Exhibit 99.28(e)(1)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made
as of May 31, 2017 by and between FORESIDE FUNDS DISTRIBUTORS LLC (“Foreside Distributors”), a Delaware limited liability
company, and OLD WESTBURY FUNDS, INC., a Maryland corporation (the “Fund”).
W I T N E S S E T H :
WHEREAS, the Fund, which
is advised by Bessemer Investment Management LLC (the “Adviser”), is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the “1940 Act”), and is currently offering shares of
common stock (such shares of all series are hereinafter called the “Shares”), representing interests in investment
portfolios of the Fund identified on Exhibit A hereto (the “Portfolios”) which are registered with the Securities
and Exchange Commission (the “SEC”) pursuant to the Fund’s Registration Statement on Form N-lA (the “Registration
Statement”);
WHEREAS, the Fund and BNY
Mellon Distributors LLC are parties to that certain underwriting agreement dated July 1, 2010, (the “BNYM Underwriting Agreement”),
which automatically terminates as of the closing of the sale of BNY Mellon Distributors LLC to Foreside Distributors (the “Transaction”);
and
WHEREAS, the Fund, upon
the termination of the BNYM Underwriting Agreement on the closing of the Transaction, wishes to retain Foreside Distributors to
serve as distributor for the Fund and the Portfolios to provide for the sale and distribution of the Shares of the Portfolios
identified on Exhibit A and for such additional classes or series as the Fund may issue, and Foreside Distributors wishes to furnish
such services.
NOW, THEREFORE, in consideration
of the premises and mutual covenants herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
| 1. |
Definitions.
As used in this Agreement: |
| (a) | “1933
Act” means the Securities Act of 1933, as amended. |
| (b) | “1934
Act” means the Securities Exchange Act of 1934, as amended. |
| (c) | “Authorized
Person” means any officer of the Fund, and any other person, duly authorized
by the Fund’s Board of Directors or Trustees to give Oral Instructions and Written
Instructions on behalf of the Fund. An Authorized Person’s scope of authority may
be limited by setting forth such limitation in a written document signed by both parties
hereto. |
| (d) | “FINRA” means the Financial Industry Regulatory Authority. |
| (e) | “Oral
Instructions” mean oral instructions received by Foreside Distributors from
an Authorized Person or from a person reasonably believed by Foreside Distributors, on
the basis of written documentation provided by the Fund or the Adviser, to be an Authorized
Person. |
| (f) | “Registration
Statement” means any Registration Statement and any Prospectus and any Statement
of Additional Information relating to the Fund filed with the SEC and any amendments
or supplements thereto at any time filed with the SEC. |
| (g) | “Securities
Laws” mean the 1933 Act, the 1934 Act, and the 1940 Act. |
| (h) | “Written
Instructions” mean (i) written instructions signed by an Authorized Person
or from a person reasonably believed by Foreside Distributors, on the basis of written
documentation provided by the Fund or |
the Adviser, to be an Authorized Person, and
received by Foreside Distributors or (ii) sent via e-mail by an Authorized Person or received from a person reasonably believed
by Foreside Distributors, on the basis of written documentation provided by the Fund or the Adviser, to be an Authorized Person,
and opened by Foreside Distributors or (iii) trade instructions transmitted (and received by Foreside Distributors) by means of
an electronic transaction reporting system access to which requires use of a password or other authorized identifier. The instructions
may be delivered electronically (with respect to sub-items (ii) or (iii) above) or by hand, mail, tested telegram, cable, telex
or facsimile sending device.
| 2. |
Appointment.
Effective on the later of the date of this Agreement or the closing of the Transaction (the “Effective
Date”), the Fund hereby appoints Foreside Distributors to serve as the distributor of its Shares in accordance with
the terms set forth in this Agreement. Foreside Distributors accepts such appointment and agrees to furnish such services,
effective as of the Effective Date. The Fund understands that Foreside Distributors is now, and may in the future be, the
distributor of the shares of several investment companies or series (collectively, the “Investment Entities”),
including Investment Entities having investment objectives similar to those of the Fund. The Fund further understands that
investors and potential investors in the Fund may invest in shares of such other Investment Entities. The Fund agrees that
Foreside Distributors’ duties to such Investment Entities shall not per se be deemed in conflict with
its duties to the Fund under this Agreement. |
| 3. |
Delivery
of Documents. |
The Fund agrees to advise Foreside Distributors
as soon as reasonably practical by a notice in writing delivered to Foreside Distributors;
| (a) | of any request by the SEC for amendments
to the Registration Statement, Prospectus or Statement of Additional
Information then in effect or for additional information; |
| (b) | in the event of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration
Statement, Prospectus or Statement of Additional Information then in
effect or the initiation by service of process on the Fund of any proceeding
for that purpose; |
| (c) | of the happening of any event of which
the Fund becomes aware that makes untrue any statement of a material
fact made in the Registration Statement, Prospectus or Statement of
Additional Information then in effect or that requires the making of
a change in such Registration Statement, Prospectus or Statement of
Additional Information in order to make the statements therein not misleading;
and |
| (d) | of any adverse action of the SEC with
respect to any amendment to any Registration Statement, Prospectus or
Statement of Additional Information which may from time to time be filed
with the SEC. |
For purposes of this paragraph, informal requests by or
acts of the staff of the SEC, including non-material comments given in the course of the review process, shall not be deemed actions
of or requests by the SEC.
| 4. |
Compliance with Rules and Regulations.
Foreside Distributors undertakes to comply with all applicable requirements of the Securities Laws and any
laws, rules and regulations of governmental authorities having jurisdiction with respect to the duties to be performed by
Foreside Distributors hereunder. Except as specifically set forth herein, Foreside Distributors assumes no responsibility
for such compliance by the Fund or any other entity. |
| (a) | Unless otherwise provided in this Agreement,
Foreside Distributors shall act only upon Oral Instructions or Written
Instructions. |
| (b) | Foreside Distributors shall be entitled
to rely upon any Oral Instruction or Written Instruction it receives
pursuant to this Agreement. Foreside Distributors may assume that any
Oral Instruction or Written Instruction received hereunder is not in
any way inconsistent with the provisions of organizational documents
or this Agreement or of any vote, resolution or proceeding of the Fund’s
Board of Directors or Trustees or of the Fund’s shareholders,
unless and until Foreside Distributors receives Oral Instructions or
Written Instructions to the contrary. |
| (c) | The Fund agrees to forward to Foreside
Distributors Written Instructions confirming Oral Instructions so that
Foreside Distributors receives the Written Instructions promptly after
such Oral Instructions are received. The fact that such confirming Written
Instructions are not received by Foreside Distributors or differ from
the Oral Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions
and executed by Foreside Distributors prior to the receipt of any contrary
Written Instructions (and a reasonable opportunity to act thereon) or
Foreside Distributors’ ability to have relied upon such Oral Instructions
in connection with such transactions. |
| 6. |
Right
to Receive Advice. |
| (a) | Advice
of the Fund. If Foreside Distributors is in doubt as to any action it |
should or should not take, Foreside Distributors
may request directions or advice, including Oral Instructions or Written Instructions, from the Fund.
| (b) | Advice
of Counsel. If Foreside Distributors shall be in doubt as to any question of law
pertaining to any action it should or should not take, Foreside Distributors may request
advice from counsel of its own choosing (who may be counsel for the Fund, the Adviser
or Foreside Distributors, at the option of Foreside Distributors). |
| (c) | Conflicting
Advice. In the event of a conflict between directions or advice or Oral Instructions
or Written Instructions Foreside Distributors receives from the Fund and the advice Foreside
Distributors receives from counsel selected by it, Foreside Distributors may rely upon
and follow the advice of such counsel; provided that Foreside Distributors shall provide
reasonable prior written notice to the Fund of any such advice that conflicts with such
Oral Instructions or Written Instructions. The Fund shall, upon receipt of such notice,
promptly notify Foreside Distributors in writing of its objection, if any, to any actions
or any omissions to act Foreside Distributors proposes to take pursuant to counsel’s
advice. In the event the Fund has so notified Foreside Distributors in writing of its
objection, Foreside Distributors and the Fund shall promptly consult in good faith to
reach agreement on the actions or omissions that are the subject of the Fund’s
objection. In the event, after such consultations, Foreside Distributors and the Fund
are unable to agree on the actions or omissions in question, Foreside Distributors and
the Fund shall consult independent |
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counsel mutually acceptable to Foreside Distributors and the Fund, and
Foreside Distributors may follow and rely upon the advice of such independent counsel. |
| (d) | Protection
of Foreside Distributors. Foreside Distributors shall be indemnified by the Fund
and without liability for any action Foreside Distributors takes or does not take in
reliance upon directions or advice or Oral Instructions or Written Instructions Foreside
Distributors receives from or on behalf of the Fund or from counsel (subject to Foreside
Distributors’ adherence to the provisions of Section 6(c)), and which Foreside
Distributors believes, in good faith, to be consistent with those directions or advice
and Oral Instructions or Written Instructions. Nothing in this section shall be construed
so as to impose an obligation upon Foreside Distributors (i) to seek such directions
or advice or Oral Instructions or Written Instructions, or (ii) to act in accordance
with such advice or Oral Instructions or Written Instructions unless, under the terms
of other provisions of this Agreement, the same is a condition of Foreside Distributors’
properly taking or not taking such action. |
| 7. |
Records; Visits.
The books and records pertaining to the Fund and the Portfolios which are in the possession or under the
control of Foreside Distributors shall be the property of the Fund. Such books and records shall be prepared and maintained
as required by the 1940 Act, the other Securities Laws and other applicable laws, rules and regulations. The Fund and Authorized
Persons shall have access to such books and records at all times during Foreside Distributors’ normal business hours. |
Upon the request of the Fund, copies of any
such books and records shall be provided by Foreside Distributors to the Fund or to an Authorized Person, at the Fund’s
expense, within a reasonable timeframe.
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(a) Each party shall keep confidential any information relating to the
other party’s business (“Confidential Information”). Confidential Information shall include (i) any data
or information that is competitively sensitive material, and not generally known to the public, including, but not limited
to, information about product plans, marketing strategies, finances, operations, customer relationships, customer profiles,
customer lists, sales estimates, business plans, and internal performance results relating to the past, present or future
business activities of the Fund or Foreside Distributors, their respective subsidiaries and affiliated companies; (ii) any
scientific or technical information, design, process, procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Fund or Foreside Distributors a competitive advantage over its competitors;
(iii) all confidential or proprietary concepts, documentation, reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, knowhow, and trade secrets, whether or not patentable or copyrightable; and
(iv) anything designated as confidential. Notwithstanding the foregoing, information shall not be Confidential Information
and shall not be subject to such confidentiality obligations if it: (i) is already known to the receiving party and not subject
to a duty of confidentiality at the time it is obtained; (ii) is or |
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becomes publicly known or available through no wrongful act of the receiving party; (iii) is rightfully
received from a third party who, to the best of the receiving party’s knowledge, is not under a duty of confidentiality;
(iv) is released by the protected party to a third party without restriction; (v) is requested or required to be disclosed
by the receiving party pursuant to a court order, subpoena, governmental or regulatory agency request or law (provided the
receiving party will provide the other party written notice of the same, to the extent such notice is permitted); (vi) is
relevant to the defense of any claim or cause of action asserted against the receiving party by the protected party; (vii)
is necessary for Foreside Distributors to release such information in connection with the provision of services under this
Agreement or to enable Foreside Distributors to engage an independent third party to perform an assessment of Foreside Distributors’
policies and procedures; or (viii) has been or is independently developed or obtained by the receiving party. |
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(b) Notwithstanding any provision herein to the contrary, each party hereto agrees that any Nonpublic Personal Information,
as defined under Section 248.3(t) of Regulation S-P (“Regulation S-P”), promulgated under the Xxxxx- Xxxxx-Xxxxxx
Act (the “Act”), disclosed by a party hereunder is for the specific purpose of permitting the other party to perform
the services set forth in this Agreement. Each party agrees that, with respect to such information, it will comply with Regulation
S-P and the Act and that it will not disclose any Nonpublic Personal Information received in connection with this Agreement
to any other party, except to the extent as necessary to carry out the services set |
forth in this Agreement or as otherwise permitted
by Regulation S-P or the Act.
| 9. |
Compensation.
As compensation for services rendered by Foreside Distributors under this Agreement, the Fund will pay to
Foreside Distributors the fees set forth in that certain fee letter dated April 3, 2006, as amended as of March 1, 2007, and
as such fee letter may be amended by the Fund and Foreside Distributors from time to time. The Fund acknowledges that Foreside
Distributors may receive float benefits and/or investment earnings in connection with maintaining certain accounts required
to provide services under this Agreement. |
| (a) | The Fund agrees to indemnify and hold
harmless Foreside Distributors and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including, without limitation,
attorneys’ fees and disbursements and liabilities arising under
the Securities Laws and any state and foreign securities and blue sky
laws) arising directly or indirectly from any action or omission to
act which Foreside Distributors takes in connection with the provision
of services to the Fund; provided that neither Foreside Distributors,
nor any of its affiliates, shall be indemnified against any liability
(or any expenses incident to such liability) caused by Foreside Distributors’
or its affiliates’ own willful misfeasance, bad faith, negligence
or failure to perform its respective duties and obligations under this
Agreement in any material respect. Any amounts payable by the Fund hereunder
shall be satisfied only against the relevant Portfolio’s assets
and not against the assets of any other investment portfolio of the
Fund. |
| (b) | The Fund agrees to indemnify and hold harmless Foreside Distributors,
its officers, directors, and employees, and any person who controls
Foreside Distributors within the meaning of Section 15 of the 1933 Act,
free and harmless (a) from and against any and all claims, costs, expenses
(including reasonable attorneys’ fees) losses, damages, charges,
payments and liabilities of any sort or kind which Foreside Distributors,
its officers, directors, employees or any such controlling person may
incur under the 1933 Act, under any other statute, at common law or
otherwise, arising out of or based upon: (i) any untrue statement, or
alleged untrue statement, of a material fact contained in the Fund’s
Registration Statement, Prospectus, Statement of Additional Information,
or sales literature (including amendments and supplements thereto),
or (ii) any omission, or alleged omission, to state a material fact
required to be stated in the Fund’s Registration Statement, Prospectus,
Statement of Additional Information or sales literature (including amendments
or supplements thereto), necessary to make the statements therein, in
light of the circumstances in which made, not misleading, provided,
however, that insofar as losses, claims, damages, liabilities or expenses
arise out of or are based upon any such untrue statement or omission
or alleged untrue statement or omission made in reliance on and in conformity
with information furnished to the Fund by Foreside Distributors or its
affiliated persons for use in the Fund’s Registration Statement,
Prospectus, or Statement of Additional Information or sales literature
(including amendments or supplements thereto), such |
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indemnification shall not be applicable; and (b) from and against any and all such claims, demands,
liabilities and expenses (including reasonable attorney’s fees) which Foreside Distributors, its officers and directors,
or such controlling person, may incur in connection with this Agreement or Foreside Distributors’ performance hereunder
(but excluding such claims, demands, liabilities and expenses (including reasonable attorney’s fees) arising out of
or based upon any untrue statement, or alleged untrue statement, of a material fact contained in any Registration Statement
or any Prospectus or arising out of or based upon any omission, or alleged omission, to state a material fact required to
be stated in either any Registration Statement or any Prospectus or necessary to make the statements in either thereof, in
light of the circumstances in which made, not misleading), unless such claims, demands, liabilities and expenses (including
such reasonable attorney’s fees) arise by reason of Foreside Distributors’ willful misfeasance, bad faith, negligence
or failure to perform its respective duties and obligations under this Agreement in any material respect. Any amounts payable
by the Fund hereunder shall be satisfied only against the relevant Portfolio’s assets and not against the assets of
any other investment portfolio of the Fund. The Fund acknowledges and agrees that in the event that Foreside Distributors,
at the request of the Fund, is required to give indemnification comparable to that set forth in this paragraph to any broker-dealer
selling Shares of the Fund or servicing agent servicing the shareholders of the Fund and such broker-dealer or servicing agent
shall |
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make a claim for indemnification against Foreside Distributors, Foreside Distributors may make a similar
claim for indemnification against the Fund. |
| (c) | Foreside Distributors agrees to indemnify
and hold harmless the Fund, its several officers and Board Members and
each person, if any, who controls a Portfolio within the meaning of
Section 15 of the 1933 Act against any and all claims, costs, expenses
(including reasonable attorneys’ fees), losses, damages, charges,
payments and liabilities of any sort or kind which the Fund, its officers,
Board Members or any such controlling person may incur under the 1933
Act, under any other statute, at common law or otherwise, but only to
the extent that such liability or expense incurred by the Fund, its
officers or Board Members, or any controlling person resulting from
such claims or demands arose out of the acquisition of any Shares by
any person which may be based upon any untrue statement, or alleged
untrue statement, of a material fact contained in the Fund’s Registration
Statement, Prospectus or Statement of Additional Information (including
amendments and supplements thereto), or any omission, or alleged omission,
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished or confirmed
in writing to the Fund by Foreside Distributors or its affiliated persons
(as defined in the 1940 Act). The foregoing rights of indemnification
shall be in addition to any other rights to which the Fund or any such
person shall be entitled to as a matter of law. |
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(d) |
(i) Notice of Claim. A
party that seeks indemnification under Section 10 (a), (b) or (c) (“Indemnifying Party”) must promptly give the
other party (“Indemnified Party”) notice of any legal action. However, a delay in notice does not relieve an indemnifying
party of any liability to an Indemnified Party, except to the extent the Indemnifying Party shows that the delay materially
prejudiced the defense of the action. |
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(ii) Participating or Assuming the
Defense. The Indemnifying Party may participate in the defense at any time or it may assume the defense by giving
notice to the Indemnified Party. After assuming the defense, the Indemnifying Party: |
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1. |
shall select an attorney that is reasonably satisfactory to the Indemnified Party; |
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2. |
shall not be liable to the Indemnified Party for any later attorney’s fees or for any other later expenses that
the Indemnified Party incurs, except for reasonable investigation costs (unless counsel for the Indemnifying Party concludes
that there is a conflict of interest between the Indemnifying Party and the Indemnified Party that requires the Indemnified
party to retain separate counsel); |
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3. |
shall not compromise or settle the action without the Indemnified Party’s consent, which consent shall not be unreasonably
withheld or delayed; and |
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4. |
shall not be liable for any compromise or settlement made without its consent. |
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(iii) Failing
to Assume the Defense; Conflict of Interest. If the Indemnifying Party fails to assume the defense of any such
action within a reasonable time after receiving notice of the action, or counsel for the Indemnifying Party determines that
the Indemnified Party requires separate counsel, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable
fees and expenses of counsel retained by the Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall
not confess judgment or otherwise settle or compromise any action in respect of which the Indemnifying Party will be asked
to provide indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not
be unreasonably withheld or delayed. |
| 11. |
Responsibility of
Foreside Distributors. |
| (a) | Foreside
Distributors
shall
be under
no duty
to take
any
action
hereunder
on behalf
of the
Fund
except
as specifically
set
forth
herein
or as
may
be specifically
agreed
to by
Foreside
Distributors
and
the
Fund
in a
written
amendment
hereto.
Foreside
Distributors
shall
be obligated
to exercise
care
and
diligence
in the
performance
of its
duties
hereunder
and
to act
in good
faith
in performing
services
provided
for
under
this
Agreement.
Foreside
Distributors
shall
be liable
only
for
any
damages
arising
out
of Foreside
Distributors’
failure
to perform
its
duties
under
this
Agreement
to the
extent
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such damages arise out of Foreside Distributors’ willful misfeasance, bad faith, negligence or
failure to perform its respective duties and obligations under this Agreement in any material respect. |
| (b) | Without limiting the generality of the
foregoing or of any other provision of this Agreement, (i) Foreside
Distributors shall not be liable for losses beyond its control, including,
without limitation, delays or errors or loss of data occurring by reason
of circumstances beyond Foreside Distributors’ control, provided
that Foreside Distributors has acted in accordance with the standard
set forth in Section 11(a) above; and (ii) Foreside Distributors shall
not be under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity or authority or lack thereof of
any Oral Instruction or Written Instruction, notice or other instrument
which conforms to the applicable requirements of this Agreement, and
which Foreside Distributors reasonably believes to be genuine. |
| (c) | Notwithstanding anything in this Agreement
to the contrary, neither Foreside Distributors nor its affiliates shall
be liable for any consequential, special or indirect losses or damages,
whether or not the likelihood of such losses or damages was known by
Foreside Distributors or its affiliates. |
| (d) | No party may assert a cause of action
against Foreside Distributors or any of its affiliates that allegedly
occurred more than twenty four (24) months after signing of the audit
opinion of the Fund for the financial year during which facts are known
to the Fund that should have alerted it that a basis for such cause
of action existed. |
| (e) | Each party shall have a duty to mitigate
damages for which the other party may become responsible. |
| (f) | The provisions of this Section 11 shall
survive termination of this Agreement. |
| (g) | Notwithstanding
anything
in this
Agreement
to the
contrary,
Foreside
Distributors
shall
have
no liability
either
for
any
error
or omission
of any
of its
predecessors
as servicer
on behalf
of the
Fund
or for
any
failure
to discover
any
such
error
or omission. |
| 12. |
Duties
and Obligations of the Fund. |
| (a) | The Fund represents to Foreside Distributors
that all Registration Statements and Prospectuses filed by the Fund with the
SEC under the 1933 Act with respect to the Shares have been prepared in conformity with the requirements of the 1933 Act and the
rules and regulations of the SEC thereunder. Except as to information included in the Registration Statement in reliance upon
information provided to the Fund by Foreside Distributors or any affiliate of Foreside Distributors for use in the Registration
Statement, the Fund represents and warrants to Foreside Distributors that any Registration Statement, when such Registration Statement
becomes effective, will contain all statements required to be stated therein in conformity with the 1933 Act and the rules and
regulations of the SEC; that all statements of fact contained in any such Registration Statement will be true and correct in all
material respects when such Registration Statement becomes effective; and that no Registration Statement when such |
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Registration Statement becomes effective will include an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which made, not materially misleading to a purchaser of the Shares. Foreside Distributors
may but shall not be obligated to propose from time to time such amendment or amendments to any Registration Statement and
such supplement or supplements to any Prospectus as, in the light of future developments, may, in the opinion of the Foreside
Distributors’ counsel, be necessary or advisable. Foreside Distributors shall promptly notify the Fund of any advice
given to it by its counsel regarding the necessity or advisability of amending or supplementing such Registration Statement,
If the Fund shall not propose such amendment or amendments and/or supplement or supplements within thirty (30) days after
receipt by the Fund of a written request from Foreside Distributors to do so, Foreside Distributors may, at its option, terminate
this Agreement upon thirty (30) days’ prior written notice to the Fund. The Fund shall not file any amendment to any
Registration Statement or supplement to any Prospectus without giving Foreside Distributors reasonable notice thereof in advance;
provided, however, that nothing contained in this Agreement shall in any way limit the Fund’s right to file at any time
such amendments to any Registration Statements and/or supplements to any Prospectus, of whatever character, as the Fund may
deem advisable, such right being in all respects absolute and unconditional. The Fund authorizes Foreside Distributors to
use any current |
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Prospectus or Statement of Additional Information in the form furnished from time to time in connection
with the sale of the Shares. |
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(b) | The Fund represents and warrants to Foreside Distributors that the Fund is a series
of investment company registered under the 1940 Act and the Shares sold by each Portfolio are, and will be, registered under the
1933 Act. |
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(c) | The net asset value of the Shares shall be determined in the manner provided in the
then current Prospectus and Statement of Additional Information relating to the Shares, and when determined shall be applicable
to all transactions as provided in the Prospectus. The net asset value of the Shares shall be calculated by the Fund or by another
entity on behalf of the Fund. Foreside Distributors shall have no duty to inquire into, or liability for, the accuracy of the
net asset value per Share as calculated. |
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(d) | Whenever in its judgment such action is warranted by unusual market, economic or political
conditions or abnormal circumstances of any kind, the Fund may decline to accept any orders for, or make any sales of, the Shares
until such time as the Fund deems it advisable to accept such orders and to make such sales, and the Fund shall advise Foreside
Distributors promptly of any such determination, |
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(e) | The Fund agrees to execute any and all documents and to furnish any and all information
and otherwise to take all actions that may be reasonably necessary in connection with the qualification of the Shares for sale
in such states as Foreside Distributors may designate. The Fund shall notify Foreside Distributors in writing of the states in
which the Shares may be |
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sold and shall notify Foreside Distributors in writing of any changes to the information contained
in the previous notification, |
| 13. |
Duties
and Obligations of Foreside Distributors. |
| (a) | Foreside
Distributors
will
act
on behalf
of the
Fund
for
the
distribution
of the
Shares
covered
by the
Registration
Statement
under
the
1933
Act
and
provide
the
distribution
services
outlined
below,
and
otherwise
described
herein,
and
as follows:
(i)
subject
to any
limitations
imposed
by the
Fund
or the
Adviser,
preparation
and
execution
of sales
or servicing
agreements,
(ii)
preparation
of quarterly
12b-l
Reports
to the
Board
(only
to the
extent
that
a Portfolio
adopts
a plan
pursuant
to Rule
12b-l
under
the
1940
Act),
and
(iii)
if required,
literature
review,
recommendations
and
submission
to FINRA. |
| (b) | Foreside Distributors shall use efforts deemed appropriate by Foreside
Distributors to solicit orders for the sale of the Shares and will undertake
such advertising and promotion requested by the Fund and as it believes
reasonable in connection with such solicitation. To the extent that
Foreside Distributors receives fees under any plan adopted by the Fund
pursuant to Rule 12b-l under the 1940 Act, Foreside Distributors shall
furnish and/or enter into arrangements with others for the furnishing
of marketing or sales services with respect to the Shares as may be
required pursuant to such plan. To the extent that Foreside Distributors
receives shareholder services fees under any shareholder services plan
adopted by the Fund, Foreside Distributors shall furnish and/or enter
into arrangements with others for the |
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furnishing of, personal and/or account maintenance services with respect to the relevant shareholders
of the Fund as may be required pursuant to such plan. It is contemplated that Foreside Distributors may, if authorized in
each instance by the Fund or the Adviser, enter into sales or servicing agreements with securities dealers, financial institutions
and other industry professionals, such as investment advisers, accountants and estate planning firms. Foreside Distributors
will require each dealer with whom Foreside Distributors has a selling agreement to conform to the applicable provisions of
the Prospectus, with respect to the public offering price of the Shares and the other limitations with respect to permitted
shareholders, and Foreside Distributors shall not cause the Fund to withhold the placing of purchase orders so as to make
a profit thereby. |
| (c) | Foreside Distributors shall not utilize any materials in connection
with the sale or offering of Shares except the Fund’s current
Prospectus and Statement of Additional Information and such other materials
as the Fund shall provide or approve. The Fund agrees to furnish Foreside
Distributors with sufficient copies of any and all: agreements, plans,
communications with the public or other materials which the Fund intends
to use in connection any sales of Shares, in adequate time for Foreside
Distributors to file and clear such materials with the proper authorities
before they are put in use. Foreside Distributors and the Fund may agree
that any such material does not need to be filed subsequent to distribution.
In addition, the Fund agrees not to use any such materials until so
filed and cleared for |
| |
use, if required, by appropriate authorities. |
| (d) | Foreside Distributors will transmit
any orders received by it for purchase or redemption of the Shares to
the transfer agent for the Fund. Foreside Distributors will have no
liability for payment for the purchase of Shares sold pursuant to this
Agreement or with respect to redemptions or repurchases of Shares. |
| (e) | No Shares shall be offered by either
Foreside Distributors or the Fund under any of the provisions of this
Agreement and no orders for the purchase or sale of Shares hereunder
shall be accepted by the Fund if and so long as effectiveness of the
Registration Statement then in effect or any necessary amendments thereto
shall be suspended under any of the provisions of the 1933 Act, or if
and so long as a current Prospectus as required by Section 5(b)(2) of
the 1933 Act is not on file with the SEC; provided, however, that nothing
contained in this paragraph shall in any way restrict or have any application
to or bearing upon the Fund’s obligation to redeem Shares tendered
for redemption by any shareholder in accordance with the provisions
of the Fund’s Registration Statement, Articles of Incorporation,
or bylaws. |
| 14. |
Duration and Termination.
This Agreement shall become effective as of the Effective Date and, unless sooner; terminated as provided
herein, shall continue for an initial one-year term and thereafter shall be renewed for successive one-year terms, provided
such continuance is specifically approved at least annually by (i) the Fund’s Board of Directors or (ii) by a vote of
a majority (as defined in the 1940 |
| |
Act and Rule 18f-2 thereunder) of the outstanding voting securities of the Fund, provided that in either
event the continuance is also approved by a majority of the Board Members who are not parties to this Agreement and who are
not interested persons (as defined in the 0000 Xxx) of any party to this Agreement, by vote cast in person at a meeting called
for the purpose of voting on such approval. This Agreement is terminable without penalty, on at least sixty (60) days’
written notice, by the Fund’s Board of Directors or by vote of a majority (as defined in the 1940 Act and Rule 18f-2
thereunder) of the outstanding voting securities of the Fund or, on at least six months’ prior written notice, by Foreside
Distributors. This Agreement will also terminate automatically in the event of its assignment (as defined in the 1940 Act
and the rules thereunder). In the event the Fund gives notice of termination, all expenses associated with movement (or duplication)
of records and materials and conversion thereof to a successor transfer agent or other service provider, and all reasonable
expenses incurred by Foreside Distributors and necessary to effect the foregoing conversion, will be borne by the Fund. |
| 15. |
Notices.
Notices shall be addressed (a) if to Foreside Funds Distributors LLC, Three Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx,
XX 00000, attention: Xxxxx Xxxxxxxx (or such other address as Foreside Distributors may inform the Fund in writing); (b) if
to the Fund, c/o Bessemer Investment Management LLC, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President, with
a copy to the General Counsel at the same address; or (c) if to neither of the foregoing, at such other address as shall have
been given by like notice to the sender of any such notice or other communication by the other party. If notice is sent by
confirming telegram, cable, |
| |
cable, telex or facsimile sending device, it shall be deemed to have been given immediately. If notice
is sent by first-class mail, it shall be deemed to have been given three days after it has been mailed. If notice is sent
by messenger, it shall be deemed to have been given on the day it is delivered. |
| 16. | Amendments.
This Agreement, or any term thereof, may be changed or waived only
by a written amendment, signed by the party against whom enforcement of such change or
waiver is sought. |
| 17. | Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and
the same instrument. |
| 18. | Further
Actions. Each party agrees
to perform such further acts and execute such further documents as are necessary to effectuate
the purposes hereof. |
| (a) | This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided that
the parties may embody in one or more separate documents their agreement,
if any, with respect to delegated duties. |
| (b) | Notwithstanding anything in this Agreement to the contrary, the
Fund agrees to notify Foreside Distributors of any modifications made
to the Fund’s Registration Statement or policies that will affect
Foreside Distributors’ responsibilities under this Agreement;
provided that, Foreside Distributors shall not be bound by any such
modifications that would affect |
| |
materially the obligations or responsibilities of Foreside Distributors hereunder unless Foreside Distributors
shall have accepted such modifications, which acceptance shall not be unreasonably withheld or delayed. |
| (c) | The captions in this Agreement are included
for convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or effect. |
| (d) | This
Agreement
shall
be deemed
to be
a contract
made
in Delaware
and
governed
by New
York
law,
without
regard
to principles
of conflicts
of law. |
| (e) | If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or otherwise,
the remainder of this Agreement shall not be affected thereby. |
| (f) | This
Agreement
shall
be binding
upon
and
shall
inure
to the
benefit
of the
parties
hereto
and
their
respective
successors
and
permitted
assigns. |
| (g) | Except as expressly provided in this
Agreement, Foreside Distributors hereby disclaims all representations
and warranties, express or implied, made to the Fund or any other person,
including, without limitation, any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise (irrespective
of any course of dealing, custom or usage of trade), of any services
or any goods provided incidental to services provided under this Agreement.
Foreside Distributors disclaims any warranty of title or non-infringement
except as otherwise set forth in this Agreement. |
| (h) | The facsimile signature of any party
to this Agreement shall constitute the valid and binding execution hereof
by such party. |
| (i) | The Fund will provide such information
and documentation as Foreside Distributors may reasonably request in
connection with services provided by Foreside Distributors to the Fund. |
| (j) | To
help
the
U.S,
government
fight
the
funding
of terrorism
and
money
laundering
activities,
U.S.
Federal
law
requires
each
financial
institution
to obtain,
verify,
and
record
certain
information
that
identifies
each
person
who
initially
opens
an account
with
that
financial
institution
on or
after
October
1, 2003.
Certain
of Foreside
Distributors
and
certain
of its
affiliates
are
financial
institutions,
and
Foreside
Distributors
may,
as a
matter
of policy,
request
(or
may
have
already
requested)
the
Fund’s
name,
address
and
taxpayer
identification
number
or other
government-issued
identification
number,
and,
if such
party
is a
natural
person,
that
party’s
date
of birth.
Foreside
Distributors
may
also
ask
(and
may
have
already
asked)
for
additional
identifying
information,
and
Foreside
Distributors
may
take
steps
(and
may
have
already
taken
steps)
to verify
the
authenticity
and
accuracy
of these
data
elements. |
| |
[Remainder of
page intentionally left blank. Signature page follows.] |
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed as of the day and year first above written.
OLD WESTBURY FUNDS, INC.
| By: |
/s/ Xxxxx X. Xxxxxxxxxx |
|
| Name: Xxxxx X. Xxxxxxxxxx |
|
| Title: President |
|
FORESIDE FUNDS DISTRIBUTORS LLC
| By: |
/s/ Xxxxxxx X. Xxxxxx |
|
| Name: Xxxxxxx X. Xxxxxx |
|
| Title: President |
|
EXHIBIT
A
THIS EXHIBIT A, dated as of May 31,
2017 is Exhibit A to that certain Underwriting Agreement dated as of May 31, 2017, between Foreside Funds Distributors LLC and
Old Westbury Funds, Inc.
PORTFOLIOS
Old Westbury All Cap Core Fund
Old Westbury Large Cap Strategies Fund
Old Westbury Global Small & Mid Cap Strategies Fund
Old Westbury Strategic Opportunities Fund
Old Westbury Fixed Income Fund
Old Westbury Municipal Bond Fund
