Exhibit(e)(3)
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 19th day of August, 2002, by and between each
entity listed on Appendix A (each a "Fund" and collectively, with each series
thereof, the "Funds"), each with its principal office and place of business at
Xxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 and Xxxxxxx Distributors, Inc., a Delaware
corporation with its principal office and place of business at 000 Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000 (the "Distributor").
WHEREAS, the Funds are registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company,
or are series of an open-end management investment company and may issue its
shares (the "Shares") in separate series and classes and continuously offer for
sale their Shares to the public; and
WHEREAS, the Distributor is registered under the Securities Exchange
Act of 1934, as amended ("1934 Act"), as a broker-dealer and is engaged in the
business of selling Shares of registered investment companies either directly to
purchasers or through other securities dealers;
WHEREAS, each Fund offers Shares of one or more classes (each such
class together with all other classes established in Appendix A, and made
subject to this Agreement in accordance with Section 16 hereof, being herein
referred to as a "Class," and collectively as the "Classes");
WHEREAS, each Fund desires that the Distributor offer the Shares of
each Class thereof to the public and the Distributor is willing to provide those
services on the terms and conditions set forth in this Agreement in order to
promote the growth of the Funds and facilitate the distribution of the Shares;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Funds and the Distributor hereby agree as
follows:
SECTION 1. DELIVERY OF DOCUMENTS AND APPOINTMENT
(a) Each Fund has delivered to the Distributor properly certified or
authenticated copies of its Articles of Incorporation or Declaration of Trust,
as the case may be, and Bylaws (collectively, as amended from time to time,
"Organizational Documents"), each Fund's Notification of Registration filed with
the U.S. Securities and Exchange Commission ("SEC") pursuant to Section 8(a) of
the 1940 Act on Form N-8A under the 1940 Act, each Fund's Registration Statement
and all amendments thereto filed with the SEC pursuant to the Securities Act of
1933, as amended (the "Securities Act"), or the 1940 Act (the "Registration
Statement") and its current Prospectuses and Statements of Additional
Information (collectively, as currently in effect and as amended or
supplemented, the "Prospectus") and shall promptly furnish the Distributor with
all amendments of or supplements to the foregoing, each properly certified or
authenticated. In addition, each Fund shall furnish the Distributor with
properly certified or authenticated copies of all documents, notices and reports
filed with the SEC.
(b) Each Fund has delivered to the Distributor certified copies of the
resolutions of the Board of Directors/Trustees (the "Board") authorizing the
appointment of the Distributor as distributor and approving this Agreement.
(b) Each Fund hereby appoints the Distributor as its principal
underwriter and distributor to sell its Shares to the public and hereby agrees
during the term of this Agreement to sell its Shares to the Distributor upon the
terms and conditions herein set forth.
SECTION 2. EXCLUSIVE NATURE OF DUTIES
The Distributor shall be the exclusive representative of each Fund to
act as principal underwriter and distributor except that the rights given under
this Agreement to the Distributor shall not apply to Shares issued in connection
with the merger, consolidation or reorganization of any other investment company
with a Fund; a Fund's acquisition by purchase or otherwise of all or
substantially all of the assets or stock of any other investment company; or the
reinvestment in Shares by a Fund's shareholders of dividends or other
distributions or any other offering by a Fund of securities to its shareholders.
SECTION 3. PURCHASE OF SHARES; OFFERING OF SHARES
(a) The Distributor shall have the right to buy from the Funds the
Shares needed to fill unconditional orders for unsold Shares of the Funds as
shall then be effectively registered under the Securities Act placed with the
Distributor by investors or securities dealers or depository institutions or
other financial intermediaries acting as agent for their customers or on their
own behalf. Alternatively, the Distributor may act as each Fund's agent, to
offer, and to solicit offers to subscribe to, unsold Shares of the Funds as
shall then be effectively registered under the Securities Act. The Distributor
will promptly forward all orders and subscriptions for Shares of the Funds. The
price which the Distributor shall pay for Shares purchased by it from the Funds
shall be the net asset value, determined as set forth in Section 3(c) hereof,
used in determining the public offering price on which the orders are based. The
price at which the Distributor shall offer and sell Shares to investors shall be
the public offering price, as set forth in Section 3(b) hereof. The Distributor
may sell Shares to securities dealers, depository institutions or other
financial intermediaries acting as agent for their customers that have entered
into agreements with the Distributor pursuant to Section 11 hereof or acting on
their own behalf. Each Fund reserves the right to sell its Shares directly to
investors through subscriptions received by the Fund, but no such direct sales
shall affect the sales charges due to the Distributor hereunder.
(b) The public offering price of the Shares of each Fund, i.e., the
price per Share at which the Distributor or selected dealers or selected agents
(each as defined in Section 11 hereof) may sell Shares to the public or to those
persons eligible to invest in Shares as described in each Fund's Prospectus,
shall be the public offering price determined in accordance with the then
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currently effective Prospectus of each Fund or Class thereof under the
Securities Act, relating to such Shares, but not to exceed the net asset value
at which the Distributor, when acting as principal, is to purchase such Shares,
plus, in the case of Shares for which an initial sales charge is assessed, an
initial charge equal to a specified percentage or percentages of the public
offering price of the Shares as set forth in the current Prospectus relating to
the Shares. In the case of Shares for which an initial sales charge may be
assessed, Shares may be sold to certain classes of persons at reduced sales
charges or without any sales charge as from time to time set forth in the
current Prospectus relating to the Shares. Each Fund will advise the Distributor
of the net asset value per Share at each time as the net asset value per Share
shall have been determined by each Fund.
(c) The net asset value per Share of each Class thereof shall be
determined by each respective Fund, or an agent of that Fund, as of the close of
the New York Stock Exchange or such other time as set forth in the applicable
Prospectus on the Fund business day in accordance with the method set forth in
the Prospectus and guidelines established by the Board.
(d) Each Fund reserves the right to suspend the offering of Shares of
any Class at any time in the absolute discretion of the Board, and upon notice
of such suspension the Distributor shall cease to offer Shares of that Fund or
Classes thereof specified in the notice.
(e) Each Fund, or any agent of the Funds designated in writing to the
Distributor by the Funds, shall be promptly advised by the Distributor of all
purchase orders for Shares received by the Distributor and all subscriptions for
Shares obtained by the Distributor as agent shall be directed to the Funds for
acceptance and shall not be binding until accepted by the Funds. Any order or
subscription may be rejected by a Fund; provided, however, that each Fund will
not arbitrarily or without reasonable cause refuse to accept or confirm orders
or subscriptions for the purchase of Shares. Each Fund (or its agent) will
confirm orders and subscriptions upon their receipt, will make appropriate book
entries and, upon receipt by a Fund (or its agent) of payment thereof, will
issue such Shares in certificated or uncertificated form pursuant to the
instructions of the Distributor. The Distributor agrees to cause such payment
and such instructions to be delivered promptly to each Fund (or its agent).
SECTION 4. REPURCHASE OR REDEMPTION OF SHARES
(a) Any of the outstanding Shares of the Funds may be tendered for
redemption at any time, and each Fund agrees to redeem or repurchase the Shares
so tendered in accordance with its obligations as set forth in each Fund's
Organizational Documents and the Prospectus relating to the Shares. The price to
be paid to redeem or repurchase the Shares of a Fund shall be equal to the net
asset value calculated in accordance with the provisions of Section 3(c) hereof
less, in the case of Shares for which a deferred sales charge is assessed, a
deferred sales charge equal to a specified percentage or percentages of the net
asset value of those Shares as from time to time set forth in the Prospectus
relating to those Shares or their cost, whichever is less. Shares for which a
deferred sales charge may be assessed and that have been outstanding for a
specified period of time may be redeemed without payment of a deferred sales
charge as from time to time set forth in the Prospectus relating to those
Shares.
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(b) Each Fund or its designated agent shall pay (i) the total amount of
the redemption price consisting of the redemption price less any applicable
deferred sales charge to the redeeming shareholder or its agent and (ii) except
as may be otherwise required by the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. (the "NASD") and any interpretations
thereof, any applicable deferred sales charges to the Distributor in accordance
with the Distributor's instructions on or before the third business day
subsequent to each calendar month-end.
(c) Redemption of Shares or payment therefor may be suspended at times
when the New York Stock Exchange is closed for any reason other than its
customary weekend or holiday closings, when trading thereon is restricted, when
an emergency exists as a result of which disposal by a Fund of securities owned
by that Fund is not reasonably practicable or it is not reasonably practicable
for a Fund fairly to determine the value of its net assets, or during any other
period when the SEC so permits.
SECTION 5. DUTIES AND REPRESENTATIONS OF THE DISTRIBUTOR
(a) The Distributor shall use reasonable efforts to sell Shares of each
Fund upon the terms and conditions contained herein and in the then current
Prospectus. The Distributor shall devote reasonable time and effort to effect
sales of Shares but shall not be obligated to sell any specific number of
Shares. The services of the Distributor to each Fund hereunder are not to be
deemed exclusive, and nothing herein contained shall prevent the Distributor
from entering into like arrangements with other investment companies so long as
the performance of its obligations hereunder is not impaired thereby.
(b) In selling Shares of the Funds, the Distributor shall use its best
efforts in all material respects duly to comply with the requirements of all
federal and state laws relating to the sale of the Shares. None of the
Distributor, any selected dealer, any selected agent or any other person is
authorized by the Funds to give any information or to make any representations
other than as is contained in the Funds' Prospectuses or any advertising
materials or sales literature specifically approved in writing by the Funds or
their agents.
(c) The Distributor shall adopt and follow procedures for the
confirmation of sales to investors and selected dealers or selected agents, the
collection of amounts payable by investors and selected dealers or selected
agents on such sales, and the cancellation of unsettled transactions, as may be
necessary to comply with the requirements of the NASD and any other applicable
self-regulatory organization.
(d) The Distributor will perform its duties hereunder under the
supervision of and in accordance with the directives of the Board. The
Distributor will perform its duties hereunder in accordance with each Fund's
Organizational Documents and Prospectuses and with the instructions and
directions of the Board and will conform to and comply with the requirements of
the 1940 Act, the Securities Act and other applicable laws.
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(e) The Distributor shall provide the Board with a written report of
the amounts expended in connection with this Agreement as requested by the
Board.
(f) The Distributor shall be responsible for reviewing and making such
filings, as required, of advertisements and sales literature relating to the
Funds that have been furnished to the Distributor.
(g) The Distributor represents and warrants to each Fund that:
(i) It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware and it is duly
qualified to carry on its business in the State of Delaware;
(ii) It is empowered under applicable laws and by its Articles of
Incorporation to enter into and perform this Agreement;
(iii) All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement;
(iv) It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement;
(v) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Distributor, enforceable
against the Distributor in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and
secured parties;
(vi) It is registered under the 1934 Act with the SEC as a
broker-dealer, it is a member in good standing of the NASD, it will
abide by the rules and regulations of the NASD, and it will notify the
Funds if its membership in the NASD is terminated or suspended; and
(vii) The performance by the Distributor of its obligations hereunder
does not and will not contravene any provision of its Articles of
Incorporation.
(h) Notwithstanding anything in this Agreement, including the
Appendices, to the contrary, the Distributor makes no warranty or representation
as to the number of selected dealers or selected agents with which it has
entered into agreements in accordance with Section 11 hereof, as to the
availability of any Shares to be sold through any selected dealer, selected
agent or other intermediary or as to any other matter not specifically set forth
herein.
SECTION 6. DUTIES AND REPRESENTATIONS OF THE FUND
(a) Each Fund shall furnish to the Distributor copies of all financial
statements and other documents to be delivered to shareholders or investors at
least two Fund business days
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prior to such delivery and shall furnish the Distributor copies of all other
financial statements, documents and other papers or information which the
Distributor may reasonably request for use in connection with the distribution
of Shares. Each Fund shall make available to the Distributor the number of
copies of its Prospectuses as the Distributor shall reasonably request.
(b) Each Fund shall take, from time to time, subject to the approval of
the Board and any required approval of its shareholders, all action necessary to
fix the number of authorized Shares (if such number is not limited) and to
register the Shares under the Securities Act, to the end that there will be
available for sale the number of Shares as reasonably may be expected to be sold
pursuant to this Agreement.
(c) Each Fund shall register or qualify its Shares for sale under the
securities laws of the various states of the United States and other
jurisdictions ("States") as each Fund, in its sole discretion shall determine.
Any registration or qualification may be withheld, terminated or withdrawn by a
Fund at any time in its discretion. The Distributor shall furnish such
information and other material relating to its affairs and activities as may be
required by the Funds in connection with such registration or qualification.
(d) Each Fund represents and warrants to the Distributor that:
(i) It is a corporation or business trust duly organized and existing
and in good standing under the laws of where its Organizational
Documents are filed;
(ii) It is empowered under applicable laws and by its Organizational
Documents to enter into and perform this Agreement;
(iii) All proceedings required by the Organizational Documents have
been taken to authorize it to enter into and perform its duties under
this Agreement;
(iv) It is registered as an open-end management investment company with
the SEC under the 1940 Act;
(v) All Shares, when issued, shall be validly issued, fully paid and
non-assessable;
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of each Fund, enforceable against
each Fund in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties;
(vii) The performance by each Fund of its obligations hereunder does
not and will not contravene any provision of its Organizational
Documents.
(viii) Each Fund's Registration Statement is currently effective and
will remain effective with respect to all Shares of its series and
Classes (as applicable) thereof being offered for sale;
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(ix) Each Fund will use its best efforts to ensure that its
Registration Statement and Prospectuses have been or will be, as the
case may be, carefully prepared in conformity with the requirements of
the Securities Act and the rules and regulations thereunder;
(x) Each Fund will use its best efforts to ensure that (A) its
Registration Statement and Prospectuses contain or will contain all
statements required to be stated therein in accordance with the
Securities Act and the rules and regulations thereunder, (B) all
statements of fact contained or to be contained in the Registration
Statement or Prospectuses are or will be true and correct at the time
indicated or on the effective date as the case may be and (C) neither
the Registration Statement nor any Prospectus, when they shall become
effective or be authorized for use, will include an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading to a
purchaser of Shares;
(xi) Each Fund will from time to time file such amendment or amendments
to its Registration Statement and Prospectuses as, in the light of
then-current and then-prospective developments, shall, in the opinion
of its counsel, be necessary in order to have the Registration
Statement and Prospectuses at all times contain all material facts
required to be stated therein or necessary to make any statements
therein not misleading to a purchaser of Shares ("Required
Amendments");
(xii) Each Fund shall not file any amendment to its Registration
Statement or Prospectuses without giving the Distributor reasonable
advance notice thereof (which shall be at least three Fund business
days); provided, however, that nothing contained in this Agreement
shall in any way limit a Fund's right to file at any time such
amendments to its Registration Statement or Prospectuses, of whatever
character, as the Funds may deem advisable, such right being in all
respects absolute and unconditional; and
(xiii) Each Fund will use its best efforts to ensure that (A) any
amendment to its Registration Statement or Prospectuses hereafter filed
will, when it becomes effective, contain all statements required to be
stated therein in accordance with the 1940 Act and the rules and
regulations thereunder, (B) all statements of fact contained in the
Registration Statement or Prospectuses will, when it becomes effective,
be true and correct at the time indicated or on the effective date as
the case may be and (C) no such amendment, when it becomes effective,
will include an untrue statement of a material fact or will omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading to a purchaser of the
Shares.
SECTION 7. STANDARD OF CARE
(a) The Distributor shall use its best judgment and efforts in
rendering services to the Funds under this Agreement but shall be under no duty
to take any action except as specifically set forth herein or as may be
specifically agreed to by the Distributor in writing. The Distributor shall not
be liable to the Funds or any of the Funds' shareholders for any error of
judgment or
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mistake of law, for any loss arising out of any investment, or for any action or
inaction of the Distributor in the absence of bad faith, willful misfeasance or
gross negligence in the performance of the Distributor's duties or obligations
under this Agreement or by reason of the Distributor's reckless disregard of its
duties and obligations under this Agreement.
(b) The Distributor shall not be liable to the Funds for any action
taken or failure to act in good faith reliance upon:
(i) the advice of a Fund or of counsel, who may be counsel to the Funds
or counsel to the Distributor;
(ii) any oral instruction which the Distributor receives and which it
reasonably believes in good faith was transmitted by the person or
persons authorized by the Board to give such oral instruction (the
Distributor shall have no duty or obligation to make any inquiry or
effort of certification of such oral instruction);
(iii) any written instruction or certified copy of any resolution of
the Board, and the Distributor may rely upon the genuineness of any
such document or copy thereof reasonably believed in good faith by the
Distributor to have been validly executed; or
(iv) any signature, instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report, notice,
consent, order, or other document reasonably believed in good faith by
the Distributor to be genuine and to have been signed or presented by a
Fund or other proper party or parties;
and the Distributor shall not be under any duty or obligation to inquire into
the validity or invalidity or authority or lack thereof of any statement, oral
or written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order, or
any other document or instrument which the Distributor reasonably believes in
good faith to be genuine.
(c) The Distributor shall not be responsible or liable for any failure
or delay in performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its reasonable
control including, without limitation, acts of civil or military authority,
national emergencies, labor difficulties (other than those related to the
Distributor's employees), fire, mechanical breakdowns, flood or catastrophe,
acts of God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply. In addition, to the extent the Distributor's
obligations hereunder are to oversee or monitor the activities of third parties,
the Distributor shall not be liable for any failure or delay in the performance
of the Distributor's duties caused, directly or indirectly, by the failure or
delay of such third parties in performing their respective duties or cooperating
reasonably and in a timely manner with the Distributor.
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SECTION 8. INDEMNIFICATION
(a) The Funds will indemnify, defend and hold the Distributor, its
employees, agents, directors and officers and any person who controls the
Distributor within the meaning of section 15 of the Securities Act or section 20
of the 1934 Act ("Distributor Indemnitees") free and harmless from and against
any and all claims, demands, actions, suits, judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of every
nature and character (including the cost of investigating or defending such
claims, demands, actions, suits or liabilities and any reasonable counsel fees
incurred in connection therewith) which any Distributor Indemnitee may incur,
under the Securities Act, under the securities laws of the various States or
under common law or otherwise, arising out of or based upon any alleged untrue
statement of a material fact contained in each Fund's Registration Statement or
Prospectuses, arising out of or based upon any alleged omission to state a
material fact required to be stated in any one thereof or necessary to make the
statements in any one thereof not misleading, or arising out of or based upon
any filing made with the regulatory authorities of any State unless such
statement or omission was made in reliance upon, and in conformity with,
information furnished in writing to a Fund in connection with the preparation of
the Registration Statement, exhibits to the Registration Statement or filings
made with the regulatory authorities of any State by or on behalf of the
Distributor ("Distributor Claims").
After receipt of the Distributor's notice of termination under Section
13(e) of this Agreement, each Fund shall indemnify and hold each Distributor
Indemnitee free and harmless from and against any Distributor Claim; provided,
that the term Distributor Claim for purposes of this sentence shall mean any
Distributor Claim related to the matters for which the Distributor has requested
amendment to each Fund's Registration Statement and for which the Funds have not
filed a Required Amendment, regardless of with respect to such matters whether
any statement in or omission from the Registration Statement was made in
reliance upon, or in conformity with, information furnished to a Fund by or on
behalf of the Distributor.
(b) The Funds may assume the defense of any suit brought to enforce any
Distributor Claim and may retain counsel of good standing chosen by the Funds
and approved by the Distributor, which approval shall not be withheld
unreasonably. Each Fund shall advise the Distributor that it will assume the
defense of the suit and retain counsel within ten (10) days of receipt of the
notice of the claim. If a Fund assumes the defense of any such suit and retains
counsel, the defendants shall bear the fees and expenses of any additional
counsel that they retain. If a Fund does not assume the defense of any such
suit, or if Distributor does not approve of counsel chosen by a Fund or has been
advised that it may have available defenses or claims that are not available to
or conflict with those available to a Fund, that Fund will reimburse any
Distributor Indemnitee named as defendant in such suit for the reasonable fees
and expenses of any counsel that person retains. A Distributor Indemnitee shall
not settle or confess any claim without the prior written consent of the Funds,
which consent shall not be unreasonably withheld or delayed.
(c) The Distributor will indemnify, defend and hold each Fund and its
several officers and directors/trustees (collectively, the "Fund Indemnitees"),
free and harmless from and against
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any and all claims, demands, actions, suits, judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of every
nature and character (including the cost of investigating or defending such
claims, demands, actions, suits or liabilities and any reasonable counsel fees
incurred in connection therewith), but only to the extent that such claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses result from, arise out of or
are based upon:
(i) any alleged untrue statement of a material fact contained in a
Fund's Registration Statement or Prospectus or any alleged omission of
a material fact required to be stated or necessary to make the
statements therein not misleading, if such statement or omission was
made in reliance upon, and in conformity with, information furnished to
a Fund in writing in connection with the preparation of the
Registration Statement or Prospectus by or on behalf of the
Distributor; or
(ii) any act of, or omission by, Distributor or its sales
representatives that does not conform to the standard of care set forth
in Section 7 of this Agreement (collectively, "Fund Claims").
(d) The Distributor may assume the defense of any suit brought to
enforce any Fund Claim and may retain counsel of good standing chosen by the
Distributor and approved by the Funds, which approval shall not be withheld
unreasonably. The Distributor shall advise a Fund that it will assume the
defense of the suit and retain counsel within ten (10) days of receipt of the
notice of the claim. If the Distributor assumes the defense of any such suit and
retains counsel, the defendants shall bear the fees and expenses of any
additional counsel that they retain. If the Distributor does not assume the
defense of any such suit, or if a Fund does not approve of counsel chosen by the
Distributor or has been advised that it may have available defenses or claims
that are not available to or conflict with those available to the Distributor,
the Distributor will reimburse any Fund Indemnitee named as defendant in such
suit for the reasonable fees and expenses of any counsel that person retains. A
Fund Indemnitee shall not settle or confess any claim without the prior written
consent of the Distributor, which consent shall not be unreasonably withheld or
delayed.
(e) The Funds' and the Distributor's obligations to provide
indemnification under this Section is conditioned upon the Funds or the
Distributor receiving notice of any action brought against a Distributor
Indemnitee or Fund Indemnitee, respectively, by the person against whom such
action is brought within twenty (20) days after the summons or other first legal
process is served. Such notice shall refer to the person or persons against whom
the action is brought. The failure to provide such notice shall not relieve the
party entitled to such notice of any liability that it may have to any
Distributor Indemnitee or Fund Indemnitee except to the extent that the ability
of the party entitled to such notice to defend such action has been materially
adversely affected by the failure to provide notice.
(f) The provisions of this Section and the parties' representations and
warranties in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Distributor
Indemnitee or Fund Indemnitee and shall survive the sale
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and redemption of any Shares made pursuant to subscriptions obtained by the
Distributor. The indemnification provisions of this Section will inure
exclusively to the benefit of each person that may be a Distributor Indemnitee
or Fund Indemnitee at any time and their respective successors and assigns (it
being intended that such persons be deemed to be third party beneficiaries under
this Agreement).
(g) The Distributor agrees promptly to notify each Fund of the
commencement of any litigation or proceeding of which it becomes aware arising
out of or in any way connected with the issuance or sale of Shares. Each Fund
agrees promptly to notify the Distributor of the commencement of any litigation
or proceeding of which it becomes aware arising out of or in any way connected
with the issuance or sale of its Shares.
(h) Nothing contained herein shall require the Funds to take any action
contrary to any provision of their Organizational Documents or any applicable
statute or regulation or shall require the Distributor to take any action
contrary to any provision of its Articles of Incorporation or Bylaws or any
applicable statute or regulation; provided, however, that neither the Funds nor
the Distributor may amend their Organizational Documents or Articles of
Incorporation and Bylaws, respectively, in any manner that would result in a
violation of a representation or warranty made in this Agreement, except if
required by any applicable statute or regulation, and then only after notice to
the other party.
(i) Nothing contained in this section shall be construed to protect the
Distributor against any liability to the Funds or the security holders of the
Funds to which the Distributor would otherwise be subject by reason of its
failure to satisfy the standard of care set forth in Section 7 of this
Agreement.
SECTION 9. NOTIFICATION TO THE DISTRIBUTOR
Each Fund shall advise the Distributor immediately: (i) of any request
by the SEC for amendments to a Fund's Registration Statement or Prospectus or
for additional information; (ii) in the event of the issuance by the SEC of any
stop order suspending the effectiveness of a Fund's Registration Statement or
any Prospectus or the initiation of any proceedings for that purpose; (iii) of
the happening of any material event which makes untrue any statement made in a
Fund's then current Registration Statement or Prospectus or which requires the
making of a change in either thereof in order to make the statements therein not
misleading; and (iv) of all action of the SEC with respect to any amendments to
a Fund's Registration Statement or Prospectus which may from time to time be
filed with the Commission under the 1940 Act or the Securities Act.
SECTION 10. COMPENSATION; EXPENSES
(a) In consideration of the Distributor's services in connection with
the distribution of Shares of each Fund and each Class thereof, the Distributor
shall receive: (i) any applicable sales charge assessed upon investors in
connection with the purchase of Shares; (ii) from the Funds, any applicable
contingent deferred sales charge ("CDSC") assessed upon investors in connection
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with the redemption of Shares; (iii) from the Funds, the distribution service
fees with respect to the Shares of those Classes as designated in Appendix A for
which a plan under Rule 12b-1 under the 1940 Act (a "Plan") is effective (the
"Distribution Fee"); and (iv) from the Funds, the shareholder service fees with
respect to the Shares of those Classes as designated in each Fund's prospectus
(the "Service Fee"). The Distribution Fee and Service Fee shall be accrued daily
by each applicable Fund or Class thereof and shall be paid monthly as promptly
as possible after the last day of each calendar month but in any event on or
before the fifth (5th) Fund business day after month-end, at the rate or in the
amounts set forth in each Fund's prospectus and, as applicable, the Plan(s).
Each Fund grants and transfers to the Distributor a general unperfected lien and
security interest in any and all securities and other assets of each Fund now or
hereafter maintained in an account at each Fund's custodian on behalf of each
Fund to secure any Distribution Fees and Service Fees owed the Distributor by
each Fund under this Agreement.
(b) Each Fund shall cause its transfer agent (the "Transfer Agent") to
withhold, from redemption proceeds payable to holders of Shares and the Classes
thereof, all CDSCs properly payable by the shareholders in accordance with the
terms of the applicable Prospectus and shall cause the Transfer Agent to pay
such amounts over to the Distributor as promptly as possible after each month
end.
(c) Except as specified in Sections 8 and 10(a) of this Agreement, the
Distributor shall be entitled to no compensation or reimbursement of expenses
for the services provided by the Distributor pursuant to this Agreement. The
Distributor may receive compensation from the Funds' investment advisors, other
service providers or their respective affiliates (collectively, the "Advisor")
for its services hereunder or for additional services all as may be agreed to
between the Advisor and the Distributor. Notwithstanding anything in this
Agreement to the contrary, to the extent the Distributor receives compensation
from the Advisor that is disclosed to the Board, each Fund will indemnify,
defend and hold each Distributor Indemnitees free and harmless from and against
any and all claims, demands, actions, suits, judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of every
nature and character (including the cost of investigating or defending such
claims, demands, actions, suits or liabilities and any reasonable counsel fees
incurred in connection therewith) related in any way to such payment.
(d) Each Fund shall be responsible and assume the obligation for
payment of all its expenses, including fees and disbursements of its counsel and
auditors, in connection with the preparation and filing of the Registration
Statement and Prospectuses (including but not limited to the expense of setting
in type the Registration Statement and Prospectuses and printing sufficient
quantities for internal compliance, regulatory purposes and for distribution to
current shareholders).
(e) Each Fund shall bear the cost and expenses (i) of the registration
of its Shares for sale under the Securities Act; (ii) of the registration or
qualification of its Shares for sale under the securities laws of the various
States; (iii) if necessary or advisable in connection therewith, of qualifying a
Fund, or the Classes thereof (but not the Distributor) as an issuer or as a
broker or dealer, in such States as shall be selected by a Fund; and (iv)
payable to each State for continuing
12
registration or qualification therein until a Fund decides to discontinue
registration or qualification. The Distributor shall pay all expenses relating
to the Distributor's broker-dealer qualification.
SECTION 11. SELECTED DEALER AND SELECTED AGENT AGREEMENTS
(a) The Distributor shall have the right to enter into sub-distribution
agreements with securities dealers of its choice ("selected dealers") and with
depository institutions and other financial intermediaries of its choice
("selected agents") for the sale of Shares and to fix therein the portion of the
sales charge, if any, that may be allocated to the selected dealers or selected
agents; provided, that all such agreements shall be in substantially the form of
agreement as set forth in Appendix B hereto or such other form as approved by
the Funds. Shares of Classes of the Funds shall be resold by selected dealers or
selected agents only at the public offering price(s) set forth in the Prospectus
relating to the Shares. The Distributor shall offer and sell Shares of the Funds
only to such selected dealers as are members in good standing of the NASD. The
Distributor shall have the right to enter into shareholder servicing agreements
with financial intermediaries of its choice; provided, that all such agreements
shall be in a form as approved by the Funds.
(b) The Distributor will supervise each Fund's relationship with
selected dealers and agents and may make payments to those selected dealers and
agents in such amounts as the Distributor may determine from time to time in its
sole discretion. The amount of payments to selected dealers and agents by the
Distributor may be reviewed by the Board from time to time; provided, however,
that no payment by the Distributor to any selected dealer or agent with respect
to a Share shall exceed the amount of payments made to the Distributor hereunder
with respect to that Share.
SECTION 12. CONFIDENTIALITY
The Distributor agrees to treat all records and other information
related to each Fund as proprietary information of that Fund and, on behalf of
itself and its employees, to keep confidential all such information, except that
the Distributor may:
(i) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(ii) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies; and
(iii) release such other information as approved in writing by a Fund,
which approval shall not be unreasonably withheld;
provided, however, that the Distributor may release any information regarding a
Fund without the consent of that Fund if the Distributor reasonably believes
that it may be exposed to civil or
13
criminal legal proceedings for failure to comply, when requested to release any
information by duly constituted authorities or when so requested by a Fund.
SECTION 13. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to the Funds
listed in Appendix A on August 19, 2002. Upon effectiveness of this Agreement,
it shall supersede all previous agreements between the parties hereto covering
the subject matter hereof insofar as such Agreement may have been deemed to
relate to each Fund.
(b) This Agreement shall continue in effect with respect to each Fund
for a period of one year from its effectiveness and thereafter shall continue in
effect with respect to the Series until terminated; provided, that continuance
is specifically approved at least annually (i) by the Board or by a vote of a
majority of the outstanding voting securities of each Fund and (ii) by a vote of
a majority of Directors of each Fund (I) who are not parties to this Agreement
or interested persons of any such party (other than as Directors of the Funds)
and (II) with respect to each Class of each Fund for which there is an effective
Plan, who do not have any direct or indirect financial interest in any such Plan
applicable to the Class or in any agreements related to the Plan, cast in person
at a meeting called for the purpose of voting on such approval.
(c) This Agreement may be terminated at any time with respect to a
Fund, without the payment of any penalty, (i) by the Board or by a vote of a
majority of the outstanding voting securities of a Fund or, with respect to each
Class for which there is an effective Plan, a majority of Directors of a Fund
who do not have any direct or indirect financial interest in any such Plan or in
any agreements related to the Plan, on 60 days' written notice to the
Distributor or (ii) by the Distributor on 60 days' written notice to the Funds.
(d) This Agreement shall automatically terminate upon its assignment
and upon the termination of the Distributor's membership in the NASD.
(e) If a Fund does not file a Required Amendment within fifteen days
following receipt of a written request from the Distributor to do so, the
Distributor may, at its option, terminate this Agreement immediately.
(f) The obligations of Sections 5(e), 6(d), 8, 9 and 10 of this
Agreement shall survive any termination of this Agreement with respect to each
Fund or Class thereof.
SECTION 14. NOTICES
Any notice required or permitted to be given hereunder by the
Distributor to a Fund or by a Fund to the Distributor shall be deemed
sufficiently given if personally delivered or sent by telegram, facsimile or
registered, certified or overnight mail, postage prepaid, addressed by the party
giving such notice to the other party at the last address furnished by the other
party to the party giving such notice, and unless and until changed pursuant to
the foregoing provisions
14
hereof each such notice shall be addressed to a Fund or the Distributor, as the
case may be, at their respective principal places of business.
SECTION 15. ACTIVITIES OF THE DISTRIBUTOR
Except to the extent necessary to perform the Distributor's obligations
hereunder, nothing herein shall be deemed to limit or restrict the Distributor's
right, or the right of any of the Distributor's employees, agents, officers or
directors who may also be a director, officer or employee of the Funds, or
affiliated persons of the Funds to engage in any other business or to devote
time and attention to the management or other aspects of any other business,
whether of a similar or dissimilar nature, or to render services of any kind to
any other corporation, trust, firm, individual or association.
SECTION 16. ADDITIONAL FUNDS AND CLASSES
In the event that a Fund establishes one or more series of Shares or
one or more Classes of Shares after the effectiveness of this Agreement, such
series of Shares or Classes of Shares, as the case may be, shall become series
and Classes under this Agreement upon approval of this Agreement by that Fund
with respect to the series of Shares or Class of Shares and the execution of an
amended Appendix A reflecting the applicable names and terms. The Distributor
may elect not to make any such series or Classes subject to this Agreement.
SECTION 17. MISCELLANEOUS
(a) The Distributor shall not be liable to the Funds and the Funds
shall not be liable to the Distributor for consequential damages under any
provision of this Agreement except that Distributor Claims, as that term is used
in Section 8(a) of this Agreement, shall include consequential damages related
to, arising out of or based upon any filing made with the regulatory authorities
of any State.
(b) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by the
Distributor and the Funds.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between the
Distributor and the Funds and supersedes any prior agreement with respect to the
subject matter hereof, whether oral or written.
(e) This Agreement may be executed by the parties hereto on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
15
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(h) No affiliated person, employee, agent, officer or director of the
Distributor shall be liable at law or in equity for the Distributor's
obligations under this Agreement.
(i) A Fund shall be liable to the Distributor only with respect to
those series and Classes of the Fund and the Distributor shall look solely to
the Fund to satisfy any liability of a series or Class thereof to the
Distributor.
(j) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof.
(k) The terms "vote of a majority of the outstanding voting
securities," "interested person," "affiliated person" and "assignment" shall
have the meanings ascribed thereto in the 1940 Act.
(l) The distributor is hereby expressly put on notice of the limitation
of liability set forth in the Organizational Documents and hereby agrees that
the obligations assumed by each Fund pursuant to this Agreement shall be limited
in any case to each Fund and their assets and the Distributor shall not seek
satisfaction of any such obligation from the shareholders of the Funds, the
directors, officers, employees or agents of the Funds or any of them.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
On behalf of the entities listed in Appendix A
By:/s/Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Secretary
XXXXXXX DISTRIBUTORS, INC.
By: /s/Xxx Xxxx
-----------------------------------------
Name: Xxx Xxxx
Title:President
17
DISTRIBUTION AGREEMENT
Appendix A
----------------------------------------------------------------------------------------------------------------------
Name of Entity Legal Entity
----------------------------------------------------------------------------------------------------------------------
Real Estate Securities Fund, Inc. Maryland Corporation
A,B and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Flag Investors Value Builder Fund, Inc. Maryland corporation
A, B, C and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Flag Investors Equity Partners Fund, Inc. Maryland corporation
A, B, C and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Flag Investors Communications Fund, Inc. Maryland corporation
A, B, C and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Deutsche Bank Xxxx Xxxxx Cash Reserve Fund, Inc., on behalf of: Maryland corporation
Prime Series, A, B, C, retail and Institutional Class shares;
Treasury Series, retail and Institutional Class shares;
Tax-Free Series, retail and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Deutsche Investors Funds, Inc., on behalf of: Maryland corporation
Top 50 US Fund, A, B, C Class shares
Japanese Equity Fund, A, B, C, S Class shares
Global Biotechnology Fund, A, B, C Class shares
Growth Opportunity Fund, A, B, C Class shares
----------------------------------------------------------------------------------------------------------------------
Deutsche Investors Portfolios Trust, on behalf of: New York business trust
Top 50 US Portfolio
Japanese Equity Portfolio
----------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx Investment Trust, on behalf of: Delaware business trust
Fixed Income Fund, A, B, C, Investment and Institutional Class shares
Municipal Bond Fund, Investment and Institutional Class shares
Short-Term Fixed Income Fund, Institutional Class shares
Short-Term Municipal Bond Fund, Investment and Institutional Class shares
High Income Plus Fund, A, B, C, Investment, Premier and Institutional Class
shares
International Select Equity Fund, A, B, C, Investment, Premier and Institutional
Class shares
European Equity Fund, A, B, C, Investment, Premier and Institutional Class shares
Emerging Markets Equity Fund, Institutional Class shares
Emerging Markets Debt Fund, Institutional Class shares
Micro Cap Fund, A, B, C, Investment and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
18
----------------------------------------------------------------------------------------------------------------------
BT Investment Funds, on behalf of: Massachusetts business trust
Cash Management Fund, Investment Class shares
Tax-Free Money Fund, Investment Class shares
New York Tax-Free Money Fund , Investment Class shares
Treasury Money Fund, Investment Class shares
International Equity Fund, A, B, C and Investment Class shares
Mid Cap Fund, A, B, C, Investment and Institutional Class shares
Lifecycle Long-Range Fund, Investment Class shares
Lifecycle Mid-Range Fund, Investment Class shares
Lifecycle Short-Range Fund, Investment Class shares
Small Cap Fund, A, B, C and Investment Class shares
PreservationPlus Income Fund
Quantitative Equity Fund, Investment and Institutional Class shares
Global Equity Fund, A, B, C Class shares
----------------------------------------------------------------------------------------------------------------------
BT Investment Portfolios, on behalf of: Massachusetts business trust
Asset Management Portfolio II
Asset Management Portfolio III
Liquid Assets Portfolio
EAFE Equity Index Portfolio
US Bond Index Portfolio
PreservationPlus Portfolio
PreservationPlus Income Portfolio
----------------------------------------------------------------------------------------------------------------------
Cash Management Portfolio Massachusetts business trust
----------------------------------------------------------------------------------------------------------------------
Treasury Money Portfolio New York business trust
----------------------------------------------------------------------------------------------------------------------
International Equity Portfolio Massachusetts business trust
----------------------------------------------------------------------------------------------------------------------
Equity 500 Index Portfolio Massachusetts business trust
----------------------------------------------------------------------------------------------------------------------
BT Advisor Funds, on behalf of: Massachusetts business trust
EAFE Equity Index, Premier Class shares
US Bond Index, Premier Class shares
----------------------------------------------------------------------------------------------------------------------
BT Pyramid Funds, on behalf of: Massachusetts business trust
Money Market Fund, Investment Class shares
Equity 500 Index Fund, Investment shares
Asset Management Fund, Premier Class shares
PreservationPlus Fund, Investment, Institutional and Institutional Service Class
shares
----------------------------------------------------------------------------------------------------------------------
BT Institutional Funds, on behalf of: Massachusetts business trust
Cash Management Fund, Institutional Class shares
Cash Reserves Fund, Institutional Class shares
Treasury Money Fund, Institutional Class shares
International Equity Fund, Institutional Service Class I and Institutional
Service Class II shares
Equity 500 Index Fund, Premier shares
Liquid Assets Fund, Institutional Class shares
Treasury and Agency Fund, Institutional Class shares
Daily Assets Fund, Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
19
DISTRIBUTION AGREEMENT
Appendix A
as amended through November 1, 2002
----------------------------------------------------------------------------------------------------------------------
Name of Entity Legal Entity
----------------------------------------------------------------------------------------------------------------------
Flag Investors Value Builder Fund, Inc. Maryland corporation
A, B, C and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Flag Investors Equity Partners Fund, Inc. Maryland corporation
A, B, C and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Flag Investors Communications Fund, Inc. Maryland corporation
A, B, C and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Deutsche Bank Xxxx Xxxxx Cash Reserve Fund, Inc., on behalf of: Maryland corporation
Prime Series, A, B, C, retail and Institutional Class shares;
Treasury Series, retail and Institutional Class shares;
Tax-Free Series, retail and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Deutsche Investors Funds, Inc., on behalf of: Maryland corporation
Top 50 US Fund, A, B, C Class shares
Japanese Equity Fund, A, B, C, S Class shares
Global Biotechnology Fund, A, B, C Class shares
----------------------------------------------------------------------------------------------------------------------
Deutsche Investors Portfolios Trust, on behalf of: New York business trust
Top 50 US Portfolio
Japanese Equity Portfolio
----------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx Investment Trust, on behalf of: Delaware business trust
Fixed Income Fund, A, B, C, Investment and Institutional Class shares
Municipal Bond Fund, Investment and Institutional Class shares
Short-Term Fixed Income Fund, Institutional Class shares
Short-Term Municipal Bond Fund, Investment and Institutional Class shares
High Income Plus Fund, A, B, C, Investment, Premier and Institutional Class
shares
International Select Equity Fund, A, B, C, Investment, Premier and Institutional
Class shares
European Equity Fund, A, B, C, Investment, Premier and Institutional Class shares
Emerging Markets Debt Fund, Institutional Class shares
Micro Cap Fund, A, B, C, Investment and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
BT Investment Funds, on behalf of: Massachusetts business trust
Cash Management Fund, Investment Class shares
Tax-Free Money Fund, Investment Class shares
New York Tax-Free Money Fund , Investment Class shares
Treasury Money Fund, Investment Class shares
International Equity Fund, A, B, C and Investment Class shares
Mid Cap Fund, A, B, C, Investment and Institutional Class shares
Lifecycle Long-Range Fund, Investment Class shares
Lifecycle Mid-Range Fund, Investment Class shares
Lifecycle Short-Range Fund, Investment Class shares
Small Cap Fund, A, B, C and Investment Class shares
PreservationPlus Income Fund
Quantitative Equity Fund, Investment and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
-A1-
----------------------------------------------------------------------------------------------------------------------
BT Investment Portfolios, on behalf of: Massachusetts business trust
Asset Management Portfolio II
Asset Management Portfolio III
Liquid Assets Portfolio
EAFE Equity Index Portfolio
US Bond Index Portfolio
PreservationPlus Portfolio
PreservationPlus Income Portfolio
----------------------------------------------------------------------------------------------------------------------
Cash Management Portfolio Massachusetts business trust
----------------------------------------------------------------------------------------------------------------------
Treasury Money Portfolio New York business trust
----------------------------------------------------------------------------------------------------------------------
International Equity Portfolio Massachusetts business trust
----------------------------------------------------------------------------------------------------------------------
Equity 500 Index Portfolio Massachusetts business trust
----------------------------------------------------------------------------------------------------------------------
BT Advisor Funds, on behalf of: Massachusetts business trust
EAFE Equity Index, Premier Class shares
US Bond Index, Premier Class shares
----------------------------------------------------------------------------------------------------------------------
BT Pyramid Funds, on behalf of: Massachusetts business trust
Money Market Fund, Investment Class shares
Equity 500 Index Fund, Investment shares
Asset Management Fund, Premier Class shares
PreservationPlus Fund, Investment, Institutional and Institutional Service Class
shares
----------------------------------------------------------------------------------------------------------------------
BT Institutional Funds, on behalf of: Massachusetts business trust
Cash Management Fund, Institutional Class shares
Cash Reserves Fund, Institutional Class shares
Treasury Money Fund, Institutional Class shares
International Equity Fund, Institutional Service Class I and Institutional
Service Class II shares
Equity 500 Index Fund, Premier shares
Liquid Assets Fund, Institutional Class shares
Treasury and Agency Fund, Institutional Class shares
Daily Assets Fund, Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
-A2-
DISTRIBUTION AGREEMENT
Appendix A
as amended through February 1, 2003
----------------------------------------------------------------------------------------------------------------------
Name of Entity Legal Entity
----------------------------------------------------------------------------------------------------------------------
Flag Investors Value Builder Fund, Inc. Maryland corporation
A, B, C and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Flag Investors Equity Partners Fund, Inc. Maryland corporation
A, B, C and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Flag Investors Communications Fund, Inc. Maryland corporation
A, B, C and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Deutsche Bank Xxxx Xxxxx Cash Reserve Fund, Inc., on behalf of: Maryland corporation
Prime Series, A, B, C, retail and Institutional Class shares;
Treasury Series, retail and Institutional Class shares;
Tax-Free Series, retail and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
Deutsche Investors Funds, Inc., on behalf of: Maryland corporation
Top 50 US Fund, A, B, C Class shares
Japanese Equity Fund, A, B, C, S Class shares
Global Biotechnology Fund, A, B, C Class shares
----------------------------------------------------------------------------------------------------------------------
Deutsche Investors Portfolios Trust, on behalf of: New York business trust
Top 50 US Portfolio
Japanese Equity Portfolio
----------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx Investment Trust, on behalf of: Delaware business trust
Fixed Income Fund, A, B, C, Investment and Institutional Class shares
Municipal Bond Fund, Investment and Institutional Class shares
Short-Term Fixed Income Fund, A, B, C and Institutional Class shares
Short-Term Municipal Bond Fund, A, B, C, and Investment and Institutional Class
shares
High Income Plus Fund, A, B, C, Investment, Premier and Institutional Class
shares
International Select Equity Fund, A, B, C, Investment, Premier and Institutional
Class shares
European Equity Fund, A, B, C, Investment, Premier and Institutional Class shares
Emerging Markets Debt Fund, Institutional Class shares
Micro Cap Fund, A, B, C, Investment and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
BT Investment Funds, on behalf of: Massachusetts business trust
Cash Management Fund, Investment Class shares
Tax-Free Money Fund, Investment Class shares
New York Tax-Free Money Fund , Investment Class shares
Treasury Money Fund, Investment Class shares
International Equity Fund, A, B, C and Investment Class shares
Mid Cap Fund, A, B, C, Investment and Institutional Class shares
Lifecycle Long-Range Fund, Investment Class shares
Lifecycle Mid-Range Fund, Investment Class shares
Lifecycle Short-Range Fund, Investment Class shares
Small Cap Fund, A, B, C and Investment Class shares
PreservationPlus Income Fund
Quantitative Equity Fund, Investment and Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
-A3-
----------------------------------------------------------------------------------------------------------------------
BT Investment Portfolios, on behalf of: Massachusetts business trust
Asset Management Portfolio II
Asset Management Portfolio III
Liquid Assets Portfolio
EAFE Equity Index Portfolio
US Bond Index Portfolio
PreservationPlus Portfolio
PreservationPlus Income Portfolio
----------------------------------------------------------------------------------------------------------------------
Cash Management Portfolio Massachusetts business trust
----------------------------------------------------------------------------------------------------------------------
Treasury Money Portfolio New York business trust
----------------------------------------------------------------------------------------------------------------------
International Equity Portfolio Massachusetts business trust
----------------------------------------------------------------------------------------------------------------------
Equity 500 Index Portfolio Massachusetts business trust
----------------------------------------------------------------------------------------------------------------------
BT Advisor Funds, on behalf of: Massachusetts business trust
EAFE Equity Index, Premier Class shares
US Bond Index, Premier Class shares
----------------------------------------------------------------------------------------------------------------------
BT Pyramid Funds, on behalf of: Massachusetts business trust
Money Market Fund, Investment Class shares
Equity 500 Index Fund, Investment shares
Asset Management Fund, Premier Class shares
PreservationPlus Fund, Investment, Institutional and Institutional Service Class
shares
----------------------------------------------------------------------------------------------------------------------
BT Institutional Funds, on behalf of: Massachusetts business trust
Cash Management Fund, Institutional Class shares
Cash Reserves Fund, Institutional Class shares
Treasury Money Fund, Institutional Class shares
International Equity Fund, Institutional Service Class I and Institutional
Service Class II shares
Equity 500 Index Fund, Premier shares
Liquid Assets Fund, Institutional Class shares
Treasury and Agency Fund, Institutional Class shares
Daily Assets Fund, Institutional Class shares
----------------------------------------------------------------------------------------------------------------------
-A4-
DISTRIBUTION AGREEMENT
Appendix B
[Form of Selling Group Agreement]
SELLING GROUP AGREEMENT
XXXXXXX DISTRIBUTORS, INC.
000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000
Dear Financial Services Firm:
As principal underwriter and distributor, we invite you to join a
Selling Group for the distribution of shares of the Xxxxxxx Funds (herein called
"Funds"), but only in those states in which the shares of the Funds may legally
be offered for sale. For purposes of this agreement, the Funds shall include
Class A, Class B, Class C, Institutional Class, Premier Class and Investment
Class Shares of the Xxxxxxx Funds and such additional classes as we may from
time to time specify by supplement hereto. As exclusive agent of each of the
Funds, we offer to sell to you shares of the Funds on the following terms:
1. In all sales of these shares to the public you shall act as dealer
for your own account, and in no transaction shall you have any authority to act
as agent for the issuer, for us, or for any other member of the Selling Group.
2. Orders to purchase shares of a Fund received from you will be
accepted by us only at the public offering price applicable to each order, as
established by the Prospectus of each Fund, subject to the discount, commission
or other concession, if any, as provided in such Prospectus. Upon receipt from
you of any order to purchase shares of a Fund, we shall send a confirmation to
you. Additional instructions may be forwarded to you from time to time. All
purchase orders are subject to acceptance or rejection by us in our sole
discretion.
3. You may offer and sell shares to your customers only at the public
offering price determined in the manner described in the applicable Prospectus.
The public offering price is the net asset value per share as provided in the
applicable Prospectus plus, with respect to certain Funds, a sales charge from
which you may receive a discount equal to a percentage of the applicable
offering price as provided in the applicable Prospectus. You may receive a sales
commission, with respect to certain Funds, equal to a percentage of the amount
invested as provided in the applicable Prospectus. The discounts or other
concessions to which you may be entitled in connection with sales to your
customers pursuant to any special features of a Fund (such as combined
purchases, cumulative discounts, letters of intent, etc.) shall be in accordance
with the terms of such features, as described in the applicable Prospectus and
related forms and it is your responsibility to inform us at the time an order to
purchase shares is placed of the applicability of any such special features. You
may receive distribution and/or administrative service fees, with respect to
certain Funds, as provided in the applicable Prospectus, which fees shall be
payable with respect to such assets, for such periods and at such intervals as
are from time to time specified by us. Our liability to you with respect to the
payment of any distribution or administrative services fee is limited to the
proceeds
-C1-
received by us from the Funds for your services, and you waive any right you may
have to payment of any such fees until we are in receipt of the proceeds from
the Funds that are attributable to your services.
4. By accepting this agreement, you agree:
(a) To purchase shares only from us or from your customers.
(b) That you will purchase shares from us only to cover
purchase orders already received from your customers, or
for your own bona fide investment.
(c) That you will not purchase shares from your customers at
a price lower than the bid price then quoted by or for
the Fund involved. You may, however, sell shares for the
account of your customer to the Fund, or to us as agent
for the Fund, at the bid price currently quoted by or
for the Fund and charge your customer a fair commission
for handling the transaction.
(d) That you will not withhold placing with us orders
received from your customers so as to profit yourself as
a result of such withholding.
5. We will not accept from you any conditional orders for shares.
6. If any shares confirmed to you under the terms of this agreement are
repurchased by the issuing Fund or by us as agent for the Fund, or are tendered
for repurchase, within seven business days after the date of our confirmation of
the original purchase order, you shall forthwith refund to us the full discount,
commission or other concession, if any, allowed or paid to you on such shares.
7. Unless otherwise agreed upon by us, payment for shares ordered from
us shall be by wire transfer of Fed funds and must be received by the
appropriate Fund's shareholder service agent within three business days after
our acceptance of your order (or such shorter time period as may be required by
applicable regulations). If such payment is not received, we reserve the right,
without notice, forthwith to cancel the sale or, at our option, to sell the
shares ordered back to the Fund, in which case we may hold you responsible for
any loss, including loss of profit suffered by us as a result of your failure to
make such payment. In the event that any orders by you are processed by us on an
"as of" basis as an accommodation to you, you shall be responsible for any loss
suffered by us or the applicable Fund.
8. If you are planning to place orders via the NSCC's Fund/SERV or if
you are planning to maintain records via the NSCC's NETWORKING, you must execute
our Fund/SERV and/or Networking Agreements, as applicable. These agreements are
available on request.
9. All sales will be made subject to our receipt of shares from the
Fund. We reserve the right, in our discretion, without notice, to suspend sales
or withdraw the offering of shares entirely. We reserve the right to modify the
terms of or terminate this agreement, upon 15 days prior written notice to you.
Also, the sales charges, discounts, commissions or other concessions and the
distribution/administrative service fees provided for hereunder are subject to
change at any time by the Funds or us. You may terminate this agreement upon 15
days prior written notice to us.
-C2-
10. All communications to us regarding this agreement should be sent to
the address in the heading above. Any notice to you regarding this agreement
shall be duly given if mailed to you at the address specified by you below.
11. This agreement shall be construed in accordance with the laws of
Illinois. This agreement is subject to the Prospectuses of the Funds from time
to time in effect, and, in the event of a conflict, the terms of the
Prospectuses shall control. References herein to the "Prospectus" of a Fund
shall mean the prospectus and statement of additional information of such Fund
as from time to time in effect. Any changes, modifications or additions
reflected in any such Prospectus shall be effective on the date of such
Prospectus (or supplement thereto) unless specified otherwise.
12. This agreement is subject to the Additional Stipulations and
Conditions on the reverse side hereof, all of which are a part of this
agreement. In addition, any supplements attached hereto, or sent to you pursuant
to paragraph 9 above, shall be a part of this agreement.
o Collective Investment Trusts: Check box, if applicable. The attached
supplement relates to the introduction by you to us of Qualified Participants
who may from time to time purchase units of participation in collective
investment trusts trusteed by Xxxxxxx Trust Company. The supplement is part of
this agreement.
XXXXXXX DISTRIBUTORS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
We accept and agree to the terms and conditions of this agreement, including the
Additional Stipulations and Conditions on the reverse side and, if applicable,
any attached supplements.
Date: Firm:
----------------------------- -----------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Firm CRD Number: Firm Home Office Address:
------------------
--------------------------------
--------------------------------
-C3-
-------------------------------
-C4-
ADDITIONAL STIPULATIONS AND CONDITIONS
13. No person is authorized to make any representations concerning
shares of any Fund except those contained in the Prospectus of such Fund or in
printed information issued by the Fund or by us as information supplemental to
such Prospectus. If you wish to use your own advertising or sales literature
with respect to a Fund, all such materials must be approved by us prior to use.
You shall be responsible for the content of and any required filing of such
materials.
14. Your acceptance of this agreement constitutes a representation that
you are a registered security dealer and a member in good standing of the
National Association of Securities Dealers, Inc. ("NASD") and that you agree to
comply with all state and federal laws, rules and regulations applicable to
transactions hereunder and to the Rules of Fair Practice of the NASD. You
likewise agree that you will not offer to sell shares of any Fund in any state
or other jurisdiction in which they may not lawfully be offered for sale.
15. You represent and warrant to us and the Funds:
1. You have in place an anti-money laundering program ("AML
program") that does now and will continue to comply with
applicable laws and regulations, including the relevant
provisions of the USA PATRIOT Act (Pub. L. No. 107-56 (2001))
and the regulations issued thereunder by the U.S. Treasury
Department and the rules of the National Association of
Securities Dealers, Inc. and the New York Stock Exchange,
Inc., as applicable.
2. You have in place - and have conducted due diligence
pursuant to - policies, procedures and internal controls
reasonably designed (a) to verify the identity of the
customers that you introduce to the Funds or on whose behalf
you purchase Fund shares, and (b) to identify those customers'
sources of funds, and have no reason to believe that any of
the invested funds were derived from illegal activities.
3. You have, after undertaking reasonable inquiry, no
information or knowledge that (a) any customers that you
introduce to the Funds or on whose behalf you purchase Fund
shares, or (b) any person or entity controlling, controlled by
or under common control with such customers is an individual
or entity or in a country or territory that is on an Office of
Foreign Assets Control ("OFAC") list or similar list of
sanctioned or prohibited persons maintained by a U.S.
governmental or regulatory body.
You further agree promptly to notify us should you become aware of any
change in the above representations and warranties.
In addition, we on our own behalf and on behalf of the Funds hereby
provide notice to you that we and/or the Funds reserve the right to make
inquires of and request additional information from you regarding your AML
program.
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16. You shall make available an investment management account for your
customers through the Funds and shall provide such office space and equipment,
telephone facilities, personnel and literature distribution as is necessary or
appropriate for providing information and services to your customers. Such
services and assistance may include, but not be limited to, establishment and
maintenance of shareholder accounts and records, processing purchase and
redemption transactions, answering routine inquiries regarding the Funds, and
such other services as may be agreed upon from time to time and as may be
permitted by applicable statute, rule, or regulation. You shall prepare such
periodic reports for us as shall reasonably be requested by us. You shall
immediately inform the Funds or us of all written complaints received by you
from Fund shareholders relating to the maintenance of their accounts and shall
promptly answer all such complaints and other similar correspondence. You shall
provide the Funds and us on a timely basis with such information as may be
required to complete various regulatory forms.
You agree to indemnify and hold harmless the Funds, us and our
respective affiliates, representatives and agents from and against any and all
direct or indirect liabilities or losses resulting from requests, directions,
actions or inactions of or by you, your officers, employees or agents regarding
the purchase, redemption or transfer of registration of shares of the Funds for
accounts of you, your customers and other shareholders or from any unauthorized
or improper use of any on-line computer facilities. We agree to indemnify you
and hold you harmless from and against any and all liabilities and losses
resulting directly from any misstatement of a material fact in the Prospectus of
a Fund or the omission of any material fact required to be stated in the
Prospectus of a Fund or necessary to make the statements in the Prospectus not
misleading. The foregoing indemnification provisions shall survive termination
of this agreement.
17. As a result of the necessity to compute the amount of any
contingent deferred sales charge or redemption charge due with respect to the
redemption of shares, you may not hold shares of a Fund imposing such a charge
in an account registered in your name or in the name of your nominee for the
benefit of certain of your customers except with our prior written consent and,
in such event, you shall be responsible for computation, collection and payment
to us of such charges. Except as otherwise permitted by us, shares of such a
Fund owned by a shareholder must be in a separate identifiable account for such
shareholder.
18. Shares of certain Funds have been divided into separate classes.
Please see the appropriate Prospectuses for a more complete description of the
distinctions between the classes of shares.
It is important to investors not only to choose Funds appropriate for
their investment objectives, but also to choose the appropriate distribution
arrangement, based on the amount invested and the expected duration of the
investment. Decisions to purchase a specific class should be made in light of
the relevant facts and circumstances, including: the specific purchase order
dollar amount; the length of time the investor expects to hold the shares; and
any other relevant circumstances such as the availability of purchases under a
letter of intent, combined purchases or cumulative discount privilege, as
described in the Prospectus.
Since there are instances when one pricing structure may be more
appropriate than another, appropriate supervisory personnel within your
organization must ensure that all employees receiving investor inquiries about
the purchase of shares of the Funds advise the investor of the available
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pricing structures offered by the Funds and the impact of choosing one method
over another, including breakpoints and the availability of letters of intent,
combined purchases and cumulative discounts. In some instances, it may be
appropriate for a supervisory person to discuss a purchase with the investor.
19. Both of us agree on behalf of ourselves, our affiliates and
employees that the terms of this agreement, information exchanged hereunder and
information about our respective customers and potential customers is
confidential and as such shall not be disclosed, sold or used in any way except
to carry out the terms of this agreement. Notwithstanding the foregoing, such
confidential information may be disclosed on a "need to know" basis as set forth
in applicable privacy rules and regulations. The obligations regarding
confidentiality hereunder shall not apply to any information which is (i)
otherwise publicly available, (ii) already possessed by the entity to whom the
information was disclosed prior to disclosure hereunder, (iii) independently
developed by the entity, or (iv) disclosed pursuant to law, rule, regulation or
court or administrative order. The provisions of this paragraph 19 shall survive
termination of this agreement.
20. From time to time, the Funds or we may implement policies,
procedures or charges in an effort to avoid the potential adverse effects on the
Funds of short-term trading by market timers. You agree to cooperate in good
faith with us in the implementation of any such policies, procedures and/or
charges. In this regard, you agree that we may reject or cancel any purchase or
exchange order, particularly when there appears to be a pattern of market timing
or other frequent purchases and sales.
21. This agreement shall be in substitution of any prior selling group
agreement between you and us regarding these shares. Unless otherwise agreed,
this agreement shall not be applicable to the provision of services for Cash
Equivalent Fund, Tax-Exempt California Money Market Fund, Investors Municipal
Cash Fund, Investors Cash Trust, Cash Account Trust and similar wholesale money
market funds that we offer. The payment of related distribution and services
fees for those funds shall be subject to separate distribution/services
agreements.
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