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EX-99.B6(a)
DISTRIBUTION AGREEMENT
This Distribution Agreement is made as of the 1st day of July, 1996 between
SBSF Funds, Inc. (d/b/a Key Mutual Funds), a Maryland Corporation (herein called
the "Fund"), and BISYS Fund Services Limited Partnership (d/b/a BISYS Fund
Services), an Ohio limited partnership (herein called the "Distributor").
WHEREAS, the Fund is an open-end management investment company and is so
registered under the Investment Company Act of 1940; and
WHEREAS, the Fund desires to retain the Distributor as Distributor for each
of the Fund's separate portfolios set forth on Schedule I hereto, as such
Schedule may be revised from time to time (individually known as a "Portfolio"
and collectively as the "Portfolios") to provide for the sale and distribution
of shares of common stock par value $.01 per share of the Fund (herein
collectively called "Shares"), and the Distributor is willing to render such
services;
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth herein the parties hereto agree as follows:
I. DELIVERY OF DOCUMENTS
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The Fund has delivered to the Distributor copies of each of the following
documents and will deliver to it all future amendments and supplements thereto,
if any:
(a) The Fund's Articles of Incorporation and all amendments thereto (such
Articles of Incorporation, as presently in effect and as it shall from time to
time be amended, herein called the "Fund's Articles");
(b) The By-Laws of the Fund (such By-Laws, as presently in effect and as
they shall from time to time be amended, herein called the "By-Laws");
(c) Resolutions of the Board of Directors of the Fund authorizing the
execution and delivery of this Agreement;
(d) The Fund's most recent Post-Effective Amendment to its Registration
Statement under the Securities Act of 1933, as amended (the "1933 Act"), and
under the Investment Company Act of 1940, as amended (the "1940 Act"), on Form
N-1A as filed with the Securities and Exchange Commission (the "Commission") and
all subsequent amendments thereto (said Registration Statement, as presently in
effect and as amended or supplemented from time to time, is herein called the
"Registration Statement");
(e) Notification of Registration of the Fund under the 1940 Act on Form
N-8A as filed with the Commission; and
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(f) Prospectuses and Statements of Additional Information of the Fund (such
prospectuses and statements of additional information, as presently filed with
the Securities and Exchange Commission and as they shall from time to time be
amended and supplemented, herein called individually the "Prospectus" and
collectively the "Prospectuses").
II. DISTRIBUTION
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1. APPOINTMENT OF DISTRIBUTOR. The Fund hereby appoints the Distributor as
Principal Distributor of the Portfolios' Shares and the Distributor hereby
accepts such appointment and agrees to render the services and duties set forth
in this Section II.
2. SERVICES AND DUTIES.
(a) The Fund agrees to sell through the Distributor, as agent,
from time to time during the term of this Agreement, Shares of the Portfolios
(whether authorized but unissued or treasury shares, in the Portfolios sole
discretion) upon the terms and at the current offering price as described in the
applicable Prospectus. The Distributor will act only in its own behalf as
principal in making agreements with selected dealers or others for the sale and
redemption of Shares, and shall sell Shares only at the offering price thereof
as set forth in the applicable Prospectus. The Distributor shall devote its best
efforts to effect sales of Shares of each of the Portfolios, but shall not be
obligated to sell any certain number of Shares. Each Portfolio reserves the
right to issue Shares in connection with any merger or consolidation of the
Portfolio or any Portfolio with any other investment company or personal holding
company or in connection with offers of exchange exempted from Section 11(a) of
the 1940 Act.
(b) In all matters relating to the sale and redemption of
Shares, the Distributor will act in conformity with the Fund's Articles,
By-Laws, and Prospectuses and with the instructions and directions of the Board
of Directors of the Fund and will conform to and comply with the requirements of
the 1933 Act, the 1940 Act, the regulations of the National Association of
Securities Dealers, Inc. and all other applicable federal or state laws and
regulations. In connection with such sales, the Distributor acknowledges and
agrees that it is not authorized to provide any information or make any
representations other than as contained in the Fund's Registration Statement and
Prospectuses and any sales literature specifically approved by the Fund. The
Fund shall not be responsible in any way for any information, statements or
representations given or made by the Distributor or its representatives or
agents other than such information, statements or representations contained in
the Prospectuses or other financial statements of the Fund or in any sales
literature or advertisements specifically approved by the Fund.
(c) The Distributor will bear the cost of (i) printing and
distributing any Prospectus (including any supplement thereto) to persons who
are not either shareholders or counsel, independent accountants or other persons
providing similar services to the
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Fund, and (ii) preparing, printing and distributing any literature,
advertisement or material which is primarily intended to result in the sale of
the Shares; PROVIDED, HOWEVER, that the Distributor shall not be obligated to
bear the expenses incurred by the Fund in connection with the preparation and
printing of any amendment to any Registration Statement or Prospectus necessary
for the continued effective registration of the Shares under the 1933 Act; and
PROVIDED FURTHER, that each Portfolio will bear the expenses incurred and other
payments made in accordance with the provisions of this Agreement and any plan
now in existence or hereafter adopted with respect to such Portfolio, or any
class or classes of shares of such Fund, pursuant to Rule 12b-1 under the 1940
Act (collectively, the "Plans").
(d) The Distributor agrees to be responsible for implementing
and/or operating the Plans in accordance with the terms thereof.
(e) All Shares of the Funds offered for sale by the Distributor
shall be offered for sale to the public at a price per Share (the "Offering
price") equal to (i) their net asset value (determined in the manner set forth
in the Fund's Articles and then current Prospectuses) plus (ii) a sales charge
(if any) which shall be the percentage of the offering price of such Shares as
set forth in the Fund's then current Prospectuses. The offering price, if not an
exact multiple of one cent, shall be adjusted to the nearest cent. If a sales
charge is in effect, the Distributor shall have the right to pay a portion of
the sales charge to broker-dealers and other persons who have sold Shares of the
Portfolios. Concessions by the Distributor to broker-dealers and other persons
shall be set forth in either the selling agreements between the Distributor and
such broker-dealers and persons or, if such concessions are described in the
then current Prospectuses, shall be as so set forth. No broker-dealer or other
person who enters into a selling agreement with the Distributor shall be
authorized to act as agent for the Fund in connection with the offering or sale
of its Shares to the public or otherwise.
(f) If any Shares sold by the Distributor under the terms of
this Agreement are redeemed or repurchased by the Fund or by the Distributor as
agent or are tendered for redemption within seven business days after the date
of confirmation of the original purchase of said Shares, the Distributor shall
forfeit the amount (if any) of the net asset value received by it in respect of
such Shares, provided that the portion, if any, of such amount (if any)
re-allowed by the Distributor to broker-dealers or other persons shall be
repayable to the Fund only to the extent recovered by the Distributor from the
broker-dealer or other person concerned. The Distributor shall include in the
forms of agreement with such broker-dealers and other persons a corresponding
provision for the forfeiture by them of their concession with respect to Shares
sold by them or their principals and redeemed or repurchased by the Fund or by
the Distributor as agent (or tendered for redemption) within seven business days
after the date of confirmation of such initial purchases.
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3. SALES AND REDEMPTIONS.
(a) The Fund shall pay all costs and expenses in connection with
the registration of the Shares under the 1933 Act, and all expenses in
connection with maintaining facilities for the issue and transfer of the Shares
and for supplying information, prices and other data to be furnished by the Fund
hereunder, and all expenses in connection with preparing, printing and
distributing the Prospectus except as set forth in subsection 2(c) of Section II
hereof.
(b) The Fund shall execute all documents, furnish all
information and otherwise take all actions which may be reasonably necessary in
the discretion of the Fund's officers in connection with the qualification of
the Shares for sale in such states as the Distributor may designate to the Fund
and the Fund may approve, and the Fund shall pay all filing fees which may be
incurred in connection with such qualification. The Distributor shall pay all
expenses connected with its qualification as a dealer under state or federal
laws and, except as otherwise specifically provided in this Agreement, all other
expenses incurred by the Distributor in connection with the sale of the Shares
as contemplated in this Agreement. It is understood that certain advertising,
marketing, shareholder servicing, administration and/or distribution expenses to
be incurred in connection with the Shares will be paid by the Portfolios as
provided in this Agreement and in the Plans relating thereto.
(c) The Fund shall have the right to suspend the sale of Shares
of any Portfolio at any time in response to conditions in the securities markets
or otherwise, and to suspend the redemption of Shares of any Portfolio at any
time permitted by the 1940 Act or the rules of the Commission ("Rules").
(d) The Fund reserves the right to reject any order for
Shares.
III. LIMITATION OF LIABILITY
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The Distributor shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund or any Portfolio in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or negligence on its part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement.
IV. CONFIDENTIALITY
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The Distributor will treat confidentially and as proprietary
information of the Fund all records and other information relative to the Fund,
to the Fund's prior or present shareholders and to those persons or entities who
respond to the Distributor's inquiries concerning investment in the Fund, and
except as provided below, will not use such records and information for any
purpose other than the performance of its responsibilities and duties hereunder
or the performance of its responsibilities and duties with regard to
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sales of the shares of any Portfolio which may be added to the Fund in the
future. Any other use by the Distributor of the information and records referred
to above may be made only after prior notification to and approval in writing by
the investment adviser to the Fund. Such approval may not be withheld where (i)
the Distributor may be exposed to civil or criminal contempt proceedings for
failure to divulge such information; (ii) the Distributor is requested to
divulge such information by duly constituted authorities; or (iii) the
Distributor is so requested by the Board of Directors of the Fund.
V. INDEMNIFICATION
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1. FUND REPRESENTATIONS. The Fund represents and warrants to the
Distributor that at all times the Registration Statement and Prospectuses will
in all material respects conform to the applicable requirements of the 1933 Act
and the Rules and will not 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 statements therein, in light of the circumstances under which they were
made, not misleading, except that no representation or warranty in this
subsection shall apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Fund by or on behalf of and
with respect to the Distributor expressly for use in the Registration Statement
or Prospectuses.
2. DISTRIBUTOR REPRESENTATIONS. The Distributor represents and warrants to
the Fund that it is duly organized as a Delaware corporation and is and at all
times will remain duly authorized and licensed to carry out its services as
contemplated herein.
3. FUND INDEMNIFICATION. The Fund will indemnify, defend and hold harmless
the Distributor, its several officers and directors, and any person who controls
the Distributor within the meaning of Section 15 of the 1933 Act, from and
against any losses, claims, damages or liabilities, joint or several, to which
any of them may become subject under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings 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, the
Prospectuses or in any application or other document executed by or on behalf of
the Fund, or arise out of, or are based upon, information furnished by or on
behalf of the Fund filed in any state in order to qualify the Shares under the
securities or blue sky laws thereof ("Blue Sky Applications"), 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 necessary to make the statements therein
not misleading, and will reimburse the Distributor, its several officers and
directors, and any person who controls the Distributor within the meaning of
Section 15 of the 1933 Act, for any legal or other expenses reasonably incurred
by any of them in investigating , defending, or preparing to defend any such
action, proceeding or claim, provided, however, that the Fund shall not be
liable in any case to the extent that such loss, claim, damage or liability
arises out of, or is based upon, any untrue statement, alleged untrue statement,
or omission or alleged omission made in the Registration Statement, the
Prospectuses, any Blue Sky Application
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or any application or other document executed by or on behalf of the Fund in
reliance upon and in conformity with written information furnished to the Fund
by or on behalf of and with respect to the Distributor specifically for
inclusion therein.
The Fund shall not indemnify any person pursuant to this subsection 3
unless the court or other body before which the proceeding was brought has
rendered a final decision on the merits that such person was not liable by
reason of his willful misfeasance, bad faith or negligence in the performance of
his duties, or his reckless disregard of obligations and duties, under this
Agreement ("disabling conduct") or, in the absence of such a decision, a
reasonable determination (based upon a review of the facts) that such person was
not liable by reason of disabling conduct has been made by the vote of a
majority of a quorum of Directors of the Fund who are neither "interested
persons" of the Fund (as defined in the 0000 Xxx) nor parties to the proceeding,
or by an independent legal counsel in a written opinion.
Each Portfolio shall advance attorney's fees and other expenses
incurred by any person in defending any claim, demand, action or suit which is
the subject of a claim for indemnification pursuant to this subsection 3, so
long as: (i) such person shall undertake to repay all such advances unless it is
ultimately determined that he is entitled to indemnification hereunder; and (ii)
such person shall provide security for such undertaking, or the Portfolio shall
be insured against losses arising by reason of any lawful advances, or a
majority of a quorum of the disinterested, non-party Directors of the Fund (or
an independent legal counsel in a written opinion) shall determine based on a
review of readily available facts (as opposed to a full trial-type inquiry) that
there is reason to believe that such person ultimately will be found entitled to
indemnification hereunder.
4. DISTRIBUTOR INDEMNIFICATION. The Distributor will indemnify, defend
and hold harmless the Fund, the Fund's several officers and Directors and any
person who controls the Fund within the meaning of Section 15 of the 1933 Act,
from and against any losses, claims, damages or liabilities, joint or several,
to which any of them may become subject under the 1933 Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect hereof) arise out of, or are based upon, any breach of its
representations and warranties in subsection 2 hereof or its agreements in
subsection 2 of Section II hereof, or which arise out of, or are based upon, any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectuses, any Blue Sky Application or any
application or other document executed by or on behalf of the Fund, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, which
statement or omission or alleged statement or alleged omission was made in
reliance upon or in conformity with information furnished in writing to the Fund
or any of its several officers and Directors by or on behalf of and with respect
to the Distributor specifically for inclusion therein, and will reimburse the
Fund, the Fund's several officers and Directors, and any person who controls the
Fund within the meaning of Section 15 of the 1933 Act, for any legal or other
expenses
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reasonably incurred by any of them in investigating, defending or preparing to
defend any such action, proceeding or claim.
5. GENERAL INDEMNITY PROVISIONS. No indemnifying party shall be liable
under its indemnity agreement contained in subsection 3 or 4 hereof with respect
to any claim made against such indemnifying party unless the indemnified party
shall have notified the indemnifying party 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 indemnified party (or after the
indemnified party shall have received notice of such service on any designated
agent), but failure to notify the indemnifying party of any such claim shall not
relieve it from any liability which it may otherwise have to the indemnified
party. The indemnifying party 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, and if the indemnifying party elects to assume the
defense, such defense shall be conducted by counsel chosen by it and reasonably
satisfactory to the indemnified party. In the event the indemnifying party
elects to assume the defense of any such suit and retain such counsel, the
indemnified party shall bear the fees and expenses of any additional counsel
retained by the indemnified party.
VI. DURATION AND TERMINATION
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This Agreement shall become effective as of the date first above
written, and shall continue until terminated by either the Distributor or the
Fund as provided below. If not terminated, this Agreement shall continue
automatically for successive terms of one year, provided that such continuance
is specifically approved at least annually (a) by a majority of those members of
the Board of Directors of the Fund who are not parties to this Agreement or
"interested persons" of any such party (the "Disinterested Directors"), pursuant
to a vote cast in person at a meeting called for the purpose of voting on such
approval, and (b) by the Board of Directors of the Fund or by vote of a
"majority of the outstanding voting securities" of the Fund. Notwithstanding
anything to the contrary contained in this Section VI, this Agreement may be
terminated by the Fund at any time with respect to any Portfolio, without the
payment of any penalty, by vote of a majority of the Disinterested Directors or
by vote of a "majority of the outstanding voting securities" of such Fund on 60
days' written notice to the Distributor, or by the Distributor at any time,
without the payment of any penalty, on 60 days' written notice to the Fund. This
Agreement will automatically terminate in the event of its "assignment". (As
used in this Agreement, the terms "majority of the outstanding voting
securities", "interested person" and "assignment" shall have the same meanings
as such terms have in the 1940 Act.)
VII. AMENDMENT OF THIS AGREEMENT
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No provision of this Agreement may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party against which
an enforcement of the change, waiver, discharge or termination is sought.
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VIII. NOTICES
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Notices of any kind to be given to the Fund hereunder by the
Distributor shall be in writing and shall be duly given if mailed or delivered
to the Fund to the attention of Xxxxx X. Xxxxxx, President, c/o KeyCorp Mutual
Fund Products, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, or at such other
address or to such individual as shall be so specified by the Fund to the
Distributor. Notices of any kind to be given to the Distributor hereunder by the
Fund shall be in writing and shall be duly given if mailed or delivered to the
Distributor at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attention: Xxxxxx X.
Xxxxxxxx, Senior Vice President, Director of Legal & Compliance, or at such
other address or to such individual as shall be so specified by the Distributor
to the Fund.
IX. COMPENSATION
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The Distributor shall not receive compensation with respect to the
provision of distribution services under this Agreement; PROVIDED, HOWEVER, that
the Distributor shall be entitled to receive payments, if any, under the Plans
in accordance with the terms thereof. The Fund is entering into this Agreement
on behalf of the Portfolios listed on Schedule I severally and not jointly. The
responsibilities and benefits set forth in this Agreement shall refer to each
Portfolio severally and not jointly. No individual Portfolio shall have any
responsibility for any obligation, if any, with respect to any other Portfolio
arising out of this Agreement.
X. MISCELLANEOUS
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1. CONSTRUCTION. The captions in this Agreement are included for
conveniences of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. 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. Subject to the provisions of Section VI hereof, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and shall be governed by New York law; PROVIDED,
HOWEVER, that nothing herein shall be construed in a manner inconsistent with
the Investment Company Act of 1940 or any rule or regulation of the Commission
thereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
SBSF Funds, Inc.
d/b/a Key Mutual Funds
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Attest: /s/ Xxxxxx X. Xxxx
Assistant Secretary
BISYS FUND SERVICES LIMITED
PARTNERSHIP
d/b/a BISYS FUND SERVICES
By: /s/ J. Xxxxx Xxxxx
Name: J. Xxxxx Xxxxx
Title: Vice President
Attest: /s/
Vice President
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SCHEDULE I
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SBSF FUND
SBSF CONVERTIBLE SECURITIES FUND
SBSF CAPITAL GROWTH FUND
KEY MONEY MARKET FUND
KEY STOCK INDEX FUND
KEY INTERNATIONAL INDEX FUND
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