DISTRIBUTING AGREEMENT
DISTRIBUTING AGREEMENT, dated as of January 1, 1993, between
XXXXXXXX FRONTIER FUND, INC., a Maryland corporation (the "Fund"), and XXXXXXXX
FINANCIAL SERVICES, INC., a Delaware corporation ("Xxxxxxxx Financial
Services").
In consideration of the mutual agreements herein made, the parties
hereto agree as follows:
1. EXCLUSIVE DISTRIBUTOR. The Fund hereby agrees that Xxxxxxxx
Financial Services shall be for the period of this Agreement
exclusive agent for distribution within the United States and its
territories, and Xxxxxxxx Financial Services agrees to use its best
efforts during such period to effect such distribution of shares of
Capital Stock ("Shares") of the Fund; provided, however, that
nothing herein shall prevent the Fund, if it so elects, from selling
or otherwise distributing its Shares directly to any persons other
than dealers. The Fund understands that Xxxxxxxx Financial Services
also acts as agent for distribution of the shares of capital stock
or beneficial interest of other open-end investment companies which
have entered into management agreements with J. & X.
Xxxxxxxx & Co. Incorporated (the "Manager").
2. SALES OF SHARES. Xxxxxxxx Financial Services is authorized, as agent
for the Fund and not as principal, (a) to sell Shares of the Fund to
such dealers as Xxxxxxxx Financial Services may select pursuant to
the terms of written sales agreements (which may also relate to
sales of shares of capital stock or shares of beneficial interest of
other open-end investment companies which have entered into
management agreements with the Manager), in form or forms approved
by the Fund, and (b) to sell Shares of the Fund to other purchasers
on such terms as may be provided in the then current prospectus of
the Fund relating to such Shares; provided, however, that no sales
of Shares shall be confirmed by Xxxxxxxx Financial Services at any
time when, according to advice received by Xxxxxxxx Financial
Services from the Fund, the officers of the Fund have for any reason
sufficient to them temporarily or permanently suspended or
discontinued the sale and issuance of the Shares. Each sale of
Shares shall be effected by Xxxxxxxx Financial Services only at the
applicable price determined by the Fund in the manner prescribed in
its then current prospectus relating to such Shares. Xxxxxxxx
Financial Services shall comply with all applicable laws, rules and
regulations including, without limiting the generality of the
foregoing, all rules or regulations made or adopted pursuant to
Section 22 of the Investment Company Act of 1940 (the "1940 Act") by
the
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Securities and Exchange Commission or any securities association
registered under the Securities Exchange Act of 1934.
The Fund agrees, as long as its Shares may legally be issued, to
fill all orders confirmed by Xxxxxxxx Financial Services in
accordance with the provisions of this Agreement.
3. REPURCHASE AGENT. Xxxxxxxx Financial Services is authorized, as
agent for the Fund and not as principal, to accept offers for resale
to the Fund and to repurchase on behalf of the Fund Shares of each
series of the Fund at net asset values determined by the Fund in
conformity with its then current prospectus relating to such Shares.
4. COMPENSATION. As compensation for the services of Xxxxxxxx Financial
Services under this Agreement, Xxxxxxxx Financial Services shall be
entitled to receive the sales charge, determined in conformity with
the Fund's then current prospectus relating to such Shares, on all
sales of Shares of the Fund confirmed by Xxxxxxxx Financial Services
hereunder and for which payment has been received, less the dealers'
concession allowed in respect of such sales. In addition, in
accordance with the terms of the Fund's Administration, Shareholder
Services and Distribution Plan(s) (the "Plan(s)"), each of the
series of the Fund may make payments from time to time to Xxxxxxxx
Financial Services in accordance with the terms and limitations of,
and for the purposes set forth in the Plan(s).
5. EXPENSES. Xxxxxxxx Financial Services agrees promptly to pay or
reimburse the Fund for all expenses (except expenses incurred by the
Fund in connection with the preparation, printing and distribution
of any prospectus or report or other communication to shareholders,
to the extent that such expenses are incurred to effect compliance
with any Federal or State law or to enable such distribution to
shareholder(s) (a) of printing and distributing copies of any
prospectus and of preparing, printing and distributing any other
material used by Xxxxxxxx Financial Services in connection with
offering Shares of the Fund for sale, and (b) of advertising in
connection with such offering. The Fund agrees to pay all expenses
in connection with the registration of Shares of the Fund under the
Securities Act of 1933 (the "Act"), all fees and related expenses
which may be incurred in connection with the qualification of Shares
of the Fund for sale in such States (as well as the District of
Columbia, Puerto Rico and other territories) as Xxxxxxxx Financial
Services may designate, and all expenses in connection with
maintaining facilities for the issue and transfer of its Shares, of
supplying information, prices and other data to be furnished by it
hereunder,
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and through Union Data Service Center, Inc., of all data processing
and related services related to the share distribution activity
contemplated hereby.
The Fund agrees to execute such documents and to furnish such
information as may be reasonably necessary, in the discretion of the
Directors of the Fund, in connection with the qualification of
Shares of the Fund for sale in such States (as well as the District
of Columbia, Puerto Rico and other territories) as Xxxxxxxx
Financial Services may designate. Xxxxxxxx Financial Services also
agrees to pay all fees and related expenses connected with its own
qualification as a broker or dealer under Federal or State laws and,
except as otherwise specifically provided in this Agreement or
agreed to by the Fund, all other expenses incurred by Xxxxxxxx
Financial Services in connection with the sale of Shares of the Fund
as contemplated in this Agreement (including the expenses of
qualifying the Fund as a dealer or broker under the laws of such
States as may be designated by Xxxxxxxx Financial Services, if
deemed necessary or advisable by the Fund).
It is understood and agreed that any payments made to Xxxxxxxx
Financial Services pursuant to the Plan(s) may be used to defray
some or all of the expenses incurred by Xxxxxxxx Financial Services
pursuant to this Agreement.
6. Prospectus and Other Information. The Fund represents and warrants
to and agrees with Xxxxxxxx Financial Services that:
(a) A registration statement, including one or more
prospectuses relating to the Shares, has been filed by
the Fund under the Act and has become effective. Such
registration statement, as now in effect and as from
time to time hereafter amended, and also any other
registration statement relating to the Shares which may
be filed by the Fund under the Act which shall become
effective, is herein referred to as the "Registration
Statement", and any prospectus or prospectuses filed by
the Fund as a part of the Registration Statement, as the
"Prospectus".
(b) At all times during the term of this Agreement, except
when the officers of the Fund have suspended or
discontinued the sale and issuance of Shares of the Fund
as contemplated by Section 2 hereof, the Registration
Statement and Prospectus will conform in all respects to
the requirements of the Act and the rules and
regulations of the Securities and Exchange Commission,
and neither of such documents will include any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or necessary
to make the statement therein not misleading, except
that the foregoing does not apply to any
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statements or omissions in either of such documents
based upon written information furnished to the Fund by
Xxxxxxxx Financial Services specifically for use
therein.
The Fund agrees to prepare and furnish to Xxxxxxxx Financial
Services from time to time a copy of its Prospectus, and authorizes
Xxxxxxxx Financial Services to use such Prospectus, in the form
furnished to Xxxxxxxx Financial Services from time to time, in
connection with the sale of the Fund's Shares. The Fund also agrees
to furnish Xxxxxxxx Financial Services from time to time, for use in
connection with the sale of such Shares, such information with
respect to the Fund and its Shares as Xxxxxxxx Financial Services
may reasonably request.
7. REPORTS. Xxxxxxxx Financial Services will prepare and furnish to the
Directors of the Fund at least quarterly a written report complying
with the requirements of Rule 12b-1 under the 1940 Act setting forth
all amounts expended under the Plan(s) and the purposes for which
such expenditures were made.
8. INDEMNIFICATION. (a) The Fund will indemnify and hold harmless
Xxxxxxxx Financial Services and each person, if any, who controls
Xxxxxxxx Financial Services within the meaning of the Act against
any losses, claims, damages or liabilities to which Xxxxxxxx
Financial Services or such controlling person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or
Prospectus or any other written sales material prepared by the Fund
which is utilized by Xxxxxxxx Financial Services in connection with
the sale of Shares or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or (in the case of the Registration Statement and
Prospectus) necessary to make the statements therein not misleading
or (in the case of such other sales material) necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made; and will reimburse Xxxxxxxx Financial
Services and each such controlling person for any legal or other
expenses reasonably incurred by Xxxxxxxx Financial Services or such
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however,
that the Fund will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement or Prospectus
in conformity with written information furnished to the Fund by
Xxxxxxxx Financial Services specifically for use
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therein; and provided, further, that nothing herein shall be so
construed as to protect Xxxxxxxx Financial Services against any
liability to the Fund or its security holders to which Xxxxxxxx
Financial Services would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence, in the performance of
its duties, or by reason of the reckless disregard by Xxxxxxxx
Financial Services of its obligations and duties under this
Agreement. This indemnity agreement will be in addition to any
liability which the Fund may otherwise have.
(b) Xxxxxxxx Financial Services will indemnify and hold
harmless the Fund, each of its Directors and officers
and each person, if any, who controls the Fund within
the meaning of the Act, against any losses, claims,
damages or liabilities to which the Fund or any such
Director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or
Prospectus or any sales material not prepared by the
Fund which is utilized in connection with the sale of
Shares or arise out of or are based upon the omission or
the alleged omission to state therein a material fact
required to be stated therein or (in the case of the
Registration Statement and Prospectus) necessary to make
the statements therein not misleading or (in the case of
such other sales material) necessary to make the
statements therein not misleading in the light of the
circumstances under which they were made, in the case of
the Registration Statement and Prospectus to the extent,
but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission
was made in conformity with written information
furnished to the Fund by Xxxxxxxx Financial Services
specifically for use therein; and Xxxxxxxx Financial
Services will reimburse any legal or other expenses
reasonably incurred by the Fund or any such Director,
officer or controlling person in connection with
investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in
addition to any liability which Xxxxxxxx Financial
Services may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any
action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party
of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from
liability which it may have to any indemnified party
otherwise than under this Section. In case any such
action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to
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participate therein and, to the extent that it may wish,
to assume the defense thereof, with counsel satisfactory
to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under
this Section for any legal or other expenses
subsequently incurred by such indemnified party in
connection with the defense thereof other than
reasonable costs of investigation.
9. EFFECTIVE DATE. This Agreement shall become effective upon its
execution by an authorized officer of the respective parties to this
Agreement, but in no event prior to shareholder approval of the
Plan(s).
10. TERM OF AGREEMENT. This Agreement shall continue in effect until
December 31 of the year in which it is first effective and through
December 31 of each year thereafter if such continuance is approved
in the manner required by the 1940 Act and the rules thereunder and
Xxxxxxxx Financial Services shall not have notified the Fund in
writing at least 60 days prior to the anniversary date of the
previous continuance that it does not desire such continuance. This
Agreement may be terminated at any time, without payment of penalty
on 60 days' written notice to the other party by vote of a majority
of the Directors of the Fund who are not interested persons (as
defined in the 0000 Xxx) of the Fund and have no direct or indirect
financial interest in the operation of the Plan(s) or any agreement
related thereto, or by vote of a majority of the outstanding voting
securities of the Fund (as defined in the 1940 Act). This Agreement
shall automatically terminate in the event of its assignment (as
defined in the 1940 Act).
11. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein
to the contrary notwithstanding, this Agreement shall not be
construed to require, or to impose any duty upon, either of the
parties to do anything in violation of any applicable laws or
regulations.
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IN WITNESS WHEREOF, the Fund and Xxxxxxxx Financial Services have
caused this Agreement to be executed by their duly authorized officers as of the
date first above written.
XXXXXXXX FRONTIER FUND, INC.
By
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Xxxxxx X. Xxxxxxxxx, President
XXXXXXXX FINANCIAL SERVICES, INC.
By
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Xxxxxx X. Xxxxx, President
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