EX-99.6
DISTRIBUTION AGREEMENT
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AGREEMENT made this 31st day of December, 1986 between
XXXXXXX XXXXX RETIRENENT SERIES TRUST, a trust organized under
the laws of Massachusetts (the "Trust"), and XXXXXXX XXXXX
FUNDS DISTRIBUTOR, INC., a Delaware corporation (the "Dis-
tributor");
W I T N E S S E T H:
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WHEREAS, the Trust is registered under the Investment
company Act of 1940, as amended (the "Investment Company
Act"), as a diversified opon-end investment company and it
is affirmatively in the interest of the Trust to offer its
shares for sale in a continuous offering; and
WHEREAS, the Trust is authorized to establish separate
series ("Series"), each of which will offer a separate class
of shares of beneficial interest, par value $.10 per share
collectively referred to as "shares"), to selected groups
of purchasers; and
WHEREAS, the Distributor is a securities firm engaged
in the business of selling shares of investment companies
either directly to investors or through other securities
dealers; and
WHEREAS, the Trust and the Distributor wish to enter
into an agreement with each other with respect to the con-
tinuous offering of the shares of the various Series, as
the same are organized from time to time, each offering to
commence after the effectiveness of the registration state-
ment covering the shares of a particular Series filed pur-
suant to the Securities Act of 1933, as amended (the "Secu-
rities Act
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Trust
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hereby appoints the Distributor as the exclusive distributor
and representative of the Trust to sell shares to the selected
groups of investors specified as eligible investors in the
currently effective prospectus (the "Prospectus") relating
to the shares of each Series which may be established by the
Trust and the Distributor hereby accents such appointment.
The Trust during the term of this Agreement shall sell its
shares to the Distributor upon the terms and conditions set
forth below.
Section 2. Exclusive Nature of Duties. The Distribu-
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tor shall be the exclusive representative of the Trust to
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act as principal underwriter and distributor, except that
such exclusive rights shall not apply to shares issued by
the Trust pursuan to reinvestments of dividends and capital
gains distributions.
Section 3. Purchase of Shares from the Trust.
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(a) The Distributor shall have the right to buy from
the Trust the shares needed, but not more than the shares
needed (except for clerical errors in transmission to fill
unconditional orders for shares of the Trust placed With
the Distributor by investors or securities dealers. The
price which the Distributor shall pay for the shares so
purchased from the Trust shall be the net asset value, de-
termined as get forth in Section 3(c) hereof, used in deter-
mining public offering price described below on which such
orders were based..
(b) The shares are to be resold by the Distributor to
investors at the public offering price, as set forth in Sec-
tion 3(c) hereof, or to securities dealers having agreements
with the Distributor union the terms and conditions set forth
in Section 7 hereof.
(c) The public offering price of the shares of any
Series, i.e., the price per share at which the Distributor
may sell shares to the public, shall be the public offering
price as set forth in the Prospectus relating to such shares,
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which shall be the net asset value thereof, as determined in
accordance with the desciption thereof contained in the
Prospectus relating to that Series, plus any sales charge
which may be approved by the Trustees of the Trust.
(d) The Trust, or any agent of the Trust designated
in writing by it, shall be promptly advised of all purchase
orders for shares received by the Distributor. Procedures
may be established by the Trust and the Distributor whereby
purchase orders for shares of any Series are presented
directly to the Trust or an agent designated by the Trust
upon the condition that in such cases it shall be deemed
that the sale of the shares to be purchased is made pursuant
to Section 3.hereof. Any order may be rejected by the Trust
or the Distributor, provided, however, that neither will
arbitrarily or without reasonable cause refuse to accept or
confirm orders for the purchase of shares. The Trust (or
its agent) will confirm orders upon the their receipt, or in
accordance with any exemptive order of the Securities and
Exchange Commission, and will make appropriate book entries
pursuant to the instructions of the Distributor. Purchase
orders are effective when Federal Funds become available to
the Trust. The Distributor agrees to cause such payment and
such instructions to be delivered promptly to the Trust (or
its agent).
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Section 4. Redemption or Repurchase of Shares by the
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Trust.
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(a) Outstanding shares may be tendered !or redemption
or repurchase in accordance with the Prospectus relating to
such shares, and the Trust shall redeem or repurchase the
shares so tendered in accordance with its obligations and
rights as set forth in its Declaration of Trust, as amended
from time to time, and in accordance with the applicable
provisions contained in the Prospectus relating to such
shares. The Trust shall pay the total amount of the redemp-
tion price as defined in the above paragraph pursuant to the
instructions of the Distributor and in accordance with the
terms set forth in the Prospect as relating to the shares
being redeemed.
(b) The Trust reserves the right to reject any order
for repurchase through a securities dealer, but the right
to redeem shares, or to receive payment with respect to any
such redemption, upon the presentation of properly submitted
redemption request in accordance with the procedures set
forth in the Prospectus relating to such shares, may only be
suspended in accordance with the provisions of the invest-
ment Company Act.
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Section 5. Duties of the Trust.
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(a) The Trust shall furnish to the Distributor copies
of all information, financial statements and other documents
which the Distributor may reasonably request for use in con-
nection with the distribution of shares of the Trust, and
this shall include one certified copy, upon request by the
Distributor, of all financial statements of each Series pro-
pared for the Trust by independent public accountants. The
Trust shall make available to the Distributor such number of
copies of the Prospectus for each Series as the Distributor
shall reasonably request.
(b) The Trust shall take, from time to time, all
necessary action to register shares of each Series under the
Securities Act to the end that there will be available or
sale such number of shares as the Distributor may reasonably
be expected to sell.
(c) The Trust shall use its best efforts to quality
and maintain the qualification of an appropriate number of
shares of each Series for sale under the securities laws of
such states as the Distributor and the Trust may approve.
Any such qualification may be withheld, terminated or with-
drawn by the Trust at any time in its discretion. As pro-
vided in Section 8(c) hereof, the expense of qualification
and maintenance of qualification shall be borne by the
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Trust. The Distributor shall furnish such information and
other material relating to its affairs and activities as may
be required by the Trust in connection with such qualifica-
tions.
(d) The Trust will furnish to the Distributor, in
reasonable quantities upon request by the Distributor,
copies of annual and interim reports of each Series.
Section 6. Duties of the Distributor.
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(a) The Distributor shall devote reasonable time and
effort to effect sales of shares of the Trust, but shall
not be obligated to sell any specific number of shares.
The services of the Distributor hereunder are not to be
deemed exclusive and nothing herein contained shall prevent
the Distributor from entering into distribution arrangements
with other investment cmpanies so long as the performance
of its obligations hereunder is not impaired thereby.
(b) In selling the shares of the Trust, the Distributor
shall use its best efforts in all respects duly to conform
with the requirements of all federal and state laws and reg-
ulations and the regulations of the National Association of
Securities Dealers, Inc. (the "NASD") relating to the sale
of such securities. Neither the Distributor nor any other
person is authorized by the Trust to give any information
or to make any representations, other than those contained
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in the Prospectus for each Series or any sales literature
specifically approved by the Trust for use with respect to
a particular Series.
(c) The Distributor shall adopt and follow procedures,
as approved by the Trust, for the confirmation of salts to
investors and selected dealers, the collection of amounts
payable by investors on such sales, and the cancellation of
unsettled transactions, as may be necessary to comply with
the requirements of the NASD, as such requirements may from
time to time exist.
Section 7. Selected Dealers Agreements.
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(a) The Distributor shall have the right to enter into
selected dealers agreements with securities dealers of its
choice ("selected dealers") for the sale of shares; provided,
however, that the form of selected dealers agreement shall
be approved by the Trust Shares sold to selected dealers
shall be for resale by such dealers only in accordance with
the provisions of the Prospectus relating to such shares.
A form of selected dealer agreement for the first Series of
the Trust, designated "Xxxxxxx Xxxxx Retirement Reserves
Money Fund", is appended hereto as Exhibit A.
(b) Within the United States, the Distributor shall
offer and sell shares only to such selected dealers as are
members in good standing of the NASD.
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Section 8. Payment of Expenses.
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(a) The Trust shall bear all of its costs and expenses,
including fees and disbursements of its counsel and auditors,
in connection with the preparation and filing of any re-
quired registration statements and prospectuses under the
Investment Company Act, the Securities Act, and all amend-
ments and supplements thereto, and the expense of preparing,
printing, mailing and otherwise distributing prospectuses,
annual or interim reports and proxy materials to its share-
holders.
(b) After the prospectuses and annual and interim re-
ports have been prepared, set in type and mailed to share-
holders, the Distributor shall bear the costs and expenses
of printing and distributing any copies thereof which are
used in connection with the offering of the shares. The
Distributor shall bear the costs and expenses of preparing,
printing and distributing any supplementary sales literature
used by the Distributor in connection with the offering of
the shares for sale. Any expenses of advertising incurred
in connection with such offering will also be the obligation
of the Distributor.
(c) The Trust shall bear the cost and expenses of
qualification of the shares for sale, and, if necessary or
advisable in connection therewith, of qualifying the Trust
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as a broker or dealer, in such states of the United States
or other jurisdictions as shall be selected by the Trust
and the Distributor, and the cost and expenses payable to
each such state for continuing qualification therein until
the Trust decides to discontinue such qualification.
Section 9. Indemnification.
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(a) The Trust shall indemnify and hold harmless the
Distributor and each person, if any, who controls the Dis-
tributor against any loss, liability, claim, damage or
expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damage or ex-
pense and reasonable counsel fees incurred in connection
therewith), arising by reason of any person acquiring any
shares, which may be base, upon the Securities Act, or an
any other statute or at common law, on the ground that
the registration statement or related Prospectus of any
Series, as from time to time amended and supplemented, or
an annual or interim report to shareholders Co. any Series,
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 mis-
leading, unless such statement or commission was made in
reliance upon, and in conformity with, infomation furnished
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to the Trust in connection therewith by or on behalf of the
Distributor; provided, however, that in no case (i) is the
indemnity of the Trust in favor of the Distributor and any
such controlling persons to be deemed to protect such Dis-
tributor or any such controlling persons thereof against any
liability to the Trust or its security holders to which the
Distributor or any such controlling persons would otherwise
be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of its duties or by
reason of reckless disregard of its obligations and duties
under this Agreement, or (ii) is the Trust to be liable
under its indemnity agreement contained in this paragraph
with respect. to any claim made against the Distributor or
any such controlling persons, unless the Distributor or such
controlling persons, as the case may be, shall have notified
the Trust in writing within a reasonable time after the
summon or other first legal process giving in information of
the nature of the claim shall have been served upon the
Distributor or such controlling persons (or alter the Dis-
tributor or such controlling persons shall have received
notice of such se--vice on any designated agent), but failure
to notify the Trust of any such claim shall not relieve it
from any liability which it may have to the person against
whom such action is brought otherwise than on account of its
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indemnity agreement contained in this paragraph. The Trust
will 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 Trust
elects to assume the defense, such defense shall be con-
ducted by counsel chosen by it and satisfactory to the
Distributor or such 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 retain such counsel,
the Distributor or such 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, it will reimburse the Distributor or such con-
trolling person or persons, defendant or defendants in the
suit, for the reasonable fees and expenses of any counsel-
retained by them. The Trust shall promptly notify the
Distributor of the commencement of any litigation or pro-
ceedings against it or any of its officers or Trustees in
connection wit.% the issuance or sale of any of the shares.
(b) The Distributor shall indemnify and hold harmless
the Trust and each of its Trustees and officers an each
person, if any, who controls the Trust against any loss,
liability, claim, damage, or expense described in the fore-
going indemnity contained in subsection (a) of this Section,
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but only with respect to statements or commissions made in
reliance upon, and in conformity with, information furnished
to the Trust in writing by or on behalf of the Distributor
for use in connection with the registration statement or re-
lated Prospectus of any Series, as from time to time amended,
or the annual or interim reports to shareholders of any
Series. in case any action shall be brought against the
Trust or any person so indemnified, in respect of which
indemnity may be sought against the Distributor the Dis-
tributor shall have the rights and duties given to the
Trust, and the Trust and each person so indemnified shall
have the rights and duties given to the Distributor by the
provisions of subsection (a) of this Section 9.
Section 10. Duration and Termination of this Agreement.
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This Agreement shall become effective as of the date first
above written and shall remain in force until May 31, 1987
and thereafter but only so long as such continuance is spe-
cifically approved at least annually by (i) the Trustees of
the Trust, or by the vote of a majority of the outstanding
voting securities of the Trust, and (ii) a majority of those
Trustees who are not parties to this Agreement or interestsed
persons of any such party cast in person at a meeting called
for the purpose of voting on such approval.
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This Agreement may be terminated at any time, without
the payment of any penalty, by the Trustees of the Trust or
by vote of a majority of the outstanding voting securities
of the Trust, or by the Distributor, on sixty days written
notice to the other party. This Agreement shall automati-
cally terminate in the event of its assignment.
Section 11. Amendments. This Agreement may be amended
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by the parties hereto only if such amendment is specifically
approved (i) by the Trustees of the Trust, or by the vote of
a majority of outstanding voting securities of the Trust, and
(ii) by a majority of those Trustees who are not parties to
this Agreement or interested persons of any such party, which
vote must becasuse in person at a meeting called for the pur-
pose of voting on such approval.
Section 12. Definitions of Certain Terms. The terms
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"vote of a majority of the outstanding voting securities",
"assignment", "interested person" and "affiliated person",
when used in this Agreement, shall have the respective
meanings specified in the investment Company Act.
Section 13. Governing Law. This Agreement shall be
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construed in accordance with the laws of the State of New
York and the applicable provisions of the Investment Company
Act. To the extent the applicable law of the State of New
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York, or any of the provisions herein, conflict with the
applicable provisions of the Investment Company Act, the
latter shall control.
Section 14. Personal Liability. The Declaration of
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Trust establishing Xxxxxxx Xxxxx Retirement Series Trust,
dated July 15, 1986, a copy of which, together with all
amendments thereto (the "Declaration"), is on file in the
office of the Secretary of the Commonwealth of Massachusetts,
provides that the name "Xxxxxxx Xxxxx Retirement Series
Trust" refers to the Trustees under the Declaration collec-
tively as Trustees, but not as individuals or personally;
and no Trustee, shareholder, officer, employee or agent of
Xxxxxxx Xxxxx Retirement Series Trust shall be held to any
personal liability, nor shall resort be had to their private
property for the satisfaction of any obligation or claim or
otherwise in connection with the affairs of said Xxxxxxx
Xxxxx Retirement Series Trust, but the Trust Estate only
shall be liable.
IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Agreement as of the day and year first
above written.
XXXXXXX XXXXX RETIREMENT SERIES TRUST
By___________________________________
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By___________________________________
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Exhibit A
XXXXXXX XXXXX RETIREMENT RESERVES MONEY FUND
Xxxxxxx Xxxxx Retirement Series Trust
SHARES OF BENEFICIAL INTEREST
SELECTED DEALER AGREEMENT
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, 198
Xxxxxxx Lynch, Pierce, Xxxxxx Xxxxx
Incorporated
One Liberty Plaza
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentleman:
Xxxxxxx Xxxxx Funds Distributor, Inc. (the "Distributor")
has an agreement with Xxxxxxx Xxxxx Retirement Series Trust, a
Massachusetts business trust (the "Trust"), pursuant to which
it acts as the distributor for the sale of shares of benefi-
cial interest, par value $.10 per share (the "shares"), of
the Xxxxxxx Xxxxx Retirement Reserves Money Fund (the "Money
Market Fund"), a series of the Trust, and as such has the
right to distribute shares for resale. The Trust is a
diversified open-end investment company registered under the
Investment Company Act of 1940, as amended, and the shares
being offered are registered under the Securities Act of
1933, as amended. You have received a copy of the Distribu-
tion Agreement between ourselves and the Trust and reference
is made herein to certain provisions of such Distribution
Agreement. The team "Prospectus" as used herein refers to
the prospectus on file with the Securities and Exchange
Commission which is part of the most recent effective regis-
tration statement relating to the shares filed pursuant to
the Securities Act of 1933, as amended. As principal, we
offer to sell to you, as the exclusive selected dealer,
shares of the Money Market Fund upon the following terms and
conditions:
1. In all sales of these shares to the public you
shall act as dealer for your own account, and in no trans-
action shall you have any authority to act as agent for the
Trust or for us.
2. Shares may be offered by you only to the eligible
purchasers described in the Prospectus. Orders received
from you will be accepted through us only at the public
offering price applicable to each order, as set forth in the
Prospectus. The procedure relating to the handling of orders
shall be subject to Section 4 hereof and instructions which
we or the Trust shall forward to you from time to time. All
orders are subject to acceptance or rejection by the Distri-
butor or the Trust in the sole discretion of either. Except
as otherwise set forth in the Prospectus, there are no
minimum initial or subsequent purchase requirements.
3. You agree that you will not place orders for any
shares except in accordance with the procedures described in
the Prospectus. You agree that you will not offer or sell
any of the shares except under circumstances that will
result in compliance with the applicable Federal and state
securities laws and that in connection with sales and offers
to sell shares you will furnish to each person to whom any
such sale or offer is made a copy of the Prospectus (as then
amended or supplemented) and will not furnish to any person
any information relating to the shares which is inconsistent
in any respect with the information contained in the Prospec-
tus (as then amended or supplemented) or cause any advertise-
ment to be published in any newspaper or posted in any
public place without our consent and the consent of the
Trust.
4. As a selected dealer, you are hereby authorized
(i) to place orders directly with the Trust for shares to
be sold by us to you subject to the applicable terms and
conditions governing the placement of orders by us set
forth in Section 3 of the Distribution Agreement, and (ii)
to tender shares directly to the Trust or its agent for re-
demption subject to the applicable terms and conditions set
forth in Section 4 of the Distribution Agreement and the
Prospectus.
5. You shall not withhold placing orders received
from your customers so as to profit yourself as a result of
such withholding: e.g., by a change in the "net asset value"
from that used in determining the offering price to you
customers.
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6. No person is authorized to make any representa-
tions concerning shares except those contained in the. Pro-
spectus and in such printed information subsequently issued
by us or the Trust as information supplemental to such
Prospectus. In purchasing shares through us you shall rely
solely on the representations contained in the Prospectus
and supplemental information above mentioned. Any printed
information which we furnish you other than the Trust's
Prospectus, periodic reports and proxy solicitation material
are our sole responsibility and not the responsibility of
the Trust, and you agree that the Trust shall have no lia-
bility or responsibility to you in these respects unless
epressly assumed in connection therewith.
7. You agree to deliver to any purchasers whose
shares you are holding as record holder copies of the
Prospectus, as amended from time to time, and the annual
and interim reports and proxy solicitation materials re-
lating to the Trust. You further agree to make reasonable
efforts to endeavor to obtain proxies from such purchasers
whose shares you are holding as record holder. Additional
copies of the Prospectus, annual or interim reports and
proxy solicitation materials of the Trust will be supplied
to you in reasonable quantities upon request.
8. We reserve the right in our discretion, without
notice, to suspend sales or withdraw the offering of shares
entirely. Each party hereto has the right to cancel this
agreement upon notice to the other party.
9. We shall have full authority to take such action'
as we may deem advisable in respect of all matters pertaining
to the continuous offering. we shall be under no liability
to you except for lack of good faith and for obligations ex-
prtssly assumed by us herein. Nothing contained in this
paragraph is intended to operate as, and the provisions of
this paragraph shall not in any way whatsoever constitute,
a waiver by you of compliance with any provisions of the
Securities Act of 1933, as amended, or of the rules and
regulations of the Securities and Exchange Commission is-
sued thereunder.
10. You represent that you are a member of the National
Association of Securities Dealers, Inc. and, with respect to
any sales in the United States, we both hereby agree to abide
by the Rules of Fair Practice of such Association.
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11. Upon application to us, we will inform you as to
the states or other jurisdictions in which we believe
the
shares have been qualified for sale under, or are exempt
from the requirements of, the respective securities laws
of such states, but we assume no responsibility or obli-
gation as to your right to sell shares in any jurisdiction.
We will file with the Department of State in New York a
Further State Notice with respect to the shares, if neces-
sary.
12. We shall have full authority to act upon your
express instructions to effect transactions in shares through
us an behalf of your customers under the terms and conditions
provided in the Prospectus. You agree to hold us free and
harmless as a result of action taken with respect to author-
ized repurchases or exchanges upon your express instructions.
13. All communications to us should be sent to one
Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any
notice to you shall be duly given if mailed or telegraphed
to you at the same address.
XXXXXXX XXXXX FUNDS DISTRIBUT0R, INC.
By /s/_____________________________
(Authorized Signature)
Accepted:
XXXXXXX XXXXX, PIERCE, FENNER, XXXXX
INCORPORATION
By___________________________
Date________________
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The Declaration of Trust establishing Xxxxxxx Xxxxx
Retirement Series Trust, dated July 15, 1986, a copy of which,
together with all amendments thereto (the "Declaration"), is on
file in the office of the Secretary of the Commonwealth of
Massachusetts, provides that the name "Xxxxxxx Xxxxx Retirement
Series Trust" refers to the Trustees under the Declaration.
collectively as Trustees, but not as individuals or personally;
and no Trustee, shareholder, officer, employee or agent of
Xxxxxxx Xxxxx Retirement Series Trust shall be held to any
personal liability, nor shall resort be had to their private
property for the satisfaction of any obligation or claim or
otherwise in connection with the affairs of said Xxxxxxx Xxxxx
Retirement Series Trust but the Trust Estate only shall be
liable.
