DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of the 30th day of May, 2002 by and between
Westlakes Institutional Portfolios (the on "Trust"), a Delaware Business Trust,
and Xxxxxx Investment Distributors, Inc. (the "Distributor"), a New York
corporation.
WHEREAS, the Trust is a registered, diversified, open-end management
investment company under the Investment on Company Act of 1940, as amended
("Investment Company Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the
Securities and Exchange Commission ("SEC") on under the Securities Exchange Act
of 1934, as amended;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Trust and Distributor hereby agree as follows:
ARTICLE 1. Sale of Shares. The Trust grants to the Distributor the
exclusive right to sell shares of the on Portfolios at the net asset value per
share, plus any applicable sales charges in accordance with the current
prospectus, as agent and on behalf of the Trust, during the term of this
Agreement and subject to the rules and regulations of the on SEC and the laws
governing the sale of securities in the various states (the "Blue Sky Laws").
ARTICLE 2. Solicitation of Sales. In consideration of these rights
granted to the Distributor, the Distributor on agrees to use all reasonable
efforts, consistent with its other business, in connection with the distribution
of shares on of the Portfolios; provided, however, that the Distributor shall
not be prevented from entering into like arrangements on with other issuers. The
provisions of this paragraph do not obligate the Distributor to register as a
broker or dealer on under the Blue Sky Laws of any jurisdiction or to maintain
its registration in any jurisdiction in which it is now on registered, unless it
engages in activities contemplated by this Agreement in such jurisdiction.
Nothing herein shall on obligate the Distributor to sell any particular number
of shares.
ARTICLE 3. Compensation. The Distributor shall not receive any specific
compensation for its activities in on marketing and selling shares.
ARTICLE 4. Authorized Representations. The Distributor is not
authorized by the Trust to give any information on or to make any
representations other than those contained in the current registration statement
and prospectus of the on Trust filed with the SEC or contained in shareholder
reports or other material that may be prepared by or on behalf of on the Trust
for the Distributor's use. The Distributor may prepare and distribute sales
literature and other material as on it may deem appropriate, provided that such
literature and materials have been prepared in accordance with applicable on
rules and regulations.
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ARTICLE 5. Indemnification of Distributor. The Trust agrees to
indemnify and hold harmless the Distributor and on each of its directors and
officers and each person, if any, who controls the Distributor within the
meaning of Section 15 of the Securities Act against any loss, liability, claim,
damages or expense (including the reasonable cost of on investigating or
defending any alleged loss, liability, claim, damages, or expense and reasonable
counsel fees and on disbursements incurred in connection therewith), arising by
reason of any person acquiring any shares, based upon the on ground that the
registration statement, prospectus, shareholder reports or other information
filed or made public by the Trust (as from time to time amended) included an
untrue statement of a material fact or omitted to state a material fact required
to be stated or necessary in order to make the statements made not misleading.
However, the Trust does not on agree to indemnify the Distributor or hold it
harmless to the extent that the statement or omission was made in reliance upon,
and in conformity with, information furnished to the Trust by or on behalf of
the Distributor.
In no case (i) is the indemnity of the Trust to be deemed to protect
the Distributor against any liability to the Trust or its shareholders to which
the Distributor or such person otherwise would be subject by reason of willful
on misfeasance, bad faith or gross negligence in the performance of its duties
or by reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Trust to be liable to the Distributor under the
indemnity on agreement contained in this paragraph with respect to any claim
made against the Distributor or any person indemnified on unless the Distributor
or other person shall have notified the Trust in writing of the claim within a
reasonable time on after the summons or other first written notification giving
information of the nature of the claim shall have been on served upon the
Distributor or such other person (or after the Distributor or the person shall
have received notice of on service on any designated agent). However, failure to
notify the Trust of any claim shall not relieve the Trust from any liability
which it may have to the Distributor or any person against whom such action is
brought otherwise than on on account of its indemnity agreement contained in
this paragraph.
The Trust shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the Trust elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Trust and satisfactory to the on indemnified defendants in the
suit whose approval shall not be unreasonably withheld. In the event that the
Trust elects to assume the defense of any suit and retain counsel, the
indemnified defendants shall bear the fees and expenses of any additional
counsel retained by them. If the Trust does not elect to assume the defense of a
suit, it will reimburse the on indemnified defendants for the reasonable fees
and expenses of any counsel retained by the indemnified defendants.
The Trust agrees to notify the Distributor promptly 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 its shares.
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ARTICLE 6. Indemnification of Trust. The Distributor covenants and
agrees that it will indemnify and hold on harmless the Trust and each of its
Trustees and officers and each person, if any, who controls the Trust within the
on meaning of Section 15 of the Securities Act, against any loss, liability,
damages, claim or expense (including the on reasonable cost of investigating or
defending any alleged loss, liability, damages, claim or expense and reasonable
on counsel fees incurred in connection therewith) based upon the Securities Act
or any other statute or common law and on arising by reason of any person
acquiring any shares, and alleging a wrongful act of the Distributor or any of
its on employees or alleging that the registration statement, prospectus,
shareholder reports or other information filed or made public by the Trust (as
from time to time amended) included an untrue statement of a material fact or
omitted to state a material fact required to be stated or necessary in order to
make the statements not misleading, insofar as the statement or omission was
made in reliance upon and in conformity with information furnished to the Trust
by or on behalf of the on Distributor.
In no case (i) is the indemnity of the Distributor in favor of the
Trust or any other person indemnified to be on deemed to protect the Trust or
any other person against any liability to which the Trust or such other person
would on otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Trust or any person
indemnified unless the Trust or person, as the case may be, shall have notified
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 shall have been served upon the Trust or upon any person (or after the
Trust or such person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim shall not
relieve on the Distributor from any liability which it may have to the Trust or
any person against whom the action is brought on otherwise than on account of
its indemnity agreement contained in this paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense or, if it so elects, to on assume the defense of any suit brought
to enforce the claim, but if the Distributor elects to assume the defense, the
on defense shall be conducted by counsel chosen by the Distributor and
satisfactory to the indemnified defendants whose on approval shall not be
unreasonably withheld. In the event that the Distributor elects to assume the
defense of any suit on and retain counsel, the defendants in the suit shall bear
the fees and expenses of any additional counsel retained by on them. If the
Distributor does not elect to assume the defense of any suit, it will reimburse
the indemnified defendants on in the suit for the reasonable fees and expenses
of any counsel retained by them.
The Distributor agrees to notify the Trust promptly of the commencement
of any litigation or proceedings against it in connection with the issue and
sale of any of the Trust's shares.
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ARTICLE 7. Effective Date and Termination. This Agreement shall be
effective upon its execution, and unless on terminated as provided, shall
continue in force for two years from the effective date and thereafter from year
to year, on provided that such annual continuance is approved by (i) either the
vote of a majority of the Trustees of the Trust, or on the vote of a majority of
the outstanding voting securities of the Trust, and (ii) the vote of a majority
of those on Trustees of the Trust who are not parties to this Agreement or
interested persons of any such party ("Qualified on Trustees"), cast in person
at a meeting called for the purpose of voting on the approval. This Agreement
shall on automatically terminate in the event of its assignment. As used in this
paragraph the terms "vote of a majority of the on outstanding voting
securities", "assignment" and "interested person" shall have the respective
meanings specified in the Investment Company Act. In addition, this Agreement
may at any time be terminated without penalty by the Distributor by on a vote of
a majority of Qualified Trustees or by vote of a majority of the outstanding
voting securities of the Trust on upon not less than 30 days prior written
notice to the other party.
ARTICLE 8. Notices. Any notice required or permitted to be given by
either party to the other shall be deemed on sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other on party at the last address furnished by the other party to the party
giving notice: if to the Trust, at 0000 Xxxxxxxxx xx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxxxx 00000 Attention: President, and if to the Distributor, 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000 Attention: President.
ARTICLE 9. Limitation of Liability. A copy of the Certificate of Trust
is on file with the Secretary of State on of the State of Delaware, and notice
is hereby given that this Agreement is executed on behalf of the Trustees of the
on Trust as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the on Trustees, officers or shareholders
of the Trust individually but binding only upon the assets and property of the
Trust.
ARTICLE 10. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of on Delaware and the applicable
provisions of the Investment Company Act. To the extent that the applicable laws
of the on State of Delaware, or any of the provisions herein, conflict with the
applicable provisions of the Investment Company on Act, the latter shall
control.
ARTICLE 11. Multiple Originals. This Agreement may be executed in two
or more counterparts, each of which when on so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
on instrument.
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IN WITNESS, the Trust and Distributor have each duly executed this
Agreement, as of the day and year above written.
WESTLAKES INSTITUTIONAL PORTFOLIOS
By: /s/ Xxxx X. Xxxxx
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Attest: /s/ Xxxxx X. Xxxxx
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XXXXXX INVESTMENT DISTRIBUTORS, INC.
By: /s/ Xxxxx Xxxxx
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Attest: /s/ Xxxx Xxxxxxxxxxxx
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