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EXHIBIT 99.E
DISTRIBUTION AGREEMENT
This Agreement, made as of the _________________________ day of
________ between The Vantagepoint Funds, a Delaware business trust (the
"Fund"), and RC Services, LLC,. (the "Distributor"), a Delaware limited
liability Company.
WITNESSETH:
WHEREAS, the Fund proposes to engage in business as an open-end
management investment company and is registered as such under the Investment
Company Act of 1940, as amended (the "1940 Act") and its shares are registered
under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a member
in good standing of the National Association of Securities Dealers, Inc. (the
"NASD"); and
WHEREAS, the Fund and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of the Fund's shares of
beneficial interest (the "Shares") to commence on __________________,
NOW, THEREFORE, in consideration of the mutual covenants set forth in
this Agreement, the Fund and the Distributor hereby agree as follows:
1. Appointment of Distributor. The Fund hereby appoints the
Distributor as its exclusive agent to sell and to arrange for the sale of the
Fund's shares of beneficial interest ("Shares") at the net asset value per
share plus any applicable sales charges in accordance with the Fund's current
prospectus(es), on the terms and for the period set forth in this Agreement,
and the Distributor hereby accepts such appointment and agrees to act hereunder
directly and/or through the Fund's transfer agent using all reasonable efforts
in connection with the distribution of Shares of the Fund.
2. Services and Duties of the Distributor.
(a) The Distributor agrees to sell the Shares, as agent
for the Fund, from time to time during the term of this Agreement upon the
terms described in the Fund's current Prospectus(es). As used in this
Agreement, the term "Prospectus" shall mean the prospectus and statement of
additional information included as part of the Fund's Registration Statement,
as such prospectus and statement of additional information may be amended or
supplemented from time to time, and the term "Registration Statement" shall
mean the registration statement most
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recently filed from time to time by the Fund with the Securities and Exchange
Commission and any amendments thereto at the time in effect.
(b) The Distributor will hold itself available to receive
orders, that the Distributor reasonably believes to be in good order, for the
purchase of the Shares and will accept such orders and will transmit such
orders as are so accepted and funds received by it in payment for such Shares
to the Fund's transfer agent or custodian, as appropriate, as promptly as
practicable. Purchase orders shall be deemed effective at the time and in the
manner set forth in the Prospectus.
(c) The offering price of the Shares shall be the net
asset value per share of the Shares plus any applicable sales charges,
determined as set forth in the Prospectus. The Fund shall furnish the
Distributor, with all possible promptness, each computation of net asset value
and offering price.
3. Duties of the Fund.
(a) Maintenance of Federal Registration. The Fund shall,
at its expense, take, from time to time, all necessary action and such steps,
including payment of the related filing fees, as may be necessary to register
and maintain registration of a sufficient number of Shares under the 0000 Xxx.
The Fund agrees to file from time to time such amendments, reports and other
documents as may be necessary in order that there may be no untrue statement of
a material fact in a Registration Statement or Prospectus, or necessary in
order that there may be no omission to state a material fact in the
Registration Statement or Prospectus which omission would make the statements
therein misleading.
(b) Maintenance of "Blue Sky" Qualifications. The Fund
shall, at its expense, use its best efforts to qualify and maintain the
qualification of an appropriate number of Shares for and to the extent that may
be required under any state law, sale under the securities laws of such states
as the Distributor and the Fund may approve, and, if necessary or appropriate
in connection therewith, to qualify and maintain the qualification of the Fund
in such states; provided that the Fund shall not be required to amend its
Articles of Incorporation or By-Laws to comply with the laws of any state, to
maintain an office in any state, to change the terms of the offering of the
Shares in any state, to change the terms of the offering of the Shares in any
state from the terms set forth in its Registration Statement and Prospectus, to
qualify as a foreign corporation in any state or to consent to service of
process in any state other than with respect to claims arising out of the
offering and sale of the Shares. The Distributor shall furnish such
information and other material relating to its affairs and activities as may be
required by the Fund in connection with such qualifications.
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(c) Copies of Reports and Prospectus. The Fund shall, at
its expense, keep the Distributor fully informed with regard to its affairs
that reasonably relate to the distribution of the Fund's Shares and in
connection therewith 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,
including such reasonable number of copies of its Prospectus and annual and
interim reports as the Distributor may request and shall cooperate fully in the
efforts of the Distributor to sell and arrange for the sale of the Shares and
in the performance of the Distributor under this Agreement.
4. Conformity with Applicable Law and Rules. The Distributor
agrees that in selling Shares hereunder it shall conform in all respects with
the laws of the United States and of any state in which Shares may be offered,
and with applicable rules and regulations of the NASD.
5. Independent Contractor. In performing its duties hereunder,
the Distributor shall be an independent contractor and neither the Distributor,
nor any of its officers, directors, employees, or representatives is or shall
be an employee of the Fund in the performance of the Distributor's duties
hereunder. The Distributor shall be 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.
6. Indemnification.
(a) Indemnification of Fund. The Distributor agrees to
indemnify and hold harmless the Fund and each of its present or former
directors, officers, employees, representatives an each person, if any, who
controls or previously controlled the Fund within the meaning of Section 15 of
the 1933 Act against any and all losses, liabilities, damages, claims or
expenses (including the reasonable costs or investigating or defending any
alleged loss, liability, damage, claims or expense and reasonable legal counsel
fees incurred in connection therewith) to which the Fund or any such person may
become subject under the 1933 Act, under any other statute, at common law, or
otherwise, arising out of the acquisition of any Shares by any person which (i)
may be based upon any wrongful act by the Distributor or any of the
Distributor's directors, officers, employees or representatives, or (ii) may be
based upon any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, prospectus, shareholder report or other
information covering Shares filed or made public by the Fund or any amendment
thereof or supplement thereto, or the omission or alleged omission to state
therein 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 to the Fund by the Distributor, it being
understood that the Fund will rely upon the information provided by the
Distributor for use in the preparation of the Registration Statement and
Prospectus. In no case (i) is the Distributor's indemnity in favor of the
Fund, or any other person
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indemnified, to be deemed to protect the Fund or such indemnified person
against any liability to which the Fund or such person would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties or by reason of his reckless disregard of his
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
such person, as the case may be, shall have notified the Distributor in writing
of the claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon the Fund or upon such person (or after the Fund or such person
shall have received notice to such service on any designated agent). However,
failure to notify the Distributor of any such claim shall not relieve the
Distributor from any liability which the Distributor may have to the Fund or
any person against whom such action is brought otherwise than on account of the
Distributor's indemnity agreement contained in this Paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense, or, if the Distributor so elects, to assume the defense of any
suit brought to enforce any claim as to which it provides this indemnification,
but, if the Distributor elects to assume the defense, such defense shall be
conducted by legal counsel chosen by the Distributor and satisfactory to the
Fund, whose approval shall not be unreasonably withheld, and any other
indemnified defendant or defendants in the suit. In the event that the
Distributor elects to assume the defense of any such suit and retain such legal
counsel, the Fund and any other indemnified defendant or defendants in the suit
shall bear the fees and expenses of any additional legal counsel retained by
them. If the Distributor does not elect to assume the defense of any such
suit, the Distributor will reimburse the Fund and any other indemnified
defendant or defendants in such suit for the reasonable fees and expenses of
any legal counsel retained by them. The Distributor agrees to promptly notify
the Fund of the commencement of any litigation of proceedings against it or any
of its officers, employees, representatives or control persons in connection
with the issue or sale of any Shares.
(b) Indemnification of the Distributor. The Fund agrees
to indemnify and hold harmless the Distributor and each of its present or
former officers, employees, representatives and each person, if any, who
controls or previously controlled the Distributor within the meaning of Section
15 of the 1933 Act against any and all losses, liabilities, damages, claims or
expenses (including the reasonable costs of investigating or defending any
alleged loss, liability, damage, claim or expense and reasonable legal counsel
fees incurred in connection therewith) to which the Distributor or other
indemnified person may become subject under the 1933 Act, under any other
statute, at common law, or otherwise, arising out of the acquisition of any
Shares by any person which (i) may be based upon any wrongful act by the Fund
or any of the Fund's directors, officers, employees or representatives, or (ii)
may be based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, shareholder
report or other information covering Shares filed or made public by the
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Fund or any amendment thereof or supplement thereto, or the omission or alleged
omission to state therein 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 information furnished to the Fund by the
Distributor, it being understood that the Fund will rely upon the information
provided by the Distributor for use in the preparation of the Registration
Statement and Prospectus. In no case (i) is the Fund's indemnity in favor of
the Distributor, or any person indemnified to be deemed to protect the
Distributor or such indemnified person against any liability to which the
Distributor or such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of his duties or
by reason of his reckless disregard of his 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 Distributor,
or person indemnified unless the Distributor, or such indemnified person, as
the case may be, shall have notified the Fund in writing of the claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Distributor or upon such person (or after the Distributor or such person shall
have received notice of such service on any designated agent). However,
failure to notify the Fund of any such claim shall not relieve the Fund from
any liability which the Fund may have to the Distributor or any person against
whom such action is brought otherwise than on account of the Fund's indemnity
agreement contained in this Paragraph.
The Fund shall be entitled to participate, at its own expense,
in the defense, or, if the Fund so elects, to assume the defense of any suit
brought to enforce any claim as to which it provides this indemnification, but
if the Fund elects to assume the defense, such defense shall be conducted by
legal counsel chosen by the Fund and satisfactory to the Distributor whose
approval shall not be unreasonably withheld, and any other indemnified
defendant or defendants in the suit. In the event that the Fund elects to
assume the defense of any such suit and retain such legal counsel, the
Distributor, and any other indemnified defendant or defendants in the suit,
shall bear the fees and expenses of any additional legal counsel retained by
them. If the Fund does not elect to assume the defense of any such suit, the
Fund will reimburse the Distributor and any other indemnified defendant or
defendants in such suit for the reasonable fees and expenses of any legal
counsel retained by them. The Fund agrees to promptly notify the Distributor
of the commencement of any litigation or proceedings against it or any of its
directors, officers, employees or representatives in connection with the issue
or sale of any Shares.
7. Authorized Representation. The Distributor is not authorized
by the Fund to give on behalf of the Fund any information or to make any
representations in connection with the sale of Shares other than the
information and representations contained in a registration statement filed
with the Securities and Exchange Commission ("SEC") under the 1933 Act and the
1940 Act, as such registration statement may be amended from time to time, or
contained in shareholder reports or other material that may be prepared by or
on behalf of the Fund for the
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Distributor's use. The Distributor may prepare and distribute sales literature
and other material as it may deem appropriate, provided that such literature
and materials have been prepared in accordance with applicable laws, rules and
regulations and further provided that the Fund be given notice of such
literature and materials prior to their first distribution. No person other
than the Distributor is authorized to act as principal underwriter (as such
term is defined in the 0000 Xxx) for the Fund.
8. Term of Agreement. This Agreement shall be effective upon its
execution, and unless terminated as provided, shall continue in force through
______________________, 2000 and thereafter from year to year, provided that
such annual continuance is approved by (i) either the vote of a majority of the
Directors of the Fund, or the vote of a majority of the outstanding voting
securities of the Fund, and (ii) the vote of a majority of those Directors of
the Fund who are not parties to this Agreement or interested persons of any
such party ("Qualified Directors") cast in person at a meeting called for the
purpose of voting on the approval. The Distributor shall furnish to the Fund,
promptly upon its request, such information as may reasonably be necessary to
evaluate the terms of this Agreement or any extension, renewal or amendment
hereof.
9. Amendment and Assignment of Agreement. This Agreement may not
be amended without the affirmative vote of a majority of the outstanding voting
securities of the Fund. This Agreement shall automatically and immediately
terminate in the event of its assignment.
10. Termination of Agreement. This Agreement may be terminated by
either party hereto, without the payment of any penalty, on not more than upon
60 days' nor less than 30 days' prior notice in writing to the other party;
provided, that in the case of termination by the Fund such action shall have
been authorized by resolution of a majority of the Qualified Directors of the
Fund, or by vote of a majority of the outstanding voting securities of the
Fund.
11. Miscellaneous. The captions of this Agreement are included
for convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
This Agreement may be executed simultaneously 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.
Nothing herein contained shall be deemed to require the Fund to take
any action contrary to its Articles of Incorporation or By-Laws, or any
applicable statutory or regulatory requirement to which it is subject or by
which it is bound, or to relieve or deprive the Board of Directors of the Fund
of its responsibility for and control of the conduct of the affairs of the
Fund.
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12. Compliance with Securities Laws. The Fund represents that it
is registered as an open-end management investment company under the 1940 Act,
and agrees that it will comply with all applicable provisions of the 1940 Act,
the 1933 Act and state securities laws and the rules and regulations
thereunder. The Distributor represents that it is a broker-dealer registered
under the Securities Exchange Act of 1934, is a member in good standing of the
National Association of Securities Dealers, Inc., and agrees to comply with all
of the applicable terms and provisions of the Securities Exchange Act of 1934,
the 1940 Act, the 1933 Act, and state securities laws and the rules and
regulations thereunder and with applicable rules and regulations of the NASD.
13. Notices. Any notice required to be given pursuant to this
Agreement shall be deemed duly given if delivered or mailed by registered mail,
postage prepaid to the Distributor at 000 Xxxxx Xxxxxxx Xx., XX, Xxxxx 000,
Xxxxxxxxxx, XX 00000 .
14. Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware. Any question of
interpretation of any term or provision of this Agreement having a counterpart
in or otherwise derived from a term or provision of the 1940 Act, however,
shall be resolved by reference to such term or provision of the 1940 Act and to
interpretation thereof, if any, by the United States courts or, in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the Securities and Exchange Commission validly issued pursuant to the 1940
Act. Specifically, the terms "vote of a majority of the outstanding voting
securities", "interested persons", "assignment", and "affiliated person", as
used in this Agreement, shall have the meanings assigned to them by Section
2(a) of the 1940 Act. Where the effect of a requirement of the 1940 Act
reflected in any provision of this Agreement is relaxed by a rule, regulation
or order of the Securities and Exchange Commission, whether of special or of
general applications, such provision shall be deemed to incorporate the effect
of such rule, regulation or order. To the extent that the applicable laws of
the State of Delaware, or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control.
15. Limitation of Liability. Notice is hereby given that this
Agreement is executed on behalf of the Directors of the Fund as Directors and
not individually and that the obligations of this instrument are not binding
upon any of the Directors, officers or Shareholders of the Fund individually
but binding only upon the assets and property of the Fund. Further,
obligations of the Fund with respect to any one Portfolio shall not be binding
upon any other Portfolio.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their fully authorized representatives and their respective
corporate seals to be hereunto affixed, as of the day and year first above
written.
THE VANTAGEPOINT FUNDS
By:
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Attest:
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Secretary
RC SERVICES, LLC
By:
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Attest:
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Secretary
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