DISTRIBUTION AGREEMENT
March 5, 1991
Amended and Restated effective April 14, 1997
Xxxxxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements
hereinafter contained, the undersigned The Xxxxxxxxxx Funds (the "Trust"), a
business trust created under the laws of the Commonwealth of Massachusetts, has
agreed that Xxxxxxxxxx & Co. Inc. ("Xxxxxxxxxx") shall be, for the period of
this Agreement, the distributor of shares of beneficial interest ("Shares") of
the Trust.
1. Services as Distributor
1.1 Xxxxxxxxxx will act as agent for the distribution
of shares of each series of Shares of the Trust covered by the Trust's
registration statement on Form N-1A (the "Registration Statement") under the
Securities Act of 1933 (the "1933 Act"), and the Investment Company Act of 1940,
as amended (the "1940 Act").
1.2 Xxxxxxxxxx agrees to use its best efforts to
solicit orders for the sale of Shares of each series of the Trust which are
being publicly offered at the public offering price, as determined in accordance
with the Registration Statement, and will undertake such advertising and
promotion as it believes is reasonable in connection with such solicitation.
Xxxxxxxxxx agrees to bear all selling expenses, including the cost of printing
prospectuses and statements of additional information and distributing them to
prospective shareholders.
1.3 All activities by Xxxxxxxxxx as distributor of
the Trust's shares shall comply with all applicable laws, rules and regulations,
including, without limitation, all rules and regulations made or adopted by the
Securities and Exchange Commission (the "SEC") or by any securities association
registered under the Securities Exchange Act of 1934.
1.4 Xxxxxxxxxx will provide one or more persons
during normal business hours to respond to telephone questions concerning the
Trust and each series of its Shares offered to the public by Xxxxxxxxxx.
1.5 Xxxxxxxxxx acknowledges that, whenever in the
judgment of the Trust's officers such action is warranted for any reason,
including, without limitation, market, economic or political conditions, those
officers may decline to accept any orders for or make any sales of, the Trust's
Shares or the Shares of a particular series of the Trust's Shares until such
time as those officers deem it advisable to accept such orders and to make such
sales.
1.6 Xxxxxxxxxx will act only on its own behalf as
principal should it choose to enter into selling agreements with selected
dealers or others.
1.7 As promptly as is possible after the last day of
each month this Agreement is in effect, the Trust may reimburse Xxxxxxxxxx for
certain expenses incurred by Xxxxxxxxxx in connection with the offering and
sales of the Trust's Shares ("distribution expenses") under this Agreement and
the provision of shareholder services ("service expenses"); provided that
payment shall be made in any month only to the extent that such payment,
together with any other payments made by the Trust pursuant to its applicable
Distribution Plan adopted in accordance with Rule 12b-1 under the 1940 Act
(each, a "Plan"), shall not exceed the amount permitted under such Plan. If
distribution or service expenses incurred during a month are not fully
reimbursed by said monthly payment, the unpaid portion of the expenses may be
carried forward for payment by the Trust at the end of the following month(s)
and interest, at the end prevailing broker loan rate, may be charged thereon,
but only if such payment would not cause the particular series or class of
shares to exceed for that month the monthly or annual limitations on
distribution or service expenses stated in its Plan. The reimbursement by the
Trust of distribution and service expenses incurred by Xxxxxxxxxx is authorized
pursuant to the Plans.
Expenses incurred in connection with promotional activities
will be identified to the series or class involved, although it is anticipated
that some promotional activities will be conducted in respect of all series or
classes in common, with the result that expenses incurred in connection with
those activities will not be identifiable to any particular series or class. In
the latter case, expenses will be allocated among the series or classes on the
basis of their relative net assets.
For purposes of this Agreement, "distribution expenses" and
"service expenses" of Xxxxxxxxxx shall mean those expenses borne by Xxxxxxxxxx,
or by any other person with which Xxxxxxxxxx has an agreement, for which
reimbursement is contemplated in the various Plans.
1.8 Each written request for reimbursement under
section 1.7 shall be directed to the Treasurer of the Trust and shall show in
reasonable detail the expenses incurred by Xxxxxxxxxx.
1.9 Xxxxxxxxxx shall prepare and deliver reports to the
Treasurer of the Trust, for review by the Trustees, on a regular, at least
quarterly, basis showing the distribution and/or service expenses expected to be
incurred in the ensuing quarter pursuant to this Agreement and the Plan and the
purposes therefor. Xxxxxxxxxx shall also prepare and deliver reports to the
Treasurer of the Trust, for review by the Trustees, in a regular, at least
quarterly, basis showing the distribution and/or service expenses actually
incurred in the past quarter, as well as any supplemental reports as the
Trustees, from time to time, may reasonably request.
1.10 Xxxxxxxxxx acknowledges that payments under the Plans are
subject to the approval of the Trust's Board of Trustees and that the Trust is
not contractually obligated to make payments in any amount or at any time,
including those in reimbursement of Xxxxxxxxxx for expenses and interest thereon
incurred in a prior month or year.
2. Duties of the Trust
2.1 The Trust agrees at its own expense to execute any and all
documents, to furnish any and all information and to take any other actions that
may be reasonably necessary in connection with the qualification of the Trust's
Shares for sale in those states that Xxxxxxxxxx may designate.
2.2 The Trust shall furnish from time to time, for use in
connection with the sale of the Trust's Shares, such information and reports
with respect to the Trust and its shares as Xxxxxxxxxx may reasonably request,
all of which shall be signed by one or more of the Trust's duly authorized
officers; and the Trust warrants that the statements contained in any such
reports, when so signed by one or more of the Trust's officers, shall be true
and correct. The Trust shall also furnish Xxxxxxxxxx upon request with: (a)
annual audits of the Trust's books and accounts made by independent public
accountants regularly retained by the Trust, (b) semi-annual unaudited financial
statements pertaining to the Trust and each of its series, (c) quarterly
earnings statements prepared by the Trust for each of its series, (d) a monthly
itemized list of the securities in the portfolio of each series of the Trust,
(e) monthly balance sheets for the Trust and each of its series as soon as
practicable after the end of each month and (f) from time to time such
additional information regarding the financial condition of the Trust and each
of its series as Xxxxxxxxxx may reasonably request.
3. Representations and Warranties
The Trust represents to Xxxxxxxxxx that the Registration
Statement, including the prospectuses and statement of additional information
forming parts thereof, has been prepared in conformity with the requirements of
the 1933 Act and
1940 Act, and the rules and regulations of the SEC thereunder. As used in this
Agreement, the terms "Registration Statement", "prospectus" and "statement of
additional information" shall mean any registration statement, prospectus and
statement of additional information filed by the Trust with the SEC and any
amendments and supplements thereto which at any time shall have been filed with
the SEC. The Trust represents and warrants to Xxxxxxxxxx that the Registration
Statement, when such becomes effective, will include all statements required to
be contained therein in conformity with the 1933 Act, the 1940 Act and the rules
and regulations of the SEC; that all statements of fact contained in the
Registration Statement will be true and correct when such becomes effective; and
that the Registration Statement when such becomes effective will not 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 Shares of the Trust or any of its series. Xxxxxxxxxx may, but
shall not be obligated to, propose from time to time such amendment or
amendments to the Registration Statement and such supplement or supplements to
any prospectus or statement of additional information as, in the light of future
developments, may, in the opinion of Xxxxxxxxxx'x counsel, be necessary or
advisable. If the Trust shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt by the Trust of a
written request from Xxxxxxxxxx to do so, Xxxxxxxxxx may, at its option,
terminate this Agreement. The Trust shall not file any amendment to the
Registration Statement or supplement to any prospectus or statement of
additional information without giving Xxxxxxxxxx reasonable notice thereof in
advance; provided, however, that nothing contained in this Agreement shall in
any way limit the Trust's right to file at any time such amendments to the
Registration Statement and/or supplements to any prospectus or statement of
additional information, of whatever character, as the Trust may deem advisable,
such right being in all respects absolute and unconditional.
4. Indemnification
4.1 The Trust authorizes Xxxxxxxxxx and any dealers
with whom Xxxxxxxxxx has entered into dealer agreements to use any prospectus or
statement of additional information furnished by the Trust from time to time, in
connection with the sale of the Shares of the Trust and any of its series of
Shares. The Trust agrees to indemnify, defend and hold Xxxxxxxxxx, its several
officers and directors, and any person who controls Xxxxxxxxxx within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which Xxxxxxxxxx, its officers and
directors, or any such controlling person, may incur under the 1933 Act, the
1940 Act or common law or otherwise, arising out of or based upon any untrue
statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
prospectus or any statement of additional information, or arising out of or
based upon any omission or alleged omission to state a material fact required to
be stated in the Registration Statement, any prospectus or any statement of
additional information, or necessary to make the statements in any of them not
misleading; provided, however , that the Trust's agreement to indemnify
Xxxxxxxxxx, its officers or directors, and any such controlling person shall not
be deemed to cover any claims, demands, liabilities or expenses arising out of
or based upon any statements or representations made by Xxxxxxxxxx or its
representatives or agents other than such statements and representations as are
contained in the Registration Statement, prospectus or statement of additional
information and in such financial and other statements as are furnished to
Xxxxxxxxxx pursuant to paragraph 2.2 hereof; and further provided that the
Trust's agreement to indemnify Xxxxxxxxxx and the Trust's representations and
warranties hereinbefore set forth in paragraph 3 shall not be deemed to cover
any liability to the Trust or its shareholders to which Xxxxxxxxxx would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of Xxxxxxxxxx'x
reckless disregard of its obligations and duties under this Agreement. The
Trust's agreement to indemnify Xxxxxxxxxx, its officers and directors, and any
such controlling person, as aforesaid, is expressly conditioned upon the Trust's
being notified of any action brought against Xxxxxxxxxx, its officers or
directors, or any such controlling person, such notification to be given by
letter or by telegram addressed to the Trust at its principal office in New
York, New York and sent to the Trust by the person against whom such action is
brought, within ten days after the summons or other fist legal process shall
have been served. The failure so to notify the Trust of any such action shall
not relieve the Trust from any liability that the Trust may have to the person
against whom such action is brought by reason of any such untrue or alleged
untrue statement or omission or alleged omission otherwise than on account of
the Trust's indemnity agreement contained in this paragraph 4.1. The Trust will
be entitled to assume the defense of any suit brought to enforce any such claim,
demand or liability, but, in such case, such defense shall be conducted by
counsel of good standing chosen by the Trust and approved by Xxxxxxxxxx. In the
event the Trust elects to assume the defense of any such suit and retain counsel
of good standing approved by Xxxxxxxxxx, the defendant or defendants in such
suit shall bear the fees and expenses of any additional counsel retained by any
of them; but in case the Trust does not elect to assume the defense of any such
suit, or in case Xxxxxxxxxx does not approve of counsel chosen by the Trust, the
Trust will reimburse Xxxxxxxxxx, its officers and directors, or the controlling
person or persons named as defendant or defendants in such suit, for the fees
and expenses of any counsel retained by Xxxxxxxxxx or them. The Trust's
indemnification agreement contained in this paragraph 4.1 and the Trust'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 Xxxxxxxxxx, its officers and directors, or any controlling
person, and shall survive the delivery of any of the Shares of the Trust or any
of its series. This agreement of indemnity shall inure exclusively to
Xxxxxxxxxx'x benefit, to the benefit of its several officers and directors, and
their respective estates, and to the benefit of the controlling persons and
their successors. The Trust agrees to notify Xxxxxxxxxx promptly of the
commencement of any litigation or proceeding against the Trust or any of its
officers or trustees in connection with the issuance and sale of any of the
Shares of the Trust or any of its series of Shares.
4.2 Xxxxxxxxxx agrees to indemnify, defend and hold the Trust,
its several officers and trustees, and any person who controls the Trust within
the meaning of Section 15 of the 1933 Act, free and harmless from and against
any and all claims, demands, liabilities and expenses (including the costs of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) that the Trust, its officers or trustees
or any such controlling person may incur under the 1933 Act, the 1940 Act or
common law or otherwise, but only to the extent that such liability or expense
incurred by the Trust, its officers or trustees or such controlling person
resulting from such claims or demands shall arise out of or be based upon (a)
any unauthorized sales literature, advertisements, information, statements or
representations or (b) any untrue or alleged untrue statement of a material fact
contained in information furnished in writing by Xxxxxxxxxx to the Trust and
used in the answers to any of the items of the Registration Statement, or shall
arise out of or be based upon any omission or alleged omission to state a
materials fact in connection with such information furnished in writing by
Xxxxxxxxxx to the Trust and required to be stated in such answers or necessary
to make such information not misleading. Xxxxxxxxxx'x agreement to indemnify the
Trust, its officers and trustees, and any such controlling person, as aforesaid,
is expressly conditioned upon xxxxxxxxxx'x being notified of any action brought
against the Trust, its officers or trustees, or any such controlling person,
such notification to be given by letter or telegram addressed to Xxxxxxxxxx at
its principal office in New York, New York and sent to Xxxxxxxxxx by the person
against whom such action is brought within ten days after the summons or other
first legal process shall have been served. Xxxxxxxxxx shall have the right of
first control of the defense of such action, with counsel of its own choosing,
satisfactory to the Trust, if such action is based solely upon such alleged
misstatement or omission on Xxxxxxxxxx'x part; in any other event, the Trust,
its officers or trustees or such controlling person shall each have the right to
participate in the defense or preparation of the defense of any such action. The
failure so to notify Xxxxxxxxxx of any such action shall not relieve Xxxxxxxxxx
from any liability that Xxxxxxxxxx may have to the Trust, its officers or
trustees, or to such controlling person by reason of
any such untrue or alleged untrue statement or omission or alleged omission
other wise than on account of Xxxxxxxxxx'x indemnity agreement contained in this
paragraph 4.2. Xxxxxxxxxx agrees to notify the Trust promptly of the
commencement of any litigation or proceedings against Xxxxxxxxxx or any of its
officers or directors in connection with the issuance and sale of any of the
Shares of the Trust or any of its series of Shares.
5. Effectiveness of Registration
None of the Shares of the Trust or any of its series
shall be offered by either Xxxxxxxxxx or the Trust under any of the provisions
of this Agreement and no orders for the purchase or sale of the Shares hereunder
shall be accepted by the Trust or its agents if and so long as the effectiveness
of the Registration Statement 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 as required by Section 5(b)(2) of the 1933 Act is not on file
with the SEC with respect to such Shares; provided, however, that nothing
contained in this paragraph 5 shall in any way restrict or have an application
to or bearing upon the Trust's obligation to repurchase Shares of the Trust or
any of its series of Shares from any shareholder in accordance with the
provisions of the prospectuses or statements of additional information for the
Trust or any of its series of Shares of the Trust's declaration of trust.
6. Notice to Xxxxxxxxxx
The Trust agrees to advise Xxxxxxxxxx immediately
in writing:
(a) of any request by the SEC for amendments to the
Registration Statement, prospectus or statement of additional information then
in effect with respect to the Trust or any of its series of Share 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 or the
initiation 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 then in
effect or that requires the making of a change in the Registration Statement in
order to make the statements therein not misleading; and
(d) of all actions of the SEC with respect to any
amendment to the Registration Statement which may from time to time be filed
with the SEC.
7. The Trust hereby acknowledges that Xxxxxxxxxx and
Xxxxxxxxxx-Xxxxx Holdings, Inc. ("FVH"), its parent, each has a proprietary
right and interest in the name "Xxxxxxxxxx" and
agrees that the name "Xxxxxxxxxx" will be used by it only so long as this
agreement or any extension, renewal or amendment of this agreement remains in
effect. In the event that Xxxxxxxxxx ceases to be the distributor of Shares of
the Fund and that the successor distributor of Shares is not affiliated with
FVH, the Trust agrees that, to the extent that it is legally able to do so, the
Fund will cease to use the name "Xxxxxxxxxx" and will not use the name
"Xxxxxxxxxx" or any other name indicating that its shares are distributed by or
otherwise connected with Xxxxxxxxxx or FVH. The Trust further acknowledges and
agrees that Xxxxxxxxxx and FVH may grant the nonexclusive right to use the name
"Xxxxxxxxxx" or any similar names to any other corporation or entity, including
but not limited to any investment company of which Xxxxxxxxxx or any affiliate
of FVH, or any successor to the business of Xxxxxxxxxx or such affiliate, shall
be the investment adviser or the distributor.
8. Term of Agreement
This Agreement shall continue until March 5, 1993 and
thereafter shall continue automatically for successive annual periods ending on
March 5th of each year, provided that such continuance is specifically approved
at least annually by (a) the Trust's board of Trustees or (b) a vote of a
majority (as defined int he 0000 Xxx) of the Trust's outstanding voting
securities, provided that in either event the continuance is also approved by a
majority of the Trustees of the Trust who are not interested persons (as defined
in the 0000 Xxx) of any party to this Agreement, by vote case in person at a
meeting called for the purpose of voting on such approval. This Agreement is
terminable, without penalty, on 60 days' written notice, by the Trust's Board of
Trustees or by vote of the holders of a majority of the Trust's Shares, or on 90
days' written notice, by Xxxxxxxxxx. This agreement shall also terminate
automatically in the event of its assignment (as defined in the 1940 Act).
This distribution Agreement is made by the Trustees, and
executed on their behalf by the undersigned officer, not individually, but as
Trustees under the Trust's declaration of trust, and the obligations of the
Trust of any of its series of Shares are not binding upon any of the Trustees or
Shareholders individually, but bind only the Trust property or the Trust
property of the applicable series of its Shares.
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
Very truly yours,
THE XXXXXXXXXX FUNDS
By:/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
Accepted and Agreed to:
XXXXXXXXXX & CO. INC.
By:/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, CEO
