Exhibit 7(m)
FORM OF
DISTRIBUTION AGREEMENT
Exhibit 7(m)
[ ] FUND
DISTRIBUTION AGREEMENT
AGREEMENT made this [ ] by and between CDC Nvest Funds Trust I, a
Massachusetts business trust (the "Trust"), and CDC IXIS Asset Management
Distributors, L.P., a Delaware limited partnership (the "Distributor").
W I T N E S S E T H:
WHEREAS, this Agreement has been approved by the Trustees of the Trust
in contemplation of the transfer by the Distributor of its rights to receive the
Class B Distribution Fee (as defined in the Class B Distribution and Service
Plan attached hereto as Exhibit A) and/or contingent deferred sales charges to a
financing party in order to raise funds to cover distribution expenditures;
WHEREAS, the Trustees of the Trust recognize the importance to the
Trust of the Distributor being able to obtain financing with which to pay
commissions on Class B shares at the time of sale;
WHEREAS, the Trustees of the Trust acknowledge that by providing
financing to the Distributor the financing party enables the Distributor to
provide valuable services to the Series (as defined below); and
WHEREAS, the Trustees of the Trust, in the context of considering the
best interests of the Series and its shareholders at the time of and in
preparation for any vote, consent or other action that the Trustees of the Trust
may from time to time take relating to the continued receipt by the Distributor
(and/or the financing party) of the Distribution Fee, intend to consider the
effect on the Distributor and any financing party of any such vote, consent or
action.
NOW, THEREFORE, in consideration of the premises and covenants
hereinafter contained, the Trust and the Distributor agree as follows:
1. Distributor. The Trust hereby appoints the Distributor as general
distributor of shares of beneficial interest ("Series shares") of the
Trust's [ ] FUND series (the "Series") during the term of this
Agreement. The Trust reserves the right, however, to refuse at any time
or times to sell any Series shares hereunder for any reason deemed
adequate by the Board of Trustees of the Trust.
2. Sale and Payment. Under this agreement, the following provisions shall
apply with respect to the sale of and payment for Series shares:
(a) The Distributor shall have the right, as principal, to
purchase Series shares from the Trust at their net asset value
and to sell such shares to the public against orders therefor
at the applicable public offering price, as defined in Section
4 hereof. The Distributor shall also have the right, as
principal, to sell shares to dealers against orders therefor
at the public offering price less a concession determined by
the Distributor.
(b) Prior to the time of delivery of any shares by the Trust
to, or on the order of, the Distributor, the Distributor shall
pay or cause to be paid to the Trust or to its order an amount
in Boston or New York clearing house funds equal to the
applicable net asset value of such shares. The Distributor
shall retain so much of any sales charge or underwriting
discount as is not allowed by it as a concession to dealers.
3. Fees. For its services as general distributor of the Class B Series
shares, the Trust shall cause the Series to pay to the Distributor (or
its designee or transferee) in addition to the sales charge, if any,
referred to in Section 4 below, the Class B Distribution Fee at the
rate and upon the terms and conditions set forth in the Class B
Distribution and Service Plan attached as Exhibit A hereto, and as
amended from time to time,
and the Distributor shall also be entitled to receive any contingent
deferred sales charges that may be payable upon redemption or
repurchase of Class B Series shares. The Class B Distribution Fee shall
be accrued daily and paid monthly to the Distributor (or, at its
direction, to its designee or transferee) as soon as practicable after
the end of the calendar month in which it accrues, but in any event
within five business days following the last day of the month. So long
as this agreement and the Class B Distribution and Service Plan have
not been terminated in accordance with their respective terms, the
Series' obligation to pay the Class B Distribution Fee to the
Distributor shall be absolute and unconditional and shall not be
subject to any dispute, offset, counterclaim or defense whatsoever (it
being understood that nothing in this sentence shall be deemed a waiver
by the Trust or the Series of its right separately to pursue any claims
it may have against the Distributor and to enforce such claims against
any assets (other than its rights to be paid the Class B Distribution
Fee and to be paid contingent deferred sales charges with respect to
Class B Series shares) of the Distributor).
4. Public Offering Price. The public offering price shall be the net
asset value of Series shares, plus any applicable sales charge, all as
set forth in the current prospectus and statement of additional
information ("prospectus") of the Trust relating to the Series shares.
In no event shall the public offering price exceed 1000/935 of such net
asset value, and in no event shall any applicable sales charge or
underwriting discount exceed 6.5% of the public offering price. The net
asset value of Series shares shall be determined in accordance with the
provisions of the agreement and declaration of trust and by-laws of the
Trust and the current prospectus of the Trust relating to the Series
shares.
5. Trust Issuance of Series Shares. The delivery of Series shares shall
be made promptly by a credit to a shareholder's open account for the
Series or by delivery of a share certificate. The Trust reserves the
right (a) to issue Series shares at any time directly to the
shareholders of the Series as a stock dividend or stock split, (b) to
issue to such shareholders shares of the Series, or rights to subscribe
to shares of the Series, as all or part of any dividend that may be
distributed to shareholders of the Series or as all or part of any
optional or alternative dividend that may be distributed to
shareholders of the Series, and (c) to sell Series shares in accordance
with the current applicable prospectus of the Trust relating to the
Series shares.
6. Redemption or Repurchase. The Distributor shall act as agent for the
Trust in connection with the redemption or repurchase of Series shares
by the Trust to the extent and upon the terms and conditions set forth
in the current applicable prospectus of the Trust relating to the
Series shares, and the Trust agrees to reimburse the Distributor, from
time to time upon demand, for any reasonable expenses incurred in
connection with such redemptions or repurchases. The Trust will remit
to the Distributor any contingent deferred sales charges imposed on
redemptions or repurchases of Series shares (other than Class B shares)
upon the terms and conditions set forth in the then current prospectus
of the Trust. The Trust will also remit to the Distributor (or its
designee or transferee), in addition to the Class B Distribution Fee,
any contingent deferred sales charges imposed on redemptions or
repurchases of Class B shares, in accordance with the Remittance
Agreement attached hereto as Exhibit B.
7. Undertaking Regarding Sales. The Distributor shall use reasonable
efforts to sell Series shares but does not agree hereby to sell any
specific number of Series shares and shall be free to act as
distributor of the shares of other investment companies. Series shares
will be sold by the Distributor only against orders therefor. The
Distributor shall not purchase Series shares from anyone except in
accordance with Sections 2 and 6 and shall not take "long" or "short"
positions in Series shares contrary to the agreement and declaration of
trust or by-laws of the Trust.
8. Compliance. The Distributor shall conform to the Conduct Rules of the
National Association of Securities Dealers, Inc. ("NASD") and the sale
of securities laws of any jurisdiction in which it sells, directly or
indirectly, any Series shares. The Distributor agrees to make timely
filings, with the Securities and Exchange Commission in Washington,
D.C. (the "SEC"), the NASD and such other regulatory authorities as may
be required, of any sales literature relating to the Series and
intended for distribution to prospective investors. The Distributor
also agrees to furnish to the Trust sufficient copies of any agreements
or plans it intends to use in connection with any sales of Series
shares in adequate time for the Trust to file and clear them with the
proper authorities before they are put in use (which the Trust agrees
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to use its best efforts to do as expeditiously as reasonably possible),
and not to use them until so filed and cleared.
9. Registration and Qualification of Series Shares. The Trust agrees to
execute such papers and to do such acts and things as shall from time
to time be reasonably requested by the Distributor for the purpose of
qualifying and maintaining qualification of the Series shares for sale
under the so-called Blue Sky Laws of any state or for maintaining the
registration of the Trust and of the Series shares under the federal
Securities Act of 1933 and the federal Investment Company Act of 1940
(the "1940 Act"), to the end that there will be available for sale from
time to time such number of Series shares as the Distributor may
reasonably be expected to sell. The Trust shall advise the Distributor
promptly of (a) any action of the SEC or any authorities of any state
or territory, of which it may be advised, affecting registration or
qualification of the Trust or the Series shares, or rights to offer
Series shares for sale, and (b) the happening of any event which makes
untrue any statement or which requires the making of any change in the
Trust's registration statement or its prospectus relating to the Series
shares in order to make the statements therein not misleading.
10. Distributor Independent Contractor. The Distributor shall be an
independent contractor and neither the Distributor nor any of its
officers or employees as such is or shall be an employee of the Trust.
The Distributor is responsible for its own conduct and the employment,
control and conduct of its agents and employees and for injury to such
agents or employees or to others through its agents or employees. The
Distributor assumes full responsibility for its agents and employees
under applicable statutes and agrees to pay all employer taxes
thereunder.
11. Expenses Paid by Distributor. While the Distributor continues to act
as agent of the Trust to obtain subscriptions for and to sell Series
shares, the Distributor shall pay the following:
(a) all expenses of printing (exclusive of typesetting) and
distributing any prospectus for use in offering Series shares for sale,
and all other copies of any such prospectus used by the Distributor,
and
(b) all other expenses of advertising and of preparing, printing and
distributing all other literature or material for use in connection
with offering Series shares for sale.
12. Interests in and of Distributor. It is understood that any of the
shareholders, trustees, officers, employees and agents of the Trust may
be a shareholder, director, officer, employee or agent of, or be
otherwise interested in, the Distributor, any affiliated person of the
Distributor, any organization in which the Distributor may have an
interest or any organization which may have an interest in the
Distributor; that the Distributor, any such affiliated person or any
such organization may have an interest in the Trust; and that the
existence of any such dual interest shall not affect the validity
hereof or of any transaction hereunder except as otherwise provided in
the agreement and declaration of trust or by-laws of the Trust, in the
limited partnership agreement of the Distributor or by specific
provision of applicable law.
13. Effective Date and Termination. This Agreement shall become effective
as of the date of its execution, and
(a) Unless otherwise terminated, this Agreement shall continue
in effect with respect to the shares of the Series so long as
such continuation is specifically approved at least annually
(i) by the Board of Trustees of the Trust or by the vote of a
majority of the votes which may be cast by shareholders of the
Series and (ii) by a vote of a majority of the Board of
Trustees of the Trust who are not interested persons of the
Distributor or the Trust, cast in person at a meeting called
for the purpose of voting on such approval.
(b) This Agreement may at any time be terminated on sixty
days' notice to the Distributor either by vote of a majority
of the Trust's Board of Trustees then in office or by the vote
of a majority of the votes which may be cast by shareholders
of the Series.
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(c) This Agreement shall automatically terminate in the event
of its assignment (excluding for this purpose any assignment
of rights to payment described in the recitals and in Section
18 of the Agreement which are hereby ratified and approved).
(d) This Agreement may be terminated by the Distributor on ninety
days' written notice to the Trust.
Termination of this Agreement pursuant to this section shall be without payment
of any penalty.
14. Definitions. For purposes of this Agreement, the following definitions
shall apply:
(a) The "vote of a majority of the votes which may be cast by
shareholders of the Series" means (1) 67% or more of the votes of
the Series present (in person or by proxy) and entitled to vote at
such meeting, if the holders of more than 50% of the outstanding
shares of the Series entitled to vote at such meeting are present;
or (2) the vote of the holders of more than 50% of the outstanding
shares of the Series entitled to vote at such meeting, whichever is
less.
(b) The terms "affiliated person," "interested person" and
"assignment" shall have their respective meanings as defined in the
1940 Act subject, however, to such exemptions as may be granted by
the SEC under the 1940 Act.
15. Amendment. This Agreement may be amended at any time by mutual consent
of the parties, provided that such consent on the part of the Series
shall be approved (i) by the Board of Trustees of the Trust or by vote
of a majority of the votes which may be cast by shareholders of the
Series and (ii) by a vote of a majority of the Board of Trustees of the
Trust who are not interested persons of the Distributor or the Trust
cast in person at a meeting called for the purpose of voting on such
approval.
16. Applicable Law and Liabilities. This Agreement shall be governed by
and construed in accordance with the laws of The Commonwealth of
Massachusetts. All sales hereunder are to be made, and title to the
Series shares shall pass, in Boston, Massachusetts.
17. Limited Recourse. The Distributor hereby acknowledges that the Trust's
obligations hereunder with respect to the shares of the Series are
binding only on the assets and property belonging to the Series.
18. Payments to Distributor's Transferees. The Distributor may transfer its
rights to payments hereunder with respect to Class B shares (but not
its obligations hereunder) in order to raise funds to cover
distribution expenditures, and any such transfer shall be effective
upon written notice from the Distributor to the Trust. In connection
with the foregoing, the Series is authorized to pay all or a part of
the Distribution Fee and/or contingent deferred sales charges in
respect of Class B shares directly to such transferee as directed by
the Distributor.
19. Liquidation etc. As long as the Class B Distribution and Service Plan
is in effect, the Series shall not change the manner in which the
Distribution Fee is computed (except as may be required by a change in
applicable law after the date hereof) or adopt a plan of liquidation
without the consent of the Distributor (or any designee or transferee
of the Distributor's rights to receive payment hereunder in respect of
Class B shares) except in circumstances where a surviving entity or
transferee of the Series' assets adopts the Class B Distribution and
Service Plan and assumes the obligations of the Series to make payments
to the Distributor (or its transferee) hereunder in respect of Class B
shares.
20. "Distributor's Shares" etc. The Trust, on behalf of the Series, agrees
that it will not pay any portion of the Class B Distribution Fee which
is calculated by reference to the "Distributor's Shares" (nor shall it
pay a Distribution Fee calculated by reference to Class B shares
("Other Class B Shares") other than the Distributor's Shares at a rate
exceeding 0.75% per annum of the net assets attributable to Other Class
B Shares) to any person other than the Distributor (or its designee or
transferee) without the written consent
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of the Distributor. "Distributor's Shares" shall mean (i) Class B
shares of the Series that were sold by the Distributor, plus (ii) Class
B shares of the Series issued in connection with the exchange, for
Class B shares of the Series, of Class B shares of another fund in the
CDC Nvest fund group that were sold by the Distributor, plus (iii)
Class B shares of the Series issued in connection with the exchange,
for Class B shares of the Series, of Class B shares of another fund in
the CDC Nvest fund group issued in respect of the automatic
reinvestment of dividends or capital gain distributions in respect of
Class B shares of such other fund that were sold by the Distributor,
plus (iv) Class B shares of the Series issued in respect of the
automatic reinvestment of dividends or capital gain distributions in
respect of Class B shares of the Series described in clauses (i), (ii)
and (iii). To the extent permitted under the 1940 Act, the terms of
this Section 20 shall survive the termination of this Agreement.
21. Limitation on Reduction of Class B Distribution Fee. The Trust, on
behalf of the Series, agrees that it will not reduce the Distribution
Fee in respect of Series' assets attributable to Class B shares below
the annual rate of 0.75% unless it has ceased (and not resumed) paying
all "service fees" (within the meaning of Section 2830(b)(9) of the
Conduct Rules of the NASD or any successor provision thereto) to the
Distributor, to any affiliate of the Distributor and to any other
person in circumstances where substantially all of the services and
functions relating to the distribution of Class B Series shares have
been delegated to, or are being performed by, the Distributor or an
affiliate of the Distributor. To the extent permitted under the 1940
Act, the terms of this Section 21 shall survive the termination of this
Agreement.
22. Privacy. In accordance with Regulation S-P, if non-public personal
information regarding either party's customers or consumers is
disclosed to the other party in connection with this Agreement, the
party receiving such information will not disclose or use that
information other than as necessary to carry out the purposes of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
[ ]TRUST [ ],
on behalf of its [ ] series
By: _______________________________________
Name:
Title:
CDC IXIS ASSET MANAGEMENT DISTRIBUTORS, L.P.
By: CDC IXIS Asset Management Distribution Corp., its general partner
By: _______________________________________
Name:
Title:
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A copy of the Agreement and Declaration of Trust establishing CDC Nvest
Funds Trust I (the "Trust") is on file with the Secretary of The Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed with
respect to the Trust's [ ] Fund series (the "Series") on behalf of the Trust by
officers of the Trust as officers and not individually and that the obligations
of or arising out of this Agreement are not binding upon any of the trustees,
officers or shareholders of the Trust individually but are binding only upon the
assets and property of the Series.
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EXHIBIT A
[ ] FUND
CLASS B DISTRIBUTION AND SERVICE PLAN
This Plan (the "Plan") entered into on [ ], [ ] constitutes the
Distribution and Service Plan relating to the Class B shares of [ ] Fund (the
"Series"), a series of [ ] Trust [ ], a Massachusetts business trust (the
"Trust").
Section 1. Service Fee. The Trust, on behalf of the Series, will pay to
CDC IXIS Asset Management Distributors, L.P. ("CID"), a Delaware limited
partnership which acts as the Principal Distributor of the Series' shares, or
such other entity as shall from time to time act as the Principal Distributor of
the Series' shares (the "Distributor"), a fee (the "Service Fee") at an annual
rate not to exceed 0.25% of the Series' average daily net assets attributable to
the Class B shares. Subject to such limit and subject to the provisions of
Section 7 hereof, the Service Fee shall be as approved from time to time by (a)
the Trustees of the Trust and (b) the Independent Trustees of the Trust;
provided, however, that no Service Fee or other fee that is a "service fee" as
defined in Section 26 of the Rules of Fair Practice of the National Association
of Securities Dealers, Inc. (or any successor provision thereto) as in effect
from time to time (the "NASD Rule") shall be paid, with respect to Class B
shares of the Series, to CID (or to any affiliate of CID, or to any other person
in circumstances where substantially all of the services and functions relating
to the distribution of Class B shares of the Series have been delegated to, or
are being performed by, CID or an affiliate of CID), under this Plan or
otherwise, if the Distribution Fee is terminated or is reduced below the rate
set forth in Section 2. The Service Fee shall be accrued daily and paid monthly
or at such other intervals as the Trustees shall determine. The Distributor may
pay all or any portion of the Service Fee to securities dealers or other
organizations (including, but not limited to, any affiliate of the Distributor)
as service fees pursuant to agreements with such organizations for providing
personal services to investors in Class B shares of the Series and/or the
maintenance of shareholder accounts, and may retain all or any portion of the
Service Fee as compensation for providing personal services to investors in
Class B shares of the Series and/or the maintenance of shareholder accounts. All
payments under this Section 1 are intended to qualify as "service fees" as
defined in the NASD Rule.
Section 2. Distribution Fee. In addition to the Service Fee, the Trust,
on behalf of the Series, will pay to the Distributor a fee (the "Distribution
Fee") at an annual rate of 0.75% (unless reduced as contemplated by and
permitted pursuant to the next sentence hereof) of the Series' average daily net
assets attributable to the Class B shares in consideration of the services
rendered in connection with the sale of such shares by the Distributor. The
Trust will not terminate the Distribution Fee in respect of Series assets
attributable to Class B shares, or pay such fee at an annual rate of less than
0.75% of the Series' average daily net assets attributable to the Class B
shares, unless it has ceased, and not resumed, paying the Service Fee (or any
other fee that constitutes a "service fee" as defined in the NASD Rule) to CID
(or to any affiliate of CID, or to any other person in circumstances where
substantially all of the services and functions relating to the distribution of
Class B shares of the Series have been delegated to, or are being performed by,
CID or an affiliate of CID). Subject to such restriction and subject to the
provisions of Section 7 hereof, the Distribution Fee shall be as approved from
time to time by (a) the Trustees of the Trust and (b) the Independent Trustees
of the Trust. The Distribution Fee shall be accrued daily and paid monthly or at
such other intervals as the Trustees shall determine.
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The obligation of the Series to pay the Distribution Fee shall
terminate upon the termination of this Plan or the relevant distribution
agreement between the Distributor and the Trust relating to the Series, in
accordance with the terms hereof or thereof, but until any such termination
shall not be subject to any dispute, offset, counterclaim or defense whatsoever
(it being understood that nothing in this sentence shall be deemed a waiver by
the Trust or the Series of its right separately to pursue any claims it may have
against the Distributor and enforce such claims against any assets of the
Distributor (other than its right to be paid the Distribution Fee and to be paid
contingent deferred sales charges)).
The right of CID to receive the Distribution Fee (but not the relevant
distribution agreement or CID's obligations thereunder) may be transferred by
CID in order to raise funds which may be useful or necessary to perform its
duties as principal underwriter, and any such transfer shall be effective upon
written notice from CID to the Trust. In connection with the foregoing, the
Series is authorized to pay all or part of the Distribution Fee directly to such
transferee as directed by CID.
The Distributor may pay all or any portion of the Distribution Fee to
securities dealers or other organizations (including, but not limited to, any
affiliate of the Distributor) as commissions, asset-based sales charges or other
compensation with respect to the sale of Class B shares of the Series, and may
retain all or any portion of the Distribution Fee as compensation for the
Distributor's services as principal underwriter of the Class B shares of the
Series. All payments under this Section 2 are intended to qualify as
"asset-based sales charges" as defined in the NASD Rule.
Section 3. This Plan shall continue in effect for a period of more than
one year after [ ], [ ] only so long as such continuance is specifically
approved at least annually by votes of the majority (or whatever other
percentage may, from time to time, be required by Section 12(b) of the
Investment Company Act of 1940 (the "Act") or the rules and regulations
thereunder) of both (a) the Trustees of the Trust, and (b) the Independent
Trustees of the Trust, cast in person at a meeting called for the purpose of
voting on this Plan or such agreement.
Section 4. Any person authorized to direct the disposition of monies
paid or payable by the Trust pursuant to this Plan or any related agreement
shall provide to the Trustees of the Trust, and the Trustees shall review, at
least quarterly, a written report of the amounts so expended and the purposes
for which such expenditures were made.
Section 5. This Plan may be terminated at any time by vote of a
majority of the Independent Trustees, or by vote of a majority of the
outstanding Class B shares of the Series.
Section 6. All agreements with any person relating to implementation of
this Plan shall be in writing, and any agreement related to this Plan shall
provide:
A. That such agreement may be terminated at any time, without
payment of any penalty, by vote of a majority of the
Independent Trustees or by vote of a majority of the
outstanding Class B shares of the Series, on not more than 60
days' written notice to any other party to the agreement; and
B. That such agreement shall terminate automatically in the
event of its assignment.
Section 7. This Plan may not be amended to increase materially the
amount of expenses permitted pursuant to Sections 1 or 2 hereof without approval
by a vote of at least a majority of the outstanding Class B shares of the
Series, and all material amendments of this Plan shall be approved in the manner
provided for continuation of this Plan in Section 3.
Section 8. As used in this Plan, (a) the term "Independent Trustees"
shall mean those Trustees of the Trust who are not interested persons of the
Trust, and have no direct or indirect financial interest in the operation of
this Plan or any agreements related to it, and (b) the terms "assignment" and
"interested person" shall have the respective meanings specified in the Act and
the rules and regulations thereunder, and the term "majority of the
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outstanding
Class B shares of the Series" shall mean the lesser of the 67% or the 50% voting
requirements specified in clauses (A) and (B), respectively, of the third
sentence of Section 2(a)(42) of the Act, all subject to such exemptions as may
be granted by the Securities and Exchange Commission.
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