DELAFIELD FUND, INC.
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "DISTRIBUTION AGREEMENT") is entered
into on this 1st day of September, 2005 by and between the Delafield Fund, Inc.
(the "FUND") and IXIS Asset Management Distributors, L.P. (the "DISTRIBUTOR").
W I T N E S S E T H:
In consideration of the premises and covenants hereinafter contained, the Fund
and the Distributor agree as follows:
1. DISTRIBUTOR. The Fund hereby appoints the Distributor as general
distributor of shares of common stock ("FUND SHARES") of
the Fund during the term of this Distribution Agreement. This
Agreement is being entered into pursuant to the Distribution and
Service Plan adopted by the Fund in accordance with Rule 12b-1 of the
Investment Company Act of 1940, as amended (the "1940 Act"). The Fund
reserves the right, however, to refuse at any time or times to sell
any Fund Shares hereunder for any reason.
2. SALE. Under this Agreement, the following provisions shall apply with
respect to the sale for Fund Shares:
(a)The parties hereby agree that the Distributor will act as
the Fund's agent, and the Fund hereby appoints the Distributor
as the Fund's agent to offer and to solicit offers to
subscribe to the unsold balance of Fund Shares as shall be
effectively registered under the Securities Act of 1933, as
amended (the "1933 Act"). The Fund reserves the right to sell
Fund Shares through other distributors or directly to
investors through subscriptions received by the Fund at its
principal office in New York, New York.
(b) The Distributor agrees to use reasonable efforts to obtain
subscriptions to Fund Shares upon the terms and conditions
contained herein and in the Fund's prospectus as in effect
from time to time. The Distributor also agrees to provide the
following services on behalf of the Fund: (i) coordinate
relationships with financial intermediaries including
negotiation of selling agreement business terms, provided that
the Fund must consent to any arrangements that involve
payments by the Fund, including arrangements which would
require the Fund to make payments to the Distributor, other
than the seven (7 bps) basis point fee described on Schedule A
of the Marketing and Sales Support Agreement; (ii) develop and
implement sales and marketing plans for the Fund; (iii)
develop marketing materials and coordinate legal review of
written and electronic advertising and sales literature and
edit for conformity with National Association of Securities
Dealers ("NASD") standards, file and clear advertising and
sales literature through NASD and outside firms that require
submission and approval of communications prior to
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release to their affiliated representatives; (iv) forward to
the Fund any correspondence received on behalf of the Fund,
including but not limited to sales related complaints
concerning the Fund; and (v) coordinate registration of the
Fund with the National Securities Clearing Corporation
("NSCC") and file required Fund/SERV reports with the NSCC.
(c) The Fund reserves the right to suspend the offering of
Fund Shares at any time, in the absolute discretion of the
Fund's Board of Directors, and upon notice of such suspension
the Distributor shall cease to offer shares of the Fund's
common stock hereunder.
3. FEES. For its services as general distributor of the Fund Shares and
for providing or arranging for there to provide all personal
shareholder servicing and relating maintenance for shareholder account
functions not performed by the Fund or its transfer agent, the Fund
shall pay the Distributor a fee (the "Fee") in an amount of
one-quarter of one percent (0.25%) per annum of the Fund's average
daily net assets. The Fee shall be accrued daily and paid monthly to
the Distributor as soon as practicable after the end of the calendar
month in which it accrues, but in any event within five (5) business
days following the last day of the month. In addition, the Distributor
shall be entitled to retain any applicable sales charge, as set forth
in the current prospectus of the Fund relating to Fund Shares.
4. PUBLIC OFFERING PRICE. The public offering price shall be the NAV of
Fund Shares, plus any applicable sales charge, all as set forth in the
current prospectus and statement of additional information
("PROSPECTUS") of the Fund relating to the Shares. The NAV of Fund
Shares shall be determined in accordance with the provisions of the
current Prospectus of the Fund relating to the Fund Shares.
5. FUND'S ISSUANCE OF FUND SHARES. The delivery of Fund Shares shall be
made promptly by a credit to a shareholder's open account for the
Fund. The Fund reserves the right (a) to issue Fund Shares at any time
directly to the shareholders of the Fund as a stock dividend or stock
split, (b) to issue to such shareholders shares of the Fund, or rights
to subscribe to shares of the Fund, as all or part of any dividend
that may be distributed to shareholders of the Fund or as all or part
of any optional or alternative dividend that may be distributed to
shareholders of the Fund or any other offering by the Fund of
securities to its shareholders, (c) to issue Fund Shares in connection
with the merger or consolidation of any other investment company with
the Fund or in connection with the Fund's purchase of all or
substantially all of the assets or stock of any other investment
company, and (d) to sell Fund Shares in accordance with the current
applicable Prospectus of the Fund relating to the Fund Shares.
6. REDEMPTION OR REPURCHASE. The Distributor shall act as agent for the
Fund in connection with the redemption or repurchase of Fund Shares by
the Fund to the extent and upon the terms and conditions set forth in
the current applicable Prospectus of the Fund relating to the Fund
Shares.
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7. UNDERTAKING REGARDING SALES. The Distributor shall use reasonable
efforts to sell Fund Shares but does not agree hereby to sell any
specific number of Fund Shares and shall be free to act as distributor
of the shares of other investment companies. Fund Shares will be sold
by the Distributor only against orders therefore. The Distributor
shall not purchase Fund Shares from anyone except in accordance with
Sections 2 and 6 and shall not take "long" or "short" positions in
Fund Shares contrary to the Agreement, articles of incorporation and
by-laws of the Fund.
8. COMPLIANCE. (a) The Distributor agrees to make all sales of Fund
Shares effected through it in compliance with all applicable Federal
securities lawas and the rules and regulations of the National
Association of Securities Dealers ("NASD") and the sale of securities
laws of any jurisdiction in which it sells, directly or indirectly,
any Fund Shares. The Distributor agrees to make timely filings, with
the Securities and Exchange Commission (the "SEC"), the NASD and such
other regulatory authorities as may be required, of any sales
literature relating to the Fund and intended for distribution to
prospective investors. The Distributor also agrees to furnish to the
Fund sufficient copies of any agreements or plans it intends to use in
connection with any sales of Fund Shares in adequate time for the
Fund, or its designated agent, to file and clear them with the proper
authorities before they are put in use (which the Fund agrees to use
its best efforts to do as expeditiously as reasonably possible), and
not to use them until so filed and cleared.
(b) The Distributor agrees to comply with the terms of the Fund's
Prospectus and its policies and procedures relating to frequent trading
and agrees to provide reasonable cooperation to the Fund and its
transfer agent in implementing and applying the policies and procedures
of the Fund aimed at detecting and prevention frequent trading. This
assistance may include providing the Fund or its agents with
information concerning shareholder activity in omnibus accounts held by
financial intermediaries who have entered into agreements with the
Distributor or assisting the Fund in obtaining such information from
these intermediaries. The Distributor also agrees to provide reasonable
cooperation and assistance to the Fund in connection with performing
due diligence of, and obtaining representations or certifications from,
financial intermediaries relating to their policies and procedures with
respect to (i) the handling and processing of orders for Fund Shares in
compliance with applicable law and (ii) the application of redemption
fees and limitations on short-term trading and exchanges, if any.
9. Registration and Qualification of Fund Shares. The Fund agrees to
execute such papers and to do such acts and things as shall from time
to time be reasonably requested by the Distributor for the purpose of
qualifying and maintaining qualification of the Fund Shares for sale
under the so-called Blue Sky Laws of any state or for maintaining the
registration of the Fund and of the Fund Shares under the 1933 Act and
the Investment Company Act of 1940, as amended (the "1940 Act"), to
the end that there will be available for sale from time to time such
number of Fund Shares as the Distributor may reasonably be expected to
sell. The Fund shall advise the Distributor promptly of (a) any action
of the SEC or any authorities of any state or territory, of which it
may be advised, affecting registration or qualification of the
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Fund or the Fund Shares, or rights to offer Fund Shares for sale, and
(b)the happening of any event which makes untrue any statement or
which requires the making of any change in the Fund's registration
statement or its Prospectus relating to the Fund Shares in order to
make the statements therein not misleading.
10. Agents and Employees of the Distributor. The Distributor may use
employees, agents and other persons, at its cost and expense, to
assist it in carrying out is obligations hereunder, but no such
employee, agent or other person shall be deemed to be an agent of the
Fund or have any rights under this Agreement. Neither the Distributor
nor any of its officers or employees, as such, is or shall be an
employee of the Fund. The Distributor is responsible for its own
conduct and the employment, control and conduct of its agents and
employees and for injury to such agents or employees or to others
through its agents or employees. The Distributor assumes full
responsibility for its agents and employees under applicable statutes
and agrees to pay all employer taxes thereunder. The Distributor may
sell Fund Shares through qualified brokers, dealer and financial
institutions under selling and servicing agreements provided that no
dealer, financial institutions or other persons shall be appointed or
authorized to act as Fund's agent, except as may otherwise be
authorized within such selling and servicing agreement, without the
Fund's written consent.
11. Expenses Paid by Distributor. While the Distributor continues to act
as agent of the Fund to obtain subscriptions for and to sell Fund
Shares, the Distributor shall pay the following:
(a) all expenses of printing (exclusive of typesetting) and
distributing any Prospectus for use in offering Fund Shares
for sale, and all other copies of any such Prospectus used by
the Distributor, and
(b) all other expenses of advertising and of preparing,
printing and distributing all other literature or material for
use in connection with offering Fund Shares for sale.
12. Interests in and of Distributor. It is understood that any of the
shareholders, directors, officers, employees and agents of the Fund
may be a shareholder, director, officer, employee or agent of, or be
otherwise interested in, the Distributor, any affiliated person of the
Distributor, any organization in which the Distributor may have an
interest or any organization which may have an interest in the
Distributor; that the Distributor, any such affiliated person or any
such organization may have an interest in the Fund; and that the
existence of any such dual interest shall not affect the validity
hereof or of any transaction hereunder except as otherwise provided in
the Agreement, articles of incorporation and by-laws of the Fund, in
the limited partnership agreement of the Distributor or by specific
provision of applicable law.
13. Anti-Money Laundering Representations. The Distributor represents,
warrants and agrees that (a) the Distributor has, and agrees to
maintain, an anti-money laundering ("AML") program that satisfies the
requirements of Title III of the USA PATRIOT Act and applicable
anti-money laundering regulations ("Applicable
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Law"); (b) the Distributor will comply with Applicable
Law with respect to Fund Shares held by financial intermediaries on
behalf of their customers, including, but not limited to, the
monitoring and reporting of suspicious transactions and the
implementation of a customer identification program that complies with
Applicable Law. The Distributor may delegate its AML responsibilities
hereunder, including customer identification and monitoring of
suspicious transactions with respect to the underlying customers, in
whole or part to the financial intermediaries, in accordance with
Applicable Law. The Distributor further agrees that it will be
responsible for performing screening of any financial intermediaries
with which it enters into a selling or other agreement hereunder in
accordance with the Fund's AML Policy; provided, however, that the
Distributor will not be required to screen financial intermediaries
that have already entered into selling or servicing agreements with
the principal underwriter of the Fund prior to the effective date of
this Agreement. In addition, the Distributor agrees to assist the Fund
in complying with the Fund's Compliance Policies and Procedures
adopted pursuant to Rule 38a-1 of the 1940 Act and the Fund's AML
Policies with respect to the oversight of financial intermediaries
that are responsible for performing AML responsibilities on behalf of
the Fund, including sending out periodic certifications or such other
actions that the Fund may reasonably request. The Distributor also
agrees to permit inspection by U.S. federal departments or regulatory
agencies with appropriate jurisdiction and to make available to
examiners from such departments or regulatory agencies such
information and records relating to Distributor's AML program as they
may reasonably request.
14. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold the Distributor, its
officers and employees, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, free and harmless
from and against any and all claims, liabilities and expenses
(including the cost of investigating or defending such claims, demands
or liabilities and any counsel fees incurred in connection therewith)
which the Distributor, its officers and employees, or any such
controlling person may incur, under the 1933 Act or the 1940 Act, or
under common law or otherwise, arising out of or based upon any alleged
untrue statement of a material fact contained in the Fund's Prospectus
in effect from time to time or arising out of or based upon any alleged
omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that in no event shall anything herein contained be so
construed as to protect the Distributor against any liability to the
Fund or its security holders to which the Distributor would otherwise
be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations and duties under this Agreement.
The Fund's agreement to indemnify the Distributor, its officers and
employees, and any such controlling person is expressly conditioned
upon the Fund being notified or any action brought against the
Distributor or any such controlling person, such notification to be
given by letter or by telegram addressed to the Fund at the Fund's
principal office in New York, New York, and sent to the Fund by the
person against whom such action is brought within ten days
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after the summons or other first legal process shall be served. The
failure to notify the Fund or any such action shall not relieve the
Fund from any liability which the Fund may have to the persons against
whom such action is brought other than on account of the Fund's
indemnity agreement contained in this paragraph 14. The Fund will be
entitled to assume the defense of any suit brought to enforce any such
claim, and to retain counsel of good standing chosen by the Fund and
approved by the Distributor. In the event the Fund does elect to
assume the defense of any such suit and retain counsel of good
standing approved by the Distributor, the defendant or defendants in
such suit shall bear the fees and expenses of any additional counsel
retained by any of them; but in case the Fund does not elect to assume
the defense of any such suit, or in case the Distributor, in good
faith, does not approve of counsel chosen by the Fund, the Fund will
reimburse the Distributor, its officers and employees, or the
controlling person or persons named as defendant or defendants in such
suit, for the fees and expenses of any counsel retained by the
Distributor or them. The Fund's indemnification agreement contained in
this paragraph 14 and the Fund's representations and warranties in
this agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of the Distributor, its officers
and employees, or any controlling person and shall survive the sale of
any shares of the Fund's common stock made pursuant to subscriptions
obtained by the Distributor. This agreement of indemnity will inure
exclusively to the Distributor and its officers and employees'
benefit, to the benefit of the Distributor's successors and assigns,
and to the benefit of any of the Distributor's controlling persons and
their successors and assigns. The Fund agrees promptly to notify the
Distributor of the commencement of any litigation or proceeding
against the Fund in connection with the issue and sale of any shares
of the Fund's common stock.
(b) The Distributor agrees to indemnify, defend and hold the Fund, the
Fund's several officers and directors, and any person who controls the
Fund within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all claims, demands, liabilities, and
expenses (including the cost of investigating or defending such claims,
demands or liabilities and any reasonable counsel fees incurred in
connection therewith) which the Fund, the Fund's officers or directors,
or any such controlling person may incur under the 1933 Act or under
common law or otherwise, but only to the extent that such liability or
expense incurred by the Fund, the Fund's officers or directors or such
controlling person shall arise out of or be based upon any alleged
untrue statement of a material fact contained in information furnished
in writing by the Distributor to the Fund for use in the Fund's
Prospectus as in effect from time to time, or shall arise out of or be
based upon any alleged omission to state a material fact in connection
with such information required to be stated in the Prospectus or
necessary to make such information not misleading. The Distributor's
agreements to indemnify the Fund, the Fund's officers and directors,
and any such controlling person is expressly conditioned upon the
Distributor being notified of any action brought against the Fund, the
Fund's officers or directors or any such controlling person, such
notification to be given by letter or telegram addressed to the
Distributor at the Distributor's principal officer in Boston,
Massachusetts, and sent to the Distributor by the person against whom
such action is brought, within ten days after the summons or other
first legal process shall have
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been served. The Distributor shall have a right to control the defense
of such action, with counsel of the Distributor's own choosing,
satisfactory to the Fund, if such action is based solely upon such
alleged misstatement or omission on the Distributor's part, and in any
other event the Distributor and the Fund, the parties respective
officers or directors or such controlling person shall each have the
right to participate in the defense or preparation of the defense of
any such action. The failure to notify the Distributor of such action
shall not relieve the Distributor from any liability which the
Distributor may have the Fund, to the Fund's officers or directors, or
to such controlling person other than on account of the Distributor's
indemnity agreement contained in this paragraph 14.
15. EFFECTIVE DATE AND TERMINATION. This Distribution Agreement shall
become effective as of the date first written above, and
(a) Unless otherwise terminated, this Distribution Agreement
shall continue in effect for an initial term ending April 30,
2006 and will continue thereafter for successive twelve-month
periods so long as such continuation is specifically approved
at least annually (i) by the Board of Directors of the Fund or
by the vote of a majority of the votes which may be cast by
shareholders of the Fund and (ii) by a vote of a majority of
the Board of Directors of the Fund who are not interested
persons of the Distributor or the Fund and who have no direct
or indirect financial interest in the operation of the Fund's
12b-1 Plan or in any agreement related to the 12b-1 Plan, cast
in person at a meeting called for the purpose of voting on
such approval.
(b) This Distribution Agreement may at any time be terminated
on sixty (60) days' notice to the Distributor either by vote
of a majority of the Fund's Board of Directors who are not
interested persons of the Fund and who have no direct or
indirect financial interest in the operation of the Fund's
12b-1 Plan or in any agreement related to the 12b-1 Plan or by
the vote of a majority of the votes which may be cast by
shareholders of the Fund.
(c) This Distribution Agreement shall automatically terminate
in the event of its assignment.
(d) This Distribution Agreement may be terminated by the
Distributor on ninety (90) days' written notice to the Fund.
Termination of this Distribution Agreement pursuant to this section shall be
without payment of any penalty.
16. DEFINITIONS. For purposes of this Distribution Agreement, the
following definitions shall apply:
(a) The "vote of a majority of the votes which may be cast by
shareholders of the Fund" means (1) 67% or more of the votes
of the Fund present (in person or by proxy) and entitled to
vote at such meeting, if the
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holders of more than 50% of the outstanding shares of the
Fund entitled to vote at such meeting are present; or (2)
the vote of the holders of more than 50% of the outstanding
shares of the Fund entitled to vote at such meeting,
whichever is less.
(b) The terms "affiliated person," "interested person" and
"assignment" shall have their respective meanings as defined
in the 1940 Act subject, however, to such exemptions as may be
granted by the SEC under the 1940 Act.
17. AMENDMENT. This Distribution Agreement may be amended at any time by
mutual consent of the parties, provided that such consent on the part
of the Fund shall be approved (i) by the Board of Directors of the
Fund or by vote of a majority of the votes which may be cast by
shareholders of the Fund and (ii) by a vote of a majority of the Board
of Trustees of the Fund who are not interested persons of the
Distributor or the Fund cast in person at a meeting called for the
purpose of voting on such approval.
18. APPLICABLE LAW AND LIABILITIES. This Distribution Agreement shall be
governed by and construed in accordance with the laws of the State of
New York.
19. LIMITED RECOURSE. The Distributor hereby acknowledges that the Fund's
obligations hereunder with respect to the shares of the Fund are
binding only on the assets and property belonging to the Fund.
IN WITNESS WHEREOF, the parties hereto have executed this Distribution
Agreement on the day and year first above written.
DELAFIELD FUND, INC. IXIS ASSET MANAGEMENT
DISTRIBUTORS, L.P.
By: IXIS Asset Management Distribution
Corporation, its general partner
By: /s/Xxxxxxx Xxxxxxx By: /s/Xxxx X. Xxxxxx
Name: Xxxxxxx Xxxxxxx Name:Xxxx X. Xxxxxx
Title:Secretary Title:President & CEO
