Exhibit (e)(2)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this _____ day of _____, 1999 (the
"Agreement") by and between Northern Institutional Funds (the "Fund"), a
Massachusetts business trust, and Northern Funds Distributors, LLC, a Wisconsin
limited liability company.
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"'),
and is currently offering shares of beneficial interest (the "Shares"),
representing interests in investment portfolios of the Fund identified on
Schedule A hereto (the "Portfolios") which are registered with the Securities
and Exchange Commission (the "SEC") pursuant to the Fund's Registration
Statement on Form N-1A (the "Registration Statement"); and
WHEREAS, the Fund desires to retain the Distributor as distributor for
the Portfolios to provide for the sale and distribution of the Shares of the
Portfolios identified on Schedule A and for such additional classes or series as
the Fund may issue, and the Distributor is prepared to provide such services
commencing on the date first written above.
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein and intending to be legally bound hereby the parties hereto
agree as follows:
1. Service as Distributor
The Fund hereby appoints the Distributor as exclusive distributor of the Shares
covered by the Registration Statement then in effect under the Securities
Act of 1933, as amended (the "1933 Act"), on the terms and for the periods
set forth in this Agreement. The Distributor hereby accepts such
appointment and agrees to render the services and perform the duties set
forth in this Agreement without compensation. The Distributor will have no
liability for payment for the purchase of Shares by unaffiliated investors
sold pursuant to this Agreement or with respect to redemptions or
repurchases of Shares.
1.2 The Distributor agrees to sell Shares of each of the Portfolios, as agent,
from time to time during the term of this Agreement at the Shares' then current
net asset value (with any purchase price adjustments, as applicable). The net
asset value of the Shares shall be determined in the manner provided in the then
current prospectus and statement of additional information relating to the
Shares (collectively, the "Prospectus" and "Statement of Additional
Information"), and when determined shall be applicable to all transactions as
provided in the Prospectus. The net asset value of the Shares shall be
calculated by the Fund or by another entity on behalf of the Fund. The
Distributor shall have no duty to inquire into, or liability for, the accuracy
of the net asset value per Share as calculated. 1.3 The Distributor agrees to
use appropriate efforts to solicit orders for the sale of the Shares. The
Distributor shall, at its own expense, finance appropriate activities which are
primarily intended to result in the sale of Shares, including, but not limited
to, the distribution services set forth in Schedule B to this Agreement. It is
contemplated that the Distributor will enter into selling agreements with
securities dealers, financial institutions and other industry professionals,
such as investment advisers, accountants and estate planning firms to the extent
permitted by SEC and NASD regulations or other governing law, with respect to
the offering of Shares to the public. The Distributor will require each dealer
with whom the Distributor has a selling agreement to conform to the applicable
provisions of the Registration Statement, with respect to the public offering
price of the Shares, and the Distributor shall not cause the Fund to withhold
the placing of purchase orders so as to make a profit thereby. 1.4 The Fund
understands that the Distributor is now, and may in the future be, the
distributor of the shares of several investment companies or series
(collectively, the "Investment Entites"), including Investment Entities having
investment objectives similar to those of the Portfolios. The Fund further
understands that investors and potential investors in the Portfolios may invest
in shares of such other Investment Entities. The Fund agrees that the
Distributor's duties to such Investment Entities shall not be deemed in conflict
with its duties to the Fund under this Section 1.4. 1.5 The Distributor shall
not utilize any materials in connection with the sale or offering of Shares
except the Fund's then current Prospectus and Statement of Additional
Information and such other materials as the Fund shall provide or approve. The
Fund agrees to furnish the Distributor with sufficient copies of any and all
communications with the public or other materials which the Fund intends to use
in connection any sales of Shares, in adequate time for the Distributor to file
and clear such materials with the proper authorities before they are put in use.
The Distributor and the Fund may agree that any such material does not need to
be filed subsequent to distribution. In addition, the Fund agrees not to use any
such materials until so filed and cleared for use, if required, by appropriate
authorities as well as by the Distributor. 1.6 All activities by the Distributor
and its agents and employees, 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 SEC or the National Association of
Securities Dealers. 1.7 The Distributor will transmit any orders received by it
for purchase or redemption of the Shares to the transfer agent for the Fund. 1.8
Whenever in its judgment such action is warranted, the Fund may decline to
accept any orders for, or make any sales of, the Shares until such time as the
Fund deems it advisable to accept such orders and to make such sales, and the
Fund shall notify the Distributor promptly of any such determination. 1.9 The
Fund agrees 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 where
Shares are offered for sale. The Fund shall notify the Distributor in writing of
the states in which the Shares are to be sold and shall notify the Distributor
in writing of any changes to the information contained in the previous
notification. 1.10 The Fund shall furnish from time to time, for use in
connection with the sale of the Shares, such information with respect to the
Fund and the Shares as the Distributor may reasonably request; and the Fund
warrants that the statements contained in any such information shall fairly show
or represent what they purport to show or represent. The Fund shall also furnish
the Distributor upon request with: (a) audited annual statements and unaudited
semi-annual statements of a Portfolio's books and accounts prepared by the Fund,
(b) quarterly earnings statements of a Portfolio prepared by the Fund, (c) a
monthly itemized list of the securities in a Portfolio, (d) monthly balance
sheets as soon as practicable after the end of each month, and (c) from time to
time such additional information regarding the financial condition of a
Portfolio as the Distributor may reasonably request. 1.11 The Fund represents to
the Distributor that all Registration Statements and Prospectuses filed by the
Fund with the SEC under the 1933 Act with respect to the Shares have been
prepared in conformity with the requirements of the 1933 Act and the rules and
regulations of the SEC thereunder. As used in this Agreement, the term
"Registration Statement" shall mean any Registration Statement and any
Prospectus and any Statement of Additional Information relating to the Fund
filed with the SEC and any amendments or supplements thereto at any time filed
with the SEC. Except as to information included in the Registration Statement in
reliance upon information provided to the Fund by the Distributor or any
affiliate of the Distributor expressly for use in the Registration Statement,
the Fund represents and warrants to the Distributor that any Registration
Statement, when such Registration Statement becomes effective, will contain
statements required to be stated therein in conformity with the 1933 Act and the
rules and regulations of the SEC; that all statements of fact contained in any
such Registration Statement will be true and correct when such Registration
Statement becomes effective; and that no Registration Statement 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 Distributor 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 Distributor's counsel, be necessary or
advisable. The Distributor shall promptly notify the Fund of any advice given to
it by its counsel regarding the necessity or advisability of amending or
supplementing such Registration Statement. 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 the Distributor to do so,
the Distributor may, at its option, terminate this Agreement. The Fund shall not
file any amendment to any Registration Statement or supplement to any Prospectus
without giving the Distributor 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, of whatever character, as the Fund may
deem advisable, such right being in all respects absolute and unconditional. The
Fund authorizes the Distributor to use any Prospectus or Statement of Additional
Information in the form furnished by the Fund from time to time in connection
with the sale of the Shares. 1.12 No Shares shall be offered by either the
Distributor or the Fund under any of the provisions of this Agreement and no
orders for the purchase or sale of Shares hereunder shall be accepted by the
Fund if and so long as effectiveness of the Registration Statement then in
effect or any necessary amendments thereto shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a current Prospectus a required
by Section 5(b)(2) of the 1933 Act is not on file with the SEC; provided,
however, that nothing contained in this Section 1.12 shall in any way restrict
or have any application to or bearing upon the Fund's obligation to redeem
Shares tendered for redemption by any shareholder in accordance with the
provisions of the Fund's Registration Statement or Agreement and Declaration of
Trust. 1.13 The Fund agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor: (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 by service of process on
the Fund 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 amendments
to any Registration Statement, Prospectus or Statement of Additional Information
which may from time to time be filed with the SEC.
For purposes of this Section 1.13, informal requests by or acts of the
staff of the SEC shall not be deemed actions of or requests by the SEC.
The Fund represents and warrants to the Distributor that the Fund is an
investment company registered under the 1940 Act and the Shares sold by
each Portfolio are, and will be, registered under the 0000 Xxx.
1.15 The Distributor agrees to maintain, and preserve for the periods prescribed
by Rule 31a-2 under the 1940 Act, such records as are required to be maintained
by Rule 31a-1(d) under the 1940 Act. 2. Compensation and Expenses
The Fund will bear the following expenses:
(a) preparation, printing and distribution of sufficient
copies of the Prospectus and Statement of Additional
Information to existing shareholders;
(b) preparation, printing and distribution of reports and other
communications (not prepared by the Distributor) to existing
shareholders;
(c) registration of the Shares under the federal and state securities laws;
(d) maintaining facilities for the issue and transfer of Shares;
(e) supplying information, prices and other data to be furnished by the
Fund under this Agreement;
(f) any original issue taxes or other transfer taxes applicable to the
sale or delivery of the Shares or certificates therefor; and
(g) any payments made in accordance with any plan hereafter adopted
pursuant to Rule 12b-1 under the 1940 Act.
3. Indemnification
The Fund agrees to indemnify and hold the Distributor, its officers, directors,
and employees, and any person who controls the Distributor within the
meaning of Section 15 of the 1933 Act, free and harmless from and against
any and all claims, costs, expenses (including reasonable attorneys' fees),
losses, damages, charges, payments and liabilities of any sort or kind
which the Distributor, its officers, directors, employees or any such
controlling person may incur under the 1933 Act, under any other statute,
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 the Fund's Registration Statement, Prospectus or Statement of Additional
Information (including amendments and supplements thereto), or (ii) any
omission, or alleged omission, to state a material fact required to be
stated in the Fund's Registration Statement, Prospectus or Statement of
Additional Information (including amendments or supplements thereto) or
necessary to make the statements therein not misleading; provided, however,
that insofar as any losses, claims, damages, costs, charges, payments,
liabilities or expenses arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information furnished to the Fund by the
Distributor or its affiliated persons for use in the Fund's Registration
Statement, Prospectus or Statement of Additional Information (including
amendments or supplements thereto), such indemnification is not applicable;
and further provided that the Fund's agreement to indemnify the Distributor
and the Fund's representations and warranties hereinbefore set forth in
Section 1.11 shall not be deemed to cover any liability to the Fund, its
officers, trustees or shareholders to which the Distributor otherwise be
subject by reason of: (a) the Distributor's willful misfeasance, bad faith
or negligence in the performance of its duties and obligations, or by
reason of the Distributor's reckless disregard of its duties and
obligations under this Agreement; or (b) the Distributor's breach of
Section 12 of this Agreement. The Fund agrees and acknowledges that the
Distributor has not prior to the date hereof assumed, and will not assume,
any obligations or liabilities arising out of the conduct of the Fund or
its distributor prior to the date hereof of those duties which the
Distributor has agreed perform pursuant to this Agreement. The Fund further
agrees to indemnify the Distributor against any losses, claims, damages or
liabilities to which the Distributor may become subject in connection with
the conduct by the Fund or its distributor of such duties prior to the date
hereof; provided that the Fund's agreement to indemnify the Distributor
shall not be deemed to cover any liability to the Fund, its officers,
trustees or shareholders to which the Distributor would otherwise be
subject by reason of willful misfeasance, bad faith or negligence in the
performance of its duties and obligations, or by reason of the
Distributor's reckless disregard of its duties and obligations under this
Agreement.
3.2 The Distributor agrees to indemnify and hold harmless the Fund, its several
officers and trustees and each person, if any, who controls a Portfolio within
the meaning of Section 15 of the 1933 Act, from and against any and all claims,
costs, expenses (including reasonable attorneys' fees), losses, damages,
charges, payments and liabilities of any sort or kind which the Fund, its
officers or trustees, or any such controlling person, may incur under the 1933
Act, under any other statute, or under common law or otherwise, but only to the
extent that such liability or expense incurred by the Fund, its officers or
trustees, or any controlling person, resulting from such claims or demands,
shall arise out of or be based upon any untrue statement, or alleged untrue
statement, of a material fact contained in the Fund's Registration Statement,
Prospectus or Statement of Additional Information (including amendments and
supplements thereto), or any omission, or alleged omission, to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, if such statement or omission was made in reliance upon
information furnished or confirmed to the Fund by the Distributor or its
affiliated persons (as defined in the 1940 Act). The Distributor also agrees to
indemnify and hold harmless the Fund, its officers or trustees, or any
controlling person in connection with any claim or in connection with any
action, suit or proceeding which arises out of or is alleged to arise out of:
(a) the Distributor's willful misfeasance, bad faith or negligence in the
performance of its duties and obligations or by reason of the Distributor's
reckless disregard of its duties and obligations under this Agreement; or (b)
the Distributor's breach of Section 12 of this Agreement. The foregoing rights
of indemnification shall be in addition to any other rights to which the Fund,
its officers or trustees, or any controlling person shall be entitled to as a
matter of law.
In any case in which one party hereto (the "Indemnifying Party") may be asked
to indemnify or hold the other party hereto (the "Indemnified Party")
harmless, the Indemnified Party will notify the Indemnifying Party in
writing promptly after identifying any situation which it believes presents
or appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party, although the
failure to do so shall not relieve the Indemnifying Party from any
liability which it may otherwise have to the Indemnified Party, and the
Indemnified Party shall keep the Indemnifying Party advised with respect to
all developments concerning such situation. The Indemnifying Party shall be
entitled to participate at its own expense in the defense, or if it so
elects, to assume the defense of, any Indemnification Claim which may be
the subject of this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be conducted by counsel of
good standing chosen by the Indemnifying Party and approved by the
Indemnified Party, which approval shall not be unreasonably withheld. In
the event the Indemnifying Party elects to assume the defense of any such
Indemnification Claim and retain such counsel, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by the
Indemnified Party. In the event that the Indemnifying Party does not elect
to assume the defense of any such Indemnification Claim, or in case the
Indemnified Party reasonably does not approve of counsel chosen by the
Indemnifying Party, or in case there is a conflict of interest between the
Indemnifying Party or the Indemnified Party, the Indemnifying Party will
reimburse the Indemnified Party for the fees and expenses of any counsel
retained by the Indemnified Party. The Fund agrees promptly to notify the
Distributor of the commencement of any litigation or proceedings against
the Fund or any of its officers or trustees in connection with the issue
and sale of any of the Shares, and the Distributor agrees promptly to
notify the Fund of the commencement of any litigation or proceedings
against the Distributor or any of its officers, directors, employees or
controlling persons in connection with the issuance and sale of any of the
Shares. The Indemnified Party will not confess any Indemnification Claim or
make any compromise in any case in which the Indemnifying Party will be
asked to provide indemnification, except with the Indemnifying Party's
prior written consent.
3.4 The obligations of the parties hereto under this Section 3 shall survive the
termination of this Agreement. 3.5 The Fund's indemnification agreement
contained in this Section 3 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 the Distributor, its officers,
directors and employees, or any controlling person, and shall survive the
delivery of any Shares. This agreement of indemnify will inure exclusively to
the Distributor's benefit, to the benefit of its several officers, directors and
employees, and their respective estates and to the benefit of its controlling
persons and their successors. 3.6 The Distributor's indemnification agreement
contained in this Section 3 and the Distributor'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 the Fund or its officers and
trustees, or any controlling person, and shall survive the delivery of any
Shares. 4. Standard of Care; Limitation of Liability
The Distributor shall not be liable to the Fund for any error of judgment or
mistake of law or for any loss suffered by the Fund in connection with the
performance of its obligations and duties under this Agreement, except a
loss resulting from: (a) the Distributor's willful misfeasance, bad faith
or negligence in the performance of such obligations and duties, or by
reason of its reckless disregard thereof, or (b) the Distributor's breach
of Section 12 of this Agreement.
4.2 Each party shall have the duty to mitigate damages for which the other party
may become responsible.
4.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR
DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO
THE OTHER PARTY FOR CONSEQUENTIAL DAMAGES, PROVIDED, HOWEVER, THAT NOTHING
CONTAINED IN THIS SECTION 4.3 SHALL BE CONSTRUED SO AS TO LIMIT THE RIGHTS OF
ANY SHAREHOLDER OF THE FUND, WHETHER SUING ON HIS, HER OR ITS OWN BEHALF OR
DERIVATIVELY THROUGH THE FUND, TO CONSEQUENTIAL DAMAGES. 5. Term
This Agreement shall become effective on the date first written above and,
unless sooner terminated as provided herein, shall continue until April 30,
2000 and thereafter shall continue automatically for successive one-year
terms, provided such continuance is specifically approved at least annually
by (i) the Fund's Board of Trustees or (ii) by a vote of a majority (as
defined in the 1940 Act and Rule l8f-2 thereunder) of the outstanding
voting securities of the Fund, provided that in either event the
continuance is also approved by a majority of the trustees who are not
parties to this Agreement and 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 at least sixty days' written notice, by
the Fund's Board of Trustees, by vote of a majority (as defined in the 1940
Act and Rule 18f-2 thereunder) of the outstanding voting securities of the
Fund, or by the Distributor. This Agreement will also terminate
automatically in the event of its assignment (as defined in the 1940 Act
and the rules thereunder).
5.2 In the event a termination notice is given by the Fund and provided that the
Distributor is not in default under this Agreement at the time of such
termination notice, all expenses associated with movement of records and
materials and conversion thereof to a successor distributor will be borne by the
Fund.
6. Modifications and Waivers
No change, termination, modification, or waiver of any term or
condition of the Agreement shall be valid unless in writing signed by
each party. No such writing shall be effective as against the
Distributor unless said writing is executed by a Senior Vice President,
Executive Vice President or President of the Distributor. No such
writing shall be effective as against the Fund unless said writing is
executed by the Chairman of the Fund's Board of Trustees. A party's
waiver of a breach of any term or condition in the Agreement shall not
be deemed a waiver of any subsequent breach of the same or another term
or condition.
7. No Presumption Against Drafter
The Distributor and the Fund have jointly participated in the
negotiation and drafting of this Agreement. The Agreement shall be
construed as if drafted jointly by the Fund and the Distributor, and no
presumptions arise favoring any party by virtue of the authorship of
any provision of this Agreement.
8. Publicity
Neither the Distributor nor the Fund shall release or publish news
releases, public announcements, advertising or other publicity relating
to this Agreement or to the transactions contemplated by it without
prior review and written approval of the other party; provided,
however, that either party may make such disclosures as are required by
legal, accounting or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance with the other
party.
9. Severabilily
The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or
invalidity shall not affect the validity of the remainder of this
Agreement. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the
parties. Without limiting the generality of this paragraph, if a court
determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement shall
remain fully effective.
10. Force Majeure
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default
or delay is caused, directly or indirectly, by circumstances beyond
such party's reasonable control. In any such event, the non-performing
party shall be excused from any farther performance and observance of
the obligations so affected only for so long as such circumstances
prevail and such party continues to use commercially reasonable efforts
to recommence performance of observance as soon as practicable.
Miscellaneous
Any notice or other instrument authorized or required by this Agreement to be
given in writing to the Fund or the Distributor shall be sufficiently given
if addressed to the party and received by it at its office set forth below
or at such other place as it may from time to time designate in writing.
To the Fund:
Xxxxx X. Xxxxxx, Esq.
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx - X-0
Xxxxxxx, XX 00000
with a copy to:
W. Xxxxx XxXxxxxx, III Esq.
Philadelphia National Bank Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
To the Distributor:
Xxxxxx Xxxxxxxxx
c/o Provident Distributors, Inc.
Four Falls Corporate Center
0xx Xxxxx
Xxxx Xxxxxxxxxxxx, XX 00000-0000
The laws of the Commonwealth of Massachusetts, excluding the applicable
provisions of the 1940 Act, shall govern the interpretation, validity, and
enforcement of this Agreement. To the extent the provisions of
Massachusetts law or the provisions hereof conflict with the 1940 Act, the
1940 Act shall control. All actions arising from or related to this
Agreement shall be brought in the state and federal courts sitting in the
City of Boston, and the Distributor and the Fund hereby submit themselves
to the exclusive jurisdiction of those courts.
11.3 This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and which collectively shall be deemed to
constitute only one instrument. 11.4 The captions of this Agreement are included
for convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. 11.5 This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and is not intended to confer upon any
other person any rights or remedies hereunder. Confidential
The parties agree that the Proprietary Information (defined below) is
confidential information of the parties and their respective licensers. The
Fund and the Distributor shall exercise at least the same degree of care,
but not less than reasonable care, to safeguard the confidentiality of the
Proprietary Information of the other as it would protect its own
Proprietary Information. The Fund and the Distributor may use the
Proprietary Information only to exercise their respective rights or perform
their respective duties under this Agreement. Except as otherwise required
by law, the Fund and the Distributor shall not duplicate, sell or disclose
to others the Proprietary Information of the other, in whole or in part,
without the prior written permission of the other party. The Fund and the
Distributor may, however, disclose Proprietary Information to their
respective employees who have a need to know the Proprietary Information to
perform work for the other, provided that the Fund and the Distributor
shall use reasonable efforts to ensure that the Proprietary Information is
not duplicated or disclosed by their respective employees in breach of this
Agreement. The Fund and the Distributor may also disclose the Proprietary
Information to independent contractors, auditors and professional advisors,
provided they first agree in writing to be bound by confidentiality
obligations substantially similar to this Section 12. Notwithstanding the
previous sentence, in no event shall either the Fund or the Distributor
disclose the Proprietary Information to any competitor of the other without
specific, prior written consent.
Proprietary Information means:
(a) any data or information that is completely sensitive material,
and not generally known to the public, including, but not
limited to, information about product plans, marketing
strategies, finance, operations, customer relationships,
customer profiles, sales estimates, business plans, and
internal performance results relating to the past, present or
future business activities of the Fund or the Distributor,
their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them;
(b) any scientific or technical information, design, process, procedure,
formula, or improvement that is commercially valuable and secret in the sense
that its confidentiality affords the Fund or the Distributor a competitive
advantage over its competitors; (c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable; (d) all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and models,
and any other tangible manifestation of the foregoing of either party which now
exist or come into the control or possession of the other; and (e) with respect
to the Fund, all records and other information relative to the Fund and its
prior, present or potential shareholders (and clients of such shareholders).
Notwithstanding the foregoing, it is hereby understood and agreed by the parties
hereto that any marketing
strategies, financing plans, customer profiles, sales estimates, business
plans or similar items prepared or developed by the Distributor for the
benefit of the Fund shall be considered the Proprietary Information of the
Fund and nothing in this Agreement shall be construed to prevent or
prohibit the Fund from disclosing such Proprietary Information to a
successor distributor.
12.4 The obligations of the parties hereto under this Section 12 shall survive
the termination of this Agreement.
Trustee and Shareholder Liability
This Agreement is executed by or on behalf of the Fund with respect to
each of the Portfolios and the obligations hereunder are not binding
upon any of the trustees, officers or shareholders of the Fund
individually but are binding only upon the Portfolio to which such
obligations pertain and the assets and property of such Portfolio. All
obligations of the Fund under this Agreement shall apply only on a
Portfolio-by-Portfolio basis, and the assets of one Portfolio shall not
be liable for the obligations of another Portfolio. The Fund's
Declaration of Trust is on file with the Secretary of the Commonwealth
of Massachusetts.
Entire Agreement
This Agreement, including all Schedules hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous proposals, agreements,
contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
NORTHERN INSTITUTIONAL FUNDS
By:
Name:
Title:
NORTHERN FUNDS DISTRIBUTORS, LLC
By:
Name:
Title:
SCHEDULE A
LIST OF PORTFOLIOS
Non-International Portfolios:
Government Select Portfolio
Government Portfolio
Diversified Assets Portfolio
Tax-Exempt Portfolio
Municipal Portfolio
U.S. Government Securities Portfolio
Short-Intermediate Bond Portfolio
U.S. Treasury Index Portfolio
Bond Portfolio
Intermediate Bond Portfolio
Balanced Portfolio
Equity Index Portfolio
Diversified Growth Portfolio
Focused Growth Portfolio
Small Company Index Portfolio
Small Company Growth Portfolio
MidCap Growth Portfolio
MarketPower Portfolio
International Portfolios:
International Bond Portfolio
International Equity Index Portfolio
International Growth Portfolio
SCHEDULE B
DISTRIBUTION SERVICES
The Distributor shall, at its own expense, finance appropriate activities which
are primarily intended to result in the sale of the Shares. Such services shall
include, but are not limited to:
1. Preparation and execution of selling agreements
monitoring accruals
monitoring expenses
making disbursements for expenses and fees
2. Advertising and sales literature submission to the NASD
3. Investor qualification calls, as necessary
4. Printing and mailing of Prospectuses to other than existing shareholders
