EXHIBIT 23(e)(1)
XXXXX INTERNATIONAL SERIES, INC.
DISTRIBUTING AGREEMENT
AGREEMENT dated as of January 1, 2001 between XXXXX INTERNATIONAL SERIES, INC.,
a Maryland corporation, hereinafter called the "Company," and XXXXX SELECTED
ADVISERS, L.P., a Colorado limited partnership, hereinafter called the
"Distributor."
W I T N E S S E T H
1. Appointment of Fund Distributor. The Company hereby appoints the Distributor
as the exclusive distributor to sell as principal and not as agent shares of
capital stock of the Company during the term of this Agreement.
2. Sales of Capital Stock. The Company agrees to sell and deliver to the
Distributor, upon the terms set forth herein, such fully-paid and non-assessable
shares of capital stock of the Company ("Shares") then effectively registered
for continuous offering under the Securities Act of 1933 (the "1933 Act") as
Distributor shall order from the Company, but only to the extent that the
Distributor shall have received purchase orders therefor. All orders from the
Distributor shall be subject to confirmation by the Company, and the Company
authorizes the Distributor to reject any purchase order.
The Distributor as principal may sell and distribute any Shares so purchased,
through dealers or otherwise, in such manner not inconsistent with law and all
applicable rules and regulations, including those of any applicable
self-regulatory organizations, and the provisions of this Agreement, as the
Distributor may from time to time determine. The Distributor agrees to use its
best efforts to effect sales of Shares, but does not undertake to sell any
specific number of Shares thereof.
The Distributor may in its discretion sell the Shares to or through such
registered and qualified retail dealers as it may select. In making agreements
with its dealers or others for sale of the Shares, the Distributor shall act
only as principal and in no sense as agent for the Company.
3. Sales by Distributor - Offering Price. All Shares, whether purchased from the
Company or otherwise, shall be offered for sale and sold by the Distributor at a
price per share (hereinafter called the "Offering Price") in accordance with the
provisions of the current prospectus applicable to such offer and sale. Any
initial or deferred sales charge and any reduction or elimination thereof shall
be determined by the Distributor in a manner not inconsistent with law and all
applicable rules and regulations and the provisions of this Agreement, and the
Company agrees to amend its current prospectus to the extent necessary from time
to time to reflect any such determination. The Company will cause such net asset
value to be determined with such frequency and as of such times and will cause
the Offering Price to be effective for such periods as are set forth in the
current prospectus of the Company. The Company will cause such determinations to
be furnished to the Distributor as often as they are made and shall make
available to the Distributor upon request the computations underlying any such
determination.
Anything to the contrary herein notwithstanding, the Company may suspend the
Offering Price currently in effect and may decline to accept or confirm any
orders for, or to make any sales of, any Shares to the Distributor under this
Agreement until such time as it shall deem it advisable to accept and confirm
such orders and to make such sales. During any period during which the Offering
Price currently in effect shall be suspended or during which the Company shall
decline to accept or confirm any such orders or make any such sales, the Company
shall be under no obligation to confirm or accept any such orders or make any
such sales at any price.
4. Payment. At or prior to the time of delivery by the Company to, or on the
order of the Distributor of any Shares, the Distributor will pay or cause to be
paid to the Company or to its order an amount equal to the
Offering Price of such Shares at which such order had been confirmed, less the
initial or deferred sales charge, if any, included thereon as aforesaid. The
Distributor agrees to cause to be remitted to the Company for the benefit of the
Company or to its order all such funds promptly after receipt thereof.
5. Delivery of Share Certificates. Delivery of certificates for Shares shall be
made as promptly as practicable after receipt by the Company of the purchase
price therefor and written request by the Distributor for such certificates.
Such certificates shall be registered in such names and amounts as the
Distributor may specify to the Company in writing.
6. Compensation of Distributor. Any initial or deferred sales charges and any
compensation to be paid the Distributor out of any Distribution Plan described
in 7(e) below shall constitute the entire compensation of the Distributor. The
Distributor may allow concessions to dealers, out of sales charges, as the
Distributor shall from time to time determine.
7. Allocation of Expenses. Except as otherwise provided herein, the Company
shall pay all expenses connected with (i) the organization of the Company or any
Series thereof and (ii) the offering of Shares, including without limitation all
expenses of:
(a) Registering Shares for offer or sale under the federal securities laws,
except for prospectus printing costs as set forth below; and
(b) Reports required by and under the federal securities laws; and
(c) Issuance of Shares, including cost of stock certificates, issue taxes (if
any) and fees of legal counsel and of the transfer agent; and
(d) Registering or qualifying Shares for offer or sale under the securities laws
of any state or other jurisdiction in which the Distributor may arrange for the
sale of the Shares; and
(e) Any Distribution Plan adopted in accordance with Rule 12b-1 under the
Investment Company Act of 1940 (the "1940 Act") providing for any payments by
the Company or any Series thereof.
The Distributor will pay, or promptly reimburse the Company for, all expenses in
connection with:
(a) Preparing, printing and distributing advertising and sales literature for
use in offering the Shares to the public, including the cost of printing copies
of the prospectus and the additional cost of printing reports to stockholders
other than copies thereof required for distribution to stockholders or for
filing with any securities authorities; and
(b) The registration or qualification of the Distributor as a dealer or broker
under state or federal laws.
Transfer taxes, if any, which may be payable in connection with the issue and
delivery of certificates in a name or names other than the name of the
Distributor will not be borne by the Company and the Distributor agrees to
indemnify and hold the Company harmless against any such transfer taxes. Any
other taxes in connection with the sale of Shares pursuant to this Agreement
will be borne by the Company.
8. Company to Furnish Information. The Company shall furnish the Distributor for
use in connection with the sale of the Shares such information with respect to
the Company and the Shares as the Distributor may reasonably request, including
copies of documents filed with or furnished to any federal or state securities
authorities or sent to its stockholders.
9. Representations and Agreements with Respect to Registration Statement and
Prospectus.
(a) As used in this Agreement, the term "registration statement" shall include
any registration statement with respect to the Shares which is effective under
the Act including any amendment thereto, and the term
"prospectus" shall include any prospectus and statement of additional
information filed as part of such registration statement.
(b) The Company represents that the registration statement and prospectus will
conform in all material respects to the requirements under the 1933 Act and the
1940 Act and the rules and regulations thereunder 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 to make the statements therein not misleading;
provided that this representation will not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by the Distributor expressly for use in the registration statement
or prospectus.
(c) The Company agrees to advise the Distributor promptly:
(i) of any request of the Securities and Exchange Commission for amendments to
the registration statement or prospectus or for additional information;
(ii) in the event of the issuance by the Securities and Exchange Commission of
any stop order suspending the effectiveness of the registration statement or
prospectus or the initiation of any proceedings for that purpose;
(iii) of the happening of any event which makes untrue any statement, or which
requires the making of any change, in the registration statement or prospectus
in order to make the statements therein not misleading; and
(iv) of all actions of the Securities and Exchange Commission with respect to
any amendments to the registration statement or prospectus which may from time
to time be filed with the Securities and Exchange Commission under the 1933 Act
or the 1940 Act.
10. Indemnification. The Company agrees to indemnify, defend and hold the
Distributor, its officers and directors and any person who controls the
Distributor 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 counsel fees incurred in connection therewith) which the
Distributor, its officers, directors or any such controlling person may incur
under the 1933 Act or the 1940 Act, or under common law or otherwise, arising
out of or based upon any untrue statement of a material fact contained in the
registration statement or prospectus relating to the Company or arising out of
or based upon any alleged omission to state a material fact required to be
stated in either thereof or necessary to make the statements in either thereof
not misleading, except insofar as such claims, demands, liabilities or expenses
arise out of or are based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information in writing provided by the Distributor to the Company for use in the
registration statement or prospectus relating to the Company; provided, however,
that this indemnity agreement, to the extent that it might require indemnity for
liability arising under the 1933 Act of any person who is also an officer or
director of the Company or who controls the Company within the meaning of
Section 15 of the 1933 Act, shall not inure to the benefit of such officer,
director or controlling person unless a court of competent jurisdiction shall
determine, or it shall have been determined by controlling precedent, that such
result would not be against public policy as expressed in the 1933 Act; and
further provided, that in no event shall anything contained herein be so
construed as to protect the Distributor against any liability to the Company or
to its security holders to which the Distributor would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence, in the
performance of its duties, or by reason of its reckless disregard of its
obligations under this Agreement. The Company's agreement to indemnify the
Distributor, its officers and directors and any such controlling person as
aforesaid is expressly conditioned upon the Company being promptly notified of
any action brought against the Distributor, its officers or directors, or any
such controlling person, such notification to be given by letter or telegram
addressed to the Company at its principal business office. The Company agrees to
promptly notify the Distributor of the commencement of any litigation or
proceedings against it or any of its officers or directors in connection with
the issue and sale of any Shares.
The Distributor agrees to indemnify, defend and hold the Company, its officers
and directors and any person who controls the Company, if any, 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 counsel
fees incurred in connection therewith) which the Company, its directors or
officers 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 Company, its directors or officers or such controlling person
resulting from such claims or demands shall arise out of or be based upon any
alleged untrue statement of a material fact contained in information furnished
in writing by the Distributor to the Company for use in the Company's
registration statement or prospectus or shall arise out of or be based upon any
alleged omission to state a material fact in connection with such information
not misleading or shall arise out of or be based on any false or misleading or
allegedly false or misleading sales literature relating to the Company and
prepared by the Distributor. The Distributor's agreement to indemnify the
Company, its directors and officers, and any such controlling person as
aforesaid is expressly conditioned upon the Distributor being promptly notified
of any action brought against the Company, its officers or directors or any such
controlling person, such notification being given to the Distributor at its
principal business office.
11. Compliance with Securities Laws. The Company represents that it is
registered as an open-end diversified management investment company under the
1940 Act, and agrees that it will comply with all of the provisions of such Act
and of the rules and regulations thereunder. The Company and the Distributor
each agree to comply with all of the applicable terms and provisions of the 1940
Act, the 1933 Act and, subject to the following provisions of this paragraph 11,
all applicable state securities ("Blue Sky") laws. The Distributor agrees to
comply with all of the applicable terms and provisions of the Securities
Exchange Act of 1934. The Company will cooperate with the Distributor (to the
extent of supplying all necessary documents, exhibits and information), and will
execute and permit to be filed with the proper public bodies, such applications
(including amendments and renewals thereof), instruments, papers and exhibits as
may be appropriate to enable the Shares to be offered for sale under the laws of
such states as the Distributor shall reasonably determine, and will cooperate
with the Distributor in the presentation of said applications (including
amendments and renewals thereof), to the end that Shares may be qualified in
such states under the respective Blue Sky laws thereof; provided that the
Company shall not be required to amend its Articles of Incorporation or By-Laws
to comply with the laws of any state, to maintain an office in any state, to
change the terms of the offering of Shares in any state from the terms set forth
in its registration statement and prospectus, to qualify as a foreign
corporation in any state or to consent to service of process in any state other
than with respect to claims arising out of Shares. The Distributor will furnish
to the Company any information known to the Distributor which is necessary or
desirable in the preparation of the Company's registration statement and
prospectus and any amendments or supplements thereto.
12. Effective Period: Termination. This Agreement shall become effective for an
initial period of not more than two years from the date of its execution, and
shall continue in full force and effect continuously thereafter provided that
such continuance is approved at least annually as required by the 1940 Act. This
Agreement shall automatically terminate in the event of its assignment (as
defined by the 1940 Act). In addition, this Agreement may be terminated at any
time, without penalty, by either party on not more than sixty days' nor less
than thirty days' written notice delivered or mailed by registered mail, postage
prepaid, to the other party.
IN WITNESS WHEREOF, Xxxxx International Series, Inc. and Xxxxx Selected
Advisers, L.P. have caused this instrument to be signed in several counterparts,
each of which shall be an original and which together shall constitute one and
the same Agreement, by an officer or officers thereunto duly authorized, as of
the day and year first above written.
XXXXX INTERNATIONAL SERIES, INC.
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By: Xxxxxx Xxxx, Vice President
XXXXX SELECTED ADVISERS, L.P.
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By: Xxxxxx Xxxx, Vice President
