XXXXXXXXX & XXXXX FUND TRUST
DISTRIBUTION AGREEMENT
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This Distribution Agreement (the "Agreement") is made as of this 8th day of
December, 1999, by and between Xxxxxxxxx & Xxxxx Fund Trust, an open-end
management investment company organized as a Delaware business trust (the
"Trust"), on behalf of each series of the Trust listed in Schedule I attached
hereto, as may be amended from time to time (individually, a "Fund" and,
collectively, the "Funds") and Xxxxxxxxx & Xxxxx, LLC, a Delaware limited
liability company ("you").
SECTION 1. GENERAL DUTIES AS DISTRIBUTOR OF FUND SHARES
It is hereby agreed that you shall act as principal distributor for each
Fund set forth on Schedule I and any other Fund as the parties may agree
from time to time. Each Fund may be authorized to issue multiple classes of
shares pursuant to Rule l8f-3 under the Investment Company Act of 1940, as
amended (the "1940 Act"). As distributor, you shall have the exclusive right
to distribute, as agent for each Fund, shares of each class authorized and
issued by the Fund and shall use your best efforts to solicit or otherwise
cause sales of such shares. You also agree, as agent for each Fund, to
accept for redemption the shares of each class authorized and issued by the
Fund. Whenever the officers of the Trust deem it advisable for the
protection of shareholders, they may suspend or cancel such authority with
respect to one or more of the Funds. In the performance of these duties, you
shall be guided by the requirements of this Agreement and the Trust's
Agreement and Declaration of Trust and By-laws, all as amended from time to
time, and each Fund's prospectus and statement of additional information,
which are from time to time in effect under the Trust's Registration
Statement filed with the U.S. Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"),
and the 0000 Xxx. You shall also comply with all applicable federal and
state laws, rules and regulations, all as amended from time to time,
including, without limitation, all rules and regulations of the Commission
and the National Association of Securities Dealers, Inc.
SECTION 2. DEALERS
You may, as agent, solicit qualified dealers for orders to purchase shares
of the Funds and may enter into agreements with any such dealers, the form
thereof to be determined by you.
SECTION 3. SALES LITERATURE AND ADVERTISEMENTS
You may provide, at your own expense, sales literature and advertisements to
be used in connection with the sale of the Funds' shares. All such sales
literature or advertisement must be approved in advance by a Trust officer.
In connection with the sale of the Funds' shares, you are authorized to give
only such information and to make only such statements or representations as
are contained in each Fund's then-current prospectus or in such sales
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literature or advertisements.
SECTION 4. LIMITATION UPON INVESTMENT IN THE TRUST
You shall not accept any initial or subsequent investment in shares of a
Fund, except as described in the Fund's then-current prospectus.
SECTION 5. OFFERING PRICE; NET ASSET VALUE PER SHARE
Shares of each Fund shall be sold only at the offering price in effect at
the time of such sale, as described in the then-current prospectus and
statement of additional information of each Fund, and each Fund shall
receive not less than the full net asset value thereof. Any front-end sales
charge payable upon purchases and any contingent deferred sales charge
("CDSC") payable upon redemptions shall be retained by you, it being
understood that such amounts shall not exceed those set forth in each Fund's
then-current prospectus. You may re-allow to dealers all or any part of
these sales charges.
Any reference to "net asset value per share" shall refer to each Fund's net
asset value per share computed in accordance with the Trust's Agreement and
Declaration of Trust, each Fund's then-current prospectus and statement of
additional information and the instructions of the Trustees, all as amended
from time to time. The Trust or its agent shall advise you as promptly as
practicable of each Fund's net asset value per share on each day on which it
is determined.
SECTION 6. DUTIES UPON SALE OR REDEMPTION OF SHARES OF THE TRUST
You shall remit, or cause to be remitted, to the Trust's transfer agent the
net asset value per share of all shares of each Fund sold by you. Each Fund
shall, as promptly as practicable, cause the account of the purchaser to be
credited with the number of shares purchased. The Trust shall not issue
share certificates.
You shall process, or cause to be processed, requests received from each
Fund's shareholders for redemption of its shares, in the manner prescribed
in the Fund's then-current prospectus and statement of additional
information. Shares shall be redeemed at their net asset value per share
next computed after receipt of the redemption request, subject to any
applicable CDSC or redemption fee as set forth in the Fund's then current
prospectus. You shall arrange for payment to such shareholders from each
Fund's account with the custodian.
You shall reimburse the respective Fund for any loss caused by the failure
of a shareholder to confirm in writing any purchase or redemption order
accepted by you. In the event that orders for the purchase or redemption of
shares of a Fund are placed and subsequently canceled, you shall pay to that
Fund, on at least an annual basis, an amount equal to the losses (net of any
gains) realized by the Fund as a result of such cancellations.
SECTION 7. INFORMATION RELATING TO THE TRUST
The Trust or its agent shall furnish you, at its own expense, all
information that you may
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reasonably request in connection with the distribution of the Funds'
shares, including a certified copy of all financial statements and a signed
copy of each report prepared by its independent public accountants. The
Trust shall cooperate fully with you in your efforts to sell the Funds'
shares and in the performance by you of all of your duties under this
Agreement.
SECTION 8. FILING OF REGISTRATION STATEMENTS
The Trust or its agent shall from time to time file and furnish to you at
its own expense copies of such registration statements, amendments and
supplements thereto, and reports or other documents as may be required under
the 1933 Act, the 1940 Act, or the laws of the states in which you desire to
sell shares of the Funds and shall take such other actions as may be
reasonably necessary in connection with the registration or qualification of
shares of the Funds under federal and state law.
SECTION 9. MULTIPLE CAPACITIES
Nothing contained in this Agreement shall be deemed to prohibit you or your
affiliates from acting, and being separately compensated for acting, in one
or more capacities on behalf of the Trust, including, but not limited to,
the capacities of adviser, administrator and distributor. The Trust
understands that you may act in one or more such capacities on behalf of
other investment companies and customers. You shall give the Trust equitable
treatment under the circumstances in supplying services in any capacity, but
the Trust recognizes that it is not entitled to receive preferential
treatment from you as compared with the treatment given to any other
investment company or customer. Whenever you shall act in multiple
capacities on behalf of the Trust, you shall maintain the appropriate
separate account and records for each such capacity.
SECTION 10. PAYMENT OF FEES AND EXPENSES
You shall be entitled to receive from the Funds for your services as
distributor the fees payable in accordance with any plans adopted by the
Funds (or class of shares of the respective Funds) pursuant to Rule l2b-1
under the 0000 Xxx. The foregoing shall not be deemed to limit your right to
receive and retain any front-end sales charges or CDSCs referred to in
Section 5 hereof.
SECTION 11. LIABILITY OF THE DISTRIBUTOR
You shall be liable for your own acts and omissions caused by your willful
misfeasance, bad faith, or gross negligence in the performance of your
duties, or by your reckless disregard of your obligations under this
Agreement, and nothing herein shall protect you against any such liability
to the Trust or its shareholders. Subject to the foregoing, you shall not be
liable for any action taken or omitted on advice, obtained in good faith, of
counsel.
SECTION 12. YEAR 2000
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You have (i) initiated a review and assessment of all areas within your
business and operations (including those affected by your suppliers and
vendors) that could be adversely affected by the "Year 2000 Problem" (that
is, the risk that computer applications used by you (or your suppliers,
vendors and customers) may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999), (ii) developed a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) to date, implemented that
plan substantially in accordance with that timetable. Based on the
foregoing, you believe that all computer applications (including those of
your suppliers and vendors) that are material to your business and
operations applicable to this Agreement will on a timely basis be able to
perform properly date-sensitive functions for all dates before and after
January 1, 2000 (that is, be "Year 2000 compliant").
SECTION 13. TERMINATION OF AGREEMENT; ASSIGNMENT
This Agreement may be terminated at any time, without the payment of any
penalty, on 60 days' written notice (i) by you; (ii) by the Trust as to any
Fund, or class thereof, acting pursuant to a resolution adopted by a
majority of the Trustees who are not interested persons of the Trust and who
have no direct or indirect financial interest in the operation of the 12b-1
plan relating to such Fund or class or in any agreement related to the 12b-1
plan relating to such Fund or class; or (iii) by the vote of the holders of
the lesser of (1) 67% of the shares of such Fund, or class thereof, present
at a meeting if the holders of more than 50% of the outstanding shares are
present in person or represented by proxy, or (2) more than 50% of the
outstanding shares of such Fund, or class thereof. This Agreement shall
automatically terminate in the event of its assignment. Termination shall
not affect the rights of the parties which have accrued prior thereto.
SECTION 14. DURATION
Unless sooner terminated, this Agreement shall continue in effect for one
year from the date herein above first written, and from year to year
thereafter until terminated, provided that the continuation of this
Agreement and the terms hereof are specifically approved annually in
accordance with the requirements of the 1940 Act, as modified or superseded
by any rule, regulation, order or interpretive position of the Commission.
SECTION 15. DEFINITIONS
The terms "assignment" and "interested person" when used in this Agreement
shall have the meanings given such terms in the 1940 Act.
SECTION 16. CONCERNING APPLICABLE PROVISIONS OF LAW, ETC
This Agreement shall be subject to all applicable provisions of law,
including, without being limited to, the applicable provisions of the 1940
Act, the 1933 Act, and the Securities Exchange Act of 1934, as amended; and
to the extent that any provisions of this Agreement are in conflict with
such laws, the latter shall control.
This Agreement is executed and delivered in California, and the laws of the
State of
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California shall govern the construction, validity and effect of this
Agreement.
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SECTION 17. MISCELLANEOUS.
The obligations of the Trust and each Fund, or each class thereof, are not
personally binding upon, nor shall resort be had to the private property of,
any of the Trustees, shareholders, officers, employees or agents of the
Trust or any Fund, but only the relevant Fund's, or class's thereof,
property shall be bound. No Fund shall be liable for the obligations of any
other Fund.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
XXXXXXXXX & XXXXX FUND TRUST
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
XXXXXXXXX & XXXXX, LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Secretary and General Counsel
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SCHEDULE I
H&Q IPO & Emerging Company Fund
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