▇▇▇▇▇▇▇▇ SERIES TRUST II
DISTRIBUTION AGREEMENT
This Agreement is made as of the 15th day of September, 1999, by and
between ▇▇▇▇▇▇▇▇ Series Trust II, a Delaware business trust (the "Trust"), and
▇▇▇▇▇▇▇▇ Fund Advisors Inc., a New York corporation (the "Distributor").
1. The Trust hereby appoints the Distributor as a distributor of shares
of beneficial interest ("Shares") of each of the current series of the Trust
(each, a "Fund"), and the Distributor hereby accepts such appointment. Upon the
approval of the Trust, this Agreement shall apply to any additional series of
the Trust as may be established from time to time, each of which shall become a
Fund hereunder.
2. The Distributor will have the right, as principal, to sell Shares of
each Fund to investment dealers against orders therefor at the public
offering price less any discount determined by the Distributor, which
discount will not exceed the amount of the sales charge, if any, referred to
below. The Distributor will have the right, as principal, to purchase Shares
from the Trust at their net asset value and to sell such Shares to the public
against orders therefor at the public offering price. Upon receipt of an
order to purchase Shares of a Fund from a bank or dealer with whom the
Distributor has a sales contract, the Distributor will promptly purchase
Shares of such Fund from the Trust to fill such order. Upon receipt of
registration instructions in proper form and payment for such Shares, the
Distributor will transmit such instructions to the Trust or its agent for
registration of the Shares purchased. The Distributor will also have the
right, as agent for the Trust, to sell Shares at the public offering price to
such persons and upon such conditions as the Trustees of the Trust may from
time to time determine.
The public offering price shall be the net asset value of the Shares in
question then in effect, plus the applicable sales charge, if any, determined
in the manner set forth in the then current prospectus and statement of
additional information of the Trust or as permitted by the Investment Company
Act of 1940, as amended, and the rules and regulations promulgated thereunder
(the "1940 Act"). The net asset value of Shares shall be determined in the
manner provided in the then current prospectus and statement of additional
information of the Trust and when determined shall be applicable to
transactions as provided for in such prospectus and statement of additional
information.
On every sale of Shares, the Trust, on behalf of the Fund in question,
shall receive the applicable net asset value of the Shares.
3. The Trust reserves the right to issue Shares at any time directly to
its shareholders as a stock dividend or stock split and to sell Shares to its
shareholders or to other persons approved by the Distributor at not less than
net asset value.
4. The Distributor will use its best efforts to place Shares sold by it
on an investment basis. The Distributor does not agree to sell any specific
number of Shares. Shares will be sold by the Distributor only against orders
therefor. The Distributor will not purchase Shares from anyone other than the
Trust and will not take "long" or "short" positions in Shares contrary to the
instructions of the Trust or any applicable law, rule, or regulation.
5. The Distributor will be an independent contractor and neither the
Distributor nor any of its officers or employees, as such, is or shall be an
employee of the Trust. The Distributor is responsible for its own conduct and
the employment, control, and conduct of its agents and employees and for
injury to such agents or employees or to others through its agents or
employees. The Distributor assumes full responsibility for its agents and
employees under applicable statutes and agrees to pay all employer taxes
thereunder. The Distributor will maintain at its own expense insurance
against public liability in such an amount as the Trustees of the Trust may
from time to time reasonably request.
6. The Trust reserves the right to reject any order for the purchase of
Shares, provided, however, that the Trust agrees that it will not arbitrarily
or without reasonable cause refuse acceptance or confirmation of such orders.
7. The Trust covenants and agrees that it will, at its own expense:
(a) use its best efforts to keep authorized, but unissued, sufficient
Shares to meet the reasonable requirements of the Distributor;
(b) supply the Distributor with the net asset value per Share of each
Fund computed as at the times and in the manner prescribed by the
then current prospectus and statement of additional information of
the Trust and in compliance with all pertinent requirements of the
Trust Instrument of the Trust and applicable law;
(c) prepare, file, and keep effective registration statements,
prospectuses and licenses covering as many Shares as may be necessary
for distribution and sale of Shares in such jurisdictions where Shares
may lawfully be sold and as reasonably requested by the Distributor;
and
(d) maintain qualified personnel and adequate facilities for the
acceptance and confirmation of orders for the sale of Shares.
8. The Distributor will pay all expenses incident to the sale and
distribution of Shares issued or sold hereunder, including (i) expenses of
printing and distributing or disseminating any sales literature (including
prospectuses and annual reports), advertising, and selling aids in connection
with such offering of Shares for sale (except that such expenses shall not
include expenses incurred by the Trust in connection with the preparation,
printing, and
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distribution of any prospectus, report or other communication to holders of
Shares in their capacity as such) and (ii) expenses of advertising in
connection with such offering.
9. The Distributor covenants and agrees that it will comply, at its own
expense, with the applicable Federal and state laws and regulations
regulating the affairs of broker-dealers, and will conduct its affairs with
the Trust and with dealers, brokers, and investors in accordance with the
Conduct Rules of The National Association of Securities Dealers, Inc., as
applicable.
10. (a) Except as provided in subsection (b) below, in the absence of
(i) any breach of its obligations under this Agreement (ii) willful
misfeasance, bad faith, or gross negligence on the part of the Distributor,
or (iii) reckless disregard by the Distributor of its obligations and duties
hereunder, the Distributor shall not be subject to any liability whatsoever
to the Trust, or to any shareholder of the Trust, for any error of judgment,
mistake of law, or any other act or omission in the course of, or connected
with, rendering services hereunder. The Trust agrees to indemnify and hold
harmless the Distributor and each person who controls the Distributor within
the meaning of the Securities Act of 1933, as amended (the "1933 Act"),
against any and all losses, claims, damages, or liabilities, joint or
several, to which they or any of them may become subject under the 1933 and
1940 Acts, the Securities Exchange Act of 1934, as amended, or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Trust's registration statement
for the registration of Shares as originally filed or in any amendment
thereof, or in the Trust's current prospectus filed as a part thereof, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any legal
loss, claim, damage, liability, or action; provided, however, that the Trust
will not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in
reliance upon information furnished to the Trust in writing by or on behalf
of the Distributor specifically for use in connection with the preparation
thereof.
(b) The Distributor agrees to indemnify and hold harmless the Trust and
each person who has been, is, or may hereafter be a Trustee of the Trust
against expenses incurred by any of them in connection with any claim or in
connection with any action, suit, or proceeding to which any of them may be a
party, which arises out of or is alleged to arise out of any alleged
misrepresentation or omission to state a material fact, or out of any alleged
misrepresentation or omission to state a material fact, on the part of the
Distributor or any agent or employee of the Distributor or any other person
for whose acts the Distributor is responsible or is alleged to be responsible
unless such misrepresentation or omissions was made in reliance upon written
information furnished by the Trust. The term "expenses" includes amounts paid
in satisfaction of judgments or in settlements which are made with the
Distributor's consent.
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In addition, the Distributor agrees to indemnify and hold harmless the
Trust and each person who has been, is, or may hereafter be a Trustee of the
Trust and each person who controls the Trust or any Fund within the meaning
of the 1933 Act, against any and all losses, claims, damages, or liabilities,
joint or several, to which they or any of them may become subject under the
1933 and 1940 Acts, the Securities Exchange Act of 1934, as amended, or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Trust's
registration statement for the registration of Shares as originally filed or
in any amendment thereof, or in the Trust's current prospectus filed as a
part thereof, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal loss, claim, damage, liability, or action,
BUT ONLY to the extent that any such loss, claim, damage, or liability arises
out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon information
furnished to the Trust in writing by or on behalf of the Distributor
specifically for use in connection with the preparation thereof.
(c) The foregoing rights of indemnification shall be in addition to any
other rights to which a person or entity may otherwise be entitled.
11. This Agreement shall become effective with respect to the Trust on
September 15, 1999, and shall continue in effect for one year, and thereafter
only so long as its continuance is specifically approved at least annually by
(i) the Trust's Board of Trustees or by vote of a majority of the outstanding
voting securities (as defined in the ▇▇▇▇ ▇▇▇) of the Trust and (ii) by vote
of a majority of the Trust's Trustees who are not parties to this Agreement
or interested persons (as defined in the ▇▇▇▇ ▇▇▇) of any such party and have
no direct or indirect financial interest in the operation of this Agreement
or any plan to which this Agreement relates, cast in person at a meeting
called for the purpose of voting on such approval.
12. This Agreement shall terminate automatically in the event of its
assignment. This Agreement may be terminated at any time, without the payment
of any penalty, (i) by the Board of Trustees of the Trust, by vote of a
majority of the Trust's Trustees who are not parties to this Agreement or
interested persons (as defined in the ▇▇▇▇ ▇▇▇) of any such party and have no
direct or indirect financial interest in the operation of this Agreement or
any plan to which this Agreement relates, or by vote of a majority of the
outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of the Trust by
thirty days' written notice addressed to the Distributor at its principal
place of business; and (ii) by the Distributor by thirty days' written notice
addressed to the Trust at its principal place of business.
13. This Agreement shall be construed and its provisions interpreted in
accordance with the laws of the state of New York.
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14. A copy of the Trust Instrument of the Trust is on file with the
Secretary of State of the State of Delaware, and notice is hereby given that
this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually, and that the obligations of or arising out of
this instrument are not binding upon any of the Trustees, officers, or
shareholders individually but are binding only upon the assets and property
of the Trust.
It is intended that this Agreement shall constitute a separate and
discrete contractual arrangement between the Distributor and the Trust on
behalf of each Fund separately and shall be construed in all respect so as to
give effect to this intention to the same extent as if the agreement between
the Distributor and the Trust on behalf of each such Fund were set out in a
separate writing. Without limiting the generality of the foregoing, no Fund
shall be liable or responsible for the acts, omissions, or liabilities of any
other Fund, or of the Trust on behalf or in respect of any other Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the 15th day of September, 1999.
▇▇▇▇▇▇▇▇ SERIES TRUST II
By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
▇▇▇▇▇▇▇▇ FUND ADVISORS INC.
By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Executive Vice President
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