XXXXXXX INTERNATIONAL FUND
DISTRIBUTION AGREEMENT
This Agreement, made as of the 7th day of February, 1995, between
XXXXXXX INTERNATIONAL FUND, a Delaware business trust, (the "Trust"), and
WORLDWIDE VALUE DISTRIBUTORS, INC., a Delaware corporation (the "Distributor").
WITNESSETH:
WHEREAS, the Trust proposes to engage in business as an open-end
management investment company and is registered as such under the Investment
Company Act of 1940 (the "1940 Act"), and it is in the interest of the Trust to
offer its shares for sale continuously; and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and has applied
for membership in the National Association of Securities Dealers, Inc. (the
"NASD"); and
WHEREAS, the Trust and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of of all classes of
shares of capital stock of the Trust (the "Shares"), to commence after the
effectiveness of the Trust's registration statement filed pursuant to the
Securities Act of 1933, as amended (the "1933 Act"), and the 1940 Act and after
the Distributor has become a member in good standing of the NASD.
NOW, THEREFORE, the parties agree as follows:
l. Appointment of Distributor. The Trust hereby appoints the
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Distributor as its agent to sell and to arrange for the sale of the Shares, on
the terms and for the period set forth in this Agreement, and the Distributor
hereby accepts such appointment and agrees to act hereunder directly and/or
through the Trust's transfer agent in the manner set forth in the Prospectus (as
defined below). It is understood and agreed that the services of the Distributor
hereunder are not exclusive, and the Distributor may act as principal
underwriter for the shares of any other registered investment company.
2. Services and Duties of the Distributor
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(a) The Distributor agrees to sell the Shares, as agent for the
Trust, from time to time during the term of this Agreement upon the
terms described in the Trust's Prospectus. As used in this Agreement,
the term "Prospectus" shall mean the prospectus (or prospectuses) and
statement of additional information included as part of the Trust's
Registration Statement, as such prospectus (or prospectuses) and
statement of additional information may be amended or supplemented from
time to time, and the term "Registration Statement" shall mean the
Registration Statement most recently filed from time to time by the
Trust with the Securities and Exchange Commission and effective under
the 1933 Act and the 1940 Act, as such Registration Statement is
amended by any amendments thereto at the time in effect. The
Distributor shall not be obligated to sell any certain number of
Shares.
(b) Upon effectiveness of this Agreement, the Distributor will
hold itself available to receive orders, satisfactory to the
Distributor, for the purchase of the Shares and will accept such orders
and will transmit such orders and funds received by it in payment for
such Shares as are so accepted to the Trust's transfer agent or
custodian, as appropriate, as promptly as practicable. Purchase orders
shall be deemed effective at the time and in the manner set forth in
the Prospectus. The Distributor shall not make any short sales of
Shares.
(c) The net asset value and offering price (or prices) of the
Shares shall be calculated as set forth in the Prospectus. The Trust
shall furnish the Distributor, with all possible promptness, an advice
of each computation of net asset value and offering price(s).
3. Duties of the Trust.
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(a) Maintenance of Federal Registration. The Trust shall, at
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its expense, take from time to time all necessary action and such
steps, including payment of the related filing fees, as may be
necessary to register and maintain registration of a sufficient number
of Shares under the 1933 Act. The Trust agrees to file from time to
time such amendments, reports and other documents as may be necessary
in order that there may be no untrue statement of a material fact in a
Registration Statement or Prospectus, or necessary in order that there
may be no omission to state a material fact in the Registration
Statement or Prospectus which omission would make the statements
therein misleading.
(b) Maintenance of "Blue Sky" Qualifications. The Trust shall, at
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its expense, use its best efforts to qualify and maintain the
qualification of an appropriate number of Shares for sale under the
securities laws of such states as the Distributor and the Trust may
approve, and, if necessary or appropriate in connection therewith, to
qualify and maintain the qualification of the Trust as a broker or
dealer in such states; provided that the Trust shall not be required to
amend its Declaration of Trust or By-Laws to comply with the laws of
any state, to maintain an office in any state, to change the terms of
the offering of the Shares in any state from the terms set forth in its
Prospectus, to qualify as a foreign corporation in any state or to
consent to service of process in any state other than with respect to
claims arising out of the offering and sale of the Shares. 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 qualifications.
(c) Copies of Reports and Prospectus. The Trust shall, at its
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expense, keep the Distributor fully informed with regard to its affairs
and in connection therewith shall furnish to the Distributor copies of
all information, financial statements and other papers which the
Distributor may reasonably request for use in connection with the
distribution of Shares, including such reasonable number of copies of
its Prospectus and annual and interim reports as the Distributor may
request and shall cooperate fully in the efforts of the Distributor to
sell and arrange for the sale of the Shares and in the performance of
the Distributor under this Agreement.
4. Conformity with Applicable Law and Rules. The Distributor agrees
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that in selling Shares hereunder it shall conform in all respects with the laws
of the United States and of any state in which Shares may be offered, and with
applicable rules and regulations of the NASD.
5. Independent Contractor. In performing its duties hereunder, the
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Distributor shall be an independent contractor and neither the Distributor, nor
any of its officers, directors, employees, or representatives is or shall be an
employee of the Trust in the performance of the Distributor's duties hereunder.
The Distributor shall be responsible for its own conduct and the employment,
control, and conduct of its agents and employees and for injury to such agents
or employees or to others through its agents or employees. The Distributor
assumes full responsibility for its agents and employees under applicable
statutes and agrees to pay all employee taxes thereunder.
6. Indemnification.
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(a) Indemnification of Trust. The Distributor agrees to indemnify
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and hold harmless the Trust and each of its present or former Trustees,
officers, employees and representatives and each person, if any, who
controls or previously controlled the Trust within the meaning of
Section l5 of the 1933 Act against any and all losses, liabilities,
damages, claims or expenses (including the reasonable costs of
investigating or defending any alleged loss, liability, damage, claims
or expense and reasonable legal counsel fees incurred in connection
therewith) to which the Trust or any such person may become subject
under the 1933 Act, under any other statute, at common law, or
otherwise, arising out of the acquisition of any Shares by any person
which (i) may be based upon any wrongful act by the Distributor or any
of the Distributor's directors, officers, employees or representatives,
or (ii) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement,
Prospectus, shareholder report or other information covering Shares
filed or made public by the Trust or any amendment thereof or
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading if such statement or
omission was made in reliance upon information furnished to the Trust
by the Distributor. In no case (i) is the Distributor's indemnity in
favor of the Trust, or any person indemnified to be deemed to protect
the Trust or such indemnified person against any liability to which the
Trust or such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of his
duties or by reason of his reckless disregard of his obligations and
duties under this Agreement or (ii) is the Distributor to be liable
under its indemnity agreement contained in this Paragraph with respect
to any claim made against the Trust or any person indemnified unless
the Trust or such person, as the case may be, shall have notified the
Distributor in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the
nature of the claim shall have been served upon the Trust or upon such
person (or after the Trust or such person shall have received notice of
such service on any designated agent). However, failure to notify the
Distributor of any such claim shall not relieve the Distributor from
any liability which the Distributor may have to the Trust or any person
against whom such action is brought otherwise than on account of the
Distributor's indemnity agreement contained in this Paragraph.
The Distributor shall be entitled to participate, at its own
expense, in the defense, or, if the Distributor so elects, to assume
the defense of any suit brought to enforce any such claim, but, if the
Distributor elects to assume the defense, such defense shall be
conducted by legal counsel chosen by the Distributor and satisfactory
to the Trust or to the persons indemnified pursuant to the foregoing
paragraph. In the event that the Distributor elects to assume the
defense of any such suit and retain such legal counsel, the Trust or
the persons indemnified pursuant to the foregoing paragraph, shall bear
the fees and expenses of any additional legal counsel retained by them.
If the Distributor does not elect to assume the defense of any such
suit, the Distributor will reimburse the Trust and the persons
indemnified pursuant to the foregoing paragraph for the reasonable fees
and expenses of any legal counsel retained by them. The Distributor
agrees to promptly notify the Trust of the commencement of any
litigation of proceedings against it or any of its officers, employees
or representatives in connection with the issue or sale of any Shares.
(b) Indemnification of the Distributor. The Trust agrees to
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indemnify and hold harmless the Distributor and each of its present or
former directors, officers, employees and representatives and each
person, if any, who controls the Distributor within the meaning of
Section 15 of the 1933 Act against any and all losses, liabilities,
damages, claims or expenses (including the reasonable costs of
investigating or defending any alleged loss, liability, damage, claim
or expense and reasonable legal counsel fees incurred in connection
therewith) to which the Distributor or any such person may become
subject under the 1933 Act, under any other statute, at common law, or
otherwise, arising out of the acquisition of any Shares by any person
which (i) may be based upon any wrongful act by the Trust or any of the
Trust's Trustees, officers, employees or representatives acting in such
capacities, or (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration
Statement, Prospectus, shareholder report or other information covering
Shares filed or made public by the Trust or any amendment thereof or
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading unless such statement or
omission was made in reliance upon information furnished to the Trust
by the Distributor. In no case (i) is the Trust's indemnity in favor of
the Distributor, or any person indemnified to be deemed to protect the
Distributor or such indemnified person against any liability to which
the Distributor or such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance
of his duties or by reason of his reckless disregard of his 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 Distributor, or person indemnified unless the
Distributor, or such person, as the case may be, shall have notified
the Trust in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the
nature of the claim shall have been served upon the Distributor or upon
such person (or after the Distributor or such person shall have
received notice of such service on any designated agent). However,
failure to notify the Trust of any such claim shall not relieve the
Trust from any liability which the Trust may have to the Distributor or
any person against whom such action is brought otherwise than on
account of the Trust's indemnity agreement contained in this Paragraph.
The Trust shall be entitled to participate, at its own expense, in
the defense, or, if the Trust so elects, to assume the defense of any
suit brought to enforce any such claim, but if the Trust elects to
assume the defense, such defense shall be conducted by legal counsel
chosen by the Trust and satisfactory to the Distributor or to the
persons indemnified pursuant to the foregoing paragraph. In the event
that the Trust elects to assume the defense of any such suit and retain
such legal counsel, the Distributor or the persons indemnified pursuant
to the foregoing paragraph shall bear the fees and expenses of any
additional legal counsel retained by them. If the Trust does not elect
to assume the defense of any such suit, the Trust will reimburse the
Distributor and the persons indemnified pursuant to the foregoing
paragraph for the reasonable fees and expenses of any legal counsel
retained by them. The Trust agrees to promptly notify the Distributor
of the commencement of any litigation or proceedings against it or any
of its directors, officers, employees or representatives in connection
with the issue or sale of any Shares.
7. Authorized Representations. The Distributor is not authorized by the
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Trust to give on behalf of the Trust any information or to make any
representations in connection with the sale of Shares other than the information
and representations contained in the Registration Statement or Prospectus or
contained in shareholder reports or other material that may be prepared by or on
behalf of the Trust for the Distributor's use. This shall not be construed to
prevent the Distributor from preparing and distributing tombstone ads and sales
literature or other material as it may deem appropriate. After the effectiveness
of this Agreement, no person other than the Distributor is authorized to act as
principal underwriter (as such term is defined in the 0000 Xxx) for the Trust.
8. Payments to the Distributor. The Distributor shall receive and may
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retain any portion of any sales charge imposed on sales and redemptions of
Shares not reallowed to dealers as set forth in the Prospectus.
9. Term of Agreement. The term of this Agreement shall begin on the
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date that the Distributor becomes a member in good standing of the NASD, and,
unless sooner terminated as hereinafter provided, this Agreement shall remain in
effect through February 6, 1997. Thereafter, this Agreement shall continue in
effect from year to year, subject to the termination provisions and all other
terms and conditions thereof, so long as such continuation shall be specifically
approved at least annually by the Board of Trustees or by vote of a majority of
the outstanding voting securities of the Trust and, concurrently with such
approval by the Board of Trustees or prior to such approval by the holders of
the outstanding voting securities of the Trust, as the case may be, by the vote,
cast in person at a meeting called for the purpose of voting on such approval,
of a majority of the Trustees of the Trust who are not parties to this Agreement
or interested persons of any such party. The Distributor shall furnish to the
Trust, promptly upon its request, such information as may reasonably be
necessary to evaluate the terms of this Agreement or any extension, renewal or
amendment hereof.
10. Amendment or Assignment of Agreement. This Agreement may not be
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amended or assigned except as permitted by the 1940 Act, and this Agreement
shall automatically and immediately terminate in the event of its assignment.
11. Termination of Agreement. This Agreement may be terminated by
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either party hereto, without the payment of any penalty, on not more than upon
60 days' nor less than 30 days' prior notice in writing to the other party;
provided, that in the case of termination by the Trust such action shall have
been authorized by resolution of a majority of the Trustees of the Trust who are
not parties to this Agreement or interested persons of any such party, or by
vote of a majority of the outstanding voting securities of the Trust.
12. Miscellaneous. The captions in this Agreement are included for
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convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement constitutes the entire agreement and understanding between the parties
hereto, and it shall be governed and construed in accordance with the laws of
the State of California (without regard to conflicts of law).
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Nothing herein contained shall be deemed to require the Trust to take
any action contrary to its Declaration of Trust or By-Laws, or any applicable
statutory or regulatory requirement to which it is subject or by which it is
bound, or to relieve or deprive the Board of Trustees of the Trust of
responsibility for and control of the conduct of the affairs of the Trust.
13. Definition of Terms. Any question of interpretation of any term or
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provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the 1940 Act shall be resolved by reference to such term or
provision of the 1940 Act and to interpretations thereof, if any, by the United
States courts or, in the absence of any controlling decision of any such court,
by rules, regulations or orders of the Securities and Exchange Commission
validly issued pursuant to the 1940 Act. Specifically, the terms "vote of a
majority of the outstanding voting securities", "interested persons",
"assignment", and "affiliated person", as used in Paragraphs 8, 9 and 10 hereof,
shall have the meanings assigned to them by Section 2(a) of the 1940 Act. In
addition, where the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is modified by a rule, regulation or order of the
Securities and Exchange Commission, whether of special or of general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
14. Compliance with Securities Laws. The Trust represents that it is
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registered as an open-end management investment company under the 1940 Act, and
agrees that it will comply with all the provisions of the 1940 Act and of the
rules and regulations thereunder. The Trust and the Distributor each agree to
comply with all of the applicable terms and provisions of the 1940 Act, the 1933
Act and, subject to the provisions of Section 4(d), all applicable "Blue Sky"
laws. The Distributor agrees to comply with all of the applicable terms and
provisions of the 1934 Act.
15. Notices. Any notice required to be given pursuant to this Agreement
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shall be deemed duly given if delivered or mailed by registered mail, postage
prepaid, to the Trust at 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
or to the Distributor at 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000X, Xxxxxxx, XX 00000.
16. Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of California (without regard to conflicts
of law).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized representatives and their respective seals to be
hereunto affixed, as of the day and year first above written.
XXXXXXX INTERNATIONAL FUND
By: /s/Xxxxx X. Xxxxxxxx
Attest: /s/Xxx X. Xxxxxxxx -----------------------------
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WORLDWIDE VALUE DISTRIBUTORS, INC.
By:
Attest: /s/ Xxxx Xxxxxxx -----------------------------
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