DISTRIBUTION AGREEMENT
This Agreement is made as of May ___, 1997, between LEVCO Series
Trust, a Delaware business trust (the "Trust"), and LEVCO Securities, Inc., a
Delaware corporation (the "Distributor").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end, diversified management investment
company and has established one, and may establish several additional, separate
series of shares (each, a "Series"), with each Series having its own assets and
investment policies, the initial Series being LEVCO Equity Value Fund;
WHEREAS, the Series propose to issue and sell their shares of beneficial
interest ("Shares") to separate accounts of life insurance companies (the
"Participating Companies") and may in the future issue and sell to qualified
pension and retirement plans (the "Qualified Plans"), and each Series currently
issues two classes of Shares designated as Class A and Class B Shares; and
WHEREAS, the Trust desires to retain the Distributor to furnish
distribution services to each Series listed in Schedule A attached hereto, and
to such other Series of the Trust hereinafter established as agreed to from time
to time by the parties, evidenced by an addendum to Schedule A (hereinafter
"Series" shall refer to each Series which is subject to this Agreement, and all
agreements and actions described herein to be made or taken by a Series shall be
made or taken by the Trust on behalf of the Series), and the Distributor is
willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. The Trust hereby appoints the Distributor, as agent, to sell
Shares to separate accounts of the Participating Companies and to the Qualified
Plans as may be permitted by law, and the Distributor hereby accepts such
appointment. All sales by the Distributor shall be expressly subject to
acceptance by the Trust.
2. (a) The Distributor agrees that (i) all Shares sold by the
Distributor shall be sold at the net asset value thereof, as described in
Section 3 hereof (the "NAV"), and (ii) the Series shall receive 100% of such
NAV.
(b) The Shares will be sold in accordance with sales agreements
between the Trust and the Participating Companies.
3. The Trust agrees to supply to the Distributor, promptly after the
time or times at which the NAV is determined, on each day on which the New York
Stock Exchange is
open for business and on such other days as the Board of Trustees of the Trust
(the "Trustees") may from time to time determine (each such day being
hereinafter called a "business day"), a statement of the NAV of each Series
having been determined in the manner set forth in the then-current Prospectus
and Statement of Additional Information (the "SAI") of such Series. Each
determination of NAV shall take effect as of such time or times on each business
day as set forth in the then-current Prospectus of the relevant Series and shall
prevail until the time as of which the next determination is made.
4. Upon receipt by the Trust at its principal place of business of a
written order from the Distributor, together with delivery instructions, the
Trust shall, if it elects to accept such order, as promptly as practicable,
cause the Shares purchased by such order to be delivered in such amounts and in
such names as the Distributor shall specify, against payment therefor in such
manner as may be acceptable to the Trust. The Trust may, in its discretion,
refuse to accept any order for the purchase of Shares that the Distributor may
tender to it.
5. (a) All sales literature and advertisements used by the
Distributor in connection with sales of Shares shall be subject to approval by
the Trust. The Trust authorizes the Distributor, in connection with the sale or
arranging for the sale of Shares of any Series, to provide only such information
and to make only such statements or representations as are contained in the
Series' then-current Prospectus and SAI or in such financial and other
statements furnished to the Distributor pursuant to the next paragraph or as may
properly be included in sales literature or advertisements in accordance with
the provisions of the Securities Act of 1933, as amended (the "1933 Act"), the
1940 Act and applicable rules of self-regulatory organizations. Neither the
Trust nor any Series shall be responsible in any way for any information
provided or statements or representations made by the Distributor or its
representatives or agents other than the information, statements and
representations described in the preceding sentence.
(b) Each Series shall keep the Distributor fully informed with
regard to its affairs, shall furnish the Distributor with a certified copy of
all of its financial statements and a signed copy of each report prepared for it
by its independent auditors, and shall cooperate fully in the efforts of the
Distributor to negotiate and sell the Shares of such Series and to perform its
duties under this Agreement.
6. Any of the outstanding Shares may be tendered for redemption at
any time, and the Trust agrees to redeem Shares so tendered in accordance with
their terms and the procedures and requirements set forth in the Prospectus and
the SAI. The price to be paid upon redemption of Shares shall be equal to the
NAV per Share of such Series next determined after proper tender and acceptance.
7. The Distributor shall not be paid any compensation by the Trust
pursuant to this Agreement. However, the Trust may, with respect to Class B
shares, pay such compensation and make other payments to the Distributor as may
be permitted by a separate Plan of Distribution adopted by the Trust pursuant to
Rule 12b-1 under the 1940 Act (the "Rule 12b-1 Plan"). The Distributor may pay
such concessions or reallowances as the Distributor, in its discretion, may from
time to time determine. The Trust and the Distributor agree, however, that
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no concessions or reallowances shall be paid except in compliance with
applicable laws and regulations, including the rules of the National Association
of Securities Dealers, Inc.
8. (a) Except as provided in this Agreement and in accordance with
the Rule 12b-1 Plan, the Distributor shall pay all its own costs and expenses
incurred in connection with the sale of Shares.
(b) The Trust shall bear all of its costs and expenses, including
fees and disbursements of its counsel and auditors, in connection with: (i) the
preparation and filing of its Registration Statement on Form N-1A ("Registration
Statement"), the Prospectus and the SAI, and supplements to the foregoing; and
(ii) the expense of preparing, printing, mailing and otherwise distributing
Prospectuses and SAIs (including supplements), annual and interim reports and
proxy materials for use by shareholders.
(c) The Trust shall bear the cost and expenses of qualification of
Shares for sale, and, if necessary or advisable in connection therewith, of
qualifying the Trust as a broker or dealer, in all relevant states of the United
States or other jurisdictions, and the cost and expenses payable to each such
state for continuing qualification therein until the Trust decides to
discontinue such qualification.
9. Each Series shall maintain a currently effective Registration Statement
with respect to such Series and shall file with the Securities and Exchange
Commission (the "SEC") such reports and other documents as may be required under
the 1933 Act and the 1940 Act, or the rules and regulations of the SEC
thereunder.
10. (a) This Agreement shall become effective on the date hereof and
remain in effect for an initial term of two years from the date hereof and from
year to year thereafter; provided, that such continuance shall be specifically
approved each year by the Trustees or by a majority of the outstanding voting
securities of the Series, and, in either case, by a majority of the Trustees who
are not interested persons of the Trust or the Distributor (the "Disinterested
Trustees"), which vote must be cast in person at a meeting called for the
purpose of voting on such approval. This Agreement may be amended as to any
Series with the approval of the Trustees or of a majority of the outstanding
voting securities of such Series; provided, that in either case, such amendment
also shall be approved by a majority of the Disinterested Trustees.
(b) The Trust may, at any time and without the payment of any penalty,
terminate this Agreement upon sixty days' written notice to the Distributor.
This Agreement shall immediately terminate in the event of its assignment (to
the extent required by
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the 1940 Act and the rules thereunder) unless such automatic termination shall
be prevented by an exemptive order of the SEC. The Distributor may terminate
this Agreement without payment of any penalty on sixty days' written notice to
the Trust.
(c) Any question of interpretation of any term or provision of
this Agreement having a counterpart in or otherwise derived from a term or
provision of the 1940 Act shall be resolved by reference to such term or
provision of the 1940 Act and to interpretation thereof, if any, by the United
States courts or, in the absence of any controlling decision of any such court,
by rules, regulations or orders of the SEC validly issued pursuant to the 1940
Act. Specifically, the terms "interested persons", "assignment" and "vote of a
majority of the outstanding voting securities", as used in this Agreement, shall
have the meanings assigned to them by Section 2(a) of the 1940 Act. In addition,
when the effect of a requirement of the 1940 Act reflected in any provision of
this Agreement is modified, interpreted or relaxed by a rule, regulation or
order of the SEC, whether of special or of general application, such provision
shall be deemed to incorporate the effect of such rule, regulation or order. The
Trust and the Distributor may from time to time agree on such provisions
interpreting or clarifying the provisions of this Agreement as, in their joint
opinion, are consistent with the general tenor of this Agreement and with the
specific provisions of this Section 10(c). Any such interpretations or
clarifications shall be in writing signed by the parties and annexed hereto, but
no such interpretation or clarification shall be effective if in contravention
of any applicable federal or state law or regulations, and no such
interpretation or clarification shall be deemed to be an amendment of this
Agreement.
No term or provision of this Agreement shall be construed to
require the Distributor to provide distribution services to any series of the
Trust other than the Series, or to require any Series to pay any compensation or
expenses that are properly allocable to a series of the Trust other than such
Series, as determined by the Trustees.
(d) This Agreement shall be construed in accordance with the laws
of the State of New York and the applicable provisions of the 1940 Act. To the
extent the applicable laws of the State of New York, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control.
11. (a) The Trust shall indemnify and hold harmless the Distributor
and each person, if any, who controls the Distributor against any loss,
liability, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage or expense
and reasonable counsel fees incurred in connection therewith) arising by reason
of any person acquiring any Shares, which may be based upon the 1933 Act, or on
any other statute or at common law, on the ground that the Registration
Statement, the Prospectus or the SAI, or any annual or interim report to
shareholders, includes an untrue statement of material fact or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, information furnished to the Trust in
connection therewith by or on behalf of the Distributor; provided, however, that
in no case (i) is the indemnity of the Trust in favor of the Distributor and any
such controlling persons to be deemed to protect such
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Distributor or any such controlling persons thereof against any liability to the
Trust or its shareholders to which the Distributor or any such controlling
persons would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of its duties or by reason of reckless
disregard of its obligations and duties under this Agreement; or (ii) is the
Trust to be liable under its indemnity agreement contained in this paragraph
with respect to any claim made against the Distributor or any such controlling
persons, unless the Distributor or such controlling persons, as the case may be,
shall have notified the Trust in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon the Distributor or such controlling persons
(or after the Distributor or such controlling persons shall have received notice
of such service on any designated agent), but failure to notify the Trust of any
such claim shall not relieve it from any liability which it may have to the
person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. The Trust will 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 such liability, but if the Trust
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Distributor or such controlling person or persons,
defendant or defendants in the suit. In the event the Trust elects to assume the
defense of any such suit and retain such counsel, the Distributor or such
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and the expenses of any additional counsel retained by them, but, in
case the Trust does not elect to assume the defense of any such suit, it will
reimburse the Distributor or such controlling person or persons, defendant or
defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Trust shall promptly notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Shares.
(b) The Distributor shall indemnify and hold harmless the Trust
and each of its trustees and officers and each person, if any, who controls the
Trust against any loss, liability, claim, damage, or expense described in the
foregoing indemnity contained in subsection (a) of this Section, but only with
respect to statements or omissions made in reliance upon, and in conformity
with, information furnished to the Trust in writing by or on behalf of the
Distributor for use in connection with the Registration Statement, the
Prospectus or the SAI, or the annual or interim reports to shareholders. In case
any action shall be brought against the Trust or any person so indemnified, in
respect of which indemnity may be sought against the Distributor, the
Distributor shall have the rights and duties given to the Trust, and the Trust
and each person so indemnified shall have the rights and duties given to the
Distributor by the provisions of subsection (a) of this Section 11.
12. The Amended and Restated Declaration of Trust states and notice
is hereby given that this Agreement is not executed on behalf of the Trustees of
the Trust as individuals, and that the obligations of this Agreement are not
binding upon any of the Trustees, officers or shareholders or partners of the
Trust individually, but are binding only upon the assets and property of the
Trust.
13. Any notice under this Agreement shall be given to the other party
at the principal office of such party (or such other address as a party may
hereafter specify that notices hereunder be sent).
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed by their fully authorized officers and under their respective
seals.
LEVCO SERIES TRUST
By:
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Title:
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LEVCO SECURITIES, INC.
By:
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Title:
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DISTRIBUTION AGREEMENT
SCHEDULE A
The Series of LEVCO Series Trust currently subject to this Agreement are as
follows:
LEVCO Equity Value Fund
