FORM OF
DISTRIBUTION AGREEMENT
[Date]
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the
agreements hereinafter contained, the undersigned,
[Fund Name] (the "Fund") a [corporation/business
trust] organized under the laws of [the State of
Maryland/the Commonwealth of Massachusetts] has agreed
that Xxxxxxx Xxxxx Barney Inc. ("Xxxxxxx Xxxxx
Xxxxxx") shall be, for the period of this Agreement,
the distributor of shares of the Fund (the "Shares").
1. Services as Distributor
1.1 Xxxxxxx Xxxxx Barney will act as
agent for the distribution of Shares covered by the
registration statement, including the prospectus and
statement of additional information, then in effect
under the Securities Act of 1933, as amended (the
"1933 Act"), and the Investment Company Act of 1940,
as amended (the "1940 Act").
1.2 Xxxxxxx Xxxxx Xxxxxx agrees to use
its best efforts to solicit orders for the sale of
Shares and will undertake such advertising and
promotion as it believes is reasonable in connection
with such solicitation.
1.3 All activities by Xxxxxxx Xxxxx
Barney as distributor of the Shares shall comply with
all applicable laws, rules, and regulations,
including, without limitation, all rules and
regulations made or adopted by the Securities and
Exchange Commission (the "SEC") or by any securities
association registered under the Securities Exchange
Act of 1934.
1.4 Xxxxxxx Xxxxx Xxxxxx will provide
one or more persons during normal business hours to
respond to telephone questions concerning the Fund.
1.5 Xxxxxxx Xxxxx Barney will transmit
any orders received by it for purchase or redemption
of Shares to the Fund's transfer and dividend
disbursing agent.
1.6 Whenever in their judgment such
action is warranted for any reason, including, without
limitation, market, economic or political conditions,
the Fund'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 Xxxxxxx Xxxxx Xxxxxx will act only
on its own behalf as principal should it choose to
enter into selling agreements with selected dealers or
others.
1.8 The Fund will pay to Xxxxxxx Xxxxx
Barney an annual fee in connection with the offering
and sale of the Shares under this Agreement. The
annual fee paid to Xxxxxxx Xxxxx Xxxxxx will be
calculated daily and paid monthly by the Fund at an
annual rate set forth in the Services and Distribution
Plan (the "Plan") based on the average daily net
assets of the Fund; provided that payment shall be
made in any month only to the extent that such payment
shall not exceed the sales charge limitations
established by the National Association of Securities
Dealers, Inc.
The annual fee paid to Xxxxxxx Xxxxx
Barney under this Section 1.8 may be used by
Xxxxxxx Xxxxx Xxxxxx to cover any expenses
primarily intended to result in the sale of
Shares, including , but not limited to, the
following:
(a) cost of payments made to Xxxxxxx
Xxxxx Barney Financial Consultants and other
employees of Xxxxxxx Xxxxx Xxxxxx or other
broker-dealers that engage in the distribution
of the Shares;
(b) payments made to, and expenses of,
persons who provide support services in
connection with the distribution of the Shares,
including, but not limited to, office space and
equipment, telephone facilities, answering
routine inquiries regarding the Fund, processing
shareholder transactions and providing any other
shareholder services;
(c) costs relating to the formulation
and implementation of marketing and promotional
activities, including, but not limited to,
direct mail promotions and television, radio,
newspaper, magazine and other mass media
advertising;
(d) costs of printing and distributing
prospectuses and reports of the Fund to
prospective shareholders of the Fund;
(e) costs involved in preparing,
printing and distributing sales literature
pertaining to the Fund; and
(f) costs involved in obtaining whatever
information, analyses and reports with respect
to marketing and promotional activities that the
Fund may, from time to time, deem advisable;
except that distribution expenses shall not include
any expenditures in connection with services which
Xxxxxxx Xxxxx Xxxxxx, any of its affiliates, or any
other person have agreed to bear without
reimbursement.
1.9 Xxxxxxx Xxxxx Barney shall prepare and
deliver reports to the Treasurer of the Fund and to
the sub-investment advisor and/or administrator of the
Fund on a regular, at least quarterly, basis, showing
the distribution expenses incurred pursuant to this
Agreement and the Plan and the purposes therefor, as
well as any supplemental reports as the Trustees, from
time to time, may reasonably request.
2. Duties of the Fund
2.1 The Fund agrees at its own expense
to execute any and all documents, to furnish any and
all information and to take any other actions that may
be reasonably necessary in connection with the
qualification of the Shares for sale in those states
that Xxxxxxx Xxxxx Xxxxxx may designate.
2.2 The Fund shall furnish from time to
time for use in connection with the sale of the
Shares, such information reports with respect to the
Fund and its Shares as Xxxxxxx Xxxxx Barney may
reasonably request, all of which shall be signed by
one or more of the Fund's duly authorized officers;
and the Fund warrants that the statements contained in
any such reports, when so signed by the Fund's
officers, shall be true and correct. The Fund shall
also furnish Salomon Xxxxx Xxxxxx upon request with
(a) annual audits of the Fund's books and accounts
made by independent certified public accountants
regularly retained by the Fund; (b) semi-annual
unaudited financial statements pertaining to the Fund;
(c) quarterly earnings statements prepared by the
Fund; (d) a monthly itemized list of the securities in
the Fund's portfolio; (e) monthly balance sheets as
soon as practicable after the end of each month; and
(f) from time to time such additional information
regarding the Fund's financial condition as Xxxxxxx
Xxxxx Barney may reasonably request.
3. Representations and Warranties
The Fund represents to Xxxxxxx Xxxxx Xxxxxx that
all registration statements, prospectuses and
statements of additional information filed by the Fund
with the SEC under the 1933 Act and the 1940 Act with
respect to the Shares have been carefully prepared in
conformity with the requirements of the 1933 Act, the
1940 Act and the rules and regulations of the SEC
thereunder. As used in this Agreement, the terms
"registration statement," "prospectus" and "statement
of additional information" shall mean any registration
statement, prospectus and statement of additional
information filed by the Fund with the SEC and any
amendments and supplements thereto which at any time
shall have been filed with the SEC. The Fund
represents and warrants to Xxxxxxx Xxxxx Barney that
any registration statement, prospectus and statement
of additional information, when such registration
statement becomes effective, will include all
statements required to be contained therein in
conformance with the 1933 Act, the 1940 Act and the
rules and regulations of the SEC; that all statements
of fact contained in any registration statement,
prospectus or statement of additional information will
be true and correct when such registration statement
becomes effective; and that neither any registration
statement nor any prospectus or statement of
additional information when such registration
statement becomes effective will include an untrue
statement of a material fact or omit 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 Fund
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 or statement of
additional information as, in the light of future
developments, may, in the opinion of the Fund's
counsel, be necessary or advisable. If the Fund shall
not propose such amendment or amendments and/or
supplement or supplements within fifteen days after
receipt by the Fund of a written request from Xxxxxxx
Xxxxx Xxxxxx to do so, Xxxxxxx Xxxxx Barney may, at
its option, terminate this Agreement. The Fund shall
not file any amendment to any registration statement
or supplement to any prospectus or statement of
additional information without giving Xxxxxxx Xxxxx
Xxxxxx reasonable notice thereof in advance; provided,
however, that nothing contained in this Agreement
shall in any way limit the Fund's right to file at any
time such amendments to any registration statement
and/or supplements to any prospectus or statement of
additional information, of whatever character, as the
Fund may deem advisable, such right being in all
respects absolute and unconditional.
4. Indemnification
4.1 The Fund authorizes Xxxxxxx Xxxxx
Xxxxxx and dealers to use any prospectus or statement
of additional information furnished by the Fund from
time to time, in connection with the sale of the
Shares. The Fund agrees to indemnify, defend and hold
Xxxxxxx Xxxxx Barney, its several officers and
directors, and any person who controls Xxxxxxx Xxxxx
Xxxxxx within the meaning of Section 15 of the 1933
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 counsel fees incurred
in connection therewith) which Xxxxxxx Xxxxx Barney,
its officers and directors, or any such controlling
person, may incur under the 1933 Act, the 1940 Act or
under common law or otherwise, arising out of or based
upon any untrue statement, or alleged untrue
statement, of a material fact contained in any
registration statement, any prospectus or any
statement of additional information or arising out of
or based upon any omission, or alleged omission, to
state a material fact required to be stated in any
registration statement, any prospectus or any
statement of additional information or necessary to
make the statements in any thereof not misleading;
provided, however, that the Fund's agreement to
indemnify Xxxxxxx Xxxxx Xxxxxx, its officers or
directors, and any such controlling person shall not
be deemed to cover any claims, demands, liabilities or
expenses arising out of any statements or
representations made by Xxxxxxx Xxxxx Barney or its
representatives or agents other than such statements
and representations as are contained in any prospectus
or statement of additional information and in such
financial and other statements as are furnished to
Xxxxxxx Xxxxx Xxxxxx pursuant to paragraph 2.2 of this
Agreement; and further provided that the Fund's
agreement to indemnify Xxxxxxx Xxxxx Barney and the
Fund's representations and warranties herein before
set forth in paragraph 3 of this Agreement shall not
be deemed to cover any liability to the Fund or its
shareholders to which Xxxxxxx Xxxxx Xxxxxx would
otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of
its duties, or by reason of Xxxxxxx Xxxxx Xxxxxx'x
reckless disregard of its obligations and duties under
this Agreement. The Fund's agreement to indemnify
Xxxxxxx Xxxxx Barney, its officers and directors, and
any such controlling person, as aforesaid, is
expressly conditioned upon the Fund's being notified
of any action brought against Xxxxxxx Xxxxx Xxxxxx,
its officers or directors, or any such controlling
person, such notification to be given by letter or by
telegram addressed to the Fund at its principal office
in New York, New York and sent to the Fund by the
person against whom such action is brought, within ten
days after the summons or other first legal process
shall have been served. The failure so to notify the
Fund of any such action shall not relieve the Fund
from any liability that the Fund may have to the
person against whom such action is brought by reason
of any such untrue, or alleged untrue, statement or
omission, or alleged omission, otherwise than on
account of the Fund's indemnity agreement contained in
this paragraph 4.1. The Fund 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 Fund and approved by Xxxxxxx
Xxxxx Barney. In the event the Fund elects to assume
the defense of any such suit and retains counsel of
good standing approved by Xxxxxxx Xxxxx Xxxxxx, the
defendant or defendants in such suit shall bear the
fees and expenses of any additional counsel retained
by any of them; but if the Fund does not elect to
assume the defense of any such suit, or if Xxxxxxx
Xxxxx Barney does not approve of counsel chosen by the
Fund, the Fund will reimburse Xxxxxxx Xxxxx Xxxxxx,
its officers and directors, or the controlling person
or persons named as defendant or defendants in such
suit, for the fees and expenses of any counsel
retained by Xxxxxxx Xxxxx Barney or them. The Fund's
indemnification agreement contained in this paragraph
4.1 and the Fund's representations and warranties in
this Agreement shall remain operative and in full
force and effect regardless of any investigation made
by or on behalf of Xxxxxxx Xxxxx Xxxxxx, its officers
and directors, or any controlling person, and shall
survive the delivery of any of the Fund's Shares.
This agreement of indemnity will inure exclusively to
Xxxxxxx Xxxxx Barney's benefit, to the benefit of its
several officers and directors, and their respective
estates, and to the benefit of the controlling persons
and their successors. The Fund agrees to notify
Xxxxxxx Xxxxx Xxxxxx promptly of the commencement of
any litigation or proceedings against the Fund or any
of its officers or Directors in connection with the
issuance and sale of any of the Fund's Shares.
4.2 Xxxxxxx Xxxxx Barney agrees to
indemnify, defend and hold the Fund, its several
officers and Directors, and any person who controls
the Fund within the meaning of Section 15 of the 1933
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 counsel fees incurred
in connection therewith) that the Fund, its officers
or Directors or any such controlling person may incur
under the 1933 Act, the 1940 Act or under common law
or otherwise, but only to the extent that such
liability or expense incurred by the Fund, 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 Xxxxxxx Xxxxx Xxxxxx to the
Fund and used in the answers to any of the items of
the registration statement or in the corresponding
statements made in the prospectus or statement of
additional information, 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 Xxxxxxx Xxxxx Barney to the
Fund and required to be stated in such answers or
necessary to make such information not misleading.
Xxxxxxx Xxxxx Xxxxxx'x agreement to indemnify the
Fund, its officers or Directors, and any such
controlling person, as aforesaid, is expressly
conditioned upon Xxxxxxx Xxxxx Barney being notified
of any action brought against the Fund, its officers
or Directors, or any such controlling person, such
notification to be given by letter or telegram
addressed to Xxxxxxx Xxxxx Xxxxxx at its principal
office in New York, New York and sent to Xxxxxxx Xxxxx
Barney by the person against whom such action is
brought, within ten days after the summons or other
first legal process shall have been served. Xxxxxxx
Xxxxx Xxxxxx shall have the right to control the
defense of such action, with counsel of its own
choosing, satisfactory to the Fund, if such action is
based solely upon such alleged misstatement or
omission on Xxxxxxx Xxxxx Barney's part, and in any
other event the Fund, 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 so to notify
Xxxxxxx Xxxxx Xxxxxx of any such action shall not
relieve Xxxxxxx Xxxxx Barney from any liability that
Xxxxxxx Xxxxx Xxxxxx may have to the Fund, 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 Xxxxxxx Xxxxx Barney's indemnity
agreement contained in this paragraph 4.2. Xxxxxxx
Xxxxx Xxxxxx agrees to notify the Fund promptly of the
commencement of any litigation or proceedings against
Xxxxxxx Xxxxx Barney or any of its officers or
directors in connection with the issuance and sale of
any of the Fund's Shares.
4.3 In case any action shall be brought
against any indemnified party under paragraph 4.1 or
4.2, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it
shall wish to do so, to assume the defense thereof
with counsel satisfactory to such indemnified party.
If the indemnifying party opts to assume the defense
of such action, the indemnifying party will not be
liable to the indemnified party for any legal or other
expenses subsequently incurred by the indemnified
party in connection with the defense thereof other
than (a) reasonable costs of investigation or the
furnishing of documents or witnesses and (b) all
reasonable fees and expenses of separate counsel to
such indemnified party if (i) the indemnifying party
and the indemnified party shall have agreed to the
retention of such counsel or (ii) the indemnified
party shall have concluded reasonably that
representation of the indemnifying party and the
indemnified party by the same counsel would be
inappropriate due to actual or potential differing
interests between them in the conduct of the defense
of such action.
5. Effectiveness of Registration
None of the Shares shall be offered by either
Xxxxxxx Xxxxx Xxxxxx or the Fund under any of the
provisions of this Agreement and no orders for the
purchase or sale of the Shares under this Agreement
shall be accepted by the Fund 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 provision of the 1933 Act
or if and so long as a current prospectus as required
by Section 5(b) (2) of the 1933 Act is not on file
with the SEC; provided, that nothing contained in this
paragraph 5 shall in any way restrict or have an
application to or bearing upon the Fund's obligation
to repurchase its Shares from any shareholder in
accordance with the provisions of the Fund's
prospectus, statement of additional information or
Corrected Restated Articles of Incorporation dated
September 21, 1992, as amended from time to time.
6. Notice to Xxxxxxx Xxxxx Barney
The Fund agrees to advise Xxxxxxx Xxxxx Xxxxxx
immediately in writing:
(a) of any request by
the SEC for amendments to the
registration statement,
prospectus or statement of
additional information then in
effect or for additional
information;
(b) In the event of
the issuance by the SEC of any
stop order suspending the
effectiveness of the
registration statement,
prospectus or statement of
additional information then in
effect or the initiation 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, prospectus or
statement of additional
information then in effect or
that requires the making of a
change in such registration
statement, prospectus or
statement of additional
information in order to make
the statements therein not
misleading; and
(d) of all actions of
the SEC with respect to any
amendment to any registration
statement, prospectus or
statement of additional
information which may from
time to time be filed with the
SEC.
7. Term of the Agreement
This Agreement shall become effective as of the
[date], and continue for successive annual periods
thereafter so long as such continuance is specifically
approved at least annually by (a) the Fund's Board or
(b) by a vote of a majority (as defined in the 0000
Xxx) of the outstanding Shares, provided that in
either event the continuance is also approved by a
majority of the Board who are not "interested persons"
(as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called
for the purpose of voting on such approval. This
Agreement is terminable, without penalty, on 60 days'
notice by the Fund's Board, by vote of the holders of
a majority of the Shares, or on 90 days' notice by
Xxxxxxx Xxxxx Barney. This Agreement will also
terminate automatically in the event of its assignment
(as defined in the 1940 Act).
8. Miscellaneous
The Fund recognizes that directors, officers and
employees of Xxxxxxx Xxxxx Xxxxxx may from time to
time serve as directors, trustees, officers and
employees of corporations and business trust
(including other investment companies) and that such
other corporations and trusts may include the name
"Xxxxxxx Xxxxx Xxxxxx Xxxxxxxx" as part of their name,
and that Xxxxxxx Xxxxx Barney or its affiliates may
enter into distribution or other agreements with such
other corporations and trusts. If Xxxxxxx Xxxxx
Xxxxxx ceases to act as the distributor of the Shares,
the Fund agrees that, at Xxxxxxx Xxxxx Barney's
request, the Fund's license to use the words "Xxxxxxx
Xxxxx Xxxxxx" will terminate and that the Fund will
take all necessary action to change the name of the
Fund to a name not including the words "Xxxxxxx Xxxxx
Barney."
If the foregoing is in accordance with your
understanding, kindly indicate your acceptance
of this Agreement by signing and returning to us the
enclosed copy of this Agreement.
Very truly
yours,
[FUND
NAME]
By:
______
____________
________
Title
Accepted:
XXXXXXX XXXXX XXXXXX INC.
By: __________________________
Authorized Officer
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