DISTRIBUTION AND SERVICES AGREEMENT
This Agreement is made as of February 12, 1996, between
Xxxxxxxxx & Xxxxxx Equity Assets, a Delaware business trust ("Trust"), and
Xxxxxxxxx & Xxxxxx Management Incorporated, a New York corporation
("Distributor").
WHEREAS, the Trust is registered under the Investment Company Act
of 1940, as amended ("1940 Act"), as an open-end, diversified management
investment company and has the power to establish several separate series
of shares ("Series"), with each Series having its own assets and
investment policies;
WHEREAS, the Trust desires to retain the Distributor to furnish
certain distribution, shareholder, and administrative services to each
Series listed in Schedule A attached hereto, and to such other Series of
the Trust hereinafter established as agreed to from time to time by the
parties, evidenced by an addendum to Schedule A (hereinafter "Series"
shall refer to each Series which is subject to this Agreement, and all
agreements and actions described herein to be made or taken by a Series
shall be made or taken by the Trust on behalf of the Series), and the
Distributor is willing to furnish such services; and
WHEREAS, the Trust has approved a plan pursuant to Rule 12b-1
under the 1940 Act ("Plan");
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties agree as follows:
1. The Trust hereby appoints the Distributor as agent
to sell the shares of beneficial interest of each Series ("Shares") and
the Distributor hereby accepts such appointment. All sales by the
Distributor shall be expressly subject to acceptance by the Trust, acting
on behalf of the Series. The Trust may suspend sales of the Shares of any
one or more Series at any time, and may resume sales at any later time.
2. (a) The Distributor agrees that (i) all Shares
sold by the Distributor shall be sold at the net asset value ("NAV")
thereof as described in Section 3 hereof, and (ii) the Series shall
receive 100% of such NAV.
(b) The Distributor may enter into agreements, in form
and substance satisfactory to the Trust, with dealers selected by the
Distributor, providing for the sale to such dealers and resale by such
dealers of Shares at their NAV. The Distributor may compensate dealers
for services they provide under such agreements.
3. The Trust agrees to supply to the Distributor,
promptly after the time or times at which NAV is determined, on each day
on which all or part of the New York Stock Exchange is open for
unrestricted trading and on such other days as the Board of Trustees of
the Trust ("Trustees") may from time to time determine (each such day
being hereinafter called a "business day"), a statement of the NAV of each
Series, determined in the manner set forth in the then-current Prospectus
and Statement of Additional Information ("SAI") of each Series. Each
determination of NAV shall take effect as of such time or times on each
business day as set forth in the then-current Prospectus of each Series.
4. Upon receipt by the Trust at its principal place of
business of a written order from the Distributor, together with delivery
instructions, the Trust shall, if it elects to accept such order, as
promptly as practicable, cause the Shares purchased by such order to be
delivered in such amounts and in such names as the Distributor shall
specify, against payment therefor in such manner as may be acceptable to
the Trust. The Trust may, in its discretion, refuse to accept any order
for the purchase of Shares that the Distributor may tender to it.
5. (a) All sales literature and advertisements used
by the Distributor in connection with sales of Shares shall be subject to
approval by the Trust. The Trust authorizes the Distributor, in
connection with the sale or arranging for the sale of Shares of any
Series, to provide only such information and to make only such statements
or representations as are contained in the Series's then-current
Prospectus and SAI or in such financial and other statements furnished to
the Distributor pursuant to the next paragraph or as may properly be
included in sales literature or advertisements in accordance with the
provisions of the Securities Act of 1933 ("1933 Act"), the 1940 Act and
applicable rules of self-regulatory organizations. Neither the Trust nor
any Series shall be responsible in any way for any information provided or
statements or representations made by the Distributor or its
representatives or agents other than the information, statements and
representations described in the preceding sentence.
(b) Each Series shall keep the Distributor fully
informed with regard to its affairs, shall furnish the Distributor with a
certified copy of all of its financial statements and a signed copy of
each report prepared for it by its independent auditors, and shall
cooperate fully in the efforts of the Distributor to negotiate and sell
Shares of such Series and in the Distributor's performance of all its
duties under this Agreement.
6. The Distributor, as agent of each Series and for the
account and risk of each Series, is authorized, subject to the direction
of the Trust, to redeem outstanding Shares of such Series when properly
tendered by shareholders pursuant to the redemption right granted to such
Series' shareholders by the Trust Instrument of the Trust, as from time to
time in effect, at a redemption price equal to the NAV per Share of such
Series next determined after proper tender and acceptance. The Trust has
delivered to the Distributor a copy of the Trust's Trust Instrument as
currently in effect and agrees to deliver to the Distributor any
amendments thereto promptly upon filing thereof with the Office of the
Secretary of State of the State of Delaware.
7. The Distributor shall assume and pay or reimburse
each Series for the following expenses of such Series: (i) costs of
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printing and distributing reports, prospectuses and SAIs for other than
existing shareholders used in connection with the sale or offering of the
Series' Shares; (ii) costs of preparing, printing and distributing all
advertising and sales literature relating to such Series printed at the
instruction of the Distributor; and (iii) counsel fees and expenses in
connection with the foregoing. The Distributor shall pay all its own
costs and expenses connected with the sale of Shares and may pay the
compensation and expenses, including overhead and telephone and other
communication expenses, of organizations and employees that engage in or
support the distribution of Shares.
8. Each Series shall maintain a currently effective
Registration Statement on Form N-1A with respect to such Series and shall
file with the Securities and Exchange Commission ("SEC") such reports and
other documents as may be required under the 1933 Act and the 1940 Act or
by the rules and regulations of the SEC thereunder.
Each Series represents and warrants that the Registration
Statement, post-effective amendments, Prospectus and SAI (excluding
statements relating to the Distributor and the services it provides that
are based upon written information furnished by the Distributor expressly
for inclusion therein) of such Series shall not contain any untrue
statement of material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and that all statements or information furnished to the
Distributor, pursuant to Section 5(b) hereof, shall be true and correct in
all material respects.
9. In addition to the foregoing, the Distributor
agrees to provide or obtain certain administrative and shareholder
services for the Series. Such services shall include, but are not limited
to, administering periodic investment and periodic withdrawal programs;
researching and providing historical account activity information for
shareholders requesting it; preparing and mailing account and confirmation
statements to account holders; preparing and mailing tax forms to account
holders; serving as custodian for retirement plans investing in the
Series; dealing appropriately with abandoned accounts; collating and
reporting the number of Shares attributable to each state for blue sky
registration and reporting purposes; identifying and reporting
transactions exempt from blue sky registration requirements; and providing
and maintaining ongoing shareholder services for the duration of the
shareholders' investment in each Series, which may include updates on
performance, total return, other related statistical information, and a
continual analysis of the suitability of the investment in each Series.
The Distributor may subcontract to third parties some or all of its
responsibilities to the Series under this paragraph. The Distributor may
pay compensation and expenses, including overhead and telephone and other
communication expenses, to organizations and employees who provide such
services.
10. As compensation for the distribution, shareholder
and administrative services provided under this Agreement, the Distributor
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shall receive from each Series a fee at the rate and under the terms and
conditions set forth in the Plan adopted by the Series, as such Plan may
be amended from time to time. In addition to the expenditures
specifically authorized herein, the Distributor may spend such amounts as
it deems appropriate for any purpose consistent with the Plan, as amended
from time to time.
11. The Distributor shall prepare, at least
quarterly, reports for the Trustees showing expenditures under this
Agreement and the purposes for which such expenditures were made. Such
reports shall be in a format suitable to ensure compliance with the
applicable requirements of the SEC and the National Association of
Securities Dealers.
12. (a) This Agreement shall become effective on the
date hereof and shall remain in full force and effect until February 12,
1997 and may be continued from year to year thereafter; PROVIDED, that
such continuance shall be specifically approved each year by the Trustees
or by a majority of the outstanding voting securities of the Series, and
in either case, also by a majority of the Trustees who are not interested
persons of the Trust or the Distributor ("Disinterested Trustees") and by
a majority of those Disinterested Trustees who have no direct or indirect
financial interest in the Plan or this Agreement ("Rule 12b-1 Trustees").
This Agreement may be amended as to any Series with the approval of the
Trustees or of a majority of the outstanding voting securities of such
Series; PROVIDED, that in either case, such amendment also shall be
approved by a majority of the Disinterested Trustees and the Rule 12b-1
Trustees.
(b) Either party may terminate this Agreement
without the payment of any penalty, upon not more than sixty days' nor
less than thirty days' written notice delivered personally or mailed by
registered mail, postage prepaid, to the other party; PROVIDED, that in
the case of termination by any Series, such action shall have been
authorized (i) by resolution of the Trustees, (ii) by a majority of the
outstanding voting securities of such Series or (iii) by a majority of the
Disinterested Trustees or the Rule 12b-1 Trustees.
(c) This Agreement shall automatically terminate
if it is assigned by the Distributor.
(d) Any question of interpretation of any term
or provision of this Agreement having a counterpart in or otherwise
derived from a term or provision of the 1940 Act shall be resolved by
reference to such term or provision of the 1940 Act and to interpretation
thereof, if any, by the United States courts or, in the absence of any
controlling decision of any such court, by rules, regulations or orders of
the SEC validly issued pursuant to the 1940 Act. Specifically, the terms
"interested persons," "assignment" and "vote of a majority of the
outstanding voting securities," as used in this Agreement, shall have the
meanings assigned to them by Section 2(a) of the 1940 Act. In addition,
when the effect of a requirement of the 1940 Act reflected in any
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provision of this Agreement is modified, interpreted or relaxed by a rule,
regulation or order of the SEC, whether of special or of general
application, such provision shall be deemed to incorporate the effect of
such rule, regulation or order. The Trust and the Distributor may from
time to time agree on such provisions interpreting or clarifying the
provisions of this Agreement as, in their joint opinion, are consistent
with the general tenor of this Agreement and with the specific provisions
of this Section 12(d). Any such interpretations or clarifications shall
be in writing signed by the parties and annexed hereto, but no such
interpretation or clarification shall be effective if in contravention of
any applicable federal or state law or regulations, and no such
interpretation or clarification shall be deemed to be an amendment of this
Agreement.
No term or provision of this Agreement shall be
construed to require the Distributor to provide distribution, shareholder,
or administrative services to any series of the Trust other than the
Series, or to require any Series to pay any compensation or expenses that
are properly allocable, in a manner approved by the Trustees, to a series
of the Trust other than such Series.
(e) This Agreement is made and to be principally
performed in the State of New York, and except insofar as the 1940 Act or
other federal laws and regulations may be controlling, this Agreement
shall be governed by, and construed and enforced in accordance with, the
internal laws of the State of New York.
(f) This Agreement is made by the Trust solely
with respect to the Series, and the obligations created hereby with
respect to one Series bind only assets belonging to that Series and are
not binding on any other series of the Trust.
13. The Distributor or one of its affiliates may from
time to time deem it desirable to offer to the list of shareholders of
each Series the shares of other mutual funds for which it acts as
Distributor, including other series of the Trust or other products or
services; however, any such use of the list of shareholders of any Series
shall be made subject to such terms and conditions, if any, as shall be
approved by a majority of the Disinterested Trustees.
14. The Distributor shall look only to the assets of
a Series for the performance of this Agreement by the Trust on behalf of
such Series, and neither the shareholders, the Trustees nor any of the
Trust's officers, employees or agents, whether past, present or future,
shall be personally liable therefor.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed by their duly authorized officers and under
their respective seals.
XXXXXXXXX & XXXXXX
EQUITY ASSETS
Attest: By: -------------------------
------------------------ Title: ----------------------
Secretary
XXXXXXXXX & XXXXXX
MANAGEMENT INCORPORATED
Attest: By: -------------------------
----------------------- Title: ----------------------
Secretary
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