DISTRIBUTION AGREEMENT
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THIS AGREEMENT made as of the 31st day of July, 1989 by and between Xxx Xxx
Investment Trust (the "Trust"), a business trust established and existing under
the laws of the Commonwealth of Massachusetts and XXX XXX SECURITIES CORPORATION
(the "Distributor"), a corporation organized and existing under the laws of the
State of Delaware.
WHEREAS, the Trust proposes to offer shares of beneficial interest in the
Gold and Natural Resources Fund, Global Bond Fund and Global Growth Fund series
of the Trust and from time to time hereafter establish additional different
series representing interests in different portfolios of assets (each series
being referred to herein as a "Fund" or collectively as the "FUNDS").
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto agree as follows:
Section 1. Appointment of the Distributor. The Trust hereby appoints the
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Distributor as its exclusive agent to sell and distribute shares of each Fund of
the Trust then in existence (the "Shares") for the account and risk of the Trust
during the continuous offering of such Shares, on the terms and hereby accepts
such appointment and agrees to act hereunder. It is understood that purchases of
Shares of any Fund may be made through Insurance Companies in connection with
the offering and sale of the Shares, in which case the Distributor shall enter
into Selling Group Agreements ("Selling Group Agreements") in substantially the
form attached hereto or amend existing Selling Group Agreements with such
Insurance Companies to conform herewith and directly through the Trust's
Transfer Agent in the manner set forth in a Fund's Prospectus.
Section 2. Services and Duties of the Distributor.
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(a) The Distributor agrees to arrange to sell, as exclusive agent for
the Trust, from time to time during the term of this Agreement, Shares of any
Fund upon the terms described in a Fund's Prospectus. As used in this Agreement,
the term "Prospectus" shall mean a prospectus and the term "Statement of
Additional Information" shall mean the statement of additional information
included in the Trust's Registration Statement and the term "Registration
Statement" shall mean the Registration Statement, including exhibits and
financial statements, most recently filed by the Trust with the Securities and
Exchange Commission and effective under the Securities Act of 1933, as amended
(the "1933 Act") and the Investment Company Act of 1940, as amended by any
amendments thereto at the time in effect.
(b) Upon commencement of the continuous public offering of Shares of
any Fund of the Trust, the Distributor will hold itself available to receive
orders, satisfactory to the Distributor, for the purchase of Shares of that Fund
and will accept such orders on behalf of the Trust as of the time of receipt of
such orders and will transmit such orders as are so accepted to the Trust's
Transfer Agent as promptly as practicable. Purchase orders shall be deemed
effective at the time and in the manner set forth in a Fund's Prospectus.
(c) The Distributor, as agent for the Trust and in its discretion,
may enter into Selling Group Agreements (or amend existing Selling Group
Agreements to conform therewith) with such registered and qualified Insurance
Companies as it may select pursuant to which such Insurance Company may also
arrange for the sale or sell Shares of any Fund.
(d) The offering price of the Shares of a Fund shall be the net asset
value (as described in the Master Trust Agreement of the Trust, as amended from
time to time and determined as set forth in the Prospectus of such Fund and the
Statement of Additional Information) per Share for that Fund next determined
following receipt of an order plus the maximum sales charge, if any, calculated
in the manner set forth in the Fund's Prospectus. The Distributor shall receive
the entire amount of the sales charge if any as compensation under this
Agreement; however, the Distributor may reallow all or any portion of such sales
charge to insurance companies entering into Selling Group Agreements (or
amending existing Selling Group Agreements) with the Distributor, with all
possible promptness, advice of each computation of the net asset value of a
Fund. The Distributor shall also be entitled, subject to the terms and
conditions of the Trust's Plan of Distribution pursuant to Rule 12b-1 under the
Investment Company Act of 1940, if any, to amounts payment by a Fund thereunder.
(e) The Distributor shall use its best efforts and shall not be
obligated to arrange for sales of any certain number of Shares of a Fund and the
services of the Distributor to the Trust hereunder shall not be deemed to be
exclusive, and the Distributor shall be free to (i) render similar services to,
and act as underwriter or distributor in connection with the distribution of
shares of other investment companies, and (ii) engage in any other businesses
and activities from time to time.
(f) The Distributor is authorized on behalf of the Trust to
repurchase Shares of a Fund presented to it by Insurance Companies at the price
determined in accordance with, and in the manner set forth in, the Prospectus of
such Fund.
Section 3. Duties of the Trust.
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(a) The Trust agrees to sell Shares of its Funds so long as it has
Shares available for sale and to cause its Transfer Agent to issue, if requested
by the purchaser, certificates for Shares of its Funds, registered in such names
and amounts as promptly as practicable after receipt by the Trust of the net
asset value thereof.
(b) The Trust shall keep the Distributor fully informed with regard
to its affairs and shall furnish to the Distributor copies of all information,
financial statements and other papers which the Distributor may reasonably
request for use in connection with the distribution of Shares of the Funds. This
shall include, without limitation, one certified copy of all financial
statements of the Funds prepared by independent accountants and such reasonable
number of copies of a Fund's most current Prospectus, the Statement of
Additional Information and annual and interim reports as the Distributor may
request. The Trust shall cooperate fully in the efforts of the Distributor to
arrange for the sale of Shares of the Funds and in the performance of the
Distributor under this Agreement.
(c) The Trust shall take, from time to time, all necessary action to
register the Shares of the Funds under the 1933 Act, including payments of the
related filing fees, so that there will be available for sale such number of
Shares of the Trust as the Distributor may be expected to sell. The Trust agrees
to file from time to time such amendments, reports and other documents as may be
necessary in order that there may be no untrue statement of a material fact in
the Registration Statement or Prospectus of a Fund, or necessary in order that
there may be no omission to state a material fact in the Registration Statement
or Prospectus of a Fund which omission would make the statements therein, in
light of the circumstances under which they were made, misleading.
(d) The Trust shall use its best efforts to qualify and maintain the
registration and qualification of an appropriate number of Shares of the Funds
and the Trust for sale under the securities laws of such states as the
Distributor shall designate, and, if necessary or appropriate in connection
therewith, to qualify and maintain the qualification of the Trust as a broker-
dealer in such states. The Distributor shall furnish such information and other
material relating to its affairs and activities as may be requested by the Trust
in connection with such qualifications.
Section 4. Expenses.
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(a) The Trust shall bear all costs and expenses of the continuous
offering of Shares of the Funds in connection with: (i) fees and disbursements
of its counsel and auditors, (ii) the preparation, filing and printing of any
registration statements and/or Prospectuses and Statements of Additional
Information
required by and under the federal and state securities laws, (iii) the
preparation and mailing of annual and interim reports and proxy materials, if
any, to shareholders and (iv) the qualification of the Shares of the Funds for
sale and of the Trust as a broker-dealer under the securities laws of such
states or other jurisdictions as shall be selected by the Distributor pursuant
to Section 3(d) hereof and the cost and expenses payable to each such state for
continuing qualification therein.
(b) The Distributor shall bear (i) the costs and expenses of
preparing, printing and distributing any materials not prepared by the Trust and
other materials used by the Distributor in connection with its offering of
Shares of the Funds for sale to the public (including the additional cost of
printing copies of the Prospectus and of annual and interim reports) to
shareholders other than copies thereof required for distribution to existing
shareholders or for filing with any federal and state securities authorities,
(ii) any expenses of advertising incurred by the Distributor in connection with
such offering and (iii) the expenses of registration or qualification of the
Distributor as an broker-dealer under federal or state laws, if necessary, and
the expenses of continuing such registration or qualification. It is understood
and agreed that so long as the Trust's Plan of Distribution as to a Fund
pursuant to Rule 12b-1 under the Investment Company Act of 1940, if any,
continues in effect, any expenses incurred by the Distributor hereunder may be
paid from amounts received by it from a Fund under such Plan.
Section 5. Indemnification.
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The Trust agrees to indemnify, defend and hold the Distributor, its
officers, directors, employees and agents and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), free and
harmless from and against any and all losses, claims, damages, liabilities and
expenses (including the cost of investigating or defending such claims, damages
or liabilities and any counsel fees incurred in connection therewith) which the
Distributor, its officers, directors, employees and agents or any such
controlling person may incur under the 1933 Act, the 1934 Act, or under common
law or otherwise, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, a
Prospectus, or the Statement of Additional Information or arising out of or
based upon the omission or any alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such claims, damages, liabilities or expenses
arise out of or are based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information furnished in writing by the Distributor to the Trust for use in the
Registration Statement, a Prospectus or the Statement of Additional Information.
The Distributor agrees to promptly notify
the Trust of any event giving rise to rights of Indemnification hereunder,
including any action brought against the Distributor, its officers, directors,
employees and agents or any such controlling person, such notification to be
given by letter or telegram addressed to the Trust at its principal business
office, but the Distributor's failure so to notify the Trust shall not relieve
the Trust from any obligation it may have to indemnify the Distributor hereunder
or otherwise.
The Distributor agrees to indemnify, defend and hold the Trust, its
Trustees and officers and any person who controls the Trust, if any, within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, free and
harmless from and against any and all losses, claims, damages, liabilities and
expenses (including the cost of investigating or defending such claims, damages
or liabilities and any counsel fees incurred in connection therewith) which the
Trust, its Trustees or officers or any such controlling person may incur under
the 1933 Act, the 1934 Act, or under common law or otherwise, but only to the
extent that such liability or expense incurred by the Trust, its Trustees or
officers or such controlling person arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in
information furnished in writing by the Distributor to the Trust for use in the
Registration Statement, a Prospectus or the Statement of Additional Information.
The Trust agrees to promptly notify the Distributor of any event giving rise to
rights of indemnification hereunder, including any action brought against the
Trust, its Trustees or officers or any such controlling person, such
notification being given to the Distributor at its principal business office,
but the Trust's failure so to notify the Distributor shall not relieve the
Distributor from any obligation it may have to indemnify the Trust hereunder or
otherwise.
Section 6. Contribution. In order to provide for just and equitable
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contribution in circumstances in which the indemnification provided for in the
first paragraph of Section 5 is for any reason held to be unavailable from the
Trust, the Trust and the Distributor shall contribute to the aggregate losses,
claims, damages, liabilities or expenses (including the reasonable costs of
investigating or defending such claims, damages or liabilities but after
deducting any contribution received by the Trust from persons other than
Distributor who may also be liable for contribution, such as persons who
control the Trust within the meaning of the 1933 Act, officers of the Trust who
signed the Registration Statement and Trustees) to which the Trust and the
Distributor may be subject in such proportion so that the Distributor is
responsible for that portion represented by the percentage that the Sales Charge
appearing in the Prospectus of the Fund bears to the public offering price
appearing therein and the Trust is responsible for the balance: provided,
however, that (i) in no case shall the Distributor be responsible for any amount
in excess of the portion of the Sales Charge received and retained by it in
respect of the Shares of a Fund purchased through it hereunder and (ii) no
person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 6, each person, if any, who controls the Distributor
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Distributor. Each party who
may seek contribution under this Section 6 shall, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section 6, give written notice of the commencement of such
action, suit or proceeding to the party or parties from whom such contribution
may be sought, but the omission so to notify such contributing party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have otherwise than on account of this
Section 6.
Section 7. Compliance with Securities Laws. The Trust represents that it is
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registered as a diversified, open-end management investment company under the
1940 Act, and agrees that it will comply with all of the applicable terms and
provisions of the 1940 Act, the 1933 Act and, subject to the provisions of
Section 3(d), all applicable state "Blue Sky" laws. The Distributor agrees to
comply with all of the applicable terms and provisions of the 1934 Act.
Section 8. Term of Contract. This Agreement shall go into effect on the
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date hereof and shall continue in effect until July 30, 1990, and thereafter for
successive periods of one year each if such continuance is approved at least
annually thereafter (i) either by an affirmative vote of a majority or the
outstanding shares of the Trust or by the Board of Trustees of the Trust, and
(ii) in either case by a majority of the Trustees of the Trust who are not
interested persons of the Distributor or (otherwise than as Trustees) of the
Trust, cast in person at a meeting called for the purpose of voting on such
approval. This Agreement may be terminated at any time by one party hereto to
the other on sixty (60) days' written notice to the other party.
Section 9. Assignment.
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This Agreement may not be assigned by the Distributor and shall
automatically terminate in the event of an attempted assignment by the
Distributor; provided, however, that the Distributor may employ or enter into
agreements with such other person, persons, corporation, or corporations, as it
shall determine in order to assist it in carrying out this Agreement.
Section 10. Amendment.
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This Agreement may be amended at any time by mutual agreement in
writing of the parties hereto, provided that any
such amendment is approved by a majority of the Trustees of the Trust who are
not interested persons of the Distributor or by the holders of a majority of the
outstanding shares of the Trust.
Section 11. Governing Law.
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This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
Section 12. Non-Liability of Shareholders, Trustees, Officers, Employees,
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Representatives and Agents.
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Copies of the Master Trust Agreement, as amended, establishing the
Trust are on file with the Secretary of the Commonwealth of Massachusetts, and
notice is hereby given that this Agreement is executed on behalf of the Trust by
officers of the Trust as officers and not individually and that the obligations
of or arising out of this Agreement are not binding upon any of the Trustees,
officers, shareholders, employees or agents of the Trust individually but are
binding only upon the assets and property of the Trust.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
XXX XXX INVESTMENT TRUST
By ______________________________
XXX XXX SECURITIES CORPORATION
By ______________________________
