Exhibit 99.(e)(6)
XXXXXXX X. XXXXXXXXX FUND, INC.
DISTRIBUTION AGREEMENT
XXXXXXXXX INTERNATIONAL VALUE PORTFOLIO II
AGREEMENT made as of the 22nd day of February, 1999 , between XXXXXXX
X. XXXXXXXXX FUND, INC., a Maryland corporation (the "Fund"), on behalf of the
Xxxxxxxxx International Value Portfolio II (the "Portfolio"), and XXXXXXX X.
XXXXXXXXX & CO., INC., a New York corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Distributor").
In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. Appointment of the Distributor. The Fund, on behalf of the
Portfolio, hereby appoints the Distributor as its exclusive agent to sell the
stock of the Portfolio (the "Shares"), on a best efforts basis, and the
Distributor hereby accepts such appointment. All sales by the Distributor shall
be subject to acceptance by the Fund on behalf of the Portfolio. The Distributor
shall be the exclusive representative of the Fund to act as principal
underwriter and distributor, except that:
The exclusive rights granted to the Distributor to sell Shares on
behalf of the Fund shall not apply to Shares issued in connection with the
merger or consolidation of any other investment company or personal holding
company with the Fund or the Portfolio or the acquisition by purchase or
otherwise of all (or substantially all) the assets or the outstanding shares of
any such company by the Fund or the Portfolio. Such exclusive rights shall also
not apply to shares issued by the Fund or the Portfolio pursuant to reinvestment
of dividends or capital gains distributions.
2. Sales of Shares. The Distributor agrees that (i) all Shares sold by
the Distributor shall be sold at the net asset value thereof as described in
Section 3 hereof, and (ii) the Fund, on behalf of the Portfolio, shall receive
100% of such net asset value.
The Distributor may enter into agreements, in form and substance
satisfactory to the Fund on behalf of the Portfolio, with dealers selected by
the Distributor, providing for 1) the sale to such dealers and resale by such
dealers of Shares, or 2) the sale of Shares through such Distributor acting as
agent, either to clients of the Distributor or other persons, in all cases at
the Shares' net asset value. The Fund shall have the right to suspend the sale
of Shares at times when redemption is suspended pursuant to the conditions set
forth in Section 4 hereof. The Fund, on behalf of the Portfolio, shall also have
the right to suspend the sale of Shares if trading on the New York Stock
Exchange shall have been suspended, if a banking moratorium shall have been
declared by Federal or New York authorities, or if there shall have been some
other event, which, in the judgment of the Fund, makes it impracticable or
inadvisable to sell the shares.
3. Net Asset Value. The Fund, on behalf of the Portfolio, agrees to
supply to the Distributor, promptly after the time or times at which the net
asset value for the Portfolio is determined, on each day on which the net asset
value of the Portfolio is determined as set forth in the then-current Prospectus
of the Fund or the Portfolio, (each such day being hereinafter called a
"business day") a statement of the net asset value per share of the Portfolio
determined in the manner set forth in the then-current Prospectus and Statement
of Additional Information of the Fund or the Portfolio. Each determination of
net asset value per share shall take effect as of such time or times on each
business day as set forth in the then current
Prospectus of the Fund or the Portfolio and shall prevail until the time as of
which the next determination is made.
The Distributor may reject any order for Shares. The Fund, on behalf of
the Portfolio, or any agent of the Fund designated in writing by the Fund, shall
be promptly advised of all purchase orders for Shares received by the
Distributor. Any order may be rejected by the Fund (or its agent) on behalf of
the Portfolio. The Fund (or its agent) will confirm orders upon their receipt,
will make appropriate book entries and upon receipt by the Fund (or its agent)
of payment therefor, will deliver any required certificates for such Shares
pursuant to the instructions of the Distributor. The Distributor agrees to cause
payment and such instructions to be delivered promptly to the Fund (or its
agent).
4. Repurchase or Redemption of Shares by the Fund. Any of the
outstanding Shares may be tendered for redemption at any time, and the Fund, on
behalf of the Portfolio, agrees to repurchase or redeem the Shares so tendered
on behalf of the Portfolio in accordance with its obligations as set forth in
Article V of its Articles of Incorporation, as amended from time to time, and in
accordance with the applicable provisions set forth in the Prospectus. The price
to be paid to redeem or repurchase the Shares shall be equal to the net asset
value per share determined as set forth in the Prospectus. All payments by the
Fund on behalf of the Portfolio hereunder shall be made in the manner set forth
below.
The Fund, on behalf of the Portfolio, shall pay the total amount of the
redemption price as defined in the above paragraph pursuant to the instructions
of the Distributor on or before the seventh day subsequent to its having
received the notice of redemption in proper form. The proceeds of any redemption
of Shares shall be paid by the Fund to or for the account of the redeeming
stockholder, in accordance with applicable provisions of the then-current
Prospectus of the Fund or the Portfolio.
Redemption of, or payment with regard to, the Shares of the Portfolio
may be suspended at times when the New York Stock Exchange is closed, when
trading on said Exchange is closed, when trading on said Exchange is restricted,
when an emergency exists as a result of which disposal by the Fund of securities
owned by it on behalf of the Portfolio is not reasonably practicable or it is
not reasonably practicable for the Fund fairly to determine the value of the
Portfolio's net assets, or during any other period when the Securities and
Exchange Commission, by order, so permits.
5. Sales Literature. The Fund, on behalf of the Portfolio, shall have
the right to review, to the extent it deems appropriate, all sales literature
and advertisements used by the Distributor in connection with sales of Shares.
No such sales literature or advertisements shall be used if the Fund objects
thereto. The Fund authorizes the Distributor, in connection with the sale or
arranging for the sale of Shares, to provide only such information and to make
only such statements or representations as are contained in the Fund's or the
Portfolio's then-current Prospectus or Statement of Additional Information,
sales literature or advertisements or in such financial and other statements as
are furnished to the Distributor pursuant to the next paragraph. Neither the
Fund nor the Portfolio shall be responsible in any way for any information
provided, or statements or representations made, by the Distributor or its
representatives or agents other than the information, statements and
representations described in the preceding sentence.
6. Expenses. The Distributor shall pay all of its expenses arising from
the performance of its obligations under Section 1 of this Agreement and shall
pay any salaries, fees and expenses of the Directors who are employees of the
Distributor. The Distributor shall not be required to pay any other expenses of
the Fund or the Portfolio, including (a) the fees payable to Xxxxxxxxx under the
Investment Management Agreement and the Shareholder Servicing and
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Administrative Agreement; (b) the fees and expenses of Directors who are not
affiliated with the Distributor; (c) the fees and expenses of the Custodian and
Transfer Agent, including but not limited to fees and expenses relating to Fund
accounting, pricing of Portfolio shares, and computation of net asset value; (d)
the fees and expenses of calculating yield and/or performance of the Portfolio;
(e) the charges and expenses of legal counsel and independent accountants; (f)
all taxes and corporate fees payable to governmental agencies; (g) the fees of
any trade association of which the Fund is a member; (h) reimbursement of the
Portfolio's share of the organization expenses of the Portfolio or the Fund; (i)
the fees and expenses involved in registering and maintaining registration of
the Fund and the Portfolio's shares with the Securities and Exchange Commission,
registering the Fund as a broker or dealer and qualifying the shares of the
Portfolio under state securities laws, including the preparation and printing of
the registration statements and prospectuses for such purposes, allocable
communications expenses with respect to investor services, all expenses of
shareholders' and Board of Directors' meetings and preparing, printing and
mailing proxies, prospectuses and reports to shareholders; (j) brokers'
commissions, dealers' xxxx-ups and any issue or transfer taxes chargeable in
connection with the Portfolio's transactions; (k) the cost of stock certificates
representing shares of the Portfolio; (1) insurance expenses, including, but not
limited to, the cost of a fidelity bond, directors and officers insurance and
errors and omissions insurance; and (m) litigation and indemnification expenses,
expenses incurred in connection with mergers, and other extraordinary expenses
not incurred in the ordinary course of the Portfolio's business.
7. Duties of the Fund. The Fund shall maintain a currently effective
Registration Statement on the appropriate form and shall file with the
Securities and Exchange Commission ("SEC") such reports and other documents as
may be required under the Securities Act of 1933 as amended and the Investment
Company Act of 1940, as amended (the "1940 Act"), or by the rules and
regulations of the SEC thereunder. The Fund shall keep the Distributor fully
informed with regard to its affairs and the affairs of the Portfolio, shall
furnish the Distributor with a certified copy of all financial statements and a
signed copy of each report prepared by its independent auditors, and shall
cooperate fully in the efforts of the Distributor to negotiate and sell the
Shares and in the performance by the Distributor of all its duties under this
Agreement.
8. Indemnification. The Fund, on behalf of the Portfolio, shall
indemnify and hold harmless the Distributor, against any loss, liability, claim,
damage or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damage or expenses and reasonable counsel
fees incurred in connection therewith) arising out of its activities as a
Distributor to the Fund or the Portfolio, provided, however, that nothing herein
shall be deemed to protect the Distributor or any director, officer, or employee
thereof against any liability to the Fund or its stockholders, to which the
Distributor or any director, officer, or employee thereof would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties under this Agreement.
9. Limitation of Liability. Subject to Section 36 of the Act, the
Distributor, and the directors, officers and employees of the Distributor, shall
not be liable to the Fund or the Portfolio for any error of judgment or mistake
of law or for any loss arising out of the performance or non-performance of
duties under this Agreement, except for willful misfeasance, bad faith or gross
negligence in the performance of, or by reason of reckless disregard of,
obligations and duties under this Agreement.
10. Term of Agreement. This Agreement shall continue in effect with
respect to the Portfolio for a period of more than two years from the date
hereof only so long as such continuance is specifically approved at least
annually in conformity with the requirements of the Act; provided, however, that
this Agreement may be terminated at any time, without the payment of any
penalty, by the Fund on behalf of the Portfolio, by the Board of Directors of
the
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Fund or, with respect to the Portfolio, by vote of a majority of the outstanding
voting securities (as defined in the 0000 Xxx) of the Portfolio, or by the
Distributor, on not more than 60 days' nor less than 30 days' written notice to
the other party.
11. Miscellaneous. This Agreement may be amended by mutual written
consent. This Agreement contains the entire agreement between the parties hereto
and supersedes all prior agreements, understandings and arrangements with
respect to the subject matter hereof. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. Anything herein
to the contrary notwithstanding, this Agreement shall not be construed to
require, or to impose any duty upon either of the parties, to do anything in
violation of any applicable laws or regulations. The Distributor may perform the
same services to the Fund, on behalf of the Portfolio, and to other persons or
other entities, including other investment companies.
IN WITNESS WHEREOF, the Fund, on behalf of the Portfolio, and the
Distributor have caused this Agreement to be executed by their duly authorized
officers as of the date first above written.
XXXXXXX X. XXXXXXXXX & CO., INC.
By:
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Xxxxx X. Xxxxxxx, Chairman
XXXXXXX X. XXXXXXXXX FUND, INC.
By:
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Xxxx Xxxxx Xxxx, Secretary
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