XXXX XXXXXXXXX SERIES TRUST
DISTRIBUTOR'S CONTRACT
Distributor's Contract dated as of January 1, 1997, by and between XXXX
XXXXXXXXX SERIES TRUST, a Massachusetts business trust (the "Trust"), and XXXX
XXXXXXXXX FUNDS DISTRIBUTOR, INC. (the "Distributor").
WHEREAS, the Trust and the Distributor are desirous of entering into a new
agreement providing for the distribution of certain classes of shares of the
Trust by the Distributor;
NOW THEREFORE, in consideration of the mutual agreements contained in the
Terms and Conditions of Distributor's Contract attached to and forming a part of
this Contract (the "Terms and Conditions"), the Trust hereby appoints the
Distributor as a distributor of such shares of the Trust, and the Distributor
hereby accepts such appointment, all as set forth in the Terms and Conditions.
A copy of the Agreement and Declaration of Trust of the Trust, as amended,
is on file with the Secretary of The Commonwealth 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 or arising
out 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.
IN WITNESS WHEREOF, XXXX XXXXXXXXX SERIES TRUST and XXXX XXXXXXXXX FUNDS
DISTRIBUTOR, INC. have each caused this Distributor's Contract to be signed in
duplicate on its behalf, all as of the day and year first above written.
XXXX XXXXXXXXX SERIES TRUST
By: /s/ Xxxxxx X. Xxxxx
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XXXX XXXXXXXXX FUNDS
DISTRIBUTOR, INC.
By: /s/ Xxxxxx Xxxxxx
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Dated: January 1, 1997
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TERMS AND CONDITIONS
OF
DISTRIBUTOR'S CONTRACT
1. SALE OF SHARES TO THE DISTRIBUTOR AND SALES BY THE DISTRIBUTOR. The
Distributor will have the right, as principal, to sell shares of beneficial
interest ("shares") of the Trust's Select shares and Adviser shares (each a
"Class" and collectively the "Classes") of each portfolio of the Trust
represented by a separate series of shares (a "Fund") directly to the public
against orders therefor at the applicable public offering price as described
below. For such purposes, the Distributor will have the right to purchase
shares at the public offering price as described below. The Distributor will
also have the right, as agent, to sell shares of a Fund indirectly to the public
through broker dealers who are members of the National Association of Securities
Dealers, Inc. and who are acting as introducing brokers pursuant to agreements
with the Distributor ("introducing brokers"), or to broker dealers which are
members of the National Association of Securities Dealers, Inc. and who have
entered into selling agreements with the Distributor ("participating brokers"),
in each case against orders therefor. The price for introducing brokers and
participating brokers shall be net asset value.
Prior to the time of transfer of any shares by the Trust to, or on the
order of, the Distributor or any introducing broker or participating broker, the
Distributor shall pay or cause to be paid to the Trust or to its order an amount
in New York clearing house funds equal to the applicable public offering price
of the shares. Upon receipt of registration instructions in proper form, the
Distributor will transmit or cause to be transmitted such instructions to the
Trust or its agent for registration of the shares purchased.
The public offering price of each Class shall be the net asset value of
such shares, plus any applicable fee paid to the particular Fund to defray the
costs to existing shareholders associated with investing the proceeds of the
sale (a "Fund Reimbursement Fee") as set forth in the then current prospectus
and statement of additional information (collectively, the "prospectus") of the
Trust.
On every sale, the Fund purchased shall receive the net asset value of the
shares and any Fund Reimbursement Fee charged. The net asset value of shares
shall be determined in the manner provided in the Agreement and Declaration of
Trust and By-laws of the Trust as then amended.
2. FEES. For its services as distributor of a Fund's Select shares, the
Trust shall pay the Distributor on behalf of the Fund a monthly distribution fee
at an annual rate equal to 0.25% of the average daily net assets of the Fund
attributable to its Select shares and otherwise on the terms and conditions set
forth in any Distribution Plan in effect for Select shares as amended from time
to time. Any such distribution fee shall be accrued daily and paid monthly to
the Distributor as soon as practicable after the end of the calendar month in
which it accrues, but in any event within 5 business days following the last
calendar day of each month.
3. RESERVATION OF RIGHT NOT TO SELL. The Trust reserves the right to
refuse at any time or times to sell any of its shares for any reason deemed
adequate by it.
4. USE OF THIRD PARTIES; NON-EXCLUSIVITY; SALES OF SHARES BY THE TRUST.
The Distributor may employ such third parties, including one or more
participating brokers or introducing brokers, for the purposes of selling shares
of the Trust as the Distributor, in its sole discretion, shall deem advisable or
desirable. The Distributor may not enter into similar arrangements with other
issuers without the consent of the Trust. The Trust reserves the right to issue
shares at any time directly to its shareholders as a stock dividend or stock
split and to sell shares to its shareholders or other persons at not less than
net asset value.
5. REPURCHASE OF SHARES. The Distributor will act as agent for the Trust
in connection with the repurchase and redemption of shares by the Trust upon the
terms and conditions set forth in the then current prospectus of the Trust or as
the Trust acting through its Trustees may otherwise direct. The Distributor may
employ such third parties, including one or more participating brokers or
introducing brokers, for the purpose as the Distributor, in its sole discretion,
shall deem to be advisable or desirable.
6. BASIS OF PURCHASES AND SALES OF SHARES. The Distributor's obligation
to sell shares hereunder shall be on a best efforts basis only and the
Distributor shall not be obligated to sell any specific number of shares.
Shares will be sold by the Distributor only against orders therefor. The
Distributor will not purchase shares from anyone other than the Trust except in
accordance with Section 5, and will not take "long" or "short" positions in
shares.
7. RULES OF NASD, ETC. The Distributor will conform to the Rules of Fair
Practice of the National Association of Securities Dealers, Inc. and the
securities laws of any jurisdiction in which it sells, directly or indirectly,
any shares. The Distributor also agrees to furnish to the Trust sufficient
copies of any agreement or plans it intends to use in connection with any sales
of shares in adequate time for the Trust to file and clear them with the proper
authorities before they are put in use, and not to use them until so filed and
cleared.
8. INDEPENDENT CONTRACTOR. The Distributor shall be an independent
contractor and neither the Distributor nor any of its officers or employees as
such, is or shall be an employee of the Trust. The Distributor is 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 employer taxes
thereunder.
9. REGISTRATION AND QUALIFICATION OF SHARES. The Trust agrees to execute
such papers and to do such acts and things as shall from time to time be
reasonably requested by the Distributor for the purpose of qualifying and
maintaining qualification of the shares for sale under the so-called Blue Sky
Laws of any state and for maintaining
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the registration of each Fund of the Trust and the Trust under the Securities
Act of 1933 (the "1933 Act") and the Investment Company Act of 1940 (together
with the rules and regulations thereunder, the "1940 Act"), to the end that
there will be available for sale from time to time such number of shares as the
Distributor may reasonably be expected to sell. The Trust may also contract
with Bisys Fund Services Limited Partnership d.b.a. Bisys Fund Services ("Bisys
Fund Services") to perform such services, in which event the Distributor agrees
to look solely to Bisys Fund Services in the event of any breach of the
agreements of the Trust set forth in this Section 9. The Trust or Bisys Fund
Services shall advise the Distributor promptly of (a) any action of the
Securities and Exchange Commission or any authorities of any state or territory,
of which it may be advised, affecting registration or qualification of the
Trust, a Fund or the shares thereof, or rights to offer such shares for sale and
(b) the happening of any event which makes untrue any statement or which
requires the making of any change in the registration statement or prospectus in
order to make the statements therein not misleading.
10. EXPENSES. The Trust will pay or reimburse the Distributor for all
expenses of qualifying shares of the Trust for sale under the securities or
so-called "Blue Sky" laws of any State. The Distributor will pay all expenses
of preparing, printing and distributing advertising and sales literature (apart
from expenses of registering shares under the 1933 Act and the 1940 Act and the
preparation and printing of prospectuses and reports as required by said Acts
and the direct expenses of the issue of shares, except that the Distributor will
pay the cost of the preparation and printing of prospectuses and shareholders'
reports used by it in the sale of shares to persons other than current
shareholders).
11. SECURITIES TRANSACTIONS. The Trust agrees that the Distributor may
effect a transaction on any national securities exchange of which it is a member
for the account of the Trust and any Fund of the Trust which is permitted by
Section 11(a) of the Securities Exchange Act of 1934.
12. INDEMNIFICATION OF TRUST. The Distributor agrees to indemnify and
hold harmless the Trust and each person who has been, is, or may hereafter be, a
Trustee of the Trust against expenses reasonably incurred by any of them in
connection with any claim or in connection with any action, suit or proceeding
to which any of them may be a party, which arises out of or is alleged to arise
out of any misrepresentation or omission to state a material fact, or out of any
alleged misrepresentation or omission to state a material fact, on the part of
the Distributor or any agent or employee of the Distributor or any other person
for whose acts the Distributor is responsible or is alleged to be responsible,
unless such misrepresentation or omission was made in reliance upon written
information furnished by the Trust, PROVIDED, that in no event shall anything
contained in this Agreement be construed to protect the Trust or any such person
against any liability to which the Trust or such person would otherwise be
subject by reason of willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement. The Distributor also agrees
likewise to indemnify and hold harmless the Trust and each such person in
connection with any claim or in connection with any
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action, suit or proceeding which arises out of or is alleged to arise out of the
Distributor's failure to exercise reasonable care and diligence with respect to
its services rendered in connection with investment, reinvestment, employee
benefit and other plans for shares. The term "expenses" includes amounts paid
in satisfaction of judgments or in settlements which are made with the
Distributor's consent. The foregoing rights of indemnification shall be in
addition to any other rights to which the Trust or a Trustee may be entitled as
a matter of law.
13. INDEMNIFICATION OF THE DISTRIBUTOR. The Trust agrees to indemnify and
hold harmless the Distributor, its several officers, employees and directors,
and any person who controls the Distributor within the meaning of Section 15 of
the 1933 Act, against expenses reasonably incurred by any of them in connection
with any claim or in connection with any action, suit or proceeding to which any
of them may be a party, which arises out of or is alleged to arise out of any
misrepresentation or omission to state a material fact, or out of any alleged
misrepresentation or omission to state a material fact in the Trust's
Registration Statement or prospectus, provided that in no event shall anything
contained in this Agreement be construed so as to protect the Distributor
against any liability to the Trust or its shareholders to which the Distributor
would otherwise be subject by reason of willful misfeasance, bad faith, or
negligence, in the performance of its duties under this Agreement. The
foregoing rights of indemnification shall be in addition to any other rights to
which the Distributor may be entitled as a matter of law.
14. ASSIGNMENT TERMINATES THIS AGREEMENT; AMENDMENTS OF THIS AGREEMENT.
This Agreement shall automatically terminate, without the payment of any
penalty, in the event of its assignment. This agreement may be amended only if
such amendment be approved either by action of the Trustees of the Trust or at a
meeting of the shareholders of both Classes by the affirmative vote of a
majority of the outstanding shares of the Classes, and by a majority of the
Trustees of the Trust who are not interested persons of the Trust and who have
no direct or indirect financial interest in the operation of the Distribution
Plan(s) or this Agreement by vote cast in person at a meeting called for the
purpose of voting on such approval.
15. EFFECTIVE PERIOD AND TERMINATION OF THIS AGREEMENT. This Agreement
shall take effect upon the date first above written and shall remain in full
force and effect continuously as to a Fund and a Class of shares thereof (unless
terminated automatically as set forth in Section 14 hereof) until terminated:
(a) Either by such Fund or such Class or the Distributor by not more
than sixty (60) days' nor less than thirty (30) days' written notice
delivered or mailed by registered mail, postage prepaid, to the other
party; or
(b) Automatically as to any Fund or Class thereof at the close of
business one year from the date hereof, or upon the expiration of one year
from the effective date of the last continuance of this Agreement,
whichever is later, if the continuance of this Agreement is not
specifically approved at least annually
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by the Trustees of the Trust or the shareholders of such Fund or such Class
by the affirmative vote of a majority of the outstanding shares of such
Fund or such Class, and by a majority of the Trustees of the Trust who are
not interested persons of the Trust and who have no direct or indirect
financial interest in the operation of the Distribution Plan(s) or this
Agreement by vote cast in person at a meeting called for the purpose of
voting on such approval.
Action by a Fund or a Class thereof under (a) above may be taken either (i)
by vote of the Trustees of the Trust, or (ii) by the affirmative vote of a
majority of the outstanding shares of such Fund or such Class. The requirement
under (b) above that the continuance of this Agreement be "specifically approved
at least annually" shall be construed in a manner consistent with the 1940 Act.
Termination of this Agreement pursuant to this Section 15 shall be without
the payment of any penalty.
If this Agreement is terminated or not renewed with respect to one or more
Funds or Classes thereof, it may continue in effect with respect to any Fund or
any Class thereof as to which it has not been terminated (or has been renewed).
16. LIMITED RECOURSE. The Distributor hereby acknowledges that the
Trust's obligations hereunder with respect to the distribution fees payable with
respect to the shares of any Fund of the Trust or a particular Class of shares
of a Fund are binding only on the assets and property belonging to such Fund or
such Class.
17. CERTAIN DEFINITIONS. For the purposes of this Agreement, the
"affirmative vote of a majority of the outstanding shares" means the affirmative
vote, at a duly called and held meeting of shareholders, (a) of the holders of
67% or more of the shares of the Trust or the Fund, as the case may be, present
(in person or by proxy) and entitled to vote at such meeting, if the holders of
more than 50% of the outstanding shares of the Trust or the Fund, as the case
may be, entitled to vote at such meeting are present in person or by proxy, or
(b) of the holders of more than 50% of the outstanding shares of the Trust or
the Fund, as the case may be, entitled to vote at such meeting, whichever is
less.
For the purposes of this Agreement, the terms "interested persons" and
"assignment" shall have the meanings defined in the 1940 Act, subject, however,
to such exemptions as may be granted by the Securities and Exchange Commission
under said Act. Certain other items used herein that are not otherwise defined
have the meaning given in the current prospectus of the Trust or constituent
agreements or documents of the Trust.
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