Exhibit 99.10(f)
FORM OF
DISTRIBUTION AGREEMENT
[Date]
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, [Fund Name] (the "Fund") a [corporation/business
trust] organized under the laws of [the State of Maryland/the Commonwealth of
Massachusetts] has agreed that Xxxxxxx Xxxxx Barney Inc. ("Xxxxxxx Xxxxx
Xxxxxx") shall be, for the period of this Agreement, the distributor of shares
of the Fund (the "Shares").
1. Services as Distributor
1.1 Xxxxxxx Xxxxx Barney will act as agent for the
distribution of Shares covered by the registration statement, including the
prospectus and statement of additional information, then in effect 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 Xxxxxxx Xxxxx Xxxxxx agrees to use its best efforts to
solicit orders for the sale of Shares and will undertake such advertising and
promotion as it believes is reasonable in connection with such solicitation.
1.3 All activities by Xxxxxxx Xxxxx Barney 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 Xxxxxxx Xxxxx Xxxxxx will provide one or more persons
during normal business hours to respond to telephone questions concerning the
Fund.
1.5 Xxxxxxx Xxxxx Barney will transmit any orders received by
it for purchase or redemption of Shares to the Fund's transfer and dividend
disbursing agent.
1.6 Whenever in their judgment such action is warranted for
any reason, including, without limitation, market, economic or political
conditions, the Fund's 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.
1.7 Xxxxxxx Xxxxx Xxxxxx will act only on its own behalf as
principal should it choose to enter into selling agreements with selected
dealers or others.
1.8 The Fund will pay to Xxxxxxx Xxxxx Barney an annual fee in
connection with the offering and sale of the Shares under this Agreement. The
annual fee paid to Xxxxxxx Xxxxx Xxxxxx will be calculated daily and paid
monthly by the Fund at an annual rate set forth in the Services and Distribution
Plan (the "Plan") based on the average daily net assets of the Fund; provided
that payment shall be made in any month only to the extent that such payment
shall not exceed the sales charge limitations established by the National
Association of Securities Dealers, Inc.
The annual fee paid to Xxxxxxx Xxxxx Barney under this Section
1.8 may be used by Xxxxxxx Xxxxx Xxxxxx to cover any expenses primarily
intended to result in the sale of Shares, including , but not limited
to, the following:
(a) cost of payments made to Xxxxxxx Xxxxx Barney Financial
Consultants and other employees of Xxxxxxx Xxxxx Xxxxxx or other
broker-dealers that engage in the distribution of the Shares;
(b) payments made to, and expenses of, persons who provide
support services in connection with the distribution of the Shares,
including, but not limited to, office space and equipment, telephone
facilities, answering routine inquiries regarding the Fund, processing
shareholder transactions and providing any other shareholder services;
(c) 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;
(d) costs of printing and distributing prospectuses and
reports of the Fund to prospective shareholders of the Fund;
(e) costs involved in preparing, printing and distributing
sales literature pertaining to the Fund; and
(f) costs involved in obtaining whatever information, analyses
and reports with respect
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to marketing and promotional activities that the Fund may, from time to
time, deem advisable;
except that distribution expenses shall not include any expenditures in
connection with services which Xxxxxxx Xxxxx Xxxxxx, any of its affiliates, or
any other person have agreed to bear without reimbursement.
1.9 Xxxxxxx Xxxxx Barney shall prepare and deliver reports to the
Treasurer of the Fund and to the sub-investment advisor and/or administrator of
the Fund on a regular, at least quarterly, basis, showing the distribution
expenses incurred pursuant to this Agreement and the Plan and the purposes
therefor, as well as any supplemental reports as the Trustees, from time to
time, may reasonably request.
2. Duties of the Fund
2.1 The Fund 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 Shares
for sale in those states that Xxxxxxx Xxxxx Xxxxxx 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 its Shares as Xxxxxxx Xxxxx Barney 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 the Fund's officers, shall be true and correct. The Fund shall also
furnish Salomon Xxxxx Xxxxxx upon request with (a) annual audits of the Fund's
books and accounts made by independent certified public accountants regularly
retained by the Fund; (b) semi-annual unaudited financial statements pertaining
to the Fund; (c) quarterly earnings statements prepared by the Fund; (d) a
monthly itemized list of the securities in the Fund's 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 Xxxxxxx Xxxxx Barney may reasonably request.
3. Representations and Warranties
The Fund represents to Xxxxxxx Xxxxx Xxxxxx 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 carefully 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
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statement, prospectus and statement of additional information filed by the Fund
with the SEC and any amendments and supplements thereto which at any time shall
have been filed with the SEC. The Fund represents and warrants to Xxxxxxx Xxxxx
Barney 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 conformance 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
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
Fund 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 the Fund's 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 Xxxxxxx Xxxxx Xxxxxx to do so, Xxxxxxx Xxxxx
Barney 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 Xxxxxxx Xxxxx Xxxxxx
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 Xxxxxxx Xxxxx Xxxxxx and dealers to
use any prospectus or statement of additional information furnished by the Fund
from time to time, in connection with the sale of the Shares. The Fund agrees to
indemnify, defend and hold Xxxxxxx Xxxxx Barney, its several officers and
directors, and any person who controls Xxxxxxx Xxxxx Xxxxxx 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 Xxxxxxx Xxxxx Barney,
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its officers and directors, or any such controlling person, may incur under the
1933 Act, the 1940 Act or under 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 thereof not misleading; provided,
however, that the Fund's agreement to indemnify Xxxxxxx Xxxxx Xxxxxx, its
officers or directors, and any such controlling person shall not be deemed to
cover any claims, demands, liabilities or expenses arising out of any statements
or representations made by Xxxxxxx Xxxxx Barney or its representatives or agents
other than such statements and representations as are contained in any
prospectus or statement of additional information and in such financial and
other statements as are furnished to Xxxxxxx Xxxxx Xxxxxx pursuant to paragraph
2.2 of this Agreement; and further provided that the Fund's agreement to
indemnify Xxxxxxx Xxxxx Barney and the Fund's representations and warranties
herein before set forth in paragraph 3 of this Agreement shall not be deemed to
cover any liability to the Fund or its shareholders to which Xxxxxxx Xxxxx
Xxxxxx would otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of its duties, or by reason of Xxxxxxx Xxxxx
Xxxxxx'x reckless disregard of its obligations and duties under this Agreement.
The Fund's agreement to indemnify Xxxxxxx Xxxxx Barney, 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 Xxxxxxx
Xxxxx Xxxxxx, 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 Xxxxxxx Xxxxx Barney. In the event the Fund elects to assume the defense of
any such suit and retains counsel of good standing approved by Xxxxxxx Xxxxx
Xxxxxx, the defendant or defendants in such suit shall bear the fees and
expenses of any additional counsel retained
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by any of them; but if the Fund does not elect to assume the defense of any such
suit, or if Xxxxxxx Xxxxx Barney does not approve of counsel chosen by the Fund,
the Fund will reimburse Xxxxxxx Xxxxx Xxxxxx, 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 Xxxxxxx Xxxxx Barney 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 Xxxxxxx Xxxxx Xxxxxx, 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 Xxxxxxx Xxxxx Barney's 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 Xxxxxxx Xxxxx Xxxxxx promptly of the commencement of any
litigation or proceedings against the Fund or any of its officers or Directors
in connection with the issuance and sale of any of the Fund's Shares.
4.2 Xxxxxxx Xxxxx Barney agrees to indemnify, defend and hold
the Fund, its several officers and Directors, 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
Directors or any such controlling person may incur under the 1933 Act, the 1940
Act or under common law or otherwise, but only to the extent that such liability
or expense incurred by the Fund, its officers or Directors, or such controlling
person resulting from such claims or demands shall arise out of or be based upon
any untrue, or alleged untrue, statement of a material fact contained in
information furnished in writing by Xxxxxxx Xxxxx Xxxxxx 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 Xxxxxxx Xxxxx Barney to the Fund and required to be stated in such
answers or necessary to make such information not misleading. Xxxxxxx Xxxxx
Xxxxxx'x agreement to indemnify the Fund, its officers or Directors, and any
such controlling person, as aforesaid, is expressly conditioned upon Xxxxxxx
Xxxxx Barney being notified of any action brought against the Fund, its officers
or Directors, or any such controlling person, such notification to be given by
letter or telegram addressed to Xxxxxxx Xxxxx Xxxxxx at its principal office in
New York, New York and sent to Xxxxxxx Xxxxx
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Barney by the person against whom such action is brought, within ten days after
the summons or other first legal process shall have been served. Xxxxxxx Xxxxx
Xxxxxx shall have the right to control 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 Xxxxxxx Xxxxx Barney's part, and
in any other event the Fund, its officers or Directors 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 Xxxxxxx Xxxxx Xxxxxx of
any such action shall not relieve Xxxxxxx Xxxxx Barney from any liability that
Xxxxxxx Xxxxx Xxxxxx may have to the Fund, its officers or Directors, or to such
controlling person by reason of any such untrue, or alleged untrue, statement or
omission, or alleged omission, otherwise than on account of Xxxxxxx Xxxxx
Barney's indemnity agreement contained in this paragraph 4.2. Xxxxxxx Xxxxx
Xxxxxx agrees to notify the Fund promptly of the commencement of any litigation
or proceedings against Xxxxxxx Xxxxx Barney or any of its officers or directors
in connection with the issuance and sale of any of the Fund's Shares.
4.3 In case any action shall be brought against any
indemnified party under paragraph 4.1 or 4.2, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish to do so, to
assume the defense thereof with counsel satisfactory to such indemnified party.
If the indemnifying party opts to assume the defense of such action, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than (a) reasonable costs of investigation or the
furnishing of documents or witnesses and (b) all reasonable fees and expenses of
separate counsel to such indemnified party if (i) the indemnifying party and the
indemnified party shall have agreed to the retention of such counsel or (ii) the
indemnified party shall have concluded reasonably that representation of the
indemnifying party and the indemnified party by the same counsel would be
inappropriate due to actual or potential differing interests between them in the
conduct of the defense of such action.
5. Effectiveness of Registration
None of the Shares shall be offered by either Xxxxxxx Xxxxx Xxxxxx or
the Fund under any of the provisions of this Agreement and no orders for the
purchase or sale of the Shares under this Agreement 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
provision of the 1933 Act
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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, 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 repurchase its Shares from any shareholder in
accordance with the provisions of the Fund's prospectus, statement of additional
information or Corrected Restated Articles of Incorporation dated September 21,
1992, as amended from time to time.
6. Notice to Xxxxxxx Xxxxx Barney
The Fund agrees to advise Xxxxxxx Xxxxx Xxxxxx 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.
7. Term of the Agreement
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This Agreement shall become effective as of the [date], and continue
for successive annual periods thereafter so long as such continuance is
specifically approved at least annually by (a) the Fund's Board or (b) by a vote
of a majority (as defined in the 0000 Xxx) of the outstanding Shares, provided
that in either event the continuance is also approved by a majority of the Board
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' notice by the Fund's Board, by vote of the holders of a majority of the
Shares, or on 90 days' notice by Xxxxxxx Xxxxx Barney. This Agreement will also
terminate automatically in the event of its assignment (as defined in the 1940
Act).
8. Miscellaneous
The Fund recognizes that directors, officers and employees of Xxxxxxx
Xxxxx Xxxxxx may from time to time serve as directors, trustees, officers and
employees of corporations and business trust (including other investment
companies) and that such other corporations and trusts may include the name
"Xxxxxxx Xxxxx Xxxxxx Xxxxxxxx" as part of their name, and that Xxxxxxx Xxxxx
Barney or its affiliates may enter into distribution or other agreements with
such other corporations and trusts. If Xxxxxxx Xxxxx Xxxxxx ceases to act as the
distributor of the Shares, the Fund agrees that, at Xxxxxxx Xxxxx Barney's
request, the Fund's license to use the words "Xxxxxxx Xxxxx Xxxxxx" will
terminate and that the Fund will take all necessary action to change the name of
the Fund to a name not including the words "Xxxxxxx Xxxxx Barney."
If the foregoing is in accordance with your understanding, kindly
indicate your acceptance of this Agreement by signing and returning to us the
enclosed copy of this Agreement.
Very truly yours,
[FUND NAME]
By: __________________________
Title
Accepted:
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XXXXXXX XXXXX XXXXXX INC.
By: __________________________
Authorized Officer
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