EXHIBIT (e)(ii)
DISTRIBUTION AGREEMENT
OLD WESTBURY FUNDS, INC.
Old Westbury Capital Opportunity Fund (the "Portfolio")
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
September 1, 2000
BISYS Fund Services Limited Partnership
D/B/A BISYS Fund Services
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Gentlemen:
1. (a) In consideration of the agreements on your part herein
contained and of the payment by us to you of a fee of $1.00 per year and on the
terms and conditions set forth herein, we have agreed that you shall be, for the
period of this agreement, a distributor, as our agent, for the unsold portion of
each series of such number of shares of our common stock, $.001 par value per
share, as may be effectively registered from time to time under the Securities
Act of 1933, as amended (the "1933 Act"). This agreement is being entered into
pursuant to the Distribution and Service Plan (the "Plan") adopted by us on
behalf of our portfolio series in accordance with Rule 12b-1 under the
Investment Company Act of 1940, as amended (the "1940 Act").
(b) We will also reimburse you in an amount not to exceed .10% per
annum of the Portfolio's average daily net assets for your costs incurred:
(i) to compensate broker-dealers with whom you have contracts for
providing assistance in distributing our 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 your and other sales personnel, and of printing and
distributing the Portfolio's prospectus to prospective investors in
connection with the distribution of our shares.
2. We hereby agree that you will act as our agent, and hereby appoint
you our agent, to offer, and to solicit offers to subscribe to, the unsold
balance of shares of the series of our common stock represented by the Portfolio
as shall then be
effectively registered under the 1933 Act. All subscriptions for shares of our
common stock obtained by you shall be directed to us for acceptance and shall
not be binding on us until accepted by us. You shall have no authority to make
binding subscriptions on our behalf. We reserve the right to sell shares of each
series of our common stock through other distributors or directly to investors
through subscriptions received by us at our principal office. The right given to
you under this agreement shall not apply to any shares of our common stock
issued in connection with (a) the merger or consolidation of any other
investment company with us, (b) our 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 of our common stock by our stockholders of
dividends or other distributions or any other offering by us of securities to
our stockholders.
3. You will use your best efforts to obtain subscriptions to shares
of each series of our common stock upon the terms and conditions contained
herein and in our Prospectus, as in effect from time to time. You will send to
us promptly all subscriptions placed with you. We shall furnish you from time to
time, for use in connection with the offering of shares of our common stock,
such other information with respect to us and shares of our common stock as you
may reasonably request. We shall supply you with such copies of our Registration
Statement and Prospectus, as in effect from time to time, as you may request.
Except as we may authorize in writing, you are not authorized to give any
information or to make any representation that is not contained in the
Registration Statement or Prospectus, as then in effect. You may use employees,
agents and other persons, at your cost and expense, to assist you in carrying
out your obligations hereunder, but no such employee, agent or other person
shall be deemed to be our agent or have any rights under this Agreement. You may
sell our 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
our agent without our written consent. We acknowledge that you, as Distributor
to the Portfolio, pursuant to the Shareholder Servicing Agreement with the
Portfolio may arrange for broker-dealers whose customers or clients are
Portfolio shareholders (each a "Broker-Dealer") to enter into agreements with
you 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 our Board of Directors to be entered into by the Distributor and
the Broker-Dealers. It is recognized that we shall have no
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obligation or liability to you, them or any Broker-Dealer for any such payments
under the agreements with Broker-Dealers. Our obligation is solely to make
payments to the Advisor under the Advisory Agreement and the Shareholder
Servicing Agreement and to the Distributor under the Shareholder Servicing
Agreement. All sales of our shares effected through you will be made in
compliance with all applicable federal securities laws and regulations and the
Constitution, rules and regulations of the National Association of Securities
Dealers, Inc. ("NASD").
4. We reserve the right to suspend the offering of shares of our
common stock at any time, in the absolute discretion of our Board of Directors,
and upon notice of such suspension you shall cease to offer shares of our common
stock hereunder.
5. Both of us will cooperate with each other in taking such action as
may be necessary to qualify shares of our common stock for sale under the
securities laws of such states as we may designate, provided, that you shall not
be required to register as a broker-dealer or file a consent to service of
process in any such state where you are not now so registered. Pursuant to an
Advisory Agreement dated August 8, 1996, between us and the Advisor, we will pay
all fees and expenses of registering shares of all series of our common stock
under the 1933 Act and of qualification of shares of all series of our common
stock, and to the extent necessary, our qualification under applicable state
securities laws. You will pay all expenses relating to your broker-dealer
qualification.
6. We represent to you that our Registration Statement and Prospectus
have been carefully prepared to date in conformity with the requirements of the
1933 Act and the 1940 Act and the rules and regulations of the Securities and
Exchange Commission (the "SEC") thereunder. We represent and warrant to you, as
of the date hereof, that our Registration Statement and Prospectus contain all
statements required to be stated therein in accordance with the 1933 Act and the
1940 Act and the SEC's rules and regulations thereunder; that all statements of
fact contained therein are or will be true and correct at the time indicated or
the effective date, as the case may be; and that neither our Registration
Statement nor our Prospectus, when they shall become effective or be authorized
for use, will include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading to a purchaser of shares of our common stock. We will
from time to time file such amendment or amendments to our Registration
Statement and Prospectus as, in the light of future development, shall, in the
opinion of our counsel, be necessary in order to have our Registration Statement
and Prospectus at all times contain all material facts required to be stated
therein or necessary to make any statements therein
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not misleading to a purchaser of shares of our common stock. If we shall not
file such amendment or amendments within fifteen days after our receipt of a
written request from you to do so, you may, at your option, terminate this
agreement immediately. We will not file any amendment to our Registration
Statement or Prospectus without giving you reasonable notice thereof in advance;
provided, however, that nothing in this agreement shall in any way limit our
right to file such amendments to our Registration Statement or Prospectus, of
whatever character, as we may deem advisable, such right being in all respects
absolute and unconditional. We represent and warrant to you that any amendment
to our Registration Statement or Prospectus hereafter filed by us will be
carefully prepared in conformity within the requirements of the 1933 Act and the
1940 Act and the SEC's rules and regulations thereunder and will, when it
becomes effective, contain all statements required to be stated therein in
accordance with the 1933 Act and the 1940 Act and the SEC's rules and
regulations thereunder; that all statements of fact contained therein will, when
the same shall become effective, be true and correct; and that no such
amendment, when it becomes effective, will include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser of our
shares.
7. We agree to indemnify, defend and hold you, and any person who
controls you within the meaning of Section 15 of the 1933 Act, free and harmless
from and against any and all claims, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which you or any such controlling
person may incur, under the 1933 Act or the 1940 Act, or under common law or
otherwise, arising out of or based upon any alleged untrue statement of a
material fact contained in our Registration Statement or Prospectus in effect
from time to time or arising out of or based upon any alleged omission to state
a material fact required to be stated in either of them or necessary to make the
statements in either of them not misleading; provided, however, that in no event
shall anything herein contained be so construed as to protect you against any
liability to us or our security holders to which you would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of your duties, or by reason of your reckless disregard of your
obligations and duties under this agreement. Our agreement to indemnify you and
any such controlling person is expressly conditioned upon our being notified of
any action brought against you or any such controlling person, such notification
to be given by letter or by telegram addressed to us at our principal office and
sent to us by the person against whom such action is brought within ten days
after the summons or other first legal process shall have been served. The
failure so to notify us of any such action shall not
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relieve us from any liability which we may have to the person against whom such
action is brought other than on account of our indemnity agreement contained in
this paragraph 7. We will be entitled to assume the defense of any suit brought
to enforce any such claim, and to retain counsel of good standing chosen by us
and approved by you. In the event we do elect to assume the defense of any such
suit and retain counsel of good standing approved by you, the defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by any of them; but in case we do not elect to assume the
defense of any such suit, or in case you, in good faith, do not approve of
counsel chosen by us, we will reimburse you or the controlling person or persons
named as defendant or defendants in such suit, for the fees and expenses of any
counsel retained by you or them. Our indemnification agreement contained in this
paragraph 7 and our representations and warranties in this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of you or any controlling person and shall survive the sale of any shares
of our common stock made pursuant to subscriptions obtained by you. This
agreement of indemnity will inure exclusively to your benefit, to the benefit of
your successors and assigns, and to the benefit of any of your controlling
persons and their successors and assigns. We agree promptly to notify you of the
commencement of any litigation or proceeding against us in connection with the
issue and sale of any shares of our common stock.
8. You agree to indemnify, defend and hold us, our several officers
and directors, and any person who controls us within the meaning of Section 15
of the 1933 Act, free and harmless from and against any and all claims, demands,
liabilities, and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any reasonable counsel fees incurred in
connection therewith) which we, our officers or directors, or any such
controlling person may incur under the 1933 Act or under common law or
otherwise, but only to the extent that such liability or expense incurred by us,
our officers or directors or such controlling person shall arise out of or be
based upon any alleged untrue statement of a material fact contained in
information furnished in writing by you to us for use in our Registration
Statement or Prospectus as in effect from time to time, or shall arise out of or
be based upon any alleged omission to state a material fact in connection with
such information required to be stated in the Registration Statement or
Prospectus or necessary to make such information not misleading. Your agreement
to indemnify us, our officers and directors, and any such controlling person is
expressly conditioned upon your being notified of any action brought against us,
our officers or directors or any such controlling person, such notification to
be given by letter or telegram addressed to you at your principal office and
sent to you by the person against whom such action is brought, within ten days
after
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the summons or other first legal process shall have been served. You shall have
a right to control the defense of such action, with counsel of your own
choosing, satisfactory to us, if such action is based solely upon such alleged
misstatement or omission on your part, and in any other event you and we, our
officers or directors or such controlling person shall each have the right to
participate in the defense or preparation of the defense of any such action. The
failure so to notify you of any such action shall not relieve you from any
liability which you may have to us, to our officers or directors, or to such
controlling person other than on account of your indemnity agreement contained
in this paragraph 8.
9. We agree to advise you immediately:
(a) of any request by the SEC for amendments to our Registration
Statement or Prospectus or for additional information,
(b) of the issuance by the SEC of any stop order suspending the
effectiveness of our Registration Statement or Prospectus or the initiation of
any proceedings for that purpose,
(c) of the happening of any material event which makes untrue any
statement made in our Registration Statement or Prospectus or which requires the
making of a change in either of them in order to make the statements therein not
misleading, and
(d) of all action of the SEC with respect to any amendments to
our Registration Statement or Prospectus.
10. This Agreement will become effective on the date hereof and will
remain in effect until August 31, 2001 and thereafter for successive twelve-
month periods (computed from each September 1), provided that such continuation
is specifically approved at least annually by vote of our Board of Directors and
of a majority of those of our directors who are not interested persons (as
defined in the 0000 Xxx) and have no direct or indirect financial interest in
the operation of the Plan or in any agreements related to the Plan, cast in
person at a meeting called for the purpose of voting on this Agreement. This
Agreement may be terminated at any time, without the payment of any penalty, by
vote of a majority of our entire Board of Directors and by a vote of a majority
of our Directors who are not interested persons (as defined in the 0000 Xxx) and
who have no direct or indirect financial interest in the operation of the Plan
or in any agreement related to the Plan, or by vote of a majority of our
outstanding voting securities, as defined in the Act, on sixty days' written
notice to you, or by you on sixty days' written notice to us.
11. This Agreement may not be transferred, assigned, sold or in any
manner hypothecated or pledged by you and this
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Agreement shall terminate automatically in the event of any such transfer,
assignment, sale, hypothecation or pledge by you. The terms "transfer",
"assignment" and "sale" as used in this paragraph shall have the meanings
ascribed thereto by governing law and in applicable rules or regulations of the
SEC thereunder.
12. Except to the extent necessary to perform your obligations
hereunder, nothing herein shall be deemed to limit or restrict your right, or
the right of any of your officers, directors or employees who may also be a
director, officer or employee of ours, or of a person affiliated with us, as
defined in the 1940 Act, to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of a
similar or dissimilar nature, or to render services of any kind to another
corporation, firm, individual or association.
If the foregoing is in accordance with your understanding, will you
kindly so indicate by signing and returning to us the enclosed copy hereof.
Very truly yours,
OLD WESTBURY FUNDS, INC.
Old Westbury Capital Opportunity
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Accepted:
September 1, 2000
BISYS Fund Services Limited Partnership
D/B/A BISYS Fund Services
By: /s/ Xxxx X. Xxxxxx
--------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
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