FORM OF
DISTRIBUTION AGREEMENT
[Date]
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements
hereinafter contained, the undersigned, [Fund Name] (the "Fund") a
[corporation/business trust] organized under the laws of [the
State of Maryland/the Commonwealth of Massachusetts] has agreed
that Xxxxxxx Xxxxx Barney Inc. ("Xxxxxxx Xxxxx Xxxxxx") shall be,
for the period of this Agreement, the distributor of shares of the
Fund (the "Shares").
1. Services as Distributor
1.1 Xxxxxxx Xxxxx Barney will act as agent for the
distribution of Shares covered by the registration statement,
including the 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").
1.2 Xxxxxxx Xxxxx Xxxxxx agrees to use its best
efforts to solicit orders for the sale of Shares and will
undertake such advertising and promotion as it believes is
reasonable in connection with such solicitation.
1.3 All activities by Xxxxxxx Xxxxx Barney as
distributor of the Shares shall comply with all applicable laws,
rules, and regulations, including, without limitation, all rules
and regulations made or adopted by the Securities and Exchange
Commission (the "SEC") or by any securities association registered
under the Securities Exchange Act of 1934.
1.4 Xxxxxxx Xxxxx Xxxxxx will provide one or more
persons during normal business hours to respond to telephone
questions concerning the Fund.
1.5 Xxxxxxx Xxxxx Barney will transmit any orders
received by it for purchase or redemption of Shares to the Fund's
transfer and dividend disbursing agent.
1.6 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, the Shares until
such time as those officers deem it advisable to accept such
orders and to make such sales.
1.7 Xxxxxxx Xxxxx Xxxxxx will act only on its own
behalf as principal should it choose to enter into selling
agreements with selected dealers or others.
1.8 The Fund will pay to Xxxxxxx Xxxxx Barney an
annual fee in connection with the offering and sale of the Shares
under this Agreement. The annual fee paid to Xxxxxxx Xxxxx Xxxxxx
will be calculated daily and paid monthly by the Fund at an annual
rate set forth in the Services and Distribution Plan (the "Plan")
based on the average daily net assets of the Fund; provided that
payment shall be made in any month only to the extent that such
payment shall not exceed the sales charge limitations established
by the National Association of Securities Dealers, Inc.
The annual fee paid to Xxxxxxx Xxxxx Barney under this
Section 1.8 may be used by Xxxxxxx Xxxxx Xxxxxx to cover any
expenses primarily intended to result in the sale of Shares,
including , but not limited to, the following:
(a) cost of payments made to Xxxxxxx Xxxxx Barney
Financial Consultants and other employees of Xxxxxxx Xxxxx
Xxxxxx or other broker-dealers that engage in the
distribution of the Shares;
(b) payments made to, and expenses of, persons who
provide support services in connection with the distribution
of the Shares, including, but not limited to, office space
and equipment, telephone facilities, answering routine
inquiries regarding the Fund, processing shareholder
transactions and providing any other shareholder services;
(c) costs relating to the formulation and
implementation of marketing and promotional activities,
including, but not limited to, direct mail promotions and
television, radio, newspaper, magazine and other mass media
advertising;
(d) costs of printing and distributing prospectuses
and reports of the Fund to prospective shareholders of the
Fund;
(e) costs involved in preparing, printing and
distributing sales literature pertaining to the Fund; and
(f) costs involved in obtaining whatever
information, analyses and reports with respect to marketing
and promotional activities that the Fund may, from time to
time, deem advisable;
except that distribution expenses shall not include any
expenditures in connection with services which Xxxxxxx Xxxxx
Xxxxxx, any of its affiliates, or any other person have agreed to
bear without reimbursement.
1.9 Xxxxxxx Xxxxx Barney shall prepare and deliver reports
to the Treasurer of the Fund and to the sub-investment advisor
and/or administrator of the Fund on a regular, at least quarterly,
basis, showing the distribution expenses incurred pursuant to this
Agreement and the Plan and the purposes therefor, as well as any
supplemental reports as the Trustees, from time to time, may
reasonably request.
2. Duties of the Fund
2.1 The Fund agrees at its own expense to execute
any and all documents, to furnish any and all information and to
take any other actions that may be reasonably necessary in
connection with the qualification of the Shares for sale in those
states that Xxxxxxx Xxxxx Xxxxxx may designate.
2.2 The Fund shall furnish from time to time for use
in connection with the sale of the Shares, such information
reports with respect to the Fund and its Shares as Xxxxxxx Xxxxx
Barney 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 shall also furnish Salomon Xxxxx Xxxxxx upon request with (a)
annual audits of the Fund's books and accounts made by independent
certified public accountants regularly retained by the Fund; (b)
semi-annual unaudited financial statements pertaining to the Fund;
(c) quarterly earnings statements prepared by the Fund; (d) a
monthly itemized list of the securities in the Fund's portfolio;
(e) monthly balance sheets as soon as practicable after the end of
each month; and (f) from time to time such additional information
regarding the Fund's financial condition as Xxxxxxx Xxxxx Barney
may reasonably request.
3. Representations and Warranties
The Fund represents to Xxxxxxx Xxxxx Xxxxxx 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 carefully
prepared in conformity with the requirements of the 1933 Act, the
1940 Act 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 which at any time shall have been filed with
the SEC. The Fund represents and warrants to Xxxxxxx Xxxxx Barney
that any registration statement, prospectus and statement of
additional information, when such registration statement becomes
effective, will include 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 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 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's counsel,
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
Xxxxxxx Xxxxx Xxxxxx to do so, Xxxxxxx Xxxxx Barney may, at its
option, terminate this Agreement. The Fund shall not file any
amendment to any registration statement or supplement to any
prospectus or statement of additional information without giving
Xxxxxxx Xxxxx Xxxxxx 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 Xxxxxxx Xxxxx Xxxxxx and
dealers to use any prospectus or statement of additional
information furnished by the Fund from time to time, in connection
with the sale of the Shares. The Fund agrees to indemnify, defend
and hold Xxxxxxx Xxxxx Barney, its several officers and directors,
and any person who controls Xxxxxxx Xxxxx Xxxxxx 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 Xxxxxxx Xxxxx Barney, its officers and directors,
or any such controlling person, may incur under the 1933 Act, the
1940 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 thereof not misleading;
provided, however, that the Fund's agreement to indemnify Xxxxxxx
Xxxxx Xxxxxx, its 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 Xxxxxxx Xxxxx Barney or its
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 Xxxxxxx Xxxxx Xxxxxx pursuant to paragraph 2.2
of this Agreement; and further provided that the Fund's agreement
to indemnify Xxxxxxx Xxxxx Barney 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 Xxxxxxx Xxxxx Xxxxxx would otherwise
be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of
Xxxxxxx Xxxxx Xxxxxx'x reckless disregard of its obligations and
duties under this Agreement. The Fund's agreement to indemnify
Xxxxxxx Xxxxx Barney, its officers and directors, and any such
controlling person, as aforesaid, is expressly conditioned upon
the Fund's being notified of any action brought against Xxxxxxx
Xxxxx Xxxxxx, its 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 and approved by Xxxxxxx Xxxxx Barney. In the event
the Fund elects to assume the defense of any such suit and retains
counsel of good standing approved by Xxxxxxx Xxxxx Xxxxxx, 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, or
if Xxxxxxx Xxxxx Barney does not approve of counsel chosen by the
Fund, the Fund will reimburse Xxxxxxx Xxxxx Xxxxxx, its 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 Xxxxxxx Xxxxx Barney 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 Xxxxxxx Xxxxx Xxxxxx, its
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 Xxxxxxx Xxxxx Barney's
benefit, to the benefit of its several officers and directors, and
their respective estates, and to the benefit of the controlling
persons and their successors. The Fund agrees to notify Xxxxxxx
Xxxxx Xxxxxx promptly of the commencement of any litigation or
proceedings against the Fund or any of its officers or Directors
in connection with the issuance and sale of any of the Fund's
Shares.
4.2 Xxxxxxx Xxxxx Barney agrees to indemnify, defend
and hold the Fund, its several officers and Directors, 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 Directors or any such controlling person may incur
under the 1933 Act, the 1940 Act or under common law or otherwise,
but only to the extent that such liability or expense incurred by
the Fund, its officers or Directors, or such controlling person
resulting from such claims or demands shall arise out of or be
based upon any untrue, or alleged untrue, statement of a material
fact contained in information furnished in writing by Xxxxxxx
Xxxxx Xxxxxx 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 Xxxxxxx Xxxxx Barney to
the Fund and required to be stated in such answers or necessary to
make such information not misleading. Xxxxxxx Xxxxx Xxxxxx'x
agreement to indemnify the Fund, its officers or Directors, and
any such controlling person, as aforesaid, is expressly
conditioned upon Xxxxxxx Xxxxx Barney being notified of any action
brought against the Fund, its officers or Directors, or any such
controlling person, such notification to be given by letter or
telegram addressed to Xxxxxxx Xxxxx Xxxxxx at its principal office
in New York, New York and sent to Xxxxxxx Xxxxx Barney by the
person against whom such action is brought, within ten days after
the summons or other first legal process shall have been served.
Xxxxxxx Xxxxx Xxxxxx shall have the right to control the defense
of such action, with counsel of its own choosing, satisfactory to
the Fund, if such action is based solely upon such alleged
misstatement or omission on Xxxxxxx Xxxxx Barney's part, and in
any other event the Fund, its officers or Directors or such
controlling person shall each have the right to participate in the
defense or preparation of the defense of any such action. The
failure so to notify Xxxxxxx Xxxxx Xxxxxx of any such action shall
not relieve Xxxxxxx Xxxxx Barney from any liability that Xxxxxxx
Xxxxx Xxxxxx may have to the Fund, its officers or Directors, 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 Xxxxxxx Xxxxx Barney's indemnity
agreement contained in this paragraph 4.2. Xxxxxxx Xxxxx Xxxxxx
agrees to notify the Fund promptly of the commencement of any
litigation or proceedings against Xxxxxxx Xxxxx Barney or any of
its officers or directors in connection with the issuance and sale
of any of the Fund's Shares.
4.3 In case any action shall be brought against any
indemnified party under paragraph 4.1 or 4.2, and it shall notify
the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to
the extent that it shall wish to do so, to assume the defense
thereof with counsel satisfactory to such indemnified party. If
the indemnifying party opts to assume the defense of such action,
the indemnifying party will not be liable to the indemnified party
for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other
than (a) reasonable costs of investigation or the furnishing of
documents or witnesses and (b) all reasonable fees and expenses of
separate counsel to such indemnified party if (i) the indemnifying
party and the indemnified party shall have agreed to the retention
of such counsel or (ii) the indemnified party shall have concluded
reasonably that representation of the indemnifying party and the
indemnified party by the same counsel would be inappropriate due
to actual or potential differing interests between them in the
conduct of the defense of such action.
5. Effectiveness of Registration
None of the Shares shall be offered by either Xxxxxxx Xxxxx
Xxxxxx or the Fund under any of the provisions of this Agreement
and no orders for the purchase or sale of the 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
provision 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, 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 Corrected
Restated Articles of Incorporation dated September 21, 1992, as
amended from time to time.
6. Notice to Xxxxxxx Xxxxx Barney
The Fund agrees to advise Xxxxxxx Xxxxx Xxxxxx 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 any
registration statement, prospectus or
statement of additional information which
may from time to time be filed with the
SEC.
7. Term of the Agreement
This Agreement shall become effective as of the [date], and
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 outstanding Shares, provided that in either event
the continuance is also approved by a majority of the Board 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 60 days' notice by the Fund's
Board, by vote of the holders of a majority of the Shares, or on
90 days' notice by Xxxxxxx Xxxxx Barney. This Agreement will also
terminate automatically in the event of its assignment (as defined
in the 1940 Act).
8. Miscellaneous
The Fund recognizes that directors, officers and employees
of Xxxxxxx Xxxxx Xxxxxx may from time to time serve as directors,
trustees, officers and employees of corporations and business
trust (including other investment companies) and that such other
corporations and trusts may include the name "Xxxxxxx Xxxxx Xxxxxx
Xxxxxxxx" as part of their name, and that Xxxxxxx Xxxxx Barney or
its affiliates may enter into distribution or other agreements
with such other corporations and trusts. If Xxxxxxx Xxxxx Xxxxxx
ceases to act as the distributor of the Shares, the Fund agrees
that, at Xxxxxxx Xxxxx Barney's request, the Fund's license to use
the words "Xxxxxxx Xxxxx Xxxxxx" will terminate and that the Fund
will take all necessary action to change the name of the Fund to a
name not including the words "Xxxxxxx Xxxxx Barney."
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
of this Agreement.
Very truly yours,
[FUND NAME]
By:
__________________
________
Title
Accepted:
XXXXXXX XXXXX XXXXXX INC.
By: __________________________
Authorized Officer
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