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TEMPORARY INVESTMENT FUND, INC.
DISTRIBUTION AGREEMENT
Agreement dated January 31, 1994 between TEMPORARY INVESTMENT
FUND, INC. a Maryland corporation, (the "Company"), and PROVIDENT DISTRIBUTORS,
INC., a Delaware corporation (the "Distributor").
WHEREAS, the Company is an open-end, diversified management
investment company and is so registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Company desires to retain the Distributor as its
distributor to provide for the sale and distribution of each class and subclass
of shares ("shares") in each of the Company's investment portfolios
(individually, a "Fund," collectively, the "Funds") as listed on Appendix A (as
such Appendix may, from time to time, be supplemented (or amended)), and the
Distributor is willing to render such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth and intending to be legally bound, the parties hereto agree
as follows:
1. APPOINTMENT OF DISTRIBUTOR. The Company hereby appoints the
Distributor as distributor of each class and subclass of shares in each of the
Company's Funds on the terms and for the period set forth in this Agreement. The
Distributor hereby accepts such appointment and agrees to render the services
and duties set forth in Section 3 below. In the event that the Company
establishes additional classes or investment portfolios other than the Funds
listed on Appendix A with respect to which it desires to retain the Distributor
to act as distributor hereunder, the Company shall notify the Distributor,
whereupon such Appendix A shall be supplemented (or amended) and such portfolio
shall become a Fund hereunder and shall be subject to the provisions of this
Agreement to the same extent as the Funds (except to the extent that said
provisions may be modified in writing by the Company and Distributor at the
time).
2. DELIVERY OF DOCUMENTS. The company has furnished the
Distributor with copies, properly certified or authenticated, of each of the
following documents and will deliver to it all future amendments and
supplements, if any:
a. The Company's Articles of Incorporation, filed
with the Secretary of State of Maryland on February 8, 1973, as amended and
supplemented (the "Charter"),
b. The Company's By-Laws, as amended and supplemented
("By-Laws");
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c. Resolutions of the Company's Board of Directors
authorizing the execution and delivery of this Agreement;
d. The Company's most recent amendment to its
Registration Statement under the Securities Act of 1933, as amended (the "1933
Act"), and the 1940 Act on Form N-1A as filed with the Securities and Exchange
Commission (the "Commission") relating to its Funds (the Registration Statement,
as presently in effect and as amended or supplemented from time to time, is
herein called the "Registration Statement");
e. The Company's most recent Prospectuses and
Statements of Additional Information and all amendments and supplements thereto
(such Prospectuses and Statements of Additional Information and supplements
thereto, as presently in effect and as from time to time amended and
supplemented, are herein called the "Prospectuses").
3. SERVICES AND DUTIES. The Distributor enters into the
following covenants with respect to its services and duties:
a. The Distributor agrees to sell, as agent, from
time to time during the term of this Agreement, shares upon the terms and at the
current offering price as described in the Prospectuses. The Distributor will
act only in its own behalf as principal in making agreements with selected
dealers. No broker-dealer or other person which enters into a selling or
servicing agreement with the Distributor shall be authorized to act as agent for
the Company or its Funds in connection with the offering or sale of shares to
the public or otherwise. The Distributor shall use its best efforts to sell
shares of each class or subclass of each of the Funds but shall not be obligated
to sell any certain number of shares.
b. The Distributor shall prepare or review, provide
advice with respect to, and file with the federal and state agencies or other
organization as required by federal, state, or other applicable laws and
regulations, all sales literature (advertisements, brochures and shareholder
communications) for each of the Funds and any class or subclass thereof.
c. In performing all of its services and duties as
Distributor, the Distributor will act in conformity with the Charter, By-Laws,
Prospectuses and resolutions and other instructions of the Company's Board of
Directors and will comply with the requirements of the 1933 Act, the Securities
Exchange Act of 1934, the 1940 Act and all other applicable federal or state
law.
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d. The Distributor will bear the cost of (i) printing
and distributing any Prospectus (including any supplement thereto) to persons
who are not shareholders, and (ii) preparing, printing and distributing any
literature, advertisement or material which is primarily intended to result in
the sale of shares; provided, however, that the Distributor shall not be
obligated to bear the expenses incurred by the Company in connection with the
preparation and printing of any amendment to any Registration Statement or
Prospectus necessary for the continued effective registration of the shares
under the 1933 Act and state securities laws and the distribution of any such
document to existing shareholders of the Company's Funds.
e. The Company shall have the right to suspend the
sale of shares at any time in response to conditions in the securities markets
or otherwise, and to suspend the redemption of shares of any Fund at any time
permitted by the 1940 Act or the rules and regulations of the Commission
("Rules").
f. The Company reserves the right to reject any order
for shares but will not do so arbitrarily,or without reasonable cause.
4. LIMITATIONS OF LIABILITY. The Distributor shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Company in connection with the matters to which this Agreement relates,
except a loss resulting from willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties or from reckless disregard by it of
its obligations and duties under this Agreement.
5. PROPRIETARY AND CONFIDENTIAL INFORMATION. The Distributor
agrees on behalf of itself and its employees to treat confidentially and as
proprietary information of the Company all records and other information
relative to the Company and its Funds and prior, present or potential
shareholders, and not to use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Company, which approval
shall not be unreasonably withheld and may not be withheld where the Distributor
may be exposed to civil or criminal contempt proceedings for failure to comply,
when requested to divulge such information by duly constituted authorities, or
when so requested by the Company.
6. INDEMNIFICATION.
a. The Company represents and warrants to the
Distributor that the Registration Statement contains, and that the Prospectuses
at all times will contain, all statements required by the 1933 Act and the Rules
of the Commission, will in all material respects conform to the applicable
requirements of
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the 1933 Act and the Rules and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that no representation or warranty
in this Section 6 shall apply to statements or omissions made in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the Distributor or either of the Company's co-administrators expressly
for use in the Registration Statement or Prospectuses.
b. The Company on behalf of each Fund agrees that
each Fund will indemnify, defend and hold harmless the Distributor, its several
officers, and directors, and any person who controls the Distributor within the
meaning of Section 15 of the 1933 Act, from and against any losses, claims,
damages or liabilities, joint or several, to which the Distributor, its several
officers, and directors, and any person who controls the Distributor within the
meaning of Section 15 of the 1933 Act, may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectuses or in any application or other document
executed by or on behalf of the Company with respect to such Fund or are based
upon information furnished by or on behalf of the Company with respect to such
Fund filed in any state in order to qualify the shares under the securities or
blue sky laws thereof ("Blue Sky application") or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Distributor, its several officers, and directors, and any
person who controls the Distributor within the meaning of Section 15 of the 1933
Act, for any legal or other expenses reasonably incurred by the Distributor, its
several officers, and directors, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, in investigating, defending or
preparing to defend any such action, proceeding or claim; provided, however,
that the Company shall not be liable in any case to the extent that such loss,
claim, damage or liability arises out of, or is based upon, any untrue
statement, alleged untrue statement, or omission or alleged omission made in the
Registration Statement, the Prospectus or any Blue Sky application with respect
to such Fund in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Distributor or either of the
Company's co-administrators specifically for inclusion therein or arising out of
the failure of the Distributor to deliver a current Prospectus.
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c. The Company on behalf of each Fund shall not
indemnify any person pursuant to this Section 6 unless the court or other body
before which the proceeding was brought has rendered a final decision on the
merits that such person was not liable by reason of his or her willful
misfeasance, bad faith or gross negligence in the performance of his or her
duties, or his or her reckless disregard of any obligations and duties, under
this Agreement ("disabling conduct") or, in the absence of such a decision, a
reasonable determination (based upon a review of the facts) that such person was
not liable by reason of disabling conduct has been made by the vote of a
majority of a quorum of the directors of the Company who are neither "interested
parties" (as defined in the 0000 Xxx) nor parties to the proceeding, or by
independent legal counsel in a written opinion.
d. The Distributor will indemnify and hold harmless
the Company and each of its Funds and its several officers and directors, and
any person who controls the Company within the meaning of Section 15 of the 1933
Act, from and against any losses, claims, damages or liabilities, joint or
several, to which any of them may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus or any Blue Sky application, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company or any of
its several officers and directors by or on behalf of the Distributor or either
of the Company's co-administrators specifically for inclusion therein, and will
reimburse the Company and its several officers, directors and such controlling
persons for any legal or other expenses reasonably incurred by any of them in
investigating, defending or preparing to defend any such action, proceeding or
claim.
e. The obligations of each Fund under this Section 6
shall be the several (and not the joint or joint and several) obligation of each
Fund.
7. DURATION AND TERMINATION. This Agreement shall become
effective upon its execution as of the date first written above and, unless
sooner terminated as provided herein, shall continue until March 31, 1995.
Thereafter, if not terminated, this Agreement shall continue automatically for
successive terms of one year, provided that such continuance is specifically
approved at least annually (a) by a vote of a majority of those members of the
Company's Board of Directors who are not parties to this Agreement or
"interested persons" of any such party, cast
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in person at a meeting called for the purpose of voting on such approval, and
(b) by the Company's Board of Directors or by vote of a "majority of the
outstanding voting securities" of the Company; provided, however, that this
Agreement may be terminated by the Company at any time, without the payment of
any penalty, by vote of a majority of the entire Board of Directors or by a vote
of a "majority of the outstanding voting securities" of the Company on 60-days'
written notice to the Distributor, or by the Distributor at any time, without
the payment of any penalty, on 90-days' written notice to the Company. This
Agreement will automatically and immediately terminate in the event of its
"assignment." (As used in this Agreement, the terms "majority of the outstanding
voting securities," "interested person" and "assignment" shall have the same
meanings as such terms have in the 1940 Act.)
8. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the xxxxx against which an enforcement of the
change, waiver, discharge or termination is sought.
9. NOTICES. Notices of any kind to be given to the Company
hereunder by the Distributor shall be in writing and shall be duly given if
mailed or delivered to the Company at Bellevue Park Corporate Center, Suite 152,
103 Bellevue Parkway, Wilmington, Delaware 19809, Attention: Xx. Xxxxxx X.
Xxxxx, Treasurer, with a copy to Philadelphia National Bank Building, 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx Xxxxxxxxxxxx 00000-0000, Attention: W. Xxxxx
XxXxxxxx, III, Secretary, or at such other address or to such individual as
shall be so specified by the Company to the Distributor. Notices of any kind to
be given to the Distributor hereunder by the Company shall be in writing and
shall be duly given if mailed or delivered to Provident Distributors, Inc., 000
Xxxxxx-Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxx or at such other address or to such other individual as shall be so
specified by the Distributor to the Company.
10. MISCELLANEOUS. The captions in 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. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
11. COUNTERPARTS. This Agreement may be executed in
counterparts, all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
TEMPORARY INVESTMENT FUND, INC.
By /s/ G. Willing Pepper
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President
PROVIDENT DISTRIBUTORS, INC.
By /s/ Xxxxx Xxxxx
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Title
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APPENDIX A
to the
DISTRIBUTION AGREEMENT
between
Temporary Investment Fund, Inc.
and
Provident Distributors, Inc.
TempFund (Class B shares and Class B - Special Series 1 shares (also known as
the "Dollar shares"))
TempCash (Class C (also known as the "Dollar shares") and Class C - Special
Series 1 shares)
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