EXHIBIT (e)(1)
FORM OF DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of the [ ] day of December, 2000 by and
between LMCG Funds on behalf of the Funds listed on Schedule A, attached hereto,
together with all other open-end management investment companies subsequently
established and made subject to this Agreement in accordance with Section 4.3
below (each a "Fund", collectively the "Funds") and Funds Distributor, Inc., a
Massachusetts corporation having a place of business at 00 Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxxxxxxx 00000 ("FDI").
WHEREAS, the shares of beneficial interest of each of the Funds are
currently divided into a number of separate series of shares, or funds, each
corresponding to a distinct portfolio of securities (each a "Series"), and many
of which are or may be divided into multiple classes of shares, all as set forth
on Schedule A. For purposes of this Agreement the term "Shares" shall mean the
authorized shares of the relevant Series and classes of shares of the Series, if
any, and otherwise shall mean the Fund's authorized shares;
WHEREAS, FDI is registered as a broker-dealer with the Securities and
Exchange Commission (the "SEC") under the Securities Exchange Act of 1934 (the
"1934 Act") and is a member of the National Association of Securities Dealers,
Inc. (the "NASD");
WHEREAS, Xxx Xxxxxx Investments Ltd. ("Adviser") is the registered
investment adviser to the Fund pursuant to an Investment Advisory Agreement
between the Adviser and the Trust in respect of each Fund;
WHEREAS, the Board of Trustees of LMCG Funds wish to engage FDI to act
as the distributor for the Fund and FDI is willing to render such service on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises set forth below, the parties agree as follows:
1. Services as Distributor
1.1 FDI will act as agent for the distribution of Shares covered by,
and in accordance with, the registration statement and prospectus then in effect
under the Securities Act of 1933, as amended (the "1933 Act"), and will transmit
promptly any orders received by FDI for purchase or redemption of Shares to the
Transfer and Dividend Disbursing Agent for the Fund of which the Fund has
notified FDI in writing.
1.2 FDI agrees to use its best efforts to perform its duties hereunder
in the solicitation of orders for the sale of Shares. It is contemplated that
FDI may enter into sales or servicing agreements with securities dealers,
financial institutions and other industry professionals, such as investment
advisers, accountants and estate planning firms, and in so doing FDI will act
only on its own behalf as principal.
1.3 FDI shall act as distributor of Shares in compliance with all
applicable laws, rules and regulations, including, without limitations, the
Investment Company Act of 1940, as amended (the "1940 Act"), the 1933 Act, the
1934 Act, the Rules of the NASD, the Fund's
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Agreement and Declaration of Trust and By-Laws. FDI represents and warrants
that it is a broker-dealer registered with the SEC and that it is registered
with the relevant securities regulatory agencies in all fifty states, the
District of Columbia and Puerto Rico. FDI also represents and warrants that
it is a member of the NASD.
1.4 FDI shall file Fund advertisements, sales literature and other
marketing and sales related materials with the appropriate regulatory agencies
and shall obtain such approvals for their use as may be required by the SEC, the
NASD and/or state securities administrators.
1.5 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind deemed by the parties hereto to render sales of a Fund's Shares not in the
best interest of the Fund, the parties hereto may decline to accept any orders
for, or make any sales of, any Shares until such time as those parties deem it
advisable to accept such orders and to make such sales and each party shall
advise promptly the other party of any such determination.
1.6 The Fund agrees to pay all costs and expenses in connection with
the registration of Shares under the 1933 Act and all expenses in connection
with maintaining facilities for the issue and transfer of Shares and for
supplying information, prices and other data to be furnished by the Fund
hereunder, and all expenses in connection with the preparation and printing of
the Fund's prospectuses and statements of additional information for regulatory
purposes and for distribution to shareholders; provided however, that the Fund
shall not pay any of the costs of advertising or promotion for the sale of
Shares, except as authorized by a plan adopted pursuant to Rule 12b-1 under the
1940 Act. FDI shall also be entitled to compensation for FDI's services as
provided in any Distribution Plan adopted as to any Series and class of the
Fund's Shares pursuant to Rule 12b-1 ("Rule 12b-1 fees"). To the extent that
Rule 12b-1 fees are paid to FDI as default broker-dealer, such Rule 12b-1 fees
shall continue to be paid to FDI after FDI ceases to act as distributor of the
Fund for so long as FDI continues to serve as such default broker-dealer.
1.7 The Fund agrees to execute any and all documents and to furnish any
and all information and otherwise to take all actions which may be reasonably
necessary in the discretion of the Fund's officers in connection with the
qualification of Shares for sale in such states as FDI may designate to the Fund
and the Fund may approve, and the Fund agrees to pay all expenses which may be
incurred in connection with such qualification. FDI shall pay all expenses
connected with its own qualification as a dealer under state or Federal laws
and, except as otherwise specifically provided in this Agreement, all other
expenses incurred by FDI in connection with the sale of Shares as contemplated
in this Agreement.
1.8 The Fund shall furnish FDI from time to time, for use in connection
with the sale of Shares, such information with respect to the Fund or any
relevant Series and the Shares as FDI may reasonably request. The Fund also
shall furnish FDI upon request with semi-annual reports and annual audited
reports of the Fund's books and accounts made by independent public accountants
regularly retained by the Fund and from time to time such additional information
regarding the Fund's financial condition as FDI may reasonably request.
1.9 The Fund represents to FDI that all registration statements and
prospectuses filed by the Fund with the SEC under the 1933 Act and under the
1940 Act with respect to the Shares have been prepared in conformity with the
requirements of said Acts and rules and regulations of
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the SEC thereunder. As used in this Agreement the terms "registration
statement" and "prospectus" shall mean any registration statement and
prospectus of a Fund, including the statement of additional information
incorporated by reference therein, filed with the SEC and any amendments and
supplements thereto which at any time shall have been filed with said
Commission. The Fund represents and warrants to FDI that any registration
statement and prospectus, when such registration statement becomes effective,
will contain all material statements required to be stated therein in
conformity with said Acts and the rules and regulations of said Commission;
and that neither any registration statement nor any prospectus when such
registration statement becomes effective will include an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The Fund
may, but shall not be obligated to, propose from time to time such amendment
or amendments to any registration statement and such supplement or
supplements to any prospectus as, in the light of future developments, may,
in the opinion of the Fund's counsel, be necessary or advisable. If the Fund
shall not propose such amendment or amendments and/or supplement or
supplements within fifteen days after receipt by the Fund of a written
request from FDI to do so, FDI may, at its option, terminate this Agreement
on not less than 60 days' notice or decline to make offers of the Fund's
securities until such amendments are made. The Fund shall not file any
amendment to any registration statement or supplement to any prospectus
without giving FDI reasonable notice thereof in advance; provided, however,
that nothing contained in this Agreement shall in any way limit the Fund's
right to file at any time such amendments to any registration statement
and/or supplements to any prospectus, of whatever character, as the Fund may
deem advisable, such right being in all respects absolute and unconditional.
1.10 The Fund authorizes FDI and any dealers with whom FDI has entered
into dealer agreements to use any prospectus in the form furnished by the Fund
in connection with the sale of Shares. The Fund agrees to indemnify, defend and
hold FDI, its several officers and directors, and any person who controls FDI
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
reasonable cost of investigating or defending such claims, demands or
liabilities and any reasonable counsel fees incurred in connection therewith)
which FDI, its officers and directors, or any such controlling persons, may
incur under the 1933 Act, the 1940 Act, or common law or otherwise, arising out
of or on the basis of any untrue statement, or alleged untrue statement, of a
material fact required to be stated in either any registration statement or any
prospectus or any statement of additional information, or arising out of or
based upon any omission, or alleged omission, to state a material fact required
to be stated in any registration statement, any prospectus or any statement of
additional information or necessary to make the statements in any of them not
misleading, except that the Fund's agreement to indemnify FDI, its officers or
directors, and any such controlling person will not be deemed to cover any such
claim, demand, liability or expense to the extent that it arises out of or is
based upon any such untrue statement, alleged untrue statement, omission or
alleged omission made in any registration statement, any prospectus or any
statement of additional information in reliance upon information furnished by
FDI, its officers, directors or any such controlling person to the Fund or its
representatives for use in the preparation thereof, and except that the Fund's
agreement to indemnify FDI and the Fund's representations and warranties set out
in paragraph 1.9 of this Agreement will not be deemed to cover any liability to
the Fund or its shareholders to which FDI 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 and duties
under this Agreement ("Disqualifying Conduct"). The Fund's agreement to
indemnify FDI, its officers and directors,
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and any such controlling person, as aforesaid, is expressly conditioned upon
the Fund's being notified of any action brought against FDI, its officers or
directors, or any such controlling person, such notification to be given by
letter, by facsimile or by telegram addressed to the Fund at its address set
forth on Schedule A, attached hereto, within a reasonable period of time
after the summons or other first legal process shall have been served. The
failure so to notify the Fund of any such action shall not relieve the Fund
from any liability which the Fund may have to the person against whom such
action is brought by reason of any such untrue, or alleged untrue, statement
or omission, or alleged omission, otherwise than on account of the Fund's
indemnity agreement contained in this paragraph 1.10. The Fund will be
entitled to assume the defense of any suit brought to enforce any such claim,
demand or liability, but, in such case, such defense shall be conducted by
counsel of good standing chosen by the Fund and approved by FDI, which
approval shall not be unreasonably withheld. In the event the Fund elects to
assume the defense of any such suit and retain counsel of good standing
approved by FDI, the defendant or defendants in such suit shall bear the fees
and expenses of any additional counsel retained by any of them; but in case
the Fund does not elect to assume the defense of any such suit, the Fund will
reimburse FDI, its officers and directors, or the controlling person or
persons named as defendant or defendants in such suit, for the reasonable
fees and expenses of any counsel retained by FDI or them. The Fund's
indemnification agreement contained in this paragraph 1.10 and the Fund's
representations and warranties in this Agreement shall remain operative and
in full force and effect regardless of any investigation made by or on behalf
of FDI, its officers and directors, or any controlling person, and shall
survive the delivery of any Shares. This agreement of indemnity will inure
exclusively to FDI's benefit, to the benefit of FDI's several officers and
directors, and their respective estates, and to the benefit of any
controlling persons and their successors. The Fund agrees promptly to notify
FDI of the commencement of any litigation or proceedings against the Fund or
any of its officers or Trustees in connection with the issue and sale of
Shares.
1.11 FDI agrees to indemnify, defend and hold the Fund, its several
officers and Trustees, and any person who controls the Fund 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 reasonable cost of
investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) which the Fund, its
officers or Trustees, or any such controlling person, may incur under the 1933
Act, the 1940 Act, or under common law or otherwise, but only to the extent that
such liability or expense incurred by the Fund, its officers or Trustees, or
such controlling person resulting from such claims or demands, (a) shall arise
out of or be based upon any unauthorized sales literature, advertisements,
information, statements or representations or any Disqualifying Conduct in
connection with the offering and sale of any Shares, (b) shall arise out of or
be based upon any untrue, or alleged untrue, statement of a material fact
contained in information furnished in writing by FDI to the Fund specifically
for use in the Fund's registration statement, or shall arise out of or be based
upon any omission, or alleged omission, to state a material fact in connection
with such information furnished in writing by FDI to the Fund and required to be
stated in such answers or necessary to make such information not misleading or
(c) any other liability to which the Fund becomes subject by reason of willful
misfeasance, bad faith or gross negligence in the performance (or failure to
perform) of FDI's duties under the Agreement. FDI's agreement to indemnify the
Fund, its officers and Trustees, and any such controlling person, as aforesaid,
is expressly conditioned upon FDI being notified of any action brought against
the Fund, its officers or Trustees, or any such controlling person, such
notification to be given by letter, by facsimile or by telegram addressed to FDI
at its address set forth below within a reasonable
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period of time after the summons or other first legal process shall have been
served. FDI shall have the right to control the defense of such action, with
counsel of its own choosing, satisfactory to the Fund, if such action is
based solely upon such alleged misstatement or omission on FDI's part, and in
any other event the Fund, its officers or Trustees, or such controlling
person shall each have the right to participate in the defense or preparation
of the defense of any such action. The failure so to notify FDI of any such
action shall not relieve FDI from any liability which FDI may have to the
Fund, its officers or Trustees, or to such controlling person by reason of
any such untrue, or alleged untrue, statement or omission, or alleged
omission, otherwise than on account of FDI's indemnity agreement contained in
this paragraph 1.11. This agreement of indemnity will inure exclusively to
the Fund's benefit, to the benefit of the Fund's officers and Trustees, and
their respective estates, and to the benefit of any controlling persons and
their successors. FDI agrees promptly to notify the Fund of the commencement
of any litigation or proceedings against FDI or any of its officers or
directors in connection with the issue and sale of Shares.
1.12 No Shares shall be offered by either FDI or the Fund under any of
the provisions of this Agreement and no orders for the purchase or sale of such
Shares hereunder shall be accepted by the Fund if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the 1933
Act or if and so long as a current prospectus as required by Section 10 of said
Act, as amended, is not on file with the SEC; provided, however, that nothing
contained in this paragraph 1.12 shall in any way restrict or have an
application to or bearing upon the Fund's obligation to repurchase any Shares
from any shareholder in accordance with the provisions of the Fund's prospectus
or charter documents.
1.13 The Fund agrees to advise FDI immediately in writing:
(a) of any request by the SEC for amendments to the registration
statement or prospectus then in effect or for additional information (not
including comments provided by the SEC on an amendment to the Fund's
registration statement);
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or prospectus
then in effect or the initiation of any proceeding for that purpose;
(c) of the happening of any event which makes untrue any statement
of a material fact made in the registration statement or prospectus then
in effect or which requires the making of a change in such registration
statement or prospectus in order to make the statements therein not
misleading; and
(d) of all actions of the SEC with respect to any amendments to
any registration statement or prospectus which may from time to time be
filed with the SEC (not including comments provided by the SEC on an
amendment to the Fund's registration statement).
2. Offering Price
Shares of any class of a Fund offered for sale by FDI shall be offered
at a price per share (the "Offering Price") plus a purchase premium, as set
forth in the then-current prospectus. The
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Offering Price, if not an exact multiple of one cent, shall be adjusted to
the nearest cent. In addition, Shares of any class of the Fund offered for
sale by FDI may be subject to a redemption fee as set forth in the Fund's
then-current prospectus. Purchase premiums and redemption fees are retained
by the Fund to offset transaction costs associated with investments and
redemptions. Any payments to dealers shall be governed by a separate
agreement between FDI and such dealer and the Fund's then-current prospectus.
3. Term
This Agreement shall become effective with respect to the Fund as of
the date hereof and will continue for an initial two-year term and will continue
thereafter so long as such continuance is specifically approved at least
annually (i) by the Fund's Board of Trustees or (ii) by a vote of a majority of
the Shares of the Fund or the relevant Series, as the case may be, provided that
in either event its continuance also is approved by a majority of the Board of
Trustees who are not "interested persons" of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval. This Agreement is terminable with respect to a Fund, a Series or a
class, without penalty, on not less than sixty days' notice, by the Fund's Board
of Trustees, by vote of a majority of the outstanding voting securities of such
Fund, or by FDI. This Agreement will automatically and immediately terminate in
the event of its "assignment." (As used in this Agreement, the terms "majority
of the outstanding voting securities," "interested person" and "assignment"
shall have the same meanings as such terms have in the 1940 Act). FDI agrees to
notify the Fund immediately upon the event of its expulsion, suspension or
censure by the NASD. This Agreement will automatically and immediately terminate
in the event of FDI's expulsion or suspension by the NASD.
4. Miscellaneous
4.1 The Fund recognizes that, except to the extent otherwise agreed to
by the parties hereto, FDI's directors, officers and employees may from time to
time serve as directors, trustees, officers and employees of corporations and
business trusts (including other investment companies), and that FDI or FDI's
affiliates may enter into distribution or other agreements with other
corporations and trusts.
4.2 No provision of this Agreement may be changed, waived, discharged
or terminated orally, but only by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
4.3 This Agreement and the Schedules forming a part hereof may be
amended at any time by a writing signed by each of the parties hereto. In the
event that the Trustees of any additional funds indicate by vote that such funds
are to be made parties to this Agreement, whether such funds were in existence
at the time of the effective date of this Agreement or subsequently formed,
Schedule A hereto shall be amended to reflect the addition of such new funds and
such new funds shall thereafter become parties hereto. In the event that any of
the Funds listed on Schedule A terminates its registration as a management
investment company, or otherwise ceases operations, Schedule A shall be amended
to reflect the deletion of such Fund and its various Series and classes.
4.4 This Agreement is executed by the Board of Trustees of the Fund,
not individually, but in their capacity as Trustees under the Agreement and
Declaration of Trust made June 29,
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2000, as amended. None of the shareholders, Trustees, officers, employees, or
agents of the Fund shall be personally bound or liable under this Agreement,
nor shall resort be had to their private property for the satisfaction of any
obligation or claim hereunder but only to the property of the Fund and, if
the obligation or claim relates to the property held by the Fund for the
benefit of one or more but fewer than all Series, then only to the property
held for the benefit of the affected Series.
4.5 This Agreement shall be governed by the internal laws of The
Commonwealth of Massachusetts without giving effect to principles of conflicts
of laws.
4.6 If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule, or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties have executed this Agreement by a duly
authorized representative of the parties hereto.
LMCG Funds
By:
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Name:
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Title:
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FUNDS DISTRIBUTOR, INC.
By:
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Name:
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Title:
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SCHEDULE A
LMCG Funds
Series Classes
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LMCG Small Cap Growth Fund A Shares
LMCG Mid Cap Growth Fund A Shares
LMCG Small Cap Tax-Sensitive Fund A Shares
LMCG Technology Fund A Shares
LMCG Internet Fund A Shares
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