DISTRIBUTING AGREEMENT
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DISTRIBUTING AGREEMENT, dated as of March 15, 2001 between XXXXXXXX TAX-AWARE
FUND, INC. a Maryland corporation (the "Fund"), and XXXXXXXX ADVISORS, INC., a
Delaware corporation ("Xxxxxxxx Advisors").
In consideration of the mutual agreements herein made, the parties
hereto agree as follows:
1. Exclusive Distributor. The Fund hereby agrees that Xxxxxxxx Advisors
shall be for the period of this Agreement exclusive agent for
distribution within the United States and its territories, and Xxxxxxxx
Advisors agrees to use its best efforts during such period to effect
such distribution of shares of Capital Stock ("Shares") of the Fund;
provided, however, that nothing herein shall prevent the Fund, if it so
elects, from selling or otherwise distributing its Shares directly to
any persons other than dealers. The Fund understands that Xxxxxxxx
Advisors also acts as agent for distribution of the shares of capital
stock or beneficial interest of other open-end investment companies
which have entered into management agreements with J. & X. Xxxxxxxx &
Co. Incorporated (the "Manager").
2. Sales of Shares. Xxxxxxxx Advisors is authorized, as agent for the Fund
and not as principal, (a) to sell Shares of the Fund to such dealers as
Xxxxxxxx Advisors may select pursuant to the terms of written sales
agreements (which may also relate to sales of shares of capital stock
or shares of beneficial interest of other open-end investment companies
which have entered into management agreements with the Manager),
substantially in the form or forms approved by the Fund, and (b) to
sell Shares of the Fund to other purchasers on such terms as may be
provided in the then current prospectus of the Fund relating to such
Shares; provided, however, that no sales of Shares shall be confirmed
by Xxxxxxxx Advisors at any time when, according to advice received by
Xxxxxxxx Advisors from the Fund, the officers of the Fund have for any
reason sufficient to them temporarily or permanently suspended or
discontinued the sale and issuance of the Shares. Each sale of Shares
shall be effected by Xxxxxxxx Advisors only at the applicable price
determined by the Fund in the manner prescribed in its then current
prospectus relating to such Shares. Xxxxxxxx Advisors shall comply with
all applicable laws, rules and regulations including, without limiting
the generality of the foregoing, all rules or regulations made or
adopted pursuant to Section 22 of the Investment Company Act of 1940,
as amended (the "1940 Act") by the Securities and Exchange Commission
or any securities association registered under the Securities Exchange
Act of 1934.
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The Fund agrees, as long as its Shares may legally be issued, to fill
all orders confirmed by Xxxxxxxx Advisors in accordance with the provisions of
this Agreement.
3. Repurchase Agent. Xxxxxxxx Advisors is authorized, as agent for the
Fund and not as principal, to accept offers for resale to the Fund and
to repurchase on behalf of the Fund Shares of the Fund at net asset
values determined by the Fund in conformity with its then current
prospectus relating to such Shares.
4. Compensation. As compensation for the services of Xxxxxxxx Advisors
under this Agreement, Xxxxxxxx Advisors shall be entitled to receive
the sales charge, determined in conformity with the Fund's then current
prospectus relating to such Shares, on all sales of Shares of the Fund
confirmed by Xxxxxxxx Advisors hereunder and for which payment has been
received, less the dealers' concession allowed in respect of such
sales. In addition, in accordance with the terms of the Fund's
Administration, Shareholder Services and Distribution Plan (the
"Plan"), the Fund may make payments from time to time to Xxxxxxxx
Advisors in accordance with the terms and limitations of, and for the
purposes set forth in the Plan.
5. Expenses. Xxxxxxxx Advisors agrees promptly to pay or reimburse the
Fund for all expenses (except expenses incurred by the Fund in
connection with the preparation, printing and distribution of any
prospectus or report or other communication to shareholders, to the
extent that such expenses are incurred to effect compliance with any
Federal or State law or to enable such distribution to shareholder(s))
(a) of printing and distributing copies of any prospectus and of
preparing, printing and distributing any other material used by
Xxxxxxxx Advisors in connection with offering Shares of the Fund for
sale, and (b) of advertising in connection with such offering. The Fund
agrees to pay all expenses in connection with the registration of
Shares of the Fund under the Securities Act of 1933 (the "Act"), all
fees and related expenses which may be incurred in connection with the
qualification of Shares of the Fund for sale in such States (as well as
the District of Columbia, Puerto Rico and other territories) as
Xxxxxxxx Advisors may designate, and all expenses in connection with
maintaining facilities for the issue and transfer of its Shares, of
supplying information, prices and other data to be furnished by it
hereunder, and through Xxxxxxxx Data Corp., of all data processing and
related services related to the share distribution activity
contemplated hereby.
The Fund agrees to execute such documents and to furnish such
information as may be reasonably necessary, in the discretion of the
Directors of the Fund, in connection with the qualification of Shares
of the Fund for sale in such States (as well as the District of
Columbia, Puerto Rico and other territories) as Xxxxxxxx Advisors may
designate. Xxxxxxxx Advisors also agrees to pay all fees and related
expenses connected with its own qualification as a broker or dealer
under Federal or State laws and, except as otherwise specifically
provided in this Agreement or agreed to by the Fund, all other expenses
incurred by Xxxxxxxx
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Advisors in connection with the sale of Shares of the Fund as
contemplated in this Agreement (including the expenses of qualifying
the Fund as a dealer or broker under the laws of such States as may be
designated by Xxxxxxxx Advisors, if deemed necessary or advisable by
the Fund).
It is understood and agreed that any payments made to Xxxxxxxx Advisors
pursuant to the Plan may be used to defray some or all of the expenses
incurred by Xxxxxxxx Advisors pursuant to this Agreement.
6. Prospectus and Other Information. The Fund represents and warrants to
and agrees with Xxxxxxxx Advisors that:
(a) A registration statement, including one or more prospectuses
relating to the Shares, has been filed by the Fund under the
Act and has become effective. Such registration statement, as
now in effect and as from time to time hereafter amended, and
also any other registration statement relating to the Shares
which may be filed by the Fund under the Act which shall
become effective, is herein referred to as the "Registration
Statement", and any prospectus or prospectuses filed by the
Fund as a part of the Registration Statement, as the
"Prospectus".
(b) At all times during the term of this Agreement, except when
the officers of the Fund have suspended or discontinued the
sale and issuance of Shares of the Fund as contemplated by
Section 2 hereof, the Registration Statement and Prospectus
will conform in all respects to the requirements of the Act
and the rules and regulations of the Securities and Exchange
Commission, and neither of such documents will include any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statement therein not misleading, except that the
foregoing does not apply to any statements or omissions in
either of such documents based upon written information
furnished to the Fund by Xxxxxxxx Advisors specifically for
use therein.
The Fund agrees to prepare and furnish to Xxxxxxxx Advisors from time
to time a copy of its Prospectus, and authorizes Xxxxxxxx Advisors to
use such Prospectus, in the form furnished to Xxxxxxxx Advisors from
time to time, in connection with the sale of the Fund's Shares. The
Fund also agrees to furnish Xxxxxxxx Advisors from time to time, for
use in connection with the sale of such Shares, such information with
respect to the Fund and its Shares as Xxxxxxxx Advisors may reasonably
request.
7. Reports. Xxxxxxxx Advisors will prepare and furnish to the Directors of
the Fund at least quarterly a written report complying with the
requirements of Rule 12b-1 under the 1940 Act setting forth all amounts
expended under the Plan and the purposes for which such expenditures
were made.
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8. Indemnification.
(a) The Fund will indemnify and hold harmless Xxxxxxxx Advisors
and each person, if any, who controls Xxxxxxxx Advisors within
the meaning of the Act against any losses, claims, damages or
liabilities to which Xxxxxxxx Advisors or such controlling
person may become subject, under the Act 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 Fund's Registration Statement or Prospectus
or any other written sales material prepared by the Fund which
is utilized by Xxxxxxxx Advisors in connection with the sale
of Shares 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 (in the case of the Registration
Statement and Prospectus) necessary to make the statements
therein not misleading or (in the case of such other sales
material) necessary to make the statements therein not
misleading in the light of the circumstances under which they
were made; and will reimburse Xxxxxxxx Advisors and each such
controlling person for any legal or other expenses reasonably
incurred by Xxxxxxxx Advisors or such controlling person in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that
the Fund 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 untrue statement or alleged untrue
statement or omission or alleged omission made in such
Registration Statement or Prospectus in conformity with
written information furnished to the Fund by Xxxxxxxx Advisors
specifically for use therein; and provided, further, that
nothing herein shall be so construed as to protect Xxxxxxxx
Advisors against any liability to the Fund or its security
holders to which Xxxxxxxx Advisors would otherwise be subject
by reason of willful misfeasance, bad faith or gross
negligence, in the performance of its duties, or by reason of
the reckless disregard by Xxxxxxxx Advisors of its obligations
and duties under this Agreement. This indemnity agreement will
be in addition to any liability which the Fund may otherwise
have.
(b) Xxxxxxxx Advisors will indemnify and hold harmless the Fund,
each of its Directors and officers and each person, if any,
who controls the Fund within the meaning of the Act, against
any losses, claims, damages or liabilities to which the Fund
or any such Director, officer or controlling person may become
subject, under the Act 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
Registration Statement or Prospectus or any sales material not
prepared by the Fund which is utilized in connection with the
sale of Shares or arise out of or are based upon the omission
or
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the alleged omission to state therein a material fact required
to be stated therein or (in the case of the Registration
Statement and Prospectus) necessary to make the statements
therein not misleading or (in the case of such other sales
material) necessary to make the statements therein not
misleading in the light of the circumstances under which they
were made, in the case of the Registration Statement and
Prospectus to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or
alleged omission was made in conformity with written
information furnished to the Fund by Xxxxxxxx Advisors
specifically for use therein; and Xxxxxxxx Advisors will
reimburse any legal or other expenses reasonably incurred by
the Fund or any such Director, officer or controlling person
in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement
will be in addition to any liability which Xxxxxxxx Advisors
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify
the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve
it from liability which it may have to any indemnified party
otherwise than under this Section. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein
and, to the extent that it may wish, to assume the defense
thereof, with counsel satisfactory to such indemnified party,
and after notice from the indemnifying party to such
indemnified party of its election to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable
costs of investigation.
9. Effective Date. This Agreement shall become effective upon its
execution by an authorized officer of the respective parties to this
Agreement, but in no event prior to shareholder approval of the Plan.
10. Term of Agreement. This Agreement shall continue in effect until
December 31, 2002 and through December 31 of each year thereafter if
such continuance is approved in the manner required by the 1940 Act and
the rules thereunder and Xxxxxxxx Advisors shall not have notified the
Fund in writing at least 60 days prior to the anniversary date of the
previous continuance that it does not desire such continuance. This
Agreement may be terminated at any time, without payment of penalty on
60 days' written notice to the other party by vote of a majority of the
Directors of the Fund who are not interested persons (as defined in the
0000 Xxx) of the Fund and have no direct or indirect financial interest
in the operation of the Plan or any agreement related thereto, or by
vote of a majority of the outstanding voting securities of the Fund (as
defined in the 1940 Act). This Agreement shall automatically terminate
in the event of its assignment (as defined in the 1940 Act).
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11. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to
the contrary notwithstanding, this Agreement shall not be construed to
require, or to impose any duty upon, either of the parties to do
anything in violation of any applicable laws or regulations.
IN WITNESS WHEREOF, the Fund and Xxxxxxxx Advisors have caused this
Agreement to be executed by their duly authorized officers as of the date first
above written.
XXXXXXXX TAX-AWARE FUND, INC.
By /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
President
XXXXXXXX ADVISORS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President
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