DISTRIBUTING AGREEMENT
DISTRIBUTING AGREEMENT, dated as of January 3, 2000 between XXXXXXXX
TIME HORIZON/HARVESTER SERIES, INC., a Maryland corporation (the "Series"), and
XXXXXXXX ADVISORS, INC., a Delaware corporation ("Xxxxxxxx Advisors").
In consideration of the mutual agreements herein made, the parties
hereto agree as follows:
1. EXCLUSIVE DISTRIBUTOR. The Series hereby agrees that Xxxxxxxx Advisors
shall be for the period of this Agreement exclusive agent for distribution
within the United States and its territories, and Xxxxxxxx Advisors agrees
to use its best efforts during such period to effect such distribution of
shares of Capital Stock ("Shares") of the Series; provided, however, that
nothing herein shall prevent the Series, if it so elects, from selling or
otherwise distributing its Shares directly to any persons other than
dealers. The Series understands that Xxxxxxxx Advisors also acts as agent
for distribution of the shares of capital stock or beneficial interest of
other open-end investment companies which have entered into management
agreements with J. & X. Xxxxxxxx & Co. Incorporated (the "Manager").
2. SALES OF SHARES. Xxxxxxxx Advisors is authorized, as agent for the Series
and not as principal, (a) to sell Shares of the Series to such dealers as
Xxxxxxxx Advisors may select pursuant to the terms of written sales
agreements (which may also relate to sales of shares of capital stock or
shares of beneficial interest of other open-end investment companies which
have entered into management agreements with the Manager), substantially in
the form or forms approved by the Series, and (b) to sell Shares of the
Series to other purchasers on such terms as may be provided in the then
current prospectus of the Series relating to such Shares; provided,
however, that no sales of Shares shall be confirmed by Xxxxxxxx Advisors at
any time when, according to advice received by Xxxxxxxx Advisors from the
Series, the officers of the Series have for any reason sufficient to them
temporarily or permanently suspended or discontinued the sale and issuance
of the Shares. Each sale of Shares shall be effected by Xxxxxxxx Advisors
only at the applicable price determined by the Series in the manner
prescribed in its then current prospectus relating to such Shares. Xxxxxxxx
Advisors shall comply with all applicable laws, rules and regulations
including, without limiting the generality of the foregoing, all rules or
regulations made or adopted pursuant to Section 22 of the Investment
Company Act of 1940 (the "1940 Act") by the Securities and Exchange
Commission or any securities association registered under the Securities
Exchange Act of 1934.
The Series agrees, as long as its Shares may legally be issued, to fill all
orders confirmed by Xxxxxxxx Advisors in accordance with the provisions of
this Agreement.
3. REPURCHASE AGENT. Xxxxxxxx Advisors is authorized, as agent for the Series
and not as principal, to accept offers for resale to the Series and to
repurchase on behalf of the Series Shares of the Series at net asset values
determined by the Series in conformity with its then current prospectus
relating to such Shares.
4. COMPENSATION. As compensation for the services of Xxxxxxxx Advisors under
this Agreement, Xxxxxxxx Advisors shall be entitled to receive the sales
charge, determined in conformity with the Series' then current prospectus
relating to such Shares, on all sales of Shares of the Series confirmed by
Xxxxxxxx Advisors hereunder and for which payment has been received, less
the dealers' concession allowed in respect of such sales. In addition, in
accordance with the terms of the Administration, Shareholder Services and
Distribution Plan (the "Plan") of each Fund in the Series (each, a "Fund"),
each Fund may make payments from time to time to Xxxxxxxx Advisors in
accordance with the terms and limitations of, and for the purposes set
forth in each Plan; provided, however, that Xxxxxxxx Advisors agrees that
any servicing fee to be paid to Xxxxxxxx Advisors by a Fund pursuant to
such Fund's Plan will be reduced by an amount equal to any servicing fee
payments made to Xxxxxxxx Advisors by an Underlying Fund (as that term is
defined in the Series' prospectus) pursuant to such Underlying Fund's Plan
in respect of the capital stock or beneficial interest of such Underlying
Fund owned by the Fund.
5. EXPENSES. Xxxxxxxx Advisors agrees promptly to pay or reimburse the Series
for all expenses (except expenses incurred by the Series in connection with
the preparation, printing and distribution of any prospectus or report or
other communication to shareholders, to the extent that such expenses are
incurred to effect compliance with any Federal or State law or to enable
such distribution to shareholder(s)) (a) of printing and distributing
copies of any prospectus and of preparing, printing and distributing any
other material used by Xxxxxxxx Advisors in connection with offering Shares
of the Series for sale, and (b) of advertising in connection with such
offering. The Series agrees to pay all expenses in connection with the
registration of Shares of the Series under the Securities Act of 1933 (the
"Act"), all fees and related expenses which may be incurred in connection
with the qualification of Shares of the Series for sale in such States (as
well as the District of Columbia, Puerto Rico and other territories) as
Xxxxxxxx Advisors may designate, and all expenses in connection with
maintaining facilities for the issue and transfer of its Shares, of
supplying information, prices and other data to be furnished by it
hereunder, and through Xxxxxxxx Data Corp., of all data processing and
related services related to the share distribution activity contemplated
hereby.
The Series agrees to execute such documents and to furnish such information
as may be reasonably necessary, in the discretion of the Directors of the
Series, in connection with the qualification of Shares of the Series for
sale in such States (as
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well as the District of Columbia, Puerto Rico and other territories) as
Xxxxxxxx Advisors may designate. Xxxxxxxx Advisors also agrees to pay all
fees and related expenses connected with its own qualification as a broker
or dealer under Federal or State laws and, except as otherwise specifically
provided in this Agreement or agreed to by the Series, all other expenses
incurred by Xxxxxxxx Advisors in connection with the sale of Shares of the
Series as contemplated in this Agreement (including the expenses of
qualifying the Series as a dealer or broker under the laws of such States
as may be designated by Xxxxxxxx Advisors, if deemed necessary or advisable
by the Series).
It is understood and agreed that any payments made to Xxxxxxxx Advisors
pursuant to the Plan may be used to defray some or all of the expenses
incurred by Xxxxxxxx Advisors pursuant to this Agreement.
6. PROSPECTUS AND OTHER INFORMATION. The Series represents and warrants to and
agrees with Xxxxxxxx Advisors that:
(a) A registration statement, including one or more prospectuses relating
to the Shares, has been filed by the Series under the 1940 Act and has
become effective. Such registration statement, as now in effect and as
from time to time hereafter amended, and also any other registration
statement relating to the Shares which may be filed by the Series
under the 1940 Act which shall become effective, is herein referred to
as the "Registration Statement", and any prospectus or prospectuses
filed by the Series as a part of the Registration Statement, as the
"Prospectus".
(b) At all times during the term of this Agreement, except when the
officers of the Series have suspended or discontinued the sale and
issuance of Shares of the Series as contemplated by Section 2 hereof,
the Registration Statement and Prospectus will conform in all respects
to the requirements of the 1940 Act and the rules and regulations of
the Securities and Exchange Commission, and neither of such documents
will include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statement therein not misleading, except that the foregoing does
not apply to any statements or omissions in either of such documents
based upon written information furnished to the Series by Xxxxxxxx
Advisors specifically for use therein.
The Series agrees to prepare and furnish to Xxxxxxxx Advisors from time to
time a copy of its Prospectus, and authorizes Xxxxxxxx Advisors to use such
Prospectus, in the form furnished to Xxxxxxxx Advisors from time to time,
in connection with the sale of the Series' Shares. The Series also agrees
to furnish Xxxxxxxx Advisors from time to time, for use in connection with
the sale of such Shares, such information with respect to the Series and
its Shares as Xxxxxxxx Advisors may reasonably request.
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7. REPORTS. Xxxxxxxx Advisors will prepare and furnish to the Directors of the
Series at least quarterly a written report complying with the requirements
of Rule 12b-1 under the 1940 Act setting forth all amounts expended under
the Plan and the purposes for which such expenditures were made.
8. INDEMNIFICATION.
(a) The Series will indemnify and hold harmless Xxxxxxxx Advisors and each
person, if any, who controls Xxxxxxxx Advisors within the meaning of
the Act against any losses, claims, damages or liabilities to which
Xxxxxxxx Advisors or such controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Series' Registration Statement or Prospectus or
any other written sales material prepared by the Series which is
utilized by Xxxxxxxx Advisors in connection with the sale of Shares 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 (in the
case of the Registration Statement and Prospectus) necessary to make
the statements therein not misleading or (in the case of such other
sales material) necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made; and will reimburse Xxxxxxxx Advisors and each such controlling
person for any legal or other expenses reasonably incurred by Xxxxxxxx
Advisors or such controlling person in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the Series will 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 any untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration
Statement or Prospectus in conformity with written information
furnished to the Series by Xxxxxxxx Advisors specifically for use
therein; and provided, further, that nothing herein shall be so
construed as to protect Xxxxxxxx Advisors against any liability to the
Series or its security holders to which Xxxxxxxx Advisors would
otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence, in the performance of its duties, or by reason of
the reckless disregard by Xxxxxxxx Advisors of its obligations and
duties under this Agreement. This indemnity agreement will be in
addition to any liability which the Series may otherwise have.
(b) Xxxxxxxx Advisors will indemnify and hold harmless the Series, each of
its Directors and officers and each person, if any, who controls the
Series within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Series or any such Director,
officer or controlling
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person may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
or Prospectus or any sales material not prepared by the Series which
is utilized in connection with the sale of Shares or arise out of or
are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or (in the case of the
Registration Statement and Prospectus) necessary to make the
statements therein not misleading or (in the case of such other sales
material) necessary to make the statements therein not misleading in
the light of the circumstances under which they were made, in the case
of the Registration Statement and Prospectus to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in conformity with written
information furnished to the Series by Xxxxxxxx Advisors specifically
for use therein; and Xxxxxxxx Advisors will reimburse any legal or
other expenses reasonably incurred by the Series or any such Director,
officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. This
indemnity agreement will be in addition to any liability which
Xxxxxxxx Advisors may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from liability which it may have to any
indemnified party otherwise than under this Section. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to
such indemnified party of its election to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
9. EFFECTIVE DATE. This Agreement shall become effective upon its execution by
an authorized officer of the respective parties to this Agreement, but in
no event prior to shareholder approval of the Plan.
10. TERM OF AGREEMENT. This Agreement shall continue in effect until December
31, 2001 and through December 31 of each year thereafter if such
continuance is approved in the
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manner required by the 1940 Act and the rules thereunder and Xxxxxxxx
Advisors shall not have notified the Series in writing at least 60 days
prior to the anniversary date of the previous continuance that it does not
desire such continuance. This Agreement may be terminated at any time,
without payment of penalty on 60 days' written notice to the other party by
vote of a majority of the Directors of the Series who are not interested
persons (as defined in the 0000 Xxx) of the Series and have no direct or
indirect financial interest in the operation of the Plan or any agreement
related thereto, or by vote of a majority of the outstanding voting
securities of the Series (as defined in the 1940 Act). This Agreement shall
automatically terminate in the event of its assignment (as defined in the
1940 Act).
11. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require,
or to impose any duty upon, either of the parties to do anything in
violation of any applicable laws or regulations.
IN WITNESS WHEREOF, the Series and Xxxxxxxx Advisors have caused this
Agreement to be executed by their duly authorized officers as of the date first
above written.
XXXXXXXX TIME HORIZON/HARVESTER SERIES, INC.
By
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Xxxxx X. Xxxx, President
XXXXXXXX ADVISORS, INC.
By
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Xxxxxxx X. Xxxxxxx, President
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