EXHIBIT 6(b)
DISTRIBUTION AGREEMENT
This Distribution Agreement is made as of this ____ day of ___________,
1997 by and between ST. CLAIR FUNDS, INC., a Maryland corporation (the "Fund"),
and HUNTLEIGH FUND DISTRIBUTORS, INC., a Missouri corporation (the
"Distributor").
WHEREAS, the Fund is an open-end management investment company and is so
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Fund desires to retain Huntleigh Fund Distributors, Inc. as
distributor for the Fund's shares of common stock in the Fund's five separate
portfolios, Munder S&P 500 Index Equity Fund, Munder S&P MidCap Index Equity
Fund, Munder S&P SmallCap Index Equity Fund, Munder Foreign Equity Fund and the
Munder Aggregate Bond Index Fund (individually, a "Portfolio" and collectively,
the "Portfolios"), to provide for the sale and distribution of shares of the
Portfolios (the "Shares"), and the Distributor is willing to render such
services;
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein and intending to be legally bound hereby, the parties hereto agree
as follows:
I. DELIVERY OF DOCUMENTS
The Fund has delivered to the Distributor copies of each of the following
documents and will deliver to it all future amendments and supplements thereto,
if any:
(a) Resolutions of the Fund's Board of Directors authorizing the execution
and delivery of this Agreement;
(b) The Fund's Articles of Incorporation as filed with the State of
Maryland Department of Assessments and Taxation on May 23, 1984;
(c) The Fund's By-Laws;
(d) The Fund's Notification of Registration on Form N-8A under the 1940
Act as filed with the Securities and Exchange Commission ("SEC");
(e) The Fund's Registration Statement on Form N-1A (the "Registration
Statement") under the Securities Act of 1933 (the "1933 Act") and the
1940 Act, as filed with the SEC; and
(f) The Fund's most recent Prospectus(es) and Statements of Additional
Information and all amendments and supplements thereto (collectively,
the "Prospectuses").
II. DISTRIBUTION
1. APPOINTMENT OF DISTRIBUTOR. The Fund hereby appoints Huntleigh Fund
Distributors, Inc. as distributor of the Portfolios' Shares and the Distributor
hereby accepts such appointment and agrees to render the services and duties set
forth in Section 2. In the event that the Fund establishes one or more
additional portfolios or classes of shares other than the Portfolios and the
Shares with respect to which it decides to retain the Distributor to act as
distributor hereunder, the Fund shall notify the Distributor in writing. If the
Distributor is willing to render such services, it shall so notify the Fund in
writing whereupon such portfolio and such shares shall become a Portfolio and
Shares hereunder and shall be subject to the provisions of this Agreement,
except to the extent that said provision is modified with respect to such
portfolio or shares in writing by the Fund and the Distributor at the time.
2. SERVICES AND DUTIES.
(a) The Fund agrees to sell through the Distributor, as agent, from time
to time during the term of this Agreement, Shares (whether authorized but
unissued or treasury shares, in the Fund's sole discretion) upon the terms and
at the current offering price as described in the applicable Prospectus. The
Distributor will act only in its own behalf as principal in making agreements
with selected dealers or others for the sale and redemption of Shares, and shall
sell Shares only at the offering price thereof as set forth in the applicable
Prospectus. The Distributor shall devote appropriate efforts to effect sales of
Shares of each of the Portfolios, but shall not be obligated to sell any certain
number of Shares.
(b) In all matters relating to the sale and redemption of Shares, the
Distributor will act in conformity with the Fund's Articles of Incorporation,
By-Laws and applicable Prospectuses and with the instructions and directions of
the Board of Directors of the Fund and will conform to and comply with the
requirements of the 1933 Act, the 1940 Act, the regulations of the National
Association of Securities Dealers, Inc. and all other applicable Federal or
state laws and regulations.
(c) All Shares of the Portfolios offered for sale by the Distributor shall
be offered for sale at a price per share (the "offering price") equal to their
net asset value (determined in the manner set forth in the applicable
Prospectuses). The offering price, if not an exact multiple of one cent, shall
be adjusted to the nearest cent.
(d) In consideration of its services hereunder and pursuant to the
Shareholder Servicing Agreement dated ______________, 1997, the Fund shall pay
to the Distributor a fee of 0.10 percent of the average daily net assets of the
Funds.
3. SALES AND REDEMPTIONS.
(a) The Fund shall pay all costs and expenses in connection with the
registration of the Shares under the 1933 Act, and all expenses in connection
with maintaining facilities for the issue and transfer of the Shares and for
supplying information, prices and other data to be
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furnished by the Fund hereunder, and all expenses in connection with preparing,
printing and distributing the Prospectuses which are not covered by insurance
companies which have entered into participation agreements with the Fund.
(b) The Fund shall execute all documents, furnish all information and
otherwise take all actions which may be reasonably necessary in the discretion
of the Fund's officers in connection with the sale of the Shares in such states
as the Distributor may designate to the Fund and the Fund may approve, and the
Fund shall pay all filing fees which may be incurred in connection with such
sales. The Distributor shall pay all other expenses incurred by the Distributor
in connection with the sale of the Shares, except as otherwise specifically
provided in this Agreement.
(c) The Fund shall have the right to suspend the sale of Shares at any
time in response to conditions in the securities markets or otherwise, and to
suspend the redemption of Shares of any Portfolio at any time permitted by the
1940 Act or the rules of the SEC ("Rules").
(d) The Fund reserves the right to reject any order for Shares, but will
not do so arbitrarily or without reasonable cause.
III. LIMITATIONS OF LIABILITY
The Distributor shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Fund or any Portfolio in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the performance of its
duties or from reckless disregard by it of its obligations and duties under this
Agreement.
IV. CONFIDENTIALITY
The Distributor will treat confidentially and as proprietary information of
the Fund all records and other information relative to the Fund, to the Fund's
prior or current shareholders and to those persons or entities who respond to
the Distributor's inquiries concerning investment in the Fund, and, except as
provided below, will not use such records and information for any purpose other
than the performance of its responsibilities and duties hereunder. Any other
use by the Distributor of the information and records referred to above may be
made only after prior notification to and approval in writing by the Fund. Such
approval shall not be unreasonably withheld and may not be withheld where: (i)
the Distributor may be exposed to civil or criminal contempt proceedings for
failure to divulge such information; (ii) the Distributor is requested to
divulge such information by duly constituted authorities; or (iii) the
Distributor is so requested by the Fund.
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V. INDEMNIFICATION
1. FUND REPRESENTATION. The Fund represents and warrants to the
Distributor that at all times the Registration Statement and Prospectuses will
in all material respects conform to the applicable requirements of the 1933 Act,
the 1940 Act, and the Rules thereunder and will not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, except that no
representation or warranty in this subsection shall apply to statements or
omissions made in reliance upon and in conformity with written information
furnished to the Fund by or on behalf of and with respect to the Distributor
expressly for use in the Registration Statement or Prospectuses.
2. THE DISTRIBUTOR REPRESENTATION. The Distributor represents and
warrants to the Fund that it is duly organized as a Missouri corporation and is
and at all times will remain duly authorized and licensed to carry out its
services as contemplated herein.
3. FUND INDEMNIFICATION. The Fund, on behalf of each Portfolio, agrees
that each Portfolio will indemnify, defend and hold harmless the Distributor,
its several officers and directors, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, from and against any losses,
claims, damages or liabilities, joint or several, to which any of them may
become subject under the 1933 Act, the 1940 Act, other securities laws, or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectuses, the sales literature or other
promotional material of the Fund or in any application or other document
executed by or on behalf of a Portfolio, or arise out of or based upon,
information furnished by or on behalf of a Portfolio, filed in any state in
order to qualify the Shares under the securities or blue sky laws thereof ("Blue
Sky Application"), or arise out of, or are based upon, 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, or arise out of, or are
based upon any breach of or failure to perform any obligation of the Fund under
the Participation Agreement of even date and will reimburse the Distributor, its
several officers and directors, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, for any legal or other
expenses reasonably incurred by any of them in investigating, defending or
preparing to defend any such action, proceeding or claim; PROVIDED, HOWEVER,
that neither the Fund nor any Portfolio shall be liable in any case to the
extent that such loss, claim, damage or liability arises out of, or is based
upon, any untrue statement, alleged untrue statement, or omission or alleged
omission made in the Registration Statement, the Prospectuses, any Blue Sky
Application or any application or other document executed by or on behalf of the
Fund in reliance upon and in conformity with written information furnished to
the Fund by or on behalf of the Distributor specifically for inclusion therein.
A Portfolio shall not indemnify any person pursuant to this subsection 3
unless the court or other body before which the proceeding was brought has
rendered a final decision on the merits that such person was not liable by
reason of his willful misfeasance, bad faith or gross
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negligence in the performance of his duties, or his reckless disregard of his
obligations and duties, under this Agreement ("disabling conduct") or, in the
absence of such a decision, a reasonable determination (based upon a review of
the facts) that such person was not liable by reason of disabling conduct has
been made by the vote of a majority of a quorum of Directors of the Fund who are
neither "interested parties" of the Fund (as defined in the 0000 Xxx) nor
parties to the proceeding, or by an independent legal counsel in a written
opinion.
Each Portfolio shall advance attorneys' fees and other expenses incurred by
any person in defending any claim, demand, action or suit which is the subject
of a claim for indemnification pursuant to this subsection 3, so long as: (i)
such person shall undertake to repay all such advances unless it is ultimately
determined that he or she is entitled to indemnification hereunder; and (ii)
such person shall provide security for such undertaking, or the Portfolio shall
be insured against losses arising by reason of any lawful advances, or a
majority of a quorum of the disinterested, non-party Directors of the Fund (or
an independent legal counsel in a written opinion) shall determine based on a
review of readily available facts (as opposed to a full trial-type inquiry) that
there is reason to believe that such person ultimately will be found entitled to
indemnification hereunder.
The obligations of each Portfolio under this subsection 3 shall be the
several (and not joint or joint and several) obligation of each Portfolio.
4. THE DISTRIBUTOR'S INDEMNIFICATION. The Distributor will indemnify,
defend and hold harmless the Fund, each Portfolio, the Fund's several officers
and Directors and any person who controls the Fund or any Portfolio within the
meaning of Section 15 of the 1933 Act, from and against any losses, claims,
damages or liabilities, joint or several, to which any of them may become
subject under the 1933 Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings in respect hereof) arise out of, or
are based upon, any breach of its representations, warranties and agreements
herein, or which arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectuses, any Blue Sky Application or any application or
other documents executed by or on behalf of the Fund 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, which statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Fund or any of its several officers and Directors by or on
behalf of the Distributor specifically for inclusion therein, and will reimburse
the Fund, each Portfolio, the Fund's several officers and Directors, and any
person who controls the Fund or any Portfolio within the meaning of Section 15
of the 1933 Act, for any legal or other expenses reasonably incurred by any of
them in investigating, defending or preparing to defend any such action,
proceeding or claim.
5. GENERAL INDEMNITY PROVISION. No indemnifying party shall be liable
under its indemnity agreement contained in subsection 3 or 4 hereof with respect
to any claim made against such indemnifying party unless the indemnified party
shall have notified the indemnifying party in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon the
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indemnified party (or after the indemnified party shall have received notice of
such service on any designated agent), but failure to notify the indemnifying
party of any such claim shall not relieve it from any liability which it may
otherwise have to the indemnified party. The indemnifying party will be
entitled to participate at its own expense in the defense or, if it so elects,
to assume the defense of any suit brought to enforce any such liability, and if
the indemnifying party elects to assume the defense, such defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party. In the event the indemnifying party elects to assume the defense of any
such suit and retain such counsel, the indemnified party shall bear the fees and
expenses of any additional counsel retained by the indemnified party.
VI. DURATION AND TERMINATION
This Agreement shall become effective as of the date first above written,
and, unless sooner terminated as provided herein, shall continue until
_____________, 1998. Thereafter, if not terminated, this Agreement shall
continue automatically for successive terms of one year, provided that such
continuance is specifically approved at least annually by a vote of the majority
of the Board of Directors of the Fund, including a majority of the Directors who
are not "interested persons" of the Fund and have no direct or indirect
financial interest in the operation of the Plan, this Agreement, or in any
agreement relating to the Plan (the "Plan Directors"), by vote cast in person at
a meeting called for the purpose of voting on such approval; PROVIDED, HOWEVER,
that this Agreement may be terminated with respect to any Portfolio by the Fund
at any time, without the payment of any penalty, by vote of a majority of the
Plan Directors or by a vote of a "majority of the outstanding voting securities"
of such Portfolio on 60 days' written notice to the Distributor, or by the
Distributor at any time, without the payment of any penalty, on 60 days' written
notice to the Fund. This Agreement will automatically and immediately terminate
in the event of its "assignment." (As used in this Agreement, the terms
"majority of the outstanding voting securities," "interested person" and
"assignment" shall have the same meanings as such terms have in the 1940 Act.)
VII. AMENDMENT OF THIS AGREEMENT
No provision of this Agreement may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party against which
an enforcement of the change, waiver, discharge or termination is sought.
VIII. NOTICES
Notices of any kind to be given to the Fund hereunder by the Distributor
shall be in writing and shall be duly given if mailed or delivered to the Fund
at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxx
Xxxxxx, with a copy to Xxxx X. Xxxx, Esq., Dechert Price & Xxxxxx, 0000 X Xxxxxx
X.X., Xxxxxxxxxx, X.X. 00000-0000, or at such other address or to such
individual as shall be so specified by the Fund to the Distributor. Notices of
any kind to be given to the Distributor hereunder by the Fund shall be in
writing and shall be duly given if mailed or delivered to the Distributor at
00000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xx.
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Xxxxx, XX 00000 Attention: Xxxxx Xxxxxxxxx or at such other address or to such
individual as shall be so specified by the Distributor to the Fund.
IX. MISCELLANEOUS
The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby. Subject to the
provisions of Section VI hereof, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
shall be governed by Maryland Law; PROVIDED, HOWEVER, that nothing herein shall
be construed in a manner inconsistent with the 1940 Act or any rule or
regulation of the SEC thereunder.
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 above
written.
ST. CLAIR FUNDS, INC.
By:
-----------------------------
Name: Xxx X. Xxxxxx
Title: President
Attest:
-------------------------
HUNTLEIGH FUND DISTRIBUTORS, INC.
By:
-----------------------------
Name:
Title:
Attest:
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