Exhibit 99.b6.(a)
ADMINISTRATION, SHAREHOLDER SERVICES AND
DISTRIBUTION AGREEMENT
AGREEMENT made this _____ day of July, 1998, by and between [NAME OF FUND], a
Massachusetts business trust (the "Fund"), and XXXXXX DISTRIBUTORS, INC., a
Delaware corporation ("KDI").
In consideration of the mutual covenants hereinafter contained, it is hereby
agreed by and between the parties hereto as follows:
1. The Fund hereby appoints KDI to act as administrator, distributor
and principal underwriter for the distribution of shares of beneficial
interest (hereinafter called "shares") of the Fund in jurisdictions wherein
shares of the Fund may legally be offered for sale; provided, however, that
the Fund in its absolute discretion may (a) issue or sell shares directly
to holders of shares of the Fund upon such terms and conditions and for
such consideration, if any, as it may determine, whether in connection with
the distribution of subscription or purchase rights, the payment or
reinvestment of dividends or distributions, or otherwise; or (b) issue or
sell shares at net asset value to the shareholders of any other investment
company, for which KDI shall act as exclusive distributor, who wish to
exchange all or a portion of their investment in shares of such other
investment company for shares of the Fund.
KDI shall appoint various broker-dealers and other financial services
firms ("Firms") to provide a cash management service for their clients
through the Fund. The Firms shall provide such office space and equipment,
telephone facilities, personnel, literature distribution, advertising and
promotion as is necessary or beneficial for providing information and
services to potential and existing shareholders of the Fund and to assist
the Fund's shareholder service agent in servicing accounts of the Firm's
clients who own Fund shares ("clients"). Such services and assistance may
include, but are not limited to, establishment and maintenance of
shareholder accounts and records, processing purchase and redemption
transactions, automatic investment in Fund shares of client account cash
balances, answering routine client inquiries regarding the Fund, assistance
to clients in changing dividend options, account designations and
addresses, and such other services as the Fund or KDI may reasonably
request. KDI may also provide some of the above services for the Fund
directly.
KDI accepts such appointment and agrees during the term hereof to
render such services and to assume the obligations herein set forth for the
compensation herein provided. KDI shall for all purposes herein provided be
deemed to be an independent contractor and, unless otherwise expressly
provided or authorized, shall have no authority to act for or represent the
Fund in any way or otherwise be deemed an agent of the Fund. It is
understood and agreed that KDI, by separate agreement with the Fund, may
also serve the Fund in other capacities. The services of KDI to the Fund
under this Agreement are not to be deemed exclusive, and KDI shall be free
to render similar services or other services to others so long as its
services hereunder are not impaired thereby.
In carrying out its duties and responsibilities hereunder, KDI will,
pursuant to separate administration services and selling group agreements
("services agreements"), appoint various Firms to provide administrative,
distribution and other services contemplated hereunder directly to or for
the benefit of existing and potential shareholders who may be clients of
such Firms. Such Firms shall at all times be deemed to be independent
contractors retained by KDI and not the Fund. KDI and not the Fund will be
responsible for the payment of compensation to such Firms for such
services.
KDI will use its best efforts with reasonable promptness to sell such
part of the authorized shares of the Fund remaining unissued as from time
to time shall be effectively registered under the Securities Act of 1933
("Securities Act"), at prices determined as hereinafter provided and on
terms hereinafter set forth, all subject to applicable federal and state
laws and regulations and to the Fund's Agreement and Declaration of Trust.
The price the Fund shall receive for all shares purchased from the Fund
shall be the net asset value used in determining the public offering price
applicable to the sale of such shares.
2. KDI shall sell shares of the Fund to or through qualified Firms in
such manner, not inconsistent with the provisions hereof and the then
effective registration statement of the Fund under the Securities Act (and
related prospectus), as KDI may determine from time to time, provided that
no Firm or other person shall be appointed and authorized to act as agent
of the Fund without the prior consent of the Fund. In addition to sales
made by it as agent of the Fund, KDI may, in its discretion, also sell
shares of the Fund as principal to persons with whom it does not have
services agreements.
Shares of any series of the Fund offered for sale or sold by KDI shall
be so offered or sold at a price per share determined in accordance with
the then current prospectus relating to the sale of such shares except as
departure from such prices shall be permitted by the rules and regulations
of the Securities and Exchange Commission; provided, however, that any
public offering price for shares of the Fund shall be the net asset value
per share. The net asset value per share of the Fund shall be determined in
the manner and at the times set forth in the then current prospectus of the
Fund relating to such shares.
KDI will require each Firm to conform to the provisions hereof and the
Registration Statement (and related prospectus) at the time in effect under
the Securities Act with respect to the public offering price of the Fund's
shares, and neither KDI nor any such Firms shall withhold the placing of
purchase orders so as to make a profit thereby.
3. The Fund will use its best efforts to keep effectively registered
under the Securities Act for sale as herein contemplated such shares as KDI
shall reasonably request and as the Securities and Exchange Commission
shall permit to be so registered. Notwithstanding any other provision
hereof, the Fund may terminate, suspend or withdraw the offering of shares
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whenever, in its sole discretion, it deems such action to be desirable.
4. The Fund will execute any and all documents and furnish any and all
information that may be reasonably necessary in connection with the
qualification of its shares for sale (including the qualification of the
Fund as a dealer where necessary or advisable) in such states as KDI may
reasonably request (it being understood that the Fund shall not be required
without its consent to comply with any requirement which in its opinion is
unduly burdensome). The Fund will furnish to KDI from time to time such
information with respect to the Fund and its shares as KDI may reasonably
request for use in connection with the sale of shares of the Fund.
5. KDI shall issue and deliver or shall arrange for various Firms to
issue and deliver on behalf of the Fund such confirmations of sales made by
it pursuant to this Agreement as may be required. At or prior to the time
of issuance of shares, KDI will pay or cause to be paid to the Fund the
amount due the Fund for the sale of such shares. Certificates shall be
issued or shares registered on the transfer books of the Fund in such names
and denominations as KDI may specify.
6. KDI shall order shares of the Fund from the Fund only to the extent
that it shall have received purchase orders therefor. KDI will not make, or
authorize Firms or others to make, any short sales of shares of the Fund.
KDI, as agent of and for the account of the Fund, may repurchase the shares
of the Fund at such prices and upon such terms and conditions as shall be
specified in the current prospectus of the Fund. In selling or reacquiring
shares of the Fund for the account of the Fund, KDI will in all respects
conform to the requirements of all state and federal laws and the Rules of
Fair Practice of the National Association of Securities Dealers, Inc.,
relating to such sale or reacquisition, as the case may be, and will
indemnify and save harmless the Fund from any damage or expense on account
of any wrongful act by KDI or any employee, representative or agent of KDI.
KDI will observe and be bound by all the provisions of the Fund's Agreement
and Declaration of Trust (and of any fundamental policies adopted by the
Fund pursuant to the Investment Company Act of 1940 (the "Investment
Company Act"), notice of which shall have been given to KDI) which at the
time in any way require, limit, restrict prohibit or otherwise regulate any
action on the part of KDI hereunder.
7. The Fund shall assume and pay all charges and expenses of its
operations not specifically assumed or otherwise to be provided by KDI
under this Agreement or the Fund's Amended and Restated 12b-1 Plan (the
"Plan"). The Fund will pay or cause to be paid expenses (including the fees
and disbursements of its own counsel) and all taxes and fees payable to the
federal, state or other governmental agencies on account of the
registration or qualification of securities issued by the Fund or
otherwise. The Fund will also pay or cause to be paid expenses incident to
the issuance of shares of beneficial interest, such as the cost of share
certificates, issue taxes, and fees of the transfer agent. KDI will pay all
expenses (other than expenses which one or more Firms may bear pursuant to
any agreement with KDI) incident to the sale and distribution of the shares
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issued or sold hereunder including, without limiting the generality of the
foregoing, all expenses of printing and distributing any prospectus and of
preparing, printing and distributing or disseminating any other literature,
advertising and selling aids in connection with the offering of the shares
for sale (except that such expenses need not include expenses incurred by
the Fund in connection with the preparation, typesetting, printing and
distribution of any registration statement, prospectus or report or other
communication to shareholders in their capacity as such) and expenses of
advertising in connection with such offering.
8. This Agreement shall become effective on the date hereof and shall
continue until July _____, 1999 and shall continue from year to year
thereafter only so long as such continuance is approved in the manner
required by the Investment Company Act.
This Agreement shall automatically terminate in the event of its
assignment and may be terminated at any time without the payment of any
penalty by the Fund or by KDI on (60) days' written notice to the other
party. The Fund may effect termination by a vote of (i) a majority of the
trustees who are not interested persons of the Fund and who have no direct
or indirect financial interest in the operation of the Plan, this Agreement
or in any other agreement related to the Plan, or (ii) a majority of the
outstanding voting securities of the Fund.
All material amendments to this Agreement must be approved by a vote of
a majority of the Board of Trustees of the Fund, including the trustees who
are not interested persons of the Fund and who have no direct or indirect
financial interest in the operation of the Plan, this Agreement or in any
other agreement related to the Plan, cast in person at a meeting called for
such purpose.
The terms "assignment," "interested person" and "vote of a majority of
the outstanding voting securities" shall have the meanings set forth in the
Investment Company Act and the rules and regulations thereunder.
KDI shall receive such compensation for its distribution services as
set forth in the Plan. Termination of this Agreement shall not affect the
right of KDI to receive payments on any unpaid balance of the compensation
earned prior to such termination, as set forth in the Plan.
9. KDI will not use or distribute or authorize the use, distribution or
dissemination by Firms or others in connection with the sale of Fund shares
any statements, other than those contained in the Fund's current
prospectus, except such supplemental literature or advertising as shall be
lawful under federal and state securities laws and regulations. KDI will
furnish the Fund with copies of all such material.
10. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder shall not be
thereby affected.
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11. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as
such other party may designate for the receipt of such notice.
12. All parties hereto are expressly put on notice of the Fund's
Agreement and Declaration of Trust and all amendments thereto, all of which
are on file with the Secretary of The Commonwealth of Massachusetts, and
the limitation of shareholder and trustee liability contained therein. This
Agreement has been executed by and on behalf of the Fund by its
representatives as such representatives and not individually, and the
obligations of the Fund hereunder are not binding upon any of the trustees,
officers or shareholders of the Fund individually but are binding upon only
the assets and property of the Fund. With respect to any claim by KDI for
recovery of any liability of the Fund arising hereunder allocated to a
particular series, whether in accordance with the express terms hereof or
otherwise, KDI shall have no recourse against the assets of any other
series for such purpose.
13. This Agreement shall be construed in accordance with applicable
federal law and with the laws of The Commonwealth of Massachusetts.
14. This Agreement is the entire contract between the parties relating
to the subject matter hereof and supersedes all prior agreements between
the parties relating to the subject matter hereof.
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IN WITNESS WHEREOF, the Fund and KDI have caused this Agreement to be executed
as of the day and year first above written.
[NAME OF FUND]
By: ___________________________________
Title: __________________________________
ATTEST:
By: ________________________________
Title: _______________________________
XXXXXX DISTRIBUTORS, INC.
By: ___________________________________
Title: __________________________________
ATTEST:
By: ________________________________
Title: _______________________________
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