Exhibit (e)(1)
XXXXX XXXXX GROWTH TRUST
DISTRIBUTION AGREEMENT
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AMENDED AND RESTATED AGREEMENT effective as of December 10, 2001 between
XXXXX XXXXX GROWTH TRUST, a Massachusetts business trust having its principal
place of business in Boston in the Commonwealth of Massachusetts, hereinafter
called the "Trust," on behalf of each of its series listed on Schedule A (a
"Fund"), and XXXXX XXXXX DISTRIBUTORS, INC., a Massachusetts corporation having
its principal place of business in said Boston, hereinafter sometimes called the
"Principal Underwriter." The Trustees of the Trust have established multiple
classes of shares of the Funds, such classes having been designated Class A (or
Advisers Class), Class B, Class C, Class D, Class R, and Class I (the
"Classes").
IN CONSIDERATION of the mutual promises and undertakings herein contained,
the parties hereto agree with respect to each Fund:
1. The Trust grants to the Principal Underwriter the right to purchase all
classes of shares of the Fund upon the terms hereinbelow set forth during the
term of this Agreement. While this Agreement is in force, the Principal
Underwriter agrees to use its best efforts to find purchasers for shares of the
Fund.
The Principal Underwriter shall have the right to buy from the Fund the
shares needed, but not more than the shares needed (except for clerical errors
and errors of transmission) to fill unconditional orders for shares of the Fund
placed with the Principal Underwriter by financial service firms or investors as
set forth in the current Prospectus relating to shares of the Fund. The price
which the Principal Underwriter shall pay for Class A shares so purchased shall
be the net asset value used in determining the public offering price on which
such orders were based; the price for Class B, Class C, Class D, Class R, and
Class I shares so purchased shall be equal to the price paid by investors upon
purchasing such shares. The Principal Underwriter shall notify Investors Bank &
Trust Company, Custodian of the Trust ("IBT"), and PFPC, Inc., Transfer Agent of
the Trust ("PFPC"), or a successor transfer agent, at the end of each business
day, or as soon thereafter as the orders placed with it have been compiled, of
the number of shares and the prices thereof which the Principal Underwriter is
to purchase as principal for resale. The Principal Underwriter shall take down
and pay for shares ordered from the Fund on or before the eleventh business day
(excluding Saturdays) after the shares have been so ordered.
The right granted to the Principal Underwriter to buy shares from the Fund
shall be exclusive, except that said exclusive right 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 acquisition by purchase
or otherwise of all (or substantially all) the assets or the outstanding shares
of any such company, by the Fund; nor shall it apply to shares, if any, issued
by the Fund in distribution of income or realized capital gains of the Fund
payable in shares or in cash at the option of the shareholder.
2. The shares may be resold by the Principal Underwriter to or through
financial service firms having agreements with the Principal Underwriter, and to
investors, upon the following terms and conditions.
CLASS A SHARES. The public offering price, i.e., the price per Class A
share at which the Principal Underwriter or financial service firm purchasing
shares from the Principal Underwriter may sell shares to the public, shall be
the public offering price as set forth in the current Prospectus relating to
said Class A shares, but not to exceed the net asset value at which the
Principal Underwriter is to purchase the Class A shares, plus a sales charge not
to exceed 7.25% of the public offering price (the net asset value divided by
.9275). If the resulting public offering price does not come out to an even
cent, the public offering price shall be adjusted to the nearer cent.
The Principal Underwriter may also sell Class A shares at the net asset
value at which the Principal Underwriter is to purchase such Class A shares,
provided such sales are not inconsistent with the provisions of Section 22(d) of
the Investment Company Act of 1940, as amended from time to time (the "1940
Act"), and the rules thereunder, including any applicable exemptive orders or
administrative interpretations or "no-action" positions with respect thereto.
CLASS B, CLASS C, CLASS D, CLASS R, AND CLASS I SHARES. The public offering
price, i.e., the price per Class B, Class C, Class D, Class R, and Class I
shares at which the Principal Underwriter or financial service firm purchasing
shares from the Principal Underwriter may sell shares to the public, shall be
equal to the net asset value at which the Principal Underwriter is to purchase
the Class B, Class C, Class D, Class R, and Class I shares.
The net asset value of shares of each Class of the Fund shall be determined
by the Trust or IBT, as the agent of the Trust, as of the close of regular
trading on the New York Stock Exchange (the "Exchange") on each business day on
which said Exchange is open, or as of such other time on each such business day
as may be determined by the Trustees of the Trust, in accordance with the
methodology and procedures for calculating such net asset value authorized by
the Trustees. The Trust may also cause the net asset value to be determined in
substantially the same manner or estimated in such manner and as of such other
time or times as may from time to time be agreed upon by the Trust and Principal
Underwriter. The Trust will notify the Principal Underwriter each time the net
asset value of a Class of shares is determined and when such value is so
determined it shall be applicable to transactions as set forth in the current
Prospectus(es) and Statement(s) of Additional Information (hereafter the
"Prospectus") relating to the Fund's shares.
No Class of shares of the Fund shall be sold by the Fund during any period
when the determination of that Class's net asset value is suspended pursuant to
the Declaration of Trust, except to the Principal Underwriter, in the manner and
upon the terms above set forth to cover contracts of sale made by the Principal
Underwriter with its customers prior to any such suspension, and except as
provided in paragraph 1 hereof. The Trust shall also have the right to suspend
the sale of any Class of shares if in the judgment of the Trust conditions
obtaining at any time render such action advisable. The Principal Underwriter
shall have the right to suspend sales at any time, to refuse to accept or
confirm any order from an investor or financial service firm, or to accept or
confirm any such order in part only, if in the judgment of the Principal
Underwriter such action is in the best interests of the Fund.
3. The Trust covenants and agrees that it will, from time to time, but
subject to the necessary approval of the Fund's shareholders, take such steps as
may be necessary to register the Fund's shares under the federal Securities Act
of 1933, as amended from time to time (the "1933 Act"), to the end that there
will be available for sale such number of shares as the Principal Underwriter
may reasonably be expected to sell. The Trust covenants and agrees to indemnify
and hold harmless the Principal Underwriter and each person, if any, who
controls the Principal Underwriter within the meaning of Section 15 of the 1933
Act against any loss, liability, claim, damages or expense (including the
reasonable cost of investigating or defending any alleged loss, liability,
claim, damages or expense and reasonable counsel fees incurred in connection
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therewith), arising by reason of any person acquiring any shares of the Fund,
which may be based upon the 1933 Act or on any other statute or at common law,
on the ground that the Registration Statement or Prospectus, as from time to
time amended and supplemented, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, unless such statement or
omission was made in reliance upon, and in conformity with, information
furnished in writing to the Trust in connection therewith by or on behalf of the
Principal Underwriter; provided, however, that in no case (i) is the indemnity
of the Trust in favor of the Principal Underwriter and any such controlling
person to be deemed to protect such Principal Underwriter or any such
controlling person against any liability to the Trust or the Fund or its
security holders to which such Principal Underwriter or any such controlling
person 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 and duties under this Agreement, or (ii)
is the Trust or the Fund to be liable under its indemnity agreement contained in
this paragraph with respect to any claim made against the Principal Underwriter
or any such controlling person unless the Principal Underwriter or any such
controlling person, as the case may be, shall have notified the Trust in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon the Principal
Underwriter or such controlling person (or after such Principal Underwriter or
such controlling person shall have received notice of such service on any
designated agent), but failure to notify the Trust of any such claim shall not
relieve it from any liability which the Fund may have to the person against whom
such action is brought otherwise than on account of its indemnity agreement
contained in this paragraph. The Trust shall be entitled to participate, at the
expense of the Fund, in the defense, or, if the Trust so elects, to assume the
defense of any suit brought to enforce any such liability, but if the Trust
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Principal Underwriter or controlling person or
persons, defendant or defendants in the suit. In the event the Trust elects to
assume the defense of any such suit and retains such counsel, the Principal
Underwriter or controlling person or persons, defendant or defendants in the
suit, shall bear the fees and expenses of any additional counsel retained by
them, but, in case the Trust does not elect to assume the defense of any such
suit, the Fund shall reimburse the Principal Underwriter or controlling person
or persons, defendant or defendants in the suit, for the reasonable fees and
expenses of any counsel retained by them. The Trust agrees promptly to notify
the Principal Underwriter of the commencement of any litigation or proceedings
against it or any of its officers or Trustees in connection with the issuance or
sale of any of the Fund's shares.
4. The Principal Underwriter covenants and agrees that, in selling the
shares of the Fund, it will use its best efforts in all respects duly to conform
with the requirements of all state and federal laws relating to the sale of such
shares, and will indemnify and hold harmless the Trust and each of its Trustees
and officers and each person, if any, who controls the Trust within the meaning
of Section 15 of the 1933 Act, against any loss, liability, damages, claim or
expense (including the reasonable cost of investigating or defending any alleged
loss, liability, damages, claim or expense and reasonable counsel fees incurred
in connection therewith), arising by reason of any person acquiring any shares
of the Fund, which may be based upon the 1933 Act or any other statute or at
common law, on account of any wrongful act of the Principal Underwriter or any
of its employees (including any failure to conform with any requirement of any
state or federal law relating to the sale of such shares) or on the ground that
the Registration Statement or Prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, insofar as any such statement or omission was
made in reliance upon, and in conformity with information furnished in writing
to the Trust in connection therewith by or on behalf of the Principal
Underwriter, provided, however, that in no case (i) is the indemnity of the
Principal Underwriter in favor of any person indemnified to be deemed to protect
the Fund or any such person against any liability to which the Fund or any such
person would otherwise be subject by reason of willful misfeasance, bad faith,
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or gross negligence in the performance of its or his duties or by reason of its
or his reckless disregard of its obligations and duties under this Agreement, or
(ii) is the Principal Underwriter to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against the Fund or
any person indemnified unless the Trust or such person, as the case may be,
shall have notified the Principal Underwriter in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Trust, the Fund or upon such
person (or after the Trust, the Fund or such person shall have received notice
of such service on any designated agent), but failure to notify the Principal
Underwriter of any such claim shall not relieve it from any liability which it
may have to the Fund or any person against whom such action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. The
Principal Underwriter shall be entitled to participate, at its own expense, in
the defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but if the Principal Underwriter elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Trust, or to its officers or Trustees, or to any controlling
person or persons, defendant or defendants in the suit. In the event that the
Principal Underwriter elects to assume the defense of any such suit and retains
such counsel, the Fund or such officers or Trustees or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and expenses
of any additional counsel retained by them or the Trust, but, in case the
Principal Underwriter does not elect to assume the defense of any such suit, it
shall reimburse the Fund, any such officers and Trustees or controlling person
or persons, defendant or defendants in such suit, for the reasonable fees and
expenses of any counsel retained by them or the Trust. The Principal Underwriter
agrees promptly to notify the Trust of the commencement of any litigation or
proceedings against it in connection with the issue and sale of any of the
Fund's shares.
Neither the Principal Underwriter nor any financial service firm nor any
other person is authorized by the Trust to give any information or to make any
representations, other than those contained in the Registration Statement or
Prospectus filed with the Securities and Exchange Commission (the "Commission")
under the 1933 Act, (as said Registration Statement and Prospectus may be
amended or supplemented from time to time), covering the shares of the Fund.
Neither the Principal Underwriter nor any financial service firm nor any other
person is authorized to act as agent for the Trust or the Fund in connection
with the offering or sale of shares of the Fund to the public or otherwise. All
such sales made by the Principal Underwriter shall be made by it as principal,
for its own account. The Principal Underwriter may, however, act as agent in
connection with the repurchase of shares as provided in paragraph 6 below, or in
connection with "exchanges" between investment companies for which the Principal
Underwriter (or an affiliate thereof) acts as principal underwriter or
investment adviser.
5(a). The Fund will pay, or cause to be paid (by one or more classes) -
(i) all the costs and expenses of the Fund, including fees and
disbursements of its counsel, in connection with the preparation and filing
of any required Registration Statement and/or Prospectus under the 1933 Act, or
the 1940 Act, covering its shares and all amendments and supplements thereto,
and preparing and mailing periodic reports to shareholders (including the
expense of setting up in type any such Registration Statement, Prospectus or
periodic report);
(ii) the cost of preparing temporary and permanent share certificates
(if any) for shares of the Fund;
(iii) the cost and expenses of delivering to the Principal Underwriter
at its office in Boston, Massachusetts, all shares of the Fund purchased
by it as principal hereunder; and
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(iv) all the federal and state (if any) issue and/or transfer taxes
payable upon the issue by or (in the case of treasury shares) transfer from the
Fund to the Principal Underwriter of any and all shares of the Fund purchased
by the Principal Underwriter hereunder.
(v) the fees, costs and expenses of the registration or qualification
of shares for sale in the various states, territories or other
jurisdictions (including without limitation the registering or
the Fund as a broker or dealer or any officer of the Fund as agent or salesman
in any state, territory or other jurisdiction); and
(vi) all payments to be made pursuant to any written plan
approved in accordance with Rule 12b-1 under the 1940 Act or any written service
plan.
(b) The Principal Underwriter agrees that, after the Prospectus (other than
to existing shareholders of the Fund) and periodic reports have been set up in
type, it will bear the expense of printing and distributing any copies thereof
which are to be used in connection with the offering of shares of the Fund to
financial service firms or investors. The Principal Underwriter further agrees
that it will bear the expenses of preparing, printing and distributing any other
literature used by the Principal Underwriter or furnished by it for use by
financial service firms in connection with the offering of the shares of the
Fund for sale to the public and any expenses of advertising in connection with
such offering.
(c) In addition, the Trust agrees, in accordance with the Fund's
Distribution Plans (the "Plans"), adopted pursuant to Rule 12b-1 under the 1940
Act with respect to Class B, Class C and Class D shares, to make certain
payments as follows. The Principal Underwriter shall be entitled to be paid by
the Fund a sales commission equal to 6.25% of the price received by the Fund for
each sale of Class B, Class C or Class D shares (excluding in each case the
reinvestment of dividends and distributions) unless otherwise noted on Schedule
A hereto, such payment to be made out of Class B, Class C or Class D assets as
applicable and in the manner set forth in this paragraph 5. The Principal
Underwriter shall also be entitled to be paid by the Fund a separate
distribution fee (calculated in accordance with paragraph 5(d)) out of the
relevant Class' assets, such payment to be made in the manner set forth and
subject to the terms of this paragraph 5.
(d) The sales commissions and distribution fees referred to in paragraph
5(c) shall be accrued and paid by the Fund in the following manner. Each of
Class B, Class C or Class D shall accrue daily an amount calculated at the rate
of .75% per annum of its daily net assets, which net assets shall be computed as
described in paragraph 2. The daily amounts so accrued throughout the month
shall be paid to the Principal Underwriter on the last day of each month. The
amount of such daily accrual, as so calculated, shall first be applied and
charged to all unpaid sales commissions, and the balance, if any, shall then be
applied and charged to all unpaid distribution fees. No amount shall be accrued
with respect to any day on which there exist no outstanding uncovered
distribution charges of the Principal Underwriter due from the relevant Class.
The amount of such uncovered distribution charges shall be calculated daily. For
purposes of this calculation, distribution charges of the Principal Underwriter
shall include (a) the aggregate of all sales commissions which the Principal
Underwriter has been paid pursuant to this paragraph (d) (and pursuant to
paragraph 5(d) of the Prior Agreements) plus all sales commissions which it is
entitled to be paid pursuant to paragraph 5(c) (and pursuant to paragraph 5(c)
of the Prior Agreements) since inception of the Prior Agreements through and
including the day next preceding the date of calculation, and (b) an amount
equal to the aggregate of all distribution fees referred to below which the
Principal Underwriter has been paid pursuant to this paragraph (d) (and pursuant
to paragraph 5(d) of the Prior Agreements) plus all such fees which it is
entitled to be paid pursuant to paragraph 5(c) (and pursuant to paragraph 5(c)
of the Prior Agreements) since inception of the Prior Agreements through and
including the day next preceding the date of calculation. From this sum
(distribution charges) there shall be subtracted (i) the aggregate amount paid
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or payable to the Principal Underwriter pursuant to this paragraph (d) (and
pursuant to paragraph (d) of the Prior Agreements) since inception of the Prior
Agreements through and including the day next preceding the date of calculation
and (ii) the aggregate amount of all contingent deferred sales charges paid or
payable to the Principal Underwriter since inception of the Prior Agreements
through and including the day next preceding the date of calculation. In
addition, the calculation shall include amounts under the Prior Agreements when
a predecessor principal underwriter existed. If the result of such subtraction
is a positive amount, a distribution fee [computed at the rate of 1% per annum
above the prime rate (being the base rate on corporate loans posted by at least
75% of the nation's 30 largest banks) then being reported in the Eastern Edition
of The Wall Street Journal or if such prime rate is not so reported such other
rate as may be designated from time to time by vote or other action of a
majority of (i) those Trustees of the Trust who are not "interested persons" of
the Trust (as defined in the 0000 Xxx) and have no direct or indirect financial
interest in the operation of the Plan or any agreements related to it (the "Rule
12b-1 Trustees") and (ii) all of the Trustees then in office] shall be computed
on such amount and added to such amount, with the resulting sum constituting the
amount of outstanding uncovered distribution charges of the Principal
Underwriter due from a Class with respect to such day for all purposes of this
Agreement. If the result of such subtraction is a negative amount, there shall
exist no outstanding uncovered distribution charges of the Principal Underwriter
due from that Class with respect to such day and no amount shall be accrued or
paid to the Principal Underwriter with respect to such day. The aggregate
amounts accrued and paid pursuant to this paragraph (d) during any fiscal year
of the Fund shall not exceed .75% of the average daily net assets of a Class for
such year. The term "Principal Underwriter" as used in this paragraph (d) shall
include the current Principal Underwriter's predecessor, a Massachusetts
corporation called Xxxxx Xxxxx Distributors, Inc. that served as principal
underwriter for the Trust prior to November 1, 1996.
(e) The Principal Underwriter shall be entitled to receive all contingent
deferred sales charges paid or payable with respect to any day on which there
exist outstanding uncovered distribution charges due from a Class of the
Principal Underwriter. Each Class B, Class C and Class D shall be entitled to
receive all remaining contingent deferred sales charges paid or payable by its
shareholders with respect to any day on which there exist no outstanding
uncovered distribution charges of the Principal Underwriter due from that Class,
provided that no such sales charge which would cause the Fund to exceed the
maximum applicable cap imposed thereon by paragraph (2) of subsection (d) of
Rule 2830 of the Conduct Rules of the National Association of Securities
Dealers, Inc. shall be imposed.
(f) With respect to Class R shares, a Fund may make payments from Class R
assets of distribution fees to the Principal Underwriter, Authorized Firms and
other persons. The aggregate of such payments during any fiscal year of the Fund
shall not exceed .50% of Class R's average daily net assets for such year.
(g) The Principal Underwriter shall be entitled to receive all contingent
deferred sales charges imposed in accordance with the Prospectus on early
redemption of Class A shares.
(h) The persons authorized to direct the disposition of monies paid or
payable by the Fund pursuant to the Plan or this Agreement shall be the
President or any Vice President or the Treasurer of the Trust. Such persons
shall provide to the Trust's Trustees and the Trustees shall review, at least
quarterly, a written report of the amounts so expended and the purposes for
which such expenditures were made.
(i) In addition to the payments to the Principal Underwriter provided for
in paragraph 5(d), the Fund may make payments from the assets of each Class of
service fees to the Principal Underwriter, Authorized Firms and other persons.
The aggregate of such payments during any fiscal year of the Fund shall not
exceed .25% of a Class' average daily net assets for such year.
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6. The Trust hereby authorizes the Principal Underwriter to repurchase,
upon the terms and conditions set forth in written instructions given by the
Trust to the Principal Underwriter from time to time, as agent of the Trust and
for its account, such shares of the Fund as may be offered for sale to the Fund
from time to time.
(a) The Principal Underwriter shall notify in writing IBT and PFPC at the
end of each business day, or as soon thereafter as the repurchases in each
pricing period have been compiled, of the number of shares of each Class
repurchased for the account of the Fund since the last previous report, together
with the prices at which such repurchases were made, and upon the request of any
officer or Trustee of the Trust shall furnish similar information with respect
to all repurchases made up to the time of the request on any day.
(b) The Trust reserves the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by an
officer of the Principal Underwriter, by telegraph or by written instrument from
an officer of the Trust duly authorized by its Trustees. In the event that the
authorization of the Principal Underwriter is, by the terms of such notice,
suspended for more than twenty-four hours or until further notice, the
authorization given by this paragraph 6 shall not be revived except by action of
a majority of the Trustees of the Trust.
(c) The Principal Underwriter shall have the right to terminate the
operation of this paragraph 6 upon giving to the Trust thirty (30) days' written
notice thereof.
(d) The Trust agrees to authorize and direct IBT to pay, for the account of
the Fund, the purchase price of any shares so repurchased against delivery of
the certificates in proper form for transfer to the Trust or for cancellation by
the Trust.
(e) The Principal Underwriter shall receive no commission in respect of any
repurchase of shares under the foregoing authorization and appointment as agent,
except for any sales commission, distribution fee or contingent deferred sales
charges payable under paragraph 5.
(f) The Trust agrees that the Fund will reimburse the Principal
Underwriter, from time to time on demand, for any reasonable expenses incurred
in connection with the repurchase of shares of the Fund pursuant to this
paragraph 6.
7. If, at any time during the existence of this Agreement, the Trust shall
deem it necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the Commission or other governmental authority or to obtain
any advantage under Massachusetts or federal tax laws, and shall notify the
Principal Underwriter of the form of amendment which it deems necessary or
advisable and the reasons therefor, and, if the Principal Underwriter declines
to assent to such amendment, the Trust may terminate this Agreement forthwith by
written notice to the Principal Underwriter. If, at any time during the
existence of its agreement upon request by the Principal Underwriter, the Trust
fails (after a reasonable time) to make any changes in its Declaration of Trust,
as amended, or in its methods of doing business which are necessary in order to
comply with any requirement of federal law or regulations of the Commission or
of a national securities association of which the Principal Underwriter is or
may be a member, relating to the sale of the shares of the Fund, the Principal
Underwriter may terminate this Agreement forthwith by written notice to the
Trust.
8(a). The Principal Underwriter is a corporation in the United States
organized under the laws of Massachusetts and holding membership in the National
Association of Securities Dealers, Inc., a securities association registered
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under Section 15A of the Securities Exchange Act of 1934, as amended from time
to time, and during the life of this Agreement will continue to be so resident
in the United States, so organized and a member in good standing of said
Association. The Principal Underwriter covenants that it and its officers and
directors will comply with the Trust's Declaration of Trust and By-Laws, and the
1940 Act and the rules promulgated thereunder, insofar as they are applicable to
the Principal Underwriter.
(b) The Principal Underwriter shall maintain in the United States and
preserve therein for such period or periods as the Commission shall prescribe by
rules and regulations applicable to it as Principal Underwriter of an open-end
investment company registered under the 1940 Act such accounts, books and other
documents as are necessary or appropriate to record its transactions with the
Fund. Such accounts, books and other documents shall be subject at any time and
from time to time to such reasonable periodic, special and other examinations by
the Commission or any member or representative thereof as the Commission may
prescribe. The Principal Underwriter shall furnish to the Commission within such
reasonable time as the Commission may prescribe copies of or extracts from such
records which may be prepared without effort, expense or delay as the Commission
may by order require.
9. This Agreement shall continue in force indefinitely until terminated as
in this Agreement above provided, except that:
(a) this Agreement shall remain in effect through and including April 28,
2003 (or, if applicable, the next April 28 which follows the day on which a Fund
has become a Fund hereunder by amendment to Schedule A subsequent to April 28,
2003), and shall continue in full force and effect indefinitely thereafter, but
only so long as such continuance after April 28, 2003 (or, if applicable, said
next April 28) is specifically approved at least annually (i) by the vote of a
majority of the Rule 12b-1 Trustees cast in person at a meeting called for the
purpose of voting on such approval, and (ii) by the Trustees of the Trust or by
vote of a majority of the outstanding voting securities of the Fund;
(b) this Agreement may be terminated with respect to a Class with a 12b-1
plan at any time by vote of a majority of the Rule 12b-1 Trustees or by vote of
a majority of the outstanding voting securities of the Class on not more than
sixty (60) days' notice to the Principal Underwriter. The Principal Underwriter
shall be entitled to receive all contingent deferred sales charges paid or
payable from such class with respect to any day subsequent to such termination;
(c) either party shall have the right to terminate this Agreement with
respect to any Class on six (6) months' written notice thereof given in writing
to the other;
(d) the Trust shall have the right to terminate this Agreement forthwith in
the event that it shall have been established by a court of competent
jurisdiction that the Principal Underwriter or any director or officer of the
Principal Underwriter has taken any action which results in a breach of the
covenants set out in paragraph 9 hereof;
(e) if this Agreement is terminated with respect of any Class or Fund, it
shall not terminate the Agreement with respect to any other Class or Fund; and
(f) additional series of the Trust will become Funds hereunder upon
approval by the Trustees of the Trust and amendment of Schedule A.
10. In the event of the assignment of this Agreement by the Principal
Underwriter, this Agreement shall automatically terminate.
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11. Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage paid, to the other party, at such address as such
other party may designate for the receipt of such notices. Until further notice
to the other party, it is agreed that the record address of the Trust and that
of the Principal Underwriter, shall be The Xxxxx Xxxxx Building, 000 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
12. The services of the Principal Underwriter to the Trust hereunder are
not to be deemed to be exclusive, the Principal Underwriter being free to (a)
render similar service to, and to act as principal underwriter in connection
with the distribution of shares of, other series of the Trust or other
investment companies, and (b) engage in other business and activities from time
to time.
13. The terms "vote of a majority of the outstanding voting securities,"
"assignment" and "interested persons," when used herein, shall have the
respective meanings specified in the 1940 Act, subject, however, to such
exemptions as may be granted by the Commission by any rule, regulation or order.
14. The Principal Underwriter expressly acknowledges the provision in the
Trust's Declaration of Trust limiting the personal liability of the shareholders
of the Trust and the Trustees of the Trust. The Principal Underwriter hereby
agrees that it shall have recourse only to the assets of the relevant Fund or
Class thereof for payment of claims or obligations as between the Trust and the
Principal Underwriter arising out of this Agreement and shall not seek
satisfaction from any shareholders or from the Trustees. No Fund or Class shall
not be responsible for obligations of any other fund or class of the Trust.
15. On June 23, 1997, the Trust adopted a Plan of reorganization and a
Multiple Class Plan on behalf of its series and in connection therewith the
Trustees of the Trust amended the Declaration of Trust to terminate or rename
certain series and to establish four classes of shares within each renamed
series. Pursuant to such reorganization the assets of each Marathon series will
be converted to Class B assets of the renamed series, the shares of each
Marathon series will be converted to Class B shares of the renamed series, the
assets of each Classic series will be converted to Class C assets of the renamed
series, and the shares of each Classic series will be converted to Class C
shares of that renamed series. All references in this Agreement to the "Prior
Agreements" shall mean (i) with respect to the Class B assets or shares of a
particular Fund, all prior distribution agreements of the Trust applicable to
the converted assets and shares of the relevant Marathon series, (ii) with
respect to the Class C assets or shares of a particular Fund, all prior
distribution agreements of the Trust applicable to the converted assets and
shares of the relevant Classic series and (iii) with respect to all shares of a
Fund other than Class D shares, the Distribution Agreement dated June 23, 1997,
as amended by changes to Schedule A. All references in this Agreement to the
"Prior Agreements" shall not be applicable to any additional series of the Trust
which becomes a Fund hereunder by amendment of Schedule A subsequent to March 1,
2001.
16. This Agreement shall be effective with respect to a specific Class of
shares for a particular Fund on the date that Fund begins offering shares of
that Class. As of such effective date, this Agreement shall be deemed to amend,
replace and be substituted for the Prior Agreements previously applicable to the
relevant Class assets of that Fund. The outstanding uncovered distribution
charges of the Principal Underwriter with respect to a specific Class calculated
under the Prior Agreements as of the close of business on the date a Fund begins
offering shares of that Class shall be the outstanding uncovered distribution
charges of the Principal Underwriter with respect to such Class calculated under
this Agreement as of the opening of business on the date such shares are
offered.
9
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of
the 10th day of December, 2001.
XXXXX XXXXX GROWTH TRUST
By /s/ Xxxxx X. Xxxxxx
-------------------------------
President
XXXXX XXXXX DISTRIBUTORS, INC.
By /s/ Xxxx X. Xxxxxx
-----------------------------
Vice President
10
SCHEDULE A
XXXXX XXXXX GROWTH TRUST
DISTRIBUTION AGREEMENT
I. Funds sold prior to June 23, 1997 Agreement
Sales Prior Agreements
Commissions on Relating to Class B
Name of Fund Adopting this Agreement Class B Shares and/or Class C Assets
------------------------------------ -------------- ---------------------
Xxxxx Xxxxx Asian Small Companies Fund 5% Class B: March 1, 1996 / November 1, 1996
Xxxxx Xxxxx Greater China Growth Fund 5% Class B: June 7, 1993 / November 1, 1996
Class C: December 17, 1993 / January 27, 1995 / November 1, 1996
Xxxxx Xxxxx Growth Fund 5% Class B: August 1, 1994 / November 1, 1996
Class C: August 1, 1994 / January 27, 1995 / November 1, 1996
Xxxxx Xxxxx Information Age Fund 5% Class B: August 23, 1995 / November 1, 1996
Class C: November 10, 1995 / November 1, 1996
Xxxxx Xxxxx Worldwide Health Sciences Fund 5% Class B: July 17, 1996 / November 1, 1996
Note: All Funds adopted a Distribution Agreement dated November 1, 1996
II. FUNDS SOLD SINCE TO JUNE 23, 1997 AGREEMENT
Sales Commissions
Name of Fund Adopting this Agreement (effective date) On Class B Shares On Class D Shares
----------------------------------------------------- ----------------- -----------------
Xxxxx Xxxxx Large-Cap Growth Fund (December 10, 2001) N/A N/A
Xxxxx Xxxxx Small-Cap Fund (December 10, 2001) N/A N/A
*Atlanta Capital Large-Cap Growth Fund (December 10, 2001) N/A N/A
*Atlanta Capital Small-Cap Fund (December 10, 2001) N/A N/A
*Atlanta Capital Intermediate Bond Fund (December 10, 2001) N/A N/A
Xxxxx Xxxxx Information Age Fund 5% 5%
Xxxxx Xxxxx Worldwide Health Sciences Fund 5% 5%
*Note: These Funds offer Class R and Class I Shares.
A-1
