Exhibit 6(b)
DISTRIBUTION AGREEMENT
THIS AGREEMENT dated as of the ______ day of , 1999 by and between LONGBOAT
TRUST (the "Trust"), a business trust established and existing under the laws of
the State of Ohio, and XXXXXX X. XXXXX & COMPANY (the "Distributor"), a
corporation organized and existing under the laws of the State of Ohio.
W I T N E S S E T H:
In consideration of the mutual covenants hereinafter contained, the parties
hereto agree as follows:
Section 1. Appointment of the Distributor. The Trust hereby appoints the
Distributor as its agent to arrange for the sale of shares of the Trust on the
terms and for the period set forth in this Agreement, and the Distributor hereby
accepts such appointment and agrees to act hereunder. It is acknowledged that
the Trust is authorized to issue shares in one or more series, with each series
representing shares of a separate investment portfolio of the Trust (a "Fund"),
and with the shares of each Fund being divided into Class B Shares, Class C
Shares and Class D Shares. The term "Shares" as used herein shall refer to
shares of each class of each Fund of the Trust. It is also acknowledged that
this appointment is not exclusive, and that the Trust may appoint other persons
as distributors for its Shares.
Section 2. Services and Duties of the Distributor.
(a) The Distributor agrees to arrange to sell, as agent for the Trust,
from time to time during the term of this Agreement, Shares upon the terms
described in the Prospectus. As used in this Agreement, the term
"Prospectus" shall mean the prospectus included in the Trust"s Registration
Statement most recently filed by the Trust with the Securities and Exchange
Commission and effective under the Securities Act of 1933, as amended (the
"1933 Act"), and the Investment Company Act of 1940, as amended (the "1940
Act"), as such Registration Statement is amended by any amendments thereto
at the time in effect.
(b) Upon commencement of the continuous public offering of the Shares
of the Trust, the Distributor will hold itself available to receive orders,
satisfactory to the Distributor, for the purchase of Shares and will accept
such orders on behalf of the Trust as of the time of receipt of such orders
and will transmit such orders as are so accepted to the Trust"s Dividend
and Transfer Agent as promptly as practicable. Purchase orders shall be
deemed effective at the time and in the manner set forth in the Prospectus.
(c) The Distributor, as agent for the Trust and in its discretion, may
enter into agreements with such registered and qualified retail
broker-dealers as it may select pursuant to which such broker-dealers may
also arrange for the sale of Shares.
(d) The offering price of the Shares of each class of each Fund shall
be the net asset value (as described in the Prospectus, as amended from
time to time and determined as set forth in the Prospectus) per Share of
such class of such Fund next determined following receipt of an order. The
Trust shall furnish the Distributor with all possible promptness advice of
each computation of net asset value.
(e) The Distributor shall not be obligated to sell any certain number
of Shares, and nothing herein contained shall prevent the Distributor from
entering into like distribution agreements with other investment companies
so long as the performance of its obligations hereunder is not impaired
thereby.
Section 3. Duties of the Trust.
(a) The Trust agrees to sell its Shares so long as it has Shares
available for sale and to cause its Dividend and Transfer Agent to issue,
if requested by the purchaser, certificates for Shares, registered in such
names and amounts as the Distributor has requested in writing, as promptly
as practicable after receipt by the Trust of the purchase price therefor
and thereof and written request of the Distributor therefor.
(b) The Trust shall keep the Distributor fully informed with regard to
its affairs and shall furnish to the Distributor copies of all information,
financial statements and other papers which the Distributor may reasonably
request for use in connection with the distribution of Shares of the Trust.
This shall include, without limitation, one certified copy of all financial
statements of the Trust prepared by independent accountants and such
reasonable number of copies of its most current Prospectus and annual and
interim reports as the Distributor may request. The Trust shall cooperate
fully in the efforts of the Distributor to arrange for the sale of the
Shares and in the performance of the Distributor under this Agreement.
(c) The Trust agrees to file from time to time such amendments,
reports and other documents as may be necessary in order that there may be
no untrue statement of a material fact in a Registration Statement or
Prospectus, or necessary in order that there may be no omission to state a
material fact in the Registration Statement or Prospectus which omission
would make the statements therein, in light of the circumstances under
which they were made, misleading.
(d) The Trust shall use its best efforts to qualify and maintain the
qualification of an appropriate number of its Shares for sale under the
securities laws of such states as the Distributor and the Trust may
approve, and, if necessary or appropriate in connection therewith, to
qualify and maintain the qualification of the Trust as a broker or dealer
in such states; provided that the Trust shall not be required to amend the
Declaration of Trust or its By-Laws to comply with the laws of any state,
to maintain an office in any state, to change the terms of the offering of
its Shares in any state from the terms set forth in its Registration
Statement and Prospectus, to qualify as a foreign corporation, business
trust or similar entity in any state or to consent to service of process in
any state other than with respect to claims arising out of the offering of
its Shares. The Distributor shall furnish such information and other
material relating to its affairs and activities as may be required by the
Trust in connection with such qualifications.
Section 4. Compensation and Expenses.
(a) Except as set forth in this Section, (i) the Distributor shall not
receive any compensation for its services under this Agreement and (ii) the
Distributor shall not be required to bear any costs in connection with the
offering of Shares for sale to the public.
(b) The Trust shall bear all costs and expenses of the continuous
offering of its Shares, including: (i) fees and disbursements of its
counsel and auditors, (ii) the preparation, filing and printing of any
registration statements and/or prospectuses required by and under the
federal securities laws, (iii) the preparation and mailing of annual and
interim reports and proxy materials to shareholders and (iv) the
qualification of the Shares for sale and of the Trust as a broker or dealer
under the securities laws of such states or other jurisdictions as shall be
selected by the Trust and by the Distributor pursuant to Section 3(d)
hereof and the cost and expenses payable to each such state for continuing
qualification therein.
Section 5. Indemnification. The Trust agrees to indemnify, defend and hold
the Distributor, its officers and directors and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "1934 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 and expenses incurred in connection therewith)
which the Distributor, its officers, directors or any such controlling persons
may incur under the 1933 Act, the 1934 Act, or under common law or otherwise,
arising out of or based upon any untrue statement of a material fact contained
in the Registration Statement or Prospectus or arising out of or based upon any
alleged omission to state a material fact required to be stated in either
thereof or necessary to make the statements in either thereof 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 the Distributor to the Trust for use in the Registration Statement
or Prospectus; provided, however, that this indemnity agreement, to the extent
that it might require indemnity of any person who is also an officer or trustee
of the Trust or who controls the Trust within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, shall not inure to the benefit of such
officer, trustee or controlling person 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 the Distributor against any liability to the Trust or to
its security holders to which the Distributor 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 Agreement. The Trust"s agreement to indemnify the Distributor, its officers
and directors and any such controlling person as aforesaid is expressly
conditioned upon the Trust being promptly notified of any action brought against
the Distributor, its officers or directors, or any such controlling person, such
notification to be given by letter or telegram addressed to the Trust at its
principal business office. The Trust agrees promptly to notify the Distributor
of the commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issue and sale of any of its
Shares.
The Distributor agrees to indemnify, defend and hold the Trust, its
trustees and officers and any person who controls the Trust, if any, within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 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 the
Trust, its trustees or officers or any such controlling person may incur under
the 1933 Act, the 1934 Act, or under common law or otherwise, but only to the
extent that such liability or expense incurred by the Trust, its trustees or
officers or such controlling person resulting from such claims or demands shall
arise out of or be based upon (i) any alleged untrue statement of a material
fact contained in information furnished in writing by the Distributor to the
Trust for use in the Registration Statement or Prospectus; (ii) any failure of
the Distributor or any investor purchasing Shares of the Trust through the
Distributor to timely transmit good payment for the purchase of Trust Shares; or
(iii) any breach of the obligations of the Distributor under Section 6 of this
Agreement. The Distributor"s agreement to indemnify the Trust, its trustees and
officers and any such controlling person as aforesaid, is expressly conditioned
upon the Distributor being promptly notified of any event giving rise to rights
of indemnification hereunder, including any action brought against the Trust,
its trustees or officers or any such controlling person, such notification being
given to the Distributor at its principal business office.
Section 6. Compliance with Securities Laws. The Trust represents that it is
registered as a diversified, open-end management investment company under the
1940 Act, and agrees that it will comply with all of the provisions of the 1940
Act and of the rules and regulations thereunder. The Trust and the Distributor
each agree to comply with all of the applicable terms and provisions of the 1940
Act, the 1933 Act and, subject to the provisions of Section 3(d), all applicable
state "Blue Sky" laws. The Distributor agrees to comply with all of the
applicable terms and provisions of the 1934 Act.
Section 7. Term of Agreement; Termination. This Agreement shall commence on
the date first set forth above. This Agreement shall continue in effect for a
period more than two years from the date hereof only so long as such continuance
is specifically approved at least annually in conformity with the requirements
of the 1940 Act.
This Agreement shall terminate automatically in the event of its assignment
(as defined by the 1940 Act).
Section 8. Notices. Any notice required to be given pursuant to this
Agreement shall be deemed duly given if delivered or mailed by registered mail,
postage prepaid, (i) to the Distributor at Xxxxxx X. Xxxxx & Company, 0000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 or (ii) to the Trust at OTI Trust, The
Tower at Erieview, 36th Floor, 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000.
Section 9. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Ohio.
Section 10. Non-Liability of Shareholders, Trustees, Officers, Employees,
Representatives and Agents. It is expressly agreed that the obligation of the
Trust hereunder shall not be binding upon nor resort be had to the private
property of any of the trustees, Shareholders, nominees, officers, agents or
employees of the Trust, personally, but bind only the Trust property, as
provided in the Declaration of Trust. The execution and delivery of this
Agreement have been authorized by the trustees of the Trust and signed by the
officers of the Trust, acting as such, and neither such authorization by such
trustees nor such execution and delivery by such officers shall be deemed to
have been made by any of them individually, or to impose any liability on any of
them personally, but shall bind only the Trust property as provided in the
Declaration of Trust.
Section 11. Use of Name. The Trust recognizes that directors, officers and
employees of the Distributor may from time to time serve as directors, officers
and employees of other corporations (including other investment companies) and
that such other corporations may include the name "OTI" as part of their name,
and that the Distributor or its affiliates may enter into distribution or other
agreements with such other corporations. If the Distributor ceases to act as the
Trust"s distributor of shares or if Maxus Asset Management Inc, an affiliate of
the Distributor, ceases to act as the Trust"s investment adviser, the Trust
agrees that, at the Distributor"s request, the Trust"s license to use the word
"OTI" will terminate and the Trust will take all necessary action to change the
name of all Funds of the Trust to a name not including the word "OTI".
Section 12. Complete Agreement. This Agreement contains the complete
agreement with respect to the subject matter hereof and supersedes any prior
understandings, agreements or representations by or between the parties related
to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
LONGBOAT TRUST
By:
Xxxxxxx X. Xxxxxx, Chairman
XXXXXX X. XXXXX & COMPANY
By:
