DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made this ______
day of ___________________, 1997, by and between XXXXXX/BIAM WORLDWIDE
FUNDS TRUST, a business trust organized and existing under the laws of
the State of Delaware (the "Trust"), and XXXXXX DISTRIBUTORS, INC., a
corporation organized and existing under the laws of the State of
Colorado (the "Distributor"). This Agreement applies separately to
each series of the Trust, whether now existing or hereafter created,
listed on Exhibit A hereto as it may be amended from time to time
(each a "Fund" and collectively the "Funds").
RECITALS
A. The Trust is engaged in business as an open-end
management investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act").
B. The Distributor is registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended (the "1934 Act") and
is registered as a broker-dealer under the laws of each state of the
United States and in each other jurisdiction in which the Distributor
engages in business to the extent that the laws of such states and
such jurisdictions require such registration, and is a member of the
National Association of Securities Dealers, Inc. (the "NASD") (such
registration and membership are referred to collectively as the
"Registrations").
C. The Trust and the Distributor desire the Distributor to
act as the principal underwriter for the public offering of the shares
of beneficial interest (the "Shares") of each Fund, whether now
existing or hereafter created.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. APPOINTMENT. The Trust appoints the Distributor to act
as distributor of the Shares of each Fund.
2. TRUST TO FURNISH DOCUMENTS. The Trust shall furnish the
Distributor with copies of any registration statements, prospectuses
or statements of additional information pertaining to any Fund filed
by the Trust with the Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended
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(the "1933 Act"), or the 1940 Act, together with any financial
statements and exhibits included therein, and all amendments or
supplements thereto hereafter filed.
The Trust shall also furnish the Distributor with such other
certificates or documents as the Distributor may from time to time, in
its discretion, reasonably deem necessary or appropriate in order to
perform its duties under this Agreement properly.
3. SOLICITATION OF ORDERS FOR PURCHASE OF SHARES.
(a) Subject to the provisions of Sections 4 and 7
hereof, and to such minimum purchase requirements as may from time to
time be indicated in each Fund's prospectus or statement of additional
information, the Distributor is authorized to solicit, as agent on
behalf of the Trust, unconditional orders for purchases of each Fund's
Shares authorized for issuance and registered under the 1933 Act,
provided that:
(1) The Distributor shall act solely as a
disclosed agent on behalf of and for the account of the Trust;
(2) The Distributor shall confirm or arrange with
the transfer agent for the Shares to confirm all purchases of the
Shares. Such confirmation shall conform to the requirements of the
1934 Act and the rules thereunder and shall clearly state that the
Distributor is acting as agent in the transaction;
(3) The Distributor shall have no liability for
payment for purchases of Shares it sells as agent, but will use
reasonable efforts to assure that each Fund receives payment for
Shares purchased through the Distributor in accordance with the
requirements of applicable law and regulations; and
(4) Each order to purchase Shares of a Fund
received by the Distributor shall be subject to acceptance by the
Trust and entry of the order on such Fund's records or shareholder
accounts and is not binding until so accepted and entered.
The purchase price of a Fund's Shares to the
public shall be the public offering price described in Section 6
hereof.
(b) The Distributor shall use reasonable efforts (but only
in states and jurisdictions in which the Distributor may lawfully do
so) to solicit from investors unconditional orders to purchase Shares
of each Fund.
4. SOLICITATION OF ORDERS TO PURCHASE SHARES BY TRUST. The
rights granted to the Distributor shall be non-exclusive in that the
Trust reserves the right to otherwise solicit purchases from, and sell
Shares to, investors, including without limitation the right to issue
Shares in connection with the merger or consolidation of any other
investment company, trust or personal holding company with a Fund, or
a Fund's acquisition, by the
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purchase or otherwise, of all or substantially all of the assets of an
investment company, trust or personal holding company, or
substantially all of the outstanding shares or interests of any such
entity.
5. NO COMPENSATION; PAYMENT OF EXPENSES. The Distributor will
not be entitled to any compensation with respect to its services under
this Agreement. The Distributor shall pay its own expenses incurred
in the discharge of its duties hereunder, but shall not be responsible
to pay any expenses of the Trust or any Fund, including without
limitation, any charges of the Trust's transfer, recordkeeping,
dividend disbursing and redemption agents, if any; any expenses of
preparation, printing and mailing of confirmations; any expenses of
preparation and printing of annual or more frequent revisions of each
Fund's prospectus and statement of additional information and of
supplying copies thereof to shareholders; any expenses of registering
and maintaining the registrations of the Trust under the 1940 Act and
the sale of the Trust's Shares under the 1933 Act; and any expenses of
registering or qualifying and maintaining registrations or
qualifications of each Fund and of the Shares for sale under
securities laws of various states or other jurisdictions and of
registration or qualification of the Trust and each Fund under all
laws applicable to the Trust or its business activities.
6. PUBLIC OFFERING PRICE. All solicitations by the Distributor
pursuant to this Agreement shall be for orders to purchase Shares of a
Fund at the public offering price. The public offering price for each
accepted order for a Fund's Shares will be the net asset value per
Share next determined by the Trust after it or its authorized agent or
designee accepts such order. The net asset value per Share of the
Shares shall be determined in the manner provided in the Trust's Trust
Instrument and Bylaws as now in effect or as may be amended, and as
reflected in the then current prospectus and statement of additional
information pertaining to such Fund.
7. SUSPENSION OF SALES. If and whenever the determination of a
Fund's net asset value is suspended and until such suspension is
terminated, no further orders for Shares shall be accepted by the
Trust except such unconditional orders placed with the Trust and
accepted by it before the suspension. In addition, the Trust reserves
the right to suspend sales of Shares of a Fund if, in the judgment of
the Trustees, it is in the best interest of the Fund to do so, such
suspension to continue for such period as may be determined by the
Trustees; and in that event, (i) at the direction of the Trust, the
Distributor shall suspend its solicitation of orders to purchase
Shares of such Fund until otherwise instructed by the Trust and
(ii) no orders to purchase Shares of such Fund shall be accepted by
the Trust while such suspension remains in effect unless otherwise
directed by its Trustees.
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8. SOLICITATION MATERIALS; AUTHORIZED REPRESENTATIONS.
(a) The Trust shall make available to the Distributor,
without cost to the Trust, such number of copies of each Fund's
currently effective prospectus and statement of additional information
and reports to shareholders and copies of all other information that
the Distributor may reasonably request for use in connection with the
distribution of Shares.
(b) The Distributor is not authorized by the Trust to give
with respect to any Fund any information or to make any
representations in connection with the sale of Shares other than the
information and representations contained in the Trust's registration
statement, or such Fund's prospectus or statement of additional
information, as amended or supplemented from time to time, or
contained in shareholder reports or other material pertaining to such
Fund that may be prepared by or on behalf of the Trust or approved by
the Trust for the Distributor's use.
9. REGISTRATION OF ADDITIONAL SHARES. The Trust hereby agrees
to register either (i) an indefinite number of Shares pursuant to
Rule 24f-2 under the 1940 Act, or (ii) a definite number of Shares as
the Trust shall deem advisable pursuant to Rule 24e-2 under the 1940
Act, or both. The Trust will, in cooperation with the Distributor,
take such action as may be necessary from time to time to register or
qualify the Shares of each Fund (so registered or otherwise qualified
for sale under the 1933 Act), in any state or jurisdiction mutually
agreeable to the Distributor and the Trust, and to maintain such
registration or qualification; provided, however, that nothing herein
shall be deemed to prevent the Trust from registering or qualifying
the Shares without approval of the Distributor in any state or
jurisdiction it deems appropriate.
10. CONFORMITY WITH LAW. The Distributor agrees that in
soliciting orders to purchase Shares it shall duly conform in all
respects with applicable federal and state laws and with the rules and
regulations of the NASD. The Distributor will use its best efforts to
maintain its Registrations in good standing during the term of this
Agreement and will promptly notify the Trust in the event of (i) the
suspension or termination of any of the Registrations, (ii) the
occurrence of any event that would disqualify the Distributor from
acting as the principal underwriter of the Trust or any of its Funds
pursuant to Section 9(a) of the 1940 Act or otherwise, or (iii) the
institution of any administrative, regulatory or judicial proceeding
against the Distributor.
11. INDEPENDENT CONTRACTOR. The Distributor shall be an
independent contractor and none of its officers, directors, employees
or representatives shall be acting as an employee or other agent of
the Trust in the performance of the Distributor's duties hereunder.
The Distributor shall be 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 and
employees and agrees to pay or to insure
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that persons other than the Trust will pay all compensation and taxes
due with respect to the activities of its agents and employees.
12. INDEMNIFICATION. The Distributor agrees to indemnify and
hold harmless the Trust and each of its Trustees, officers, employees
and representatives, and each person, if any, who controls the Trust
within the meaning of Section 15 of the 1933 Act, against any and all
losses, liabilities, damages, claims and expenses (including the
reasonable costs of investigating or defending any alleged loss,
liability, damage, claim or expense and reasonable legal counsel fees
incurred in connection therewith) to which the Trust or such Trustees,
officers, employees, representatives, or controlling person or persons
may become subject under the 1933 Act, under any other statute, at
common law, or otherwise, arising out of the offer or sale of any
Shares of any Fund or any other security to any person which (i) may
be based upon any wrongful act by the Distributor or any of the
Distributor's directors, officers, employees or representatives, or
(ii) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, statement of additional information, shareholder report or
other information covering Shares of such Fund filed or made public by
the Trust or any amendment thereof or supplement thereto 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, if such statement or omission was made in reliance upon
written information furnished or confirmed by the Distributor to the
Trust. In no case is the Distributor's indemnity in favor of the
Trust, or any person indemnified, to be deemed to protect the Trust or
such indemnified person against any liability to which the Trust or
such person would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its
or such person's duties or by reason of its or such person's reckless
disregard of its or such person's obligations and duties under this
Agreement. The Trust or any person indemnified, as the case may be,
shall notify the Distributor in writing of the claim within a
reasonable time after the summons or other first written notification
giving information of the nature of the claim is served upon the Trust
or upon such person (or after the Trust or such person shall have
received notice of such service on any designated agent); however,
failure to so notify the Distributor of any such claim shall not
relieve the Distributor from any liability hereunder unless and to the
extent that its ability to defend against such claim is prejudiced by
such failure, nor from any liability that the Distributor may have to
the Trust or any person against whom such action is brought otherwise
than on account of the Distributor's indemnity agreement contained in
this section.
The Distributor shall be entitled to participate, at its own
expense, in the defense or, if Distributor so elects, to assume the
defense of any action brought to enforce any such claim but, if the
Distributor elects to assume the defense, such defense shall be
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conducted by legal counsel chosen by the Distributor and reasonably
satisfactory to the persons indemnified who are defendants in the
action. In the event that the Distributor elects to assume the
defense of any such action and retain such legal counsel, persons
indemnified who are defendants in the action shall bear the fees and
expenses of any additional legal counsel retained by them. If the
Distributor does not elect to assume the defense of any such action,
the Distributor shall reimburse persons indemnified who are defendants
in such action for the reasonable fees of any legal counsel retained
by them in such litigation.
The Trust agrees to indemnify and hold harmless the Distributor
and each of its directors, officers, employees and representatives,
and each person, if any, who controls the Distributor within the
meaning of Section 15 of the 1933 Act, against any and all losses,
liabilities, damages, claims or expenses (including the reasonable
costs of investigating or defending any alleged loss, liability,
damage, claim or expenses and reasonable legal counsel fees incurred
in connection therewith) to which the Distributor or such of its
directors, officers, employees, representatives or controlling person
or persons may become subject under the 1933 Act, under any other
statute, at common law, or otherwise, arising out of the offer or sale
of any Shares of any Fund to any person which (i) may be based upon
any wrongful act by the Trust or any of its Trustees, officers,
employees or representatives other than the Distributor, or (ii) may
be based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
statement of additional information, shareholder report or other
information covering Shares filed or made public by the Trust or any
amendment thereof or supplement thereto, 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,
unless such statement or omission was made in reliance upon written
information furnished or confirmed by the Distributor to the Trust.
In no case is the Trust's indemnity in favor of the Distributor or any
person indemnified to be deemed to protect the Distributor or such
indemnified person against any liability to which the Distributor or
such indemnified person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance
of its or such person's duties or by reason of its or such person's
reckless disregard of its or such person's obligations and duties
under this Agreement. The Distributor or any person indemnified, as
the case may be, shall notify the Trust in writing of the claim within
a reasonable time after the summons or other first written
notification giving information of the nature of the claim is served
upon the Distributor or upon such person (or after the Distributor or
such person shall have received notice of such service on any
designated agent); however, failure to so notify the Trust of any such
claim shall not relieve the Trust from any liability hereunder unless
and to the extent that its ability to defend against such claim is
prejudiced by such failure, nor from any liability which the Trust may
have to the Distributor or any person against whom such action
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is brought otherwise than on account of the Trust's indemnity
agreement contained in this section.
The Trust shall be entitled to participate, at its own expense,
in the defense or, if the Trust so elects, to assume the defense of
any action brought to enforce such claim but, if the Trust elects to
assume the defense, such defense shall be conducted by legal counsel
chosen by the Trust and reasonably satisfactory to the persons
indemnified who are defendants in the action. In the event that the
Trust elects to assume the defense of any such action and retain such
legal counsel, the persons indemnified who are defendants in the
action shall bear the fees and expenses of any additional legal
counsel retained by them. If the Trust does not elect to assume the
defense of any such action, the Trust shall reimburse the persons
indemnified who are defendants in such action for the reasonable fees
and expenses of any legal counsel retained by them in such litigation.
13. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement
shall become effective with respect to each Fund on the Effective Date
specified on Exhibit A hereto with respect to such Fund, and unless
terminated as provided herein, shall remain in effect until the
Termination Date specified on Exhibit A hereto with respect to such
Fund, and shall continue thereafter from year to year, but only so
long as such continuance is specifically approved at least annually
(a) by a vote of a majority of the Trustees who are not interested
persons of the Distributor or of the Trust, voting in person at a
meeting called for the purpose of voting on such approval, and (b) by
the vote of either the Trustees or a majority of the outstanding
voting securities of the Fund. If the continuance of this Agreement
is not approved as to a Fund, this Agreement shall nonetheless
continue with respect to those Funds as to which such continuance has
been approved. This Agreement may be terminated with respect to an
individual Fund at any time, without the payment of any penalty (a) on
60 days' written notice, by the Trustees or by a vote of a majority of
the outstanding voting securities of such Fund, or by the Distributor,
or (b) immediately, on written notice by the Trustees, in the event of
termination or suspension of any of the Registrations. This Agreement
will automatically terminate in the event of its assignment.
In interpreting the provisions of this Section 13, the terms
"assignment," "approved at least annually," "interested persons" and
"vote of a majority of the outstanding voting securities" shall have
same meanings as when used in the 1940 Act (in each case as the 1940
Act is now in effect or hereafter may be amended) and the rules and
regulations thereunder, subject to such orders, exemptions and
interpretations as may be issued by the SEC under the 1940 Act and as
may be then in effect. Where the effect of a requirement of the
federal securities laws reflected in any provision of this Agreement
is made less restrictive by a rule, regulation, order, interpretation
or other authority of the SEC, whether of special or general
application, such provisions shall be deemed to incorporate the effect
of such rule, regulation or order.
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14. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement
may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by each party against which
enforcement of the change, waiver, discharge or termination is sought.
If the Trust should at any time deem it necessary or advisable in the
best interests of a Fund that any amendment of this Agreement be made
in order to comply with the recommendations or requirements of the SEC
or any other governmental authority or to obtain any advantage under
state or federal or tax laws and notifies the Distributor of the form
of such amendment, and the reasons therefor, and if the Distributor
should decline to assent to such amendment, the Trust may immediately
thereupon terminate this Agreement as to that Fund.
15. LIMITATION ON PERSONAL LIABILITY. NOTICE IS HEREBY GIVEN
that the Trust is a business trust organized under the Delaware
Business Trust Act pursuant to a Certificate of Trust filed in the
office of the Secretary of State of the State of Delaware. All
parties to this Agreement acknowledge and agree that the Trust is a
series trust and all debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a
particular series shall be enforceable against the assets held with
respect to such series only, and not against the assets of the Trust
generally or against the assets held with respect to any other series
and further that no Trustee, officer or holder of shares of beneficial
interest of the Trust shall be personally liable for any of the
foregoing.
16. NOTIFICATION BY THE TRUST. The Trust agrees to advise the
Distributor immediately:
(a) of any request by the SEC for amendments to the Trust's
registration statement insofar as it relates to any of the Funds, the
prospectus or the statement of additional information pertaining to
any Fund or for additional information,
(b) in the event of the issuance by the SEC of any stop
order suspending the effectiveness of the Trust's registration
statement insofar as it relates to any of the Funds, the prospectus or
the statement of additional information pertaining to any Fund or the
initiation of any proceeding for that purpose,
(c) of the occurrence of any material event which makes
untrue any statement made in the Trust's registration statement
insofar as it relates to any of the Funds, the prospectus or the
statement of additional information pertaining to any Fund or which
requires the making of a change in order to make the statements
therein not misleading, and
(d) of all actions of the SEC with respect to any
amendments to the Trust's registration statement insofar as it relates
to any of the Funds, the prospectus or the statement of additional
information pertaining to any Fund which may from time to time be
filed with the SEC under the 1933 Act.
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17. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Colorado (without giving
effect to the conflicts of laws principles thereof) and the 1940 Act.
To the extent that the applicable laws of the State of Colorado
conflict with the applicable provisions of the 1940 Act, the latter
shall control.
18. MISCELLANEOUS. The captions in this Agreement are included
for convenience of reference only, and in no way define or limit any
of the provisions hereof or otherwise affect their construction or
effect. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. 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.
19. NOTICE. Any notice required or permitted to be given by a
party to this Agreement or to any other party hereunder shall be
deemed sufficient if delivered in person or sent by registered or
certified mail, postage prepaid, addressed by the party giving notice
to each such other party at the address provided below or to the last
address furnished by each such other party to the party giving notice.
If to the Trust: 000 Xxxxxxxxxx Xxxxxxxxx, #000
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
If to
the Distributor: 000 Xxxxxxxxxx Xxxxxxxxx, #000
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
XXXXXX DISTRIBUTORS, INC.
By:______________________________________
XXXXXX/BIAM WORLDWIDE FUNDS TRUST
By:______________________________________
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EXHIBIT A
FUND EFFECTIVE TERMINATION
DATE DATE
Xxxxxx/BIAM International Fund ______________, 1997 May 1, 1998
Xxxxxx/BIAM International
Institutional Fund ______________, 1997 May 1, 1998
Xxxxxx/BIAM International
CORE Fund ______________, 1997 May 1, 1998
