable counsel fees incurred in connection
therewith), but only to the extent that such claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees
and other expenses result from, arise out of or are based upon:
(i) any alleged untrue statement of a material fact contained in the
Trust's Registration Statement or Prospectus or any alleged omission of a
material fact required to be stated or necessary to make the statements
therein not misleading, if such statement or omission was made in reliance
upon, and in conformity with, information furnished to the Trust in writing
in connection with the preparation of the Registration Statement or
Prospectus by or on behalf of the Distributor; or
(ii) any act of, or omission by, the Distributor or its sales
representatives that does not conform to the standard of care set forth in
Section 7 of this Agreement (collectively, "Trust Claims").
(d) The Distributor may assume the defense of any suit brought to enforce
any Trust Claim and may retain counsel of good standing chosen by the
Distributor and approved by the Trust, which approval shall not be withheld
unreasonably. The Distributor shall advise the Trust that it will assume the
defense of the suit and retain counsel within ten (10) days of receipt of the
notice of the claim. If the Distributor assumes the defense of any such suit
and retains counsel, the defendants shall bear the fees and expenses of any
additional counsel that they retain. If the Distributor does not assume the
defense of any such suit, or if the Trust does not approve of counsel chosen by
the Distributor or has been advised that it may have available defenses or
claims that are not available to or conflict with those available to the
Distributor, the Distributor will reimburse any Trust Indemnitee named as
defendant in such suit for the reasonable fees and expenses of any counsel that
person retains. A Trust Indemnitee shall not settle or confess any claim
without the prior written consent of the Distributor, which consent shall not be
unreasonably withheld or delayed.
(e) The Trust's and the Distributor's obligations to provide
indemnification under this Section is conditioned upon the Trust or the
Distributor receiving notice of any action brought against a Distributor
Indemnitee or Trust Indemnitee, respectively, by the person against whom such
action is brought within twenty (20) days after the summons or other first legal
process is served. Such notice shall refer to the person or persons against
whom the action is brought. The failure to provide such notice shall not
relieve the party entitled to such notice of any liability that it may have to
any Distributor Indemnitee or Trust Indemnitee except to the extent that the
ability of the party entitled to such notice to defend such action has been
materially adversely affected by the failure to provide notice.
(f) The provisions of this Section and the parties' representations and
warranties in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Distributor
Indemnitee or Trust Indemnitee and shall survive the sale and redemption of any
Shares made pursuant to subscriptions obtained by the Distributor. The
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indemnification provisions of this Section will inure exclusively to the benefit
of each person that may be a Distributor Indemnitee or Trust Indemnitee at any
time and their respective successors and assigns (it being intended that such
persons be deemed to be third party beneficiaries under this Agreement).
(g) The Distributor agrees promptly to notify the Trust of the commencement
of any litigation or proceeding of which it becomes aware arising out of or in
any way connected with the issuance or sale of Shares. The Trust agrees
promptly to notify the Distributor of the commencement of any litigation or
proceeding of which it becomes aware arising out of or in any way connected with
the issuance or sale of its Shares.
(h) Nothing contained herein shall require the Trust to take any action
contrary to any provision of its Organizational Documents or any applicable
statute or regulation or shall require the Distributor to take any action
contrary to any provision of its Articles of Incorporation or Bylaws or any
applicable statute or regulation; provided, however, that neither the Trust nor
the Distributor may amend their Organizational Documents or Articles of
Incorporation and Bylaws, respectively, in any manner that would result in a
violation of a representation or warranty made in this Agreement, except if
required by any applicable statute or regulation, and then only after notice to
the other party.
(i) Nothing contained in this section shall be construed to protect the
Distributor against any liability to the Trust or the security holders of the
Trust to which the Distributor would otherwise be subject by reason of its
failure to satisfy the standard of care set forth in Section 7 of this
Agreement.
SECTION 9. NOTIFICATION TO THE DISTRIBUTOR
The Trust shall advise the Distributor immediately: (i) of any request by
the SEC for amendments to the Trust's Registration Statement or Prospectus or
for additional information; (ii) in the event of the issuance by the SEC of any
stop order suspending the effectiveness of the Trust's Registration Statement or
any Prospectus or the initiation of any proceedings for that purpose; (iii) of
the happening of any material event which makes untrue any statement made in the
Trust's then current Registration Statement or Prospectus or which requires the
making of a change in either thereof in order to make the statements therein not
misleading; and (iv) of all action of the SEC with respect to any amendments to
the Trust's Registration Statement or Prospectus which may from time to time be
filed with the Commission under the 1940 Act or the Securities Act.
SECTION 10. COMPENSATION; EXPENSES
(a) In consideration of the Distributor's services in connection with the
distribution of Shares of the Trust and each Class thereof, the Distributor
shall receive: (i) from the Trust, any applicable contingent deferred sales
charge ("CDSC") assessed upon investors in connection with the redemption of
Shares and (ii) from the Trust, the shareholder service fees with respect to the
Shares of those Classes as designated in Appendix A (the "Service Fee"). The
Service Fee shall
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be accrued daily by each applicable Trust or Class thereof and shall be paid
monthly as promptly as possible after the last day of each calendar month but in
any event on or before the fifth (5th) Trust business day after month-end, at
the rate or in the amounts set forth in Appendix A.
(b) The Trust shall cause its transfer agent (the "Transfer Agent") to
withhold, from redemption proceeds payable to holders of Shares of the Series
and the Classes thereof, all CDSCs properly payable by the shareholders in
accordance with the terms of the applicable Prospectus and shall cause the
Transfer Agent to pay such amounts over to the Distributor as promptly as
possible after each month end.
(c) Except as specified in Sections 8 and 10(a) of this Agreement, the
Distributor shall be entitled to no compensation or reimbursement of expenses
for the services provided by the Distributor pursuant to this Agreement. The
Distributor may receive compensation from the Trust's investment advisors, other
service providers or their respective affiliates (collectively, the "Advisor")
for its services hereunder or for additional services all as may be agreed to
between the Advisor and the Distributor. Notwithstanding anything in this
Agreement to the contrary, to the extent the Distributor receives compensation
from the Advisor that is disclosed to the Board, the Trust will indemnify,
defend and hold each Distributor Indemnitee free and harmless from and against
any and all claims, demands, actions, suits, judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of every
nature and character (including the cost of investigating or defending such
claims, demands, actions, suits or liabilities and any reasonable counsel fees
incurred in connection therewith) related in any way to such payment.
(d) The Trust shall be responsible and assumes the obligation for payment
of all its expenses, including fees and disbursements of its counsel and
auditors, in connection with the preparation and filing of the Registration
Statement and Prospectuses (including but not limited to the expense of setting
in type the Registration Statement and Prospectuses and printing sufficient
quantities for internal compliance, regulatory purposes and for distribution to
current shareholders).
(e) The Trust shall bear the cost and expenses (i) of the registration of
its Shares for sale under the Securities Act; (ii) of the registration or
qualification of its Shares for sale under the securities laws of the various
States; (iii) if necessary or advisable in connection therewith, of qualifying
the Trust, or its Series or the Classes thereof (but not the Distributor) as an
issuer or as a broker or dealer, in such States as shall be selected by the
Trust; and (iv) payable to each State for continuing registration or
qualification therein until the Trust decides to discontinue registration or
qualification. The Distributor shall pay all expenses relating to the
Distributor's broker-dealer qualification.
SECTION 11. SELECTED DEALER AND SELECTED AGENT AGREEMENTS
(a) The Distributor shall have the right to enter into sub-distribution
agreements with securities dealers of its choice ("selected dealers") and with
depository institutions and other financial intermediaries of its choice
("selected agents") for the sale of Shares and to fix therein the portion of the
sales charge, if any, that may be allocated to the selected dealers or selected
-12-
agents; provided, that all such agreements shall be in substantially the form of
agreement as set forth in Appendix B hereto or such other form as approved by
the Trust. Shares of each Series or Class thereof shall be resold by selected
dealers or selected agents only at the public offering price(s) set forth in the
Prospectus relating to the Shares. The Distributor shall offer and sell Shares
of the Trust only to such selected dealers as are members in good standing of
the NASD. The Distributor shall have the right to enter into shareholder
servicing agreements with financial intermediaries of its choice; provided, that
all such agreements shall be in substantially the form of agreement as approved
by the Trust.
(b) The Distributor will supervise the Trust's relationship with selected
dealers and agents and may make payments to those selected dealers and agents in
such amounts as the Distributor may determine from time to time in its sole
discretion. The amount of payments to selected dealers and agents by the
Distributor may be reviewed by the Board from time to time; provided, however,
that no payment by the Distributor to any selected dealer or agent with respect
to a Share shall exceed the amount of payments made to the Distributor hereunder
with respect to that Share.
SECTION 12. CONFIDENTIALITY
The Distributor agrees to treat all records and other information related
to the Trust as proprietary information of the Trust and, on behalf of itself
and its employees, to keep confidential all such information, except that the
Distributor may:
(i) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(ii) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies; and
(iii) release such other information as approved in writing by the Trust,
which approval shall not be unreasonably withheld;
provided, however, that the Distributor may release any information regarding
the Trust without the consent of the Trust if the Distributor reasonably
believes that it may be exposed to civil or criminal legal proceedings for
failure to comply, when requested to release any information by duly constituted
authorities or when so requested by the Trust.
SECTION 13. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each series or
class listed in Appendix A. Upon effectiveness of this Agreement, it shall
supersede all previous agreements between the parties hereto covering the
subject matter hereof insofar as such Agreement may have been deemed to relate
to the Trust.
-13-
(b) This Agreement shall continue in effect with respect to a Series Trust
for a period of one year from its effectiveness and thereafter shall continue in
effect with respect to the Series until terminated; provided, that continuance
is specifically approved at least annually (i) by the Board or by a vote of a
majority of the outstanding voting securities of the Trust and (ii) by a vote of
a majority of Trustees of the Trust (I) who are not parties to this Agreement or
interested persons of any such party (other than as Trustees of the Trust).
(c) This Agreement may be terminated at any time with respect to a Series
or Class, without the payment of any penalty, (i) by the Board or by a vote of a
majority of the outstanding voting securities of the Series or Class, on 60
days' written notice to the Distributor or (ii) by the Distributor on 60 days'
written notice to the Trust.
(d) This Agreement shall automatically terminate upon its assignment and
upon the termination of the Distributor's membership in the NASD.
(e) The obligations of Sections 5(e), 6(d), 8, 9 and 10 of this Agreement
shall survive any termination of this Agreement with respect to a Series or
Class thereof.
SECTION 14. NOTICES
Any notice required or permitted to be given hereunder by the Distributor
to the Trust or the Trust to the Distributor shall be deemed sufficiently given
if personally delivered or sent by telegram, facsimile or registered, certified
or overnight mail, postage prepaid, addressed by the party giving such notice to
the other party at the last address furnished by the other party to the party
giving such notice, and unless and until changed pursuant to the foregoing
provisions hereof each such notice shall be addressed to the Trust or the
Distributor, as the case may be, at their respective principal places of
business.
SECTION 15. ACTIVITIES OF THE DISTRIBUTOR
Except to the extent necessary to perform the Distributor's obligations
hereunder, nothing herein shall be deemed to limit or restrict the Distributor's
right, or the right of any of the Distributor's employees, agents, officers or
directors who may also be a director, officer or employee of the Trust, or
affiliated persons of the Trust to engage in any other business or to devote
time and attention to the management or other aspects of any other business,
whether of a similar or dissimilar nature, or to render services of any kind to
any other corporation, trust, firm, individual or association.
SECTION 16. ADDITIONAL FUNDS AND CLASSES
In the event that the Trust establishes one or more series of Shares or one
or more classes of Shares after the effectiveness of this Agreement, such series
of Shares or classes of Shares, as the case may be, shall become Series and
Classes under this Agreement upon approval of this Agreement by the Trust with
respect to the series of Shares or class of Shares and the execution
-14-
of an amended Appendix A reflecting the applicable names and terms. The
Distributor may elect not to make any such series or classes subject to this
Agreement.
SECTION 17. MISCELLANEOUS
(a) The Distributor shall not be liable to the Trust and the Trust shall
not be liable to the Distributor for consequential damages under any provision
of this Agreement except that Distributor Claims, as that term is used in
Section 8(a) of this Agreement, shall include consequential damages related to
or based upon any filing made with the regulatory authorities of any State.
(b) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by the
Distributor and the Trust.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between the Distributor
and the Trust and supersedes any prior agreement with respect to the subject
matter hereof, whether oral or written.
(e) This Agreement may be executed by the parties hereto on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be illegal,
in conflict with any law or otherwise invalid, the remaining portion or portions
shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(g) Section headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(h) No affiliated person, employee, agent, officer or director of the
Distributor shall be liable at law or in equity for the Distributor's
obligations under this Agreement.
(i) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof.
(j) The terms "vote of a majority of the outstanding voting securities,"
"interested person," "affiliated person" and "assignment" shall have the
meanings ascribed thereto in the 1940 Act.
-15-
(k) The Distributor is hereby expressly put on notice of the limitation of
liability as set forth in the Declaration of Trust and agrees that the
obligations assumed by the Trust pursuant to this Agreement shall be limited in
any case to the Trust and its assets and the Distributor shall not seek
satisfaction of any such obligation from the shareholders of the Trust, the
Trustees, officers, employees or agents of the Trust or any of them.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
XXXXXX XXXXXXXX INVESTMENT TRUST
By: _________________________
Xxx X. Xxxxxx
Treasurer
ICC DISTRIBUTORS, INC.
By: _________________________
Xxxx X. Xxxxxx
President
-00-
XXXXXX XXXXXXXX INVESTMENT TRUST
DISTRIBUTION AGREEMENT
Appendix A
as of November 1 1999
----------------------------------------------------------------------------------------------------------------------
Distribution Service
Series Class Fee Fee*
----------------------------------------------------------------------------------------------------------------------
International Select Equity Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
International Select Equity Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Global Equity Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Global Equity Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
European Equity Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
European Equity Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
New Asia Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
New Asia Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
International Small Cap Equity Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
International Small Cap Equity Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Japanese Small Cap Equity Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Japanese Small Cap Equity Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
European Small Cap Equity Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
European Small Cap Equity Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Emerging Markets Equity Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Emerging Markets Equity Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Core Global Fixed Income Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Core Global Fixed Income Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Global Fixed Income Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Global Fixed Income Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
International Fixed Income Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
International Fixed Income Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Emerging Markets Debt Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Emerging Markets Debt Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Emerging Local Currency Debt Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Emerging Local Currency Debt Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Fixed Income Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Fixed Income Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Short-Term Fixed Income Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Short-Term Fixed Income Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Municipal Bond Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Municipal Bond Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Short-Term Municipal Bond Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Short-Term Municipal Bond Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Total Return Bond Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Total Return Bond Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
High Yield Bond Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
High Yield Bond Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Smaller Companies Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Smaller Companies Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
-A1-
----------------------------------------------------------------------------------------------------------------------
Micro Cap Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Micro Cap Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
Large Cap Growth Fund Institutional None None
----------------------------------------------------------------------------------------------------------------------
Large Cap Growth Fund Service None 0.25%
----------------------------------------------------------------------------------------------------------------------
* as a percentage of average net assets
-A2-
XXXXXX XXXXXXXX INVESTMENT TRUST
DISTRIBUTION AGREEMENT
Appendix B
[Form of Sub-Distribution Agreement]
SUB-DISTRIBUTION AGREEMENT
[Date]
Ladies and Gentlemen:
ICC Distributors, Inc. ("ICC"), a Delaware corporation, serves as
distributor (the "Distributor") of Xxxxxx Xxxxxxxx Institutional Trust (the
"Trust"). The Trust is an open-end investment company registered under the
Investment Company Act of 1940, as amended (the "Investment Company Act"). The
Trust offers its shares ("Shares") to the public in accordance with the terms
and conditions contained in the Prospectus of each series of the Trust as set
forth in Appendix A to this Sub-Distribution Agreement. The term "Prospectus" as
used herein refers to each prospectus on file with the Securities and Exchange
Commission which is part of the registration statement of the Trust under the
Securities Act of 1933 (the "Securities Act"). In connection with the foregoing
you may serve as a participating dealer (and, therefore, accept orders for the
purchase or redemption of Shares, respond to shareholder inquiries and perform
other related functions) on the following terms and conditions:
1. Participating Dealer. You are hereby designated a Participating
--------------------
Dealer and as such are authorized (i) to accept orders for the purchase of
Shares and to transmit to the Trust such orders and the payment made therefore,
(ii) to accept orders for the redemption of Shares and to transmit to the Trust
such orders and all additional material, as may be required to complete the
redemption and (iii) to assist shareholders with the foregoing and other matters
relating to their investments in each series of the Trust, in each case subject
to the terms and conditions set forth in the Prospectus of each series. You are
to review each Share purchase or redemption order submitted through you or with
your assistance for completeness and accuracy. You further agree to undertake
from time to time certain shareholder servicing activities for customers of
yours who have purchased Shares and who use your facilities to communicate with
the Trust or to effect redemptions or additional purchases of the Shares.
2. Limitation of Authority. No person is authorized to make any
-----------------------
representations concerning the Trust or the Shares except those contained in the
Prospectus of each Fund and in
-C1-
such printed information as the Distributor may subsequently prepare. No person
is authorized to distribute any sales material relating to any Fund without the
prior written approval of the Distributor.
3. Compensation. The Distributor will pay compensation for such services,
------------
if applicable, as agreed upon from time to time for each series of the Trust.
4. Prospectus and Reports. You agree to comply with the provisions
----------------------
contained in the Securities Act governing the distribution of prospectuses to
persons to whom you offer Shares. You further agree to deliver, upon our
request, copies of any amended Prospectus of the relevant series to purchasers
whose Shares you are holding as record owner and to deliver to such persons
copies of the annual and interim reports and proxy solicitation materials of the
series. We agree to furnish to you as many copies of each Prospectus, annual
and interim reports and proxy solicitation materials as you may reasonably
request.
5. Qualification to Act. You represent that you are a member in good
--------------------
standing of the National Association of Securities Dealers, Inc. (the "NASD").
Your expulsion or suspension from the NASD will automatically terminate this
Agreement on the effective date of such expulsion or suspension. You agree that
you will not offer Shares to persons in any jurisdiction in which you may not
lawfully make such offer due to the fact that you have not registered under, or
are not exempt from, the applicable registration or licensing requirements of
such jurisdiction. You agree that in performing the services under this
Agreement, you at all times, will comply with the Conduct Rules (formerly the
Rules of Fair Practice) of the NASD, including, without limitation, the
provisions of Rule 2830 (formerly Section 26) of such Rules. You also agree
that you will place orders immediately upon their receipt and will not withhold
any order so as to profit therefrom. In determining the amount payable to you
hereunder, we reserve the right to exclude any sales which we reasonably
determine are not made in accordance with the terms of the relevant prospectus
and provisions of the Agreement.
6. Blue Sky. The series of the Trust have registered an indefinite number
--------
of Shares under the Securities Act. The Trust intends to make appropriate notice
filings in certain states where such filing is required. We will inform you as
to the states or other jurisdictions in which we believe the Shares are eligible
for sale under the respective securities laws of such states. You agree that you
will offer Shares to your customers only in those states where such Shares are
eligible to be sold. We assume no responsibility or obligation as to your right
to sell Shares in any jurisdiction.
7. Authority of Trust. The Trust shall have full authority to take such
------------------
action as it deems advisable in respect of all matters pertaining to the
offering of its Shares, including the right not to accept any order for the
purchase of Shares.
8. Record Keeping. You will (i) maintain all records required by law to be
--------------
kept by you relating to transactions in Shares and, upon request by the Trust,
promptly make such of these records available to the Trust as the Trust may
reasonably request in connection with its
-C2-
operations and (ii) promptly notify the Fund if you experience any difficulty in
maintaining the records described in the foregoing clauses in an accurate and
complete manner.
9. Liability. The Distributor shall be under no liability to you except
---------
for lack of good faith and for obligations expressly assumed by it hereunder. In
carrying out your obligations, you agree to act in good faith and without
negligence. Nothing contained in this Agreement is intended to operate as a
waiver by the Distributor or you of compliance with any provisions of the
Investment Company Act, the Securities Act, the Securities Exchange Act of 1934,
as amended, or the rules and regulations promulgated by the Securities and
Exchange Commission thereunder.
10. Termination. This Agreement may be terminated by either party, without
-----------
penalty, upon ten days' written notice to the other party and shall
automatically terminate in the event of its assignment, as defined in the
Investment Company Act. This Agreement may also be terminated at any time for
the Trust without penalty by the vote of a majority of the members of the Board
of Trustees who are not "interested persons" (as such phrase is defined in the
Investment Company Act) and who have no direct or indirect financial interest in
the operation of the Distribution Agreement between such Trust and the
Distributor or by the vote of a majority of the outstanding voting securities of
the Trust.
11. Communications. All communications other than this agreement and those
--------------
pertaining to this agreement should be sent to the address listed below. Any
notice to you shall be duly given if mailed or telegraphed to you at the address
specified by you below.
[TA Address]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us both copies of this Agreement to:
[__________]
c/o ICC Distributors, Inc.
Attn: Dealer Services
X.X. Xxx 0000
Xxxxxxxx, Xxxxx 00000
______________________
ICC Distributors, Inc.
By: Xxxxxxxx X. Xxxxx
Vice President
-C3-
Confirmed and accepted:
Firm Name:___________________________________________
By: _________________________________________________
Signature
_________________________________________________
Printed Name and Title
Date:________________________________________________
Address:_____________________________________________
_____________________________________________________
_____________________________________________________
Clears Through:______________________________________
Phone No.:___________________________________________
-C4-
