Exhibit 23(e)(3)
SELECTED CAPITAL PRESERVATION TRUST
DISTRIBUTION SERVICES AGREEMENT AND PLAN OF DISTRIBUTION
AGREEMENT as of May 1, 1993, by and between SELECTED CAPITAL
PRESERVATION TRUST, an Ohio business trust (the "Trust"), and SELECTED/VENTURE
ADVISERS, L.P. (formerly named Venture Advisers, L.P.), a Colorado limited
partnership ("Underwriter").
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Trust hereby appoints Underwriter to distribute shares of the
Trust (hereinafter called "shares") in jurisdictions wherein shares of the Trust
may legally be offered for sale; provided, however, that the Trust in its
absolute discretion may (a) issue or sell shares directly to holders of shares
of the Trust upon such terms and conditions and for such consideration, if any,
as it may determine, whether in connection with the distribution of subscription
or purchase rights, the payment or reinvestment of dividends or distributions,
or otherwise; (b) issue or sell shares at net asset value to the shareholders of
any other investment company for which Underwriter shall act as exclusive
distributor who wish to exchange all or a portion of their investment in shares
of such other investment company for shares of the Trust; or (c) issue or sell
shares at net asset value in connection with the acquisition of part or all of
the assets or equity of any other business entity or as a party to a
reorganization, merger or consolidation.
Underwriter accepts such appointment hereunder and agrees during the
term hereof to render the services and to assume the obligations herein set
forth for the compensation herein provided. Underwriter will use its best
efforts with reasonable promptness to sell such part of the authorized shares of
the Trust remaining unissued as from time to time shall be effectively
registered under the Securities Act of 1933 ("Securities Act") at prices
determined as hereinafter provided and on terms hereinafter set forth, all
subject to applicable Federal and state laws and regulations and to the
Declaration of Trust of the Trust. The price the Trust shall receive for all
shares purchased from the Trust shall be the net asset value used in determining
the public offering price applicable to the sale of such shares.
Underwriter shall provide such office space and equipment, telephone
facilities, personnel, literature, distribution, advertising and promotion as it
deems necessary or beneficial for distributing shares of the Trust. Underwriter
may provide some or all of these services for
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the Trust directly and may appoint broker-dealers and other financial services
firms ("Firms") to provide such services for existing and potential clients of
the Firms.
This Agreement applies to the four currently authorized series of the
Trust (each a "Fund" and collectively the "Funds"). These Funds are the
"Selected U.S. Government Income Fund," the "Selected Daily Income Fund," the
"Selected Daily Governmental Fund" and the "Selected Daily Tax-Exempt Fund."
Should the Trust establish any additional series subsequent to the date hereof
for which the Trust wishes to appoint Underwriter to arrange for the sale of the
shares thereof under the terms of this Agreement, the Trust shall provide
Underwriter with written notice to such effect. If Underwriter is willing to
serve in such capacity, it shall provide the Trust with a written notice to such
effect whereupon the shares of such series, together with the shares of the
Funds named above, shall be included in the term "shares" hereunder and such
series, together with the Funds named above, shall be included in the term
"Funds" hereunder.
Underwriter shall for all purposes herein provided be deemed to be an
independent contractor and unless otherwise expressly provided or authorized
hereunder, shall have no authority to act for or represent the Trust in any way
or otherwise be deemed an agent of the Trust. The services of Underwriter to the
Trust under this Agreement are not to be deemed exclusive and Underwriter shall
be free to render similar services or other services to others.
In carrying out its duties and responsibilities hereunder, Underwriter
may, pursuant to separate selling group agreements, appoint various Firms to
provide distribution services contemplated hereunder directly to or for the
benefit of existing and potential shareholders who may be clients of such Firm.
Underwriter, and not the Trust, will be responsible for the payment of
compensation to such Firms for such services.
2. Underwriter may sell shares of the Trust directly to investors. In
addition, Underwriter may sell shares of the Trust to or through qualified Firms
in such manner, not inconsistent with the provisions hereof and the then
effective registration statement of the Trust under the Securities Act
(including the related prospectus and statement of additional information,
collectively referred to hereinafter as the "registration statement"), as
Underwriter may determine from time to time, provided that no Firm or other
person shall be appointed or authorized to act as agent of the Trust without the
prior consent of the Trust.
Shares of the Trust offered for sale or sold by Underwriter shall be
offered or sold at a price per share determined in accordance with the then
current prospectus relating to the sale of such shares except as departure from
such prices shall be permitted by the rules and regulations of the Securities
and Exchange Commission; provided, however, that any public offering price
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for shares of the Trust shall be the net asset value per share. The net asset
value per share of each Fund of the Trust shall be determined in the manner and
at the times set forth in the then current prospectus of the Trust relating to
such shares.
Underwriter will conform and will require each Firm to conform to the
provisions hereof and the registration statement at the time in effect under the
Securities Act with respect to the public offering price, manner of sales and
payment terms of the Trust's shares, and neither Underwriter nor any such Firms
shall withhold the placing of purchase orders so as to make a profit thereby.
3. The Trust will use its best efforts to keep effectively registered
under the Securities Act for sale as herein contemplated such shares as
Underwriter shall reasonably request and as the Securities and Exchange
Commission shall permit to be so registered. Notwithstanding any other provision
hereof, the Trust may terminate, suspend or withdraw the offering of shares
whenever, in its sole discretion, it deems such action to be desirable.
4. The Trust will execute any and all documents and furnish any and all
information that may be reasonably necessary in connection with the
qualification of its shares for sale (including the qualification of the Trust
as a dealer where necessary or advisable) in such states or other jurisdictions
as Underwriter may reasonably request (it being understood that the Trust shall
not be required without its consent to comply with any requirement that in its
opinion is unduly burdensome). The Trust will furnish to Underwriter from time
to time such information with respect to the Trust and its shares as the
Underwriter may reasonably request for use in connection with the sale of shares
of the Trust.
5. Underwriter shall issue and deliver or shall arrange for various
Firms to issue and deliver on behalf of the Trust such confirmations of sales
made by it as agent pursuant to this agreement as may be required. At or prior
to the time of issuance of shares, Underwriter will pay or cause to be paid to
the Trust the amount due the Trust for the sale of such shares. Certificates
shall be issued for shares or registered on the transfer books of the Trust in
such names and denominations as Underwriter may specify.
6. Underwriter shall order shares of the Trust from the Trust only to
the extent that it shall have received purchase orders therefor. Underwriter
will not make or authorize any Firms or others to make any short sales of shares
of the Trust. Underwriter, as agent of and for the account of the Trust, may
repurchase the shares of the Trust at such prices and upon such terms and
conditions as shall be specified in the current prospectus of the Trust. In
selling or reacquiring shares of the Trust for the account of the Trust,
Underwriter will in all respects conform to the requirements of all state and
Federal laws and the Rules of Fair Practice of the
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National Association of Securities Dealers, Inc. relating to such sale or
reacquisition, as the case may be, and will indemnify and hold harmless the
Trust from any damage or expense on account of any wrongful act by Underwriter
or any employee, representative or agent of Underwriter. Underwriter will
observe and be bound by all the provisions of the Declaration of Trust of the
Trust (and of any fundamental policies adopted by the Trust pursuant to the
Investment Company Act of 1940, notice of which shall have been given to
Underwriter) that at the time in any way require, limit, restrict or prohibit or
otherwise regulate any action on the part of Underwriter.
7. The Trust shall assume and pay all charges and expenses of its
operations not specifically assumed or otherwise to be provided by Underwriter
under this Agreement. The Trust will pay or cause to be paid expenses (including
the fees and disbursements of its own counsel) and all taxes and fees payable to
the Federal, state or other governmental agencies on account of the registration
or qualification of securities issued by the Trust or otherwise. The Trust will
also pay or cause to he paid expenses incident to the issuance of shares of
beneficial interest, such as the cost of share certificates, issue taxes, and
fees of the transfer agent. Underwriter will pay all expenses (other than
expenses that one or more Firms may bear pursuant to any agreement with
Underwriter) incident to the sale and distribution of the shares issued or sold
hereunder including, without limiting the generality of the foregoing, all
expenses of printing and distributing any prospectus and of preparing, printing
and distributing or disseminating any other literature, advertising and selling
aids in connection with the offering of the shares for sale (except that such
expenses shall not include expenses incurred by the Trust in connection with the
preparation, typesetting, printing and distribution of any registration
statement, prospectus or report or other communication to shareholders in their
capacity as such), expenses of advertising in connection with such offering,
compensation to Firms referred to in Section 1 hereof and sales compensation to
Underwriter's registered representatives.
8. For the services and facilities described herein, the Trust will pay
to Underwriter at the end of each calendar month a distribution services fee
computed at an annual rate of 0.25% of the average daily net assets of each
Fund. The fees shall be charged to each Fund of the Trust subject to this
agreement based upon the average daily net assets of such Fund and at the annual
rate provided above. For the month and year in which this Agreement terminates,
there shall be appropriate proration on the basis of the number of days that the
Agreement is in effect during the month and year, respectively.
9. This Agreement incorporates the plan of the Trust pursuant to Rule
12b-1 under the Investment Company Act of 1940 and such plan shall be continued,
amended and terminated in accordance with the Rule.
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10. Underwriter is authorized under the Plan of Distribution to utilize
monies from any source whatsoever to finance its activities hereunder. To the
extent any management fees paid by the Trust may be considered to be indirectly
financing any activity or expense that is primarily intended to result in the
sale of shares within the meaning of Rule 12b-1, the payment of such fees is
authorized.
11. At least quarterly, Underwriter shall prepare reports for the Board
of Trustees of the Trust showing amounts expended by Underwriter hereunder and
the purposes therefor and such other information as from time to time shall be
reasonably requested by the Board of Trustees.
12. This Agreement shall become effective on the date hereof and shall
continue through August 28, 1993. It shall continue through April 30, 1994 as to
a Fund provided it is approved by a vote of a majority of its outstanding voting
securities. This Agreement shall continue as to a Fund thereafter, so long as
such continuance is specifically approved for such Fund at least annually by a
vote of the Board of Trustees of the Trust including the trustees who are not
interested persons of the Trust and who have no direct or indirect financial
interest in this Agreement or in any agreement related to this Agreement.
To the extent this Agreement incorporates the Rule 12b-1 Distribution
Plan, this Agreement may not be amended to increase the amount to be paid to
Underwriter for services hereunder without the vote of a majority of the
outstanding voting securities of each Fund of the Trust, and all material
amendments to this Agreement must in any event be approved by a vote of the
Board of Trustees of the Trust including the trustees who are not interested
persons of the Trust and who have no direct or indirect financial interest in
this Agreement or in any agreement related to this Agreement, cast in person at
a meeting called for such purpose.
This Agreement shall automatically terminate in the event of its
assignment and may be terminated at any time without the payment of any penalty
by the Trust or by Underwriter on sixty (60) days written notice to the other
party. The Trust may effect termination with respect to any Fund by a vote of
(i) a majority of the Board of Trustees, (ii) a majority of the trustees who are
not interested persons of the Trust and who have no direct or indirect financial
interest in this Agreement or in any agreement related to this Agreement, or
(iii) a majority of the outstanding voting securities of the Fund.
Notwithstanding the foregoing, termination of this Agreement shall not terminate
the Distribution Plan incorporated herein (including authorized payment of fees
to an underwriter) unless the Board of Trustees shall have determined that such
plan is terminated.
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The terms "assignment," "interested" and "vote of a majority of the
outstanding voting securities" shall have the meanings set forth in the
Investment Company Act of 1940 and the rules and regulations thereunder.
Upon termination (including non-continuance) of this Agreement, the
obligation of the Trust to make payments to the Underwriter shall cease, except
that such termination shall not affect the right of Underwriter to receive
payments on any unpaid balance of the compensation described in Section 8 earned
prior to such termination.
13. Underwriter will not use or distribute or authorize the use,
distribution or dissemination by Firms or others in connection with the sale of
shares, any statements, other than those contained in the Trust's current
prospectus, except such supplemental literature or advertising as shall be
lawful under Federal and state securities laws and regulations, and will furnish
the Trust with copies of all such material.
14. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder shall not be thereby
affected.
15. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as such
other party may designate for the receipt of such notice.
16. All parties hereto are expressly put on notice of the Trust's
Declaration of Trust and all amendments thereto, all of which are on file with
the Secretary of State of Ohio, and the limitation of shareholder and trustee
liability contained therein. This Agreement has been executed by and on behalf
of the Trust by its representatives as such representatives and not
individually, and the obligations of the Trust hereunder are not binding upon
any of the trustees, officers or shareholders of the Trust individually but are
binding upon only the assets and property of the Trust. With respect to any
claim by Underwriter for recovery of that portion of the fees (or any other
liability of the Trust arising hereunder) allocated hereunder to a particular
Fund whether in accordance with the express terms hereof or otherwise.
Underwriter shall have recourse solely against the assets of that Fund to
satisfy such claim and shall have no recourse against the assets of any other
Fund for such purpose.
17. The Underwriter acknowledges that the use of the term "Selected" in
its name is with the acquiescence of the Trust and is subject to revocation at
any time by the Board of Trustees or by a majority of the trustees who are not
interested persons of the Trust.
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18. This Agreement shall be construed in accordance with applicable
Federal law and (except as to Section 16 hereof that shall be construed in
accordance with the laws of the State of Ohio) the laws of the State of New
Mexico.
IN WITNESS WHEREOF, the Trust and Underwriter have caused this
Agreement to be executed as of May 1, 1993.
SELECTED CAPITAL PRESERVATION TRUST
By:/s/_____________________________________
Title: President
SELECTED VENTURE ADVISERS, L.P.
By: Venture Advisers, Inc.
Its General Partner
By:/s/______________________________________
Title: Executive Vice President
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