Exhibit (m.7)
DISTRIBUTION AGREEMENT
LEBENTHAL FUNDS, INC.
(the "Fund")
LEBENTHAL TAXABLE MUNICIPAL BOND FUND
(the "Portfolio")
New York, New York
June 8, 2002
Advest, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Gentlemen:
1. In consideration of the agreements on your part herein contained
and of the payment by us to you of the sales load reflected in our most recent
prospectus and the reimbursement provided for below and on the terms and
conditions set forth herein, we have agreed that you shall be, for the period of
this agreement, the distributor, as our agent, for the unsold portion of such
number of shares of the Portfolio, $.001 par value per share, as may be
effectively registered from time to time under the Securities Act of 1933, as
amended (the "1933 Act"). This agreement is being entered into pursuant to the
Distribution and Service Plan (the "Plan") adopted by us in accordance with Rule
12b-1 under the Investment Company Act of 1940, as amended (the "1940 Act").
2.(a) We hereby agree that you shall be reimbursed for distribution,
promotional and advertising costs incurred in connection with the distribution
of Portfolio shares and for costs incurred to compensate Participating
Organizations (as defined herein) for providing assistance in distributing the
Portfolio's shares in an amount not to exceed in the aggregate .10% per annum of
the Portfolio's average daily net assets.
(b) In addition, the Portfolio will pay for (i) telecommunications
expenses, including the cost of dedicated lines and CRT terminals, incurred by
you in carrying out your obligations under the Shareholder Servicing Agreement
and (ii) typesetting, printing and delivering the Portfolio's prospectus to
existing shareholders of the Portfolio and preparing and printing subscription
application forms for shareholder accounts.
3. We hereby agree that you will act as our agent, and hereby
appoint you our agent, to offer, and to solicit offers to subscribe to, the
unsold balance of shares of the Portfolio as shall then be effectively
registered under the 0000 Xxx. All subscriptions for the Portfolio's shares
obtained by you shall be directed to us for acceptance and shall not be binding
on us until accepted by us. You shall have no authority to make binding
subscriptions on our behalf. We reserve the right to sell shares of the
Portfolio through other distributors or directly to investors through
subscriptions received by us at our principal office in New York, New York. The
right given to you under this agreement shall not apply to any shares of our
common stock issued in
connection with (a) the merger or consolidation of any other investment company
with us, (b) our acquisition by purchase or otherwise of all or substantially
all of the assets or stock of any other investment company, or (c) the
reinvestment in the Portfolio's shares by our stockholders of dividends or other
distributions or any other offering by us of securities to our stockholders.
4. You will use your best efforts to obtain subscriptions to shares
of the Portfolio upon the terms and conditions contained herein and in our
Prospectus, as in effect from time to time. You will send to us promptly all
subscriptions placed with you. We shall furnish you from time to time, for use
in connection with the offering of shares of the Portfolio such other
information with respect to us and such shares as you may reasonably request. We
shall supply you with such copies of our Registration Statement and Prospectus,
as in effect from time to time, as you may request. Except as we may authorize
in writing, you are not authorized to give any information or to make any
representation that is not contained in the Registration Statement or
Prospectus, as then in effect. You may use employees, agents and other persons,
at your cost and expense, to assist you in carrying out your obligations
hereunder, but no such employee, agent or other person shall be deemed to be our
agent or have any rights under this Agreement. You may sell the Portfolio's
shares to or through qualified brokers, dealers and financial institutions under
selling and servicing agreements provided that no dealer, financial institution
or other person shall be appointed or authorized to act as our agent without our
written consent. We acknowledge that you as Distributor to the Portfolio,
pursuant to the Shareholder Servicing Agreement and this Agreement, may arrange
for organizations whose customers or clients are shareholders of the Fund
("Participating Organizations") to enter into agreements with you as the
Distributor pursuant to which the Participating Organizations will be
compensated directly by you for providing assistance in the distribution of our
shares and/or for the performance of shareholder servicing and related
administrative functions not performed by you, the manager, the administrator or
the transfer agent. Such payments will be made only pursuant to written
agreements approved in form and substance by our Board of Directors to be
entered into by the Distributor and the Participating Organizations. It is
recognized that we shall have no obligation or liability to you, them or any
Participating Organization for any such payments under the agreements with
Participating Organizations. Our obligation is solely to make payments to the
manager under the Management Contract and to the Distributor under the
Shareholder Servicing Agreement and hereunder. All sales of our shares effected
through you will be made in compliance with all applicable federal securities
laws and regulations and the Constitution, rules and regulations of the National
Association of Securities Dealers, Inc. ("NASD").
5. We reserve the right to suspend the offering of shares of the
Portfolio at any time, in the absolute discretion of our Board of Directors, and
upon notice of such suspension you shall cease to offer such shares hereunder.
6. Both of us will cooperate with each other in taking such action
as may be necessary to qualify the Portfolio's shares for sale under the
securities laws of such states as we may designate, provided, that you shall not
be required to register as a broker-dealer or file a consent to service of
process in any such state where you are not now so registered. Pursuant to the
Management Contract between us and the manager, we will pay all fees and
expenses of registering the Portfolio's shares under the 1933 Act and of
qualification of such, and to the extent necessary, our qualification under
applicable state securities laws. You will pay all expenses relating to your
broker-dealer qualification.
7. We represent to you that our Registration Statement and
Prospectus have been carefully prepared to date in conformity with the
requirements of the 1933 Act and the 1940 Act and the rules and regulations of
the Securities and Exchange Commission (the "SEC")
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thereunder. We represent and warrant to you, as of the date hereof, that our
Registration Statement and Prospectus contain all statements required to be
stated therein in accordance with the 1933 Act and the 1940 Act and the SEC's
rules and regulations thereunder; that all statements of fact 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 our Registration Statement nor our Prospectus,
when they shall become effective or be authorized for use, will 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 of our common stock. We will from time to time file such
amendment or amendments to our Registration Statement and Prospectus as, in the
light of future development, shall, in the opinion of our counsel, be necessary
in order to have our Registration Statement and Prospectus at all times contain
all material facts required to be stated therein or necessary to make any
statements therein not misleading to a purchaser of shares of our common stock.
If we shall not file such amendment or amendments within fifteen days after our
receipt of a written request from you to do so, you may, at your option,
terminate this agreement immediately. We will not file any amendment to our
Registration Statement or Prospectus without giving you reasonable notice
thereof in advance; provided, however, that nothing in this agreement shall in
any way limit our right to file such amendments to our Registration Statement or
Prospectus, of whatever character, as we may deem advisable, such right being in
all respects absolute and unconditional. We represent and warrant to you that
any amendment to our Registration Statement or Prospectus hereafter filed by us
will be carefully prepared in conformity within the requirements of the 1933 Act
and the 1940 Act and the SEC's rules and regulations thereunder and will, when
it becomes effective, contain all statements required to be stated therein in
accordance with the 1933 Act and the 1940 Act and the SEC's 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 omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser of our
shares.
8. We agree to indemnify, defend and hold you, and any person who
controls you within the meaning of Section 15 of the 1933 Act, free and harmless
from and against any and all claims, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which you or any such controlling
person may incur, under the 1933 Act or the 1940 Act, or under common law or
otherwise, arising out of or based upon any alleged untrue statement of a
material fact contained in our Registration Statement or Prospectus in effect
from time to time or arising out of or based upon any alleged omission to state
a material fact required to be stated in either of them or necessary to make the
statements in either of them not misleading; provided, however, that in no event
shall anything herein contained be so construed as to protect you against any
liability to us or our security holders to which you would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of your duties, or by reason of your reckless disregard of your
obligations and duties under this agreement. Our agreement to indemnify you and
any such controlling person is expressly conditioned upon our being notified of
any action brought against you or any such controlling person, such notification
to be given by letter or by telegram addressed to us at our principal office in
New York, New York, and sent to us by the person against whom such action is
brought within ten days after the summons or other first legal process shall
have been served. The failure so to notify us of any such action shall not
relieve us from any liability which we may have to the person against whom such
action is brought other than on account of our indemnity agreement contained in
this paragraph 8. We will be entitled to assume the defense of any suit brought
to enforce any such claim, and to retain counsel of good standing chosen by us
and approved by you. In the event we do elect to assume
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the defense of any such suit and retain counsel of good standing approved by
you, the defendant or defendants in such suit shall bear the fees and expenses
of any additional counsel retained by any of them; but in case we do not elect
to assume the defense of any such suit, or in case you, in good faith, do not
approve of counsel chosen by us, we will reimburse you or the controlling person
or persons named as defendant or defendants in such suit, for the fees and
expenses of any counsel retained by you or them. Our indemnification agreement
contained in this paragraph 8 and our representations and warranties in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of you or any controlling person and shall survive the sale
of any shares of our common stock made pursuant to subscriptions obtained by
you. This agreement of indemnity will inure exclusively to your benefit, to the
benefit of your successors and assigns, and to the benefit of any of your
controlling persons and their successors and assigns. We agree promptly to
notify you of the commencement of any litigation or proceeding against us in
connection with the issue and sale of any shares of our common stock.
9. You agree to indemnify, defend and hold us, our several officers
and directors, and any person who controls us 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 reasonable counsel fees incurred in
connection therewith) which we, our officers or directors, 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 us,
our officers or directors or such controlling person shall arise out of or be
based upon any alleged untrue statement of a material fact contained in
information furnished in writing by you to us for use in our Registration
Statement or Prospectus as in effect from time to time, 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. Your agreement
to indemnify us, our officers and directors, and any such controlling person is
expressly conditioned upon your being notified of any action brought against us,
our officers or directors or any such controlling person, such notification to
be given by letter or telegram addressed to you at your principal office in New
York, New York, and sent to you by the person against whom such action is
brought, within ten days after the summons or other first legal process shall
have been served. You shall have a right to control the defense of such action,
with counsel of your own choosing, satisfactory to us, if such action is based
solely upon such alleged misstatement or omission on your part, and in any other
event you and we, our officers or directors or such controlling person shall
each have the right to participate in the defense or preparation of the defense
of any such action. The failure so to notify you of any such action shall not
relieve you from any liability which you may have to us, to our officers or
directors, or to such controlling person other than on account of your indemnity
agreement contained in this paragraph 9.
10. We agree to advise you immediately:
(a) of any request by the SEC for amendments to our
Registration Statement or Prospectus or for additional information,
(b) of the issuance by the SEC of any stop order suspending
the effectiveness of our Registration Statement or Prospectus or the initiation
of any proceedings for that purpose,
(c) of the happening of any material event which makes untrue
any statement made in our Registration Statement or Prospectus or which requires
the making of a change in either of them in order to make the statements therein
not misleading, and
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(d) of all action of the SEC with respect to any amendments to
our Registration Statement or Prospectus.
11. This Agreement will become effective on the date hereof and will
remain in effect until July 31, 2002 and thereafter for successive twelve-month
periods (computed from each August 1), provided that such continuation is
specifically approved at least annually by vote of our Board of Directors and of
a majority of those of our directors who are not interested persons (as defined
in the 0000 Xxx) and have no direct or indirect financial interest in the
operation of the Plan or in any agreements related to the Plan, cast in person
at a meeting called for the purpose of voting on this Agreement. This Agreement
may be terminated at any time, without the payment of any penalty, by vote of a
majority of our entire Board of Directors and by a vote of a majority of our
Directors who are not interested persons (as defined in the 0000 Xxx) and who
have no direct or indirect financial interest in the operation of the Plan or in
any agreement related to the Plan, or by vote of a majority of our outstanding
voting securities, as defined in the Act, on sixty days' written notice to you,
or by you on sixty days' written notice to us.
12. This Agreement may not be transferred, assigned, sold or in any
manner hypothecated or pledged by you and this Agreement shall terminate
automatically in the event of any such transfer, assignment, sale, hypothecation
or pledge by you. The terms "transfer", "assignment" and "sale" as used in this
paragraph shall have the meanings ascribed thereto by governing law and in
applicable rules or regulations of the SEC thereunder.
13. Except to the extent necessary to perform your obligations
hereunder, nothing herein shall be deemed to limit or restrict your right, or
the right of any of your officers, directors or employees who may also be a
director, officer or employee of ours, or of a person affiliated with us, as
defined in the 1940 Act, 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 another
corporation, firm, individual or association.
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If the foregoing is in accordance with your understanding, will you
kindly so indicate by signing and returning to us the enclosed copy hereof.
Very truly yours,
LEBENTHAL FUNDS, INC.
Lebenthal Taxable Municipal Bond Fund
By:/s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Accepted:
June 8, 2002
ADVEST, INC.
By:/s/ Xxxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxxx
Title: Senior Vice President
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