EXHIBIT 99.e
FORM OF
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 21st day of January, 2003, between X.X. Xxxxxx
Xxxxxxx Series Trust (the "Trust"), having its principal place of business at
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, and X.X. Xxxxxx Fund Distributors, Inc.
("Distributor"), having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, XX 00000.
WHEREAS, the Trust is an open-end management investment company, organized
as a Massachusetts business trust and registered with the Securities and
Exchange Commission (the "Commission") under the Investment Company Act of 1940,
as amended (the "1940 Act"); and
WHEREAS, Distributor is acting as the distributor of the shares of
beneficial interest ("Shares") of each of the investment portfolios of the Trust
set forth in Schedule A (such portfolios being referred to individually as a
"Fund" and collectively as the "Funds").
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein set forth, the parties agree as follows:
1. SERVICES AS DISTRIBUTOR.
1.1 Distributor will act as agent for the distribution of the Shares
covered by the registration statement and prospectus of the Trust then in effect
under the Securities Act of 1933, as amended (the "Securities Act"). As used in
this Agreement, the term "registration statement" shall mean Parts A (the
prospectus), B (the Statement of Additional Information) and C of each
registration statement that is filed on Form N-1A, or any successor thereto,
with the Commission, together with any amendments thereto. The term "prospectus"
shall mean each form of prospectus and Statement of Additional Information used
by the Funds for delivery to shareholders and prospective shareholders after the
effective dates of the above referenced registration statements, together with
any amendments and supplements thereto.
1.2 Distributor agrees to use best efforts to solicit orders for the
sale of the Shares and will undertake such advertising and promotion as it
believes reasonable in connection with such solicitation; provided, however,
that all sales and marketing materials shall have been approved by the Trust.
The Trust understands that Distributor's affiliates are now and may in the
future be the distributor of the shares of several investment companies or
series (together, "Investment Companies") including Investment Companies having
investment objectives similar to those of the Trust. The Trust further
understands that investors and potential investors in the Trust may invest in
shares of such other Investment Companies. The Trust agrees that Distributor's
and/or its affiliates' duties to such Investment Companies shall not be deemed
in conflict with their duties to the Trust under this paragraph 1.2.
Except as provided in Section 2 herein, Distributor shall, at its own
expense, finance appropriate activities which it deems reasonable, which are
primarily intended to result in the sale of the Shares, including, but not
limited to, advertising, compensation of underwriters, dealers and sales
personnel, the printing and mailing of prospectuses to other than current
Shareholders, and the printing and mailing of sales literature.
1.3 In its capacity as distributor of the Shares, all activities of
Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, all rules and regulations promulgated by the Commission thereunder and all
rules and regulations adopted by any securities association registered under the
Securities Exchange Act of 1934.
1.4 Distributor will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to the Trust.
1.5 Distributor will transmit any orders received by it for purchase
or redemption of the Shares to the transfer agent and custodian for the Funds.
1.6 The Trust'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 Distributor will act only on its own behalf as principal if it
chooses to enter into selling agreements with selected dealers or others.
1.8 The Trust agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the qualification of
the Shares for sale in such states as Distributor may designate.
1.9 The Trust shall furnish from time to time, for use in connection
with the sale of the Shares, such information with respect to the Funds and the
Shares as Distributor may reasonably request; and the Trust warrants that the
statements contained in any such information shall fairly show or represent what
they purport to show or represent. The Trust shall also furnish Distributor upon
request with: (a) unaudited semi-annual statements of the Funds' books and
accounts prepared by the Trust, (b) a monthly itemized list of the securities in
the Funds, (c) monthly balance sheets as soon as practicable after the end of
each month, and (d) from time to time such additional information regarding the
financial condition of the Funds as Distributor may reasonably request.
1.10 The Trust represents to Distributor that, with respect to the
Shares, all registration statements and prospectuses filed by the Trust with the
Commission under the Securities Act have been carefully prepared in conformity
with requirements of said Act and rules and regulations of the Commission
thereunder. The registration statement and prospectus
2
contain all statements required to be stated therein in conformity with said Act
and the rules and regulations of said Commission and all statements of fact
contained in any such registration statement and prospectus are true and correct
in all material respects. Furthermore, neither any registration statement nor
any prospectus includes an untrue statement of a material fact or omits 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 Trust 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 as, in the light of future developments, may, in the opinion of
the Trust's counsel, be necessary or advisable. If the Trust shall not propose
such amendment or amendments and/or supplement or supplements within fifteen
days after receipt by the Trust of a written request from Distributor to do so,
Distributor may, at its option, terminate this Agreement. The Trust shall not
file any amendment to any registration statement or supplement to any prospectus
without giving Distributor reasonable notice thereof in advance; provided,
however, that nothing contained in this Agreement shall in any way limit the
Trust's right to file at any time such amendments to any registration statement
and/or supplements to any prospectus, of whatever character, as the Trust may
deem advisable, such right being in all respects absolute and unconditional.
1.11 The Trust may request Distributor to use an electronic processing
system over the internet in which electronically transmitted orders are
forwarded electronically for processing by a third party known to the Trust
under circumstances in which Distributor will not review the orders. Under such
circumstances, the Trust acknowledges and agrees that it will independently
determine that the third party is a satisfactory service provider and that
Distributor's review will not be necessary. The Trust authorizes Distributor and
dealers to use any prospectus in the form furnished from time to time in
connection with the sale of the Shares. The Distributor shall not be liable for
any error of judgment or mistake of law or for any loss suffered by the Trust in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on the
Distributor's part in the performance of its duties or from reckless disregard
by it of its obligations and duties under this Agreement. In the absence of
willful misfeasance, bad faith or gross negligence or reckless disregard of
obligations or duties hereunder on the part of Distributor or any of its
officers, directors or employees, the Trust agrees to indemnify, defend and hold
Distributor, its several partners and employees, and any person who controls
Distributor within the meaning of Section 15 of the Securities 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 reasonable counsel fees incurred in connection therewith)
which Distributor, its partners and employees, or any such controlling person,
may incur (a) arising out of or based upon the electronic processing of orders
over the internet; (b) based on any act or omission in the course of, or
connected with, rendering services hereunder; (c) based on any representations
made herein by the Trust; (d) based on any act or omission of any prior
Distributor (in its capacity as Distributor or Sub-Administrator), Administrator
or Adviser to the Trust, including the registration or failure to register any
shares of the Trust in accordance with state or federal laws or resulting from
or relating to any books or records delivered to the Distributor in
3
connection with its responsibilities under this Agreement and occurring prior to
the date of this Agreement; or (e) under the Securities Act or under common law
or otherwise, arising out of or based upon (i) any untrue statement, or alleged
untrue statement, of a material fact contained in any registration statement or
any prospectus, (ii) any omission, or alleged omission, to state a material fact
required to be stated in any registration statement or any prospectus or
necessary to make the statements in either thereof not misleading or (iii) any
Trust advertisement or sales literature that is not in compliance with
applicable laws, rules or regulations (including, but not limited to the Conduct
Rules of the National Association of Securities Dealers, Inc.); provided,
however, that the Trust's agreement to indemnify Distributor, its partners or
employees, and any such controlling person shall not be deemed to cover any
claims, demands, liabilities or expenses arising out of any statements or
representations as are contained in any prospectus, advertisement or sales
literature and in such financial and other statements as are furnished in
writing to the Trust by Distributor and used in the answers to the registration
statement or in the corresponding statements made in the prospectus,
advertisement or sales literature, or arising out of or based upon any omission
or alleged omission to state a material fact in connection with the giving of
such information required to be stated in such answers or necessary to make the
answers not misleading; and further provided that the Trust's agreement to
indemnify Distributor and the Trust's representations and warranties
hereinbefore set forth in paragraph 1.10 shall not be deemed to cover any
liability to the Trust or its Shareholders to which Distributor would otherwise
be subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of its duties, or by reason of Distributor's reckless disregard
of its obligations and duties under this Agreement. The Trust's agreement to
indemnify Distributor, its partners and employees and any such controlling
person, as aforesaid, is expressly conditioned upon the Trust being notified of
any action brought against Distributor, its partners or employees, or any such
controlling person, such notification to be given by letter or by telegram
addressed to the Trust at its principal office in New York, NY and sent to the
Trust by the person against whom such action is brought, within 10 days after
the summons or other first legal process shall have been served. The failure to
so notify the Trust of any such action shall not relieve the Trust from any
liability which the Trust may have to the person against whom such action is
brought by reason of any such untrue, or allegedly untrue, statement or
omission, or alleged omission, otherwise than on account of the Trust's
indemnity agreement contained in this paragraph 1.11. The Trust 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 Trust and approved by Distributor, which approval shall
not be unreasonably withheld. In the event the Trust elects to assume the
defense of any such suit and retain counsel of good standing approved by
Distributor, the defendant or defendants in such suit shall bear the fees and
expenses of any additional counsel retained by any of them; but in case the
Trust does not elect to assume the defense of any such suit, or in case
Distributor reasonably does not approve of counsel chosen by the Trust, the
Trust will reimburse Distributor, its partners and employees, or the controlling
person or persons named as defendant or defendants in such suit, for the fees
and expenses of any counsel retained by Distributor or them. The Trust's
indemnification agreement contained in this paragraph 1.11 and the Trust's
representations and warranties in this Agreement shall remain operative and in
full force and effect regardless of any investigation made by or on
4
behalf of Distributor, its partners and employees, or any controlling person,
and shall survive the delivery of any Shares.
This Agreement of indemnity will inure exclusively to Distributor's
benefit, to the benefit of its several partners and employees, and their
respective estates, and to the benefit of the controlling persons and their
successors. The Trust agrees promptly to notify Distributor of the commencement
of any litigation or proceedings against the Trust or any of its officers or
Trustees in connection with the issue and sale of any Shares.
1.12 Distributor agrees to indemnify, defend and hold the Trust, its
several officers and Trustees (hereinafter referred to as "Trustees") and any
person who controls the Trust within the meaning of Section 15 of the Securities
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 reasonable counsel fees incurred in connection
therewith) which the Trust, its officers or Trustees or any such controlling
person, may incur under the Securities Act or under common law or otherwise, but
only to the extent that such liability or expense incurred by the Trust, its
officers or Trustees 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
Distributor to the Trust and used in the answers to any of the items of the
registration statement or in the corresponding statements made in the
prospectus, 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 Distributor to the Trust required to be stated in such answers or
necessary to make such information not misleading. Distributor's agreement to
indemnify the Trust, its officers and Trustees, and any such controlling person,
as aforesaid, is expressly conditioned upon Distributor being notified of any
action brought against the Trust, its officers or Trustees, or any such
controlling person, such notification to be given by letter or telegram
addressed to Distributor at its principal office in Columbus, Ohio, and sent to
Distributor by the person against whom such action is brought, within 10 days
after the summons or other first legal process shall have been served.
Distributor shall have the right of first control of the defense of such action,
with counsel of its own choosing, satisfactory to the Trust, if such action is
based solely upon such alleged misstatement or omission on Distributor's part,
and in any other event the Trust, its officers or Trustees 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 to so notify Distributor of any such
action shall not relieve Distributor from any liability which Distributor may
have to the Trust, its officers or Trustees, 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 Distributor's indemnity agreement
contained in this paragraph 1.12.
1.13 No Shares shall be offered by either Distributor or the Trust
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Trust 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 provisions of the
Securities Act or if and so long as a current prospectus as required by Section
10(b)(2) of said
5
Act is not on file with the Commission; provided, however, that nothing
contained in this paragraph 1.13 shall in any way restrict or have an
application to or bearing upon the Trust's obligation to repurchase Shares from
any Shareholder in accordance with the provisions of the Trust's prospectus,
Declaration of Trust, or Bylaws.
1.14 The Trust agrees to advise Distributor as soon as reasonably
practical by a notice in writing delivered to Distributor or its counsel:
(a) of any request by the Commission for amendments to the
registration statement or prospectus then in effect or for
additional information;
(b) in the event of the issuance by the Commission of any stop
order suspending the effectiveness of the registration
statement or prospectus then in effect or the initiation by
service of process on the Trust 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 or prospectus then in effect or which requires the
making of a change in such registration statement or
prospectus in order to make the statements therein not
misleading; and
(d) of all action of the Commission with respect to any
amendment to any registration statement or prospectus which
may from time to time be filed with the Commission.
For purposes of this section, informal requests by or acts of the Staff of the
Commission shall not be deemed actions of or requests by the Commission.
1.15 Distributor agrees on behalf of itself and its partners and
employees to treat confidentially and as proprietary information of the Trust
all records and other information relative to the Trust and its prior, present
or potential Shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except, after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where
Distributor may be exposed to civil or criminal contempt proceedings for failure
to comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Trust.
1.16 This Agreement shall be governed by the laws of the State of New
York.
1.17 In the event Distributor purchases the initial shares of the
Trust for purposes of satisfying the minimum net worth requirements set forth in
Section 14 (a) of the 1940 Act, and a notice of termination is subsequently
given or this Agreement is otherwise
6
terminated pursuant to Section 6 herein for any reason prior to the time that
organizational expenses incurred by the Trust have been fully amortized, then
the Trust shall cause the successor distributor of the shares (the "Successor
Distributor") to pay to Distributor, within ten (10) days prior to the
termination of this Agreement, an amount of cash that is sufficient to purchase
the initial shares that are held by Distributor
1.18 The Trust and Distributor each represents and warrants that (a)
it has adopted a policy for the safeguarding of non-public personal information
pertaining to their respective customers and consumers ("Privacy Policy") and
(b) its Privacy Policy will, at all times during the term of this Agreement, be
in substantial compliance with all applicable statutes, rules and regulations.
The Trust and Distributor further represent and warrant that (1) each has
delivered a copy of its Privacy Policy to the other party and (2) in the event
that its Privacy Policy is amended or restated, it will promptly deliver to the
other party a copy of the amended and restated Privacy Policy. The Distributor
represents and warrants that, in connection with its provision of services
hereunder, it will, at all times during the term of this Agreement, be in
substantial compliance with the Trust's Privacy Policy, as and to the extent the
same may be applicable to it in respect of the Trust's shareholders and other
consumers.
2. RESERVED.
3. SALE AND PAYMENT.
Shares of a Fund may be subject to a sales load and may be subject to the
imposition of a distribution fee pursuant to the Distribution Plan for the
Funds. To the extent that Shares of a Fund are sold at an offering price which
includes a sales load or at net asset value subject to a contingent deferred
sales load with respect to certain redemptions (either within a single class of
Shares or pursuant to two or more classes of Shares), such Shares shall
hereinafter be referred to collectively as "Load Shares" (in the case of Shares
that are sold with a front-end sales load or Shares that are sold subject to a
contingent deferred sales load), "Front-End Load Shares" or "CDSL Shares" and
individually as a "Load Share," a "Front-End Load Share" or a "CDSL Share." A
Fund that contains Front-End Load Shares shall hereinafter be referred to
collectively as "Load Funds" or "Front-End Load Funds" and individually as a
"Load Fund" or a "Front-end Load Fund." A Fund that contains CDSL Shares shall
hereinafter be referred to collectively as "Load Funds" or "CDSL Funds" and
individually as a "Load Fund" or a "CDSL Fund." Under this Agreement, the
following provisions shall apply with respect to the sale of, and payment for,
Load Shares.
3.1 Distributor shall have the right to purchase Load Shares at their
net asset value and to sell such Load Shares to the public against orders
therefor at the applicable public offering price, as defined in Section 4
hereof. Distributor shall also have the right to sell Load Shares to dealers
against orders therefor at the public offering price less a concession
determined by Distributor, which concession shall not exceed the amount of the
sales charge or underwriting discount, if any, referred to in Section 4 below.
7
3.2 Prior to the time of delivery of any Load Shares by a Load Fund
to, or on the order of, Distributor, Distributor shall pay or cause to be paid
to the Load Fund or to its order an amount in Boston or New York clearing house
funds equal to the applicable net asset value of such Shares. Distributor may
retain so much of any sales charge or underwriting discount as is not allowed by
Distributor as a concession to dealers.
4. PUBLIC OFFERING PRICE.
The public offering price of a Load Share shall be the net asset value
of such Load Share, plus any applicable sales charge, all as set forth in the
current prospectus of the Load Fund. The net asset value of Shares shall be
determined in accordance with the provisions of the Declaration of Trust and
Bylaws of the Trust and the then-current prospectus of the Load Fund.
5. ISSUANCE OF SHARES.
The Trust reserves the right to issue, transfer or sell Load Shares at
net asset value (a) in connection with the merger or consolidation of the Trust
or the Load Fund(s) with any other investment company or the acquisition by the
Trust or the Load Fund(s) of all or substantially all of the assets or of the
outstanding Shares of any other investment company; (b) in connection with a pro
rata distribution directly to the holders of Shares in the nature of a stock
dividend or split; (c) upon the exercise of subscription rights granted to the
holders of Shares on a pro rata basis; (d) in connection with the issuance of
Load Shares pursuant to any exchange and reinvestment privileges described in
any then-current prospectus of the Load Fund; and (e) otherwise in accordance
with any then-current prospectus of the Load Fund.
6. TERM, DURATION AND TERMINATION.
This Agreement shall become effective with respect to each Fund listed
on Schedule A hereof as of the date first written above (or, if a particular
Fund is not in existence on such date, on the date an amendment to Schedule A to
this Agreement relating to that Fund is executed) and, unless sooner terminated
as provided herein, shall continue until January 31, 2004. Thereafter, if not
terminated, this Agreement shall continue with respect to a particular Fund
automatically for successive one-year terms, provided that such continuance is
specifically approved at least annually by (a) by the vote of a majority of
those members of the Trust's Trustees who are not parties to this Agreement or
interested persons of any such party, cast in person at a meeting for the
purpose of voting on such approval and (b) by the vote of the Trust's Trustees
or the vote of a majority of the outstanding voting securities of such Fund. The
termination of this Agreement with respect to one Fund shall not result in the
termination of this Agreement with respect to any other Fund listed on Schedule
A. This Agreement is terminable without penalty, on not less than sixty days'
prior written notice, by the Trust's Trustees, by vote of a majority of the
outstanding voting securities of the Trust or by the Distributor. This Agreement
will also terminate automatically in the event of its assignment. (As used in
this Agreement, the terms "majority of the outstanding voting securities,"
"interested persons" and "assignment" shall have the same meanings as ascribed
to such terms in the 1940 Act.)
8
7. CERTAIN MATTERS RELATING TO A MASSACHUSETTS BUSINESS TRUST.
If the Trust is a Massachusetts business trust, a copy of the
Declaration of Trust is on file with the Secretary of the State of
Massachusetts, and notice is hereby given that this instrument is executed on
behalf of the Trustees of the Trust as Trustees and not individually, and that
the obligations of this instrument are not binding upon any of the Trustees or
shareholders individually, but are binding only upon the assets and property of
the Trust, and all persons dealing with any class of shares of the Trust must
look solely to the Trust property belonging to such class for the enforcement of
any claims against the Trust.
8. NOTICES.
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 address of the Trust for notice shall
be 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, attn: Xxxxx Xxxxxxxx, with a copy to
Xxxxxx X. Xxxxxxx, Esq., and the address of the Distributor shall be 0000
Xxxxxxx Xxxx, Xxxxxxxx, XX 00000.
9
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first written
above.
X.X. XXXXXX XXXXXXX SERIES TRUST
By:
--------------------------------
Title:
-----------------------------
Date:
------------------------------
X.X. XXXXXX FUND
DISTRIBUTORS, INC.
By:
--------------------------------
Title:
-----------------------------
Date:
------------------------------
10
SCHEDULE A
TO THE DISTRIBUTION AGREEMENT
X.X. XXXXXX XXXXXXX SERIES TRUST
X.X. Xxxxxx Multi-Manager Small Cap Growth Fund
X.X. Xxxxxx Multi-Manager Small Cap Value Fund
