Exhibit 99(e)(2)
DISTRIBUTION AGREEMENT
Boston Advisors Trust
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Dated: as of May 1, 2002
Advest, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the above-named investment company, Boston Advisors Trust (the
"Trust"), has agreed that you shall be, for the period of this Agreement, the
distributor of shares of each Series of the Trust set forth on Exhibit A hereto,
as such Exhibit may be revised from time to time (each, a "Series"). For
purposes of this Agreement the term "Shares" shall mean the authorized shares of
the relevant Series.
1. Services as Distributor
1.1 You will act as agent for the distribution of Shares covered by, and
in accordance with, the registration statement and prospectus then in effect
under the Securities Act of 1933, as amended (the "1933 Act"), and will transmit
promptly any orders received by you for purchase or redemption of Shares to the
Transfer and Dividend Disbursing Agent for the Trust of which the Trust has
notified you in writing.
1.2 You agree to use your best efforts to solicit orders for the sale of
Shares. It is contemplated that you may enter into sales or servicing agreements
with securities dealers, financial institutions and other industry
professionals, such as investment advisers, accountants and estate planning
firms, and in so doing you will act only on your own behalf as principal.
1.3 You shall act as distributor of Shares in compliance with all
applicable laws, rules and regulations, including, without limitations, the
Investment Company Act of 1940, as amended (the "1940 Act"), the 1933 Act, the
Securities Exchange Act of 1934, as amended and the National Association of
Securities Dealers, Inc.'s (the "NASD") Conduct Rules, Constitution and By-Laws.
You represent and warrant that you are a broker-dealer registered with the
Securities and Exchange Commission (the "SEC") and that you are registered with
the relevant securities regulatory agencies in all fifty states, the District of
Columbia and Puerto Rico. You also represent and warrant that you are a member
of the NASD.
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1.4 You shall file Trust advertisements, sales literature and other
marketing and sales related materials with the appropriate regulatory agencies
and shall obtain such approvals for their use as may be required by the SEC, the
NASD and/or state securities administrators.
1.5 Whenever in their judgment such action is warranted by unusual market,
economic or political conditions, or by abnormal circumstances of any kind
deemed by the parties hereto to render sales of a Series' Shares not in the best
interest of the Trust, the parties hereto may decline to accept any orders for,
or make any sales of, any Shares until such time as those parties deem it
advisable to accept such orders and to make such sales and each party shall
advise promptly the other party of any such determination.
1.6 The Trust agrees to pay all costs and expenses in connection with the
registration of Shares under the 1933 Act and all expenses in connection with
maintaining facilities for the issue and transfer of Shares and for supplying
information, prices and other data to be furnished by the Trust hereunder, and
all expenses in connection with the preparation and printing of the Trust's
prospectuses and statements of additional information for regulatory purposes
and for distribution to shareholders; provided however, that the Trust shall not
pay any of the costs of advertising or promotion for the sale of Shares, except
as authorized by a plan adopted pursuant to Rule 12b-1 under the 1940 Act. You
shall also be entitled to compensation for your services as provided in any
Distribution Plan adopted as to any Series and class of the such Series' Shares
pursuant to Rule 12b-1.
1.7 The Trust agrees to execute any and all documents and to furnish any
and all information and otherwise to take all actions which may be reasonably
necessary in the discretion of the Trust's officers in connection with the
qualification of Shares for sale in such states as you may designate to the
Trust and the Trust may approve, and the Trust agrees to pay all expenses which
may be incurred in connection with such qualification. You shall pay all
expenses connected with your own qualification as a dealer under state or
Federal laws and, except as otherwise specifically provided in this Agreement,
all other expenses incurred by you in connection with the sale of Shares as
contemplated in this Agreement.
1.8 The Trust shall furnish you from time to time, for use in connection
with the sale of Shares, such information with respect to the Trust or any
relevant Series and the Shares as you may reasonably request, all of which shall
be signed by one or more of the Trust's duly authorized officers; and the Trust
warrants that the statements contained in any such information, when so signed
by the Trust's officers, shall be true and correct. The Trust also shall furnish
you upon request with: (a) semi-annual reports and annual audited reports of the
Trust's books and accounts made by independent public accountants regularly
retained by the Trust, (b) quarterly earnings statements prepared by the Trust,
(c) a monthly itemized list of the securities in each Series' portfolio, (d)
monthly balance sheets as soon as practicable after the end of each month, and
(e) from time to time such additional information regarding the Trust's
financial condition as you may reasonably request.
1.9 The Trust represents to you that all registration statements and
prospectuses filed by the Trust with the SEC under the 1933 Act and under the
1940 Act with respect to the Shares have been carefully prepared in conformity
with the requirements of said Acts and rules and regulations of the SEC
thereunder. As used in this Agreement the terms "registration statement" and
"prospectus" shall mean any registration statement and prospectus, including the
statement
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of additional information incorporated by reference therein, filed with the SEC
and any amendments and supplements thereto which at any time shall have been
filed with the SEC. The Trust represents and warrants to you that any
registration statement and prospectus, when such registration statement becomes
effective, will contain all statements required to be stated therein in
conformity with said Acts and the rules and regulations of the SEC; that all
statements of fact contained in any such registration statement and prospectus
will be true and correct when such registration statement becomes effective; and
that neither any registration statement nor any prospectus when such
registration statement becomes effective will include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Trust may, but
shall not be obligated to, propose from time to time such amendment or
amendments to any registration statement and such supplement or supplements to
any prospectus as, in the light of future developments, may, in the opinion of
the Trust's counsel, be necessary or advisable. If the Trust shall not propose
such amendment or amendments and/or supplement or supplements within fifteen
days after receipt by the Trust of a written request from you to do so, you may,
at your option, terminate this Agreement or decline to make offers of the
Trust's securities until such amendments are made. The Trust shall not file any
amendment to any registration statement or supplement to any prospectus without
giving you reasonable notice thereof in advance; provided, however, that nothing
contained in this Agreement shall in any way limit the Trust's right to file at
any time such amendments to any registration statement and/or supplements to any
prospectus, of whatever character, as the Trust may deem advisable, such right
being in all respects absolute and unconditional.
1.10 The Trust authorizes you and any dealers with whom you have entered
into dealer agreements to use any prospectus in the form furnished by the Trust
in connection with the sale of Shares. The Trust agrees to indemnify, defend and
hold you, your several officers and directors, and any person who controls you
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
reasonable cost of investigating or defending such claims, demands or
liabilities and any reasonable counsel fees incurred in connection therewith)
which you, your officers and directors, or any such controlling persons, may
incur under the 1933 Act, the 1940 Act, or common law or otherwise, arising out
of or on the basis of any untrue statement, or alleged untrue statement, of a
material fact required to be stated in either any registration statement or any
prospectus or any statement of additional information, or arising out of or
based upon any omission, or alleged omission, to state a material fact required
to be stated in any registration statement, any prospectus or any statement of
additional information or necessary to make the statements in any of them not
misleading, except that the Trust's agreement to indemnify you, your officers or
directors, and any such controlling person will not be deemed to cover any such
claim, demand, liability or expense to the extent that it arises out of or is
based upon any such untrue statement, alleged untrue statement, omission or
alleged omission made in any registration statement, any prospectus or any
statement of additional information in reliance upon information furnished by
you, your officers, directors or any such controlling person to the Trust or its
representatives for use in the preparation thereof, and except that the Trust's
agreement to indemnify you and the Trust's representations and warranties set
out in paragraph 1.9 of this Agreement will not be deemed to cover any liability
to the Series or their shareholders to which you would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of your duties, or by reason of your reckless disregard of your obligations and
duties under this Agreement ("Disqualifying Conduct"). The Trust's agreement to
indemnify you, your officers
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and directors, and any such controlling person, as aforesaid, is expressly
conditioned upon the Trust's being notified of any action brought against you,
your officers or directors, or any such controlling person, such notification to
be given by letter, by facsimile or by telegram addressed to the Trust at its
address set forth above within a reasonable period of time after the summons or
other first legal process shall have been served. The failure so to notify the
Trust of any such action shall not relieve the Trust from any liability which
the Trust may have to the person against whom such action is brought by reason
of any such untrue, or alleged untrue, statement or omission, or alleged
omission, otherwise than on account of the Trust's indemnity agreement contained
in this paragraph 1.10. The Trust will be entitled to assume the defense of any
suit brought to enforce any such claim, demand or liability, but, in such case,
such defense shall be conducted by counsel of good standing chosen by the Trust
and approved by you. In the event the Trust elects to assume the defense of any
such suit and retain counsel of good standing approved by you, the defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by any of them; but in case the Trust does not elect to assume
the defense of any such suit, the Trust will reimburse you, your officers and
directors, or the controlling person or persons named as defendant or defendants
in such suit, for the reasonable fees and expenses of any counsel retained by
you or them. The Trust's indemnification agreement contained in this paragraph
1.10 and the Trust's representations and warranties in this Agreement shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of you, your officers and directors, or any controlling
person, and shall survive the delivery of any Shares. This agreement of
indemnity will inure exclusively to your benefit, to the benefit of your several
officers and directors, and their respective estates, and to the benefit of any
controlling persons and their successors. The Trust agrees promptly to notify
you of the commencement of any litigation or proceedings against the Trust or
any of its officers or Board members in connection with the issue and sale of
Shares.
1.11 You agree to indemnify, defend and hold the Trust, its several
officers and Board members, and any person who controls the Trust 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 reasonable cost of
investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) which the Trust, its
officers or Board members, or any such controlling person, may incur under the
1933 Act, the 1940 Act, or under common law or otherwise, but only to the extent
that such liability or expense incurred by the Trust, its officers or Board
members, or such controlling person resulting from such claims or demands, (a)
shall arise out of or be based upon any unauthorized sales literature,
advertisements, information, statements or representations or any Disqualifying
Conduct in connection with the offering and sale of any Shares, or (b) shall
arise out of or be based upon any untrue, or alleged untrue, statement of a
material fact contained in information furnished in writing by you to the Trust
specifically for use in the Trust's registration statement and used in the
answers to any of the items of the registration statement or in the
corresponding statements made in the prospectus or statement of additional
information, or shall arise out of or be based upon any omission, or alleged
omission, to state a material fact in connection with such information furnished
in writing by you to the Trust and required to be stated in such answers or
necessary to make such information not misleading. Your agreement to indemnify
the Trust, its officers and Board members, and any such controlling person, as
aforesaid, is expressly conditioned upon your being notified of any action
brought against the Trust, its officers or Board members, or any such
controlling person, such notification to be given by letter, by facsimile or by
telegram addressed to you at your address set forth above within a reasonable
period of time after the summons or
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other first legal process shall have been served. You shall have the right to
control the defense of such action, with counsel of your own choosing,
satisfactory to the Trust, if such action is based solely upon such alleged
misstatement or omission on your part, and in any other event the Trust, its
officers or Board members, or such controlling person shall each have the right
to participate in the defense or preparation of the defense of any such action.
The failure so to notify you of any such action shall not relieve you from any
liability which you may have to the Trust, its officers or Board members, or to
such controlling person by reason of any such untrue, or alleged untrue,
statement or omission, or alleged omission, otherwise than on account of your
indemnity agreement contained in this paragraph 1.11. This agreement of
indemnity will inure exclusively to the Trust's benefit, to the benefit of the
Trust's officers and Board members, and their respective estates, and to the
benefit of any controlling persons and their successors. You agree promptly to
notify the Trust of the commencement of any litigation or proceedings against
you or any of your officers or directors in connection with the issue and sale
of Shares.
1.12 No Shares shall be offered by either you or the Trust under any of the
provisions of this Agreement and no orders for the purchase or sale of such
Shares hereunder shall be accepted by the Trust if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the 1933
Act, or if and so long as a current prospectus as required by Section 10 of said
Act, as amended, is not on file with the SEC; provided, however, that nothing
contained in this paragraph 1.12 shall in any way restrict or have an
application to or bearing upon the Trust's obligation to repurchase any Shares
from any shareholder in accordance with the provisions of the Trust's prospectus
or charter documents.
1.13 The Trust agrees to advise you immediately in writing:
(a) of any request by the SEC for amendments to the registration
statement or prospectus then in effect or for additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or prospectus
then in effect or the initiation of any proceeding for that purpose;
(c) of the happening of any event which makes untrue any statement of
a material fact made in the registration statement or prospectus then in
effect or which requires the making of a change in such registration
statement or prospectus in order to make the statements therein not
misleading; and
(d) of all actions of the SEC with respect to any amendments to any
registration statement or prospectus which may from time to time be filed
with the SEC.
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2. Offering Price
Shares of any class of a Series offered for sale by you shall be offered at
a price per share (the "offering price") approximately equal to (a) the net
asset value (determined in the manner set forth in the Trust's charter
documents) plus (b) a sales charge, if any and except to those persons set forth
in the then-current prospectus, which shall be the percentage of the offering
price of such Shares as set forth in the Trust's then-current prospectus. The
offering price, if not an exact multiple of one cent, shall be adjusted to the
nearest cent. In addition, Shares of any class of the Trust offered for sale by
you may be subject to a contingent deferred sales charge as set forth in the
Trust's then-current prospectus. You shall be entitled to receive any sales
charge or contingent deferred sales charge in respect of the Shares. Any
payments to dealers shall be governed by a separate agreement between you and
such dealer and the Trust's then-current prospectus.
3. Term
This Agreement shall become effective with respect to the Trust as of the
date hereof and will continue until April 30, 2004and will continue thereafter
so long as such continuance is specifically approved at least annually (i) by
the Trust's Board or (ii) by a vote of a majority of the Shares of the relevant
Series, provided that its continuance also is approved by a majority of the
Board members who are not "interested persons" of any party to this Agreement,
by vote cast in person at a meeting called for the purpose of voting on such
approval. This Agreement is terminable with respect to a Series, without
penalty, on not less than sixty days' notice, by the Trust's Board of Trustees,
by vote of a majority of the outstanding voting securities of such Series, or by
you. This Agreement will automatically and immediately 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). You agree to notify the
Trust immediately upon the event of your expulsion or suspension by the NASD.
This Agreement will automatically and immediately terminate in the event of your
expulsion or suspension by the NASD.
4. Miscellaneous
4.1 The Trust recognizes that, except to the extent otherwise agreed to by
the parties hereto, your directors, officers and employees may from time to time
serve as directors, trustees, officers and employees of corporations and
business trusts (including other investment companies), and that you or your
affiliates may enter into distribution or other agreements with such other
corporations and trusts.
4.2 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 an enforcement of the change, waiver, discharge or termination is
sought.
4.3 This Agreement shall be governed by the internal laws of the
Commonwealth of Massachusetts without giving effect to principles of conflicts
of laws.
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4.4 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.
4.5 The Distributor understands that the obligations of the Trust under
this Agreement are not binding upon any Trustee or shareholder of the Trust
personally, but bind only the Trust and the Trust's property. Each Fund shall be
liable only for its own obligations and shall not be liable for the obligations
of any other Fund hereunder.
Please confirm that the foregoing is in accordance with your
understanding and indicate your acceptance hereof by signing below, whereupon it
shall become a binding agreement between us.
Very truly yours,
BOSTON ADVISORS TRUST
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Accepted:
ADVEST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President of the Private Client Group
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EXHIBIT A
Series of the Trust
-------------------
Boston Advisors Cash Reserves Fund
Boston Advisors U.S. Government Money Market Fund
Boston Advisors Tax Free Money Market Fund
Boston Advisors New York Municipal Money Market Fund
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