EXHIBIT 5(A)(6)
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made this 1st day of January, 1999, by and
between ▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Company, a Massachusetts business trust
("Investment Company"), and ▇▇▇▇▇▇▇ Fund Distributors, Inc., a Washington
corporation ("Distributor").
WHEREAS, the Investment Company is registered as an open-end, diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and offers for public sale distinct series of shares
of common stock, each corresponding to a distinct portfolio ("Fund"), currently
28, and distinct classes of shares of each fund; and
WHEREAS, ▇▇▇▇▇▇▇ Fund Distributors, Inc. is registered as a mutual fund
broker-dealer with appropriate regulatory agencies; and
WHEREAS, the Investment Company wishes to retain Distributor as the
Investment Company's distributor in connection with the offering and sale of the
shares of Funds as now exist and as hereafter may be established ("Shares") and
to furnish certain other services to the Investment Company as specified in this
Agreement; and
WHEREAS, Distributor is willing to furnish such services on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, it is agreed between the parties hereto as follows:
1. The Investment Company hereby appoints Distributor to perform those
services described in this Agreement for each Fund (including each class of its
shares) of the Investment Company in existence as of the date hereof ("Initial
Funds"). In the event that the Investment Company establishes one or more
series of shares other than the Initial Funds with respect to which it desires
to retain the Distributor to serve as distributor and principal underwriter
hereunder, it shall so notify the Distributor in writing, indicating the fee, if
any, to be payable with respect to the additional series of shares. If the
Distributor is willing to render such services, it shall so notify the
Investment Company in writing, whereupon such series of shares shall become a
Fund hereunder. In such event a writing signed by both the Investment Company
and the Distributor shall be annexed hereto as a part hereof indicating that
such additional series of shares has become a Fund hereunder.
2. The Investment Company authorized Distributor as agent for the
Investment Company, subject to applicable federal and state law and the Master
Trust Agreement, By-Laws and current Prospectus and Statement of Additional
Information of the Investment Company: (a) to promote and offer each Fund and
the Investment
Company; (b) to solicit orders for the purchase of the Shares of
each Fund subject to such terms and conditions as the Investment Company may
specify; and (c) to accept orders for the purchase of the Shares of each Fund on
behalf of the Investment Company. Distributor shall offer the Shares of each
Fund on an agency of "best efforts" basis under which the Investment Company
shall only issue such Shares as are actually sold.
In connection with such sales and offers of sale, the Investment Company
shall not be responsible in any way for any other information, statements or
representations given or made by Distributor or its representatives or agents,
except such information or representations as are contained in the Prospectus or
in information furnished in writing to Distributor by the Investment Company.
3. The public offering price of the Shares shall be the net asset value per
share (as determined by the Investment Company) of the outstanding Shares of the
Investment Company plus a sales charge (if any) as set forth in the Investment
Company's current Prospectus. The Investment Company shall make available to
Distributor a statement of each computation of net asset value and of the
details entering into such computation.
4. As used in this Agreement, the term "Registration Statement" shall mean
the Registration Statement most recently filed by the Investment Company with
the Securities and Exchange Commission and effective under the Securities Act of
1933, as such Registration Statement is amended by any amendments thereto at the
time in effect, and the terms "Prospectus" and "Statement of Additional
Information" shall mean the form of Prospectus and Statement of Additional
Information filed by the Investment Company as part of the Registration
Statement.
5. The Investment Company agrees, at its own expense, to register the
Shares with the Securities and Exchange Commission, state and other regulatory
bodies, and to prepare and file from time to time such Prospectuses, amendments,
reports and other documents as may be necessary to maintain the Registration
Statement. The Investment Company shall bear all expenses related to preparing
the typesetting such Prospectuses, Statements of Additional Information and
other materials required by law and such other expenses, including printing and
mailing expenses, related to the Investment Company's communications with
persons who are shareholders of each Fund of the Investment Company.
6. The Investment Company agrees to indemnify, defend and hold harmless
Distributor, each person who has been, is, or may hereafter be an officer,
director, or employee or agent of Distributor, and any person who controls
Distributor within the meaning of Section 15 of the 1933 Act from and against
any and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which Distributor, its officers of
Directors, or any such controlling person may incur under the 1933 Act or under
common law which arises out of or is alleged to arise out of or is based upon a
violation of any of the terms of this Agreement or otherwise arising out of or
based upon any alleged untrue statement or a material fact contained in the
Registration Statement, Prospectuses or Statements of Additional Information or
arising
out of or based upon any alleged omission to state a material fact required to
be stated in said documents or necessary to make the statements in said
documents no misleading, provided that in no event shall anything contained in
this Agreement be construed so as to protect Distributor against any liability
to the Investment Company or its shareholders to which Distributor would
otherwise be subject by reason or willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of its reckless
disregard of its obligations and duties under this Agreement.
7. Distributor agrees to indemnify, defend and hold harmless the Investment
Company, each person who has been, is, or may hereafter be an officer, director,
or employee or agent of Distributor, any person who controls the Investment
Company within the meaning of Section 15 of the 1933 Act from and against any
and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which the Investment Company, its
officers or Trustees, or any such controlling person may incur under the 1933
Act or under common law which arises out of or is alleged to arise out of or is
based upon a violation of any of the terms of this Agreement or otherwise
arising out of or based upon any alleged untrue statement of a material fact
contained in information furnished in writing by Distributor to the Investment
Company for use in the Registration Statement, Prospectuses or Statements of
Additional Information or arising out of or based upon any alleged omission to
state a material fact in connection with such information required to be stated
in the Registration Statement, Prospectuses or Statements of Additional
Information, or necessary to make such information not misleading.
8. The Investment Company reserves the right at any time to withdraw all
offerings of the Share by written notice to the Distributor at its principal
office.
9. Distributor at its sole discretion may repurchase Shares offered for
sale by the shareholders. Repurchase of shares by Distributor shall be at the
net asset value next determined after a repurchase order has been received. On
each business day, Distributor shall notify by telex or in writing the
Investment Company or the Investment Company's transfer agent of the orders for
repurchase of shares received by Distributor since the last such report, the
amount to be paid for such Shares, and the identity of shareholders offering
Shares for repurchase. Upon such notice, the Investment Company shall pay
Distributor such amounts as are required by Distributor for the repurchase of
such Shares in cash or in the form of a credit against monies due the Investment
Company from Distributor as proceeds from the sale of Shares. Distributor will
receive no commission or other remuneration for repurchasing Shares. The
Investment Company reserves the right to suspend such repurchases upon written
notice to Distributor. Distributor further agrees to act as agent for the
Investment Company to receive and transmit promptly to the Investment Company's
transfer agent shareholder request for redemption of Shares.
10. Distributor is an independent contractor and shall be agent for the
Investment Company only with respect to the sale and repurchase of the Shares.
11. The services of Distributor to the Investment Company under this
Agreement are not to be deemed exclusive, and the Distributor shall be free to
render similar services or other services to others so long as its services
hereunder are not impaired thereby.
12. Distributor shall prepare reports for the Board of Trustees of the
Investment Company upon request showing information concerning expenditures
related to this Agreement.
13. As used in this Agreement, the term "net asset value" shall have the
meaning ascribed to it in the Investment Company's Master Trust Agreement; and
their terms "assignment," "interested person," and "majority of the outstanding
voting securities" shall have the meanings given to them by Section 2(a) of the
1940 Act, subject to such exemptions as may be granted by the Securities and
Exchange Commission by any rule, regulation or order.
14. This Agreement shall become effective (i) with respect to the Initial
Funds as of the date hereof; and (ii) with respect to each additional Fund on
the date which the additional Fund commences offering its shares to the public,
so long as the provisions of Section 1 have been complied with. The Agreement
shall continue in effect for each Fund for two years following the effective
date of this Agreement with respect to the Fund; and thereafter only so long as
its continuance is specifically approved at least annually by a majority of the
Trustees of the Investment Company who are not parties to the Agreement or
interested persons of any such party cast in person at a meeting called for the
purpose of voting on such approval, or by vote of a majority of the outstanding
voting securities of the Fund.
15. This Agreement may be terminated at any time:
(a) By the Trustees of the Investment Company or by vote of a majority
of the outstanding voting securities of the Investment Company by sixty days'
notice addressed to the Distributor at its principal place of business;
(b) By the Distributor by sixty days' written notice addressed to the
Investment Company at its principal place of business; and
(c) Immediately in the event of its assignment.
16. No provision 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, and no amendment of this Agreement shall be effective until approved by
vote of a majority of the Board of Trustees, by vote of a majority of the
Independent Trustees, or by vote of a majority of the outstanding voting
securities of such Fund affected by the amendment.
17. 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. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
18. This Agreement shall be construed in accordance with the laws of the
State of Washington and any applicable federal law.
19. The Master Trust Agreement dated July 26, 1984, as amended from time to
time, establishing the Investment Company, which is hereby referred to and a
copy of which is on file with the Secretary of the Commonwealth of
Massachusetts, provides that the name ▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Company means the
Trustees from time to time serving (as Trustees but not personally) under said
Master Trust Agreement. It is expressly acknowledged and agreed that the
obligations of the Investment Company hereunder shall not be binding upon any of
the Shareholders, Trustees, officers, employees or agents of the Investment
Company, personally, but shall bind only the trust property of the investment
Company, as provided in its Master Trust Agreement. The execution and delivery
of this Agreement have been authorized by the Trustees of the Investment Company
and signed by an officer of the Investment Company, acting as such, and neither
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
individually or to impose any liability on any of them personally, but shall
bind only the trust property of the Investment Company as provided in its Master
Trust Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized as of the date written
above.
Attest: ▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant Secretary ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Attest: ▇▇▇▇▇▇▇ FUND DISTRIBUTORS, INC.
By: /s/ Gregoary ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant Secretary ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President