AMENDED & RESTATED GENERAL DISTRIBUTOR'S AGREEMENT
EXHIBIT
E
AMENDED AND
RESTATED
GENERAL
DISTRIBUTOR’S AGREEMENT
BETWEEN
MASSMUTUAL
INSTITUTIONAL FUNDS
AND
MML DISTRIBUTORS,
LLC
Date: May 1,
2000
MML Distributors,
LLC
0000 Xxxx
Xxxxxx
Xxxxxxxxxxx, XX
00000
Dear
Sirs:
MASSMUTUAL
INSTITUTIONAL FUNDS, a Massachusetts business trust (the “Trust”),
is registered as an investment company under the Investment Company Act of
1940 (the “1940 Act”), and an indefinite number of one or more
classes of shares of beneficial interest of the following series of the
Trust: (1) MassMutual Prime Fund; (2) MassMutual Short-Term Bond Fund; (3)
MassMutual Core Bond Fund; (4) MassMutual Balanced Fund; (5) MassMutual
Value Equity Fund; (6) MassMutual Small Cap Value Equity Fund; (7)
MassMutual International Equity Fund; (8) MassMutual Indexed Equity Fund;
(9) MassMutual Diversified Bond Fund; (10) MassMutual Growth Equity Fund;
(11) MassMutual Mid Cap Growth Equity Fund; (12) MassMutual Small Cap Growth
Equity Fund; (13) MassMutual Large Cap Value Fund; (14) MassMutual
Aggressive Growth Fund; (15) MassMutual OTC 100 Fund; (16) MassMutual
Focused Value Fund; (17) MassMutual Mid Cap Growth Equity II Fund; and (18)
MassMutual Emerging Growth Fund, have been registered under the Securities
Act of 1933, as amended (the “1933 Act”) to be offered for sale to
the public in a continuous public offering in accordance with the terms and
conditions set forth in each series’ Prospectus and Statement of
Additional Information (“SAI”) included in the Trust’s
Registration Statement as it may be amended from time to time (the
“current Prospectus and/or SAI”). As used herein, the term
“Fund” refers to each of the series of the Trust described above
and any additional series of the Trust that have Shares which become
registered under the 1933 Act to be offered for sale to the public in a
continuous public offering in accordance with the terms and conditions set
forth in such series’ current Prospectus and/or SAI.
In this connection,
the Trust desires that your firm (the “General Distributor”) act
in a principal capacity as General Distributor for the sale and distribution
of Class A, Class L, Class Y and Class S Shares which have been registered
as described above and of any additional Shares of any Fund which may become
registered during the term of this Agreement and as to which you agree to
act as the General Distributor (“Shares”). You have advised the
Trust that you are willing to act as General Distributor on such terms, and
it is accordingly agreed by and between us as follows:
1.
Appointment of the Distributor. The
Trust hereby appoints you as the sole General Distributor, pursuant to the
aforesaid continuous public offering of its Shares, and the Trust further
agrees from and after the date of this Agreement, that it will not, without
your consent, sell or agree to sell any Shares otherwise than through you,
except (a) the Trust may itself sell Shares without sales charge as an
investment to the officers, trustees or directors and bona fide present and
former full-time employees of the Trust, the Trust’s Investment Adviser
and affiliates thereof, the Separate Investment Accounts of the Adviser, and
to investors who are identified in the current Prospectus and/or SAI as
having the privilege to buy Shares at net asset value; (b) the Trust may
issue Shares in connection with a merger, consolidation or acquisition of
assets on such basis as may be authorized or permitted under the 1940 Act;
(c) the Trust may issue Shares for the reinvestment of dividends and other
distributions of the Trust or of any Fund if permitted by the current
Prospectus and/or SAI; and (d) the Trust may issue Shares as underlying
securities of a unit investment trust or other registered open-end
investment company (or series thereof) if such unit investment trust or
registered open-end investment company (or series thereof) has elected to
use Shares as an underlying investment.
2. Sale of
Shares. You hereby accept such appointment and
agree to sell Shares, provided, however, that when requested by the Trust at
any time because of market or other economic considerations or abnormal
circumstances of any kind, or when agreed to by mutual consent of the Trust
and the General Distributor, you will suspend such efforts. The Trust may
also withdraw the offering of Shares at any time when required by the
provisions of any statute, order, rule or regulation of any governmental
body having jurisdiction. It is understood that you do not undertake to sell
all or any specific number of Shares.
3.
Sales Charge. Shares shall be sold by
you at net asset value plus, if applicable, a front-end sales charge not in
excess of 8.5% of the offering price, but which front-end sales charge, if
any, shall be proportionately reduced or eliminated for larger sales and
under other circumstances, in each case on the basis set forth in the
current Prospectus and/or SAI. The redemption proceeds of Shares offered and
sold at net asset value with or without a front-end sales charge may be
subject to a contingent deferred sales charge (“CDSC”) under the
circumstances described in the current Prospectus and/or SAI. For your
services as General Distributor of a Fund’s Class A Shares, the Trust
shall pay you the amounts set forth in the relevant Distribution and
Services Plan and Agreement, as amended from time to time, with respect to
the Fund’s Class A shares sold through you. You may reallow such
portion of the front-end sales charge to dealers or cause payment (which may
exceed the front-end sales charge, if any) of commissions to brokers through
which sales are made, as you may determine, and you may pay such amounts to
dealers and brokers on sales of Shares from your own resources (such dealers
and brokers shall collectively include all domestic or foreign institutions
eligible to offer and sell the Shares), and in the event a Fund has more
than one class of Shares outstanding, then you may impose a front-end sales
charge and/or a CDSC on Shares of one class that is different from the
charges imposed on Shares of a Fund’s other class(es), in each case as
set forth in the current Prospectus and/or SAI, provided the front-end sales
charge and CDSC to the ultimate purchaser do not exceed the respective
levels set forth for such category of purchaser in the current Prospectus
and/or SAI.
4. Purchase of Shares.
(a) As General
Distributor, you shall have the right to accept or reject orders for the
purchase of Shares at your discretion. Any consideration which you may
receive in connection with a rejected purchase order will be returned
promptly.
(b) You agree
promptly to issue or to cause an agent appointed by you or the duly
appointed transfer or shareholder servicing agent of the Trust to issue as
your agent confirmations of all accepted purchase orders and to transmit a
copy of such confirmations to the Trust. The net asset value of all Shares
which are the subject of such confirmations, computed in accordance with the
applicable rules under the 1940 Act, shall be a liability of the General
Distributor to the Trust to be paid promptly after receipt of payment from
the originating dealer or broker (or investor, in the case of direct
purchases) and not later than eleven business days after such confirmation
even if you have not actually received payment from the originating dealer
or broker, or investor. In no event shall the General Distributor make
payment to the Trust later than permitted by applicable rules of the
National Association of Securities Dealers, Inc.
(c) If the
originating dealer or broker shall fail to make timely settlement of its
purchase order in accordance with applicable rules of the National
Association of Securities Dealers, Inc., or if a direct purchaser shall fail
to make good payment for Shares in a timely manner, you shall have the right
to cancel such purchase order and, at your account and risk, to hold
responsible the originating dealer or broker, or investor. You agree
promptly to reimburse a Fund for losses suffered by it that are attributable
to any such cancellation, or to errors on your part in relation to the
effective date of accepted purchase orders, limited to the amount that such
losses exceed contemporaneous gains realized by a Fund for either of such
reasons with respect to other purchase orders.
(d) In the case of a
canceled purchase for the account of a directly purchasing shareholder, the
Trust agrees that if such investor fails to make you whole for any loss you
pay to a Fund on such canceled purchase order, a Fund will reimburse you for
such loss to the extent of the aggregate redemption proceeds of any other
Shares of a Fund owned by such investor, on your demand that a Fund exercise
its right to claim such redemption proceeds.
The Trust shall register or
cause to be registered all Shares sold to you pursuant to the provisions
hereof in such names and amounts as you may request from time to time. All
Shares, when so issued and paid for, shall be fully paid and non-assessable
by the Trust (which shall not prevent the imposition of any CDSC that may
apply) to the extent set forth in the current Prospectus and/or
SAI.
5. 1933
Act Registration. The Trust has delivered to you
a copy of the current Prospectus and SAI. The Trust agrees that it will use
its best efforts to continue the effectiveness of the Registration Statement
under the 1933 Act. The Trust further agrees, at its expense, to prepare and
file any amendments to its Registration Statement as may be necessary and
any supplemental data in order to comply with the 1933 Act. The Trust will
promptly furnish you at your expense with a reasonable number of copies of
the Prospectus and SAI and any amendments thereto for use in connection with
the sale of Shares.
6. 1940
Act Registration. The Trust has registered under
the 1940 Act as an investment company, and it will use its best efforts to
maintain such registration and to comply with the requirements of the 1940
Act.
7. State Blue Sky
Notification. At your request, the Trust will, at its expense, take such
steps as may be necessary and feasible to determine what action is necessary
to file notices necessary for the sale of Shares and where required, to file
notices for the sale of Shares in states, territories or dependencies of the
United States, the District of Columbia, the Commonwealth of Puerto Rico and
to qualify Shares in foreign countries, in accordance with the laws thereof,
and to renew or extend any such notification or qualification; provided,
however, that the Trust shall not be required to qualify Shares or to
maintain the qualification of Shares in any jurisdiction where it shall deem
such qualification disadvantageous to the Trust. The Trust shall keep you
informed of the State Blue Sky Notifications of the Shares.
8.
Duties of Distributor. You agree that:
|
| (a)
Neither you nor any of your officers will take any long or short
position in the Shares;
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| (b) You
shall, upon reasonable request of the Trust, furnish to the Trust any
pertinent information required to be inserted with respect to you as
General Distributor within the purview of the 1933 Act in any reports or
registrations required to be filed with any governmental
authority;
|
| (c) You
will not make any representations inconsistent with the information
contained in the current Prospectus and/or SAI;
|
| (d) You
or your agent shall maintain such records relating to your acting as
General Distributor of the Trust as may be reasonably required for the
Trust or its transfer or shareholder servicing agent to respond to
shareholder requests or complaints, and to permit the Trust to maintain
proper accounting records, and you shall make such records reasonably
available to the Trust and its transfer agent or shareholder servicing
agent upon request; and
|
| (e) In
performing your obligations under this Agreement, you shall comply with
all requirements of a Fund’s current Prospectus and/or SAI and all
applicable laws, rules and regulations with respect to the purchase, sale
and distribution of Shares.
9. Duties of the Trust. The Trust agrees
that:
|
| (a) It
shall promptly furnish to you, at least 10 days prior to use, any
description of you or the services you perform hereunder which the Trust
intends to use in the Prospectus, SAI, in sales literature reports,
advertisements or otherwise. Such description may not be utilized if you
object thereto in writing;
|
| (b) It
shall promptly furnish to you for your approval and filing with the
National Association of Securities Dealers, Inc. any proposed sales
literature or advertisement relating to, or referring to the Trust or the
Shares;
|
| (c) It
shall promptly advise you of any information concerning the Trust or the
Shares, which may affect your ability to properly discharge your
obligations hereunder; and
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|
(d) It shall
not use the word “MML Distributors, LLC” other than merely
identifying the General Distributor as such unless such use is
specifically approved by you.
10.
Allocation of Costs. The Trust shall
pay, or cause others to pay, the cost of composition and printing of
sufficient copies of a Fund’s Prospectus and SAI as shall be required
for periodic distribution to a Fund’s shareholders and the expense of
registering Shares for sale under federal securities laws and filing notices
in states to sell Shares in such states. You shall pay the expenses normally
attributable to the sale of Shares, other than as paid under a Fund’s
Plan under Rule 12b-1 of the 1940 Act, including the cost of printing and
mailing of the Prospectus (other than those furnished to existing
shareholders) and any sales literature or advertisements used by you in the
public sale of the Shares.
11.
Duration. This Agreement shall take effect
on the date first written above, and shall supersede any and all prior
General Distributor’s Agreements by and among the Trust and you. Unless
earlier terminated pursuant to Section 12 hereof, this Agreement shall
remain in effect until May 3, 2002. This Agreement shall continue in effect
from year to year thereafter, provided that such continuance shall be
specifically approved at least annually: (a) by the Trust’s Board of
Trustees or by vote of a majority of the voting securities of the Trust; and
(b) by the vote of a majority of the Trustees, who are not parties to this
Agreement or “interested persons” (as defined in the 0000 Xxx) of
any such person, cast in person at a meeting called for the purpose of
voting on such approval.
12.
Termination. This Agreement may be
terminated (a) by the General Distributor at any time without penalty by
giving no less than sixty days’ written notice (which notice may be
waived by the Trust); (b) by the Trust at any time without penalty upon
sixty days’ written notice to the General Distributor (which notice may
be waived by the General Distributor); or (c) by mutual consent of the Trust
and the General Distributor, provided that such termination by the Trust
shall be directed or approved by the Board of Trustees of the Trust or by
the vote of the holders of a majority of the outstanding voting securities
of the Trust. In the event this Agreement is terminated, the General
Distributor shall be entitled to be paid the CDSC, if any, under paragraph 3
hereof on the redemption proceeds of Shares sold prior to the effective date
of such termination.
13.
Assignment. This Agreement may not be
amended or changed except in writing and shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors;
however, this Agreement shall not be assigned by either party and shall
automatically terminate upon assignment.
14.
Disclaimer of Shareholder Liability. The
General Distributor understands and agrees that the obligations of the Trust
under this Agreement are not binding upon any Trustee or shareholder of the
Trust personally, but bind only the Trust and the Trust’s property; the
General Distributor represents that it has notice of the provisions of the
Agreement and Declaration of Trust dated May 29, 1993, as amended,
disclaiming shareholder liability for acts or obligations of the
Trust.
15.
Section Headings. The headings of each
section is for descriptive purposes only, and such headings are not to be
construed or interpreted as part of this Agreement.
If the foregoing is in
accordance with your understanding, so indicate by signing in the space
provided below.
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| MASS
MUTUAL
INSTITUTIONAL
FUNDS
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