Exhibit 99.B6
DISTRIBUTION AGREEMENT
AGREEMENT made this day of , 2001, between
X.X. Xxxxxx Series Trust II (the "Company"), having its principal place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, and X.X. Xxxxxx Fund
Distributors, Inc. ("Distributor"), having its principal place of business
at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Company is an open-end management investment company,
organized as a Delaware business trust and registered with the Securities and
Exchange Commission (the "Commission") under the Investment Company Act of
1940, as amended (the "1940 Act"); and
NOW, THEREFORE, in consideration of the mutual premises and
covenants herein set forth, the parties agree as follows:
1. SERVICES AS DISTRIBUTOR.
1.1 Distributor will act as agent for the distribution of
the Shares covered by the registration statement and prospectus of the
Company then in effect under the Securities Act of 1933, as amended (the
"Securities Act"). As used in this Agreement, the term "registration
statement" shall mean Parts A (the prospectus), B (the Statement of
Additional Information) and C of each registration statement that is filed on
Form N-1A, or any successor thereto, with the Commission, together with any
amendments thereto. The term "prospectus" shall mean each form of prospectus
and Statement of Additional Information used by the Funds for delivery to
shareholders and prospective shareholders after the effective dates of the
above referenced registration statements, together with any amendments and
supplements thereto.
1.2 Distributor agrees to use best efforts to solicit
orders for the sale of the Shares and will undertake such advertising and
promotion as it believes reasonable in connection with such solicitation;
provided, however, that all sales and marketing materials shall have been
approved by the Company. The Company understands that Distributor and/or its
affiliates are now and may in the future be the distributor of the shares of
several investment companies or series (together, "Investment Companies")
including Investment Companies having investment objectives similar to those
of the Company. The Company further understands that investors and potential
investors in the Company may invest in shares of such other Investment
Companies. The Company agrees that Distributor's and/or its affiliates'
duties to such Investment Companies shall not be deemed in conflict with
their duties to the Company under this paragraph 1.2.
Except as provided in Section 2 herein, Distributor shall, at its own
expense, finance appropriate activities which it deems reasonable, which are
primarily intended to result in the sale of the Shares, including, but not
limited to, advertising, compensation of underwriters,
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dealers and sales personnel, the printing and mailing of prospectuses to
other than current Shareholders, and the printing and mailing of sales
literature.
1.3 In its capacity as distributor of the Shares, all
activities of Distributor and its partners, agents, and employees shall
comply with all applicable laws, rules and regulations, including, without
limitation, the 1940 Act, all rules and regulations promulgated by the
Commission thereunder and all rules and regulations adopted by any securities
association registered under the Securities Exchange Act of 1934.
1.4 Distributor will provide one or more persons, during
normal business hours, to respond to telephone questions with respect to the
Company.
1.5 Distributor will transmit any orders received by it for
purchase or redemption of the Shares to the transfer agent and custodian for
the Funds.
1.6 The Company's officers may decline to accept any orders
for, or make any sales of, the Shares until such time as those officers deem
it advisable to accept such orders and to make such sales.
1.7 Distributor will act only on its own behalf as
principal if it chooses to enter into selling agreements with selected
dealers or others.
1.8 The Company agrees at its own expense to execute any
and all documents and to furnish any and all information and otherwise to
take all actions that may be reasonably necessary in connection with the
qualification of the Shares for sale in such states as Distributor may
designate.
1.9 The Company shall furnish from time to time, for use in
connection with the sale of the Shares, such information with respect to the
Funds and the Shares as Distributor may reasonably request; and the Company
warrants that the statements contained in any such information shall fairly
show or represent what they purport to show or represent. The Company shall
also furnish Distributor upon request with: (a) unaudited semi-annual
statements of the Funds' books and accounts prepared by the Company, (b) a
monthly itemized list of the securities in the Funds, (c) monthly balance
sheets as soon as practicable after the end of each month, and (d) from time
to time such additional information regarding the financial condition of the
Funds as Distributor may reasonably request.
1.10 The Company represents to Distributor that, with
respect to the Shares, all registration statements and prospectuses filed by
the Company with the Commission under the Securities Act have been carefully
prepared in conformity with requirements of said Act and rules and
regulations of the Commission thereunder. The registration statement and
prospectus contain all statements required to be stated therein in conformity
with said Act and the rules and regulations
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of said Commission and all statements of fact contained in any such
registration statement and prospectus are true and correct in all material
respects. Furthermore, neither any registration statement nor any prospectus
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading to a purchaser of the Shares. The Company may, but
shall not be obligated to, propose from time to time such amendment or
amendments to any registration statement and such supplement or supplements
to any prospectus as, in the light of future developments, may, in the
opinion of the Company's counsel, be necessary or advisable. If the Company
shall not propose such amendment or amendments and/or supplement or
supplements within fifteen days after receipt by the Company of a written
request from Distributor to do so, Distributor may, at its option, terminate
this Agreement. The Company shall not file any amendment to any registration
statement or supplement to any prospectus without giving Distributor
reasonable notice thereof in advance; provided, however, that nothing
contained in this Agreement shall in any way limit the Company's right to
file at any time such amendments to any registration statement and/or
supplements to any prospectus, of whatever character, as the Company may deem
advisable, such right being in all respects absolute and unconditional.
1.11 The Company may request Distributor to use an
electronic processing system over the internet in which electronically
transmitted orders are forwarded electronically for processing by a third
party known to the Company under circumstances in which Distributor will not
review the orders. Under such circumstances, the Company acknowledges and
agrees that it will independently determine that the third party is a
satisfactory service provider and that Distributor's review will not be
necessary. The Company authorizes Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the
sale of the Shares. The Distributor shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Company in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on the
Distributor's part in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement. In the
absence of willful misfeasance, bad faith or gross negligence or reckless
disregard of obligations or duties hereunder on the part of Distributor or
any of its officers, directors or employees, the Company agrees to indemnify,
defend and hold Distributor, its several partners and employees, and any
person who controls Distributor within the meaning of Section 15 of the
Securities Act free and harmless from and against any and all claims,
demands, liabilities and expenses (including the cost of investigating or
defending such claims, demands or liabilities and any reasonable counsel fees
incurred in connection therewith) which Distributor, its partners and
employees, or any such controlling person, may incur (a) arising out of or
based upon the electronic processing of orders over the internet; (b) based
on any act or omission in the course of, or connected with, rendering
services hereunder; (c) based on any representations made herein by the
Company; (d) based on any act or omission of any prior Distributor (in its
capacity as Distributor or Sub-Administrator), Administrator or Adviser to
the Company, including the registration or failure to register any shares of
the Company in accordance with state or federal laws or resulting from or
relating to any books or records delivered to the Distributor in connection
with its responsibilities under this Agreement
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and occurring prior to the date of this Agreement;or (e) under the Securities
Act or under common law or otherwise, arising out of or based upon (i) any
untrue statement, or alleged untrue statement, of a material fact contained
in any registration statement or any prospectus, (ii) any omission, or
alleged omission, to state a material fact required to be stated in any
registration statement or any prospectus or necessary to make the statements
in either thereof not misleading or (iii) any Company advertisement or sales
literature that is not in compliance with applicable laws, rules or
regulations (including, but not limited to the Conduct Rules of the National
Association of Securities Dealers, Inc.); provided, however, that the
Company's agreement to indemnify Distributor, its partners or employees, and
any such controlling person shall not be deemed to cover any claims, demands,
liabilities or expenses arising out of any statements or representations as
are contained in any prospectus, advertisement or sales literature and in
such financial and other statements as are furnished in writing to the
Company by Distributor and used in the answers to the registration statement
or in the corresponding statements made in the prospectus, advertisement or
sales literature, or arising out of or based upon any omission or alleged
omission to state a material fact in connection with the giving of such
information required to be stated in such answers or necessary to make the
answers not misleading; and further provided that the Company's agreement to
indemnify Distributor and the Company's representations and warranties
hereinbefore set forth in paragraph 1.10 shall not be deemed to cover any
liability to the Company or its Shareholders to which Distributor would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of Distributor's
reckless disregard of its obligations and duties under this Agreement. The
Company's agreement to indemnify Distributor, its partners and employees and
any such controlling person, as aforesaid, is expressly conditioned upon the
Company being notified of any action brought against Distributor, its
partners or employees, or any such controlling person, such notification to
be given by letter or by telegram addressed to the Company at its principal
office in New York, NY and sent to the Company by the person against whom
such action is brought, within 10 days after the summons or other first legal
process shall have been served. The failure to so notify the Company of any
such action shall not relieve the Company from any liability which the
Company may have to the person against whom such action is brought by reason
of any such untrue, or allegedly untrue, statement or omission, or alleged
omission, otherwise than on account of the Company's indemnity agreement
contained in this paragraph 1.11. The Company will be entitled to assume the
defense of any suit brought to enforce any such claim, demand or liability,
but, in such case, such defense shall be conducted by counsel of good
standing chosen by the Company and approved by Distributor, which approval
shall not be unreasonably withheld. In the event the Company elects to assume
the defense of any such suit and retain counsel of good standing approved by
Distributor, the defendant or defendants in such suit shall bear the fees and
expenses of any additional counsel retained by any of them; but in case the
Company does not elect to assume the defense of any such suit, or in case
Distributor reasonably does not approve of counsel chosen by the Company, the
Company will reimburse Distributor, its partners and employees, or the
controlling person or persons named as defendant or defendants in such suit,
for the fees and expenses of any counsel retained by Distributor or them. The
Company's indemnification agreement contained in this paragraph 1.11 and the
Company's representations and warranties in this Agreement shall remain
operative and in full force and effect regardless of any
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investigation made by or on behalf of Distributor, its partners and
employees, or any controlling person, and shall survive the delivery of any
Shares.
This Agreement of indemnity will inure exclusively to Distributor's benefit, to
the benefit of its several partners and employees, and their respective estates,
and to the benefit of the controlling persons and their successors. The Company
agrees promptly to notify Distributor of the commencement of any litigation or
proceedings against the Company or any of its officers or Directors in
connection with the issue and sale of any Shares.
1.12 Distributor agrees to indemnify, defend and hold the
Company, its several officers and Trustees/Directors (hereinafter referred to
as "Directors") and any person who controls the Company within the meaning of
Section 15 of the Securities Act free and harmless from and against any and
all claims, demands, liabilities and expenses (including the costs of
investigating or defending such claims, demands, or liabilities and any
reasonable counsel fees incurred in connection therewith) which the Company,
its officers or Directors or any such controlling person, may incur under the
Securities Act or under common law or otherwise, but only to the extent that
such liability or expense incurred by the Company, its officers or Directors
or such controlling person resulting from such claims or demands, shall arise
out of or be based upon any untrue, or alleged untrue, statement of a
material fact contained in information furnished in writing by Distributor to
the Company and used in the answers to any of the items of the registration
statement or in the corresponding statements made in the prospectus, or shall
arise out of or be based upon any omission, or alleged omission, to state a
material fact in connection with such information furnished in writing by
Distributor to the Company required to be stated in such answers or necessary
to make such information not misleading. Distributor's agreement to indemnify
the Company, its officers and Directors, and any such controlling person, as
aforesaid, is expressly conditioned upon Distributor being notified of any
action brought against the Company, its officers or Directors, or any such
controlling person, such notification to be given by letter or telegram
addressed to Distributor at its principal office in Columbus, Ohio, and sent
to Distributor by the person against whom such action is brought, within 10
days after the summons or other first legal process shall have been served.
Distributor shall have the right of first control of the defense of such
action, with counsel of its own choosing, satisfactory to the Company, if
such action is based solely upon such alleged misstatement or omission on
Distributor's part, and in any other event the Company, its officers or
Directors or such controlling person shall each have the right to participate
in the defense or preparation of the defense of any such action. The failure
to so notify Distributor of any such action shall not relieve Distributor
from any liability which Distributor may have to the Company, its officers or
Directors, or to such controlling person by reason of any such untrue or
alleged untrue statement, or omission or alleged omission, otherwise than on
account of Distributor's indemnity agreement contained in this paragraph 1.12.
1.13 No Shares shall be offered by either Distributor or
the Company under any of the provisions of this Agreement and no orders for
the purchase or sale of Shares hereunder shall be accepted by the Company if
and so long as the effectiveness of the registration statement then in effect
or any necessary amendments thereto shall be suspended under any of the
provisions of the
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Securities Act or if and so long as a current prospectus as required by
Section 10(b)(2) of said Act is not on file with the Commission; provided,
however, that nothing contained in this paragraph 1.13 shall in any way
restrict or have an application to or bearing upon the Company's obligation
to repurchase Shares from any Shareholder in accordance with the provisions
of the Company's prospectus, Declaration of Trust/Articles of Incorporation,
or Bylaws.
1.14 The Company agrees to advise Distributor as soon as
reasonably practical by a notice in writing delivered to Distributor or its
counsel:
(a) of any request by the Commission for
amendments to the registration statement
or prospectus then in effect or for
additional information;
(b) in the event of the issuance by the
Commission of any stop order suspending the
effectiveness of the registration statement
or prospectus then in effect or the
initiation by service of process on the
Company of any proceeding for that purpose;
(c) of the happening of any event that makes
untrue any statement of a material fact made
in the registration statement or prospectus
then in effect or which requires the making
of a change in such registration statement
or prospectus in order to make the
statements therein not misleading; and
(d) of all action of the Commission with respect
to any amendment to any registration
statement or prospectus which may from time
to time be filed with the Commission.
For purposes of this section, informal requests by or acts of the
Staff of the Commission shall not be deemed actions of or requests by the
Commission.
1.15 Distributor agrees on behalf of itself and its
partners and employees to treat confidentially and as proprietary information
of the Company all records and other information relative to the Company and
its prior, present or potential Shareholders, and not to use such records and
information for any purpose other than performance of its responsibilities
and duties hereunder, except, after prior notification to and approval in
writing by the Company, which approval shall not be unreasonably withheld and
may not be withheld where Distributor may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the
Company.
1.16 This Agreement shall be governed by the laws of the
State of New York.
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1.17 In the event Distributor purchases the initial shares
of the Company for purposes of satisfying the minimum net worth requirements
set forth in Section 14 (a) of the 1940 Act, and a notice of termination is
subsequently given or this Agreement is otherwise terminated pursuant to
Section 6 herein for any reason prior to the time that organizational
expenses incurred by the Company have been fully amortized, then the Company
shall cause the successor distributor of the shares (the "Successor
Distributor") to pay to Distributor, within ten (10) days prior to the
termination of this Agreement, an amount of cash that is sufficient to
purchase the initial shares that are held by Distributor
1.18 The Company and Distributor each represents and
warrants that (i) on or prior to July 1, 2001, it has, or will have, adopted
a policy for the safeguarding of non-public personal information pertaining
to their respective customers and consumers ("Privacy Policy") and (ii) its
Privacy Policy will, at all times after July 1, 2001 and during the term of
this Agreement, be in substantial compliance with all applicable statutes,
rules and regulations. The Company and Distributor further represent and
warrant that (i) each has, or will have not later than July 1, 2001,
delivered a copy of its Privacy Policy to the other party and (ii) in the
event that its Privacy Policy is amended or restated, it will promptly
deliver to the other party a copy of the amended and restated Privacy Policy.
The Distributor represents and warrants that, in connection with its
provision of services hereunder, it will, at all times after July 1, 2001 and
during the term of this Agreement, be in substantial compliance with the
Company's Privacy Policy, as and to the extent the same may be applicable to
it in respect of the Company's shareholders and other consumers.
2. REIMBURSEMENT OF EXPENSES.
The Company shall reimburse Distributor for its
registration and audit fees and any other Distributor-related expenses,
promptly upon request by Distributor.
3. SALE AND PAYMENT.
Shares of a Fund may be subject to a sales load and may be
subject to the imposition of a distribution fee pursuant to the Distribution
Plan for the Funds. To the extent that Shares of a Fund are sold at an
offering price which includes a sales load or at net asset value subject to a
contingent deferred sales load with respect to certain redemptions (either
within a single class of Shares or pursuant to two or more classes of
Shares), such Shares shall hereinafter be referred to collectively as "Load
Shares" (in the case of Shares that are sold with a front-end sales load or
Shares that are sold subject to a contingent deferred sales load), "Front-End
Load Shares" or "CDSL Shares" and individually as a "Load Share," a
"Front-End Load Share" or a "CDSL Share." A Fund that contains Front-End Load
Shares shall hereinafter be referred to collectively as "Load Funds" or
"Front-End Load Funds" and individually as a "Load Fund" or a "Front-end Load
Fund." A Fund that contains CDSL Shares shall hereinafter be referred to
collectively as "Load Funds" or "CDSL Funds" and individually as a "Load
Fund" or a "CDSL Fund." Under this Agreement, the following provisions shall
apply with respect to the sale of, and payment for, Load Shares.
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3.1 Distributor shall have the right to purchase Load
Shares at their net asset value and to sell such Load Shares to the public
against orders therefor at the applicable public offering price, as defined
in Section 4 hereof. Distributor shall also have the right to sell Load
Shares to dealers against orders therefor at the public offering price less a
concession determined by Distributor, which concession shall not exceed the
amount of the sales charge or underwriting discount, if any, referred to in
Section 4 below.
3.2 Prior to the time of delivery of any Load Shares by a
Load Fund to, or on the order of, Distributor, Distributor shall pay or cause
to be paid to the Load Fund or to its order an amount in Boston or New York
clearing house funds equal to the applicable net asset value of such Shares.
Distributor may retain so much of any sales charge or underwriting discount
as is not allowed by Distributor as a concession to dealers.
4. PUBLIC OFFERING PRICE.
The public offering price of a Load Share shall be the net
asset value of such Load Share, plus any applicable sales charge, all as set
forth in the current prospectus of the Load Fund. The net asset value of
Shares shall be determined in accordance with the provisions of the
Declaration or Trust/Articles of Incorporation and Bylaws of the Company and
the then-current prospectus of the Load Fund.
5. ISSUANCE OF SHARES.
The Company reserves the right to issue, transfer or sell
Load Shares at net asset value (a) in connection with the merger or
consolidation of the Company or the Load Fund(s) with any other investment
company or the acquisition by the Company or the Load Fund(s) of all or
substantially all of the assets or of the outstanding Shares of any other
investment company; (b) in connection with a pro rata distribution directly
to the holders of Shares in the nature of a stock dividend or split; (c) upon
the exercise of subscription rights granted to the holders of Shares on a pro
rata basis; (d) in connection with the issuance of Load Shares pursuant to
any exchange and reinvestment privileges described in any then-current
prospectus of the Load Fund; and (e) otherwise in accordance with any
then-current prospectus of the Load Fund.
6. TERM, DURATION AND TERMINATION.
This Agreement shall become effective with respect to each
Fund listed on Schedule A hereof as of the date first written above (or, if a
particular Fund is not in existence on such date, on the date an amendment to
Schedule A to this Agreement relating to that Fund is executed) and, unless
sooner terminated as provided herein, shall continue until August 31, 2002.
Thereafter, if not terminated, this Agreement shall continue with respect to
a particular Fund automatically for successive one-year terms, provided that
such continuance is specifically approved at least annually by (a) by the
vote of a majority of those members of the Company's Directors who are not
parties
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to this Agreement or interested persons of any such party, cast in person at
a meeting for the purpose of voting on such approval and (b) by the vote of
the Company's Directors or the vote of a majority of the outstanding voting
securities of such Fund. This Agreement is terminable without penalty, on not
less than sixty days' prior written notice, by the Company's Directors, by
vote of a majority of the outstanding voting securities of the Company or by
the Distributor. This Agreement will also terminate automatically in the
event of its assignment. (As used in this Agreement, the terms "majority of
the outstanding voting securities," "interested persons" and "assignment"
shall have the same meanings as ascribed to such terms in the 1940 Act.)
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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 written above.
X.X. XXXXXX SERIES TRUST II
By:
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Title:
-----------------------------
Date:
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X.X. XXXXXX FUND
DISTRIBUTORS, INC.
By:
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Title:
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Date:
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Dated: ___________
SCHEDULE A
TO THE DISTRIBUTION AGREEMENT
BETWEEN
X.X. XXXXXX SERIES TRUST II
AND
X.X. XXXXXX FUND DISTRIBUTORS, INC.
[List of Portfolios]
X.X. Xxxxxx Bond Portfolio
X.X. Xxxxxx U.S. Disciplined Equity Portfolio
X.X. Xxxxxx Small Company Portfolio
X.X. Xxxxxx International Opportunities Portfolio
X.X. Xxxxxx Mid Cap Value Portfolio
A-1
