THE GLENMEDE PORTFOLIOS
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 10th day of September, 1997, by and between
The Glenmede Portfolios, a Massachusetts business trust, with its principal
office and place of business at Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the
"Company"), and ICC Distributors, Inc., a Delaware corporation with its
principal office and place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx
00000 (the "Distributor").
WHEREAS, the Company is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company,
may issue its shares of beneficial interest (the "Shares") in separate series
and classes and continuously offers for sale its Shares to the public; and
WHEREAS, the Distributor is registered under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), as a broker-dealer and is engaged in
the business of selling shares of registered investment companies either
directly to purchasers or through other securities dealers;
WHEREAS, the Company offers Shares in one or more series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Company and made subject to this Agreement in accordance with
Section 16, being herein referred to as a "Fund," and collectively as the
"Funds") and the Company offers shares of one or more classes of each Fund as
listed in Appendix A hereto (each such class together with all other classes
subsequently established by the Company in a Fund being herein referred to as a
"Class," and collectively as the "Classes");
WHEREAS, the Company desires that the Distributor offer the Shares of
each Fund and Class thereof to the public and the Distributor is willing to
provide those services on the terms and conditions set forth in this Agreement
in order to promote the growth of the Funds and facilitate the distribution of
the Shares;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Company and the Distributor hereby agree as
follows:
SECTION 1. DELIVERY OF DOCUMENTS AND APPOINTMENT
(a) The Company has delivered to the Distributor properly certified or
authenticated copies of its Declaration of Trust and
Bylaws, or similar documents (collectively, as amended from time to time,
"Organic Documents"), the Company's Notification of Registration filed with the
U.S. Securities and Exchange Commission ("SEC") pursuant to Section 8(a) of the
1940 Act on Form N-8A under the 1940 Act, the Company's Registration Statement
and all amendments thereto filed with the SEC pursuant to the Securities Act of
1933, as amended (the "Securities Act"), or the 1940 Act (the "Registration
Statement") and the current Prospectus and Statement of Additional Information
of each Fund (collectively, as currently in effect and as amended or
supplemented, the "Prospectus") and shall promptly furnish the Distributor with
all amendments of or supplements to the foregoing, each properly certified or
authenticated. In addition, the Company shall furnish the Distributor with
properly certified or authenticated copies of all documents, notices and reports
filed with the SEC.
(b) The Company has delivered to the Distributor certified resolutions
of the Company's Board of Trustees (the "Board") of the resolutions of its Board
authorizing the appointment of the Distributor as distributor and approving this
Agreement.
(c) The Company hereby appoints the Distributor as the principal
underwriter and distributor of its Funds to sell the Shares of the Funds to the
public and hereby agrees during the term of this Agreement to sell Shares of its
Funds to the Distributor upon the terms and conditions herein set forth.
SECTION 2. EXCLUSIVE NATURE OF DUTIES
The Distributor shall be the exclusive representative of the Company to
act as principal underwriter and distributor of the Company's Funds except that
the rights given under this Agreement to the Distributor shall not apply to
Shares issued in connection with the merger, consolidation or reorganization of
any other investment company with a Fund; a Fund's acquisition by purchase or
otherwise of all or substantially all of the assets or stock of any other
investment company; or the reinvestment in Shares by a Fund's shareholders of
dividends or other distributions or any other offering by the Company of
securities to its shareholders.
SECTION 3. PURCHASE OF SHARES; OFFERING OF SHARES
(a) The Distributor shall act as the Company's agent, to offer, and to
solicit offers to subscribe to, unsold Shares of the Funds as shall then be
effectively registered under the Securities Act. The Distributor will promptly
forward all orders and subscriptions for Shares of the Company to the Company.
The price that the Distributor shall offer Shares shall be the net asset value,
determined as set forth in Section 3(c) hereof, used in determining the public
offering price on which the orders are based. The Company reserves the right to
sell Shares of its
-2-
Funds directly to investors through subscriptions received by the Company, but
no such direct sales shall affect the sales charges due to the Distributor
hereunder.
(b) The public offering price of the Shares of a Fund, i.e., the price
per Share at which the Distributor or selected dealers or selected agents (each
as defined in Section 11 hereof) may sell Shares to the public or to those
persons eligible to invest in Shares as described in the applicable Prospectus,
shall be the net asset value determined in accordance with the then currently
effective Prospectus of the Fund or Class thereof under the Securities Act,
relating to such Shares, plus, in the case of Shares for which an initial sales
charge is assessed, an initial charge equal to a specified percentage or
percentages of the public offering price of the Shares as set forth in the
current Prospectus relating to the Shares. In the case of Shares for which an
initial sales charge may be assessed, Shares may be sold to certain classes of
persons at reduced sales charges or without any sales charge as from time to
time set forth in the current Prospectus relating to the Shares. The Company
will advise the Distributor of the net asset value per Share at each time as the
net asset value per Share shall have been determined by the Company.
(c) The net asset value per Shares of each Fund or Class thereof shall
be determined by the Company, or an agent of the Company, as of such time and on
such days as set forth in the applicable Prospectus in accordance with the
method set forth in the Prospectus and guidelines established by the Board.
(d) The Company reserves the right to suspend the offering of Shares of
any or all of its Funds or of any class thereof at any time in the absolute
discretion of the Board, and upon notice of such suspension the Distributor
shall cease to offer Shares of the Funds or Classes thereof specified in the
notice.
(e) All subscriptions for Shares obtained by the Distributor as agent
shall be directed to the Company for acceptance and shall not be binding until
accepted by the Company. Any subscription may be rejected by the Company in its
sole discretion. The Company (or its agent) will confirm subscriptions upon
their receipt, will make appropriate book entries and, upon receipt by the
Company (or its agent) of payment thereof, will issue such Shares in
certificated or uncertificated form pursuant to the instructions of the
Distributor. The Distributor agrees to cause such payment and such instructions
to be delivered promptly to the Company (or its agent).
-3-
SECTION 4. REDEMPTION OF SHARES
(a) Any of the outstanding Shares of a Fund or Class thereof may be
tendered for redemption at any time, and the Company agrees to redeem or
repurchase the Shares so tendered, as set forth in the Company's Organic
Documents and the Prospectus relating to the Shares. The price to be paid to
redeem the Shares of a Fund shall be equal to the net asset value calculated in
accordance with the provisions of Section 3(b) hereof less, in the case of
Shares for which a deferred sales charge is assessed, a deferred sales charge
equal to a specified percentage or percentages of the net asset value of those
Shares as from time to time set forth in the Prospectus relating to those Shares
or their cost, whichever is less. Shares of a Fund or Class thereof for which a
deferred sales charge may be assessed and that have been outstanding for a
specified period of time may be redeemed without payment of a deferred sales
charge as from time to time set forth in the Prospectus relating to those
Shares.
(b) The Company or its designated agent shall pay (i) the total amount
of the redemption price consisting of the redemption price less any applicable
deferred sales charge to the redeeming shareholder or its agent and (ii) except
as may be otherwise required by the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. (the "NASD") and any interpretations
thereof, any applicable deferred sales charges to the Distributor in accordance
with the Distributor's instructions on or before the third business day
subsequent to the Company or its agent having received the notice of redemption
in proper form.
(c) The Company may suspend redemption privileges or postpone the date
of payment (i) during any period that the New York Stock Exchange (the
"Exchange") is closed, or trading on the Exchange is restricted as determined by
the SEC, (ii) during any period when an emergency exists as defined by the rules
of the SEC as a result of which it is not reasonably practicable for a Fund to
dispose of securities owned by it, or fairly to determine the value of its
assets, and (iii) for such other periods as the SEC may permit.
SECTION 5. DUTIES AND REPRESENTATIONS OF THE DISTRIBUTOR
(a) The Distributor shall use reasonable efforts to sell Shares of the
Funds upon the terms and conditions contained herein and in the then current
Prospectus. The Distributor shall devote reasonable time and effort to effect
sales of Shares but shall not be obligated to sell any specific number of
Shares. The services of the Distributor to the Company hereunder are not to be
deemed exclusive, and nothing herein contained shall prevent the Distributor
from entering into like arrangements with
-4-
other investment companies so long as the performance of its obligations
hereunder is not impaired thereby.
(b) In selling Shares of the Funds, the Distributor shall comply with
the requirements of all federal and state laws relating to the sale of the
Shares. None of the Distributor, any selected dealer, any selected agent or any
other person is authorized by the Company to give any information or to make any
representations other than as is contained in a Fund's Prospectus or any
advertising materials or sales literature specifically approved in writing by
the Company.
(c) The Distributor shall adopt and follow procedures for the
confirmation of sales to investors and selected dealers or selected agents, the
collection of amounts payable by investors and selected dealers or selected
agents on such sales, and the cancellation of unsettled transactions, as may be
necessary to comply with the requirements of the NASD and any other applicable
self-regulatory organization.
(d) The Distributor will perform its duties hereunder under the
supervision of and in accordance with the directives of the Board. The
Distributor will perform its duties hereunder in accordance with the Company's
Organic Documents and Prospectuses and with the instructions and directions of
the Boards and will conform to and comply with the requirements of the 1940 Act,
the Securities Act and other applicable laws.
(e) The Distributor shall provide the Board with a written report of
the amounts expended in connection with this Agreement as requested by the
applicable Board.
(f) The Distributor represents and warrants to the Company that:
(i) It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware and it is duly
qualified to carry on its business in the State of Maine;
(ii) It is empowered under applicable laws and by its Articles of
Incorporation to enter into and perform this Agreement;
(iii) All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement;
(iv) It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement;
-5-
(v) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Distributor,
enforceable against the Distributor in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the rights and
remedies of creditors and secured parties;
(vi) It is registered under the 1934 Act with the SEC as a
broker-dealer, it is a member in good standing of the NASD, it
will abide by the rules and regulations of the NASD, and it will
notify the Company if its membership in the NASD is terminated or
suspended; and
(vii) The performance by the Distributor of its obligations hereunder
does not and will not contravene any provision of its Articles of
Incorporation or any applicable laws.
(g) Notwithstanding anything in this Agreement, including the
Appendices, to the contrary, the Distributor makes no warranty or representation
as to the number of selected dealers or selected agents with which it has
entered into agreements in accordance with Section 11 hereof, as to the
availability of any Shares to be sold through any selected dealer, selected
agent or other intermediary or as to any other matter not specifically set forth
herein.
(h) The Distributor agrees to obtain and maintain at all times an
insurance policy sufficient in coverage and amount to cover any obligations and
amounts owing to the Company relating to or arising in connection with any bad
faith, willful misfeasance or gross negligence in the performance of the
Distributor's duties or obligations under this Agreement or by reason of the
Distributor's reckless disregard of its duties and obligations under this
Agreement.
SECTION 6. DUTIES AND REPRESENTATIONS OF THE COMPANY
(a) The Company shall furnish to the Distributor copies of all
financial statements and other documents to be delivered to shareholders or
investors and shall furnish the Distributor copies of all other financial
statements, documents and other papers or information which the Distributor may
reasonably request for use in connection with the distribution of Shares. The
Company shall make available to the Distributor the number of copies of the
Prospectuses of the Fund's of the Company as the Distributor shall reasonably
request.
(b) The Company shall take, from time to time, subject to the approval
of its Board and any required approval of the shareholders of the Company, all
action necessary to fix the number of authorized Shares (if such number is not
limited) and
-6-
to register the Shares under the Securities Act, to the end that there will be
available for sale the number of Shares as reasonably may be expected to be sold
pursuant to this Agreement.
(c) The Company shall execute any and all documents, furnish to the
Distributor any and all information and otherwise take all actions that may be
reasonably necessary and cooperate with the Distributor and all other parties in
taking any action as may be reasonably necessary to register or qualify the
Company's Shares for sale under the securities laws of the various states of the
United States and other jurisdictions ("States"). Any registration or
qualification may be withheld, terminated or withdrawn by the Company at any
time in its discretion. The Distributor shall furnish such information and other
material relating to its affairs and activities as may be required by the
Company in connection with such registration or qualification.
(d) The Company represents and warrants to the Distributor that:
(i) It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(ii) It is empowered under applicable laws and by its Organic
Documents to enter into and perform this Agreement;
(iii) All proceedings required by the Organic Documents have been
taken to authorize it to enter into and perform its duties under
this Agreement;
(iv) It is registered as an open-end management investment company
with the SEC under the 1940 Act;
(v) All Shares, when issued in accordance with the Organic Documents
and the relevant prospectus, shall be validly issued, fully paid
and non-assessable;
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of
creditors and secured parties;
(vii) The performance by the Company of its obligations hereunder does
not and will not contravene any provision of its Organic
Documents;
-7-
(viii) The Company's Registration Statement is currently effective and,
unless the Company gives the Distributor notice to the
contrary, will remain effective with respect to all Shares of
the Company's Funds and Classes thereof being offered for sale;
(ix) It will use its best efforts to ensure that its Registration
Statement and Prospectuses have been or will be, as the case may
be, carefully prepared in conformity with the requirements of
the Securities Act and the rules and regulations thereunder;
(x) It will use its best efforts to ensure that (A) its Registration
Statement and Prospectuses contain or will contain all material
statements required to be stated therein in accordance with the
Securities Act and the rules and regulations thereunder, (B) all
statements of fact contained or to be contained in the
Registration Statement or Prospectuses are or will be true and
correct in all material respects at the time indicated or on the
effective date as the case may be and (C) neither the
Registration Statement nor any 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;
(xi) It will from time to time file such amendment or amendments to
its Registration Statement and Prospectuses as, in the light of
then-current and then-prospective developments, shall, in the
opinion of its counsel, be necessary in order to have the
Registration Statement and Prospectuses 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 ("Required Amendments");
(xii) It shall not file any amendment to its Registration Statement or
Prospectuses without giving the Distributor reasonable advance
notice thereof (which shall be at least three Fund business
days); provided, however, that nothing contained in this
Agreement shall in any way limit the Company's right to file at
any time such amendments to its Registration Statement or
Prospectuses, of whatever character, as the Company may deem
advisable, such right being in all respects absolute and
unconditional; and
(xiii) It will use its best efforts to ensure that (A) any amendment to
its Registration Statement or Prospectuses hereafter filed will,
when it becomes effective, contain all material statements
required to be stated therein in accordance with the 1940 Act
and the rules and regulations
-8-
thereunder, (B) all statements of fact contained in the
Registration Statement or Prospectuses will be true and correct
in all material respects at the time indicated or on the
effective date as the case may be and (C) 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 the Shares.
SECTION 7. STANDARD OF CARE
(a) The Distributor shall use its best judgment and efforts in
rendering services to the Company under this Agreement but shall be under no
duty to take any action except as specifically set forth herein or as may be
specifically agreed to by the Distributor in writing. The Distributor shall not
be liable to the Company or any of the Company's shareholders for any error of
judgment or mistake of law, for any loss arising out of any investment, or for
any action or inaction of the Distributor in the absence of bad faith, willful
misfeasance or gross negligence in the performance of the Distributor's duties
or obligations under this Agreement or by reason of the Distributor's reckless
disregard of its duties and obligations under this Agreement.
(b) Subject to Section 7(a), the Distributor shall not be liable to the
Company for any action taken or failure to act in good faith reliance upon:
(i) the advice of the Company or of counsel, who may be counsel to
the Company or counsel to the Distributor;
(ii) any oral instruction which the Distributor receives and which it
reasonably believes in good faith was transmitted by the person
or persons authorized by the Board, to give such oral
instruction (the Distributor shall have no duty or obligation to
make any inquiry or effort of certification of such oral
instruction);
(iii) any written instruction or certified copy of any resolution of
the Board, and the Distributor may rely upon the genuineness of
any such document or copy thereof reasonably believed in good
faith by the Distributor to have been validly executed; or
(iv) any signature, instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report,
notice, consent, order, or other document reasonably believed in
good faith by the Distributor to be genuine and to have been
signed or presented by the Company or other proper party or
parties;
-9-
and the Distributor shall not be under any duty or obligation to
inquire into the validity or invalidity or authority or lack
thereof of any statement, oral or written instruction,
resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice,
consent, order, or any other document or instrument which the
Distributor reasonably believes in good faith to be genuine.
(c) Subject to Section 7(a), the Distributor shall not be responsible
or liable for any failure or delay in performance of its obligations under this
Agreement arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control including, without limitation, acts of civil or
military authority, national emergencies, labor difficulties, fire, mechanical
breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or
failure of the mails, transportation, communication or power supply. In
addition, subject to Section 7(a), to the extent the Distributor's obligations
hereunder are to oversee or monitor the activities of third parties, the
Distributor shall not be liable for any failure or delay in the performance of
the Distributor's duties caused, directly or indirectly, by the failure or delay
of such third parties in performing their respective duties or cooperating
reasonably and in a timely manner with the Distributor.
SECTION 8. INDEMNIFICATION
(a) The Company will indemnify, defend and hold the Distributor, its
employees, agents, directors and officers and any person who controls the
Distributor within the meaning of section 15 of the Securities Act or section 20
of the 1934 Act ("Distributor Indemnities") free and harmless from and against
any and all claims, demands, actions, suits, judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of every
nature and character (including the cost of investigating or defending such
claims, demands, actions, suits or liabilities and any reasonable counsel fees
incurred in connection therewith) which any Distributor Indemnitee may incur,
under the Securities Act, or under common law or otherwise, arising out of or
based upon any alleged untrue statement of a material fact contained in the
Company's Registration Statement or Prospectuses or arising out of or based upon
any alleged omission to state a material fact required to be stated in any one
thereof or necessary to make the statements in any one thereof not misleading,
unless such statement or omission was made in reliance upon, and in conformity
with, information furnished in writing to the Company in connection with the
preparation of the Registration Statement or exhibits to the Registration
Statement by or on behalf of the Distributor ("Distributor Claims").
-10-
(b) The Company may assume the defense of any suit brought to enforce
any Distributor Claim and may retain counsel of good standing chosen by the
Company and approved by the Distributor, which approval shall not be withheld
unreasonably. The Company shall advise the Distributor that it will assume the
defense of the suit and retain counsel within ten (10) days of receipt of the
notice of the claim. If the Company assumes the defense of any such suit and
retains counsel, the defendants shall bear the fees and expenses of any
additional counsel that they retain. If the Company does not assume the defense
of any such suit, or if Distributor does not approve of counsel chosen by the
Company or has been advised that it may have available defenses or claims that
are not available to or conflict with those available to the Company, the
Company will reimburse any Distributor Indemnitee named as defendant in such
suit for the reasonable fees and expenses of any counsel that person retains. A
Distributor Indemnitee shall not settle or confess any claim without the prior
written consent of the Company, which consent shall not be unreasonably withheld
or delayed.
(c) The Distributor will indemnify, defend and hold the Company and its
several agents, officers and trustees and any person who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the 1934
Act (collectively, the "Company Indemnitees"), free and harmless from and
against any and all claims, demands, actions, suits, judgments, liabilities,
losses, damages, costs, charges, reasonable counsel fees and other expenses of
every nature and character (including the cost of investigating or defending
such claims, demands, actions, suits or liabilities and any reasonable counsel
fees incurred in connection therewith), but only to the extent that such claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses result from, arise out of or
are based upon:
(i) any alleged untrue statement of a material fact contained in the
Company's Registration Statement or Prospectus or any alleged
omission of a material fact required to be stated or necessary
to make the statements therein not misleading, if such statement
or omission was made in reliance upon, and in conformity with,
information furnished to the Company in writing in connection
with the preparation of the Registration Statement or Prospectus
by or on behalf of the Distributor; or
(ii) any act of, or omission by, Distributor, its sales
representatives or its agents that does not conform to the
standard of care set forth in Section 7 of this Agreement
(collectively, "Company Claims").
-11-
(d) The Distributor may assume the defense of any suit brought to
enforce any Company Claim and may retain counsel of good standing chosen by the
Distributor and approved by the Company, which approval shall not be withheld
unreasonably. The Distributor shall advise the Company that it will assume the
defense of the suit and retain counsel within ten (10) days of receipt of the
notice of the claim. If the Distributor assumes the defense of any such suit and
retains counsel, the defendants shall bear the fees and expenses of any
additional counsel, that they retain. If the Distributor does not assume the
defense of any such suit, or if Company does not approve of counsel chosen by
the Distributor or has been advised that it may have available defenses or
claims that are not available to or conflict with those available to the
Distributor, the Distributor will reimburse any Company Indemnitee named as
defendant in such suit for the reasonable fees and expenses of any counsel that
person retains. The Company Indemnitee shall not settle or confess any claim
without the prior written consent of the Distributor, which consent shall not be
unreasonably withheld or delayed.
(e) The Company's and the Distributor's obligations to provide
indemnification under this Section is conditioned upon the Company or the
Distributor receiving notice of any action brought against a Distributor
Indemnitee or Company Indemnitee, respectively, by the person against whom such
action is brought within twenty (20) days after the summons or other first legal
process is served. Such notice shall refer to the person or persons against whom
the action is brought. The failure to provide such notice shall not relieve the
party entitled to such notice of any liability that it may have to any
Distributor Indemnitee or Company Indemnitee except to the extent that the
ability of the party entitled to such notice to defend such action has been
materially adversely affected by the failure to provide notice.
(f) The provisions of this Section and the parties' representations and
warranties in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Distributor
Indemnitee or Company Indemnitee and shall survive the sale and redemption of
any Shares made pursuant to subscriptions obtained by the Distributor. The
indemnification provisions of this Section will inure exclusively to the benefit
of each person that may be a Distributor Indemnitee or Company Indemnitee at any
time and their respective successors and assigns (it being intended that such
persons be deemed to be third party beneficiaries under this Agreement).
(g) The Distributor agrees promptly to notify the Company of the
commencement of any litigation or proceeding of which it becomes aware arising
out of or in any way connected with the issuance or sale of Shares. The Company
agrees promptly to
-12-
notify the Distributor of the commencement of any litigation or proceeding of
which it becomes aware arising out of or in any way connected with the issuance
or sale of its Shares.
(h) Nothing contained herein shall require the Company to take any
action contrary to any provision of its Organic Documents or any applicable
statute or regulation or shall require the Distributor to take any action
contrary to any provision of its Articles of Incorporation or Bylaws or any
applicable statute or regulation; provided, however, that neither the Company
nor the Distributor may amend their Organic Documents or Articles of
Incorporation and Bylaws, respectively, in any manner that would result in a
violation of a representation or warranty made in this Agreement, except if
required by any applicable statute or regulation.
(i) Nothing contained in this section shall be construed to protect the
Distributor against any liability to the Company or the security holders of the
Company to which the Distributor would otherwise be subject by reason of its
failure to satisfy the standard of care set forth in Section 7 of this
Agreement.
SECTION 9. NOTIFICATION TO THE DISTRIBUTOR
The Company shall advise the Distributor immediately: (i) of any
request by the SEC for amendments to the Company's Registration Statement or
Prospectus or for additional information; (ii) in the event of the issuance by
the SEC of any stop order suspending the effectiveness of the Company's
Registration Statement or any Prospectus or the initiation of any proceedings
for that purpose; (iii) of the happening of any material event which makes
untrue any statement made in the Company's then current Registration Statement
or Prospectus or which requires the making of a change in either thereof in
order to make the statements therein not misleading; and (iv) of all action of
the SEC with respect to any amendments to the Company's Registration Statement
or Prospectus which may from time to time be filed with the Commission under the
1940 Act or the Securities Act.
SECTION 10. COMPENSATION; EXPENSES
(a) In consideration of the Distributor's services in connection with
the distribution of Shares of each Fund and Class thereof, the Distributor shall
receive: (i) any applicable sales charge assessed upon investors in connection
with the purchase of Shares; (ii) from the Company, any applicable contingent
deferred sales charge ("CDSC") assessed upon investors in connection with the
redemption of Shares; and (iii) from the Company, the distribution service fees
with respect to the Shares of those Classes as designated in Appendix A for
which a plan under Rule 12b-1 under the 1940 Act (a "Plan") is effective (the
-13-
"Distribution Fee"). The Distribution Fee be accrued daily by each applicable
Fund or Class thereof and shall be paid monthly as promptly as possible after
the last day of each calendar month at the rate or in the amounts set forth in
Appendix A and, as applicable, the Plan(s).
(b) The Company shall cause its transfer agent (the "Transfer Agent")
to withhold, from redemption proceeds payable to holders of Shares of the Funds
and the Classes thereof, all CDSCs properly payable by the shareholders in
accordance with the terms of the applicable Prospectus and shall cause the
Transfer Agent to pay such amounts over to the Distributor as promptly as
possible after the settlement date for each redemption of Shares.
(c) Except as specified in Sections 8 and 10(a), the Distributor shall
be entitled to no compensation by the Company or reimbursement of expenses from
the Company for the services provided by the Distributor pursuant to this
Agreement.
(d) The Company shall be responsible and assumes the obligation for
payment of all the expenses of the Company's Funds, including fees and
disbursements of its counsel and auditors, in connection with the preparation
and filing of the Registration Statement and Prospectuses (including but not
limited to the expense of setting in type the Registration Statement and
Prospectuses and printing sufficient quantities for internal compliance,
regulatory purposes and for distribution to current shareholders).
(e) The Company shall bear the cost and expenses (i) of the
registration of its Shares for sale under the Securities Act; (ii) of the
registration or qualification of its Shares for sale under the securities laws
of the various States; (iii) if necessary or advisable in connection therewith,
of qualifying the Company, or its Funds or the Classes thereof (but not the
Distributor) as an issuer or as a broker or dealer, in such States as shall be
selected by the Company and the Distributor pursuant to Section 6(c) hereof, and
(iv) payable to each State for continuing registration or qualification therein
until the Company decides to discontinue registration or qualification pursuant
to Section 6(c) hereof. The Distributor shall pay all expenses relating to the
Distributor's broker-dealer qualification.
SECTION 11. SELECTED DEALER AND SELECTED AGENT AGREEMENTS
(a) The Distributor shall have the right to enter into sub-
distribution agreements with securities dealers of its choice ("selected
dealers") and with depository institutions and other financial intermediaries of
its choice ("selected agents") for the sale of Shares and to fix therein the
portion of the sales charge, if any, that may be allocated to the selected
dealers or
-14-
selected agents; provided, that all such agreements shall be in substantially
the form of agreement as set forth in Appendix B hereto. Shares of each Fund or
Class thereof shall be resold by selected dealers or selected agents only at the
public offering price(s) set forth in the Prospectus relating to the Shares. The
Distributor shall offer and sell Shares of the Funds only to such selected
dealers as are members in good standing of the NASD.
(b) The Distributor will supervise each Fund's relationship with
selected dealers and agents and may make payments to those selected dealers and
agents in such amounts as the Distributor may determine from time to time in its
sole discretion. The amount of payments to selected dealers and agents by the
Distributor may be reviewed by the Board from time to time; provided, however,
that no payment by the Distributor to any selected dealer or agent with respect
to a Share shall exceed the amount of payments made to the Distributor hereunder
with respect to that Share.
SECTION 12. CONFIDENTIALITY
The Distributor agrees to treat all records and other information
related to the Company as proprietary information of that Company and, on behalf
of itself and its employees, to keep confidential all such information, except
that the Distributor may:
(i) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(ii) provide information typically supplied in the investment company
industry to companies that track or report price, performance or
other information regarding investment companies; and
(iii) release such other information as approved in writing by the
Company, which approval shall not be unreasonably withheld;
provided, however, that the Distributor may release any information regarding
the Company without the consent of the Company if the Distributor reasonably
believes that it may be exposed to civil or criminal legal proceedings for
failure to comply, when requested to release any information by duly constituted
authorities or when so requested by the Company.
SECTION 13. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each series
or class listed in Appendix A on the later of (i) September 10, 1997 or (ii) the
date on which the Company's
-15-
Registration Statement relating to Shares of the Fund becomes effective. Upon
effectiveness of this Agreement, it shall supersede all previous agreements
between the parties hereto covering the subject matter hereof insofar as such
Agreement may have been deemed to relate to the Funds.
(b) This Agreement shall continue in effect with respect to a Fund
until October 31, 1998 and thereafter shall continue in effect with respect to a
Fund until terminated; provided, that continuance is specifically approved at
least annually (i) by the Board or by a vote of a majority of the outstanding
voting securities of the Fund and (ii) by a vote of a majority of Trustees of
the Company (I) who are not parties to this Agreement or interested persons of
any such party (other than as Trustees of the Company) and (II) with respect to
each Class of a Fund for which there is an effective Plan, who do not have any
direct or indirect financial interest in any such Plan applicable to the Class
or in any agreements related to the Plan, cast in person at a meeting called for
the purpose of voting on such approval.
(c) This Agreement may be terminated at any time with respect to a
series or class, without the payment of any penalty, (i) by the Board or by a
vote of a majority of the outstanding voting securities of the Fund or, with
respect to each Class of a Fund for which there is an effective Plan, a majority
of Trustees of the Company who do not have any direct or indirect financial
interest in any such Plan or in any agreements related to the Plan, on 60 days'
written notice to the Distributor or (ii) by the Distributor on 60 days' written
notice to the applicable Company.
(d) This Agreement shall automatically terminate upon its assignment.
(e) The obligations of Sections 5(e), 5(f), 6(d), 7, 8 and 10 shall
survive any termination of this Agreement with respect to a Fund or Company.
SECTION 14. NOTICES
Any notice required or permitted to be given hereunder by the
Distributor to the Company or the Company to the Distributor shall be deemed
sufficiently given if personally delivered or sent by telegram, facsimile or
registered, certified or overnight mail, postage prepaid, addressed by the party
giving such notice to the other party at the last address furnished by the other
party to the party giving such notice, and unless and until changed pursuant to
the foregoing provisions hereof each such notice shall be addressed to the
Company or the Distributor, as the case may be, at their respective principal
places of business.
-16-
SECTION 15. ACTIVITIES OF THE DISTRIBUTOR
Except to the extent necessary to perform the Distributor's obligations
hereunder, nothing herein shall be deemed to limit or restrict the Distributor's
right, or the right of any of the Distributor's employees, agents, officers or
directors who may also be a trustee, officer or employee of the Company, or
affiliated persons of the Company 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 corporation, trust, firm, individual or association.
SECTION 16. ADDITIONAL FUNDS AND CLASSES
In the event that the Company establishes one or more series of Shares
or one or more classes of Shares after the effectiveness of this Agreement, such
series of Shares or classes of Shares, as the case may be, shall become Funds
and Classes under this Agreement upon approval of this Agreement by the Company
with respect to the series of Shares or class of Shares and the execution of an
amended Appendix A reflecting the applicable names and terms. The Distributor
may elect not to make any such series or classes subject to this Agreement.
SECTION 17. MISCELLANEOUS
(a) The Distributor shall not be liable to the Company and the Company
shall not be liable to the Distributor for consequential damages under any
provision of this Agreement.
(b) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by the
Distributor and the Company.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the Commonwealth of Massachusetts.
(d) This Agreement constitutes the entire agreement between the
Distributor and the Company and supersedes any prior agreement with respect to
the subject matter hereof, whether oral or written.
(e) This Agreement may be executed by the parties hereto on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict, with any law or otherwise invalid, the remaining portion
or portions shall be considered
-17-
severable and not be affected, and the rights and obligations of the parties
shall be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(h) Notwithstanding any other provision of this Agreement, the
Distributor and the Company agree that the assets and liabilities of each Fund
are separate and distinct from the assets and liabilities of each other Fund and
that no Fund shall be liable or shall be charged for any debt, obligation or
liability of any other Fund, whether arising under this Agreement or otherwise.
(i) No affiliated person, employee, agent, officer or director of the
Distributor shall be liable at law or in equity for the Distributor's
obligations under this Agreement.
(j) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof.
-18-
(k) The terms "vote of a majority of the outstanding voting
securities," "interested person," "affiliated person" and "assignment" shall
have the meanings ascribed thereto in the 1940 Act.
(l) The names "The Glenmede Portfolios" and "Board of Trustees of The
Glenmede Portfolios" refer respectively to the Company created and the Trustees,
as trustees but not individually or personally, acting from time to time under a
Master Trust Agreement dated March 3, 1992, which is hereby referred to and a
copy of which is on file at the office of the Secretary of the Commonwealth of
Massachusetts and at the principal office of the Company. The obligations of
"The Glenmede Portfolios" entered into in the name or on behalf thereof by any
of the Trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees, shareholders, or
representatives of the Company personally, but bind only the Property of the
Company, and all persons dealing with any class of shares of the Company must
look solely to the Property of the Company belonging to such class for the
enforcement of any claims against the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
THE GLENMEDE PORTFOLIOS
By: /s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx
President
ICC DISTRIBUTORS, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx
President
-19-
THE GLENMEDE PORTFOLIOS
DISTRIBUTION AGREEMENT
Appendix A
as of August 31, 1997
================================================================================
Distribution
Funds of The Glenmede Portfolios Class Fee
--------------------------------------------------------------------------------
Muni Intermediate Portfolio Single class of shares None
--------------------------------------------------------------------------------
New Jersey Muni Portfolio Single class of shares None
================================================================================
-A1-
THE GLENMEDE PORTFOLIOS
DISTRIBUTION AGREEMENT
Appendix B
[Form of Sub-Distribution Agreement]
[Date]
Ladies and Gentlemen:
ICC Distributors, Inc. ("ICC"), a Delaware corporation, serves as
Distributor (the "Distributor") of various series of The Glenmede Portfolios
(the "Fund"). The Fund is an open-end investment company registered under the
Investment Company Act of 1940, as amended (the "Investment Company Act"). The
Fund offers its shares ("Shares") to the public in accordance with the terms and
conditions contained in the Prospectus of the Fund. The term "Prospectus" as
used herein refers to each prospectus on file with the Securities and Exchange
Commission which is part of the registration statement of the Fund under the
Securities Act of 1933 (the "Securities Act"). In connection with the foregoing
you may serve as a participating dealer (and, therefore, accept orders for the
purchase or redemption of Shares, respond to shareholder inquiries and perform
other related functions) on the following terms and conditions:
1. Participating Dealer. You are hereby designated a Participating
Dealer and as such are authorized (i) to accept orders for the purchase of
Shares and to transmit to the Fund such orders and the payment made therefore,
(ii) to accept orders for the redemption of Shares and to transmit to the Fund
such orders and all additional material, including any certificates for Shares,
as may be required to complete the redemption and (iii) to assist shareholders
with the foregoing and other matters relating to their investments in the Fund,
in each case subject to the terms and conditions set forth in the Prospectus of
the Fund. You are to review each Share purchase or redemption order submitted
through you or with your assistance for completeness and accuracy. You further
agree to undertake from time to time certain shareholder servicing activities
for customers of yours who have purchased Shares and who use your facilities to
communicate with the Fund or to effect redemptions or additional purchases of
the Shares.
2. Limitation of Authority. No person is authorized to make any
representations concerning the Fund or the Shares except those contained in the
Prospectuses of the Fund and in such printed information as the Distributor may
subsequently prepare.
-C1-
No person is authorized to distribute any sales material relating to the Fund
without the prior written approval of the Distributor.
3. Compensation. As compensation for such services, you will look
solely to the Distributor, and you acknowledge that the Fund shall have no
direct responsibility for any compensation. In addition to any sales charge
payable to you by your customer pursuant to a Prospectus, the Distributor will
pay you no less often than annually a shareholder processing service fee (as we
may determine from time to time in writing) computed as a percentage of the
average daily net assets maintained with the Fund during the preceding period by
shareholders who purchase their shares through you or with your assistance,
provided that said assets are at least $25,000 for the fund family for which you
are to be compensated, and provided that in all cases your name is transmitted
with each shareholder's purchase order.
4. Prospectus and Reports. You agree to comply with the provisions
contained in the Securities Act governing the distribution of prospectuses to
persons to whom you offer Shares. You further agree to deliver, upon our
request, copies of any amended Prospectus of the relevant Fund to purchasers
whose Shares you are holding as record owner and to deliver to such persons
copies of the annual and interim reports and proxy solicitation materials of the
Fund. We agree to furnish to you as many copies of each Prospectus, annual and
interim reports and proxy solicitation materials as you may reasonably request.
5. Qualification to Act. You represent that you are a member in good
standing of National Association of Securities Dealers, Inc. (the "NASD"). Your
expulsion or suspension from the NASD will automatically terminate this
Agreement on the effective date of such expulsion or suspension. You agree that
you will not offer Shares to persons in any jurisdiction in which you may not
lawfully make such offer due to the fact that you have not registered under, or
are not exempt from, the applicable registration or licensing requirements of
such jurisdiction. You agree that in performing the services under this
Agreement, you at all times, will comply with the Conduct Rules (formerly the
Rules of Fair Practice) of the NASD, including, without limitation, the
provisions of Rule 2830 (formerly Section 26) of such Rules. You agree that you
will not combine customer orders to reach breakpoints in commission for any
purposes whatsoever unless authorized by the then current Prospectus in respect
of a particular class of Shares or by us in writing. You also agree that you
will place orders immediately upon their receipt and will not withhold any order
so as to profit therefrom. In determining the amount payable to you hereunder,
we reserve the right to exclude any sales which we reasonably determine are not
made in accordance with the terms of the relevant prospectus and provisions of
the Agreement.
-C2-
6. Blue Sky. The Fund has registered an indefinite number of Shares
under the Securities Act. The Fund intends to make appropriate notice filings in
certain states where such filing is required. We will inform you as to the
states or other jurisdictions in which we believe the Shares are eligible for
sale under the respective securities laws of such states. You agree that you
will offer Shares to your customers only in those states where such Shares are
eligible to be sold. We assume no responsibility or obligation as to your right
to sell Shares in any jurisdiction.
7. Authority of Fund. The Fund shall have full authority to take such
action as it deems advisable in respect of all matters pertaining to the
offering of its Shares, including the right in its sole discretion to not accept
any order for the purchase of Shares.
8. Record Keeping. You will (i) maintain all records required by law to
be kept by you relating to transactions in Shares and, upon request by the Fund,
promptly make such of these records available to the Fund as the Fund may
reasonably request in connection with its operations and (ii) promptly notify
the Fund if you experience any difficulty in maintaining the records described
in the foregoing clauses in an accurate and complete manner.
9. Liability. The Distributor shall be under no liability to you except
for lack of good faith and for obligations expressly assumed by it hereunder. In
carrying out your obligations, you agree to act in good faith and without
negligence. Nothing contained in this Agreement is intended to operate as a
waiver by the Distributor or you of compliance with any provisions of the
Investment Company Act, the Securities Act, the Securities Exchange Act of 1934,
as amended, or the rules and regulations promulgated by the Securities and
Exchange Commission thereunder.
10. Termination. This Agreement may be terminated by either party,
without penalty, upon ten days' notice to the other party and shall
automatically terminate in the event of its assignment, as defined in the
Investment Company Act. This Agreement may also be terminated upon notice to you
at any time for any particular Fund without penalty by the vote of a majority of
the members of the Board of Directors of the Fund who are not "interested
persons" (as such phrase is defined in the Investment Company Act) and who have
no direct or indirect financial interest in the operation of the Distribution
Agreement between the Fund and the Distributor or by the vote of a majority of
the outstanding voting securities of the Fund.
-C3-
11. Communications. All communications to us should be sent to the
address listed below. Any notice to you shall be duly given if mailed or
telegraphed to you at the address specified by you below.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us both copies of this Agreement to:
The Glenmede Portfolios
c/o ICC Distributors, Inc.
X.X. Xxx 0000
Xxxxxxxx, Xxxxx 00000
Attn: Dealer Services
----------------------------------------
ICC Distributors, Inc.
By: Xxxxxxx X. Butt
Vice President
-C4-
Confirmed and accepted:
Firm Name:_____________________________________________________________
By:____________________________________________________________________
Signature
____________________________________________________________________
Printed Name and Title
Date:__________________________________________________________________
Address:_______________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Clears Through:________________________________________________________
Phone No.:_____________________________________________________________
-C5-
