XXXXXXXX GLOBAL SERIES TRUST
DISTRIBUTION AGREEMENT
This Agreement is made as of the ___ day of August 2003 by and between
Xxxxxxxx Global Series Trust, a Massachusetts business trust (the "Trust"), and
Xxxxxxxx Fund Advisors Inc., a New York corporation (the "Distributor").
1. The Trust hereby appoints the Distributor as a distributor of shares
of beneficial interest ("Shares") of each of the current series of the Trust
(each, a "Fund"), and the Distributor hereby accepts such appointment. Upon the
approval of the Trust, this Agreement shall apply to any additional series of
the Trust as may be established from time to time, each of which shall become a
Fund hereunder.
2. The Distributor will have the right, as principal, to sell Shares of
each Fund to investment dealers against orders therefor at the public offering
price less any discount determined by the Distributor, which discount will not
exceed the amount of the sales charge, if any, referred to below. The
Distributor will have the right, as principal, to purchase Shares from the Trust
at their net asset value and to sell such Shares to the public against orders
therefor at the public offering price. Upon receipt of an order to purchase
Shares of a Fund from a bank or dealer with whom the Distributor has a sales
contract, the Distributor will promptly purchase Shares of such Fund from the
Trust to fill such order. Upon receipt of registration instructions in proper
form and payment for such Shares, the Distributor will transmit such
instructions to the Trust or its agent for registration of the Shares purchased.
The Distributor will also have the right, as agent for the Trust, to sell Shares
at the public offering price to such persons and upon such conditions as the
Trustees of the Trust may from time to time determine. The public offering price
shall be the net asset value of the Shares in question then in effect, plus the
applicable sales charge, if any, determined in the manner set forth in the then
current prospectus and statement of additional information of the Trust or as
permitted by the Investment Company Act of 1940, as amended, and the rules and
regulations promulgated thereunder (the "1940 Act"). The net asset value of
Shares shall be determined in the manner provided in the then current prospectus
and statement of additional information of the Trust and when determined shall
be applicable to transactions as provided for in such prospectus and statement
of additional information. On every sale of Shares, the Trust, on behalf of the
Fund in question, shall receive the applicable net asset value of the Shares.
3. The Trust reserves the right to issue Shares at any time directly to
its shareholders as a stock dividend or stock split and to sell Shares to its
shareholders or to other persons approved by the Distributor at not less than
net asset value.
4. The Distributor will use its best efforts to place Shares sold by it
on an investment basis. The Distributor does not agree to sell any specific
number of Shares. Shares will be sold by the Distributor only against orders
therefor. The Distributor will not purchase Shares from anyone other than the
Trust and will not take "long" or "short" positions in Shares contrary to the
instructions of the Trust or any applicable law, rule, or regulation.
5. The Distributor will be an independent contractor and neither the
Distributor nor any of its officers or employees, as such, is or shall be an
employee of the Trust. The Distributor is responsible for its own conduct and
the employment, control, and conduct of its agents and
employees and for injury to such agents or employees or to others through its
agents or employees. The Distributor assumes full responsibility for its agents
and employees under applicable statutes and agrees to pay all employer taxes
thereunder. The Distributor will maintain at its own expense insurance against
public liability in such an amount as the Trustees of the Trust may from time to
time reasonably request.
6. The Trust reserves the right to reject any order for the purchase of
Shares, provided, however, that the Trust agrees that it will not arbitrarily or
without reasonable cause refuse acceptance or confirmation of such orders.
7. The Trust covenants and agrees that it will, at its own expense: (a)
use its best efforts to keep authorized, but unissued, sufficient Shares to meet
the reasonable requirements of the Distributor; (b) supply the Distributor with
the net asset value per Share of each Fund computed as at the times and in the
manner prescribed by the then current prospectus and statement of additional
information of the Trust and in compliance with all pertinent requirements of
the Trust Instrument of the Trust and applicable law; (c) prepare, file, and
keep effective registration statements, prospectuses and licenses covering as
many Shares as may be necessary for distribution and sale of Shares in such
jurisdictions where Shares may lawfully be sold and as reasonably requested by
the Distributor; and (d) maintain qualified personnel and adequate facilities
for the acceptance and confirmation of orders for the sale of Shares.
8. The Distributor will pay all expenses incident to the sale and
distribution of Shares issued or sold hereunder, including (i) expenses of
printing and distributing or disseminating any sales literature (including
prospectuses and annual reports), advertising, and selling aids in connection
with such offering of Shares for sale (except that such expenses shall not
include expenses incurred by the Trust in connection with the preparation,
printing, and distribution of any prospectus, report or other communication to
holders of Shares in their capacity as such) and (ii) expenses of advertising in
connection with such offering.
9. The Distributor covenants and agrees that it will comply, at its own
expense, with the applicable Federal and state laws and regulations regulating
the affairs of broker-dealers, and will conduct its affairs with the Trust and
with dealers, brokers, and investors in accordance with the Conduct Rules of The
National Association of Securities Dealers, Inc., as applicable.
10. (a) Except as provided in subsection (b) below, in the absence of
(i) any breach of its obligations under this Agreement (ii) willful misfeasance,
bad faith, or gross negligence on the part of the Distributor, or (iii) reckless
disregard by the Distributor of its obligations and duties hereunder, the
Distributor shall not be subject to any liability whatsoever to the Trust, or to
any shareholder of the Trust, for any error of judgment, mistake of law, or any
other act or omission in the course of, or connected with, rendering services
hereunder. The Trust agrees to indemnify and hold harmless the Distributor and
each person who controls the Distributor within the meaning of the Securities
Act of 1933, as amended (the "1933 Act"), against any and all losses, claims,
damages, or liabilities, joint or several, to which they or any of them may
become subject under the 1933 and 1940 Acts, the Securities Exchange Act of
1934, as amended, or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Trust's registration statement for the registration of Shares as originally
filed or in any amendment thereof, or in the Trust's current prospectus filed as
a part thereof, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party for any legal loss, claim, damage, liability, or action; provided,
however, that the Trust will not be liable in any such case to the extent that
any such loss, claim, damage, or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon information furnished to the Trust in
writing by or on behalf of the Distributor specifically for use in connection
with the preparation thereof.
(b) The Distributor agrees to indemnify and hold harmless the Trust and
each person who has been, is, or may hereafter be a Trustee of the Trust against
expenses incurred by any of them in connection with any claim or in connection
with any action, suit, or proceeding to which any of them may be a party, which
arises out of or is alleged to arise out of any alleged misrepresentation or
omission to state a material fact, or out of any alleged misrepresentation or
omission to state a material fact, on the part of the Distributor or any agent
or employee of the Distributor or any other person for whose acts the
Distributor is responsible or is alleged to be responsible unless such
misrepresentation or omissions was made in reliance upon written information
furnished by the Trust. The term "expenses" includes amounts paid in
satisfaction of judgments or in settlements which are made with the
Distributor's consent. In addition, the Distributor agrees to indemnify and hold
harmless the Trust and each person who has been, is, or may hereafter be a
Trustee of the Trust and each person who controls the Trust or any Fund within
the meaning of the 1933 Act, against any and all losses, claims, damages, or
liabilities, joint or several, to which they or any of them may become subject
under the 1933 and 1940 Acts, the Securities Exchange Act of 1934, as amended,
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Trust's
registration statement for the registration of Shares as originally filed or in
any amendment thereof, or in the Trust's current prospectus filed as a part
thereof, or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any legal
loss, claim, damage, liability, or action, BUT ONLY to the extent that any such
loss, claim, damage, or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon information furnished to the Trust in writing by or on
behalf of the Distributor specifically for use in connection with the
preparation thereof.
(c) The foregoing rights of indemnification shall be in addition to any
other rights to which a person or entity may otherwise be entitled.
11. This Agreement shall become effective with respect to the Trust on
July __, 2003, and shall continue in effect for a period of two years, and
thereafter only so long as its continuance is specifically approved at least
annually by (i) the Trust's Board of Trustees or by vote of a majority of the
outstanding voting securities (as defined in the 0000 Xxx) of the Trust and (ii)
by vote of a majority of the Trust's Trustees who are not parties to this
Agreement or interested persons (as defined in the 0000 Xxx) of any such party
and have no direct or indirect financial interest in the operation of this
Agreement or any plan to which this Agreement relates, cast in person at a
meeting called for the purpose of voting on such approval.
12. This Agreement shall terminate automatically in the event of its
assignment. This Agreement may be terminated at any time, without the payment of
any penalty, (i) by the Board of Trustees of the Trust, by vote of a majority of
the Trust's Trustees who are not parties to this Agreement or interested persons
(as defined in the 0000 Xxx) of any such party and have no direct or indirect
financial interest in the operation of this Agreement or any plan to which this
Agreement relates, or by vote of a majority of the outstanding voting securities
(as defined in the 0000 Xxx) of the Trust by thirty days' written notice
addressed to the Distributor at its principal place of business; and (ii) by the
Distributor by thirty days' written notice addressed to the Trust at its
principal place of business.
13. This Agreement shall be construed and its provisions interpreted in
accordance with the laws of the state of New York.
14. A copy of the Trust Instrument of the Trust is on file with the
Secretary of State of The Commonwealth of Massachusetts, and notice is hereby
given that this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually, and that the obligations of or arising out of
this instrument are not binding upon any of the Trustees, officers, or
shareholders individually but are binding only upon the assets and property of
the Trust. It is intended that this Agreement shall constitute a separate and
discrete contractual arrangement between the Distributor and the Trust on behalf
of each Fund separately and shall be construed in all respect so as to give
effect to this intention to the same extent as if the agreement between the
Distributor and the Trust on behalf of each such Fund were set out in a separate
writing. Without limiting the generality of the foregoing, no Fund shall be
liable or responsible for the acts, omissions, or liabilities of any other Fund,
or of the Trust on behalf or in respect of any other Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the ____ day of August 2003.
XXXXXXXX GLOBAL SERIES TRUST
By: _____________________________
Title:
XXXXXXXX FUND ADVISORS INC.
By:_____________________________
Title:
