EXHIBIT 2(h)(2)
FIRST AMENDED AND RESTATED
MASTER DISTRIBUTION AGREEMENT
BETWEEN
AIM FLOATING RATE FUND
AND
A I M DISTRIBUTORS, INC.
(APPLICABLE TO CLASS B SHARES)
THIS AGREEMENT made this 31st day of December, 2000, by and between AIM
Floating Rate Fund , a Delaware business trust (the "Company"), with respect to
its Class B shares of beneficial interest (the "Shares"), and A I M
DISTRIBUTORS, INC., a Delaware corporation (the "Distributor"). For purposes of
this Agreement, payments made by the Company to Distributor under a Distribution
Plan adopted pursuant to an Exemptive Order from the Securities and Exchange
Commission will be considered and referred to as payments made under a
distribution plan adopted by the Company pursuant to Rule 12b-1 under the
Investment Company Act of 1940 (the "1940 Act"). Also for purposes of this
Agreement, Early Withdrawal Charges applicable to the Shares shall be referred
to as contingent deferred sales charges.
WITNESSETH:
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:
FIRST: The Company hereby appoints the Distributor as its exclusive
agent for the sale of the Shares to the public directly and through investment
dealers in the United States and throughout the world. If subsequent to the
termination of the Distributor's services to the Company pursuant to this
Agreement, the Company retains the services of another distributor, the
distribution agreement with such distributor shall contain provisions comparable
to Clauses FOURTH and SEVENTH hereof and Exhibit A hereto, and without limiting
the generality of the foregoing, will require such distributor to maintain and
make available to the Distributor records regarding sales, repurchases, and
reinvestments of Shares necessary to implement the terms of Clauses FOURTH,
SEVENTH and EIGHTH hereof.
SECOND: The Company shall not sell any Shares except through the
Distributor and under the terms and conditions set forth in paragraph FOURTH
below. Notwithstanding the provisions of the foregoing sentence, however:
(A) the Company may issue 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 Company may issue Shares at their net asset value in connection
with certain classes of transactions or to certain classes of persons, in
accordance with Rule 22d-1 under the 1940 Act, provided that any such class is
specified in the then current prospectus of the applicable Shares; and
(C) the Company shall have the right to specify minimum amounts for
initial and subsequent orders for the purchase of Shares.
THIRD: The Distributor hereby accepts appointment as exclusive agent
for the sale of the Shares and agrees that it will use its best efforts to sell
such Shares; provided, however, that:
(A) the Distributor may, and when requested by the Company on behalf of
the Shares shall, suspend its efforts to effectuate such sales at any time when,
in the opinion of the Distributor or of the Company, no sales should be made
because of market or other economic considerations or abnormal circumstances of
any kind;
(B) the Company may withdraw the offering of the Shares (i) at any time
with the consent of the Distributor, 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
(C) the Distributor, as agent, does not undertake to sell any specific
amount of the Shares.
FOURTH:
(A) The public offering price of the Shares shall be the net asset
value per share of the applicable Shares. Net asset value per share shall be
determined in accordance with the provisions of the Company's then current
prospectus. The Distributor may establish a schedule of contingent deferred
sales charges to be imposed at the time of repurchase of the Shares, and such
schedule shall be disclosed in the current prospectus. Such schedule of
contingent deferred sales charges may reflect variations in or waivers of such
charges on repurchases of Shares, either generally to the public or to any
specified class of shareholders and/or in connection with any specified class of
transactions, in accordance with applicable rules and regulations and exemptive
relief granted by the Securities and Exchange Commission, and as set forth in
the Company's current prospectus. The Distributor and the Company shall apply
any then applicable scheduled variation in or waiver of contingent deferred
sales charges uniformly to all shareholders and/or all transactions belonging to
a specified class.
(B) The Distributor may pay to investment dealers and other financial
institutions through whom Shares are sold, such sales commission as the
Distributor may specify from time to time. Payment of any such sales commissions
shall be the sole obligation of the Distributor.
(C) No provision of this Agreement shall be deemed to prohibit any
payments by the Company to the Distributor or by the Company or the Distributor
to investment dealers, financial institutions and 401(k) plan service providers
where such payments are made under a distribution plan adopted by the Company
pursuant to Rule 12b-1 under the 1940 Act.
(D) The Company may repurchase the Shares from shareholders in
accordance with the terms set forth from time to time in the Company's current
prospectus. The price to be paid to a shareholder to repurchase the Shares shall
be equal to the net asset value of the Shares being repurchased ("gross
repurchase proceeds"), less any applicable contingent deferred sales charge,
calculated pursuant to the then applicable schedule of contingent deferred sales
charges ("net repurchase proceeds"). The Distributor shall be entitled to
receive the amount of the contingent deferred sales charge that has been
subtracted from gross
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repurchase proceeds (the "CDSC"), provided that the Shares being repurchased
were (i) issued by the Company during the term of this Agreement and any
predecessor Agreement between the Company and the Distributor or the Company's
predecessor, GT Global Floating Rate Fund, Inc. (the "Predecessor Company") and
Distributor or Distributor's predecessor, GT Global, Inc. ("GT Global"), or (ii)
issued by the Company during or after the term of this Agreement or any
predecessor Agreement between the Predecessor Company and the Distributor or GT
Global in one or a series of free exchanges of Shares for Class B shares of
another portfolio, which can be traced to Shares or Class B shares of another
portfolio initially issued by the Company or the Predecessor Company during the
term of this Agreement, any predecessor Agreement or any other distribution
agreement with the Distributor or GT Global with respect to such other portfolio
(the "Distributor's Earned CDSC"). The Company shall pay or cause the Company's
transfer agent to pay the Distributor's Earned CDSC to the Distributor on the
date net repurchase proceeds are payable to the tendering shareholder.
(E) The Distributor shall maintain adequate books and records to
identify Shares (i) issued by the Company during the term of this Agreement and
any predecessor Agreement between the Company or the Predecessor Company and the
Distributor or GT Global or (ii) issued by the Company during or after the term
of this Agreement or any predecessor Agreement between the Company or the
Predecessor Company and the Distributor or GT Global in one or a series of free
exchanges of Shares for Class B shares of another portfolio, which can be traced
to Shares or Class B shares of another portfolio initially issued by the Company
or such other portfolio during the term of this Agreement, any predecessor
Agreement or any other distribution agreement with the Distributor or GT Global
with respect to such other portfolio and shall calculate the Distributor's
Earned CDSC, if any, with respect to such Shares, upon their repurchase. The
Company shall be entitled to rely on Distributor's books, records and
calculations with respect to Distributor's Earned CDSC.
FIFTH: The Distributor shall act as an agent of the Company in
connection with the sale and repurchase of Shares. Except with respect to such
sales and repurchases, the Distributor shall act as principal in all matters
relating to the promotion of the sale of Shares and shall enter into all of its
own engagements, agreements and contracts as principal on its own account. The
Distributor shall enter into agreements with investment dealers and financial
institutions selected by the Distributor, authorizing such investment dealers
and financial institutions to offer and sell the Shares to the public upon the
terms and conditions set forth therein, which shall not be inconsistent with the
provisions of this Agreement. Each agreement shall provide that the investment
dealer or financial institution shall act as a principal, and not as an agent,
of the Company.
SIXTH: The Shares shall bear:
(A) the expenses of qualification of Shares for sale in connection with
such public offerings in such states as shall be selected by the Distributor,
and of continuing the qualification therein until the Distributor notifies the
Company that it does not wish such qualification continued; and
(B) all legal expenses in connection with the foregoing.
SEVENTH:
(A) The Distributor shall bear the expenses of printing from the final
proof and distributing the prospectuses and statements of additional information
for the Shares (including supplements thereto) relating to public offerings made
by the Company pursuant to such prospectuses (which shall not include those
prospectuses and statements of additional information, and supplements thereto,
to be distributed to
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existing shareholders of the Shares), and any other promotional or sales
literature used by the Distributor or furnished by the Distributor to dealers in
connection with such public offerings, and expenses of advertising in connection
with such public offerings.
(B) Subject to the limitations, if any, of applicable law including the
NASD Conduct Rules (formerly, the NASD Rules of Fair Practice) regarding
asset-based sales charges, the Company shall pay to the Distributor as a
reimbursement for all or a portion of such expenses, or as reasonable
compensation for distribution of the Shares, an asset-based sales charge in an
amount equal to 0.25% per annum of the average daily net asset value of the
Shares from time to time (the "Distributor's 12b-1 Share"), such sales charge to
be payable pursuant to the distribution plan adopted pursuant to Rule 12b-1
under the 1940 Act (the "Plan"). The Distributor's 12b-1 Share shall be a
percentage, which shall be recomputed periodically (but not less than monthly)
in accordance with Exhibit A to this Agreement. The Distributor's 12b-1 Share
shall accrue daily and be paid to the Distributor as soon as practicable after
the end of each calendar month within which it accrues but in any event within
10 business days after the end of each such calendar month (unless the
Distributor shall specify a later date in written instructions to the Company)
provided, however, that any notices and calculation required by Section EIGHTH:
(B) and (C) have been received by the Company.
(C) The Distributor shall maintain adequate books and records to permit
calculations periodically (but not less than monthly) of, and shall calculate on
a monthly basis, the Distributor's 12b-1 Share to be paid to the Distributor.
The Company shall be entitled to rely on Distributor's books, records and
calculations relating to Distributor's 12b-1 Share.
EIGHTH:
(A) The Distributor may, from time to time, assign, transfer or pledge
("Transfer") to one or more designees (each an "Assignee"), its rights to all or
a designated portion of (i) the Distributor's 12b-1 Share (but not the
Distributor's duties and obligations pursuant hereto or pursuant to the Plan),
and (ii) the Distributor's Earned CDSC, free and clear of any offsets or claims
the Company may have against the Distributor. Each such Assignee's ownership
interest in a Transfer of a designated portion of a Distributor's 12b-1 Share
and a Distributor's Earned CDSC is hereinafter referred to as an "Assignee's
12b-1 Portion" and an "Assignee's CDSC Portion," respectively. A Transfer
pursuant to this Section EIGHTH: (A) shall not reduce or extinguish any claim of
the Company against the Distributor.
(B) The Distributor shall promptly notify the Company in writing of
each Transfer pursuant to Section EIGHTH: (A) by providing the Company with the
name and address of each such Assignee.
(C) The Distributor may direct the Company to pay directly to an
Assignee such Assignee's 12b-1 Portion and Assignee's CDSC Portion. In such
event, Distributor shall provide the Company with a monthly calculation of (i)
the Distributor's Earned CDSC and Distributor's 12b-1 Share and (ii) each
Assignee's 12b-1 Portion and Assignee's CDSC Portion, if any, for such month
(the "Monthly Calculation"). The Monthly Calculation shall be provided to the
Company by the Distributor promptly after the close of each month or such other
time as agreed to by the Company and the Distributor which allows timely payment
of the Distributor's 12b-1 Share and Distributor's Earned CDSC and/or the
Assignee's 12b-1 Portion and Assignee's CDSC Portion. The Company shall not be
liable for any interest on such payments occasioned by delayed delivery of the
Monthly Calculation by the Distributor. In such event following receipt from the
Distributor of (i) notice of Transfer referred to in Section EIGHTH: (B) and
(ii) each Monthly Calculation, the Company shall make all payments directly to
the Assignee or Assignees in accordance with the information provided in such
notice and Monthly Calculation, on the
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same terms and conditions as if such payments were to be paid directly to the
Distributor. The Company shall be entitled to rely on Distributor's notices, and
Monthly Calculations in respect of amounts to be paid pursuant to this Section
EIGHTH: (B).
(D) Alternatively, in connection with a Transfer the Distributor may
direct the Company to pay all of such Distributor's 12b-1 Share and
Distributor's Earned CDSC from time to time to a depository or collection agent
designated by any Assignee, which depository or collection agent may be
delegated the duty of dividing such Distributor's 12b-1 Share and Distributor's
Earned CDSC between the Assignee's 12b-1 Portion and Assignee's CDSC Portion and
the balance of the Distributor's 12b-1 Share (such balance, when distributed to
the Distributor by the depository or collection agent, the "Distributor's 12b-1
Portion") and of the Distributor's Earned CDSC (such balance, when distributed
to the Distributor by the depository or collection agent, the "Distributor's
Earned CDSC Portion"), in which case only the Distributor's 12b-1 Portion and
Distributor's Earned CDSC Portion may be subject to offsets or claims the
Company may have against the Distributor.
(E) The Company shall not amend the Plan to reduce the amount payable
to the Distributor or any Assignee under Section SEVENTH: (B) hereof with
respect to the Shares for any Shares which have been issued prior to the date of
such amendment.
NINTH: The Distributor will accept orders for the purchase of Shares
only to the extent of purchase orders actually received and not in excess of
such orders, and it will not avail itself of any opportunity of making a profit
by expediting or withholding orders.
TENTH:
(A) Pursuant to the Plan and this Agreement, the Distributor, as agent,
shall enter into Shareholder Service Agreements with investment dealers
(including itself acting as principal), financial institutions and certain
401(K) plan service providers (collectively "Service Providers") selected by the
Distributor for the provision of certain continuing personal services to
customers of such Service Providers who have purchased Shares. Such agreements
shall authorize Service Providers to provide continuing personal shareholder
services to their customers upon the terms and conditions set forth therein,
which shall not be inconsistent with the provisions of this Agreement. Each
Shareholder Service Agreement shall provide that the Service Provider shall act
as principal, and not as an agent of the Company.
(B) Shareholder Service Agreements may provide that the Service
Providers may receive a service fee in the maximum amount of 0.25% of the
average daily net assets of the Shares held by customers of such Service
Providers provided that such Service Providers furnish continuing personal
shareholder services to their customers in respect of such Shares. The
continuing personal services to be rendered by Service Providers under the
Shareholder Service Agreements may include, but shall not be limited to, some or
all of the following: distributing sales literature; answering routine customer
inquiries concerning the Company; assisting customers in changing dividend
elections, options, account designations and addresses, and in enrolling in any
of several special investment plans offered in connection with the purchase of
Shares; assisting in the establishment and maintenance of or establishing and
maintaining customer accounts and records and the processing of purchase and
repurchase transactions; performing subaccounting; investing dividends and any
capital gains distributions automatically in the Company's shares; providing
periodic statements showing a customer's account balance and the integration of
such statements with those of other transactions and balances in the customer's
account serviced by the Service Provider; forwarding applicable prospectus,
proxy statements, reports and notices to customers who hold
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Shares and providing such other information and services as the Company or the
customers may reasonably request.
(C) The Distributor may advance service fees payable to Service
Providers pursuant to the Plan or any other distribution plan adopted by the
Company with respect to Shares of the Company pursuant to Rule 12b-1 under the
1940 Act; and thereafter the Distributor may be reimbursed for such advances
through retention of service fee payments during the period for which the
service fees were advanced.
ELEVENTH: The Company and the Distributor shall each comply with all
applicable provisions of the 1940 Act, the Securities Act of 1933, as amended,
and of all other federal and state laws, rules and regulations governing the
issuance and sale of the Shares.
TWELFTH:
(A) In the absence of willful misfeasance, bad faith, gross negligence
or reckless disregard of obligations or duties hereunder on the part of the
Distributor, the Company shall indemnify the Distributor against any and all
claims, demands, liabilities and expenses which the Distributor may incur under
the Securities Act of 1933, or common law or otherwise, arising out of or based
upon any alleged untrue statement of a material fact contained in any
registration statement or prospectus of the Shares, or any omission to state a
material fact therein, the omission of which makes any statement contained
therein misleading, unless such statement or omission was made in reliance upon,
and in conformity with, information furnished to the Company in connection
therewith by or on behalf of the Distributor. The Distributor shall indemnify
the Company and the Shares against any and all claims, demands, liabilities and
expenses which the Company or the Shares may incur arising out of or based upon
(i) any act or deed of the Distributor or its sales representatives which has
not been authorized by the Company in its prospectus or in this Agreement and
(ii) the Company's reliance on the Distributor's books, records, calculations
and notices in Sections FOURTH: (E), SEVENTH: (C), EIGHTH: (B), EIGHTH: (C) and
EIGHTH: (D).
(B) The Distributor shall indemnify the Company and the Shares against
any and all claims, demands, liabilities and expenses which the Company or the
Shares may incur under the Securities Act of 1933, as amended, or common law or
otherwise, arising out of or based upon any alleged untrue statement of a
material fact contained in any registration statement or prospectus of the
Shares, or any omission to state a material fact therein if such statement or
omission was made in reliance upon, and in conformity with, information
furnished to the Company in connection therewith by or on behalf of the
Distributor.
(C) Notwithstanding any other provision of this Agreement, the
Distributor shall not be liable for any errors of the transfer agent(s) of the
Shares, or for any failure of any such transfer agent to perform its duties.
THIRTEENTH: Nothing herein contained shall require the Company to take
any action contrary to any provision of its Agreement and Declaration of Trust,
as amended, or to any applicable statute or regulation.
FOURTEENTH: This Agreement shall become effective with respect to the
Shares upon its approval by the Board of Trustees of the Company and by vote of
a majority of the Company's trustees who are not interested parties to this
Agreement or "interested persons" (as defined in Section 2(a)(19) of the 0000
Xxx) of any party to this Agreement cast in person at a meeting called for such
purpose, shall continue in force and effect until June 30, 2001, and from year
to year thereafter, provided, that such
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continuance is specifically approved with respect to the Shares at least
annually (a)(i) by the Board of Trustees of the Company or (ii) by the vote of a
majority of the outstanding Shares of such class, and (b) by vote of a majority
of the Company's trustees who are not parties to this Agreement or "interested
persons" (as defined in Section 2(a)(19) of the 0000 Xxx) of any party to this
Agreement cast in person at a meeting called for such purpose.
FIFTEENTH:
(A) This Agreement may be terminated with respect to the Shares, at any
time, without the payment of any penalty, by vote of the Board of Trustees of
the Company or by vote of a majority of the outstanding Shares, or by the
Distributor, on sixty (60) days' written notice to the other party; and
(B) This Agreement shall also automatically terminate in the event of
its assignment, the term "assignment" having the meaning set forth in Section
2(a)(4) of the 1940 Act; provided, that, subject to the provisions of the
following sentence, if this Agreement is terminated for any reason, the
obligations of the Company and the Distributor pursuant to Sections FOURTH: (D),
FOURTH: (E), SEVENTH: (B), SEVENTH: (C), EIGHTH: (A) through (E) and TWELFTH:
(A) of this Agreement will continue and survive any such termination.
Notwithstanding the foregoing, upon Complete Termination of the Plan (as such
term is defined in Section 8 of the Plan in effect at the date of this
Agreement), the obligations of the Company pursuant to the terms of Sections
SEVENTH: (B), EIGHTH: (A), EIGHTH: (C), EIGHTH: (D) and EIGHTH: (E) (with
respect to payments of Distributor's 12b-1 Share and Assignee's 12b-1 Portion)
of this Agreement shall terminate. A termination of the Plan with respect to any
or all Shares shall not affect the obligations of the Company pursuant to
Sections FOURTH: (D), EIGHTH: (A), EIGHTH: (C), EIGHTH: (D) and EIGHTH: (E)
(with respect to payments of Distributor's Earned CDSC or Assignee's CDSC
Portion) hereof or of the obligations of the Distributor pursuant to Section
FOURTH: (E) or EIGHTH: (B) hereof.
(C) The Transfer of the Distributor's rights to Distributor's 12b-1
Share or Distributor's Earned CDSC shall not cause a termination of this
Agreement or be deemed to be an assignment for purposes of Section FIFTEENTH:
(B) above.
SIXTEENTH: Any notice under this Agreement shall be in writing,
addressed and delivered, or mailed postage prepaid, to the other party at such
address as the other party may designate for the receipt of notices. Until
further notice to the other party, the addresses of both the Company and the
Distributor shall be 00 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000-0000.
SEVENTEENTH: Notice is hereby given that, as provided by applicable
law, the obligations of or arising out of this Agreement are not binding upon
any of the shareholders of the Company individually, but are binding only upon
the assets and property of the Company and that the shareholders shall be
entitled, to the fullest extent permitted by applicable law, to the same
limitation on personal liability as stockholders of private corporations for
profit.
EIGHTEENTH: This Agreement shall be deemed to be a contract made in the
State of Delaware and governed by, construed in accordance with and enforced
pursuant to the internal laws of the State of Delaware without reference to its
conflicts of laws rules.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate on the day and year first above written.
AIM FLOATING RATE FUND
By: /s/ XXXXXX X. XXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
Attest:
/s/ XXXXXX X. XXXX
----------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
AIM DISTRIBUTORS, INC.
By: /s/ XXXXXXX X. XXXX
----------------------------
Name: Xxxxxxx X. Xxxx
Title: President
Attest:
/s/ XXXXXX X. XXXX
----------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
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EXHIBIT A
The Distributor's 12b-1 Share in respect of the Company shall be 100
percent until such time as the Distributor shall cease to serve as exclusive
distributor of the Shares of the Company and thereafter shall be a percentage,
recomputed first on the date of any termination of the Distributor's services as
exclusive distributor of Shares of the Company and thereafter periodically (but
not less than monthly), representing the percentage of Shares of the Company
outstanding on each such computation date allocated to the Distributor in
accordance with the following rules:
1. DEFINITIONS. For purposes of this Exhibit A defined terms used
herein shall have the meaning assigned to such terms in the Distribution
Agreement and the following terms shall have the following meanings:
"Commission Shares" shall mean shares of the Company
or another portfolio the redemption or repurchase of which would, in the absence
of the application of some standard waiver provision, give rise to the payment
of a CDSC and shall include Commission Shares which due to the expiration of the
CDSC period no longer bear a CDSC.
"Distributor" shall mean the Distributor and the
Distributor's predecessor, GT Global, Inc.
"Other Distributor" shall mean each person appointed
as the exclusive distributor for the Shares of the Company after the Distributor
ceases to serve in that capacity.
2. ALLOCATION RULES. In determining the Distributor's 12b-1 Share in
respect of the Company:
(a) There shall be allocated to the Distributor and each Other
Distributor all Commission Shares of the Company which were sold while
such Distributor or such Other Distributor, as the case may be, was the
exclusive distributor for the Shares of the Company, determined in
accordance with the transfer records maintained for the Company.
(b) Reinvested Shares: On the date that any Shares are issued
by the Company as a result of the reinvestment of dividends or other
distributions, whether ordinary income, capital gains or
exempt-interest dividend or distributions ("Reinvested Shares"),
Reinvested Shares shall be allocated to the Distributor and each Other
Distributor in a number obtained by multiplying the total number of
Reinvested Shares issued on such date by a fraction, the numerator of
which is the total number of all Shares outstanding in such Fund as of
the opening of business on such date and allocated to the Distributor
or Other Distributor as of such date of determination pursuant to these
allocation procedures and the denominator is the total number of Shares
outstanding as of the opening of business on such date.
(c) Exchange Shares: There shall be allocated to the
Distributor and each Other Distributor, as the case may be, all
Commission Shares of the Company which were issued during or after the
period referred to in (a) as a consequence of one or more free
exchanges of Commission Shares of the Company or of another portfolio
(other than Free Appreciation Shares) (the "Exchange Shares"), which in
accordance with the transfer records maintained for the Company
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can be traced to Commission Shares of the Company or another portfolio
initially issued by the Company or such other portfolio during the time
the Distributor or such Other Distributor, as the case may be, was the
exclusive distributor for the Shares of the Company or such other
portfolio.
(d) Free Appreciation Shares: Shares (other than Exchange
Shares) that were acquired by the holders of such Shares in a free
exchange of Shares of any other portfolio, which represent the
appreciated value of the Shares of the exiting portfolio over the
initial purchase price paid for the Shares being redeemed and exchanged
and for which the original purchase date and the original purchase
price are not identified on an on-going basis, shall be allocated to
the Distributor and each Other Distributor ("Free Appreciation Shares")
daily in a number obtained by multiplying the total number of Free
Appreciation Shares issued by the exiting portfolio on such date by a
fraction, the numerator of which is the total number of all Shares
outstanding as of the opening of business on such date allocated to the
Distributor or such Other Distributor as of such date of determination
pursuant to these allocation procedures and the denominator is the
total number of Shares outstanding as of the opening of business on
such date.
(e) Repurchased Shares: Shares (other than Reinvested Shares
and Free Appreciation Shares) that are repurchased will be allocated to
the Distributor and each Other Distributor to the extent such Share was
previously allocated to the Distributor or such Other Distributor in
accordance with the rules set forth in 2(a) or (c) above. Reinvested
Shares and Free Appreciation Shares that are repurchased will be
allocated to the Distributor and each Other Distributor daily in an
amount equal to the number of Free Appreciation Shares and Reinvested
Shares of the Company being repurchased on such date, which amount is
obtained by multiplying the total number of Free Appreciation Shares
and Reinvested Shares being repurchased by the Company on such date by
a fraction, the numerator of which is the total number of all Free
Appreciation Shares and Reinvested Shares of the Company outstanding as
of the opening of business on such date allocated to the Distributor or
to such Other Distributor as of such date of determination and the
denominator is the total number of Free Appreciation Shares and
Reinvested Shares of the Company outstanding as of the opening of
business on such date.
The Fund shall use its best efforts to assure that the transfer agents
and sub-transfer agents for the Company maintain the data necessary to implement
the foregoing rules. If, notwithstanding the foregoing, the transfer agents or
sub-transfer agents for the Company are unable to maintain the data necessary to
implement the foregoing rules as written, and if the Distributor shall cease to
serve as exclusive distributor of the Shares of the Company, the Distributor and
the Company agree to negotiate in good faith with each other, with the transfer
agents and sub-transfer agents for the Company and with any third party that has
obtained an interest in the Distributor's 12b-1 Share in respect of the Company
with a view to arriving at mutually satisfactory modifications to the foregoing
rules designed to accomplish substantially identical results on the basis of
data which can be made available.
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