DISTRIBUTION AGREEMENT
AGREEMENT made as of this day of October, 1986 between XXXXXXX XXXXX
INSTITUTIONAL INTERMEDIATE FUND, a Massachusetts business trust, hereinafter
called the "Fund", and XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC., a Delaware
corporation, hereinafter called the "Distributor";
W I T N E S S E T H :
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended to date (the "Investment Company Act"), as a diversified open-end
investment company and it is affirmatively in the interest of the Fund to offer
its shares for sale, continuously; and
WHEREAS, the Distributor is a securities firm engaged in the business of
selling shares of investment companies either directly to purchasers or through
other securities dealers; and
WHEREAS, the Fund and the Distributor wish to enter into an agreement with
each other with respect to the continuous offering of the shares of the Fund
after the effectiveness of the registration statement covering the shares of the
Fund filed under the Securities Act of 1933, as amended (the "Securities Act").
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Fund hereby appoints the
Distributor as the principal underwriter and distributor of the Fund to sell
shares of the Fund to the public and the Distributor hereby accepts such
appointment. The Fund, during the term of this Agreement, shall sell its shares
to the Distributor upon the terms and conditions set forth below.
Section 2. Exclusive Nature of Duties. The Distributor shall be the
exclusive representative of the Fund to act as principal underwriter and
distributor, except that:
(a) The Fund may, upon written notice to the Distributor, from time to time
designate other principal underwriters and distributors of its shares with
respect to areas other than the United States as to which the Distributor may
have expressly waived in writing its right to act as such. If such designation
is deemed exclusive, the right of the Distributor under this Agreement to sell
shares in the areas so designated shall terminate, but this Agreement shall
remain otherwise in full effect until terminated in accordance with the other
provisions hereof.
(b) The exclusive rights granted to the Distributor to purchase shares from
the Fund shall not apply to shares of the Fund issued in connection with the
merger or consolidation of any other investment company or personal holding
company with the Fund or the acquisition by purchase or otherwise of all (or
substantially all) the assets or the outstanding shares of any such company by
the Fund.
(c) Such exclusive rights shall also not apply to shares issued by the Fund
pursuant to reinvestment of dividends, capital gains distributions or otherwise
pursuant to its daily reinvestment program.
Section 3. Purchase of Shares from the Fund.
(a) The Distributor shall have the right to buy from the Fund the shares
needed, but not more than the shares needed (except for clerical errors in
transmission) to fill unconditional orders for shares of the Fund placed with
the Distributor by investors or securities dealers. The price which the
Distributor shall pay for the shares so purchased from the Fund shall be the net
asset value, determined as set forth in Section 3(d) hereof, used in determining
the public offering price on which such orders were based.
(b) The shares are to be resold by the Distributor to investors at the
public offering price, as set forth in Section 3(c) hereof, or to securities
dealers having agreements with the Distributor upon the terms and conditions set
forth in Section 7 hereof.
(c) The public offering price of the shares, i.e., the price per share at
which the Distributor or selected dealers may sell shares to the public, shall
be the public offering price as set forth in the currently effective prospectus
of the Fund under the Securities Act of 1933 (the "prospectus") relating to such
shares, but not to exceed the net asset value. If the resulting public offering
price does not equal an even cent, the public offering price may be adjusted to
the nearest cent. All payments to the Fund hereunder shall be made in the
manner set forth in Section 3(f).
(d) The net asset value of shares of the Fund shall be determined by the
Fund or any agent of the Fund in accordance with the method set forth in the
Fund's most current prospectus and statement of additional information and
established by the Board of Trustees of the Fund.
(e) The Fund shall have the right to suspend the sale of its shares at
times when redemption is suspended pursuant to the conditions set forth in
Section 4(b) hereof. The Fund shall also have the right to suspend the sale of
its shares if trading on the New York Stock Exchange shall have been suspended,
if a banking moratorium shall have been declared by federal, Massachusetts, or
New York authorities, or if there shall have been some other extraordinary
event, which, in the judgment of the Fund, makes it impracticable to sell the
shares.
(f) The Fund, or any agent of the Fund designated in writing by it, shall
be promptly advised of all purchase orders for shares received by the
Distributor. Procedures may be established whereby purchase orders are
presented directly to the Fund or its designated agent upon the condition that
in such cases it shall be deemed that the issuance of the shares to be purchased
is made pursuant to Section 3 hereof. Any order may be rejected by the Fund or
the Distributor; provided, however, that neither will arbitrarily or without
reasonable cause refuse to accept or confirm orders for the purchase of shares.
The Fund (or its agent) will confirm orders upon their receipt, and will make
appropriate book entries pursuant to the instructions of the Distributor.
Purchase orders are effective when Federal Funds become available to the Fund.
The Distributor agrees to cause such payment and such instructions to be
delivered promptly to the Fund (or its agent).
Section 4. Redemption or Repurchase of Shares by the Fund.
(a) Any of the outstanding shares may be tendered for redemption or
repurchase at any time, and the Fund shall redeem or repurchase the shares so
tendered in accordance with its obligations and rights as set forth in its
Declaration of Trust, as amended from time to time, and in accordance with the
applicable provisions set forth in the most current prospectus of the Fund.
The price to be paid to redeem or repurchase the shares shall be equal to the
net asset value calculated in accordance with the provisions of Section 3(d)
hereof. All payments by the Fund hereunder shall be made in the manner set
forth below.
The Fund shall pay the total amount of the redemption price as defined in
the above paragraph pursuant to the instructions of the Distributor and in
accordance with the terms set forth in the most current prospectus of the Fund.
(b) The Fund reserves the right to reject any order for repurchase through
a securities dealer, but the right to redeem shares, or to receive payment with
respect to any such redemption, upon the presentation of properly submitted
redemption requests in accordance with the procedures set forth in the most
current prospectus of the Fund, may only be suspended for any period during
which trading on the New York Stock Exchange is restricted as determined by the
Securities and Exchange Commission or such Exchange is closed (other than
customary weekend and holiday closings), for any period during which an
emergency exists as defined by the Securities and Exchange Commission as a
result of which disposal of portfolio securities or determination of the net
asset value of the Fund is not reasonably practicable, and for such other
periods as the Securities and Exchange Commission may by order permit for the
protection of shareholders of the Fund.
Section 5. Duties of the Fund.
(a) The Fund shall furnish to the Distributor copies of all information,
financial statements and other papers which the Distributor may reasonably
request for use in connection with the distribution of shares of the Fund and
this shall include one certified copy upon request by the Distributor, of all
financial statements prepared for the Fund by independent public accountants.
The Fund shall make available to the Distributor such number of copies of its
most current prospectus as the Distributor shall reasonably request.
(b) The Board of Trustees shall take, from time to time, all necessary
action to fix the number of authorized shares and such steps as may be necessary
to register the same under the Securities Act to the end that there will be
available for sale such number of shares as the Distributor reasonably may be
expected to sell.
(c) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of its shares for sale under the
securities laws of such states as the Distributor and the Fund may approve. Any
such qualification may be withheld, terminated or withdrawn by the Fund at any
time in its discretion. As provided in Section 8(c) hereof, the expense of
qualification and maintenance of qualification shall be borne by the Fund. The
Distributor shall furnish such information and other material relating to its
affairs and activities as may be required by the Fund in connection with such
qualifications.
(d) The Fund will furnish, in reasonable quantities upon request by the
Distributor, copies of annual and interim reports of the Fund.
Section 6. Duties of the Distributor.
(a) The Distributor shall devote reasonable time and effort to effect sales
of shares of the Fund, but shall not be obligated to sell any specific number of
shares. The services of the Distributor to the Fund hereunder are not to be
deemed exclusive and nothing herein contained shall prevent the Distributor from
entering into like arrangements with other investment companies so long as the
performance of its obligations hereunder is not impaired thereby.
(b) In selling the shares of the Fund, the Distributor shall use its best
efforts in all respects duly to conform with the requirements of all federal and
state laws and regulations and the regulations of the National Association of
Securities Dealers, Inc. (the "NASD") relating to the sale of such securities.
Neither the Distributor nor any selected dealer nor any other person is
authorized by the Fund to give any information or to make any representations,
other than those contained in the registration statement or related prospectus
or any sales literature specifically approved by the Fund.
(c) The Distributor shall adopt and follow procedures, as approved by the
officers of the Fund, for the confirmation of sales to investors and selected
dealers, the collection of amounts payable by investors and selected dealers on
such sales, and the cancellation of unsettled transactions, as may be necessary
to comply with the requirements of the NASD, as such requirements may from time
to time exist.
Section 7. Selected Dealer Agreements.
(a) The Distributor shall have the right to enter into selected dealer
agreements with securities dealers of its choice ("selected dealers") for the
sale of shares; provided that the form of selected dealer agreement shall be
approved by the Fund. Shares sold to selected dealers shall be for resale by
such dealers only in accordance with the provisions of the prospectus. The form
of selected dealers agreement is appended hereto as Exhibit A.
(b) Within the United States, the Distributor shall offer and sell shares
only to such selected dealers as are members in good standing of the NASD.
Section 8. Payments of Expenses
(a) The Fund shall bear all costs and expenses of the Fund, including fees
and disbursements of its counsel and auditors, in connection with the
preparation and filing of any required registration statements and/or
prospectuses under the Investment Company Act, the Securities Act, and all
amendments and supplements thereto, and preparing and mailing annual and interim
reports and proxy materials to shareholders (including but not limited to the
expense of setting in type any such registration statements, prospectuses,
annual or interim reports or proxy materials).
(b) The Distributor shall be responsible for any payments made to selected
dealers as reimbursement for their expenses associated with payments of sales
commissions to financial consultants. In addition, after the prospectuses,
statements of additional information and annual and interim reports have been
prepared and set in type, the Distributor shall bear the costs and expenses of
printing and distributing any copies thereof which are to be used in connection
with the offering of shares to selected dealers or investors. The Distributor
shall bear the costs and expenses of preparing, printing and distributing any
other literature used by the Distributor or furnished by it for use by selected
dealers in connection with the offering of the shares for sale to the public.
Any expenses of advertising incurred in connection with such offering will be
the obligation of the Investment Adviser.
(c) The Fund shall bear the cost or expenses (other than auditing expenses)
of qualification of the shares for sale, and, if necessary or advisable in
connection therewith, of qualifying the Fund as a broker or dealer, in such
states of the United States or other jurisdictions as shall be selected by the
Fund and the Distributor pursuant to Section 5(c) hereof and the cost and
expenses payable to each such state for continuing qualification therein until
the Fund decides to discontinue such qualification pursuant to Section 5(c)
hereof.
Section 9. Indemnification
(a) The Fund shall indemnify and hold harmless the Distributor and each
person, if any, who controls the Distributor against any loss, liability, claim,
damage or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damage or expense and reasonable counsel
fees incurred in connection therewith), arising by reason of any person
acquiring any shares, which may be based upon the Securities Act, or on any
other statute or at common law, on the ground that the registration statement or
related prospectus, as from time to time amended and supplemented, or the annual
or interim reports to shareholders of the Fund, includes an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, unless such
statement or omission was made in reliance upon, and in conformity with,
information furnished to the Fund in connection therewith by or on behalf of the
Distributor; provided, however, that in no case (i) is the indemnity of the Fund
in favor of the Distributor and any such controlling persons to be deemed to
protect such Distributor or any such controlling persons thereof against any
liability to the Fund or its security holders to which the Distributor or any
such controlling persons would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of their duties or
by reason of the reckless disregard of their obligations and duties under this
Agreement, or (ii) is the Fund to be liable under its indemnity agreement
contained in this subsection (a) with respect to any claim made against the
Distributor or such controlling persons, unless the Distributor or such
controlling person, as the case may be, shall have notified the Fund 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
Distributor or such controlling persons (or after the Distributor or such
controlling persons shall have received notice of such service on any designated
agent), but failure to notify the Fund of any such claim shall not relieve it
from any liability which it may have to the person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph. The Fund will be entitled to participate at its own expense in the
defense of any suit brought to enforce any such liability, but if the Fund
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Distributor or such controlling person or persons,
defendant or defendants in the suit. In the event the Fund elects to assume the
defense in any such suit and retain such counsel, the Distributor or such
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them but, in case
the Fund does not elect to assume the defense of any such suit, it will
reimburse the Distributor or such controlling person or persons, defendant or
defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Fund shall promptly notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or trustees in connection with the issuance or sale of any of the shares.
(b) The Distributor shall indemnify and hold harmless the Fund and each of
its trustees and officers and each person, if any, who controls the Fund
against any loss, liability, claim, damage, or expense described in the
foregoing indemnity contained in subsection (a) of this Section 9, but only
with respect to statements or omissions made in reliance upon, and in
conformity with, information furnished to the Fund in writing by or on behalf
of the Distributor for use in connection with the registration statement or
related prospectus, as from time to time amended, or the annual or interim
reports to the shareholders. In case any action shall be brought against the
Fund or any person so indemnified, in respect of which indemnity may be sought
against the Distributor, the Distributor shall have the rights and duties given
to the Fund, and the Fund and each person so indemnified shall have the rights
and duties given to the Distributor by the provisions of subsection (a) of this
Section 9.
Section 10. Term of Agreement. This Agreement shall commence on the date
of its execution. Unless sooner terminated in accordance with the other
provisions hereof, this Agreement shall continue in effect from year to year
hereafter, but only so long as such continuance is specifically approved at
least annually by (i) the vote of a majority of the Trustees of the Fund who are
not parties to this Agreement or interested persons (within the meaning of the
Investment Company Act) of the Fund or the Distributor, cast in person at a
meeting called for the purpose of voting on such approval, and (ii) either the
Trustees of the Fund or a vote of a majority (within the meaning of the
Investment Company Act) of the outstanding voting securities of the Fund.
Section 11. Termination and Assignment.
(a) This Agreement may be terminated at any time, without payment of any
penalty, by the Trustees of the Fund or by vote of a majority of the outstanding
voting securities of the Fund, or by the Distributor, on sixty days' written
notice to the other party.
(b) This Agreement shall not be assignable by either party hereto and in
the event of assignment (as defined in the Investment Company Act) this
Agreement shall automatically terminate forthwith.
Section 12. Amendments of this Agreement. This Agreement may be amended
by the parties only if such amendment is specifically approved by (i) the
Trustees, or by the vote of a major4Lty of outstanding voting securities of the
Fund, and (ii) by vote of a majority of those Trustees of the Fund who are not
parties to this Agreement or interested persons of any such party cast in person
at a meeting called for the purpose of voting on such approval.
Section 13. Notices. Any notice required or permitted to be given
hereunder by either party to the other shall be deemed sufficiently given if
sent by registered mail, postage prepaid, addressed by the party giving such
notice to the other party at the last address furnished by such other party to
the party giving notice, and unless and until changed pursuant to the foregoing
provisions hereof addressed, if to the Fund at 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 and if to the Distributor at 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
Section 14. Governing Law. This Agreement is to the extent applicable
governed and construed in accordance with the laws of the State of New Jersey
and the applicable provisions of the Investment Company Act. To the extent that
the applicable law of the State of New Jersey, or any of the provisions herein,
conflict with the applicable provisions of the Investment Company Act, the
latter shall control.
Section 15. Limitation of Liability of Trustees, Shareholders, Officers,
Employees and Agents.
The Declaration of Trust establishing the Fund, dated September 10, 1986, a
copy of which, together with all amendments thereto (the "Declaration"), is on
file in the office of the Secretary of the Commonwealth of Massachusetts,
provides that the name "Xxxxxxx Xxxxx Institutional Intermediate Fund" refers to
the Trustees under the Declaration collectively as Trustees, but not as
individuals or personally; and no Trustee, shareholder, officer, employee or
agent of the Fund may be held to any personal liability, nor may resort be had
to their private property for the satisfaction of any obligation or claim or
otherwise in connection with the affairs of said Fund but the Fund Property only
shall be liable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By:
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XXXXXXX XXXXX INSTITUTIONAL
INTERMEDIATE FUND
By:
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Exhibit A
XXXXXXX XXXXX INSTITUTIONAL INTERMEDIATE FUND
SHARES OF BENEFICIAL INTEREST
SELECTED DEALER AGREEMENT
, 1986
Gentlemen:
Xxxxxxx Xxxxx Funds Distributor, Inc. (the "Distributor") has an agreement
with Xxxxxxx Xxxxx Institutional Intermediate Fund, a Massachusetts business
trust (the "Fund"), pursuant to which it acts as the distributor for the sale of
shares of beneficial interest, par value $.10 per share (the "shares"), of the
Fund, and as such has the right to distribute shares for resale. The Fund is a
diversified open-end investment company registered under the Investment Company
Act of 1940, as amended, and the shares being offered are registered under the
Securities Act of 1933, as amended. You have received a copy of the
Distribution Agreement between ourselves and the Fund and reference is made
herein to certain provisions of such Distribution Agreement. The term
"Prospectus" as used herein refers to the prospectus on file with the Securities
and Exchange Commission which is part of the most recent effective registration
statement relating to the shares filed pursuant to the Securities Act of 1933,
as amended. As principal, we offer to sell to you as a selected dealer, shares
of the Fund upon the following terms and conditions:
1. In all sales of these shares to the public you shall act as dealer for
your own account, and in no transaction shall you have any authority to act as
agent for the Fund or for us.
2. Shares may be offered by you only as described in the Prospectus.
Orders received from you will be accepted through us only at the public offering
price applicable to each order, as set forth in the Prospectus. The procedure
relating to the handling of orders shall be subject to Section 4 hereof and
instructions which we or the Fund shall forward to you from time to time. All
orders are subject to acceptance or rejection by the Distributor or the Fund in
the sole discretion of either. The minimum initial and subsequent purchase
requirements are as set forth in the Prospectus.
3. You agree that you will not place orders for any shares except in
accordance with the procedures described in the Prospectus. You agree that you
will not offer or sell any of the shares except under circumstances that will
result in compliance with the applicable Federal and state securities laws and
that in connection with sales and offers to sell shares you will furnish to each
person to whom any such sale or offer is made a copy of the Prospectus (as then
amended or supplemented) and will not furnish to any person any information
relating to the shares which is inconsistent in any respect with the information
contained in the Prospectus (as then amended or supplemented) or cause any
advertisement to be published in any newspaper or posted in any public place
without our consent and the consent of the Fund.
4. As a selected dealer, you are hereby authorized (i) to place orders
directly with the Fund for shares to be sold by us to you subject to the
applicable terms and conditions governing the placement of orders by us set
forth in Section 3 of the Distribution Agreement, and (ii) to tender shares
directly to the Fund or its agent for redemption subject to the applicable terms
and conditions set forth in Section 4 of the Distribution Agreement and the
Prospectus.
5. You shall not withhold placing orders received from your customers so as
to profit yourself as a result of such withholding, eg., by a change in the "net
asset value" from that used in determining the offering price to your customers.
6. No person is authorized to make any representations concerning shares
except those contained in the Prospectus and in such printed information
subsequently issued by us or the Fund as information supplemental to such
Prospectus. In purchasing shares through us you shall rely solely on the
representations contained in the Prospectus and supplemental information above
mentioned. Any printed information which we furnish you other than the Fund's
Prospectus, periodic reports and proxy solicitation material are our sole
responsibility and not the responsibility of the Fund, and you agree that the
Fund shall have no liability or responsibility to you in these respects unless
expressly assumed in connection therewith.
7. You agree to deliver to any purchasers whose shares you are holding as
record holder copies of the Prospectus, as amended from time to time, and the
annual and interim reports and proxy solicitation materials relating to the
Fund. You further agree to make reasonable efforts to endeavor to obtain
proxies from such purchasers whose shares you are holding as record holder.
Additional copies of the Prospectus, annual or interim reports and proxy
solicitation materials of the Fund will be supplied to you in reasonable
quantities upon request.
8. We reserve the right in our discretion, without notice, to suspend sales
or withdraw the offering of shares entirely. Each party hereto has the right to
cancel this Agreement upon notice to the other party.
9. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the continuous offering. We
shall be under no liability to you except for lack of good faith and for
obligations expressly assumed by us herein. Nothing contained in This paragraph
is intended to operate as, and the provisions of this paragraph shall not in any
way whatsoever constitute, a waiver by you of compliance with any provisions of
the Securities Act of 1933, as amended, or of the rules and regulations of the
Securities and Exchange Commission issued thereunder.
10. You represent that you are a member of the National Association of
Securities Dealers, Inc. and, with respect to any sales in the United States, we
both hereby agree to abide by the Rules of Fair Practice of such Association.
11. Upon application to us, we will inform you as to the states or other
jurisdictions in which we believe the shares have been qualified for sale under,
or are exempt from the requirements of, the respective securities laws of such
states, but we assume no responsibility or obligation as to your right to sell
shares in any jurisdiction. We will file with the Department of State of New
York a Further State Notice with respect to the shares, if necessary.
12. We shall have full authority to act upon your express instructions to
effect transactions in shares through us on behalf of your customers under the
terms and conditions provided in the Prospectus. You agree to hold us free and
harmless as a result of action taken with respect to authorized repurchases or
exchanges upon your express instructions.
13. All communications to us should be sent to 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000. Any notice to you shall be duly given if mailed or
telegraphed to you at the address set forth below.
Please indicate your acceptance of this Agreement by signing and returning
one copy to us, at our address specified above.
XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By:
---------------------------------
(Authorized Signature)
Accepted:
Firm Name: Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx Inc.
By:
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Address: Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Date:
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