DISTRIBUTION AGREEMENT
This Agreement, made as of the ____ day of _________ between Xxxxxxx
Capital Mutual Fund Group Inc., a Maryland corporation (the "Fund"), and the
First Fund Distributors, Inc. (the "Distributor"), a ___________ corporation.
WITNESSETH:
WHEREAS, the Fund proposes to engage in business as an open-end management
investment company and is registered as such under the Investment Company Act of
1940, as amended (the "1940 Act") and its shares are registered under the
Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD"); and
WHEREAS, the Fund and the Distributor wish to enter into an agreement with
each other with respect to the continuous offering of the Fund's shares of
beneficial interest (the "Shares"), $0.001 par value, to commence on _________ ,
NOW, THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, the Fund and the Distributor hereby agree as follows:
1. Appointment of Distributor. The Fund hereby appoints the Distributor as
its exclusive agent to sell and to arrange for the sale of the Fund's shares of
beneficial interest ("Shares") at the net asset value per share plus any
applicable sales charges in accordance with the Fund's current prospectus(es),
on the terms and for the period set forth in this Agreement, and the Distributor
hereby accepts such appointment and agrees to act hereunder directly and/or
through the Fund's transfer agent using all reasonable efforts in connection
with the distribution of Shares of the Fund. It is understood and agreed that
the services of the Distributor hereunder are not exclusive, and the Distributor
may act as principal underwriter for the shares of any other registered
investment company.
2. Services and Duties of the Distributor.
(a) The Distributor agrees to sell the Shares, as agent for the Fund,
from time to time during the term of this Agreement upon the terms described in
the Fund's current Prospectus(es). As used in this Agreement, the term
"Prospectus" shall mean the prospectus and statement of additional information
included as part of the Fund's Registration Statement, as such prospectus and
statement of additional information may be amended or supplemented from time to
time, and the term "Registration Statement" shall mean the registration
statement most recently filed from time to time by the Fund with the Securities
and Exchange Commission and effective under the
1933 Act and the 1940 Act, as such Registration Statement is amended by any
amendments thereto at the time in effect. The Distributor shall not be obligated
to sell any certain number of Shares.
(b) The Distributor will hold itself available to receive orders, that
the Distributor reasonably believes to be in good order, for the purchase of the
Shares and will accept such orders and will transmit such orders as are so
accepted and funds received by it in payment for such Shares to the Fund's
transfer agent or custodian, as appropriate, as promptly as practicable.
Purchase orders shall be deemed effective at the time and in the manner set
forth in the Prospectus. The Distributor shall not make any short sales of
Shares.
(c) The offering price of the Shares shall be the net asset value per
share of the Shares plus any applicable sales charges, determined as set forth
in the Prospectus. The Fund shall furnish the Distributor, with all possible
promptness, an advice of each computation of net asset value and offering price.
3. Duties of the Fund.
(a) Maintenance of Federal Registration. The Fund shall, at its
expense, take, from time to time, all necessary action and such steps, including
payment of the related filing fees, as may be necessary to register and maintain
registration of a sufficient number of Shares under the 0000 Xxx. The Fund
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 misleading.
(b) Maintenance of "Blue Sky" Qualifications. The Fund shall, at its
expense, use its best efforts to qualify and maintain the qualification of an
appropriate number of Shares for sale under the securities laws of such states
as the Distributor and the Fund may approve, and, if necessary or appropriate in
connection therewith, to qualify and maintain the qualification of the Fund as a
broker or dealer in such states; provided that the Fund shall not be required to
amend its Articles of Incorporation or 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 the Shares in any state, to change the terms of the offering of the Shares in
any state from the terms set forth in its Registration Statement and Prospectus,
to qualify as a foreign corporation in any state or to consent to service of
process in any state other than with respect to claims arising out of the
offering and sale of the Shares. The Distributor shall furnish such information
and other material relating to its affairs and activities as may be required by
the Fund in connection with such qualifications.
(c) Copies of Reports and Prospectus. The Funds shall, at its expense,
keep the Distributor fully informed with regard to its affairs that reasonably
relate to the distribution of the Fund's Shares and in connection therewith
shall furnish to the Distributor copies of all information, financial statements
and other papers which the Distributor may reasonably request for use in
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connection with the distribution of Shares, including such reasonable number of
copies of its Prospectus and annual and interim reports as the Distributor may
request and shall cooperate fully in the efforts of the Distributor to sell and
arrange for the sale of the Shares and in the performance of the Distributor
under this Agreement.
4. Conformity with Applicable Law and Rules. The Distributor agrees that in
selling Shares hereunder it shall conform in all respects with the laws of the
United States and of any state in which Shares may be offered, and with
applicable rules and regulations of the NASD.
5. Independent Contractor. In performing its duties hereunder, the
Distributor shall be an independent contractor and neither the Distributor, nor
any of its officers, directors, employees, or representatives is or shall be an
employee of the Fund in the performance of the Distributor's 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
assumes full responsibility for its agents and employees under applicable
statutes and agrees to pay all employee taxes thereunder.
6. Indemnification.
(a) Indemnification of Fund. The Distributor agrees to indemnify and
hold harmless the Fund and each of its present or former directors, officers,
employees, representatives an each person, if any, who controls or previously
controlled the Fund within the meaning of Section 15 of the 1933 Act against any
and all losses, liabilities, damages, claims or expenses (including the
reasonable costs or investigating or defending any alleged loss, liability,
damage, claims or expense and reasonable legal counsel fees incurred in
connection therewith) to which the Fund or any such person may become subject
under the 1933 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 the Distributor's
directors, officers, 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, prospectus, shareholder report or other information
covering Shares filed or made public by the Fund 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 Fund by the Distributor, it being understood that
the Fund will rely upon the information provided by the Distributor for use in
the preparation of the Registration Statement and Prospectus. In no case (i) is
the Distributor's indemnity in favor of the Fund, or any other person
indemnified, to be deemed to protect the Fund or such indemnified person against
any liability to which the Fund or 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 his 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 Fund or any person indemnified unless the Fund or such person, as
the case may be, shall have notified the Distributor in writing of the claim
within a reasonable time after the summons or
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other first written notification giving information of the nature of the claim
shall have been served upon the Fund or upon such person (or after the Fund or
such person shall have received notice to such service on any designated agent).
However, failure to notify the Distributor of any such claim shall not relieve
the Distributor from any liability which the Distributor may have to the Fund or
any person against whom such action is brought otherwise than on account of the
Distributor's indemnity agreement contained in this Paragraph.
The Distributor shall be entitled to participate, at its own expense, in
the defense, or, if the Distributor so elects, to assume the defense of any suit
brought to enforce any claim as to which it provides this indemnification, but,
if the Distributor elects to assume the defense, such defense shall be conducted
by legal counsel chosen by the Distributor and satisfactory to the Fund, whose
approval shall not be unreasonably withheld, and any other indemnified defendant
or defendants in the suit. In the event that the Distributor elects to assume
the defense of any such suit and retain such legal counsel, the Fund and any
other indemnified defendant or defendants in the suit shall bear the fees and
expenses of any additional legal counsel retained by them. If the Distributor
does not elect to assume the defense of any such suit, the Distributor will
reimburse the Fund and any other indemnified defendant or defendants in such
suit for the reasonable fees and expenses of any legal counsel retained by them.
The Distributor agrees to promptly notify the Fund of the commencement of any
litigation of proceedings against it or any of its officers, employees,
representatives or control persons in connection with the issue or sale of any
Shares.
(b) Indemnification of the Distributor. The Fund agrees to indemnify
and hold harmless the Distributor and each of its present or former officers,
employees, representatives and each person, if any, who controls or previously
controlled the Distributor within the meaning of Section 15 of the 1933 Act
against any and all losses, liabilities, damages, claims or expenses (including
the reasonable costs of investigating or defending any alleged loss, liability,
damage, claim or expense and reasonable legal counsel fees incurred in
connection therewith) to which the Distributor or other indemnified person may
become subject under the 1933 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 Fund or any of the Fund's directors,
officers, 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, prospectus, shareholder report or other information
covering Shares filed or made public by the Fund 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 unless such statement or omission was made in reliance
upon information furnished to the Fund by the Distributor, it being understood
that the Fund will rely upon the information provided by the Distributor for use
in the preparation of the Registration Statement and Prospectus. In no case (i)
is the Fund's indemnity in favor of the Distributor, or any person indemnified
to be deemed to protect the Distributor or such indemnified person against any
liability to which the Distributor or 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 his obligations and
duties under this Agreement, or (ii) is the Fund to be liable under its
indemnity agreement contained in this Paragraph with respect
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to any claim made against Distributor, or person indemnified unless the
Distributor, or such indemnified person, as the case may be, shall have notified
the Fund in writing of the claim within a reasonable time after the summons or
other first written notification giving information of the nature of the claim
shall have been served upon the Distributor or upon such person (or after the
Distributor or such person shall have received notice of such service on any
designated agent). However, failure to notify the Fund of any such claim shall
not relieve the Fund from any liability which the Fund may have to the
Distributor or any person against whom such action is brought otherwise than on
account of the Fund's indemnity agreement contained in this Paragraph.
The Fund shall be entitled to participate, at its own expense, in the
defense, or, if the Fund so elects, to assume the defense of any suit brought to
enforce any claim as to which it provides this indemnification, but if the Fund
elects to assume the defense, such defense shall be conducted by legal counsel
chosen by the Fund and satisfactory to the Distributor whose approval shall not
be unreasonably withheld, and any other indemnified defendant or defendants in
the suit. In the event that the Fund elects to assume the defense of any such
suit and retain such legal counsel, the Distributor, and any other indemnified
defendant or defendants in the suit, shall bear the fees and expenses of any
additional legal counsel retained by them. If the Fund does not elect to assume
the defense of any such suit, the Fund will reimburse the Distributor and any
other indemnified defendant or defendants in such suit for the reasonable fees
and expenses of any legal counsel retained by them. The Fund agrees to promptly
notify the Distributor of the commencement of any litigation or proceedings
against it or any of its directors, officers, employees or representatives in
connection with the issue or sale of any Shares.
7. Authorized Representation. The Distributor is not authorized by the Fund
to give on behalf of the Fund any information or to make any representations in
connection with the sale of Shares other than the information and
representations contained in a registration statement filed with the Securities
and Exchange Commission ("SEC") under the 1933 Act and the 1940 Act, as such
registration statement may be amended from time to time, or contained in
shareholder reports or other material that may be prepared by or on behalf of
the Fund for the Distributor`s use. The Distributor may prepare and distribute
sales literature and other material as it may deem appropriate, provided that
such literature and materials have been prepared in accordance with applicable
laws, rules and regulations and further provided that the Fund be given notice
of such literature and materials prior to their first distribution. No person
other than the Distributor is authorized to act as principal underwriter (as
such term is defined in the 0000 Xxx) for the Fund.
8. Term of Agreement. This Agreement shall be effective upon its execution,
and unless terminated as provided, shall continue in force through
_________________, 1999 and thereafter from year to year, provided that such
annual continuance is approved by (i) either the vote of a majority of the
Directors of the Fund, or the vote of a majority of the outstanding voting
securities of the Fund, and (ii) the vote of a majority of those Directors of
the Fund who are not parties to this Agreement or interested persons of any such
party ("Qualified Directors") cast in person at a meeting called for the purpose
of voting on the approval. The Distributor shall furnish to the Fund, promptly
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upon its request, such information as may reasonably be necessary to evaluate
the terms of this Agreement or any extension, renewal or amendment hereof.
9. Amendment and Assignment of Agreement. This Agreement may not be amended
without the affirmative vote of a majority of the outstanding voting securities
of the Fund. This Agreement shall automatically and immediately terminate in the
event of its assignment.
10. Termination of Agreement. This Agreement may be terminated by either
party hereto, without the payment of any penalty, on not more than upon 60 days'
nor less than 30 days' prior notice in writing to the other party; provided,
that in the case of termination by the Fund such action shall have been
authorized by resolution of a majority of the Qualified Directors of the Fund,
or by vote of a majority of the outstanding voting securities of the Fund.
11. Miscellaneous. The captions of this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Nothing herein contained shall be deemed to require the Fund to take any
action contrary to its Articles of Incorporation or By-Laws, or any applicable
statutory or regulatory requirement to which it is subject or by which it is
bound, or to relieve or deprive the Board of Directors of the Fund of its
responsibility for and control of the conduct of the affairs of the Fund.
12. Compliance with Securities Laws. The Fund represents that it is
registered as an open-end management investment company under the 1940 Act, and
agrees that it will comply with all applicable provisions of the 1940 Act, the
1933 Act and state securities laws and the rules and regulations thereunder. The
Distributor represents that it is a broker-dealer registered under the
Securities Exchange Act of 1934, is a member in good standing of the National
Association of Securities Dealers, Inc., and agrees to comply with all of the
applicable terms and provisions of the Securities Exchange Act of 1934, the 1940
Act, the 1933 Act, and state securities laws and the rules and regulations
thereunder and with applicable rules and regulations of the NASD.
13. 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 to the Distributor at 0000 X. Xxxxxxxxx Xx., Xxxxx 000-X, Xxxxxxx, XX
00000 and to the Fund at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
14. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York. Any question of
interpretation of any term or provision of this Agreement having a counterpart
in or otherwise derived from a term or provision of the 1940 Act, however, shall
be resolved by reference to such term or provision of the 1940 Act and to
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interpretation thereof, if any, by the United States courts or, in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the Securities and Exchange Commission validly issued pursuant to the 1940
Act. Specifically, the terms "vote of a majority of the outstanding voting
securities", "interested persons", "assignment", and "affiliated person", as
used in this Agreement, shall have the meanings assigned to them by Section 2(a)
of the 1940 Act. Where the effect of a requirement of the 1940 Act reflected in
any provision of this Agreement is relaxed by a rule, regulation or order of the
Securities and Exchange Commission, whether of special or of general
applications, such provision shall be deemed to incorporate the effect of such
rule, regulation or order. To the extent that the applicable laws of the State
of New York, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control.
15. Limitation of Liability. A copy of the Articles of Incorporation of the
Fund is on file with the State Department of Assessment and Taxation of the
State of Maryland, and notice is hereby given that this Agreement is executed on
behalf of the Directors of the Fund as Directors and not individually and that
the obligations of this instrument are not binding upon any of the Directors,
officers or Shareholders of the Fund individually but binding only upon the
assets and property of the Fund. Further, obligations of the Fund with respect
to any one Portfolio shall not be binding upon any other Portfolio.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their fully authorized representatives and their respective corporate
seals to be hereunto affixed, as of the day and year first above written.
Xxxxxxx Capital Mutual Fund Group
By:
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Attest:
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Secretary
First Fund Distributors, Inc.
By:
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Attest:
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Secretary
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