HERITAGE SERIES TRUST
DISTRIBUTION AGREEMENT
This Distribution Agreement is made this 29th day of March,.
1933, by and between Heritage Series Trust, a Massachusetts business trust
(the "Trust"), and Xxxxxxx Xxxxx & Associates, Inc. ("Xxxxxxx Xxxxx" or
the "Distributor"), a Florida corporation.
WHEREAS, the Trust is registered as an open-end, diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and has registered and intends to register its
shares of beneficial interest (the "Shares") for sale to the public under
the Securities Act of 1933, as amended (the "1933 Act"), and various state
securities laws; and
WHEREAS, the Trust intends to offer for public sale one or more
distinct series of shares of beneficial interest, each corresponding to a
distinct portfolio ("Portfolio"); and
WHEREAS, the Trust wishes to retain Xxxxxxx Xxxxx as the Trust's
Distributor in connection with the offering and sale of the Shares of each
Portfolio and to furnish certain other services to the Trust as specified
in this Agreement; and
WHEREAS, this Agreement has been approved by a vote of the Board
of Trustees of the Trust and certain disinterested trustees in conformity
with Paragraph (b)(2) of Rule 12b-1 under the 1940 Act; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Distributor and to
furnish such services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as
follows:
1. Appointment of Distributor. The Trust hereby appoints
Xxxxxxx Xxxxx as Distributor in connection with the offering and sale of
the Shares. The Trust authorizes Xxxxxxx Xxxxx as exclusive agent for the
Trust, subject to applicable federal and state law and the Declaration of
Trust, By-Laws and current Prospectus and Statement of Additional
Information of the Trust: (a) to promote the Portfolios; (b) to solicit
orders for the purchase of the Shares of the Portfolios subject to such
terms and conditions as the Trust may specify; and (c) to hold itself
available to receive orders for the purchase of the Shares of the
Portfolios and to accept such orders on behalf of the Trust as of the time
of receipt of such orders and promptly transmit such orders as are
accepted to the Trust and its transfer agent. Purchase orders shall be
deemed effective at the time and in the manner set forth in the
Registration Statement. Xxxxxxx Xxxxx shall offer the Shares of each
Portfolio on an agency or "best efforts" basis under which the Trust shall
only issue such Shares as are actually sold. In connection with such
sales and offers of sales, the Distributor shall give only such
information as is permitted by applicable law, and the Trust shall not be
responsible in any way for any other information, statements or
representations given or made by the Distributor or its representatives,
or agents. The Trust reserves the right at any time to withdraw all
offerings of the Shares of any or all Portfolios by written notice to the
Distributor at its principal office.
2. Trust Obligations. The Trust shall keep the Distributor fully
informed of its affairs and shall make available to Distributor copies of
all information, financial statements, and other papers which Distributor
may reasonably request for use in connection with the distribution of
shares, including, without limitation, certified copies of any financial
statements prepared for the Trust by its independent public accountant and
such reasonable number of copies of the most current prospectus, statement
of additional information, and annual and interim reports of a Portfolio
as the Distributor may request, and the Trust shall cooperate fully in the
efforts of the Distributor to sell and arrange for the sale of the Shares
and in the performance of the Distributor under this Agreement.
3. Sales to Dealers. The Distributor, at its discretion,
may enter into agreements to sell shares to such registered and qualified
retail dealers, as it may select.
4. Public Offering Price. The public offering price of the
Shares of each Portfolio shall be the net asset value per share (as
determined by the Trust) of the outstanding Shares of the Portfolio plus
any applicable sales charge as set forth in the then effective
Registration Statement of the Trust. The Trust shall furnish (or arrange
for another person to furnish) the Distributor with a quotation of public
offering price on each business day.
5. Compensation. As compensation for providing services
under this contract the Distributor shall retain the sales charge, if any,
on purchases of Shares as set forth in the Registration Statement. The
Distributor is authorized to collect the gross proceeds derived from the
sale of the Shares, remit the net asset value thereof to the Trust upon
receipt of the proceeds and retain the sales charge, if any. The
Distributor may reallow any or all of such sales charges to such dealers
as it may from time to time determine. Whether a sales charge shall be
retained by the Distributor shall be determined in accordance with the
Registration Statement. The Distributor also shall receive from each
Portfolio distribution and/or service fees at the rate and under the terms
and conditions of the Distribution Plan ("Plan") adopted by the Trust with
respect to such Portfolio, as such Plan is in effect from time to time,
and subject to any further limitations on such fee as the Board of
Trustees may impose.
6. Distributor's Expenses. Xxxxxxx Xxxxx shall finance
activity which is intended to result in the sale and retention of Shares
of each Portfolio including, but not limited to, compensation paid to
registered representatives of the Distributor and to participating dealers
which have entered into sales agreements with the Distributor,
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advertising, salaries and other expenses of the Distributor relating to
selling or servicing efforts, expenses of organizing and conducting sale
seminars, printing of Prospectuses, Statements of Additional Information
and reports for other than existing shareholders, preparation and
distribution of advertising material and sales literature and other sales
promotion expenses. Except as specifically provided in this Agreement,
the Trust and the Portfolios shall bear none of the expenses of Xxxxxxx
Xxxxx in connection with its offer and sale of the Shares.
7. Trust Expenses. The Trust agrees, at its own expense, to
register the Shares with the Securities and Exchange Commission, state and
other regulatory bodies, and to prepare and file from time to time such
Prospectuses, Statements of Additional Information, amendments, reports
and other documents as may be necessary to maintain the Registration
Statement. Each Portfolio shall bear all expenses related to preparing
and typesetting such Prospectuses, Statements of Additional Information
and other materials required by law and such other expenses, including
printing and mailing expenses, related to the Portfolio's communications
with persons who are shareholders of that Portfolio.
8. Indemnification By the Trust. The Trust agrees to
indemnify, defend and hold harmless Xxxxxxx Xxxxx, its several offices and
directors, and any person who controls Xxxxxxx Xxxxx within the meaning of
Section 15 of the 1933 Act from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending
such claims, demands or liabilities and any counsel fees incurred in
connection therewith) which Xxxxxxx Xxxxx, its offices or trustees, or any
such controlling person may incur under the 1933 Act or under common law
or otherwise arising out of or based upon any alleged untrue statement of
a material fact contained in the Registration Statement, Prospectus or
Statement of Additional Information or arising out of or based upon any
alleged omission to state a material fact required to be stated in either
thereof or necessary to make the statements in either thereof not
misleading, provided that in no event shall anything contained in this
Agreement be construed so as to protect Xxxxxxx Xxxxx against any
liability to the Trust or its shareholders to which Xxxxxxx Xxxxx 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.
9. Indemnification by Xxxxxxx Xxxxx. Xxxxxxx Xxxxx agrees
to indemnify, defend and hold harmless the Trust and its Portfolios, its
several officers and trustees, any person who controls the Trust within
the meaning of Section 15 of the 1933 Act from and against any and all
claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Trust, its
offices or trustees, or any such controlling person may incur under the
1933 Act or under common law or otherwise arising out of or based upon any
alleged untrue statement of a material fact contained in information
furnished in writing by Xxxxxxx Xxxxx to the Trust for use in the
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Registration Statement, Prospectus or Statement of Additional Information
or arising out of or based upon any alleged omission to state a material
fact in connection with such information required to be stated in the
Registration Statement or Prospectus or necessary to make such information
not misleading.
10. Share Certificates. The Trust shall not issue
certificates representing Shares unless requested by a shareholder. If
such request is transmitted through Xxxxxxx Xxxxx, the Trust will cause
certificates evidencing the Shares owned to be issued in such names and
denominations as Xxxxxxx Xxxxx shall from time to time direct.
11. Repurchase of Shares. Xxxxxxx Xxxxx at its sole
discretion may repurchase Shares offered for sale by the shareholders.
Repurchase of Shares of any Portfolio by Xxxxxxx Xxxxx shall be at the net
asset value of the applicable Portfolio next determined after a repurchase
order has been received. Xxxxxxx Xxxxx will receive no commission or
other remuneration for repurchasing Shares. On each business day, Xxxxxxx
Xxxxx shall notify by telex or in writing the Trust and the Trust's
transfer agent of the orders for repurchase of shares received by Xxxxxxx
Xxxxx since the last such report, the amount to be paid for such Shares,
and the identity of shareholders offering Shares for repurchase. Upon
such notice, the Trust shall pay Xxxxxxx Xxxxx such amounts as are
required by Xxxxxxx Xxxxx for the repurchase of such shares in cash or in
the form of a credit against moneys due the Trust from Xxxxxxx Xxxxx as
proceeds from the sale of Shares. The Trust reserves the right to suspend
such purchases with respect to any or all Portfolios upon written notice
to Xxxxxxx Xxxxx. Xxxxxxx Xxxxx further agrees to act as agent for the
Trust to receive and transmit promptly to the Trust's transfer agent
shareholder requests for redemption of Shares.
12. Status of Distributor. Xxxxxxx Xxxxx is an independent
contractor and shall be agent for the Trust only with respect to the sale
and repurchase of the Shares.
13. Non-Exclusive Services. The services of Xxxxxxx Xxxxx
to the Trust under this Agreement are not to be deemed exclusive, and the
Distributor shall be free to render similar services or other services to
others so long as its services hereunder are not impaired thereby.
14. Reports of the Distributor. Xxxxxxx Xxxxx shall prepare
reports for the Board of Trustees upon request showing information
concerning expenditures related to this Agreement as from time to time
shall be reasonably requested by the Board.
15. Definitions. As used in this Agreement, the term
"Registration Statement" shall mean the Registration Statement most
recently filed by the Trust with the Securities and Exchange Commission
and effective under the 1933 Act, as such Registration Statement is
amended by any amendments thereto at the time in effect, and the terms
"Prospectus" and "Statement of Additional Information" shall mean the
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current form of Prospectus(es) and Statement(s) of Additional Information
filed by the Trust as part of the Registration Statement. Additionally,
the term "net asset value" shall have the meaning ascribed to it in the
Trust's Declaration of Trust; and the terms "assignment," "interested
person," and "majority of the outstanding voting securities" shall have
the meanings given to them by Section 2(a) of the 1940 Act, subject to
such exemptions as may be granted by the Securities and Exchange
Commission by any rule, regulation or order.
16. Effectiveness of Agreement. This Agreement shall become
effective upon the date hereabove written, provided that, with respect to
a Portfolio, this Agreement shall not take effect unless such action has
first been approved by vote of a majority of the Board of Trustees and by
vote of a majority of those trustees who are not interested persons of the
Trust and have no direct or indirect financial interest in the operation
of the Plan or in any agreements related thereto (all such trustees
collectively being referred to herein as the "Independent Trustees"), cast
in person at a meeting called for the purpose of voting on such action.
17. Termination of Agreement. Unless sooner terminated as
provided herein, this Agreement shall continue in effect for one year from
the above written date. Thereafter, if not terminated, this Agreement
shall continue automatically for successive periods of twelve months each,
provided that such continuance is specifically approved at least annually
(a) by a vote of a majority of the Independent Trustees, cast in person at
a meeting called for the purpose of voting on such approval, and (b) by
the Board of Trustees or with respect to any given series by vote of a
majority of the outstanding voting securities of such Portfolio.
Notwithstanding the foregoing, with respect to any Portfolio, this
Agreement may be terminated at any time, without the payment of any
penalty, by vote of the Board of Trustees, by vote of a majority of the
Independent Trustees or by vote of a majority of the outstanding voting
securities of such Portfolio on 60 days' written notice to the Distributor
or by the Distributor at any time, without the payment of any penalty, on
60 days' written notice to the Trust or such Portfolio. Termination of
this Agreement with respect to any given Portfolio shall in no way affect
the continued validity of this Agreement or the performance thereunder
with respect to any other Portfolio. This Agreement automatically will
terminate in the event of its assignment.
18. Amendments. 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 enforcement of the
change, waiver, discharge or termination is sought.
19. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Florida, without giving effect to
the conflicts of laws principles thereof, and the 1940 Act. To the extend
that the applicable laws of the State of Florida conflict with the
applicable provisions of the 1940 Act, however, the latter shall control.
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20. Notice. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient upon receipt in
writing at the other party's principal offices.
21. Miscellaneous. The captions in this Agreement are
included for convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their construction or
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their officers thereunto duly authorized.
Attest: HERITAGE SERIES TRUST
By: ________________________ By:_____________________________
Attest: XXXXXXX XXXXX & ASSOCIATES, INC.
By: ________________________ By:_____________________________
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