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Exhibit 10.19
Mackenzie Funds Distribution Inc.
000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
IVY FUND
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
Dear Sirs:
This will confirm the agreement between the undersigned (the "Fund") and you
(the "Distributor") as follows:
1. The Fund is an open-end management investment company which currently
has six investment portfolios and which may create additional
portfolios in the future. One or more separate classes of shares of
beneficial interest in the Fund is offered to investors with respect to
each portfolio. This Agreement relates to Class A and Class B of each
of the Fund's portfolios, Ivy China Region Fund, Ivy Emerging Growth
Fund, Ivy Growth Fund, Ivy Growth with Income Fund, Ivy International
Fund (the "Equity Portfolios"), to the one class of shares of Ivy Money
Market Fund and to such other Portfolios as shall be designated from
time to time by the Board of Trustees in any supplement to the Plan
(together with the Equity Portfolios, the "Portfolios"). The Fund
engages in the business of investing and reinvesting the assets of a
Portfolio in the manner and in accordance with the investment
objectives and restrictions specified in the currently effective
Prospectuses (the "Prospectuses") relating to the Portfolios included
in the Fund's Registration Statement, as amended from time to time (the
"Registration Statement"), filed by the Fund under the Investment
Company Act of 1940, as amended, (the "1940 Act") and the Securities
Act of 1933, as amended, (the "1933 Act"). Copies of the documents
referred to in the preceding sentence have been furnished to the
Distributor. Any amendments to those documents shall be furnished to
the Distributor promptly. The Fund has adopted a separate Distribution
Plan (the "Plan") for Class A and Class B of each of the Equity
Portfolios pursuant to Rule 12b-1 under the 1940 Act.
2. As the Fund's agent, the Distributor shall be the exclusive distributor
for the unsold portion of shares of beneficial interest in Ivy Money
Market Fund and Class A and Class B shares of beneficial interest in
the Equity Portfolios (the "shares") which may from time to time be
registered under the 0000 Xxx.
3. The Fund shall sell through the Distributor, as the Fund's agent,
shares of the Portfolios to eligible investors as described in the
Prospectuses. All orders through the Distributor shall be subject to
acceptance and confirmation by the Fund. The Fund shall have the right,
at its election, to deliver either shares issued upon original issue or
treasury shares.
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4. As the Fund's agent, the Distributor may sell and distribute shares of
the Portfolios in such manner not inconsistent with the provisions
hereof and the Fund's Prospectuses as the Distributor may determine
from time to time. In this connection, the Distributor shall comply
with all laws, rules and regulations applicable to it, including,
without limiting the generality of the foregoing, all applicable rules
or regulations under the 1940 Act and of any securities association
registered under the Securities Exchange Act of 1934, as amended, (the
"1934 Act").
5. To the extent permitted by its then effective Prospectuses, the Fund
reserves the right to sell shares of the Portfolios to purchasers to
the extent that it or the transfer agent for its shares receives
purchase requests therefor. The Fund reserves the right to refuse at
any time or times to sell any of its shares for any reason deemed
adequate by it.
6. All shares offered for sale and sold by the Distributor shall be
offered for sale and sold by the Distributor to designated investors at
the price per share specified and determined as provided in the
Portfolios' Prospectuses, including any applicable reduction or
elimination of sales charges with respect to Class A shares of the
Equity Portfolios as provided in the Equity Portfolios' Prospectus (the
"offering price"). The Fund shall determine and promptly furnish to the
Distributor a statement of the offering price at least once on each day
on which the New York Stock Exchange is open for trading. Each offering
price shall become effective at the time and shall remain in effect
during the period specified in the statement. Each such statement shall
show the basis of its computation.
7. (a) The Distributor shall be entitled to deduct a commission on all
Class A shares sold equal to the difference, if any, between the
offering price and the net asset value on which such price is based. If
any such commission is received by a Portfolio, it will pay such
commission to the Distributor. Out of such commission, the Distributor
may allow to dealers such concession as the Distributor may determine
from time to time. Notwithstanding anything in this Agreement otherwise
provided, sales may be made at net asset value as provided in the
Prospectuses for the Portfolios.
(b) The Distributor shall be entitled to deduct a contingent deferred
sales charge on the redemption of certain Class A and Class B shares in
accordance with, and in the manner set forth in, the Equity Portfolios'
Prospectus. The Distributor may reallow any or all of such contingent
deferred sales charges to dealers as the Distributor may determine from
time to time. Notwithstanding anything in this Agreement otherwise
provided, the Distributor may waive the contingent deferred sales
charge as disclosed in the Equity Portfolios' Prospectus.
(c) The Fund shall pay to the Distributor distribution fees for Class A
and Class B shares of the Equity Portfolios at the rate set forth in
the Plans, as amended from time to time. The Distributor may reallow
any or all of such distribution fees to dealers as the Distributor may
determine from time to time.
8. The Fund shall furnish the Distributor from time to time, for use in
connection with the sale of shares of the Portfolios, such information
with respect to the Fund as the Distributor may reasonably request. The
Fund represents and warrants that such information, when signed by one
of its officers, shall be true and correct. The Fund also shall furnish
to the Distributor copies of its reports to its shareholders and such
additional information regarding the Fund's financial condition as the
Distributor may reasonably request from time to time.
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9. The Registration Statement and the Prospectuses have been or will be,
as the case may be, prepared in conformity with the 1933 Act, the 1940
Act and the rules and regulations of the Securities and Exchange
Commission (the "SEC"). The Fund represents and warrants to the
Distributor that the Registration Statement and the Prospectuses
contain or will contain all statements required to be stated therein in
accordance with the 1933 Act, the 1940 Act and the rules and
regulations thereunder, that all statements of fact contained or to be
contained therein are or will be true and correct at the time indicated
or the effective date, as the case may be, and that neither the
Registration Statement nor the Prospectuses, when they shall become
effective under the 1933 Act or be authorized for use, shall 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. The Fund shall from
time to time file such amendment or amendments to the Registration
Statement and the Prospectuses as, in the light of future developments,
shall, in the opinion of the Fund's counsel, be necessary in order to
have the Registration Statement and the Prospectuses at all times
contain all material facts required to be stated therein or necessary
to make the statements therein not misleading to a purchaser of shares.
The Fund represents and warrants to the Distributor that any amendment
to the Registration Statement or the Prospectuses filed hereafter by
the Fund will, when it becomes effective under the 1933 Act, contain
all statements required to be stated therein in accordance with the
1933 Act, the 1940 Act and the rules and regulations thereunder, that
all statements of fact contained therein will, when the same shall
become effective, be true and correct, and that 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 shares.
10. The Fund shall prepare and furnish to the Distributor from time to time
such number of copies of the most recent form of the Prospectuses for
the Portfolios filed with the SEC as the Distributor may reasonably
request. The Fund authorizes the Distributor to use the Prospectuses,
in the form furnished to the Distributor from time to time, in
connection with the sale of shares of the Portfolios. The Fund shall
indemnify, defend and hold harmless the Distributor, its officers and
directors and any person who controls the Distributor within the
meaning of the 1933 Act, from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or
defending such claims, demands or liabilities and any counsel fees
incurred in connection therewith) which the Distributor, its officers
and directors or any such controlling person may incur under the 1933
Act, the 1940 Act, the common law or otherwise, arising out of or based
upon any alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectuses or arising out of or based
upon any alleged omission to state a material fact required to be
stated in either or necessary to make the statements in either not
misleading. This contract shall not be construed to protect the
Distributor against any liability to the Fund or its shareholders to
which the Distributor would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and
duties under this contract. This indemnity agreement and the Fund's
representations and warranties in this contract shall remain operative
and in full force and effect regardless of any investigation made by or
on behalf of the Distributor, its officers and directors or any
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such controlling person. This indemnity agreement shall inure
exclusively to the benefit of the Distributor and its successors, the
Distributor's officers and directors and their respective estates and
any such controlling persons and their successors and estates.
11. The Distributor agrees to indemnify, defend and hold harmless the Fund,
its officers and trustees and any person who controls the Fund within
the meaning of the 1933 Act, 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 Fund, its officers or
trustees or any such controlling person, may incur under the 1933 Act,
the 1940 Act, the common law or otherwise, but only to the extent that
such liability or expenses incurred by the Fund, its officers or
trustees or such controlling person resulting from such claims or
demands shall arise out of or be based upon any untrue statement of a
material fact contained in information furnished in writing by the
Distributor to the Fund specifically for use in the Registration
Statement or the Prospectuses or shall arise out of or be based upon
any omission to state a material fact in connection with such
information required to be stated in the Registration Statement or the
Prospectuses or necessary to make such information not misleading.
12. No shares shall be sold through the Distributor or by the Fund under
this contract and no orders for the purchase of shares shall be
confirmed or accepted by the Fund if and so long as the effectiveness
of the Registration Statement shall be suspended under any of the
provisions of the 1933 Act. Nothing contained in this paragraph 11
shall in any way restrict, limit or have any application to or bearing
upon the Fund's obligation to redeem shares from any shareholder in
accordance with the provisions of its Agreement and Declaration of
Trust. The Fund will use its best efforts at all times to have shares
effectively registered under the 1933 Act.
13. The Fund agrees to advise the Distributor immediately:
(a) of any request by the SEC for amendments to the Registration
Statement or the Portfolios' Prospectuses or for additional
information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
Portfolios' Prospectuses under the 1933 Act or the initiation of any
proceedings for that purpose;
(c) of the happening of any material event which makes untrue any
statement made in the Registration Statement or the Portfolios'
Prospectuses or which requires the making of a change in either thereof
in order to make the statements therein not misleading; and
(d) of all action of the SEC with respect to any amendments to the
Registration Statement or the Portfolios' Prospectuses which may from
time to time be filed with the SEC under the 1933 Act or the 1940 Act.
14. Insofar as they concern the Fund, the Fund shall comply with all
applicable laws, rules and regulations, including without limiting the
generality of the foregoing, all rules and regulations made or adopted
pursuant to the 1933 Act, the 1940 Act or by any securities association
registered under the 1934 Act.
15. The Distributor may, if it desires and at its own cost and expense,
appoint or employ agents to assist it in carrying out its obligations
under this contract, but no such appointment or employment shall
relieve the Distributor of any of its responsibilities or obligations
to the Fund under this contract.
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16. (a) The Distributor shall from time to time employ or associate with it
such persons as it believes necessary to assist it in carrying out its
obligations under this contract. The compensation of such persons shall
be paid by the Distributor.
(b) The Fund shall execute all documents and furnish any information
which may be reasonably necessary in connection with the qualification
of shares of the Portfolios for sale in jurisdictions designated by the
Distributor.
17. The Distributor shall pay all expenses incurred in connection with its
qualification as a dealer or broker under Federal or state law. It is
understood and agreed that, so long as the Plan continues in effect,
any expenses incurred by the Distributor hereunder (as well as any
other expenses which may be permitted to be paid pursuant to the Plan)
may be paid from amounts received by it from the Fund under the Plan.
The Fund shall be responsible for all of its expenses and liabilities,
including: (i) the fees and expenses of the Fund's Trustees who are not
interested persons (as defined in the 0000 Xxx) of the Fund; (ii) the
salaries and expenses of any of the Fund's officers or employees who
are not affiliated with the Distributor; (iii) interest expenses; (iv)
taxes and governmental fees, including an original issue taxes or
transfer taxes applicable to the sale or delivery of shares or
certificates therefor; (v) brokerage commissions and other expenses
incurred in acquiring or disposing of portfolio securities; (vi) the
expenses of registering and qualifying shares for sale with the SEC and
with various state securities commissions; (vii) accounting and legal
costs; (viii) insurance premiums; (ix) fees and expenses of the Fund's
Custodian and Transfer Agent and any related services; (x) expenses of
obtaining quotations of portfolio securities and of pricing shares;
(xi) expenses of maintaining the Fund's legal existence and of
shareholders' meetings; (xii) expenses of preparation and distribution
to existing shareholders of periodic reports, proxy materials and
prospectuses; (xiii) fees and expenses of membership in industry
organizations; and (xiv) expenses of qualification of the Fund as a
foreign corporation authorized to do business in any jurisdiction if
the Distributor determines that such qualification is necessary or
desirable.
18. This contract shall continue in effect automatically for successive
annual periods, provided such continuance is specifically approved at
least annually (i) by a vote of a majority of the Trustees who are not
parties to the contract or interested persons (as defined in the 0000
Xxx) of any such party and who have no direct or indirect financial
interest in the operation of the Plan or in any related agreement (the
"Independent Trustees"), by vote cast in person at a meeting called for
the purpose of voting on such approval and (ii) either (a) by the vote
of a majority of the outstanding voting securities (as defined in the
0000 Xxx) of the Portfolios or (b) by the vote of a majority of the
entire Board of Trustees. This contract may be terminated with respect
to a Portfolio at any time, without payment of any penalty, by a vote
of a majority of the outstanding voting securities of that Portfolio
(as defined in the 0000 Xxx) or by a vote of a majority of the
Independent Trustees of the Fund on 60 days' written notice to the
Distributor or by the Distributor on 60 days' written notice to the
Fund. This contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
19. Except to the extent necessary to perform the Distributor's obligations
under this contract, nothing herein shall be deemed to limit or
restrict the right of the Distributor, or any affiliate of the
Distributor, or any employee of the Distributor, 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
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corporation, firm, individual or association.
20. This contract shall be construed in accordance with the laws of the
State of Florida, provided that nothing herein shall be construed in a
manner inconsistent with the 1940 Act.
21. The Fund's Agreement and Declaration of Trust, as amended and restated,
has been filed with the Secretary of State of The Commonwealth of
Massachusetts. The obligations of the Fund are not personally binding
upon, nor shall resort be had to the private property of any of the
Trustees, shareholders, officers, employees or agents of the Fund, but
only the Fund's property shall be bound.
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If the foregoing correctly sets forth the agreement between the Fund and the
Distributor, please so indicate by signing and returning to the Fund the
enclosed copy hereof.
Very truly yours,
IVY FUND
By: /s/ Xxxxxxx X. Xxxxxx
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President
ACCEPTED:
MACKENZIE FUNDS DISTRIBUTION INC.
By: /s/ Xxxxxxx X. Xxxxxx
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President
Date: October 23, 1993
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