EXHIBIT (e)(3)
DISTRIBUTION SERVICES AGREEMENT
AGREEMENT made this 1st day of August, 2007, by and between Boston Trust
Investment Management, Inc., a Massachusetts corporation (the "Adviser"), and
Foreside Distribution Services, L.P., an Ohio limited partnership (the
"Distributor").
WHEREAS, the Adviser serves as investment adviser for the Boston Trust and
Xxxxxx Funds (each a "Fund" and collectively, the "Funds"), open-end investment
companies registered with the Securities and Exchange Commission ("SEC") under
the Investment Company Act of 1940, as amended (the "Act"); and
WHEREAS, pursuant to a distribution agreement between the Distributor and
the Funds currently in effect (the "Distribution Agreement"), the Distributor
acts as the principal underwriter and distributor of shares of the Funds, which
shares (the "Shares") are registered under the Securities Act of 1933, as
amended; and
WHEREAS, in consideration of Distributor's agreement to provide certain
sales and marketing services as described in the Distribution Agreement, the
Adviser has agreed to compensate the Distributor to the extent that the Funds
are not authorized to so compensate the Distributor;
NOW THEREFORE, in consideration of the covenants hereinafter contained, the
Adviser and the Distributor agree as follows:
1. Services.
Distributor will provide the Funds and the Adviser with some or all of the
marketing and sales support services set forth in the Distribution Agreement, as
the parties agree from time to time.
2. Compensation and Expenses.
(a) The Distributor shall be entitled to receive the compensation set forth
in the Distribution Agreement or as otherwise agreed to in writing, based on the
services selected by Funds and/or the Adviser from time to time
(b) In accordance with the Distribution Agreement, Adviser hereby agrees
that, if the Funds are not authorized to compensate the Distributor in full in
accordance with the Distribution Agreement, the Adviser shall compensate the
Distributor to the extent that the Funds are not so authorized.
3. Term and Termination.
(a) This Agreement will become effective upon the date first set forth
above, will continue in effect throughout the term of the Distribution
Agreement, and will terminate automatically upon any termination of the
Distribution Agreement; provided, however, that, notwithstanding such
termination of the Distribution Agreement, the Adviser will continue to
pay to Distributor all fees to which Distributor is entitled pursuant to the
Distribution Agreement for services performed through such termination date.
(b) This Agreement will terminate immediately and automatically in the
event the Distributor is expelled as a member of the FINRA, and the Adviser may
terminate this Agreement immediately upon written notice in the event the
Distributor's FINRA membership is suspended.
(c) In addition, either party may immediately terminate this Agreement in
whole or if the provision of services having substantially the character, form
and scope as those set forth hereunder becomes illegal or contrary to any
applicable law, or with the service and payment model remaining substantially as
reflected herein, a substantial risk that such a violation could occur would be
incurred.
(d) In addition, either party may immediately terminate this Agreement if
it has "Cause" to do so, which, for these purposes is defined as being
applicable if (i) the other party materially breaches this Agreement and the
breach is not remedied within thirty (30) days after the party wishing to
terminate gives the breaching party written notice of the breach; (ii) a final
judicial, regulatory or administrative ruling or order is made in which the
party to be terminated has been found guilty of criminal or unethical behavior
in the conduct of its business; or (iii) the other party makes an assignment for
the benefit of its creditors, files a voluntary petition under any bankruptcy or
insolvency law, becomes the subject of an involuntary petition under any
bankruptcy or insolvency law that is not dismissed within 60 days, or a trustee
or receiver is appointed under any bankruptcy or insolvency law for the other
party or its property.
(e) In addition, this Agreement may be terminated by either party upon 30
days written notice to the other party.
4. Rights and Obligations of the Adviser and the Distributor.
The Adviser shall be responsible for the accuracy, completeness and
propriety of information concerning its organization and sales channels that the
Adviser furnishes to the Distributor in connection with the performance of the
Distribution Agreement.
5. Representations and Warranties.
(a) The Adviser represents and warrants the following:
(i) this Agreement has been duly authorized by the Adviser and, when
executed and delivered, will constitute a legal, valid and binding obligation of
the Adviser, enforceable against it in accordance with its terms subject to
bankruptcy, insolvency, reorganizations, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties,
and
(ii) this Agreement has been disclosed to the Board of Directors of
the Funds (the "Board"), and the Adviser has provided all such information to
the Board as may be appropriate
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(or as has been requested by the Board) in connection with the Board's review or
approval of the arrangements contemplated hereunder, including amounts expended
by the Adviser hereunder.
(b) The Distributor represents and warrants the following:
(i) it is presently a duly registered broker-dealer with the FINRA
in good standing and covenants that it shall remain so registered and in good
standing for the duration of this Agreement, and shall immediately notify the
Adviser should the foregoing no longer be true during the term of this
Agreement;
(ii) the Distributor also represents and warrants that it is in
material compliance with all laws, rules and regulations applicable to it,
including but not limited to the rules and regulations promulgated by the FINRA;
and
(iii) this Agreement has been duly authorized by the Distributor
and, when executed and delivered, will constitute a legal, valid and binding
obligation of the Distributor, enforceable against the Distributor in accordance
with its terms subject to bankruptcy, insolvency, reorganizations, moratorium
and other laws of general application affecting the rights and remedies of
creditors and secured parties.
6. Confidentiality.
During the term of this Agreement, the Distributor and the Adviser 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 Adviser 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 practicable and reasonably cooperate with the other party (at
such other party's expense) in any efforts to prevent such disclosure.
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In the event of any unauthorized use or disclosure by a Party of any
Confidential Information of the Other Party, the Disclosing Party shall promptly
(i) notify the Other Party of the unauthorized use or disclosure; (ii) take all
reasonable actions to limit the adverse effect on the Other Party of such
unauthorized use or disclosure; and (iii) take all reasonable action to protect
against a recurrence of the unauthorized use or disclosure.
7. Limitation of Liability; Indemnification.
(a) The Distributor retains the general rights and responsibilities
associated with its employment of the Distribution Services Personnel. This
Agreement does not contemplate that any individuals become Distribution Services
Personnel, or become registered with the Distributor, who are not employed by
the Distributor and its affiliates.
(b) Subject to Section 7(a), the Distributor shall not be liable to the
Adviser or the Funds for any action taken or omitted by it in the absence of bad
faith, willful misfeasance, gross negligence or reckless disregard by it (or its
agents or employees) of its obligations and duties under this Agreement or the
Distribution Agreement. As long as the Distributor acts in good faith and
complies with laws and regulations applicable to it in connection with its
services hereunder and/or under the Distribution Agreement, the Adviser shall
indemnify and hold harmless the Distributor and its employees, agents, directors
and officers from and against, any and all claims, demands, actions and suits,
and from and against any and all judgments, liabilities, losses, damages, costs,
charges and reasonable counsel fees incurred in connection therewith
(collectively, "Losses") arising out of or related to the arrangement
contemplated under this Agreement and/or the Distribution Agreement, including
but not limited to all activities, actions and omissions of the Distribution
Services Personnel as registered representatives of the Distributor, except to
the extent that Losses result from (i) the Distributor's general
responsibilities as employer of Distribution Services Personnel, or (ii) the bad
faith, willful misfeasance, gross negligence or reckless disregard by the
Distributor of its express obligations and duties hereunder and/or the
Distribution Agreement.
8. Notices.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Adviser, to it at Xxx Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, Attention: President and if to Distributor,
to it at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Broker
Dealer Chief Compliance Officer, with a copy to Foreside Distribution Services,
L.P., 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attention: President, or at such
other address as such party may from time to time specify in writing to the
other party pursuant to this Section.
9. Assignment.
This Agreement and the rights and duties hereunder shall not be assignable
with respect to a Fund by either of the parties hereto except by the specific
written consent of the other party.
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This Agreement shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and permitted assigns.
10. Governing Law.
This Agreement shall be governed by, and interpreted in accordance with,
the laws of the State of New York.
11. Miscellaneous.
(a) Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties
hereto 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.
(c) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if this Agreement
did not contain such part, term or provision.
(d) This Agreement may be executed in counterparts, each of which shall be
an original but all of which, taken together, shall constitute one and the same
agreement.
(e) 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 Agreement to be
duly executed all as of the day and year first above written.
BOSTON TRUST INVESTMENT MANAGEMENT, INC. FORESIDE DISTRIBUTION SERVICES, L.P.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx X. Xxx
---------------------------- -----------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxx X. Xxx
Title: Director Title: President
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