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EXHIBIT 6(f)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 1st day of January, 1997, by and between
Northern Funds, a Massachusetts business trust ("Northern Funds") and Sunstone
Distribution Services, LLC, a Wisconsin limited liability company (the
"Distributor").
W I T N E S S E T H:
WHEREAS, Northern Funds is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and is authorized to issue shares of beneficial interest ("Shares") in separate
series with each such series representing the interests in a separate portfolio
of securities and other assets;
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a member
in good standing of the National Association of Securities Dealers, Inc. (the
"NASD"); and
WHEREAS, the Fund and Distributor desire to enter into an agreement
pursuant to which Distributor shall be the distributor of the Shares of
Northern Funds representing the investment portfolios listed on Schedule A
hereto and any additional investment portfolios Northern Funds and Distributor
may agree upon and include on Schedule A as such Schedule may be amended from
time to time (such investment portfolios and any additional investment
portfolios are individually referred to as a "Fund" and collectively the
"Funds").
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1. Appointment of the Distributor.
Northern Funds hereby appoints the Distributor as agent for the
distribution of the Shares, on the terms and for the period set forth in this
Agreement. Distributor hereby accepts such appointment as agent for the
distribution of the Shares on the terms and for the period set forth in this
Agreement.
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2. Services as Distributor.
2.1(a) Distributor will act as agent for the distribution of Shares in
accordance with the instructions of Northern Funds' Board of Trustees and the
registration statement and prospectuses then in effect with respect to the
Funds under the Securities Act of 1933, as amended (the "1933 Act"), and will
transmit promptly any orders received for the purchase or redemption of Shares
either directly to the transfer agent for the Funds or to any qualified
broker/dealer for transmittal to said agent.
2.1(b) Distributor shall use appropriate efforts to solicit orders for the
sale of Shares. Distributor, at its own expense, shall finance appropriate
activities which it deems reasonable which are primarily intended to result in
the sale of Shares, including, but not limited to, advertising, the printing
and mailing of prospectuses to other than current shareholders, and the
printing and mailing of sales literature. In addition, Distributor will
provide at least one person, during normal business hours, to respond to
telephone questions with respect to the Funds. Distributor may enter into
servicing and/or selling agreements with qualified broker/dealers and other
persons with respect to the offering of Shares to the public, and if it so
chooses Distributor will act only on its own behalf as principal. The
Distributor shall not be obligated to sell any certain number of Shares of any
Fund.
2.1(c) All Shares of the Funds offered for sale by Distributor shall be
offered for sale to the public at a price per unit (the "offering price") equal
to their net asset value (determined in the manner set forth in Northern Funds'
then current prospectuses). The offering price, if not an exact multiple of
one cent, shall be adjusted to the nearest cent.
2.2 Distributor shall act as distributor of the Shares in compliance with
all applicable laws, rules and regulations, including, without limitation, all
rules and regulations made or adopted pursuant to the 1940 Act, by the
Securities and Exchange Commission (the "Commission") or any securities
association registered under the 1934 Act. Northern Funds represents that it
is registered as an open-end management investment company under the 1940 Act
and that it shall comply with all applicable laws, rules and regulations
including the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder.
2.3 Whenever in their judgment such action is warranted by market,
economic or political conditions, or by circumstances of any kind, Northern
Funds' officers may decline to accept any orders for, or make any sales of, any
Shares until such time as they deem it advisable to accept such orders and to
make
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such sales and Northern Funds shall advise Distributor promptly of such
determination.
2.4 Northern Funds shall take all necessary action to register and
maintain the registration of the Shares under the 1933 Act for sale as herein
contemplated and shall pay all costs and expenses in connection with the
registration of Shares under the 1933 Act, and be responsible for all expenses
in connection with maintaining facilities for the issue and transfer of Shares
and for supplying information, prices and other data to be furnished by
Northern Funds hereunder.
2.5 Northern Funds shall execute any and all documents and furnish any and
all information and otherwise take all actions which may be reasonably
necessary in the discretion of Northern Funds' officers in connection with the
qualification of the Shares for sale in such states as Distributor and Northern
Funds may approve, and Northern Funds shall pay all expenses which may be
incurred in connection with such qualification. Distributor shall pay all
expenses connected with its own qualification as a broker under State or
Federal laws and, except as otherwise specifically provided in this Agreement,
all other expenses incurred by Distributor in connection with the sale by
Distributor of Shares as contemplated in this Agreement.
2.6 Northern Funds shall furnish Distributor from time to time, for use in
connection with the sale of Shares, such information with respect to Northern
Funds and the Shares as Distributor may reasonably request, and Northern Funds
warrants that the statements contained in any such information shall be true
and correct. Northern Funds also shall furnish Distributor upon request with:
(a) annual audited reports of Northern Funds' books and accounts with respect
to each of the Funds, made by independent public accountants regularly retained
by Northern Funds, (b) semi-annual reports with respect to each of the Funds
prepared by Northern Funds, and (c) from time to time such additional
information regarding Northern Funds' financial condition as Distributor may
reasonably request.
2.7 Northern Funds represents to Distributor that all registration
statements and prospectuses filed by Northern Funds with the Commission under
the 1933 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 Commission thereunder. As used in this Agreement the terms
"registration statement" and "prospectus" shall mean any registration statement
and prospectus (together with the related statement of additional information)
at any time filed with the Commission with respect to any of the Shares and any
amendments and supplements thereto which at any time shall have been filed with
said Commission. Northern Funds represents and warrants to Distributor that
any registration statement and prospectus, when
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such registration statement becomes effective, will contain all statements
required to be stated therein in conformity with the 1933 Act, the 1940 Act and
the rules and regulations of the Commission; that all statements of fact
contained in the registration statement and prospectus will be true and correct
in all material respects when such registration statement becomes effective;
and that neither the registration statement nor any prospectus 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
Shares. Northern Funds agrees to file from time to time such amendments,
supplements, reports and other documents as may be necessary in order to comply
with the 1933 Act and the 1940 Act and in order that there may be no untrue
statement of a material fact in a registration statement or prospectus, or
necessary in order that there may be no omission to state a material fact in
the registration statement or prospectus which omission would make the
statements therein misleading. If Northern Funds shall not propose an
amendment or amendments and/or supplement or supplements within fifteen days
after receipt by Northern Funds of a written request from Distributor to do so,
Distributor may, at its option, terminate this Agreement. Northern Funds shall
not file any amendment to the registration statement or supplement to any
prospectus without giving Distributor reasonable notice thereof in advance;
provided, however, that nothing contained in this Agreement shall in any way
limit Northern Funds' right to file at any time such amendments to any
registration statement and/or supplements to any prospectus, of whatever
character, as Northern Funds may deem advisable, such right being in all
respects absolute and unconditional.
2.8(a) Northern Funds authorizes Distributor to use any prospectus, in the
form furnished to Distributor from time to time, in connection with the sale of
Shares. Northern Funds shall indemnify, defend and hold the Distributor, and
each of its present or former directors, officers, employees, representatives
and any person who controls or previously controlled the Distributor within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all losses, claims, demands, liabilities, damages and expenses (including
the costs of investigating or defending any alleged losses, claims, demands,
liabilities, damages or expenses and any counsel fees incurred in connection
therewith) which Distributor, each of its present and former directors,
officers, employees or representatives or any such controlling person, may
incur under the 1933 Act, the 1934 Act, any other statute (including Blue Sky
laws) or any rule or regulation thereunder, or under common law or otherwise,
arising out of or
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based upon any untrue statement, or alleged untrue statement, of a material
fact contained in the registration statement or any prospectus, as from time to
time amended or supplemented, or an annual or interim report to shareholders,
or arising out of or based upon any omission, or alleged omission, to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that Northern Funds'
obligation to indemnify Distributor and any of the foregoing indemnitees, shall
not be deemed to cover any losses, claims, demands, liabilities, damages or
expenses arising out of any untrue statement or alleged untrue statement or
omission or alleged omission made in the registration statement, prospectus, or
annual or interim report in reliance upon and in conformity with information
furnished to Northern Funds or its counsel by Distributor for the purpose of,
and used in, the preparation thereof; and provided further that Northern Funds'
agreement to indemnify Distributor and any of the foregoing indemnitees shall
not be deemed to cover any liability to Northern Funds or its shareholders to
which Distributor would otherwise be subject by reason of its willful
misfeasance, bad faith or gross negligence in the performance of its duties, or
by reason of its reckless disregard of its obligations and duties under this
Agreement. Northern Funds' agreement to indemnify the Distributor, and each of
its present or former directors, officers, employees, representatives or any
controlling person, as the case may be, with respect to any action, is
expressly conditioned upon Northern Funds being notified of such action brought
against Distributor, or each of its present or former directors, officers,
employees, representatives or any such controlling person, within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Distributor, or such
person, such notification to be given by letter or by telegram addressed to
Northern Funds' Chairman, but the failure so to notify Northern Funds of any
such action shall not relieve Northern Funds from any liability which Northern
Funds 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 Northern Funds' indemnity agreement contained in
this paragraph 2.8(a).
2.8(b) Northern Funds shall be entitled to participate at its own expense
in the defense or, if it so elects, to assume the defense of any suit brought
to enforce any such loss, claim, demand, liability, damage or expense, but if
Northern Funds elects to assume the defense, such defense shall be conducted by
counsel chosen by Northern Funds and approved by the Distributor, which
approval shall not be unreasonably withheld. In the event Northern Funds
elects to assume the defense of any such suit and retain such counsel, the
indemnified defendant or defendants in such suit shall bear the fees and
expenses of any additional counsel retained by them. If Northern Funds does
not elect to assume the defense of any such suit, or in case the Distributor
does not, in the exercise of reasonable judgment, approve of counsel chosen by
Northern Funds, Northern Funds will reimburse the indemnified person or persons
named as defendant or defendants in such suit, for the fees
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and expenses of any counsel retained by Distributor and them. Northern Funds'
indemnification agreement contained in this paragraph 2.8 and Northern Funds'
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, and each of its present or former directors, officers,
employees, representatives or any controlling person, and shall survive the
delivery of any Shares and the termination of this Agreement. This Agreement
of indemnity will inure exclusively to the Distributor's benefit, to the
benefit of each of its present or former directors, officers, employees or
representatives or to the benefit of any controlling persons and their
successors. Northern Funds agrees promptly to notify Distributor of the
commencement of any litigation or proceedings against Northern Funds or any of
its officers or directors in connection with the issue and sale of any of the
Shares.
2.9 Distributor shall indemnify, defend and hold Northern Funds, and each
of its present or former directors, officers, employees, representatives, and
any person who controls or previously controlled Northern Funds within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all losses, claims, demands, liabilities, damages and expenses (including
the costs of investigating or defending any alleged losses, claims, demands,
liabilities, damages or expenses, and any counsel fees incurred in connection
therewith) which Northern Funds, and each of its present or former directors,
officers, employees, representatives, or any such controlling person, may incur
under the 1933 Act, the 1934 Act, any other statute (including Blue Sky laws)
or any rule or regulation thereunder, or under common law or otherwise, arising
out of or based upon any untrue, or alleged untrue, statement of a material
fact contained in Northern Funds' registration statement or any prospectus, as
from time to time amended or supplemented, or annual or interim report to
shareholders or the omission, or alleged omission, to state therein a material
fact required to be stated therein or necessary to make the statement not
misleading, but only if such statement or omission was made in reliance upon,
and in conformity with, information furnished to Northern Funds or its counsel
by the Distributor for the purpose of, and used in, the preparation thereof.
Distributor's agreement to indemnify Northern Funds and any of the foregoing
indemnitees shall not be deemed to cover any liability to Distributor to which
Northern Funds would otherwise be subject by reason of its willful misfeasance,
bad faith or gross negligence in the performance of its duties, or by reason of
its reckless disregard of its obligations and duties, under this Agreement. The
Distributor's Agreement to indemnify Northern Funds, its present or former
directors, officers, employees, representatives, and any such
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controlling person, as aforesaid, is expressly conditioned upon the
Distributor's being notified of any action brought against Northern Funds, its
present or former directors, officers, employees, representatives, or any such
controlling person, such notification to be given by letter or telegram
addressed to Distributor's President, within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon Northern Funds or such person, but the
failure so to notify Distributor of any such action shall not relieve
Distributor from any liability which Distributor may have to the person against
whom such action is brought by reason of any such untrue, or alleged untrue,
statement or omission, otherwise than on account of Distributor's indemnity
agreement contained in this paragraph 2.9(a). In case any action shall be
brought against Northern Funds, and each of its present or former directors,
officers, employees, representatives, or controlling persons, in respect of
which indemnity may be sought against the Distributor, the Distributor shall
have the rights and duties given to Northern Funds, and Northern Funds and each
person so indemnified shall have the rights and duties given to the Distributor
by the provisions of paragraph 2.8(b).
2.10 No Shares shall be offered by either Distributor or Northern Funds
under any of the provisions of this Agreement and no orders for the purchase or
sale of such Shares hereunder shall be accepted by Northern Funds 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 current prospectuses as required by Section
10 of the 1933 Act, as amended, are not on file with the Commission; provided,
however, that nothing contained in this paragraph 2.10 shall in any way
restrict or have an application to or bearing upon Northern Funds' obligation
to repurchase Shares from any shareholder in accordance with the provisions of
the prospectus or Declaration of Trust.
2.11 Northern Funds agrees to advise Distributor promptly in writing:
(a) of any request by the Commission for amendments
to the registration statement or prospectuses then in effect;
(b) in the event of the issuance by the Commission of
any stop order suspending the effectiveness of the
registration statement or prospectuses then in effect or the
initiation of any proceeding for that purpose;
(c) of the happening of any event which makes untrue
any statement of a material fact made in the registration
statement or prospectuses then in effect or which requires the
making of a change in such registration statement or
prospectuses in
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order to make the statements therein not misleading; and
(d) of all actions of the Commission with respect to
any amendments to any registration statement or prospectus
which may from time to time be filed with the Commission.
3. Term.
3.1(a) This Agreement shall become effective with respect to each Fund
listed on Schedule A hereof as of the date hereof and, with respect to each
Fund not in existence on that date, on the date an amendment to Schedule A to
this Agreement relating to that Fund is executed. Unless sooner terminated as
provided herein, this Agreement shall continue in effect with respect to each
Fund until March 31, 1997. Thereafter, if not terminated, this Agreement shall
continue automatically in effect as to each Fund for successive annual periods,
provided such continuance is specifically approved at least annually by (i)
Northern Funds' Board of Trustees or (ii) the vote of a majority (as defined in
the 0000 Xxx) of the outstanding voting securities of a Fund, and provided that
in either event the continuance is also approved by a majority of Northern
Funds' Trustees 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.
3.1(b) This Agreement may be terminated without penalty with respect to a
particular Fund (1) through a failure to renew this Agreement at the end of a
term, (2) upon mutual consent of the parties, or (3) on not less than sixty
(60) days' written notice, by Northern Funds' Trustees, by vote of a majority
(as defined with respect to voting securities in the 1940 Act) of the
outstanding voting securities of the Fund, or by Distributor. The terms of
this Agreement shall not be waived, altered, modified, amended or supplemented
in any manner whatsoever except by a written instrument signed by the
Distributor and Northern Funds. This Agreement will also terminate
automatically in the event of its assignment (as defined in the 1940 Act).
4. Miscellaneous.
4.1 The services of the Distributor rendered to the Funds are not deemed
to be exclusive. The Distributor may render such services and any other
services to others, including other investment companies. Northern Funds
recognizes that from time to time directors, officers, and employees of the
Distributor may serve as directors, trustees, officers and employees of other
corporations or trusts (including other investment companies), that such other
entities may include the name of the Distributor as part of their name and that
the Distributor or its affiliates may enter
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into distribution, administration, fund accounting or other agreements with
such other corporations or trusts.
4.2 Distributor agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of Northern Funds all records and
other information relative to the Funds and prior, present or potential
shareholders of the Funds (and clients of said shareholders), and not to use
such records and information for any purpose other than performance of
Distributor's responsibilities and duties hereunder, except after prior
notification to and approval in writing by Northern Funds, which approval shall
not be unreasonably withheld and may not be withheld where 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 Northern Funds.
4.3 This Agreement shall be governed by Wisconsin law (except as to
paragraph 4.5 hereof which shall be construed in accordance with the laws of
the State of Massachusetts). To the extent that the applicable laws of the
State of Wisconsin, or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control, and nothing
herein shall be construed in a manner inconsistent with the 1940 Act or any
rule or order of the Commission thereunder. Any provision of this Agreement
which may be determined by competent authority to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
4.4 Any notice required or to be permitted to be given by either party to
the other shall be in writing and shall be deemed to have been given when hand
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, as follows: Notice to the Distributor shall be sent to
Sunstone Distribution Services, LLC, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx, 00000, Attention: Xxxxxx X. Xxxxxxx, and notice to
Northern Funds shall be sent to Xxxxx Xxxxxxxx, President, c/o Xxxxxx Xxxxxxx,
00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, with a copy to Xxxxxxx
Xxxxx, Secretary, c/o Drinker Xxxxxx & Xxxxx, 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000.
4.5 This Agreement is executed by or on behalf of Northern Funds with
respect to each of the Funds and the obligations hereunder are not binding upon
any of the Trustees, officers or shareholders of Northern Funds individually
but are binding only upon the Funds to which such obligations pertain and
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the assets and property of such Funds. Northern Funds' Declaration of Trust is
on file with the Secretary of State of Massachusetts.
4.6 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original agreement but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer as of the day and year first above
written.
NORTHERN FUNDS
("Northern Funds")
By:/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President
SUNSTONE DISTRIBUTION SERVICES, LLC
("Distributor")
By:/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President
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