AMENDED AND RESTATED DISTRIBUTION AGREEMENT
AGREEMENT made this 30th day of June, 2003, between BNY XXXXXXXX FUNDS,
INC., a Corporation organized under the laws of the State of Maryland (the
"Corporation"), and BNY XXXXXXXX DISTRIBUTORS, INC., a Delaware corporation (the
"Distributor").
WITNESSETH:
WHEREAS, the Corporation is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as a diversified open-end management
investment company and it is in the interest of the Corporation to offer its
shares for sale continuously and to appoint a principal underwriter for the
purpose of facilitating such offers and sales;
WHEREAS, the Corporation's Board of Directors has established the separate
series of the Corporation set forth on Schedule A hereto, as such Schedule may
be revised from time to time (each, a "Series");
WHEREAS, the Corporation has adopted a Plan of Distribution pursuant to
Rule 12b-1 in respect of the Investor Class or Classic Class of shares of each
Series under the 1940 Act (a "12b-1 Plan"), and each Series may elect to make
payments to the Distributor pursuant to such 12b-1 Plan; and
WHEREAS, the Distributor has been duly appointed by the Corporation
pursuant to separate agreements to serve as principal underwriter ("Prior
Agreements") for each Series and each class of shares thereto (each, a "Class");
and
WHEREAS, the Corporation and the Distributor wish to renew and continue the
Prior Agreements pursuant to this Amended and Restated Agreement with respect to
the continuous offering of each Series' shares of common stock, par value $.001
per share (the "Shares").
NOW THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor.
The Corporation hereby appoints or, as the case may be, continues the
appointment of the Distributor as its exclusive underwriter in connection with
the offering and sale of the Shares of all Series and Classes thereof on the
terms set forth in this Agreement and the Distributor hereby accepts such
appointment and agrees to act hereunder.
Section 2. Services and Duties of the Distributor.
(a) The Distributor agrees to sell, as agent for each Series, from time to
time during the term of this Agreement, Shares upon the terms described in the
Prospectus. As used in this Agreement, the term "Prospectus" shall mean the
prospectus in respect of a Series or a Class included as part of the
Registration Statement, as such prospectus may be amended or supplemented from
time to time, and the term "Registration Statement" shall mean the registration
statement most recently filed from time to time by the Corporation with the
Securities and Exchange Commission and effective under the 1933 Act and the 1940
Act, as such registration statement is amended by any amendments thereto at the
time in effect.
(b) Upon commencement of the Corporation's operations, the Distributor will
hold itself available to receive orders, satisfactory to the Distributor, for
the purchase of Shares and will accept such orders on behalf of each Series and
will transmit such orders as are so accepted to the transfer and shareholder
servicing agent for the Series as promptly as practicable. The Distributor shall
promptly forward to the custodian for each Series funds received in respect of
purchases of Shares in accordance with the instructions of the administrator for
the Series. Purchase orders shall be deemed effective at the time and in the
manner set forth in the Prospectus.
(c) The offering price of each Series' Shares shall be based on the net
asset value (as defined in the Articles of Incorporation of the Corporation and
determined as set forth in the Prospectus) per Share next determined following
receipt of an order, and shall be determined as set forth in the Prospectus. In
the event a Series offers two or more Classes, the offering price of each Class
shall be determined as set forth in the Prospectus. Each Series shall furnish or
cause to be furnished to the Distributor, with all possible promptness, an
advice of each computation of net asset value and, if different, the offering
price.
(d) The Distributor shall not be obligated to sell any certain number of
Shares and nothing herein contained shall prevent the Distributor from entering
into like distribution arrangements with other investment companies.
(e) The Distributor shall have the right to enter into selected dealer
agreements with registered and qualified securities dealers and other financial
institutions of its choice for the sale of a Series' Shares, provided that the
Series shall approve the form of such agreements. Within the United States, the
Distributor shall offer and sell Shares only to such selected dealers as are
members in good standing of the NASD. Shares sold to selected dealers shall be
for resale by such dealers only at the offering price determined as set forth in
the Prospectus.
Section 3. Duties of the Corporation.
(a) The Corporation agrees to sell each Series' Shares so long as it has
Shares thereof available for sale and to cause the Series' transfer and
shareholder servicing agent to record on its books the ownership of (or deliver
certificates, if any, for) such Shares registered in such names and amounts as
the Distributor has requested in writing or other means of data transmission, as
promptly as practicable after receipt by the Corporation of the net asset value
thereof and written request of the Distributor therefor.
(b) The Corporation shall keep the Distributor fully informed with regard
to its affairs and 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 a Series' Shares, and
this shall include one certified copy, upon request by the Distributor, of all
financial statements prepared for the Series by independent accountants and such
reasonable number of copies of its most current 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.
(c) The Corporation shall take, from time to time, such steps, including
payment of the related filing fee, as may be necessary to register its Shares
under the 1933 Act to the end that there will be available for sale such number
of Shares as the Distributor may be expected to sell. The Corporation 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.
(d) The Corporation shall use its best efforts to qualify and maintain the
qualification of an appropriate number of its Shares for sale under the
securities laws of such states as the Distributor and the Corporation may
approve, and, if necessary or appropriate in connection therewith, to qualify
and maintain the qualification of the Corporation as a broker or dealer in such
states; provided that the Corporation shall not be required to amend its
Articles of Incorporation or Bylaws 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 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 of the Shares. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be required by the
Corporation in connection with such qualifications.
Section 4. Expenses.
(a) Each Class shall bear all costs and expenses of the continuous offering
of its Shares in connection with: (i) fees and disbursements of its counsel and
independent
accountants, (ii) the preparation, filing and printing of any registration
statements and/or prospectuses required to be filed by and under the federal and
state securities laws, (iii) the preparation and mailing of annual and interim
reports, prospectuses and proxy materials to shareholders and (iv) the
qualifications of Shares for sale under the securities laws of such states or
other jurisdictions as shall be selected by the Corporation and the Distributor
pursuant to Section 3(d) hereof and the cost and expenses payable to each such
state for continuing qualification therein.
(b) Unless the Corporation has adopted a 12b-l Plan in respect of a Series
or a Class, and has elected to begin making payments thereunder, the Series or
Class shall not, directly or indirectly, reimburse the Distributor for (i) the
costs and expenses of preparing, printing and distributing any materials not
prepared by the Corporation and other materials used by the Distributor in
connection with its offering of the Shares of the Series or Class for sale to
the public, including the additional cost of printing copies, at printer's
over-run cost, of the Prospectus and of annual and interim reports to
shareholders of the Series or Class other than copies thereof required for
distribution to shareholders or for filing with any federal and state securities
authorities and (ii) any expenses of advertising incurred by the Distributor in
connection with such offering. In any event, the Series or Class shall not bear
the expenses of registration or qualification of the Distributor as a dealer or
broker under federal or state laws or the expenses of continuing such
registration or qualification.
Section 5. Compensation of the Distributor.
The Distributor shall be entitled to such compensation, including sales
loads and contingent deferred sales charges, if any, described in the
Prospectus. In the event that the Corporation has adopted a 12b-l Plan in
respect of a Series or a Class and has elected to make payments thereunder, the
Distributor shall be entitled to compensation in accordance with such plan,
provided that it otherwise complies with the terms and provisions thereof, and
to make payments hereunder and thereunder to dealers that enter into selected
dealer agreements under Section 2(e) above.
Section 6. Indemnification.
The Corporation agrees to indemnify, defend and hold the Distributor, its
officers and directors 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, demands, 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,
directors or any such controlling person may incur under the 1933 Act, or under
common law or otherwise, arising out of or based upon any untrue statement of a
material fact contained in the Registration Statement or Prospectus or arising
out of or based upon any alleged omission to state a material fact required to
be stated in either thereof or necessary to make the statements in either
thereof not misleading, except insofar as such claims, demands, liabilities or
expenses arise out of or are based upon any such untrue statement or omission or
alleged untrue statement or
omission made in reliance upon and in conformity with information furnished in
writing by the Distributor to the Corporation for use in the Registration
Statement or Prospectus; provided, however, that this indemnity agreement, to
the extent that it might require indemnity of any person who is also an officer
or director of the Corporation or who controls the Corporation within the
meaning of Section 15 of the 1933 Act, shall not inure to the benefit of such
officer, director or controlling person unless a court of competent jurisdiction
shall determine, or it shall have been determined by controlling precedent, that
such result would not be against public policy as expressed in the 1933 Act; and
further provided, that in no event shall anything contained herein be so
construed as to protect the Distributor against any liability to the Corporation
or to 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 under this Agreement. The Corporation's agreement to indemnify the
Distributor, its officers and directors and any such controlling person as
aforesaid is expressly conditioned upon the Corporation's being promptly
notified of any action brought against the Distributor, its officers or
directors, or any such controlling person, such notification to be given to the
Corporation at its principal business office. The Corporation agrees promptly to
notify the Distributor of the commencement of any litigation or proceedings
against it or any of its officers or directors in connection with the issue and
sale of any Shares.
The Distributor agrees to indemnify, defend and hold the Corporation, its
directors and officers and any person who controls the Corporation, if any,
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 against such claims, demands or liabilities
and any counsel fees incurred in connection therewith) which the Corporation,
its directors or officers 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 Corporation, its directors or officers or
such controlling person resulting from such claims or demands 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 Corporation for use
in the preparation of the Registration Statement or Prospectus or shall arise
out of or be based upon any alleged omission to state a material fact in such
information or a fact necessary to make such information not misleading, it
being understood that the Corporation will rely upon the information provided by
the Distributor for use in the preparation of the Registration Statement and
Prospectus. The Distributor's agreement to indemnify the Corporation, its
directors and officers, and any such controlling person as aforesaid is
expressly conditioned upon the Distributor's being promptly notified of any
action brought against the Corporation, its directors or officers or any such
controlling person, such notification to be given to the Distributor as its
principal business office.
Section 7. Compliance with Securities Laws.
The Corporation represents that it is registered as a diversified open-end
management investment company under the 1940 Act, and agrees that it will comply
with the provisions of the 1940 Act and of the rules and regulations thereunder.
The Corporation and the Distributor each agree to comply with the applicable
terms and provisions of the 1940 Act, the 1933 Act and, subject to the
provisions of Section 3(d), applicable state "Blue Sky" laws. The Distributor
agrees to comply with the applicable terms and provisions of the Securities
Exchange Act of 1934.
Section 8. Compliance with Laws/Access to Records
Each of the Distributor and the Corporation acknowledges that it is a
financial institution subject to the USA Patriot Act of 2001 and the Bank
Secrecy Act (collectively, the "AML Acts"), which require, among other things,
that financial institutions adopt compliance programs to guard against money
laundering. Each represents and warrants to the other that it is in compliance
with and will continue to comply with the AML Acts and applicable regulations in
all relevant respects. Each of the Distributor and the Corporation agrees that
it will take such further steps, and cooperate with the other, to facilitate
such compliance, including, but not limited to, the provision of copies of its
written procedures, policies and controls related thereto ("AML Operations").
The Distributor undertakes that it will grant to the Corporation, the
Corporation's AML compliance officer and regulatory agencies reasonable access
to copies of the Distributor's AML Operations and books and records pertaining
to the Corporation. It is expressly understood and agreed that the Corporation
and the Corporation's AML compliance officer shall have no access to any of the
Distributor's AML Operations and books and records pertaining to other clients
of the Distributor.
Section 9. Term of Agreement: Termination.
This Agreement shall commence on the date first set forth above. Unless
earlier terminated in accordance with its terms, this Agreement shall continue
in effect only so long as such continuance is specifically approved at least
annually by the vote, cast in person, of a majority of the board of directors of
the Corporation, including a majority of those directors who are not interested
persons of the Corporation (as defined in the 0000 Xxx) and who have no direct
or indirect financial interest in the operation of this Agreement, the 12b-l
Plan or any agreement related thereto.
This Agreement shall terminate automatically in the event of its assignment
(as defined by the 1940 Act). In addition, this Agreement may be terminated by
either party at any time, without penalty, on not more than sixty days' nor less
than thirty days' written notice to the other party.
Section 10. 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, (1) to
the Distributor at BNY Xxxxxxxx Distributors, Inc., 0000 Xxxxxxx Xxxx, Xxxxx
0000, Xxxxxxxx, Xxxx 00000, Attention: Xxxx Xxxxxxxxx, or (2) to the Corporation
at BNY Xxxxxxxx Funds, Inc., 0000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxx, Xxxx
00000, Attention: Secretary.
Section 11. Governing Law.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
BNY XXXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Vice President
BNY XXXXXXXX FUNDS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
SCHEDULE A TO THE DISTRIBUTION AGREEMENT
Name of Series
BNY Xxxxxxxx Large Cap Equity Fund
BNY Xxxxxxxx Large Cap Growth Fund
BNY Xxxxxxxx Small Cap Growth Fund
BNY Xxxxxxxx International Equity Fund
BNY Xxxxxxxx Intermediate Government Fund
BNY Xxxxxxxx Intermediate Investment Grade Fund
BNY Xxxxxxxx Intermediate Tax-Exempt Fund
BNY Xxxxxxxx Intermediate New York Tax-Exempt Fund
BNY Xxxxxxxx Money Fund
BNY Xxxxxxxx Treasury Money Fund
BNY Xxxxxxxx New York Tax-Exempt Money Fund
BNY Xxxxxxxx Large Cap Growth CRT Fund
BNY Xxxxxxxx Small Cap Growth CRT Fund
BNY Xxxxxxxx International Equity CRT Fund
BNY Xxxxxxxx S & P 500 Index Fund
BNY Xxxxxxxx Large Cap Value Fund
BNY Xxxxxxxx U.S. Bond Market Index Fund
BNY Xxxxxxxx Enhanced Income Fund
BNY Xxxxxxxx Multi-Cap Equity Fund
BNY Xxxxxxxx High Yield Fund
BNY Xxxxxxxx Small Cap Core Equity Fund
Dated: As of March 1, 2005
