6011K Exhibit 6(a)
DISTRIBUTION AGREEMENT
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October 24, 0000
Xxxx Xxxxx & Company, Incorporated
00 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, The Xxxxx Fund (the "Fund"), an unincorporated
business trust organized under the laws of the Commonwealth of Massachusetts,
has agreed that Xxxx Xxxxx & Company, Incorporated ("Xxxxx") shall be, for the
period of this Agreement, the distributor of shares of beneficial interest of
the Fund.
1. SERVICES AS DISTRIBUTOR
1.1 Xxxxx will act as agent for the distribution of each series of shares
of beneficial interest of the Fund (the "Shares") covered by the registration
statement, prospectus and statement of additional information then in effect
(the "Registration Statement") under the Securities Act of 1933, as amended (the
"1933 Act"), and the Investment Company Act of 1940, as amended (the "1940
Act").
1.2 Xxxxx agrees to use its best efforts to solicit orders for the sale of
the Shares 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. Xxxxx 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 Xxxxx 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 Securities and Exchange Commission
(the "SEC") or by any securities association registered under the Securities
Exchange Act of 1934. 1.4 Xxxxx will provide one or more persons during normal
business hours to respond to telephone inquiries concerning the Fund.
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1.4 Xxxxx will provide one or more persons during normal business hours to
respond to telephone inquiries concerning the Fund.
1.5 Xxxxx acknowledges that, whenever in the judgment of the Fund'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 Shares until such time as those
officers deem it advisable to accept such orders and to make such sales.
1.6 Xxxxx 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 Fund may reimburse Xxxxx for certain expenses
incurred by Xxxxx in connection with the offering and sales of the Shares of
each of the portfolios of the Fund, other than the Xxxxx Money Market Portfolio
(each a "Portfolio" and collectively, the "Portfolios"), under this Agreement
that are not covered by any contingent deferred sales charges received by Xxxxx;
provided that payment shall be made in any month only to the extent that such
payment, together with any other payments made by the Fund pursuant to its Plan
of Distribution adopted in accordance with Rule 12b-1 under the 1940 Act (the
"Plan"), shall not exceed .0625 (.75 on an annualized basis) of the average
daily net assets of each of the Portfolios for the prior month. If distribution
expenses incurred during a month in excess of any contingent deferred sales
charges received by Xxxxx in respect of a Portfolio are not fully reimbursed by
said monthly payment, the unpaid portion of the expenses may be carried forward
for payment by the Fund at the end of the following month(s) and interest, at
the prevailing broker loan rate, may be charged thereon, but only if such
payment would not cause the Portfolio for that month to exceed the monthly or
annual limitations on distribution expenses stated above.
For purposes of this Agreement, "distribution expenses" of Xxxxx shall mean
all expenses borne by Xxxxx or by any other person with which Xxxxx has an
agreement approved by the Fund, which expenses represent payment for activities
primarily intended to result in the sale of the Shares, including, but not
limited to, the following:
(a) payments made to and expenses of persons who provide support
services in connection with the distribution of the Shares, including, but
not limited to, answering routine inquiries regarding the Portfolios,
processing shareholder transactions and providing any other shareholder
services not otherwise provided by the Fund's transfer agent;
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(b) costs relating to the formulation and implementation of marketing
and promotional activities, including, but not limited to, direct mail
promotions and television, radio, newspaper, magazine and other mass media
advertising;
(c) costs of printing and distributing prospectuses and reports of the
Fund to prospective shareholders of the Portfolios;
(d) costs involved in preparing, printing and distributing sales
literature pertaining to the Portfolios; and
(e) costs involved in obtaining whatever information, analyses and
reports with respect to marketing and promotional activities on behalf of
the Portfolios that the Fund may, from time to time, deem advisable.
Expenses incurred in connection with promotional activities shall be
identified to the Portfolio involved, except that, where expenses cannot be
identified to any particular Portfolio, expenses shall be allocated among the
Portfolios pro rata on the basis of their relative net assets. Distribution
expenses shall not include any expenditures in connection with services that
Xxxxx, any of its affiliates or any other person have agreed to bear without
reimbursement.
1.8 Each written request for reimbursement under section 1.7 shall be
directed to the Treasurer of the Fund and shall show in reasonable detail the
expenses incurred by Xxxxx.
1.9 Xxxxx shall prepare and deliver reports to the Treasurer of the Fund,
for review by the Trustees, on a regular, at least quarterly, basis showing the
distribution expenses expected to be incurred in the ensuing quarter pursuant to
this Agreement and the Plan and the purposes therefor. Xxxxx shall also prepare
and deliver reports to the Treasurer of the Fund, for review by the Trustees, on
a regular, at least quarterly, basis showing the distribution expenses actually
incurred in the past quarter, as well as any supplemental reports as the
Trustees, from time to time, may request.
1.10 Xxxxx acknowledges that payments under the Plan are subject to the
approval of the Fund's Board of Trustees and that no Portfolio is contractually
obligated to make payments in any amount or at anytime, including those in
reimbursement of Xxxxx for expenses and interest thereon incurred in a prior
month or year.
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2. DUTIES OF THE FUND
2.1 The Fund agrees to execute at its own expense 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 Shares for sale
in those states that Xxxxx may designate.
2.2 The Fund shall furnish from time to time, for use in connection with
the sale of the Shares, such information reports with respect to the Fund and
the Shares as Xxxxx may reasonably request, all of which shall be signed by one
or more of the Fund's duly authorized officers; and the Fund warrants that the
statements contained in any such reports, when so signed by one or more of the
Fund's officers, shall be true and correct. The Fund shall also furnish Alger
upon request with: (a) annual audits of the Fund's books and accounts made by
independent public accountants regularly retained by the Fund, (b) semiannual
unaudited financial statements pertaining to the Fund, (c) quarterly earnings
statements prepared by the Fund, (d) a monthly itemized list of the securities
in each Portfolio, (e) monthly balance sheets as soon as practicable after the
end of each month and (f) from time to time such additional information
regarding the Fund's financial condition as Xxxxx may reasonably request.
3. REPRESENTATIONS AND WARRANTIES
The Fund represents to Xxxxx that all registration statements, prospectuses
and statements of additional information filed by the Fund with the SEC under
the 1933 Act and the 1940 Act with respect to the Shares have been prepared in
conformity with the requirements of the 1933 Act, the 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 Fund with the SEC and any amendments and supplements
thereto that at any time shall have been filed with the SEC. The Fund represents
and warrants to Xxxxx that any registration statement, prospectus and statement
of additional information, when such registration statement 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 any registration statement, prospectus or
statement of additional information will be true and correct when such
registration statement becomes effective; and that neither any registration
statement nor any prospectus or statement of additional information when such
registration
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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. Xxxxx
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 or statement of additional information as, in the light of future
developments, may, in the opinion of Xxxxx'x counsel, be necessary or advisable.
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 Xxxxx to do so, Xxxxx may, at its option, terminate this Agreement. The
Fund shall not file any amendment to any registration statement or supplement to
any prospectus or statement of additional information without giving Xxxxx
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 or statement of additional information, of whatever character, as the
Fund may deem advisable, such right being in all respects absolute and
unconditional.
4. INDEMNIFICATION
4.1 The Fund authorizes Xxxxx and any dealers with whom Xxxxx has entered
into dealer agreements to use any prospectus or statement of additional
information furnished by the Fund from time to time, in connection with the sale
of the Fund's shares. The Fund agrees to indemnify, defend and hold Xxxxx, its
several officers and directors, and any person who controls Xxxxx 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) that Xxxxx, 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 any 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 any 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 Fund's agreement to
indemnify Xxxxx, its officers or directors, and any such controlling person
shall not be deemed to cover any claims, demands,
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liabilities or expenses arising out of or based upon any statements or
representations made by Xxxxx or its representatives or agents other than such
statements and representations as are contained in any registration statement,
prospectus or statement of additional information and in such financial and
other statements as are furnished to Xxxxx pursuant to paragraph 2.2 hereof; and
further provided that the Fund's agreement to indemnify Xxxxx and the Fund's
representations and warranties hereinbefore set forth in paragraph 3 shall not
be deemed to cover any liability to the Fund or its shareholders to which Xxxxx
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of Xxxxx'x reckless
disregard of its obligations and duties under this Agreement. The Fund's
agreement to indemnify Xxxxx, its officers and directors, and any such
controlling person, as aforesaid, is expressly conditioned upon the Fund's being
notified of any action brought against Xxxxx, its officers or directors, or any
such controlling person, such notification to be given by letter or by telegram
addressed to the Fund at its principal office in New York, New York and sent to
the Fund by the person against whom such action is brought, within ten days
after the summons or other first legal process shall have been served. The
failure so to notify the Fund of any such action shall not relieve the Fund from
any liability that the Fund 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 Fund's indemnity agreement
contained in this paragraph 4.1. The Fund 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
Fund and approved by Xxxxx. In the event the Fund elects to assume the defense
of any such suit and retain counsel of good standing approved by Xxxxx, 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 Fund does not elect
to assume the defense of any such suit, or in case Xxxxx does not approve of
counsel chosen by the Fund, the Fund will reimburse Xxxxx, its officers and
directors, or the controlling person or persons named as defendant or defendants
in such suit, for the fees and expenses or any counsel retained by Xxxxx or
them. The Fund's indemnification agreement contained in this paragraph 4.1 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 Xxxxx, its officers and directors, or any controlling person,
and shall survive the delivery of any of the Fund's shares. This agreement of
indemnity will inure exclusively to Xxxxx'x
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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 Fund agrees to notify Xxxxx promptly of the commencement of any
litigation or proceedings against the Fund or any of its officers or Trustees in
connection with the issuance and sale of any of the Shares.
4.2 Xxxxx agrees to indemnify, defend and hold the Fund, its several
officers and Trustees, and any person who controls the Fund 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 Fund, 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
Fund, 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 Xxxxx to the Fund and used in the answers to
any of the items of the registration statement or in the corresponding
statements made in the prospectus or statement of additional information, or
shall arise out of or be based upon any omission or alleged omission to state a
material fact in connection with such information furnished in writing by Xxxxx
to the Fund and required to be stated in such answers or necessary to make such
information not misleading. Xxxxx'x agreement to indemnify the Fund, its
officers and Trustees, and any such controlling person, as aforesaid, is
expressly conditioned upon Xxxxx'x being notified of any action brought against
the Fund, its officers or Trustees, or any such controlling person, such
notification to be given by letter or telegram addressed to Xxxxx at its
executive office in New York, New York and sent to Xxxxx by the person against
whom such action is brought, within ten days after the summons or other first
legal process shall have been served. Xxxxx shall have the right of first
control of the defense of such action, with counsel of its own choosing,
satisfactory to the Fund, if such action is based solely upon such alleged
misstatement or omission on Xxxxx'x part, and in any other event the Fund, 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 Xxxxx of any such action shall not relieve Xxxxx from any
liability that Xxxxx may have to the Fund, its officers or Trustees, or to such
controlling person by reason of any such untrue or alleged
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untrue statement or omission or alleged omission otherwise than on account of
Xxxxx'x indemnity agreement contained in this paragraph 4.2. Xxxxx agrees to
notify the Fund promptly of the commencement of any litigation or proceedings
against Xxxxx or any of its officers or directors in connection with the
issuance and sale of any of the Shares.
5. EFFECTIVENESS OF REGISTRATION
None of the Shares shall be offered by either Xxxxx or the Fund 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 Fund if and so long as the
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 as required by Section 5(b)(2) of
the 1933 Act is not on file with the SEC; provided, however, that nothing
contained in this paragraph 5 shall in any way restrict or have an application
to or bearing upon the Fund's obligation to redeem its shares from any
shareholder in accordance with the provisions of the Fund's prospectus,
statement of additional information or articles of incorporation.
6. NOTICE TO XXXXX
The Fund agrees to advise Xxxxx 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
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 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 amendment to any
registration statement, prospectus or statement of additional information
which may from time to time be filed with the SEC.
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7. TERM OF AGREEMENT
This Agreement shall continue until October 24, 1988 and thereafter shall
continue automatically for successive annual periods ending on October 24th of
each year, provided such continuance is specifically approved at least annually
by (a) the Fund's Board of Trustees or (b) a vote of a majority (as-defined in
the 0000 Xxx) of the Fund's outstanding voting securities, provided that in
either event the continuance is also approved by a majority of the Trustees of
the Fund 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 60 days' written notice, by the Fund's Board of Trustees or by vote
of the holders of a majority of the Fund's shares, or on 90 days' written
notice, by Xxxxx. This agreement will also terminate automatically in the event
of its assignment (as defined in the 1940 Act and the rules thereunder).
8. REPRESENTATION BY THE FUND
The Fund represents that a copy of its Agreement and Declaration of Trust,
dated March 20, 1986, together with all amendments thereto, is on file in the
office of the Secretary of the Commonwealth of Massachusetts.
9. LIMITATION OF LIABILITY
This Agreement has been executed on behalf of the Fund by the undersigned
officer of the Fund in his capacity as an officer of the Fund. The obligations
of this Agreement shall be binding upon the assets and property of the Fund only
and shall not be binding upon any Trustee, officer or shareholder of the Fund
individually.
10. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws (except the conflict of law rules) of the State of New York.
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If the foregoing is in accordance with your understanding, kindly indicate
your acceptance hereof by signing and returning the enclosed copy hereof.
Very truly yours,
THE XXXXX FUND
By: /s/Xxxxxx X. Xxxxxx
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Authorized Officer
Accepted and Agreed:
XXXX XXXXX & COMPANY, INCORPORATED
By: /s/Xxxxxx X. Xxxxxx
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Authorized Officer
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