EXETER FUND, INC.
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of the 9th day of May, 2002 by and between Exeter
Fund, Inc., a Maryland corporation (the "Fund"), and Xxxxxxx & Xxxxxx Investor
Services, Inc., a New York corporation (the "Broker").
R E C I T A L S
WHEREAS, the Fund is registered as an open-end, diversified, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Broker is registered as a broker dealer under the Securities
Exchange Act of 1934, as amended; and
WHEREAS, the Fund and the Broker desire to enter an agreement to provide
distribution services for the common stock shares of the Fund's Series
(collectively, the "Series Shares") listed on Schedule A hereto, on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
1. Appointment. The Fund hereby appoints the Broker as Distributor of the
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Series Shares for the period and on the terms set forth in this Agreement. The
Broker accepts such appointment and agrees to render the services herein set
forth.
2. Duties as Distributor. The Broker shall give the Fund the benefit of
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its best judgment, efforts and facilities in rendering its services as
Distributor. The Broker will act as Distributor subject to the supervision of
the Fund's Board of Directors and the following understanding: (i) nothing
herein contained shall be deemed to relieve or deprive the Board of Directors of
the Fund of its responsibility for and control of the conduct of the Fund's
affairs; and (ii) in all matters relating to the performance of this Agreement,
the Broker will act in conformity with the Articles, By-laws and Prospectus and
SAI of the Fund and with the instructions and directions of the Fund's Board of
Directors and will conform
to and comply with the requirements of the 1940 Act and all other applicable
Federal or state laws and regulations. In carrying out its obligations
hereunder, the Broker shall:
(a) receive orders for the purchase of the Series Shares, accept or reject
such orders on behalf of the Fund in accordance with the Fund's currently
effective Prospectus and SAI and transmit such orders as are so accepted to the
Fund's or its transfer agent as promptly as possible;
(b) receive requests for redemption from holders of the Portfolio Shares
and transmit such redemption requests to the Fund's or its transfer agent as
promptly as possible; and
(c) respond to inquiries from the holders of the Series Shares concerning
the status of their accounts with the Fund.
3. Distribution of Series Shares. The Broker shall be exclusive
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distributor of the Series Shares. It is mutually understood and agreed that the
Broker does not undertake to sell all or any specific portion of Series Shares.
The Fund shall not sell any of its Series Shares except through the Broker.
Notwithstanding the provisions of the foregoing sentence:
(a) the Fund may issue its Series Shares at their net asset value to any
shareholder of the Fund purchasing such shares with dividends or other cash
distributions received from the Fund pursuant to an offer made to all
shareholders of the Series Shares;
(b) the Broker may, and when requested by the Fund shall, suspend its
efforts to effectuate sales of the Series Shares at any time when in the opinion
of the Broker or of the Fund no sales should be made because of market or other
economic considerations or abnormal circumstances of any kind;
(c) the Fund may withdraw the offering of the Series Shares: (i) at any
time with the consent of the Broker, or (ii) without such consent when so
required by the provisions of any statute or of any order, rule or regulation of
any governmental body having jurisdiction; and
(d) the price at which the Series Shares may be sold (the "offering price")
shall be the net asset value per share, which shall be determined in the manner
established from time to time by the Fund's Board of Directors and as set forth
in the Fund's then current Prospectus and SAI.
4. Control by Board of Directors. Any distribution activities undertaken
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by the Broker pursuant to this Agreement, as well as any other activities
undertaken by the Broker on behalf of the Fund pursuant thereto, shall at all
times be subject to any applicable directives of the Board of Directors of the
Fund.
5. Compliance with Applicable Requirements. In carrying out its
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obligations under this Agreement, the Broker shall at all times conform to:
(a) all applicable provisions of the 1940 Act and any rules and regulations
adopted thereunder;
(b) the provisions of the Registration Statement of the Fund under the
Securities Act of 1933 and the 1940 Act;
(c) the provisions of the Articles of the Fund;
(d) the provisions of the By-laws of the Fund;
(e) the rules and regulations of the National Association of Securities
Dealers, Inc. ("NASD") and all other self-regulatory organizations applicable to
the sale of investment company shares; and
(f) any other applicable provisions of state and Federal law.
6. Expenses. The expenses connected with the Series shares shall be
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allocable between the Fund and the Broker as follows:
(a) The Broker shall furnish, at its expense and without cost to the Fund,
the services of personnel to the extent that such services are required to carry
out its obligations under this Agreement.
(b) The Fund assumes and shall pay or cause to be paid all other expenses
of the Fund (other than those expressly assumed by the Fund's investment advisor
and sub-advisor), including, without limitation: the fees of the Funds
investment advisor; any custodian or depository appointed by the Fund for the
safekeeping of its cash, portfolio securities and other property, and any
transfer, divided or accounting agent or agents appointed by the Fund; brokers
commissions chargeable to the Fund in connection with portfolio securities
transactions to which the Fund is a party; all taxes, including securities
issuance and transfer taxes, and fees payable by the Fund to Federal, state or
other governmental agencies; the costs and expenses of engraving or printing of
certificates representing shares of the Fund; all costs and expenses in
connection with the registration and maintenance of registration of the Fund and
its shares with the SEC and various states and other jurisdictions (including
filing fees, legal fees and disbursements of counsel); the costs and expenses of
printing, including typesetting, and distributing Prospectuses and SAI of the
Fund and supplements thereto to the Fund's shareholders; all expenses of
shareholders' and directors' meetings and of preparing, printing and mailing of
proxy statements and reports to shareholders; fees and travel expenses of
directors or director members of any advisory board or committee; all expenses
incident to the payment of any dividend, distribution, withdraw or redemption,
whether in shares or in cash; charges and expenses of any outside services used
for pricing of the Fund's shares; fees and expense of legal counsel and of
independent accountants, in connection with any matter relating to the fund;
membership dues of industry associations; interest payable on Fund borrowings;
postage; insurance premiums on property or personnel (including officers and
directors) of the Fund which insure to its benefit; extraordinary expenses
(including, but not limited to, legal claims and liabilities and litigation
costs and any indemnification related thereto); and all other charges and costs
of the Fund's operation unless otherwise explicitly provided herein.
7. Delegation of Responsibilities. The Broker may, but shall not be under
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any duty to, perform services on behalf of the Fund which are not required by
this Agreement upon the request of the Fund's Board of Directors. Such services
will be performed on behalf of the Fund and the Broker's charge in rendering
such services may be billed monthly to the Fund. Payment or assumption by the
Broker of any Fund expense that the Broker is not required to pay or assume
under this Agreement shall not relieve the Broker of any of its obligations to
the Fund nor obligate the Broker to pay or assume any similar Fund expenses on
any subsequent occasions.
8. Compensation. The Broker shall receive from the Fund:
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(1) all distribution and service fees, as applicable, at the rate and
under the terms and conditions set forth in each Distribution Plan
(collectively, "Plans") adopted by the appropriate class of Series
Shares, as such Plans may be amended from time to time, and subject to
any further limitations on such fees as the Board of Directors may
impose;
(2) all deferred sales charges ("DSCs"), if any, applied on redemptions
of the applicable class(es) of Series Shares on the terms and subject to such
waivers as are described in the Fund"s Registration Statement and current
prospectuses, as amended from time to time, or as otherwise required
pursuant to applicable law; and
(3) all front-end sales charges, if any, on purchases of the applicable
Series Shares sold subject to such charges as described in the Fund's
Registration Statement and current prospectuses, as amended from time to time.
The Broker, or brokers, dealers and other financial institutions and
intermediaries that have entered into sub-distribution or dealer agreements
with the Distributor, may collect the gross proceeds derived from the sale of
such class(es) of Shares, remit the net asset value thereof to the fund upon
receipt of the proceeds and retain the applicable sales charge.
The Broker may reallow any or all of the distribution or service fee, contingent
deferred sales charges and front-end sales charges which it is paid by the fund
to such brokers, dealers and other financial institutions and intermediaries as
the Broker may from time to time determine.
9. Non-Exclusivity. The services of the Broker to the Fund are not to be
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deemed to be exclusive, and the Broker shall be free to render distribution or
other services to others (including other investment companies) and to engage in
other activities. It is understood and agreed that officers or directors of the
Broker may serve as officers or directors of the Fund, and that officers or
directors of the Fund may serve as officers or directors of the Broker to the
extent permitted by law; and that the officers and directors of the Broker are
not prohibited from engaging in any other business activity or from rendering
services to any other person, or from serving as partners, officers, trustees or
directors of any other firm, trust or corporation, including other investment
companies.
10. Term. This Agreement shall become effective at the close of business
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on the date hereof and shall continue in force and effect, subject to Section 12
hereof, for two years from the date hereof.
11. Renewal. Following the expiration of its initial two-year term, this
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Agreement shall continue in force and effect from year to year, provided that
such continuance is specifically approved at least annually:
(a)(i) by the Fund's Board of Directors or (ii) by the vote of a majority
of the outstanding voting securities of the Series Shares (as defined in Section
2(a)(42) of the 1940 Act, and
(b) by the affirmative vote of a majority of the directors who are not
parties to this Agreement or "interested persons" (as defined by the 0000 Xxx)
of any such party and have no direct or indirect financial interest in the
operation of this Agreement or any agreement related to this Agreement, by votes
cast in person at a meeting specifically called for the purpose of voting on
such approval.
Notwithstanding any provision of this paragraph to the contrary, if the holders
of any one series of the Series Shares of the Fund fail to approve this
Agreement, the Broker may continue to serve as distributor to the other Series
Shares of the Fund whose holders approved this Agreement and, in the manner and
to the extent permitted by the 1940 Act, to the series of Series Shares of the
Fund which did not approve this Agreement.
12. Termination. This Agreement may be terminated at any time, without
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the payment of any penalty, by vote of the Fund's Board of Directors or by vote
of a majority of the members of the Board of Directors of the Fund who are not
"interested persons" of the Fund and have no direct or indirect financial
interest in the operation of this Agreement or in any agreement related to this
Agreement, by vote of a majority of the Series Shares of the Fund's outstanding
voting securities (as defined in Section 2(a)(42) of the 1940 Act), or by the
Broker, on sixty (60) days' written notice to the other party. The notice
provided for herein may be waived by either party. This Agreement shall
automatically terminate in the event of its assignment, the term "assignment"
having the meaning defined in Section 2(a)(4) of the 1940 Act.
13. Amendments. This Agreement may be amended by the parties hereto only
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if such amendment is specifically approved (I) by the Board of Directors of the
Fund or by the vote of a majority of outstanding voting securities of the Series
Shares, and (ii) by a majority of those directors who are not parties to this
Agreement or "interested persons" of any such party, which vote must be cast in
person at a meeting called for the purpose of voting on such approval.
14. Liability of the Distributor. In the performance of its duties
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hereunder, the Broker shall be obligated to exercise care and diligence and to
act in good faith and to use its best efforts within reasonable limits to ensure
the accuracy of all services performed under this Agreement, but the Broker
shall not be liable for any act or omission which loss does not constitute
willful misfeasance, bad faith or gross negligence on the part of the Broker or
reckless disregard by the Broker of its duties under this Agreement.
15. Notices. Any notices under this Agreement shall be in writing,
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addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that the address of the Fund for
this purpose and that of the Broker shall be 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxx 00000.
16. Questions of Interpretation. This Agreement shall be implemented and
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continued in a manner consistent with the provisions of the 1940 Act. Any
question of interpretation of any term or provision of this Agreement having a
counterpart in or otherwise derived from a term or provision of the 1940 Act,
shall be resolved by reference to such term or provision of the 1940 Act and to
interpretations thereof, if any, by the United States Courts or, in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the SEC issued pursuant to said Act. In addition, where the effect of a
requirement of the 1940 reflected in any provision of this Agreement is revised
by rule, regulation or order of the SEC, such provision shall be deemed to
incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the day and year first
written above.
EXETER FUND, INC.
By:/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, President
XXXXXXX & XXXXXX INVESTOR SERVICES, INC.
By:/s/ B. Xxxxxx Xxxxxxx
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B. Xxxxxx Xxxxxxx, President
SCHEDULE A
DATED 05-09-2002
The following is a restatement to the existing Schedule A of the Amended and
Restated Distribution Agreement between Exeter Fund, Inc. and Xxxxxxx & Xxxxxx
Investor Services, Inc.:
NAME OF SERIES
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Small Cap Series
Maximum Horizon Series
Commodity Series
Technology Series
Defensive Series
High Yield Bond Series
International Series
Tax Managed Series
Life Sciences Series
Global Fixed Income Series
Blended Asset Series I
Blended Asset Series II
New York Tax Exempt Series
Ohio Tax Exempt Series
Diversified Tax Exempt Series
World Opportunities Series
PureMark Series
All-Equity Series
World Opportunities Series II
