Exhibit (e)(1)
AMENDED AND RESTATED
DISTRIBUTION SERVICES AGREEMENT
AGREEMENT made as of September 2, 2003 between THE ALLIANCEBERNSTEIN
PORTFOLIOS (formerly The Alliance Portfolios), a Massachusetts business trust
(the "Trust"), on behalf of each of its portfolio series (including, without
limitation, AllianceBernstein Wealth Appreciation Strategy, AllianceBernstein
Balanced Wealth Strategy, AllianceBernstein Wealth Preservation Strategy,
AllianceBernstein Tax-Managed Wealth Appreciation Strategy, AllianceBernstein
Tax-Managed Balanced Wealth Strategy, AllianceBernstein Tax-Managed Wealth
Preservation Strategy, and AllianceBernstein Growth Fund) (each, a "Fund"), and
ALLIANCEBERNSTEIN INVESTMENT RESEARCH AND MANAGEMENT, INC. (formerly Alliance
Fund Distributors, Inc.), a Delaware corporation (the "Underwriter").
WITNESSETH
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), as an open-end management investment
company and it is in the interest of the Trust to offer its shares for sale
continuously;
WHEREAS, the Underwriter is a securities firm engaged in the business of
selling shares of investment companies either directly to purchasers or through
other securities dealers;
WHEREAS, the Trust and the Underwriter wish to enter into an agreement
with each other with respect to the continuous offering of the Trust's shares in
order to promote the growth of the Trust and facilitate the distribution of its
shares;
NOW, THEREFORE, the parties agree as follows:
SECTION 1. Appointment of Underwriter. The Trust hereby appoints the
Underwriter as the principal underwriter and distributor of the Trust to sell
the public its Class A shares, Class B shares, Class C shares, Advisor Class
shares, and shares of such other class or classes as the Trust and the
Underwriter shall from time to time mutually agree shall become subject to the
Agreement ("New shares"), (the Class A shares, Class B shares, Class C shares,
Advisor Class shares, and New shares shall be collectively referred to herein as
the "shares") and hereby agrees during the term of this Agreement to sell shares
to the Underwriter upon the terms and conditions set forth herein.
SECTION 2. Exclusive Nature of Duties. The Underwriter shall be the
exclusive representative of the Trust to act as principal underwriter and
distributor except that the rights given under this Agreement to the Underwriter
shall not apply to shares issued in connection with (a) the merger or
consolidation of any other investment company with a Fund, (b) a Fund's
acquisition by purchase or otherwise of all or substantially all of the assets
or shares of any other investment company or (c) the reinvestment in shares by a
Fund's shareholders of dividends or other distributions.
SECTION 3. Purchase of Shares from the Trust.
(a) The Underwriter shall have the right to buy from the Trust the shares
needed to fill unconditional orders for shares of the Trust placed with the
Underwriter by investors or securities dealers, depository institutions or other
financial intermediaries acting as agent for their customers. The price which
the Underwriter shall pay for the shares so purchased from the Trust shall be
the net asset value, determined as set forth in Section 3(d) hereof, used in
determining the public offering price on which such orders are based.
(b) The shares are to be resold by the Underwriter to investors at a
public offering price, as set forth in Section 3(c) hereof, or to securities
dealers, depository institutions or other financial intermediaries acting as
agent for their customers having agreements with the Underwriter upon the terms
and conditions set forth in Section 8 hereof.
(c) The public offering price of the shares, i.e., the price per share at
which the Underwriter or selected dealers or selected agents (each as defined in
Section 8(a) below) may sell shares to the public, shall be the public offering
price determined in accordance with the then current Prospectus and Statement of
Additional Information of the Trust (the "Prospectus" and "Statement of
Additional Information," respectively) under the Securities Act of 1933, as
amended (the "Securities Act"), relating to such shares, but not to exceed the
net asset value at which the Underwriter is to purchase such shares, plus, in
the case of Class A shares, a front-end sales charge equal to a specified
percentage or percentages of the public offering price of the Class A shares as
set forth in the Prospectus. Class A shares may be sold without such a sales
charge to certain classes of persons or in connection with certain types of
transactions as from time to time to set forth in the Prospectus and Statement
of Additional Information. All payments to the Trust hereunder shall be made in
the manner set forth in Section 3(f) hereof.
(d) The net asset value of shares of the Trust shall be determined by the
Trust, or any agent of the Trust, as of the close of regular trading on the New
York Stock Exchange on each business day in accordance with the method set forth
in the Prospectus and Statement of Additional Information and guidelines
established by the Trustees of the Trust.
(e) The Trust reserves the right to suspend the offering of its shares at
any time in the absolute discretion of its Trustees.
(f) The Trust, or any agent of the Trust designated in writing to the
Underwriter by the Trust, shall be promptly advised by the Underwriter of all
purchase orders for shares received by the Underwriter. Any order may be
rejected by the Trust. The Trust (or its agent) will confirm orders upon their
receipt, will make appropriate book entries and upon receipt by the Trust (or
its agent) of payment thereof, will deliver deposit receipts or certificates for
such shares pursuant to the instructions of the Underwriter. Payment shall be
made to the Trust in New York Clearing House funds. The Underwriter agrees to
cause such payment and such instructions to be delivered promptly to the Trust
(or its agent).
SECTION 4. Repurchase or Redemption of Shares by the Trust.
(a) Any of the outstanding shares may be tendered for redemption at any
time, and the Trust agrees to redeem or repurchase the shares so tendered in
accordance with its obligations as set forth in Section 2 of Article VI of its
Agreement and Declaration of Trust and in accordance with the applicable
provisions set forth in the Prospectus and Statement of Additional Information.
The price to be paid to redeem or repurchase the shares shall be equal to the
net asset value calculated in accordance with the provisions of Section 3(d)
hereof, less any applicable sales charge. All payments by the Trust hereunder
shall be made in the manner set forth below. The redemption or repurchase by the
Trust of any of the Class A shares purchased by or through the Underwriter will
not effect the sales charge secured by the Underwriter or any selected dealer or
compensation paid to any selected agent (unless such selected dealer or selected
agent has otherwise agreed with the Underwriter), in the course of the original
sale, regardless of the length of the time period between the purchase by an
investor and his tendering for redemption or repurchase.
The Trust (or its agent) shall pay the total amount of the redemption
price and, except as may be otherwise required by the Rules of Fair Practice of
the National Association of Securities Dealers, Inc. (the "NASD") and any
interpretations thereof ("NASD rules and interpretations"), the deferred sales
charges, if any, as defined in the above paragraph, pursuant to the instructions
of the Underwriter in New York Clearing House funds on or before the seventh
business day subsequent to its having received the notice of redemption in
proper form.
(b) Redemption of shares of a Fund or payment by a Fund may be suspended
at times when the New York Stock Exchange is closed, when trading thereon is
closed, when trading thereon is restricted, when an emergency exists as a result
of which disposal by such Fund of securities owned by it is not reasonably
practicable or it is not reasonably practicable for the Trust fairly to
determine the value of such Fund's net assets, or during any other period when
the Securities and Exchange Commission, by order, so permits.
SECTION 5. Distribution Services Fees and Service Fees.
(a) For its services as distributor of a Fund's Class A shares, the
Distributor shall also receive from the Fund a service fee and a distribution
services fee at the annual rates of .25% and .5%, respectively, of a Fund's
average daily net assets attributable to its Class A shares, subject to the
terms and conditions set forth in the Distribution Plan attached as Exhibit A
hereto, as amended from time to time. For its services as distributor of a
Fund's Class B shares, the Distributor shall also receive from the Fund a
service fee and a distribution services fee at the annual rates of .25% and
..75%, respectively, of a Fund's average daily net assets attributable to its
Class B shares, subject to the other terms and conditions set forth in the
Distribution Plan attached as Exhibit B hereto, as amended from time to time.
For its services as distributor of a Fund's Class C shares, the Distributor
shall receive from the Fund a service fee and a distribution services fee at the
annual rates of .25% and .75%, respectively, of a Fund's average daily net
assets attributable to its Class C shares, subject to the other terms and
conditions set forth in the Distribution Plan attached as Exhibit C hereto, as
amended from time to time. The respective service fees and distribution services
fees applicable to a Fund's Class A shares, Class B shares and Class C shares
shall be accrued daily and paid monthly.
SECTION 6. Duties of the Trust.
(a) The Trust shall furnish to the Underwriter copies of all information,
financial statements and other papers that the Underwriter may reasonably
request for use in connection with the distribution of shares of the Trust, and
this shall include one certified copy, upon request by the Underwriter, of all
financial statements prepared for the Trust by independent public accountants.
The Trust shall make available to the Underwriter such number of copies of the
Prospectus as the Underwriter shall reasonably request.
(b) The Trust shall register the shares under the Securities Act, to the
end that there will be available for sale such number of shares of each Fund as
the Underwriter reasonably may be expected to sell.
(c) The Trust shall use its best efforts to qualify and maintain the
qualification of an appropriate number of shares of each Fund under the
securities laws of such states of the United States or other jurisdictions as
the Underwriter and the Trust may approve. Any such qualification may be
withheld, terminated or withdrawn by the Trust at any time in its discretion. As
provided in Section 9(b) hereof, the expense of qualification and maintenance of
qualification shall be borne by the Trust. The Underwriter shall furnish such
information and other material relating to its affairs and activities as may be
required by the Trust in connection with such qualification.
(d) The Trust will furnish, in reasonable quantities upon request by the
Underwriter, copies of annual and interim reports of the Trust.
SECTION 7. Duties of the Underwriter.
(a) The Underwriter shall devote reasonable time and effort to effect
sales of shares of the Trust, but shall not be obligated to sell any specific
number of shares. The services of the Underwriter to the Trust hereunder are not
to be deemed exclusive and nothing in this Agreement shall prevent the
Underwriter from entering into like arrangements with other investment companies
so long as the performance of its obligations hereunder is not impaired thereby.
(b) In selling shares of the Trust, the Underwriter shall use its best
efforts in all material respects duly to conform with the requirements of all
federal and state laws relating to the sale of such securities. Neither the
Underwriter, any selected dealer, any selected agent nor any other person is
authorized by the Trust to give any information or to make any representations,
other than those contained in the Trust's Registration Statement (the
"Registration Statement"), as amended from time to time, under the Securities
Act and the Investment Company Act or the Prospectus and Statement of Additional
Information or any sales literature specifically approved in writing by the
Trust.
(c) The Underwriter shall adopt and follow procedures, as approved by the
officers of the Trust, for the confirmation of sales to investors and selected
dealers, the collection of amounts payable by investors and selected dealers on
such sales, and the cancellation of unsettled transactions, as may be necessary
to comply with the requirements of the NASD, as such requirements may from time
to time exist.
SECTION 8. Selected Dealer and Agent Agreements.
(a) The Underwriter shall have the right to enter into selected dealer
agreements with securities dealers of its choice ("selected dealers") and
selected agent agreements with depository institutions and other financial
intermediaries of its choice ("selected agents") for the sale of shares and fix
therein the portion of the sales charge that may be allocated to the selected
dealers and selected agents; provided, that the Trust shall approve the forms of
agreements with selected dealers and selected agents and the selected dealer and
selected agent compensation set forth therein and shall evidence such approval
by filing said forms and amendments thereto as exhibits to its Registration
Statement. Shares sold to selected dealers or through selected agents shall be
for resale by such selected dealers and selected agents only at the public
offering price set forth in the Prospectus and Statement of Additional
Information.
(b) Within the United States, the Underwriter shall offer and sell shares
only to such selected dealers as are members in good standing of the NASD.
SECTION 9. Payment of Expenses.
(a) The Trust shall bear all costs and expenses of the Trust, including
fees and disbursements of its counsel and auditors, in connection with the
preparation and filing of its Registration Statement and Prospectus and
Statement of Additional Information, and all amendments and supplements thereto,
and preparing and mailing annual and interim reports and proxy materials to
shareholders (including but not limited to the expense of setting in type any
such registration statements, prospectuses, annual or interim reports or proxy
materials).
(b) The Trust shall bear the cost of expenses of qualification of shares
for sale, and, if necessary or advisable in connection therewith, of qualifying
the Trust as an issuer or as a broker or dealer, in such states of the United
States or other jurisdictions as shall be selected by the Trust and the
Underwriter pursuant to Section 6(c) hereof and the cost and expenses payable to
each such state or jurisdiction for continuing qualification therein until the
Trust decides to discontinue such qualification pursuant to Section 6(c) hereof.
SECTION 10. Indemnification.
(a) The Trust agrees to indemnify, defend and hold the Underwriter, and
any person who controls the Underwriter within the meaning of Section 15 of the
Securities Act, free and harmless 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 Underwriter or any such controlling person may incur, under
the Securities Act, or under common law or otherwise, arising out of or based
upon any alleged untrue statement of a material fact contained in the Trust's
Registration Statement, Prospectus or Statement of Additional Information in
effect from time to time under the Securities Act or arising out of or based
upon any alleged omission to state a material fact required to be stated in any
one thereof or necessary to make the statements in any one thereof not
misleading; provided, however, that in no event shall anything herein contained
be so construed as to protect the Underwriter against any liability to the Trust
or its security holders to which the Underwriter 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 Underwriter's reckless disregard of its
obligations and duties under this Agreement. The Trust's agreement to indemnify
the Underwriter and any such controlling person as aforesaid is expressly
conditioned upon the Trust's being notified of the commencement of any action
brought against the Underwriter or any such controlling person, such
notification to be given by letter or by telegram addressed to the Trust at its
principal office in New York, New York, and sent to the Trust by the person
against whom such action is brought within ten days after the summons or other
first legal process shall have been served. The failure to so notify the Trust
of the commencement of any such action shall not relieve the Trust from any
liability which it may have to the person against whom such action is brought by
reason of any such alleged untrue statement or omission otherwise than on
account of the indemnity agreement contained in this Section 10. The Trust will
be entitled to assume the defense of any suit brought to enforce any such claim,
and to retain counsel of good standing chosen by the Trust and approved by the
Underwriter. In the event the Trust does not elect to assume the defense of any
such suit and retain counsel of good standing approved by the Underwriter, 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 Trust does not elect
to assume the defense of any such suit, or in case the Underwriter does not
approve of counsel chosen by the Trust, the Trust will reimburse the Underwriter
or the controlling person or persons named as defendant or defendants in such
suit, for the fees and expenses of any counsel retained by the Underwriter or
such persons. The indemnification agreement contained in this Section 10 shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Underwriter or any controlling person and shall
survive the sale of any of the Trust's shares made pursuant to subscriptions
obtained by the Underwriter. This agreement of indemnity will inure exclusively
to the benefit of the Underwriter, to the benefit of its successors and assigns,
and to the benefit of any controlling persons and their successors and assigns.
The Trust agrees promptly to notify the Underwriter of the commencement of any
litigation or proceeding against the Trust in connection with the issue and sale
of any of its shares.
(b) The Underwriter agrees to indemnify, defend and hold the Trust, its
several officers and Trustees, and any person who controls the Trust within the
meaning of Section 15 of the Securities Act, free and harmless 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 officers or
Trustees, or any such controlling person may incur under the Securities Act or
under common law or otherwise, but only to the extent that such liability or
expense incurred by the Trust, its officers, Trustees or such controlling person
resulting from such claims or demands shall arise out of or be based upon any
alleged untrue statement of a material fact contained in information furnished
in writing by the Underwriter or any affiliate thereof to the Trust for use in
its Registration Statement, Prospectus or Statement of Additional Information in
effect from time to time under the Securities Act, or shall arise out of or be
based upon any alleged omission to state a material fact in connection with such
information required to be stated in the Registration Statement, Prospectus or
Statement of Additional Information or necessary to make such information not
misleading. The Underwriter's agreement to indemnify the Trust, its officers and
Trustees, and any such controlling person as aforesaid is expressly conditioned
upon the Underwriter being notified of the commencement of any action brought
against the Trust, its officers or Trustees or any such controlling person, such
notification to be given by letter or telegram addressed to the Underwriter at
its principal office in New York, and sent to the Underwriter by the person
against whom such action is brought, within ten days after the summons or other
first legal process shall have been served. The failure so to notify the
Underwriter of the commencement of any such action shall not relieve the
Underwriter from any liability which it may have to the Trust, to its officers
and Trustees, or to such controlling person by reason of any such untrue
statement or omission on the part of the Underwriter otherwise than on account
of the indemnity agreement contained in this Section 10. The Underwriter shall
have a right to control the defense of such action, with counsel of good
standing of its own choosing, satisfactory to the Trust, if such action is based
solely upon such alleged misstatement or omission on its part, and in any other
event the Underwriter and the Trust, and their officers and directors and
Trustees, and such controlling person shall each have the right to participate
in the defense or preparation of the defense of any such action. The
indemnification agreement contained in this Section 10 shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Trust, its several officers and Trustees or any controlling person
and shall survive the sale of any of the Trust's shares made pursuant to
subscriptions obtained by the Underwriter. This agreement of indemnity will
inure exclusively to the benefit of the Trust, to the benefit of its successors
and assigns, and to the benefit of any of the Trust's officers, Trustees or
controlling persons and their successors and assigns. The Underwriter agrees
promptly to notify the Trust of the commencement of any litigation or proceeding
against the Underwriter in connection with the issue and sale of any of the
Trust's shares.
SECTION 11. Notification by the Trust.
The Trust agrees to advise the Underwriter immediately:
(a) of any request by the Securities and Exchange Commission for
amendments to the Trust's Registration Statement, Prospectus or Statement of
Additional Information or for additional information,
(b) in the event of the issuance by the Securities and Exchange Commission
of any stop order suspending the effectiveness of the Trust's Registration
Statement, Prospectus or Statement of Additional Information or the initiation
of any proceeding for that purpose,
(c) of the happening of any material event which makes untrue any
statement made in the Trust's Registration Statement, Prospectus or Statement of
Additional Information or which requires the making of a change in any one
thereof in order to make the statements therein not misleading, and
(d) of all actions of the Securities and Exchange Commission with respect
to any amendments to the Trust's Registration Statement, Prospectus or Statement
of Additional Information which may from time to time be filed with the
Securities and Exchange commission under the Securities Act.
SECTION 12. Term of Agreement.
(a) This Agreement shall become effective on the date hereof and shall
continue in effect until two years from the date of its execution, and
thereafter for successive twelve-month periods with respect to each class and
Fund; provided, however, that such continuance is specifically approved at least
annually by the Trustees of the Trust or by vote of the holders of a majority of
the outstanding voting securities (as defined in the Investment Company Act) of
that class or Fund, and, in either case, by a majority of the Trustees of the
Trust who are not parties to this Agreement or interested persons, as defined in
the Investment Company Act, of any such party (other than as Trustees of the
Trust) and who have no direct or indirect financial interest in the operation of
the Distribution Plans referred to in Section 5 or any agreement related
thereto; provided further, however, that if the continuation of this Agreement
is not approved as to any class or Fund, the Underwriter may continue to render
to such class or Fund the services described herein in the manner and to the
extent permitted by the Investment Company Act and the rules and regulations
thereunder. Upon effectiveness of this Agreement, it shall supersede all
previous agreements between the parties hereto covering the subject matter
hereof. This Agreement may be terminated (i) by the Trust with respect to any
class or Fund at any time, without the payment of any penalty, by the vote of a
majority of the outstanding voting securities (as so defined) of such class or
Fund, or by a vote of a majority of the Trustees of the Trust who are not
interested persons, as defined in the Investment Company Act, of the Trust
(other than as Trustees of the Trust) and have no direct or indirect financial
interest in the operation of the Distribution Plans referred to in Section 5 or
any agreement related thereto, in any such event on sixty days' written notice
to the Underwriter, or (ii) by the Underwriter with respect to any class or Fund
on sixty days' written notice to the Trust.
(b) This Agreement may be amended at any time with the approval of the
Trustees of the Trust, provided that any material amendments of the terms hereof
will become effective only upon approval as provided in the first proviso of the
first sentence of Section 12(a) hereof.
SECTION 13. No Assignment. This Agreement may not be transferred,
assigned, sold or in any manner hypothecated or pledged by either party hereto
and this Agreement shall terminate automatically in the event of any such
transfer, assignment, sale, hypothecation or pledge. The terms "transfer",
"assignment", and "sale" as used in this paragraph shall have the meanings
ascribed thereto by governing law and any interpretation thereof contained in
rules or regulations promulgated by the Securities and Exchange Commission
thereunder.
SECTION 14. Notices. Any notice required or permitted to be given
hereunder by either party to the other shall be deemed sufficiently given if
sent by registered mail, postage prepaid, addressed by the party giving such
notice to the other party at the last address furnished by such other party to
the party giving notice, and unless and until changed pursuant to the foregoing
provisions hereof addressed to the Trust or the Underwriter.
SECTION 15. Governing Law. The provisions of this Agreement shall be, to
the extent applicable, construed and interpreted in accordance with the laws of
the State of New York.
SECTION 16. Notice. A copy of the Agreement and Declaration of Trust of
the Trust is on file with the Secretary of State of The Commonwealth of
Massachusetts and notice is hereby given that this instrument is executed on
behalf of the Trustees of the Trust as Trustees and not individually, and that
the obligations of or arising out of this instrument are not binding upon any of
the Trustees or shareholders individually but are binding only upon the assets
and property of each of the respective Funds.
SECTION 17. Separate Agreements. The Trust, on behalf of each Fund, shall
be deemed to have entered into a wholly separate Agreement relating exclusively
to each such Fund. Any amendment to or termination of this Agreement explicitly
relating to one or more Funds shall have no affect on, and shall not be
considered to amend or terminate this Agreement with respect to, any other Fund.
[The Remainder of this Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Distribution Services Agreement as of the date first set forth above.
THE ALLIANCEBERNSTEIN PORTFOLIOS
/s/ Xxxx X. Xxxxxx
-----------------------------
By: Xxxx X. Xxxxxx
Title: Chairman and President
ALLIANCEBERNSTEIN INVESTMENT
RESEARCH AND MANAGEMENT, INC.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
By: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
Assistant General Counsel
Exhibit A
"CLASS A"
DISTRIBUTION AND SERVICING PLAN
WHEREAS, THE EQUITABLE FUNDS, a Massachusetts business trust (the
"Trust"), adopted a plan dated September 4, 1990 concerning the distribution of
the Trust's Class A shares (the "Plan"); and
WHEREAS, the Trust's Board of Trustees believes that it is appropriate to
amend and restate the Plan in light of recent changes to the Rules of Fair
Practice of the National Association of Securities Dealers, Inc. (the "NASD
Rules");
NOW THEREFORE, in consideration of the foregoing, the Plan is hereby
amended and restated as of July 31, 1993 as follows:
Section 1. The Trust will pay to the entity serving as principal
underwriter of the Trust's shares (the "Distributor") a fee (the "Distribution
Services Fee") for services rendered and expenses borne by the Distributor in
connection with the distribution of the Class A shares of the Trust and another
fee (the "Service Fee") in connection with personal services rendered to Class A
shareholders of the Trust and/or maintenance of Class A shareholder accounts.
The Distribution Services Fee shall be paid at an annual rate with respect to
each portfolio of the Trust represented by a separate series of shares (a
"Fund") not to exceed 0.50 of 1.00% of the average daily net assets attributable
to the Fund's Class A shares, and the Service Fee shall be paid at an annual
rate not to exceed 0.25 of 1.00% of the Fund's average daily net assets
attributable to Class A shares; provided, however, that the Distribution
Services Fee shall at no time exceed the limits imposed by the NASD Rules or
other applicable regulations; and provided further, however, that the
Distribution Services Fee and the Service Fee shall not, in the aggregate,
exceed an annual rate of .50 of 1.00% of the Fund's average daily net assets
attributable to Class A shares. Subject to such limits and subject to the
provisions of Section 9 hereof, the Distribution Services Fee and Service Fee
shall be as approved from time to time by (a) the Trustees of the Trust and (b)
the Independent Trustees of the Trust and may be paid in respect of services
rendered and expenses borne in the past in connection with the Fund's Class A
shares as to which, due to such limitations, no Distribution Services Fee or
Service Fee was paid. If at any time this Plan shall not be in effect with
respect to the Class A shares of all Funds of the Trust, the Distribution
Services Fee and Service Fee shall be computed on the basis of the net assets of
the Class A shares of those Funds for which the Plan is in effect. The
Distribution Services Fee and Service Fee shall be accrued daily and paid
monthly or at such other intervals as the Trustees shall determine.
Section 2. The Distribution Services Fee may be spent by the Distributor
on any activities or expenses primarily intended to result in the sale of Class
A shares of the Trust, including, but not limited to, compensation of employees
of the Distributor, expenses (including overhead and telephone expenses) of
employees of the Distributor who engage in the distribution of Class A shares,
printing of prospectuses and reports for other than existing Class A
shareholders, advertising and preparation, printing and distribution of sales
literature.
The Service Fee may be used by the Distributor for personal service and/or
the maintenance of shareholder accounts within the meaning of the NASD Rules.
The Trust's investment adviser may make payments from time to time from
its own resources for the purposes described in this Section 2.
Section 3. This Plan shall not take effect with respect to the Class A
shares of any Fund of the Trust until it has been approved by a vote of at least
a majority of the outstanding voting securities representing the Class A shares
of that Fund. This Plan shall be deemed to have been effectively approved with
respect to the Class A shares of any Fund if a majority of the outstanding
voting securities representing the Class A shares of that Fund votes for the
approval of this Plan, notwithstanding that this Plan has not been approved by a
majority of the outstanding voting securities representing the Class A shares of
any other Fund or that this Plan has not been approved by a majority of the
outstanding voting securities representing the Class A shares of the Trust.
Section 4. This Plan shall not take effect until it has been approved,
together with any related agreements, by votes of the majority (or whatever
greater percentage may, from time to time, be required by Section 12(b) of the
Investment Company Act of 1940 (the "Act") or the rules and regulations
thereunder) of both (a) the Trustees of the Trust, and (b) the Independent
Trustees of the Trust cast in person at a meeting called for the purpose of
voting on this Plan or such agreement.
Section 5. This Plan shall continue in effect for a period of more than
one year after it takes effect only so long as such continuance is specifically
approved at least annually in the manner provided for approval of this Plan in
Section 4.
Section 6. Any person authorized to direct the disposition of monies paid
or payable by the Class A shares of the Trust pursuant to this Plan or any
related agreement shall provide to the Trustees of the Trust, and the Trustees
shall review, at least quarterly, a written report of the amounts so expended
and the purposes for which such expenditures were made.
Section 7. This Plan may be terminated at any time with respect to the
Class A shares of any Fund by vote of a majority of the Independent Trustees, or
by vote of a majority of the outstanding voting securities representing the
Class A shares of that Fund.
Section 8. All agreements with any person relating to implementation of
this Plan with respect to the Class A shares of any Fund shall be in writing,
and any agreement related to this Plan with respect to the Class A shares of any
Fund shall provide:
A. That such agreement may be terminated at any time, without payment
of any penalty, by vote of a majority of the Independent Trustees or
by vote of a majority of the outstanding voting securities
representing the Class A shares of such Fund, on not more than 60
days' written notice to any other party to the agreement; and
B. That such agreement shall terminate automatically in the event of
its assignment.
Section 9. This Plan may not be amended to increase materially the amount
of the aggregate fee permitted pursuant to Section 1 hereof without approval in
the manner provided in Section 3 hereof, and all material amendments to this
Plan shall be approved in the manner provided for approval of this Plan in
Section 4.
Section 10. As used in this Plan, (a) the term "Independent Trustees"
shall mean 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
this Plan or any agreements related to it, and (b) the terms "assignment",
"interested person" and "majority of the outstanding voting securities" shall
have the respective meanings specified in the Act and the rules and regulations
thereunder, subject to such exemptions as may be granted by the Securities and
Exchange Commission.
Exhibit B
"CLASSB"
DISTRIBUTION AND SERVICING PLAN
WHEREAS, THE EQUITABLE FUNDS, a Massachusetts business trust (the
"Trust"), adopted a plan dated November 1, 1988 concerning the distribution of
its existing shares (the "Plan"); and
WHEREAS, the Trust's Board of Trustees believes that it is appropriate to
amend and restate the Plan in light of recent changes to the Rules of Fair
Practice of the National Association of Securities Dealers, Inc. (the "NASD
Rules");
NOW THEREFORE, in consideration of the foregoing, the Plan is hereby
amended and restated as of July 31, 1993 as follows:
Section 1. The Trust will pay to the entity serving as principal
underwriter of the Trust's shares (the "Distributor") a fee (the "Distribution
Services Fee") for services rendered and expenses borne by the Distributor in
connection with the distribution of the Class B shares of the Trust and another
fee (the "Service Fee") in connection with personal services rendered to Class B
shareholders of the Trust and/or maintenance of Class B shareholder accounts.
The Distribution Services Fee shall be paid at an annual rate with respect to
each portfolio of the Trust represented by a separate series of shares (a
"Fund") not to exceed 1.00% of the average daily net assets attributable to the
Fund's Class B shares, and the Service Fee shall be paid at an annual rate not
to exceed 0.25 of 1.00% of the Fund's average daily net assets attributable to
Class B shares; provided, however, that the Distribution Services Fee shall at
no time exceed the limits imposed by the NASD Rules or other applicable
regulations; and provided further, however, that the Distribution Services Fee
and the Service Fee shall not, in the aggregate, exceed an annual rate of 1.00%
of the Fund's average daily net assets attributable to Class B shares. Subject
to such limits and subject to the provisions of Section 9 hereof, the
Distribution Services Fee and Service Fee shall be as approved from time to time
by (a) the Trustees of the Trust and (b) the Independent Trustees of the Trust
and may be paid in respect of services rendered and expenses borne in the past
in connection with the Fund's Class B shares as to which, due to such
limitations, no Distribution Services Fee or Service Fee was paid. If at any
time this Plan shall not be in effect with respect to the Class B shares of all
Funds of the Trust, the Distribution Services Fee and Service Fee shall be
computed on the basis of the net assets of the Class B shares of those Funds for
which the Plan is in effect. The Distribution Services Fee and Service Fee shall
be accrued daily and paid monthly or at such other intervals as the Trustees
shall determine.
Section 2. The Distribution Services Fee may be spent by the Distributor
on any activities or expenses primarily intended to result in the sale of Class
B shares of the Trust, including, but not limited to, compensation of employees
of the Distributor, expenses (including overhead and telephone expenses) of
employees of the Distributor who engage in the distribution of Class B shares,
printing of prospectuses and reports for other than existing Class B
shareholders, advertising and preparation, printing and distribution of sales
literature.
The Service Fee may be used by the Distributor for personal service and/or
the maintenance of shareholder accounts within the meaning of the NASD Rules.
The Trust's investment adviser may make payments from time to time from
its own resources for the purposes described in this Section 2.
Section 3. This Plan shall not take effect with respect to the Class B
shares of any Fund of the Trust until it has been approved by a vote of at least
a majority of the outstanding voting securities representing the Class B shares
of that Fund. This Plan shall be deemed to have been effectively approved with
respect to the Class B shares of any Fund if a majority of the outstanding
voting securities representing the Class B shares of that Fund votes for the
approval of this Plan, notwithstanding that this Plan has not been approved by a
majority of the outstanding voting securities representing the Class B shares of
any other Fund or that this Plan has not been approved by a majority of the
outstanding voting securities representing the Class B shares of the Trust.
Section 4. This Plan shall not take effect until it has been approved,
together with any related agreements, by votes of the majority (or whatever
greater percentage may, from time to time, be required by Section 12(b) of the
Investment Company Act of 1940 (the "Act") or the rules and regulations
thereunder) of both (a) the Trustees of the Trust, and (b) the Independent
Trustees of the Trust cast in person at a meeting called for the purpose of
voting on this Plan or such agreement.
Section 5. This Plan shall continue in effect for a period of more than
one year after it takes effect only so long as such continuance is specifically
approved at least annually in the manner provided for approval of this Plan in
Section 4.
Section 6. Any person authorized to direct the disposition of monies paid
or payable by the Class B shares of the Trust pursuant to this Plan or any
related agreement shall provide to the Trustees of the Trust, and the Trustees
shall review, at least quarterly, a written report of the amounts so expended
and the purposes for which such expenditures were made.
Section 7. This Plan may be terminated at any time with respect to the
Class B shares of any Fund by vote of a majority of the Independent Trustees, or
by vote of a majority of the outstanding voting securities representing the
Class B shares of that Fund.
Section 8. All agreements with any person relating to implementation of
this Plan with respect to the Class B shares of any Fund shall be in writing,
and any agreement related to this Plan with respect to the Class B shares of any
Fund shall provide:
A. That such agreement may be terminated at any time, without payment
of any penalty, by vote of a majority of the Independent Trustees or
by vote of a majority of the outstanding voting securities
representing the Class B shares of such Fund, on not more than 60
days' written notice to any other party to the agreement; and
B. That such agreement shall terminate automatically in the event of
its assignment.
Section 9. This Plan may not be amended to increase materially the amount
of the aggregate fee permitted pursuant to Section 1 hereof without approval in
the manner provided in Section 3 hereof, and all material amendments to this
Plan shall be approved in the manner provided for approval of this Plan in
Section 4.
Section 10. As used in this Plan, (a) the term "Independent Trustees"
shall mean those Trustees of the Trust who are not interested person of the
Trust, and have no direct or indirect financial interest in the operation of
this Plan or any agreements related to it, and (b) the terms "assignment",
"interested person" and "majority of the outstanding voting securities" shall
have the respective meanings specified in the Act and the rules and regulations
thereunder, subject to such exemptions as may be granted by the Securities and
Exchange Commission.
Exhibit C
"CLASS C"
DISTRIBUTION AND SERVICING PLAN
This Distribution and Servicing Plan (the "Plan") dated as of August 2,
1993 constitutes the Distribution and Servicing Plan of THE ALLIANCE PORTFOLIOS,
a Massachusetts business trust (the "Trust"), with respect to its Class C
shares.
Section 1. The Trust will pay to the entity serving as principal
underwriter of the Trust's shares (the "Distributor") a fee (the "Distribution
Services Fee") for services rendered and expenses borne by the Distributor in
connection with the distribution of the Class C shares of the Trust and another
fee (the "Service Fee") in connection with personal services rendered to Class C
shareholders of the Trust and/or maintenance of Class C shareholder accounts.
The Distribution Services Fee shall be paid at an annual rate with respect to
each portfolio of the Trust represented by a separate series of shares (a
"Fund") not to exceed 1.00% of the average daily net assets attributable to the
Fund's Class C shares, and the Service Fee shall be paid at an annual rate not
to exceed 0.25 of 1.00% of the Fund's average daily net assets attributable to
Class C shares; provided, however, that the Distribution Services Fee shall at
no time exceed the limits imposed by the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. ("NASD Rules") or other applicable
regulations; and provided further, however, that the Distribution Services Fee
and the Service Fee shall not, in the aggregate, exceed an annual rate of 1.00%
of the Fund's average daily net assets attributable to Class C shares. Subject
to such limits and subject to the provisions of Section 9 hereof, the
Distribution Services Fee and Service Fee shall be as approved from time to time
by (a) the Trustees of the Trust and (b) the Independent Trustees of the Trust
and may be paid in respect of services rendered and expenses borne in the past
in connection with the Fund's Class C shares as to which, due to such
limitations, no Distribution Services Fee or Service Fee was paid. If at any
time this Plan shall not be in effect with respect to the Class C shares of all
Funds of the Trust, the Distribution Services Fee and Service Fee shall be
computed on the basis of the net assets of the Class C shares of those Funds for
which the Plan is in effect. The Distribution Services Fee and Service Fee shall
be accrued daily and paid monthly or at such other intervals as the Trustees
shall determine.
Section 2. The Distribution Services Fee may be spent by the Distributor
on any activities or expenses primarily intended to result in the sale of Class
C shares of the Trust, including, but not limited to, compensation of employees
of the Distributor, expenses (including overhead and telephone expenses) of
employees of the Distributor who engage in the distribution of Class C shares,
printing of prospectuses and reports for other than existing Class C
shareholders, advertising and preparation, printing and distribution of sales
literature.
The Service Fee may be used by the Distributor for personal service and/or
the maintenance of shareholder accounts within the meaning of the NASD Rules.
The Trust's investment adviser may make payments from time to time from
its own resources for the purposes described in this Section 2.
Section 3. This Plan shall not take effect with respect to the Class C
shares of any Fund of the Trust until it has been approved by a vote of at least
a majority of the outstanding voting securities representing the Class C shares
of that Fund. This Plan shall be deemed to have been effectively approved with
respect to the Class C shares of any Fund if a majority of the outstanding
voting securities representing the Class C shares of that Fund votes for the
approval of this Plan, notwithstanding that this Plan has not been approved by a
majority of the outstanding voting securities representing the Class C shares of
any other Fund or that this Plan has not been approved by a majority of the
outstanding voting securities representing the Class C shares of the Trust.
Section 4. This Plan shall not take effect until it has been approved,
together with any related agreements, by votes of the majority (or whatever
greater percentage may, from time to time, be required by Section 12(b) of the
Investment Company Act of 1940 (the "Act") or the rules and regulations
thereunder) of both (a) the Trustees of the Trust, and (b) the Independent
Trustees of the Trust cast in person at a meeting called for the purpose of
voting on this Plan or such agreement.
Section 5. This Plan shall continue in effect for a period of more than
one year after it takes effect only so long as such continuance is specifically
approved at least annually in the manner provided for approval of this Plan in
Section 4.
Section 6. Any person authorized to direct the disposition of monies paid
or payable by the Class C shares of the Trust pursuant to this Plan or any
related agreement shall provide to the Trustees of the Trust, and the Trustees
shall review, at least quarterly, a written report of the amounts so expended
and the purposes for which such expenditures were made.
Section 7. This Plan may be terminated at any time with respect to the
Class C shares of any Fund by vote of a majority of the Independent Trustees, or
by vote of a majority of the outstanding voting securities representing the
Class C shares of that Fund.
Section 8. All agreements with any person relating to implementation of
this Plan with respect to the Class C shares of any Fund shall be in writing,
and any agreement related to this Plan with respect to the Class C shares of any
Fund shall provide:
A. That such agreement may be terminated at any time, without payment
of any penalty, by vote of a majority of the Independent Trustees or
by vote of a majority of the outstanding voting securities
representing the Class C shares of such Fund, on not more than 60
days' written notice to any other party to the agreement; and
B. That such agreement shall terminate automatically in the event of
its assignment.
Section 9. This Plan may not be amended to increase materially the amount
of the aggregate fee permitted pursuant to Section 1 hereof without approval in
the manner provided in Section 3 hereof, and all material amendments to this
Plan shall be approved in the manner provided for approval of this Plan in
Section 4.
Section 10. As used in this Plan, (a) the term "Independent Trustees"
shall mean 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
this Plan or any agreements related to it, and (b) the terms "assignment",
"interested person" and "majority of the outstanding voting securities" shall
have the respective meanings specified in the Act and the rules and regulations
thereunder, subject to such exemptions as may be granted by the Securities and
Exchange Commission.
