XXXX XXXXXXXXX SERIES TRUST
FURTHER AMENDED AND RESTATED DISTRIBUTOR'S CONTRACT
Further Amended and Restated Distributor's Contract dated as of October 1,
2001, by and between XXXX XXXXXXXXX SERIES TRUST, a Massachusetts business trust
(the "Trust"), and XXXX XXXXXXXXX FUNDS DISTRIBUTOR, INC. (the "Distributor").
WHEREAS, this contract has been approved by the Trustees of the Trust in
anticipation of the Distributor's transfer of its rights to receive the
Distribution Fee and Service Fee (as those terms are defined in the Distribution
and Shareholder Service Plan for Class B Shares as amended and restated as of
October 1, 2001) and/or contingent deferred sales charges to a financing party
in order to raise funds to cover distribution expenditures;
WHEREAS, that financing party has indicated that it plans, in turn, to
transfer such rights to a special purpose trust for purposes of securitizing
interests in such rights;
NOW THEREFORE, in consideration of the mutual agreements contained in the
Terms and Conditions of the Distributor's Contract attached to and forming a
part of this Contract (the "Terms and Conditions"), the Trust hereby appoints
the Distributor as a distributor of such shares of the Trust, and the
Distributor hereby accepts such appointment, all as set forth in the Terms and
Conditions.
A copy of the Agreement and Declaration of Trust of the Trust, as amended,
is on file with the Secretary of The Commonwealth of Massachusetts and notice is
hereby given that this instrument is executed on behalf of the Trustees of the
Trust as Trustees and not individually, and that the obligations of or arising
out of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Trust.
IN WITNESS WHEREOF, XXXX XXXXXXXXX SERIES TRUST and XXXX XXXXXXXXX FUNDS
DISTRIBUTOR, INC. have each caused this Further Amended and Restated
Distributor's Contract to be signed in duplicate on its behalf, all as of the
day and year first above written.
XXXX XXXXXXXXX SERIES TRUST
By: XXXXXXX XXXX
-----------------------------
XXXX XXXXXXXXX FUNDS
DISTRIBUTOR, INC.
By: XXXXXXX XXXXX, VICE PRESIDENT
-----------------------------
Dated: October 1, 2001
TERMS AND CONDITIONS
OF
DISTRIBUTOR'S CONTRACT
1. SALE OF SHARES TO THE DISTRIBUTOR AND SALES BY THE DISTRIBUTOR. The
Distributor will have the right, as principal, to sell shares of beneficial
interest ("shares") of the Trust's Institutional shares, Investor shares,
Adviser shares, Class A shares, Class B shares and Class C shares (each a
"Class" and collectively the "Classes") of each portfolio of the Trust
represented by a separate series of shares (a "Fund") directly to the public
against orders therefor at the applicable public offering price as described
below in the case of Class A shares, and at net asset value in the case of
Institutional shares, Investor shares, Adviser shares, Class B shares and Class
C shares. For such purposes, the Distributor will have the right to purchase
shares at net asset value. The Distributor will also have the right, as agent,
to sell shares of a Fund indirectly to the public through broker dealers who are
members of the National Association of Securities Dealers, Inc. and who are
acting as introducing brokers pursuant to agreements with the Distributor
("introducing brokers"), or to broker dealers which are members of the National
Association of Securities Dealers, Inc. (the "NASD") and who have entered into
selling agreements with the Distributor ("participating brokers"), in each case
against orders therefor. The price for introducing brokers and participating
brokers shall be, in the case of Class A shares, the applicable public offering
price less a concession to be determined by the Distributor, which concession
will not exceed the amount of the sales charge or underwriting discount, if any,
described below and, in the case of Institutional shares, Investor shares,
Adviser shares, Class B shares and Class C shares, net asset value.
The Trust shall sell through the Distributor, as the Trust's agent, shares
to eligible investors as described in the Prospectus. All orders through the
Distributor shall be subject to acceptance and confirmation by the Trust. The
Trust shall have the right, at its election, to deliver either shares issued
upon original issue or treasury shares.
Prior to the time of transfer of any shares by the Trust to, or on the
order of, the Distributor or any introducing broker or participating broker, the
Distributor shall pay or cause to be paid to the Trust or to its order an amount
in New York clearing house funds equal to the applicable net asset value of the
shares. Upon receipt of registration instructions in proper form, the
Distributor will transmit or cause to be transmitted such instructions to the
Trust or its agent for registration of the shares purchased.
The public offering price of Class A shares shall be the net asset value of
such shares, plus any applicable sales charge as set forth in the Prospectus. In
no event will any applicable sales charge or underwriting discount exceed the
limitations on permissible sales loads imposed by Section 22(b) of the
Investment Company Act of 1940 (together with the rules and regulations
thereunder, the "1940 Act") and Rule 2830(d) of the Conduct Rules of the NASD
(the "NASD Rule"), as either or both may be amended from time to time.
On every sale, the Fund whose shares are purchased shall receive the net
asset value of the shares. The net asset value of shares shall be determined in
the manner provided in the Agreement and Declaration of Trust and By-laws of the
Trust as then amended.
2. FEES. For its services as distributor of a Fund's Investor shares,
Class A Shares and Class C Shares, the Trust shall compensate the Distributor
(or its designee or transferee) on behalf of the Fund a monthly distribution fee
at an annual rate equal to 0.25%, 0.50% and 1.00%, respectively, of the average
daily net assets of the Fund attributable to such shares, as applicable, and
otherwise on the terms and conditions set forth in any Distribution and
Shareholder Service Plan in effect for Investor shares, Class A Shares, and
Class C Shares, each as amended from time to time, together with any contingent
deferred sales charges that may be payable upon redemption of Fund shares, as
described in Section 5 below. For a Fund's Class B shares, the Trust shall
compensate the Distributor (or its designee or transferee) on behalf of the Fund
a monthly fee at an annual rate equal to 0.25% of the average daily net assets
of the Fund attributable to such shares as a shareholder service fee and a
monthly distribution fee at an annual rate equal to 0.75% of the average daily
net assets of the Fund attributable to such shares and otherwise on the terms
and conditions set forth in any Distribution and Shareholder Service Plan in
effect for Class B Shares, as amended from time to time, together with any
contingent deferred sales charges that may be payable upon redemption of Fund
shares, as described in Section 5 below, PROVIDED, HOWEVER, that in
consideration of its services as general distributor for the Class B shares, the
Trust shall pay to the Distributor (or its designee or transferee) on behalf of
the relevant Fund the Distributor's Allocable Portion (hereinafter defined) of
the Distribution Fee (as defined in the Class B Distribution and Shareholder
Service Plan) in respect of the Class B shares of that Fund. For purposes of
this Agreement, the Distributor's "Allocable Portion" of the Distribution Fee
shall be 100% of such Distribution Fee unless or until a Fund uses a general
distributor other than or in addition to the Distributor and thereafter the
Allocable Portion shall be the portion of the Distribution Fee attributable to
(i) Class B shares of the Fund (the "Subject Fund") sold by the Distributor
("Commission Shares"), plus (ii) Class B shares of the Subject Fund issued in
connection with the exchange of Commission Shares of another Fund and/or Class B
shares of another fund of the Trust issued in reinvestment of dividends or
capital gain distributions in respect of Commission Shares of another Fund of
the Trust, plus (iii) Class B shares of the Subject Fund issued in reinvestment
of dividends or capital gain distributions in respect of Class B shares of the
Subject Fund described in clauses (i) and (ii), it being understood that the
mechanics of attributing the portion of Distribution Fee of the Fund to Class B
shares for purposes of calculating the Distributor's Allocable Portion shall be
agreed to by the Trust and the Distributor in light of systems capabilities for
tracking the aging, exchange and reinvestment experience of Class B shares sold
by the Distributor; PROVIDED, HOWEVER, that the Distributor's Allocable Portion
of the Distribution Fee and the contingent deferred sales charges arising in
respect of Class B shares taken into account in computing the Distributor's
Allocable Portion shall be limited under the NASD Rule or other applicable
regulations of the NASD as if the Class B shares taken into account in computing
the Distributor's Allocable Portion themselves constituted a separate class of
shares of a Fund. The Distribution Fee shall be accrued daily and paid monthly
to the Distributor (or at its direction) as soon as practicable after the end of
the calendar month in which it accrues, but in any event within five business
days following the last day of the month.
The services rendered by the Distributor for which the Distributor is
entitled to receive the Distributor's Allocable Portion of the Distribution Fee
shall be deemed to have been completed at the time of the initial purchase of
the Commission Shares (whether of a Fund or
another fund of the Trust) taken into account in computing the Distributor's
Allocable Portion. Notwithstanding anything to the contrary in this Agreement,
the Distributor shall be paid its Allocable Portion of the Distribution Fee
notwithstanding the Distributor's termination as general distributor of the
Class B shares of the Funds, or any termination of this Agreement other than in
connection with a Complete Termination (as defined in the Class B Distribution
and Shareholder Service Plan) of the Class B Distribution and Shareholder
Service Plan as in effect on the date of execution of this Agreement. Except as
provided in the preceding sentence, the Trust's obligation to pay the
Distribution Fee to the Distributor shall be absolute and unconditional and
shall not be subject to any dispute, offset, counterclaim or defense whatsoever
(it being understood that nothing in this sentence shall be deemed a waiver by
the Trust or a Fund of its right separately to pursue any claims it may have
against the Distributor and to enforce such claims against any assets (other
than its rights to be paid its Allocable Portion of the Distribution Fee and to
be paid the contingent deferred sales charges) of the Distributor).
3. RESERVATION OF RIGHT NOT TO SELL. The Trust reserves the right to
refuse at any time or times to sell any of its shares for any reason deemed
adequate by it.
4. USE OF THIRD PARTIES; NON-EXCLUSIVITY; SALES OF SHARES BY THE TRUST.
The Distributor may employ such third parties, including one or more
participating brokers or introducing brokers, for the purposes of selling shares
of the Trust as the Distributor, in its sole discretion, shall deem advisable or
desirable. The Distributor may not enter into similar arrangements with other
issuers without the consent of the Trust. The Trust reserves the right to issue
shares at any time directly to its shareholders as a stock dividend or stock
split and to sell shares to its shareholders or other persons at not less than
net asset value.
5. REPURCHASE OF SHARES. The Distributor will act as agent for the Trust
in connection with the repurchase and redemption of shares by the Trust upon the
terms and conditions set forth in the then current prospectus and statement of
additional information (collectively, the "prospectus") of the Trust or as the
Trust acting through its Trustees may otherwise direct. The Distributor may
employ such third parties, including one or more participating brokers or
introducing brokers, for such purposes as the Distributor, in its sole
discretion, shall deem to be advisable or desirable. Any contingent deferred
sales charge imposed on repurchases and redemptions of Class A, Class B and
Class C shares upon the terms and conditions set forth in the Prospectus shall
be paid to the Distributor in addition to the fees with respect to Class A,
Class B and Class C shares set forth in Section 2 hereof. Notwithstanding
anything to the contrary in this Agreement, the Distributor shall be paid such
contingent deferred sales charges in respect of Class B shares taken into
account in computing the Distributor's Allocable Portion of the Distribution Fee
notwithstanding the Distributor's termination as general distributor of the
Class B shares of a Fund or any termination of this Agreement other than in
connection with a Complete Termination of the Class B Distribution and Service
Plan as in effect on the date of execution of this Agreement. Except as provided
in the preceding sentence, the Trust's obligation to remit such contingent
deferred sales charges to the Distributor shall not be subject to any dispute,
offset, counterclaim or defense whatsoever (it being understood that nothing in
this sentence shall be deemed a waiver by the Trust or a Fund of its right
separately to pursue any claims it may have against the Distributor and to
enforce such claims against any assets (other than its right to be paid its
Allocable Portion of the Distribution
Fee and to be paid the contingent deferred sales charges) of the Distributor).
The Trust will not waive any contingent deferred sales charge except under the
circumstances set forth in the Trust's prospectus dated October 1, 2001 without
the consent of the Distributor (or, if rights to payment have been transferred,
the transferee).The Trust will take such steps as are commercially reasonable to
track on a share-by-share basis the aging of its shares for purposes of
calculating any contingent deferred sales charges and/or distribution fees.
6. BASIS OF PURCHASES AND SALES OF SHARES. The Distributor's obligation
to sell shares hereunder shall be on a best efforts basis only and the
Distributor shall not be obligated to sell any specific number of shares. Shares
will be sold by the Distributor only against orders therefor. The Distributor
will not purchase shares from anyone other than the Trust except in accordance
with Section 5 hereof, and will not take "long" or "short" positions in shares
contrary to any applicable provisions of the Agreement and Declaration of Trust
of the Trust, as amended or restated from time to time.
7. RULES OF SECURITIES ASSOCIATIONS, ETC. As the Trust's agent, the
Distributor may sell and distribute shares in such manner not inconsistent with
the provisions hereof and the Trust's Prospectus as the Distributor may
determine from time to time. In this connection, the Distributor shall comply
with all laws, rules and regulations applicable to it, including, without
limiting the generality of the foregoing, all applicable rules or regulations
under the 1940 Act and of any securities association registered under the
Securities Exchange Act of 1934, as amended (together with the rules and
regulations thereunder, the "1934 Act"). The Distributor will conform to the
Conduct Rules of the NASD and the securities laws of any jurisdiction in which
it sells, directly or indirectly, any shares. The Distributor also agrees to
furnish to the Trust sufficient copies of any agreement or plans it intends to
use in connection with any sales of shares in adequate time for the Trust to
file and clear them with the proper authorities before they are put in use, and
not to use them until so filed and cleared.
8. INDEPENDENT CONTRACTOR. The Distributor shall be an independent
contractor and neither the Distributor nor any of its officers or employees as
such, is or shall be an employee of the Trust. The Distributor is responsible
for its own conduct and the employment, control and conduct of its agents and
employees and for injury to such agents or employees or to others through its
agents or employees. The Distributor assumes full responsibility for its agents
and employees under applicable statutes and agrees to pay all employer taxes
thereunder.
9. REGISTRATION AND QUALIFICATION OF SHARES. The Trust agrees to execute
such papers and to do such acts and things as shall from time to time be
reasonably requested by the Distributor for the purpose of qualifying and
maintaining qualification of the shares for sale under the so-called Blue Sky
Laws of any state and for maintaining the registration of each Fund of the Trust
and the Trust under the Securities Act of 1933 (the "1933 Act") and the 1940
Act, to the end that there will be available for sale from time to time such
number of shares as the Distributor may reasonably be expected to sell. The
Trust may also contract with Bisys Fund Services Limited Partnership d.b.a.
Bisys Fund Services ("Bisys Fund Services") to perform such services, in which
event the Distributor agrees to look solely to Bisys Fund Services in the event
of any breach of the agreements of the Trust set forth in this Section 9. The
Trust or Bisys Fund Services shall advise the Distributor promptly of (a) any
action of the Securities and Exchange
Commission or any authorities of any state or territory, of which it may be
advised, affecting registration or qualification of the Trust, a Fund or the
shares thereof, or rights to offer such shares for sale and (b) the happening of
any event which makes untrue any statement or which requires the making of any
change in the Trust's registration statement or prospectus in order to make the
statements therein not misleading.
10. EXPENSES. The Trust will pay or reimburse the Distributor for all
expenses of qualifying shares of the Trust for sale under the securities or
so-called "Blue Sky" laws of any State. The Distributor will pay all expenses of
preparing, printing and distributing advertising and sales literature (apart
from expenses of registering shares under the 1933 Act and the 1940 Act and the
preparation and printing of prospectuses and reports for shareholders of the
Trust and the direct expenses of the issue of shares, except that the
Distributor will pay the cost of the preparation and printing of prospectuses
and shareholders' reports used by it in the sale of shares to persons other than
current shareholders).
11. SECURITIES TRANSACTIONS. The Trust agrees that the Distributor may
effect a transaction on any national securities exchange of which it is a member
for the account of the Trust and any Fund of the Trust which is permitted by
Section 11(a) of the 1934 Act.
12. INDEMNIFICATION OF TRUST. The Distributor agrees to indemnify and hold
harmless the Trust and each person who has been, is, or may hereafter be, a
Trustee of the Trust against expenses reasonably incurred by any of them in
connection with any claim or in connection with any action, suit or proceeding
to which any of them may be a party, which arises out of or is alleged to arise
out of any misrepresentation or omission to state a material fact, or out of any
alleged misrepresentation or omission to state a material fact, on the part of
the Distributor or any agent or employee of the Distributor or any other person
for whose acts the Distributor is responsible or is alleged to be responsible,
unless such misrepresentation or omission was made in reliance upon written
information furnished by the Trust, PROVIDED, that in no event shall anything
contained in this Agreement be construed to protect the Trust or any such person
against any liability to which the Trust or such person would otherwise be
subject by reason of willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement. The Distributor also agrees
likewise to indemnify and hold harmless the Trust and each such person in
connection with any claim or in connection with any action, suit or proceeding
which arises out of or is alleged to arise out of the Distributor's failure to
exercise reasonable care and diligence with respect to its services rendered in
connection with investment, reinvestment, employee benefit and other plans for
shares. The term "expenses" includes amounts paid in satisfaction of judgments
or in settlements which are made with the Distributor's consent. The foregoing
rights of indemnification shall be in addition to any other rights to which the
Trust or a Trustee may be entitled as a matter of law.
13. INDEMNIFICATION OF THE DISTRIBUTOR. The Trust agrees to indemnify and
hold harmless the Distributor, its several officers, employees and directors,
and any person who controls the Distributor within the meaning of Section 15 of
the 1933 Act, against expenses reasonably incurred by any of them in connection
with any claim or in connection with any action, suit or proceeding to which any
of them may be a party, which arises out of or is alleged to arise out of any
misrepresentation or omission to state a material fact, or out of any alleged
misrepresentation or omission to state a material fact in the Trust's
Registration Statement or prospectus, provided that in no event shall anything
contained in this Agreement be construed so as to protect the Distributor
against any liability to the Trust or its shareholders to which the Distributor
would otherwise be subject by reason of willful misfeasance, bad faith, or
negligence, in the performance of its duties under this Agreement. The foregoing
rights of indemnification shall be in addition to any other rights to which the
Distributor may be entitled as a matter of law.
14. ASSIGNMENT TERMINATES THIS AGREEMENT; AMENDMENTS OF THIS AGREEMENT.
This Agreement shall automatically terminate, without the payment of any
penalty, in the event of its assignment (excluding for this purpose any
assignment of rights to payment described in the recitals and in Section 18 of
this Agreement, which are hereby ratified and approved). This agreement may be
amended only if such amendment be approved either by action of the Trustees of
the Trust or at a meeting of the shareholders by the affirmative vote of a
majority of the outstanding shares of the Classes affected by such amendment,
and by a majority of the Trustees of the Trust who are not interested persons of
the Trust and who have no direct or indirect financial interest in the operation
of the Distribution Plan(s) or this Agreement by vote cast in person at a
meeting called for the purpose of voting on such approval.
15. EFFECTIVE PERIOD AND TERMINATION OF THIS AGREEMENT. This Agreement
shall take effect upon the date first above written and shall remain in full
force and effect continuously as to a Fund and a Class of shares thereof (unless
terminated automatically as set forth in Section 14 hereof) until terminated:
(a) Either by such Fund or such Class or the Distributor by not more
than sixty (60) days' nor less than thirty (30) days' written notice
delivered or mailed by registered mail, postage prepaid, to the other
party; or
(b) Automatically as to any Fund or Class thereof at the close of
business one year from the date hereof, or upon the expiration of one year
from the effective date of the last continuance of this Agreement,
whichever is later, if the continuance of this Agreement is not
specifically approved at least annually by the Trustees of the Trust or the
shareholders of such Fund or such Class by the affirmative vote of a
majority of the outstanding shares of such Fund or such Class, and by a
majority of the Trustees of the Trust who are not interested persons of the
Trust and who have no direct or indirect financial interest in the
operation of the Distribution Plan(s) or this Agreement by vote cast in
person at a meeting called for the purpose of voting on such approval.
Action by a Fund or a Class thereof under (a) above may be taken either (i)
by vote of a majority of the Trustees of the Trust who are not interested
persons of the Trust and who have no direct or indirect financial interest in
the operation of the Distribution Plan(s) or this Agreement, or (ii) by the
affirmative vote of a majority of the outstanding shares of such Fund or such
Class. The requirement under (b) above that the continuance of this Agreement be
"specifically approved at least annually" shall be construed in a manner
consistent with the 1940 Act.
Termination of this Agreement pursuant to this Section 15 shall be without
the payment of any penalty.
If this Agreement is terminated or not renewed with respect to one or more
Funds or Classes thereof, it may continue in effect with respect to any Fund or
any Class thereof as to which it has not been terminated (or has been renewed).
16. LIMITED RECOURSE. The Distributor hereby acknowledges that the Trust's
obligations hereunder with respect to the distribution fees payable with respect
to the shares of any Fund of the Trust or a particular Class of shares of a Fund
are binding only on the assets and property belonging to such Fund or such
Class.
17. CERTAIN DEFINITIONS. For the purposes of this Agreement, the
"affirmative vote of a majority of the outstanding shares" means the affirmative
vote, at a duly called and held meeting of shareholders, (a) of the holders of
67% or more of the shares of the Trust or the Fund or Class, as the case may be,
present (in person or by proxy) and entitled to vote at such meeting, if the
holders of more than 50% of the outstanding shares of the Trust or the Fund or
Class, as the case may be, entitled to vote at such meeting are present in
person or by proxy, or (b) of the holders of more than 50% of the outstanding
shares of the Trust or the Fund or Class, as the case may be, entitled to vote
at such meeting, whichever is less.
For the purposes of this Agreement, the terms "interested persons" and
"assignment" shall have the meanings defined in the 1940 Act, subject, however,
to such exemptions as may be granted by the Securities and Exchange Commission
under said Act. Certain other items used herein that are not otherwise defined
have the meaning given in the current prospectus of the Trust or constituent
agreements or documents of the Trust.
18. PAYMENTS TO DISTRIBUTOR'S TRANSFEREES. The Distributor may transfer
the right to payments hereunder (but not its obligations hereunder) in order to
raise funds to cover distribution expenditures, and any such transfer shall be
effective upon written notice from the Distributor to the Trust. In connection
with the foregoing, the Trust is authorized to pay all or a part of the
Distribution Fee, Service Fee and/or contingent deferred sales charges in
respect of Class B shares directly to such transferee as directed by the
Distributor.
