Exhibit (6)(e)
XXXXXXX X. XXXXXXXXX FUND, INC.
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 11th day of October, 1995, between XXXXXXX X. XXXXXXXXX
FUND, INC., a Maryland corporation (the "Fund"), on behalf of the Xxxxxxxxx
Emerging Markets Value Portfolio (the "Portfolio"), and XXXXXXX X. XXXXXXXXX &
CO., INC., a New York corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Distributor").
In consideration of the mutual covenants contained herein, the parties agree as
follows:
1. Appointment of the Distributor.
The Fund, on behalf of the Portfolio, hereby appoints the Distributor as its
exclusive agent to sell the stock of the Portfolio (the "Shares"), on a best
efforts basis, and the Distributor hereby accepts such appointment. All sales
by the Distributor shall be subject to acceptance by the Fund on behalf of the
Portfolio. The Distributor shall be the exclusive representative of the Fund
to act as principal underwriter and distributor, except that:
The exclusive rights granted to the Distributor to sell Shares on behalf of the
Fund shall not apply to Shares issued in connection with the merger or
consolidation of any other investment company or personal holding company with
the Fund or the Portfolio or the acquisition by purchase or otherwise of all (or
substantially all) the assets or the outstanding shares of any such company by
the Fund or the Portfolio. Such exclusive rights shall also not apply to shares
issued by the Fund or the Portfolio pursuant to reinvestment of dividends or
capital gains distributions.
2. Sales of Shares.
The Distributor agrees that (i) all Shares sold by the Distributor shall be sold
at the net asset value thereof as described in Section 3 hereof, and (ii) the
Fund, on behalf of the Portfolio, shall receive 100% of such net asset value.
The Distributor may enter into agreements, in form and substance satisfactory to
the Fund on behalf of the Portfolio, with dealers selected by the Distributor,
providing for 1) the sale to such dealers and resale by such dealers of Shares,
or 2) the sale of Shares through such Distributor acting as agent, either to
clients of the Distributor or other persons, in all cases at the Shares' net
asset value. The Fund shall have the right to suspend the
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sale of Shares at times when redemption is suspended pursuant to the conditions
set forth in Section 4 hereof. The Fund, on behalf of the Portfolio, shall also
have the right to suspend the sale of Shares if trading on the New York Stock
Exchange shall have been suspended, if a banking moratorium shall have been
declared by Federal or New York authorities, or if there shall have been some
other event, which, in the judgment of the Fund, makes it impracticable or
inadvisable to sell the shares.
3. Net Asset Value.
The Fund, on behalf of the Portfolio, agrees to supply to the Distributor,
promptly after the time or times at which the net asset value for the Portfolio
is determined, on each day on which the net asset value of the Portfolio is
determined as set forth in the then-current Prospectus of the Fund or the
Portfolio, (each such day being hereinafter called a "business day") a statement
of the net asset value per share of the Portfolio determined in the manner set
forth in the then-current Prospectus and Statement of Additional Information of
the Fund or the Portfolio. Each determination of net asset value per share shall
take effect as of such time or times on each business day as set forth in the
then-current Prospectus of the Fund or the Portfolio and shall prevail until the
time as of which the next determination is made.
The Distributor may reject any order for Shares. The Fund, on behalf of the
Portfolio, or any agent of the Fund designated in writing by the Fund, shall be
promptly advised of all purchase orders for Shares received by the Distributor.
Any order may be rejected by the Fund (or its agent) on behalf of the Portfolio.
The Fund (or its agent) will confirm orders upon their receipt, will make
appropriate book entries and upon receipt by the Fund (or its agent) of payment
therefor, will deliver any required certificates for such Shares pursuant to the
instructions of the Distributor. The Distributor agrees to cause payment and
such instructions to be delivered promptly to the Fund (or its agent).
4. Repurchase or Redemption of Shares by the Fund.
Any of the outstanding Shares may be tendered for redemption at any time, and
the Fund, on behalf of the Portfolio, agrees to repurchase or redeem the Shares
so tendered on behalf of the Portfolio in accordance with its obligations as set
forth in Article V of its Articles of Incorporation, as amended from time to
time, and in accordance with the applicable provisions set forth in the
Prospectus. The price to be paid to redeem or repurchase the Shares shall be
equal to the net asset value per share determined as set forth in the
Prospectus. All payments by the Fund on behalf of the Portfolio hereunder shall
be made in the manner set forth below.
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The Fund, on behalf of the Portfolio, shall pay the total amount of the
redemption price as defined in the above paragraph pursuant to the instructions
of the Distributor on or before the seventh day subsequent to its having
received the notice of redemption in proper form. The proceeds of any redemption
of Shares shall be paid by the Fund to or for the account of the redeeming
stockholder, in accordance with applicable provisions of the then-current
Prospectus of the Fund or the Portfolio.
Redemption of, or payment with regard to, the Shares of the Portfolio may be
suspended at times when the New York Stock Exchange is closed, when trading on
said Exchange is closed, when trading on said Exchange is restricted, when an
emergency exists as a result of which disposal by the Fund of securities owned
by it on behalf of the Portfolio is not reasonably practicable or it is not
reasonably practicable for the Fund fairly to determine the value of the
Portfolio's net assets, or during any other period when the Securities and
Exchange Commission, by order, so permits.
5. Sales Literature.
The Fund, on behalf of the Portfolio, shall have the right to review, to the
extent it deems appropriate, all sales literature and advertisements used by the
Distributor in connection with sales of Shares. No such sales literature or
advertisements shall be used if the Fund objects thereto. The Fund authorizes
the Distributor, in connection with the sale or arranging for the sale of
Shares, to provide only such information and to make only such statements or
representations as are contained in the Fund's or the Portfolio's then-current
Prospectus or Statement of Additional Information, sales literature or
advertisements or in such financial and other statements as are furnished to the
Distributor pursuant to the next paragraph. Neither the Fund nor the Portfolio
shall be responsible in any way for any information provided, or statements or
representations made, by the Distributor or its representatives or agents other
than the information, statements and representations described in the preceding
sentence.
6. Expenses.
The Distributor shall pay all of its expenses arising from the performance of
its obligations under Section 1 of this Agreement and shall pay any salaries,
fees and expenses of the Directors who are employees of the Distributor. The
Distributor shall not be required to pay any other expenses of the Fund or the
Portfolio, including (a) the fees payable to Xxxxxxxxx under the Investment
Management Agreement and the Shareholder Servicing and Administrative Agreement;
(b) the fees and expenses of Directors
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who are not affiliated with the Distributor; (c) the fees and expenses of the
Custodian and Transfer Agent, including but not limited to fees and expenses
relating to Fund accounting, pricing of Portfolio shares, and computation of
net asset value; (d) the fees and expenses of calculating yield and/or
performance of the Portfolio; (e) the charges and expenses of legal counsel
and independent accountants; (f) all taxes and corporate fees payable to
governmental agencies; (g) the fees of any trade association of which the Fund
is a member; (h) reimbursement of the Portfolio's share of the organization
expenses of the Portfolio or the Fund; (i) the fees and expenses involved in
registering and maintaining registration of the Fund and the Portfolio's shares
with the Securities and Exchange Commission, registering the Fund as a broker
or dealer and qualifying the shares of the Portfolio under state securities
laws, including the preparation and printing of the registration statements and
prospectuses for such purposes, allocable communications expenses with respect
to investor services, all expenses of shareholders' and Board of Directors'
meetings and preparing, printing and mailing proxies, prospectuses and reports
to shareholders; (j) brokers' commissions, dealers' xxxx-ups and any issue or
transfer taxes chargeable in connection with the Portfolio's transactions;
(k) the cost of stock certificates representing shares of the Portfolio;
(l) insurance expenses, including, but not limited to, the cost of a fidelity
bond, directors and officers insurance and errors and omissions insurance; and
(m) litigation and indemnification expenses, expenses incurred in connection
with mergers, and other extraordinary expenses not incurred in the ordinary
course of the Portfolio's business.
7. Duties of the Fund.
The Fund shall maintain a currently effective Registration Statement on the
appropriate form and shall file with the Securities and Exchange Commission
("SEC") such reports and other documents as may be required under the Securities
Act of 1933 as amended and the Investment Company Act of 1940, as amended (the
"1940 Act"), or by the rules and regulations of the SEC thereunder. The Fund
shall keep the Distributor fully informed with regard to its affairs and the
affairs of the Portfolio, shall furnish the Distributor with a certified copy of
all financial statements and a signed copy of each report prepared by its
independent auditors, and shall cooperate fully in the efforts of the
Distributor to negotiate and sell the Shares and in the performance by the
Distributor of all its duties under this Agreement.
8. Indemnification.
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The Fund, on behalf of the Portfolio, shall indemnify and hold harmless the
Distributor, against any loss, liability, claim, damage or expense (including
the reasonable cost of investigating or defending any alleged loss, liability,
claim, damage or expenses and reasonable counsel fees incurred in connection
therewith) arising out of its activities as a Distributor to the Fund or the
Portfolio, provided, however, that nothing herein shall be deemed to protect the
Distributor or any director, officer, or employee thereof against any liability
to the Fund or its stockholders, to which the Distributor or any director,
officer, or employee thereof would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties under this Agreement.
9. Limitation of Liability.
Subject to Section 36 of the Act, the Distributor, and the directors,
officers and employees of the Distributor, shall not be liable to the Fund or
the Portfolio for any error of judgment or mistake of law or for any loss
arising out of the performance or non-performance of duties under this
Agreement, except for willful misfeasance, bad faith or gross negligence in the
performance of, or by reason of reckless disregard of, obligations and duties
under this Agreement.
10. Term of Agreement.
This Agreement shall continue in effect with respect to the Portfolio for a
period of more than two years from the date hereof only so long as such
continuance is specifically approved at least annually in conformity with the
requirements of the Act; provided, however, that this Agreement may be
terminated at any time, without the payment of any penalty, by the Fund on
behalf of the Portfolio, by the Board of Directors of the Fund or, with respect
to the Portfolio, by vote of a majority of the outstanding voting securities (as
defined in the 0000 Xxx) of the Portfolio, or by the Distributor, on not more
than 60 days' nor less than 30 days' written notice to the other party.
11. Miscellaneous.
This Agreement may be amended by mutual written consent. This Agreement contains
the entire agreement between the parties hereto and supersedes all prior
agreements, understandings and arrangements with respect to the subject matter
hereof. 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
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in violation of any applicable laws or regulations. The Distributor may
perform the same services to the Fund, on behalf of the Portfolio, and to
other persons or other entities, including other investment companies.
IN WITNESS WHEREOF, the Fund, on behalf of the Portfolio, and the
Distributor have caused this Agreement to be executed by their duly authorized
officers as of the date first above written.
XXXXXXX X. XXXXXXXXX & CO., INC.
By: Xxxxx X. Xxxxxxx, Chairman
XXXXXXX X. XXXXXXXXX FUND, INC.
By: Xxxxxx X. Xxxxxx, Senior Vice President
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