GENERAL DISTRIBUTOR'S AGREEMENT
BETWEEN
XXXXXXXXXXX MULTICAP VALUE FUND
AND
XXXXXXXXXXX FUNDS DISTRIBUTOR, INC.
Date: ______________, 2001
XXXXXXXXXXX FUNDS DISTRIBUTOR, INC.
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Dear Sirs:
XXXXXXXXXXX MULTICAP VALUE FUND, a Massachusetts business trust (the
"Fund"), is registered as an investment company under the Investment Company
Act of 1940 (the "1940 Act"), and an indefinite number of one or more classes
of its shares of beneficial interest ("Shares") have been registered under
the Securities Act of 1933 (the "1933 Act") to be offered for sale to the
public in a continuous public offering in accordance with the terms and
conditions set forth in the Prospectus and Statement of Additional
Information ("SAI") included in the Fund's Registration Statement as it may
be amended from time to time (the "current Prospectus and/or SAI").
In this connection, the Fund desires that your firm (the "General
Distributor") act in a principal capacity as General Distributor for the sale
and distribution of Shares which have been registered as described above and
of any additional Shares which may become registered during the term of this
Agreement. You have advised the Fund that you are willing to act as such
General Distributor, and it is accordingly agreed by and between us as
follows:
1. Appointment of the Distributor. The Fund hereby appoints you as
the sole General Distributor, pursuant to the aforesaid continuous public
offering of its Shares, and the Fund further agrees from and after the date
of this Agreement, that it will not, without your consent, sell or agree to
sell any Shares otherwise than through you, except (a) the Fund may itself
sell shares without sales charge as an investment to the officers, trustees
or directors and bona fide present and former full-time employees of the
Fund, the Fund's Investment Adviser and affiliates thereof, and to other
investors who are identified in the current Prospectus and/or SAI as having
the privilege to buy Shares at net asset value; (b) the Fund may issue shares
in connection with a merger, consolidation or acquisition of assets on such
basis as may be authorized or permitted under the 1940 Act; (c) the Fund may
issue shares for the reinvestment of dividends and other distributions of the
Fund or of any other Fund if permitted by the current Prospectus and/or SAI;
and (d) the Fund may issue shares as underlying securities of a unit
investment trust if such unit investment trust has elected to use Shares as
an underlying investment; provided that in no event as to any of the
foregoing exceptions shall Shares be issued and sold at less than the
then-existing net asset value.
2. Sale of Shares. You hereby accept such appointment and agree to
use your best efforts to sell Shares, provided, however, that when requested
by the Fund at any time because of market or other economic considerations or
abnormal circumstances of any kind, or when agreed to by mutual consent of
the Fund and the General Distributor, you will suspend such efforts. The Fund
may also withdraw the offering of Shares at any time when required by the
provisions of any statute, order, rule or regulation of any governmental body
having jurisdiction. It is understood that you do not undertake to sell all
or any specific number of Shares.
3. Sales Charge. Shares shall be sold by you at net asset value plus
a front-end sales charge not in excess of 8.5% of the offering price, but
which front-end sales charge shall be proportionately reduced or eliminated
for larger sales and under other circumstances, in each case on the basis set
forth in the Fund's current Prospectus and/or SAI. The redemption proceeds of
shares offered and sold at net asset value with or without a front-end sales
charge may be subject to a contingent deferred sales charge ("CDSC") under
the circumstances described in the current Prospectus and/or SAI. You may
reallow such portion of the front-end sales charge to dealers or cause
payment (which may exceed the front-end sales charge, if any) of commissions
to brokers through which sales are made, as you may determine, and you may
pay such amounts to dealers and brokers on sales of shares from your own
resources (such dealers and brokers shall collectively include all domestic
or foreign institutions eligible to offer and sell the Shares), and in the
event the Fund has more than one class of Shares outstanding, then you may
impose a front-end sales charge and/or a CDSC on Shares of one class that is
different from the charges imposed on Shares of the Fund's other class(es),
in each case as set forth in the current Prospectus and/or SAI, provided the
front-end sales charge and CDSC to the ultimate purchaser do not exceed the
respective levels set forth for such category of purchaser in the Fund's
current Prospectus and/or SAI.
4. Purchase of Shares.
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(a) As General Distributor, you shall have the right to accept or
reject orders for the purchase of Shares at your discretion. Any
consideration which you may receive in connection with a rejected purchase
order will be returned promptly.
(b) You agree promptly to issue or to cause the duly appointed
transfer or shareholder servicing agent of the Fund to issue as your agent
confirmations of all accepted purchase orders and to transmit a copy of such
confirmations to the Fund. The net asset value of all Shares which are the
subject of such confirmations, computed in accordance with the applicable
rules under the 1940 Act, shall be a liability of the General Distributor to
the Fund to be paid promptly after receipt of payment from the originating
dealer or broker (or investor, in the case of direct purchases) and not later
than eleven business days after such confirmation even if you have not
actually received payment from the originating dealer or broker or investor.
In no event shall the General Distributor make payment to the Fund later than
permitted by applicable rules of the National Association of Securities
Dealers, Inc.
(c) If the originating dealer or broker shall fail to make timely
settlement of its purchase order in accordance with applicable rules of the
National Association of Securities Dealers, Inc., or if a direct purchaser
shall fail to make good payment for shares in a timely manner, you shall have
the right to cancel such purchase order and, at your account and risk, to
hold responsible the originating dealer or broker, or investor. You agree
promptly to reimburse the Fund for losses suffered by it that are
attributable to any such cancellation, or to errors on your part in relation
to the effective date of accepted purchase orders, limited to the amount that
such losses exceed contemporaneous gains realized by the Fund for either of
such reasons with respect to other purchase orders.
(d) In the case of a canceled purchase for the account of a
directly purchasing shareholder, the Fund agrees that if such investor fails
to make you whole for any loss you pay to the Fund on such canceled purchase
order, the Fund will reimburse you for such loss to the extent of the
aggregate redemption proceeds of any other shares of the Fund owned by such
investor, on your demand that the Fund exercise its right to claim such
redemption proceeds. The Fund shall register or cause to be registered all
Shares sold to you pursuant to the provisions hereof in such names and
amounts as you may request from time to time and the Fund shall issue or
cause to be issued certificates evidencing such Shares for delivery to you or
pursuant to your direction if and to the extent that the shareholder account
in question contemplates the issuance of such certificates. All Shares when
so issued and paid for, shall be fully paid and non-assessable by the Fund
(which shall not prevent the imposition of any CDSC that may apply) to the
extent set forth in the current Prospectus and/or SAI.
5. Repurchase of Shares.
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(a) In connection with the repurchase of Shares, you are
appointed and shall act as Agent of the Fund. You are authorized, for so long
as you act as General Distributor of the Fund, to repurchase, from authorized
dealers, certificated or uncertificated shares of the Fund ("Shares") on the
basis of orders received from each dealer ("authorized dealer") with which
you have a dealer agreement for the sale of Shares and permitting resales of
Shares to you, provided that such authorized dealer, at the time of placing
such resale order, shall represent (i) if such Shares are represented by
certificate(s), that certificate(s) for the Shares to be repurchased have
been delivered to it by the registered owner with a request for the
redemption of such Shares executed in the manner and with the signature
guarantee required by the then-currently effective prospectus of the Fund, or
(ii) if such Shares are uncertificated, that the registered owner(s) has
delivered to the dealer a request for the redemption of such Shares executed
in the manner and with the signature guarantee required by the then-currently
effective prospectus of the Fund.
(b) You shall (a) have the right in your discretion to accept or
reject orders for the repurchase of Shares; (b) promptly transmit
confirmations of all accepted repurchase orders; and (c) transmit a copy of
such confirmation to the Fund, or, if so directed, to any duly appointed
transfer or shareholder servicing agent of the Fund. In your discretion, you
may accept repurchase requests made by a financially responsible dealer which
provides you with indemnification in form satisfactory to you in
consideration of your acceptance of such dealer's request in lieu of the
written redemption request of the owner of the account; you agree that the
Fund shall be a third party beneficiary of such indemnification.
(c) Upon receipt by the Fund or its duly appointed transfer or
shareholder servicing agent of any certificate(s) (if any has been issued)
for repurchased Shares and a written redemption request of the registered
owner(s) of such Shares executed in the manner and bearing the signature
guarantee required by the then-currently effective Prospectus or SAI of the
Fund, the Fund will pay or cause its duly appointed transfer or shareholder
servicing agent promptly to pay to the originating authorized dealer the
redemption price of the repurchased Shares (other than repurchased Shares
subject to the provisions of part (d) of Section 5 of this Agreement) next
determined after your receipt of the dealer's repurchase order.
(d) Notwithstanding the provisions of part (c) of Section 5 of
this Agreement, repurchase orders received from an authorized dealer after
the determination of the Fund's redemption price on a regular business day
will receive that day's redemption price if the request to the dealer by its
customer to arrange such repurchase prior to the determination of the Fund's
redemption price that day complies with the requirements governing such
requests as stated in the current Prospectus and/or SAI.
(e) You will make every reasonable effort and take all reasonably
available measures to assure the accurate performance of all services to be
performed by you hereunder within the requirements of any statute, rule or
regulation pertaining to the redemption of shares of a regulated investment
company and any requirements set forth in the then-current Prospectus and/or
SAI of the Fund. You shall correct any error or omission made by you in the
performance of your duties hereunder of which you shall have received notice
in writing and any necessary substantiating data; and you shall hold the Fund
harmless from the effect of any errors or omissions which might cause an
over- or under-redemption of the Fund's Shares and/or an excess or
non-payment of dividends, capital gains distributions, or other distributions.
(f) In the event an authorized dealer initiating a repurchase
order shall fail to make delivery or otherwise settle such order in
accordance with the rules of the National Association of Securities Dealers,
Inc., you shall have the right to cancel such repurchase order and, at your
account and risk, to hold responsible the originating dealer. In the event
that any cancellation of a Share repurchase order or any error in the timing
of the acceptance of a Share repurchase order shall result in a gain or loss
to the Fund, you agree promptly to reimburse the Fund for any amount by which
any loss shall exceed then-existing gains so arising.
6. 1933 Act Registration. The Fund has delivered to you a copy of
its current Prospectus and SAI. The Fund agrees that it will use its best
efforts to continue the effectiveness of the Registration Statement under the
1933 Act. The Fund further agrees to prepare and file any amendments to its
Registration Statement as may be necessary and any supplemental data in order
to comply with the 1933 Act. The Fund will furnish you at your expense with a
reasonable number of copies of the Prospectus and SAI and any amendments
thereto for use in connection with the sale of Shares.
7. 1940 Act Registration. The Fund has already registered under the
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1940 Act as an investment company, and it will use its best efforts to
maintain such registration and to comply with the requirements of the 1940
Act.
8. State Blue Sky Qualification. At your request, the Fund will take
such steps as may be necessary and feasible to qualify Shares for sale in
states, territories or dependencies of the United States, the District of
Columbia, the Commonwealth of Puerto Rico and in foreign countries, in
accordance with the laws thereof, and to renew or extend any such
qualification; provided, however, that the Fund shall not be required to
qualify shares or to maintain the qualification of shares in any jurisdiction
where it shall deem such qualification disadvantageous to the Fund.
9. Duties of Distributor. You agree that:
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(a) Neither you nor any of your officers will take any long or
short position in the Shares, but this provision shall not prevent you or
your officers from acquiring Shares for investment purposes only; and
(b) You shall furnish to the Fund any pertinent information
required to be inserted with respect to you as General Distributor within the
purview of the Securities Act of 1933 in any reports or registration required
to be filed with any governmental authority; and
(c) You will not make any representations inconsistent with the
information contained in the current Prospectus and/or SAI; and
(d) You shall maintain such records as may be reasonably required
for the Fund or its transfer or shareholder servicing agent to respond to
shareholder requests or complaints, and to permit the Fund to maintain proper
accounting records, and you shall make such records available to the Fund and
its transfer agent or shareholder servicing agent upon request; and
(e) In performing under this Agreement, you shall comply with all
requirements of the Fund's current Prospectus and/or SAI and all applicable
laws, rules and regulations with respect to the purchase, sale and
distribution of Shares.
10. Allocation of Costs. The Fund shall pay the cost of composition
and printing of sufficient copies of its Prospectus and SAI as shall be
required for periodic distribution to its shareholders and the expense of
registering Shares for sale under federal securities laws. You shall pay the
expenses normally attributable to the sale of Shares, other than as paid
under the Fund's Distribution Plan under Rule 12b-1 of the 1940 Act,
including the cost of printing and mailing of the Prospectus (other than
those furnished to existing shareholders) and any sales literature used by
you in the public sale of the Shares and for registering such shares under
state blue sky laws pursuant to paragraph 8.
11. Duration. This Agreement shall take effect on the date first
written above, and shall supersede any and all prior General Distributor's
Agreements by and among the Fund and you. Unless earlier terminated pursuant
to paragraph 12 hereof, this Agreement shall remain in effect until September
30, 1996. This Agreement shall continue in effect from year to year
thereafter, provided that such continuance shall be specifically approved at
least annually: (a) by the Fund's Board of Trustees or by vote of a majority
of the voting securities of the Fund; and (b) by the vote of a majority of
the Trustees, who are not parties to this Agreement or "interested persons"
(as defined the 0000 Xxx) of any such person, cast in person at a meeting
called for the purpose of voting on such approval.
12. Termination. This Agreement may be terminated (a) by the General
Distributor at any time without penalty by giving sixty days' written notice
(which notice may be waived by the Fund); (b) by the Fund at any time without
penalty upon sixty days' written notice to the General Distributor (which
notice may be waived by the General Distributor); or (c) by mutual consent of
the Fund and the General Distributor, provided that such termination by the
Fund shall be directed or approved by the Board of Trustees of the Fund or by
the vote of the holders of a "majority" of the outstanding voting securities
of the Fund. In the event this Agreement is terminated by the Fund, the
General Distributor shall be entitled to be paid the CDSC under paragraph 3
hereof on the redemption proceeds of Shares sold prior to the effective date
of such termination.
13. Assignment. This Agreement may not be amended or changed except
in writing and shall be binding upon and shall enure to the benefit of the
parties hereto and their respective successors; however, this Agreement shall
not be assigned by either party and shall automatically terminate upon
assignment.
14. Disclaimer of Shareholder Liability. The General Distributor
understands and agrees that the obligations of the Fund under this Agreement
are not binding upon any Trustee or shareholder of the Fund personally, but
bind only the Fund and the Fund's property; the General Distributor
represents that it has notice of the provisions of the Declaration of Trust
of the Fund disclaiming Trustee and shareholder liability for acts or
obligations of the Fund.
15. Section Headings. The heading of each section is for descriptive
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purposes only, and such headings are not to be construed or interpreted as
part of this Agreement.
If the foregoing is in accordance with your understanding, so indicate
by signing in the space provided below.
XXXXXXXXXXX MULTICAP VALUE FUND
By: __________________________________
Xxxxxx X. Xxxxxxx, Secretary
Accepted:
XXXXXXXXXXX FUNDS DISTRIBUTOR, INC.
By: ____________________________________
Xxxxxxxxx X. Xxxx
Vice President & Secretary
