Exhibit B
DISTRIBUTION AGREEMENT
AGREEMENT made this 31st day of July, 1992, between BNY
XXXXXXXX FUNDS, INC., a Corporation organized under the laws of the State of
Maryland (the "Corporation"), and BNY XXXXXXXX DISTRIBUTORS, INC., a Delaware
corporation (the "Distributor").
W I T N E S S E T H :
WHEREAS, the Corporation is registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as a diversified open-end
management investment company and it is in the interest of the Corporation to
offer its shares for sale continuously and to appoint a principal underwriter
for the purpose of facilitating such offers and sales;
WHEREAS, the Corporation's Board of Directors has established
BNY Xxxxxxxx __________________ Fund as a separate series of the Corporation
(the "Series");
WHEREAS, the Series intends to adopt a Plan of Distribution
pursuant to Rule 12b-1 under the 1940 Act (a "12b-1 Plan") and may elect to make
payments to the Distributor pursuant to such plan at a future date; and
WHEREAS, the Corporation and the Distributor wish to enter
into an agreement with each other with respect to the continuous offering of the
Series' shares of common stock, par value $.001 per share (the "Shares"), to
commence after the effectiveness of its initial registration state ment filed
pursuant to the Securities Act of 1933, as amended (the "1933 Act"), and the
1940 Act.
NOW THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor.
The Corporation hereby appoints the Distributor as its
exclusive underwriter in connection with the offering and sale of the Shares on
the terms set forth in this Agree ment and the Distributor hereby accepts such
appointment and agrees to act hereunder.
Section 2. Services and Duties of the Distributor.
(a) The Distributor agrees to sell, as agent for the Series,
from time to time during the term of this Agreement, Shares upon the terms
described in the Prospectus. As used in this Agreement, the term "Prospectus"
shall mean the prospectus
included as part of the Series' Registration Statement, as such prospectus 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 Corporation 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.
(b) Upon commencement of the Corporation's operations, the
Distributor will hold itself available to receive orders, satisfactory to the
Distributor, for the purchase of Shares and will accept such orders on behalf of
the Series and will transmit such orders as are so accepted to the transfer and
shareholder servicing agent for the Series as promptly as practicable. The
Distributor shall promptly forward to the custodian for the Series funds
received in respect of purchases of shares in accordance with the instructions
of the administrator for the Series. Purchase orders shall be deemed effective
at the time and in the manner set forth in the Prospectus.
(c) The offering price of the Shares shall be based on the net
asset value (as defined in the Articles of Incorporation of the Corporation and
determined as set forth in the Prospectus) per Share next determined following
receipt of an order, and shall be determined as set forth in the Prospectus. In
the event the Series offers two or more classes of shares, the offering price of
each class shall be determined as set forth in the Prospectus. The Series shall
furnish or cause to be furnished to the Distributor, with all possible
promptness, an advice of each computation of net asset value and, if different,
the offering price.
(d) The Distributor shall not be obligated to sell any certain
number of Shares and nothing herein contained shall prevent the Distributor from
entering into like distribution arrangements with other investment companies.
(e) The Distributor shall have the right to enter into
selected dealer agreements with registered and quali fied securities dealers and
other financial institutions of its choice for the sale of Shares, provided that
the Series shall approve the form of such agreements. Within the United States,
the Distributor shall offer and sell Shares only to such selected dealers as are
members in good standing of the NASD. Shares sold to selected dealers shall be
for resale by such dealers only at the offering price determined as set forth in
the Prospectus.
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Section 3. Duties of the Corporation.
(a) The Corporation agrees to sell the Shares so long as it
has Shares available for sale and to cause the Series' transfer and shareholder
servicing agent to record on its books the ownership of (or deliver
certificates, if any, for) such Shares registered in such names and amounts as
the Distributor has requested in writing or other means of data transmission, as
promptly as practicable after receipt by the Corporation of the net asset value
thereof and written request of the Distributor therefor.
(b) The Corporation 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 distribu tion of Shares, and
this shall include one certified copy, upon request by the Distributor, of all
financial statements prepared for the Series by independent accountants and such
reasonable number of copies of its most current 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.
(c) The Corporation shall take, from time to time, such steps,
including payment of the related filing fee, as may be necessary to register its
Shares under the 1933 Act to the end that there will be available for sale such
number of Shares as the Distributor may be expected to sell. The Corporation
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.
(d) The Corporation shall use its best efforts to qualify and
maintain the qualification of an appropriate number of its Shares for sale under
the securities laws of such states as the Distributor and the Corporation may
approve, and, if necessary or appropriate in connection therewith, to qualify
and maintain the qualification of the Corporation as a broker or dealer in such
states; provided that the Corporation shall not be required to amend its
Articles of Incorporation or Bylaws 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 from the terms set forth in its Registration Statement and
Prospectus, to qualify as a foreign corporation in any state or to consent to
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service of process in any state other than with respect to claims arising out of
the offering of the Shares. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be required by the
Corporation in connection with such qualifications.
Section 4. Expenses.
(a) The Series shall bear all costs and expenses of the
continuous offering of the Shares in connection with: (i) fees and disbursements
of its counsel and independent accountants, (ii) the preparation, filing and
printing of any registration statements and/or prospectuses required to be filed
by and under the federal and state securities laws, (iii) the preparation and
mailing of annual and interim reports, prospectuses and proxy materials to
shareholders and (iv) the qualifications of Shares for sale and of the
Corporation as a broker or dealer under the securities laws of such states or
other jurisdictions as shall be selected by the Corporation and the Distributor
pursuant to Section 3(d) hereof and the cost and expenses payable to each such
state for continuing qualification therein.
(b) Unless the Series has adopted a 12b-1 Plan and has elected
to begin making payments under such plan, the Series shall not, directly or
indirectly, reimburse the Distributor for (i) the costs and expenses of
preparing, printing and distributing any materials not prepared by the
Corporation and other materials used by the Distributor in connection with its
offering of the Shares for sale to the public, including the additional cost of
printing copies, at printer's over-run cost, of the Prospectus and of annual and
interim reports to shareholders other than copies thereof required for
distribution to shareholders or for filing with any federal and state securities
authorities and (ii) any expenses of advertising incurred by the Distributor in
connection with such offering. In any event, the Series shall not bear the
expenses of registration or qualification of the Distributor as a dealer or
broker under federal or state laws or the expenses of continuing such
registration or qualification.
Section 5. Compensation of the Distributor. The Distributor
shall be entitled to such compensation, including sales loads and contingent
deferred sales charges, if any, described in the Prospectus. In the event that
the Series has adopted a 12b-1 Plan and has elected to make payments thereunder,
the Distributor shall be entitled to compensation in accordance with such plan,
provided that it otherwise complies with the terms and provisions thereof, and
to make payments hereunder and
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thereunder to dealers that enter into selected dealer agreements under Section
2(e) above.
Section 6. Indemnification. The Corporation agrees to
indemnify, defend and hold the Distributor, its officers and directors and any
person who controls the Distributor within the meaning of Section 15 of the 1933
Act, free and harmless from and against any and all claims, demands, liabilities
and expenses (including the cost of investigating or defending such claims,
demands or liabili ties and any counsel fees incurred in connection therewith)
which the Distributor, its officers, Directors or any such controlling person
may incur under the 1933 Act, or under common law or otherwise, arising out of
or based upon any untrue statement of a material fact contained in the
Registration Statement or Prospectus or arising out of or based upon any alleged
omission to state a material fact required to be stated in either thereof or
necessary to make the statements in either thereof not misleading, except
insofar as such claims, demands, 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 Corporation for use in the Registration
Statement or Prospectus; provided, however, that this indemnity agreement, to
the extent that it might require indemnity of any person who is also an officer
or director of the Corporation or who controls the Corporation within the
meaning of Section 15 of the 1933 Act, shall not inure to the benefit of such
officer, director or control ling person unless a court of competent
jurisdiction shall determine, or it shall have been determined by controlling
precedent, that such result would not be against public policy as expressed in
the 1933 Act; and further provided, that in no event shall anything contained
herein be so construed as to protect the Distributor against any liability to
the Corporation or to its security holders to which the Distributor 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 under this Agreement. The Corporation's agreement
to indemnify the Distributor, its officers and directors and any such
controlling person as aforesaid is expressly conditioned upon the Corporation's
being promptly notified of any action brought against the Distributor, its
officers or directors, or any such controlling person, such notification to be
given to the Corporation at its principal business office. The Corporation
agrees promptly to notify the Distributor of the commencement of any litigation
or proceedings against it or any of its officers or directors in connection with
the issue and sale of any Shares.
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The Distributor agrees to indemnify, defend and hold the
Corporation, its directors and officers and any person who controls the
Corporation, if any, within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending against such claims, demands
or liabilities and any counsel fees incurred in connection therewith) which the
Corporation, its directors or officers or any such control ling person may incur
under the 1933 Act or under common law or otherwise, but only to the extent that
such liability or expense incurred by the Corporation, its directors or officers
or such controlling person resulting from such claims or demands shall arise out
of or be based upon any alleged untrue statement of a material fact contained in
information furnished in writing by the Distributor to the Corporation for use
in the preparation of the Registration Statement or Prospectus or shall arise
out of or be based upon any alleged omission to state a material fact in such
information or a fact necessary to make such information not misleading, it
being understood that the Corporation will rely upon the information provided by
the Distributor for use in the preparation of the Registration Statement and
Prospectus. The Distributor's agreement to indemnify the Corporation, its
directors and officers, and any such controlling person as aforesaid is
expressly conditioned upon the Distributor's being promptly notified of any
action brought against the Corporation, its directors or officers or any such
controlling person, such notification to be given to the Distributor as its
principal business office.
Section 7. Compliance with Securities Laws. The Corporation
represents that it is registered as a diversi fied open-end management
investment company under the 1940 Act, and agrees that it will comply with the
provisions of the 1940 Act and of the rules and regulations thereunder. The
Corporation and the Distributor each agree to comply with the applicable terms
and provisions of the 1940 Act, the 1933 Act and, subject to the provisions of
Section 3(d), applicable state "Blue Sky" laws. The Distributor agrees to comply
with the applicable terms and provisions of the Securities Exchange Act of 1934.
Section 8. Term of Agreement; Termination. This Agreement
shall commence on the date first set forth above. This Agreement shall continue
in effect for a period more than one year from the date hereof only so long as
such continuance is specifically approved at least annually by the vote, cast in
person, of a majority of the board of directors of the Corporation, including a
majority of those directors who are not interested persons of the Corporation
(as defined in the 0000 Xxx) and who have no direct or indirect financial
interest in the
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operation of this Agree ment, the 12b-1 Plan or any agreement related thereto.
This Agreement shall terminate automatically in the event of
its assignment (as defined by the 1940 Act). In addition, this Agreement may be
terminated by either party at any time, without penalty, on not more than sixty
days' nor less than thirty days' written notice to the other party.
Section 9. 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, (1) to the Distributor at BNY Xxxxxxxx
Distributors, Inc., 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxxxxxx or (2) to the Corporation at BNY Xxxxxxxx Funds,
Inc., 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Secretary.
Section 10. Governing Law. This Agreement shall
be governed and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
BNY XXXXXXXX DISTRIBUTORS, INC.
By
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BNY XXXXXXXX FUNDS, INC.
on behalf of BNY Xxxxxxxx
_______________ Fund
By
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