DISTRIBUTION AGREEMENT
FOR CLASS B SHARES
THIS AGREEMENT, made as of the __th day of April, 1998 by and between
GAM FUNDS, INC. a Maryland corporation (the "Fund"), and GAM SERVICES INC., a
Delaware corporation ("GAM Services").
WHEREAS, the Fund is registered as an open-end, diversified, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, in accordance with the Fund's plan pursuant to Rule 12b-1
under the 1940 Act with respect to its Class B Shares (the "Plan"), the Fund and
GAM Services desire to enter into an agreement to provide distribution Services
for the Fund's Class B Shares on the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt whereof is
hereby acknowledged, the parties hereto agree as follows:
1. APPOINTMENT. The Fund hereby appoints GAM Services as distributor of
the Class B Shares of the Fund for the period and on the terms set forth in this
Agreement. GAM Services accepts such appointment and agrees to render the
services herein set forth, for the compensation herein provided.
2. DELIVERY OF DOCUMENTS. The Fund has furnished GAM Services with true
and correct copies of each of the following:
(a) the Fund's Certificate of Incorporation and all amendments
thereto (such Certificate of Incorporation, as presently in effect and
as it shall from time to time be amended, is herein called the
"Certificate");
(b) the Fund's By-Laws and all amendments thereto (such By-Laws, as
presently in effect and as they shall from time to time be amended, are
herein called the "By-Laws");
(c) the Fund's Registration Statement on Form N-1A under the
Securities Act of 1933, as amended (the "1933 Act"), and under the 1940
Act as filed with the Securities and Exchange Commission (the "SEC")
relating to the shares of the Fund and all amendments thereto;
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(d) the Fund's most recent prospectus and statement of additional
information (such prospectus and statement of additional information,
as presently in effect and all amendments and supplements thereto, are
herein called the "Prospectus" and "SAI", respectively); and
(e) the Plan.
The Fund will furnish GAM Services from time to time with copies of all
amendments or supplements to the foregoing, if any.
3. DUTIES AS DISTRIBUTOR. GAM Services shall give the Fund the benefit
of its best judgment, efforts and facilities in rendering its services as
distributor of the Fund's Class B Shares. In carrying out its obligations
hereunder, GAM Services shall:
(a) receive orders for the purchase of the Fund's Class B Shares,
accept or reject such orders on behalf of the Fund in accordance with
the Fund's currently effective Prospectus and SAI and transmit such
orders as are so accepted to the Fund's transfer agent as promptly as
possible;
(b) receive requests for redemption from holders of the Fund's Class
B Shares and transmit such redemption requests to the Fund's transfer
agent as promptly as possible; and
(c) respond to inquiries from the Fund's Class B shareholders
concerning the status of their accounts with the Fund.
4. DISTRIBUTION OF CLASS B SHARES. GAM Services shall be exclusive
distributor of the Fund's Class B Shares. It is mutually understood and agreed
that GAM Services does not undertake to sell all or any specific portion of the
Class B Shares of the Fund. The Fund shall not sell any of its Class B Shares
through any securities dealer other than GAM Services. Notwithstanding the
provisions of the foregoing sentence:
(a) the Fund may issue its Class B Shares to any other investment
company or personal holding company, or to the shareholders thereof, in
exchange for all or a majority of the shares or assets of any such
company;
(b) the Fund may issue its Class B Shares at their net asset value
to any shareholder of the Fund purchasing such shares with dividends or
other cash distributions received from the Fund pursuant to an offer
made to all shareholders;
(c) GAM Services may enter into shareholder processing and servicing
agreements in accordance with Section 7 hereof;
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(d) GAM Services may, and when requested by the Fund shall, suspend
its efforts to effectuate sales of the Class B Shares of the Fund at
any time when in the opinion of GAM Services or of the Fund no sales
should be made because of market or other economic considerations or
abnormal circumstances of any kind;
(e) the Fund may withdraw the offering of its Class B Shares (i) at
any time with the consent of GAM Services, or (ii) without such consent
when so required by the provisions of any statute or of any order, rule
or regulation of any governmental body having jurisdiction; and
(f) the price at which the Class B Shares may be sold (the "offering
price") shall be the net asset value per Class B Share plus any
applicable sales load as determined in the manner established from time
to time by the Fund's Board of Directors and as set forth in the Fund's
then current Prospectus and SAI.
5. CONTROL BY BOARD OF DIRECTORS. Any distribution activities
undertaken by GAM Services pursuant to this Agreement, as well as any other
activities undertaken by GAM Services on behalf of the Fund pursuant thereto,
shall at all times be subject to any applicable directives of the Board of
Directors of the Fund.
6. COMPLIANCE WITH APPLICABLE REQUIREMENTS. In carrying out its
obligations under this Agreement, GAM Services shall at all times conform to:
(a) all applicable provisions of the 1940 Act and any rules and
regulations adopted thereunder;
(b) the provisions of the Registration Statement of the Fund under
the 1933 Act and the 1940 Act;
(c) the provisions of the Certificate of the Fund;
(d) the provisions of the By-Laws of the Fund;
(e) the rules and regulations of the National Association of
Securities Dealers, Inc. ("NASD") and all other self-regulatory
organizations applicable to the sale of investment company shares; and
(f) any other applicable provision of state and Federal law.
7. DEALER AND SHAREHOLDER SERVICE AGREEMENTS. GAM Services may enter
into dealer and shareholder service agreements (the "Dealer Agreements") with
any securities dealer
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("Securities Dealer") who is registered under the Securities Exchange Act of
1934 (the "1934 Act") and a member in good standing of the NASD (or who is not
required to be so registered or a member of the NASD because such Securities
Dealer does not have any customers in the United States), who may wish to
establish accounts or sub-accounts on behalf of such Securities Dealer's
customers. GAM Services may enter into shareholder processing and service
agreements ("Shareholder Service Agreements") with persons other than Securities
Dealers ("Shareholder Service Agents") who are not required to be registered
under the 1934 Act or members in good standing of the NASD, who are exempt from
registration as a broker or a dealer under the 1934 Act or who may otherwise
lawfully furnish services to Fund shareholders without registration under the
1934 Act. GAM Services will supervise the Fund's relations with Securities
Dealers and Shareholder Service Agents. GAM Services will make payments to
Securities Dealers and Shareholder Service Agents in such amounts as GAM
Services may determine from time to time in its discretion.
8. EXPENSES. The expenses connected with the Fund shall be allocable
between the Fund and GAM Services as follows:
(a) GAM Services shall furnish, at its expense and without cost to
the Fund, the services of personnel to the extent that such services
are required to carry out its obligations under this Agreement.
(b) GAM Services shall bear the fees payable to Securities Dealers
and Shareholder Service Agents as set forth in Section 7 above, except
that the Fund may pay fees to Securities Dealers and Shareholders
Service Agents in an amount not to exceed an annual rate of 0.25% of
the daily net asset value of the Class B Shares of the Fund owned by
shareholders with whom such Securities Dealer or Shareholder Service
Agent has a servicing relationship in exchange for administrative
services provided to such shareholders as described in the Prospectus
and SAI.
(c) The expenses of printing and distributing Prospectuses and SAI
(other than those Prospectuses and SAI distributed to shareholders of
the Fund) and any other promotional or sales literature used by GAM
Services or furnished by GAM Services to investors, Securities Dealers
or Shareholder Service Agents in connection with the public offering of
the Fund's Class B Shares, and other advertising or promotional
expenses incurred in connection with such public offering, shall be
paid by GAM Services.
(d) The Fund assumes and shall pay or cause to be paid all other
expenses of the Fund (other than those expressly assumed by the Fund's
investment advisors), including, without limitation: the fees of the
Fund's investment advisors; the charges and expenses of any registrar,
any custodian or depository appointed by the Fund for the safekeeping
of its cash, portfolio securities and other property, and any transfer,
dividend or accounting agent or agents appointed by the Fund; brokers'
commissions chargeable to
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the Fund in connection with portfolio securities transactions to which
the Fund is a party; all taxes, including securities issuance and
transfer taxes, and fees payable by the Fund to Federal, state or other
governmental agencies; the costs and expenses of engraving or printing
of certificates representing shares of the Fund; all costs and expenses
in connection with the registration and maintenance of registration of
the Fund and its shares with the SEC and various states and other
jurisdictions (including filing fees, legal fees and disbursements of
counsel); the costs and expenses of printing, including typesetting,
and distributing the Prospectuses and SAI of the Fund and supplements
thereto to the Fund's shareholders; all expenses of shareholders' and
directors' meetings and of preparing, printing and mailing of proxy
statements and reports to shareholders; fees and travel expenses of
directors or members of any advisory board or committee; all expenses
incident to the payment of any dividend, distribution, withdrawal or
redemption, whether in shares or in cash; charges and expenses of any
outside service used for pricing of the Fund's shares; fees and
expenses of legal counsel and of independent accountants, in connection
with any matter relating to the Fund; membership dues of industry
associations; interest payable on Fund borrowings; postage; insurance
premiums on property or personnel (including officers and directors) of
the Fund; extraordinary expenses (including, but not limited to, legal
claims and liabilities and litigation costs and any indemnification
related thereto); and all other charges and costs of the Fund's
operation unless otherwise explicitly provided herein.
9. COMPENSATION. The Fund shall pay or cause to be paid to GAM
Services: (i) any contingent deferred sales charge ("CDSC") received by the Fund
with respect to the sale of its Class B Shares in accordance with the Prospectus
and SAI, (ii) compensation at the annual rate of 0.75% of the average daily net
assets of each series of the Fund attributable to the Class B Shares (the
"Distribution Fee"), and (iii) compensation at the annual rate of 0.25% of the
average daily net assets of each series of the Fund attributable to the Class B
Shares (the "Service Fee"), which shall be calculated and accrued daily and paid
monthly or at such other intervals as the Board of Directors and GAM Services
shall mutually agree. GAM Services will be deemed to have performed all services
required to be performed in order to be entitled to receive the Distribution Fee
payable in respect of the Class B Shares of the Fund upon the settlement date of
each sale of a share of such class taken into account in determining the
Distribution Fee in respect of such class. The Fund's obligation to pay GAM
Services the Distribution Fee shall not be terminated or modified for any reason
(including a termination of this Agreement) except to the extent required by a
change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD,
or in connection with a Complete Termination of the Plan (as defined below). The
Fund will not take any action to waive or change any CDSC in respect of the
Class B Shares of the Fund, except as provided in the Fund's Prospectus or SAI,
without the consent of GAM Services or its assigns. Neither the termination of
the role of GAM Services as principal distributor of the Class B Shares of the
Fund nor the termination of this Agreement will terminate GAM Services' right to
the Distribution Fees, the Service Fees or the CDSCs. For purposes of this
Agreement, the term "Complete Termination" of the Plan means a termination of
the Plan involving the
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complete cessation of the payment of Distribution Fees in respect of all Class B
Shares of the Fund, and the termination of the distribution plans and the
complete cessation of the payment of distribution fees pursuant to every other
Distribution Plan pursuant to Rule 12b-1 in respect of the Class B Shares of the
Fund and for every future class of shares which has substantially similar
characteristics to the Class B Shares of the Fund taking into account the manner
of payment and amount of sales charge, contingent deferred sales charge or other
similar charges borne directly or indirectly by the holders of such shares.
10. NON-EXCLUSIVITY. The services of GAM Services to the Fund are not
to be deemed to be exclusive, and GAM Services and its officers and directors
shall be free to render distribution or other services to others (including
other investment companies) and to engage in other activities.
11. TERM. This Agreement shall become effective on the date hereof and
shall continue in force and effect, subject to Section 13 hereof, until the
first anniversary of the date hereof.
12. RENEWAL. Following the expiration of its initial one-year term,
this Agreement shall continue in force and effect, subject to Section 13 hereof,
provided that such continuance is specifically approved at least annually:
(a) by the Fund's Board of Directors; and
(b) by the affirmative vote of a majority of the Directors who are
not parties to this Agreement or "interested persons" (as defined by
the 0000 Xxx) of any such party and have no direct or indirect
financial interest in the operation of this Agreement or any agreement
related to this Agreement, by votes cast in person at a meeting
specifically called for the purpose of voting on such approval.
13. TERMINATION. This Agreement may be terminated at any time, without
the payment of any penalty, (i) by vote of the Fund's Board of Directors, (ii)
by vote of a majority of the members of the Board of Directors of the Fund who
are not "interested persons" of the Fund and have no direct or indirect
financial interest in the operation of this Agreement or in any agreement
related to this Agreement, (iii) with respect to any Series of the Fund, by vote
of a majority of the outstanding Class B Shares of such Series (as defined in
Section 2(a)(42) of the 1940 Act), or (iv) by GAM Services, on sixty (60) days'
written notice to the other party. The notice provided for herein may be waived
by either party. This Agreement shall automatically terminate in the event of
its "assignment" as defined in Section 2(a)(4) of the 1940 Act; provided,
however, that GAM Services may assign, sell or pledge (collectively, "Transfer")
its rights to the Distribution Fees, Service Fees and CDSCs (but not GAM
Services' obligations to the Fund under this Agreement) to raise funds to make
the expenditures related to the distribution of Class B Shares of the Fund, and
in connection therewith, upon receipt of notice of such
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Transfer, the Fund shall pay to the assignee, purchaser or pledgee (collectively
with their subsequent transferees, "Transferees"), as third party beneficiaries,
such portion of the Service Fees, Distribution Fees or CDSCs in respect of the
Class B Shares so Transferred. Notwithstanding anything to the contrary set
forth in this Agreement, to the extent GAM Services has Transferred its rights
to any portion of the Distribution Fees, Service Fees and CDSCs, the Fund's
obligation to pay such portion of the Distribution Fees, Service Fees and CDSCs
payable in respect of the Class B Shares shall be absolute and unconditional and
shall not be subject to dispute, set-offs, counterclaim or any defense
whatsoever, at law or equity, including, without limitation, any of the
foregoing based on the insolvency or bankruptcy of GAM Services (it being
understood that such provision is not a waiver of the Fund's right to pursue GAM
Services and enforce such claims against the assets of GAM Services other than
its right to the Distribution Fees, Service Fees and CDSCs in respect of the
Class B Shares of the Fund transferred in connection with such Transfer).
14. AMENDMENTS.
(a) This Agreement may be amended by the parties hereto only if such
amendment is specifically approved (i) by the Board of Directors of the
Fund and (ii) by a majority of those Directors who are not parties to
this Agreement or "interested persons" of any such party, which vote
must be cast in person at a meeting called for the purpose of voting on
such approval.
(b) In the event that this Agreement is proposed to be amended to
increase materially the amount to be spent by the Fund for
distribution, such amendment will not be effected with respect to any
Series without the approval of the holders of Class B Shares of such
Series.
15. LIABILITY OF THE DISTRIBUTOR. In the performance of its duties
hereunder, GAM Services shall be obligated to exercise care and diligence and to
act in good faith and to use its best efforts within reasonable limits to ensure
the accuracy of all services performed under this Agreement, but GAM Services
shall not be liable for any act or omission which does not constitute willful
misfeasance, bad faith or gross negligence on the part of GAM Services or
reckless disregard by GAM Services of its duties under this Agreement.
16. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold GAM Services, its
officers and directors and any person who controls GAM Services within
the meaning of Section 15 of the 1933 Act, free and harmless from and
against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands
or liabilities and any counsel fees incurred in connection therewith)
which GAM Services, its officers, directors or any such controlling
person may incur arising out of or based upon any untrue statement of a
material fact contained in the Registration Statement, Prospectus or
SAI or arising out of or based upon any alleged omission to state a
material fact required to be stated therein or necessary
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to make the statements therein not misleading, except insofar as such
claims, demands, liabilities or expenses arise out of or are based upon
any such untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information
furnished in writing by GAM Services to the Fund for use in the
Registration Statement, Prospectus or SAI; provided, however, that this
indemnity agreement, to the extent that it might require indemnity of
any person who is also an officer or director of the Fund or who
controls the Fund within the meaning of Section 15 of the 1933 Act,
shall not inure to the benefit of such officer, director or controlling
person unless a court of competent jurisdiction shall determine, or it
shall have been determined by controlling precedent, that such result
would not be against public policy as expressed in the 1933 Act; and
further provided, that in no event shall anything contained herein be
so construed as to protect GAM Services against any liability to the
Fund or to its security holders to which GAM Services would otherwise
be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations under this Agreement. In the
event that GAM Services becomes a party to any action or proceeding in
respect of which indemnification may be sought hereunder, GAM Services
shall promptly notify the Fund thereof. Following such notice, the Fund
shall be entitled to participate therein, and to the extent that it may
wish, to assume the defense thereof with counsel reasonably
satisfactory to GAM Services. After notice from the Fund to GAM
Services of an election so to assume the defense thereof, the Fund
shall not be liable to GAM Services hereunder for any legal or other
expenses subsequently incurred by GAM Services in connection with the
defense thereof other than reasonable costs of investigation.
(b) GAM Services agrees to indemnify, defend and hold the Fund, its
officers and directors and any person who controls the Fund, if any,
within the meaning of Section 15 of the 1933 Act, free and harmless
from and against any and all claims, demands, liabilities and expenses
(including the costs of investigating or defending against such claims,
demands or liabilities and any counsel fees incurred in connection
therewith) which the Fund, its directors or officers or any such
controlling person may incur, but only to the extent that such
liability or expense incurred by the Fund, its directors or officers or
such controlling person resulting from such claims or demands shall
arise out of or be based upon any alleged untrue statement of a
material fact contained in information furnished in writing by GAM
Services to the Fund for use in the Registration Statement, Prospectus
or SAI or shall arise out of or be based upon any alleged omission to
state a material fact in connection with such information required to
be stated in the Registration Statement, Prospectus or SAI or necessary
to make such information not misleading.
(c) Neither party to this Agreement shall be liable under this
Section 16 for any settlement of any action or claim effected without
its prior written consent.
17. REPORTS. GAM Services shall provide to the Board of Directors of
the Fund, and the Board of Directors shall review, at least quarterly, a written
report of the amounts expended
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pursuant to this Agreement and the purposes for which such expenditures were
made, including, without limitation, commissions, advertising, printing,
interest, carrying charges and allocated overhead expenses. GAM Services shall
also provide the Board of Directors of the Fund with such other information
regarding the implementation of this Agreement as the Board of Directors may
reasonably request from time to time.
18. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that the address of each party
for this purpose shall be 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
19. INTERPRETATION. This Agreement shall be implemented and construed
in a manner consistent with the provisions of the 1940 Act. Any question of
interpretation of any term or provision of this Agreement having a counterpart
in or otherwise derived from a term or provision of the 1940 Act shall be
resolved by reference to such term or provision of the 1940 Act and to
interpretations thereof, if any, by the United States courts or, in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the SEC issued pursuant to the 1940 Act. In addition, where the effect of a
requirement of the 1940 Act reflected in any provision of this Agreement is
revised by rule, regulation or order of the SEC, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers on the day and year first above written.
GAM FUNDS, INC.
By:
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Name:
Title:
GAM SERVICES, INC.
By:
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Name:
Title:
