Exhibit (e)(11)
DISTRIBUTION AGREEMENT
AGREEMENT made this 23rd day of April 2004 by and between XXXXXX XXXXXX
FUNDS II, a Massachusetts business trust (the "Trust"), and XXXXXX XXXXXX
DISTRIBUTORS, L.P., a Delaware limited partnership (the "Distributor").
WITNESSETH:
In consideration of the premises and covenants hereinafter contained, the
Trust and the Distributor agree as follows:
1. DISTRIBUTOR. The Trust hereby appoints the Distributor as general
distributor of the Class J shares of beneficial interest of the Xxxxxx
Xxxxxx Investment Grade Bond Fund series (the "Series") of the Trust
("Series shares") during the term of this Agreement. The Trust reserves the
right, however, to refuse at any time or times to sell any Series shares
hereunder for any reason deemed adequate by the Board of Trustees of the
Trust.
2. SALE AND PAYMENT. Under this agreement, the following provisions shall
apply with respect to the sale of and payment for Series shares:
(a) The Distributor shall have the right, as principal, to purchase Series
shares from the Trust at their net asset value and to sell such shares
to the public against orders therefor at such net asset value,
together with the applicable sales charge, as set forth in the current
prospectus of the Trust relating to the Series shares.
(b) Prior to the time of delivery of any shares by the Trust to, or on the
order of, the Distributor, the Distributor shall pay or cause to be
paid to the Trust or to its order an amount in Boston or New York
clearing house funds equal to the applicable net asset value of such
shares.
3. FEE. For its services as general distributor of the Series shares, the
Trust shall pay to the Distributor on behalf of the Series a distribution
fee at the rate and upon the terms and conditions set forth in the
Distribution Plan(s) attached as Exhibit A hereto, and as amended from time
to time. The Distribution Fee shall be accrued daily and paid monthly to
the Distributor as soon as practicable after the end of the calendar month
in which it accrues, but in any event within five business days following
the last day of the month. In addition, the Distributor shall be entitled
to retain any applicable sales charge, as set forth in the current
prospectus of the Trust relating to Series shares.
4. PUBLIC OFFERING PRICE. The public offering price shall be the net asset
value of Series shares, together with the applicable sales charge, as set
forth in the current prospectus of the Trust relating to the Series shares.
The net asset value of Series shares shall be determined in accordance with
the provisions of the agreement and declaration of trust and by-laws of the
Trust and the current prospectus of the Trust relating to the Series
shares.
5. TRUST ISSUANCE OF SERIES SHARES. The delivery of Series shares shall be
made
promptly by a credit to a shareholder's open account for the Series. The
Trust reserves the right (a) to issue Series shares at any time directly to
the Class J shareholders of the Series as a stock dividend or stock split,
(b) to issue to such shareholders Series shares, or rights to subscribe to
Series shares, as all or part of any dividend that may be distributed to
Class J shareholders of the Series or as all or part of any optional or
alternative dividend that may be distributed to Class J shareholders of the
Series, and (c) to sell Series shares in accordance with any current
applicable prospectus of the Trust relating to the Series shares.
6. REPURCHASE. The Distributor shall act as agent for the Trust in connection
with the repurchase of Series shares by the Trust to the extent and upon
the terms and conditions set forth in the current applicable prospectus of
the Trust relating to the Series shares, and the Trust agrees to reimburse
the Distributor, from time to time upon demand, for any reasonable expenses
incurred in connection with such repurchases of shares.
7. UNDERTAKING REGARDING SALES. The Distributor shall use reasonable efforts
to sell Series shares but does not agree hereby to sell any specific number
of Series shares and shall be free to act as distributor of the shares of
other investment companies. Series shares will be sold by the Distributor
only against orders therefor. The Distributor shall not purchase Series
shares from anyone except in accordance with Sections 2 and 6 and shall not
take "long" or "short" positions in Series shares contrary to the agreement
and declaration of trust or by-laws of the Trust.
8. COMPLIANCE. The Distributor shall conform to the Conduct Rules of the
National Association of Securities Dealers, Inc. ("NASD") and the sale of
securities laws of any jurisdiction in which it sells, directly or
indirectly, any Series shares. The Distributor agrees to make timely
filings, with the Securities and Exchange Commission (the "SEC") in
Washington, D.C., the NASD and such other regulatory authorities as may be
required, of any sales literature relating to the Series and intended for
distribution to prospective investors. The Distributor also agrees to
furnish to the Trust sufficient copies of any agreements or plans it
intends to use in connection with any sales of Series shares in adequate
time for the Trust to file and clear them with the proper authorities
before they are put in use (which the Trust agrees to use its best efforts
to do as expeditiously as reasonably possible), and not to use them until
so filed and cleared.
9. REGISTRATION AND QUALIFICATION OF SERIES SHARES. The Trust agrees to
execute such papers and to do such acts and things as shall from time to
time be reasonably requested by the Distributor for the purpose of
maintaining the registration of the Trust and of the Series shares under
the federal Investment Company Act of 1940 (the "1940 Act") and the federal
Securities Act of 1933, to the end that there will be available for sale
from time to time such number of Series shares as the Distributor may
reasonably be expected to sell. The Trust shall advise the Distributor
promptly of (a) any action of the SEC or any authorities of any state or
territory, of which it may be advised, affecting registration or
qualification of the Trust or the Series shares, or rights to offer Series
shares for sale, and (b) the happening of any event, which makes untrue any
statement or which requires the making of any change in the Trust's
registration statement or its prospectus relating to the Series shares in
order to make the statements therein not misleading.
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10. DISTRIBUTOR INDEPENDENT CONTRACTOR. The Distributor shall be an independent
contractor and neither the Distributor nor any of its officers or employees
as such is or shall be an employee of the Trust. The Distributor is
responsible for its own conduct and the employment, control and conduct of
its agents and employees and for injury to such agents or employees or to
others through its agents or employees. The Distributor assumes full
responsibility for its agents and employees under applicable statutes and
agrees to pay all employer taxes thereunder.
11. EXPENSES PAID BY DISTRIBUTOR. While the Distributor continues to act as
agent of the Trust to obtain subscriptions for and to sell Series shares,
the Distributor shall pay the following:
(a) all expenses of printing (exclusive of typesetting) and distributing
any prospectus for use in offering Series shares for sale, and all
other copies of any such prospectus used by the Distributor, and
(b) all other expenses of advertising and of preparing, printing and
distributing all other literature or material for use in connection
with offering Series shares for sale.
12. INTERESTS IN AND OF DISTRIBUTOR. It is understood that any of the
shareholders, trustees, officers, employees and agents of the Trust may be
a shareholder, director, officer, employee or agent of, or be otherwise
interested in, the Distributor, any affiliated person of the Distributor,
any organization in which the Distributor may have an interest or any
organization which may have an interest in the Distributor; that the
Distributor, any such affiliated person or any such organization may have
an interest in the Trust; and that the existence of any such dual interest
shall not affect the validity hereof or of any transaction hereunder except
as otherwise provided in the agreement and declaration of trust or by- laws
of the Trust, in the limited partnership agreement of the Distributor or by
specific provision of applicable law.
13. EFFECTIVE DATE AND TERMINATION. This Agreement shall become effective as of
the date of its execution, and
(a) Unless otherwise terminated, this Agreement shall continue in effect
so long as such continuation is specifically approved at least
annually (i) by the Board of Trustees of the Trust or by the vote of a
majority of the votes which may be cast by shareholders of the Series
and (ii) by a vote of a majority of the Board of Trustees of the Trust
who are not interested persons of the Distributor or the Trust, cast
in person at a meeting called for the purpose of voting on such
approval.
(b) This Agreement may at any time be terminated on sixty days' notice to
the Distributor either by vote of a majority of the Trust's Board of
Trustees then in office or by the vote of a majority of the votes
which may be cast by shareholders of the Series.
(c) This Agreement shall automatically terminate in the event of its
assignment.
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(d) This Agreement may be terminated by the Distributor on ninety days'
written notice to the Trust.
Termination of this Agreement pursuant to this section shall be without payment
of any penalty.
14. DEFINITIONS. For purposes of this Agreement, the following definitions
shall apply:
(a) The "vote of a majority of the votes which may be cast by shareholders
of the Series" means (1) 67% or more of the votes of the Series
present (in person or by proxy) and entitled to vote at such meeting,
if the holders of more than 50% of the outstanding shares of the
Series entitled to vote at such meeting are present; or (2) the vote
of the holders of more than 50% of the outstanding shares of the
Series entitled to vote at such meeting, whichever is less.
(b) The terms "affiliated person," "interested person" and "assignment"
shall have their respective meanings as defined in the 1940 Act
subject, however, to such exemptions as may be granted by the SEC
under the 1940 Act.
15. AMENDMENT. This Agreement may be amended at any time by mutual consent of
the parties, provided that such consent on the part of the Series shall be
approved (i) by the Board of Trustees of the Trust or by vote of a majority
of the votes which may be cast by shareholders of the Series and (ii) by a
vote of a majority of the Board of Trustees of the Trust who are not
interested persons of the Distributor or the Trust cast in person at a
meeting called for the purpose of voting on such approval.
16. APPLICABLE LAW AND LIABILITIES. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts.
All sales hereunder are to be made, and title to the Series shares shall
pass, in Boston, Massachusetts.
17. LIMITED RECOURSE. The Distributor hereby acknowledges that the Trust's
obligations hereunder are binding only on the assets and property belonging
to the Trust.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
XXXXXX XXXXXX FUNDS II
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President
XXXXXX XXXXXX DISTRIBUTORS, L.P.
By: Xxxxxx Xxxxxx Distributors, Incorporated its
general partner
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
President
A copy of the Agreement and Declaration of Trust establishing Xxxxxx Xxxxxx
Funds II (the "Trust") is on file with the Secretary of The Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed on
behalf of the Trust by officers of the Trust as officers and not individually
and that the obligations of or arising out of this Agreement are not binding
upon any of the trustees, officers or shareholders of the Trust individually but
are binding only upon the assets and property of the Trust.
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