Exhibit (e)(3)
XXXXXXX XXXXX TRUST
Form of Distribution Agreement
April 30, 1997, as amended __________, 1999
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Xxxxxxx Xxxxx Trust (the "Trust"), an open-end
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management investment company organized as a business trust under the laws of
the State of Delaware, and consisting of one or more separate series, has
appointed you, the "Distributor," and that you shall be the exclusive
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distributor in connection with the offering and sale of the shares of beneficial
interest, par value $.001 per share (the "Shares"), corresponding to each of the
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series of the Trust listed in Exhibit A, as the same may be supplemented from
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time to time (each such series, a "Fund"). Each Fund may offer one or more
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classes of its shares (each a "Class") which Classes shall have such relative
rights and conditions and shall be sold in the manner set forth from time to
time in the Trust's Registration Statements, as defined below. The
organization, administration and policies of each Fund are described in its
respective Prospectuses and SAIs (as those terms are defined below). (This
letter, as amended from time to time, shall be referred to hereinafter as the
"Agreement".)
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1. Definitions. (a) The terms which follow, when used in this Agreement,
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shall have the meanings indicated.
"Effective Date" shall mean the date that any Registration
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Statement or any post-effective amendment thereto becomes effective.
"Preliminary Prospectus" shall mean any preliminary prospectus
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relating to the Shares of a Fund or Funds or one or more Classes included
in any Registration Statement or filed with the Securities and Exchange
Commission (the "Commission") pursuant to Rule 497(a).
"Prospectus" shall mean any prospectus relating to the Shares of a
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Fund or Funds or one or more Classes, filed with the Commission pursuant
to Rule 497 or, if no filing pursuant to Rule 497 is required, the form of
final prospectus relating thereto included in any Registration Statement,
in each case together with any amendments or supplements thereto.
"Registration Statement" shall mean any registration statement on
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Form N-1A relating to the Shares of a Fund, including all exhibits
thereto, as of the Effective Date of the most recent post-effective
amendment thereto. The registration statements of the Trust may be
separately filed with the Commission according to its fixed income, equity
and money market fund offerings.
"Rule 497" refers to such rule (or any successor rule or rules)
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under the Securities Act (as defined in Section 2 below).
"SAI" shall mean any statement of additional information relating
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to the Shares of a Fund or Funds or one or more Classes, filed with the
Commission pursuant to Rule 497 or, if no filing pursuant to Rule 497 is
required, the final statement of additional information included in any
Registration Statement.
The "Initial Acceptance Date" of any Fund shall mean the first date
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on which the Trust sells Shares of such Fund pursuant to any
Registration Statement.
References in this Agreement to "Rules and Regulations" shall be
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deemed to be references to such rules and regulations as then in effect,
and references to this Agreement and the Fund Agreements (as defined in
Section 2 below), shall be deemed to be references to such agreements as
then in effect.
2. Representations and Warranties. The Trust represents and warrants to and
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agrees with you, for your benefit and the benefit of each Authorized
Dealer (as defined in Section 3 below), as set forth below in this Section
2. Each of the representations, warranties and agreements made in this
Section 2 shall be deemed made on the date hereof, on the date of any
filing of any Prospectus pursuant to Rule 497 and any Effective Date after
the date hereof, with the same effect as if made on each such date.
(a) The Trust meets the requirements for use of Form N-1A under the Securities
Act of 1933, as amended (the "Securities Act"), the Investment Company Act
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of 1940, as amended (the "Investment Company Act"), and the Rules and
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Regulations of the Commission under each such Act and in respect of said
form (or of such successor form as the Commission may adopt). The Trust
has filed with the Commission Registration Statements (File Number 33-
17619) on Form N-1A with respect to an indefinite number of Shares of the
Funds and is duly registered as an open-end management investment company.
Prior to the date hereof, the Trust has filed post-effective amendments to
the Registration Statements, including related Preliminary Prospectuses,
for the registration under the Securities Act and the Investment Company
Act of the offering and sale of the Shares of the Funds, each of which has
previously been furnished to you. Each such amendment has become effective
and no stop order suspending the effectiveness of any such amendment has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission.
(b) The Trust's notification of registration on Form N-8A (as amended)
complies with the applicable requirements of the Investment Company Act
and the Rules and Regulations thereunder.
(c) Each Registration Statement, Prospectus and SAI conform, and any further
amendments or supplements to any Registration Statement, Prospectus or SAI
will conform, in all material respects, with the Securities Act and
Investment Company Act and the Rules and Regulations thereunder; the
Prospectuses and the SAIs do not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; and, on each Effective Date, the
Registration Statements did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; provided, however, that the Trust makes no representations or
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warranties as to the information contained in or omitted from any
Registration Statement, Prospectus or SAI in reliance upon and in
conformity with information furnished in writing to the Trust by you (with
respect to information relating solely to your role as distributor of the
Shares of the Funds) expressly for use therein.
(d) No order preventing or suspending the use of any Preliminary Prospectus
has been issued by the Commission, and each Preliminary Prospectus, at the
time of filing thereof, conformed in all material respects to the
requirements of the Securities Act and the Rules and Regulations of the
Commission thereunder, and did not contain 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, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this
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representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Trust by you (with respect to information relating solely
to your role as the exclusive distributor of the Shares of the Funds)
expressly for use therein.
(e) The Trust has been duly created and is lawfully and validly existing as a
business trust under the laws of the State of Delaware, and has, on the
date hereof, and will have, on and after the date hereof, full power and
authority to own its properties and conduct its business as described in
each Registration Statement, Prospectus and SAI, and is duly qualified to
do business under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business.
(f) The Trust's authorized capitalization is as set forth in the Registration
Statements. Issuance of the Shares of the Funds as contemplated by this
Agreement and by each Prospectus and SAI has been duly and validly
authorized, and the Shares of the Funds, when issued and paid for as
contemplated hereby and thereby, will be fully-paid and, except as
contemplated by the Prospectus and SAI, nonassessable and will conform to
the description thereof contained in the corresponding Prospectus and SAI.
The holders of outstanding shares of each Fund are not entitled to
preemptive or other rights to subscribe for the Shares of any Fund, other
than as contemplated by the Prospectus and SAI relating to each Fund.
(g) This Agreement has been duly authorized, executed and delivered by the
Trust.
(h) On or prior to the Initial Acceptance Date, all of the agreements
described in each Prospectus and SAI relating to the Fund or Funds whose
Shares are first being sold on such date (collectively, the "Fund
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Agreements") will have been duly authorized, executed and delivered by the
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Trust, and will comply in all material respects with the Investment
Company Act and the Rules and Regulations thereunder.
(i) The Fund Agreements constitute or will constitute, on and after the
Initial Acceptance Date, assuming due authorization, execution and
delivery by the parties thereto other than the Trust, valid and legally
binding instruments, enforceable in accordance with their respective
terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(j) No consent, approval, authorization or order of any court or governmental
agency or body is or shall be required, as the case may be, for the
consummation from time to time of the transactions contemplated by this
Agreement and the Fund Agreements, except such as may be required (i)
under the Securities Act, the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), the Investment Company Act, the Rules and
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Regulations under each of the foregoing or the Conduct Rules of the
National Association of Securities Dealers, Inc. (the "NASD") (any of
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which that were required before offers were made will have been obtained
before such offers were made and all of which will have been obtained,
with respect to each Fund, by the Effective Date of the post-effective
amendment relating to the Fund, except for those which become required
under such acts or rules or any other law or regulation after the Fund's
Effective Date but that were not required before such Effective Date, all
of which shall be obtained in a timely manner) or (ii) state securities
laws of any jurisdiction in connection with the issuance, offer or
redemption of the Shares of each Fund by the Trust.
(k) The operations and activities of the Trust and each Fund as contemplated
by the Prospectuses and the SAIs, the performance by the Trust and each
Fund of this Agreement and the Fund Agreements,
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the making of the offer or the sale of Shares of each Fund and
consummation from time to time of such sales, the redemption of Shares of
each Fund, or any other transactions contemplated herein, in the Fund
Agreements, in the Prospectuses or in the SAIs, will not conflict with,
result in a breach of, or constitute a default under, the declaration of
trust or the Trust's By-laws or, in any material respect, the terms of any
other agreement or instrument to which the Trust is a party or by which it
is bound, or any order or regulation applicable to the Trust of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Trust.
(l) There is not pending, or to the best knowledge of the Trust, threatened,
any action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator to which the Trust is (or, to the best
knowledge of the Trust, is threatened to be) a party, of a character
required to be described in any Registration Statement, Prospectus or SAI
which is not described as required.
(m) There is no contract or other document of a character required to be
described in any Registration Statement, Prospectus or SAI, or to be filed
as an exhibit, which is not described or filed as required.
(n) Except as stated or contemplated in the Registration Statements,
Prospectuses and SAIs, (i) the Trust has not incurred any liabilities or
obligations, direct or contingent, or entered into any transactions,
whether or not in the ordinary course of business, that are material to
the Trust, (ii) there has not been any material adverse change, or, any
development involving a prospective material adverse change, in the
condition (financial or other) of the Trust, (iii) there has been no
dividend or distribution paid or declared in respect of the Trust, and
(iv) the Trust has not incurred any indebtedness for borrowed money.
(o) Each Fund will elect or has elected to be treated as a regulated
investment company as defined in Section 851(a) of the Internal Revenue
Code of 1986 for its first taxable year and will operate so as to qualify
as such in its current and all subsequent taxable years.
(p) Except as stated or contemplated in any Prospectus or SAI, the Trust owns
all of its assets free and clear in all material respects of all liens,
security interests, pledges, mortgages, charges and other encumbrances or
defects.
3. Selection of Authorized Dealers; Other Services as Distributor.
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(a) With respect to each Class subject to a sales charge, the Distributor
shall have the right on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein
set forth, to make arrangements for (i) securities dealers (including
bank-affiliated dealers) that are members in good standing of the NASD,
(ii) foreign securities dealers which are not eligible for membership in
the NASD who have agreed to comply as though they were NASD members with
the provisions of Sections 2730, IM-2730, 2740, IM-2740, 2750 and IM-2750
of the Conduct Rules of the NASD and with Section 2420 thereof as that
Section applies to a non-NASD member broker or dealer in a foreign
country, or (iii) banks, as defined in Section 3(a)(6) of the Exchange
Act, which are duly organized and validly existing in good standing under
the laws of the jurisdiction in which they are organized, to solicit from
the public orders to purchase Shares of the Funds. Such securities dealers
and banks ("Authorized Dealers") selected by you in accordance with dealer
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agreements with you ("Dealer Agreements") shall solicit such orders
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pursuant to their respective Dealer Agreements. You will act only on your
own behalf as principal in entering into each such Dealer Agreement. With
respect to each Class that is not subject to a sales charge, you shall act
as Principal Underwriter of such shares.
(b) You acknowledge that the only information provided to you by the Trust is
that contained in each
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Registration Statement, Prospectus and SAI. Neither you nor any Authorized
Dealer nor any other person is authorized by the Trust to give any
information or to make any representations, other than those contained in
the relevant Registration Statement, Prospectus and SAI and any sales
literature approved by appropriate representatives of the Trust. You may
undertake or arrange for such advertising and promotion as you believe is
reasonable in connection with the solicitation of orders to purchase
Shares of a Fund; provided, however, that you will provide the Trust with
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and obtain the Trust's approval of copies of any advertising and
promotional materials approved, produced or used by you prior to their
use. You will file such materials with the Commission and the NASD as may
be required by the Exchange Act and the Investment Company Act and the
Rules and Regulations thereunder and by the rules of the NASD.
(c) You agree to perform such services as are described in each Registration
Statement, Prospectus and SAI as to be performed by the Distributor
including, without limitation, distributing Account Information Forms.
(d) All of your activities as distributor of the Shares of the Funds shall
comply, in all material respects, with all applicable laws, Rules and
Regulations, including, without limitation, all rules and regulations made
or adopted by the Commission or by any securities association registered
under the Exchange Act, including the NASD, as in effect from time to
time.
4. Offering by the Distributor.
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(a) You will act as agent for the Trust in the distribution of Shares of the
Funds and you agree to use your best efforts to offer and sell Shares of
the Funds subject to a sales charge to the public at the public offering
price as set forth in the relevant Prospectus, subject to any waivers or
reductions of any applicable sales charges, dealer allowances and fees as
you and each of the Authorized Dealers, if any, shall have agreed to in
writing. You may also subscribe for Shares of a Fund as principals for
resale to the public or for resale to Authorized Dealers. You shall devote
reasonable time and effort to effect sales of Shares of the Funds, but you
shall not be obligated to sell any specific number of Shares. Nothing
contained herein shall prevent you from entering into like distribution
arrangements with other investment companies.
(b) The Distributor is authorized to purchase Shares of any Fund presented to
them by Authorized Dealers at the price determined in accordance with, and
in the manner set forth in, the Prospectus for such Fund.
(c) Unless you are otherwise notified by the Trust, any right granted to you
to accept orders for Shares of any Fund or to make sales on behalf of the
Trust or to purchase Shares of any Fund for resale will not apply to (i)
Shares issued in connection with the merger or consolidation of any other
investment company with the Trust or its acquisition, by purchase or
otherwise, of all or substantially all of the assets of any investment
company or substantially all the outstanding securities of any such
company, and (ii) Shares that may be offered by the Trust to shareholders
by virtue of their being such shareholders.
5. Compensation.
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(a) With respect to any Class which is sold to the public subject to a sales
charge, you will be entitled to receive that portion of the sales charges
applicable to sales of Shares of such Class and not reallocated to
Authorized Dealers as set forth in the relevant Prospectus, subject to any
waivers or
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reductions of such sales charges, if any, in accordance with Section 4 of
this Agreement. In addition, you shall be entitled to receive the entire
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amount of any contingent deferred sales charge imposed and paid by
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shareholders upon the redemption or repurchase of Shares of any Class
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subject to such charges as set forth in the relevant Prospectus, subject
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to any waivers or reductions of such sales charges that may be disclosed
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in such Prospectus. With respect to any shares sold subject to a
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contingent deferred sales charge, such charge shall be payable in such
amounts as disclosed in the applicable Prospectus as the same was in
effect at the time of sale. The right to receive any contingent deferred
sales charge granted hereunder shall apply to all shares sold during the
term of this Agreement, and to the extent permitted by the Investment
Company Act and other applicable laws, shall continue with respect to such
shares notwithstanding termination of this Agreement. In connection with
each transaction in which you are acting as an Authorized Dealer, you also
will be entitled to that portion of the sales charges, if any, payable to
an Authorized Dealer in such transaction.
(b) The Trust has entered into Plans of Distribution pursuant to Rule 12b-1
under the 1940 Act ("Rule 12b-1 Plans") with respect to certain classes of
certain Funds. The Trust shall pay to you as distributor of such Classes
the compensation pursuant to the Rule 12b-1 Plans as shall be set forth
from time to time in the Prospectuses and SAIs and provided for under the
Rule 12b-1 Plan.
(c) The amounts payable as compensation pursuant to this Section 5 shall be
subject to the limitations in Section 2830 of the Conduct Rules of the
NASD.
6. Undertakings. The Trust agrees with you, for your benefit, that:
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(a) The Trust shall sell Shares of the Funds so long as it has such Shares
available for sale and shall cause the transfer agent (the "Transfer
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Agent") to record on its books the ownership of such Shares registered in
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such names and amounts as you have requested in writing or other means, as
promptly as practicable after receipt by the Trust of the payment
therefor. The Trust will make such filings under the Investment Company
Act with, and pay such fees to, the Commission as are necessary to
register Shares of any Fund sold by you on behalf of the Trust. Prior to
the termination of this Agreement, the Trust will not file any amendment
to any Registration Statement or amendment or supplement to any Prospectus
or SAI (whether pursuant to the Securities Act, the Investment Company
Act, or otherwise) without prior notice to you; provided, however, that
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nothing contained in this Agreement shall in any way limit the Trust's
right to file such amendments to any Registration Statement, or amendments
or supplements to any Prospectus or SAI as the Trust may deem advisable,
such right being in all respects absolute and unconditional, it being
understood that this proviso shall not relieve the Trust of its obligation
to give prior notice of any such amendment or supplement to you. Subject
to the foregoing sentence, if the filing of any Prospectus or SAI, as the
case may be, contained in any Registration Statement at the relevant
Effective Date, or any amendment or supplement thereto, is required under
Rule 497, the Trust will cause such Prospectus or SAI, and any amendment
or supplement thereto, to be filed with the Commission pursuant to the
applicable paragraph of Rule 497 within the time period prescribed and
will, if requested, provide evidence satisfactory to you of such timely
filing. The Trust will promptly advise you (i) when such Prospectus or SAI
shall have been filed (if required) with the Commission pursuant to Rule
497, (ii) when, prior to termination of this Agreement, any amendment to
any Registration Statement shall have been filed or become effective,
(iii) of any request by the Commission for any amendment of any
Registration Statement or amendment or supplement to any Prospectus or SAI
or for any additional information relating to or that could affect
disclosure in any of the foregoing, (iv) of the issuance by the Commission
of any order suspending the effectiveness of any Registration Statement,
or suspending the registration of the Trust under the Investment Company
Act, or the institution or (to the best knowledge of the Trust)
threatening of any proceeding for that purpose, and (v) of the receipt by
the Trust of any notification with respect to the suspension of the
qualification of the offer or sale of Shares
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of a Fund in any jurisdiction or the initiation or (to the best knowledge
of the Trust) threatening of any proceeding for such purpose. The Trust
will use its best efforts to prevent the issuance of any such order or
suspension and, if issued, to obtain as soon as possible the withdrawal or
suspension thereof.
(b) If, at any time when a Prospectus or SAI is required to be delivered under
the Securities Act, any event occurs as a result of which such Prospectus
or SAI would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend any Registration Statement or amend or
supplement any Prospectus or SAI to comply with the Securities Act, the
Investment Company Act or the Rules and Regulations thereunder, the Trust
will notify you promptly of any such circumstance and promptly will
prepare and file with the Commission, subject to the third sentence of
Section 6(a), an amendment or supplement which will correct such statement
or omission or effect such compliance.
(c) As soon as practicable (giving effect to the normal periodic reporting
requirements under the Investment Company Act and the Rules and
Regulations thereunder), the Trust will make generally available to its
shareholders and, subject to Section 8 of this Agreement, to you (with
sufficient copies for the Authorized Dealers), a report containing the
financial statements required to be included in such reports under Section
30(d) of the Investment Company Act and Rule 30d-1 thereunder.
(d) Subject to Section 8 of this Agreement, the Trust will furnish to you as
many conformed copies of the Registration Statements including exhibits
thereto, on each Effective Date, as you may reasonably request for
yourself and for delivery to the Authorized Dealers and, so long as
delivery of a Prospectus or SAI by you or any Authorized Dealer may be
required by law, the number of copies of each Prospectus and each SAI as
you may reasonably request for yourself and for delivery to the Authorized
Dealers.
(e) To the extent required by applicable state law, the Trust will use its
best efforts to arrange for the qualification of an appropriate number of
the Shares of the Funds for sale under the laws of such of the 00 xxxxxx
xx xxx Xxxxxx Xxxxxx, the District of Columbia, the Commonwealth of Puerto
Rico, the Territory of Guam, and such other jurisdiction as you and the
Trust may approve, and will maintain such qualifications in effect as long
as may be reasonably requested by you, provided that the Trust shall not
be required in connection herewith or as a condition hereto to qualify as
a foreign corporation or to execute a general consent to service of
process in any jurisdiction. You shall furnish such information and other
material relating to your affairs and activities as may be required by the
Trust in connection with such qualifications.
(f) The Trust shall keep you fully informed with respect to its affairs and,
subject to Section 8 of this Agreement, the Trust, if so requested, will
furnish to you, as soon as they are available (with sufficient copies for
the Authorized Dealers), copies of all reports, communications and
financial statements sent by the Trust to its shareholders or filed by, or
on behalf of, the Trust with the Commission.
(g) The Trust agrees that on each date the Trust is required to file with the
Commission a notice under paragraph (b)(1) of Rule 24f-2 under the
Investment Company Act, the Trust, if so requested, shall furnish to you a
copy of the opinion of counsel for the Trust required by such Rule to the
effect that the Shares covered by the notice were legally issued, fully
paid and nonassessable. The Trust further agrees that if, in connection
with the filing of any post-effective amendment to any Registration
Statement after the date of this Agreement:
(i) a change is made to the statements under the caption "Shares of the Fund"
in any Prospectus or SAI
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that is deemed material by you, the Trust, if so requested, shall furnish
to you an opinion of counsel for the Trust, dated the date of such post-
effective amendment, to the effect of paragraph 2 (to the extent it
relates to the description of the Shares);
(ii) the Fund Agreements are amended or modified in any manner, the Trust, if
so requested, shall furnish to you an opinion of counsel for the Trust,
dated the date of such post-effective amendment; or
(iii) any change is made to the statements under the caption "Taxation" in any
Prospectus or SAI, the Trust, if so requested, shall furnish to you an
opinion of counsel for the Trust, dated the date of such post-effective
amendment.
Any opinion or statement furnished pursuant to this Section 6(g) shall be
modified as necessary to relate to this Agreement and the Fund Agreements
and the Rules and Regulations as then in effect and shall state that the
Authorized Dealers may rely on it.
(h) The Trust, if so requested, shall furnish to you on each subsequent
Effective Date with respect to an amendment of a Registration Statement
which first includes certified financial statements for the preceding
fiscal year, in respect of a Fund, a copy of the report of the Trust's
independent public accountants with respect to the financial statements
and selected per share data and ratios relating to such Fund, addressed to
you. The Trust further agrees that the Trust, if so requested, shall
furnish to you (i) on each date on which the Trust, pursuant to the
preceding sentence, furnishes to you a report of its independent public
accountants, a certificate of its treasurer or assistant treasurer in a
form reasonably satisfactory to you describing in reasonable detail how
the figures included under the captions "Portfolio Transactions" and
"Performance Information" (or similar captions) in the Prospectus or SAI
of such Fund and the figures relating to the aggregate amounts of
remuneration paid to officers, trustees and members of the advisory board
and affiliated persons thereof (as required by Section 30(d)(5) of the
Investment Company Act) were calculated and confirming that such
calculations are in conformity with the Rules and Regulations under the
Investment Company Act and (ii) on each date the Trust files with the
Commission the Trust's required semi-annual financial statements, a
certificate of its treasurer or assistant treasurer in a form reasonably
satisfactory to you, describing the manner in which such financial
statements were prepared and confirming that such financial statements
have been prepared in conformity with the Rules and Regulations under the
Investment Company Act.
7. Conditions to Your Obligations as Distributor and Principal Underwriter.
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Your obligations as distributor of the Shares of the Funds shall be
subject to the accuracy of the representations and warranties on the part
of the Trust contained herein as of the dates when made or deemed to have
been made, to the accuracy in all material respects of the statements made
in any certificates, letters or opinions delivered pursuant to the
provisions of Sections 6 or 7 of this Agreement, to the performance by the
Trust of its obligations hereunder and to the following additional
conditions:
(a) If filing of any Prospectus or SAI, or any amendment or supplement to any
Prospectus or SAI, or any other document is required pursuant to any
applicable provision of Rule 497, such Prospectus or SAI, or any such
amendment or supplement and other document will be filed in the manner and
within the time period required by the applicable provision of Rule 497;
and no order suspending the effectiveness of the amendment shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the best knowledge of the Trust, threatened and the Trust shall have
complied with any request of the Commission for additional information (to
be included in the relevant Registration Statement, Prospectus, SAI or as
the Commission otherwise shall have requested).
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(b) At the Initial Acceptance Date with respect to each Fund, you shall have
received from counsel to the Distributors, if so requested, such opinion
or opinions, dated the Initial Acceptance Date, with respect to the
issuance and sale of the Shares, the relevant Registration Statement,
Prospectus and SAI and other related matters as you may reasonably
require, and the Trust shall have furnished to such counsel such documents
as they may request for the purpose of enabling them to pass upon such
matters. Each such opinion shall state that the Authorized Dealers may
rely on it.
(c) There shall not have been any change, or any development involving a
prospective change, in or affecting the Trust the effect of which in any
case is, in your good faith judgment, so material and adverse as to make
it impractical or inadvisable to proceed with the offering of Shares of
the Funds as contemplated by this Agreement.
(d) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; (iii) the outbreak or escalation of
hostilities involving the United States or the declaration of a national
emergency or war if the effect of any such event specified in this Clause
(iii) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares of a Fund on the
terms and in the manner contemplated in any Prospectus.
(e) The Trust shall have furnished to you such further information,
certificates and documents as you may have reasonably requested.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions, certificates or letters mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to you, this Agreement and
all your obligations hereunder may be cancelled by you. In the event of
such cancellation, the Trust shall remain liable for the expenses set
forth in Section 8.
8. Expenses.
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(a) The Trust will pay (or will enter into arrangements providing that parties
other than you will pay) all fees and expenses:
(1) in connection with the preparation, setting in type and filing of
the Registration Statements (including Prospectuses and SAIs) under
the Securities Act or the Investment Company Act, or both, and any
amendments or supplements thereto that may be made from time to
time;
(2) in connection with the registration and qualification of Shares of
the Funds for sale in the various jurisdictions in which it is
determined to be advisable to qualify such Shares of the Funds for
sale (including registering the Trust as a broker or dealer or any
officer of the Trust or other person as agent or salesman of the
Trust in any such jurisdictions);
(3) of preparing, setting in type, printing and mailing any notice,
proxy statement, report, Prospectus, SAI or other communication to
shareholders in their capacity as such;
(4) of preparing, setting in type, printing and mailing Prospectuses
annually, and any supplements thereto, to existing shareholders;
(5) in connection with the issue and transfer of Shares of the Funds
resulting from the
-9-
acceptance by you of orders to purchase Shares of the Funds placed
with you by investors, including the expenses of printing and
mailing confirmations of such purchase orders and the expenses of
printing and mailing a Prospectus included with the confirmation of
such orders and, if requested by the purchaser, an SAI;
(6) of any issue taxes or any initial transfer taxes;
(7) of WATS (or equivalent) telephone lines other than the portion
allocated to you in this Section 8;
(8) of wiring funds in payment of Share purchases or in satisfaction of
redemption or repurchase requests, unless such expenses are paid for
by the investor or shareholder who initiates the transaction;
(9) of the cost of printing and postage of business reply envelopes sent
to shareholders;
(10) of one of more CRT terminals connected with the computer facilities
of the Transfer Agent other than the portion allocated to you in
this Section 8;
(11) permitted to be paid or assumed by any Fund or Funds or any Class
thereof pursuant to (a) a Rule 12b-1 Plan adopted by such Fund or
Funds in conformity with the requirements of Rule 12b-1 under the
Investment Company Act ("Rule 12b-1") or any successor rule,
----------
notwithstanding any other provision to the contrary herein or
(b) any other plan adopted by a Fund providing for account
administration or shareholder liaison services (a "Service Plan");
(12) of the expense of setting in type, printing and postage of any
periodic newsletter to shareholders other than the portion allocated
to you in this Section 8; and
(13) of the salaries and overhead of persons employed by you as
shareholder representatives other than the portion allocated to you
in this Section 8.
(b) Except as provided in any Rule 12b-1 Plan or Service Plan, you shall pay
or arrange for the payment of all fees and expenses:
(1) of printing and distributing any Prospectuses or reports prepared
for your use in connection with the offering of Shares of the Funds
to the public;
(2) of preparing, setting in type, printing and mailing any other
literature used by you in connection with the offering of Shares of
the Funds to the public;
(3) of advertising in connection with the offering of Shares of the
Funds to the public;
(4) incurred in connection with your registration as a broker or dealer
or the registration or qualification of your officers, partners,
directors, agents or representatives under Federal and state laws;
(5) of that portion of WATS (or equivalent) telephone lines allocated to
you on the basis of use by investors (but not shareholders) who
request information or Prospectuses;
(6) of that portion of the expense of setting in type, printing and
postage of any periodic newsletter to shareholders attributable to
promotional material included in such newsletter at your
-10-
request concerning investment companies other than the Trust or
concerning the Trust to the extent you are required to assume the
expense thereof pursuant to this Section 8, except such material
which is limited to information, such as listings of other
investment companies and their investment objectives, given in
connection with the exchange privilege as from time to time
described in the Prospectuses;
(7) of that portion of the salaries and overhead of persons employed by
you as shareholder representatives attributable to the time spent by
such persons in responding to requests from investors, but not
shareholders, for information about the Trust;
(8) of any activity which is primarily intended to result in the sale of
Shares of any Class of a Fund, unless a 12b-1 Plan shall be in
effect which provides that shares of such Classes shall bear some or
all of such expenses, in which case such Class shall bear such
expenses in accordance with such Plan; and
(9) of that portion of one or more CRT terminals connected with the
computer facilities of the Transfer Agent attributable to your use
of such terminal(s) to gain access to such of the Transfer Agent's
records as also serve as your records.
Expenses which are to be allocated between you and the Trust shall be
allocated pursuant to reasonable procedures or formulae mutually agreed
upon from time to time, which procedures or formulae shall to the extent
practicable reflect studies of relevant empirical data.
9. Indemnification and Contribution.
--------------------------------
(a) The Trust will indemnify you and hold you harmless against any losses,
claims, damages or liabilities, to which you may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, Registration Statement,
Prospectus, or SAI or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statement therein not misleading, and
will reimburse you for any legal or other expenses reasonably incurred by
you in connection with investigating or defending any such action or
claim; provided, however, that the Trust shall not be liable in any such
-------- -------
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Registration Statement, any
Preliminary Prospectus, or any Prospectus or SAI in reliance upon and in
conformity with written information furnished to the Trust by you
expressly for use therein.
(b) You will indemnify and hold harmless the Trust against any losses, claims,
damages or liabilities to which the Trust may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof), arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, any Preliminary Prospectus, or
any Prospectus or SAI, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in any Registration Statement, any Preliminary Prospectus, or any
Prospectus or SAI in reliance upon and in conformity with written
information furnished to the Trust by you expressly for use therein; and
will reimburse the Trust for any legal or other expenses reasonably
incurred by the Trust in connection with investigating or defending any
such action or claim.
-11-
(c) Promptly after receipt by an indemnified party under subsection (a) or (b)
above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection for
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 9 is unavailable to,
or insufficient to hold harmless, an indemnified party under subsection
(a) or (b) above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Trust on the
one hand and you on the other from the offering of the Shares of the Fund
or Funds in respect of which such losses, claims, damages or liabilities
(or actions in respect thereof) arose. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Trust on the one hand and you
on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relative equitable considerations. The
relative benefits received by the Trust on the one hand and you on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares of the relevant Funds (before
deducting expenses) received by the Trust bear to the total compensation
received by you in selling Shares of such Funds under this Agreement,
including any sales charge as set forth in the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Trust on the one hand or you on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Trust and you agree that it would
not be just and equitable if the contributions pursuant to this subsection
(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), you shall not be required to contribute
any amount in excess of the amount by which the total price at which the
Shares of the relevant Funds sold by you and distributed to the public
were offered to the public exceeds the amount of any damages which you
have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
-12-
(e) The obligations of the Trust under this Section 9 shall be in addition to
any liability which the Trust may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls you
within the meaning of the Securities Act; and your obligations under this
Section 9 shall be in addition to any liability which you may otherwise
have and shall extend, upon the same terms and conditions, to each trustee
or officer of the Trust (including any person who, with his consent, is
named in the relevant Registration Statement as about to become a trustee
of the Trust) and to each person, if any, who controls the Trust within
the meaning of the Securities Act.
(f) It is understood, however, that nothing in this paragraph 9 shall protect
any indemnified party against, or entitle any indemnified party to
indemnification against, or contribution with respect to, any liability to
the Trust or its shareholders to which such indemnified party is subject,
by reason of its willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of any reckless disregard of its
obligations and duties, under this Agreement, or otherwise to an extent or
in a manner that is inconsistent with Section 17(i) of the Investment
Company Act.
10. Term.
----
(a) This Agreement shall commence on the date first set forth above and
continue in effect until June 30, 1998 and then for successive annual
periods after June 30, 1998, provided such continuance is specifically
approved at least annually by (i) the Trustees of the Trust or (ii) a vote
of a majority (as defined in the Investment Company Act) of the Fund's
outstanding voting securities, provided that in either event the
continuance is also approved by a vote of a majority of the Trustees of
the Trust who are not interested persons (as defined in the Investment
Company Act) of the Trust or any party to this Agreement, by vote cast in
person at a meeting called for the purpose of voting on such approval. The
Trust authorizes, if and when you so determine, you to assign to a third
party any payments with respect to one or more Classes of Shares that you
are entitled to receive for your services hereunder, including any
payments of initial or deferred sales charges or payments in accordance
with a Rule 12b-1 or Service Plan so long as such Plan is in effect, free
and clear of any offset, defense or counterclaim the Trust may have
against you and except to the extent that any change or modification after
the date hereof of (x) the provisions of the Investment Company Act, the
Rules and Regulations thereunder or other applicable law or (y) any
interpretation of the Investment Company Act, the Rules and Regulations
thereunder or other applicable law shall restrict your right to make such
transfer free and clear of any offset, defense or counterclaim.
(b) The sale of Shares of the Funds in accordance with the terms of this
Agreement shall be subject to termination or suspension in the absolute
discretion of the Trust, by notice given to you as set forth in Section 12
hereof.
(c) This Agreement will terminate automatically in the event of its assignment
(as defined in the Investment Company Act). In addition, this Agreement
may be terminated by the Trust at any time with respect to any Class of
its Shares, without the payment of any penalty, by vote of a majority of
the Trustees of the Trust who are not interested persons (as defined in
the Investment Company Act) of the Trust or by a vote of a majority of the
outstanding voting securities of such Class on 60 days' written notice.
11. Representation and Indemnities to Survive. The respective agreements,
-----------------------------------------
representations, warranties, indemnities and other statements of the Trust
and you set forth in or made pursuant to this Agreement will, to the
extent permitted by applicable law, remain in full force and effect,
regardless of any investigation made by or on behalf of you, any
Authorized Dealer or the Trust, or any of the controlling persons referred
to in Section 9 hereof, and will survive the offer of the Shares of the
-13-
Funds. The provisions of Section 8, 9 and 11 hereof and your right to
receive any contingent deferred sale charges shall, to the extent
permitted by applicable law, survive the termination or cancellation of
this Agreement.
12. Notices. All communications hereunder will be in writing and effective
-------
only on receipt, and, if sent to you, mailed, delivered or telegraphed and
confirmed to you at Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxxx, Xxx Xxxx
00000, Attention: Registration Department (Distributors - Xxxxxxx Sachs
Funds) or, if sent to the Trust, mailed, delivered or telegraphed and
confirmed to it at Xxxxxxx Xxxxx Trust, 0000 Xxxxx Xxxxx, Xxxxxxx, Xxx.
00000, Attention: Secretary.
13. Affiliates. The Trust recognizes that your partners, officers and
----------
employees may from time to time serve as directors, trustees, officers and
employees of corporations and business entities (including other
investment companies), and that you or your affiliates may enter into
distribution or other agreements with other corporations and business
entities.
14. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and, to the extent
set forth herein, each of the officers, trustees and controlling persons
referred to in Section 9 hereof, and no other person will have any right
or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York.
16. Miscellaneous. The captions in this Agreement are included for convenience
-------------
of reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect. This Agreement
may be executed simultaneously in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
The name "Xxxxxxx Sachs Trust" is the designation of the Trustees for the
time being under a Declaration of Trust dated January 28, 1997, as amended
from time to time, and all persons dealing with the Trust must look solely
to the property of the Trust for the enforcement of any claims against the
Trust as neither the Trustees, officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Trust. No
series of the Trust shall be liable for any claims against any other
series of the Trust.
-14-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between you and
the Trust, and, to the extent set forth herein, shall be for the benefit of each
Authorized Dealer.
Very truly yours,
XXXXXXX XXXXX TRUST
By: /s/ Xxxxxxx X. Grip
-------------------------------
Name: Xxxxxxx X. Grip
Title: President of the Trust
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
/s/ Xxxxx X. Xxxx
-----------------------------
(Xxxxxxx, Xxxxx & Co.)
-15-
EXHIBIT A
---------
Series ("Funds") of XXXXXXX SACHS TRUST, a Delaware business trust (the "Trust")
-------------------------------------------------------------------------------
XXXXXXX XXXXX FIXED INCOME FUNDS:
--------------------------------
Xxxxxxx Sachs Adjustable Rate Government Fund
Xxxxxxx Xxxxx Core Fixed Income Fund
Xxxxxxx Sachs Global Income Fund
Xxxxxxx Xxxxx Government Income Fund
Xxxxxxx Sachs Municipal Income Fund
Xxxxxxx Xxxxx Short Duration Tax-Free Fund
Xxxxxxx Sachs Short Duration Government Fund
Xxxxxxx Xxxxx High Yield Fund
XXXXXXX SACHS EQUITY FUNDS:
--------------------------
Xxxxxxx Xxxxx Balanced Fund
Xxxxxxx Sachs CORE Large Cap Growth Fund
Xxxxxxx Xxxxx CORE U.S. Equity Fund
Xxxxxxx Sachs CORE Small Cap Equity Fund
Xxxxxxx Xxxxx CORE International Equity Fund
Xxxxxxx Sachs CORE Large Cap Value Fund
Xxxxxxx Xxxxx Growth and Income Fund
Xxxxxxx Sachs Capital Growth Fund
Xxxxxxx Xxxxx International Equity Fund
Xxxxxxx Sachs Small Cap Value Fund
Xxxxxxx Xxxxx Asia Growth Fund
Xxxxxxx Sachs Emerging Markets Equity Fund
Xxxxxxx Xxxxx Mid-Cap Equity Fund
Xxxxxxx Sachs Real Estate Securities Fund
Xxxxxxx Xxxxx International Small Cap Fund
Xxxxxxx Sachs Japanese Equity Fund
Xxxxxxx Xxxxx European Equity Fund
Xxxxxxx Sachs Strategic Growth Fund
Xxxxxxx Xxxxx Growth Opportunities Fund
Xxxxxxx Sachs Internet Toll-Keeper Fund
Xxxxxxx Xxxxx Large Cap Value Fund
XXXXXXX SACHS ASSET ALLOCATION PORTFOLIOS
-----------------------------------------
Xxxxxxx Xxxxx Growth Strategy Portfolio
Xxxxxxx Sachs Aggressive Growth Strategy Portfolio
Xxxxxxx Xxxxx Balanced Strategy Portfolio
Xxxxxxx Sachs Growth and Income Strategy Portfolio
Xxxxxxx Xxxxx Conservative Strategy Portfolio
-16-
XXXXXXX SACHS MONEY MARKET FUNDS:
--------------------------------
Xxxxxxx Xxxxx-Institutional Liquid Assets Portfolios:
----------------------------------------------------
Prime Obligations Portfolio
Government Portfolio
Treasury Obligations Portfolio
Federal Portfolio
Money Market Portfolio
Treasury Instruments Portfolio
Tax-Exempt Diversified Portfolio
Tax-Exempt California Portfolio
Tax-Exempt New York Portfolio
Financial Square Funds:
----------------------
Prime Obligations Fund
Government Fund
Treasury Obligations Fund
Money Market Fund
Tax-Free Money Market Fund
Federal Fund
Treasury Instruments Fund
Municipal Money Market Fund
Premium Money Market Fund
-17-
