XXXXXXXXX FUNDS
000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000-0000
Franklin Xxxxxxxxx Distributors, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000-0000
Re: Distribution Agreement
Gentlemen:
We, Xxxxxxxxx Funds (referred to herein as the "Trust"), comprised of two
series (Xxxxxxxxx Foreign Fund and Xxxxxxxxx World Fund), (each a "Fund" or
collectively as the "Funds") are a Delaware statutory trust operating as an
open-end management investment company or "mutual fund", which is registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), and whose
shares are registered under the Securities Act of 1933 as amended (the "1933
Act"). We desire to issue one or more series or classes of our authorized but
unissued shares of capital stock or beneficial interest (the "Shares") to
authorized persons in accordance with applicable Federal and State securities
laws. The Trust's Shares will be made available in one or more separate series,
each of which have one or more classes.
You have informed us that your company is registered as a broker-dealer
under the provisions of the Securities Exchange Act of 1934 and that your
company is a member of the Financial Industry Regulatory Authority. You have
indicated your desire to act as the exclusive selling agent and distributor for
the Shares. We have been authorized to execute and deliver this Distribution
Agreement ("Agreement") to you by a resolution of our Board of Trustees
("Board") passed at a meeting at which a majority of our Board members,
including a majority who are not otherwise interested persons of the Trust and
who are not interested persons of our investment adviser, its related
organizations or with you or your related organizations, were present and voted
in favor of the said resolution approving this Agreement.
1. APPOINTMENT OF UNDERWRITER. Upon the execution of this Agreement and in
consideration of the agreements on your part herein expressed and upon the terms
and conditions set forth herein, we hereby appoint you as the exclusive sales
agent for our Shares (except for sales made directly by the Funds without sales
charge) and agree that we will deliver such Shares as you may sell. You agree to
use your best efforts to promote the sale of Shares, but are not obligated to
sell any specific number of Shares.
However, the Trust and each series retain the right to make direct sales of
its Shares without sales charges consistent with the terms of the then current
prospectus and statement of additional information and applicable law, and to
engage in other legally authorized transactions in its Shares which do not
involve the sale of Shares to the general public. Such other transactions may
include, without limitation, transactions between the Trust or any series or
class and its shareholders only, transactions involving the reorganization of
the Trust or any series, and transactions involving the merger or combination of
the Trust or any series with another corporation or trust.
2. INDEPENDENT CONTRACTOR. You will undertake and discharge your
obligations hereunder as an independent contractor and shall have no authority
or power to obligate or bind us by your actions, conduct or contracts except
that you are authorized to accept orders for the purchase or repurchase of
Shares as our agent. You may appoint sub-agents or distribute through dealers or
otherwise as you may determine from time to time, but this Agreement shall not
be construed as authorizing any dealer or other person to accept orders for sale
or repurchase on our behalf or otherwise act as our agent for any purpose. You
may allow such sub-agents or dealers such commissions or discounts not exceeding
the total sales commission as you shall deem advisable so long as any such
commissions or discounts are set forth in our current prospectus to the extent
required by the applicable Federal and State securities laws.
3. OFFERING PRICE. Shares shall be offered for sale at a price equivalent
to their respective net asset value (as specified in the Fund's prospectus). On
each business day on which the New York Stock Exchange is open for business, we
will furnish you with the net asset value of the Shares of each available series
and class which shall be determined in accordance with our then effective
prospectus. All Shares will be sold in the manner set forth in our then
effective prospectus and statement of additional information, and in compliance
with applicable law.
4. COMPENSATION.
A. SALES COMMISSION. You shall be entitled to charge a sales
commission on the sale or redemption, as appropriate, of each series and class
of each Fund's Shares in the amount of any initial, deferred or contingent
deferred sales charge as set forth in our then effective prospectus. You may
allow any sub-agents or dealers such commissions or discounts from and not
exceeding the total sales commission as you shall deem advisable, so long as any
such commissions or discounts are set forth in our current prospectus to the
extent required by the applicable Federal and State securities laws. You may
also make payments to sub-agents or dealers from your own resources, subject to
the following conditions: (a) any such payments shall not create any obligation
for or recourse against the Trust or any series or class, and (b) the terms and
conditions of any such payments are consistent with our prospectus and
applicable federal and state securities laws and are disclosed in our prospectus
or statement of additional information to the extent such laws may require.
B. DISTRIBUTION PLANS. You shall also be entitled to compensation for
your services as provided in any Distribution Plan adopted as to any series and
class of any Trust's Shares pursuant to Rule 12b-1 under the 1940 Act.
The compensation provided in the Class B Distribution Plan
applicable to Class B Shares (the "Class B Plan") is divided into a distribution
fee and a service fee, each of which fees is in compensation for different
services to be rendered to the Trust. Subject to the termination provisions in
the Class B Plan, the distribution fee with respect to the sale of a Class B
Share shall be earned when such Class B Share is sold and shall be payable from
time to time as provided in the Class B Plan. The distribution fee payable to
you as provided in the Class B Plan shall be payable without offset, defense or
counterclaim (it being understood by the parties hereto that nothing in this
sentence shall be deemed a waiver by the Trust of any claim the Trust may have
against you). You may direct the Trust to cause our custodian to pay such
distribution fee to Lighting Finance Company Limited ("LFL") or other persons
providing funds to you to cover expenses referred to in Section 2(a) of the
Class B Plan and to cause our custodian to pay the service fee to you to cover
expenses referred to in Section 2(b) of the Class B Plan.
We understand that you intend to assign your right to receive
certain distribution fees with respect to Class B Shares to LFL in exchange for
funds that you will use to cover expenses referred to in Section 2(a) of the
Class B Plan. In recognition that we will benefit from your arrangement with
LFL, we agree that, in addition to the provisions of Section 7(iii) of the Class
B Plan, we will not pay to any person or entity, other than LFL, any such
assigned distribution fees related to Class B Shares sold by you prior to the
termination of either the Agreement or the Class B Plan. We agree that the
preceding sentence shall survive termination of the Agreement.
C. With respect to the sales commission on the redemption of Shares of
each series and class of Trust as provided in Subsection 4.A. above, we will
cause our shareholder services agent (the "Transfer Agent") to withhold from
redemption proceeds payable to holders of the Shares all contingent deferred
sales charges properly payable by such holders in accordance with the terms of
our then current prospectuses and statement of additional information (each such
sales charge, a "CDSC"). Upon receipt of an order for redemption, the Transfer
Agent shall direct our custodian to transfer such redemption proceeds to a
general trust account. We shall then cause the Transfer Agent to pay over to you
or your assigns from the general trust account such CDSCs properly payable by
such holders as promptly as possible after the settlement date for each such
redemption of Shares. CDSCs shall be payable without offset, defense or
counterclaim (it being understood that nothing in this sentence shall be deemed
a waiver by us of any claim we may have against you.) You may direct that the
CDSCs payable to you be paid to any other person.
5. TERMS AND CONDITIONS OF SALES. Shares shall be offered for sale only in
those jurisdictions where they have been properly registered or are exempt from
registration, and only to those groups of people which the Board may from time
to time determine to be eligible to purchase such shares.
6. ORDERS AND PAYMENT OF SHARES. Orders for shares shall be directed to the
Trust's shareholder services agent, for acceptance on behalf of the Trust. At or
prior to the time of delivery of any of our Shares you will pay or cause to be
paid to our Custodian or its successor, for our account, an amount in cash equal
to the net asset value of such Shares. In the event that you pay for Shares sold
by you prior to your receipt of payment from purchasers you are authorized to
reimburse yourself for the net asset value of such Shares when received by you.
7. PURCHASES FOR YOUR OWN ACCOUNT. You shall not purchase our Shares for
your own account for purposes of resale to the public, but you may purchase
Shares for your own investment account upon your written assurance that the
purchase is for investment purposes and that the Shares will not be resold
except through redemption by us.
8. SALE OF SHARES TO AFFILIATES. You may sell our Shares at net asset value
to certain of your and our affiliated persons pursuant to the applicable
provisions of the federal securities statutes and rules or regulations
thereunder (the "Rules and Regulations"), including Rule 22d-1 under the 1940
Act, as amended from time to time.
9. ALLOCATION OF EXPENSES. We will pay the expenses:
(a) Of the preparation of the audited and certified financial
statements of our Trust to be included in any Post-Effective
Amendments ("Amendments") to our Registration Statement under the
1933 Act or 1940 Act, including the prospectus and statement of
additional information included therein;
(b) Of the preparation, including legal fees, and printing of all
Amendments or supplements filed with the Securities and Exchange
Commission, including the copies of the prospectuses included in
the Amendments and the first 10 copies of the definitive
prospectuses or supplements thereto, other than those
necessitated by your (including your "Parent's") activities or
Rules and Regulations related to your activities where such
Amendments or supplements result in expenses which we would not
otherwise have incurred;
(c) Of the preparation, printing and distribution of any reports or
communications which we send to our existing shareholders; and
(d) Of filing and other fees to Federal and State securities
regulatory authorities necessary to continue offering our Shares.
You will pay the expenses:
(a) Of printing the copies of the prospectuses and any supplements
thereto and statement of additional information which are
necessary to continue to offer our Shares;
(b) Of the preparation, excluding legal fees, and printing of all
Amendments and supplements to our prospectuses and statement of
additional information if the Amendment or supplement arises from
your (including your "Parent's") activities or Rules and
Regulations related to your activities and those expenses would
not otherwise have been incurred by us;
(c) Of printing additional copies, for use by you as sales literature,
of reports or other communications which we have prepared for
distribution to our existing shareholders; and
(d) Incurred by you in advertising, promoting and selling our Shares.
10. FURNISHING OF INFORMATION. We will furnish to you such information with
respect to each series and class of Shares, in such form and signed by such of
our officers as you may reasonably request, and we warrant that the statements
therein contained when so signed will be true and correct. We will also furnish
you with such information and will take such action as you may reasonably
request in order to qualify our Shares for sale to the public under the Blue Sky
Laws of jurisdictions in which you may wish to offer them. We will furnish you
with annual audited financial statements of our books and accounts certified by
independent public accountants, with semi-annual financial statements prepared
by us, and, from time to time, with such additional information regarding our
financial condition as you may reasonably request.
11. CONDUCT OF BUSINESS. Other than our currently effective prospectus, you
will not issue any sales material or statements except literature or advertising
which conforms to the requirements of Federal and State securities laws and
regulations and which have been filed, where necessary, with the appropriate
regulatory authorities. You will furnish us with copies of all such materials
prior to their use and no such material shall be published if we shall
reasonably and promptly object.
You shall comply with the applicable Federal and State laws and
regulations where our Shares are offered for sale and conduct your affairs with
us and with dealers, brokers or investors in accordance with the Rules of Fair
Practice of the National Association of Securities Dealers, Inc.
In the absence of willful misfeasance, bad faith or gross negligence
on your part, or of reckless disregard of your obligations hereunder, you shall
not be subject to liability for any act or omission in the course of, or
connected with, rendering services hereunder.
12. REDEMPTION OR REPURCHASE WITHIN SEVEN DAYS. If Share are tendered to us
for redemption or repurchase by us within seven business days after your
acceptance of the original purchase order for such Shares, you will immediately
refund to us the full sales commission (net of allowances to dealers or brokers)
allowed to you on the original sale, and will promptly, upon receipt thereof,
pay to us any refunds from dealers or brokers of the balance of sales
commissions reallowed by you. We shall notify you of such tender for redemption
within 10 days of the day on which notice of such tender for redemption is
received by us.
13. OTHER ACTIVITIES. Your services pursuant to this Agreement shall not be
deemed to be exclusive, and you may render similar services and act as an
underwriter, distributor or dealer for other investment companies in the
offering of their shares.
14. TERM OF AGREEMENT. This Agreement shall become effective on the date of
its execution, and shall remain in effect for a period of two (2) years. The
Agreement is renewable annually thereafter, with respect to the Trust or, if the
Trust has more than one series, with respect to each series, for successive
periods not to exceed one year (i) by a vote of (a) a majority of the
outstanding voting securities of the Trust or, if the Trust has more than one
series, with respect to each series, or (b) by a vote of the Board, and (ii) by
a vote of a majority of the members of the Board who are not parties to the
Agreement or interested persons of any parties to the Agreement (other than as
members of the Board), cast in person at a meeting called for the purpose of
voting on the Agreement.
This Agreement may at any time be terminated by the Trust or by any
series without the payment of any penalty, (i) either by vote of the Board or by
vote of a majority of the outstanding voting securities of the Trust or any
series, on 60 days' written notice to you; or (ii) by you on 60 days' written
notice to the Trust; and shall immediately terminate with respect to the Trust
and each series in the event of its assignment.
15. SUSPENSION OF SALES. We reserve the right at all times to suspend or
limit the public offering of the Shares upon two days' written notice to you.
16. MISCELLANEOUS. This Agreement shall be subject to the laws of the State
of California and shall be interpreted and construed to further promote the
operation of the Trust as an open-end investment company. This Agreement shall
supersede all Distribution Agreements and Amendments previously in effect
between the parties. As used herein the terms "Net Asset Value", "Offering
Price", "Investment Company", "Open-End Investment Company", "Assignment",
"Principal Underwriter", "Interested Person", "Parents", "Affiliated Person",
and "Majority of the Outstanding Voting Securities" shall have the meanings set
forth in the 1933 Act or the 1940 Act and the Rules and Regulations thereunder
and the term "Assignment" shall have the meaning as set forth in the 1940 Act
and the Rules and Regulations thereunder.
Nothing herein shall be deemed to protect you against any liability to
us or to our securities holders to which you would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of your duties hereunder, or by reason of your reckless disregard of your
obligations and duties hereunder.
If the foregoing meets with your approval, please acknowledge your
acceptance by signing each of the enclosed copies, whereupon this will become a
binding agreement as of the date set forth below.
Very truly yours,
XXXXXXXXX FUNDS
By:/s/XXXXX X. XXXX
----------------------------------
Xxxxx X. Xxxx
Vice President and Assistant Secretary
ACCEPTED:
FRANKLIN XXXXXXXXX DISTRIBUTORS, INC.
By:/s/XXXXX X. XXXXX
-----------------------------------
Xxxxx X. Xxxxx
President
Dated as of January 1, 2008
