HARVEST FUNDS
BOE SECURITIES, INC.
AMENDED DISTRIBUTION AGREEMENT
THIS AMENDED DISTRIBUTION AGREEMENT (the "Agreement") is made as of
May 9, 2000, between HARVEST FUNDS, a Delaware business trust (the "Trust"),
having its principal place of business in Wilmington, Delaware, and BOE
SECURITIES, INC., a corporation organized under the laws of the Commonwealth of
Pennsylvania (the "Distributor"), having its principal place of business in
Philadelphia, Pennsylvania.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company;
WHEREAS, the Trust is authorized to issue an unlimited number of
shares of beneficial interest ("Shares"), par value $0.01 per share, and has
registered the offer and sale of the Shares under the Securities Act of 1933
(the "1933 Act");
WHEREAS, the Trust is further authorized to issue separate series of
Shares ("Series"), each Share of a Series shall represent an undivided interest
in the assets, subject to the liabilities, allocated to such Series, and each
Series shall have a separate investment objective and separate investment
policies;
WHEREAS, as of the date of this Agreement, the Trust has established
one Series, The RISA Fund, issuing an "Institutional" class of Shares (subject
to no sales or distribution charges), and the Trust may establish additional
Series and/or classes of Shares in the future;
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934 (the "1934 Act") and is a member in good
standing of the National Association of Securities Dealers, Inc. (the "NASD");
WHEREAS, the Trust wishes to employ the services of the Distributor
for the purpose of selling and distributing the Trust's Shares, such employment
to take effect as of the date first written above; and
WHEREAS, the Distributor wishes to provide distribution services to
the Trust as set forth below;
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained, intending to be legally bound the parties agree
as follows:
1. SALE OF SHARES. During the term of this Agreement, the Trust grants
to the Distributor the right to sell on its behalf Shares of each Series listed
on Schedule A hereto, subject to the registration requirements of the 1933 Act
and the laws governing the sale of securities in various states (the "Blue Sky
Laws"), under the terms and conditions set forth herein. In connection
therewith, the Distributor (i) shall have the right to sell, as agent on behalf
of the Trust, Shares authorized for issuance and registered under the 1933 Act
and qualified for sale under Blue Sky Laws; and (ii) shall sell such Shares only
in compliance with the terms set forth in the Trust's then currently effective
registration statement, with any Plan of Distribution as may be in effect from
time to time for any Series, and with any limitations as may be imposed from
time to time by the Board of Trustees of the Trust. The Distributor is not
obligated to sell any specific number of Shares.
2. SELLING DEALER AGREEMENTS. Subject to the supervisory authority of
the Trust's Board of Trustees, the Distributor may enter into selling dealer
agreements with selected dealers and others ("Selling Dealers") for the
provision of distribution services related to the sale of Shares as well as
other shareholder services as may be agreed by the affected parties upon terms
and conditions consistent with the provisions of this Agreement. In entering
into such selling agreements, the Distributor will act only on its own behalf,
as principal. Each agreement with a Selling Dealer shall provide that such
Selling Dealer shall act as principal and not as agent of the Trust.
3. SALE OF SHARES BY THE TRUST. The rights granted to the Distributor
shall be non-exclusive in that the Trust reserves the right to sell its Shares
to investors on applications received and accepted by the Trust. Further, the
Trust reserves the right to issue Shares in connection with (a) the merger or
consolidation of the assets of, or acquisition by the Trust through purchase or
otherwise, with any other investment company, trust or personal holding company;
(b) the payment or reinvestment of dividends or distributions; or (c) any offer
of exchange permitted by Section 11 of the 1940 Act.
4. SHARES COVERED BY THIS AGREEMENT. This Agreement shall apply to all
Shares of all Series of the Trust listed upon Schedule A.
5. PUBLIC OFFERING PRICE. Except as otherwise noted in the Trust's
current Prospectus (the "Prospectus") or Statement of Additional Information
(the "SAI") with respect to each Series and each class of Shares, all Shares
sold to investors by the Distributor or the Trust will be sold at the public
offering price without a sales load. The public offering price for all accepted
subscriptions will be the net asset value per Share, determined in the manner
described in the Trust's current Prospectus or SAI with respect to the
applicable Series or class. The Trust shall in all cases receive the net asset
value per Share on all such sales.
6. SUSPENSION OF SALES. If and whenever the determination of net asset
value is suspended and until such suspension is terminated, no further orders
for Shares shall be processed by the Distributor except such 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 process orders for Shares on behalf of the Trust if, in the
judgment of the Trust, it is in the best interests of the Trust to do so.
Suspension will continue for such period as may be determined by the Trust. In
addition, the Trust and Distributor reserve the right to reject any purchase
order.
7. SOLICITATION OF SALES. In consideration of these rights granted to
the Distributor, the Distributor agrees to use all reasonable efforts,
consistent with its other business, to secure purchasers for Shares of the
Trust. This shall not prevent the Distributor from entering into like
arrangements (including arrangements involving the payment of underwriting
commissions) with other issuers.
8. AUTHORIZED REPRESENTATIONS. The Distributor is not authorized by
the Trust to give any information or to make any representations other than
those contained in the appropriate registration statements, Prospectuses or
SAI's filed with the Securities and Exchange Commission under the 1933 Act (as
those registration statements, Prospectuses and SAI's 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 Trust for the Distributor's use. This shall not
be construed to prevent the Distributor from preparing and distributing, in
compliance with applicable laws and regulations, sales literature or other
material as it may deem appropriate. Distributor will furnish or cause to be
furnished copies of such sales literature or other material to the President of
the Trust or his designee and will provide that designee with a reasonable
opportunity to comment on it. Distributor agrees to take appropriate action to
cease using such sales literature or other material to which the Trust
reasonably objects as promptly as practicable after receipt of the objection.
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9. REGISTRATION OF SHARES. The Trust agrees that it will take all
actions necessary to register Shares under the 1933 Act (subject to necessary
approval, if any, of its shareholders) and qualify Shares for sale in such
states as determined by the Trust's Board of Trustees so that there will be
available for sale the number of Shares the Distributor may reasonably be
expected to sell. The Trust will at all times keep the Distributor advised of
all States in which the Shares are qualified for sale. The Trust 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 each Series of the Trust.
10. REPURCHASE OF SHARES. The Distributor as agent and for the account
of the Trust may repurchase Shares offered for resale to it and redeem such
Shares at their net asset value.
11. EXPENSES, COMPENSATION AND REIMBURSEMENT.
(a) The Trust shall pay all fees and expenses:
(i) in connection with the preparation, setting in type and
filing of any registration statement, Prospectus and SAI
under the 1933 Act, and any amendments thereto, for the
registration of the Shares;
(ii) in connection with the qualification of Shares for sale in
the various states in which the Trust's Board of Trustees
shall determine it advisable to qualify such shares for
sale (including registering the Trust or Series as a broker
or dealer, or any officer of the Trust as agent or
salesperson, in any state);
(iii) of preparing, setting in type, printing and mailing any
report or other communication to shareholders of the Trust
in their capacity as such; and
(iv) of preparing, setting in type, printing and mailing
Prospectuses, SAI's, and any supplements thereto, sent to
existing shareholders.
(b) The Distributor shall pay costs of:
(i) advertising and sales literature used in connection with
the offering of Shares for sale to the public including,
but not limited to the following: public relations
services, sales presentations, media charges, preparation,
printing and mailing of advertising and sales literature,
data processing necessary to support a distribution effort,
printing and mailing prospectuses and distribution and
shareholder servicing activities of brokers/dealers and
other financial institutions; and
(ii) filing fees required by regulatory authorities for sales
literature and advertising materials and any additional
out-of-pocket expenses incurred in connection with these
and any other costs of distribution.
(c) In addition to the services described above, Distributor will
provide services including assistance in the production of
marketing and advertising materials for the sale of the Shares
and their review for compliance with applicable regulatory
requirements.
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(d) In connection with the services to be provided by the Distributor
under this Agreement, the Distributor shall receive:
(i) from the Trust, in connection with the sale and
distribution of the Shares, such payments as shall be
authorized to be paid by the Trust pursuant to any Plan of
Distribution that may be adopted by the Trust in accordance
with Rule 12b-1 under the 1940 Act;
(ii) from the Trust, a distribution fee in the amount of $1,000
per month, payable monthly in arrears on the fifteenth
(15th) day after the end of each calendar month.
(iii) from RISA Investment Advisers, LLC, reimbursement for
expenses incurred by the Distributor in connection with the
sale and distribution of Shares to the extent such expenses
exceed the Rule 12b-1 payments referenced in (i) above.
12. INDEMNIFICATION.
(a) The Trust agrees to indemnify and hold harmless the Distributor
and each of its directors and officers and each person, if any,
who controls the Distributor within the meaning of Section 15 of
the 1933 Act (each an "Indemnified Person" for purposes of this
Section 12(a)) against any loss, liability, claim, damages or
expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damages, or expense
and reasonable counsel fees incurred in connection therewith)
arising by reason of any person acquiring any Shares, based upon
the 1933 Act or any other statute or common law, alleging any
wrongful act of the Trust or any of its employees or
representatives, or based upon the grounds that the registration
statements, Prospectuses, SAI's, shareholder reports or other
information filed or made public by the Trust (as from time to
time amended) included an untrue statement of a material fact or
omitted to state a material fact required to be stated or
necessary in order to make the statements not misleading.
However, the Trust does not agree to indemnify any Indemnified
Person or hold it harmless to the extent that the statement or
omission was made in reliance upon, and in conformity with,
information furnished to the Trust in writing by or on behalf of
any Indemnified Persons. In no case (i) is the indemnity of the
Trust in favor of any Indemnified Person to be deemed to protect
any Indemnified Person against any liability to the Trust or its
security holders to which any Indemnified Person would otherwise
be subject by reason of 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, or (ii) shall the Trust be liable under its indemnity
agreement contained in this Section 12(a) with respect to any
claim made against any Indemnified Person unless such person
shall have notified the Trust 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 such person or after such person shall have
received notice of service on any designated agent. However,
except to the extent the Trust is harmed thereby, failure to
notify the Trust of any claim shall not relieve the Trust from
any liability which it may have to any Indemnified Person against
whom such action is brought other than on account of its
indemnity agreement contained in this Section 12(a). The Trust
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 claims, but if the Trust elects to assume
the defense, the defense shall be conducted by counsel chosen by
it and satisfactory to each Indemnified Person who is a defendant
in the suit. In the event the Trust elects to assume the defense
of any suit and retain counsel, each Indemnified Person who is a
defendant in the suit shall bear the fees and expenses of any
additional counsel retained by them. If the Trust does not elect
to assume the defense of any suit, it will reimburse each
Indemnified Person who is a defendant in the suit, for the
reasonable fees and expenses of one counsel retained by them. The
Trust agrees to notify the Distributor promptly of the
commencement of any litigation or proceedings against the Trust
or any of its officers or Trustees in connection with the
issuance or sale of any of the Shares.
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(b) The Distributor also covenants and agrees that it will 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 (each an "Indemnified
Person" for purposes of this Section 12(b)), against any loss,
liability, damages, claim or expense (including the reasonable
cost of investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees incurred in
connection therewith) arising by reason of any person acquiring
any Shares, based upon the 1933 Act or any other statute or
common law, alleging any wrongful act of the Distributor or any
of its employees or representatives, or alleging that the
registration statements, Prospectuses, SAI's, shareholder reports
or other information filed or made public by the Trust (as from
time to time amended) included an untrue statement of a material
fact or omitted to state a material fact required to be stated or
necessary in order to make the statements not misleading, insofar
as the statement or omission was made in reliance upon, and in
conformity with, information furnished in writing to the Trust by
or on behalf of the Distributor. In no case (i) is the indemnity
of the Distributor in favor of any Indemnified Person to be
deemed to protect any Indemnified Person against any liability to
which such person would otherwise be subject by reason of 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, or (ii) shall the
Distributor be liable under its indemnity agreement contained in
this Section 12(b) with respect to any claim made against any
Indemnified Person unless such person shall have notified the
Distributor 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 such person or after such person shall have received notice
of service on any designated agent. However, failure to notify
the Distributor of any claim shall not relieve the Distributor
from any liability which it may have to any Indemnified Person
against whom the action is brought other than on account of its
indemnity agreement contained in this Section 12(b). In the case
of any notice to the Distributor, it 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
claims, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by it and
satisfactory to each Indemnified Person who is a defendant in the
suit. In the event the Distributor elects to assume the defense
of any suit and retain counsel, each Indemnified Person who is a
defendant in the suit, shall bear the fees and expenses of any
additional counsel retained by them. If the Distributor does not
elect to assume the defense of any suit, it will reimburse each
Indemnified Person who is a defendant in the suit for the
reasonable fees and expenses of one counsel retained by them. The
Distributor agrees to notify the Trust promptly of the
commencement of any litigation or proceedings against it in
connection with the issue and sale of any of the Shares.
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13. LIABILITY OF THE DISTRIBUTOR. The Distributor shall not be liable
for any damages or loss suffered by the Trust in connection with
the matters to which this Agreement relates, except for damage or
loss resulting from the willful misfeasance, bad faith, reckless
disregard or gross negligence on the Distributor's part in the
performance of its duties under this Agreement.
14. ACTS OF GOD, ETC. The Distributor shall not be liable for any
delays or errors occurring by reason of circumstances not
reasonably foreseeable and beyond its control, including but not
limited to acts of civil or military authority, national
emergencies, work stoppages, fire, flood, catastrophe, acts of
God, insurrection, war, riot or failure of communication or power
supply. In addition, in the event of equipment breakdowns which
are (i) beyond the reasonable control of the Distributor and (ii)
not primarily attributable to the failure of the Distributor to
reasonably maintain or provide for the maintenance of such
equipment, the Distributor shall, at no additional expense to the
Trust, take reasonable steps in good faith to minimize service
interruptions but shall have no liability with respect thereto.
15. EFFECTIVENESS, TERMINATION, ETC. This Agreement shall become
effective as of the date first written above, and unless
terminated as provided herein, shall continue in force for two
(2) years from the date of its execution and thereafter from year
to year, provided continuance is approved at least annually by
either (i) the vote of a majority of the trustees of the Trust,
or by the vote of a majority of the outstanding voting securities
of the Trust, and (ii) the vote of a majority of those trustees
of the Trust who are not interested persons of the Trust and who
are not parties to this Agreement or interested persons of any
party, cast in person at a meeting called for the purpose of
voting on the approval. This Agreement shall automatically
terminate in the event of its assignment. As used in this Section
15, the terms "vote of a majority of the outstanding voting
securities," "assignment" and "interested person" shall have the
respective meanings specified in the 1940 Act and the rules
enacted thereunder as now in effect or as hereafter amended. In
addition to termination by failure to approve continuance or by
assignment, this Agreement may at any time be terminated without
the payment of any penalty by vote of a majority of the trustees
of the Trust who are not interested persons of the Trust, or by
vote of a majority of the outstanding voting securities of the
Trust, on not more than sixty (60) days' written notice to the
Distributor. This Agreement may be terminated by the Distributor
upon not less than sixty (60) days' prior written notice to the
Trust.
16. AMENDMENT. The Distributor and the Trust shall regularly consult
with each other regarding the Distributor's performance of its
obligations and its compensation under the foregoing provisions.
In connection therewith, the Trust shall submit to the
Distributor, at a reasonable time in advance of filing with the
SEC, copies of any amended or supplemented registration statement
of the Trust (including exhibits) under the 1933 Act and the 1940
Act and, of a reasonable time in advance of their proposed use,
copies of any amended or supplemented forms relating to any plan,
program or service offered by the Trust. Any change in such
materials that would require any change in Distributor's
obligations under this Agreement shall be subject to the
Distributor's approval, which shall not be unreasonably withheld.
In the event that a change in such documents or in the procedures
contained therein increases the cost or potential liability to
the Distributor in performing its obligations hereunder by more
than an insubstantial amount, the Distributor shall be entitled
to receive reasonable compensation therefor.
This Agreement may be amended at any time by mutual consent of the
parties, provided that such consent of the Trust shall have been
approved (i) by the Trustees of the Trust, or by a vote of a majority
of the outstanding voting securities of the Trust, and (ii) by vote of
a majority of the Trustees of the Trust 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 amendment.
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17. NOTICE. Any notice given by a party under this Agreement shall be
given in writing addressed and hand delivered or sent by
registered or certified mail, postage prepared, to the other
party to this Agreement at the address designated by such party
for receipt of notices. Until further notice pursuant to this
Agreement, each party's address for receipt of notices shall be
the address set forth on the signature page of this Agreement.
18. SEVERABILITY. 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.
19. GOVERNING LAW. To the extent that state law has not been
preempted by the provisions of any law of the United States
heretofore or hereafter enacted, as the same may be amended from
time to time, this Agreement shall be administered, construed and
enforced according to the laws (without regard, however, to laws
as to conflicts of law) of the Commonwealth of Pennsylvania.
20. SHAREHOLDER LIABILITY. Distributor acknowledges that it has
received notice of and accepts the limitations of liability set
forth in the Trust's Agreement and Declaration of Trust.
Distributor agrees that the Trust's obligations hereunder shall
be limited to the Trust and its assets, and that Distributor
shall have recourse solely against the assets of the Series with
respect to which the Trust's obligations hereunder relate and
shall have no recourse against the assets of any other Series or
against any shareholder, Trustee, officer, employee, or agent of
the Trust.
21. COMPLIANCE WITH LAWS. The Distributor represents that it is
registered as a broker-dealer under the 1934 Act and a member in
good standing of the NASD and agrees to maintain such
registration and membership throughout the terms of this
Agreement. The Distributor shall comply with all applicable
provisions of the 1940 Act, the 1933 Act, the 1934 Act and other
Federal and state laws in connection with the sale of the Shares.
22. MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof. 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. This Agreement may be executed in two counterparts,
each of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
HARVEST FUNDS
By:__________________________________
▇▇▇▇▇▇ St. ▇. ▇▇▇▇▇▇▇▇, Chairman
BOE SECURITIES, INC.
By:__________________________________
▇▇▇▇▇ ▇▇▇▇▇▇, President
Agreement to reimburse expenses
of BOE Distributors, Inc. as Distributor
pursuant to Section 11(d)(iii) hereof:
RISA INVESTMENT ADVISERS, LLC
as Investment Advisor
By:_______________________________________
O. ▇▇▇ ▇▇▇▇▇, Managing Director
Date:______________________________
DISTRIBUTION AGREEMENT
SCHEDULE A
HARVEST FUNDS
SERIES AND CLASS LISTING
The RISA Fund
- Institutional Class Shares
