Exhibit (e)
AMENDED AND RESTATED
DISTRIBUTION CONTRACT
Edgewood Services, Inc.
Clearing Operations
P.O. Box 897
Pittsburgh, Pennsylvania 15230-0897
Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Excelsior Funds, Inc. (the "Company"), a Maryland
corporation, has agreed that Edgewood Services, Inc. (the "Distributor"), a
subsidiary of Federated Investors ("Federated"), shall be, for the period of
this Contract, a distributor of shares (the "Shares") of the Company's Common
Stock of one or more classes and series representing interests in the Company's
investment portfolios (individually, a "Fund," collectively, "Funds"), as
described and set forth on one or more exhibits to this Contract. In the event
that the Company establishes one or more additional investment portfolios other
than the Funds with respect to which it decides to retain the Distributor to act
as a distributor hereunder, the Company shall so notify the Distributor in
writing. If the Distributor is willing to render such services to a new
investment portfolio, it will notify the Company in writing whereupon such
investment portfolio will become a Fund under this Contract.
1. Services as Distributor.
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1.1 The Distributor will act as agent for the distribution of Shares in
accordance with the instructions of the Company's Board of Directors and the
Company's registration statement and prospectuses then in effect under the
Securities Act of 1933, as amended, and will transmit promptly any orders
received by it for the purchase or redemption of Shares to the Company's
transfer agent or to any qualified broker/dealer for transmittal to said agent.
1.2 The Distributor agrees to use its best efforts to solicit orders
for the sale of Shares and will undertake such advertising and promotion as it
believes appropriate in connection with such solicitation. The Company
understands that the Distributor may in the future be the distributor of shares
of other investment company portfolios ("Portfolios") including Portfolios
having investment objectives similar to those of the Funds. The Company further
understands that existing and future investors in the Funds may invest in shares
of such other Portfolios. The Company agrees that the Distributor's duties to
such Portfolios shall not be deemed in conflict with its duties to the Company
under this Paragraph 1.2.
1.3 Except to the extent that any plan adopted by the Company pursuant
to Rule 12b-1 under the Investment Company Act of 1940 provides otherwise, the
Distributor shall, at its own expense, finance such activities as it deems
reasonable and which are primarily intended to result in the sale of Shares,
including, but not limited to, advertising, compensation of underwriters,
dealers and sales personnel, the printing and mailing of prospectuses to other
than current shareholders, and the printing and mailing of sales literature. In
addition, the
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Distributor will provide one or more persons, during normal business hours, to
respond to telephone questions with respect to the Funds. It is contemplated
that the Distributor will enter into selling agreements with qualified
broker/dealers and other persons with respect to the offering of Shares to the
public, and in so doing will act only on its own behalf as principal.
1.4 All Shares offered for sale by the Distributor shall be offered for
sale to the public at a price per share (the "offering price") equal to (a)
their net asset value (determined in the manner set forth in the Company's
charter documents and the then current prospectus) plus, except to those classes
of persons or transactions described in the then current Prospectus, (b) a sales
charge which shall be the percentage of the offering price of such Shares as set
forth in the Company's then current prospectus. The offering price, if not an
exact multiple of one cent, shall be adjusted to the nearest cent. Concessions
by the Distributor to broker/dealers and other persons shall be set forth in
either the selling agreements between the Distributor and such broker/dealers
and persons, as from time to time amended, or if such concessions are described
in the Company's then current prospectus, shall be as so set forth. No
broker/dealer or other person who enters into a selling agreement with the
Distributor shall be authorized to act as agent for the Company in connection
with the offering or sale of the Shares to the public or otherwise.
1.5 If any Shares sold by the Company are redeemed or repurchased by
the Company or by the Distributor as agent or are tendered for redemption within
seven business days after the date of confirmation of the original purchase of
said Shares, the Distributor shall forfeit the amount above the net asset value
received by the Distributor in respect of such Shares, provided that the
portion, if any, of such amount re-allowed by the Distributor to broker/dealers
or other persons shall be repayable to the Company only to the extent recovered
by the Distributor from the broker/dealer or other person involved. The
Distributor shall include in each selling agreement with such broker dealers and
other persons a corresponding provision for the forfeiture by them of their
concession with respect to Shares sold by them or their principals and redeemed
or repurchased by the Company or by the Distributor as agent (or tendered for
redemption) within seven business days after the date of confirmation of such
initial purchases.
1.6 All activities by the Distributor and its agents and employees as
distributor of Shares shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations made or
adopted pursuant to the Investment Company Act of 1940 by the Securities and
Exchange Commission or any securities association registered under the
Securities Exchange Act of 1934.
1.7 The Distributor represents and warrants that it is a financial
institution required to have an anti-money laundering program that satisfies the
requirements of Title III of the US PATRIOT ACT and applicable anti-money
laundering regulations ("Applicable Law"), and that: (i) it is acting on behalf
of its customers in its dealings with the Company; (ii) it has established and
will maintain policies and procedures reasonably designed to comply with
Applicable Law. Without limiting the generality of the foregoing, the
Distributor agrees that it will comply with Applicable Law with respect to its
customers who own shares of a Fund, in accordance with the requirements of
Applicable Law: (i) take all legally required steps to identify and verify all
customers for whom it acts in dealings with the Company and retain all required
customer identification and verification records; (ii) monitor the transactions
of the customers for whom it acts in dealings with the Company in order to
detect and, where
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appropriate, report suspicious activities; (iii) perform special due diligence
for specific types of accounts (such as correspondent accounts for foreign
financial institutions and personal banking accounts for foreign persons) as is
(or is in the future) required by applicable law or regulation; and (iv) comply
with all applicable laws and regulations regarding the reporting of cash
transactions. In addition, the Distributor represents, warrants and agrees that
it will be responsible for (i) screening any financial intermediaries that it
enters into agreements with in connection with the distribution or servicing of
Company shares, to the extent that such intermediaries are considered to be
"customers" of the Company or Distributor under applicable customer
identification regulations, and (ii) obtaining representations from such
financial intermediaries that they have established and will maintain an
anti-money laundering program that is compliant with Applicable Law and that
they will agree to comply with Applicable Law with respect to their customers
who own Company shares.
1.8 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind, the Company's officers may decline to accept any orders for or make any
sales of Shares until such time as those officers deem it advisable to accept
such orders and to make such sales.
1.9 The Company agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the qualification of
Shares for sale in such states as the Company may approve, and the Company shall
pay all fees and other expenses incurred in connection with such qualification.
The Distributor agrees to pay all expenses related to its own qualification as a
broker or dealer required by any federal or state law or self-regulatory
organization and, except as otherwise specifically provided in this Contract,
all other expenses incurred by the Distributor in connection with the offering
of Shares as contemplated by this Contract.
1.10 The Company shall timely furnish from time to time, for use in
connection with the sale of Shares, such information with respect to the Funds
and Shares as the Distributor may reasonably request; and the Company warrants
that the statements contained in any such information shall fairly show or
represent what they purport to show or represent. The Company shall also furnish
the Distributor upon request with: (a) audited annual and unaudited semi-annual
statements of the Company's books and accounts with respect to each Fund, and
(b) from time to time such additional information regarding the Funds' financial
condition as the Distributor may reasonably request.
1.11 The Company represents to the Distributor that all registration
statements and prospectuses filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, with respect
to Shares have been prepared in conformity with the requirements of said Act and
rules and regulations of the Securities and Exchange Commission thereunder. As
used in this Contract, the terms "registration statement" and "prospectus" shall
mean any registration statement, prospectus (together with the related statement
of additional information) filed with respect to Shares with the Securities and
Exchange Commission, and any amendments and supplements thereto which at any
time shall have been filed with said Commission. The Company represents and
warrants to the Distributor that any registration statement and prospectus, when
such become effective, will contain all statements required to be stated therein
in conformity with said Act and the rules and regulations
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of said Commission; that all statements of fact contained in any such
registration statement and prospectus will be true and correct when such
registration statement and prospectus become effective; and that neither any
registration statement nor any prospectus, when they become 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 to a purchaser of Shares. The Company 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 which, in the
light of future developments, may, in the opinion of the Company's counsel, be
necessary or advisable. The Company shall promptly notify the Distributor of any
advice given to it by the Company's counsel regarding the necessity or
advisability so to amend or supplement such registration statement or
prospectus. If the Company shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt by the Company of a
written request from the Distributor to do so, the Distributor may, at its
option, terminate this Contract. The Company shall not file any amendment to any
registration statement or supplement to any prospectus without giving the
Distributor reasonable notice thereof in advance; provided, however, that
nothing contained in this Contract shall in any way limit the Company's right to
file at any time such amendments to any registration statements and/or
supplements to any prospectus, of whatever character, as the Company may deem
advisable, such right being in all respects absolute and unconditional.
1.12 The Company authorizes the Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of Shares. The Company agrees to indemnify, defend and hold the Distributor, its
several officers and directors, and any person who controls the Distributor
within the meaning of Section 15 of the Securities Act of 1933, as amended, free
and harmless from and against any and all claims, demands, liabilities and
reasonable expenses (as those expenses are incurred) (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which the Distributor, its officers and
directors, or any such controlling person may incur under the Securities Act of
1933, as amended, or under common law or otherwise, arising out of or based upon
any untrue statement, or alleged untrue statement, of a material fact contained
in any registration statement or any prospectus 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 or prospectus or necessary to make any
statement in such documents not misleading; provided, however, that the
Company's agreement to indemnify the Distributor, its officers or directors, and
any such controlling person shall not be deemed to cover any claims, demands,
liabilities or expenses arising out of any untrue statement or alleged untrue
statement or omission or alleged omission made in any registration statement or
prospectus or in any financial or other statements in reliance upon and in
conformity with any information furnished to the Company by the Distributor and
used in the preparation thereof; and further provided that the Company's
agreement to indemnify the Distributor and the Company's representations and
warranties herein set forth shall not be deemed to cover any liability to the
Company or its shareholders to which the Distributor would otherwise be subject
by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of the Distributor's reckless disregard
of its obligations and duties under this Contract. The Company's agreement to
indemnify the Distributor, its officers and directors, and any such controlling
person, as aforesaid, is expressly conditioned upon the Company's being notified
of any action brought against the Distributor, its officers or directors, or any
such controlling person, such notification to be given by letter or by
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telegram addressed to the Company at its principal office in Boston,
Massachusetts and sent to the Company by the person against whom such action is
brought within 20 days after the summons or other first legal process shall have
been served. The failure to so notify the Company of any such action shall not
relieve the Company from any liability which the Company may have to the person
against whom such action is brought by reason of any such untrue, or allegedly
untrue, statement or omission, or alleged omission, otherwise than on account of
the Company's indemnity agreement contained in this paragraph 1.12. The Company
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 Company and approved by the
Distributor, which approval shall not unreasonably be withheld. In the event the
Company elects to assume the defense of any such suit and retain counsel of good
standing approved by the Distributor, 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 Company does not elect to assume the defense of any such
suit, or in case the Distributor reasonably does not approve of counsel chosen
by the Company, the Company will reimburse the Distributor, 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
the Distributor or them. The Company's indemnification agreement contained in
this paragraph 1.12 and the Company's representations and warranties in this
Contract shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Distributor, its officers and
directors, or any controlling person and shall survive the delivery of any
Shares. This agreement of indemnity will inure exclusively to the Distributor's
benefit, to the benefit of its several officers and directors, and their
respective estates, and to the benefit of the controlling persons and their
successors. The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against the Company or any of its
officers or directors in connection with the issue and sale of any Shares.
1.13 The Distributor agrees to indemnify, defend and hold the Company,
its several officers and directors, and any person who controls the Company
within the meaning of Section 15 of the Securities Act of 1933, as amended, free
and harmless from and against any and all claims, demands, liabilities and
reasonable expenses (as those expenses are incurred) (including the costs of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which the Company, its officers or
directors or any such controlling person may incur under the Securities Act of
1933, as amended, or under common law or otherwise, but only to the extent that
such liability or expense incurred by the Company, its officers or directors, or
such controlling person resulting from such claims or demands, shall arise out
of or be based upon any untrue, or alleged untrue, statement of a material fact
contained in information furnished by the Distributor to the Company or its
counsel and used in the Company's registration statement or corresponding
statement made in the prospectus, 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 by the Distributor to the Company or its counsel required
to be stated in such answers or necessary to make such information not
misleading. The Distributor's agreement to indemnify the Company, its officers
and directors, and any such controlling person, as aforesaid, is expressly
conditioned upon the Distributor being notified of any action brought against
the Company, its officers or directors, or any such controlling person, such
notification to be given by letter or telegram addressed to the Distributor at
its principal office in Pittsburgh, Pennsylvania and sent to the Distributor by
the person against
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whom such action is brought, within 20 days after the summons or other first
legal process shall have been served. The failure to so notify the Distributor
of any such action shall not relieve the Distributor from any liability which
the Distributor may have to the Company, its officers or directors, 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 the Distributor's
indemnity agreement contained in this paragraph 1.13. The Distributor shall have
the right to control the defense of such action, with counsel of its own
choosing, satisfactory to the Company, if such action is based solely upon such
alleged misstatement or omission on the Distributor's part, and in any other
event the Company, its officers or directors or such controlling person shall
each have the right to participate in the defense or preparation of the defense
of any such action. In the event the Distributor elects to assume the defense of
any such suit and retain counsel of good standing approved by the Company, 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 Distributor does not
elect to assume the defense of any such suit, or in case the Company reasonably
does not approve of counsel chosen by the Distributor, the Distributor will
reimburse the Company, 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 the Company or them. The Distributor's
indemnification agreement contained in this paragraph 1.13 and the Distributor's
representations and warranties in this Contract shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Company, its officers and directors, or any controlling person and shall
survive the delivery of any Shares. This agreement of indemnity will inure
exclusively to the Company's benefit, to the benefit of its several officers and
directors, and their respective estates, and to the benefit of the controlling
persons and their successors. The Distributor agrees promptly to notify the
Company of the commencement of any litigation or proceedings against the
Distributor or any of its officers or directors in connection with the issue and
sale of any Shares.
1.14 No Shares shall be offered by either the Distributor or the
Company under any of the provisions of this Contract and no orders for the
purchase or sale of Shares hereunder shall be accepted by the Company if and so
long as effectiveness of the registration statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of
the Securities Act of 1933, as amended, or if and so long as a current
prospectus, as required by Section 10(b) of said Act, as amended, is not on file
with the Securities and Exchange Commission; provided, however, that nothing
contained in this paragraph 1.14 shall in any way restrict or have any
application to or bearing upon the Company's obligation to repurchase Shares
from any shareholder in accordance with the provisions of the Company's
prospectus or charter documents.
1.15 The Company agrees to advise the Distributor as soon as reasonably
practical:
(a) of any request by the Securities and Exchange Commission for
amendments to the registration statement or prospectus then in effect;
(b) in the event of the issuance by the Securities and Exchange
Commission of any stop order suspending the effectiveness of the
registration
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statement or prospectus then in effect or the initiation of any
proceeding for that purpose;
(c) of the happening of any event that 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 Securities and Exchange Commission with
respect to any amendment to any registration statement or prospectus
which may from time to time be filed with the Securities and Exchange
Commission.
For purposes of this section, informal requests by or acts of the
Staff of the Securities and Exchange Commission shall not be deemed actions of
or requests by the Securities and Exchange Commission.
1.16 The Distributor agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of the Company all records
and other information relative to the Funds and its prior, present or potential
shareholders, and not to use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Company, which approval
shall not be unreasonably withheld and may not be withheld where the Distributor
may be exposed to civil or criminal contempt proceedings for failure to comply,
when requested to divulge such information by duly constituted authorities, or
when so requested by the Company.
2. Term.
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This Contract, as amended, shall become effective on August 1, 2003
and, unless sooner terminated as provided herein, shall continue until July 31,
2004, and thereafter shall continue automatically with respect to each Fund for
successive annual periods ending on July 31 of each year, provided such
continuance is specifically approved at least annually by (i) the Company's
Board of Directors or (ii) by a vote of a majority (as defined in the Investment
Company Act of 1940) of the outstanding voting securities of the Fund, and
provided that in either event the continuance is also approved by the majority
of the Company's directors who are not parties to this Contract or interested
persons (as defined in the Investment Company Act 1940) of any such party, by
vote cast in person at a meeting called for the purpose of voting on such
approval. This Contract is not assignable and is terminable with respect to each
Fund, without penalty, on not less than forty-five days' notice by the Company's
Board of Directors or by vote of a majority (as defined in the Investment
Company Act 1940) of the outstanding voting securities of such Fund, or, on not
less than ninety days' notice, by the Distributor. This Contract will terminate
automatically in the event of its "assignment" (as defined in the Investment
Company Act 1940). The parties agree that an assignment includes the transfer of
"control" of more than 25% of the outstanding voting securities of the
Distributor to a company that is not a subsidiary of Federated.
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3. Miscellaneous.
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3.1 No provision of this Contract 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. This Contract may be executed in one or more counterparts and all such
counterparts will constitute one and the same instrument.
3.2 This Contract shall be governed by the laws of the Commonwealth of
Pennsylvania.
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
Yours very truly,
EXCELSIOR FUNDS, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President and Assistant Treasurer
Accepted:
EDGEWOOD SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: President
As amended and restated on August 1, 2003.
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Exhibit A to the
(Amended on July 30, 2004)
Amended and Restated
Distribution Contract
EXCELSIOR FUNDS, INC.
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Money Fund
Government Money Fund
Treasury Money Fund
Short-Term Government Securities Fund
Intermediate-Term Managed Income Fund
Managed Income Fund
Blended Equity Fund
Energy and Natural Resources Fund
Value and Restructuring Fund
Small Cap Fund
International Fund
Pacific/Asia Fund
Large Cap Growth Fund
Real Estate Fund
Emerging Markets Fund
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