Exhibit 6
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of August 21, 1986 and amended and restated
as of August 19, 1994 by and between LANDMARK FUNDS I, a Massachusetts business
trust (the "Trust"), and THE LANDMARK FUNDS BROKER-DEALER SERVICES, INC., a
Massachusetts corporation ("LFBDS" or the "Distributor") with respect to Shares
of Beneficial Interest to be designated "Class A".
WITNESSETH:
WHEREAS, the Trust is engaged in business as an open-end investment company
registered under the Investment Company Act of 1940 (collectively with the rules
and regulations promulgated thereunder, the "1940 Act");
WHEREAS, the Shares of Beneficial Interest of the Trust are divided into one
or more separate series (together with any series which may in the future be
established, the "Funds");
WHEREAS, the Board of Trustees of the Trust has adopted an Amended and
Restated Distribution Plan, dated as of August 19, 1994 (the "Distribution
Plan"), which is incorporated herein by reference and pursuant to which the
Trust desires to enter into this Distribution Agreement; and
WHEREAS, the Trust wishes to engage LFBDS to provide certain services with
respect to the distribution of shares designated Class A Shares (the "Shares")
of each Fund, and LFBDS is willing to provide such services to the Trust on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. The Trust grants to the Distributor the right, as agent of the Trust,
to sell Shares of each Fund upon the terms hereinbelow set forth during the
term of this Agreement. While this Agreement is in force, the Distributor
agrees to use its best efforts to find purchasers for Shares of each Fund.
The Distributor shall have the right, as agent of the Trust, to order
from the Trust the Shares needed, but not more than the Shares needed
(except for clerical errors and errors of transmission), to fill
unconditional orders for Shares of each Fund placed with the Distributor by
any dealer, all such orders to be made in the manner set forth in the
Trust's then-current prospectus (the "Prospectus") and then-current
statement of additional information (the "Statement of Additional
Information") relating to such Shares. The price which shall be paid to the
Trust for the Shares of each Fund so purchased shall be the net asset value
per Share as determined in accordance with the provisions of the Trust's
Declaration of Trust and By-Laws, as each may from time to time be amended
(collectively, the "Governing Instruments") plus the amount of the
applicable sales charge, as provided in the Trust's currently effective
prospectus relating to the Trust or such Fund. The Distributor shall notify
the Custodian of the Trust, at the end of each business day, or as soon
thereafter as the orders placed with the Distributor have been compiled, of
the number of Shares of each Fund and the prices thereof which have been
ordered through the Distributor since the end of the previous business day.
The right granted to the Distributor to place orders for Shares with the
Trust shall be exclusive, except that this exclusive right shall not apply
to Shares issued in the event that an investment company (whether a
regulated or private investment company or a personal holding company) is
merged with and into or consolidated with the Trust or any Fund or in the
event that the Trust or any Fund acquires, by purchase or otherwise, all (or
substantially all) the assets or the outstanding shares of any such company;
nor shall it apply to Shares issued by the Trust as a dividend or stock
split. The exclusive right to place orders for Shares granted to the
Distributor may be waived by the Distributor by notice to the Trust in
writing, either unconditionally or subject to such conditions and
limitations as may be set forth in such notice to the Trust. The Trust
hereby acknowledges that the Distributor may render distribution and other
services to other parties, including other investment companies. In
connection with its duties hereunder, the Distributor shall also arrange for
computation of performance statistics with respect to each Fund and arrange
for publication of current price information in newspapers and other
publications.
2. The Shares may be sold by the Distributor on behalf of the Trust to
or through any dealer having a sales agreement with the Distributor upon the
following terms and conditions:
The public offering price of the Shares, including the Shares of each
Fund, i.e., the price per Share at which the Distributor or dealer
purchasing Shares through the Distributor may sell shares to the public,
shall be the net asset value of such Shares plus the amount of the
applicable sales charge, as provided in the Trust's currently effective
Prospectus relating to the Trust or such Fund. The difference between the
public offering price and net asset value (which amount shall not be in
excess of that set forth in the Prospectus) may be retained by the
Distributor or all or any part thereof may be paid by the Distributor to a
broker-dealer registered as such under the Securities Exchange Act of 1934
in accordance with the Prospectus and the Distribution Plan.
The net asset value of Shares of each Fund shall be determined by the
Trust, or by an agent of the Trust, as of the close of trading on the New
York Stock Exchange on each day on which the New York Stock Exchange is open
for trading (and on such other days as the Trustees deem necessary in order
to comply with Rule 22c-1 under the 1940 Act), in accordance with the method
established pursuant to the Governing Instruments. The Trust shall have the
right to suspend the sale of Shares of any Fund if, because of some
extraordinary condition, the New York Stock Exchange shall be closed, or if
conditions existing during the hours when the Exchange is open render such
action advisable or for any other reason deemed adequate by the Trust.
3. The Trust agrees that it will, from time to time, but subject to the
necessary approval, if any, of its shareholders, take all necessary action
to register such number of Shares of each Fund under the Securities Act of
1933, as amended (the "1933 Act"), as the Distributor may reasonably be
expected to sell.
The Distributor shall be an independent contractor and neither the
Distributor nor any of its Directors, officers or employees as such, is or
shall be an employee of the Trust. It is understood that Trustees, officers
and shareholders of the Trust are or may become interested in the
Distributor, as Directors, officers, employees, or otherwise and that
Directors, officers and employees of the Distributor are or may become
similarly interested in the Trust and that the Distributor may be or become
interested in the Trust as a shareholder or otherwise. The Distributor is
responsible for its own conduct and the employment, control and conduct (but
only with respect to the duties and obligations of the Distributor
hereunder) of its agents and employees and for any injury to any of 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.
4. The Distributor covenants and agrees that, in selling Shares, it will
use its best efforts in all respects duly to conform with the requirements
of all state and federal laws and the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. relating to the sale of Shares, and
will indemnify and hold harmless the Trust and each of its Trustees and
officers and each person, if any, who controls the Trust within the meaning
of Section 15 of the 1933 Act (the "Indemnified Parties") against all
losses, liabilities, damages or expenses (including the reasonable cost of
investigating or defending any alleged loss, liability, damages, claim or
expense and reasonable counsel fees incurred in connection therewith)
arising from any claim, demand, action or suit (collectively, "Claims"),
arising by reason of any person's acquiring any of the Shares through the
Distributor, which may be based upon the 1933 Act or any other statute or
common law, on account of any wrongful act of the Distributor or any of its
employees (including any failure to conform with any requirement of any
state or federal law or the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. relating to the sale of Shares) or
on the ground that the registration statement under the 1933 Act, including
all amendments thereto (the "Registration Statement"), or Prospectus or
previous prospectus or Statement of Additional Information or previous
statement of additional information, with respect to such Shares, includes
or included an untrue statement of a material fact or omits or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, if and only if any such act,
statement or omission was made in reliance upon information furnished by the
Distributor to the Trust; provided, however, that in no case (i) is the
indemnity of the Distributor in favor of any Indemnified Party to be deemed
to protect any such Indemnified Party against liability to which such
Indemnified Party would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its or his
duties or by reason of its or his reckless disregard of its or his
obligations and duties under this Agreement, or (ii) is the Distributor to
be liable under its indemnity agreement contained in this Section 4 with
respect to any Claim made against any Indemnified Party unless such
Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the Claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Distributor of any such Claim shall not relieve it from any liability which
it may have to any Indemnified Party otherwise than on account of its
indemnity agreement contained in this Section 4. The Distributor shall be
entitled to participate, at its own expense, in the defense, or, if it so
elects, to assume the defense, of any suit brought to enforce any such
Claim, and, if the Distributor elects to assume the defense, such defense
shall be conducted by counsel chosen by it and satisfactory to each
Indemnified Party. In the event that the Distributor elects to assume the
defense of any such suit and retain such counsel, each Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it
but, in case the Distributor does not elect to assume the defense of any
such suit, it shall reimburse the Indemnified Parties for the reasonable
fees and expenses of any counsel retained by them. Except with the prior
written consent of the Distributor, no Indemnified Party shall confess any
Claim or make any compromise in any case in which the Distributor will be
asked to indemnify such Indemnified Party. The Distributor agrees promptly
to notify the Trust of the commencement of any litigation or proceeding
against it in connection with the issuance and sale of any of the Shares.
Neither the Distributor nor any dealer nor any other person is
authorized to give any information or to make any representation on behalf
of the Trust in connection with the sale of Shares of any Fund, other than
those contained in the Registration Statement or Prospectus or Statement of
Additional Information relating to such Fund.
5. The Trust will pay, or cause to be paid--
(i) all costs and expenses of the Trust, including fees and
disbursements of its counsel, in connection with the preparation and
filing of the Registration Statement, Prospectus and Statement of
Additional Information with respect to Shares of each Fund, and
preparing and mailing to shareholders Prospectuses, Statements of
Additional Information, statements and confirmations and periodic
reports (including the expense of setting in type the Registration
Statement, Prospectus and Statement of Additional Information or any
periodic report with respect to Shares of each Fund);
(ii) the cost of preparing temporary or permanent certificates for
Shares;
(iii) the cost and expenses of delivering to the Distributor at its
office in Boston, Massachusetts all Shares purchased through it as agent
hereunder;
(iv) a distribution fee periodically at an annual rate not to exceed
0.15% of the portion of the average daily net assets of such Fund that
is represented by Shares for its then-current fiscal year, subject to
the Distribution Plan, and, under certain circumstances, the Distributor
may impose certain deferred sales charges in connection with the
repurchase of Shares of each Fund and the Distributor may retain (or
receive from each Fund, as the case may be) all such deferred sales
charges;
(v) all fees and disbursements of the Transfer Agent and Custodian
with respect to each Fund, subject to the Trust's Administrative
Services Plan;
(vi) a fee to each Shareholder Servicing Agent (pursuant to a
shareholder servicing agreement with each such Agent), subject to the
Trust's Administrative Services Plan;
(vii) a fee to the Administrator of the Trust (pursuant to the
Administrative Services Agreement), subject to the Trust's
Administrative Services Plan; and
(viii) a fee to the investment adviser of each Fund, if any,
(pursuant to the Investment Advisory Agreement with any such Adviser).
The Distributor agrees that, with respect to the sale of Shares of each
Fund, after the Prospectus and Statement of Additional Information and
periodic reports with respect to such Fund have been set in type, it will
bear the expense (other than the cost of mailing to shareholders of the
Trust) of printing and distributing any copies thereof which are to be used
in connection with the offering or sale of Shares of such Fund to any dealer
or prospective investor. The Distributor further agrees that it will bear
the expenses of preparing, printing and distributing any other literature
used by the Distributor or furnished by it for use by any dealer in
connection with the offering of the Shares of such Fund for sale to the
public and any expense of sending confirmations and statements to any dealer
having a sales agreement with the Distributor. The Distributor will also
bear the cost of any compensation paid to dealers in connection with the
sale of Shares of such Fund. The Distributor also agrees to bear the
expenses of qualification of Shares of such Fund for sale in the various
states and, if necessary or advisable in connection therewith, of qualifying
the Trust as a broker or dealer in any such state.
6. If, at any time during the term of this Agreement, the Trust shall
deem it necessary or advisable in the best interests of the Trust that any
amendment of this Agreement be made in order to comply with any
recommendation or requirement of the Securities and Exchange Commission or
other governmental authority or to obtain any advantage under Massachusetts
or federal tax laws, it shall notify the Distributor of the form of
amendment which it deems necessary or advisable and the reasons therefor. If
the Distributor declines to assent to such amendment (after a reasonable
time), the Trust may terminate this Agreement forthwith by written notice to
the Distributor without payment of any penalty. If, at any time during the
term of this Agreement, the Distributor requests the Trust to make any
change in its Governing Instruments or in its methods of doing business
which are necessary in order to comply with any requirement of federal law
or regulations of the Securities and Exchange Commission or of a national
securities association of which the Distributor is or may become a member,
relating to the sale of Shares, and the Trust fails (after a reasonable
time) to make any such change as requested, the Distributor may terminate
this Agreement forthwith by written notice to the Trust without payment of
any penalty.
7. The Distributor agrees that it will not take any long or short
position in the Shares of any Fund and that, so far as it can control the
situation, it will prevent any of its Directors or officers from taking any
long or short position in the Shares of such Fund, except as permitted by
the Governing Instruments.
8. This Agreement shall become effective upon its execution and shall
continue in force indefinitely unless its continuance thereafter is
specifically approved at least annually (i) by the vote of a majority of the
Trustees of the Trust who are not "interested persons" of the Trust or of
the Distributor at a meeting specifically called for the purpose of voting
on such approval, and (ii) by the Board of Trustees of the Trust, or by the
"vote of a majority of the outstanding voting securities" of the Shares of
each Fund as to which this Agreement is to continue. The aforesaid
requirement that continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with the 1940 Act.
This Agreement may be terminated as to any Fund at any time by either
party without payment of any penalty on not more than 60 days' nor less than
30 days' written notice to the other party.
This Agreement shall automatically terminate in the event of its
assignment.
9. LFBDS may subcontract for the performance of LFBDS' obligations
hereunder with any one or more persons; provided, however, that LFBDS shall
not enter into any such subcontract unless the Trustees of the Trust shall
have found the subcontracting party to be qualified to perform the
obligations sought to be subcontracted; and provided, further, that, unless
the Trust otherwise expressly agrees in writing, LFBDS shall be as fully
responsible to the Trust for the acts and omissions of any subcontractor as
it would be for its own acts or omissions.
10. The terms "vote of a majority of the outstanding voting securities",
"interested person", "assignment" and "specifically approved at least
annually" shall have the respective meanings specified in, and shall be
construed in a manner consistent with, the 1940 Act, subject, however, to
such exemptions as may be granted by the Securities and Exchange Commission
thereunder, and provided, however, that the term "assignment" shall include
(without limitation) any sale, transfer or conversion of a controlling
interest of any class of voting stock of LFBDS or of any entity which holds
a controlling interest of any class of voting stock of LFBDS or another such
entity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names on their behalf by the undersigned,
thereunto duly authorized, and their respective seals to be hereto affixed, all
as of the day and year first above written. The undersigned Trustee of the Trust
has executed this Agreement not individually, but as Trustee under the Trust's
Declaration of Trust, dated April 13, 1984, and the obligations of this
Agreement are not binding upon any of the Trustees or shareholders of the Trust
individually, but bind only the Trust estate.
LANDMARK FUNDS I THE LANDMARK FUNDS BROKER-
DEALER SERVICES, INC.
By: /s/Xxxxxx Xxxxxxxx By: /s/Xxxxxx Xxxxxxxx
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Title: President Title: Chief Executive Officer
DA/Series Trust/Class A
