DISTRIBUTION AGREEMENT
This Distribution Agreement is made as of this ___day of
________ , 1995 between Xxxxx Treasury Fund, a Massachusetts business trust
(herein called the "Trust"), and Xxxxx Funds, Inc., a Florida corporation
(herein called the "Distributor").
WHEREAS, the Trust is an open-end management investment company
and is so registered under the Investment Company Act of 1940; and
WHEREAS, the Trust desires to retain the Distributor as
Distributor for each of the Trust's separate portfolios -- currently, the Xxxxx
Treasury Only Money Market Fund, Xxxxx Intermediate Treasury Fund and Xxxxx
Treasury Bond Fund, together with all other portfolios, if any, subsequently
established by the Trust (individually known as a "Fund" and collectively
"Funds") -- to provide for the sale and distribution of shares of beneficial
interest of the Funds, each such share having a par value of $.001 (herein
collectively called "Shares"), and the Distributor is willing to render such
services;
NOW THEREFORE, in consideration of premises and mutual covenants
set forth herein the parties hereto agree as follows:
1. Delivery of Documents. The Trust has delivered to the Distributor
copies of each of the following documents and will deliver to it all future
amendments and supplements thereto, if any:
(a) The Trust's Agreement and Declaration of Trust and all
amendments thereto (such Agreement and Declaration of Trust, as presently in
effect and as it shall from time to time be amended, herein called the "Trust's
Declaration");
(b) The By-Laws of the Trust (such By-Laws, as presently in
effect and as they shall from time to time be amended, herein called the "By-
Laws");
(c) Resolutions of the Board of Trustees of the Trust
authorizing the execution and delivery of this Agreement;
(d) The Trust's Registration Statement under the Securities Act
of 1933, as amended (the "1933 Act"), and the Investment Company Act of 1940, as
amended (the "1940 Act"), on Form N-1A as filed with the Securities and Exchange
Commission (the "Commission") on _____________, 1995 and all subsequent
amendments thereto (said Registration Statement, as presently in effect and as
amended or supplemented from time to time, is herein called the "Registration
Statement");
(e) Notification of Registration of the Trust under the 1940
Act on Form N-8A as filed with the Commission; and
(f) Prospectuses and Statements of Additional Information of
the Funds (such prospectuses and statements of additional information, as
presently filed with the Securities and Exchange Commission and as they shall
from time to time be amended and supplemented, herein called individually the
"Prospectus" and collectively the "Prospectuses").
2. Registration and Sale of Additional Shares. The Trust will from time to
time use its best efforts to register under the 1933 Act such number of Shares
not already registered as the Distributor may reasonably be expected to sell on
behalf of the Trust. The Trust and the Distributor will cooperate in taking
such action as may be necessary from time to time to qualify Shares so
registered for sale by the Trust or the Distributor in any states mutually
agreeable to the Trust and the Distributor, and to maintain such qualification.
This Agreement relates to the issue and sale of Shares that are duly authorized
and registered and available for sale by the Trust, including redeemed or
repurchased Shares if and to the extent that they may be legally sold and if,
but only if, the Trust sees fit to sell them.
3. Sale of Shares. Subject to the provisions of paragraphs 5 and 7 hereof
and to such minimum purchase requirements as may from time to time be currently
indicated in the Trust's prospectus or statement of additional information, the
Distributor is authorized to sell as agent on behalf of the Trust Shares
authorized for issue and as agent on behalf of the Trust Shares authorized for
issue and registered under the 1933 Act. The Distributor may also purchase as
principal Shares for resale to the public. Such sales will be made by the
Distributor on behalf of the Trust by accepting unconditional orders to
purchase Shares placed with the Distributor by investors and such purchases
will be made by the Distributor after its acceptance of such orders. The sales
price to the public of Shares shall be the public offering price as defined in
paragraph 6 hereof.
4. Solicitation of Orders. The Distributor will use its best efforts (but
only in states in which it may lawfully do so) to obtain from investors
unconditional orders for Shares authorized for issue by the Trust and
registered under the 1933 Act, provided that the Distributor may in its
discretion refuse to accept orders for Shares from any particular applicant.
5. Sale of Shares by the Trust. Unless the Distributor is otherwise
notified by the Trust, any right granted to the Distributor to accept orders
for Shares or to make sales on behalf of the Trust or to purchase Shares for
resale will not apply to (i) Shares issued in connection with the merger or
consolidation of any other investment company with the Trust or its
acquisition, by purchase or otherwise, of all or substantially all of the
assets of any investment company or substantially all of the outstanding shares
of any such company, and (ii) to Shares that may be offered by the Trust to
shareholders of the Trust by virtue of their being shareholders.
6. Public Offering Price. All Shares sold to investors by the Distributor
will be sold at the public offering price. The public offering price for all
accepted subscriptions will be the net asset value per Share, determined, in
the manner provided in the Trust's registration statements as from time to time
in effect under the 1933 Act and the 1940 Act, next after the order is accepted
by the Distributor.
7. Suspension of Sales. If and whenever the determination of net asset
value is suspended and until such suspension is terminated, the Distributor
shall not accept further orders for Shares except unconditional orders placed
with the Distributor before it had knowledge of the suspension. In addition,
the Trust reserves the right to suspend sales and the Distributor's authority
to accept orders for Shares on behalf of the Trust if, in the judgment of a
majority of the Board of Trustees or a majority of the Executive Committee of
such Board, if such body exists, it is in the best interests of the Trust to do
so, such suspension to continue for such period as may be determined by such
majority; and in that event, no Shares will be sold by the Distributor on
behalf of the Trust while such suspension remains in effect except for Shares
necessary to cover unconditional orders accepted by the Distributor before it
had knowledge of the suspension.
8. Portfolio Securities. Portfolio securities of any Portfolio of the
Trust may be bought or sold by or through the Distributor and the Distributor
may participate directly or indirectly in brokerage commissions or "spread" in
respect to transactions in portfolio securities of any Portfolio of the Trust;
provided, however, that all sums of money received by the Distributor as a
result of such purchases and sales or as a result of such participation must,
after reimbursement of its actual expenses in connection with such activity, be
paid over by the Distributor to or for the benefit of the Trust.
9. Expenses. (a) The Trust will pay (or will enter into arrangements
providing that others than the Distributor will pay) all fees and expenses:
(1) in connection with the preparation, setting in type and filing
of any registration statement (including a prospectus and statement of
additional information) under the 1933 Act or the 1940 Act, or both, and any
amendments or supplements thereto that may be made from time to time;
(2) in connection with the registration and qualification of Shares
for sale in the various jurisdictions in which the Trust shall determine it
advisable to qualify such Shares for sale (including registering the Trust as a
broker or dealer or any officer of the Trust or other person as agent or
salesman of the Trust in any such jurisdictions);
(3) of preparing, setting in type, printing and mailing any notice,
proxy statement, report, prospectus or other communication to shareholders of
the Trust in their capacity as such;
(4) of preparing, setting in type, printing and mailing prospectuses
annually, and any supplements thereto, to existing shareholders;
(5) in connection with the issue and transfer of Shares resulting
from the acceptance by the Distributor of orders to purchase Shares placed with
the Distributor by investors, including the expenses of printing and mailing
confirmations of such purchase orders and the expenses of printing and mailing a
prospectus included with the confirmation of such orders;
(6) of any issue taxes or any initial transfer taxes;
(7) of WATS (or equivalent) telephone lines other than the portion
allocated to the Distributor in this paragraph 9;
(8) of wiring funds in payment of Share purchases or in satisfaction
of redemption or repurchase requests, unless such expenses are paid for by the
investor or shareholder who initiates the transaction;
(9) of the cost of printing and postage of business reply envelopes
sent to Trust shareholders;
(10) of one or more CRT terminals connected with the compute
facilities of the transfer agent other than the portion allocated to the
Distributor in this paragraph 9;
(11) permitted to be paid or assumed by the Trust pursuant to a plan
("12b-1 Plan"), if any, adopted by the Trust in conformity with the
requirements of Rule 12b-1 under the 1940 Act ("Rule 12b-1") or any successor
rule, notwithstanding any other provision to the contrary herein;
(12) of the expense of setting in type, printing and postage of a
periodic newsletter to shareholders other than the portion allocated to the
Distributor in this paragraph 9; and
(13) of the salaries and overhead of persons employed by the
Distributor as shareholder representatives other than the portion allocated to
the Distributor in this paragraph 9.
b) The Distributor shall pay or arrange for the payment of all fees and
expenses:
(1) of printing and distributing any prospectuses or reports
prepared for its use in connection with the offering of Shares to the public;
(2) of preparing, setting in type, printing and mailing any other
literature used by it in connection with the offering of Shares to the public;
(3) of advertising in connection with the offering of Shares to the
public;
(4) incurred in connection with its registration as a broker or
dealer or the registration or qualification of its officers, trustees, agents,
or representatives under federal and state laws;
(5) of that portion of WATS (or equivalent) telephone lines,
allocated to it on the basis of use by investors (but not shareholders) who
request information or prospectuses;
(6) of that portion of the expenses of setting in type, printing and
postage of a periodic newsletter to shareholders attributable to promotional
material included in such newsletter at the Distributor's request concerning
investment companies other than the Trust or concerning the Trust to the extent
it is required to assume the expense thereof pursuant to paragraph 9(b)(8),
except such material which is limited to information, such as listings of other
investment companies and their investment objectives, given in connection with
the exchange privilege as from time to time described in the Trust's prospectus;
(7) of that portion of the salaries and overhead of persons employed
by it as shareholder representatives attributable to the time spent by such
persons in responding to requests from investors, but not shareholders, for
information about the Trust;
(8) of any activity which is primarily intended to result in the
sale of Shares, unless a 12b-1 Plan shall be in effect which provides that the
Trust shall bear some or all of such expenses, in which case the Trust shall
bear such expenses in accordance with such Plan; and
(9) of that portion of one or more CRT terminals connected with the
computer facilities of the transfer agent attributable to its use of such
terminal(s) to gain access to such of the transfer agent's records as also
serve as its records.
Expenses which are to be allocated between the Distributor and the Trust
shall be allocated pursuant to reasonable procedures or formulae mutually
agreed upon from time to time, which procedures or formulae shall to the extent
practicable reflect studies of relevant empirical data.
10. Conformity with Law. The Distributor agrees that in selling Shares it
will duly conform in all respects with the laws of the United States and any
state in which Shares may be offered for sale by it pursuant to this Agreement
and to the rules and regulations of the National Association of Securities
Dealers, Inc., of which the Distributor is a member.
11. Independent Contractor. The Distributor shall be an independent
contractor and neither the Distributor nor any of its officers or employees is
or shall be an employee of the Trust in the performance of its duties
hereunder. The Distributor shall be 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 shall assume full responsibility for its agents and employees under
applicable statutes and agree to pay all employee taxes thereunder.
12. Indemnification. The Distributor agrees to indemnify and hold harmless
the Trust and each of its Trustees and officers and each person, if any, who
controls the Trust within the meaning of Section 15 of the 1933 Act, against
any and all losses, claims, damages, liabilities or litigation (including legal
and other expenses) to which the Trust or such Trustees, officers, or
controlling person may become subject under such Act, under any other statute,
at common law or otherwise, arising out of the acquisition of any Shares by any
person which (i) may be based upon any wrongful act by the Distributor or any
of its employees or representatives, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement (including a prospectus or statement of additional
information) covering Shares or any amendment thereof or supplement thereto or
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement therein not misleading if
such statement or omission was made in reliance upon information furnished to
the Trust by the Distributor, or (iii) may be incurred or arise by reason of
its acting as the Trust's agent instead of purchasing and reselling Shares as
principal in distributing the Shares to the public, provided, however, that in
no case (i) is its indemnity in favor of a trustee or officer or any other
person deemed to protect such trustee or officer or other person against any
liability to which any such person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties or by reason of his reckless disregard of obligations
and duties under this Agreement or (ii) is the Distributor to be liable under
its indemnity agreement contained in this paragraph with respect to any claim
made against the Trust or any person indemnified unless the Trust or such
person, as the case may be, shall have notified the Distributor in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claims shall have been served upon the Trust or
upon such person (or after the Trust or such person shall have received notice
of such service on any designated agent), but failure to notify the Distributor
of any such claim shall not relieve it from any liability which it may have to
the Trust or any person against whom such action is brought otherwise than on
account of its indemnity agreement contained in this paragraph. The Distributor
shall be entitled to participate, at its own expense, in the defense, or, if it
so elects, to assume the defense of any suit brought to enforce any such
liability, but if it elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory to the Trust, to its officers
and Trustees, or to any controlling person or persons, defendant or defendants
in the suit. In the event that the Distributor elects to assume the defense of
any such suit and retain such counsel, the Trust, such officers and Trustees or
controlling person or persons, defendant or defendants in the suit shall bear
the fees and expenses of any additional counsel retained by them, but, in case
the Distributor does not elect to assume the defense of any such suit, it will
reimburse the Trust, such officers and Trustees or controlling person or
persons, defendant or defendants in such suit for the reasonable fees and
expenses of any counsel retained by them. The Distributor agrees promptly to
notify the Trust of the commencement of any litigation or proceedings against it
in connection with the issue and sale of any Shares.
The Trust agrees to indemnify and hold harmless the Distributor and each
of its trustees and officers and each person, (if any, who controls the
Distributor within the meaning of Section 15 of the 1933 Act, against any and
all losses, claims, damages, liabilities or litigation (including legal and
other expenses) to which the Distributor or such trustees, officers or
controlling person may become subject under such Act, under any other statute,
at common law or otherwise, arising out of the acquisition of any Shares by any
person which (i) may be based upon any wrongful act by the Trust or any of its
employees or representatives, or (ii) may be based upon any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement (including a prospectus or statement of additional information)
covering Shares or any amendment thereof or supplement thereto or 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 if such
statement or omission was made in reliance upon information furnished to the
Distributor by the Trust; provided, however, that in no case (i) is the Trust's
indemnity in favor of a trustee or officer or any other person deemed to protect
such trustee or officer or other person against any liability to which any such
person would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of his duties or by reason of his
reckless disregard of obligations and duties under this Agreement or (ii) is the
Trust to be liable under its indemnity agreement contained in this paragraph
with respect to any claims made against the Distributor or any such trustee,
officer or controlling person unless the Distributor or such trustee, officer or
controlling person, as the case may be, shall have notified the Trust in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon the
Distributor or upon such trustee, officer or controlling person (or after the
Distributor or such trustee, officer or controlling person shall have received
notice of such service on any designated agent), but failure to notify the Trust
of any such claim shall not relieve it from any liability which it may have to
the person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. The Trust will be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce any such liability, but if the Trust
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Distributor, its trustees, officers, or
controlling person or persons, defendant or defendants in the suit. In the event
that the Trust elects to assume the defense of any such suit and retain such
counsel, the Distributor, its trustees, officers or controlling person or
persons, defendant or
defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Trust agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or trustees in connection with the issuance or sale of any Shares.
13. Authorized Representations. The Trust is not authorized to give any
information or to make any representations on behalf of the Distributor other
than the information and representations contained in a registration statement
(including a prospectus or statement of additional information) covering
Shares, as such registration statement and prospectus may be amended or
supplemented from time to time.
The Distributor is not authorized to give any information or to make any
representations on behalf of the Trust or in connection with the sale of Shares
other than the information and representations contained in a registration
statement (including a prospectus or statement of additional information)
covering Shares, as such registration statement may be amended or supplemented
from time to time. No person other than the Distributor is authorized to act
as principal underwriter (as such term is defined in the 0000 Xxx) for the
Trust.
14. Duration and Termination of this Agreement. This Agreement shall become
effective upon the date first written above and will remain in effect until
___________, 1997 and from year to year thereafter, but only so long as such
continuance is specifically approved at least annually by the vote of a
majority of the trustees who are not interested persons of the Distributor or
of the Trust, cast in person at a meeting called for the purpose of voting on
such approval, and by vote of the Board of Trustees or of a majority of the
outstanding voting securities of the Trust. This Agreement may, on 60 days'
written notice, be terminated at any time without the payment of any penalty,
by the Board of Trustees of the Trust, by a vote of a majority of the
outstanding voting securities of the Trust, or by the Distributor. This
Agreement will automatically terminate in the event of its assignment. In
interpreting the provisions of this paragraph 14, the definitions contained in
Section 2(a) of the 1940 Act (particularly the definitions of "interested
person", "assignment" and "majority of the outstanding voting securities"), as
modified by any applicable order of the Securities and Exchange Commission,
shall be applied.
15. Amendment of this Agreement. No provisions of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. If the Trust should at any time deem it
necessary or advisable in the best interests of the Trust that any amendment of
this Agreement be made in order to comply with the recommendations or
requirements of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under state or federal tax laws and should
notify the Distributor of the form of such amendment, and the reasons therefor,
and if the Distributor should decline to assent to such amendment, the Trust
may terminate this Agreement forthwith. If the Distributor should at any time
request that a change be made in the Trust's Declaration of Trust or By-laws or
in its methods of doing business, in order to comply with any requirements of
federal law or regulations of the Securities and Exchange Commission or of a
national securities association of which the Distributor is or may be a member
relating to the sale of shares of the Trust, and the Trust should not make such
necessary change within a reasonable time, the Distributor may terminate this
Agreement forthwith.
16. Termination of Prior Agreements. This Agreement upon its effectiveness
terminates and supersedes all prior underwriting contracts between parties.
17. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. Subject to the provisions of Section VI hereof, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and shall be governed by Massachusetts law;
provided, however, that nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or regulation of the Commission
thereunder.
18. Massachusetts Business Trust. The Trust is organized as a
Massachusetts business trust, and references in this Agreement to the Trust
mean and refer to the Trustees from time to time serving under its Declaration
of Trust on file with the Secretary of State of the Commonwealth of
Massachusetts, as the same may be amended from time to time, pursuant to which
the Trust conducts its business. It is expressly agreed that the obligations
of the Trust hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents or employees of the Trust, as provided
in said Declaration of Trust. Moreover, if the Trust has more than one series,
no series of the Trust other than the series on whose behalf a specified
transaction shall have been undertaken shall be responsible for the obligations
of the Trust, and persons engaging in transactions with the Trust shall look
only to the assets of that series to satisfy those obligations. The execution
and delivery of this Agreement has been authorized by the Trustees and signed
by an authorized officer of the Trust, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them but shall bind only the trust
property of the Trust as provided in such Declaration of Trust.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
XXXXX TREASURY FUND
By:
Chairman of the Board
Attest:
Assistant Secretary
______________DISTRIBUTORS
By:
Chief Operating Officer
Attest:
Secretary
