XXXXXX, XXXXXXX INVESTMENT TRUST II
DISTRIBUTION CONTRACT
CLASS A SHARES
CONTRACT made as of January __, 1995, between XXXXXX, PEABODY
INVESTMENT TRUST II, a Massachusetts business trust ('Fund'), and XXXXXXXX
XXXXXXXX ASSET MANAGEMENT INC., a Delaware corporation ('Xxxxxxxx Xxxxxxxx').
WHEREAS the Fund is registered under the Investment Company Act of
l940, as amended ('l940 Act'), as an open-end management investment company and
currently has two distinct series of shares of beneficial interest ('Series'),
which correspond to distinct portfolios and have been designated as the Xxxxxx,
Xxxxxxx Emerging Markets Equity Fund and the Xxxxxx, Peabody Municipal Bond
Fund; and
WHEREAS the Fund's board of trustees ('Board') has established an
unlimited number of shares of beneficial interest of the above-referenced Series
as Class A shares ('Class A Shares'); and
WHEREAS the Fund has adopted a Plan of Distribution pursuant to Rule
12b-1 under the 1940 Act ('Plan') and desires to retain Xxxxxxxx Xxxxxxxx as
principal distributor in connection with the offering and sale of the Class A
Shares of the above-referenced Series and of such other Series as may hereafter
be designated by the Board and have Class A Shares established; and
WHEREAS Xxxxxxxx Xxxxxxxx is willing to act as principal distributor
of the Class A Shares of each such Series on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints Xxxxxxxx Xxxxxxxx as its
exclusive agent to be the principal distributor to sell and to arrange for the
sale of the Class A Shares on the terms and for the period set forth in this
Contract. Xxxxxxxx Xxxxxxxx hereby accepts such appointment and agrees to act
hereunder. It is understood, however, that this appointment does not preclude
sales of the Class A Shares directly through the Fund's transfer agent in the
manner set forth in the Registration Statement. As used in this Contract, the
term 'Registration
Statement' shall mean the currently effective registration state- ment of the
Fund, and any supplements thereto, under the Securities Act of 1933, as amended
('1933 Act'), and the 1940 Act.
2. Services and Duties of Xxxxxxxx Xxxxxxxx.
(a) Xxxxxxxx Xxxxxxxx agrees to solicit orders for the sale of shares
of the Fund and to undertake advertising and promotion that it believes
reasonable in connection with such solicitation as agent for the Fund and upon
the terms described in the Registration Statement.
(b) Upon the later of the date of this Contract or the initial
offering of the Class A Shares to the public by a Series, Xxxxxxxx Xxxxxxxx will
hold itself available to receive purchase orders, satisfactory to Xxxxxxxx
Xxxxxxxx, for Class A Shares of that Series and will accept such orders on
behalf of the Fund as of the time of receipt of such orders and promptly
transmit such orders as are accepted to the Fund's transfer agent. Purchase
orders shall be deemed effective at the time and in the manner set forth in the
Registration Statement.
(c) Xxxxxxxx Xxxxxxxx in its discretion may enter into agreements to
sell Class A Shares to such registered and qualified retail dealers, including
but not limited to PaineWebber Incorporated ('PaineWebber'), as it may select.
In making agreements with such dealers, Xxxxxxxx Xxxxxxxx shall act only as
principal and not as agent for the Fund.
(d) The offering price of the Class A Shares of each Series shall be
the net asset value per Share as next determined by the Fund following receipt
of an order at Xxxxxxxx Xxxxxxxx' principal office plus the applicable initial
sales charge, if any, computed as set forth in the Registration Statement. The
Fund shall promptly furnish Xxxxxxxx Xxxxxxxx with a statement of each
computation of net asset value.
(e) Xxxxxxxx Xxxxxxxx shall not be obligated to sell any certain
number of Class A Shares.
(f) To facilitate redemption of Class A Shares by shareholders
directly or through dealers, Xxxxxxxx Xxxxxxxx is authorized but not required on
behalf of the Fund to repurchase Class A Shares presented to it by shareholders
and dealers at the price determined in accordance with, and in the manner set
forth in, the Registration Statement.
(g) Xxxxxxxx Xxxxxxxx shall provide ongoing shareholder services,
which include responding to shareholder inquiries, providing shareholders with
information on their investments in the Class A Shares and any other services
now or
- 2 -
hereafter deemed to be appropriate subjects for the payments of 'service fees'
under Section 26(d) of the National Association of Securities Dealers, Inc.
('NASD') Rules of Fair Practice (collectively, 'service activities').
(h) Xxxxxxxx Xxxxxxxx shall have the right to use any list of
shareholders of the Fund or any other list of investors which it obtains in
connection with its provision of services under this Contract; provided,
however, that Xxxxxxxx Xxxxxxxx shall not sell or knowingly provide such list or
lists to any unaffiliated person.
3. Authorization to Enter into Exclusive Dealer Agreements and to
Delegate Duties as Distributor. With respect to the Class A Shares of any or all
Series, Xxxxxxxx Xxxxxxxx may enter into an exclusive dealer agreement with
PaineWebber or any other registered and qualified dealer with respect to sales
of the Class A Shares or the provision of service activities. In a separate
contract or as part of any such exclusive dealer agreement, Xxxxxxxx Xxxxxxxx
also may delegate to PaineWebber or another registered and qualified dealer
('sub-distributor') any or all of its duties specified in this Contract,
provided that such separate contract or exclusive dealer agreement imposes on
the sub-distributor bound thereby all applicable duties and conditions to which
Xxxxxxxx Xxxxxxxx is subject under this Contract, and further provided that such
separate contract or exclusive dealer agreement meets all requirements of the
1940 Act and rules thereunder.
4. Services Not Exclusive. The services furnished by Xxxxxxxx Xxxxxxxx
hereunder are not to be deemed exclusive and Xxxxxxxx Xxxxxxxx shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby. Nothing in this Contract shall limit or restrict the
right of any director, officer or employee of Xxxxxxxx Xxxxxxxx, who may also be
a trustee, officer or employee of the Fund, to engage in any other business or
to devote his or her time and attention in part to the management or other
aspects of any other business, whether of a similar or a dissimilar nature.
5. Compensation.
(a) As compensation for its service activities under this contract
with respect to the Class A Shares, Xxxxxxxx Xxxxxxxx shall receive from the
Fund a service fee at the rate and under the terms and conditions of the Plan
adopted by the Fund, as such Plan is amended from time to time, and subject to
any further limitations on such fee as the Board may impose.
(b) As compensation for its activities under this contract with
respect to the distribution of the Class A Shares,
- 3 -
Xxxxxxxx Xxxxxxxx shall retain the initial sales charge, if any, on purchases of
Class A Shares as set forth in the Registration Statement. Xxxxxxxx Xxxxxxxx is
authorized to collect the gross proceeds derived from the sale of the Class A
Shares, remit the net asset value thereof to the Fund upon receipt of the
proceeds and retain the initial sales charge, if any.
(c) Xxxxxxxx Xxxxxxxx may reallow any or all of the initial sales
charges or service fees which it is paid under this Contract to such dealers as
Xxxxxxxx Xxxxxxxx may from time to time determine.
6. Duties of the Fund.
(a) The Fund reserves the right at any time to withdraw offering Class
A Shares of any or all Series by written notice to Xxxxxxxx Xxxxxxxx at its
principal office.
(b) The Fund shall determine in its sole discretion whether
certificates shall be issued with respect to the Class A Shares. If the Fund has
determined that certificates shall be issued, the Fund will not cause
certificates representing Class A Shares to be issued unless so requested by
shareholders. If such request is transmitted by Xxxxxxxx Xxxxxxxx, the Fund will
cause certificates evidencing Class A Shares to be issued in such names and
denominations as Xxxxxxxx Xxxxxxxx shall from time to time direct.
(c) The Fund shall keep Xxxxxxxx Xxxxxxxx fully informed of its
affairs and shall make available to Xxxxxxxx Xxxxxxxx copies of all information,
financial statements, and other papers which Xxxxxxxx Xxxxxxxx may reasonably
request for use in connection with the distribution of Class A Shares,
including, without limitation, certified copies of any financial statements
prepared for the Fund by its independent public accountant and such reasonable
number of copies of the most current prospectus, statement of additional
information, and annual and interim reports of any Series as Xxxxxxxx Xxxxxxxx
may request, and the Fund shall cooperate fully in the efforts of Xxxxxxxx
Xxxxxxxx to sell and arrange for the sale of the Class A Shares of the Series
and in the performance of Xxxxxxxx Xxxxxxxx under this Contract.
(d) The Fund shall take, from time to time, all necessary action,
including payment of the related filing fee, as may be necessary to register the
Class A Shares under the 1933 Act to the end that there will be available for
sale such number of Class A Shares as Xxxxxxxx Xxxxxxxx may be expected to sell.
The Fund agrees to file, from time to time, such amendments, reports, and other
documents as may be necessary in order that
- 4 -
there will be no untrue statement of a material fact in the Registration
Statement, nor any omission of a material fact which omission would make the
statements therein misleading.
(e) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of Class A Shares of each Series for sale
under the securities laws of such states or other jurisdictions as Xxxxxxxx
Xxxxxxxx and the Fund may approve, and, if necessary or appropriate in
connection therewith, to qualify and maintain the qualification of the Fund as a
broker or dealer in such jurisdictions; provided that the Fund shall not be
required to execute a general consent to the service of process in any state.
Xxxxxxxx Xxxxxxxx shall furnish such information and other material relating to
its affairs and activities as may be required by the Fund in connection with
such qualifications.
7. Expenses of the Fund. The Fund shall bear all costs and expenses of
registering the Class A Shares with the Securities and Exchange Commission and
state and other regulatory bodies, and shall assume expenses related to
communications with shareholders of each Series, including (i) fees and
disbursements of its counsel and independent public accountant; (ii) the
preparation, filing and printing of registration statements and/or prospectuses
or statements of additional information required under the federal securities
laws; (iii) the preparation and mailing of annual and interim reports,
prospectuses, statements of additional information and proxy materials to share-
holders; and (iv) the qualifications of Class A Shares for sale and of the Fund
as a broker or dealer under the securities laws of such jurisdictions as shall
be selected by the Fund and Xxxxxxxx Xxxxxxxx pursuant to Paragraph 6(e) hereof,
and the costs and expenses payable to each such jurisdiction for con- tinuing
qualification therein.
8. Expenses of Xxxxxxxx Xxxxxxxx. Xxxxxxxx Xxxxxxxx shall bear all
costs and expenses of (i) preparing, printing and distributing any materials not
prepared by the Fund and other materials used by Xxxxxxxx Xxxxxxxx in connection
with the sale of Class A Shares under this Contract, including the additional
cost of printing copies of prospectuses, statements of additional information,
and annual and interim shareholder reports other than copies thereof required
for distribution to existing shareholders or for filing with any federal or
state securities authorities; (ii) any expenses of advertising incurred by
Xxxxxxxx Xxxxxxxx in connection with such offering; (iii) the expenses of
registration or qualification of Xxxxxxxx Xxxxxxxx as a broker or dealer under
federal or state laws and the expenses of continuing such registration or
qualification; and (iv) all compensation paid to Xxxxxxxx Xxxxxxxx' employees
and others for selling Class A Shares, and all expenses of Xxxxxxxx Xxxxxxxx,
- 5 -
its employees and others who engage in or support the sale of Class A Shares as
may be incurred in connection with their sales efforts.
9. Indemnification.
(a) The Fund agrees to indemnify, defend and hold Xxxxxxxx Xxxxxxxx,
its officers and directors, and any person who controls Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx, its officers,
directors or any such controlling person may incur under the 1933 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 the Registration
Statement or any related prospectus ('Prospectus') or arising out of or based
upon any omission, or alleged omission, to state a material fact required to be
stated in the Registration Statement or Prospectus or necessary to make the
statements therein not misleading, except insofar as such claims, demands,
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 upon and in
conformity with information furnished in writing by Xxxxxxxx Xxxxxxxx to the
Fund for use in the Registration Statement or Prospectus; provided, however,
that this indemnity agreement shall not inure to the benefit of any person who
is also an officer or trustee of the Fund or who controls the Fund within the
meaning of Section 15 of the 1933 Act, unless a court of competent jurisdiction
shall determine, or it shall have been determined by controlling precedent, that
such result would not be against public policy as expressed in the 1933 Act; and
further provided, that in no event shall anything contained herein be so
construed as to protect Xxxxxxxx Xxxxxxxx against any liability to the Fund or
to the shareholders of any Series to which Xxxxxxxx Xxxxxxxx would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations under this Contract. The Fund shall not be liable to Xxxxxxxx
Xxxxxxxx under this indemnity agreement with respect to any claim made against
Xxxxxxxx Xxxxxxxx or any person indemnified unless Xxxxxxxx Xxxxxxxx or other
such person shall have notified the Fund in writing of the claim within a
reason- able time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon Xxxxxxxx
Xxxxxxxx or such other person (or after Xxxxxxxx Xxxxxxxx or the person shall
have received notice of service on any designated agent). However, failure to
notify the Fund of any claim shall not relieve the Fund from any liability which
it may have to Xxxxxxxx Xxxxxxxx or any person against whom
- 6 -
such action is brought otherwise than on account of this indemnity agreement.
The Fund 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 claims
subject to this indemnity agreement. If the Fund elects to assume the defense of
any such claim, the defense shall be conducted by counsel chosen by the Fund and
satisfactory to the indemnified defendants in the suit. In the event that the
Fund elects to assume the defense of any suit and retai n counsel, the
indemnified defendants shall bear the fees and expenses of any additional
counsel retained by them. If the Fund does not elect to assume the defense of a
suit, it will reimburse the indemnified defendants for the reasonable fees and
expenses of any counsel retained by the indemnified defendants. The Fund agrees
to notify Xxxxxxxx Xxxxxxxx promptly of the commencement of any litigation or
proceedings against it or any of its officers or trustees in connection with the
issuance or sale of any of its Class A Shares.
(b) The Fund's indemnification agreement contained in this Section 9
will remain operative and in full force and effect regardless of any
investigation made by or on behalf of Xxxxxxxx Xxxxxxxx, its officers and
directors, or any controlling person, and will survive the delivery of any
shares of the Fund.
(c) Xxxxxxxx Xxxxxxxx agrees to indemnify, defend, and hold the Fund,
its officers and trustees 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 cost of
investigating or defending against such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Fund, its trustees or
officers, or any such controlling person may incur under the 1933 Act or under
common law or otherwise arising out of or based upon any alleged untrue
statement of a material fact contained in information furnished in writing by
Xxxxxxxx Xxxxxxxx to the Fund for use in the Registration Statement, or arising
out of or based upon any alleged omission to state a material fact in connection
with such information required to be stated in the Registration Statement
necessary to make such information not misleading. Xxxxxxxx Xxxxxxxx shall have
the right to control the defense of any action contemplated by this Section
9(c), with counsel of its own choosing, satisfactory to the Fund, unless the
action is not based solely upon an alleged misstatement or omission on Xxxxxxxx
Xxxxxxxx' part. In such event, the Fund, its officers or trustees or controlling
persons will each have the right to participate in the defense or preparation of
the defense of the action. In the event that Xxxxxxxx Xxxxxxxx elects to assume
the defense of any suit and retain counsel, the defendants in the suit shall
bear the fees and expenses of any additional counsel retained by them. If
Xxxxxxxx Xxxxxxxx does not elect to assume the defense of any
- 7 -
suit, it will reimburse the indemnified defendants in the suit for the
reasonable fees and expenses of any counsel retained by them.
(d) Xxxxxxxx Xxxxxxxx shall not be liable to the Fund under this
indemnity agreement with respect to any claim made against the Fund or any
person indemnified unless the Fund or other such person shall have notified
Xxxxxxxx Xxxxxxxx in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Fund or such other person (or after
the Fund shall have received notice of service on any designated agent).
Xxxxxxxx Xxxxxxxx will not be obligated to indemnify any entity or person
against any liability to which the Fund, its officers and trustees, or any
controlling person would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in performance of, or reckless disregard of, the
obligations and duties set forth in this Agreement.
10. Limitation of Liability of the Trustees and Shareholders of the
Fund. The trustees of the Fund and the shareholders of any Series shall not be
liable for any obligations of the Fund or any Series under this Contract, and
Xxxxxxxx Xxxxxxxx agrees that, in asserting any rights or claims under this
Contract, it shall look only to the assets and property of the Fund or the
particular Series in settlement of such right or claims, and not to such
trustees or shareholders. The Fund represents that a copy of the Declaration of
Trust is on file with the Secretary of the Commonwealth of Massachusetts and
with the Boston City Clerk.
11. Services Provided to the Fund by Employees of Xxxxxxxx Xxxxxxxx.
Any person, even though also an officer, director, employee or agent of Xxxxxxxx
Xxxxxxxx, who may be or become an officer, trustee, employee or agent of the
Fund, shall be deemed, when rendering services to the Fund or acting in any
business of the Fund, to be rendering such services to or acting solely for the
Fund and not as an officer, director, employee or agent or one under the control
or direction of Xxxxxxxx Xxxxxxxx even though paid by Xxxxxxxx Xxxxxxxx.
12. Duration and Termination.
(a) This Contract shall become effective upon the date hereabove
written, provided that, with respect to any Series, this Contract shall not take
effect unless such action has first been approved by vote of a majority of the
Board and by vote of a majority of those trustees of the Fund who are not
interested persons of the Fund, and have no direct or indirect financial
interest in the operation of the Plan relating to the Series or in any
agreements related thereto (all such trustees collectively
- 8 -
being referred to herein as the 'Independent Trustees') cast in person at a
meeting called for the purpose of voting on such action.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for one year from the above written date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually (i) by a vote of a majority of the Independent Trustees, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board or by vote of a majority of the outstanding voting securities of
the Class A Shares of each affected Series.
(c) Notwithstanding the foregoing, with respect to any Series, this
Contract may be terminated at any time, without the payment of any penalty, by
vote of the Board, by vote of a majority of the Independent Trustees or by vote
of a majority of the outstanding voting securities of the Class A Shares of such
Series on sixty days' written notice to Xxxxxxxx Xxxxxxxx or by Xxxxxxxx
Xxxxxxxx at any time, without the payment of any penalty, on sixty days' written
notice to the Fund or such Series. This Contract will automatically terminate in
the event of its assignment.
(d) Termination of this Contract with respect to any given Series
shall in no way affect the continued validity of this Contract or the
performance thereunder with respect to any other Series.
13. Amendment of this Contract. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
14. Governing Law. This Contract shall be construed in accordance with
the laws of the State of Delaware and the 1940 Act, provided, however, that
Section 10 above will be construed in accordance with the laws of the
Commonwealth of Massachusetts. To the extent that the applicable laws of the
State of Delaware or the Commonwealth of Massachusetts conflict with the
applicable provisions of the l940 Act, the latter shall control.
15. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient upon receipt in writing at the
other party's principal offices.
16. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their
- 9 -
construction or effect. If any provision of this Contract shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Contract shall not be affected thereby. This Contract shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors. As used in this Contract, the terms 'majority of the outstanding
voting securities,' 'interested person' and 'assignment' shall have the same
meaning as such terms have in the l940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first above
written.
ATTEST: XXXXXX, PEABODY INVESTMENT TRUST II
__________________________________ By: __________________________________
ATTEST: XXXXXXXX XXXXXXXX ASSET MANAGEMENT INC.
__________________________________ By: __________________________________
- 10 -
XXXXXX, PEABODY INVESTMENT TRUST II
DISTRIBUTION CONTRACT
CLASS B SHARES
CONTRACT made as of January __, 1995, between XXXXXX, XXXXXXX
INVESTMENT TRUST II, a Massachusetts business trust ('Fund'), and XXXXXXXX
XXXXXXXX ASSET MANAGEMENT INC., a Delaware corporation ('Xxxxxxxx Xxxxxxxx').
WHEREAS the Fund is registered under the Investment Company Act of
l940, as amended ('l940 Act'), as an open-end management investment company and
currently has two distinct series of shares of beneficial interest ('Series'),
which correspond to distinct portfolios and have been designated as the Xxxxxx,
Peabody Emerging Markets Equity Fund and the Xxxxxx, Xxxxxxx Municipal Bond
Fund; and
WHEREAS the Fund's board of trustees ('Board') has established an
unlimited number of shares of beneficial interest of the above-referenced Series
as Class B shares ('Class B Shares'); and
WHEREAS the Fund has adopted a Plan of Distribution pursuant to Rule
12b-1 under the 1940 Act ('Plan') and desires to retain Xxxxxxxx Xxxxxxxx as
principal distributor in connection with the offering and sale of the Class B
Shares of the above-referenced Series and of such other Series as may hereafter
be designated by the Board and have Class B Shares established; and
WHEREAS Xxxxxxxx Xxxxxxxx is willing to act as principal distributor
of the Class B Shares of each such Series on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints Xxxxxxxx Xxxxxxxx as its
exclusive agent to be the principal distributor to sell and to arrange for the
sale of the Class B Shares on the terms and for the period set forth in this
Contract. Xxxxxxxx Xxxxxxxx hereby accepts such appointment and agrees to act
hereunder. It is understood, however, that this appointment does not preclude
sales of the Class B Shares directly through the Fund's transfer agent in the
manner set forth in the Registration Statement. As used in this Contract, the
term 'Registration
Statement' shall mean the currently effective registration statement of the
Fund, and any supplements thereto, under the Securities Act of 1933, as amended
('1933 Act'), and the 1940 Act.
2. Services and Duties of Xxxxxxxx Xxxxxxxx.
(a) Xxxxxxxx Xxxxxxxx agrees to solicit orders for the sale of shares
of the Fund and to undertake advertising and promotion that it believes
reasonable in connection with such solicitation as agent for the Fund and upon
the terms described in the Registration Statement.
(b) Upon the later of the date of this Contract or the initial
offering of the Class B Shares to the public by a Series, Xxxxxxxx Xxxxxxxx will
hold itself available to receive purchase orders, satisfactory to Xxxxxxxx
Xxxxxxxx, for Class B Shares of that Series and will accept such orders on
behalf of the Fund as of the time of receipt of such orders and promptly
transmit such orders as are accepted to the Fund's transfer agent. Purchase
orders shall be deemed effective at the time and in the manner set forth in the
Registration Statement.
(c) Xxxxxxxx Xxxxxxxx in its discretion may enter into agreements to
sell Class B Shares to such registered and qualified retail dealers, including
but not limited to PaineWebber Incorporated ('PaineWebber'), as it may select.
In making agreements with such dealers, Xxxxxxxx Xxxxxxxx shall act only as
principal and not as agent for the Fund.
(d) The offering price of the Class B Shares of each Series shall be
the net asset value per Share as next determined by the Fund following receipt
of an order at Xxxxxxxx Xxxxxxxx' principal office. The Fund shall promptly
furnish Xxxxxxxx Xxxxxxxx with a statement of each computation of net asset
value.
(e) Xxxxxxxx Xxxxxxxx shall not be obligated to sell any certain
number of Class B Shares.
(f) To facilitate redemption of Class B Shares by shareholders
directly or through dealers, Xxxxxxxx Xxxxxxxx is authorized but not required on
behalf of the Fund to repurchase Class B Shares presented to it by shareholders
and dealers at the price determined in accordance with, and in the manner set
forth in, the Registration Statement. Such price shall reflect the subtraction
of the contingent deferred sales charge, if any, computed in accordance with and
in the manner set forth in the Registration Statement.
(g) Xxxxxxxx Xxxxxxxx shall provide ongoing shareholder services,
which include responding to shareholder inquiries, providing shareholders with
information on their
- 2 -
investments in the Class B Shares and any other services now or hereafter deemed
to be appropriate subjects for the payments of 'service fees' under Section
26(d) of the National Association of Securities Dealers, Inc. ('NASD') Rules of
Fair Practice (collectively, 'service activities').
(h) Xxxxxxxx Xxxxxxxx shall have the right to use any list of
shareholders of the Fund or any other list of investors which it obtains in
connection with its provision of services under this Contract; provided,
however, that Xxxxxxxx Xxxxxxxx shall not sell or knowingly provide such list or
lists to any unaffiliated person.
3. Authorization to Enter into Exclusive Dealer Agreements and to
Delegate Duties as Distributor. With respect to the Class B Shares of any or all
Series, Xxxxxxxx Xxxxxxxx may enter into an exclusive dealer agreement with
PaineWebber or any other registered and qualified dealer with respect to sales
of the Class B Shares or the provision of service activities. In a separate
contract or as part of any such exclusive dealer agreement, Xxxxxxxx Xxxxxxxx
also may delegate to PaineWebber or another registered and qualified dealer
('sub-distributor') any or all of its duties specified in this Contract,
provided that such separate contract or exclusive dealer agreement imposes on
the sub-distributor bound thereby all applicable duties and conditions to which
Xxxxxxxx Xxxxxxxx is subject under this Contract, and further provided that such
separate contract or exclusive dealer agreement meets all requirements of the
1940 Act and rules thereunder.
4. Services Not Exclusive. The services furnished by Xxxxxxxx Xxxxxxxx
hereunder are not to be deemed exclusive and Xxxxxxxx Xxxxxxxx shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby. Nothing in this Contract shall limit or restrict the
right of any director, officer or employee of Xxxxxxxx Xxxxxxxx, who may also be
a trustee, officer or employee of the Fund, to engage in any other business or
to devote his or her time and attention in part to the management or other
aspects of any other business, whether of a similar or a dissimilar nature.
5. Compensation.
(a) As compensation for its service activities under this contract
with respect to the Class B Shares, Xxxxxxxx Xxxxxxxx shall receive from the
Fund a service fee at the rate and under the terms and conditions of the Plan
adopted by the Fund, as such Plan is amended from time to time, and subject to
any further limitations on such fee as the Board may impose.
- 3 -
(b) As compensation for its activities under this contract with
respect to the distribution of the Class B Shares, Xxxxxxxx Xxxxxxxx shall
receive from the Fund a distribution fee at the rate and under the terms and
conditions of the Plan adopted by the Fund with respect to the Series, as such
Plan is amended from time to time, and subject to any further limitations on
such fee as the Board may impose.
(c) As compensation for its activities under this contract with
respect to the distribution of the Class B Shares, Xxxxxxxx Xxxxxxxx shall
receive all contingent deferred sales charges imposed on redemption of Class A
Shares of each Series. Whether and at what rate a contingent deferred sales
charge will be imposed with respect to a redemption shall be determined in
accordance and in the manner set forth in the Registration Statement.
(d) Xxxxxxxx Xxxxxxxx may reallow any or all of the distribution or
service fees, or contingent deferred sales charges, which it is paid under this
Contract to such dealers as Xxxxxxxx Xxxxxxxx may from time to time determine.
6. Duties of the Fund.
(a) The Fund reserves the right at any time to withdraw offering Class
B Shares of any or all Series by written notice to Xxxxxxxx Xxxxxxxx at its
principal office.
(b) The Fund shall determine in its sole discretion whether
certificates shall be issued with respect to the Class B Shares. If the Fund has
determined that certificates shall be issued, the Fund will not cause
certificates representing Class B Shares to be issued unless so requested by
shareholders. If such request is transmitted by Xxxxxxxx Xxxxxxxx, the Fund will
cause certificates evidencing Class B Shares to be issued in such names and
denominations as Xxxxxxxx Xxxxxxxx shall from time to time direct.
(c) The Fund shall keep Xxxxxxxx Xxxxxxxx fully informed of its
affairs and shall make available to Xxxxxxxx Xxxxxxxx copies of all information,
financial statements, and other papers which Xxxxxxxx Xxxxxxxx may reasonably
request for use in connection with the distribution of Class B Shares,
including, without limitation, certified copies of any financial statements
prepared for the Fund by its independent public accountant and such reasonable
number of copies of the most current prospectus, statement of additional
information, and annual and interim reports of any Series as Xxxxxxxx Xxxxxxxx
may request, and the Fund shall cooperate fully in the efforts of Xxxxxxxx
Xxxxxxxx to sell and arrange for the sale of the Class B Shares of the Series
and in the performance of Xxxxxxxx Xxxxxxxx under this Contract.
- 4 -
(d) The Fund shall take, from time to time, all necessary action,
including payment of the related filing fee, as may be necessary to register the
Class B Shares under the 1933 Act to the end that there will be available for
sale such number of Class B Shares as Xxxxxxxx Xxxxxxxx may be expected to sell.
The Fund agrees to file, from time to time, such amendments, reports, and other
documents as may be necessary in order that there will be no untrue statement of
a material fact in the Registration Statement, nor any omission of a material
fact which omission would make the statements therein misleading.
(e) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of Class B Shares of each Series for sale
under the securities laws of such states or other jurisdictions as Xxxxxxxx
Xxxxxxxx and the Fund may approve, and, if necessary or appropriate in
connection therewith, to qualify and maintain the qualification of the Fund as a
broker or dealer in such jurisdictions; provided that the Fund shall not be
required to execute a general consent to the service of process in any state.
Xxxxxxxx Xxxxxxxx shall furnish such information and other material relating to
its affairs and activities as may be required by the Fund in connection with
such qualifications.
7. Expenses of the Fund. The Fund shall bear all costs and expenses of
registering the Class B Shares with the Securities and Exchange Commission and
state and other regulatory bodies, and shall assume expenses related to
communications with shareholders of each Series, including (i) fees and
disbursements of its counsel and independent public accountant; (ii) the
preparation, filing and printing of registration statements and/or prospectuses
or statements of additional information required under the federal securities
laws; (iii) the preparation and mailing of annual and interim reports,
prospectuses, statements of additional information and proxy materials to
shareholders; and (iv) the qualifications of Class B Shares for sale and of the
Fund as a broker or dealer under the securities laws of such jurisdictions as
shall be selected by the Fund and Xxxxxxxx Xxxxxxxx pursuant to Paragraph 6(e)
hereof, and the costs and expenses payable to each such jurisdiction for
continuing qualification therein.
8. Expenses of Xxxxxxxx Xxxxxxxx. Xxxxxxxx Xxxxxxxx shall bear all
costs and expenses of (i) preparing, printing and distributing any materials not
prepared by the Fund and other materials used by Xxxxxxxx Xxxxxxxx in connection
with the sale of Class B Shares under this Contract, including the additional
cost of printing copies of prospectuses, statements of additional information,
and annual and interim shareholder reports other than copies thereof required
for distribution to existing shareholders or for filing with any federal or
state securities authorities; (ii) any expenses of advertising incurred by
- 5 -
Xxxxxxxx Xxxxxxxx in connection with such offering; (iii) the expenses of
registration or qualification of Xxxxxxxx Xxxxxxxx as a broker or dealer under
federal or state laws and the expenses of continuing such registration or
qualification; and (iv) all compensation paid to Xxxxxxxx Xxxxxxxx' employees
and others for selling Class B Shares, and all expenses of Xxxxxxxx Xxxxxxxx,
its employees and others who engage in or support the sale of Class B Shares as
may be incurred in connection with their sales efforts.
9. Indemnification.
(a) The Fund agrees to indemnify, defend and hold Xxxxxxxx Xxxxxxxx,
its officers and directors, and any person who controls Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx, its officers,
directors or any such controlling person may incur under the 1933 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 the Registration
Statement or any related prospectus ('Prospectus') or arising out of or based
upon any omission, or alleged omission, to state a material fact required to be
stated in the Registration Statement or Prospectus or necessary to make the
statements therein not misleading, except insofar as such claims, demands,
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 upon and in
conformity with information furnished in writing by Xxxxxxxx Xxxxxxxx to the
Fund for use in the Registration Statement or Prospectus; provided, however,
that this indemnity agreement shall not inure to the benefit of any person who
is also an officer or trustee of the Fund or who controls the Fund within the
meaning of Section 15 of the 1933 Act, unless a court of competent jurisdiction
shall determine, or it shall have been determined by controlling precedent, that
such result would not be against public policy as expressed in the 1933 Act; and
further provided, that in no event shall anything contained herein be so
construed as to protect Xxxxxxxx Xxxxxxxx against any liability to the Fund or
to the shareholders of any Series to which Xxxxxxxx Xxxxxxxx would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations under this Contract. The Fund shall not be liable to Xxxxxxxx
Xxxxxxxx under this indemnity agreement with respect to any claim made against
Xxxxxxxx Xxxxxxxx or any person indemnified unless Xxxxxxxx Xxxxxxxx or other
such person shall have notified the Fund in writing of the claim within a
reasonable time after the summons or other first written notification
- 6 -
giving information of the nature of the claim shall have been served upon
Xxxxxxxx Xxxxxxxx or such other person (or after Xxxxxxxx Xxxxxxxx or the person
shall have received notice of service on any designated agent). However, failure
to notify the Fund of any claim shall not relieve the Fund from any liability
which it may have to Xxxxxxxx Xxxxxxxx or any person against whom such action is
brought otherwise than on account of this indemnity agreement. The Fund 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 claims subject to this
indemnity agreement. If the Fund elects to assume the defense of any such claim,
the defense shall be conducted by counsel chosen by the Fund and satisfactory to
the indemnified defendants in the suit. In the event that the Fund elects to
assume the defense of any suit and retain counsel, the indemnified defendants
shall bear the fees and expenses of any additional counsel retained by them. If
the Fund does not elect to assume the defense of a suit, it will reimburse the
indemnified defendants for the reasonable fees and expenses of any counsel
retained by the indemnified defendants. The Fund agrees to notify Xxxxxxxx
Xxxxxxxx promptly of the commencement of any litigation or proceedings against
it or any of its officers or trustees in connection with the issuance or sale of
any of its Class B Shares.
(b) The Fund's indemnification agreement contained in this Section 9
will remain operative and in full force and effect regardless of any
investigation made by or on behalf of Xxxxxxxx Xxxxxxxx, its officers and
directors, or any controlling person, and will survive the delivery of any
shares of the Fund.
(c) Xxxxxxxx Xxxxxxxx agrees to indemnify, defend, and hold the Fund,
its officers and trustees 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 cost of
investigating or defending against such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Fund, its trustees or
officers, or any such controlling person may incur under the 1933 Act or under
common law or otherwise arising out of or based upon any alleged untrue
statement of a material fact contained in information furnished in writing by
Xxxxxxxx Xxxxxxxx to the Fund for use in the Registration Statement, or arising
out of or based upon any alleged omission to state a material fact in connection
with such information required to be stated in the Registration Statement
necessary to make such information not misleading. Xxxxxxxx Xxxxxxxx shall have
the right to control the defense of any action contemplated by this Section
9(c), with counsel of its own choosing, satisfactory to the Fund, unless the
action is not based solely upon an alleged misstatement or omission on Xxxxxxxx
Xxxxxxxx' part. In such event, the Fund, its officers or trustees or
- 7 -
controlling persons will each have the right to participate in the defense or
preparation of the defense of the action. In the event that Xxxxxxxx Xxxxxxxx
elects to assume the defense of any suit and retain counsel, the defendants in
the suit shall bear the fees and expenses of any additional counsel retained by
them. If Xxxxxxxx Xxxxxxxx does not elect to assume the defense of any suit, it
will reimburse the indemnified defendants in the suit for the reasonable fees
and expenses of any counsel retained by them.
(d) Xxxxxxxx Xxxxxxxx shall not be liable to the Fund under this
indemnity agreement with respect to any claim made against the Fund or any
person indemnified unless the Fund or other such person shall have notified
Xxxxxxxx Xxxxxxxx in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Fund or such other person (or after
the Fund shall have received notice of service on any designated agent).
Xxxxxxxx Xxxxxxxx will not be obligated to indemnify any entity or person
against any liability to which the Fund, its officers and trustees, or any
controlling person would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in performance of, or reckless disregard of, the
obligations and duties set forth in this Agreement.
10. Limitation of Liability of the Trustees and Shareholders of the
Fund. The trustees of the Fund and the shareholders of any Series shall not be
liable for any obligations of the Fund or any Series under this Contract, and
Xxxxxxxx Xxxxxxxx agrees that, in asserting any rights or claims under this
Contract, it shall look only to the assets and property of the Fund or the
particular Series in settlement of such right or claims, and not to such
trustees or shareholders. The Fund represents that a copy of the Declaration of
Trust is on file with the Secretary of the Commonwealth of Massachusetts and
with the Boston City Clerk.
11. Services Provided to the Fund by Employees of Xxxxxxxx Xxxxxxxx.
Any person, even though also an officer, director, employee or agent of Xxxxxxxx
Xxxxxxxx, who may be or become an officer, trustee, employee or agent of the
Fund, shall be deemed, when rendering services to the Fund or acting in any
business of the Fund, to be rendering such services to or acting solely for the
Fund and not as an officer, director, employee or agent or one under the control
or direction of Xxxxxxxx Xxxxxxxx even though paid by Xxxxxxxx Xxxxxxxx.
12. Duration and Termination.
(a) This Contract shall become effective upon the date hereabove
written, provided that, with respect to any Series,
- 8 -
this Contract shall not take effect unless such action has first been approved
by vote of a majority of the Board and by vote of a majority of those trustees
of the Fund who are not interested persons of the Fund, and have no direct or
indirect financial interest in the operation of the Plan relating to the Series
or in any agreements related thereto (all such trustees collectively being
referred to herein as the 'Independent Trustees') cast in person at a meeting
called for the purpose of voting on such action.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for one year from the above written date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually (i) by a vote of a majority of the Independent Trustees, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board or by vote of a majority of the outstanding voting securities of
the Class B Shares of each affected Series.
(c) Notwithstanding the foregoing, with respect to any Series, this
Contract may be terminated at any time, without the payment of any penalty, by
vote of the Board, by vote of a majority of the Independent Trustees or by vote
of a majority of the outstanding voting securities of the Class B Shares of such
Series on sixty days' written notice to Xxxxxxxx Xxxxxxxx or by Xxxxxxxx
Xxxxxxxx at any time, without the payment of any penalty, on sixty days' written
notice to the Fund or such Series. This Contract will automatically terminate in
the event of its assignment.
(d) Termination of this Contract with respect to any given Series
shall in no way affect the continued validity of this Contract or the
performance thereunder with respect to any other Series.
13. Amendment of this Contract. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
14. Governing Law. This Contract shall be construed in accordance with
the laws of the State of Delaware and the 1940 Act, provided, however, that
Section 10 above will be construed in accordance with the laws of the
Commonwealth of Massachusetts. To the extent that the applicable laws of the
State of Delaware or the Commonwealth of Massachusetts conflict with the
applicable provisions of the l940 Act, the latter shall control.
- 9 -
15. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient upon receipt in writing at the
other party's principal offices.
16. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms 'majority of the outstanding voting securities,' 'interested person'
and 'assignment' shall have the same meaning as such terms have in the l940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first above
written.
ATTEST: XXXXXX, PEABODY INVESTMENT TRUST II
__________________________________ By: _________________________________
ATTEST: XXXXXXXX XXXXXXXX ASSET MANAGEMENT INC.
__________________________________ By: _________________________________
- 10 -
XXXXXX, PEABODY INVESTMENT TRUST II
DISTRIBUTION CONTRACT
CLASS C SHARES
CONTRACT made as of January __, 1995, between XXXXXX, XXXXXXX
INVESTMENT TRUST II, a Massachusetts business trust ('Fund'), and XXXXXXXX
XXXXXXXX ASSET MANAGEMENT INC., a Delaware corporation ('Xxxxxxxx Xxxxxxxx').
WHEREAS the Fund is registered under the Investment Company Act of
l940, as amended ('l940 Act'), as an open-end management investment company and
currently has two distinct series of shares of beneficial interest ('Series'),
which correspond to distinct portfolios and have been designated as the Xxxxxx,
Peabody Emerging Markets Equity Fund and the Xxxxxx, Xxxxxxx Municipal Bond
Fund; and
WHEREAS the Fund's board of trustees ('Board') has established an
unlimited number of shares of beneficial interest of the above-referenced Series
as Class C shares ('Class C Shares'); and
WHEREAS the Fund desires to retain Xxxxxxxx Xxxxxxxx as principal
distributor in connection with the offering and sale of the Class C Shares of
the above-referenced Series and of such other Series as may hereafter be
designated by the Board and have Class C Shares established; and
WHEREAS Xxxxxxxx Xxxxxxxx is willing to act as principal distributor
of the Class C Shares of each such Series on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints Xxxxxxxx Xxxxxxxx as its
exclusive agent to be the principal distributor to sell and to arrange for the
sale of the Class C Shares on the terms and for the period set forth in this
Contract. Xxxxxxxx Xxxxxxxx hereby accepts such appointment and agrees to act
hereunder. It is understood, however, that this appointment does not preclude
sales of the Class C Shares directly through the Fund's transfer agent in the
manner set forth in the Registration Statement. As used in this Contract, the
term 'Registration
Statement' shall mean the currently effective registration statement of the
Fund, and any supplements thereto, under the Securities Act of 1933, as amended
('1933 Act'), and the 1940 Act.
2. Services and Duties of Xxxxxxxx Xxxxxxxx.
(a) Xxxxxxxx Xxxxxxxx agrees to solicit orders for the sale of Class C
shares of the Fund and to undertake advertising and promotion it believes
reasonable in connection with such solicitation as agent for the Fund and upon
the terms described in the Registration Statement.
(b) Upon the later of the date of this Contract or the initial
offering of the Class C Shares by a Series, Xxxxxxxx Xxxxxxxx will hold itself
available to receive purchase orders, satisfactory to Xxxxxxxx Xxxxxxxx, for
Class C Shares of that Series and will accept such orders on behalf of the Fund
as of the time of receipt of such orders and promptly transmit such orders as
are accepted to the Fund's transfer agent. Purchase orders shall be deemed
effective at the time and in the manner set forth in the Registration Statement.
(c) Xxxxxxxx Xxxxxxxx in its discretion may enter into agreements to
sell Class C Shares to such registered and qualified retail dealers, including
but not limited to PaineWebber Incorporated ('PaineWebber'), as it may select.
In making agreements with such dealers, Xxxxxxxx Xxxxxxxx shall act only as
principal and not as agent for the Fund.
(d) The offering price of the Class C Shares of each Series shall be
the net asset value per Share as next determined by the Fund following receipt
of an order at Xxxxxxxx Xxxxxxxx' principal office. The Fund shall promptly
furnish Xxxxxxxx Xxxxxxxx with a statement of each computation of net asset
value.
(e) Xxxxxxxx Xxxxxxxx shall not be obligated to sell any certain
number of Class C Shares.
(f) To facilitate redemption of Class C Shares by shareholders
directly or through dealers, Xxxxxxxx Xxxxxxxx is authorized but not required on
behalf of the Fund to repurchase Class C Shares presented to it by shareholders
and dealers at the price determined in accordance with, and in the manner set
forth in, the Registration Statement.
(g) Xxxxxxxx Xxxxxxxx shall have the right to use any list of
shareholders of the Fund or any other list of investors which it obtains in
connection with its provision of services under this Contract; provided,
however, that Xxxxxxxx Xxxxxxxx shall not sell or knowingly provide such list or
lists to any unaffiliated person.
3. Authorization to Enter into Exclusive Dealer Contracts and to
Delegate Duties as Distributor. With respect to the Class C Shares of any or all
Series, Xxxxxxxx Xxxxxxxx may enter into an exclusive dealer agreement with
PaineWebber or any other registered and qualified dealer with respect to sales
of the Class C Shares. In a separate contract or as part of any such exclusive
dealer agreement, Xxxxxxxx Xxxxxxxx also may delegate to PaineWebber or another
registered and qualified dealer ('sub-distributor') any or all of its duties
specified in this Contract, provided that such separate contract or exclusive
dealer agreement imposes on the sub-distributor bound thereby all applicable
duties and conditions to which Xxxxxxxx Xxxxxxxx is subject under this Contract,
and further provided that such separate contract or exclusive dealer agreement
meets all requirements of the 1940 Act and rules thereunder.
4. Services Not Exclusive. The services furnished by Xxxxxxxx Xxxxxxxx
hereunder are not to be deemed exclusive and Xxxxxxxx Xxxxxxxx shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby. Nothing in this Contract shall limit or restrict the
right of any director, officer or employee of Xxxxxxxx Xxxxxxxx, who may also be
a trustee, officer or employee of the Fund, to engage in any other business or
to devote his or her time and attention in part to the management or other
aspects of any other business, whether of a similar or a dissimilar nature.
5. Compensation and Reimbursement of Distribution Expenses. The Fund
shall have no obligation to compensate or reimburse Xxxxxxxx Xxxxxxxx for any
services performed by it hereunder.
6. Duties of the Fund.
(a) The Fund reserves the right at any time to withdraw offering Class
C Shares of any or all Series by written notice to Xxxxxxxx Xxxxxxxx at its
principal office.
(b) The Fund shall determine in its sole discretion whether
certificates shall be issued with respect to the Class C Shares. If the Fund has
determined that certificates shall be issued, the Fund will not cause
certificates representing Class C Shares to be issued unless so requested by
shareholders. If such request is transmitted by Xxxxxxxx Xxxxxxxx, the Fund will
cause certificates evidencing Class C Shares to be issued in such names and
denominations as Xxxxxxxx Xxxxxxxx shall from time to time direct.
(c) The Fund shall keep Xxxxxxxx Xxxxxxxx fully informed of its
affairs and shall make available to Xxxxxxxx Xxxxxxxx copies of all information,
financial statements, and other papers which Xxxxxxxx Xxxxxxxx may reasonably
request for use in connection with the distribution of Class C Shares,
including, without limitation, certified copies of any financial statements
prepared for the Fund by its independent public accountant and such reasonable
number of copies of the most current prospectus, statement of additional
information, and annual and interim reports of any Series as Xxxxxxxx Xxxxxxxx
may request, and the Fund shall cooperate fully in the efforts of Xxxxxxxx
Xxxxxxxx to sell and arrange for the sale of the Class C Shares of the Series
and in the performance of Xxxxxxxx Xxxxxxxx under this Contract.
(d) The Fund shall take, from time to time, all necessary action,
including payment of the related filing fee, as may be necessary to register the
Class C Shares under the 1933 Act to the end that there will be available for
sale such number of Class C Shares as Xxxxxxxx Xxxxxxxx may be expected to sell.
The Fund agrees to file, from time to time, such amendments, reports, and other
documents as may be necessary in order that there will be no untrue statement of
a material fact in the Registration Statement, nor any omission of a material
fact which omission would make the statements therein misleading.
(e) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of Class C Shares of each Series for sale
under the securities laws of such states or other jurisdictions as Xxxxxxxx
Xxxxxxxx and the Fund may approve, and, if necessary or appropriate in
connection therewith, to qualify and maintain the qualification of the Fund as a
broker or dealer in such jurisdictions; provided that the Fund shall not be
required to consent to service of process in any state. Xxxxxxxx Xxxxxxxx shall
furnish such information and other material relating to its affairs and
activities as may be required by the Fund in connection with such
qualifications.
7. Expenses of the Fund. The Fund shall bear all costs and expenses of
registering the Class C Shares with the Securities and Exchange Commission and
state and other regulatory bodies, and shall assume expenses related to
communications with shareholders of each Series, including (i) fees and
disbursements of its counsel and independent public accountant; (ii) the
preparation, filing and printing of registration statements and/or prospectuses
or statements of additional information required under the federal securities
laws; (iii) the preparation and mailing of annual and interim reports,
prospectuses, statements of additional information and proxy materials to
shareholders; and (iv) the qualifications of Class C Shares for sale and of the
Fund as a broker or dealer under the securities laws of such jurisdictions as
shall be selected by the Fund and Xxxxxxxx Xxxxxxxx pursuant to Paragraph 6(e)
hereof, and the costs and expenses payable to each such jurisdiction for
continuing qualification therein.
8. Expenses of Xxxxxxxx Xxxxxxxx. Xxxxxxxx Xxxxxxxx shall bear all
costs and expenses of (i) preparing, printing and distributing any materials not
prepared by the Fund and other
materials used by Xxxxxxxx Xxxxxxxx in connection with the sale of Class C
Shares under this Contract, including the additional cost of printing copies of
prospectuses, statements of additional information, and annual and interim
shareholder reports other than copies thereof required for distribution to
existing share holders or for filing with any federal or state securities
authorities; (ii) any expenses of advertising incurred by Xxxxxxxx Xxxxxxxx in
connection with such offering; (iii) the expenses of registration or
qualification of Xxxxxxxx Xxxxxxxx as a broker or dealer under federal or state
laws and the expenses of continuing such registration or qualification; and (iv)
all compensation paid to Xxxxxxxx Xxxxxxxx' employees and others for selling
Class C Shares, and all expenses of Xxxxxxxx Xxxxxxxx, its employees and others
who engage in or support the sale of Class C Shares as may be incurred in
connection with their sales efforts.
9. Indemnification.
(a) The Fund agrees to indemnify, defend and hold Xxxxxxxx Xxxxxxxx,
its officers and directors, and any person who controls Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx, its officers,
directors or any such controlling person may incur under the 1933 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 the Registration
Statement or any related prospectus ('Prospectus') or arising out of or based
upon any omission, or alleged omission, to state a material fact required to be
stated in the Registration Statement or Prospectus or necessary to make the
statements therein not misleading, except insofar as such claims, demands,
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 upon and in
conformity with information furnished in writing by Xxxxxxxx Xxxxxxxx to the
Fund for use in the Registration Statement or Prospectus; provided, however,
that this indemnity agreement shall not inure to the benefit of any person who
is also an officer or trustee of the Fund or who controls the Fund within the
meaning of Section 15 of the 1933 Act, unless a court of competent jurisdiction
shall determine, or it shall have been determined by controlling precedent, that
such result would not be against public policy as expressed in the 1933 Act; and
further provided, that in no event shall anything contained herein be so
construed as to protect Xxxxxxxx Xxxxxxxx against any liability to the Fund or
to the shareholders of any Series to which Xxxxxxxx Xxxxxxxx would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations under this Contract. The Fund shall not be
liable to Xxxxxxxx Xxxxxxxx under this indemnity agreement with respect to any
claim made against Xxxxxxxx Xxxxxxxx or any person indemnified unless Xxxxxxxx
Xxxxxxxx or other such person shall have notified the Fund in writing of the
claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon Xxxxxxxx Xxxxxxxx or such other person (or after Xxxxxxxx Xxxxxxxx
or the person shall have received notice of service on any designated agent).
However, failure to notify the Fund of any claim shall not relieve the Fund from
any liability which it may have to Xxxxxxxx Xxxxxxxx or any person against whom
such action is brought otherwise than on account of this indemnity agreement.
The Fund 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 claims
subject to this indemnity agreement. If the Fund elects to assume the defense of
any such claim, the defense shall be conducted by counsel chosen by the Fund and
satisfactory to indemnified defendants in the suit. In the event that the Fund
elects to assume the defense of any suit and retain counsel, the indemnified
defendants shall bear the fees and expenses of any additional counsel retained
by them. If the Fund does not elect to assume the defense of a suit, it will
reimburse the indemnified defendants for the reasonable fees and expenses of any
counsel retained by the indemnified defendants. The Fund agrees to notify
Xxxxxxxx Xxxxxxxx promptly of the commencement of any litigation or proceedings
against it or any of its officers or trustees in connection with the issuance or
sale of any of its Class C Shares.
(b) The Fund's indemnification agreement contained in this Section 9
will remain operative and in full force and effect regardless of any
investigation made by or on behalf of Xxxxxxxx Xxxxxxxx, its officers and
directors, or any controlling person and will survive the delivery of any shares
of the Fund.
(c) Xxxxxxxx Xxxxxxxx agrees to indemnify, defend, and hold the Fund,
its officers and trustees, 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 cost of
investigating or defending against such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Fund, its trustees or
officers, or any such controlling person may incur under the 1933 Act or under
common law or otherwise arising out of or based upon any alleged untrue
statement of a material fact contained in information furnished in writing by
Xxxxxxxx Xxxxxxxx to the Fund for use in the Registration Statement, arising out
of or based upon any alleged omission to state a material fact in connection
with such information required to be stated in the Registration Statement
necessary to make such information not misleading, or arising out of any
agreement between Xxxxxxxx Xxxxxxxx and any retail dealer. Xxxxxxxx Xxxxxxxx
shall have the right to control the defense of any action
contemplated by this Section 9(c), with counsel of its own choosing,
satisfactory to the Fund, unless the action is not based solely upon an alleged
misstatement or omission on Xxxxxxxx Xxxxxxxx' part. In such event, the Fund,
its officers or trustees or controlling persons will each have the right to
participate in the defense or preparation of the defense of the action. In the
event that Xxxxxxxx Xxxxxxxx elects to assume the defense of any suit and retain
counsel, the defendants in the suit shall bear the fees and expenses of any
additional counsel retained by them. If Xxxxxxxx Xxxxxxxx does not elect to
assume the defense of any suit, it will reimburse the indemnified defendants in
the suit for the reasonable fees and expenses of any counsel retained by them.
10. Limitation of Liability of the Trustees and Shareholders of the
Fund. The trustees of the Fund and the shareholders of any Series shall not be
liable for any obligations of the Fund or any Series under this Contract, and
Xxxxxxxx Xxxxxxxx agrees that, in asserting any rights or claims under this
Contract, it shall look only to the assets and property of the Fund or the
particular Series in settlement of such right or claims, and not to such
trustees or shareholders. The Fund represents that a copy of the Declaration of
Trust is on file with the Secretary of the Commonwealth of Massachusetts and
with the Boston City Clerk.
11. Services Provided to the Fund by Employees of Xxxxxxxx Xxxxxxxx.
Any person, even though also an officer, director, employee or agent of Xxxxxxxx
Xxxxxxxx, who may be or become an officer, trustee, employee or agent of the
Fund, shall be deemed, when rendering services to the Fund or acting in any
business of the Fund, to be rendering such services to or acting solely for the
Fund and not as an officer, director, employee or agent or one under the control
or direction of Xxxxxxxx Xxxxxxxx even though paid by Xxxxxxxx Xxxxxxxx.
12. Duration and Termination.
(a) This Contract shall become effective upon the date hereabove
written, provided that, with respect to any Series, this Contract shall not take
effect unless such action has first been approved by vote of a majority of the
Board and by vote of a majority of those trustees of the Fund who are not
interested persons of the Fund, and have no direct or indirect financial
interest in this Contract or in any agreements related thereto (all such
Trustees collectively being referred to herein as the 'Independent Trustees'),
cast in person at a meeting called for the purpose of voting on such action.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for one year from the above written date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually (i) by a vote of a majority of the Independent Trustees, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board or by vote of a majority of the outstanding voting securities of
the Class C Shares of each affected Series.
(c) Notwithstanding the foregoing, with respect to any Series, this
Contract may be terminated at any time, without the payment of any penalty, by
vote of the Board, by vote of a majority of the Independent Trustees or by vote
of a majority of the outstanding voting securities of the Class C Shares of such
Series on sixty days' written notice to Xxxxxxxx Xxxxxxxx or by Xxxxxxxx
Xxxxxxxx at any time, without the payment of any penalty, on sixty days' written
notice to the Fund or such Series. This Contract will automatically terminate in
the event of its assignment.
(d) Termination of this Contract with respect to any given Series
shall in no way affect the continued validity of this Contract or the
performance thereunder with respect to any other Series.
13. Amendment of this Contract. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
14. Governing Law. This Contract shall be construed in accordance with
the laws of the State of Delaware and the 1940 Act, provided, however, that
Section 10 above will be construed in accordance with the laws of the
Commonwealth of Massachusetts. To the extent that the applicable laws of the
State of Delaware or the Commonwealth of Massachusetts conflict with the
applicable provisions of the 1940 Act, the latter shall control.
15. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient upon receipt in writing at the
other party's principal offices.
16. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms 'majority of the outstanding voting securities,' 'interested person'
and 'assignment' shall have the same meaning as such terms have in the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first above
written.
ATTEST: XXXXXX, XXXXXXX INVESTMENT TRUST II
__________________________________ By: _________________________________
ATTEST: XXXXXXXX XXXXXXXX ASSET MANAGEMENT INC.
__________________________________ By: _________________________________
XXXXXXXX XXXXXXXX/XXXXXX, XXXXXXX INVESTMENT TRUST II
DISTRIBUTION CONTRACT
CLASS B SHARES
CONTRACT made as of ____________, 1995, between XXXXXXXX
XXXXXXXX/XXXXXX, XXXXXXX INVESTMENT TRUST II, a Massachusetts business trust
('Fund'), and XXXXXXXX XXXXXXXX ASSET MANAGEMENT INC., a Delaware corporation
('Xxxxxxxx Xxxxxxxx').
WHEREAS the Fund is registered under the Investment Company Act of
1940, as amended ('1940 Act'), as an open-end management investment company and
currently has several distinct series of shares of beneficial interest, each of
which corresponds to a distinct portfolio, including the Xxxxxxxx
Xxxxxxxx/Xxxxxx, Xxxxxxx Emerging Markets Equity Fund (each a 'Series'); and
WHEREAS the Fund's board of trustees ('Board') has established an
unlimited number of shares of beneficial interest of Xxxxxxxx Xxxxxxxx/Xxxxxx,
Xxxxxxx Emerging Markets Equity Fund as Class B shares ('Class B Shares'); and
WHEREAS the Fund has adopted a Plan of Distribution pursuant to Rule
12b-1 under the 1940 Act for its Class B Shares ('Plan') and desires to retain
Xxxxxxxx Xxxxxxxx as principal distributor in connection with the offering and
sale of the Class B Shares of Xxxxxxxx Xxxxxxxx/Xxxxxx, Xxxxxxx Emerging Markets
Equity Fund and of such other Series as have been and may hereafter be
designated by the Board and have Class B Shares established; and
WHEREAS Xxxxxxxx Xxxxxxxx is willing to act as principal distributor of
the Class B Shares of each such Series on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints Xxxxxxxx Xxxxxxxx as its
exclusive agent to be the principal distributor to sell and to arrange for the
sale of the Class B Shares on the terms and for the period set forth in this
Contract. Xxxxxxxx Xxxxxxxx hereby accepts such appointment and agrees to act
hereunder. It is understood, however, that this appointment does not preclude
sales of the Class B Shares directly through the Fund's transfer agent in the
manner set forth in the Registration
Statement. As used in this Contract, the term 'Registration Statement' shall
mean the currently effective registration statement of the Fund, and any
supplements thereto, under the Securities Act of 1933, as amended ('1933 Act'),
and the 1940 Act.
2. Services and Duties of Xxxxxxxx Xxxxxxxx.
(a) Xxxxxxxx Xxxxxxxx agrees to sell Class B Shares on a best
efforts basis from time to time during the term of this Contract as agent for
the Fund and upon the terms described in the Registration Statement.
(b) Upon the later of the date of this Contract or the initial
offering of the Class B Shares to the public by a Series, Xxxxxxxx Xxxxxxxx will
hold itself available to receive purchase orders, satisfactory to Xxxxxxxx
Xxxxxxxx, for Class B Shares of the Series and will accept such orders on behalf
of the Fund as of the time of receipt of such orders and promptly transmit such
orders as are accepted to the Fund's transfer agent. Purchase orders shall be
deemed effective at the time and in the manner set forth in the Registration
Statement.
(c) Xxxxxxxx Xxxxxxxx in its discretion may enter into
agreements to sell Class B Shares to such registered and qualified retail
dealers, including but not limited to PaineWebber Incorporated ('PaineWebber'),
as it may select. In making agreements with such dealers, Xxxxxxxx Xxxxxxxx
shall act only as principal and not as agent for the Fund.
(d) The offering price of the Class B Shares of a Series shall
be the net asset value per Share as next determined by the Fund following
receipt of an order at Xxxxxxxx Xxxxxxxx' principal office. The Fund shall
promptly furnish Xxxxxxxx Xxxxxxxx with a statement of each computation of net
asset value.
(e) Xxxxxxxx Xxxxxxxx shall not be obligated to sell any
certain number of Class B Shares.
(f) To facilitate redemption of Class B Shares by shareholders
directly or through dealers, Xxxxxxxx Xxxxxxxx is authorized but not required on
behalf of the Fund to repurchase Class B Shares presented to it by shareholders
and dealers at the price determined in accordance with, and in the manner set
forth in, the Registration Statement. Such price shall reflect the subtraction
of the contingent deferred sales charge, if any, computed in accordance with and
in the manner set forth in the Registration Statement.
(g) Xxxxxxxx Xxxxxxxx shall provide ongoing shareholder
services, which include responding to shareholder inquiries, providing
shareholders with information on their
- 2 -
investments in the Class B Shares and any other services now or hereafter deemed
to be appropriate subjects for the payments of 'service fees' under Section
26(d) of the National Association of Securities Dealers, Inc. ('NASD') Rules of
Fair Practice (collectively, 'service activities'). 'Service activities' do not
include the transfer agency-related and other services that PaineWebber may
provide.
(h) Xxxxxxxx Xxxxxxxx shall have the right to use any list of
shareholders of the Fund or any other list of investors which it obtains in
connection with its provision of services under this Contract; provided,
however, that Xxxxxxxx Xxxxxxxx shall not sell or knowingly provide such list or
lists to any unaffiliated person.
3. Authorization to Enter into Exclusive Dealer Agreements and to
Delegate Duties as Distributor. With respect to the Class B Shares of any or all
Series, Xxxxxxxx Xxxxxxxx may enter into an exclusive dealer agreement with
PaineWebber or any other registered and qualified dealer with respect to sales
of the Class B Shares or the provision of service activities. In a separate
contract or as part of any such exclusive dealer agreement, Xxxxxxxx Xxxxxxxx
also may delegate to PaineWebber or another registered and qualified dealer
('sub-distributor') any or all of its duties specified in this Contract,
provided that such separate contract or exclusive dealer agreement imposes on
the sub-distributor bound thereby all applicable duties and conditions to which
Xxxxxxxx Xxxxxxxx is subject under this Contract, and further provided that such
separate contract or exclusive dealer agreement meets all requirements of the
1940 Act and rules thereunder.
4. Services Not Exclusive. The services furnished by Xxxxxxxx Xxxxxxxx
hereunder are not to be deemed exclusive and Xxxxxxxx Xxxxxxxx shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby. Nothing in this Contract shall limit or restrict the
right of any director, officer or employee of Xxxxxxxx Xxxxxxxx, who may also be
a director, officer or employee of the Fund, to engage in any other business or
to devote his or her time and attention in part to the management or other
aspects of any other business, whether of a similar or a dissimilar nature.
5. Compensation and Reimbursement of Distribution Expenses. As
compensation for providing services under this contract:
(a) Xxxxxxxx Xxxxxxxx shall receive from the Trust:
(1) a distribution fee and a service fee at the rate and
under the terms and conditions set forth in a Series'
- 3 -
Plan, as amended from time to time and subject to any further
limitations on such fees as the Board may impose; and
(2) all contingent deferred sales charges applied on
redemptions of Class B Shares of each Series. Whether and at what rate
a contingent deferred sales charge will be imposed with respect to a
redemption shall be determined in accordance with, and in the manner
set forth in, the Registration Statement.
(b) Xxxxxxxx Xxxxxxxx may reallow any or all of the distribution or
service fees and the contingent deferred sales charges which it is paid under
this Contract to such dealers as Xxxxxxxx Xxxxxxxx may from time to time
determine.
6. Duties of the Fund.
(a) The Fund reserves the right at any time to withdraw
offering Class B Shares of a Series by written notice to Xxxxxxxx Xxxxxxxx at
its principal office.
(b) The Fund shall determine in its sole discretion whether
certificates shall be issued with respect to the Class B Shares. If the Fund has
determined that certificates shall be issued, the Fund will not cause
certificates representing Class B Shares to be issued unless so requested by
shareholders. If such request is transmitted by Xxxxxxxx Xxxxxxxx, the Fund will
cause certificates evidencing Class B Shares to be issued in such names and
denominations as Xxxxxxxx Xxxxxxxx shall from time to time direct.
(c) The Fund shall keep Xxxxxxxx Xxxxxxxx fully informed of
its affairs and shall make available to Xxxxxxxx Xxxxxxxx copies of all
information, financial statements, and other papers which Xxxxxxxx Xxxxxxxx may
reasonably request for use in connection with the distribution of Class B
Shares, including, without limitation, certified copies of any financial
statements prepared for the Fund by its independent public accountant and such
reasonable number of copies of the most current prospectus, statement of
additional information, and annual and interim reports of a Series as Xxxxxxxx
Xxxxxxxx may request, and the Fund shall cooperate fully in the efforts of
Xxxxxxxx Xxxxxxxx to sell and arrange for the sale of the Class B Shares of the
Series and in the performance of Xxxxxxxx Xxxxxxxx under this Contract.
(d) The Fund shall take, from time to time, all necessary
action, including payment of the related filing fee, as may be necessary to
register the Class B Shares under the 1933 Act to the end that there will be
available for sale such number of Class B Shares as Xxxxxxxx Xxxxxxxx may be
expected to sell.
- 4 -
The Fund agrees to file, from time to time, such amendments, reports, and other
documents as may be necessary in order that there will be no untrue statement of
a material fact in the Registration Statement, nor any omission of a material
fact which omission would make the statements therein misleading.
(e) The Fund shall use its best efforts to qualify and
maintain the qualification of an appropriate number of Class B Shares of a
Series for sale under the securities laws of such states or other jurisdictions
as Xxxxxxxx Xxxxxxxx and the Fund may approve, and, if necessary or appropriate
in connection therewith, to qualify and maintain the qualification of the Fund
as a broker or dealer in such jurisdictions; provided that the Fund shall not be
required to amend its Articles of Incorporation or By-Laws to comply with the
laws of any jurisdiction, to maintain an office in any jurisdiction, to change
the terms of the offering of the Class B Shares in any jurisdiction from the
terms set forth in its Registration Statement, to qualify as a foreign
corporation in any jurisdiction, or to consent to service of process in any
jurisdiction other than with respect to claims arising out of the offering of
the Class B Shares. Xxxxxxxx Xxxxxxxx shall furnish such information and other
material relating to its affairs and activities as may be required by the Fund
in connection with such qualifications.
7. Expenses of the Fund. The Fund shall bear all costs and expenses of
registering the Class B Shares with the Securities and Exchange Commission and
state and other regulatory bodies, and shall assume expenses related to
communications with shareholders of each Series, including (i) fees and
disbursements of its counsel and independent public accountant; (ii) the
preparation, filing and printing of registration statements and/or prospectuses
or statements of additional information required under the federal securities
laws; (iii) the preparation and mailing of annual and interim reports,
prospectuses, statements of additional information and proxy materials to share-
holders; and (iv) the qualifications of Class B Shares for sale and of the Fund
as a broker or dealer under the securities laws of such jurisdictions as shall
be selected by the Fund and Xxxxxxxx Xxxxxxxx pursuant to Paragraph 6(e) hereof,
and the costs and expenses payable to each such jurisdiction for continuing
qualification therein.
8. Expenses of Xxxxxxxx Xxxxxxxx. Xxxxxxxx Xxxxxxxx shall bear all
costs and expenses of (i) preparing, printing and distributing any materials not
prepared by the Fund and other materials used by Xxxxxxxx Xxxxxxxx in connection
with the sale of Class B Shares under this Contract, including the additional
cost of printing copies of prospectuses, statements of additional information,
and annual and interim shareholder reports other than copies thereof required
for distribution to existing shareholders or for filing with any federal or
state securities
- 5 -
authorities; (ii) any expenses of advertising incurred by Xxxxxxxx Xxxxxxxx in
connection with such offering; (iii) the expenses of registration or
qualification of Xxxxxxxx Xxxxxxxx as a broker or dealer under federal or state
laws and the expenses of continuing such registration or qualification; and (iv)
all compensation paid to Xxxxxxxx Xxxxxxxx' employees and others for selling
Class B Shares, and all expenses of Xxxxxxxx Xxxxxxxx, its employees and others
who engage in or support the sale of Class B Shares as may be incurred in
connection with their sales efforts.
9. Indemnification.
(a) The Fund agrees to indemnify, defend and hold Xxxxxxxx
Xxxxxxxx, its officers and directors, and any person who controls Xxxxxxxx
Xxxxxxxx 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
Xxxxxxxx Xxxxxxxx, its officers, directors or any such controlling person may
incur under the 1933 Act, or under common law or otherwise, arising out of or
based upon any alleged untrue statement of a material fact contained in the
Registration Statement or arising out of or based upon any alleged omission to
state a material fact required to be stated in the Registration Statement or
necessary to make the statements therein not misleading, except insofar as such
claims, demands, 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 upon and in conformity with information furnished in writing by
Xxxxxxxx Xxxxxxxx to the Fund for use in the Registration Statement; provided,
however, that this indemnity agreement shall not inure to the benefit of any
person who is also an officer or director of the Fund or who controls the Fund
within the meaning of Section 15 of the 1933 Act, unless a court of competent
jurisdiction shall determine, or it shall have been determined by controlling
precedent, that such result would not be against public policy as expressed in
the 1933 Act; and further provided, that in no event shall anything contained
herein be so construed as to protect Xxxxxxxx Xxxxxxxx against any liability to
the Fund or to the shareholders of a Series to which Xxxxxxxx Xxxxxxxx would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations under this Contract. The Fund shall not be liable
to Xxxxxxxx Xxxxxxxx under this indemnity agreement with respect to any claim
made against Xxxxxxxx Xxxxxxxx or any person indemnified unless Xxxxxxxx
Xxxxxxxx or other such person shall have notified the Fund in writing of the
claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
- 6 -
served upon Xxxxxxxx Xxxxxxxx or such other person (or after Xxxxxxxx Xxxxxxxx
or the person shall have received notice of service on any designated agent).
However, failure to notify the Fund of any claim shall not relieve the Fund from
any liability which it may have to Xxxxxxxx Xxxxxxxx or any person against whom
such action is brought otherwise than on account of this indemnity agreement.
The Fund 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 claims
subject to this indemnity agreement. If the Fund elects to assume the defense of
any such claim, the defense shall be conducted by counsel chosen by the Fund and
satisfactory to indemnified defendants in the suit whose approval shall not be
unreasonably withheld. In the event that the Fund elects to assume the defense
of any suit and retain counsel, the indemnified defendants shall bear the fees
and expenses of any additional counsel retained by them. If the Fund does not
elect to assume the defense of a suit, it will reimburse the indemnified
defendants for the reasonable fees and expenses of any counsel retained by the
indemnified defendants. The Fund agrees to notify Xxxxxxxx Xxxxxxxx promptly of
the commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of any of its
Class B Shares.
(b) Xxxxxxxx Xxxxxxxx agrees to indemnify, defend, and hold
the Fund, its 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
cost of investigating or defending against such claims, demands or liabilities
and any counsel fees incurred in connection therewith) which the Fund, its
directors or officers, or any such controlling person may incur under the 1933
Act or under common law or otherwise arising out of or based upon any alleged
untrue statement of a material fact contained in information furnished in
writing by Xxxxxxxx Xxxxxxxx to the Fund for use in the Registration Statement,
arising out of or based upon any alleged omission to state a material fact in
connection with such information required to be stated in the Registration
Statement necessary to make such information not misleading, or arising out of
any agreement between Xxxxxxxx Xxxxxxxx and any retail dealer, or arising out of
any supplemental sales literature or advertising used by Xxxxxxxx Xxxxxxxx in
connection with its duties under this Contract. Xxxxxxxx Xxxxxxxx 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 the claim, but if Xxxxxxxx
Xxxxxxxx elects to assume the defense, the defense shall be conducted by counsel
chosen by Xxxxxxxx Xxxxxxxx and satisfactory to the indemnified defendants whose
approval shall not be unreasonably withheld. In the event that Xxxxxxxx Xxxxxxxx
elects to assume the defense of any suit and retain counsel, the defendants
- 7 -
in the suit shall bear the fees and expenses of any additional counsel retained
by them. If Xxxxxxxx Xxxxxxxx does not elect to assume the defense of any suit,
it will reimburse the indemnified defendants in the suit for the reasonable fees
and expenses of any counsel retained by them.
10. Limitation of Liability of the Trustees and Shareholders of the
Fund. The trustees of the Fund and the shareholders of any Series shall not be
liable for any obligations of the Fund or any Series under this Contract, and
Xxxxxxxx Xxxxxxxx agrees that, in asserting any rights or claims under this
Contract, it shall look only to the assets and property of the Fund or the
particular Series in settlement of such right or claims, and not to such
trustees or shareholders.
11. Services Provided to the Fund by Employees of Xxxxxxxx Xxxxxxxx.
Any person, even though also an officer, director, employee or agent of Xxxxxxxx
Xxxxxxxx, who may be or become an officer, director, employee or agent of the
Fund, shall be deemed, when rendering services to the Fund or acting in any
business of the Fund, to be rendering such services to or acting solely for the
Fund and not as an officer, director, employee or agent or one under the control
or direction of Xxxxxxxx Xxxxxxxx even though paid by Xxxxxxxx Xxxxxxxx.
12. Duration and Termination.
(a) This Contract shall become effective upon the date
hereabove written, provided that, with respect to any Series, this Contract
shall not take effect unless such action has first been approved by vote of a
majority of the Board and by vote of a majority of those directors of the Fund
who are not interested persons of the Fund, and have no direct or indirect
financial interest in the operation of the Plan relating to the Series or in any
agreements related thereto (all such directors collectively being referred to
herein as the 'Independent Trustees'), cast in person at a meeting called for
the purpose of voting on such action.
(b) Unless sooner terminated as provided herein, this Contract
shall continue in effect for one year from the above written date. Thereafter,
if not terminated, this Contract shall continue automatically for successive
periods of twelve months each, provided that such continuance is specifically
approved at least annually (i) by a vote of a majority of the Independent
Trustees, cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by the Board or with respect to a Series by vote of a
majority of the outstanding voting securities of the Class B Shares of the
Series.
(c) Notwithstanding the foregoing, with respect to any given
Series, this Contract may be terminated at any time,
- 8 -
without the payment of any penalty, by vote of the Board, by vote of a majority
of the Independent Trustees or by vote of a majority of the outstanding voting
securities of the Class B Shares of such Series on sixty days' written notice to
Xxxxxxxx Xxxxxxxx or by Xxxxxxxx Xxxxxxxx at any time, without the payment of
any penalty, on sixty days' written notice to the Fund or the Series. This
Contract will automatically terminate in the event of its assignment.
(d) Termination of this Contract with respect to any given
Series shall in no way affect the continued validity of this Contract or the
performance thereunder with respect to a Series.
13. Amendment of this Contract. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
14. Governing Law. This Contract shall be construed in accordance with
the laws of the State of Delaware and the 1940 Act. To the extent that the
applicable laws of the State of Delaware conflict with the applicable provisions
of the 1940 Act, the latter shall control.
15. Notice. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient upon receipt in writing
at the other party's principal offices.
16. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms 'majority of the outstanding voting securities,' 'interested person'
and 'assignment' shall have the same meaning as such terms have in the 1940 Act.
- 9 -
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first above
written.
ATTEST: XXXXXXXX XXXXXXXX/XXXXXX, XXXXXXX
INVESTMENT TRUST II
_______________________________ By:____________________________________
ATTEST: XXXXXXXX XXXXXXXX ASSET MANAGEMENT INC.
_______________________________ By:____________________________________
- 10 -
