Exhibit (6)(c)
DISTRIBUTION AGREEMENT
AGREEMENT made this 1st day of May, 2003, between BNY XXXXXXXX FUNDS,
INC., a Corporation organized under the laws of the State of Maryland (the
"Corporation"), and BNY XXXXXXXX DISTRIBUTORS, INC., a Delaware corporation (the
"Distributor").
WITNESSETH:
WHEREAS, the Corporation is registered under the Investment Company Act
of 1940, as amended (the "1940 Act"), as a diversified open-end management
investment company and it is in the interest of the Corporation to offer its
shares for sale continuously and to appoint a principal underwriter for the
purpose of facilitating such offers and sales;
WHEREAS, the Corporation's Board of Directors has established BNY
Xxxxxxxx High Yield Fund as a separate series of the Corporation (the "Series");
WHEREAS, the Series intends to adopt a Plan of Distribution pursuant to
Rule 12b-1 under the 1940 Act (a "12b-1 Plan") and may elect to make payments to
the Distributor pursuant to such plan at a future date; and
WHEREAS, the Corporation and the Distributor wish to enter into an
agreement with each other with respect to the continuous offering of the Series'
shares of common stock, par value $.001 per share (the "Shares"), to commence
after the effectiveness of its initial registration statement filed pursuant to
the Securities Act of 1933, as amended (the "1933 Act"), and the 1940 Act.
NOW THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor.
The Corporation hereby appoints the Distributor as its exclusive
underwriter in connection with the offering and sale of the Shares on the terms
set forth in this Agreement and the Distributor hereby accepts such appointment
and agrees to act hereunder.
Section 2. Services and Duties of the Distributor.
(a) The Distributor agrees to sell, as agent for the Series, from time
to time during the term of this Agreement, Shares upon the terms described in
the Prospectus. As used in this Agreement, the term "Prospectus" shall mean the
prospectus included as part of the Series' Registration Statement, as such
prospectus may be amended or supplemented from time to time, and the term
"Registration Statement" shall mean the registration statement most recently
filed from time to time by the Corporation with the Securities and Exchange
Commission and effective under the 1933 Act and the 1940 Act, as such
registration statement is amended by any amendments thereto at the time in
effect.
(b) Upon commencement of the Corporation's operations, the Distributor
will hold itself available to receive orders, satisfactory to the Distributor,
for the purchase of Shares and will accept such orders on behalf of the Series
and will transmit such orders as are so accepted to the transfer and
shareholder servicing agent for the Series as promptly as practicable. The
Distributor shall promptly forward to the custodian for the Series funds
received in respect of purchases of shares in accordance with the instructions
of the administrator for the Series. Purchase orders shall be deemed effective
at the time and in the manner set forth in the Prospectus.
(c) The offering price of the Shares shall be based on the net asset
value (as defined in the Articles of Incorporation of the Corporation and
determined as set forth in the Prospectus) per Share next determined following
receipt of an order, and shall be determined as set forth in the Prospectus. In
the event the Series offers two or more classes of shares, the offering price of
each class shall be determined as set forth in the Prospectus. The Series shall
furnish or cause to be furnished to the Distributor, with all possible
promptness, an advice of each computation of net asset value and, if different,
the offering price.
(d) The Distributor shall not be obligated to sell any certain number
of Shares and nothing herein contained shall prevent the Distributor from
entering into like distribution arrangements with other investment companies.
(e) The Distributor shall have the right to enter into selected dealer
agreements with registered and qualified securities dealers and other financial
institutions of its choice for the sale of Shares, provided that the Series
shall approve the form of such agreements. Within the Unites States, the
Distributor shall offer and sell Shares only to such selected dealers as are
members in good standing of the NASD. Shares sold to selected dealers shall be
for resale by such dealers only at the offering price determined as set forth in
the Prospectus.
Section 3. Duties of the Corporation.
(a) The Corporation agrees to sell the Shares so long as it has Shares
available for sale and to cause the Series' transfer and shareholder servicing
agent to record on its books the ownership of (or deliver certificates, if any,
for) such Shares registered in such names and amounts as the Distributor has
requested in writing or other means of data transmission, as promptly as
practicable after receipt by the Corporation of the net asset value thereof and
written request of the Distributor therefor.
(b) The Corporation shall keep the Distributor fully informed with
regard to its affairs and 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, and
this shall include one certified copy, upon request by the Distributor, of all
financial statements prepared for the Series by independent accountants and such
reasonable number of copies of its most current Prospectus and annual and
interim reports as the Distributor may request and shall cooperate fully in the
efforts of the Distributor to sell and arrange for the sale of the Shares and in
the performance of the distributor under this Agreement.
(c) The Corporation shall take, from time to time, such steps,
including payment of the related filing fee, as may be necessary to register its
Shares under the 1933 Act to the end that there will be available for sale such
number of Shares as the Distributor may be expected to sell. The Corporation
agrees to file from time to time such amendments, reports and other documents as
may be necessary in order that there may be no untrue statement of a material
fact in a Registration Statement or Prospectus, or necessary in order that there
may be no omission to state a material fact in the Registration Statement or
Prospectus which omission would make the statements therein misleading.
(d) The Corporation shall use its best efforts to qualify and maintain
the qualification of an appropriate number of its Shares for sale under the
securities laws of such states as the Distributor and the Corporation may
approve, and, if necessary or appropriate in connection therewith, to qualify
and maintain the qualification of the Corporation as a broker or dealer in such
states; provided that the Corporation shall not be required to amend its
Articles of Incorporation or Bylaws to comply with the laws of any state, to
maintain an office in any state, to change the terms of the offering of the
Shares in any state from the terms set forth in its Registration Statement and
Prospectus, to qualify as a foreign corporation in any state or to consent to
service of process in any state other than with respect to claims arising out of
the offering of the Shares. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be required by the
Corporation in connection with such qualifications.
Section 4. Expenses.
(a) The Series shall bear all costs and expenses of the continuous
offering of the Shares in connection with: (i) fees and disbursements of its
counsel and independent accountants, (ii) the preparation, filing and printing
of any registration statements and/or prospectuses required to be filed by and
under the federal and state securities laws, (iii) the preparation and mailing
of annual and interim reports, prospectuses and proxy materials to shareholders
and (iv) the qualifications of Shares for sale and of the Corporation as a
broker or dealer under the securities laws of such states or other jurisdictions
as shall be selected by the Corporation and the Distributor pursuant to Section
3(d) hereof and the cost and expenses payable to each such state for continuing
qualification therein.
(b) Unless the Series has adopted a 12b-l Plan and has elected to begin
making payments under such plan, the Series shall not, directly or indirectly,
reimburse the Distributor for (i) the costs and expenses of preparing, printing
and distributing any materials not prepared by the Corporation and other
materials used by the Distributor in connection with its offering of the Shares
for sale to the public, including the additional cost of printing copies, at
printer's over-run cost, of the Prospectus and of annual and interim reports to
shareholders other than copies thereof required for distribution to shareholders
or for filing with any federal and state securities authorities and (ii) any
expenses of advertising incurred by the Distributor in connection with such
offering. In any event, the Series shall not bear the expenses of registration
or qualification of the Distributor as a dealer or broker under federal or state
laws or the expenses of continuing such registration or qualification.
Section 5. Compensation of the Distributor.
The Distributor shall be entitled to such compensation, including sales
loads and contingent deferred sales charges, if any, described in the
Prospectus. In the event that the Series has adopted a 12b-l Plan and has
elected to make payments thereunder, the Distributor shall be entitled to
compensation in accordance with such plan, provided that it otherwise complies
with the terms and provisions thereof, and to make payments hereunder and
thereunder to dealers that enter into selected dealer agreements under Section
2(e) above.
Section 6. Indemnification.
The Corporation agrees to indemnify, defend and hold the Distributor,
its officers and directors and any person who controls the Distributor within
the meaning of Section 15 of the 1933 Act, free and harmless 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) which the Distributor, its
officers, Directors or any such controlling person may incur under the 1933 Act,
or under common law or otherwise, arising out of or based upon any untrue
statement of a material fact contained in the Registration Statement or
Prospectus or arising out of or based upon any alleged omission to state a
material fact required to be stated in either thereof or necessary to make the
statements in either thereof not misleading, except insofar as such claims,
demands, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information furnished in writing by the Distributor
to the Corporation for use in the Registration Statement or Prospectus;
provided, however, that this indemnity agreement, to the extent that it might
require indemnity of any person who is also an officer or director of the
Corporation or who controls the Corporation within the meaning of Section 15 of
the 1933 Act, shall not inure to the benefit of such officer, director or
controlling person unless a court of competent jurisdiction shall determine, or
it shall have been determined by controlling precedent, that such result would
not be against public policy as expressed in the 1933 Act; and further provided,
that in no event shall anything contained herein be so construed as to protect
the Distributor against any liability to the Corporation or to its security
holders 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 under this Agreement. The
Corporation's agreement to indemnify the Distributor, its officers and directors
and any such controlling person as aforesaid is expressly conditioned upon the
Corporation's being promptly notified of any action brought against the
Distributor, its officers or directors, or any such controlling person, such
notification to be given to the Corporation at its principal business office.
The Corporation agrees promptly to notify the Distributor of the commencement of
any litigation or proceedings against it or any of its officers or directors in
connection with the issue and sale of any Shares.
The Distributor agrees to indemnify, defend and hold the Corporation,
its directors and officers and any person who controls the Corporation, if any,
within the meaning of Section 15 of the 1933 Act, free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending against such claims, demands or liabilities
and any counsel fees incurred in connection therewith) which the Corporation,
its directors or officers or any such controlling person may incur under the
1933 Act or under common law or otherwise, but only to the extent that such
liability or expense incurred by the Corporation, its directors or officers or
such controlling person resulting from such claims or demands shall arise out of
or be based upon any alleged untrue statement of a material fact contained in
information furnished in writing by the Distributor to the Corporation for use
in the preparation of the Registration Statement or Prospectus or shall arise
out of or be based upon any alleged omission to state a material fact in such
information or a fact necessary to make such information not misleading, it
being understood that the Corporation will rely upon the information provided by
the Distributor for use in the preparation of the Registration Statement and
Prospectus. The Distributor's agreement to indemnify the Corporation, its
directors and officers, and any such controlling person as aforesaid is
expressly conditioned upon the Distributor's being promptly notified of any
action brought against the Corporation, its directors or officers or any such
controlling person, such notification to be given to the Distributor as its
principal business office.
Section 7. Compliance with Securities Laws.
The Corporation represents that it is registered as a diversified
open-end management investment company under the 1940 Act, and agrees that it
will comply with the provisions of the 1940
Act and of the rules and regulations thereunder. The Corporation and the
Distributor each agree to comply with the applicable terms and provisions of the
1940 Act, the 1933 Act and, subject to the provisions of Section 3(d),
applicable state "Blue Sky" laws. The Distributor agrees to comply with the
applicable terms and provisions of the Securities Exchange Act of 1934.
Section 8. Term of Agreement: Termination.
This Agreement shall commence on the date first set forth above. This
Agreement shall continue in effect for an initial period, unless earlier
terminated in accordance with its terms, until May 31, 2004. This Agreement
shall continue in effect after its initial period only so long as such
continuance is specifically approved at least annually by the vote, cast in
person, of a majority of the board of directors of the Corporation, including a
majority of those directors who are not interested persons of the Corporation
(as defined in the 0000 Xxx) and who have no direct or indirect financial
interest in the operation of this Agreement, the 12b-l Plan or any agreement
related thereto.
This Agreement shall terminate automatically in the event of its
assignment (as defined by the 1940 Act). In addition, this Agreement may be
terminated by either party at any time, without penalty, on not more than sixty
days' nor less than thirty days' written notice to the other party.
Section 9. Notices.
Any notice required to be given pursuant to this Agreement shall be
deemed duly given if delivered or mailed by registered mail, postage prepaid,
(1) to the Distributor at BNY Xxxxxxxx Distributors, Inc., 0000 Xxxxxxx Xxxx,
Xxxxx 0000, Xxxxxxxx, Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, or (2) to the
Corporation at BNY Xxxxxxxx Funds, Inc., 0000 Xxxxxxx Xxxx, Xxxxx 0000,
Xxxxxxxx, Xxxx 00000, Attention: Secretary.
Section 10. Governing Law.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
BNY XXXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx Xxxxx
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BNY XXXXXXXX FUNDS, INC.
on behalf of BNY Xxxxxxxx High Yield Fund
By: /s/ Xxxxxxx X. Xxxxxxxxx
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