Exhibit (e)(1)
WM GROUP OF FUNDS
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (this "Agreement"), dated as of this 20th day
of February, 2003 between WM Trust I, WM Trust II, and WM Strategic Asset
Management Portfolios, LLC, (each referred to hereinafter as a "Trust"), on
behalf of each constituent series of each respective Trust (each a "Fund"), and
WM Funds Distributor, Inc., a Washington corporation doing business at Irvine,
California, herein sometimes referred to as the "Distributor."
RECITALS
WHEREAS, each Trust is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act")
and the Funds are separate series of each respective Trust;
WHEREAS, each Fund and the Distributor desire to enter into an agreement
that sets forth standard terms and conditions for the distribution of shares of
each Fund;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. APPOINTMENT.
1.1 Each Trust hereby affirms the appointment of WM Funds
Distributor, Inc. as the agent for the distribution of shares of each
Fund (the "Shares") and grants Distributor the right to sell the
Shares on behalf of each Fund at such Shares' public offering price
and on the terms set forth in this Agreement.
1.2 The Distributor accepts such appointment and agrees to
render the services herein set forth for the payments herein provided
(including reimbursement of expenses).
2. DELIVERY OF DOCUMENTS.
2.1 Each Trust and/or each Fund has furnished the Distributor
with copies of:
(a) Agreement and Declaration of Trust of each of WM Trust I
and WM Trust II or LLC Operating Agreement of WM Strategic Asset
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Management Portfolios, LLC, as applicable, and all amendments
thereto (as amended from time to time, the "Charter Document");
(b) Bylaws and all amendments thereto for the Trust (as
amended from time to time, the "Bylaws"); and
(c) Each Fund's registration statement, prospectus and
statement of additional information, then in effect (the
"Registration Statement") under the Securities Act of 1933, as
amended (the "1933 Act") and the 0000 Xxx.
2.2 From time to time, each Trust will furnish the Distributor
with current copies of all amendments or supplements to the foregoing,
if any, and all documents, notices and reports filed with the
Securities and Exchange Commission (the "SEC") and will make
available, upon request, evidence of payment of registration fees
imposed from time to time by the States in which the Shares of each
Fund are sold by the Distributor.
3. DUTIES OF THE DISTRIBUTOR.
3.1 The Distributor shall provide each Fund with the benefit of
its best judgment, efforts and facilities in rendering its services as
Distributor. The Distributor will act as the exclusive Distributor of
the Shares of each Fund, subject to the supervision of each Trust's
Board of Trustees and the following understandings:
(a) each Trust's Board of Trustees shall be responsible for
and control the conduct of each Fund's affairs;
(b) in all matters relating to the performance of this
Agreement, the Distributor will act in conformity with the
Charter Document and Bylaws of each Trust and the Registration
Statement of each Fund and with the instructions and directions
of each Trust's Board of Trustees; and
(c) the Distributor will conform to and comply with
applicable requirements of the 1940 Act, the 1933 Act and all
other applicable federal or state laws and regulations.
3.2 In carrying out its obligations hereunder, the Distributor
shall:
(a) Provide to each Trust's Board of Trustees, at least
quarterly, a written report of the amounts expended in connection
with all distribution services rendered pursuant to this
Agreement, including the purposes for which such expenditures
were made; and
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(b) Take, on behalf of each Fund, all actions which appear
to be necessary to carry into effect the distribution of each
Fund's Shares as provided in Section 4.
4. DISTRIBUTION OF SHARES.
4.1 It is mutually understood and agreed that the Distributor
does not undertake to sell all or any specific portion of the Shares
of any Fund. Distributor shall have the right to enter into sales
agreements with dealers of its choice on such terms and conditions as
Distributor determines are not inconsistent with this Agreement.
Distributor shall set forth in such agreements the portion of the
sales charge which may be retained by such dealers.
4.2 If any Fund determines that it is necessary to file the form
of dealer agreement and amendments thereto as an exhibit to its
currently effective Registration Statement under the 1933 Act, then
the Distributor shall provide the Fund with currently effective
documents.
4.3 A Fund shall not sell any of its Shares except through the
Distributor. Notwithstanding the provisions of the foregoing sentence:
(a) A Fund may issue its Shares at their net asset value to
any shareholder of the Fund purchasing such Shares with dividends
or other cash distributions received from the Fund pursuant to
any special or continuing offer made to shareholders;
(b) The Distributor may, and when requested by a Fund,
shall, suspend its efforts to effectuate sales of the Shares of a
Fund at any time when in the opinion of the Distributor or of the
Fund no sales should be made because of a need to revise a
Registration Statement, or because of market or other economic
considerations or abnormal circumstances of any kind. Either
party in its sole discretion may reject orders for the purchase
of Shares;
(c) A Fund may withdraw the offering of its Shares (i) at
any time with the consent of the Distributor or (ii) without such
consent when so required by the provisions of any statute or of
any order, rule or regulation of any governmental body having
jurisdiction;
(d) The price at which the Shares will be sold to investors
(the "public offering price") shall be the net asset value per
Share, determined in accordance with the provisions of the Fund's
current Registration Statement, plus a sales charge determined in
the amount and manner established from time to time by the
Distributor and set forth in a Fund's current prospectus.
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The Fund shall receive the net asset value per Share for the sale
of its Shares; and
(e) The Distributor is not authorized by any Fund to provide
any information or to make any representations other than those
contained in the appropriate Registration Statements, or
contained in shareholder reports or other material that may be
prepared by or on behalf of a Fund for Distributor's use. This
shall not be construed to prevent the Distributor from preparing
and distributing sales literature or other material as it may
deem appropriate.
5. COMPENSATION
5.1 Class B Distribution Fee. Each Trust will pay Distributor in
consideration of its services in connection with the distribution of
Class B Shares of each Fund its "Allocable Portion," as defined in
Schedule 1 to this Agreement, of the distribution fee allowable under
the conduct Rules of the National Association of Securities Dealers
(the "NASD") (the "Conduct Rules") in respect of such Class B Shares
of such Fund, which fee shall accrue daily and be paid monthly as
promptly as possible after the last day of each month but in any event
prior to the tenth day of the following calendar month, at an annual
rate of 0.75% of the average daily net asset value of such Class B
Shares of such Fund, subject to the aggregate maximum limitation on
the distribution fee allowable under the Conduct Rules and the
Distribution Plan in respect of such Class B Shares, in accordance
with Rule 12b-1 under the 1940 Act ("Distribution Fee").
The Distributor will be deemed to have fully earned its Allocable
Portion of the Distribution Fee payable in respect of Class B Shares
of each Fund upon the sale of the "Commission Shares" (as defined in
Schedule 1 to this Agreement) of such Fund taken into account in
determining such Distributor's Allocable Portion of such Distribution
Fee.
5.2 Contingent Deferred Sales Charges. Each Trust shall cause
its transfer agent (the "Transfer Agent") to withhold, from redemption
proceeds payable to holders of Class B Shares, all contingent deferred
sales charges ("CDSCs") properly payable by such holders in accordance
with the terms of the Prospectuses relating to such Class B Shares and
shall cause the Transfer Agent to pay such amounts over as promptly as
possible after the settlement date for each redemption of such Class B
Shares. The Distributor's Allocable Portion (as defined in Schedule 1
to this Agreement) of such CDSC amounts shall be payable to the
Distributor (or to persons to whom the Distributor directs the Trust
to make payments).
5.3 Service Fees.
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(a) Each Trust is authorized to pay to the Distributor a
fee, calculated daily and paid monthly in arrears, for the
shareholder services that are described in paragraph (b) of this
Section 5.3 and that are provided by such Distributor to one or
more of the Funds. The aggregate fee paid to the Distributor for
shareholder services to any Fund shall not be greater than the
annual rate of .25% of the average daily net assets attributable
to the Shares of such Fund.
(b) In addition to the distribution services set forth in
Section 3 above, the Distributor may provide shareholder services
to accounts of the Shares of one or more of the Funds, including
but not limited to the following: telephone service to
shareholders, including the acceptance of telephone inquiries and
transaction requests; acceptance and processing of written
correspondence, new account applications and subsequent purchases
by check; mailing of confirmations, statements and tax forms
directly to shareholders; and acceptance of payment for trades by
check, Federal Reserve wire or Automated Clearing House payment.
In addition, the Distributor may perform or supervise the
performance by others of shareholder services in connection with
the operations of such Fund(s) with respect to its Shares, as
agreed from time to time.
(c) The Distribution Fee payable pursuant to this Agreement
shall not be deemed to compensate the Distributor for any
shareholder services it may provide to any Trust or Fund pursuant
to the relevant Distribution Plan, which services may include
processing of shareholder transactions, responding to inquiries
from shareholders concerning the status of their accounts and the
operations of the Trust or any Fund, communicating with the Trust
and its transfer agent on behalf of such shareholders, or
providing other shareholder services, nor for any expenses
associated with the provision of such shareholder services,
including office space and equipment, and telephone facilities.
5.4 Directed Payment: Allocable Portion Calculations. The
Distributor may direct the Trust to pay any part or all of the
Distribution Fee or CDSCs payable to the Distributor in respect of any
Class B Shares of any Fund directly to persons providing funds to the
Distributor to cover or otherwise enable the incurring of expenses
associated with distribution services, and each Trust agrees to accept
and to comply with such direction. The Distributor shall, at its own
expense and not at the expense of any Trust or Fund, provide each
Trust with any necessary calculations of the Distributor's Allocable
Portion of any Distribution Fee or CDSCs, and each Trust shall be
entitled to rely conclusively on such calculations, without prejudice
to any claim it may have concerning the accuracy of such calculations.
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5.5 Maximum Charges. Notwithstanding anything to the contrary
contained in this Agreement or in any relevant Distribution Plan, the
amount of asset-based sales charges and CDSCs paid to the Distributor
by any class of Shares of any Fund shall not exceed the amount
permitted by the Conduct Rules as in effect from time to time.
5.6 Class A and Class C Sales Charges. As compensation for its
services hereunder, the Distributor shall be entitled to receive all
front-end loads and contingent deferred sales charges with respect to
Class A Shares and Class C Shares as may be described from time to
time in the Registration Statement. The Fund also shall pay a
distribution fee to the Distributor at an annual rate as shall be
authorized by the shareholders and further set by the Board of
Trustees pursuant to the provisions of the Class A Distribution Plan
and Class C Distribution Plan, respectively, each as then in effect,
in accordance with Rule 12b-1 under the 1940 Act.
6. EXPENSES. The expenses connected with distribution shall be
allocable between the Funds and the Distributor as follows:
6.1 The Distributor shall furnish the services of personnel to
the extent that such services are required to carry out its
obligations under this Agreement.
6.2 Each Fund assumes and shall pay or cause to be paid the
following expenses incurred on its behalf:
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6.3 Registration of Shares including the expense of printing and
distributing prospectuses to existing shareholders; expenses incurred
for maintaining each Trust's or Fund's existence, taxes and expenses
related to portfolio transactions; charges and expenses of any
registrar, custodian or depository for portfolio securities and other
property, and any stock transfer, dividend or account agent or agents;
all taxes, including securities issuance and transfer taxes, and fees
payable to federal, state or other governmental agencies; costs and
expenses in connection with the registration, maintenance of
registration and qualification for sale of a Fund and its Shares with
the SEC and various states and other jurisdictions (including filing
fees, legal fees and disbursements of counsel); expenses of
shareholders' and directors' meetings and preparing, printing, and
mailing of proxy statements and reports to shareholders; fees and
travel expenses of directors who are not "interested persons" as that
term is defined in the 1940 Act; expenses incident to the payment of
any dividend, distribution, withdrawal or redemption, whether in
Shares or in cash; charges and expenses of any outside service used
for pricing of a Fund's Shares; fees and expenses of legal counsel and
of independent accountants; membership dues of industry associations;
postage (excluding postage for promotional and sales literature);
insurance premiums on property of personnel (including, but not
limited to legal claims and liabilities and litigation costs and any
indemnification related thereto); and all other charges and costs of a
Fund's operation unless otherwise explicitly provided herein.
6.4 The Distributor will bear all expenses incurred in
connection with its performance of the services described herein and
the incurring of distribution expenses under this Agreement. For
purposes of this Agreement, "distribution expenses" of the Distributor
shall mean all expenses borne by the Distributor which represent
payment for activities primarily intended to result in the sale of
Shares, including, but not limited to, the expenses of distribution
that are described in the Distribution Plans.
6.5 The Distributor will furnish the Board of Trustees
statements of distribution revenues and expenditures at least
quarterly with respect to the Shares of each Fund as required by the
Distribution Plans.
7. NON-EXCLUSIVITY.
7.1 The services of the Distributor are not exclusive and the
Distributor shall be entitled to render distribution or other services
to others (including other investment companies) and to engage in
other activities.
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7.2 It is understood and agreed that officers and directors of
the Distributor may serve as officers or trustees of each Trust, and
that officers or trustees of each Trust may serve as officers and
directors of the Distributor to the extent permitted by law; and that
officers and directors of the Distributor are not prohibited from
engaging in any other business activity or from rendering services to
any other person, or from serving as partners, officers or directors
of any other firm or corporation, including other investment companies
and broker/dealers.
8. TERM AND APPROVAL.
8.1 This Agreement shall become effective as of the date first
above written for an initial period of two years, and shall continue
in force and effect from year to year thereafter, provided that, with
respect to any Fund, such continuance is specifically approved at
least annually:
(a) By each Trust's Board of Trustees, including the
affirmative vote of a majority of the Board of Trustees of the
respective Trust who are not (i) parties to this Agreement, (ii)
interested persons of any such party (as defined in Section
2(a)(19) of the 1940 Act), or (iii) persons having a direct or
indirect financial interest in the operation of this Agreement or
any agreement related to this Agreement (the "Qualified
Trustees") by votes cast in person at a meeting called for the
purpose of voting on such approval, or
(b) By the vote of a majority of the outstanding voting
securities of the Fund (as such vote is defined in Section
2(a)(42) of the 1940 Act).
9. TERMINATION.
9.1 Termination on Assignment. This Agreement shall terminate
automatically in the event of its "assignment" (as defined in the 1940
Act), it being understood that this Agreement has been approved by the
Trustees, including the Qualified Trustees in contemplation of an Amended
and Restated Purchase and Sale Agreement to be entered into by the
Distributor, Citibank, N.A. and Citicorp North America, Inc., which
provides for a transfer of receivables relating to the Distribution Fees
and CDSCs payable to the Distributor under this Agreement. The Distributor
agrees to notify the respective Trust of any circumstances that might
result in this Agreement being deemed to be assigned.
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9.2 Voluntary Termination. Each Trust may terminate this
Agreement with respect to any Fund or class, or in its entirety,
without penalty, on 60 days' written notice to the Distributor by vote
of the Board of Trustees of the respective Trust, or by vote of a
majority of the Qualified Trustees or by vote of a majority of the
outstanding voting Shares of such Fund, as the case may be. The
Distributor may terminate this Agreement with respect to any Fund, or
in its entirety, on 60 days' written notice to the Fund or Trust as
the case may be. Termination of this Agreement with respect to any
class of Shares of any Fund shall not cause this Agreement to
terminate with respect to the other class of Shares of such Fund or
any Shares of any other Fund. Notice of termination as provided for in
this Section may be waived by either party, such waiver to be in
writing.
9.3 Continued Payment. With respect to Class B Shares of any
Fund sold pursuant to this Agreement, the respective Trust shall
continue payment to the Distributor of (a) the Distributor's Allocable
Portion, as defined in Schedule 1 to this Agreement, of the Contingent
Deferred Sales Charges attributable to such Shares of such Fund, and
(b) so long as there has been no Complete Termination (as defined in
the applicable Distribution Plan), the Distributor's Allocable Portion
of the Distribution Fee attributable to such Class B Shares of such
Fund, in either case notwithstanding termination of this Agreement
according to its terms.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Each Trust represents and warrants to the Distributor that
any registration statement, prospectus and statement of additional
information, when such Registration Statement becomes effective, will
include all statements required to be contained therein in conformity
with the 1933 Act, the 1940 Act and the rules and regulations of the
SEC; that all statements of fact contained in any registration
statement, prospectus or statement of additional information will be
true and correct when such Registration Statement becomes effective;
and that neither any registration statement nor any prospectus or
statement of additional information when such Registration Statement
becomes effective will include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser
of Shares.
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10.2 The Distributor may, but shall not be obligated to, propose
from time to time such amendment or amendments to any registration
statement and such supplement or supplements to any prospectus or
statement of additional information as, in the light of future
developments, may, in the opinion of the Distributor's counsel, be
necessary or advisable. If the respective Trust shall not propose such
amendment or amendments and/or supplement or supplements within
fifteen (15) days after receipt by the respective Trust of a written
request from the Distributor to do so, the Distributor may, at its
option, terminate this Agreement. No Trust shall file any amendment to
any registration statement or supplement to any prospectus or
statement of additional information without giving the Distributor
reasonable notice thereof in advance; provided, however, that nothing
contained in this Agreement shall in any way limit a Trust'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 such Trust may deem advisable, such right
being in all respects absolute and unconditional.
10.3 Each Trust represents and warrants to the Distributor that
the payment by the respective Trust of fees under this Agreement for
distribution services rendered with respect to any Class B Shares of
any Fund is authorized pursuant to such Trust's Class B Distribution
Plan, as amended, pertaining to such Class B Shares of such Fund,
adopted in accordance with Rule 12b-1 under the 1940 Act (a "Plan").
11. AMENDMENTS. This Agreement may be amended, with respect to any
Fund, by the parties hereto only if such amendment is specifically approved
(i) by the Board of Trustees of the respective Trust or by the vote of
majority of outstanding voting securities of the Fund, and (ii) by a
majority of the Qualified Trustees, which vote must be cast in person at a
meeting called for the purpose of voting on such approval; provided,
however, that any such amendment that constitutes an amendment of the
Distribution Plan for any class of Shares of a Fund shall be approved by
shareholders pursuant to Rule 12b-1 to the extent required by applicable
law.
12. INDEMNIFICATION.
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12.1 Each Trust authorizes the Distributor and any dealers with
whom Distributor has entered into dealer agreements to use any
prospectus or statement of additional information furnished by the
respective Trust from time to time, in connection with the sale of
Shares of each Fund. Each Trust agrees to indemnify, defend and hold
Distributor, its several officers and directors, and any person who
controls 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 Distributor, its officers and
directors, or any such controlling person, may incur under the 1933
Act, the 1940 Act or common law or otherwise, arising out of or based
upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement, any prospectus or any
statement of additional information, or arising out of or based upon
any omission or alleged omission to state a material fact required to
be stated in any registration statement, any prospectus or any
statement of additional information, or necessary to make the
statements in any of them not misleading; provided, however, that each
Trust's agreement to indemnify the Distributor, its officers or
directors, and any such controlling person shall not be deemed to
cover any claims, demands, liabilities or expenses arising out of or
based upon any statements or representations made by Distributor or
its representatives or agents other than such statements and
representations as are contained in any registration statement,
prospectus or statement of additional information and in such
financial and other statements as are furnished to the Distributor
pursuant to Section 2 hereof; and further provided that each Trust's
agreement to indemnify the Distributor and each Trust's
representations and warranties shall not be deemed to cover any
liability to the Trust or its shareholders to which 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
Distributor's reckless disregard of its obligations and duties under
this Agreement. Each Trust's agreement to indemnify Distributor, its
officers and directors, and any such controlling person, as aforesaid,
is expressly conditioned upon the respective Trust being notified of
any action brought against Distributor, its officers or directors, or
any such controlling person, such notification to be given by letter
or by telegram addressed to the respective Trust at its principal
office stated herein and sent to such Trust by the person against whom
such action is brought, within ten (10) days after the summons or
other first legal process shall have been served. The failure so to
notify such Trust of any such action shall not relieve the Trust from
any liability that the Trust may have to the person against whom such
action is brought by reason of any such untrue or alleged untrue
statement or omission or alleged omission otherwise than on account of
the Trust's indemnity agreement contained in this Sub-Section 12.1.
Each Trust's indemnification agreement contained in this Sub-Section
12.1 and each Trust's representations and warranties in this Agreement
shall remain operative and in full force and effect
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regardless of any investigation made by or on behalf of Distributor,
its officers and directors, or any controlling person, and shall
survive the delivery of any Shares. This agreement of indemnity will
inure exclusively to Distributor's benefit, to the benefit of its
several officers and directors and their respective estates, and to
the benefit of the controlling persons and their successors. Each
Trust agrees to notify Distributor promptly of the commencement of any
litigation or proceedings against the respective Trust or any of its
officers or trustees in connection with the issuance and sale of any
Shares.
12.2 Distributor agrees to indemnify, defend and hold each Trust,
its several officers and trustees, and any person who controls such
Trust 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 costs of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in
connection therewith) that the respective Trust, its officers or
trustees or any such controlling person may incur under the 1933 Act,
the 1940 Act or common law or otherwise, but only to the extent that
such liability or expense incurred by the respective Trust, its
officers or trustees or such controlling person resulting from such
claims or demands shall arise out of or be based upon (a) any
unauthorized sales literature, advertisements, information, statements
or representations or (b) any untrue or allegedly untrue statement of
a material fact contained in information furnished in writing by the
Distributor to the respective Trust and used in the answers to any of
the items of the Registration Statement or in the corresponding
statements made in the prospectus or statement of additional
information, or shall arise out of or be based upon any omission or
alleged omission to state a material fact in connection with such
information furnished in writing by Distributor to the respective
Trust and required to be stated in such answers or necessary to make
such information not misleading. Distributor's agreement to indemnify
the Trust, its officers and trustees, and any such controlling person,
as aforesaid, is expressly conditioned upon Distributor being notified
of any action brought against the Trust, its officers or trustees, and
any such controlling person, such notification to be given by letter
or telegram addressed to Distributor at its principal office as stated
herein and sent to Distributor by the person against whom such action
is brought, within ten days after the summons or other first legal
process shall have been served. The failure so to notify the
Distributor of any such action shall not relieve Distributor from any
liability that the Distributor may have to the Trust, its officers or
trustees, or to such controlling person by reason of any such untrue
or alleged untrue statement or omission or alleged omission otherwise
than on account of Distributor's indemnity agreement contained in this
Sub-Section 12.2. The Distributor agrees to notify the Trust promptly
of the commencement of any litigation or proceedings against
Distributor or any of its officers or directors in connection with the
issuance and sale of any Shares.
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12.3 In case any action shall be brought against any indemnified
party under Sub-Sections 12.1 or 12.2, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall
wish to do so to assume the defense thereof with counsel satisfactory
to such indemnified party. If the indemnifying party opts to assume
the defense of such action, the indemnifying party will not be liable
to the indemnified party for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense
thereof other than (a) reasonable costs of investigation or the
furnishing of documents or witnesses and (b) all reasonable fees and
expenses of separate counsel to such indemnified party if (i) the
indemnifying party and the indemnified party shall have agreed to the
retention of such counsel or (ii) the indemnified party shall have
concluded reasonably that representation of the indemnifying party and
the indemnified party by the same counsel would be inappropriate due
to actual or potential differing interests between them in the conduct
of the defense of such action.
13. LIABILITY OF THE DISTRIBUTOR. In the performance of its duties
hereunder, the Distributor shall be obligated to exercise care and
diligence and to act in good faith and to use its best efforts within
reasonable limits to insure the accuracy of all services performed under
this Agreement, but the Distributor shall not be liable for any act or
omission which does not constitute willful misfeasance, bad faith or gross
negligence on the part of the Distributor or reckless disregard by the
Distributor of its duties under this Agreement.
14. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice.
Until further notice to the other party, it is agreed that the address of
each Fund shall be 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, and
the address of the Distributor shall be 0000 Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000.
15. DECLARATION OF TRUST AND LIMITATION OF LIABILITY. A copy of the
Charter Documents of each Trust is on file with the Secretary of State of
The Commonwealth of Massachusetts, and notice is hereby given that this
Agreement is executed by an officer of the Trust on behalf of the trustees
of the Trust as trustees and not individually, on further behalf of each
Fund, and that the obligations of this Agreement with respect to each Fund
shall be binding upon the assets and properties of the Fund only and shall
not be binding upon the assets and properties of any other Fund or series
of the Trust or upon any of the trustees, officers, employees, agents or
shareholders of the Fund or the Trust individually.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the date and year first
above written.
WM TRUST I, on behalf of its WM TRUST II, on behalf of its
constituent series constituent series
By:________________________________ By:________________________________
Xxxxxxx X. Xxxxxx, President Xxxxxxx X. Xxxxxx, President
Attest:
By:________________________________ By:________________________________
Xxxx X. Xxxx, Secretary Xxxx X. Xxxx, Secretary
WM STRATEGIC ASSET MANAGEMENT WM FUNDS DISTRIBUTOR, INC.
PORTFOLIOS, LLC, on behalf of
its constituent series
By:________________________________ By:________________________________
Xxxxxxx X. Xxxxxx, President Xxxxxxx X. Xxxxxx, President
Attest:
By:________________________________ By:________________________________
Xxxx X. Xxxx, Secretary Xxxxxx X. Xxxxxxx, Secretary
WM TRUST I,
WM TRUST II, AND
WM STRATEGIC ASSET MANAGEMENT PORTFOLIOS, LLC
DISTRIBUTION AGREEMENT
Schedule 1
Date of Agreement:
Date of this Schedule:
ALLOCABLE PORTIONS
The Distributor's "Allocable Portion" of the Distribution Fee payable on
any class of Shares of any Fund, or of the CDSC in respect of any Class B Shares
of any Fund shall be that percentage allocated to the Distributor in accordance
with the allocation formulas set forth in Parts C and D below, and the rules of
attribution set forth in Part B below.
Capitalized terms used in this Schedule without definition and defined in
the Agreement shall have the same meanings herein as therein, except that the
term "Share" shall refer only to Class B shares of each Fund.
PART A: DEFINITIONS
"Commission Share" means, in respect of any Fund, each Share of such Fund
issued under circumstances that would normally give rise to an obligation or the
holder of such Share to pay a CDSC upon redemption of such Share, including,
without limitation, any Share of such Fund issued in connection with a
"Permitted Free Exchange" (as such term is defined in that certain Amended and
Restated Purchase and Sale Agreement dated as of March __, 2000 by and among the
Distributor, Citicorp North America, Inc. and Citibank, N.A., as the same shall
be amended from time to time (the "Purchase Agreement")), provided that no such
Share shall cease to be a Commission Share prior to its redemption (including a
redemption in connection with a Permitted Free Exchange) or conversion even
though the obligation of such holder to pay a CDSC shall have expired or the
CDSC on such Share shall have been waived.
"Cutoff Date" means, in respect of any class of Shares of any Fund, the
date of the last sale of a Commission Share of such class of such Fund during
the term of the Agreement.
"Distribution Fee" has the meaning given to the term "asset-based sales
charge" in Rule 2830 (b)(8)(A) of the Conduct Rules.
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"Free Exchange Share" means, in respect of any Fund, any Free Share of such
Fund issued in connection with a Permitted Free Exchange.
"Free New Share" means, in respect of any Fund, any Free Share that is not
a Free Exchange Share.
"Free Share" means, in respect of any Fund, each Share of such Fund other
than a Commission Share, including, without limitation, any Share issued in
connection with the reinvestment of dividends.
"Non-Omnibus Shares" means, in respect of any Fund, all Shares of such Fund
other than Omnibus Shares.
"Omnibus Shares" means, in respect of any Fund, all Shares of such Fund in
any Omnibus Account on the records of a Fund maintained by the Transfer Agent,
for which account such broker-dealer provides subtransfer agency services for
that Fund.
"Sub-Transfer Agent" means, in respect of any Fund, the record owner of any
Omnibus Account.
PART B: ATTRIBUTION
Shares of each class of Shares of each Fund, which Shares are outstanding
from time to time, shall be attributed to either the Distributor or to any other
person named as a distributor of Shares of such class of such Fund (such person,
an "Other Distributor") in accordance with the following rules:
(1) Commission Shares: Each Commission Share of Fund is specifically
tracked, on the records maintained by the Transfer Agent of Sub-Transfer Agents
for such Fund with reference to an "original issuance date" (a) of the
Commission Share in question or (b) of the Commission Share from which the
Commission Share in question derived through one or more Permitted Free
Exchanges.
The Commission Shares of each class of Shares of each Fund outstanding from
time to time attributed to the Distributor shall be: (a) all Commission Shares
of such class of such Fund issued, on or prior to the Cutoff Date for such class
of such Fund, other than in a Permitted Free Exchange, and (b) those Commission
Shares of such class of such Fund that are (i) issued in a Permitted Free
Exchange in exchange for (ii) Shares of another Fund that had been attributed to
the Distributor in accordance with the preceding clause (a) of this paragraph,
in each case determined in accordance with the records maintained by the
Transfer Agent or Sub-Transfer Agents for such Fund. For the avoidance of doubt,
all Commission Shares issued during periods in which Funds Distributor, Inc.,
Xxxxxxx Financial Services or WM Fund Services, Inc. served as distributor under
the Agreement or
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any predecessor agreement together with all Commission Shares derived from such
Commission Shares, whether pursuant to one or more Permitted Free Exchanges or
otherwise, shall be attributed to the Distributor.
The Commission Shares of each class of Shares of each Fund outstanding from
time to time attributed to Other Distributor shall be: (a) those Commission
Shares of such class of Shares of such Fund issued, after the Cutoff Date for
such class of Shares of such Fund, other than in a Permitted Free Exchange, and
(b) those Commission Shares of such class of such Fund that are (i) issued in a
Permitted Free Exchange in exchange for (ii) Shares of another Fund that were
attributed to an Other Distributor in accordance with the immediately preceding
clause (a) of this paragraph, in each case determined in accordance with the
records maintained by the Transfer Agent or Sub-Transfer Agents for such Fund.
(2) Free Shares. Free Shares of each class of Shares of each Fund are not
specifically tracked by the Transfer Agent or Sub-Transfer Agents for such Fund.
The number of Free Shares of each class of Shares of each Fund outstanding from
time to time shall be attributed to either the Distributor of an Other
Distributor in accordance with records maintained by the Distributor in
accordance with this paragraph (2).
(a) The number of Non-Omnibus Free New Shares, of a class of any
Fund, that are attributed to the Distributor shall be determined
pursuant to the following formula.
For such Shares issued during any calendar month:
FNS x [(PCS + PFS)/(TCS + TFS)]
where:
FNS = Non-Omnibus Free New Shares of such class of such Fund that are
issued during such calendar month.
PCS = Non-Omnibus Commission Shares of such class of such Fund that have
been attributed to the Distributor and that were outstanding as of
close of business on the last business day of the immediately
the preceding calendar month.
PFS = Non-Omnibus Free Shares of such class of such Fund that have been
attributed to the Distributor and that were outstanding as of the
close of business on the last business day of the immediately
preceding calendar month.
TCS = Non-Omnibus Commission Shares of such class of such Fund that were
outstanding as of the close of business on the last business day of
the immediately preceding calendar month.
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TFS = Non-Omnibus Free Shares of such class of such Fund that were
outstanding as of the close of business on the last business day of
the immediately preceding calendar month.
The balance of such Non-Omnibus Free New Shares issued during such calendar
month shall be attributed to Other Distributors.
(b) The number of Omnibus Free New Shares, of a class of any Fund,
that are attributed to the Distributor shall be determined
pursuant to the following formula.
For such Shares issued during any calendar month:
OFNS x [(POCS + POFS)/(TOCS + TOFS)]
where:
OFS = Omnibus Free New Shares of such class of such Fund that are issued
during such calendar month.
POCS = Omnibus Commission Shares of such class of such Fund that have been
attributed to the Distributor and that were outstanding as of the
close of business on the last business day of the immediately
preceding calendar month.
POFS = Omnibus Free Shares of such class of such Fund that have been
attributed to the Distributor and that were outstanding as of the
close of business on the last business day of the immediately
preceding calendar month.
TOCS = Omnibus Commission Shares of such class of such Fund that were
outstanding as of the close of business on the last business day of
the immediately preceding calendar month.
TOFS = Omnibus Free Shares of such class of such Fund that were outstanding
as of the close of business on the last business day of the
immediately preceding calendar month.
The balance of such Omnibus Free New Shares issued during such calendar
month shall be attributed to Other Distributions.
(c) The number of Non-Omnibus Free Exchange Shares, of a class of
any Fund (the "New Fund"), that are attributed to the
Distributor shall be determined pursuant to the following
formula.
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For such Shares issued during any calendar month in exchange for Shares of
any other Fund (each, an "Old Fund"):
FES x (PFS/(o)//TFS/(o)/)
where:
FES = Non-Omnibus Free Exchange Shares of such class of the New Fund
that are issued during such calendar month.
PFS/(o)/ = Non-Omnibus Free Shares of such class of the Old Fund that had
been attributed to the Distributor and that were outstanding as
of the close of business on the last business day of the
immediately preceding calendar month.
TFS/(o)/ = Non-Omnibus Free Shares of such class of the Old Fund that were
outstanding as of the close of business on the last business day
of the immediately preceding calendar month.
The balance of such Non-Omnibus Free Exchange Shares of the New Fund issued
during such calendar month shall be attributed to Other Distributors.
(d) The number of Omnibus Free Exchange Shares, of a class of
any Fund (the "New Fund"), that are attributed to the
Distributor shall be determined pursuant to the following
formula.
For such Shares issued during any calendar month in exchange for Shares of
any other Fund (each, an "Old Fund"):
OFES x (POFS/(o)//TOFS/(o)/)
where:
OFES = Omnibus Free Exchange Shares of such class of the New Fund that
are issued during such calendar month.
POFS/(o)/ = Omnibus Free Shares of such class of the Old Fund that had been
attributed to the Distributor and that were outstanding as of
the close of business on the last business day of the
immediately preceding calendar month.
TOFS/(o)/ = Omnibus Free Shares of such class of the Old Fund that were
outstanding as of the close of business on the last business
day of the immediately preceding calendar month.
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The balance of such Omnibus Free Exchange Shares of the New Fund issued
during such calendar month shall be attributed to Other Distributors.
(e) The number of Non-Omnibus Free Shares, of a class of any Fund,
that are redeemed or converted and that are attributed to the
Distributor shall be determined pursuant to the following
formula.
For such Shares redeemed or converted during any calendar month:
FSR x (PFS/TFS)
where:
FSR = Non-Omnibus Free Shares of such class of such Fund that are redeemed
or converted during such calendar month.
PFS = Non-Omnibus Free Shares of such class of such Fund that have been
attributed to the Distributor and that were outstanding as of the
close of business on the last business day of the immediately
preceding calendar month.
TFS = Non-Omnibus Free Shares of such class of such Fund that were
outstanding as of the close of business on the last business day of
the immediately preceding calendar month.
The balance of such Non-Omnibus Free Shares redeemed or converted during
such calendar month shall be attributed to Other Distributors.
(f) The number of Omnibus Free Shares, of a class of any Fund, that
are redeemed or converted and that are attributed to the
Distributor shall be determined pursuant to the following
formula.
For such Shares redeemed or converted during any calendar month:
OFSR x (POFS/TOFS)
where:
OFSR = Omnibus Free Shares of such class of such Fund that are redeemed or
converted during such calendar month.
POFS = Omnibus Free Shares of such class of such Fund that have been
attributed to the Distributor and that were outstanding as of the
close of business on the last business day of the immediately
preceding calendar month.
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TOFS = Omnibus Free Shares of such class of such Fund that were outstanding
as of the close of business on the last business day of the
immediately preceding calendar month.
The balance of such Omnibus Free Shares redeemed or converted during such
calendar month shall be attributed to Other Distributors.
(3) Timing of Attributions and Distributions.
(a) The attributions of all Non-Omnibus Shares of each class of
Shares of each Fund shall be made on a daily basis. The
attribution of all Omnibus Shares of each class of Shares of
each Fund shall be made monthly, for each calendar month no
later than five (5) days following the last day of such month.
(b) The parties to the Agreement acknowledge expressly that the
procedures for determining the Distributor's Allocable Portion
of Free Shares of any Fund implicitly assume that Free Shares
issued in respect of dividends or other distributions made for
any calendar month will be issued not earlier than the first
business day of the following calendar month. Said parties
agree that such procedures shall be modified in the event Free
Shares attributable to reinvestment of such dividends or
distributions are issued in the same calendar month for which
such dividends are earned or distributions made.
PART C: ALLOCATION OF CDSCs
CDSCs will be allocated to either the Distributor or an Other Distributor
depending upon whether the related redeemed Shares were attributed to,
respectively, the Distributor or such Other Distributor in accordance with Part
B, Paragraph (1) above. CDSCs relating to Non-Omnibus Shares will be allocated
to either the Distributor or an Other Distributor on or prior to the third
business day of the calendar week immediately succeeding the calendar week
during which the Transfer Agent has paid such CDSC amount. CDSCs relating to
Omnibus Shares shall be allocated to either the Distributor or an Other
Distributor on or prior to the tenth (10th) day of the calendar month
immediately succeeding the calendar month in which they are remitted by the
Transfer Agent to the "Demand Deposit Account" for further credit to the
"Collection Account" as such term is defined in that certain Second Amended and
Restated Collection Agency Agreement dated as of March 20, 1998 among Citibank,
N.A., Citicorp North America, Inc., the Distributor, and Bankers Trust Company
as the same may be amended from time to time (the "Collection Agency
Agreement"), unless in accordance with the Collection Agency Agreement more
frequent allocations are required.
PART D: ALLOCATION OF DISTRIBUTION FEE
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The Distribution Fee accruing in respect of each class of Shares of each
Fund during any calendar month and that is allocated to the Distributor shall be
determined pursuant to the following formula:
A X [ (B + C) / (D + E) ]
where:
A = Distribution Fee accrued in respect of such class of Shares of such
Fund during such calendar month.
B = Shares of such class of such Fund attributed to the Distributor and
outstanding as of the close of business on the last business day of
the immediately preceding calendar month times the net asset value
per share of such Shares as of such time.
C = Shares of such class of such Fund attributed to the Distributor and
outstanding as of the close of business on the last business day of
such calendar month times the net asset value per share of such
Shares as of such time.
D = Total Shares of such class of such Fund outstanding as of the close
of business on the last business day of the immediately preceding
calendar month times the net asset value per share of such Shares as
of such time.
E = Total Shares of such class of such Fund outstanding as of the close
of business on the last business day of such calendar month times the
net asset value per share of such Shares as of such time.
The balance of the Distribution Fee in respect of such class of Shares of
such Fund accruing during such calendar month shall be allocated to Other
Distributors.
The allocations contemplated by this Part D of Distribution Fees accruing
during any calendar month shall be made on or prior to the tenth (10th) day of
the immediately following calendar month and in all cases prior to the payment
of such Fees pursuant to the terms of the Agreement.
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