EXHIBIT 99.(e)(3)
DISTRIBUTION AGREEMENT
AGREEMENT dated as of June 1, 1999 between Holland Series Fund, Inc. (the
"Fund"), an open-end, management investment company organized as a corporation
under the laws of the State of Maryland and ALPS Mutual Funds Services, Inc., a
Colorado corporation and a registered broker-dealer under the Securities
Exchange Act of 1934, having its principal place of business in Denver, Colorado
(the "Distributor").
WHEREAS, the Fund wishes to employ the services of the Distributor in
connection with the promotion and distribution of the shares of each series of
the Fund (the "Shares"); and
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties agree as follows:
1. Documents - The Fund has furnished the Distributor with copies of the
Fund's Certificate of Incorporation, advisory agreement, custodian agreement,
transfer agency agreement, administration agreement, current prospectuses and
statement of additional information, and all forms relating to any plan, program
or service offered by the Fund. The Fund shall furnish promptly to the
Distributor a copy of any amendment or supplement to any of the above-mentioned
documents. The Fund shall furnish promptly to the Distributor any additional
documents necessary or advisable to perform its functions hereunder. As used in
this Agreement the terms "registration statement", "prospectus" and "statement
of additional information" shall mean any registration statement, prospectus and
statement of additional information filed by the Fund with the Securities and
Exchange Commission ("SEC") and any amendments and supplements thereto which at
any time shall have been filed with the SEC.
2. Sale of Shares - The Fund grants to the Distributor the right to sell the
Shares as agent on behalf of the Fund, during the term of this Agreement,
subject to the registration requirements of the Securities Act of 1933, as
amended (the "1933 Act"), the Investment Company Act of 1940 (the "1940 Act")
and of the laws governing the sale of securities in the various states ("Blue
Sky Laws"), under the terms and conditions set forth in this Agreement. The
Distributor shall have the right to sell, as agent on behalf of the Fund, the
Shares covered by the registration statement, prospectus and statement of
additional information for the Fund then in effect under the 1933 Act and the
1940 Act.
3. Sale of Shares by the Fund - The rights granted to the Distributor shall be
nonexclusive in that the Fund reserves the right to sell Shares to investors on
applications received and accepted by the Fund.
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4. Public Offering Price - Except as otherwise noted in the Fund's current
prospectuses and/or statement of additional information, all Shares sold to
investors by the Distributor or the Fund will be sold at the public offering
price. The public offering price for all accepted subscriptions will be the net
asset value per Share, as determined in the manner described in the Fund's
current prospectuses and/or statement of additional information.
5. Suspension of Sales - The Fund reserves the right to suspend sales and the
Distributor's authority to process orders for Shares on behalf of the Fund if,
in the judgment of the Fund, it is in the best interests of the Fund to do so.
Suspension will continue for such period as may be determined by the Fund.
6. Solicitation of Sales - In consideration of these rights granted to the
Distributor, the Distributor agrees to use its best efforts to solicit orders
for the sale of Shares at the public offering price and will undertake such
advertising and promotion as it believes is reasonable in connection with such
solicitation. The Distributor shall review and file such materials with the SEC
and the National Association of Securities, Inc. (the "NASD") to the extent
required by the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the 1940 Act and the rules and regulations thereunder, and by the
rules of the NASD. This shall not prevent the Distributor from entering into
like arrangements (including arrangements involving the payment of underwriting
commissions) with other issuers. The Distributor will act only on its own behalf
as principal should it choose to enter into selling agreements with selected
dealers or others.
7. Authorized Representations - The Distributor is not authorized by the Fund
to give any information or to make any representations other than those
contained in the registration statement or prospectus and statement of
additional information, or contained in the shareholder reports or other
material that may be prepared by or on behalf of the Fund for the Distributor's
use. Consistent with the foregoing, the Distributor may prepare and distribute
sales literature or other material as it may deem appropriate in consultation
with the Fund, provided such sales literature complies with applicable law and
regulation.
8. Registration of Shares - The Fund agrees it will take all action necessary
to register the Shares under the 1933 Act and the 1940 Act (subject to the
necessary approval of its shareholders). The Fund shall make available to the
Distributor, at the Distributor's expense such number of copies of its
prospectus and statement of additional information as the Distributor may
reasonably request. The Fund shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of Shares of the
Fund.
9. Distribution Fees and Expenses - The Distributor 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. Such personnel shall consist of one or more persons, during normal
business hours (7:00 a.m. to 6:00 p.m. mountain time), to respond to telephone
questions with respect to the Fund.
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10. Fund Expenses - Unless otherwise agreed to by the parties hereto in writing
or by the Fund and the Fund's other agents, the Distributor shall not be
responsible for fees and expenses in connection with (a) filing of any
registration statement, printing and the distribution of any prospectus and
statement of additional information under the 1933 Act and/or the 1940 Act and
amendments prepared for use in connection with the offering of Shares for sale
to the public, preparing, setting in type, printing and mailing the prospectus,
statement of additional information and any supplements thereto sent to existing
shareholders, (b) preparing, setting in type, printing and mailing any report
(including annual and semi-annual reports) or other communication to
shareholders of the Fund, and (c) with the Blue Sky registration and
qualification of Shares for sale in the various states in which the officers of
the Fund shall determine it advisable to qualify such Shares for sale (including
registering the Fund as a broker or dealer or any officer of the Fund as agent
or salesman in any state).
11. Use of the Distributor's Name - The Fund shall not use the name of the
Distributor, or any of its affiliates, in any prospectus or statement of
additional information, sales literature, and other material relating to the
Fund in any manner without the prior written consent of the Distributor (which
shall not be unreasonably withheld); provided, however, that the Distributor
hereby approves all lawful uses of the names of the Distributor and its
affiliates in the prospectus and statement of additional information of the Fund
and in all other materials which merely refer in accurate terms to their
appointments hereunder or which are required by the SEC, NASD or OCC or any
state securities authority.
12. Use of the Fund's Name - Neither the Distributor nor any of its affiliates
shall use the name of the Fund in any publicly disseminated materials, including
sales literature in any manner without the prior consent of the Fund (which
shall not be unreasonably withheld); provided, however, that the Fund hereby
approves all lawful uses of its name in any required regulatory filings of the
Distributor which merely refer in accurate terms to the appointment of the
Distributor hereunder, or which are required by the SEC, NASD, OCC or any state
securities authority.
13. Insurance - The Distributor agrees to maintain fidelity bond and liability
insurance coverages which are, in scope and amount, consistent with coverages
customary for distribution activities. The Distributor shall notify the Fund
upon receipt of any notice of material, adverse change in the terms or
provisions of its insurance coverage. Such notification shall include the date
of change and the reason or reasons therefor. The Distributor shall notify the
Fund of any material claim against it, whether or not covered by insurance, and
shall notify the Fund from time to time as may be appropriate of the total
outstanding claims made by it under its insurance coverage.
14. Indemnification - The Fund agrees to indemnify and hold harmless the
Distributor and each of its directors and officers and each person, if any, who
controls the Distributor within the meaning of Section 15 of the 1933 Act,
against any loss, liability, claim, damages or expenses (including the
reasonable cost of investigating or defending any alleged loss, liability,
claim, damages or expense and reasonable counsel fees incurred in connection
therewith) arising by
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reason of any person acquiring any Shares, based upon the ground that the
registration statement, prospectus, statement of additional information,
shareholder reports or other information filed or made public by the Fund (as
from time to time amended) included an untrue statement of a material fact or
omitted to state a material fact required to be stated or necessary in order to
make the statements not misleading under the 1933 Act, the 1940 Act or any other
statute or the common law. However, the Fund does not agree to indemnify the
Distributor or hold it harmless to the extent that the statement or omission was
made in reliance upon, and in conformity with, information furnished to the Fund
by or on behalf of the Distributor. In no case (i) is the indemnity of the Fund
in favor of the Distributor or any person indemnified to be deemed to protect
the Distributor or such person against any liability to the Fund or its security
holders to which the Distributor or any person would otherwise be subject by
reason of willful misfeasance, bad faith or negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
under this Agreement, or (ii) is the Fund to be liable under its indemnity
agreement contained in this paragraph with respect to any claim made against the
Distributor or any person indemnified unless the Distributor or person, as the
case may be, shall have notified the Fund in writing of the claim promptly after
the summons or other first written notification giving information of the nature
of the claim shall have been served upon the Distributor or any such person (or
after the Distributor or such person shall have received notice of service on
any designated agent). However, failure to notify the Fund of any claim shall
not relieve the Fund from any liability which it may have to the any person
against whom such action is brought otherwise than on account of its indemnity
agreement contained in this paragraph. The Fund shall be entitled to participate
at its own expense in the defense, or, if it so elects, to assume the defense of
any suit brought to enforce any claims, and if the Fund elects to assume the
defense, the defense shall be conducted by counsel chosen by the Fund. In the
event the Fund elects to assume the defense of any suit and retain counsel, the
Distributor, officers or directors or controlling person or persons, defendant
or defendants in the suit, shall bear the fees and expenses of any additional
counsel retained by them. If the Fund does not elect to assume the defense of
any suit, it will reimburse the Distributor, officers or directors or
controlling person or persons, defendant or defendants in the suit for the
reasonable fees and expenses of any counsel retained by them. The Fund agrees to
notify the Distributor promptly of the commencement of any litigation or
proceedings against it or any of its officers in connection with the issuance or
sale of any of the Shares.
The Distributor also covenants and agrees that it will indemnify and hold
harmless the Fund and each of its officers and each person, if any, who controls
the Fund within the meaning of Section 15 of the 1933 Act, against any loss,
liability, damages, claims or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, damages, claim or
expense and reasonable counsel fees incurred in connection therewith) arising by
reason of any person acquiring any Shares, based upon the 1933 Act, the 1940 Act
or any other statute or common law, alleging (a) any wrongful act of the
Distributor or any of its employees or (b) that any sales literature,
advertisements, information, statements or representations used or made by the
Distributor or any of its affiliates or employees or that the registration
statement, prospectus, statement of additional information, (as from time to
time amended) included an untrue statement of a material fact or omitted to
state a material fact required to be stated or necessary in
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order to make the statements not misleading, insofar as the statement or
omission was made in reliance upon, and in conformity with, information
furnished to the Fund by or on behalf of the Distributor. In no case (i) is the
indemnity of the Distributor in favor of the Fund or any person indemnified to
be deemed to protect the Fund or any person against any liability to which the
Fund or such person would otherwise be subject by reason of willful misfeasance,
bad faith or negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties under this Agreement, or (ii)
is the Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or person, as the case may be, shall have notified
the Distributor in writing of the claim promptly after the summons or other
first written notification giving information of the nature of the claim shall
have been served upon the Fund or any such person (or after the Fund or such
person shall have received notice of service on any designated agent). However,
failure to notify the Distributor of any claim shall not relieve the Distributor
from any liability which it may have to the Fund or any person against whom the
action is brought otherwise than on account of its indemnity agreement contained
in this paragraph. In the case of any notice to the Distributor, it shall be
entitled to participate, at its own expense, in the defense or, if it so elects,
to assume the defense of any suit brought to enforce the claim, and if the
Distributor elects to assume the defense, the defense shall be conducted by
counsel chosen by it and satisfactory to the Fund, to its officers and to any
controlling person or persons, defendant or defendants in the suit. In the event
that the Distributor elects to assume the defense of any suit and retain
counsel, the Fund or controlling persons, defendant or defendants in the suit,
shall bear the fees and expense of any additional counsel retained by them. If
the Distributor does not elect to assume the defense of any suit, it will
reimburse the Fund, officers or controlling person or persons, defendant or
defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Distributor agrees to notify the Fund promptly of the
commencement of any litigation or proceedings against it in connection with the
Fund and sale of any of the Shares.
15. Supplemental Information - The Distributor and the Fund shall regularly
consult with each other regarding the Distributor's performance of its
obligations under this Agreement. In connection therewith, the Fund shall submit
to the Distributor at a reasonable time in advance of filing with the SEC copies
of any amended or supplemented registration statement (including exhibits) under
the 1933 Act and the 1940 Act; 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 statement and/or supplements to any prospectus or
statement of additional information, of whatever character, as the Fund may deem
advisable, such right being in all respects absolute and unconditional.
The Distributor acknowledges that the only information provided to it by the
Fund is that contained in the registration statement, the prospectus, the
statement of additional information and reports and financial information
referred to herein. Neither the Distributor nor any other person is authorized
by the Fund to give any information or to make any representations, other than
those contained in such documents and any sales literature or advertisements
specifically approved by appropriate representatives of the Fund.
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16. Term - This Agreement shall become effective as of June 1, 1999 and shall
continue until two years from such date and thereafter shall continue
automatically for successive annual periods, provided such continuance is
specifically approved at least annually (i) by the Fund's Board of Directors or
(ii) by a vote of a majority of the outstanding voting securities of the
relevant Portfolios of the Fund (as defined in the 1940 Act), provided that in
either event the continuance is also approved by the majority of the Directors
of the Fund 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 sixty days' notice by the Fund's Board of Directors, by vote of the holders
of a majority of the Fund's outstanding Shares or by the Distributor. This
Agreement shall automatically terminate in the event of its assignment (as
defined in the 1940 Act).
Upon the termination of this Agreement, the Distributor, at the Fund's expense
and direction, shall transfer to such successor as the Fund shall specify all
relevant books, records and other data established or maintained by the
Distributor under this Agreement.
17. Notice - Any notice required or permitted to be given by either party to
the other shall be deemed sufficient if sent by (i) telex, (ii) telecopier, or
(iii) registered or certified mail, postage prepaid, addressed by the party
giving notice to the other party of the last address furnished by the other
party to the party giving notice: if to the Fund at Holland Series Fund, Inc.,
c/o Holland & Company, L.L.C., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Xxxxxxx X. Xxxxxxx, with a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxx X. Xxxxxxx; and if
to the Distributor, at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, 00000,
Attn: Xxxxxxx X. Xxxx, or such other telex number or address as may be furnished
by one party to the other.
18. Confidential Information - The Distributor, its officers, directors,
employees and agents will treat confidentially and as proprietary information of
the Fund all records and other information relative to the Fund and to prior or
present shareholders or to those persons or entities who respond to the
Distributor's inquiries concerning investment in the Fund, and will not use such
records and information for any purposes other than performance of its
responsibilities and duties hereunder. If Distributor is requested or required
by, but not limited to, oral questions, interrogatories, request for information
or documents, subpoena, civil investigations, demand or other action, proceeding
or process or as otherwise required by law, statute, regulation, writ, decree or
the like to disclose such information, Distributor will provide Fund with prompt
written notice of any such request or requirement so that Fund may seek an
appropriate protective order or other appropriate remedy and/or waive compliance
with this provision. If such order or other remedy is not sought, or obtained,
or waiver not received, Distributor may without liability hereunder, disclose to
the person entity or agency requesting or requiring the information, that
portion of the information that is legally required in the opinion of
Distributor's counsel.
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19. Limitation of Liability - The Distributor is expressly put on notice of the
limitation of shareholder, officer and Director liability as set forth in the
Certificate of Incorporation of the Fund and agrees that the obligations assumed
by the Fund under this contract shall be limited in all cases to the Fund and
its assets. The Distributor agrees that it shall not seek satisfaction of any
such obligation from the shareholders or any individual shareholder of the Fund.
Nor shall the Distributor seek satisfaction of any such obligation from the
Directors, officers or any individual Director or officer of the Fund. The
Distributor understands that the rights and obligations of each series of Shares
of the Fund under the Fund's Certificate of Incorporation are separate and
distinct from those of any and all other series.
Any obligations of the Fund entered into in the name or on behalf thereof by any
of the Directors or officers, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Directors or officers, shareholders, or representatives of the Fund personally,
but bind only the Fund property, and all persons dealing with any class of
Shares of the Fund must look solely to the Fund property belonging to such class
for the enforcement of any claims against the Fund.
20. Miscellaneous - Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof. This
Agreement shall be construed and enforced in accordance with and governed by,
and construed and interpreted in accordance with, the laws of the State of New
York. 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. This Agreement may not be changed, waived,
discharged or amended except by written instrument which shall make specific
reference to this Agreement and which shall be signed by the party against which
enforcement of such change, waiver, discharge or amendment is sought. This
Agreement may be executed simultaneously in two or more counterparts, each of
which taken together shall constitute one and the same instrument.
All activities by Distributor and its agents and employees as distributor of the
Shares shall comply with all applicable laws, rules and regulations, including,
without limitation, all rules and regulations made or adopted by the SEC or any
securities association registered under the Exchange Act.
Distributor will promptly transmit any orders received by it for purchase,
redemption or exchange of the Shares to the Fund's transfer agent.
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IN WITNESS WHEREOF, the Fund has executed this instrument in its name and
behalf, and the Distributor has executed this instrument in its name and behalf,
as of the day and year first above written.
HOLLAND SERIES FUND, INC. ALPS MUTUAL FUNDS SERVICES, INC.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
By:_______________________ By:_____________________________
Xxxxxxx X. Xxxxxxx Xxx Xxxxxx
Title: President Title: Chief Financial Officer
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