Exhibit (e)(1) under form N-1A
Exhibit 1 under 601/Reg. S-K
DISTRIBUTOR'S AGREEMENT
This Agreement is made this 16th day of September, 2002, by
and among Edgewood Services, Inc. ("Edgewood"), a New York
corporation having its principal office and place of business at
Federated Investors Tower, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000, BBH Trust and BBH Fund, Inc. (each an
"Investment Company"), a Massachusetts business trust and Maryland
corporation, respectively, each having its principal office and
place of business at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000.
In consideration of the mutual covenants hereinafter
contained, it is hereby agreed by and between the parties hereto
as follows:
Each Investment Company hereby appoints Edgewood as its
agent to sell and distribute shares of the Investment
Company which may be offered in one or more portfolios
(the "Funds") consisting of one or more classes (the
"Classes") of shares (the "Shares"), as described and
set forth on one or more exhibits to this Agreement, at
the current offering price thereof as described and set
forth in the current Prospectuses of the Investment
Company. Edgewood hereby accepts such appointment and
agrees to provide such other services for each
Investment Company, if any, and accept such
compensation from the Investment Company, if any, as
set forth in the applicable exhibits to this Agreement.
The sale of any Shares may be suspended without prior notice
whenever in the judgment of an Investment Company it is
in its best interest to do so.
Neither Edgewood nor any other person is authorized by any
Investment Company to give any information or to make
any representation relative to any Shares other than
those contained in the Registration Statement,
Prospectuses, or Statements of Additional Information
("SAIs") filed with the Securities and Exchange
Commission ("SEC") on behalf of said Investment
Company, as the same may be amended from time to time,
or in any supplemental information to said Prospectuses
or SAIs approved by the Investment Company. Edgewood
agrees that any other information or representations
other than those specified above which it or any dealer
or other person who purchases Shares through Edgewood
may make in connection with the offer or sale of
Shares, shall be made only upon the prior approval on
the part of any Investment Company, and that any such
information and/or representations that are not
preapproved by the relevant Investment Company shall be
made entirely without liability on the part of such
Investment Company. No person or dealer, other than
Edgewood, is authorized to act as agent for any
Investment Company for the purposes of this Agreement.
Edgewood agrees that in offering or selling Shares as
agent of each Investment Company, it will, in all
respects, duly conform to all applicable state and
federal laws and the rules and regulations of the
National Association of Securities Dealers, Inc.,
including its Conduct Rules. Edgewood will submit to
the relevant Investment Company copies of all sales
literature before using the same and will not use such
sales literature unless approved by the Investment
Company.
This Agreement is effective with respect to each Fund and
each Class, as applicable, as of the date of execution
of the applicable exhibit and shall continue in effect
with respect to each Fund or Class presently set forth
on an exhibit and any subsequent Funds or Classes added
pursuant to an exhibit during the initial term of this
Agreement for two years from the date set forth above,
and thereafter for successive periods of one year if
such continuance is approved at least annually by the
Directors/Trustees of each Investment Company including
a majority of the members of the Board of
Directors/Trustees of said Investment Company who are
not "interested persons" (as that term is defined by
the Investment Company Act of 1940 ("1940 Act")) of the
Investment Company and have no direct or indirect
financial interest in the operation of any Distribution
Plan relating to the Investment Company or in any
related documents to such Plan ("Independent
Directors/Trustees") cast in person at a meeting called
for that purpose. If a Fund or Class is added after
the first approval by the Directors/Trustees as
described above, this Agreement will be effective as to
that Fund or Class upon execution of the applicable
exhibit and will continue in effect until the next
approval of this Agreement by the Directors/Trustees
and thereafter for successive periods of one year,
subject to approval as described above.
This Agreement may be terminated with regard to a particular
Fund or Class at any time, without the payment of any
penalty, by the vote of a majority of the Independent
Directors/Trustees or by a majority of the outstanding
voting securities of the particular Fund or Class on
not more than ninety (90) days' written notice to any
other party to this Agreement. This Agreement may be
terminated with regard to a particular Fund or Class by
Edgewood on ninety (90) days' written notice to each
Investment Company.
This Agreement may not be assigned by Edgewood and shall
automatically terminate in the event of an assignment
by Edgewood as defined in the 1940 Act, provided,
however, that Edgewood may employ such other person,
persons, corporation or corporations as it shall
determine in order to assist it in carrying out its
duties under this Agreement.
Subject to the provisions of Section 10 herein, Edgewood
shall not be liable to any Investment Company for
anything done or omitted by it, except acts or
omissions involving willful misfeasance, bad faith,
negligence, or reckless disregard of the duties imposed
by this Agreement. Edgewood's total liability to the
Investment Company under this Agreement during any
twelve-month period shall be limited to actual or
direct damages up to$500,000.00.
This Agreement may be amended at any time by mutual
agreement in writing of all the parties hereto,
provided that such amendment is approved by the
Directors/Trustees of each Investment Company,
including a majority of the Independent
Directors/Trustees of each Investment Company cast in
person at a meeting called for that purpose.
This Agreement shall be construed in accordance with and
governed by the laws of the State of New York.
10. (a) Subject to the conditions set forth below, each
Investment Company agrees to indemnify and hold
harmless Edgewood and each person, if any, who
controls Edgewood within the meaning of Section 15
of the Securities Act of 1933 ("1933 Act") and
Section 20 of the Securities and Exchange Act of
1934 ("1934 Act") against any and all loss,
liability, claim, damage and reasonable expense
whatsoever (including but not limited to any and
all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any
litigation, commenced or threatened, or any claim
whatsoever) arising out of or based upon (1) any
untrue statement or alleged untrue statement of a
material fact contained in the Registration
Statement, Prospectuses, SAIs or sales literature
filed with the SEC or the NASD, as the case may
be, on behalf of said Investment Company (as they
may be amended or supplemented from time to time),
or the omission or alleged omission there from of
a material fact required to be stated therein or
necessary to make the statements therein not
misleading, unless such statement or omission was
made in reliance upon and in conformity with
written information furnished to said Investment
Company about Edgewood by or on behalf of Edgewood
expressly for use in the Registration Statement,
Prospectuses, SAIs or sales literature or any
amendment or supplement thereto; or (2) the
Investment Company's failure to qualify its Shares
for sale in any state or jurisdiction of the
United States.
If any action is brought against Edgewood or any
controlling person thereof with respect to which
indemnity may be sought against an Investment
Company pursuant to the foregoing paragraph,
Edgewood shall promptly notify the Investment
Company in writing of the institution of such
action and the Investment Company shall assume the
defense of such action, including the employment
of counsel selected by the Investment Company and
payment of reasonable expenses. The failure to
give notice as required by this Section 10 in a
timely fashion shall not result in Edgewood's
waiver of any right to indemnification hereunder
except to the extent the Investment Company is
prejudiced thereby and then only to the extent of
such prejudice. Edgewood or any such controlling
person thereof shall have the right to employ
separate counsel in any such case, but the fees
and expenses of such counsel shall be at the
expense of Edgewood or such controlling person
unless the employment of such counsel shall have
been authorized in writing by the Investment
Company in connection with the defense of such
action or the Investment Company shall not have
employed counsel to have charge of the defense of
such action, in any of which events such fees and
expenses shall be borne by the Investment
Company. Despite anything to the contrary in this
paragraph, no Investment Company shall be liable
for any settlement of any such claim of action
effected without its prior written consent. Each
Investment Company agrees promptly to notify
Edgewood of the commencement of any litigation or
proceedings against said Investment Company or any
of its officers or Directors or controlling
persons in connection with the issue and sale of
Shares or in connection with the Registration
Statement, any Prospectuses and SAIs, or any
amendment or supplement thereto.
(b) Subject to the conditions set forth below, Edgewood agrees
to indemnify and hold harmless each Investment
Company, each of its Directors/Trustees, each of
its officers who have signed the Registration
Statement and each other person, if any, who
controls said Investment Company within the meaning
of Section 15 of the 1933 Act and Section 20 of the
1934 Act, against any and all loss, liability,
claim, damage and expense whatsoever (including but
not limited to any and all expenses whatsoever
reasonably incurred in investigating, preparing or
defending against any litigation, commenced or
threatened, or any claim whatsoever) arising out of
or based upon any untrue statement or alleged
untrue statement of a material fact contained in
the Registration Statement, Prospectuses or SAIs
filed with the SEC on behalf of said Investment
Company (as they may be amended or supplemented
from time to time), or the omission or alleged
omission therefrom of a material fact required to
be stated therein or necessary to make the
statements therein not misleading, provided that
such statement or omission was made in reliance
upon and in conformity with written information
furnished to said Investment Company about Edgewood
by or on behalf of Edgewood expressly for use in
the Registration Statement, Prospectuses or SAIs,
or any amendment or supplement thereto.
If any action is brought against an Investment
Company, any controlling person thereof, or any
other person so indemnified, with respect to which
indemnity may be sought against Edgewood pursuant
to the foregoing paragraph, the Investment Company
shall promptly notify Edgewood in writing of the
institution of such action and Edgewood shall
assume the defense of such action, including the
employment of counsel selected by Edgewood and
payment of reasonable expenses. The failure to
give notice as required by this Section 10 in a
timely fashion shall not result in the Investment
Company's waiver of any right to indemnification
hereunder except to the extent Edgewood is
prejudiced thereby and then only to the extent of
such prejudice. Each Investment Company, any such
controlling person thereof or any other person so
indemnified, shall have the right to employ
separate counsel in any such case, but the fees
and expenses of such counsel shall be at the
expense of the Investment Company or such persons
unless the employment of such counsel shall have
been authorized in writing by Edgewood in
connection with the defense of such action or
Edgewood shall not have employed counsel to have
charge of the defense of such action, in any of
which events such fees and expenses shall be borne
by Edgewood. Despite anything to the contrary in
this paragraph, Edgewood shall not be liable for
any settlement of any such claim or for any other
action effected without its prior written
consent. Edgewood agrees promptly to notify the
relevant Investment Company of the commencement of
any litigation or proceedings against Edgewood or
any of its controlling persons in connection with
the issue and sale of Shares or in connection with
the Registration Statement, Prospectuses or SAIs.
(c) Nothing herein contained shall be deemed to protect any
person against liability to an Investment Company
or its shareholders to which such person would
otherwise be subject by reason of willful
misfeasance, bad faith or negligence in the
performance of the duties of such person or by
reason of the reckless disregard by such person of
the obligations and duties of such person under
this Agreement.
(d) Insofar as indemnification for liabilities may be permitted
pursuant to Section 17 of the 1940 Act for an
Investment Company, Directors/Trustees, officers,
Edgewood and controlling persons of each
Investment Company by the Directors/Trustees
pursuant to this Agreement, each Investment
Company is aware of the position of the Securities
and Exchange Commission as set forth in the
Investment Company Act Release No. IC-11330.
Therefore, each Investment Company undertakes that
in addition to complying with the applicable
provisions of this Agreement, in the absence of a
final decision on the merits by a court or other
body before which the proceeding was brought, that
an indemnification payment will not be made unless
in the absence of such a decision, a reasonable
determination based upon factual review has been
made (i) by a majority vote of a quorum of
non-party Independent Directors/Trustees, or (ii)
by independent legal counsel in a written opinion
that the indemnitee was not liable for an act of
willful misfeasance, bad faith, gross negligence
or reckless disregard of duties. Each Investment
Company further undertakes that advancement of
expenses incurred in the defense of a proceeding
(upon undertaking for repayment unless it is
ultimately determined that indemnification is
appropriate) against an Investment Company,
officer, Directors/Trustees, Edgewood or
controlling person of said Investment Company will
not be made absent the fulfillment of at least one
of the following conditions: (i) the indemnitee
provides security for his undertaking; (ii) said
Investment Company is insured against losses
arising by reason of any lawful advances; or (iii)
a majority of a quorum of non-party Independent
Directors/Trustees or independent legal counsel in
a written opinion makes a factual determination
that there is reason to believe the indemnitee
will be entitled to indemnification.
11. If at any time the Shares of any Fund are offered in
two or more Classes, Edgewood agrees to assist in
adopting a written plan pursuant to Rule 18f-3 under
the 1940 Act.
12. This Agreement will become binding on the parties
hereto upon the execution of the attached exhibits to
the Agreement.
13. Edgewood or its affiliate will review and file all sales
literature (advertisements, brochures and shareholder
communications) for each Investment Company in
accordance with rules and regulations of the National
Association of Securities Dealers, Inc.
14. Edgewood agrees to maintain the security and confidentiality
of nonpublic personal information ("NPI") of each
Investment Company's customers and consumers, as those
terms are defined in Xxxxxxxxxx X-X, 00 XXX Part 248.
Edgewood agrees to use and redisclose such NPI for the
limited purposes of processing and servicing
transactions, or for specified law enforcement
purposes; and to service providers or in connection
with joint marketing arrangements directed by an
Investment Company, in each instance in furtherance of
fulfilling Edgewood's obligations under this Agreement
and consistent with the exceptions provided in 17 CFR
Sections 248.14, 248.15 and 248.13, respectively.
15. (a) Each Investment Company and Edgewood hereby
acknowledge that the Investment Companies have
delegated the responsibilities under the USA
Patriot Act enumerated below to Edgewood:
(1) Screening for and prohibiting transactions with foreign
shell banks;
(2) Correspondent and Private bank screening and documentation;
(3) Suspicious activity screening and reporting;
(4) Cash and cash equivalent transaction reporting;
(5) Information sharing as provided by the USA Patriot Act;
(6) Customer identification, verification and records
maintenance of those investor clients dealing
directly with Edgewood;
(7) Contract with certain financial intermediaries selling
Shares of the Funds to perform customer
identification, verification and records
maintenance of those investor clients dealing
directly with the financial intermediary; and
(8) Assess the reputation and associated risk of establishing
relationships with financial intermediaries
through either omnibus or individually
registered accounts.
(b) Edgewood accepts such delegation and represents
and warrants that (1) it has examined the aspects
of its operations that may give rise to Bank
Secrecy Act and/or U. S. Treasury Department
regulatory requirements or that are vulnerable to
money laundering or terrorist financing activity,
(the "Suspect Activity"), (2) it has developed an
anti-money laundering program (the "Program") in
the reasonable and good faith belief that the
effective implementation of the Program will
result in compliance with applicable regulatory
requirements and the elimination of Suspect
Activity, and (3) it has implemented the Program
and will continue to (i) monitor the operation of,
(ii) assess the effectiveness of, and (iii)
modify, as appropriate or as required by
applicable requirements, the Program.
(c) Edgewood further acknowledges that, because the
Investment Companies remain responsible for
assuring compliance with anti-money laundering
regulations, Edgewood agrees to provide
information and reports to the Investment
Companies' designated Compliance Officer, as may
from time to time be requested, and, in addition,
to provide the Compliance Officer with notice of
any contact by any regulatory authority or its
contemplated response to the regulatory authority.
(d) Edgewood does hereby consent to and provide its
assurance that it will provide to any federal
examiners of the Investment Companies such
information and records relating to the Program as
may be requested and will allow those examiners to
inspect Edgewood for purposes of the Program.
Edgewood Services, Inc.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President
BBH Trust
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BBH Fund, Inc.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Exhibit A
to the
Distributor's Agreement
BBH Fund, Inc.
BBH Broad Market Fixed Income Fund
Class I Shares
Class N Shares
BBH European Equity Fund
BBH High Yield Fixed Income Fund
Class I Shares
Class N Shares
BBH Inflation-Indexed Securities Fund
Class I Shares
Class N Shares
Class A Shares
BBH International Equity Fund
Class I Shares
Class N Shares
BBH Tax-Efficient Equity Fund
Class I Shares
Class N Shares
BBH Pacific Basin Equity Fund
1. BBH Trust
BBH Money Market Fund
BBH Tax Free S/I Fixed Income Fund
BBH Tax-Exempt Money Fund
BBH U.S. Treasury Money Fund
In consideration of the mutual covenants set forth in the
Distributor's Agreement dated September 16, 2002, among BBH Fund,
Inc. and BBH Trust and Edgewood Services, Inc. with respect to
the Funds and Class of shares set forth above.
Witness the due execution hereof this 16th day of September, 2002.
Edgewood Services, Inc. BBH Fund, Inc.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title: Vice President
BBH Trust
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
