Exhibit 15.2 under Form N-1A
Exhibit 1 under Item 601/Reg. S-K
Old Westbury Funds, Inc.
DISTRIBUTION AGREEMENT
AGREEMENT made this 2nd day of December, 1996, by and between Old
Westbury Funds, Inc. (the "Fund "), a Maryland corporation, and EDGEWOOD
SERVICES, INC. (`Edgewood''), a New York corporation.
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Fund hereby appoints Edgewood as its agent to sell and distribute
shares of the Fund which may be offered in one or more series (the
"Portfolios") consisting of one or more classes (the "Classes") of
shares (the "Shares"), as described and set forth on one or more
exhibits to this Agreement, at the current offering price thereof as
described and set forth in the current Prospectuses of the Fund.
Edgewood hereby accepts such appointment and agrees to provide such
other services for the Fund, if any, and accept such compensation from
the Fund, if any, as set forth in the applicable exhibits to this
Agreement. This Agreement is entered into pursuant to the Distribution
and Service Plan (the ``Plan') adopted by the Fund on behalf of each of
its series in accordance with Rule 12b-1 under the Investment Company
Act of 1940, as amended (the ``1940 Act').
2. The sale of any Shares may be suspended whenever in the judgment of the
Board of Directors of the Fund it is in the Fund's best interest to do
so.
3. Neither Edgewood nor any other person is authorized by the Fund to give
any information or to make any representation relative to any Shares
other than those contained in the Registration Statement, Prospectuses,
or Statements of Additional Information ("SAIs") filed with the
Securities and Exchange Commission, as the same may be amended from time
to time, or in any supplemental information to said Prospectuses or SAIs
approved in writing by the Fund. Edgewood agrees that any other
information or representations other than those specified above which it
or any dealer or other person who purchases Shares through Edgewood may
make in connection with the offer or sale of Shares, shall be made
entirely without liability on the part of the Fund. No person or dealer,
other than Edgewood, is authorized to act as agent for the Fund for any
purpose. Edgewood agrees that in offering or selling Shares as agent of
the Fund, it will, in all respects, duly conform to all applicable state
and federal laws and the rules and regulations of the National
Association of Securities Dealers, Inc., including its Rules of Fair
Practice. Edgewood will submit to the Fund copies of all sales
literature before using the same and will not use such sales literature
if disapproved by the Fund.
4. This Agreement is effective with respect to each Class as of the date of
execution of the applicable exhibit and shall continue in effect with
respect to each Class presently set forth on an exhibit and any
subsequent Classes added pursuant to an exhibit during the initial term
of this Agreement for one year from the date set forth above, and
thereafter for successive periods of one year if such continuance is
approved at least annually by the Directors of the Fund including a
majority of the members of the Board of Directors of the Fund who are
not interested persons of the Fund and have no direct or indirect
financial interest in the operation of any Distribution and Service Plan
relating to the Fund or in any related documents to such Plan
("Disinterested Directors ") cast in person at a meeting called for that
purpose. If a Class is added after the first annual approval by the
Directors as described above, this Agreement will be effective as to
that Class upon execution of the applicable exhibit and will continue in
effect until the next annual approval of this Agreement by the Directors
and thereafter for successive periods of one year, subject to approval
as described above.
5. This Agreement may be terminated with regard to a particular Fund or
Class at any time, without the payment of any penalty, by the vote of a
majority of the Disinterested Directors or by a majority of the
outstanding voting securities of the particular Fund or Class on not
more than sixty (60) days' written notice to any other party to this
Agreement. This Agreement may be terminated with regard to a particular
Fund or Class by Edgewood on sixty (60) days' written notice to the
Fund.
6. This Agreement may not be assigned by Edgewood and shall automatically
terminate in the event of an assignment by Edgewood as defined in the
1940 Act, provided, however, that Edgewood may employ such other person,
persons, corporation or corporations at its cost and expense as it shall
determine in order to assist it in carrying out its duties under this
Agreement.
7. Edgewood shall not be liable to the Fund for anything done or omitted by
it, except acts or omissions involving willful misfeasance, bad faith,
gross negligence, or reckless disregard of the duties imposed by this
Agreement.
8. This Agreement may be amended at any time by mutual agreement in writing
of all the parties hereto, provided that such amendment is approved by
the Directors of the Fund including a majority of the Disinterested
Directors of the Fund cast in person at a meeting called for that
purpose.
9. This Agreement shall be construed in accordance with and governed by the
laws of the Commonwealth of Pennsylvania.
10. (a) Subject to the conditions set forth below, the Fund agrees to
indemnify and hold harmless Edgewood and each person, if any, who
controls Edgewood within the meaning of Section 15 of the
Securities Act of 1933 and Section 20 of the Securities Act of
1934, as amended, against any and all loss, liability, claim,
damage and expense whatsoever (including but not limited to any and
all expenses whatsoever reasonably incurred in investigating,
preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Prospectuses or SAIs
(as from time to time amended and supplemented) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading,
unless such statement or omission was made in reliance upon and in
conformity with written information furnished to the Fund about
Edgewood by or on behalf of Edgewood expressly for use in the
Registration Statement, any Prospectuses and SAIs or any amendment
or supplement thereof.
If any action is brought against Edgewood or any controlling person
thereof with respect to which indemnity may be sought against the
Fund pursuant to the foregoing paragraph, Edgewood shall promptly
notify the Fund in writing of the institution of such action and
the Fund shall assume the defense of such action, including the
employment of counsel selected by the Fund and payment of expenses.
Edgewood or any such controlling person thereof shall have the
right to employ separate counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of Edgewood or
such controlling person unless the employment of such counsel shall
have been authorized in writing by the Fund in connection with the
defense of such action or the Fund shall not have employed counsel
to have charge of the defense of such action, in any of which
events such fees and expenses shall be borne by the Fund. Anything
in this paragraph to the contrary notwithstanding, the Fund shall
not be liable for any settlement of any such claim of action
effected without its written consent. The Fund agrees promptly to
notify Edgewood of the commencement of any litigation or
proceedings against the Fund or any of its officers or Directors or
controlling persons in connection with the issue and sale of Shares
or in connection with the Registration Statement, Prospectuses, or
SAIs.
(b) Edgewood agrees to indemnify and hold harmless the Fund, each of
its Directors, each of its officers who have signed the
Registration Statement and each other person, if any, who controls
the Fund within the meaning of Section 15 of the Securities Act of
1933, against any and all loss, liability, claim, damage and
expense whatsoever (including but not limited to any and all
expenses whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened, or
any claim whatsoever) arising out of statements or omissions, if
any, made in the Registration Statement or any Prospectus, SAI, or
any amendment or supplement thereof in reliance upon, and in
conformity with, information furnished to the Fund about Edgewood
by or on behalf of Edgewood expressly for use in the Registration
Statement or any Prospectus, SAI, or any amendment or supplement
thereof. In case any action shall be brought against the Fund or
any other person so indemnified based on the Registration Statement
or any Prospectus, SAI, or any amendment or supplement thereof, and
with respect to which indemnity may be sought against Edgewood,
Edgewood shall have the rights and duties given to the Fund, and
the Fund and each other person so indemnified shall have the rights
and duties given to Edgewood by the provisions of subsection (a)
above.
(c) Nothing herein contained shall be deemed to protect any person
against liability to the Fund or its shareholders to which such
person would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of the duties of
such person or by reason of the reckless disregard by such person
of the obligations and duties of such person under this Agreement.
(d) Insofar as indemnification for liabilities may be permitted
pursuant to Section 17 of the Investment Company Act of 1940, as
amended, for Directors, officers, Edgewood and controlling persons
of the Fund by the Directors pursuant to this Agreement, the Fund
is aware of the position of the Securities and Exchange Commission
as set forth in the Investment Company Act Release No. IC-11330.
Therefore, the Fund undertakes that in addition to complying with
the applicable provisions of this Agreement, in the absence of a
final decision on the merits by a court or other body before which
the proceeding was brought, that an indemnification payment will
not be made unless in the absence of such a decision, a reasonable
determination based upon factual review has been made (i) by a
majority vote of a quorum of non-party Disinterested Directors, or
(ii) by independent legal counsel in a written opinion that the
indemnitee was not liable for an act of willful misfeasance, bad
faith, gross negligence or reckless disregard of duties. The Fund
further undertakes that advancement of expenses incurred in the
defense of a proceeding (upon undertaking for repayment unless it
is ultimately determined that indemnification is appropriate)
against an officer, Directors, Edgewood or controlling person of
the Fund will not be made absent the fulfillment of at least one of
the following conditions: (i) the indemnitee provides security for
his undertaking; (ii) the Fund is insured against losses arising by
reason of any lawful advances; or (iii) a majority of a quorum of
non-party Disinterested Directors or independent legal counsel in a
written opinion makes a factual determination that there is reason
to believe the indemnitee will be entitled to indemnification.
12. If at any time the Shares of any Fund are offered in two or more
Classes, Edgewood agrees to adopt compliance standards as to when a
class of shares may be sold to particular investors.
13. This Agreement will become binding on the parties hereto upon the
execution of the attached exhibits to the Agreement.
EXHIBIT A
DISTRIBUTION AGREEMENT
OLD WESTBURY FUNDS, INC.
OLD WESTBURY INTERNATIONAL FUND (THE ``PORTFOLIO'')
The following provisions are hereby incorporated and made part of the
Distribution Agreement dated the 2nd day of December, 1996, between Old Westbury
Funds, Inc., on behalf of the Portfolio, and Edgewood Services, Inc. (`ESI''):
1. The Portfolio hereby appoints ESI, as its agent, to offer, and to
solicit offers to subscribe to, the unsold balance of shares of the series of
common stock represented by the Portfolio as shall then be effectively
registered under the 1933 Act (`Shares''). All subscriptions for Shares
obtained by ESI shall be directed to for acceptance and shall not be binding on
the Portfolio until accepted by the Portfolio. ESI shall have no authority to
made binding subscriptions on the Portfolio's behalf. The Portfolio reserves
the right to sell Shares directly to investors through subscriptions received by
the Portfolio at its principal office. The right given to ESI under this
agreement shall not apply to any Shares issued in connection with (a) the merger
or consolidation of any other investment company with the Portfolio, (b) the
Portfolio's acquisition by purchase or otherwise of all or substantially all of
the assets or stock of any other investment company, or (c) the reinvestment in
Shares by Portfolio stockholders of dividends or other distributions or any
other offering by the Fund of securities to its stockholders.
2. The Fund will reimburse ESI in an amount not to exceed .10% per annum
of the Portfolio's average daily net assets for ESI's cost incurred:
(i) to compensate broker-dealers with whom ESI has contracts for
providing assistance in distribution Shares ; and
(ii) to pay the cost of the preparation and printing of brochures and
other promotional materials, mailings to prospective shareholders,
advertising, and other promotional activities, including the salaries
and/or commissions of ESI and other sales personnel, and of printing
and distribution the Portfolio's prospectus to prospective investors
in connection with the distribution of its shares.
3. ESI may sell Shares to or through qualified brokers, dealers and
financial institutions under selling and servicing agreements provided that no
dealer, financial institution or other person shall be appointed or authorized
to act as the Portfolio's agent without its written consent. The Portfolio
acknowledges that, pursuant to a Shareholder Servicing Agreement with the
Portfolio, ESI may arrange for broker-dealers (each a `Broker-Dealer'') whose
customers or clients are Portfolio shareholders to enter into agreements with
ESI as the Distributor pursuant to which the Broker-Dealers will be compensated
directly by the Distributor for the performance of shareholder servicing and
related administrative functions not performed by the Advisor or its Shareholder
Servicing Agents, the Distributor, the Administrator or the Transfer Agent.
Such payments will be made only pursuant to written agreements approved in form
and substance by the Board of Directors to be entered into by the Distributor
and the Broker-Dealers. It is recognized that the Portfolio shall have no
obligation or liability to ESI, or any Broker-Dealer for any such payments under
the agreements with Broker-Dealers. The Portfolio's obligation is solely to
make payments to the Advisor under the Advisory Agreement and the Shareholder
Servicing Agreement and to the Distributor under the Distribution Agreement and
Shareholder Servicing Agreement.
4. The Portfolio and ESI will cooperate with each other in taking such
action as may be necessary to qualify Shares for sale under the securities laws
of such states as the Portfolio may designate, provided, that ESI shall not be
required to register as a broker-dealer or file a consent to service of process
in any such state where it is not now so registered. Pursuant to an Advisory
Agreement dated October 12, 1993 between the Portfolio and the Advisor, the
Portfolio will pay all fees and expenses of registering shares of all series of
Common Stock under the 1933 Act and of qualification of shares of all series of
Common Stock, and to the extent necessary, qualification under applicable state
securities laws. ESI will pay all expenses relating to its broker-dealer
qualification.
5. ESI will prepare reports to the Board of Directors of the Portfolio on
a quarterly basis showing amounts expended hereunder, including amounts paid to
Broker-Dealers and the purpose of such payments.
In consideration of the mutual convenants set forth in the Distribution
Agreement dated December 2, 1996 between Old Westbury Funds, Inc. and Edgewood
Services, Inc., Old Westbury Funds, Inc. executes and delivers this Exhibit on
behalf of the Funds, and with respect to the separate Classes of Shares thereof,
first set forth in this Exhibit.
Witness the due execution hereof this 2nd day of December, 1996.
ATTEST: OLD WESTBURY FUNDS, INC.
/s/ C. Xxxxx Xxxxxxxx By:/s/ Xxxxxx X. Xxxxxxxx
Secretary President
(SEAL)
ATTEST: EDGEWOOD SERVICES, INC.
/s/ S. Xxxxxxx Xxxxx By:/s/ R. Xxxxxxx Xxxx
Secretary Senior Vice President
(SEAL)
