XXXXX XXXXXX CONCERT ALLOCATION SERIES INC.
DISTRIBUTION AGREEMENT
October 8, 1998
CFBDS, Inc.
00 Xxxx Xxxxxx
Xxxxxx, XX 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the above-named investment company (the "Fund") has agreed that
you shall be, for the period of this Agreement,
the non-exclusive principal underwriter and distributor of shares of the Fund
and each Series of the Fund set forth on Exhibit A hereto, as such Exhibit
may be revised from time to time (each, including any shares of the Fund
not designated by series, a "Series"). For purposes of this Agreement, the
term "Shares" shall mean shares of the each Series, or one or more Series,
as the context may require.
1. Services as Principal Underwriter and Distributor
1.1 You will act as agent for the distribution of Shares covered by,
and in accordance with, the registration statement, prospectus and
statement of additional information then in effect
under the Securities Act of 1933, as amended (the "1933 Act"), and the
Investment Company Act of 1940, as amended (the "1940 Act"), and will
transmit or cause to be transmitted promptly any orders received
by you or those with whom you have sales or servicing agreements for purchase
or redemption of Shares to the Transfer and Dividend Disbursing Agent for
the Fund of which the Fund has notified you in
writing.
1.2 You agree to use your best efforts to solicit orders for the
sale of Shares. It is contemplated that you will enter into sales or
servicing agreements with registered securities dealers
and banks and into servicing agreements with financial institutions and
other industry professionals,
such as investment advisers, accountants and estate planning firms.
In entering into such agreements,
you will act only on your own behalf as principal underwriter and
distributor. You will not be responsible for making any distribution plan
or service fee payments pursuant to any plans the Fund
may adopt or agreements it may enter into.
1.3 You shall act as principal underwriter and distributor of Shares in
compliance with all applicable laws, rules, and regulations, including,
without limitation, all rules and regulations made or adopted from time to
time by the Securities and Exchange Commission (the "SEC") pursuant to
the 1933 Act or the 1940 Act or by any securities association registered
under the Securities Exchange Act of 1934, as amended.
1.4 Whenever in their judgment such action is warranted for any reason,
including, without limitation, market, economic or political conditions,
the Fund's officers may decline to accept any orders for, or make any sales
of, any Shares until such time as those officers deem it
advisable to accept such orders and to make such sales and the Fund shall
advise you promptly of such determination.
2. Duties of the Fund
2.1 The Fund agrees to pay all costs and expenses in connection with the
registration of Shares under the 1933 Act, and all expenses in connection
with maintaining facilities for the issue and transfer of Shares and for
supplying information, prices and other data to be furnished by the
Fund hereunder, and all expenses in connection with the preparation
and printing of the Fund's prospectuses and statements of additional
information for regulatory purposes and for distribution to
shareholders; provided however, that nothing contained herein shall be
deemed to require the Fund to pay any of the costs of advertising or
marketing the sale of Shares.
2.2 The Fund agrees to execute any and all documents and to furnish any
and all information and otherwise to take any other actions that may be
reasonably necessary in the discretion of the Fund's officers in connection
with the qualification of Shares for sale in such states and
other U.S. jurisdictions as the Fund may approve and designate to you from
time to time, and the Fund agrees to pay all expenses that may be incurred
in connection with such qualification. You shall pay all expenses connected
with your own qualification as a securities broker or dealer under state or
Federal laws and, except as otherwise specifically provided in this
Agreement, all other expenses incurred by you in connection with the sale
of Shares as contemplated in this Agreement.
2.3 The Fund shall furnish you from time to time, for use in connection
with the sale of Shares, such information reports with respect to the Fund
or any relevant Series and the Shares as you may reasonably request,
all of which shall be signed by one or more of the Fund's duly authorized
officers; and the Fund warrants that the statements contained in any such
reports, when so signed by the Fund's officers, shall be true and correct.
The Fund also shall furnish you upon request with (a)
the reports of annual audits of the financial statements of the Fund for
each Series made by independent certified public accountants retained by
the Fund for such purpose; (b) semi-annual unaudited financial statements
pertaining to each Series; (c) quarterly earnings statements prepared
by the Fund; (d) a monthly itemized list of the securities in each Series'
portfolio; (e) monthly balance sheets as soon as practicable after the end
of each month; (f) the current net asset value and offering price per
share for each Series on each day such net asset value is computed and (g)
from time to time such additional information regarding the financial
condition of each Series of the Fund as you may reasonably request.
3. Representations and Warranties
The Fund represents to you that all registration statements, prospectuses
and statements of additional information filed by the Fund with the SEC
under the 1933 Act and the 1940 Act with respect
to the Shares have been prepared in conformity with the requirements of
said Acts and the rules and regulations of the SEC thereunder. As used in
this Agreement, the terms "registration statement",
"prospectus" and "statement of additional information" shall mean any
registration statement, prospectus and statement of additional information
filed by the Fund with the SEC and any amendments
and supplements thereto filed by the Fund with the SEC. The Fund represents
and warrants to you that any registration statement, prospectus and
statement of additional information, when such registration
statement becomes effective and as such prospectus and statement of
additional information are amended or supplemented, will include at the
time of such effectiveness, amendment or supplement all
statements required to be contained therein in conformance with the 1933 Act,
the 1940 Act and the rules and regulations of the SEC; that all statements
of material fact contained in any registration statement, prospectus or
statement of additional information will be true and correct when such
registration statement becomes effective; and that neither any registration
statement nor any prospectus or statement of additional information when
such registration statement becomes effective 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 the Fund's Shares. The Fund may, but shall not be
obligated to, propose from time to time such amendment or
amendments to any registration statement and such supplement or
supplements to any prospectus or statement of additional information as,
in the light of future developments, may, in the opinion of the Fund, be
necessary or advisable. If the Fund shall not propose such amendment or
amendments and/or supplement or supplements within fifteen days after
receipt by the Fund of a written request from you to do so, you may, at
your option, terminate this Agreement or decline to make offers of the
Fund's Shares until such amendments are made. The Fund shall not file any
amendment to any registration statement or supplement to any prospectus or
statement of additional information without giving you reasonable notice
thereof in advance; provided, however, that nothing contained in this
Agreement shall in any way limit the Fund's right to file at any time such
amendments to any registration statement and/or supplements to any
prospectus or statement of additional information, of whatever character,
as the Fund may deem advisable, such right being in all respects absolute and
unconditional.
4. Indemnification
4.1 The Fund authorizes you to use any prospectus or statement of
additional information furnished by the Fund from time to time, in
connection with the sale of Shares. The Fund agrees to
indemnify, defend and hold you, your several officers and directors, and any
person who controls you within the meaning of Section 15 of the 1933 Act,
free and harmless from and against any and all
claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any such
counsel fees incurred in connection therewith) which you,
your officers and directors, or any such controlling person, may incur
under the 1933 Act or under common law or otherwise, arising out of or
based upon any untrue statement, or alleged untrue
statement, of a material fact contained in any registration statement,
any prospectus or any statement of additional information or arising out of
or based upon any omission, or alleged omission, to state
a material fact required to be stated in any registration statement,
any prospectus or any statement of additional information or necessary to
make the statements in any of them not misleading; provided,
however, that the Fund's agreement to indemnify you, your officers or
directors, and any such controlling person shall not be deemed to cover
any claims, demands, liabilities or expenses arising
out of any statements or representations made by you or your representatives
or agents other than such statements and representations as are contained
in any prospectus or statement of additional
information and in such financial and other statements as are furnished
to you pursuant to paragraph 2.3 of this Agreement; and further provided
that the Fund's agreement to indemnify you and the Fund's
representations and warranties herein before set forth in paragraph 3 of this
Agreement shall not be deemed to cover any liability to the Fund or its
shareholders to which you would otherwise be subject
by reason of willful misfeasance, bad faith or gross negligence in the
performance of your duties, or by reason of your reckless disregard of your
obligations and duties under this Agreement. The Fund's
agreement to indemnify you, your officers and directors, and any such
controlling person, as aforesaid, is expressly conditioned upon the Fund's
being notified of any action brought against you,
your officers or directors, or any such controlling person, such
notification to be given by letter or
by telegram addressed to the Fund at its principal office in New York,
New York and sent to the Fund by the person against whom such action is
brought, within ten days after the summons or other first legal process
shall have been served. The failure so to notify the Fund of any such action
shall not relieve the Fund from any liability that the Fund may have to
the person against whom such action is brought by reason of any such
untrue, or alleged untrue, statement or omission, or alleged omission,
otherwise than on account of the Fund's indemnity agreement contained in this
paragraph 4.1. The Fund will be entitled to assume the defense of any suit
brought to enforce any such claim, demand or liability, but, in such case,
such defense shall be conducted by counsel of good standing chosen by
the Fund. In the event the Fund elects to assume the defense of any such
suit and retains counsel of good standing, the defendant or defendants in
such suit shall bear the fees and expenses of any additional counsel
retained by any of them; but if the Fund does not elect to assume the
defense of any such suit, the Fund will reimburse you, your officers and
directors, or the controlling person or persons named as defendant or
defendants in such suit, for the fees and expenses of any counsel
retained by you or them. The Fund's indemnification agreement contained in
this paragraph 4.1 and the Fund's 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 you, your officers and directors, or
any controlling person, and shall survive the delivery of any of the Fund's
Shares. This agreement of indemnity will inure exclusively to your benefit,
to the benefit of your several officers and directors, and their respective
estates, and to the benefit of the controlling persons and their
successors. The Fund agrees to notify you promptly of the commencement of
any litigation or proceedings against the Fund or any of its officers or
Board members in connection with the issuance and sale of any of the
Fund's Shares.
4.2 You agree to indemnify, defend and hold the Fund, its several
officers and Board members, and any person who controls the Fund within the
meaning of Section 15 of the 1933 Act, free and harmless from and against
any and all claims, demands, liabilities and expenses (including the
costs of investigating or defending such claims, demands or liabilities
and any counsel fees incurred in connection therewith) that the Fund, its
officers or Board members or any such controlling person
may incur under the 1933 Act, or under common law or otherwise, but only
to the extent that such liability or expense incurred by the Fund, its
officers or Board members, or such controlling person
resulting from such claims or demands shall arise out of or be based
upon (a) any unauthorized sales literature, advertisements, information,
statements or representations or (b) any untrue, or alleged
untrue, statement of a material fact contained in information furnished in
writing by you to the Fund and used in the answers to any of the items of
the registration statement or in the corresponding statements made in the
prospectus or statement of additional information, or shall arise out of or be
based upon any omission, or alleged omission, to state a material fact in
connection with such information furnished in writing by you to the Fund
and required to be stated in such answers or necessary to make such
information not misleading. Your agreement to indemnify the Fund, its officers
or Board members, and any such controlling person, as aforesaid, is expressly
conditioned upon your being notified of any action brought against the Fund,
its officers or Board members, or any such controlling person, such
notification to be given by letter or telegram addressed to you at your
principal office in Boston, Massachusetts and sent to you by the person
against whom such action is brought, within ten days after the summons or
other first legal process shall have been served. You shall have the right
to control the defense of such action, with counsel of your own choosing,
satisfactory to the Fund, if such action is based solely upon such alleged
misstatement or omission on your part or with the Fund's consent, and in
any event the Fund, its officers or Board members or such
controlling person shall each have the right to participate in the
defense or preparation of the defense of any such action with counsel of
its own choosing reasonably acceptable to you but shall not
have the right to settle any such action without your consent, which will
not be unreasonably withheld. The failure to so notify you of any such
action shall not relieve you from any liability that you may have to the
Fund, its officers or Board members, or to such controlling person by reason
of any such untrue, or alleged untrue, statement or omission, or alleged
omission, otherwise than on account of your indemnity agreement contained
in this paragraph 4.2. You agree to notify the Fund promptly of the
commencement of any litigation or proceedings against you or any of your
officers or directors in connection with the issuance and sale of any of
the Fund's Shares.
5. Effectiveness of Registration
No Shares shall be offered by either you or the Fund under any of the
provisions of this Agreement and no orders for the purchase or sale of
such Shares under this Agreement shall be accepted
by the Fund if and so long as the effectiveness of the registration statement
then in effect or any necessary amendments thereto shall be suspended
under any of the provisions of the 1933 Act, or if and
so long as a current prospectus as required by Section 5(b) (2) of the 1933
Act is not on file with the SEC; provided, however, that nothing contained
in this paragraph 5 shall in any way restrict or
have an application to or bearing upon the Fund's obligation to repurchase
its Shares from any shareholder in accordance with the provisions of the
Fund's prospectus, statement of additional
information or charter documents, as amended from time to time.
6. Offering Price
Shares of any class of any Series of the Fund offered for sale by you
shall be offered for sale at a price per share (the "offering price")
equal to (a) their net asset value (determined in the
manner set forth in the Fund's charter documents and the then-current
prospectus and statement of additional information) plus (b) a sales charge,
if applicable, which shall be the percentage of the offering price of such
Shares as set forth in the Fund's then-current prospectus relating to such
Series. In addition to or in lieu of any sales charge applicable at the
time of sale, Shares of any class of any Series of the Fund offered for
sale by you may be subject to a contingent deferred sales
charge as set forth in the Fund's then-current prospectus and statement of
additional information. You shall be entitled to receive any sales charge
levied at the time of sale in respect of the Shares
without remitting any portion to the Fund. Any payments to a broker or
dealer through whom you sell Shares shall be governed by a separate
agreement between you and such broker or dealer and the Fund's
then-current prospectus and statement of additional information
7. Notice to You
The Fund agrees to advise you immediately in writing:
(a) of any request by the SEC for amendments to the registration
statement, prospectus or statement of additional information then in effect
or for additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement, prospectus or
statement of additional information then in effect or the initiation of any
proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement of
a material fact made in the registration statement, prospectus or statement
of additional information then in effect or that requires the making of a
change in such registration statement, prospectus or statement of
additional
information in order to make the statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendment to the
registration statement, or any supplement to the prospectus or statement of
additional information which may from time to time be filed with the SEC.
8. Term of the Agreement
This Agreement shall become effective on the date hereof, shall have an
initial term of one year from the date hereof, and shall continue for
successive annual periods thereafter so long as such
continuance is specifically approved at least annually by (a) the Fund's
Board or (b) by a vote of a majority (as defined in the 0000 Xxx) of the
Fund's outstanding voting securities, provided that in
either event the continuance is also approved by a majority of the Board
members of the Fund who are not interested persons (as defined in the
0000 Xxx) of any party to this Agreement, by vote cast in
person at a meeting called for the purpose of voting on such approval.
This Agreement is terminable, without penalty, on 30 days' notice by the
Fund's Board or by vote of holders of a majority of the
relevant Series outstanding voting securities, or on 90 days' notice by you.
This Agreement will also terminate automatically, as to the relevant Series,
in the event of its assignment (as defined in the
1940 Act and the rules and regulations thereunder).
9. Arbitration
Any claim, controversy, dispute or deadlock arising under this Agreement
(collectively, a "Dispute") shall be settled by arbitration administered
under the rules of the American Arbitration Association ("AAA") in New York,
New York. Any arbitration and award of the arbitrators, or a
majority of them, shall be final and the judgment upon the award rendered
may be entered in any state or federal court having jurisdiction.
No punitive damages are to be awarded.
10. Miscellaneous
So long as you act as a principal underwriter and distributor of Shares,
you shall not perform any services for any entity other than investment
companies advised or administered by Citigroup Inc.
or its subsidiaries. The Fund recognizes that the persons employed by you
to assist in the performance of your duties under this Agreement may not
devote their full time to such service and
nothing contained in this Agreement shall be deemed to limit or restrict
your or any of your affiliates right to engage in and devote time and
attention to other businesses or to render services of whatever kind or
nature. This Agreement and the terms and conditions set forth herein
shall be governed by, and construed in accordance with, the laws of the
State of New York.
11. Limitation of Liability (Massachusetts business trusts only)
The Fund and you agree that the obligations of the Fund under this
Agreement shall not be binding upon any of the Trustees, shareholders,
nominees, officers, employees or agents, whether past,
present or future, of the Fund, individually, but are binding only upon the
assets and property of the Fund, as provided in the Master Trust Agreement.
The execution and delivery of this Agreement have
been authorized by the Trustees and signed by an authorized officer of the
Fund, acting as such, and neither such authorization by such Trustees nor
such execution and delivery by such officer shall be
deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the trust
property of the Fund as provided in its Master Trust Agreement.
If the foregoing is in accordance with your understanding, kindly
indicate your acceptance of this Agreement by signing and returning to us
the enclosed copy, whereupon this Agreement will become
binding on you.
Very truly yours,
XXXXX XXXXXX CONCERT ALLOCATION SERIES INC.
By: _____________________
Authorized Officer
Accepted:
CFBDS, INC.
By: __________________________
Authorized Officer
U:\legal\general\forms\dist12b1\SBConcertAllocation
EXHIBIT A
Xxxxx Xxxxxx Concert Allocation Series Inc.
Balanced Portfolio
Conservative Portfolio
Growth Portfolio
High Growth Portfolio
Income Portfolio
Global Portfolio
Select Balanced Portfolio
Select Conservative Portfolio
Select Growth Portfolio
Select High Growth Portfolio
Select Income Portfolio
Page: 3
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