EXETER FUND, INC.
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of the 11th day of May, 1999 by and between
Exeter Fund, Inc., a Maryland corporation (the "Fund"), and Xxxxxxx & Xxxxxx
Investor Services, Inc., a New York corporation (the "Broker").
R E C I T A L S
WHEREAS, the Fund is registered as an open-end, diversified, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Broker is registered as a broker dealer under the Securities
Exchange Act of 1934, as amended; and
WHEREAS, the Fund and the Broker desire to enter an agreement to provide
distribution services for the common stock shares of the Fund's Series
(collectively, the "Series Shares") listed on Schedule A hereto, on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
1. APPOINTMENT. The Fund hereby appoints the Broker as Distributor of the
Series Shares for the period and on the terms set forth in this Agreement. The
Broker accepts such appointment and agrees to render the services herein set
forth.
2. DUTIES AS DISTRIBUTOR. The Broker shall give the Fund the benefit of its
best judgment, efforts and facilities in rendering its services as Distributor.
The Broker will act as Distributor subject to the supervision of the Fund's
Board of Directors and the following understanding: (i) nothing herein contained
shall be deemed to relieve or deprive the Board of Directors of the Fund of its
responsibility for and control of the conduct of the Fund's affairs; and (ii) in
all matters relating to the performance of this Agreement, the Broker will act
in conformity with the Articles, By-laws and Prospectus and SAI of the Fund and
with the instructions and directions of the Fund's Board of
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Directors and will conform to and comply with the requirements of the 1940 Act
and all other applicable Federal or state laws and regulations. In carrying out
its obligations hereunder, the Broker shall:
(a) receive orders for the purchase of the Series Shares, accept or
reject such orders on behalf of the Fund in accordance with the Fund's
currently effective Prospectus and SAI and transmit such orders as are so
accepted to the Fund's or its transfer agent as promptly as possible;
(b) receive requests for redemption from holders of the Portfolio
Shares and transmit such redemption requests to the Fund's or its transfer
agent as promptly as possible; and
(c) respond to inquiries from the holders of the Series Shares
concerning the status of their accounts with the Fund.
3. DISTRIBUTION OF SERIES SHARES. The Broker shall be exclusive distributor
of the Series Shares. It is mutually understood and agreed that the Broker does
not undertake to sell all or any specific portion of Series Shares. The Fund
shall not sell any of its Series Shares except through the Broker.
Notwithstanding the provisions of the foregoing sentence:
(a) the Fund may issue its Series Shares at their net asset value to
any shareholder of the Fund purchasing such shares with dividends or other
cash distributions received from the Fund pursuant to an offer made to all
shareholders of the Series Shares;
(b) the Broker may, and when requested by the Fund shall, suspend its
efforts to effectuate sales of the Series Shares at any time when in the
opinion of the Broker or of the Fund no sales should be made because of
market or other economic considerations or abnormal circumstances of any
kind;
(c) the Fund may withdraw the offering of the Series Shares: (i) at
any time with the consent of the Broker, or (ii) without such consent when
so required by the provisions of any statute or of any order, rule or
regulation of any governmental body having jurisdiction; and
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(d) the price at which the Series Shares may be sold (the "offering
price") shall be the net asset value per share, which shall be determined
in the manner established from time to time by the Fund's Board of
Directors and as set forth in the Fund's then current Prospectus and SAI.
4. CONTROL BY BOARD OF DIRECTORS. Any distribution activities undertaken by
the Broker pursuant to this Agreement, as well as any other activities
undertaken by the Broker on behalf of the Fund pursuant thereto, shall at all
times be subject to any applicable directives of the Board of Directors of the
Fund.
5. COMPLIANCE WITH APPLICABLE REQUIREMENTS. In carrying out its obligations
under this Agreement, the Broker shall at all times conform to:
(a) all applicable provisions of the 1940 Act and any rules and
regulations adopted thereunder;
(b) the provisions of the Registration Statement of the Fund under the
Securities Act of 1933 and the 1940 Act;
(c) the provisions of the Articles of the Fund;
(d) the provisions of the By-laws of the Fund;
(e) the rules and regulations of the National Association of
Securities Dealers, Inc. ("NASD") and all other self-regulatory
organizations applicable to the sale of investment company shares; and
(f) any other applicable provisions of state and Federal law.
6. EXPENSES. The expenses connected with the Series shares shall be
allocable between the Fund and the Broker as follows:
(a) The Broker shall furnish, at its expense and without cost to the
Fund, the services of personnel to the extent that such services are
required to carry out its obligations under this Agreement.
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(b) The Fund assumes and shall pay or cause to be paid all other
expenses of the Fund (other than those expressly assumed by the Fund's
investment advisor and sub-advisor), including, without limitation: the
fees of the Fund's investment advisor; any custodian or depository
appointed by the Fund for the safekeeping of its cash, portfolio securities
and other property, and any transfer, divided or accounting agent or agents
appointed by the Fund; brokers' commissions chargeable to the Fund in
connection with portfolio securities transactions to which the Fund is a
party; all taxes, including securities issuance and transfer taxes, and
fees payable by the Fund to Federal, state or other governmental agencies;
the costs and expenses of engraving or printing of certificates
representing shares of the Fund; all costs and expenses in connection with
the registration and maintenance of registration of the Fund and its shares
with the SEC and various states and other jurisdictions (including filing
fees, legal fees and disbursements of counsel); the costs and expenses of
printing, including typesetting, and distributing Prospectuses and SAI of
the Fund and supplements thereto to the Fund's shareholders; all expenses
of shareholders' and directors' meetings and of preparing, printing and
mailing of proxy statements and reports to shareholders; fees and travel
expenses of directors or director members of any advisory board or
committee; all expenses incident to the payment of any dividend,
distribution, withdraw or redemption, whether in shares or in cash; charges
and expenses of any outside services used for pricing of the Fund's shares;
fees and expense of legal counsel and of independent accountants, in
connection with any matter relating to the fund; membership dues of
industry associations; interest payable on Fund borrowings; postage;
insurance premiums on property or personnel (including officers and
directors) of the Fund which insure to its benefit; extraordinary expenses
(including, but not limited to, legal claims and liabilities and litigation
costs and any indemnification related thereto); and all other charges and
costs of the Fund's operation unless otherwise explicitly provided herein.
7. DELEGATION OF RESPONSIBILITIES. The Broker may, but shall not be under
any duty to, perform services on behalf of the Fund which are not required by
this
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Agreement upon the request of the Fund's Board of Directors. Such services
will be performed on behalf of the Fund and the Broker's charge in rendering
such services may be billed monthly to the Fund. Payment or assumption by the
Broker of any Fund expense that the Broker is not required to pay or assume
under this Agreement shall not relieve the Broker of any of its obligations to
the Fund nor obligate the Broker to pay or assume any similar Fund expenses on
any subsequent occasions.
8. COMPENSATION. The Broker shall receive from the Fund:
(1) all distribution and service fees, as applicable, at the rate and
under the terms and conditions set forth in each Distribution Plan
(collectively, "Plans") adopted by the appropriate class of Series Shares,
as such Plans may be amended from time to time, and subject to any further
limitations on such fees as the Board of Directors may impose;
(2) all deferred sales charges ("DSCs"), if any, applied on
redemptions of the applicable class(es) of Series Shares on the terms and
subject to such waivers as are described in the Fund's Registration
Statement and current prospectuses, as amended from time to time, or as
otherwise required pursuant to applicable law; and
(3) all front-end sales charges, if any, on purchases of the
applicable Series Shares sold subject to such charges as described in the
Fund's Registration Statement and current prospectuses, as amended from
time to time. The Broker, or brokers, dealers and other financial
institutions and intermediaries that have entered into sub-distribution or
dealer agreements with the Distributor, may collect the gross proceeds
derived from the sale of such class(es) of Shares, remit the net asset
value thereof to the fund upon receipt of the proceeds and retain the
applicable sales charge.
The Broker may reallow any or all of the distribution or service fee, contingent
deferred sales charges and front-end sales charges which it is paid by the fund
to such brokers, dealers and other financial institutions and intermediaries as
the Broker may from time to time determine.
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9. NON-EXCLUSIVITY. The services of the Broker to the Fund are not to be
deemed to be exclusive, and the Broker shall be free to render distribution or
other services to others (including other investment companies) and to engage in
other activities. It is understood and agreed that officers or directors of the
Broker may serve as officers or directors of the Fund, and that officers or
directors of the Fund may serve as officers or directors of the Broker to the
extent permitted by law; and that the officers and directors of the Broker are
not prohibited from engaging in any other business activity or from rendering
services to any other person, or from serving as partners, officers, trustees or
directors of any other firm, trust or corporation, including other investment
companies.
10. TERM. This Agreement shall become effective at the close of business on
the date hereof and shall continue in force and effect, subject to Section 12
hereof, for two years from the date hereof.
11. RENEWAL. Following the expiration of its initial two-year term, this
Agreement shall continue in force and effect from year to year, provided that
such continuance is specifically approved at least annually:
(a)(i) by the Fund's Board of Directors or (ii) by the vote of a
majority of the outstanding voting securities of the Series Shares (as
defined in Section 2(a)(42) of the 1940 Act, and
(b) by the affirmative vote of a majority of the directors who are not
parties to this Agreement or "interested persons" (as defined by the 0000
Xxx) of any such party and have no direct or indirect financial interest in
the operation of this Agreement or any agreement related to this Agreement,
by votes cast in person at a meeting specifically called for the purpose of
voting on such approval.
Notwithstanding any provision of this paragraph to the contrary, if the holders
of any one series of the Series Shares of the Fund fail to approve this
Agreement, the Broker may continue to serve as distributor to the other Series
Shares of the Fund whose holders approved this Agreement and, in the manner and
to the extent permitted by the 1940 Act, to the series of Series Shares of the
Fund which did not approve this Agreement.
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12. TERMINATION. This Agreement may be terminated at any time, without the
payment of any penalty, by vote of the Fund's Board of Directors or by vote of a
majority of the members of the Board of Directors of the Fund who are not
"interested persons" of the Fund and have no direct or indirect financial
interest in the operation of this Agreement or in any agreement related to this
Agreement, by vote of a majority of the Series Shares of the Fund's outstanding
voting securities (as defined in Section 2(a)(42) of the 1940 Act), or by the
Broker, on sixty (60) days' written notice to the other party. The notice
provided for herein may be waived by either party. This Agreement shall
automatically terminate in the event of its assignment, the term "assignment"
having the meaning defined in Section 2(a)(4) of the 1940 Act.
13. AMENDMENTS. This Agreement may be amended by the parties hereto only if
such amendment is specifically approved (I) by the Board of Directors of the
Fund or by the vote of a majority of outstanding voting securities of the Series
Shares, and (ii) by a majority of those directors who are not parties to this
Agreement or "interested persons" of any such party, which vote must be cast in
person at a meeting called for the purpose of voting on such approval.
14. LIABILITY OF THE DISTRIBUTOR. In the performance of its duties
hereunder, the Broker shall be obligated to exercise care and diligence and to
act in good faith and to use its best efforts within reasonable limits to ensure
the accuracy of all services performed under this Agreement, but the Broker
shall not be liable for any act or omission which loss does not constitute
willful misfeasance, bad faith or gross negligence on the part of the Broker or
reckless disregard by the Broker of its duties under this Agreement.
15. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that the address of the Fund for
this purpose and that of the Broker shall be 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxx 00000.
16. QUESTIONS OF INTERPRETATION. This Agreement shall be implemented and
continued in a manner consistent with the provisions of the 1940 Act. Any
question of interpretation of any term or provision of this Agreement having a
counterpart in or
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otherwise derived from a term or provision of the 1940 Act, shall be resolved by
reference to such term or provision of the 1940 Act and to interpretations
thereof, if any, by the United States Courts or, in the absence of any
controlling decision of any such court, by rules, regulations or orders of the
SEC issued pursuant to said Act. In addition, where the effect of a requirement
of the 1940 reflected in any provision of this Agreement is revised by rule,
regulation or order of the SEC, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the day and year first
written above.
EXETER FUND, INC.
By:/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, President
XXXXXXX & XXXXXX INVESTOR SERVICES, INC.
By:/s/ B. Xxxxxx Xxxxxxx
B. Xxxxxx Xxxxxxx, President
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SCHEDULE A
NAME OF SERIES
Small Cap Series
Maximum Horizon Series
Energy Series
Technology Series
Defensive Series
Financial Services Series
International Series
Tax Managed Series
Life Sciences Series
Global Fixed Income Series
Blended Asset Series I
Blended Asset Series II
Flexible Yield Series I
Flexible Yield Series II
Flexible Yield Series III
New York Tax Exempt Series
Ohio Tax Exempt Series
Diversified Tax Exempt Series
World Opportunities Series
Socially Responsible Series
Government-Oriented Fixed Income Series
Unrestricted Fixed Income Series
Index Stock Series
Large Cap Stock Series
Small Cap Stock Series
International Stock Series
Defensive Growth Series
Growth with Reduced Volatility Series
Long-Term Growth Series
Maximum-Term Growth Series
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