Exhibit (e)(1)
FORM OF
AMENDED AND RESTATED UNDERWRITING AGREEMENT
ING EQUITY TRUST
THIS AGREEMENT, made as of this 23rd day of September 2002, as amended
on May 30, 2008, between ING Equity Trust, a Massachusetts business trust
(the "Trust"), on behalf of each series of the Trust set forth on Schedule
A hereto (each a "Fund," collectively, the "Funds"), as such schedule may
be amended from time to time to add additional series, and ING Funds
Distributor, LLC (formerly, ING Funds Distributor, Inc.), a Delaware
corporation (the "Underwriter").
1. The Funds hereby appoint the Underwriter as their exclusive agent to
promote the sale and to arrange for the sale of shares of beneficial
interest of each class of each Fund, including both unissued shares and
treasury shares, through broker-dealers or otherwise, in all parts of the
United States and elsewhere throughout the world. The Funds agree to sell
and deliver their shares of each class, upon the terms hereinafter set
forth, as long as they have unissued and/or treasury shares available for
sale.
(a) The Funds hereby authorize the Underwriter, subject to applicable law
and the Trust's Declaration of Trust (the "Declaration"), to accept,
for the respective account of the Funds, orders for the purchase of
their shares, satisfactory to the Underwriter, as of the time of
receipt of such orders by the dealer or as otherwise described in the
current Prospectuses of the Funds.
(b) The public offering price of the shares of the Funds shall be the net
asset value per share (as determined by the Funds) of the outstanding
shares of the Funds. The net asset value shall be determined, and the
public offering price based thereon shall become effective, as set
forth from time to time in each Fund's current Prospectus; such net
asset value may also be determined, and the public offering price
based thereon shall become effective, as of such other times for the
regular determination of net asset value as may be required or
permitted by rules of the National Association of Securities Dealers,
Inc. ("NASD") or of the Securities and Exchange Commission ("SEC").
The Funds shall furnish daily to the Underwriter, with all possible
promptness, a detailed computation of net asset value of their Class A
shares.
(c) Class A Shares
(i) The public offering price of Class A shares shall be equal to the
net asset value, as described above, plus a commission to be
fixed from time to time by the Underwriter not to exceed 6% of
the public offering price, except that such price per share may
be adjusted to the nearest cent. The Underwriter may fix quantity
discounts and other similar terms not inconsistent with the
provisions of the Investment Company Act of 1940, as amended (the
"1940 Act"). The Underwriter shall not impose any
commission, permit any quantity discounts or impose any other
similar terms in connection with the sale of Class A shares of
the Funds except as disclosed in the Funds' current Prospectuses.
(ii) The Underwriter shall be entitled to deduct a commission on all
Class A shares sold equal to the difference between the public
offering price and the net asset value on which such price is
based. If any such commission is received by a Fund, it will pay
the commission to the Underwriter. Out of such commission, the
Underwriter may allow to dealers such concessions as the
Underwriter may determine from time to time. Notwithstanding
anything in the Agreement, sales may be made at net asset value
as provided in the Funds' current Prospectuses.
(d) Class B Shares
(i) In consideration of the Underwriter's services as principal
underwriter of each Fund's Class B shares pursuant to this
Agreement and in accordance with the provisions of the Trust's
Second Amended and Restated Distribution and Service Plan (the
"Plan") in respect of such shares, each Fund agrees: (I) to pay
to the Underwriter or, at the Underwriter's direction, to a third
party, monthly in arrears on or prior to the 5th business day of
the following calendar month (A) a service fee (the "Service
Fee") equal to 0.25 of 1% per annum of the average daily net
asset value of the Class B shares of such Fund outstanding from
time to time, and (B) the Underwriter's "Allocable Portion" (as
hereinafter defined) of a fee (the "Distribution Fee") equal to
0.75 of 1% per annum of the average daily net asset value of the
Class B shares of such Fund outstanding from time to time, and
(II) to withhold from redemption proceeds in respect of Class B
shares of such Fund the Underwriter's Allocable Portion of the
Contingent Deferred Sales Charges ("CDSCs") payable in respect of
such redemption as provided in the current Prospectus of such
Fund and to pay the same over to the Underwriter or, at the
Underwriter's direction, to a third party, at the time the
redemption proceeds in respect of such redemption are payable to
the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services
required to be performed in order to be entitled to receive its
Allocable Portion of the Distribution Fee payable in respect of
the Class B shares of the Funds upon the settlement date of each
sale of a "Commission Share" (as defined in the Allocation
Schedule attached hereto as Schedule B) of the Funds taken into
account in determining the Underwriter's Allocable Portion of
such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this
Agreement or (to the extent waiver thereof is permitted thereby)
applicable law, each Fund's obligation to pay the Underwriter's
Allocable Portion of the Distribution
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Fees payable in respect to the Class B shares of the Funds shall
not be terminated or modified for any reason (including a
termination of this Agreement) except: (a) to the extent required
by a change in the 1940 Act, the rules thereunder or the Conduct
Rules of the NASD, in each case enacted or promulgated after
Xxxxx 00, 0000, (x) on a basis which does not alter the
Underwriter's Allocable Portion of the Distribution Fees computed
with reference to Commission Shares the Date of Original Issuance
(as defined in the Allocation Schedule) of which occurs on or
prior to the adoption of such termination or modification and
with respect to Free Shares (as defined in the Allocation
Schedule) which would be attributed to such Underwriter under the
Allocation Schedule with reference, or (c) in connection with a
"Complete Termination" (as hereinafter defined) of the Plan.
(iv) The Funds will not take any action to waive or change any CDSC in
respect of the Class B shares, except as provided in each Fund's
current Prospectus or statement of additional information forming
a part of that Fund's initial Registration Statement on the date
such Fund's initial Registration Statement was declared effective
by the SEC, without the consent of the Underwriter and the
permitted assigns of all or any portion of its rights to its
Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement,
neither the termination of the Underwriter's role as principal
distributor of the Class B shares of a Fund, nor the termination
of this Agreement with respect to a Fund, nor the termination of
the Plan with respect to a Fund will terminate the Underwriter's
right to its Allocable Portion of the CDSCs in respect of the
Class B shares of each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the
Underwriter may assign, sell or pledge (collectively, "Transfer")
its rights to the Service Fees and its Allocable Portion of the
Distribution Fees and CDSCs (but not its obligations to the Funds
under this Agreement) to raise funds to make the expenditures
related to the distribution of Class B shares of a Fund and in
connection therewith, upon receipt of notice of such Transfer, a
Fund shall pay, or cause to be paid, to the assignee, purchaser
or pledgee (collectively with their subsequent transferees,
"Transferees") such portion of the Underwriter's Service Fees,
Allocable Portion of the Distribution Fees and CDSCs in respect
of the Class B shares of a Fund so Transferred. Except as
provided in (iii) above and notwithstanding anything to the
contrary set forth elsewhere in this Agreement, to the extent the
Underwriter has Transferred its rights thereto to raise funds as
aforesaid, a Fund's obligation to pay the Underwriter's Allocable
Portion of the Distribution Fees and CDSCs payable in respect of
the Class B shares of a Fund shall be absolute and unconditional
and shall not be subject to dispute, offset, counterclaim or any
defense whatsoever, at law
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or equity, including, without limitation, any of the foregoing
based on the insolvency or bankruptcy of the Underwriter (it
being understood that such provision is not a waiver of the
Funds' right to pursue the Underwriter and enforce claims against
the assets of the Underwriter other than the Underwriter's right
to the Distribution Fees and CDSCs in respect of the Class B
shares of each Fund, which have been so transferred in connection
with such Transfer). The Funds agree that each such Transferee is
a third party beneficiary of the provisions of this clause (vi)
but only insofar as those provisions relate to Distribution Fees
and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of
Distribution Fees and CDSCs payable in respect of the Class B
shares of a Fund shall mean the portion of such Distribution Fees
and CDSCs allocated to the Underwriter.
(viii) For purposes of this Agreement, the term "Complete Termination"
of the Plan in respect of a Fund means a termination of the Plan
involving the complete cessation of the payment of Distribution
Fees in respect of all Class B shares of the Funds, and the
termination of the Plan and the complete cessation of the payment
of distribution fees pursuant to any other distribution Plan
pursuant to Rule 12b-1 under the 1940 Act in respect of the Class
B shares of the Funds and any successor fund or the Funds
acquiring a substantial portion of the assets of the Funds and
for every future class of shares which has substantially similar
characteristics to the Class B shares of the Funds taking into
account the manner of payment and amount of sales charge, CDSC or
other similar charges borne directly or indirectly by the holders
of such shares; provided that (a) the Trustees of the Trust,
including the Independent Trustees of the Trust, shall have
determined that such termination is in the best interest of the
Funds and the shareholders of the Funds, and (b) such termination
does not alter the CDSC as in effect at the time of such
termination applicable to Commission Shares of the Funds, the
Date of Original Issuance (as defined in the Allocation Schedule)
of which occurs on or prior to such termination.
(ix) The Underwriter may reallow any or all of the Distribution and
Service Fees and CDSCs which it is paid under the Agreement to
such dealers as the Underwriter may from time to time determine.
(x) The Underwriter may fix quantity discounts and other similar
variances or waivers of the CDSCs not inconsistent with the
provisions of the 1940 Act; provided however, that the
Underwriter shall not impose any commission, permit any quantity
discount, or impose any other similar waiver or variance in
connection with the sale of Class B shares except as disclosed in
each Fund's current Prospectus.
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(e) Class C Shares
(i) As compensation for providing services under this Agreement, (A)
the Underwriter shall receive from each Fund distribution and
service fees under the terms and conditions set forth in the Plan
for the Funds adopted under Rule 12b-1 under the 1940 Act, as
that Plan may be amended from time to time and subject to any
further limitation on such fees as the Trustees may impose, and
(B) the Underwriter shall receive from each Fund all CDSCs
applied on redemption of Class C shares of the Funds. Whether and
to what extent a CDSC will be imposed with respect to a
redemption shall be determined in accordance with, and in a
manner set forth in, each Fund's current Prospectus.
(ii) The Underwriter may reallow any or all of the distribution and
service fees and CDSCs which it is paid under the Agreement to
such dealers as the Underwriter may from time to time determine.
(iii) The Underwriter may fix quantity discounts and other similar
variances or waivers of the CDSCs not inconsistent with the
provisions of the 1940 Act; provided however, that the
Underwriter shall not impose any commission, permit any quantity
discount, or impose any other similar waiver or variance in
connection with the sale of Class C shares except as disclosed in
each Fund's current Prospectus.
(f) Class O Shares
(i) As compensation for providing services under this Agreement, the
Underwriter shall receive from each Fund service fees under the
terms and conditions set forth in the Plan for the Funds adopted
under Rule 12b-1 under the 1940 Act, as that Plan may be amended
from time to time and subject to any further limitation on such
fees as the Trustees may impose.
(ii) The Underwriter may reallow any or all of the service fees and
CDSCs which it is paid under the Agreement to such dealers as the
Underwriter may from time to time determine.
(g) Class Q Shares
(i) As compensation for providing services under this Agreement, the
Underwriter shall receive from each Fund service fees under the
terms and conditions set forth in the Plan for the Funds adopted
under Rule 12b-1 under the 1940 Act, as that Plan may be amended
from time to time and subject to any further limitation on such
fees as the Trustees may impose.
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(ii) The Underwriter may reallow any or all of the service fees and
CDSCs which it is paid under the Agreement to such dealers as the
Underwriter may from time to time determine.
(h) Class T Shares
(i) The public offering price of Class T shares shall be based on the
net asset value per share (as determined by the Fund) of the
outstanding Class T shares of the Fund. The net asset value of
Class T shares shall be regularly determined on every business
day as of the time of the regular closing of the New York Stock
Exchange ("NYSE") and the offering price based upon such net
asset value shall become effective as set forth from time to time
in the Fund's current Prospectus; such net asset value shall also
be regularly determined, and the offering price based thereon
shall become effective, as of such other times for the regular
determination of net asset value as may be required or permitted
by rules of the NASD, or of the SEC. The Fund shall furnish daily
to the Underwriter, with all possible promptness, a detailed
computation of net asset value of its Class T shares.
(ii) As compensation for providing services under this Agreement, (A)
the Underwriter shall receive from the Fund distribution and
service fees under the terms and conditions set forth in the Plan
for the Fund adopted under Rule 12b-1 under the 1940 Act, as that
Plan may be amended from time to time and subject to any further
limitation on such fees as the Trustees may impose, and (B) the
Underwriter shall receive from the Fund all CDSC's applied on
redemption of Class T share of the Fund. Whether and to what
extent a contingent deferred sales charge will be imposed with
respect to a redemption shall be determined in accordance with,
and in a manner set forth in, the Fund's current Prospectus.
(iii) The Underwriter may reallow any or all of the distribution and
services fees and contingent deferred sales charges which it is
paid under the Agreement to such dealers as the Underwriter may
from time to time determine.
(iv) The Underwriter may fix quantity discounts and other similar
variances or waivers of the contingent deferred sales charge not
inconsistent with the provisions of the 1940 Act; provided
however, that the Underwriter shall not impose any commission,
permit any quantity discount, or impose any other similar waiver
or variance in connection with the sale of Class T shares except
as disclosed in the current Prospectus of the Fund.
2. The Underwriter agrees to devote reasonable time and effort to enlist
investment dealers to sell shares of each class of each Fund and otherwise
promote the sale and distribution and act as Underwriter for the sale and
distribution of the shares of each class of each Fund as such arrangements
may profitably be made; but so long as its does so, nothing herein
contained shall prevent the Underwriter from entering into similar
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arrangements with other funds and to engage in other activities. The Funds
reserve the right to issue shares of each class in connection with any
merger or consolidation of the Funds with any other investment company or
any personal holding company or in connection with offers of exchange
exempted from Section 22(d) of the 1940 Act.
3. To the extent the Funds shall offer (as set forth in each Fund's current
Prospectus) to provide physical certificates evidencing ownership of a
class of shares, upon receipt by a Fund at its principal place of business
of a written order from the Underwriter, together with delivery
instructions, a Fund shall, as promptly as practicable, cause certificates
for the class of shares called for in such order to be delivered or
credited in such amounts and in such names as shall be specified by the
Underwriter, against payment therefor in such manner as may be acceptable
to such Fund.
4. All sales literature and advertisements used by the Underwriter in
connection with sales of the shares of the Funds shall be subject to the
approval of the Funds to which such literature relates. The Funds authorize
the Underwriter in connection with the sale or arranging for the sale of
its shares to give only such information and to make only such statements
or representations as are contained in the Prospectus or in sales
literature or advertisements approved by the Funds or in such financial
statements and reports as are furnished to the Underwriter pursuant to
paragraph 6 below. The Funds shall not be responsible in any way for any
information, statements or representations given or made by the Underwriter
or its representatives or agents other than such information, statements
and representations.
5. The Underwriter, as agent of the Funds, is authorized, subject to the
direction of the Funds, to accept shares of each class for redemption at
prices not in excess of their net asset value, determined as prescribed in
the current Prospectus of each Fund. The Funds shall reimburse the
Underwriter monthly for its out-of-pocket expenses reasonably incurred on
behalf of the Funds in carrying out the foregoing authorization, but the
Underwriter shall not be entitled to any commissions or other compensation
in respect to such redemptions. The Underwriter shall report all
redemptions promptly to the Funds.
6. The Trust, on behalf of the Funds, shall keep the Underwriter fully
informed with regard to its affairs, shall furnish the Underwriter with a
certified copy of all financial statements, and a signed copy of the
report, prepared by independent public accountants and with such reasonable
number of printed copies of the annual and other periodic reports of the
Funds as the Underwriter may request, and shall cooperate fully in the
efforts of the Underwriter to sell and arrange for the sale of each class
of shares of the Funds and in the performance by the Underwriter of all its
duties under this Agreement.
7. The Funds will pay or cause to be paid expenses (including counsel fees
and disbursements) of any registration of each class of shares of
beneficial interest under, but not limited to, Federal, state or other
regulatory authority, fees of filing periodic reports with regulatory
bodies and of preparing, setting in type and printing the Prospectus and
any amendments thereto prepared for use in connection with the offering of
shares of each class of the Funds, for fees and expenses incident to the
issuance of shares of
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beneficial interest of each class, such as the cost of stock certificates
(if offered), issuance taxes, fees of the transfer agent, including the
cost of preparing and mailing notices to shareholders pertaining to
transactions with respect to shareholders' accounts, dividend disbursing
agent's costs, including the cost for preparing and mailing notices
confirming shares acquired by shareholders pursuant to the reinvestment of
dividends and distributions, and the mailing to shareholders of
prospectuses, and notices and reports as may be required from time to time
by regulatory bodies or for such other purposes, except for purposes of
sales by the Underwriter as outlined in paragraph 8 hereof.
8. The Underwriter shall pay all of its own costs and expenses (other than
expenses and costs heretofore deemed payable by the Funds and other than
expenses which one or more dealers may bear pursuant to any agreement with
the Underwriter) incident to the sale and distribution of the shares issued
or sold hereunder including (a) expenses of printing copies of the
Prospectus to be used in connection with the sale of shares of each class
of the Funds at printer's overrun costs; (b) expenses of printing and
distributing or disseminating any other literature, advertising or selling
aids in connection with the offering of shares of each class for sale
(however, the expenses referred to in (a) and (b) do not include expenses
incurred in connection with the preparation, printing and distribution of
the Prospectuses or any report or other communication to shareholders, to
the extent that such expenses are necessarily incurred to effect compliance
by the Funds with any Federal or State law or other regulatory bodies); and
(c) expenses of advertising in connection with such offering; provided,
however, that the Underwriter shall not be required to pay for any such
expenses to the extent that they are paid pursuant to each Fund's
distribution plan adopted pursuant to Rule 12b-1 under the 1940 Act.
9. The Funds agree to register, from time to time as necessary, additional
shares of beneficial interest of each class with the SEC, State and other
regulatory bodies and to pay the related filing fees therefor and to file
such amendments, reports and other documents as may be necessary in order
that there may be no untrue statement of a material fact in the
Registration Statement or Prospectus or that there may be no omission to
state a material fact therein necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. As used in this Agreement, the term "Registration Statement"
shall mean the Registration Statement most recently filed by the Trust with
the SEC and effective under the Securities Act of 1933, as amended, as such
Registration Statement is amended from time to time, and the term
"Prospectus" shall mean the most recent form of prospectus authorized by
the Trust with respect to each Fund for use by the Underwriter and by
dealers.
10. This Agreement may be terminated at any time on not more than 60 days'
written notice, without payment of a penalty, by the Underwriter, by vote
of a majority of the outstanding voting securities (as defined in the 0000
Xxx) of each Fund or by vote of a majority of the Trustees, who are not
"interested persons" of each Fund and who have no direct or indirect
financial interest in the operation of the Plan or agreements.
11. This Agreement shall terminate automatically in the event of its
assignment. The term "assignment" for this purpose shall have the meaning
defined in Section 2(a)(4) of
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the 1940 Act. With regard to Class T Shares, this Agreement shall also
terminate automatically when Class T shares no longer exist.
12. This Agreement has been approved by the Trustees of the Trust, on
behalf of each Fund, and shall continue in effect with respect to each Fund
until the Reapproval Date set forth for such Fund in Schedule A to this
Agreement. Thereafter, this Agreement shall continue for successive annual
periods, provided that such continuance is specifically approved annually
by a majority of the Trustees who are not interested persons of the parties
hereto as defined in the 1940 Act and either (a) a majority of the Trustees
of the Trust or (b) by vote of a majority or the outstanding voting
securities of each Fund, as defined in the 1940 Act.
13. The Declaration, establishing the Trust, a copy of which, together with
all amendments thereto, is on file in the office of the Secretary of the
Commonwealth of Massachusetts, provides that the name of the Trust refers
to the Trustees under the Declaration collectively as trustees, but not
individually or personally; and no Trustee, shareholder, officer, employee
or agent of the Trust and/or each Fund may be held to any personal
liability, nor may resort be had to their private property for the
satisfaction of any obligation or claim or otherwise in connection with
affairs of the Trust, but the Trust property only shall be liable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized and to become effective as
of the day and year set forth above.
ING EQUITY TRUST
By:
------------------------------------
Xxxxxxxx X. Xxxxxxxx
Senior Vice President
ING FUNDS DISTRIBUTOR, LLC.
By:
------------------------------------
Xxxx Xxxxx
Senior Vice President
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AMENDED SCHEDULE A
with respect to the
AMENDED AND RESTATED UNDERWRITING AGREEMENT
between
ING EQUITY TRUST
and
ING FUNDS DISTRIBUTOR, LLC
Name of Fund
------------
ING Equity Dividend Fund
ING Fundamental Research Fund
ING Index Plus LargeCap Equity Fund
ING Index Plus LargeCap Equity Fund II
ING Index Plus LargeCap Equity Fund III
ING Index Plus LargeCap Equity Fund IV
ING Index Plus LargeCap Equity Fund V
ING Index Plus LargeCap Equity Fund VI
ING LargeCap Value Fund
ING MidCap Opportunities Fund
ING Opportunistic LargeCap Fund
ING Principal Protection Fund VII
ING Principal Protection Fund VIII
ING Principal Protection Fund IX
ING Principal Protection Fund X
ING Principal Protection Fund XI
ING Principal Protection Fund XII
ING Real Estate Fund
ING SmallCap Opportunities Fund
ING SmallCap Value Multi-Manager Fund
ING Value Choice Fund
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SCHEDULE B
with respect to the
AMENDED AND RESTATED UNDERWRITING AGREEMENT
between
ING EQUITY TRUST
and
ING FUNDS DISTRIBUTOR, LLC
Effective: September 23, 2002
ALLOCATION SCHEDULE
Defined terms used in this Schedule and not otherwise defined herein shall
have the meaning assigned to them in the Amended and Restated Underwriting
Agreement of the Trust, on behalf of each Fund, and the Underwriter made as of
the 23rd day of September, 2002, as amended May 30, 2008, to which this Schedule
B is attached (the "Underwriting Agreement"). As used herein the following terms
shall have the meanings indicated:
CDSCs or Asset Based Sales Charges related to Class B Shares ("Shares") of
a Fund shall be allocated by a Fund among the Underwriter and any successor
principal distributor of Shares of such Fund (the "Successor Underwriter") in
accordance with this Schedule B.
"Commission Share" means, in respect of a Fund, each Share of such Fund,
which is issued under circumstances which would normally give rise to an
obligation of the holder of such Share to pay a CDSC upon redemption of such
Share (including, without limitation, any Share of such Fund issued in
connection with a Permitted Free Exchange) and any such Share shall continue to
be a Commission Share of such Fund prior to the redemption (including a
redemption in connection with a Permitted Free Exchange) or conversion of such
Share, even though the obligation to pay the CDSC may have expired or conditions
for waivers thereof may exist.
"Date of Original Issuance" means in respect of any Commission Share, the
date with reference to which the amount of the CDSC payable on redemption
thereof, if any, is computed.
"Free Share" means, in respect of a Fund, each Share of such Fund, other
than a Commission Share (including, without limitation, any Share issued in
connection with the reinvestment of dividends or capital gains).
"Inception Date" means in respect of a Fund, the first date on which such
Fund issued Shares.
"Net Asset Value" means, (i) with respect to a Fund, as of the date any
determination thereof is made, the net asset value of such Fund computed in the
manner such value is required to be computed by such Fund in its reports to its
shareholders, and (ii) with respect to any share
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of such Fund as of any date, the quotient obtained by dividing: (A) the net
asset value of such Fund (as computed in accordance with clause (i) above)
allocated to Shares of such Fund (in accordance with the constituent documents
for such Fund) as of such date, by (B) the number of Shares of such Fund
outstanding on such date.
PART I: ATTRIBUTION OF SHARES
Shares of each Fund, which are outstanding from time to time, shall be
attributed to the Underwriter and each Successor Underwriter in accordance with
the following rules;
(1) Commission Shares:
(a) Commission Shares attributed to the Underwriter shall be Commission
Shares the Date of Original issuance of which occurred on or after the Inception
Date of such Fund and on or prior to the last date on which the Underwriter
acted as principal underwriter of Shares of such Fund.
(b) Commission Shares attributable to any Successor Underwriter shall be
Commission Shares, the Date of Original Issuance of which occurs after the last
date on which the immediately preceding principal underwriter of Shares of such
Fund acted as principal underwriter of Shares of such Fund and prior to the last
date on which the Successor Underwriter in question acted as principal
underwriter of Shares of such Fund.
(c) A Commission Share of a particular Fund (the "Issuing Fund") issued in
consideration of the investment of proceeds of the redemption of a Commission
Share of another Fund (the "Redeeming Fund") in connection with a Permitted Free
Exchange, is deemed to have a Date of Original issuance identical to the Date of
Original Issuance of the Commission Share of the Redeeming Fund and any such
Commission Share will be attributed to the Underwriter or any Successor
Underwriter based upon such Date of Original Issuance in accordance with rules
(a) and (b) above.
(d) A Commission Share redeemed (other than in connection with a Permitted
Free Exchange) or converted to a class A share is attributable to the
Underwriter or any Successor Underwriter based upon the Date of Original
Issuance in accordance with rule (a), (b) and (c) above.
(2) Free Shares:
Free shares of a Fund outstanding on any date shall be attributed to the
Underwriter or any Successor Underwriter, as the case may be, in the same
proportion that the Commission Shares of such Fund outstanding on such date are
attributed to it on such date; provided that if the Transfer Agent is able to
produce monthly reports which track the Date of original Issuance for the
Commission Shares related to such Free Shares, then the Free Shares shall be
allocated pursuant to clause 1(a), (b) and (c) above.
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PART II: ALLOCATION OF CDSCs ("CDSCs")
CDSCs Related to the Redemption of Commission Shares:
CDSCs in respect of the redemption of Commission Shares shall be allocated
to the Underwriter or any Successor Underwriter depending upon whether the
related redeemed Commission Share is attributable to such Underwriter or
Successor Underwriter, as the case may be, in accordance with Part I above.
PART III: ALLOCATION OF ASSET BASED SALES CHARGES
Assuming that the Asset Based Sales Charge remains constant over time and
among Funds so that Part IV hereof does not become operative:
(1) The portion of the aggregate Asset Based Sales Charges accrued in
respect of all Shares of all Funds during any calendar month allocable to the
Underwriter or any Successor Underwriter is determined by multiplying the total
of such Asset Based Sales Charges by the following fraction:
(A + C) /2
----------
(B + D) /2
where:
A = The aggregate Net Asset Value of all Shares of all Funds attributed to such
Underwriter or Successor Underwriter, as the case may be, and outstanding
at the beginning of such calendar month
B = The aggregate Net Asset Value of all Shares of all Funds at the beginning
of such calendar month
C = The aggregate Net Asset Value of all Shares of all Funds attributed to such
Underwriter or Successor Underwriter, as the case may be, and outstanding
at the end of such calendar month
D = The aggregate Net Asset Value of all Shares of all Funds at the end of such
calendar month
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(2) If the Program Administrator reasonably determines that the Transfer
Agent is able to produce automated monthly reports which allocate the average
Net Asset Value of the Commission Shares (or all Shares if available) of all
Funds among the Underwriter and any Successor Underwriter in a manner consistent
with the methodology detailed in Part I and Part III (l) above, the portion of
the Asset Based Sales Charges accrued in respect of all such Shares of all Funds
during a particular calendar month will be allocated to such Underwriter or
Successor Underwriter by multiplying the total of such Asset Based Sales Charges
by the following fraction:
(A)/(B)
where:
A = Average Net Asset Value of all such Shares of all Funds for such calendar
month attributed to such Underwriter or Successor Underwriter, as the case
may be
B = Total average Net Asset Value of all such Shares of all Funds for such
calendar month
PART IV: ADJUSTMENT OF THE UNDERWRITER'S OR SUCCESSOR UNDERWRITER'S SHARE OF
ASSET BASED SALES CHARGES AND CDSCS
The Parties to the Underwriting Agreement recognize that, if the terms of
the Underwriting Agreement, any Distribution Plan, any Prospectus, the Conduct
Rules or any other Applicable Law change, which change disproportionately
reduces, in a manner inconsistent with the intent of the Underwriting Agreement
and this Schedule B, the amount of the Underwriter's or the Successor
Underwriter's share of Asset Based Sales Charges and CDSCs that would have been
payable had no such change occurred, this Allocation Schedule should be adjusted
by agreement among the Funds, the Underwriter and each Successor Underwriter to
conform with such intent taking into account such change; provided, however, if
the Funds, the Underwriter and the Successor Underwriters cannot agree within
thirty (30) days after the date of any such change in Applicable Laws or in any
Underwriting Agreement, Distribution Plan, Prospectus or the Conduct Rules, the
Parties shall submit the question to arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association and the
decision reached by the arbitrator shall be final and binding on the Parties
hereto.
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