Exhibit 3(1)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 1st day of December, 1999 (the
"Agreement") by and between Northern Institutional Funds (the "Fund"), a
Massachusetts business trust, and Northern Funds Distributors, LLC, a Wisconsin
limited liability company.
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"'),
and is currently offering shares of beneficial interest (the "Shares"),
representing interests in investment portfolios of the Fund identified on
Schedule A hereto (the "Portfolios") which are registered with the Securities
and Exchange Commission (the "SEC") pursuant to the Fund's Registration
Statement on Form N-1A (the "Registration Statement"); and
WHEREAS, the Fund desires to retain the Distributor as distributor for
the Portfolios to provide for the sale and distribution of the Shares of the
Portfolios identified on Schedule A and for such additional classes or series as
the Fund may issue, and the Distributor is prepared to provide such services
commencing on the date first written above.
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein and intending to be legally bound hereby the parties hereto
agree as follows:
1. Service as Distributor
1.1 The Fund hereby appoints the Distributor as exclusive distributor of
the Shares covered by the Registration Statement then in effect under the
Securities Act of 1933, as amended (the "1933 Act"), on the terms and for the
periods set forth in this Agreement. The Distributor hereby accepts such
appointment and agrees to render the services and perform the duties set forth
in this Agreement without compensation. The Distributor will have no liability
for payment for the purchase of Shares by unaffiliated investors sold pursuant
to this Agreement or with respect to redemptions or repurchases of Shares.
1.2 The Distributor agrees to sell Shares of each of the Portfolios, as
agent, from time to time during the term of this Agreement at the Shares' then
current net asset value (with any purchase price adjustments, as applicable).
The net asset value of the Shares shall be determined in the manner provided in
the then current prospectus and statement of additional information relating to
the Shares (collectively, the "Prospectus" and "Statement of Additional
Information"), and when determined shall be applicable to all transactions as
provided in the Prospectus. The net asset value of the Shares shall be
calculated by the Fund or by another entity on behalf of the Fund. The
Distributor shall have no duty to inquire into, or liability for, the accuracy
of the net asset value per Share as calculated.
1.3 The Distributor agrees to use appropriate efforts to solicit orders for
the sale of the Shares. The Distributor shall, at its own expense, finance
appropriate activities which are primarily intended to result in the sale of
Shares, including, but not limited to, the distribution services set forth in
Schedule B to this Agreement. It is contemplated that the Distributor will enter
into selling agreements with securities dealers, financial institutions and
other industry professionals, such as investment advisers, accountants and
estate planning firms to the extent permitted by SEC and NASD regulations or
other governing law, with respect to the offering of Shares to the public. The
Distributor will require each dealer with whom the Distributor has a selling
agreement to conform to the applicable provisions of the Registration Statement,
with respect to the public offering price of the Shares, and the Distributor
shall not cause the Fund to withhold the placing of purchase orders so as to
make a profit thereby.
1.4 The Fund understands that the Distributor is now, and may in the future
be, the distributor of the shares of several investment companies or series
(collectively, the "Investment Entites"), including Investment Entities having
investment objectives similar to those of the Portfolios. The Fund further
understands that investors and potential investors in the Portfolios may invest
in shares of such other Investment Entities. The Fund agrees that the
Distributor's duties to such Investment Entities shall not be deemed in conflict
with its duties to the Fund under this Section 1.4.
1.5 The Distributor shall not utilize any materials in connection with the
sale or offering of Shares except the Fund's then current Prospectus and
Statement of Additional Information and such other materials as the Fund shall
provide or approve. The Fund agrees to furnish the Distributor with sufficient
copies of any and all communications with the public or other materials which
the Fund intends to use in connection any sales of Shares, in adequate time for
the Distributor to file and clear such materials with the proper authorities
before they are put in use. The Distributor and the Fund may agree that any such
material does not need to be filed subsequent to distribution. In addition, the
Fund agrees not to use any such materials until so filed and cleared for use, if
required, by appropriate authorities as well as by the Distributor.
1.6 All activities by the Distributor and its agents and employees, 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 SEC or the National Association of Securities Dealers.
1.7 Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Fund.
1.8 ever in its judgment such action is warranted, the Fund may decline to
accept any orders for, or make any sales of, the Shares until such time as the
Fund deems it advisable to accept such orders and to make such sales, and the
Fund shall notify the Distributor promptly of any such determination.
1.9 Fund agrees to execute any and all documents and to furnish any and all
information and otherwise to take all actions that may be reasonably necessary
in connection with the qualification of the Shares for sale in such states where
Shares are offered for sale. The Fund shall notify the Distributor in writing of
the states in which the Shares are to be sold and shall notify the Distributor
in writing of any changes to the information contained in the previous
notification.
1.10 Fund shall furnish from time to time, for use in connection with the
sale of the Shares, such information with respect to the Fund and the Shares as
the Distributor may reasonably request; and the Fund warrants that the
statements contained in any such information shall fairly show or represent what
they purport to show or represent. The Fund shall also furnish the Distributor
upon request with: (a) audited annual statements and unaudited semi-annual
statements of a Portfolio's books and accounts prepared by the Fund, (b)
quarterly earnings statements of a Portfolio prepared by the Fund, (c) a monthly
itemized list of the securities in a Portfolio, (d) monthly balance sheets as
soon as practicable after the end of each month, and (c) from time to time such
additional information regarding the financial condition of a Portfolio as the
Distributor may reasonably request.
1.11 Fund represents to the Distributor that all Registration Statements
and Prospectuses filed by the Fund with the SEC under the 1933 Act with respect
to the Shares have been prepared in conformity with the requirements of the 1933
Act and the rules and regulations of the SEC thereunder. As used in this
Agreement, the term "Registration Statement" shall mean any Registration
Statement and any Prospectus and any Statement of Additional Information
relating to the Fund filed with the SEC and any amendments or supplements
thereto at any time filed with the SEC. Except as to information included in the
Registration Statement in reliance upon information provided to the Fund by the
Distributor or any affiliate of the Distributor expressly for use in the
Registration Statement, the Fund represents and warrants to the Distributor that
any Registration Statement, when such Registration Statement becomes effective,
will contain statements required to be stated therein in conformity with the
1933 Act and the rules and regulations of the SEC; that all statements of fact
contained in any such Registration Statement will be true and correct when such
Registration Statement becomes effective; and that no Registration Statement
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 Distributor 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 as, in the light
of future developments, may, in the opinion of the Distributor's counsel, be
necessary or advisable. The Distributor shall promptly notify the Fund of any
advice given to it by its counsel regarding the necessity or advisability of
amending or supplementing such Registration Statement. 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 the Distributor
to do so, the Distributor may, at its option, terminate this Agreement. The Fund
shall not file any amendment to any Registration Statement or supplement to any
Prospectus without giving the Distributor 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, of whatever character, as the
Fund may deem advisable, such right being in all respects absolute and
unconditional. The Fund authorizes the Distributor to use any Prospectus or
Statement of Additional Information in the form furnished by the Fund from time
to time in connection with the sale of the Shares.
1.12 Shares shall be offered by either the Distributor or the Fund under
any of the provisions of this Agreement and no orders for the purchase or sale
of Shares hereunder shall be accepted by the Fund if and so long as
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 Section 1.12 shall in any way restrict or have any application
to or bearing upon the Fund's obligation to redeem Shares tendered for
redemption by any shareholder in accordance with the provisions of the Fund's
Registration Statement or Agreement and Declaration of Trust.
1.13 The Fund agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
(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 by service of process on the Fund
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 amendments to
any Registration Statement, Prospectus or Statement of
Additional Information which may from time to time be filed
with the SEC.
For purposes of this Section 1.13, informal requests by or acts of the
staff of the SEC shall not be deemed actions of or requests by the SEC.
1.14 The Fund represents and warrants to the Distributor that the Fund is
an investment company registered under the 1940 Act and the Shares sold by each
Portfolio are, and will be, registered under the 0000 Xxx.
1.15 The Distributor agrees to maintain, and preserve for the periods
prescribed by Rule 31a-2 under the 1940 Act, such records as are required to be
maintained by Rule 31a-1(d) under the 1940 Act.
2. Compensation and Expenses
The Fund will bear the following expenses:
(a) preparation, printing and distribution of sufficient copies
of the Prospectus and Statement of Additional Information to
existing shareholders;
(b) preparation, printing and distribution of reports and other
communications (not prepared by the Distributor) to existing
shareholders;
(c) registration of the Shares under the federal and state
securities laws;
(d) maintaining facilities for the issue and transfer of Shares;
(e) supplying information, prices and other data to be furnished
by the Fund under this Agreement;
(f) any original issue taxes or other transfer taxes applicable
to the sale or delivery of the Shares or certificates
therefor; and
(g) any payments made in accordance with any plan hereafter
adopted pursuant to Rule 12b-1 under the 1940 Act.
3. Indemnification
3.1 The Fund agrees to indemnify and hold the Distributor, its officers,
directors, and employees, and any person who controls the Distributor within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all claims, costs, expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or kind which the
Distributor, its officers, directors, employees or any such controlling person
may incur under the 1933 Act, under any other statute, or under common law or
otherwise, arising out of or based upon (i) any untrue statement, or alleged
untrue statement, of a material fact contained in the Fund's Registration
Statement, Prospectus or Statement of Additional Information (including
amendments and supplements thereto), or (ii) any omission, or alleged omission,
to state a material fact required to be stated in the Fund's Registration
Statement, Prospectus or Statement of Additional Information (including
amendments or supplements thereto) or necessary to make the statements therein
not misleading; provided, however, that insofar as any losses, claims, damages,
costs, charges, payments, liabilities or expenses arise out of or are based upon
any such untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information furnished to the Fund by
the Distributor or its affiliated persons for use in the Fund's Registration
Statement, Prospectus or Statement of Additional Information (including
amendments or supplements thereto), such indemnification is not applicable; and
further provided that the Fund's agreement to indemnify the Distributor and the
Fund's representations and warranties hereinbefore set forth in Section 1.11
shall not be deemed to cover any liability to the Fund, its officers, trustees
or shareholders to which the Distributor would otherwise be subject by reason
of: (a) the Distributor's willful misfeasance, bad faith or negligence in the
performance of its duties and obligations, or by reason of the Distributor's
reckless disregard of its duties and obligations under this Agreement; or (b)
the Distributor's breach of Section 12 of this Agreement. The Fund agrees and
acknowledges that the Distributor has not prior to the date hereof assumed, and
will not assume, any obligations or liabilities arising out of the conduct of
the Fund or its distributor prior to the date hereof of those duties which the
Distributor has agreed to perform pursuant to this Agreement. The Fund further
agrees to indemnify the Distributor against any losses, claims, damages or
liabilities to which the Distributor may become subject in connection with the
conduct by the Fund or its distributor of such duties prior to the date hereof;
provided that the Fund's agreement to indemnify the Distributor shall not be
deemed to cover any liability to the Fund, its officers, trustees or
shareholders to which the Distributor would otherwise be subject by reason of
willful misfeasance, bad faith or negligence in the performance of its duties
and obligations, or by reason of the Distributor's reckless disregard of its
duties and obligations under this Agreement.
3.2 The Distributor agrees to indemnify and hold harmless the Fund, its
several officers and trustees and each person, if any, who controls a Portfolio
within the meaning of Section 15 of the 1933 Act, from and against any and all
claims, costs, expenses (including reasonable attorneys' fees), losses, damages,
charges, payments and liabilities of any sort or kind which the Fund, its
officers or trustees, or any such controlling person, may incur under the 1933
Act, under any other statute, or under common law or otherwise, but only to the
extent that such liability or expense incurred by the Fund, its officers or
trustees, or any controlling person, resulting from such claims or demands,
shall arise out of or be based upon any untrue statement, or alleged untrue
statement, of a material fact contained in the Fund's Registration Statement,
Prospectus or Statement of Additional Information (including amendments and
supplements thereto), or any omission, or alleged omission, to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, if such statement or omission was made in reliance upon
information furnished or confirmed to the Fund by the Distributor or its
affiliated persons (as defined in the 1940 Act). The Distributor also agrees to
indemnify and hold harmless the Fund, its officers or trustees, or any
controlling person in connection with any claim or in connection with any
action, suit or proceeding which arises out of or is alleged to arise out of:
(a) the Distributor's willful misfeasance, bad faith or negligence in the
performance of its duties and obligations or by reason of the Distributor's
reckless disregard of its duties and obligations under this Agreement; or (b)
the Distributor's breach of Section 12 of this Agreement. The foregoing rights
of indemnification shall be in addition to any other rights to which the Fund,
its officers or trustees, or any controlling person shall be entitled to as a
matter of law.
3.3 In any case in which one party hereto (the "Indemnifying Party") may be
asked to indemnify or hold the other party hereto (the "Indemnified Party")
harmless, the Indemnified Party will notify the Indemnifying Party in writing
promptly after identifying any situation which it believes presents or appears
likely to present a claim for indemnification (an "Indemnification Claim")
against the Indemnifying Party, although the failure to do so shall not relieve
the Indemnifying Party from any liability which it may otherwise have to the
Indemnified Party, and the Indemnified Party shall keep the Indemnifying Party
advised with respect to all developments concerning such situation. The
Indemnifying Party shall be entitled to participate at its own expense in the
defense, or if it so elects, to assume the defense of, any Indemnification Claim
which may be the subject of this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be conducted by counsel of good
standing chosen by the Indemnifying Party and approved by the Indemnified Party,
which approval shall not be unreasonably withheld. In the event the Indemnifying
Party elects to assume the defense of any such Indemnification Claim and retain
such counsel, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by the Indemnified Party. In the event that the
Indemnifying Party does not elect to assume the defense of any such
Indemnification Claim, or in case the Indemnified Party reasonably does not
approve of counsel chosen by the Indemnifying Party, or in case there is a
conflict of interest between the Indemnifying Party or the Indemnified Party,
the Indemnifying Party will reimburse the Indemnified Party for the fees and
expenses of any counsel retained by the Indemnified Party. The Fund agrees
promptly to notify the Distributor of the commencement of any litigation or
proceedings against the Fund or any of its officers or trustees in connection
with the issue and sale of any of the Shares, and the Distributor agrees
promptly to notify the Fund of the commencement of any litigation or proceedings
against the Distributor or any of its officers, directors, employees or
controlling persons in connection with the issuance and sale of any of the
Shares. The Indemnified Party will not confess any Indemnification Claim or make
any compromise in any case in which the Indemnifying Party will be asked to
provide indemnification, except with the Indemnifying Party's prior written
consent.
3.4 The obligations of the parties hereto under this Section 3 shall
survive the termination of this Agreement.
3.5 The Fund's indemnification agreement contained in this Section 3 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 the Distributor, its officers, directors and employees, or any
controlling person, and shall survive the delivery of any Shares. This agreement
of indemnity will inure exclusively to the Distributor's benefit, to the benefit
of its several officers, directors and employees, and their respective estates
and to the benefit of its controlling persons and their successors.
3.6 The Distributor's indemnification agreement contained in this Section 3
and the Distributor'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 the Fund or its officers and trustees, or any
controlling person, and shall survive the delivery of any Shares.
4. Standard of Care; Limitation of Liability
4.1 The Distributor shall not be liable to the Fund for any error of
judgment or mistake of law or for any loss suffered by the Fund in connection
with the performance of its obligations and duties under this Agreement, except
a loss resulting from: (a) the Distributor's willful misfeasance, bad faith or
negligence in the performance of such obligations and duties, or by reason of
its reckless disregard thereof, or (b) the Distributor's breach of Section 12 of
this Agreement.
4.2 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
4.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO THE OTHER PARTY FOR
CONSEQUENTIAL DAMAGES, PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS SECTION
4.3 SHALL BE CONSTRUED SO AS TO LIMIT THE RIGHTS OF ANY SHAREHOLDER OF THE FUND,
WHETHER SUING ON HIS, HER OR ITS OWN BEHALF OR DERIVATIVELY THROUGH THE FUND, TO
CONSEQUENTIAL DAMAGES.
5. Term
5.1 This Agreement shall become effective on the date first written above
and, unless sooner terminated as provided herein, shall continue until April 30,
2000 and thereafter shall continue automatically for successive one-year terms,
provided such continuance is specifically approved at least annually by (i) the
Fund's Board of Trustees or (ii) by a vote of a majority (as defined in the 1940
Act and Rule l8f-2 thereunder) of the outstanding voting securities of the Fund,
provided that in either event the continuance is also approved by a majority of
the trustees who are not parties to this Agreement and 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 at least sixty days' written
notice, by the Fund's Board of Trustees, by vote of a majority (as defined in
the 1940 Act and Rule 18f-2 thereunder) of the outstanding voting securities of
the Fund, or by the Distributor. This Agreement will also terminate
automatically in the event of its assignment (as defined in the 1940 Act and the
rules thereunder).
5.2 In the event a termination notice is given by the Fund and provided
that the Distributor is not in default under this Agreement at the time of such
termination notice, all expenses associated with movement of records and
materials and conversion thereof to a successor distributor will be borne by the
Fund.
6. Modifications and Waivers
No change, termination, modification, or waiver of any term or
condition of the Agreement shall be valid unless in writing signed by
each party. No such writing shall be effective as against the
Distributor unless said writing is executed by a Senior Vice President,
Executive Vice President or President of the Distributor. No such
writing shall be effective as against the Fund unless said writing is
executed by the Chairman of the Fund's Board of Trustees. A party's
waiver of a breach of any term or condition in the Agreement shall not
be deemed a waiver of any subsequent breach of the same or another term
or condition.
7. No Presumption Against Drafter
The Distributor and the Fund have jointly participated in the
negotiation and drafting of this Agreement. The Agreement shall be
construed as if drafted jointly by the Fund and the Distributor, and no
presumptions arise favoring any party by virtue of the authorship of
any provision of this Agreement.
8. Publicity
Neither the Distributor nor the Fund shall release or publish news
releases, public announcements, advertising or other publicity relating
to this Agreement or to the transactions contemplated by it without
prior review and written approval of the other party; provided,
however, that either party may make such disclosures as are required by
legal, accounting or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance with the other
party.
9. Severability
The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or
invalidity shall not affect the validity of the remainder of this
Agreement. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the
parties. Without limiting the generality of this paragraph, if a court
determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement shall
remain fully effective.
10. Force Majeure
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default
or delay is caused, directly or indirectly, by circumstances beyond
such party's reasonable control. In any such event, the non-performing
party shall be excused from any further performance and observance of
the obligations so affected only for so long as such circumstances
prevail and such party continues to use commercially reasonable efforts
to recommence performance or observance as soon as practicable.
11. Miscellaneous
11.1 Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or the Distributor shall be
sufficiently given if addressed to the party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Fund:
Xxxxx X. Xxxxxx, Esq.
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx - X-0
Xxxxxxx, XX 00000
with a copy to:
W. Xxxxx XxXxxxxx, III Esq.
Philadelphia National Bank Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
To the Distributor:
Xxxxxx Xxxxxxxxx
c/o Provident Distributors, Inc.
Four Falls Corporate Center
0xx Xxxxx
Xxxx Xxxxxxxxxxxx, XX 00000-0000
11.2 The laws of the Commonwealth of Massachusetts, excluding the
applicable provisions of the 1940 Act, shall govern the interpretation,
validity, and enforcement of this Agreement. To the extent the provisions of
Massachusetts law or the provisions hereof conflict with the 1940 Act, the 1940
Act shall control. All actions arising from or related to this Agreement shall
be brought in the state and federal courts sitting in the City of Boston, and
the Distributor and the Fund hereby submit themselves to the exclusive
jurisdiction of those courts.
11.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and which collectively shall be deemed
to constitute only one instrument.
11.4 The captions of 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.
11.5 This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and is not intended to confer
upon any other person any rights or remedies hereunder.
12. Confidential
12.1 The parties agree that the Proprietary Information (defined below) is
confidential information of the parties and their respective licensers. The Fund
and the Distributor shall exercise at least the same degree of care, but not
less than reasonable care, to safeguard the confidentiality of the Proprietary
Information of the other as it would protect its own Proprietary Information.
The Fund and the Distributor may use the Proprietary Information only to
exercise their respective rights or perform their respective duties under this
Agreement. Except as otherwise required by law, the Fund and the Distributor
shall not duplicate, sell or disclose to others the Proprietary Information of
the other, in whole or in part, without the prior written permission of the
other party. The Fund and the Distributor may, however, disclose Proprietary
Information to their respective employees who have a need to know the
Proprietary Information to perform work for the other, provided that the Fund
and the Distributor shall use reasonable efforts to ensure that the Proprietary
Information is not duplicated or disclosed by their respective employees in
breach of this Agreement. The Fund and the Distributor may also disclose the
Proprietary Information to independent contractors, auditors and professional
advisors, provided they first agree in writing to be bound by confidentiality
obligations substantially similar to this Section 12. Notwithstanding the
previous sentence, in no event shall either the Fund or the Distributor disclose
the Proprietary Information to any competitor of the other without specific,
prior written consent.
12.2 Proprietary Information means:
(a) any data or information that is completely sensitive material, and
not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance,
operations, customer relationships, customer profiles, sales
estimates, business plans, and internal performance results relating
to the past, present or future business activities of the Fund or the
Distributor, their respective subsidiaries and affiliated companies
and the customers, clients and suppliers of any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Fund or the
Distributor a competitive advantage over its competitors;
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code,
flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable;
(d) all documents, inventions, substances, engineering and laboratory
notebooks, drawings, diagrams, specifications, bills of material,
equipment, prototypes and models, and any other tangible manifestation
of the foregoing of either party which now exist or come into the
control or possession of the other; and
(e) with respect to the Fund, all records and other information
relative to the Fund and its prior, present or potential shareholders
(and clients of such shareholders).
12.3 Notwithstanding the foregoing, it is hereby understood and agreed by
the parties hereto that any marketing strategies, financing plans, customer
profiles, sales estimates, business plans or similar items prepared or developed
by the Distributor for the benefit of the Fund shall be considered the
Proprietary Information of the Fund and nothing in this Agreement shall be
construed to prevent or prohibit the Fund from disclosing such Proprietary
Information to a successor distributor.
12.4 The obligations of the parties hereto under this Section 12 shall
survive the termination of this Agreement.
13. Trustee and Shareholder Liability
This Agreement is executed by or on behalf of the Fund with respect to
each of the Portfolios and the obligations hereunder are not binding
upon any of the trustees, officers or shareholders of the Fund
individually but are binding only upon the Portfolio to which such
obligations pertain and the assets and property of such Portfolio. All
obligations of the Fund under this Agreement shall apply only on a
Portfolio-by-Portfolio basis, and the assets of one Portfolio shall not
be liable for the obligations of another Portfolio. The Fund's
Declaration of Trust is on file with the Secretary of the Commonwealth
of Massachusetts.
14. Entire Agreement
This Agreement, including all Schedules hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous proposals, agreements,
contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
NORTHERN INSTITUTIONAL FUNDS
By: /s/Jylanne Xxxxx
Name: Jylanne Xxxxx
Title: President
NORTHERN FUNDS DISTRIBUTORS, LLC
By: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President
SCHEDULE A
LIST OF PORTFOLIOS
Non-International Portfolios:
Government Select Portfolio
Government Portfolio
Diversified Assets Portfolio
Tax-Exempt Portfolio
Municipal Portfolio
U.S. Government Securities Portfolio
Short-Intermediate Bond Portfolio
U.S. Treasury Index Portfolio
Bond Portfolio
Intermediate Bond Portfolio
Balanced Portfolio
Equity Index Portfolio
Diversified Growth Portfolio
Focused Growth Portfolio
Small Company Index Portfolio
Small Company Growth Portfolio
MidCap Growth Portfolio
MarketPower Portfolio
International Portfolios:
International Bond Portfolio
International Equity Index Portfolio
International Growth Portfolio
SCHEDULE B
DISTRIBUTION SERVICES
The Distributor shall, at its own expense, finance appropriate activities
which are primarily intended to result in the sale of the Shares. Such services
shall include, but are not limited to:
1. Preparation and execution of selling agreements
monitoring accruals
monitoring expenses
making disbursements for expenses and fees
2. Advertising and sales literature submission to the NASD
3. Investor qualification calls, as necessary
4. Printing and mailing of Prospectuses to other than existing shareholders
