Exhibit (e)(2)
AMENDED AND RESTATED
MARKETING AND CONSULTING SERVICES AGREEMENT
AGREEMENT made as of April 19, 2006 between Funds Distributor, Inc.
("FDI") and Investors Bank & Trust Company ("IBT").
WHEREAS, the parties have previously executed a Marketing and
Consulting Services Agreement ("Agreement") dated December 15, 2000;
WHEREAS, the Agreement provides that where FDI and IBT wish to amend
the terms of the Agreement they may do so by a written instrument;
WHEREAS, FDI and IBT wish to amend and restate the Agreement to set
forth the amount of compensation to be paid by FDI and to incorporate the
Reserve Class of the Funds into the Agreement;
WHEREAS, IBT serves as investment adviser to Merrimac Master
Portfolio, in which Merrimac Series (the "Trust"), an open-end management
investment company registered under the Investment Company Act of 1940, as
amended, and its series (the "Funds"), invests substantially all its assets;
WHEREAS, FDI is a registered broker-dealer under the Securities
Exchange Act of 1934, as amended, and a member of the National Association of
Securities Dealers, Inc.;
WHEREAS, the Trust has entered into a distribution agreement with FDI
(the "Distribution Agreement") for the distribution by the of shares of
beneficial interest in the Funds;
WHEREAS, the shares of the Investment Class and Reserve Class of the
Funds (the "Shares") are offered to custodial and/or agency clients of IBT's
trust department; and
WHEREAS, FDI and IBT desire to enter into this Agreement pursuant to
which IBT will perform certain marketing-related and consulting services for
FDI relative to the Shares;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Appointment. FDI, as distributor of the Shares, hereby authorizes and
appoints IBT as its consulting agent to assist in the marketing of the
Shares as outlined herein.
2. Services. IBT agrees to perform such marketing services as may be
requested by FDI. It is understood that services provided by IBT
pursuant to this Agreement shall be so provided on an "as needed"
basis. FDI shall have sole discretion to determine the need for
continued provision of such services. Specifically, IBT's services may
include:
(a) publishing the availability of the Shares to clients;
(b) ongoing identification, development and implementation of
appropriate communications and marketing programs, projects and other
initiatives;
(c) make the Funds' investment managers available to current and
prospective owners of the Shares;
(d) ongoing review of the effectiveness of the Funds' marketing
programs and promotional material;
(e) prepare, print and distribute, in IBT's discretion, sales
literature brochures, letters, training materials and trust personnel
guides and all similar materials and advertisements as defined below,
and arrange for the printing and dissemination of prospectuses and
reports of the Funds to prospective shareholders; provided that it is
understood that FDI shall have no responsibility for strategic
planning or development with respect to such matter. For purposes of
this Agreement "sales literature" and "advertisements" mean brochures,
letters, electronic media, training materials and trust personnel
guides, materials for oral presentations and all other similar
materials, whether transmitted directly to potential shareholders or
published in print or audiovisual media, but does not include generic
materials that do not mention the Funds;
(f) submit all sales literature and advertisements prepared pursuant
to Section 2(c) above to FDI for legal/compliance review in advance of
use, and incorporate such changes as FDI may reasonably request
therein; and
(g) provide such other services with respect the subject matter hereof
as FDI may reasonably request from time to time.
3. Books and Records. IBT will keep all books and records necessary to
perform its services hereunder.
4. Compensation.
(a) As compensation for the services rendered hereunder, FDI shall pay
such fees to IBT as are set forth on the attached Schedule A, which
may be amended from time to time by the parties.
(b) FDI intends to utilize, as the sole source for all payments to IBT
hereunder, certain distribution-related payments (including without
limitation, Rule 12b- 1 payments) received by FDI with respect to the
Shares, less any payments or payment obligations to others (e.g.,
expenses paid by FDI arising from distribution-related services to the
Funds that it is not required to bear). FDI's fee obligations
hereunder thus are subject to (i) the actual receipt of such monies
from the Funds or its agents and (ii) the availability of such monies
for payment to IBT.
(c) IBT will bear all expenses in connection with the performance of
its services under this Agreement.
5. Representations and Warranties.
(a) IBT hereby represents and warrants that: (i) the execution and
delivery of this Agreement and the performance of the activities
contemplated hereby have been duly authorized by all necessary action
and all other authorizations and approvals (if any) required for the
lawful execution and delivery of this Agreement by it and its
performance hereunder have been obtained; (ii) upon execution and
delivery by it, and assuming due and valid execution and delivery by
the other parties hereto, this Agreement will constitute a valid and
binding agreement, enforceable against it in accordance with its
terms; and (iii) this Agreement has been disclosed to the Board of
Trustees (the "Board") of the Trust, and IBT has provided all such
information to the Board as may be appropriate (or as has been
requested by the Board) in connection with the Board's review or
approval of the arrangements contemplated hereunder, including amounts
to be received by IBT hereunder.
(b) IBT agrees to comply with all applicable federal and state laws,
rules and regulations. IBT represents and warrants that, to the extent
appropriate, it will ensure that the existence and terms of the
Agreement and any compensation paid hereunder will be disclosed to the
Funds' Board of Trustees. IBT agrees to indemnify and hold the Trust
and FDI harmless from loss or damage resulting from any failure on its
part to comply with applicable laws.
(c) FDI hereby represents and warrants that: (i) the execution and
delivery of this Agreement and the performance of the transactions
contemplated hereby have been duly authorized by all necessary action
and all other authorizations and approvals (if any) required for the
lawful execution and delivery of this Agreement by it and its
performance hereunder have been obtained; and (ii) upon execution and
delivery by it, and assuming due and valid execution and delivery by
the other parties hereto, this Agreement will constitute a valid and
binding agreement, enforceable against FDI in accordance with its
terms.
6. No Relationship Created. Neither this Agreement nor the performance of
the services of the respective parties hereunder shall be considered
to create a partnership, association or joint venture between FDI and
IBT. None of the parties hereto shall be, act as, or represent itself
as, the agent or representative of any of the others, nor shall any
party have the right or authority to assume, create or incur any
liability or any obligations of any kind, express or implied, against
or in the name of, or on behalf of, another party. This Agreement is
not intended to, and shall not, create any rights against any party
hereto by any third party solely on account of this Agreement. No
party hereto shall use the name of another party in any manner without
such other party's prior written consent, except as required by any
applicable federal or state law, rule or regulation, or to the extent
that FDI is merely identified as the Funds' distributor.
7. Notice. Any notice provided hereunder shall be sufficiently given when
sent by registered or certified mail to IBT at the following address:
Investors Bank & Trust Company, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, XX
00000, Attention: Chief Operating Officer with a copy to General
Counsel; and to FDI at the following address: 000 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, XX 00000, Attention: President, with a copy to General
Counsel, or at such other address as either party may from time to
time specify in writing to the other party pursuant to this Section.
8 Duration and Termination.
(a) This Agreement shall become effective as of the date first written
above and shall continue so long as any Distribution Agreement
pertaining to the Shares is in effect.
(b) Either party may terminate this Agreement at any time upon 10
days' prior written notice.
(c) Termination of FDI's Distribution Agreement with the Funds will
automatically terminate this Agreement.
9. Miscellaneous.
(a) This Agreement may be amended only by a written instrument signed
by both of the parties hereto and may not be assigned by any party
without the prior written consent of the other party.
(b) This Agreement constitutes the entire agreement and understanding
between the parties hereto relating to the subject matter hereof.
(c) This Agreement shall be governed by and construed in accordance
with the internal laws of The Commonwealth of Massachusetts, without
giving effect to principles of conflicts of laws.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed all as of the day and year first above written.
FUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
SCHEDULE A
The parties hereto agree that FDI shall pay to IBT for services rendered
pursuant to the terms of the Agreement as follows:
0.10% of the average daily value of the net assets represented by
shares of all classes of Funds subject to the Agreement.
Such fees shall be paid on a quarterly basis unless otherwise agreed to between
the parties.
Payments made from the Trust's Rule 12b-1 plan may be made directly to IBT by
the Trust with notice given to FDI by the Trust of the amounts paid.
