FORM OF DISTRIBUTION AGREEMENT
NEW CENTURY PORTFOLIOS
New Century Alternative Investment Portfolio
THIS AGREEMENT entered into the ____ day of May, 2002, by and between
NEW CENTURY PORTFOLIOS, a Massachusetts business trust with an office located at
00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Trust"), on behalf of
the New Century Alternative Investment Portfolio (the "Fund") and WESTON
SECURITIES CORPORATION, a Massachusetts corporation with its principal office
located at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Distributor").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements of the parties
hereto, the parties intending to be bound, mutually covenant and agree with each
other as follows:
1. The Trust, on behalf of the Fund, hereby appoints the Distributor as
agent of the Fund to effect the sale and public distribution of shares of
beneficial interest of the Fund. This appointment is made by the Trust for the
Fund and accepted by the Distributor upon the understanding that the
distribution of shares of the Fund to the public be effected by the Distributor
or through various securities dealers, either individuals or organizations, but
that it shall be done in such manner that the Fund shall be under no
responsibility or liability to any person whatsoever on account of the acts and
statements of any such individual or organization. The Distributor shall have
the sole right to select the security dealers to whom shares will be offered by
it and, subject to express provisions of this Agreement, applicable securities
laws, the Trust's Declaration of Trust and the By-laws and the then current
Prospectus of the Fund, to determine the terms and prices in any contract for
the sale of shares to any dealer made by it as such agent for the Fund.
2. The Distributor shall be the exclusive agent for the Fund for the sale
of its shares and the Fund agrees that it will not sell any shares to any person
except to fill orders for the shares received though the Distributor; provided,
however, that the foregoing exclusive right shall not apply:
(a) to shares issued or sold in connection with the merger or
consolidation of any other investment company with the Fund or the
acquisition by purchase or otherwise of all or substantially all of the
assets of any investment company or substantially all of the outstanding
shares of any such company by the Fund;
(b) to shares which may be offered by the Fund to its shareholders for
reinvestment of cash distributed from capital gains or net investment
income of the Fund; or
(c) to shares which may be issued to shareholders of other funds who
exercise any exchange privilege set forth in the Fund's Prospectus.
3. The Distributor shall have the right to sell the shares of the Fund to
dealers, as needed (making reasonable allowance for clerical errors and errors
of transmission), but not more than the shares needed to fill unconditional
orders for shares placed with the Distributor by dealers. In every case the
Distributor shall charge and the Fund shall receive the net asset value for the
shares sold, determined as provided in Paragraph 4 hereof. The Distributor shall
notify the Fund at the close of each business day (normally 5:00 p.m., New York
City time), of the number of shares sold during each day.
4. The net asset value of shares of the Fund shall be determined by the
Fund or the Fund's custodian, or such officer or officers or other persons as
the Board of Trustees of the Trust may designate. The determination shall be
made once a day on which the New York Stock Exchange is open for a full business
day and in accordance with the method set out in the By-laws of the Trust and
the current Prospectus of the Fund.
5. The Distributor agrees that it will not sell any shares of the Fund to
any officer, director, Trustee or partner of either the Distributor or of the
Trust or any firm or corporation which may be employed by the Fund or by the
Distributor except for investment purposes only and where the purchaser agrees
not to resell the securities to anyone except the Fund. The Distributor further
agrees that it will promptly advise the Secretary of the Trust of all sales of
shares of the Fund to, or purchase of shares of the Fund from any such person.
6. The Distributor agrees that it will not for its own account purchase any
shares of the Fund except for investment purposes and that it will not for its
own account sell any such shares excepting only those shares which it may own at
the time of executing this Agreement and any shares resulting from the
reinvestment of dividends paid on those shares, and the Distributor will not
sell other shares except by redemption of such shares by the Fund.
7. (a) On behalf of the Fund, the Trust appoints and designates the
Distributor as agent of the Fund and the Distributor accepts such appointment as
such agent, to repurchase shares of the Fund in accordance with the provisions
of the Declaration of Trust and By-laws of the Trust.
(b) In connection with such redemptions or repurchases, the Trust
authorizes and designates the Distributor to take any action, to make any
adjustments in net asset value, and to make any arrangements for the
payment of the redemption or repurchase price authorized or permitted to be
taken or made in accordance with the Investment Company Act of 1940 and as
set forth in the By-laws and then current Prospectus of the Fund.
(c) The authority of the Distributor under this Paragraph 7 may, with
the consent of the Trust, be re-delegated in whole or in part to another
person or firm.
(d) The authority granted in this Paragraph 7 may be suspended by the
Trust at any time or from time to time pursuant to the provisions of its
Declaration of Trust until further notice to the Distributor. The President
or any Vice President of the Trust shall have the power granted by said
provisions. After any such suspension the authority granted to the
Distributor by this Paragraph 7 shall be reinstated only by a written
instrument executed on behalf of the Fund by the Trust's President or any
Vice President.
8. The Trust agrees that it will cooperate with the Distributor to prepare,
execute and file applications for registration and qualification of the Fund's
shares for sale under the laws of the United States and the provisions and
regulations of the U.S. Securities and Exchange Commission and under the
Securities Acts of such States and in such amounts as the Trust may determine,
and shall pay registration fees in connection therewith. The Distributor shall
bear all expenses incident to the sale of shares of the Fund, including without
limitation, the cost of any sales material or literature, the cost of copies of
the Prospectus used as sales material (except those being sent to existing
shareholders) and the cost of any reports or proxy material prepared for the
Fund's shareholders to the extent that such material is used in connection with
the sale of shares of the Fund except to the extent that the Fund is obligated
to bear such costs under a distribution plan adopted by the Fund.
9. For its services under this Agreement, the Distributor shall be entitled
to receive the maximum amount of the payment called for under the Fund's
Distribution Plan (the "Plan") adopted pursuant to the Investment Company Act of
1940 Rule 12b-1 (the "Rule"). The Distributor may make payments to others from
such amounts in accordance with the Plan or any agreement in effect under such
Plan. The Distributor agrees to comply with the Rule and the Plan in connection
with receipt and disbursement of funds under the Plan.
10. Notwithstanding anything contained herein to the contrary, shares of
the Fund may be offered for sale at a price other than their current net asset
value or regular public offering price, if such reduction or elimination is
authorized by an order of the Securities and Exchange Commission, or the
Investment Company Act of 1940 or the rules and regulations promulgated
thereunder provide for such variation. Furthermore, such shares may be offered
and sold directly by the Fund rather than by the Distributor as otherwise
provided in this Agreement.
11. This Agreement shall become effective May____, 2002 and shall continue
in effect for a period of more than one year from its effective date only as
long as such continuance is approved, at least annually, by the Board of
Trustees of the Trust, including a majority of those Trustees who are not
"interested persons" of any party to this Agreement voting in person at a
meeting called for the purpose of voting on such approval. If payments hereunder
are made pursuant to provisions of a plan adopted by the Fund pursuant to the
Rule, then renewals hereof shall also be made in accordance with the
requirements of such Rule. This Agreement may be terminated by either party
hereto upon thirty (30) days' written notice to the other party. This Agreement
shall automatically terminate in the event of its assignment by the Distributor
(as the term "assignment" is defined by the Investment Company Act of 1940)
unless the United States Securities and Exchange Commission has issued an order
exempting the Fund and the Distributor from the provisions of the Investment
Company Act of 1940, which would otherwise have effected the termination of this
Agreement.
12. No amendment to this Agreement shall be executed or become effective
unless its terms have been approved:
(a) by a majority of the Trustees of the Trust or by the vote of a
majority of the outstanding voting securities of the Fund, and
(b) by a majority of those Trustees who are not interested persons of
the Trust or of any party to this Agreement.
13. The Trust, on behalf of the Fund, and the Distributor hereby each agree
that all literature and publicity issued by either of them referring directly or
indirectly to the Fund or to the Distributor shall be submitted to and receive
the approval of the Trust and the Distributor before the same may be used by
either party.
14. (a) The Distributor agrees to use its best efforts in effecting the
sale and public distribution of the shares of the Fund through dealers and to
perform its duties in redeeming and repurchasing the shares of the Fund, but
nothing contained in this Agreement shall make the Distributor or any of its
officers and directors or stockholders liable for any loss sustained by the Fund
or any of the Trust's officers, Trustees or shareholders, or by any other person
on account of any act done or omitted to be done by the Distributor under this
Agreement provided that nothing herein contained shall protect the Distributor
against any liability to the Fund or to any of 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 as Distributor or by
reason of its reckless disregard of its obligations or duties as Distributor
under this Agreement. Nothing in this Agreement shall protect the Distributor
from any liabilities which it may have under the Securities Act of 1933 or the
Investment Company Act of 1940.
(b) The Distributor may, from time to time, enter into agreements with
security dealers and other qualified entities selected by it and may make
assistance payments to such dealers in such amounts as it deems appropriate,
provided that such payments are permitted by the then current distribution plan
adopted by the Fund in accordance with Rule.
15. As used in this Agreement, the terms "interested persons,"
"assignment," and "majority of the outstanding voting securities" shall have the
respective meanings specified in the Investment Company Act of 1940.
16. Limitation of Liability. The Declaration of Trust dated February 1,
1990, as amended from time to time, establishing the Trust, which is hereby
referred to and a copy of which is on file with the Secretary of the
Commonwealth of Massachusetts, provides that the name New Century Portfolios
(formerly, Weston Portfolios), means the Trustees from time to time serving (as
Trustees but not personally) under the Declaration of Trust. It is expressly
acknowledged and agreed that the obligations of the Trust hereunder shall not be
binding upon any of the shareholders, Trustees, officers, employees or agents of
the Trust, personally, but shall bind only the trust property of the Trust, as
provided in its Declaration of Trust. The execution and delivery of this
Agreement have been authorized by the Trustees of the Trust and signed by the
President of the Trust, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Trust as provided in
its Declaration of Trust.
IN WITNESS WHEREOF, NEW CENTURY PORTFOLIOS, on behalf of the New Century
Alternative Investment Portfolio, and WESTON SECURITIES CORPORATION have caused
this Agreement to be signed by their duly authorized officers and their seals to
be hereunto duly affixed all on the day and year above written.
NEW CENTURY PORTFOLIOS
By:
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Name: Xxxxx X. Xxxxxxx
Title: President, New Century Portfolios
WESTON SECURITIES CORPORATION
By:
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Name:
Title: President, Weston Securities Corp.
