DISTRIBUTION AGREEMENT
This Agreement made as of the day of , 1999 [DATE OF BOARD
APPROVAL TO BE INSERTED] by and between SAMCO Funds, Inc., a Maryland
corporation, (the "Fund"), and FIRST FUND DISTRIBUTORS, INC., a Delaware
corporation (the "Distributor").
W I T N E S S E T H:
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WHEREAS, the Fund is registered as an open-end management
investment company under the Investment Company Act of 1940 (the "1940 Act");
and it is in the interest of the Fund to offer its shares for sale
continuously; and
WHEREAS, the Distributor is registered as a broker-dealer under
the Securities Exchange Act of 1934 (the "1934 Act") and is a member in good
standing of the National Association of Securities Dealers, Inc. (the "NASD");
and
WHEREAS, the Fund and the Distributor wish to enter into an
agreement with each other with respect to the continuous offering of the shares
of each existing and future series (the "Shares") of the Fund;
NOW, THEREFORE, the parties agree as follows:
1. Appointment of Distributor. The Fund hereby appoints the
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Distributor as exclusive agent to sell and to arrange for the sale of the
Shares, on the terms and for the period set forth in this Agreement, and the
Distributor hereby accepts such appointment and agrees to act hereunder
directly and/or through the Fund's transfer agent in the manner set forth in
the Prospectuses (as defined below). It is understood and agreed that the
services of the Distributor hereunder are not exclusive, and the Distributor
may act as principal underwriter for the shares of any other registered
investment company.
2. Services and Duties of the Distributor.
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(a) The Distributor agrees to sell the Shares, as agent
for the Fund, from time to time during the term of this Agreement upon the
terms described in a Prospectus. As used in this Agreement, the term
"Prospectus" shall mean a prospectus and statement of additional information
included as part of the Fund's Registration Statement, as such prospectus and
statement of additional information may be amended or supplemented from time to
time, and the term "Registration Statement" shall mean the Registration
Statement filed from time to time by the Fund with the Securities
and Exchange Commission ("SEC") and currently effective under the Securities
Act of 1933 (the "1933 Act") and the 1940 Act, as such Registration Statement
is amended by any amendments thereto at the time in effect. The Distributor
shall not be obligated
to sell any certain number of Shares.
(b) Upon commencement of operations of any series, the
Distributor will hold itself available to receive orders, satisfactory to the
Distributor, for the purchase of the Shares and will accept such orders and
will transmit such orders and funds received by it in payment for such Shares
as are so accepted to the Fund's transfer agent or custodian, as appropriate,
as promptly as practicable. Purchase orders shall be deemed accepted and shall
be effective at the time and in the manner set forth in the series'
Prospectuses. The Distributor shall not make any short sales of Shares.
(c) The offering price of the Shares shall be the net
asset value per share of the Shares, plus the sales charge, if any, (determined
as set forth in the Prospectuses). The Fund shall furnish the Distributor, with
all possible promptness, an advice of each computation of net asset value and
offering price.
(d) The Distributor shall have the right to enter into
selected dealer agreements with securities dealers of its choice ("selected
dealers") for the sale of Shares. Shares sold to selected dealers shall be for
resale by such dealers only at the offering price of the Shares as set forth in
the Prospectuses. The Distributor shall offer and sell Shares only to such
selected dealers as are members in good standing of the NASD, unless such
dealers are not eligible for membership in the NASD.
3. Duties of the Fund.
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(a) Maintenance of Federal Registration. The Fund shall,
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at its expense, take, from time to time, all necessary action and such steps,
including payment of the related filing fees, as may be necessary to register
and maintain registration of a sufficient number of Shares under the 0000 Xxx.
The Fund 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.
(b) Maintenance of "Blue Sky" Qualifications. The Fund shall, at its
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expense, use its best efforts to qualify and maintain the qualification of an
appropriate number of Shares for sale under the securities laws of such states
as the Distributor and the Fund may approve, and, if necessary or appropriate
in connection therewith, to qualify and maintain the qualification of the Fund
or the series as a broker or dealer in such states; provided that the Fund
shall not be required to amend its Agreement and Declaration of Fund or By-Laws
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, to change the
terms of the offering of the Shares in any state from the terms set forth in
Prospectuses, to qualify as a foreign Fund in any state or to consent to
service of process in any state other than with respect to claims arising out
of the offering and sale of the Shares. The Distributor shall furnish such
information and other material relating to its affairs and activities as may be
required by the Fund or its series in connection with such qualifications.
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(c) Copies of Reports and Prospectuses. The Fund shall, at its
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expense, keep the Distributor fully informed with regard to its affairs and in
connection therewith 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,
including such reasonable number of copies of Prospectuses 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.
4. Conformity with Applicable Law and Rules. The Distributor agrees
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that in selling Shares hereunder it shall conform in all respects with the laws
of the United States and of any state in which Shares may be offered, and with
applicable rules and regulations of the NASD.
5. Independent Contractor. In performing its duties hereunder, the
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Distributor shall be an independent contractor and neither the Distributor, nor
any of its officers, directors, employees, or representatives is or shall be an
employee of the Fund in the performance of the Distributor's duties hereunder.
The Distributor shall be responsible for its own conduct and the employment,
control, and conduct of its agents and employees and for injury to such agents
or employees or to others through its agents or employees. The Distributor
assumes full responsibility for its agents and employees under applicable
statutes and agrees to pay all employee taxes thereunder.
6. Indemnification.
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(a) Indemnification of Fund. The Distributor agrees to
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indemnify and hold harmless the Fund and each of its present or former
Trustees/Directors, officers, employees, representatives and each person, if
any, who controls or previously controlled the Fund within the meaning of
Section 15 of the 1933 Act against any and all losses, liabilities, damages,
claims or expenses (including the reasonable costs of investigating or
defending any alleged loss, liability, damage, claims or expense and reasonable
legal counsel fees incurred in connection therewith) to which the Fund or any
such person may become subject under the 1933 Act, under any other statute, at
common law, or otherwise, arising out of the acquisition of any Shares by any
person which (i) may be based upon any wrongful act by the Distributor or any
of the Distributor's directors, officers, employees or representatives, or (ii)
may be based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement, Prospectus, shareholder
report or other information covering Shares filed or made public by the Fund or
any amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading if such statement or
omission was made in reliance upon and in conformity with information furnished
to the Fund by the Distributor. In no case (i) is the Distributor's indemnity
in favor of the Fund, or any person indemnified to be deemed to protect the
Fund or such indemnified person against any liability to which the Fund or such
person would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the
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performance of the Fund's or such person's duties or by reason of reckless
disregard of the Fund's or such person's obligations and duties under this
Agreement or (ii) is the Distributor to be liable under its indemnity agreement
contained in this Paragraph with respect to any claim made against the Fund or
any person indemnified unless the Fund or such person, as the case may be,
shall have notified the Distributor in writing of the claim within a reasonable
time after the summons or other first written notification giving information
of the nature of the claim shall have been served upon the Fund or upon such
person (or after the Fund or such person shall have received notice of such
service on any designated agent). However, failure to notify the Distributor of
any such claim shall not relieve the Distributor from any liability which the
Distributor may have to the Fund or any person against whom such action is
brought otherwise than on account of the Distributor's indemnity agreement
contained in this Paragraph.
The Distributor shall be entitled to participate, at its own expense
in the defense, or, if the Distributor so elects, to assume the defense of any
suit brought to enforce any such claim, but, if the Distributor elects to
assume the defense, such defense shall be conducted by legal counsel chosen by
the Distributor and satisfactory to the Fund, and to the persons indemnified as
defendant or defendants, in the suit. In the event that the Distributor elects
to assume the defense of any such suit and retain such legal counsel, the Fund,
and the persons indemnified as defendant or defendants in the suit, shall bear
the fees and expenses of any additional legal counsel retained by them. If the
Distributor does not elect to assume the defense of any such suit, the
Distributor will reimburse the Fund and the persons indemnified defendant or
defendants in such suit for the reasonable fees and expenses of any legal
counsel retained by them. The Distributor agrees to promptly notify the Fund of
the commencement of any litigation of proceedings against it or any of its
officers, employees or representatives in connection with the issue or sale of
any Shares.
(b) Indemnification of the Distributor. The Fund agrees to
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indemnify and hold harmless the Distributor and each of its present or former
directors, officers, employees, representatives and each person, if any, who
controls or previously controlled the Distributor within the meaning of Section
15 of the 1933 Act against any and all losses, liabilities, damages, claims or
expenses (including the reasonable costs of investigating or defending any
alleged loss, liability, damage, claim or expense and reasonable legal counsel
fees incurred in connection therewith) to which the Distributor or any such
person may become subject under the 1933 Act, under any other statute, at
common law, or otherwise, arising out of the acquisition of any Shares by any
person which (i) may be based upon any wrongful act by the Fund or any of the
Fund's Trustees/Directors, officers, employees or representatives, or (ii) may
be based upon any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement, Prospectus, shareholder report or
other information covering Shares filed or made public by the Fund or any
amendment thereof or supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading unless such statement or omission
was made in reliance upon and in conformity with information furnished to the
Fund by the Distributor. In no case (i) is the Fund's indemnity in favor of the
Distributor, or any person indemnified to be deemed to protect the Distributor
or such indemnified person against any liability to which the Distributor or
such
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person would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of such person's duties or by reason of
reckless disregard of such person's obligations and duties under this Agreement
or (ii) is the Fund to be liable under their indemnity agreement contained in
this Paragraph with respect to any claim made against Distributor, or person
indemnified unless the Distributor, or such person, as the case may be, shall
have notified the Fund in writing of the claim within a reasonable time after
the summons or other first written notification giving information of the
nature of the claim shall have been served upon the Distributor or upon such
person (or after the Distributor or such person shall have received notice of
such service on any designated agent). However, failure to notify the Fund of
any such claim shall not relieve the Fund from any liability which the Fund may
have to the Distributor or any person against whom such action is brought
otherwise than on account of the Fund's indemnity agreement contained in this
Paragraph.
The Fund shall be entitled to participate, at its own expense, in the
defense, or, if the Fund so elects, to assume the defense of any suit brought
to enforce any such claim, but if the Fund elects to assume the defense, such
defense shall be conducted by legal counsel chosen by the Fund and satisfactory
to the Distributor and to the persons indemnified as defendant or defendants,
in the suit. In the event that the Fund elects to assume the defense of any
such suit and retain such legal counsel, the Distributor, the persons
indemnified as defendant or defendants in the suit, shall bear the fees and
expenses of any additional legal counsel retained by them. If the Fund does not
elect to assume the defense of any such suit, the Fund will reimburse the
Distributor and the persons indemnified as defendant or defendants in such suit
for the reasonable fees and expenses of any legal counsel retained by them. The
Fund agrees to promptly notify the Distributor of the commencement of any
litigation or proceedings against it or any of its Trustees/Directors,
officers, employees or representatives in connection with the issue or sale of
any Shares.
7. Authorized Representations. The Distributor is not authorized by
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the Fund to give on behalf of the Fund any information or to make any
representations in connection with the sale of Shares other than the
information and representations contained in a Registration Statement or
Prospectus filed with the SEC under the 1933 Act and/or the 1940 Act, covering
Shares, as such Registration Statement and Prospectus may be amended or
supplemented from time to time, or contained in shareholder reports or other
material that may be prepared by or on behalf of the Fund for the Distributor's
use. This shall not be construed to prevent the Distributor from preparing and
distributing tombstone ads and sales literature or other material as it may
deem appropriate. No person other than the Distributor is authorized to act as
principal underwriter (as such term is defined in the 0000 Xxx) for the Fund.
8. Term of Agreement. The term of this Agreement shall begin on the
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date first above written, and unless sooner terminated as hereinafter provided,
this Agreement shall remain in effect for a period of two years from the date
first above written. Thereafter, this Agreement shall continue in effect from
year to year, subject to the termination provisions and all other terms and
conditions thereof, so long as such continuation shall be specifically approved
at least annually by (i) the Board of Trustees/Directors or by vote of a
majority of the outstanding voting
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securities of each series of the Fund and,(ii) by the vote, cast in person at
a meeting called for the purpose of voting on such approval, of a majority of
the Trustees/Directors of the Fund who are not parties to this Agreement or
interested persons of any such party. The Distributor shall furnish to the
Fund, promptly upon its request, such information as may reasonably be
necessary to evaluate the terms of this Agreement or any extension, renewal or
amendment hereof.
9. Amendment or Assignment of Agreement. This Agreement may not be
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amended or assigned except as permitted by the 1940 Act, and this Agreement
shall automatically and immediately terminate in the event of its assignment.
10. Termination of Agreement. This Agreement may be terminated by
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either party hereto, without the payment of any penalty, on not more than upon
60 days' nor less than 30 days' prior notice in writing to the other party;
provided, that in the case of termination by the Fund such action shall have
been authorized by resolution of a majority of the Trustees/Directors of the
Fund who are not parties to this Agreement or interested persons of any such
party, or by vote of a majority of the outstanding voting securities of each
series of the Fund.
11. Miscellaneous. The captions in this Agreement are included for
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convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Nothing herein contained shall be deemed to require the Fund to take
any action contrary to its Agreement and Declaration of Fund or By-Laws, or any
applicable statutory or regulatory requirement to which it is subject or by
which it is bound, or to relieve or deprive the Board of Trustees/Directors of
the Fund of responsibility for and control of the conduct of the affairs of the
Fund.
12. Definition of Terms. Any question of interpretation of any term
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or provision of this Agreement having a counterpart in or otherwise derived
from a term or provision of the 1940 Act shall be resolved by reference to such
term or provision of the 1940 Act and to interpretation thereof, if any, by the
United States courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC validly issued pursuant to
the 1940 Act. Specifically, the terms "vote of a majority of the outstanding
voting securities", "interested persons," "assignment," and "affiliated
person," as used in Paragraphs 8, 9 and 10 hereof, shall have the meanings
assigned to them by Section 2(a) of the 1940 Act. In addition, where the effect
of a requirement of the 1940 Act reflected in any provision of this Agreement
is relaxed by a rule, regulation or order of the SEC, whether of special or of
general application, such provision shall be deemed to incorporate the effect
of such rule, regulation or order.
13. Compliance with Securities Laws. The Fund represents that it is
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registered as
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an open-end management investment company under the 1940 Act, and agrees that
it will comply with all the provisions of the 1940 Act and of the rules and
regulations thereunder. The Fund and the Distributor each agree to comply with
all of the applicable terms and provisions of the 1940 Act, the 1933 Act and,
subject to the provisions of Section 4(d), all applicable "Blue Sky" laws. The
Distributor agrees to comply with all of the applicable terms and provisions of
the 1934 Act.
14. Notices. Any notice required to be given pursuant to this
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Agreement shall be deemed duly given if delivered or mailed by registered mail,
postage prepaid, to the Distributor at 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000-X,
Xxxxxxx, Xxxxxxx, 00000 or to the Fund at [ADDRESS].
15. Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below on the date first written above.
[TRUST/COPORATION]
By:
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Name:
Title:
FIRST FUND DISTRIBUTORS, INC
By:
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Name:
Title:
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