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Exhibit (e)(1)
UNDERWRITING AGREEMENT FOR
PILGRIM EQUITY TRUST
AGREEMENT made and entered into by and between PILGRIM EQUITY TRUST, a
Massachusetts business trust (the "Trust"), on behalf of each series of
the Trust set forth on Schedule A hereto as it may be amended from time to
time (the "Funds") and ING PILGRIM SECURITIES, INC., a Delaware
corporation (the "Underwriter"), on this 1st day of September, 2000, as
amended and restated May 9, 2001.
1. The Funds hereby appoint the Underwriter as their exclusive agent to
promote the sale and to arrange for the sale of shares of beneficial
interest of each class of each Fund, including both unissued shares and
treasury shares, through broker-dealers or otherwise, in all parts of the
United States and elsewhere throughout the world. The Funds agree to sell
and deliver their shares of each class, upon the terms hereinafter set
forth, as long as they have unissued and/or treasury shares available for
sale.
(a) The Funds hereby authorize the Underwriter, subject to applicable
law and the Trust's Declaration of Trust (the "Declaration"), to accept,
for the respective account of the Funds, orders for the purchase of their
shares, satisfactory to the Underwriter, as of the time of receipt of such
orders by the dealer or as otherwise described in the Prospectus of the
Trust.
(b) (i) The public offering price of the shares of the Funds shall be
the net asset value per share (as determined by the Fund) of the
outstanding shares of the Funds. The net asset value shall be
regularly determined on every business day as of the time of the
regular closing of the New York Stock Exchange ("NYSE") and the
public offering price based upon such net asset value shall become
effective as set forth from time to time in the Trust's Prospectus;
such net asset value shall also be regularly determined, and the
public offering price based thereon shall become effective, as of
such other times for the regular determination of net asset value as
may be required or permitted by rules of the National Association of
Securities Dealers, Inc. ("NASD") or of the Securities and Exchange
Commission ("SEC"). The Funds shall furnish daily to the Underwriter,
with all possible promptness, a detailed computation of net asset
value of their Class A shares.
(c) Class A Shares
(i) The public offering price of Class A shares shall be equal to
the net asset value, as described above, plus a commission to
be fixed from time to time by the Underwriter not to exceed 6%
of the public offering price, except that such price per share
may be adjusted to the nearest cent. The Underwriter may fix
quantity discounts and other similar terms not inconsistent
with the provisions of the Investment Company Act of 1940, as
amended (the "1940 Act"). The Underwriter shall not impose any
commission, permit any quantity discounts or impose any other
similar
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terms in connection with the sale of Class A shares of the
Funds except as disclosed in the Prospectus of the Trust.
(ii) The Underwriter shall be entitled to deduct a commission on
all Class A shares sold equal to the difference between the
public offering price and the net asset value on which such
price is based. If any such commission is received by a Fund,
it will pay the commission to the Underwriter. Out of such
commission, the Underwriter may allow to dealers such
concessions as the Underwriter may determine from time to
time. Notwithstanding anything in the Agreement, sales may be
made at net asset value as provided in the Trust's Prospectus.
(d) Class B Shares
(i) In consideration of the Underwriter's services as principal
underwriter of each Fund's Class B shares pursuant to this Agreement
and in accordance with the provisions of the Trust's Amended and
Restated Distribution and Service Plan (the "Plan") in respect of
such shares, each Fund agrees: (I) to pay to the Underwriter or, at
the Underwriter's direction, to a third party, monthly in arrears on
or prior to the 5th business day of the following calendar month (A)
a service fee (the "Service Fee") equal to 0.25 of 1% per annum of
the average daily net asset value of the Class B shares of the Fund
outstanding from time to time, and (B) the Underwriter's "Allocable
Portion" (as hereinafter defined) of a fee (the "Distribution Fee")
equal to 0.75 of 1% per annum of the average daily net asset value
of the Class B shares of the Fund outstanding from time to time, and
(II) to withhold from redemption proceeds in respect of Class B
shares of the Fund the Underwriter's Allocable Portion of the
Contingent Deferred Sales Charges ("CDSCs") payable in respect of
such redemption as provided in the Prospectus of the Fund and to pay
the same over to the Underwriter or, at the Underwriter's direction,
to a third party, at the time the redemption proceeds in respect of
such redemption are payable to the holder of the Class B shares
redeemed.
(ii) The Underwriter will be deemed to have performed all services
required to be performed in order to be entitled to receive its
Allocable Portion of the Distribution Fee payable in respect of the
Class B shares of the Funds upon the settlement date of each sale of
a "Commission Share" of the Funds taken into account in determining
the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this
Agreement of (to the extent waiver thereof is permitted thereby)
applicable law, each Fund's obligation to pay the Underwriter's
Allocable Portion of the Distribution Fees payable in respect to the
Class B shares of the Funds shall not be terminated or modified for
any reason (including a termination of this Agreement) except to the
extent required by a change in the 1940 Act, the rules thereunder or
the Conduct
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Rules of the NASD, in each case enacted or promulgated after April
30, 2001, or in connection with a "Complete Termination" (as
hereinafter defined) of the Plan.
(iv) The Funds will not take any action to waive or change any CDSC
in respect of the Class B shares, except as provided in each Fund's
Prospectus or statement of additional information as in effect as of
the date hereof, without the consent of the Underwriter and the
permitted assigns of all or any portion of its rights to its
Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement,
neither the termination of the Underwriter's role as principal
distributor of the Class B shares of any Fund, nor the termination
of this Agreement, nor the termination of the Plan will terminate
the Underwriter's right to its Allocable Portion of the CDSCs in
respect of the Class B shares of each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement,
the Underwriter may assign, sell or pledge (collectively,
"Transfer") its rights to the Service Fees and its Allocable Portion
of the Distribution Fees and CDSCs (but not its obligations to the
Funds under this Agreement) to raise funds to make the expenditures
related to the distribution of Class B shares of each Fund and in
connection therewith, upon receipt of notice of such Transfer, each
Fund shall pay, or cause to be paid, to the assignee, purchaser or
pledgee (collectively with their subsequent transferees,
"Transferees") such portion of the Underwriter's Service Fees,
Allocable Portion of the Distribution Fees and CDSCs in respect of
the Class B shares of each Fund so Transferred. Except as provided
in (iii) above and notwithstanding anything to the contrary set
forth elsewhere in this Agreement, to the extent the Underwriter has
Transferred its rights thereto to raise funds as aforesaid, each
Fund's obligation to pay the Underwriter's Allocable Portion of the
Distribution Fees and CDSCs payable in respect of the Class B shares
of each Fund shall be absolute and unconditional and shall not be
subject to dispute, offset, counterclaim or any defense whatsoever,
at law or equity, including, without limitation, any of the
foregoing based on the insolvency or bankruptcy of the Underwriter's
right to the Distribution Fees and CDSCs in respect of the Class B
shares of each Fund, which have been so transferred in connection
with such Transfer). The Funds agree that each such Transferee is a
third party beneficiary of the provisions of this clause (vi) but
only insofar as those provisions relate to Distribution Fees and
CDSCs transferred to such Transferee.
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(vii) For purposes of the Agreement, the term "Allocable Portion" of
Distribution Fees and CDSCs payable in respect of the Class B shares
of each Fund shall mean the portion of such Distribution Fees and
CDSCs allocated to the Underwriter.
(viii) For purposes of this Agreement, the term "Complete
Termination" of the Plan in respect of each Fund means a termination
of the Plan involving the complete cessation of the payment of
Distribution Fees in respect of all Class B shares of the Funds, and
the termination of the Plan and the complete cessation of the
payment of distribution fees pursuant to any other distribution Plan
pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B
shares of the Funds and any successor fund or the Funds acquiring a
substantial portion of the assets of the Funds and for every future
class of shares which has substantially similar characteristics to
the Class B shares of the Funds taking into account the manner of
payment and amount of sales charge, CDSC or other similar charges
borne directly or indirectly by the holders of such shares; provided
that (a) the Trustees of the Trust, including the Independent
Trustees of the Trust, shall have determined that such termination
is in the best interest of the Funds and the shareholders of the
Funds, and (b) such termination does not alter the CDSC as in effect
at the time of such termination applicable to Commission Shares of
the Funds, the Date of Original Issuance (as defined in the
Allocation Schedule) of which occurs on or prior to such
termination.
(ix) The Underwriter may reallow any or all of the Distribution and
Service Fees and CDSCs which it is paid under the Agreement to such
dealers as the Underwriter may from time to time determine.
(x) The Underwriter may fix quantity discounts and other similar
variances or waivers of the CDSCs not inconsistent with the
provisions of the 1940 Act; provided however, that the Underwriter
shall not impose any commission, permit any quantity discount, or
impose any other similar waiver or variance in connection with the
sale of Class B shares except as disclosed in the Prospectus of the
Trust.
(e) Class C Shares
(i) As compensation for providing services under this Agreement,
(A) the Underwriter shall receive from each Fund distribution and
service fees under the terms and conditions set forth in the Plan
for the Funds adopted under Rule 12b-1 under the 1940 Act, as that
Plan may be amended from time to time and subject to any further
limitation on such fees as the Trustees may impose, and (B) the
Underwriter shall receive from each Fund all contingent deferred
sales charges applied on redemption of Class C shares of the Funds.
Whether and to what extent a contingent deferred sales charge will
be imposed with respect to a redemption shall be determined in
accordance with, and in a manner set forth in, the Trust's
Prospectus.
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(ii) The Underwriter may reallow any or all of the distribution and
service fees and CDSCs which it is paid under the Agreement to such
dealers as the Underwriter may from time to time determine.
(iii) The Underwriter may fix quantity discounts and other similar
variances or waivers of the contingent deferred sales charge not
inconsistent with the provisions of the 1940 Act; provided however,
that the Underwriter shall not impose any commission, permit any
quantity discount, or impose any other similar waiver or variance in
connection with the sale of Class C shares except as disclosed in
the Prospectus of the Trust.
2. The Underwriter agrees to devote reasonable time and effort to
enlist investment dealers to sell shares of each class of each Fund and
otherwise promote the sale and distribution and act as Underwriter for the
sale and distribution of the shares of each class of each Fund as such
arrangements may profitably be made; but so long as its does so, nothing
herein contained shall prevent the Underwriter from entering into similar
arrangements with other funds and to engage in other activities. The Funds
reserve the right to issue shares of each class in connection with any
merger or consolidation of the Funds with any other investment company or
any personal holding company or in connection with offers of exchange
exempted from Section 22 (d) of the Investment Company Xxx 0000.
3. To the extent the Funds shall offer (as set forth in the Trust's
Prospectus) to provide physical certificates evidencing ownership of a
class of shares, upon receipt by a Fund at its principal place of business
of a written order from the Underwriter, together with delivery
instructions, the Funds shall, as promptly as practicable, cause
certificates for the class of shares called for in such order to be
delivered or credited in such amounts and in such names as shall be
specified by the Underwriter, against payment therefor in such manner as
may be acceptable to the Funds.
4. All sales literature and advertisements used by the Underwriter in
connection with sales of the shares of the Funds shall be subject to the
approval of the Funds to which such literature relates. The Funds
authorize the Underwriter in connection with the sale or arranging for the
sale of its shares to give only such information and to make only such
statements or representations as are contained in the Prospectus or in
sales literature or advertisements approved by the Funds or in such
financial statements and reports as are furnished to the Underwriter
pursuant to paragraph 6 below. The Funds shall not be responsible in any
way for any information, statements or representations given or made by
the Underwriter or its representatives or agents other than such
information, statements and representations.
5. The Underwriter, as agent of the Funds, is authorized, subject to
the direction of the Funds, to accept shares of each class for redemption
at prices not in excess of their net asset value, determined as prescribed
in the Prospectus of the Trust. The Funds shall reimburse the Underwriter
monthly for its out-of-pocket expenses reasonably incurred on behalf of
the Funds in carrying out the foregoing authorization, but the Underwriter
shall
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not be entitled to any commissions or other compensation in respect to
such redemptions. The Underwriter shall report all redemptions promptly to
the Funds.
6. The Trust, on behalf of the Funds, shall keep the Underwriter fully
informed with regard to its affairs, shall furnish the Underwriter with a
certified copy of all financial statements, and a signed copy of the
report, prepared by independent public accountants and with such
reasonable number of printed copies of the annual and other periodic
reports of the Funds as the Underwriter may request, and shall cooperate
fully in the efforts of the Underwriter to sell and arrange for the sale
of each class of shares of the Funds and in the performance by the
Underwriter of all its duties under this Agreement.
7. The Funds will pay or cause to be paid expenses (including counsel
fees and disbursements) of any registration of each class of shares of
beneficial interest under, but not limited to, Federal, state or other
regulatory authority, fees of filing periodic reports with regulatory
bodies and of preparing, setting in type and printing the Prospectus and
any amendments thereto prepared for use in connection with the offering of
shares of each class of the Funds, for fees and expenses incident to the
issuance of shares of beneficial interest of each class, such as the cost
of stock certificates (if offered), issuance taxes, fees of the transfer
agent, including the cost of preparing and mailing notices to shareholders
pertaining to transactions with respect to shareholders' accounts,
dividend disbursing agent's costs, including the cost for preparing and
mailing notices confirming shares acquired by shareholders pursuant to the
reinvestment of dividends and distributions, and the mailing to
shareholders of prospectuses, and notices and reports as may be required
from time to time by regulatory bodies or for such other purposes, except
for purposes of sales by the Underwriter as outlined in paragraph 8
hereof.
8. The Underwriter shall pay all of its own costs and expenses (other
than expenses and costs heretofore deemed payable by the Funds and other
than expenses which one or more dealers may bear pursuant to any agreement
with the Underwriter) incident to the sale and distribution of the shares
issued or sold hereunder including (a) expenses of printing copies of the
Prospectus to be used in connection with the sale of shares of each class
of the Funds at printer's overrun costs; (b) expenses of printing and
distributing or disseminating any other literature, advertising or selling
aids in connection with the offering of shares of each class for sale
(however, the expenses referred to in (a) and (b) do not include expenses
incurred in connection with the preparation, printing and distribution of
the Prospectus or any report or other communication to shareholders, to
the extent that such expenses are necessarily incurred to effect
compliance by the Funds with any Federal or State law or other regulatory
bodies); and (c) expenses of advertising in connection with such offering;
provided, however, that the Underwriter shall not be required to pay for
any such expenses to the extent that they are paid pursuant to each Fund's
distribution plan adopted pursuant to Rule 12b-1 under the 1940 Act.
9. The Funds agree to register, from time to time as necessary,
additional shares of beneficial interest of each class with the SEC, State
and other regulatory bodies and to pay the related filing fees therefor
and to file such amendments, reports and other documents as may be
necessary in order that there may be no untrue statement of a
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material fact in the Registration Statement or Prospectus or that there
may be no omission to state a material fact therein necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. As used in this Agreement, the term
"Registration Statement" shall mean the Registration Statement most
recently filed by the Trust with the SEC and effective under the
Securities Act of 1933, as amended, as such Registration Statement is
amended from time to time, and the term "Prospectus" shall mean the most
recent form of prospectus authorized by the Trust for use by the
Underwriter and by dealers.
10. This Agreement may be terminated at any time on not more than 60
days' written notice, without payment of a penalty, by the Underwriter, by
vote of a majority of the outstanding voting securities as defined in the
1940 Act of each Fund or by vote of a majority of the Trustees, who are
not "interested persons" of each Fund and who have not direct or indirect
financial interest in the operation of the Plan or agreements.
11. This Agreement shall terminate automatically in the event of its
assignment. The term "assignment" for this purpose shall have the meaning
defined in Section 2(a)(4) of the 1940 Act.
12. This Agreement has been approved by the Trustees of the Trust on
behalf of each Fund and shall continue in effect for two years from its
effective date. Thereafter, this Agreement shall continue for successive
annual periods, provided that such continuance is specifically approved
annually by a majority of the Trustees who are not interested persons of
the parties hereto as defined in the 1940 Act and either (a) a majority of
the Trustees of the Trust or (b) by vote of a majority or the outstanding
voting securities of each Fund, as defined in the Investment Company Act
of 1940.
13. The Declaration, establishing the Trust, a copy of which together
with all amendments thereto is on file in the office of the Secretary of
the Commonwealth of Massachusetts, provides that the name of the Trust
refers to the Trustees under the Declaration collectively as trustees, but
not individually or personally; and no Trustee, shareholder officer,
employee or agent of the Trust and/or each Fund may be held to any
personal liability, nor may resort be had to their private property for
the satisfaction of any obligation or claim or otherwise in connection
with affairs of the Trust, but the Trust property only shall be liable.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized and to become
effective as of the day and year set forth above.
PILGRIM EQUITY TRUST
By: /s/ Xxxxxx X. Naka
_____________________________
Senior Vice President
PILGRIM SECURITIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
_____________________________
Senior Executive Vice President
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SCHEDULE A
NAME OF FUND LAST CONTINUED/ RE-APPROVAL DAY
APPROVED BY BOARD
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Pilgrim Midcap June 13, 2000 September 1, 2002
Opportunities
Fund
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Pilgrim May 9, 2001 September 1, 2002
Index Plus
Protection Fund
As amended on May 9, 2001 to add the Pilgrim Index Plus Protection Fund.
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SCHEDULE B
to Underwriting Agreement
ALLOCATION SCHEDULE
Defined terms used in this Schedule and not otherwise defined herein
shall have the meaning assigned to them in the Underwriting Agreement of the
Trust, on behalf of the Fund(s), and the Underwriter as of September 1, 2000 to
which this Schedule B is attached (the "Underwriting Agreement"). As used herein
the following terms shall have the meanings indicated:
CDSCs or Asset Based Sales Charges related to Class B Shares
("Shares") of any Fund shall be allocated by the Fund among the Underwriter and
any successor principal distributor of Shares of such Fund (the "Successor
Underwriter") in accordance with this Schedule B.
"Commission Share" means in respect of any Fund, each Share of such
Fund, which is issued under circumstances which would normally give rise to an
obligation of the holder of such Share to pay a CDSC upon redemption of such
Share (including, without limitation, any Share of such Fund issued in
connection with a Permitted Free Exchange) and any such Share shall continue to
be a Commission Share of such Fund prior to the redemption (including a
redemption in connection with a Permitted Free Exchange) or conversion of such
Share, even though the obligation to pay the CDSC may have expired or conditions
for waivers thereof may exist.
"Date of Original Issuance" means in respect of any Commission
Share, the date with reference to which the amount of the CDSC payable on
redemption thereof, if any, is computed.
"Free Share" means, in respect of any Fund, each Share of such Fund,
other than a Commission Share (including, without limitation, any Share issued
in connection with the reinvestment of dividends or capital gains).
"Inception Date" means in respect of any Fund, the first date on
which such Fund issued Shares.
"Net Asset Value" means, (i) with respect to any Fund, as of the
date any determination thereof is made, the net asset value of such Fund
computed in the manner such value is required to be computed by such Fund in its
reports to its shareholders, and (ii) with respect to any share of such Fund as
of any date, the quotient obtained by dividing: (A) the net asset value of such
Fund (as computed in accordance with clause (i) above) allocated to Shares
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of such Fund (in accordance with the constituent documents for such Fund) as of
such date, by (B) the number of Shares of such Fund outstanding on such date.
PART I: ATTRIBUTION OF SHARES
Shares of each Fund, which are outstanding from time to time, shall
be attributed to the Underwriter and each Successor Underwriter in accordance
with the following rules;
(1) Commission Shares:
(a) Commission Shares attributed to the Underwriter shall be
Commission Shares the Date of Original issuance of which occurred on or after
the Inception Date of such Fund and on or prior to the last date on which the
Underwriter acted as principal underwriter of Shares of such Fund.
(b) Commission Shares attributable to any Successor Underwriter
shall be Commission Shares, the Date of Original Issuance of which occurs after
the last date on which the immediately preceding principal underwriter of Shares
of such Fund acted as principal underwriter of Shares of such Fund and prior to
the last date on which the Successor Underwriter in question acted as principal
underwriter of Shares of such Fund.
(c) A Commission Share of a particular Fund (the "Issuing Fund")
issued in consideration of the investment of proceeds of the redemption of a
Commission Share of another Fund (the "Redeeming Fund") in connection with a
Permitted Free Exchange, is deemed to have a Date of Original issuance identical
to the Date of Original Issuance of the Commission Share of the Redeeming Fund
and any such Commission Share will be attributed to the Underwriter or any
Successor Underwriter based upon such Date of Original Issuance in accordance
with rules (a) and (b) above.
(d) A Commission Share redeemed (other than in connection with a
Permitted Free Exchange) or converted to a class A share is attributable to the
Underwriter or any Successor Underwriter based upon the Date of Original
Issuance in accordance with rule (a), (b) and (c) above.
(2) Free Shares:
Free shares of a Fund outstanding on any date shall be attributed to
the Underwriter or any Successor Underwriter, as the case may be, in the same
proportion that the Commission Shares of such Fund outstanding on such date are
attributed to it on such date; provided that if the Transfer Agent is able to
produce monthly reports which track the Date of original Issuance for the
Commission Shares related to such Free Shares, then the Free Shares shall be
allocated pursuant to clause 1(a), (b) and (c) above.
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PART II: ALLOCATION OF CDSCS ("CDSCS")
CDSCs Related to the Redemption of Commission Shares:
CDSCs in respect of the redemption of Commission Shares shall be
allocated to the Underwriter or any Successor Underwriter depending upon whether
the related redeemed Commission Share is attributable to such Underwriter or
Successor Underwriter, as the case may be, in accordance with Part I above.
PART III: ALLOCATION OF ASSET BASED SALES CHARGES
Assuming that the Asset Based Sales Charge remains constant over
time and among Funds so that Part IV hereof does not become operative:
(1) The portion of the aggregate Asset Based Sales Charges accrued
in respect of all Shares of all Funds during any calendar month allocable to the
Underwriter or any Successor Underwriter is determined by multiplying the total
of such Asset Based Sales Charges by the following fraction:
(A + C)/2
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(B + D)/2
where:
A= The aggregate Net Asset Value of all Shares of all Funds attributed
to such Underwriter or Successor Underwriter, as the case may be,
and outstanding at the beginning of such calendar month
B= The aggregate Net Asset Value of all Shares of all Funds at the
beginning of such calendar month
C= The aggregate Net Asset Value of all Shares of all Funds attributed
to such Underwriter or Successor Underwriter, as the case may be,
and outstanding at the end of such calendar month
D= The aggregate Net Asset Value of all Shares of all Funds at the
end of such calendar month
(2) If the Program Administrator reasonably determines that the
Transfer Agent is able to produce automated monthly reports which allocate the
average Net Asset Value of the Commission Shares (or all Shares if available) of
all Funds among the Underwriter and any Successor Underwriter in a manner
consistent with the methodology detailed in Part I and Part III (l) above, the
portion of the Asset Based Sales Charges accrued in respect of all such Shares
of all Funds during a particular calendar month will be allocated to such
Underwriter or Successor Underwriter by multiplying the total of such Asset
Based Sales Charges by the following fraction:
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(A)/(B)
where.
A= Average Net Asset Value of all such Shares of all Funds for such
calendar month attributed to such Underwriter or Successor
Underwriter, as the case may be
B= Total average Net Asset Value of all such Shares of all Funds for
such calendar month
PART IV: ADJUSTMENT OF THE UNDERWRITER'S OR SUCCESSOR UNDERWRITER'S SHARE
OF ASSET BASED SALES CHARGES AND CDSCS
The Parties to the Underwriting Agreement recognize that, if the
terms of the Underwriting Agreement, any Distribution Plan, any Prospectus, the
Conduct Rules or any other Applicable Law change, which change
disproportionately reduces, in a manner inconsistent with the intent of the
Underwriting Agreement and this Schedule B, the amount of the Underwriter's or
the Successor Underwriter's share of Asset Based Sales Charges and CDSCs that
would have been payable had no such change occurred, this Allocation Schedule
should be adjusted by agreement among the Fund, the Underwriter and each
Successor Underwriter to conform with such intent taking into account such
change; provided, however, if the Fund, the Underwriter and the Successor
Underwriters cannot agree within thirty (30) days after the date of any such
change in Applicable Laws or in any Underwriting Agreement, Distribution Plan,
Prospectus or the Conduct Rules, the Parties shall submit the question to
arbitration in accordance with the commercial arbitration rules of the American
Arbitration Association and the decision reached by the arbitrator shall be
final and binding on the Parties hereto.
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