Hibernia Funds Distributor's Contract
Exhibit e(vii) under Form N-1A
Exhibit 1 under Item 601/Reg. S-K
DISTRIBUTOR'S CONTRACT
This contract is made this 30th day of December, 2002, by and
between Edgewood Services, Inc. ("Edgewood"), a New York corporation,
and Hibernia Funds ("Investment Company"), a Massachusetts business
trust having its principal office and place of business at 0000
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000.
In consideration of the mutual covenants hereinafter contained, it
is hereby agreed by and between the parties hereto as follows:
1. The Investment Company hereby appoints Edgewood as its agent to
sell and distribute shares of the Investment Company which may be
offered in one or more portfolios (the "Funds") 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 Investment
Company. (See Amd. dated 3/10/03) Edgewood hereby accepts such
appointment and agrees to provide such other services for the
Investment Company, if any, and accept such compensation from the
Investment Company, if any, as set forth in the applicable
exhibits to this Agreement.
2. The sale of any Shares may be suspended without prior notice
whenever in the judgment of the Investment Company it is in its
best interest to do so.
3. Neither Edgewood nor any other person is authorized by the
Investment Company 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 by the Investment Company. 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 Investment Company. No person or dealer,
other than Edgewood, is authorized to act as agent for the
Investment Company for any purpose. Edgewood agrees that in
offering or selling Shares as agent of the Investment Company, 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 Conduct
Rules. Edgewood will submit to the Investment Company copies of
all sales literature before using the same and will not use such
sales literature if disapproved by the Investment Company.
4. This Agreement is effective with respect to each Fund and each
Class, as applicable, as of the date of execution of the
applicable exhibit and shall continue in effect with respect to
each Fund or Class presently set forth on an exhibit and any
subsequent Funds or Classes added pursuant to an exhibit during
the initial term of this Agreement for seven months from the date
set forth above, and thereafter for successive periods of one
year if such continuance is approved at least annually by the
Trustees of the Investment Company including a majority of the
members of the Board of Trustees of the Investment Company who
are not "interested persons" (as that term is defined by the
Investment Company Act of 1940 ("1940 Act")) of the Investment
Company and have no direct or indirect financial interest in the
operation of any Distribution Plan relating to the Investment
Company or in any related documents to such Plan ("Independent
Trustees") cast in person at a meeting called for that purpose.
If a Fund or Class is added after the first annual approval by
the Trustees as described above, this Agreement will be effective
as to that Fund or Class upon execution of the applicable exhibit
and will continue in effect until the next annual approval of
this Agreement by the Trustees 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 Independent Trustees 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 Investment Company.
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 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 Investment Company 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 Trustees of the Investment Company, including
a majority of the Independent Trustees of the Investment Company
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 Investment
Company 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 ("1933 Act") and
Section 20 of the Securities and Exchange Act of 1934 ("1934
Act") 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,
Prospectuses or SAIs (as they may be amended or supplemented
from time to time), 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
Investment Company about Edgewood by or on behalf of Edgewood
expressly for use in the Registration Statement, Prospectuses
or SAIs, or any amendment or supplement thereto.
If any action is brought against Edgewood or any controlling
person thereof with respect to which indemnity may be sought
against the Investment Company pursuant to the foregoing
paragraph, Edgewood shall promptly notify the Investment
Company in writing of the institution of such action and the
Investment Company shall assume the defense of such action,
including the employment of counsel selected by the Investment
Company 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 Investment Company in
connection with the defense of such action or the Investment
Company 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 Investment Company. Despite
anything to the contrary in this paragraph, the Investment
Company shall not be liable for any settlement of any such
claim of action effected without its written consent. The
Investment Company agrees promptly to notify Edgewood of the
commencement of any litigation or proceedings against the
Investment Company or any of its officers or Trustees or
controlling persons in connection with the issue and sale of
Shares or in connection with the Registration Statement, any
Prospectuses and SAIs, or any amendment or supplement thereto.
(b) Subject to the conditions set forth below, Edgewood agrees to
indemnify and hold harmless the Investment Company, each of
its Trustees, each of its officers who have signed the
Registration Statement and each other person, if any, who
controls the Investment Company within the meaning of
Section 15 of the 1933 Act and Section 20 of the 1934 Act,
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, Prospectuses or SAIs
(as they may be amended or supplemented from time to time), 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, provided that such
statement or omission was made in reliance upon and in
conformity with written information furnished to the
Investment Company about Edgewood by or on behalf of Edgewood
expressly for use in the Registration Statement, Prospectuses
or SAIs, or any amendment or supplement thereto.
If any action is brought against the Investment Company, any
controlling person thereof, or any other person so
indemnified, with respect to which indemnity may be sought
against Edgewood pursuant to the foregoing paragraph, the
Investment Company shall promptly notify Edgewood in writing
of the institution of such action and Edgewood shall assume
the defense of such action, including the employment of
counsel selected by Edgewood and payment of expenses. The
Investment Company, any such controlling person thereof or any
other person so indemnified, 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 the Investment
Company or such persons unless the employment of such counsel
shall have been authorized in writing by Edgewood in
connection with the defense of such action or Edgewood 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 Edgewood. Despite anything to the contrary
in this paragraph, Edgewood shall not be liable for any
settlement of any such claim or for any other action effected
without its written consent. Edgewood agrees promptly to
notify the Investment Company of the commencement of any
litigation or proceedings against Edgewood or any of its
controlling persons in connection with the issue and sale of
Shares or in connection with the Registration Statement,
Prospectuses or SAIs.
(c) Nothing herein contained shall be deemed to protect any person
against liability to the Investment Company 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 1940 Act for Trustees, officers,
Edgewood and controlling persons of the Investment Company by
the Trustees pursuant to this Agreement, the Investment
Company 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 Investment Company
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
Independent Trustees, 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 Investment Company 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, Trustees, Edgewood or
controlling person of the Investment Company 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 Investment Company is insured against
losses arising by reason of any lawful advances; or (iii) a
majority of a quorum of non-party Independent Trustees 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.
11. If at any time the Shares of any Fund are offered in two or
more Classes, Edgewood agrees to assist in adopting a written
plan pursuant to Rule 18f-3 under the 1940 Act.
12. This Agreement will become binding on the parties hereto
upon the execution of the attached exhibits to the Agreement.
13. Edgewood is hereby expressly put on notice of the limitation of
liability as set forth in the Investment Company's Declaration of
Trust and agrees that the obligations assumed by the Investment
Company pursuant to this Agreement shall be limited in any case
to the Investment Company and its assets, and Edgewood shall not
seek satisfaction of any such obligation from the shareholders of
the Investment Company, the Trustees, officers, employees or
agents of the Investment Company, or any of them.
14. Edgewood or its affiliate will review and file all sales
literature (advertisements, brochures and shareholder
communications) for the Investment Company in accordance with
rules and regulations of the National Association of Securities
Dealers, Inc.
15. Edgewood agrees to maintain the security and confidentiality of
nonpublic personal information ("NPI") of Fund customers and
consumers, as those terms are defined in Xxxxxxxxxx X-X, 00 XXX
Part 248. Edgewood agrees to use and redisclose such NPI for the
limited purposes of processing and servicing transactions; for
specified law enforcement and miscellaneous purposes; and to
service providers or in connection with joint marketing
arrangements directed by the Funds, in each instance in
furtherance of fulfilling Edgewood's obligations under this
contract and consistent with the exceptions provided in 17 CFR
Sections 248.14, 248.15 and 248.13, respectively.
EDGEWOOD SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
HIBERNIA FUNDS
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Exhibit A
to the
Distributor's Contract
HIBERNIA FUNDS
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FUNDS CLASS
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Hibernia Capital Appreciation Fund Class A Shares
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Hibernia Cash Reserves Fund Class A Shares
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Hibernia Louisiana Municipal Income Fund Class A Shares
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Hibernia Mid-Cap Equity Fund Class A Shares
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Hibernia Total Return Fund
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Hibernia U.S. Government Income Fund
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Hibernia U.S. Treasury Money Market Fund
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The following provisions are hereby incorporated and made part of
the Distributor's Contract dated December 30, 2002, between Hibernia
Funds ("Investment Company") and Edgewood Services, Inc. ("Edgewood")
with respect to the Class of shares set forth above.
1. The Investment Company hereby appoints Edgewood to engage in
activities principally intended to result in the sale of shares
of the above-listed Class ("Shares"). Pursuant to this
appointment, Edgewood is authorized to select a group of
financial institutions ("Financial Institutions") to sell Shares
at the current offering price thereof as described and set forth
in the respective prospectuses of the Investment Company. (See
Amd. dated 3/10/03)
2. During the term of this Agreement, the Investment Company will
pay Edgewood for services pursuant to this Agreement, a monthly
fee computed at the annual rate of 0.25% of the average
aggregate net asset value of Shares held during the month. For
the month in which this Agreement becomes effective or
terminates, there shall be an appropriate proration of any fee
payable on the basis of the number of days that the Agreement is
in effect during the month.
3. Edgewood may from time-to-time and for such periods as it deems
appropriate reduce its compensation to the extent any Class'
expenses exceed such lower expense limitation as Edgewood may,
by notice to the Investment Company, voluntarily declare to be
effective.
4. Edgewood will enter into separate written agreements with
various Financial Institutions to provide certain of the
services set forth in Paragraph 1 herein. Edgewood, in its sole
discretion, may pay Financial Institutions a periodic fee in
respect of Shares owned from time to time by their clients or
customers. The schedules of such fees and the basis upon which
such fees will be paid shall be determined from time to time by
Edgewood in its sole discretion. (See Amd. dated 3/10/03)
5. Edgewood will prepare reports to the Board of Trustees of the
Investment Company on a quarterly basis showing amounts expended
hereunder including amounts paid to Financial Institutions and
the purpose for such expenditures.
In consideration of the mutual covenants set forth in the
Distributor's Contract dated December 30, 2002, between the Investment
Company and Edgewood, the Investment Company executes and delivers this
Exhibit on behalf of the Funds, and with respect to the Share Classes
thereof, first set forth in this Exhibit.
Witness the due execution hereof this 30h day of December, 2002
HIBERNIA FUNDS EDGEWOOD SERVICES, INC.
By:/s/ Xxxxxx X. Xxxxxxx By:/s Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President Title: Vice President
Exhibit B
to the
Distributor's Contract
HIBERNIA FUNDS
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FUNDS CLASS
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Hibernia Capital Appreciation Fund Class B Shares
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Hibernia Cash Reserves Fund Class B Shares
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Hibernia Louisiana Municipal Income Fund Class B Shares
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Hibernia Mid-Cap Equity Fund Class B Shares
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The following provisions are hereby incorporated and made part of
the Distributor's Contract dated December 30, 2002, between Hibernia
Funds ("Investment Company") and Edgewood Services, Inc. ("Edgewood")
with respect to the Class of shares set forth above.
1. The Investment Company hereby appoints Edgewood to engage in
activities principally intended to result in the sale of shares
of the above-listed Class ("Shares"). Pursuant to this
appointment, Edgewood is authorized to select a group of
financial institutions ("Financial Institutions") to sell Shares
at the current offering price thereof as described and set forth
in the respective prospectuses of the Investment Company. (See
Amd. dated 3/10/03)
2. During the term of this Agreement, the Investment Company will
pay Edgewood for services pursuant to this Agreement, a monthly
fee computed at the annual rate of 0.75% of the average
aggregate net asset value of Shares held during the month. For
the month in which this Agreement becomes effective or
terminates, there shall be an appropriate proration of any fee
payable on the basis of the number of days that the Agreement is
in effect during the month.
3. Edgewood may from time-to-time and for such periods as it deems
appropriate reduce its compensation to the extent any Class'
expenses exceed such lower expense limitation as Edgewood may,
by notice to the Investment Company, voluntarily declare to be
effective.
4. Edgewood will enter into separate written agreements with
various Financial Institutions to provide certain of the
services set forth in Paragraph 1 herein. Edgewood, in its sole
discretion, may pay Financial Institutions a periodic fee in
respect of Shares owned from time to time by their clients or
customers. The schedules of such fees and the basis upon which
such fees will be paid shall be determined from time to time by
Edgewood in its sole discretion. (See Amd. dated 3/10/03)
5. Edgewood will prepare reports to the Board of Trustees of the
Investment Company on a quarterly basis showing amounts expended
hereunder including amounts paid to Financial Institutions and
the purpose for such expenditures.
In consideration of the mutual covenants set forth in the
Distributor's Contract dated December 30, 2002, between the Investment
Company and Edgewood, the Investment Company executes and delivers this
Exhibit on behalf of the Funds, and with respect to the Share Classes
thereof, first set forth in this Exhibit.
Witness the due execution hereof this 30th day of December, 2002
HIBERNIA FUNDS EDGEWOOD SERVICES, INC.
By:/s/ Xxxxxx X. Xxxxxxx By:/s Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President Title: Vice President
AMENDMENT TO DISTRIBUTOR'S CONTRACT
This Amendment to Distributor's Contract (the "Amendment") is made
this 10th day of March, 2003, by and between Edgewood Services, Inc.
("Edgewood"), a New York corporation, and Hibernia Funds ("Investment
Company"), a Massachusetts business trust having its principal office
and place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000.
WHEREAS, Edgewood and the Investment Company are parties to that
certain Distributor's Contract between Edgewood and the Investment
Company dated as of December 30, 2002 (the "Distributor's Contract");
and
WHEREAS, Edgewood and the Investment Company wish to expressly
confirm that amounts from the Investment Company's Rule 12b-1 Plan that
are paid to Edgewood under the Distributor's Contract may be used by
Edgewood to compensate entities that render administrative support
services to the portfolios of the Investment Company, and the
shareholders of each such portfolio.
NOW THEREFORE, in consideration of the mutual covenants hereinafter
contained, it is hereby agreed by and between the parties hereto as
follows:
1. Section 1 of the Distributor's Contract is hereby amended by
adding the following provision as the penultimate sentence
thereof:
The Investment Company hereby also appoints Edgewood as its
agent to contract for or cause one of its affiliates to
contract for, the provision of account administrative services
to beneficial owners of Shares of the Funds under and pursuant
to a written agreement substantially in the form of the Mutual
Funds Account Administration Agreement attached to this
Amendment.
2. Exhibit A to the Distributor's Contract is hereby amended as
follows:
(a) Section 1 of Exhibit A is hereby amended by adding the
following provision to the end thereof:
The Investment Company also hereby appoints Edgewood to
contract for or cause one of its affiliates to contract
for, the provision of account administrative services to
beneficial owners of Shares of the Funds with Financial
Institutions.
(b) Section 4 is hereby amended by adding the clause ",or
cause its affiliate to enter into," between the fourth and
fifth words thereof.
3. Exhibit B to the Distributor's Contract is hereby amended
as follows:
(a) Section 1 of Exhibit B is hereby amended by adding the
following provision to the end thereof:
The Investment Company also hereby appoints Edgewood to
contract for or cause one of its affiliates to contract
for, the provision of account administrative services to
beneficial owners of Shares of the Funds with Financial
Institutions.
(b) Section 4 is hereby amended by adding the clause ",or
cause its affiliate to enter into," between the fourth and
fifth words thereof.
4. Except as expressly amended hereby, the Distributor's Contract
shall remain in full force and effect in accordance with its
terms.
EDGEWOOD SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
HIBERNIA FUNDS
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Amendment to
Distributor's Contract
between
Hibernia Funds
and
Edgewood Services, Inc.
This Amendment to the Distributor's Contract ("Agreement")
between Hibernia Funds ("Funds") and Edgewood Services, Inc.
("Distributor") is made and entered into as of the 9th day of September,
2003.
WHEREAS, the Funds have entered into the Agreement with the
Distributor, under and pursuant to which the Distributor is the
principal underwriter of the shares of beneficial interest in the Funds;
WHEREAS, the Securities and Exchange Commission and the United
States Treasury Department (the "Treasury Department") have adopted a
series of rules and regulations arising out of the USA PATRIOT Act
(together with such rules and regulations, the "Applicable Law"),
specifically requiring certain financial institutions, including the
Funds and the Distributor, to establish a written anti-money laundering
and customer identification program (a "Program");
WHEREAS, each of the Funds and the Distributor have established a
Program and wish to amend the Agreement to reflect the existence of
such Programs and confirm the allocation of responsibility for the
performance of certain required functions;
NOW, THEREFORE, the parties intending to be legally bound agree
as follows:
1. The Funds and the Distributor each represent, warrant and
certify that they have established, and covenant that at all times
during the existence of the Agreement they will maintain, a Program in
compliance with Applicable Law.
2. The Funds represent and warrant that the Funds have entered
into an amendment to the agreement with the transfer agent of the
Funds, pursuant to which the transfer agent has agreed to perform all
activities, including the establishment and verification of customer
identities as required by Applicable Law or its Program, with respect
to all customers on whose behalf Distributor maintains an account with
the Funds.
3. Distributor covenants that it will enter into appropriate
amendments to selling or other agreements with financial institutions
that establish and maintain accounts with the Funds on behalf of their
customers, pursuant to which such financial institutions covenant to
establish and maintain a Program with respect to those customers in
accordance with Applicable Law.
In all other respects, the Agreement first referenced above shall
remain in full force and effect.
WITNESS the due execution hereof this 9th day of September, 2003.
HIBERNIA FUNDS
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
edgewood services, inc.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
