FIRST EAGLE TRUST
DISTRIBUTION AND SERVICES AGREEMENT
AGREEMENT made as of the 27th day of February, 1998, between
FIRST EAGLE TRUST, a Delaware business trust (the "Trust"), and XXXXXXX AND X.
XXXXXXXXXXXX, INC., a New York corporation (the "Distributor"), such Distributor
to act on behalf of those Series (hereinafter referred to as the "Funds") of the
Trust listed in Exhibit A hereto in the manner contemplated by this Agreement.
W I T N E S S E T H :
WHEREAS, the Trust is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end management investment
company, and it is in the interest of the Trust to continuously offer shares of
the Funds for sale under the Securities Act of 1933, as amended (the '1933
Act").
WHEREAS, the Trust and the Distributor wish to enter into an
agreement with each other with respect to the continuous offering of the classes
of shares of beneficial interest of the Funds ("Shares") as listed in Exhibit A
upon the terms described in the Prospectus and Statement of Additional
Information that is included as part of the Trust's Registration Statement on
Form N-1A, as may be amended from time to time (the "Registration Statement").
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Trust hereby
appoints the Distributor to act as its exclusive agent to sell and to arrange
for the sale of Shares on the terms
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and for the period set forth in this Agreement and in accordance with the
Registration Statement, 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 the Trust
during the term of this Agreement, Shares upon the terms described in the
Prospectus and Statement of Additional Information that is included in
Registration Statement.
(b) The Distributor will make itself available to receive
orders, satisfactory to the Distributor, for the purchase of Shares and will
accept such orders on behalf of the Trust and will transmit such orders to the
Funds' transfer agent as promptly as practicable. Purchase orders shall be
deemed effective at the time and in the manner set forth in the current
Prospectus and Statement of Additional Information (hereinafter referred to
jointly as the "Prospectus").
(c) The offering price of Shares shall be determined following
the receipt of an order in accordance with procedures set forth in the
Prospectus. The Trust shall furnish the Distributor, with all possible
promptness, advice of each computation of net asset value of the Shares.
(d) The Distributor in its discretion may sell Shares to such
registered and qualified retail dealers and financial services firms ("Firms")
as it may select. In making agreements with such firms, the Distributor shall
act only as principal and not as agent for the Trust.
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(e) The Distributor may also appoint such Firms to provide
distribution services to investors. The Firms shall provide such facilities and
personnel as is necessary or beneficial for providing information regarding the
Funds, distribution of sales literature, prospectuses, promotional material and
information, and assisting with Fund services and privileges for clients of such
Firms and shareholders of the Funds. The Distributor may also provide the above
services to the Trust and shall coordinate transfer agency services for the
Trust.
(f) The Distributor shall order Shares from the Trust only to
the extent it has received purchase orders therefor. Shares offered for sale or
sold by the Distributor shall be so offered or sold at a price per share
determined in accordance with the Prospectus. The price the Trust shall receive
for all Shares purchased from it shall be the net asset value of such Shares as
determined in accordance with the Prospectus. The Distributor may pay
commissions or fees to Firms and to others in its discretion in such amounts as
the Distributor shall determine from time to time and as provided in the
Prospectus. The Distributor shall be entitled to receive and retain any
applicable contingent deferred sales charge as described in the current
Prospectus. In addition to sales made by it as agent of the Trust, the
Distributor may also sell Shares as principal to persons with whom it does not
have selling group agreements.
(g) The Distributor will not make, or authorize Firms or
others to make, any short sales of Shares. The Distributor, as agent of and for
the account of the Trust, may repurchase the Shares at such prices and upon such
terms and conditions as shall be specified in the Prospectus. In selling or
reacquiring Shares for the account of the Trust, the Distributor
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will in all respects conform to the requirements of all state and federal laws
and the rules and regulations of the National Association of Securities Dealers,
Inc. ("NASD") relating to such sale or reacquisition, as the case may be, and
will indemnify and save harmless the Fund from any damage or expense on account
of any wrongful act by the Distributor or any employee, representative or agent
of the Distributor. The Distributor will observe and be bound by all the
provisions of the Agreement and Declaration of Trust of the Trust and the
provisions of the Prospectus.
(h) The Distributor shall, for all purposes herein provided,
be deemed to be an independent contractor and, unless expressly provided herein
or otherwise authorized, shall have no authority to act for or represent the
Trust in any way. The Distributor and its affiliates, by separate agreement with
the Trust, may also serve the Trust in other capacities. The services of the
Distributor to the Trust under this Agreement are not to be deemed exclusive,
and the Distributor shall be free to render similar services or other services
to others so long as its services hereunder are not materially impaired thereby.
(i) The Distributor shall issue and deliver or shall arrange
for various Firms to issue and deliver on behalf of the Trust such confirmations
of sales made by it pursuant to this Agreement as may be required. At or prior
to the time of issuance of Shares, the Distributor will pay or cause to be paid
to the Trust the amount due the Trust for the sale of such Shares. Certificates
shall be issued or Shares registered on the transfer books of the Trust in such
names and denominations as the Distributor may specify.
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Section 3. Compensation to the Distributor. For services
rendered pursuant to this Agreement, the Trust shall pay to the Distributor, on
a monthly basis, the fees as set forth in Exhibit B to this Agreement. This
Agreement contemplates that the Firms providing services in connection with the
sale and servicing of Shares will be compensated by the Distributor in
accordance with the terms of this Agreement and the Prospectus. For the month
and year in which this Agreement becomes effective or terminates, there shall be
an appropriate proration on the basis of the number of days that the Agreement
is in effect during the month and year, respectively. The net asset value per
Share and the net assets of each of the Funds shall be calculated in accordance
with the provisions of the Prospectus. On each day when net asset value is not
calculated, the net asset value per Share shall be deemed to be the net asset
value of such a Share as of the close of business on the last previous day on
which such calculation was made. The fees payable to the Distributor shall be in
addition to and shall not be reduced or offset by the amount of any contingent
deferred sales charge received by the Distributor. The Distributor may also
receive compensation from Xxxxxxx and S. Bleichroeder Advisors, Inc., the Fund's
investment adviser, as the Distributor and the investment adviser may agree from
time to time.
Section 4. Duties of the Trust.
(a) The Trust agrees to sell its Shares so long as it has
Shares available for sale and agrees to deliver or cause the Funds' transfer
agent to deliver Share certificates or to register such Shares on the records of
the Funds in non-certificated form and to register such Shares on the records of
the Funds in such names and amounts as the Distributor has requested
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in writing, as promptly as practicable after receipt by the Trust of the net
asset value thereof and written instructions for registering such Shares.
(b) The Trust shall keep the Distributor fully informed with
regard to its affairs and shall furnish to the Distributor copies of all
financial statements and other information that the Distributor may reasonably
request for use in connection with the distribution of Shares. Upon request by
the Distributor, the Trust will furnish a certified copy of the current
financial statements prepared for the Funds by the Trust's independent
accountants. The Trust will furnish such reasonable number of copies of the
current Prospectus and financial statements as the Distributor may request. The
Trust shall cooperate fully in the efforts of the Distributor to sell and
arrange for the sale of Shares.
(c) The Trust shall take all necessary action to provide for
authorized Shares and for the payment of filing fees as may be necessary to
register the Shares under the 1933 Act and the 1940 Act so that Shares will be
available for sale by the Distributor. The Trust agrees to file from time to
time such amendments, reports and other documents as may be necessary in order
that there will be no untrue statement of a material fact in the Registration
Statement or Prospectus, and so that there will be no omission to state a
material fact in the Registration Statement or Prospectus.
(d) The Trust shall use its best efforts to qualify and
maintain the qualification of an appropriate number of Shares for sale under the
securities laws of such states as the Distributor and the Fund may approve; and,
if necessary or appropriate in connection therewith, to qualify and maintain the
qualification of the Trust as a broker or dealer in such states. The
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Trust shall not be required to amend its Agreement of Trust or By-Laws to comply
with the laws of any state, to maintain an office in any state, to change the
terms of the offering of its Shares in any state from the terms set forth in its
Registration Statement, 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 Shares. The Distributor shall furnish such
information and other material relating to its affairs and activities as may be
required by the Trust in connection with such qualifications.
Section 5. Expenses.
(a) The Trust shall bear all expenses of the continuous
offering of Shares in connection with: (i) fees and disbursements of its counsel
and independent accountants, (ii) the preparation, filing and printing of the
Registration Statement required by and under the federal securities laws, (iii)
the preparation and mailing of annual and interim reports, Prospectuses and
proxy materials to existing shareholders and (iv) the qualifications of Shares
for sale and of the Trust as a broker or dealer under the securities laws of
such states or other jurisdictions as shall be selected by the Trust and the
Distributor pursuant to Section 4(d) hereof and the cost and expenses payable to
each such state for continuing qualification therein.
(b) The Distributor shall bear (i) the costs and expenses of
preparing, printing and distributing any materials not prepared by the Trust and
other materials used by the Distributor in connection with its offering of
Shares for sale to the public, (ii) the cost and expense of printing such extra
copies of the Prospectus and Statement of Additional Information for use in the
sale of Shares to the public, (iii) the expenses of registration or
qualification of
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the Distributor as a dealer or broker under federal or state laws and the
expense of continuing such registration or qualification and (iv) the expenses
of any sales commissions for sales of the Funds' Shares (except such expenses as
are specifically undertaken by the Trust).
Section 6. Reports to the Board. The Distributor shall prepare
reports for the Board of Trustees of the Trust on a quarterly basis in
connection with the Trust's Rule 12b-1 plan and agreement for such Classes of
Shares subject to Rule 12b-1 as described in the Prospectus showing amounts paid
to the various Firms and such other information as shall be reasonably requested
by the Board of Trustees.
Section 7. Distribution Services Plan. To the extent
applicable, this Agreement constitutes the Rule 12b-1 plan and agreement for
such payments as described in Exhibit B as being made pursuant to Rule 12b-1
under the 1940 Act; and this Agreement and plan shall be approved and renewed in
accordance with Rule 12b-1. However, payments for services not specifically
identified as being in accordance with Rule 12b-1 shall be deemed not to be in
accordance with Rule 12b-1.
Section 8. Indemnification. The Trust agrees to indemnify,
defend and hold the Distributor, its directors, officers 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 directors, officers 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
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material fact contained in the Registration Statement or arising out of or based
upon any alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein 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 Trust for use in the Registration Statement; provided,
however, that this indemnity agreement shall not inure to the benefit of such
Distributor, director, officer or controlling person unless a court of competent
jurisdiction shall determine in a final decision on the merits that the person
to be indemnified was not liable 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 ("disabling conduct"), or, in
the absence of such a decision, a reasonable determination, based upon a review
of the facts, that the indemnified person was not liable by reason of disabling
conduct, by (a) a vote of a majority of a quorum of trustees who are neither
"interested persons" of the Trust as defined in Section 2(a)(19) of the 1940 Act
nor parties to the proceeding or (b) an independent legal counsel in a written
opinion. The Trust's agreement to indemnify the Distributor, its directors,
officers and any controlling person as aforesaid is expressly conditioned upon
the Trust being promptly notified of any action brought against the Distributor,
its directors, officers or any controlling person, and such notification is to
be given by letter or telegram addressed to the Trust at its principal business
office. The Trust agrees to promptly notify the Distributor of the commencement
of
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any litigation or proceedings against it or any of its trustees or officers in
connection with the issue and sale of Shares.
The Distributor agrees to indemnify, defend and hold the
Trust, its trustees, officers and any person who controls the Trust, 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 Trust, its
trustees, 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 Trust, its trustees, 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 Trust for use in the Registration Statement
or Prospectus or shall arise out of or be based upon any alleged omission to
state a material fact in connection with such information required to be stated
in the Registration Statement or Prospectus or necessary to make such
information not misleading. The Distributor's agreement to indemnify the Trust,
its trustees, officers and any such controlling person as aforesaid is expressly
conditioned upon the Distributor's being promptly notified of any action brought
against the Trust, its trustees, officers or any such controlling person, such
notification being given to the Distributor at its principal business office.
Section 9. Compliance with Securities Laws. The Trust
represents that it is registered as an open-end, non-diversified management
investment company under the 1940 Act,
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and agrees that it will comply with all of the provisions of the 1940 Act and of
the rules and regulations thereunder. The Fund and the Distributor each agree to
comply with all of the applicable terms and provisions of the 1940 Act, the 1933
Act and, subject to the provisions of Section 4(d) hereof, all applicable state
securities ("Blue Sky") laws. The Distributor agrees to comply with all of the
applicable terms and provisions of the Securities Exchange Act of 1934.
Section 10. Duration and Termination of this Agreement. This
Agreement shall become effective as of the date first above written. This
Agreement shall continue in effect until February 28, 2000 and shall continue
from year to year thereafter only so long as such continuance is specifically
approved at least annually by (i) the Board of Trustees of the Trust, or by the
vote of a majority of the outstanding voting securities of the Funds, cast in
person or by proxy, and (ii) a majority of those trustees who are not parties to
this Agreement or interested persons of any such party and who have no direct or
indirect financial interest in this Agreement or in any agreement related
thereto, cast in person at a meeting called for the purpose of voting upon such
approval.
This Agreement may be terminated at any time without the
payment of any penalty, by the Board of Trustees of the Trust, by vote of a
majority of the outstanding voting securities of the Funds or by the Distributor
on not more than sixty (60) days' nor less than thirty (30) days' written notice
to the other party. This Agreement shall automatically terminate in the event of
its assignment, as defined in the 1940 Act.
Section 11. Amendments of this Agreement. This Agreement may
be amended by the parties only if such amendment is specifically approved by (i)
the Board of Trustees of
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the Trust or by vote of a majority of the outstanding voting securities of the
Funds, and (ii) a majority of those trustees of the Trust who are not parties to
this Agreement or interested persons of any such party and who have no direct or
indirect financial interest in this Agreement, cast in person at a meeting
called for the purpose of voting on such approval. However, this Agreement may
not be amended to increase any fee payable hereunder by any existing Fund or
Class of Shares without a vote of shareholders of such Class of Shares or Fund.
Section 12. 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 1345 Avenue of the
Americas, New York, N.Y. 10105, Attention: Fund Administration Department or (2)
to the Fund at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, X.X. 00000, Attention:
Secretary.
Section 13. Entire Agreement. Except as provided in the Class
C Share Distribution Agreement and the Services Agreement, this Agreement
contains the entire agreement between the parties hereto and supersedes all
prior agreements, understandings and arrangements with respect to the subject
matter hereof. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder shall not be
thereby affected.
Section 14. Governing Law. This Agreement shall be governed by
and construed in accordance with the applicable federal securities laws and the
laws of the State of New York. This Agreement is the entire contract between the
parties relating to the subject
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matter hereof and supersedes all prior agreements between the parties relating
to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
FIRST EAGLE TRUST XXXXXXX AND X. XXXXXXXXXXXX, INC.
By:______________________________ By:________________________________
By:______________________________ By:________________________________
EXHIBIT A
FIRST EAGLE TRUST
DISTRIBUTION AND SERVICES AGREEMENT
The following Series of the Trust are referred to as the "Funds" in the
Distribution Agreement:
First Eagle Fund of America
First Eagle International Fund
Each of the above listed Funds offers the following classes of Shares as
described in the Trust's Registration Statement:
Class Y Shares
Class C Shares
Dated as of the 27th day of February, 1998.
FIRST EAGLE TRUST XXXXXXX AND S. BLEICHROEDER, INC.
By:______________________________ By:________________________________
By:______________________________ By:________________________________
EXHIBIT B
FIRST EAGLE TRUST
DISTRIBUTION AND SERVICES AGREEMENT
The following Series of the Trust are referred to as the "Funds" in the
Distribution Agreement:
First Eagle Fund of America
First Eagle International Fund
For services rendered pursuant to this Agreement, the Trust shall pay to the
Distributor, on a monthly basis, a fee at the annual rate of 0.25% of the
average daily net assets of Class Y and Class C of the Funds.
For services pursuant to the Trust's Rule 12b-1 plan and agreement, the Trust
shall pay to the Distributor, on a monthly basis, a fee at the annual rate of
0.75% of the average daily net assets of Class C Shares of the Funds.
Dated as of the 27th day of February, 1998.
FIRST EAGLE TRUST XXXXXXX AND X. XXXXXXXXXXXX, INC.
By:______________________________ By:________________________________
By:______________________________ By:________________________________
