Exhibit 23(e)(i) on Form N-1A
Exhibit 1 under Item 601/Reg. S-K
DISTRIBUTOR'S CONTRACT
This contract is made as of this 1st day of December, 2001, by
and between Edgewood Services, Inc. ("Edgewood"), a New York
corporation, and each of the following investment companies on an
individual and not joint basis (each an "Investment Company"):
The Huntington Funds and Huntington VA Funds, each a Massachusetts
business trust having its principal office and place of business
at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000-0000.
In consideration of the mutual covenants hereinafter contained,
it is hereby agreed by and between the parties hereto as follows:
1. The Investment Company hereby appoints Edgewood as its agent
to sell and distribute shares of the Investment Company which
may be offered in one or more portfolios (the "Funds")
consisting of one or more classes (the "Classes") of shares
(the "Shares"), as described and set forth on one or more
exhibits to this Agreement, at the current offering price
thereof as described and set forth in the current
Prospectuses of the Investment Company. Edgewood hereby
accepts such appointment and agrees to provide such other
services for the Investment Company, if any, and accept such
compensation from the Investment Company, if any, as set
forth in the applicable exhibits to this Agreement.
2. The sale of any Shares may be suspended without prior notice
whenever in the judgment of the Investment Company it is in
its best interest to do so.
3. Neither Edgewood nor any other person is authorized by the
Investment Company to give any information or to make any
representation relative to any Shares other than those
contained in the Registration Statement, Prospectuses, or
Statements of Additional Information ("SAIs") filed with the
Securities and Exchange Commission, as the same may be
amended from time to time, or in any supplemental information
to said Prospectuses or SAIs approved by the Investment
Company. Edgewood agrees that any other information or
representations other than those specified above which it or
any dealer or other person who purchases Shares through
Edgewood may make in connection with the offer or sale of
Shares, shall be made entirely without liability on the part
of the Investment Company. No person or dealer, other than
Edgewood, is authorized to act as agent for the Investment
Company with respect to Edgewood's duties and
responsibilities under this Contract. Edgewood agrees that
in offering or selling Shares as agent of the Investment
Company, it will, in all respects, duly conform to all
applicable state and federal laws and the rules and
regulations of the National Association of Securities
Dealers, Inc., including its Conduct Rules. Edgewood will
submit to the Investment Company copies of all sales
literature before using the same and will not use such sales
literature if disapproved by the Investment Company. See
Amendment dated 11/12/03.
4. This Agreement is effective with respect to each Fund and
each Class, as applicable, as of the date of execution of the
applicable exhibit and shall continue in effect with respect
to each Fund or Class presently set forth on an exhibit and
any subsequent Funds or Classes added pursuant to an exhibit
during the initial term of this Agreement for one year from
the date set forth above, and thereafter for successive
periods of one year if such continuance is approved at least
annually by the Trustees of the Investment Company including
a majority of the members of the Board of Trustees of the
Investment Company who are not "interested persons" (as that
term is defined by the Investment Company Act of 1940 ("1940
Act")) of the Investment Company and have no direct or
indirect financial interest in the operation of any
Distribution Plan relating to the Investment Company or in
any related documents to such Plan ("Independent Trustees")
cast in person at a meeting called for that purpose. If a
Fund or Class is added after the first annual approval by the
Trustees as described above, this Agreement will be effective
as to that Fund or Class upon execution of the applicable
exhibit and will continue in effect until the next annual
approval of this Agreement by the Trustees and thereafter for
successive periods of one year, subject to approval as
described above.
5. This Agreement may be terminated with regard to a particular
Fund or Class at any time, without the payment of any
penalty, by the vote of a majority of the Independent
Trustees or by a majority of the outstanding voting
securities of the particular Fund or Class on not more than
sixty (60) days' written notice to any other party to this
Agreement. This Agreement may be terminated with regard to a
particular Fund or Class by Edgewood on sixty (60) days'
written notice to the Investment Company.
6. This Agreement may not be assigned by Edgewood and shall
automatically terminate in the event of an assignment by
Edgewood as defined in the 1940 Act, provided, however, that
Edgewood may employ such other person, persons, corporation
or corporations as it shall determine in order to assist it
in carrying out its duties under this Agreement.
7. Edgewood shall not be liable to the Investment Company for
anything done or omitted by it, except acts or omissions
involving willful misfeasance, bad faith, gross negligence,
or reckless disregard of the duties imposed by this
Agreement.
8. This Agreement may be amended at any time by mutual agreement
in writing of all the parties hereto, provided that such
amendment is approved by the Trustees of the Investment
Company, including a majority of the Independent Trustees of
the Investment Company cast in person at a meeting called for
that purpose.
9. This Agreement shall be construed in accordance with and
governed by the laws of the Commonwealth of Pennsylvania.
10. (a)Subject to the conditions set forth below, the Investment
Company agrees to indemnify and hold harmless Edgewood and
each person, if any, who controls Edgewood within the
meaning of Section 15 of the Securities Act of 1933 and
Section 20 of the Securities and Exchange Act of 1934
against any and all loss, liability, claim, damage and
expense whatsoever (including but not limited to any and
all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any
litigation, commenced or threatened, or any claim
whatsoever) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement, Prospectuses or
SAIs (as they may be amended or supplemented from time to
time), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary
to make the statements therein not misleading, unless such
statement or omission was made in reliance upon and in
conformity with written information furnished to the
Investment Company about Edgewood by or on behalf of
Edgewood expressly for use in the Registration Statement,
Prospectuses or SAIs, or any amendment or supplement
thereto.
If any action is brought against Edgewood or any
controlling person thereof with respect to which indemnity
may be sought against the Investment Company pursuant to
the foregoing paragraph, Edgewood shall promptly notify
the Investment Company in writing of the institution of
such action and the Investment Company shall assume the
defense of such action, including the employment of
counsel selected by the Investment Company and payment of
expenses. Edgewood or any such controlling person thereof
shall have the right to employ separate counsel in any
such case, but the fees and expenses of such counsel shall
be at the expense of Edgewood or such controlling person
unless the employment of such counsel shall have been
authorized in writing by the Investment Company in
connection with the defense of such action or the
Investment Company shall not have employed counsel to have
charge of the defense of such action, in any of which
events such fees and expenses shall be borne by the
Investment Company. Anything in this paragraph to the
contrary notwithstanding, the Investment Company shall not
be liable for any settlement of any such claim of action
effected without its written consent. The Investment
Company agrees promptly to notify Edgewood of the
commencement of any litigation or proceedings against the
Investment Company or any of its officers or Trustees or
controlling persons in connection with the issue and sale
of Shares or in connection with the Registration
Statement, any Prospectuses and SAIs, or any amendment or
supplement thereto.
(b) Subject to the conditions set forth below, Edgewood agrees to
indemnify and hold harmless the Investment Company, each
of its Trustees, each of its officers who have signed the
Registration Statement and each other person, if any, who
controls the Investment Company within the meaning of
Section 15 of the Securities Act of 1933 and Section 20 of
the Securities and Exchange Act of 1934, against any and
all loss, liability, claim, damage and expense whatsoever
(including but not limited to any and all expenses
whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or
threatened, or any claim whatsoever) arising out of or
based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, Prospectuses or SAIs (as they may be amended or
supplemented from time to time), or the omission or
alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements
therein not misleading, provided that such statement or
omission was made in reliance upon and in conformity with
written information furnished to the Investment Company
about Edgewood by or on behalf of Edgewood expressly for
use in the Registration Statement, Prospectuses or SAIs,
or any amendment or supplement thereto.
If any action is brought against the Investment Company,
any controlling person thereof, or any other person so
indemnified, with respect to which indemnity may be sought
against Edgewood pursuant to the foregoing paragraph, the
Investment Company shall promptly notify Edgewood in
writing of the institution of such action and Edgewood
shall assume the defense of such action, including the
employment of counsel selected by Edgewood and payment of
expenses. The Investment Company, any such controlling
person thereof or any other person so indemnified, shall
have the right to employ separate counsel in any such
case, but the fees and expenses of such counsel shall be
at the expense of the Investment Company or such persons
unless the employment of such counsel shall have been
authorized in writing by Edgewood in connection with the
defense of such action or Edgewood shall not have employed
counsel to have charge of the defense of such action, in
any of which events such fees and expenses shall be borne
by Edgewood. Anything in this paragraph to the contrary
notwithstanding, Edgewood shall not be liable for any
settlement of any such claim or for any other action
effected without its written consent. Edgewood agrees
promptly to notify the Investment Company of the
commencement of any litigation or proceedings against
Edgewood or any of its controlling persons in connection
with the issue and sale of Shares or in connection with
the Registration Statement, Prospectuses or SAIs.
(c) Nothing herein contained shall be deemed to protect any
person against liability to the Investment Company or its
shareholders to which such person would otherwise be
subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of the duties of such
person or by reason of the reckless disregard by such
person of the obligations and duties of such person under
this Agreement.
(d) Insofar as indemnification for liabilities may be permitted
pursuant to Section 17 of the 1940 Act for Trustees,
officers, Edgewood and controlling persons of the
Investment Company by the Trustees pursuant to this
Agreement, the Investment Company is aware of the position
of the Securities and Exchange Commission as set forth in
the Investment Company Act Release No. IC-11330.
Therefore, the Investment Company undertakes that in
addition to complying with the applicable provisions of
this Agreement, in the absence of a final decision on the
merits by a court or other body before which the
proceeding was brought, that an indemnification payment
will not be made unless in the absence of such a decision,
a reasonable determination based upon factual review has
been made (i) by a majority vote of a quorum of non-party
Independent Trustees, or (ii) by independent legal counsel
in a written opinion that the indemnitee was not liable
for an act of willful misfeasance, bad faith, gross
negligence or reckless disregard of duties. The
Investment Company further undertakes that advancement of
expenses incurred in the defense of a proceeding (upon
undertaking for repayment unless it is ultimately
determined that indemnification is appropriate) against an
officer, Trustees, Edgewood or controlling person of the
Investment Company will not be made absent the fulfillment
of at least one of the following conditions: (i) the
indemnitee provides security for his undertaking; (ii) the
Investment Company is insured against losses arising by
reason of any lawful advances; or (iii) a majority of a
quorum of non-party Independent Trustees or independent
legal counsel in a written opinion makes a factual
determination that there is reason to believe the
indemnitee will be entitled to indemnification.
11. If at any time the Shares of any Fund are offered in two
or more Classes, Edgewood agrees to assist in adopting a
written plan pursuant to Rule 18f-3 under the 1940 Act.
12. This Agreement will become binding on the parties hereto
upon the execution of the attached exhibits to the Agreement.
13. Edgewood is hereby expressly put on notice of the limitation
of liability as set forth in the Investment Company's
Declaration of Trust and agrees that the obligations assumed
by the Investment Company pursuant to this Agreement shall be
limited in any case to the Investment Company and its assets
and Edgewood shall not seek satisfaction of any such
obligation from the shareholders of the Investment Company,
the Trustees, officers, employees or agents of the Investment
Company, or any of them.
14. Edgewood or its affiliate will review and file all sales
literature (advertisements, brochures and shareholder
communications) for the Investment Company in accordance with
rules and regulations of the National Association of
Securities Dealers, Inc.
15. Edgewood agrees to maintain the security and confidentiality
of nonpublic personal information ("NPI") of Fund customers
and consumers, as those terms are defined in Xxxxxxxxxx X-X,
00 XXX Part 248. Edgewood agrees to use and redisclose such
NPI for the limited purposes of processing and servicing
transactions; for specified law enforcement and miscellaneous
purposes; and to service providers or in connection with
joint marketing arrangements directed by the Funds, in each
instance in furtherance of fulfilling Edgewood's obligations
under this contract and consistent with the exceptions
provided in 17 CFR Sections 248.14, 248.15 and 248.13,
respectively.
EDGEWOOD SERVICES, INC.
By: /s/Xxxxx X. Xxxxxxx
Name:Xxxxx X. Xxxxxxx
Title: President
THE HUNTINGTON FUNDS
By: /s/ Xxxxx X. Xxxxxxxxx
Name:Xxxxx X. Xxxxxxxxx
Title: Vice President
HUNTINGTON VA FUNDS
By: /s/ Xxxxx X. Xxxxxxxxx
Name:Xxxxx X. Xxxxxxxxx
Title: Vice President
