WESTON PORTFOLIOS
NEW CENTURY CAPITAL PORTFOLIO
DISTRIBUTION AGREEMENT
THIS AGREEMENT entered into the __ day of February, 1990, by and
between WESTON PORTFOLIOS, a Massachusetts business trust with an office located
at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Trust"), for the New
Century Capital Portfolio (the "Fund") and WESTON SECURITIES CORP., 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 Bylaws 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 which the New York Stock Exchange is open for
a full business day and in accordance with the method set out in the Bylaws 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, 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 Bylaws 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 Bylaws 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 arid 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 February __, 1990 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 Investment Company Act of
1940 Rule 12b-1 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, as
amended) 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 i940, as amended, 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 Fund 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 shareholders 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
12b-1 of the Investment Company Act of 1940, as amended.
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 as now in
effect.
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 Weston Portfolios means
the Trustees from time to time serving {as Trustees but not personally) under
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, WESTON PORTFOLIOS, for the New Century Capital
Portfolio, and WESTON SECURITIES CORP. have caused this Agreement to be signed
by their duly authorized officers and their corporate seals to be hereunto duly
affixed all on the day and year above written.
Attest: WESTON PORTFOLIOS, INC.
/s/ XXXX XXXXXXXXXX /S/ XXXXXXX X. XXXXXX
______________________________ __________________________________
Xxxx Xxxxxxxxxx, Secretary Xxxxxxx X. Xxxxxx, President
Attest: WESTON SECURITIES CORP. (Distributor)
/s/ XXXX XXXXXXXXXX /S/ XXXXXXX X. XXXXXX
______________________________ __________________________________
Xxxx Xxxxxxxxxx, Secretary Xxxxxxx X. Xxxxxx, President
