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EXHIBIT (6)(A)
DISTRIBUTION AGREEMENT BETWEEN THE REGISTRANT AND
THE ONE GROUP SERVICES COMPANY
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DISTRIBUTION AGREEMENT
AGREEMENT made this 1st day of November, 1995, between The One Group
(the "Trust"), a Massachusetts business trust having its principal place of
business at 000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxx 00000, and The One Group
Services Company ("Distributor") having its principal place of business at 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust is an open-end management investment company,
organized as a Massachusetts business trust and registered with the Securities
and Exchange Commission (the "Commission") under the Investment Company Act of
1940 (the "1940 Act"); and
WHEREAS, it is intended that Distributor act as the distributor of the
units of beneficial interest ("Shares") of each of the investment portfolios of
the Trust identified in Schedule A hereto as such Schedule may be amended from
time to time (such portfolios being referred to individually as a "Fund" and
collectively as the "Funds").
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services as Distributor.
1.1 Distributor will act as agent for the distribution of the
Shares covered by the registration statement and prospectus of the Trust then in
effect under the Securities Act of 1933, as amended (the "Securities Act"). As
used in this Agreement, the term "registration statement" shall mean Parts A
(the prospectus), B (the Statement of Additional Information) and C of each
registration statement that is filed on Form N-1A, or any successor thereto,
with the Commission, together with any amendments thereto. The term "prospectus"
shall mean each form of prospectus and Statement of Additional Information used
by the Funds for delivery to shareholders and prospective shareholders after the
effective dates of the above referenced registration statements, together with
any amendments and supplements thereto.
1.2 Distributor agrees to use appropriate efforts to solicit orders
for the sale of the Shares and will undertake such advertising and promotion as
it believes reasonable in connection with such solicitation. The Trust
understands that Distributor is now and may in the future be the distributor of
the shares of several investment companies or series (together, "Companies")
including Companies having investment objectives similar to those of the Trust.
The Trust further understands that investors and potential investors in the
Trust may invest in shares of such other Companies. The Trust agrees that
Distributor's duties to such Companies shall not be deemed in conflict with its
duties to the Trust under this paragraph 1.2.
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Distributor may finance appropriate activities which it deems
reasonable which are primarily intended to result in the sale of the Shares,
including, but not limited to, advertising, and the compensation of
underwriters, dealers and sales personnel.
1.3 In its capacity as distributor of the Shares, all activities of
Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, all rules and regulations promulgated by the Commission thereunder and all
rules and regulations adopted by any securities association registered under the
Securities Exchange Act of 1934.
1.4 Distributor will transmit any orders received by it for
purchase or redemption of the Shares to the transfer agent and custodian for the
Funds.
1.5 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind, the Trust's officers may decline to accept any orders for, or make any
sales of, the Shares until such time as those officers deem it advisable to
accept such orders and to make such sales.
1.6 Distributor will act only on its own behalf as principal if it
chooses to enter into selling agreements with selected dealers or others.
1.7 The Trust agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the qualification of
the Shares for sale in such states as Distributor may designate.
1.8 The Trust shall furnish from time to time, for use in
connection with the sale of the Shares, such information with respect to the
Funds and the Shares as Distributor may reasonably request; and the Trust
warrants that the statements contained in any such information shall fairly show
or represent what they purport to show or represent. The Trust shall also
furnish Distributor upon request with: (a) unaudited semi-annual statements of
the Funds' books and accounts prepared by the Trust, (b) a monthly itemized list
of the securities in the Funds, (c) monthly balance sheets as soon as
practicable after the end of each month, and (d) from time to time such
additional information regarding the financial condition of the Funds as
Distributor may reasonably request.
1.9 The Trust represents to Distributor that, with respect to the
Shares, all registration statements and prospectuses filed by the Trust with the
Commission under the Securities Act have been carefully prepared in conformity
with requirements of said Act and rules and regulations of the Commission
thereunder. The registration statement and prospectus contain all statements
required to be stated therein in conformity with said Act and the rules and
regulations of said Commission and all statements of fact contained in any such
registration statement and prospectus are true and correct. Furthermore, neither
any registration statement nor any prospectus includes
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an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading to a purchaser of the Shares. The Trust 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 as,
in the light of future developments, may, in the opinion of the Trust's counsel,
be necessary or advisable. If the Trust shall not propose such amendment or
amendments and/or supplement or supplements within fifteen days after receipt by
the Trust of a written request from Distributor to do so, Distributor may, at
its option, terminate this Agreement. The Trust shall not file any amendment to
any registration statement or supplement to any prospectus without giving
Distributor reasonable notice thereof in advance; provided, however, that
nothing contained in this Agreement shall in any way limit the Trust's right to
file at any time such amendments to any registration statement and/or
supplements to any prospectus, of whatever character, as the Trust may deem
advisable, such right being in all respects absolute and unconditional.
1.10 The Trust authorizes Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of the Shares. The Trust agrees to indemnify, defend and hold Distributor, its
several officers and employees, and any person who controls Distributor within
the meaning of Section 15 of the Securities 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 partners
and employees, or any such controlling person, may incur under the Securities
Act or under 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 or any prospectus or arising out of or based upon any
omission, or alleged omission, to state a material fact required to be stated in
either any registration statement or any prospectus or necessary to make the
statements in either thereof not misleading; provided, however, that the Trust's
agreement to indemnify Distributor, its partners or employees, and any such
controlling person shall not be deemed to cover any claims, demands, liabilities
or expenses arising out of any statements or representations as are contained in
any prospectus and in such financial and other statements as are furnished in
writing to the Trust by Distributor and used in the answers to the registration
statement or in the corresponding statements made in the prospectus, or arising
out of or based upon any omission or alleged omission to state a material fact
in connection with the giving of such information required to be stated in such
answers or necessary to make the answers not misleading; and further provided
that the Trust's agreement to indemnify Distributor and the Trust's
representations and warranties hereinbefore set forth in paragraph 1.9 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. The Trust's agreement to indemnify Distributor, its officers and
employees and any such controlling person, as aforesaid, is expressly
conditioned upon the Trust being notified of any action brought against
Distributor, its officers or employees, or any such controlling person, such
notification to be given by letter or by telegram addressed to the Trust at its
principal office in Columbus, Ohio and sent to the Trust by the person against
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whom such action is brought, within 10 days after the summons or other first
legal process shall have been served. The failure to so notify the Trust of any
such action shall not relieve the Trust from any liability which the Trust may
have to the person against whom such action is brought by reason of any such
untrue, or allegedly untrue, statement or omission, or alleged omission,
otherwise than on account of the Trust's indemnity agreement contained in this
paragraph 1.10. The Trust will be entitled to assume the defense of any suit
brought to enforce any such claim, demand or liability, but, in such case, such
defense shall be conducted by counsel of good standing chosen by the Trust and
approved by Distributor, which approval shall not be unreasonably withheld. In
the event the Trust elects to assume the defense of any such suit and retain
counsel of good standing approved by Distributor, the defendant or defendants in
such suit shall bear the fees and expenses of any additional counsel retained by
any of them; but in case the Trust does not elect to assume the defense of any
such suit, or in case Distributor reasonably does not approve of counsel chosen
by the Trust, the Trust will reimburse Distributor, its officers and employees,
or the controlling person or persons named as defendant or defendants in such
suit, for the fees and expenses of any counsel retained by Distributor or them.
The Trust's indemnification agreement contained in this paragraph 1.10 and the
Trust's representations and warranties in this Agreement shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of Distributor, its partners and employees, 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 employees, and
their respective estates, and to the benefit of the controlling persons and
their successors. The Trust agrees promptly to notify Distributor of the
commencement of any litigation or proceedings against the Trust or any of its
officers or Trustees in connection with the issue and sale of any Shares.
1.11 Distributor agrees to indemnify, defend and hold the Trust, its
several officers and Trustees and any person who controls the Trust within the
meaning of Section 15 of the Securities 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) which the Trust, its officers or Trustees
or any such controlling person, may incur under the Securities Act or under
common law or otherwise, but only to the extent that such liability or expense
incurred by the Trust, its officers or Trustees or such controlling person
resulting from such claims or demands, shall arise out of or be based upon any
untrue, or alleged untrue, statement of a material fact contained in information
furnished in writing by Distributor to the 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 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 Trust 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, or any such controlling person, such notification to be given by
letter or telegram
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addressed to Distributor at its principal office in Columbus, Ohio, and sent to
Distributor by the person against whom such action is brought, within 10 days
after the summons or other first legal process shall have been served.
Distributor shall have the right of first control of the defense of such action,
with counsel of its own choosing, satisfactory to the Trust, if such action is
based solely upon such alleged misstatement or omission on Distributor's part,
and in any other event the Trust, its officers or Trustees or such controlling
person shall each have the right to participate in the defense or preparation of
the defense of any such action. The failure to so notify Distributor of any such
action shall not relieve Distributor from any liability which 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 paragraph 1.11.
1.12 No Shares shall be offered by either Distributor or the Trust
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Trust if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities Act or if and so long as a current prospectus as required by Section
10(b)(2) of said Act is not on file with the Commission; provided, however, that
nothing contained in this paragraph 1.12 shall in any way restrict or have an
application to or bearing upon the Trust's obligation to repurchase Shares from
any Shareholder in accordance with the provisions of the Trust's prospectus,
Agreement and Declaration of Trust, or Bylaws.
1.13 The Trust agrees to advise Distributor as soon as reasonably
practical by a notice in writing delivered to Distributor or
its counsel:
(a) of any request by the Commission for amendments to the
registration statement or prospectus then in effect or for
additional information;
(b) in the event of the issuance by the Commission of any stop
order suspending the effectiveness of the registration
statement or prospectus then in effect or the initiation by
service of process on the Trust of any proceeding for that
purpose;
(c) of the happening of any event that makes untrue any statement
of a material fact made in the registration statement or
prospectus then in effect or which requires the making of a
change in such registration statement or prospectus in order to
make the statements therein not misleading; and
(d) of all action of the Commission with respect to any amendment
to any registration statement or prospectus which may from time
to time be filed with the Commission.
For purposes of this section, informal requests by or acts of
the Staff of the Commission shall not be deemed actions of or requests by the
Commission.
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1.14 Distributor agrees on behalf of itself and its partners and
employees to treat confidentially and as proprietary information of the Trust
all records and other information relative to the Trust and its prior, present
or potential Shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except, after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where
Distributor may be exposed to civil or criminal contempt proceedings for failure
to comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Trust.
1.15 This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
2. Term, Duration and Termination.
This Agreement shall become effective November 1, 1995 and,
unless sooner terminated as provided herein, shall continue until October 31,
1996. Thereafter, if not terminated, this Agreement shall continue automatically
for successive one-year terms, provided that such continuance is specifically
approved at least annually by (a) by the vote of a majority of those members of
the Trust's Board of Trustees who are not parties to this Agreement or
interested persons of any such party, cast in person at a meeting for the
purpose of voting on such approval and (b) by the vote of the Trust's Board of
Trustees or the vote of a majority of the outstanding voting securities of such
Fund. This Agreement is terminable without penalty, on not less than sixty-days
prior written notice, by the Trust's Board of Trustees, by vote of a majority of
the outstanding voting securities of the Trust or by the Distributor. This
Agreement will also terminate automatically in the event of its assignment. (As
used in this Agreement, the terms "majority of the outstanding voting
securities", "interested persons" and "assignment" shall have the same meanings
as ascribed to such terms in the 1940 Act.)
3. Sale of Shares Subject to a Front-End Sales Load
3.1 Under this Agreement, the following provisions shall apply with
respect to the sale of and payment of those Shares sold at an offering price
which includes a front-end sales load ("Class A Shares") as described in the
prospectuses of the Funds identified on Schedule B hereto (collectively, the
"Front-End Load Funds"; individually a "Front-End Load Fund"):
(a) The Distributor shall have the right to purchase Class A
Shares from the Front-End Load Funds at their net asset value and to sell such
Shares to the public against orders therefor at the applicable offering price,
as defined in Section 3.2 below. The Distributor shall also have the right to
sell Class A Shares to dealers against orders therefor at the public offering
price less a concession determined by the Distributor, which concession shall
not exceed the amount of the sales charge or underwriting discount, if any,
referred to in Section 3.2 below.
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(b) Prior to the time of delivery of any Class A Shares by a
Front-End Load Fund to, or on the order of, the Distributor, the Distributor
shall pay or cause to be paid to the Front-End Load Fund or to its order an
amount in Boston or New York clearing house funds equal to the applicable net
asset value of such Shares. The Distributor may retain so much of any sales load
or underwriting discount as it not allowed by the Distributor as a concession to
dealers.
3.2 The public offering price of a Class A Share of a Front-End
Load Fund shall be the net asset value of the Share, plus any applicable sales
charge, all as set forth in the current prospectus of the Front-End Load Fund.
The net asset value of Class A Shares shall be determined in accordance with the
provisions of the Declaration of Trust and Code of Regulations of the Trust and
the then current prospectus of the Front-End Load Fund.
3.3 The Front-End Load Funds reserve the right to issue, transfer
or sell Class A Shares at net asset value (a) in connection with merger or
consolidation of the Trust or the Front-End Load Fund(s) with any other
investment company or the acquisition by the Trust or the Front-End Load Fund(s)
of all or substantially all of the assets or of the outstanding Shares of any
other investment company; (b) in connection with a pro rata distribution
directly to the holders of Shares in the nature of a stock dividend or split;
(c) upon the exercise of subscription rights granted to the holders of Shares on
a pro rata basis; (d) in connection with the issuance of Shares pursuant to any
exchange and reinvestment privileges described in any then current prospectus of
the Front-End Load Fund; and (e) otherwise in accordance with any then current
prospectus of the Front-End Load Fund.
4. Sale of Shares Subject to a Traditional Rule 12b-1 Fee
4.1 Under this Agreement, the following provisions shall apply with
respect to Shares of Classes of the Trust's Shares, other than those of a Class
featuring a contingent deferred sales charge, that are subject to a fee under a
Distribution and Shareholder Services Plan under Rule 12b-1 as described in the
prospectuses of the Funds and identified on Schedule C hereto (collectively, the
"Distribution Plan Classes;" individually a "Distribution Plan Class"):
(a) The Distributor shall receive from the Trust all
distribution and service fees, as applicable, at the rate and under the terms
and conditions set forth in each Distribution and Shareholder Services Plan
adopted by each Distribution Plan Class of each Fund, as such Plans may be
amended from time to time, and subject to any further limitations on such fees
as the Board may impose.
(b) The Distributor may reallow any or all of the distribution
or service fees which it is paid by the Trust with respect to each Distribution
Plan Class of each Fund to such brokers, dealers and other financial
institutions and intermediaries as the Distributor may from time to time
determine.
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5. Sale of Shares Subject to a Contingent Deferred Sales Charge
5.1 The Trust may offer Shares subject to a contingent deferred
sales charge (a "CDSC"). The Distributor may pay brokers, dealers and other
financial institutions and intermediaries commissions with regard to the sale of
CDSC Shares. Under this Agreement, the following provisions shall apply with
respect to Shares of a Class featuring a CDSC (a "CDSC Class") as described in
the prospectus(es) of the Funds and identified on Schedule D hereto.
(a) The Distributor shall be entitled to receive all CDSC
payments on Shares of a CDSC Class. The Distributor may assign or sell to a
third party (a "CDSC Financing Entity") all or a part of the CDSC payments on
Shares of a CDSC Class that the Distributor is entitled to receive under this
Agreement. The Distributor's right to payment on such Shares, if assigned or
sold to a CDSC Financing Entity, shall continue after termination of this
Agreement.
(b) (i) The Distributor shall be entitled to receive all
distribution and service fees at the rate and under the terms and conditions set
forth in the Distribution and Shareholder Services Plan adopted by the CDSC
Class (the "Plan") on all Shares so long as the Plan is in effect. The
Distributor may assign or sell to a CDSC Financing Entity all or a part of the
distribution fees the Distributor is entitled to receive from the Trust under
the Plan. The Distributor's right to payment of distribution fees on such
Shares, if assigned or sold to a CDSC Financing Entity, shall continue after
termination of this Agreement, otherwise, the right to receive all distribution
and service fee payments in respect of periods subsequent to the termination of
this Agreement shall terminate upon termination of this Agreement.
(ii) The Distributor shall not be required to offer or
sell Shares of a CDSC Class unless and until it has received a binding
commitment from a CDSC Financing Entity (a "Commitment") satisfactory to the
Distributor which Commitment shall cover all expenses and fees related to the
offer and sale of such Shares of the CDSC Class including but not limited to
dealer reallowances, financing commitment fees, and legal fees. If at any time
during the term of this Agreement the then current CDSC financing is terminated
through no fault of the Distributor, the Distributor has the right to
immediately suspend CDSC Shares sales until substitute financing becomes
effective.
(iii) The Distributor may enter into arrangements
regarding the financing of commissions pertaining to the sale of shares of a
CDSC Class only upon written approval of the Trust's Treasurer, or his or her
designee, such approval not to be unreasonably withheld.
(c) The Distributor and the Trust hereby agree that the
terms and conditions set forth herein regarding the offer and sale of Shares of
a CDSC Class may be amended upon approval of both parties in order to comply
with the terms and conditions of any agreement with a CDSC Financing Entity to
finance the costs for the offer and sale of Shares of a CDSC Class so long as
such terms and conditions are in compliance with the Plan.
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6. Limitation of Liability of the Trustees and Shareholders.
It is expressly agreed that the obligations of the Trust
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Trust personally, but shall bind only the
trust property of the Trust. The execution and delivery of this Agreement have
been authorized by the Trustees, and this Agreement has been signed and
delivered by an authorized officer of the Trust, acting as such, and neither
such authorization by the Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in the Trust's Agreement and Declaration of
Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
written above.
THE ONE GROUP THE ONE GROUP SERVICES COMPANY
By: By:
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Title: Title:
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Date: Date:
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