Old Westbury Funds, Inc.
DISTRIBUTION AGREEMENT
AGREEMENT made this 30th day of September, 1996, by and
between Old Westbury Funds, Inc. (the "Fund"), a Maryland
Corporation, and EDGEWOOD SERVICES, INC. ("Edgewood"), a New York
Corporation.
In consideration of the mutual covenants hereinafter
contained, it is hereby agreed by and between the parties hereto as follows:
1. The Fund hereby appoints Edgewood as its agent to sell and
distribute shares of the Fund which may be offered in one or
more series (the "Funds") consisting of one or more classes
(the "Classes") of shares (the "Shares"), as described and
set forth on one or more exhibits to this Agreement, at the
current offering price thereof as described and set forth in
the current Prospectuses of the Fund. Edgewood hereby
accepts such appointment and agrees to provide such other
services for the Fund, if any, and accept such compensation
from the Fund, if any, as set forth in the applicable
exhibits to this Agreement. The Agreement is being entered
into pursuant to the Distribution and Service Plan (the
"Plan") adopted by the Fund on behalf of each portfolio
series in accordance with Rule 12b-1 under the Investment
Company Act of 1940, as amended (the "1940 Act").
2. The sale of any Shares may be suspended whenever in the
judgment of the Board of Directors of the Fund it is in its
best interest to do so and upon notice of such suspension.
3. Neither Edgewood nor any other person is authorized by the
Fund to give any information or to make any representation
relative to any Shares other than those contained in the
Registration Statement, Prospectuses, or Statements of
Additional Information ("SAIs") filed with the Securities
and Exchange Commission, as the same may be amended from
time to time, or in any supplemental information to said
Prospectuses, or SAIs approved in writing by the Fund.
Edgewood agrees that any other information or
representations other than those specified above which it or
any dealer or other person who purchases Shares through
Edgewood may make in connection with the offer or sale of
Shares shall be made entirely without liability on the part
of the Fund. No person or dealer, other than Edgewood, is
authorized to act as agent for the Fund for any purpose
without the prior written consent of the Fund. Edgewood
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agrees that, in offering or selling Shares as agent of the Fund, it
will, in all respect, duly conform to all applicable state and federal
laws and the rules and regulations of the National Association of
Securities Dealers, Inc., including its Rules of Fair Practice.
Edgewood will submit to the Fund copies of all sales literature before
using the same and will not use such sales literature if disapproved
by the Fund.
4. This Agreement is effective with respect to each Class as of
the date of execution of the applicable exhibit and shall
continue in effect with respect to each Class presently set
forth on an exhibit and any subsequent Classes added
pursuant to an exhibit during the initial term of this
Agreement for one year from the date set forth above, and
thereafter for successive periods of one year if such
continuance is approved at least annually by the Directors
of the Fund including a majority of the members of the Board
of Directors of the Fund who are not interested persons of
the Fund and have no direct or indirect financial interest
in the operation of any Distribution and Service Plan
relating to the Fund or in any related documents to such
Plan ("Disinterested Directors") cast in person at a meeting
called for that purpose. If a Class is added after the
first annual approval by the Directors as described above,
this Agreement will be effective as to that Class upon
execution of the applicable exhibit and will continue in
effect until the next annual approval of this Agreement by
the Directors and thereafter for successive periods of one
year, subject to approval as described above.
5. This Agreement may be terminated with regard to a particular
Fund or Class at any time, without the payment of any
penalty, by the vote of a majority of the Disinterested
Directors or by a majority of the outstanding voting
securities of the particular Fund or Class on not more than
sixty (60) days' written notice to any other party to this
Agreement. This Agreement may be terminated with regard to
a particular Fund or Class by Edgewood on sixty (60) days'
written notice to the Fund.
6. This Agreement may not be assigned by Edgewood and shall automatically
terminate in the event of an assignment by Edgewood as defined in the
1940 Act, provided, however, that Edgewood may employ such other
person, persons, corporation or corporations at its cost and expense
as it shall determine in order to assist it in carrying out its duties
under this Agreement.
7. Edgewood shall not be liable to the Fund for anything done
or omitted by it, except acts or omissions involving willful
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misfeasance, bad faith, gross negligence, or reckless disregard of the
duties imposed by this Agreement.
8. This Agreement may be amended at any time by mutual agreement in
writing of all the parties hereto, provided that such amendment is
approved by the Directors of the Fund including a majority of the
Disinterested Directors of the Fund cast in person at a meeting called
for that purpose.
9. This Agreement shall be construed in accordance with and
governed by the laws of the Commonwealth of Pennsylvania.
10. (a) Subject to the conditions set forth below, the Fund
agrees to indemnify and hold harmless Edgewood and each
person, if any, who controls Edgewood within the
meaning of Section 15 of the Securities Act of 1933 and
Section 20 of the Securities Act of 1934, as amended,
against any and all loss, liability, claim, damage and
expense whatsoever (including but not limited to any
and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any
litigation, commenced or threatened, or any claim
whatsoever) arising out of or based upon any untrue
statement or alleged untrue statement of a material
fact contained in the Registration Statement, any
Prospectuses or SAIs (as from time to time amended and
supplemented) or the omission or alleged omission
therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading, unless such statement or omission was made
in reliance upon and in conformity with written
information furnished to the Fund about Edgewood by or
on behalf of Edgewood expressly for use in the
Registration Statement, any Prospectuses and SAIs or
any amendment or supplement thereof.
If any action is brought against Edgewood or any controlling
person thereof with respect to which indemnity may be sought
against the Fund pursuant to the foregoing paragraph,
Edgewood shall promptly notify the Fund in writing of the
institution of such action and the Fund shall assume the
defense of such action, including the employment of counsel
selected by the Fund and payment of expenses. Edgewood or any
such controlling person thereof shall have the right to
employ separate counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of Edgewood
or such controlling person unless the employment of such
counsel shall have been authorized in writing by the Fund in
connection with the defense of such action or the Fund shall
not have employed counsel to have charge of the defense of
such action,
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in any of which events such fees and expenses shall be borne
by the Fund. Anything in this paragraph to the contrary
notwithstanding, the Fund shall not be liable for any
settlement of any such claim of action effected without its
written consent. The Fund agrees promptly to notify Edgewood
of the commencement of any litigation or proceedings against
the Fund or any of its officers or Directors or controlling
persons in connection with the issue and sale of Shares or in
connection with the Registration Statement, Prospectuses, or
SAIs.
(b) Edgewood agrees to indemnify and hold harmless against
any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to any and all
expenses whatsoever reasonably incurred in
investigating, preparing or defending against any
litigation, commenced or threatened, or any claim
whatsoever) the Fund, each of its Directors, each of
its officers who have signed the Registration Statement
and each other person, if any, who controls the Fund
within the meaning of Section 15 of the Securities Act
of 1933, but only with respect to statements or
omissions, if any, made in the Registration Statement
or any Prospectus, SAI, or any amendment or supplement
thereof in reliance upon, and in conformity with,
information furnished to the Fund about Edgewood by or
on behalf of Edgewood expressly for use in the
Registration Statement or any Prospectus, SAI, or any
amendment or supplement thereof. In case any action
shall be brought against the Fund or any other person
so indemnified based on the Registration Statement or
any Prospectus, SAI, or any amendment or supplement
thereof, and with respect to which indemnity may be
sought against Edgewood, Edgewood shall have the rights
and duties given to the Fund, and the Fund and each
other person so indemnified shall have the rights and
duties given to Edgewood by the provisions of
subsection (a) above.
(c) Nothing herein contained shall be deemed to protect any
person against liability to the Fund or its
shareholders to which such person would otherwise be
subject by reason of willful misfeasance, bad faith or
negligence in the performance of the duties of such
person or by reason of the reckless disregard by such
person of the obligations and duties of such person
under this Agreement.
(d) Insofar as indemnification for liabilities may be
permitted pursuant to Section 17 of the Investment
Company Act of 1940, as amended, for Directors,
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officers, Edgewood and controlling persons of the Fund by the
Directors pursuant to this Agreement, the Fund is aware of
the position of the Securities and Exchange Commission as set
forth in the Investment Company Act Release No.IC-11330.
Therefore, the Fund undertakes that in addition to complying
with the applicable provisions of this Agreement, in the
absence of a final decision on the merits by a court or other
body before which the proceeding was brought, that an
indemnification payment will not be made unless, in the
absence of such a decision, a reasonable determination based
upon factual review has been made (i) by a majority vote of a
quorum of non-party Disinterested Directors, or (ii) by
independent legal counsel in a written opinion that the
indemnitee was not liable for an act of willful misfeasance,
bad faith, gross negligence or reckless regard of duties. The
Fund further undertakes that advancement of expenses incurred
in the defense of a proceeding (upon undertaking for
repayment unless it is ultimately determined that
indemnification is appropriate) against an officer,
Directors, Edgewood or controlling person of the Fund will
not be made absent the fulfillment of at least one of the
following conditions: (i) the indemnitee provides security
for his undertaking; (ii) the Fund is insured against losses
arising by reason of any lawful advances; or (iii) a majority
of a quorum of non-party Disinterested Directors or
independent legal counsel in a written opinion makes a
factual determination that there is reason to believe the
indemnitee will be entitled to indemnification.
11. If at any time the Shares of any Fund are offered in two or more
Classes, Edgewood agrees to adopt compliance standards as to when a
class of shares may be sold to particular investors.
12. This Agreement will become binding on the parties hereto
upon the execution of the attached exhibits to the
Agreement.
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Exhibit A
to the
Distributor's Contract
OLD WESTBURY FUNDS, INC.
Fund Name
Class Share Name
In consideration of the mutual covenants set forth in the
Distributor's Contract dated September 30, 1996 between Old Westbury Fund and
Edgewood Services, Inc., Old Westbury Funds, Inc. executes and delivers this
Exhibit on behalf of Fund Name, and with respect to the Class Share Name
thereof, first set forth
in this Exhibit.
Witness the due execution hereof this __ day of
--------, ----.
ATTEST: OLD WESTBURY FUNDS, INC.
----------------------------------- By:------------------------------
Secretary President
(SEAL)
ATTEST: EDGEWOOD SERVICES, INC.
----------------------------------- By:------------------------------
Secretary Executive Vice President
(SEAL)
427698.1
Exhibit B
Distribution Agreement
OLD WESTBURY FUNDS, INC.
Old Westbury International Fund (the "Portfolio")
The following provisions are hereby incorporated and
made part of the Distribution Agreement dated the day of
1996, between Old Westbury Funds, Inc., on behalf of the
Portfolio, and Edgewood Services, Inc. ("ESI"):
1. The Portfolio hereby appoints ESI, as its agent, to offer,
and to solicit offers to subscribe to, the unsold balance of shares of the
series of common stock represented by the Portfolio as shall then be
effectively registered under the 1933 Act ("Common Stock"). All subscriptions
for shares of Common Stock obtained by ESI shall be directed to for acceptance
and shall not be binding on the Portfolio until accepted by the Portfolio. ESI
shall have no authority to make binding subscriptions on the Portfolio's
behalf. The Portfolio reserves the right to sell shares of each series of
Common Stock through other distributors or directly to investors through
subscriptions received by the Portfolio at its principal office. The right
given to ESI under this agreement shall not apply to any shares of Common Stock
issued in connection with (1) the merger or consolidation of any other
investment company with the Portfolio, (2) the Portfolio acquisition by
purchase or other wise of all or substantially all of the assets or stock of
any other investment company, or (3) the reinvestment in shares of Common Stock
by Portfolio stockholders of dividends or other distributions or any other
offering by the Fund of securities to its stockholders.
2. The Fund will also reimburse ESI in an amount not to
exceed .10% per annum of the Portfolio's average daily net assets for ESI's
costs incurred:
(i) to compensate broker-dealers with whom ESI has
contracts for providing assistance in distributing shares of
Common Stock; and
(ii) to pay the cost of the preparation and printing
of brochures and other promotional materials, mailings to prospective
shareholders, advertising, and other promotional activities, including the
salaries and/or commissions of ESI and other sales personnel, and of printing
and distributing the Portfolio's prospectus to prospective investors in
connection with the distribution of its shares.
3. ESI may sell shares of Common Stock to or through
qualified brokers, dealers and financial institutions under
selling and servicing agreements provided that no dealer,
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financial institution or other person shall be appointed or authorized to act
as the Portfolio's agent without its written consent. The Portfolio acknowledge
that ESI as Distributor to the Portfolio pursuant to the Shareholder Servicing
Agreement with the Portfolio may arrange for broker-dealers whose customers or
clients are Portfolio shareholders (each a "Broker-Dealer") to enter into
agreements with ESI as the Distributor pursuant to which the Broker-Dealers
will be compensated directly by the Distributor for the performance of
shareholder servicing and related administrative functions not performed by the
Advisor or its Shareholder Servicing Agents, the Distributor, the Administrator
or the Transfer Agent. Such payments will be made only pursuant to written
agreements approved in form and substance by the Board of Directors to be
entered into by the Distributor and the Broker-Dealers. It is recognized that
the Portfolio shall have no obligation or liability to ESI, them or any
Broker-Dealer for any such payments under the agreements with Broker-Dealers.
The Portfolio's obligation is solely to make payments to the Advisor under the
Advisory Agreement and the Shareholder Servicing Agreement and to the
Distributor under the Shareholder Servicing Agreement.
4. Both the Portfolio and ESI will cooperate with each other
in taking such action as may be necessary to qualify shares of common stock for
sale under the securities laws of such states as the Portfolio may designate,
provided, that ESI shall not be required to register as a broker-dealer or file
a consent to service of process in any such state where you are not now so
registered. Pursuant to an Advisory Agreement dated October 12, 1993 between
the Portfolio and the Advisor, the Portfolio will pay all fees and expenses of
registering shares of all series of Common Stock under the 1933 Act and of
qualification of shares of all series of Common Stock, and to the extent
necessary, qualification under applicable state securities laws. ESI will pay
all expenses relating to its broker-dealer qualification.
5. ESI will prepare reports to the Board of Directors of the
Fund on a quarterly basis showing amounts expended hereunder, including amounts
paid to Brokers and the purpose of such payments.
In consideration of the mutual covenants set forth in the
Distributor's Contract dated September 30, 1996 between Old Westbury Fund and
Edgewood Services, Inc., Old Westbury Funds, Inc. executes and delivers this
Exhibit on behalf of Fund Name, and with respect to the Class Share Name
thereof, first set forth
in this Exhibit.
Witness the due execution hereof this __ day of
--------, ----.
ATTEST: OLD WESTBURY FUNDS, INC.
----------------------------------- By:------------------------------
Secretary President
(SEAL)
ATTEST: EDGEWOOD SERVICES, INC.
----------------------------------- By:------------------------------
Secretary Executive Vice President
(SEAL)
427698.1
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