XXXXXXXXX GLOBAL FUNDS
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 31st of March 2009 (the "Effective Date"), by
and between Xxxxxxxxx Global Funds, a Delaware business trust, with its
principal office and place of business at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000 (the "Trust"), and Foreside Fund Services, LLC, a Delaware
limited liability company with its principal office and place of business at
Three Xxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000 ("Foreside").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company and
may issue its shares of beneficial interest, no par value ("Shares") in separate
series and classes;
WHEREAS, Foreside is registered under the Securities Exchange Act of
1934, as amended ("1934 Act"), as a broker-dealer and is engaged in the business
of selling shares of registered investment companies either directly to
purchasers or through other financial intermediaries;
WHEREAS, the Trust intends to offer shares in various series as listed
in Appendix A hereto (each such series, together with all other series
subsequently established by the Trust and made subject to this Agreement being
herein referred to as a "Fund," and collectively as the "Funds") and the Trust
intends to offer shares of various classes of each Fund as listed in Appendix A
hereto (each such class together with all other classes subsequently established
by the Trust in a Fund being herein referred to as a "Class," and collectively
as the "Classes");
WHEREAS, the Trust desires that Foreside offer, as principal
underwriter, the Shares of each Fund and Class thereof to the public and
Foreside is willing to provide those services on the terms and conditions set
forth in this Agreement in order to promote the growth of the Funds and
facilitate the distribution of the Shares;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Foreside hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust hereby appoints Foreside, and Foreside hereby agrees, to
act as distributor of the Shares for the period and on the terms set forth in
this Agreement.
(b) In connection therewith, the Trust has delivered to Foreside or
will deliver to Foreside as they become available, copies of: (i) the Trust's
Declaration of Trust and Bylaws (collectively, as amended from time to time,
"Organic Documents"): (ii) the Trust's Registration Statement and all amendments
thereto filed with the U.S. Securities and Exchange Commission ("SEC") pursuant
to the Securities Act of 1933, as amended ("Securities Act"), or the 1940 Act
("Registration Statement"): (iii) the current prospectuses and statements of
additional information of each Fund and Class thereof (collectively, as
currently in effect and as amended or supplemented, the "Prospectus"): (iv) each
current plan of distribution or similar document adopted by the Trust under Rule
12b-1 under the 1940 Act ("Plan") and each current shareholder service plan or
similar document adopted by the Trust ("Service Plan"); and (v) all procedures
adopted by the Board of Trustees of the Trust (the "Board") with respect to the
Funds (e.g., repurchase agreement procedures), and shall promptly furnish
Foreside with all amendments of or supplements to the foregoing, as requested.
The Trust shall deliver to Foreside: (x) a certified copy of the resolution of
the Board appointing Foreside and authorizing the execution and delivery of this
Agreement; (y) a copy of all proxy statements and related materials relating to
the Funds; and (z) any other documents, materials or information that Foreside
shall reasonably request to enable it to perform its duties pursuant to this
Agreement.
SECTION 2. EXCLUSIVE NATURE OF DUTIES
Foreside shall be the exclusive representative of the Trust to act as
distributor of the Funds except that the rights given under this Agreement to
Foreside shall not apply to: (i) Shares issued in connection with the merger,
consolidation or reorganization of any other investment company or series or
class thereof with a Fund or Class thereof; (ii) a Fund's acquisition by
purchase or otherwise of all or substantially all of the assets or stock of any
other investment company or series or class thereof; (iii) the reinvestment in
Shares by a Fund's shareholders of dividends or other distributions; or (iv) any
other offering by the Trust of securities to its shareholders (collectively
"exempt transactions"). Such exclusive rights shall not apply to purchases made
directly through the Fund's transfer agent and dividend disbursing agent in a
manner set forth in the currently effective Prospectus of the Fund.
SECTION 3. OFFERING OF SHARES
(a) Foreside shall have the right to buy from the Trust the Shares
needed to fill unconditional orders for unsold Shares of the Funds as shall then
be effectively registered under the Securities Act placed with Foreside by
investors or selected dealers or selected agents (each as defined in Section 11
hereof) acting as agent for their customers or on their own behalf.
Alternatively, Foreside may act as the Trust's agent, to offer, and to solicit
offers to subscribe to, unsold Shares of the Funds as shall then be effectively
registered under the Securities Act.
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Foreside will promptly forward all orders and subscriptions to the Trust. The
price that Foreside shall pay for Shares purchased from the Trust shall be the
net asset value per Share, determined as set forth in Section 3(c) hereof, used
in determining the public offering price on which the orders are based. Shares
purchased by Foreside are to be resold by Foreside to investors at the public
offering price, as set forth in Section 3(b) hereof, or to selected dealers or
selected agents acting as agent for their customers that have entered into
agreements with Foreside pursuant to Section 11 hereof or acting on their own
behalf. The Trust reserves the right to sell Shares directly to investors
through subscriptions received by the Trust, but no such direct sales shall
affect the sales charges due to Foreside hereunder.
(b) The public offering price of the Shares of a Fund, i.e., the price
per Share at which Foreside or selected dealers or selected agents may sell
Shares to the public or to those persons eligible to invest in Shares as
described in the applicable Prospectus, shall be the public offering price
determined in accordance with the then currently effective Prospectus of the
Fund or Class thereof under the Securities Act relating to such Shares. The
public offering price shall not exceed the net asset value at which Foreside,
when acting as principal, is to purchase such Shares, plus, in the case of
Shares for which an initial sales charge is assessed, an initial charge equal to
a specified percentage or percentages of the public offering price of the Shares
as set forth in the current Prospectus relating to the Shares. In the case of
Shares for which an initial sales charge may be assessed, Shares may be sold to
certain classes of persons at reduced sales charges or without any sales charge
as from time to time set forth in the current Prospectus relating to the Shares.
The Trust will advise Foreside of the net asset value per Share at each time as
the net asset value per Share shall have been determined by the Trust and at
such other times as Foreside may reasonably request.
(c) The net asset value per Share of each Fund or Class thereof shall
be determined by the Trust, or its designated agent, in accordance with and at
the times indicated in the applicable Prospectus on each Fund business day in
accordance with the method set forth in the Prospectus and guidelines
established by the Trust's Board.
(d) The Trust reserves the right to suspend the offering of Shares of a
Fund or of any Class thereof at any time in the absolute discretion of the
Board, and upon notice of such suspension Foreside shall cease to offer Shares
of the Funds or Classes thereof specified in the notice.
(e) The Trust, or any agent of the Trust designated in writing to
Foreside by the Trust, shall be promptly advised by Foreside of all purchase
orders for Shares received by Foreside and all subscriptions for Shares obtained
by Foreside as agent shall be directed to the Trust for acceptance and shall not
be binding until accepted by the Trust. Any order or subscription may be
rejected by the Trust; provided, however, that the Trust will not arbitrarily or
without reasonable cause refuse to accept or confirm orders or subscriptions for
the purchase of Shares. The Trust or its designated agent will confirm orders
and subscriptions upon their receipt, will make appropriate book entries and,
upon receipt by the Trust or its designated agent of payment thereof, will issue
such Shares. Foreside agrees to cause such payment and such instructions to be
delivered promptly to the Trust or its designated agent.
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SECTION 4. REPURCHASE OR REDEMPTION OF SHARES BY THE TRUST
(a) Any of the outstanding Shares of a Fund or Class thereof may be
tendered for redemption at any time, and the Trust agrees to redeem or
repurchase the Shares so tendered in accordance with its obligations as set
forth in the Organic Documents and the Prospectus relating to the Shares. The
price to be paid to redeem or repurchase the Shares of a Fund of Class thereof
shall be equal to the net asset value calculated in accordance with the
provisions of Section 3(b) hereof less, in the case of Shares for which a
deferred sales charge is assessed, a deferred sales charge equal to a specified
percentage or percentages of the net asset value of those Shares as from time to
time set forth in the Prospectus relating to those Shares and less, in the case
of Shares for which a redemption fee is assessed, a redemption fee equal to the
charges as from time to time set forth in the Prospectus relating to those
Shares. Shares of a Fund or Class thereof for which a deferred sales charge or
redemption fee may be assessed and that have been outstanding for a specified
period of time may be redeemed without payment of a deferred sales charge or
redemption fee as from time to time set forth in the Prospectus relating to
those Shares.
(b) The Trust or its designated agent shall pay (i) the total amount of
the redemption price consisting of the redemption price (after applicable
redemption or other fees) less any applicable deferred sales charge to the
redeeming shareholder or its agent and (ii) except as may be otherwise required
by the Rules of Fair Practice (the "Rules") of the National Association of
Securities Dealers Regulation, Inc. (the "NASD") and any interpretations
thereof, any applicable deferred sales charges to Foreside in accordance with
Foreside's instructions on or before the fifth business day (or such other
earlier business day as is customary in the investment company industry)
subsequent to the Trust or its agent having received the notice of redemption in
proper form.
(c) Redemption of Shares or payment therefor may be suspended at times
when the New York Stock Exchange is closed for any reason other than its
customary weekend or holiday closings, when trading thereon is restricted, when
an emergency exists as a result of which disposal by the Trust of securities
owned by a Fund is not reasonably practicable or it is not reasonably
practicable for the Trust fairly to determine the value of a Fund's net assets,
or during any other period when the SEC so requires or permits.
SECTION 5. DUTIES AND REPRESENTATIONS OF FORESIDE
(a) Foreside shall use reasonable efforts to sell Shares of the Funds
upon the terms and conditions contained herein and in the then current
Prospectus. Foreside shall devote reasonable time and effort to effect sales of
Shares but shall not be obligated to sell any specific number of Shares. The
services of Foreside to the Trust hereunder are not to be deemed exclusive, and
nothing herein contained shall prevent Foreside from entering into like
arrangements with other investment companies so long as the performance of its
obligations hereunder is not impaired thereby.
(b) In selling Shares of the Funds, Foreside shall use its best efforts
in all material respects duly to conform with the requirements of all federal
and state laws relating to the sale of
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the Shares None of Foreside, any selected dealer, any selected agent or any
other person is authorized by the Trust to give any information or to make any
representations other than as is contained in a Fund's Prospectus or any
advertising materials or sales literature specifically approved in writing by
the Trust or its agents.
(c) Foreside shall adopt and follow procedures for the confirmation of
sales to investors and selected dealers or selected agents, the collection of
amounts payable by investors and selected dealers or selected agents on such
sales, and the cancellation of unsettled transactions, as may be necessary to
comply with the requirements of the NASD.
(d) Foreside shall attempt to maintain active sub-distribution
agreements, shareholder servicing agreements and other agreements related to the
distribution or servicing of the Funds with broker-dealers and other financial
intermediaries ("Dealers") who, prior to Foreside entering into the Distribution
Agreement, acted in similar capacities for a Fund, and assist Adviser in
obtaining additional agreements with broker-dealers and other financial
intermediaries.
(e) Foreside shall maintain membership with the National Securities
Clearing Corporation ("NSCC") with respect to the Funds so as to enable the
Shares to be traded through FundSERV and negotiate and execute appropriate
agreements related thereto with NSCC.
(f) Foreside shall pay to Dealers or direct the Funds' transfer agent
to pay to Dealers front-end commissions (if not deducted from the offering price
by a Dealer), other up-front payments with respect to the sale of Shares (for
instance, payments with respect to the sale of Shares that have back-end
commissions), distribution, service payments and other payments as may be
properly disclosed in a Fund's prospectus (as defined in the Distribution
Agreement) (collectively, "Dealer Distribution Payments").
(g) Foreside shall track and maintain appropriate information with
respect to payments made by each Fund under Rule 12b-1 under the 1940 Act and
other payments as required to ensure compliance with the Conduct Rules of the
National Association of Securities Dealers, Inc. ("NASD").
(h) Foreside shall maintain appropriate records with respect to Dealer
Distribution Payments, including records with respect to the financing of
up-front payments to Dealers with respect to the sale of Shares that have
back-end commissions and prepare pro-forma financial statements, expense and
profit/loss projections and fee waiver/expense reimbursement projections related
to Dealer Distribution Payments on a periodic basis.
(i) Foreside represents and warrants to the Trust that:
(i) It is a limited liability company duly organized and existing and
in good standing under the laws of the State of Delaware;
(ii) It is duly qualified to carry on its business in the State of
Maine;
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(iii) It is empowered under applicable laws and by its Operating
Agreement to enter into this Agreement and perform its duties under
this Agreement;
(iv) All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement;
(v) It has access to the necessary facilities, equipment and personnel
to perform its duties and obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of Foreside, enforceable against
Foreside in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties; and
(vii) It is registered under the 1934 Act with the SEC as a
broker-dealer, it is a member in good standing of the NASD, it will
abide by the rules and regulations of the NASD, and it will notify the
Trust if its membership in the NASD is terminated or suspended.
(j) Notwithstanding anything in this Agreement, including the
Appendices, to the contrary, Foreside makes no warranty or representation as to
the number of selected dealers or selected agents with which it has entered into
agreements in accordance with Section 11 hereof, as to the availability of any
Shares to be sold through any selected dealer, selected agent or other
intermediary or as to any other matter not specifically set forth herein.
SECTION 6. DUTIES AND REPRESENTATIONS OF THE TRUST
(a) The Trust shall furnish to Foreside copies of all financial
statements and other documents to be delivered to shareholders or investors at
least two Fund business days prior to such delivery and shall furnish Foreside
copies of all other financial statements, documents and other papers or
information which Foreside may reasonably request for use in connection with the
distribution of Shares. The Trust shall make available to Foreside the number of
copies of the Funds' Prospectuses as Foreside shall reasonably request.
(b) The Trust shall take, from time to time, subject to the approval of
the Board and any required approval of the shareholders of the Trust, all action
necessary to fix the number of authorized Shares (if such number is not limited)
and to register the Shares under the Securities Act, to the end that there will
be available for sale the number of Shares as reasonably may be expected to be
sold pursuant to this Agreement.
(c) The Trust (and not Foreside) shall execute any and all documents
and use its best efforts to take all actions reasonably necessary to register or
qualify Shares for sale under the securities laws of the various states of the
United States and other jurisdictions ("States"). The Trust or its agents (and
not Foreside) shall maintain, and pay all costs of obtaining and maintaining,
these registrations and qualifications. Any registration or qualification may be
withheld, terminated or withdrawn by the Trust at any time in its discretion.
Foreside shall
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furnish such information and other material relating to its affairs and
activities as may be required by the Trust in connection with such registration
or qualification. The Trust shall inform Foreside from time to time and as
requested of the various States in which each class of Shares is registered and
the amounts so registered.
(d) The Trust represents and warrants to Foreside that:
(i) It is a business trust duly organized and existing and in good
standing under the laws of the State of Delaware;
(ii) It is empowered under applicable laws and by its Organic Documents
to enter into and perform this Agreement;
(iii) All proceedings required by the Organic Documents have been taken
to authorize it to enter into and perform its duties under this
Agreement;
(iv) It is an open-end management investment company registered with
the SEC under the 1940 Act;
(v) All Shares, when issued, shall be validly issued, fully paid and
non-assessable;
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Trust, enforceable against
the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties;
(vii) The Registration statement will be effective and will remain
effective with respect to all Shares of the Funds and Classes thereof
being offered for sale;
(viii) The Registration Statement and Prospectuses conform or will
conform, as the case may be, in all material respects with the
requirements of the Securities Act and the rules and regulations
thereunder;
(ix) Neither the Registration Statement nor any Prospectus, when they
shall become effective or be authorized for use, will include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading to a purchaser of Shares;
(x) It will from time to time file such amendment or amendments to the
Registration Statement and Prospectuses as, in the light of
then-current and then-prospective developments, shall, in the opinion
of its counsel, be necessary in order to have the Registration
Statement and Prospectuses at all times contain all material facts
required to be stated therein or necessary to make any statements
therein not misleading to a purchaser of Shares ("Required
Amendments");
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(xi) It shall not file any amendment to the Registration Statement or
Prospectuses without giving Foreside reasonable advance notice thereof,
if practicable; provided, however, that nothing contained in this
Agreement shall in any way limit the Trust's right to file at any time
such amendments to the Registration Statement or Prospectuses, of
whatever character, as the Trust may deem advisable, such right being
in all respects absolute and unconditional; and
(xii) Any amendment to the Registration Statement or Prospectuses
hereafter filed will, when it becomes effective, conform in all
material respects with the 1940 Act and the rules and regulations
thereunder; and no such amendment, when it becomes effective, will
include an untrue statement of a material fact or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading to a purchaser of the Shares.
SECTION 7. STANDARD OF CARE
(a) Foreside shall use its best judgment and reasonable efforts in
rendering services to the Trust under this Agreement but shall be under no duty
to take any action except as specifically set forth herein or as may be
specifically agreed to by Foreside in writing. Foreside shall not be liable to
the Trust or any of the Trust's shareholders for any error of judgment or
mistake of law, for any loss arising out of any investment, or for any action or
inaction of Foreside in the absence of bad faith, willful misfeasance or
negligence in the performance of Foreside's duties or obligations under this
Agreement or by reason or Foreside's reckless disregard of its duties and
obligations under this Agreement
(b) Foreside Indemnitees (as defined in Section 8) shall not be liable
for any action taken or failure to act in good faith reliance upon:
(i) the reasonable advice of the Trust or of counsel approved by the
Trust, who may be counsel to the Trust or counsel to Foreside;
(ii) any oral instruction which it receives and which it reasonably
believes in good faith was transmitted by the person or persons
authorized by the Board to give such oral instruction (Foreside shall
have no duty or obligation to make any inquiry or effort of
certification of such oral instruction);
(iii) any written instruction or certified copy of any resolution of
the Board, and Foreside may rely upon the genuineness of any such
document or copy thereof reasonably believed in good faith by Foreside
to have been validly executed; or
(iv) any signature, instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report, notice,
consent, order, or other document reasonably believed in good faith by
Foreside to be genuine and to have been signed or presented by the
Trust or other proper party or parties;
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and Foreside shall not be under any duty or obligation to inquire into the
validity or invalidity or authority or lack thereof of any statement, oral or
written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order, or
any other document or instrument which Foreside reasonably believes in good
faith to be genuine.
(c) Foreside shall not be responsible or liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply. In addition, to the extent
Foreside's obligations hereunder are to oversee or monitor the activities of
third parties, Foreside shall not be liable for any failure or delay in the
performance of Foreside's duties caused, directly or indirectly, by the failure
or delay of such third parties in performing their respective duties or
cooperating reasonably and in a timely manner with Foreside.
SECTION 8. INDEMNIFICATION
(a) The Trust will indemnify, defend and hold Foreside, its employees,
agents, directors and officers and any person who controls Foreside within the
meaning of section 15 of the Securities Act or section 20 of the 1934 Act
("Foreside Indemnitees") free and harmless from and against any and all claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses of every nature and
character (including the cost of investigating or defending such claims,
demands, actions, suits or liabilities and any reasonable counsel fees incurred
in connection therewith) which any Foreside Indemnitee may incur, under the
Securities 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 the Prospectuses or arising out of or based upon any alleged
omission to state a material fact required to be stated in any one thereof or
necessary to make the statements in any one thereof not misleading, unless such
statement or omission was made in reliance upon, and in conformity with,
information furnished in writing to the Trust in connection with the preparation
of the Registration Statement or exhibits to the Registration Statement by or on
behalf of Foreside ("Foreside Claims").
After receipt of Foreside's notice of termination under Section 13(e),
the Trust shall indemnify and hold each Foreside Indemnitee free and harmless
from and against any Foreside Claim; provided, that the term Foreside Claim for
purposes of this sentence shall mean any Foreside Claim related to the matters
for which Foreside has requested amendment to the Registration Statement and for
which the Trust has not filed a Required Amendment, regardless of whether any
statement in or omission from the Registration Statement was made in reliance
upon, or in conformity with, information furnished to the Trust by or on behalf
of Foreside.
(b) The Trust may assume the defense of any suit brought to enforce any
Foreside Claim and may retain counsel of good standing chosen by the Trust and
approved by Foreside,
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which approval shall not be withheld unreasonably. The Trust shall advise
Foreside that it will assume the defense of the suit and retain counsel within
ten (10) days of receipt of the notice of the claim. If the Trust assumes the
defense of any such suit and retains counsel, the defendants shall bear the fees
and expenses of any additional counsel that they retain. If the Trust does not
assume the defense of any such suit, or if Foreside does not approve of counsel
chosen by the Trust or has been advised that it may have available defenses or
claims that are not available to or conflict with those available to the Trust,
the Trust will reimburse any Foreside Indemnitee named as defendant in such suit
for the reasonable fees and expenses of any counsel that person retains. A
Foreside Indemnitee shall not settle or confess any claim without the prior
written consent of the Trust, which consent shall not be unreasonably withheld
or delayed.
(c) Foreside will indemnify, defend and hold the Trust and its several
officers and Trustees and any person who controls the Trust within the meaning
of Section 15 of the Securities Act (collectively, the "Trust Indemnitees"),
free and harmless from and against any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees
and other expenses of every nature and character (including the cost of
investigating or defending such claims, demands, actions, suits or liabilities
and any reasonable counsel fees incurred in connection therewith), but only to
the extent that such claims, demands, actions, suits, judgments, liabilities,
losses, damages, costs, charges, reasonable counsel fees and other expenses
result from, arise out of or are based upon:
(i) any alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus or any alleged omission of a
material fact required to be stated or necessary to make the statements
therein not misleading, if such statement or omission was made in
reliance upon, and in conformity with, information furnished to the
Trust in writing in connection with the preparation of the Registration
Statement or Prospectus by or on behalf of Foreside; or
(ii) any act of, or omission by, Foreside or its sales representatives
that does not conform to the standard of care set forth in Section 7 of
this Agreement ("Trust Claims").
(d) Foreside may assume the defense of any suit brought to enforce any
Trust Claim and may retain counsel of good standing chosen by Foreside and
approved by the Trust, which approval shall not be withheld unreasonably.
Foreside shall advise the Trust that it will assume the defense of the suit and
retain counsel within ten (10) days of receipt of the notice of the claim. If
Foreside assumes the defense of any such suit and retains counsel, the
defendants shall bear the fees and expenses of any additional counsel that they
retain. If Foreside does not assume the defense of any such suit, or if Trust
does not approve of counsel chosen by Foreside or has been advised that it may
have available defenses or claims that are not available to or conflict with
those available to Foreside, Foreside will reimburse any Trust Indemnitee named
as defendant in such suit for the reasonable fees and expenses of any counsel
that person retains. A Trust Indemnitee shall not settle or confess any claim
without the prior written consent of Foreside, which consent shall not be
unreasonably withheld or delayed.
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(e) The Trust's and Foreside's obligations to provide indemnification
under this Section is conditioned upon the Trust or Foreside receiving notice of
any action brought against a Foreside Indemnitee or Trust Indemnitee,
respectively, by the person against whom such action is brought within twenty
(20) days after the summons or other first legal process is served. Such notice
shall refer to the person or persons against whom the action is brought. The
failure to provide such notice shall not relieve the party entitled to such
notice of any liability that it may have to any Foreside Indemnitee or Trust
Indemnitee except to the extent that the ability of the party entitled to such
notice to defend such action has been materially adversely affected by the
failure to provide notice.
(f) The provisions of this Section and the parties' representations and
warranties in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Foreside Indemnitee
or Trust Indemnitee and shall survive the sale and redemption of any Shares made
pursuant to subscriptions obtained by Foreside. The indemnification provisions
of this Section will inure exclusively to the benefit of each person that may be
a Foreside Indemnitee or Trust Indemnitee at any time and their respective
successors and assigns (it being intended that such persons be deemed to be
third party beneficiaries under this Agreement).
(g) Each party agrees promptly to notify the other party of the
commencement of any litigation or proceeding of which it becomes aware arising
out of or in any way connected with the issuance or sale of Shares.
(h) Nothing contained herein shall require the Trust to take any action
contrary to any provision of its Organic Documents or any applicable statute or
regulation or shall require Foreside to take any action contrary to any
provision of its Organic Documents or any applicable statute or regulation;
provided, however, that neither the Trust nor Foreside may amend their Organic
Documents in any manner that would result in a violation of a representation or
warranty made in this Agreement.
(i) Nothing contained in this section shall be construed to protect
Foreside against any liability to the Trust or its security holders to which
Foreside would otherwise be subject by reason of its failure to satisfy the
standard of care set forth in Section 7 of this Agreement.
SECTION 9. NOTIFICATION BY THE TRUST
The Trust shall advise Foreside immediately: (i) of any request by the
SEC for amendments to the Trust's Registration Statement or Prospectus or for
additional information; (ii) in the event of the issuance by the SEC of any stop
order suspending the effectiveness of the Trust's Registration Statement or any
Prospectus or the initiation of any proceedings for that purpose; (iii) of the
happening of any material event which makes untrue any statement made in the
Trust's then current Registration Statement or Prospectus or which requires the
making of a change in either thereof in order to make the statements therein not
misleading; and (iv) of all action of the SEC with respect to any amendments to
the Trust's Registration Statement or
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Prospectus which may from time to time be filed with the Commission under the
1940 Act or the Securities Act.
SECTION 10. COMPENSATION AND EXPENSES
(a) In consideration of Foreside's services in connection with the
distribution of Shares of each Fund and Class thereof, Foreside shall receive:
(i) any applicable sales charge assessed upon investors in connection with the
purchase of Shares; (ii) from the Trust, any applicable contingent deferred
sales charge ("CDSC") assessed upon investors in connection with the redemption
of Shares; (iii) from the Trust, the distribution and / or service fees with
respect to the Shares of those Classes as designated in Appendix A for which a
Plan is effective (the "Distribution Fee"); and (iv) from the Trust, the
shareholder service fees with respect to the Shares of those Classes as
designated in Appendix A for which a Service Plan is effective (the "Shareholder
Service Fee"). The Distribution Fee and Shareholder Service Fee shall be accrued
daily by each applicable Fund or Class thereof and shall be paid monthly as
promptly as possible after the last day of each calendar month but in any event
on or before the fifth (5th) Fund business day after month-end, at the rate or
in the amounts set forth in Appendix A and, as applicable, the Plan(s).
(b) In order for Foreside to perform its duties hereunder, the Trust
shall cause its transfer agent (the "Transfer Agent") (i) to withhold from
redemption proceeds payable to holders of Shares of the Funds and the Classes
thereof, all CDSCs properly payable by the shareholders in accordance with the
terms of the applicable Prospectus and pay such amounts to Foreside as promptly
as practicable, (ii) to pay to Foreside all initial sales charges (net of dealer
reallowances) and, (iii) to report to Foreside any information that may be
necessary for Foreside to perform its duties under this Agreement.
(c) Except as specified in Sections 8 and 10(a), Foreside shall be
entitled to no compensation or reimbursement of expenses for the services
provided by Foreside pursuant to this Agreement. Foreside may receive
compensation from Xxxxxxxxx Global Investors (North America) Inc. ("Adviser")
related to its services hereunder or for additional services all as may be
agreed to between the Adviser and Foreside.
(d) The Trust shall be responsible and assumes the obligation for
payment of all the expenses of the Funds, including fees and disbursements of
its counsel and auditors, in connection with the preparation and filing of the
Registration Statement and Prospectuses (including but not limited to the
expense of setting in type the Registration Statement and Prospectuses and
printing sufficient quantities for internal compliance, regulatory purposes and
for distribution to current shareholders).
(e) The Trust shall bear the cost and expenses: (i) of the registration
of the Shares for sale under the Securities Act; (ii) of the registration or
qualification of the Shares for sale under the securities laws of the various
States; (iii) if necessary or advisable in connection therewith, of qualifying
the Trust, the Funds or the Classes thereof (but not Foreside) as an issuer or
as a broker or dealer, in such States as shall be selected by the Trust and
Foreside pursuant to Section
12
6(c) hereof; and (iv) payable to each State for continuing registration or
qualification therein until the Trust decides to discontinue registration or
qualification pursuant to Section 6(c) hereof. Foreside shall pay all expenses
relating to Foreside's broker-dealer qualification.
SECTION 11. SELECTED DEALER AND SELECTED AGENT AGREEMENTS
Foreside shall have the right to enter into selected dealer agreements
with securities dealers of its choice ("selected dealers") and selected agent
agreements with depository institutions and other financial intermediaries of
its choice ("selected agents") for the sale of Shares and to fix therein the
portion of the sales charge, if any, that may be allocated to the selected
dealers or selected agents; provided, that the Trust shall approve the forms of
agreements with selected dealers or selected agents and shall review the
compensation set forth therein. Shares of each Fund or Class thereof shall be
resold by selected dealers or selected agents only at the public offering
price(s) set forth in the Prospectus relating to the Shares. Within the United
States, Foreside shall offer and sell Shares of the Funds only to such selected
dealers as are members in good standing of the NASD.
SECTION 12. CONFIDENTIALITY
Foreside agrees to treat all records and other information related to
the Trust as proprietary information of the Trust and, on behalf of itself and
its employees, to keep confidential all such information, except that Foreside
may:
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) upon notice to the Trust, but not if the Trust objects, provide
information typically supplied in the investment company industry to companies
that track or report price, performance or other information regarding
investment companies; and
(c) release such other information as approved by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where
Foreside is advised by counsel that it may be exposed to civil or criminal
contempt proceedings for failure to release the information (provided, however,
that Foreside shall seek the approval of the Trust as promptly as possible so as
to enable the Trust to pursue such legal or other action as it may desire to
prevent the release of such information) or when so requested by the Trust.
Both parties acknowledge that they are required by Regulation S-P (17
CFR 248.1-248.30) to keep nonpublic personal information about their customers
("Shareholder Information") confidential. Both parties further acknowledge that
all information that they receive pursuant to this Agreement with respect to
shareholders of the Trust and their transactions is deemed nonpublic personal
information for the purposes of Regulation S-P.
Notwithstanding that fund shareholders may be deemed "customers" of
Foreside under Regulation S-P, Foreside expressly acknowledges and agrees that
the identity of and all
13
information and records relating to shareholders of the Trust is the sole
property of the Trust. Foreside agrees that it shall not use or disclose
Shareholder Information other than to carry out the purposes of providing
services under this Agreement. Foreside may, upon the consent of the Trust
(which consent shall not be unreasonably withheld), include its privacy notice
in the fulfillment kits or other scheduled mailings of the Trust.
Foreside may disclose Shareholder Information to its affiliates as long
as such affiliates shall be restricted in use and disclosure of the Customer
Information to the same extent as Foreside. The Trust may use Shareholder
Information in any manner permitted under its then current privacy policy.
Both parties shall establish data security policies and procedures that
are reasonably designed to ensure the security and confidentiality of Customer
Information, protect against anticipated threats or hazards to the security and
integrity of Customer Information and protect against unauthorized access to or
use of Customer Information that could result in substantial harm or
inconvenience to a customer of either party. For purposes of this paragraph, the
term "affiliate" shall have the meaning set forth in Section 248.3(a) of the
Regulation S-P. The restrictions set forth in this paragraph shall apply during
the term of and after the termination of this Agreement. To the extent any
provisions of this paragraph conflict with other terms of this Agreement, this
paragraph shall control.
SECTION 13. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each Fund on
the later of (i) the Effective Date or (ii) the date on which the Trust's
Registration Statement relating to Shares of the Fund becomes effective. Upon
effectiveness of this Agreement, it shall supersede all previous agreements
between the parties hereto covering the subject matter hereof insofar as such
Agreement may have been deemed to relate to the Funds.
(b) This Agreement shall continue in effect with respect to a Fund
until August 31, 2009 and thereafter shall continue in effect with respect to a
Fund until terminated; provided, that continuance is specifically approved at
least annually (i) by the Board or by a vote of a majority of the outstanding
voting securities of the Fund and (ii) by a vote of a majority of Trustees of
the Trust (x) who are not parties to this Agreement or interested persons of any
such party (other than as Trustees of the Trust) and (y) with respect to each
class of a Fund for which there is an effective Plan, who do not have any direct
or indirect financial interest in any such Plan applicable to the class or in
any agreements related to the Plan, cast in person at a meeting called for the
purpose of voting on such approval.
(c) This Agreement may be terminated at any time with respect to a
Fund, without the payment of any penalty, (i) by the Board or by a vote of a
majority of the outstanding voting securities of the Fund or, with respect to
each class of a Fund for which there is an effective Plan, a majority of
Trustees of the Trust who do not have any direct or indirect financial interest
in any such Plan or in any agreements related to the Plan, on sixty (60) days'
written notice to Foreside or (ii) by Foreside on sixty (60) days' written
notice to the Trust.
14
(d) This Agreement shall automatically terminate upon its assignment
and upon the termination of Foreside's membership in the NASD.
(e) If the Trust shall not file a Required Amendment within fifteen
days following receipt of a written request from Foreside to do so, Foreside
may, at its option, terminate this Agreement immediately.
(f) The obligations of Sections 5(d), 6(d), 8, 9 and 10 shall survive
any termination of this Agreement.
SECTION 14. ACTIVITIES OF FORESIDE
Except to the extent necessary to perform Foreside's obligations
hereunder, nothing herein shall be deemed to limit or restrict Foreside's right,
or the right of any of Foreside's employees, agents, officers or directors who
may also be a trustee, officer or employee of the Trust, or affiliated persons
of the Trust to engage in any other business or to devote time and attention to
the management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other corporation,
trust, firm, individual or association.
SECTION 15. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Fund shall not
be liable for any obligations of the Trust or of the Funds under this Agreement,
and Foreside agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Trust or the
Fund to which Foreside's rights or claims relate in settlement of such rights or
claims, and not to the Trustees of the Trust or the shareholders of the Funds.
SECTION 16. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement.
(b) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
15
(e) This Agreement may be executed by the parties hereto on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by both
Foreside and Trust and no presumptions shall arise favoring any party by virtue
of authorship of any provision of this Agreement.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal addresses, or at such other address as a
party may have designated in writing, shall be deemed to have been properly
given.
(i) Nothing contained in this Agreement is intended to or shall require
Foreside, in any capacity hereunder, to perform any functions or duties on any
day other than a Fund business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund business day shall be performed on, and
as of, the next Fund business day, unless otherwise required by law.
(j) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund are separate and distinct
from the assets and liabilities of each other Fund and that no Fund shall be
liable or shall be charged for any debt, obligation or liability of any other
Fund, whether arising under this Agreement or otherwise.
(k) No affiliated person, employee, agent, officer or director of
Foreside shall be liable at law or in equity for Foreside's obligations under
this Agreement.
(l) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
(m) The terms "vote of a majority of the outstanding voting
securities," "interested person," "affiliated person" and "assignment" shall
have the meanings ascribed thereto in the 1940 Act.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
XXXXXXXXX GLOBAL FUNDS
By: /s/ Xxxx Xxxxxxxxx
---------------------
Xxxx Xxxxxxxxx
President
FORESIDE FUND SERVICES, LLC
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
Vice President
17
XXXXXXXXX GLOBAL FUNDS
DISTRIBUTION AGREEMENT
APPENDIX A
AS OF MARCH 31, 2009
------------------------------------- ---------------------- ---------------------------- ----------------------------
DISTRIBUTION FEES PAYABLE SHAREHOLDER SERVICE FEES
FUNDS OF THE TRUST CLASSES OF THE TRUST TO FORESIDE* PAYABLE TO FORESIDE*
------------------------------------- ---------------------- ---------------------------- ----------------------------
Xxxxxxxxx European Focus Fund A 0.25% NONE
B 0.75% 0.25%
C 0.75% 0.25%
------------------------------------- ---------------------- ---------------------------- ----------------------------
Xxxxxxxxx Global Technology Fund A 0.25% NONE
B 0.75% 0.25%
C 0.75% 0.25%
------------------------------------- ---------------------- ---------------------------- ----------------------------
Xxxxxxxxx International A 0.25% NONE
Opportunities Fund B 0.75% 0.25%
C 0.75% 0.25%
R 0.50% NONE
------------------------------------- ---------------------- ---------------------------- ----------------------------
Xxxxxxxxx Worldwide Income Fund A 0.25% NONE
B 0.75% 0.25%
C 0.75% 0.25%
------------------------------------- ---------------------- ---------------------------- ----------------------------
Henderson US Focus Fund A 0.25% NONE
B 0.75% 0.25%
C 0.75% 0.25%
------------------------------------- ---------------------- ---------------------------- ----------------------------
Xxxxxxxxx Japan-Asia Focus Fund A 0.25% NONE
C 0.75% 0.25%
------------------------------------- ---------------------- ---------------------------- ----------------------------
Xxxxxxxxx Global Equity Income Fund A 0.25% NONE
C 0.75% 0.25%
------------------------------------- ---------------------- ---------------------------- ----------------------------
Xxxxxxxxx Global Opportunities Fund A 0.25% NONE
C 0.75% 0.25%
------------------------------------- ---------------------- ---------------------------- ----------------------------
Xxxxxxxxx International Equity Fund I _____ _____
------------------------------------- ---------------------- ---------------------------- ----------------------------
Xxxxxxxxx Global Real Estate I _____ _____
Equities Fund
------------------------------------- ---------------------- ---------------------------- ----------------------------
Xxxxxxxxx Industries of the Future A 0.25% NONE
Fund C 0.75% 0.25%
------------------------------------- ---------------------- ---------------------------- ----------------------------
* Fee as a % of the annual average daily net assets of the Fund
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