XXXXXXX & XXXXXX FUND, INC.
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of the 25th day of September, 1997 by and
between Xxxxxxx & Xxxxxx Fund, Inc., a Maryland corporation (the "Fund"), and
Xxxxxxx & Xxxxxx Investor Services, Inc., a New York corporation (the
"Broker").
R E C I T A L S
WHEREAS, the Fund is registered as an open-end, diversified, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Broker is registered as a broker dealer under the Securities
Exchange Act of 1934, as amended; and
WHEREAS, the Fund and the Broker desire to enter an agreement to provide
distribution services for the common stock shares of the Fund's Series
(collectively, the "Series Shares") listed on Schedule A hereto, on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
1. Appointment. The Fund hereby appoints the Broker as Distributor of
the Series Shares for the period and on the terms set forth in this Agreement.
The Broker accepts such appointment and agrees to render the services herein
set forth.
2. Duties as Distributor. The Broker shall give the Fund the benefit of
its best judgment, efforts and facilities in rendering its services as
Distributor. The Broker will act as Distributor subject to the supervision of
the Fund's Board of Directors and the following understanding: (I) nothing
herein contained shall be deemed to relieve or deprive the Board of Directors
of the Fund of its responsibility for and control of the conduct of the Fund's
affairs; and (ii) in all matters relating to the performance of this
Agreement, the Broker will act in conformity with the Articles, By-laws and
Prospectus and SAI of the Fund and with the instructions and directions of the
Fund's Board of Directors and will conform
to and comply with the requirements of the 1940 Act and all other applicable
Federal or state laws and regulations. In carrying out its obligations
hereunder, the Broker shall:
(a) receive orders for the purchase of the Series Shares, accept or
reject such orders on behalf of the Fund in accordance with the Fund's
currently effective Prospectus and SAI and transmit such orders as are so
accepted to the Fund's or its transfer agent as promptly as possible;
(b) receive requests for redemption from holders of the Portfolio Shares
and transmit such redemption requests to the Fund's or its transfer agent as
promptly as possible; and
respond to inquiries from the holders of the Series Shares concerning
the status of their accounts with the Fund.
3. Distribution of Series Shares. The Broker shall be exclusive
distributor of the Series Shares. It is mutually understood and agreed that
the Broker does not undertake to sell all or any specific portion of Series
Shares. The Fund shall not sell any of its Series Shares except through the
Broker. Notwithstanding the provisions of the foregoing sentence:
(a) the Fund may issue its Series Shares at their net asset value to any
shareholder of the Fund purchasing such shares with dividends or other cash
distributions received from the Fund pursuant to an offer made to all
shareholders of the Series Shares;
(b) the Broker may, and when requested by the Fund shall, suspend its
efforts to effectuate sales of the Series Shares at any time when in the
opinion of the Broker or of the Fund no sales should be made because of market
or other economic considerations or abnormal circumstances of any kind;
(c) the Fund may withdraw the offering of the Series Shares: (I) at any
time with the consent of the Broker, or (ii) without such consent when so
required by the provisions of any statute or of any order, rule or regulation
of any governmental body having jurisdiction; and
(d) the price at which the Series Shares may be sold (the "offering
price") shall be the net asset value per share, which shall be determined in
the manner established from time to time by the Fund's Board of Directors and
as set forth in the Fund's then current Prospectus and SAI.
4. Control by Board of Directors. Any distribution activities
undertaken by the Broker pursuant to this Agreement, as well as any other
activities undertaken by the Broker on behalf of the Fund pursuant thereto,
shall at all times be subject to any applicable directives of the Board of
Directors of the Fund.
5. Compliance with Applicable Requirements. In carrying out its
obligations under this Agreement, the Broker shall at all times conform to:
(a) all applicable provisions of the 1940 Act and any rules and
regulations adopted thereunder;
(b) the provisions of the Registration Statement of the Fund under the
Securities Act of 1933 and the 1940 Act;
(c) the provisions of the Articles of the Fund;
(d) the provisions of the By-laws of the Fund;
(e) the rules and regulations of the National Association of Securities
Dealers, Inc. ("NASD") and all other self-regulatory organizations applicable
to the sale of investment company shares; and
(f) any other applicable provisions of state and Federal law.
6. Expenses. The expenses connected with the Series shares shall be
allocable between the Fund and the Broker as follows:
(a) The Broker shall furnish, at its expense and without cost to the
Fund, the services of personnel to the extent that such services are required
to carry out its obligations under this Agreement.
(b) The Fund assumes and shall pay or cause to be paid all other expenses
of the Fund (other than those expressly assumed by the Fund's investment
advisor and sub-advisor), including, without limitation: the fees of the Funds
investment advisor; any custodian or depository appointed by the Fund for the
safekeeping of its cash, portfolio securities and other property, and any
transfer, divided or accounting agent or agents appointed by the Fund; brokers
commissions chargeable to the Fund in connection with portfolio securities
transactions to which the Fund is a party; all taxes, including securities
issuance and transfer taxes, and fees payable by the Fund to Federal, state or
other governmental agencies; the costs and expenses of engraving or printing
of certificates representing shares of the Fund; all costs and expenses in
connection with the registration and maintenance of registration of the Fund
and its shares with the SEC and various states and other jurisdictions
(including filing fees, legal fees and disbursements of counsel); the costs
and expenses of printing, including typesetting, and distributing Prospectuses
and SAI of the Fund and supplements thereto to the Funds shareholders; all
expenses of shareholders and directors meetings and of preparing, printing and
mailing of proxy statements and reports to shareholders; fees and travel
expenses of directors or director members of any advisory board or committee;
all expenses incident to the payment of any dividend, distribution, withdraw
or redemption, whether in shares or in cash; charges and expenses of any
outside services used for pricing of the Funds shares; fees and expense of
legal counsel and of independent accountants, in connection with any matter
relating to the fund; membership dues of industry associations; interest
payable on Fund borrowings; postage; insurance premiums on property or
personnel (including officers and directors) of the Fund which insure to its
benefit; extraordinary expenses (including, but not limited to, legal claims
and liabilities and litigation costs and any indemnification related thereto);
and all other charges and costs of the Funds operation unless otherwise
explicitly provided herein.
7. Delegation of Responsibilities. The Broker may, but shall not be
under any duty to, perform services on behalf of the Fund which are not
required by this Agreement upon the request of the Fund's Board of Directors.
Such services will be performed on behalf of the Fund and the Broker's charge
in rendering such services may be billed monthly to the Fund. Payment or
assumption by the Broker of any Fund expense that the Broker is not required
to pay or assume under this Agreement shall not relieve the Broker of any of
its obligations to the Fund nor obligate the Broker to pay or assume any
similar Fund expenses on any subsequent occasions.
8. Compensation. The Broker shall receive from the Fund:
(1) all distribution and service fees, as applicable, at the rate and
under the terms and conditions set forth in each Distribution Plan
(collectively, Plans) adopted by the appropriate class of Series
Shares, as such Plans may be amended from time to time, and subject
to any further limitations on such fees as the Board of Directors may
impose;
(2) all deferred sales charges (DSCs), if any, applied on redemptions
of the applicable class(es) of Series Shares on the terms and
subject to such waivers as are described in the Funds Registration
Statement and current prospectuses, as amended from time to time, or
as otherwise required pursuant to applicable law; and
(3) all front-end sales charges, if any, on purchases of the
applicable Series Shares sold subject to such charges as described in
the Funds Registration Statement and current prospectuses, as amended
from time to time. The Broker, or brokers, dealers and other
financial institutions and intermediaries that have entered into
sub-distribution or dealer agreements with the Distributor, may
collect the gross proceeds derived from the sale of such class(es) of
Shares, remit the net asset value thereof to the fund upon
receipt of the proceeds and retain the applicable sales charge.
The Broker may reallow any or all of the distribution or service fee,
contingent deferred sales charges and front-end sales charges which it is paid
by the fund to such brokers, dealers and other financial institutions and
intermediaries as the Broker may from time to time determine.
9. Non-Exclusivity. The services of the Broker to the Fund are not to
be deemed to be exclusive, and the Broker shall be free to render distribution
or other services to others (including other investment companies) and to
engage in other activities. It is understood and agreed that officers or
directors of the Broker may serve as officers or directors of the Fund, and
that officers or directors of the Fund may serve as officers or directors of
the Broker to the extent permitted by law; and that the officers and directors
of the Broker are not prohibited from engaging in any other business activity
or from rendering services to any other person, or from serving as partners,
officers, trustees or directors of any other firm, trust or corporation,
including other investment companies.
10. Term. This Agreement shall become effective at the close of
business on the date hereof and shall continue in force and effect, subject to
Section 12 hereof, for two years from the date hereof.
11. Renewal. Following the expiration of its initial two-year term,
this Agreement shall continue in force and effect from year to year, provided
that such continuance is specifically approved at least annually:
(a)(I) by the Fund's Board of Directors or (ii) by the vote of a majority
of the outstanding voting securities of the Series Shares (as defined in
Section 2(a)(42) of the 1940 Act, and
(b) by the affirmative vote of a majority of the directors who are not
parties to this Agreement or "interested persons" (as defined by the 0000 Xxx)
of any such party and have no direct or indirect financial interest in the
operation of this Agreement or any agreement related to this Agreement, by
votes cast in person at a meeting specifically called for the purpose of
voting on such approval.
Notwithstanding any provision of this paragraph to the contrary, if the
holders of any one series of the Series Shares of the Fund fail to approve
this Agreement, the Broker may continue to serve as distributor to the other
Series Shares of the Fund whose holders approved this Agreement and, in the
manner and to the extent permitted by the 1940 Act, to the series of Series
Shares of the Fund which did not approve this Agreement.
12. Termination. This Agreement may be terminated at any time, without
the payment of any penalty, by vote of the Fund's Board of Directors or by
vote of a majority of the members of the Board of Directors of the Fund who
are not "interested persons" of the Fund and have no direct or indirect
financial interest in the operation of this Agreement or in any agreement
related to this Agreement, by vote of a majority of the Series Shares of the
Fund's outstanding voting securities (as defined in Section 2(a)(42) of the
1940 Act), or by the Broker, on sixty (60) days' written notice to the other
party. The notice provided for herein may be waived by either party. This
Agreement shall automatically terminate in the event of its assignment, the
term "assignment" having the meaning defined in Section 2(a)(4) of the 1940
Act.
13. Amendments. This Agreement may be amended by the parties hereto
only if such amendment is specifically approved (I) by the Board of Directors
of the Fund or by the vote of a majority of outstanding voting securities of
the Series Shares, and (ii) by a majority of those directors who are not
parties to this Agreement or "interested persons" of any such party, which
vote must be cast in person at a meeting called for the purpose of voting on
such approval.
14. Liability of the Distributor. In the performance of its duties
hereunder, the Broker shall be obligated to exercise care and diligence and to
act in good faith and to use its best efforts within reasonable limits to
ensure the accuracy of all services performed under this Agreement, but the
Broker shall not be liable for any act or omission which loss does not
constitute willful misfeasance, bad faith or gross negligence on the part of
the Broker or reckless disregard by the Broker of its duties under this
Agreement.
15. Notices. Any notices 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 notice.
Until further notice to the other party, it is agreed that the address of the
Fund for this purpose and that of the Broker shall be 0000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000.
16. Questions of Interpretation. This Agreement shall be implemented
and continued in a manner consistent with the provisions of the 1940 Act. Any
question of interpretation of any term or 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 SEC issued pursuant to said Act. In addition, where the
effect of a requirement of the 1940 reflected in any provision of this
Agreement is revised by rule, regulation or order of the SEC, such provision
shall be deemed to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the day and year first
written above.
XXXXXXX & XXXXXX FUND, INC.
By:/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, President
XXXXXXX & XXXXXX INVESTOR SERVICES, INC.
By:/s/ B. Reuben Ausptiz
B. Xxxxxx Xxxxxxx, President
SCHEDULE A
NAME OF SERIES
Small Cap Series
Maximum Horizon Series
Energy Series
Technology Series
Defensive Series
Financial Services Series
International Series
Tax Managed Series
Life Science Series
Global Fixed Income Series
Blended Asset Series I
Blended Asset Series II
Flexible Yield Series I
Flexible Yield Series II
Flexible Yield Series III
New York Tax Exempt Series
Ohio Tax Exempt Series
Diversified Tax Exempt Series
World Opportunities Series
