DISTRIBUTION AGREEMENT
This Agreement, dated as of the 22nd day of January, 1997, made
by and between Beacon Global Advisors Trust (the "Trust"), a
corporation duly organized under the laws of the state of Delaware
and operating as a registered investment company under the Investment
Company Act of 1940, as amended (the "Act"); and Beacon Global
Advisors, Inc. ("Beacon"), a registered broker dealer existing as a
corporation duly organized and existing under the laws of Delaware
(together, the "Parties").
WITNESSETH THAT:
WHEREAS, the Trust is authorized by its Trust Instrument to
issue separate series of shares representing interests in separate
investment portfolios (the "Series"), which Series are identified on
Schedule "A" attached hereto, and which Schedule "A" may be amended
from time to time by mutual agreement among the Parties; and
WHEREAS, Beacon is a broker-dealer registered with the U.S.
Securities and Exchange Commission and a member in good standing of
the National Association of Securities Dealers, Inc. (the "NASD");
and
WHEREAS, the Parties are desirous of entering into an agreement
providing for the distribution by Beacon of the shares of the Trust
(the "Shares");
NOW, THEREFORE, in consideration of the promises and agreements
of the Parties contained herein and in exchange of good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. Appointment.
The Trust hereby appoints Beacon as its exclusive agent for the
distribution of the Shares in the fifty United States of
America, the District of Columbia and Puerto Rico, and Beacon
hereby accepts such appointment under the terms of this
Agreement. The Trust agrees that it will not sell any shares
to any person except to fill orders for the shares received
through Beacon; provided, however, that the foregoing exclusive
right shall not apply: (a) to shares issued or sold in
connection with the merger or consolidation of any other
investment company with the Trust or the acquisition by
purchase or otherwise of all or substantially all of the assets
of any investment company or substantially all of the
outstanding shares of any such company by the Trust; (b) to
shares which may be offered by the Trust to its stockholders
for reinvestment of cash distributed from capital gains or net
investment income of the Trust; or (c) shares that may be
purchased from the Trust's transfer agent in the manner set
forth in the Registration Statement; (d) to shares which may be
issued to shareholders of other funds who exercise any exchange
privilege set forth in the Trust's Prospectus. Notwithstanding
any other provision hereof, the Trust may terminate, suspend,
or withdraw the offering of the Shares whenever in its sole
discretion, it deems such action to be desirable.
2. Sale and Repurchase of Shares.
(a) Beacon is hereby granted the right as agent for the
Trust, to sell Shares to the public against orders
therefor at the public offering price (as defined in
sub-paragraph 2.(c) below).
(b) Beacon will also have the right to take, as agent
for the Trust, all actions which, in Beacon's
judgment, are necessary to carry into effect the
distribution of the Shares.
(c) The public offering price shall be the net asset
value of the Shares then in effect.
(d) The net asset value of the Shares shall be
determined in the manner provided in the then
current prospectus and statement of additional
information relating to the Shares and when
determined shall be applicable to all transactions
as provided in the prospectus. The net asset value
of the Shares shall be calculated by the Trust or
by another entity on behalf of the Trust. Beacon
shall have no duty to inquire into or liability for
the accuracy of the net asset value per Share as
calculated.
(e) On every sale, the Trust shall receive the
applicable net asset value of the Shares promptly.
(f) Upon receipt of purchase instructions, Beacon will
transmit such instructions to the Trust or its
transfer agent for registration of the Shares
purchased.
(g) Nothing in this Agreement shall prevent Beacon or
any affiliated person (as defined in the Act) of
Beacon from acting as underwriter or distributor
for any other person, firm or corporation
(including other investment companies) or in any
way limit or restrict Beacon or such affiliated
person from buying, selling or trading any
securities for its or their own account or for the
accounts of others for whom it or they may be
acting; provided, however, that Beacon expressly
agrees that it will not for its own account
purchase any shares of the Trust except for
investment purposes and that it will not for its
own account sell any such shares except by
redemption of such shares by the Trust, and that it
will not undertake in any activities which, in its
judgment, will adversely affect the performance of
its obligations to the Trust under this Agreement.
(h) Beacon may, but is not required to, repurchase
Shares at such prices and upon such terms and
conditions as shall be specified in the Prospectus.
3. Rules of Sale of Shares.
Beacon does not agree to sell any specific number of Shares.
Beacon, as Underwriter for the Trust, undertakes to sell Shares
on a best efforts basis and only against orders received
therefor.
The Trust reserves the right to terminate, suspend or withdraw
the sale of its Shares for any reason deemed adequate by it and
the Trust reserves the right to refuse at any time or times to
sell any of its Shares to any person for any reason deemed
adequate by it.
4. Rules of NASD.
(a) Beacon will conform to the Rules of Fair Practice
of the NASD and the securities laws of any
jurisdiction in which it directly or indirectly
sells any Shares.
(b) Beacon will require each dealer with whom Beacon
has a selling agreement to conform to the
applicable provisions of the Prospectus, with
respect to the public offering price of the Shares,
and Beacon shall not cause the Trust to withhold
the placing of purchase orders so as to make a
profit thereby.
(c) The Trust agrees to furnish to Beacon sufficient
copies of any and all: agreements, plans,
communications with the public or other materials
which the Trust or Beacon intends to use in
connection with any sales of Shares in adequate
time for Beacon to file and clear such materials
with the proper authorities before they are put in
use. Beacon and the Trust may agree that any such
material does not need to be filed subsequent to
distribution. In addition, the Trust agrees not to
use any such materials until so filed and cleared
for use by appropriate authorities as well as by
Beacon.
(d) Beacon, at its own expense, will qualify as a
dealer or broker, or otherwise, under all
applicable state or federal laws required in order
that the Shares may be sold in such states as may
be mutually agreed upon by the Parties.
(e) Beacon shall remain registered with the U.S.
Securities and Exchange Commission and a member of
the National Association of Securities Dealers for
the term of this Agreement.
(f) Beacon shall not, in connection with any sale or
solicitation of a sale of the Shares, make or
authorize any representative, Service Organization,
broker or dealer to make, any representations
concerning the Shares except those contained in the
Prospectus covering the Shares and in
communications with the public or sales materials
approved by Beacon as information supplemental to
such Prospectus. Copies of the Prospectus will be
supplied by the Trust to Beacon in reasonable
quantities upon request.
5. Compensation.
As compensation for its service and distribution activities
under this Agreement with respect to the Trust's shares, Beacon
shall receive fees from a Series at the rate and under the
terms and conditions of the Plan of Distribution pursuant to
Rule 12b-1 (the "Plan") adopted by such Series, as such Plan is
amended from time to time, and subject to any further
limitations on such fees as the Board of Trustees of the Trust
may impose. Beacon may reallow any or all of the fees which it
is paid under this Agreement to such dealers as Beacon may from
time to time determine.
6. Records to be Supplied by the Trust.
The Trust shall furnish to Beacon copies of all information,
financial statements and other papers which Beacon may
reasonably request for use in connection with the distribution
of the Shares including, but not limited to, one certified copy
of all financial statements prepared for the Trust by its
independent public accountants.
7. Expenses.
(a) The Trust will bear the following expenses:
(i) preparation, setting in type, and printing of
sufficient copies of the prospectuses and
statements of additional information for
distribution to shareholders, and the distribution
of same to the shareholders;
(ii) preparation, printing and distribution of reports
and other communications to shareholders;
(iii) registration of the Shares under the federal
securities laws;
(iv) fees and disbursements of its counsel and
independent public accountants
(v) qualification of the Shares for sale in the
jurisdictions as directed by the Trust;
(vi) maintaining facilities for the issue and transfer
of the Shares;
(vii) supplying information, prices and other data to be
furnished by the Trust under this Agreement; and
(viii) any original issue taxes or transfer taxes
applicable to the sale or delivery of the Shares
or certificates therefor.
(b) Beacon will pay all other expenses incident to the sale
and distribution of the Shares sold hereunder.
8. Term.
(a) The term of this Agreement shall commence on the date on
which the Trust's registration statement is declared
effective by the U.S. Securities and Exchange Commission
("Effective Date") provided that, with respect to any
Series, 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 of the Trust who are not interested persons of
the Trust, and have no direct or indirect financial
interest in the operation of the Plan relating to the
Series or in any agreements related thereto ("Independent
Trustees"), cast in person at a meeting called for the
purpose of voting on such action.
(b) This Agreement shall remain in effect for two (2) years
from the Effective Date. This Agreement shall continue
thereafter for periods not exceeding one (1) year if
approved at least annually (i) by a vote of a majority of
the outstanding voting securities of each Series or by a
vote of the Board of Trustees of the Trust, and (ii) 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.
(c) This Agreement (i) may at any time be terminated without
the payment of any penalty, either by a vote of the
Trustees of the Trust or by a vote of a majority of the
outstanding voting securities of each Series with respect
to such Series, on sixty (60) days' written notice to
Beacon; and (ii) may be terminated by Beacon on sixty
(60) days' written notice to the Trust with respect to
any Series.
(d) This Agreement shall automatically terminate in the event
of its assignment.
9. Liability of Underwriter.
(a) Beacon, its directors, officers, employees, shareholders
and agents shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Trust
in connection with the performance of this Agreement,
except a loss resulting from a breach of Beacon's
obligation pursuant to Section 4 of this Agreement, a
breach of fiduciary duty with respect to the receipt of
compensation for services or a loss resulting from
willful misfeasance, bad faith or gross negligence on the
part of Beacon in the performance of its obligations and
duties or by reason of its reckless disregard of its
obligations and duties under this Agreement.
(b) The Trust agrees to indemnify and hold harmless Beacon
against any and all liability, loss, damages, costs or
expenses (including reasonable counsel fees) which Beacon
may incur or be required to pay hereafter, in connection
with any action, suit or other proceeding, whether civil
or criminal, before any court or administrative or
legislative body, in which Beacon may be involved as a
party or otherwise or with which Beacon may be
threatened, by reason of the offer or sale of the Trust
shares by persons other than Beacon or its
representatives, prior to the execution of this
Agreement.
(c) Any person, even though also a director, officer,
employee, shareholder or agent of Beacon, who may be or
become an officer, director, trustee, employee or agent
of the Trust, shall be deemed, when rendering services to
the Trust or acting on any business of the Trust (other
than services or business in connection with Beacon's
duties hereunder), to be rendering such services to or
acting solely for the Trust and not as a director,
officer, employee, shareholder or agent, or one under the
control or direction of Beacon even though receiving a
salary from Beacon.
(d) The Trust agrees to indemnify and hold harmless Beacon,
and each person, who controls Beacon within the meaning
of Section 15 of the Securities Act of 1933, as amended
(the "Securities Act"), or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
against any and all losses, claims, damages and
liabilities, joint or several (including any reasonable
investigative, legal and other expenses incurred in
connection therewith) to which they, or any of them, may
become subject under the Act, the Securities Act, the
Exchange Act or other federal or state law or regulation,
at common law or otherwise insofar as such losses,
claims, damages or liabilities (or actions, suits or
proceedings in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of
a material fact contained in a prospectus, statement of
additional information, supplement thereto, sales
literature or other written information prepared by the
Trust and furnished by the Trust to Beacon for Beacon's
use hereunder, disseminated by the Trust or arise out of
or are based upon any omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
Such indemnity shall not, however, inure to the benefit
of Beacon (or any person controlling Beacon) on account
of any losses, claims, damages or liabilities (or
actions, suits or proceedings in respect thereof) arising
from the sale of the shares of the Trust to any person by
Beacon (i) if such untrue statement or omission or
alleged untrue statement or omission was made in the
prospectus, statement of additional information, or
supplement, sales or other literature, in reliance upon
and in conformity with information furnished in writing
to the Trust by Beacon specifically for use therein or
(ii) if such losses, claims, damages or liabilities arise
out of or are based upon an untrue statement or omission
or alleged untrue statement or omission found in any
prospectus, statement of additional information,
supplement, sales or other literature, subsequently
corrected, but, negligently distributed by Beacon and a
copy of the corrected prospectus was not delivered to
such person at or before the confirmation of the sale to
such person.
10. Amendments.
No provision of this Agreement may be amended or modified, in
any manner whatsoever except by a written agreement properly
authorized and executed by the Parties.
11. Section Headings.
Section and Paragraph headings are for convenience only and
shall not be construed as part of this Agreement.
12. Reports.
Beacon shall prepare reports for the Board of Trustees of the
Trust on a quarterly basis showing such information as from
time to time shall be reasonably requested by such Board.
13. Severability.
If any part, term or provision of this Agreement is held by any
court to be illegal, in conflict with any law or otherwise
invalid, the remaining portion or portions shall be considered
severable and not affected, and the rights and obligations of
the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to
be illegal or invalid provided that the basic agreement is not
thereby substantially impaired.
14. Governing Law.
This Agreement shall be governed by the laws of Delaware,
without giving effect to the conflicts of law principles
thereof, and in accordance with the 1940 Act. To the extent
that the applicable laws of the State of Delaware conflict with
the applicable provisions of the 1940 Act, the latter shall
control.
15. Authority to Execute
The Parties represent and warrant that the execution and
delivery of this Agreement by the undersigned officers of the
Parties has been duly and validly authorized by resolution of
the respective Boards of Directors or Trustees of each of the
Parties.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement consisting of nine type written pages, together with
Schedule "A" to be signed by their duly authorized officers, as of
the day and year first above written.
Beacon Global Advisors, Inc. Beacon Global Advisors Trust
/s/ Xxxxxx X. Xxxxxxx, Xx. /s/ Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxx
Managing Partner President
Schedule "A"
Identification of Series
Below are listed the "Series" to which services under this Agreement
are to be performed as of the execution date of the Agreement:
"The Cruelty Free Value Fund"
This Schedule "A" may be amended from time to time by agreement of
the Parties.
