Xxx Xxxxxxxxx Distributors, Inc.
000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
IVY FUND
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
Dear Sirs:
This will confirm the agreement between the undersigned (the "Trust")
and you (the "Distributor") as follows:
1. The Trust is an open-end management investment company that currently
has twenty investment portfolios and that may create additional portfolios in
the future. One or more separate classes of shares of beneficial interest in the
Trust is offered to investors with respect to each portfolio. This Agreement
relates to Class A, Class B, Class C, Class I (if applicable) and the Advisor
Class of Ivy Asia Pacific Fund, Ivy Bond Fund, Ivy Canada Fund, Ivy China Region
Fund, Ivy Developing Nations Fund, Ivy European Opportunities Fund, Ivy Global
Fund, Ivy Global Natural Resources Fund, Ivy Global Science & Technology Fund,
Ivy Growth Fund, Ivy Growth with Income Fund, Ivy International Fund, Ivy
International Fund II, Ivy International Small Companies Fund, Ivy International
Strategic Bond Fund, Ivy Pan-Europe Fund, Ivy South America Fund, Ivy US Blue
Chip Fund and Ivy US Emerging Growth Fund (the "Equity and Fixed Income Funds"),
to Ivy Money Market Fund and to such other portfolios as shall be designated
from time to time by the Board of Trustees in any supplement to a Plan (together
with the Equity and Fixed Income Funds, the "Funds"). The Trust engages in the
business of investing and reinvesting the assets of the Funds in the manner and
in accordance with their respective investment objectives and restrictions as
specified in the currently effective Prospectuses (the "Prospectuses") relating
to the Funds included in the Trust's Registration Statement, as amended from
time to time (the "Registration Statement"), filed by the Trust under the
Investment Company Act of 1940, as amended, (the "1940 Act") and the Securities
Act of 1933, as amended, (the "1933 Act"). Copies of the documents referred to
in the preceding sentence have been furnished to the Distributor. Any amendments
to those documents shall be furnished to the Distributor promptly. The Trust has
adopted a separate Distribution Plan (each, a "Plan") for Class A, Class B and
Class C of each of the Equity and Fixed Income Funds pursuant to Rule 12b-1
under the 1940 Act.
2. As the Trust's agent, the Distributor shall be the exclusive distributor
for the unsold portion of shares of beneficial interest in Ivy Money Market Fund
and Class A, Class B and Class C, Class I (if applicable) and the Advisor Class
shares of beneficial interest in the Equity and Fixed Income Funds (the
"Shares") which may from time to time be registered under the 0000 Xxx. All of
the terms of this Amended and Restated Distribution Agreement are intended to
apply to the sale of all Shares whether issued prior to the date of this Amended
and Restated Distribution Agreement or thereafter.
3. The Trust shall sell the Shares to eligible investors as described in
the Prospectuses through the Distributor, as the Trust's agent. All orders for
Shares received by the Distributor shall be subject to acceptance and
confirmation by the Trust. The Trust shall have the right, at its election, to
deliver either (i) Shares issued upon original issue or (ii) treasury shares.
4. As the Trust's agent, the Distributor may sell and distribute the Shares
in such manner not inconsistent with the provisions hereof and the Trust's
Prospectuses as the Distributor may determine from time to time. In this
connection, the Distributor shall comply with all laws, rules and regulations
applicable to it, including, without limiting the generality of the foregoing,
all applicable rules or regulations under the 1940 Act and of any securities
association registered under the Securities Exchange Act of 1934, as amended
(the "1934 Act").
5. To the extent permitted by its then effective Prospectuses, the Trust
reserves the right to sell the Shares to purchasers to the extent that it or the
transfer agent for the Shares receives purchase requests therefor. The Trust
reserves the right to refuse at any time or times to sell any Shares for any
reason deemed adequate by it.
6. All Shares offered for sale and sold by the Distributor shall be offered
for sale and sold by the Distributor to designated investors at the price per
Share specified and determined as provided in the Funds' Prospectuses, including
any applicable reduction or elimination of sales charges with respect to Class A
Shares of the Equity and Fixed Income Funds as provided in the Equity and Fixed
Income Funds' Prospectus (the "offering price"). The Trust shall determine and
promptly furnish to the Distributor a statement of the offering price at least
once on each day on which the New York Stock Exchange is open for trading. Each
offering price shall become effective at the time and shall remain in effect
during the period specified in the statement. Each such statement shall show the
basis of its computation.
7. (a) The Distributor shall be entitled to deduct a commission on
all Class A Shares sold equal to the difference, if any, between
the offering price and the net asset value on which such price is
based. If any such commission is received by a Fund, it will pay
such commission to the Distributor. Out of such commission, the
Distributor may allow to dealers such concession as the
Distributor may determine from time to time. Notwithstanding
anything in this Agreement otherwise provided, sales may be made
at net asset value as provided in the Prospectuses for the Funds.
(b) The Distributor shall be entitled to deduct a contingent deferred
sales charge ("CDSC") on the redemption of certain Class A, Class
B and Class C Shares in accordance with, and in the manner set
forth in, the Equity and Fixed Income Funds' Prospectuses. The
Distributor may reallow any or all of such contingent deferred
sales charges to dealers as the Distributor may determine from
time to time. Notwithstanding anything in this Agreement
otherwise provided, the Distributor may waive the contingent
deferred sales charge as disclosed in the Equity and Fixed Income
Funds' Prospectuses.
(c) In respect of the Class B Shares of each Fund, the
following provisions shall apply:
(i) In consideration of the Distributor's services as principal
distributor of the Fund's Class B Shares pursuant to this
contract and the Fund's distribution plan in respect of such
Shares (the "Class B Plan"), the Trust, on behalf of such
Fund, agrees: (I) to pay to the Distributor monthly in
arrears its "Allocable Portion" (as hereinafter defined) of
a fee (the "Distribution Fee") which shall accrue daily in
an amount equal to the product of (A) the daily equivalent
of 0.75% per annum multiplied by (B) the net asset value of
the Class B Shares of the Fund outstanding on such day, and
(II) to withhold from redemption proceeds the Distributor's
Allocable Portion of the CDSCs and to pay the same over to
the Distributor or at its direction.
(ii) Each of the provisions set forth in clauses (I) through (V)
of the third sentence of paragraph 2 of the Class B Plan as
in effect on the date hereof, together with the related
definitions and the Allocation Schedule attached hereto as
Exhibit A, are hereby incorporated herein by reference with
the same force and effect as if set forth herein in their
entirety.
8. The Trust shall furnish the Distributor from time to time, for use in
connection with the sale of Shares, such information with respect to the Trust
as the Distributor may reasonably request. The Trust represents and warrants
that such information, when signed by one of its officers, shall be true and
correct. The Trust also shall furnish to the Distributor copies of its reports
to its shareholders and such additional information regarding the Trust's
financial condition as the Distributor may reasonably request from time to time.
9. The Registration Statement and the Prospectuses have been or will be, as
the case may be, prepared in conformity with the 1933 Act, the 1940 Act and the
rules and regulations of the Securities and Exchange Commission (the "SEC"). The
Trust represents and warrants to the Distributor that the Registration Statement
and the Prospectuses contain or will contain all statements required to be
stated therein in accordance with the 1933 Act, the 1940 Act and the rules and
regulations thereunder, that all statements of fact contained or to be contained
therein are or will be true and correct at the time indicated or the effective
date, as the case may be, and that neither the Registration Statement nor the
Prospectuses, when they shall become effective under the 1933 Act or be
authorized for use, shall include any 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 Trust shall
from time to time file such amendment or amendments to the Registration
Statement and the Prospectuses as, in the light of future developments, shall,
in the opinion of the Trust's counsel, be necessary in order to have the
Registration Statement and the Prospectuses at all times contain all material
facts required to be stated therein or necessary to make the statements therein
not misleading to a purchaser of Shares. The Trust represents and warrants to
the Distributor that any amendment to the Registration or the Prospectuses filed
hereafter by the Trust will, when it becomes effective under the 1933 Act,
contain all statements required to be stated therein in accordance with the 1933
Act, the 1940 Act and the rules and regulations thereunder, that all statements
of fact contained therein will, when the same shall become effective, be true
and correct, and that no such amendment, when it becomes effective, will include
an untrue statement of a material fact or will 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.
10. The Trust shall prepare and furnish to the Distributor from time to
time such number of copies of the most recent form of the Prospectuses for the
Funds filed with the SEC as the Distributor may reasonably request. The Trust
authorizes the Distributor to use the Prospectuses, in the form furnished to the
Distributor from time to time, in connection with the sale of Shares. The Trust
shall indemnify, defend and hold harmless the Distributor, its officers and
directors and any person who controls the Distributor within the meaning 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) that the
Distributor, its officers and directors or any such controlling person may incur
under the 1933 Act, the 1940 Act, the common law or otherwise, arising out of or
based upon any alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectuses or arising out of or based upon any
alleged omission to state a material fact required to be stated in either or
necessary to make the statements in either not misleading. This contract shall
not be construed to protect the Distributor against any liability to the Trust
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 its reckless disregard of its obligations and
duties under this contract. This indemnity agreement and the Trust'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 such controlling person. This
indemnity agreement shall inure exclusively to the benefit of the Distributor
and its successors, the Distributor's officers and directors and their
respective estates and any such controlling persons and their successors and
estates.
11. The Distributor agrees to indemnify, defend and hold harmless the
Trust, its officers and Trustees and any person who controls the Trust within
the meaning 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) that the Trust, its officers or Trustees or any such controlling
person, may incur under the 1933 Act, the 1940 Act, the common law or otherwise,
but only to the extent that such liability or expenses incurred by the Trust,
its officers or Trustees or such controlling person resulting from such claims
or demands shall arise out of or be based upon any untrue statement of a
material fact contained in information furnished in writing by the Distributor
to the Trust specifically for use in the Registration Statement or the
Prospectuses or shall arise out of or based upon any omission to state a
material fact in connection with such information required to be stated in the
Registration Statement or the Prospectuses or necessary to make such information
not misleading.
12. No Shares shall be sold through the Distributor or by the Trust under
this contract and no orders for the purchase of Shares shall be confirmed or
accepted by the Trust if and so long as the effectiveness of the Registration
Statement shall be suspended under any of other provisions of the 1933 Act.
Nothing contained in this paragraph 12 shall in any way restrict, limit or have
any application to or bearing upon the Trust's obligation to redeem Shares from
any shareholder in accordance with the provisions of its Agreement and
Declaration of Trust. The Trust will use its best efforts at all times to have
the Shares effectively registered under the 0000 Xxx.
13. The Trust agrees to advise the Distributor immediately:
(a) of any request by the SEC for amendments to the Registration
Statement or the Funds' Prospectuses or for additional
information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
Funds' Prospectuses under the 1933 Act or the initiation of any
proceedings for that purpose;
(c) of the happening of any material event that makes untrue any
statement made in the Registration Statement or the Funds'
Prospectuses or that requires the making of a change in either
thereof in order to make the statements therein not misleading;
and
(d) of all actions of the SEC with respect to any amendments to the
Registration Statement or the Funds' Prospectuses that may from
time to time be filed with the SEC under the 1933 Act or the 1940
Act.
14. Insofar as they concern the Trust, the Trust shall comply with all
applicable laws, rules and regulations, including, without limiting the
generality of the foregoing, all rules and regulations made or adopted pursuant
to the 1933 Act, the 1940 Act or by any securities association registered under
the 1934 Act.
15. The Distributor may, if it desires and at its own cost and expense,
appoint or employ agents to assist it in carrying out its obligations under this
contract, but no such appointment or employment shall relieve the Distributor of
any of its responsibilities or obligations to the Trust under this contract.
16. (a) The Distributor shall from time to time employ or associate with
it such persons as it believes necessary to assist it in carrying out
its obligations under this contract. The compensation of such persons
shall be paid by the Distributor.
(b) The Trust shall execute all documents and furnish any information
that may be reasonably necessary in connection with the
qualification of the Shares for sale in jurisdictions designated
by the Distributor.
17. The Distributor shall pay all expenses incurred in connection with its
qualification as a dealer or broker under Federal or state law. It is understood
and agreed that, so long as any Plan continues in effect, any expenses incurred
by the Distributor hereunder (as well as any other expenses that may be
permitted to be paid pursuant to a Plan) may be paid from amounts received by it
from the Trust under such Plan. The Trust shall be responsible for all of its
expenses and liabilities, including: (i) the fees and expenses of the Trust's
Trustees who are not interested persons (as defined in the 0000 Xxx) of the
Trust; (ii) the salaries and expenses of any of the Trust's officers or
employees who are not affiliated with the Distributor; (iii) interest expenses;
(iv) taxes and governmental fees, including an original issue taxes or transfer
taxes applicable to the sale or delivery of Shares or certificates therefor; (v)
brokerage commissions and other expenses incurred in acquiring or disposing of
portfolio securities; (vi) the expenses of registering and qualifying Shares for
sale with the SEC and with various state securities commissions; (vii)
accounting and legal costs; (viii) insurance premiums; (ix) fees and expenses of
the Trust's Custodian and Transfer Agent and any related services; (x) expenses
of obtaining quotations of portfolio securities and of pricing Shares; (xi)
expenses of maintaining the Trust's legal existence and of shareholders'
meetings; (xii) expenses of preparing and distributing to existing shareholders
periodic reports, proxy materials and Prospectuses; (xiii) fees and expenses of
membership in industry organizations; and (xiv) expenses of qualification of the
Trust as a foreign corporation authorized to do business in any jurisdiction if
the distributor determines that such qualification is necessary or desirable.
18. This contract shall continue in effect automatically for successive
annual periods, provided such continuance is specifically approved at least
annually (i) by a vote of a majority of the Trustees who are not parties to the
contract or interested persons (as defined in the 0000 Xxx) of any such party
and who have no director or indirect financial interest in the operation of the
Plans or in any related agreement (the "Independent Trustees"), by vote cast in
person at a meeting called for the purpose of voting on such approval and (ii)
either (a) by the vote of a majority of the outstanding voting securities (as
defined in the 0000 Xxx) of the Funds or (b) by the vote of a majority of the
entire Board of Trustees. This contract may be terminated with respect to a Fund
at any time, without payment of any penalty, by a vote of a majority of the
outstanding voting securities of that Fund (as defined in the 0000 Xxx) or by a
vote of a majority of the Independent Trustees of the Trust on 60 days' written
notice to the Distributor or by the Distributor on 60 days' written notice to
the Trust. This contract shall terminate automatically in the event of its
assignment (as defined in the 1940 Act).
19. Except to the extent necessary to perform the Distributor's obligations
under this contract, nothing herein shall be deemed to limit or restrict the
right of the Distributor, or any affiliate of the Distributor, or any employee
of the Distributor, to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of a
similar or dissimilar nature, or to render services of any kind to any other
corporation, firm, individual or association.
20. This contract shall be construed in accordance with the laws of the
State of Florida to the extent such laws are consistent with the 1940 Act.
21. The Trust's Agreement and Declaration of Trust, as amended and
restated, has been filed with the Secretary of State of The Commonwealth of
Massachusetts. The obligations of the Trust are not personally binding upon, nor
shall resort be had to the private property of any of the Trustees,
shareholders, officers, employees or agents of the Trust, but only the Trust's
property shall be bound.
If the foregoing correctly sets forth the agreement between the Trust
and the Distributor, please so indicate by signing and returning to the Trust
the enclosed copy hereof.
Very truly yours,
IVY FUND
By: XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx, President
ACCEPTED:
XXX XXXXXXXXX DISTRIBUTORS, INC.
By: XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx, President
Dated: March 16, 1999
SCHEDULE A
to the
Ivy Fund
Amended and Restated
Distribution Agreement
ALLOCATION PROCEDURES
The Distributor's Allocable Portion of Distribution Fees and Contingent
Deferred Sales Charges in respect of Shares (as hereinafter defined) of each
Fund shall be 100% until such time as the Distributor shall cease to serve as
exclusive distributor of Shares of such Fund; thereafter collections which
constitute Contingent Deferred Sales Charges, and Asset Based Sales Charges
related to Shares of such Fund shall be allocated among the Distributor and any
successor distributor ("Successor Distributor") in accordance with this Schedule
A.
Defined terms used in this Schedule (A) and not otherwise defined
herein shall have the meanings assigned to them in the Distribution Agreement.
As used herein the following terms shall have the meanings indicated:
"Commission Share" means in respect of any Fund, each Share of such
Fund, which is issued under circumstances which would normally give rise to an
obligation of the holder of such Share to pay a Contingent Deferred Sales Charge
upon redemption of such Share (including, without limitation, any Share of such
Fund issued in connection with a permitted free exchange) and any such Share
shall continue to be a Commission Share of such Fund prior to the redemption
(including a redemption in connection with a permitted free exchange) or
conversion of such Share, even though the obligation to pay the Contingent
Deferred Sales Charge may have expired or conditions for waivers thereof may
exist.
"Date of Original Issuance" means in respect of any Commission Share,
the date with reference to which the amount of the Contingent Deferred Sales
Charge payable on redemption thereof, if any, is computed.
"Free Share" means, in respect of any Fund, each Share of such Fund,
other than a Commission Share (including, without limitation, any Share issued
in connection with the reinvestment of dividends or capital gains).
"Inception Date" means in respect of any Fund, the first date on which
such Fund issued Shares.
"Net Asset Value" means, (i) with respect to any Fund, as of the date
any determination thereof is made, the net asset value of such Fund computed in
the manner such value is required to be computed by such Fund in its reports to
its shareholders, and (ii) with respect to any Share of such Fund as of any
date, the quotient obtained by dividing: (A) the net asset value of such Fund
(as computed in accordance with clause (i) above) allocated to Shares of such
Fund (in accordance with the constituent documents for such Fund) as of such
date, by (B) the number of Shares of such Fund outstanding on such date.
"Omnibus Share" means, in respect of any Fund, a Commission Share or
Free Share sold by one of the Selling Agents listed on Exhibit I. If, subsequent
to closing of the Program, the Distributor and its Transferees reasonably
determine that the Transfer Agent is able to track all Commission Shares and
Free Shares sold by any of the Selling Agents listed on Exhibit I in the same
manner as Commission Shares and Free Shares are currently tracked in respect of
Selling Agents not listed on Exhibit 1, then Exhibit I shall be amended to
delete such Selling Agent from Exhibit I so that Commission Shares and Free
Shares sold by such Selling Agent will no longer be treated as Omnibus Shares.
"Shares" means Class B shares of each Fund.
II. PART I: ATTRIBUTION OF SHARES
Shares of each Fund, which are outstanding from time to time,
shall be attributed to the Distributor and each Successor Distributor in
accordance with the following rules;
A. Commission Shares other than omnibus Shares:
1. Commission Shares which are not Omnibus Shares attributed to the Distributor
shall be Commission Shares which are not Omnibus Shares the Date of Original
Issuance of which occurred on or after the Inception Date of such Fund and on or
prior to the date the Distributor ceased to be the exclusive distributor of
Shares of such Fund.
2. Commission Shares which are not Omnibus Shares attributable to each Successor
Distributor shall be Commission Shares which are not Omnibus Shares, the Date of
Original Issuance of which occurs after the date such Successor Distributor
became the exclusive distributor of Shares of such Fund and on or prior to the
date such Successor Distributor ceased to be the exclusive distributor of Shares
of such Fund.
3. A Commission Share which is not an Omnibus Share of a particular Fund (the
"Issuing Fund") issued in consideration of the investment of proceeds of the
redemption of a Commission Share which is not an Omnibus Share of another Fund
(the "Redeeming Fund") in connection with a permitted free exchange, is deemed
to have a Date of Original Issuance identical to the Date of Original Issuance
of the Commission Share of the Redeeming Trust and any such Commission Share
will be attributed to the Distributor or Successor Distributor based upon such
Date of Original Issuance in accordance with rules (a) and (b) above.
4. A Commission Share which is not an Omnibus Share redeemed (other than in
connection with a permitted free exchange) or converted to a Class A share is
attributable to the Distributor or a Successor Distributor based upon the Date
of Original Issuance in accordance with rule (a), (b) and (c) above.
B. Free Shares:
Free Shares which are not Omnibus Shares of any Fund
outstanding on any date shall be attributed to the Distributor or a Successor
Distributor, as the case may be, in the same proportion that the Commission
Shares which are not Omnibus Shares of such Fund outstanding on such date are
attributed to each on such date; provided that if the Distributor and its
Transferees reasonably determine that the Transfer Agent is able to produce
monthly reports which track the Date of Original Issuance for such Free Shares,
then such Free Shares shall be allocated pursuant to clause (l) (a), (b) and (c)
above.
C. Omnibus Shares:
Omnibus Shares of a Fund outstanding on any date shall be
attributed to the Distributor or a Successor Distributor, as the case may be, in
the same proportion that the Commission Shares which are not Omnibus Shares of
such Fund outstanding on such date are attributed to it on such date; provided
that if the Distributor and its Transferees reasonably determine that the
Transfer Agent is able to produce monthly reports which track the Date of
Original Issuance for the Omnibus Shares, then the Omnibus Shares shall be
allocated pursuant to clause (l) (a), (b) and (c) above.
III. PART II: ALLOCATION OF CONTINGENT DEFERRED SALES CHARGES ("CDSCS") A. CDSCs
Related to the Redemption of Commission Shares which are not Omnibus Shares:
CDSCs in respect of the redemption of Commission Shares which
are not Omnibus Shares shall be allocated to the Distributor or a Successor
Distributor depending upon whether the related redeemed Commission Share is
attributable to the Distributor or such Successor Distributor, as the case may
be, in accordance with Part I above.
B. CDSCs Related to the Redemption of Omnibus Shares:
CDSCs in respect of the redemption of omnibus Shares shall be
allocated to the Distributor or a Successor Distributor in the same proportion
that CDSCs related to the redemption of Commission Shares are allocated to each
thereof; provided, that if the Distributor and its Transferees reasonably
determine that the Transfer Agent is able to produce monthly reports which track
the Date of Original Issuance for the Omnibus Shares, then the CDSCs in respect
of the redemption of Omnibus Shares shall be allocated among the Distributor and
any Successor Distributors depending on whether the related redeemed Omnibus
Share is attributable to the Distributor or a Successor Distributor, as the case
may be, in accordance with Part I above.
IV. PART III: ALLOCATION OF ASSET BASED SALES CHARGES
Assuming that the Asset Based Sales Charge remains constant
over time and among Funds so that Part IV hereof does not become operative:
A. The portion of the aggregate Asset Based Sales Charges accrued
in respect of all Shares of all Funds during any calendar
month allocable to the Distributor or a Successor Distributor
is determined by multiplying the total of such Asset Based
Sales Charges by the following fraction:
(A + C) /2
(B + D) /2
where:
A = The aggregate Net Asset Value of all Shares of all Funds
attributed to the Distributor or such Successor Distributor,
as the case may be, and outstanding at the beginning of such
calendar month.
B = The aggregate Net Asset Value of all Shares of all Funds at
the beginning of such calendar month.
C = The aggregate Net Asset Value of all Shares of all Funds
attributed to the Distributor or such Successor Distributor,
as the case may be, and outstanding at the end of such
calendar month.
D = The aggregate Net Asset Value of all Shares of all Funds
at the end of such calendar month. B. If the Distributor and
its Transferees reasonably determine that the Transfer Agent
is able to produce automated monthly reports which allocate
the average Net Asset Value of the Commission Shares (or all
Shares if available) of all Funds among the Distributor and
any Successor Distributors in a manner consistent with the
methodology detailed in Part I and Part III(1) above, the
portion of the Asset Based Sales Charges accrued in respect
of all such Shares of all Funds during a particular calendar
month will be allocated to the Distributor or a Successor
Distributor by multiplying the total of such Asset Based
Sales Charges by the following fraction:
(A) / (B)
where: A = Average Net Asset Value of all such Shares of all Funds
for such calendar month attributed to the Distributor or a
Successor Distributor, as the case may be.
B = Total average
Net Asset Value of all such Shares of all Funds for such
calendar month.
V. PART IV: ADJUSTMENT OF THE DISTRIBUTOR'S ALLOCABLE PORTION AND EACH
SUCCESSOR DISTRIBUTOR'S ALLOCABLE PORTION
The Parties to the Distribution Agreement recognize that, if the terms of
any distributor's contract, any distribution plan, any prospectus, the conduct
rules or any other applicable law change, which change disproportionately
reduces, in a manner inconsistent with the intent of this Distribution
Agreement, the amount of the Distributor's Allocable Portion or any Successor
Distributor's Allocable Portion had no such change occurred, the definitions of
the Distributor's Allocable Portion and/or the Successor Distributor's Allocable
Portion in respect of the Shares relating to the related Fund shall be adjusted
by agreement among the Distributor, its Transferees, each Successor Distributor
and the Company; provided, however, if the Distributor, its Transferees, the
Successor Distributors and the Company cannot agree within thirty (30) days
after the date of any such change in applicable laws or in any distributor's
contract, distribution plan, prospectus or the conduct rules, they shall submit
the question to arbitration in accordance with the commercial arbitration rules
of the American Arbitration Association and the decision reached by the
arbitrator shall be final and binding on each of them.
