DISTRIBUTION AGREEMENT
Distribution Agreement (the “Agreement”) made this 1st day of November, 2011, by and between
Holland Series Fund, Inc., a Maryland Corporation (the “Company”) and ALPS Distributors, Inc., a
Colorado corporation (the “Distributor”).
WHEREAS, the Company is a registered open-end management investment company organized as a
series corporation offering a number of portfolios of securities (each a “Fund” and collectively,
the “Funds”);
WHEREAS, the Company and Distributor are party to a Distribution Agreement dated September 30,
2005, attached hereto as Exhibit A and incorporated herein by reference (the “Distribution
Agreement”) whereby the Company retained the Distributor to promote and distribute the shares of
the Funds.
WHEREAS, on July 19, 2011, ALPS Holdings, Inc., (“AHI”) the parent company of the Distributor,
entered into a merger agreement pursuant to which AHI agreed to be acquired by DST Systems, Inc.
(“DST”) (the “Transaction”); the acquisition also includes an indirect controlling interest in the
Distributor;
WHEREAS, upon completion of the Transaction, the Transaction may result in an “assignment”, as
such term is defined under the Investment Company Act of 1940, as amended, (the “1940 Act”) of the
Distribution Agreement;
WHEREAS, under the 1940 Act, an assignment includes any direct or indirect transfer of a
controlling block of an entity’s voting securities and a result of the assignment, henceforth the
Distribution Agreement may be deemed terminated; and
WHEREAS, in light of the proposed assignment and change in control of the Distributor in
connection with the Transaction, the Distributor and Company wish to enter into this Agreement
effective upon close of the Transaction.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the
Company and the Distributor agree as follows:
| 1. | Appointment. The Company hereby appoints the Distributor to provide the distribution services set forth in the Distribution Agreement. | ||
| 2. | All terms, conditions, representations and warranties contained in the Distribution Agreement are incorporated herein by reference and both the Company and Distributor hereby agree that unless specified elsewhere in this Agreement, all terms, conditions, representations and warranties contained in the this Agreement, including the Distribution Agreement attached hereto as Exhibit A and incorporated herein by reference, constitutes the entire understanding between the parties hereto, and supersede any prior understanding or agreements between the parties related to the services contemplated herein, including the Distribution Agreement. | ||
| 3. | Duration and Termination. This Agreement shall be effective on the date first set forth above, and unless terminated as provided herein, shall continue for one year from its |
| effective date, and thereafter from year to year, provided such continuance is approved annually by the vote of a majority of the Board of Directors, and by the vote of those Directors who are not “interested persons” of the Company (the “Independent Directors”) and, if a plan under Rule 12b-1 under the 1940 Act is in effect, by the vote of those Directors who are not “interested persons” of the Company and who are not parties to such plan or this Agreement and have no financial interest in the operation of such plan or in any agreements related to such plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement may be terminated at any time, without the payment of any penalty, as to each Fund (i) by vote of majority of the Independent Directors or (ii) by vote of a majority (as defined in the 0000 Xxx) of the outstanding voting securities of the Fund, on at least sixty (60) days prior written notice to the Distributor. In addition, this Agreement may be terminated at any time by the Distributor upon at least sixty (60) days prior written notice to the Company. This Agreement shall automatically terminate in the event of its assignment. As such in this paragraph, the terms “assignment” and “interested persons” shall have the respective meanings specified in the 1940 Act. | |||
| 4. | Amendment. No provision of this Agreement may be changed, waived, discharged or terminated except by an instrument in writing signed by the party against which an enforcement of the change, waiver, discharge or termination is sought. | ||
| 5. | Choice of Law. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of New York, without giving effect to the choice of laws provisions thereof. | ||
| 6. | Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. | ||
| 7. | All capitalized terms used but not defined in this Agreement shall have the meanings ascribed to them in the Distribution Agreement. |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their officers
designated below as of the date first set forth above.
ALPS DISTRIBUTORS, INC.
By: Name: Title: |
/s/ Xxxxxx X. Xxxxxx
President |
HOLLAND SERIES FUND, INC.
By: Name: Title: |
/s/ Xxxxxxx X. Xxxxxxx
Chairman |
EXHIBIT A
DISTRIBUTION AGREEMENT
AGREEMENT dated as of September 30, 2005 between Holland Series Fund, Inc. (the “Fund”), an
open-end, management investment company organized as a corporation under the laws of the State of
Maryland and ALPS Distributors, Inc., a Colorado corporation and a registered broker-dealer under
the Securities Exchange Act of 1934, having its principal place of business in Denver, Colorado
(the “Distributor”).
WHEREAS, the Fund wishes to employ the services of the Distributor in connection with the
promotion and distribution of the shares of each series of the Fund (the “Shares”); and
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the
parties agree as follows:
1. Documents – The Fund has furnished the Distributor with copies of the Fund’s Certificate of
Incorporation, advisory agreement, custodian agreement, transfer agency agreement, administration
agreement, current prospectuses and statement of additional information, and all forms relating to
any plan, program or service offered by the Fund. The Fund shall furnish promptly to the
Distributor a copy of any amendment or supplement to any of the above-mentioned documents. The
Fund shall furnish promptly to the Distributor any additional documents necessary or advisable to
perform its functions hereunder. As used in this Agreement the terms “registration statement”,
“prospectus” and “statement of additional information” shall mean any registration statement,
prospectus and statement of additional information filed by the Fund with the Securities and
Exchange Commission (“SEC”) and any amendments and supplements thereto which at any time shall have
been filed with the SEC.
2. Sale of Shares – The Fund grants to the Distributor the right to sell the Shares as agent on
behalf of the Fund, during the term of this Agreement, subject to the registration requirements of
the Securities Act of 1933, as amended (the “1933 Act”), the Investment Company Act of 1940 (the
“1940 Act”) and of the laws governing the sale of securities in the various states (“Blue Sky
Laws”), under the terms and conditions set forth in this Agreement. The Distributor shall have the
right to sell, as agent on behalf of the Fund, the Shares covered by the registration statement,
prospectus and statement of additional information for the Fund then in effect under the 1933 Act
and the 1940 Act.
3. Sale of Shares by the Fund – The rights granted to the Distributor shall be nonexclusive in that
the Fund reserves the right to sell Shares to investors on applications received and accepted by
the Fund.
4. Public Offering Price – Except as otherwise noted in the Fund’s current prospectus and/or
statement of additional information, all Shares sold to investors by the Distributor or the Fund
will be sold at the public offering price. The public offering price for all accepted
subscriptions will be the net asset value per Share, as determined in the manner described in the
Fund’s current prospectuses and/or statement of additional information.
5. Suspension of Sales – The Fund reserves the right to suspend sales and the Distributor’s
authority to process orders for Shares on behalf of the Fund if, in the judgment of the Fund, it is
in the best interests of the Fund to do so. Suspension will continue for such period as may be
determined by the Fund.
6. Solicitation of Sales – In consideration of these rights granted to the Distributor, the
Distributor agrees to use its best efforts to solicit orders for the sale of the Shares at the
public offering price and will undertake such advertising and promotion as it believes is
reasonable in connection with such solicitation. The Distributor shall review and file such
materials with the SEC and the National Association of Securities, Inc. (the “NASD”) to the extent
required by the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the 1940 Act
and the rules and regulations thereunder, and by the rules of the NASD. This shall not prevent the
Distributor from entering into like arrangements (including arrangements involving the payment of
underwriting commissions) with other issuers. The Distributor will act only on its own behalf as
principal should it choose to enter into selling agreements with selected dealers or others.
7. Authorized Representations – The Distributor is not authorized by the Fund to give any
information or to make any representations other than those contained in the registration statement
or prospectus and statement of additional information, or contained in shareholder reports or other
material that may be prepared by or on behalf of the Fund for the Distributor’s use. Consistent
with the foregoing, the Distributor may prepare and distribute sales literature or other material
as it may deem appropriate in consultation with the Fund, provided such sales literature complies
with applicable law and regulation.
8. Registration of Shares – The Fund agrees that it will take all action necessary to register the
Shares under the 1933 Act and the 1940 Act (subject to the necessary approval of its shareholders).
The Fund shall make available to the Distributor, at the Distributor’s expense, such number of
copies of its prospectus and statement of additional information as the Distributor may reasonably
request. The Fund shall furnish to the Distributor copies of all information, financial statements
and other papers which the Distributor may reasonably request for use in connection with the
distribution of Shares of the Fund.
9. Distribution Fees and Expenses – The Distributor shall furnish, at its expense, and without cost
to the Fund, the services of personnel to the extent that such services are required to carry out
its obligations under this Agreement. Such personnel shall consist of one or more persons, during
normal business hours (7:00 a.m. to 6:00 p.m. mountain time), to respond to telephone questions
with respect to the Fund.
10. Fund Expenses – Unless otherwise agreed to by the parties hereto in writing or by the Fund and
the Fund’s other agents, the Distributor shall not be responsible for fees and expenses in
connection with (a) filing of any registration statement, printing and the distribution of any
prospectus and statement of additional information under the 1933 Act and/or the 1940 Act and
amendments prepared for use in connection with the offering of Shares for sale to the public,
preparing, setting in type, printing and mailing the prospectus, statement of additional
information and any supplements thereto sent to existing shareholders, (b) preparing, setting in
type, printing and mailing any report (including annual and semi-annual reports) or other
communication to shareholders of the Fund, and (c) with the Blue Sky registration and qualification
of Shares for sale in the various states in which the officers of the Fund shall determine it
advisable to qualify such Shares for sale (including registering the Fund as a broker or dealer or
any officer of the Fund as agent or salesman in any state).
11. Use of the Distributor’s Name – The Fund shall not use the name of the Distributor, or any of
its affiliates, in any prospectus or statement of additional information, sales literature, and
other material relating to the Fund in any manner without the prior written consent of the
Distributor (which shall not be unreasonably withheld); provided, however, that the Distributor
hereby approves all lawful uses of the names of the Distributor and its affiliates in the
prospectus and statement of additional information of the Fund and in all other materials which
merely refer in accurate terms to their appointments hereunder or which are required by the SEC,
NASD, OCC or any state securities authority.
12. Use of the Fund’s Name – Neither the Distributor nor any of its affiliates shall use the name
of the Fund in any publicly disseminated materials, including sales literature in any manner
without the prior consent of the Fund (which shall not be unreasonably withheld); provided,
however, that the Fund hereby approves all lawful uses of its name in any required regulatory
filings of the Distributor which merely refer in accurate terms to the appointment of the
Distributor hereunder, or which are required by the SEC, NASD, OCC or any state securities
authority.
13. Insurance – The Distributor agrees to maintain fidelity bond and liability insurance coverages
which are, in scope and amount, consistent with coverages customary for distribution activities.
The Distributor shall notify the Fund upon receipt of any notice of material, adverse change in the
terms or provisions of its insurance coverage. Such notification shall include the date of change
and the reason or reasons therefor. The Distributor shall notify the Fund of any material claim
against it, whether or not covered by insurance, and shall notify the Fund from time to time as may
be appropriate of the total outstanding claims made by it under its insurance coverage.
14. Indemnification – The Fund agrees to indemnify and hold harmless the Distributor and each of
its directors and officers and each person, if any, who controls the Distributor within the meaning
of Section 15 of the 1933 Act, against any loss, liability, claim, damages or expenses (including
the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or
expense and reasonable counsel fees incurred in connection therewith) arising by reason of any
person acquiring any Shares, based upon the ground that the registration statement, prospectus,
statement of additional information, shareholder reports or other information filed or made public
by the Fund (as from time to time amended) included an untrue statement of material fact or omitted
to state a material fact required to be stated or necessary in order to make the statements not
misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the
Fund does not agree to indemnify the Distributor or hold it harmless to the extent that the
statement or omission was made in reliance upon, and in conformity with, information furnished to
the Fund by or on behalf of the Distributor. In no case (i) is the indemnity of the Fund in favor
of the Distributor or any person indemnified to be deemed to protect the Distributor or any person
against any liability to the Fund or its security holders to
which the Distributor or such person
would otherwise be subject by reason of willful misfeasance, bad faith or negligence in the
performance of its duties or by reason of its reckless disregard of its obligations and duties
under this Agreement, or (ii) is the Fund to be liable under its indemnity agreement contained in
this paragraph with respect to any claim made against the Distributor or any person indemnified
unless the Distributor or person, as the case may be, shall have notified the Fund in writing of
the claim promptly after the summons or other first written notification giving information of the
nature of the claim shall have been served upon the Distributor or any such person (or after the
Distributor or such person shall have received notice of service on any designated agent).
However, failure to notify the Fund of any claim shall not relieve the Fund from any liability
which it may have to the any person against whom such action is brought otherwise than on account
of its indemnity agreement contained in this paragraph. The Fund shall be entitled to participate
at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought
to enforce any claims, and if the Fund elects to assume the defense, the defense shall be conducted
by counsel chosen by the Fund. In the event the Fund elects to assume the defense of any suit and
retain counsel, the Distributor, officers or directors or controlling person or persons, defendant
or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by
them. If the Fund does not elect to assume the defense of any suit, it will reimburse the
Distributor, officers or directors or controlling person or persons, defendant or defendants in the
suit for the reasonable fees and expenses of any counsel retained by them. The Fund agrees to
notify the Distributor promptly of the commencement of any litigation or proceedings against it or
any of its officers in connection with the issuance or sale of any of the Shares.
The Distributor also covenants and agrees that it will indemnify and hold harmless the Fund and
each of its officers and each person, if any, who controls the Fund within the meaning of Section
15 of the 1933 Act, against any loss, liability, damages, claims or expense (including the
reasonable cost of investigating or defending any alleged loss, liability, damages, claim or
expense and reasonable counsel fees incurred in connection therewith) arising by reason of any
person acquiring any Shares, based upon the 1933 Act, the 1940 Act or any other statute or common
law, alleging (a) any wrongful act of the Distributor or any of its employees or (b) that any sales
literature, advertisements, information, statements or representations used or made by the
Distributor or any of its affiliates or employees or that the registration statement, prospectus,
statement of additional information, (as from time to time amended) included an untrue statement of
material fact or omitted to state a material fact required to be stated or necessary in order to
make the statements not misleading, insofar as the statement or omission was made in reliance upon,
and in conformity with, information furnished to the Fund by or on behalf of the Distributor. In
no case (i) is the indemnity of the Distributor in favor of the Fund or any person indemnified to
be deemed to protect the Fund or any person against any liability to which the Fund or such person
would otherwise be subject by reason of willful misfeasance, bad faith or negligence in the
performance of its duties or by reason of its reckless disregard of its obligations and duties
under this Agreement, or (ii) is the Distributor to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or person, as the case may be, shall have notified the Distributor in
writing of the claim promptly after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the Fund or any such person (or
after the Fund or such person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim shall not relieve the Distributor from any
liability which it may have to the Fund or any person against whom such action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. In the case of any notice
to the Distributor, it shall be entitled to participate at its own expense in the defense, or, if
it so elects, to assume the defense of any suit brought to enforce the claim, and if the
Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it
and satisfactory to the Fund, to its officers and to any controlling person or persons, defendant
or defendants in the suit. In the event that the Distributor elects to assume the defense of any
suit and retain counsel, the Fund or controlling persons, defendant or defendants in the suit,
shall bear the fees and expenses of any additional counsel retained by them. If the Distributor
does not elect to assume the defense of any suit, it will reimburse the Fund, officers or
controlling person or persons, defendant or defendants in the suit, for the reasonable fees and
expenses of any counsel retained by them. The Distributor agrees to notify the Fund promptly of
the commencement of any litigation or proceedings against it in connection with the Fund and sale
of any of the Shares.
15. Supplemental Information – The Distributor and the Fund shall regularly consult with each other
regarding the Distributor’s performance of its obligations under this Agreement. In connection
therewith, the Fund shall submit to the Distributor at a reasonable time in advance of filing with
the SEC copies of any amended or supplemented registration statement (including exhibits) under the
1933 Act and the 1940 Act; provided, however, that nothing contained in this Agreement shall in any
way limit the Fund’s right to file at any time such amendments to any registration statement and/or
supplements to any prospectus or statement of additional information, of whatever character, as the
Fund may deem advisable, such right being in all respects absolute and unconditional.
The Distributor acknowledges that the only information provided to it by the Fund is that contained
in the registration statement, the prospectus, the statement of additional information and reports
and financial information referred to herein. Neither the Distributor nor any other person is
authorized by the Fund to give any information or to make any representations, other than those
contained in such documents and any sales literature or advertisements specifically approved by
appropriate representatives of the Fund.
16. Term – This Agreement shall become effective as of June 1, 1999 and shall continue until two
years from such date and thereafter shall continue automatically for successive annual periods,
provided such continuance is specifically approved at least annually (i) by the Fund’s Board of
Directors or (ii) by a vote of a majority of the outstanding voting securities of the relevant
Portfolios of the Fund (as defined in the 1940 Act), provided that in either event the continuance
is also approved by the majority of the Directors of the Fund who are not interested persons (as
defined in the 0000 Xxx) of any party to this Agreement, by vote cast in person at a meeting called
for the purpose of voting on such approval. This Agreement is terminable without penalty on sixty
days’ notice by the Fund’s Board of Directors, by vote of the holders of a majority of the Fund’s
outstanding Shares or by the Distributor. This Agreement shall automatically terminate in the
event of its assignment (as defined in the 1940 Act).
Upon the termination of this Agreement, the Distributor, at the Fund’s expense and direction, shall
transfer to such successor as the Fund shall specify all relevant books, records and other data
established or maintained by the Distributor under this Agreement.
17. Notice – Any notice required or permitted to be given by either party to the other shall be
deemed sufficient if sent by (i) telex, (ii) telecopier, or (iii) registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party of the last address
furnished by the other party to the party giving notice: if to the Fund at Holland Series Fund,
Inc., c/o Holland & Company, L.L.C., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxxx
X. Xxxxxxx, with a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: Xxxx X. Xxxxxxx; and if to the Distributor, at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx, 00000, Attn: General Counsel, or such other telex number or address as may be furnished
by one party to the other.
18. Confidential Information – The Distributor, its officers, directors, employees and agents will
treat confidentially and as proprietary information of the Fund all records and other information
relative to the Fund and to prior or present shareholders or to those persons or entities who
respond to the Distributor’s inquiries concerning investment in the Fund, and will not use such
records and information for any purposes other than performance of its responsibilities and duties
hereunder. If Distributor is requested or required by, but not limited to, oral questions,
interrogatories, request for information or documents, subpoena, civil investigation, demand or
other action, proceeding or process or as otherwise required by law, statute, regulation, writ,
decree or the like to disclose such information, Distributor will provide Fund with prompt written
notice of any such request or requirement so that Fund may seek an appropriate protective order or
other appropriate remedy and/or waive compliance with this provision. If such order or other
remedy is not sought, or obtained, or waiver not received, Distributor may without liability
hereunder, disclose to the person entity or agency requesting or requiring the information, that
portion of the information that is legally required in the opinion of Distributor’s counsel.
19. Limitation of Liability – The Distributor is expressly put on notice of the limitation of
shareholder, officer and Director liability as set forth in the Certificate of Incorporation of the
Fund and agrees that the obligations assumed by the Fund under this contract shall be limited in
all cases to the Fund and its assets. The Distributor agrees that it shall not seek satisfaction
of any such obligation from the shareholders or any individual shareholder of the Fund. Nor shall
the Distributor seek satisfaction of any such obligation from the Directors, officers or any
individual Director or officer of the Fund. The Distributor understands that the rights and
obligations of each series of Shares of the Fund under the Fund’s Certificate of Incorporation are
separate and distinct from those of any and all other series.
Any obligations of the Fund entered into in the name or on behalf thereof by any of the Directors
or officers, representatives or agents are made not individually, but in such capacities, and are
not binding upon any of the Directors or officers, shareholders, or representatives of the Fund
personally, but bind only the Fund property, and all persons dealing with any class of Shares of
the Fund must look solely to the Fund property belonging to such class for the enforcement of any
claims against the Fund.
20. Miscellaneous – Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof. This Agreement shall be construed
and enforced in accordance with and governed by, and construed and interpreted in accordance with,
the laws of the State of New York. The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or otherwise affect
their construction or effect. This Agreement may not be changed, waived, discharged or amended
except by written instrument which shall make specific reference to this Agreement and which shall
be signed by the party against which enforcement of such change, waiver, discharge or amendment is
sought. This Agreement may be executed simultaneously in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
All activities by the Distributor and its agents and employees as distributor of the Shares shall
comply with all applicable laws, rules and regulations, including, without limitation, all rules
and regulations made or adopted by the SEC or any securities association registered under the
Exchange Act.
Distributor will promptly transmit any orders received by it for purchase, redemption or exchange
of the Shares to the Fund’s transfer agent.
IN WITNESS WHEREOF, the Fund has executed this instrument in its name and behalf, and the
Distributor has executed this instrument in its name and behalf, as of the day and year first above
written.
| HOLLAND SERIES FUND, INC. | ALPS DISTRIBUTORS, INC. | |||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxx
|
By: | /s/ Xxxxxx X. Xxxxxx
|
|||||||
Title:
|
President | Title: | Chief Financial Officer | |||||||
Addendum to Distribution Agreement Dated
June 1, 1999
Between
ALPS Mutual Funds Services, Inc.
and
Holland Series Fund, Inc.
June 1, 1999
Between
ALPS Mutual Funds Services, Inc.
and
Holland Series Fund, Inc.
THIS ADDENDUM is made as of March 30, 2001 by and between ALPS Mutual Funds Services, Inc.
(“ALPS”), and the Holland Series Fund, Inc. (“Holland”).
WHEREAS, ALPS and Holland have entered into a Distribution Agreement (the “Agreement”) dated
June 1, 1999;
WHEREAS, Effective April 2, 2001, ALPS, as distributor, will change its name to ALPS
Distributors, Inc.
WHEREAS, in light of the foregoing, ALPS and Holland wish to modify the provisions of the
Agreement to reflect the change in the name of ALPS to ALPS Distributors, Inc.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
| 1. | ALPS Distributors, Inc. All references to ALPS Mutual Funds Services, Inc. within the Agreement shall be replaced with references to ALPS Distributors, Inc. | ||
| 2. | Remainder of the Agreement. All other provisions of the Agreement shall remain unchanged. |
IN WITNESS WHEREOF, this Addendum has been executed by a duly authorized representative of
each of the parties hereto as of the date of the Addendum first set forth above.
| ALPS Mutual Funds Services, Inc. | Holland Series Fund, Inc. | |||||||||
By: Name: |
/s/ Xxxxxx X. May
|
By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||||||
Title:
|
Managing Director | Title: | Chairman | |||||||
