DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (the "Agreement") made as of [August 1, 2007] between
BNY Xxxxxxxx Funds, Inc. (the "Company") and BNY Xxxxxxxx Distributors, Inc.
("Distributor").
WHEREAS, the Company is an open-end management investment company, organized
as a Maryland corporation and registered with the Securities and Exchange
Commission (the "Commission") under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, it is intended that Distributor act as the distributor of the
shares of beneficial interest ("Shares") of each series of the Company, as
listed on Schedule A, and such series as are hereafter created (all of the
foregoing series individually referred to herein as a "Fund" and collectively
as the "Funds").
NOW, THEREFORE, in consideration of the mutual premises and covenants herein
set forth, the parties agree as follows:
1. Services as Distributor.
1.1 Distributor will act as agent of Company on behalf of each Fund for the
distribution of the Shares covered by the registration statement of Company
then in effect under the Securities Act of 1933, as amended (the "Securities
Act") and the 1940 Act. As used in this Agreement, the term "registration
statement" shall mean the registration statement of the Company and any
amendments thereto, then in effect, including Parts A (the Prospectus), B (the
Statement of Additional Information) and C of each registration statement, as
filed on Form N-1A, or any successor thereto, with the Commission, together
with any amendments thereto. The term "Prospectus" shall mean the then-current
form of Prospectus and Statement of Additional Information used by the Funds,
in accordance with the rules of the Commission, for delivery to shareholders
and prospective shareholders after the effective dates of the above-referenced
registration statements, together with any amendments and supplements thereto.
The Company will notify Distributor in advance of any proposed changes to
Schedule A to this Agreement.
1.2 Consistent with the understanding between the Funds and the Distributor,
Distributor may solicit orders for the sale of the Shares and may undertake
such advertising and promotion as in accordance with Section 1.3. The Company
understands that affiliates of the Distributor are now and may in the future be
the distributors of the shares of many other investment companies or series,
including investment companies having investment objectives similar to those of
the Company. The Company further understands that shareholders and potential
shareholders in the Company may invest in shares of such other investment
companies. The Company agrees that the duties of the Distributor's affiliates
to other investment companies shall not be deemed in conflict with the
Distributor's duties to the Company under this Section 1.2.
1.3 Consistent with the understanding between the Funds and the Distributor,
and subject to the last sentence of this Section 1.3, Distributor may engage in
such activities as it deems appropriate in connection with the promotion and
sale of the Shares, which may include advertising, compensation of
underwriters, dealers and sales personnel, the printing and mailing
of Prospectuses to prospective shareholders other than current shareholders,
and the printing and mailing of sales literature. Distributor may enter into
dealer agreements and other selling agreements with broker-dealers and other
intermediaries; provided, however, that the Company shall approve the forms of
such agreements, and that the Distributor shall have no obligation to make any
payments to any third parties, whether as finder's fees, compensation or
otherwise, unless Distributor has received a corresponding payment from the
applicable Fund's Distribution Plan (as defined in Section 2 of this
Agreement), the Fund's investment adviser (the "Adviser") or from another
source as may be permitted by applicable law.
1.4 In its capacity as distributor of the Shares, all activities of the
Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, all applicable rules and regulations promulgated by the Commission
thereunder, and all applicable rules and regulations adopted by any securities
association registered under the Securities Exchange Act of 1934.
1.5 Whenever in their judgment such action is warranted by unusual market,
economic or political conditions or by abnormal circumstances of any kind, the
Company's officers may upon reasonable notice instruct the Distributor to
decline to accept any orders for or make any sales of the Shares until such
time as those officers deem it advisable to accept such orders and to make such
sales.
1.6 The Company agrees to inform the Distributor from time to time of the
states in which the Fund or its administrator has registered or otherwise
qualified shares for sale, and the Company agrees at its own expense to execute
any and all documents and to furnish any and all information and otherwise to
take all actions that may be reasonably necessary in connection with the
qualification of the Shares for sale in such states as the Distributor may
designate.
1.7 The Company shall furnish from time to time, for use in connection with
the sale of the Shares, such supplemental information with respect to the Funds
and the Shares as Distributor may reasonably request; and the Company warrants
that the statements contained in any such supplemental information will fairly
show or represent what they purport to show or represent. The Company shall
also furnish Distributor upon request with: (a) unaudited semi-annual reports
of the Funds prepared by the Company, and (b) from time to time such additional
information regarding the Funds as the Distributor may reasonably request.
1.8 The Company represents and warrants to Distributor that all registration
statements, and each Prospectus, filed by the Company with the Commission under
the Securities Act and the 1940 Act shall be prepared in conformity with
requirements of said Acts and rules and regulations of the Commission
thereunder, and all Company-related advertisement or sales literature shall be
prepared in conformity with requirements of applicable laws and regulations.
The registration statement, Prospectus and advertisement or sales literature
shall contain all statements required to be stated therein in conformity with
said Acts, laws and regulations and the rules and regulations of the Commission
thereunder or other applicable regulatory authority, and all statements of fact
contained in any such registration statement, Prospectus and advertisement or
sales literature are true and correct in all material respects; furthermore,
neither any registration statement nor any Prospectus nor any advertisement or
sales literature includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading to a purchaser of the Shares; provided,
however, that the representations and warranties in this sentence do not apply
to
information furnished in writing, or omitted from the relevant writing
furnished, as the case may be, to the Company by the Distributor for use in the
registration statement or in corresponding statements made in any Prospectus,
advertisement or sales literature. The foregoing representations and warranties
shall continue throughout the term of this Agreement and be deemed to be of a
continuing nature, applicable to all Shares distributed hereunder. The Company
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 Company's counsel, be necessary or advisable. The Company shall give the
Distributor reasonable notice in advance of the filing of any amendment to any
registration statement or supplement to any Prospectus; provided, however, that
nothing contained in this Agreement shall in any way limit the Company's right
to file at any time such amendments to any registration statement and/or
supplements to any Prospectus, of whatever character, as the Company may deem
advisable, such right being in all respects absolute and unconditional.
1.9 The Company authorizes the Distributor and dealers to use any Prospectus
in the form furnished by the Company from time to time in connection with the
sale of the Shares.
1.10 The Distributor may utilize agents in its performance of its services
and, with prior notice to the Company, appoint in writing other parties
qualified to perform specific administration services reasonably acceptable to
the Company (individually, a "Sub-Agent") to carry out some or all of its
responsibilities under this Agreement; provided, however, that a Sub-Agent
shall be the agent of the Distributor and not the agent of the Company, and
that the Distributor shall be fully responsible for the acts of such Sub-Agent
and shall not be relieved of any of its responsibilities hereunder by the
appointment of a Sub-Agent.
1.11 The Distributor shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Company in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the Distributor's part in the
performance of its duties, from reckless disregard by the Distributor of its
obligations and duties under this Agreement, or from the Distributor's failure
to comply with laws, rules and regulations applicable to it in connection with
its activities hereunder. The Company agrees to indemnify, defend and hold
harmless the Distributor, its officers, partners, employees, and any person who
controls the Distributor within the meaning of Section 15 of the Securities Act
(collectively, "Distributor Indemnitees"), 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) (collectively,
"Claims") which the Distributor Indemnitees may incur under the Securities Act
or under common law or otherwise (a) as the result of the Distributor acting as
distributor of the Funds and entering into selling agreements, participation
agreements, shareholder servicing agreements or similar agreements with
financial intermediaries on behalf of the Company; (b) arising out of or based
upon (i) any untrue statement, or alleged untrue statement, of a material fact
contained in any registration statement or any Prospectus, (ii) any omission,
or alleged omission, to state a material fact required to be stated in any
registration statement or any Prospectus or necessary to make the statements
therein not misleading, or (iii) any untrue statement, or alleged untrue
statement, of a material fact in any Company-related advertisement or sales
literature, or any omission, or alleged omission, to state a material fact
required to be stated therein to make the statements therein not misleading, in
either case
notwithstanding the exercise of reasonable care in the preparation or review
thereof by the Distributor; or (c) arising out of or based upon the electronic
processing of orders over the internet at the Company's request; provided,
however, that the Company's agreement to indemnify the Distributor Indemnitees
pursuant to this Section 1.11 shall not be construed to cover any Claims
(A) pursuant to subsection (b) above to the extent such untrue statement,
alleged untrue statement, omission, or alleged omission, was furnished in
writing, or omitted from the relevant writing furnished, as the case may be, to
the Company by the Distributor for use in the registration statement or in
corresponding statements made in any Prospectus, advertisement or sales
literature; (B) arising out of or based upon the willful misfeasance, bad faith
or gross negligence of the Distributor in the performance of its duties or the
Distributor's reckless disregard of its obligations and duties under this
Agreement; or (C) arising out of or based upon the Distributor's failure to
comply with laws, rules and regulations applicable to it in connection with its
activities hereunder.
In the event of a Claim for which the Distributor Indemnitees may be
entitled to indemnification hereunder, the Distributor shall provide the
Company with written notice of the Claim, identifying the persons against whom
such Claim is brought, promptly following receipt of service of the summons or
other first legal process, and in any event within 10 days of such receipt. The
Company will be entitled to assume the defense of any suit brought to enforce
any such Claim if such defense shall be conducted by counsel of good standing
chosen by the Company and approved by the Distributor, which approval shall not
be unreasonably withheld. In the event any such suit is not based solely on an
alleged untrue statement, omission, or wrongful act on the Company's part, the
Distributor shall have the right to participate in the defense. In the event
the Company elects to assume the defense of any such suit and retain counsel of
good standing so approved by the Distributor, the Distributor Indemnitees in
such suit shall bear the fees and expenses of any additional counsel retained
by any of them, but in any case where the Company does not elect to assume the
defense of any such suit or in case the Distributor reasonably withholds
approval of counsel chosen by the Company, the Company will reimburse the
Distributor Indemnitees named as defendants in such suit, for the reasonable
fees and expenses of any counsel retained by them to the extent related to a
Claim covered under this Section 1.11. The Company's indemnification agreement
contained in this Section 1.11 shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Distributor
Indemnitees, and shall survive the delivery of any Shares.
1.12 The Distributor agrees to indemnify, defend and hold harmless the
Company, its officers, trustees, directors, employees, and any person who
controls the Company within the meaning of Section 15 of the Securities Act
(collectively, "Company Indemnitees"), from and against any and all Claims
which the Company Indemnitees may incur under the Securities Act or under
common law or otherwise, arising out of or based upon (a) any untrue statement,
or alleged untrue statement, of a material fact contained in any registration
statement, Prospectus, or Company-related advertisement or sales literature, or
upon any omission, or alleged omission, to state a material fact in such
materials that would be necessary to make the information therein not
misleading, which untrue statement, alleged untrue statement, omission, or
alleged omission, was furnished in writing, or omitted from the relevant
writing furnished, as the case may be, to the Company by the Distributor for
use in the registration statement or in corresponding statements made in the
Prospectus, or advertisement or sales literature; (b) the willful misfeasance,
bad faith or gross negligence of the Distributor in the performance of its
duties, or
the Distributor's reckless disregard of its obligations and duties under this
Agreement, or (c) the Distributor's failure to comply with laws, rules and
regulations applicable to it in connection with its activities hereunder (other
than in respect of Fund-related advertisements or sales literature that fail to
comply with applicable laws despite the Distributor's exercise of reasonable
care in the preparation and review thereof).
In the event of a Claim for which the Company Indemnitees may be entitled to
indemnification hereunder, the Company shall provide the Distributor with
written notice of the Claim, identifying the persons against whom such Claim is
brought, promptly following receipt of service of the summons or other first
legal process, and in any event within ten (10) days of such receipt. The
Distributor will be entitled to assume the defense of any suit brought to
enforce any such Claim if such defense shall be conducted by counsel of good
standing chosen by the Distributor and approved by the Company, which approval
shall not be unreasonably withheld. In the event any such suit is not based
solely on an alleged untrue statement, omission, or wrongful act on the
Distributor's part, the Company shall have the right to participate in the
defense. In the event the Distributor elects to assume the defense of any such
suit and retain counsel of good standing so approved by the Company, the
Company Indemnitees in such suit shall bear the fees and expenses of any
additional counsel retained by any of them, but in any case where the
Distributor does not elect to assume the defense of any such suit or in case
the Company reasonably withholds approval of counsel chosen by the Distributor,
the Distributor will reimburse the Company Indemnitees named as defendants in
such suit, for the reasonable fees and expenses of any counsel retained by them
to the extent related to a Claim covered under this Section 1.12. The
Distributor's indemnification agreement contained in this Section 1.12 shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Company Indemnitees, and shall survive the delivery
of any Shares.
1.13 No Shares shall be offered by either the Distributor or the Company
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Company 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
Securities Act or if and so long as a current Prospectus as required by
Section 10(b)(2) of said Securities Act is not on file with the Commission;
provided, however, that: (a) the Distributor will not be obligated to cease
offering shares until it has received from the Company written notice of such
events, and (b) nothing contained in this Section 1.13 shall in any way
restrict or have an application to or bearing upon the Company's obligation to
repurchase Shares from any shareholder in accordance with the provisions of the
Company's Prospectus, Certificate of Incorporation, or By-laws.
1.14 The Company agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
(a) of any request by the Commission for amendments to the registration
statement or Prospectus then in effect or for additional information;
(b) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or Prospectus
then in effect or the initiation by service of process on the Company of any
proceeding for that purpose;
(c) of the happening of any event that 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 any other event which could reasonably be expected to have a
material adverse impact upon the offering of Shares or the Distributor's
provision of services under this Agreement.
For purposes of this section, informal requests by or acts of the Staff of
the Commission shall not be deemed actions of or requests by the Commission
unless they would reasonably be expected to have a material negative impact
upon the offering of Shares.
The Distributor agrees to advise the Company as soon as reasonably practical
by a notice in writing delivered to the Company of (1) any request made by the
Commission to the Distributor or its affiliates for information, any initiation
by the Commission of any action in respect of the Distributor or its
affiliates, or the happening of any other event in respect of the Distributor
or its affiliates, the effect of which request, initiation or happening makes
untrue any statement of a material fact made in the Company's registration
statement or any 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; or (2) any other event applicable to the
Distributor or its affiliates which could reasonably be expected to have a
material adverse impact upon the offering of Shares or the Distributor's
provision of services under this Agreement.1.15
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL,
INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST
REVENUE, LOST PROFITS OR LOST OR DAMAGED DATA, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
2. Compensation and Expenses.
2.1 Attached as Schedule B to this Agreement are all plans of distribution
under Rule 12b-1 under the 1940 Act approved by the Funds and in effect
(collectively, the "Distribution Plan"). The Funds will deliver to Distributor
promptly after any changes thereto updated copies of the Distribution Plan. The
Company acknowledges that the Distributor may enter into an agreement with the
Adviser pursuant to which the Adviser will pay certain amounts to the
Distributor in consideration of the services performed by Distributor under
this Agreement and/or under such agreement with the Adviser.
2.2 In the event that the Distributor is requested or authorized by the
Company or is required by governmental regulation, summons, subpoena,
investigation, examination or other legal or regulatory process to produce
documents or personnel with respect to services provided by the Distributor to
the Company or any Fund, the Company will, so long as the Distributor or any of
its affiliates is not a subject of the investigation or proceeding in which the
information is sought, reimburse the Distributor for its out-of-pocket expenses
(including reasonable attorneys fees) incurred in responding to such requests
or requirements.
3. Sale and Payment.
3.1 Shares of a Fund may be subject to a sales load and may be subject to
the imposition of a distribution fee pursuant to the Distribution Plan referred
to above. To the extent that Shares of a Fund are sold at an offering price
which includes a sales load or subject to a contingent deferred sales load with
respect to certain redemptions (either within a single class of Shares or
pursuant to two or more classes of Shares), such Shares shall hereinafter be
referred to collectively as "Load Shares" (and in the case of Shares that are
sold with a front-end sales load, "Front-end Load Shares", or Shares that are
sold subject to a contingent deferred sales load, "CDSL Shares"). Funds that
issue Front-End Load Shares shall hereinafter be referred to collectively as
"Front-End Load Funds." Funds that issue CDSL Shares shall hereinafter be
referred to collectively as "CDSL Funds." Front-end Load Funds and CDSL Funds
may individually or collectively be referred as "Load Funds." Under this
Agreement, the following provisions shall apply with respect to the sale of,
and payment for, Load Shares.
3.2 The Distributor shall have the right to offer Load Shares at their net
asset value and to sell such Load Shares to the public against orders therefor
at the applicable public offering price, as defined in Section 4 hereof. The
Distributor shall also have the right to sell Load Shares to dealers against
orders therefor at the public offering price less a concession determined by
the Distributor, which concession shall not exceed the amount of the sales
charge or underwriting discount, if any, referred to in Section 4 below.
3.3 Prior to the time of delivery of any Load Shares by a Load Fund to, or
on the order of, the Distributor, the Distributor shall pay or cause to be paid
to the Load Fund or to its order an amount in same-day funds equal to the
applicable net asset value of such Shares. The Distributor may retain so much
of any sales charge or underwriting discount as is not allowed by the
Distributor as a concession to dealers.
4. Public Offering Price.
The public offering price of a Load Share shall be the net asset value of
such Load Share next determined, plus any applicable sales charge, all as set
forth in the current Prospectus of the Load Fund. The net asset value of Load
Shares shall be determined in accordance with the then-current Prospectus of
the Load Fund.
5. Issuance of Shares.
The Company reserves the right to issue, transfer or sell Load Shares at net
asset values (a) in connection with the merger or consolidation of the Company
or the Load Fund(s) with any other investment company or the acquisition by the
Company or the Load Fund(s) of all or substantially all of the assets or of the
outstanding Shares of any other investment company; (b) in connection with a
pro rata distribution directly to the holders of Shares in the nature of a
stock dividend or split; (c) upon the exercise of subscription rights granted
to the holders of Shares on a pro rata basis; (d) in connection with the
issuance of Load Shares pursuant to any exchange and reinvestment privileges
described in any then-current Prospectus of the Load Fund; and (e) otherwise in
accordance with any then-current Prospectus of the Load Fund.
6. Term, Duration and Termination.
This Agreement shall become effective with respect to each Fund as of the
date first written above (the "Effective Date") (or, if a particular Fund is
not in existence on such date, on the earlier of the date an amendment to
Schedule A to this Agreement relating to that Fund is executed or the
Distributor begins providing services under this Agreement with respect to such
Fund) and, unless sooner terminated as provided herein, shall continue through
June 30, 2008. Thereafter, if not terminated, this Agreement shall continue
with respect to a particular Fund automatically for successive one-year terms,
provided that such continuance is specifically approved at least annually
(a) by the vote of a majority of those members of the Board who are not parties
to this Agreement or interested persons of any such party, cast in person at a
meeting for the purpose of voting on such approval and (b) by the vote of the
Board or the vote of a majority of the outstanding voting securities of such
Fund. This Agreement is terminable without penalty with 60 days' prior written
notice, by the Board, by vote of a majority of the outstanding voting
securities of the Company, or by the Distributor. This Agreement will also
terminate automatically in the event of its assignment. (As used in this
Agreement, the terms "majority of the outstanding voting securities,"
"interested persons" and "assignment" shall have the same meaning as ascribed
to such terms in the 1940 Act.)
7. Privacy.
Nonpublic personal financial information relating to consumers or customers
of the Funds provided by, or at the direction of, the Company to the
Distributor, or collected or retained by the Distributor to perform its duties
as distributor, shall be considered confidential information. The Distributor
shall not disclose or otherwise use any nonpublic personal financial
information relating to present or former shareholders of the Funds other than
for the purposes for which that information was disclosed to the Distributor,
including use under an exception in Rules 13, 14 or 15 of Securities and
Exchange Commission Regulation S-P in the ordinary course of business to carry
out those purposes. The Distributor shall have in place and maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized access
to or use of, records and information relating to consumers and customers of
the Funds. The Company represents to the Distributor that it has adopted a
Statement of its privacy policies and practices as required by Securities and
Exchange Commission Regulation S-P and agrees to provide the Distributor with a
copy of that statement annually.
8. Anti-Money Laundering Compliance.
8.1 Each of Distributor and the Company acknowledges that it is a financial
institution subject to the USA Patriot Act of 2001 and the Bank Secrecy Act
(collectively, the "AML Acts"), which require, among other things, that
financial institutions adopt compliance programs to guard against money
laundering. Each represents and warrants to the other that it is in compliance
with and will continue to comply with the AML Acts and applicable regulations
in all relevant respects. The Distributor shall also provide written notice to
each person or entity with which it entered an agreement prior to the date
hereof with respect to sale of the Company's Shares, such notice informing such
person of anti-money laundering compliance obligations applicable to financial
institutions under applicable laws and, consequently, under applicable
contractual provisions requiring compliance with laws.
8.2 The Distributor shall include specific contractual provisions regarding
anti-money laundering compliance obligations in agreements entered into by the
Distributor with any dealer that is authorized to effect transactions in Shares
of the Company.
8.3 Each of Distributor and the Company agrees that it will take such
further steps, and cooperate with the other as may be reasonably necessary, to
facilitate compliance with the AML Acts, including but not limited to the
provision of copies of its written procedures, policies and controls related
thereto ("AML Operations"). Distributor undertakes that it will grant to the
Company, the Company's anti-money laundering compliance officer and regulatory
agencies, reasonable access to copies of Distributor's AML Operations, books
and records pertaining to the Company only. It is expressly understood and
agreed that the Company and the Company's compliance officer shall have no
access to any of Distributor's AML Operations, books or records pertaining to
other clients of Distributor.
9. Notices.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail, or by nationally recognized overnight courier, to
the party required to be served with such notice at the following address: if
to the Company, to it at 000 Xxxx 00/xx/ Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000, Attention: Secretary; and if to Distributor, to it at 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Broker Dealer Chief Compliance Officer,
or at such other address as such party may from time to time specify in writing
to the other party pursuant to this Section.
10.Confidentiality.
During the term of this Agreement, the Distributor and the Company may have
access to confidential information relating to such matters as either party's
business, trade secrets, systems, procedures, manuals, products, contracts,
personnel, and clients. As used in this Agreement, "Confidential Information"
means information belonging to the Distributor or the Company which is of value
to such party and the disclosure of which could result in a competitive or
other disadvantage to either party, including, without limitation, financial
information, business practices and policies, know-how, trade secrets, market
or sales information or plans, customer lists, business plans, and all
provisions of this Agreement. Confidential Information includes information
developed by either party in the course of engaging in the activities provided
for in this Agreement, unless: (i) the information is or becomes publicly known
without breach of this Agreement, (ii) the information is disclosed to the
other party by a third party not under an obligation confidentiality to the
party whose Confidential Information is at issue of which the party receiving
the information should reasonably be aware, or (iii) the information is
independently developed by a party without reference to the other's
Confidential Information. Each party will protect the other's Confidential
Information with at least the same degree of care it uses with respect to its
own Confidential Information, and will not use the other party's Confidential
Information other than in connection with its duties and obligations hereunder.
Notwithstanding the foregoing, a party
may disclose the other's Confidential Information if (i) required by law,
regulation or legal process or if requested by any Agency; (ii) it is advised
by counsel that it may incur liability for failure to make such disclosure;
(iii) requested to by the other party; provided that in the event of (i) or
(ii) the disclosing party shall give the other party reasonable prior notice of
such disclosure to the extent reasonably practicably and cooperate with the
other party (at such other party's expense) in any efforts to prevent such
disclosure.
11. Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of New York, without regard to New York's conflicts of laws principles, and the
applicable provisions of the 1940 Act.
12. Prior Agreements.
This Agreement constitutes the complete agreement of the parties as to the
subject matter covered by this Agreement, and supersedes all prior
negotiations, understandings and agreements bearing upon the subject matter
covered by this Agreement.
13. Amendments.
No amendment to this Agreement shall be valid unless made in writing and
executed by both parties hereto.
* * * * * *
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
written above.
BNY Xxxxxxxx Funds, Inc.
By:
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Name:
Title:
BNY Xxxxxxxx Distributors, Inc.
By:
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Name:
Title:
SCHEDULE A
FUNDS
BNY Xxxxxxxx Funds, Inc.
Fund List
BNY Xxxxxxxx Large Cap Equity Fund
BNY Xxxxxxxx Large Cap Growth Fund
BNY Xxxxxxxx Small Cap Growth Fund
BNY Xxxxxxxx International Equity Fund
BNY Xxxxxxxx Intermediate Government Fund
BNY Xxxxxxxx Core Bond Fund
BNY Xxxxxxxx Intermediate New York Tax-Exempt Fund
BNY Xxxxxxxx Intermediate Tax-Exempt Fund
BNY Xxxxxxxx Money Fund
BNY Xxxxxxxx Treasury Money Fund
BNY Xxxxxxxx New York Tax-Exempt Money Fund
BNY Xxxxxxxx Large Cap Value Fund
BNY Xxxxxxxx S&P 500 Index Fund
BNY Xxxxxxxx U.S. Bond Market Index Fund
BNY Xxxxxxxx Enhanced Income Fund
BNY Xxxxxxxx Multi-Cap Equity Fund
BNY Xxxxxxxx High Yield Fund
BNY Xxxxxxxx Small Cap Core Equity Fund
BNY Xxxxxxxx Municipal Enhanced Yield Fund
BNY Xxxxxxxx 100% U.S. Treasury Securities Money Fund
BNY Xxxxxxxx U.S. Government Money Fund
BNY Xxxxxxxx Global Real Estate Securities Fund
BNY Xxxxxxxx Tax-Exempt Money Fund
Dated: As of December 29, 2006
BNY XXXXXXXX DISTRIBUTORS, INC.
By:
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Title:
Date:
BNY XXXXXXXX FUNDS, INC.
By:
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Title:
Date:
SCHEDULE B
DISTRIBUTION PLAN
BNY XXXXXXXX FUNDS, INC.
Amended and Restated Plan of Distribution Pursuant to Rule 12b-1
Under the Investment Company Act of 1940
Introduction
The Amended and Restated Plan of Distribution (the "Plan") set forth below,
which is designed to conform to the requirements of Rule 12b-l under the
Investment Company Act of 1940 (the "1940 Act"), has been adopted by BNY
Xxxxxxxx Funds, Inc. (the "Corporation"), in respect of those classes of those
series of the Corporation listed on Schedule A, as such Schedule may be amended
from time to time. As used herein, a "Class" is a class of a series of the
Corporation listed on Schedule A and subject to the Plan.
The Plan replaces those separate plans of distribution heretofore adopted by
the Corporation pursuant to Rule 12b-1 under the 1940 Act in respect of Classes
heretofore established.
The Corporation has entered into a distribution agreement (the "Distribution
Agreement") with BNY Xxxxxxxx Distributors, Inc., the Corporation's distributor
(the "Distributor"), pursuant to which the Corporation employs the Distributor
to distribute shares ("Shares") issued by each series and each class of the
Corporation. Under the Plan, the Corporation intends to reimburse the
Distributor for costs incurred by the Distributor in distributing Shares of
each Class.
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 operation of this Plan or any agreements related to it (the
"Rule 12b-1 Directors"), have determined by votes cast in person at a meeting
called for the purpose of voting on this Plan that there is a reasonable
likelihood that adoption of this Plan will benefit each Class and its
shareholders. Expenditures under this Plan are primarily intended to result in
the sale of Shares of Classes subject to the Plan within the meaning of
paragraph (a)(2) of Rule 12b-1.
The purpose of the Plan is to create incentives for the Distributor and
other qualified broker-dealers to provide distribution assistance to their
customers who are or may become investors in a Class, and to defray the costs
and expenses associated with the preparation, printing and distribution of
prospectuses and sales literature, advertising, marketing and other promotional
and distribution activities.
THE PLAN
1. Distribution Activities.
The Corporation shall engage the Distributor to distribute Shares and to
service shareholder accounts using the facilities of the distribution networks
of such qualified broker-dealers and financial institutions as the Distributor
may select. Services provided and activities undertaken hereunder, under the
Distribution Agreement or under any "related agreement" between the Distributor
and any such qualified broker-dealer to distribute Shares are referred to
herein as Distribution Activities.
2. Reimbursement for Distribution Activities.
Each Class shall reimburse the Distributor for costs incurred by it in
performing Distribution Activities in respect of such Class at a rate which
shall not exceed the rate listed on Schedule A of the average daily net assets
of such Class. Each Class shall calculate and accrue daily amounts reimbursable
hereunder and shall pay such amounts monthly or at such other intervals as the
Board of Directors and the Distributor may agree.
Costs of the Distributor subject to reimbursement hereunder are costs of
performing Distribution Activities and may include, among others:
(a) amounts paid to qualified broker-dealers and financial institutions
selected by the Distributor in reimbursement of costs incurred by such
broker-dealers in performing services under a selected dealer agreement
between those broker-dealers and the Distributor for sales of Shares of a
Class, including account servicing fees (trailer commissions) paid to, or on
account of, account executives and indirect and overhead costs associated
with performance of distribution activities including central office and
branch expenses;
(b) expenses related to telemarketing operations established for a Class;
(c) 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 Shares of a Class for sale to
the public, including the additional cost of printing copies, at printer's
over-run cost, of Prospectuses and annual and interim reports to
shareholders of a Class other than copies thereof required for distribution
to shareholders or for filing with any federal and state securities
authorities; and
(d) any expenses of advertising incurred by the Distributor in connection
with its offering of Shares of a Class for sale to the public.
If, in any month, the Distributor incurs costs subject to reimbursement that
exceed the amount accrued in respect of such month at the rate listed on
Schedule A of the average daily net assets, the Class will carry forward the
unpaid amount from month to month while the Plan is in effect, until such time
as it may be paid; provided, however, that no amount shall be carried forward
beyond the fiscal year during which it is accrued and such Class shall have no
obligation to the Distributor or any other person in respect thereof. The
Corporation (in respect of a Class) shall not pay the Distributor any carrying
or other finance charge with respect to amounts that are accrued but unpaid
under the Plan.
3. Quarterly Reports; Additional Information.
An appropriate officer of the Corporation will provide to the Board of
Directors of the Corporation for review, at least quarterly, a written report
specifying in reasonable detail the amounts expended for Distribution
Activities and the purposes for which such expenditures were made in compliance
with the requirements of Rule 12b-l. The Distributor will provide to the Board
of Directors of the Corporation such additional information as the Board shall
from time to time reasonably request, including information about Distribution
Activities undertaken or to be undertaken by the Distributor.
The Distributor will inform the Board of Directors of the Corporation of the
account servicing fees to be paid by the Distributor to broker-dealers and
financial institutions that have selected dealer agreements with the
Distributor.
4. Effectiveness; Continuation.
The Plan shall take effect upon the approval of the Board of Directors of
the Corporation in accordance with Rule 12b-1 under the 1940 Act. If so
approved, the Plan shall, unless earlier terminated in accordance with its
terms, continue in full force and effect from year to year for so long as such
continuance is specifically approved at least annually by a majority of the
Board of Directors of the Corporation and a majority of the Rule 12b-1
Directors by votes cast in person at a meeting called for the purpose of voting
on the continuation of the Plan.
5. Termination.
This Plan may be terminated at any time by vote of a majority of the Rule
12b-l Directors, or by vote of a majority of the outstanding voting securities
(as defined in the 0000 Xxx) of the Class. This Plan will continue in effect in
respect of a Class notwithstanding the fact that it has been terminated in
respect of another Class.
6. Amendments.
The Plan may not be amended to change the distribution expenses to be paid
as provided for in Section 2 hereof so as to increase materially the amounts
payable under this Plan unless such amendment shall be approved by the vote of
a majority of the outstanding voting securities (as defined in the 0000 Xxx) of
each Class to which the amendment would apply. All material amendments of the
Plan, including the addition or deletion of categories of expenditures that are
reimbursable hereunder, shall be approved by a majority of the Board of
Directors of the Corporation and a majority of the Rule 12b-l Directors by
votes cast in person at a meeting called for the purpose of voting on the Plan.
7. Non-interested Directors.
While the Plan is in effect, the selection and nomination of the Directors
who are not "interested persons" of the Corporation (non-interested Directors)
shall be committed to the discretion of the non-interested Directors.
8. Records.
The Corporation shall preserve copies of the Plan and any related agreements
and all reports made pursuant to Section 3 hereof, for a period of not less
than six years from the date of effectiveness of the Plan, such agreements or
reports, and for at least the first two years in an easily accessible place.
SCHEDULE A
TO THE BNY XXXXXXXX FUNDS, INC.
AMENDED AND RESTATED PLAN OF DISTRIBUTION
Pursuant to Rule 12b-1 Under the Investment Company Act
Series and Class Rate per Annum
---------------- --------------
BNY Xxxxxxxx Large Cap Equity Fund - Class A Shares............. 0.25%
BNY Xxxxxxxx Large Cap Growth Fund - Class A Shares............. 0.25%
BNY Xxxxxxxx Small Cap Growth Fund - Class A Shares............. 0.25%
BNY Xxxxxxxx International Equity Fund - Class A Shares......... 0.25%
BNY Xxxxxxxx Intermediate Government Fund - Class A Shares...... 0.25%
BNY Xxxxxxxx Core Bond Fund - Class A Shares.................... 0.25%
BNY Xxxxxxxx Intermediate Tax-Exempt Fund - Class A Shares...... 0.25%
BNY Xxxxxxxx Intermediate New York Tax-Exempt Fund - Class A
Shares........................................................ 0.25%
BNY Xxxxxxxx Money Fund - Classic Class......................... 0.25%
- Retail Class.......................... 0.50%
BNY Xxxxxxxx Treasury Money Fund - Classic Class................ 0.25%
- Retail Class................. 0.50%
BNY Xxxxxxxx New York Tax-Exempt Money Fund - Classic Class..... 0.25%
BNY Xxxxxxxx 100% U.S. Treasury Securities Money Fund - Classic
Class......................................................... 0.25%
BNY Xxxxxxxx U.S. Government Money Fund - Classic Class......... 0.25%
BNY Xxxxxxxx S & P 500 Index Fund - Investor Class.............. 0.25%
BNY Xxxxxxxx Large Cap Value Fund - Class A Shares.............. 0.25%
BNY Xxxxxxxx U.S. Bond Market Index Fund - Investor Class....... 0.25%
BNY Xxxxxxxx Enhanced Income Fund - Class A Shares.............. 0.25%
BNY Xxxxxxxx Multi-Cap Equity Fund - Class A Shares............. 0.25%
BNY Xxxxxxxx High Yield Fund - Class A Shares................... 0.25%
BNY Xxxxxxxx Small Cap Core Equity Fund - Class A Shares........ 0.25%
BNY Xxxxxxxx Global Real Estate Securities Fund - Class A Shares 0.25%
BNY Xxxxxxxx Tax-Exempt Money Fund - Classic Class.............. 0.25%
- Retail Class............... 0.50%
Dated: As of February 14, 2007
