EX99.B(e)
DISTRIBUTION AGREEMENT
Xxxxx Fargo Funds Trust
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
THIS AGREEMENT is made as of this 8th day of November, 1999, by and
between Xxxxx Fargo Funds Trust, a Delaware business trust (the "Trust") and
Xxxxxxxx Inc., an Arkansas corporation (the "Distributor").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust desires to retain the Distributor to render
distribution services to the Trust's investment portfolios listed on Appendix A
(individually, a "Fund" and collectively, the "Funds"), and the Distributor is
willing to render such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. As the Trust's agent, the Distributor shall be the exclusive
distributor for the shares of the Fund registered under the Securities Act of
1933 (the "1933 Act"). In addition to providing all share distribution services
for the Funds, the Distributor will maintain a service desk dedicated to the
Funds, and will maintain and preserve all records of the Funds, including
financial and corporate records.
2. The Trust shall sell through the Distributor, as the Trust's
agent, and deliver, upon the terms set forth herein, Fund shares that the
Distributor orders from the Trust and for which the Distributor has received and
confirmed unconditional purchase orders. All orders from the Distributor shall
be subject to acceptance and confirmation by the Trust. The Trust shall have the
right, at its election, to deliver either shares issued upon original issue or
treasury shares.
3. As the Trust's agent, the Distributor may sell and distribute
Fund shares in such manner not inconsistent with the provisions hereof as the
Distributor may determine from time to time. In that connection the Distributor
shall comply with all laws, rules and regulations applicable to it, including,
without limiting the generality of the foregoing, all applicable rules or
regulations under the 1933 Act, the 1940 Act and of any securities association
registered under the Securities Exchange Act of 1934 (the "1934 Act").
4. The Trust reserves the right to sell Fund shares to purchasers
to the extent that it or the transfer agent for Fund shares receives purchase
applications therefor. The Distributor's right to accept purchase orders for
Fund shares or to make sales thereof shall not apply to Fund shares that may be
offered by the Trust to shareholders for the reinvestment of cash distributed to
shareholders by the Trust or Fund shares that may otherwise be offered by the
Trust to shareholders, unless the Distributor is otherwise notified by the
Trust.
5. All shares offered for sale and sold by the Distributor shall
be offered for sale and sold by the Distributor to or through securities dealers
or banks and other depository institutions having agreements with the
Distributor ("Selling Agents") upon the terms and conditions set forth in
paragraph 7(b) hereof or to investors at the price per share (the "offering
price", which is the net asset value per share plus the applicable sales charge,
if any) specified and determined as provided in the Prospectus (the
"Prospectus") included in the Trust's Registration Statement, as amended from
time to time, under the 1933 Act and the 1940 Act (the "Registration
Statement"), relating to the offering of its shares for sale. If the offering
price is not an exact multiple of one cent, it shall be adjusted to the nearest
full cent. The Trust shall determine and furnish promptly to the Distributor a
statement of the offering price at least once on each day on which the
Prospectus states the Trust is required to determine the Trust's net asset value
for the purpose of pricing purchase orders. Each offering price shall become
effective at the time and shall remain in effect during the period specified in
the statement. Each such statement shall show the basis of its computation. For
purposes of establishing the offering price, the Trust shall consider a purchase
order to have been presented to it at the time it was originally entered by the
Distributor for transmission to it, provided the original purchase order and the
Distributor's fulfilling order to the Trust are appropriately time stamped or
evidenced to show the time of original entry and that the Distributor's
fulfilling order to the Trust is received by the Trust within a time deemed by
it to be reasonable after the purchase order was originally entered. Purchases
of shares shall be made for full and fractional shares, carried to the third
decimal place.
6. Ownership of Fund shares sold hereunder shall be registered in
such names and denominations as are specified in writing to the Trust or to its
agent designated for the purpose. No certificates for shares of the Fund will be
issued.
7. (a) The Distributor shall from time to time employ or associate
with it such persons as it believes necessary to assist it in carrying out its
obligations under this agreement. The compensation of such persons shall be paid
by the Distributor.
(b) The Distributor shall have the right to enter into
selling agreements with Selling Agents of its choice for
the sale or marketing of Fund shares at the offering price and upon the terms
and conditions set forth in the Prospectus. The initial form of selling
agreement is attached hereto as Appendix B. The Distributor may amend those
agreements, or modify the form of agreement, only upon approval of the Trust.
(c) The Distributor shall pay all expenses incurred in
connection with its qualification as a dealer or broker
under Federal or state laws.
(d) The Distributor shall pay for all expenses incurred in
connection with (i) printing and distributing such
number of copies of the Prospectus as the Distributor deems necessary for use in
connection with offering Fund shares to prospective investors, (ii) preparing,
printing and distributing any other literature and advertising deemed
appropriate by the Distributor for use in connection with offering Fund shares
for sale and (iii) all other expenses incurred in connection with the sale of
Fund shares as contemplated by this agreement, except as otherwise specifically
provided in this agreement. In addition, it is understood and agreed that, so
long as a plan of distribution of the Fund adopted pursuant to Rule 12b-1 of the
1940 Act (the "Plan") continues in effect, any expenses incurred by the
Distributor hereunder may be paid from amounts received by it from the Fund
under the Plan. So long as the Plan continues in effect, the Distributor shall
be entitled to receive reimbursement from the Trust under the Plan for actual
expenses incurred in connection with the Fund to the extent such expenses are
reimbursable under the Plan. The Treasurer of the Trust shall provide to the
Board of Trustees of the Trust and the Board of Trustees shall review, at least
quarterly, a written report of the amounts so expended and the purposes for
which such expenditures were made.
(e) The Trust shall pay all expenses incurred in connection
with (i) the preparation, printing and distribution
to stockholders of the Prospectus and reports and other communications to Fund
shareholders; (ii) registrations of Fund shares under the 1933 Act and the Fund
under the 1940 Act; (iii) amendments to the Registration Statement; (iv)
qualification of Fund shares for sale in jurisdictions designated by the
Distributor; (v) qualification of the Trust as a dealer or broker under the laws
of jurisdictions designated by the Distributor; (vi) qualification of the Trust
as a foreign corporation authorized to do business in any jurisdiction if the
Distributor determines that such qualification is necessary or desirable for the
purpose of facilitating sales of Fund shares; (vii) maintaining facilities for
the issue and transfer of Fund shares; (viii) supplying information, prices and
other data to be furnished by the Trust under this agreement; and (ix) original
issue taxes or transfer taxes applicable to the sale or delivery of Fund shares.
(f) The Trust shall execute all documents and furnish any
information which may be reasonably necessary in
connection with the qualification of Fund shares of the Trust for sale in a
jurisdiction designated by the Distributor.
(g) The Trust shall pay to the Distributor the maximum
amount that is payable pursuant to, and in accordance
with, the Distribution Plan applicable to a Fund or class of shares of a Fund,
or the maximum amount payable under applicable laws, regulations and rules,
whichever is less, unless the parties hereto mutually agree, in writing, to a
lesser amount. In addition, the Distributor shall be entitled to receive
applicable sales charges, including front end sales loads and contingent
deferred sales charges, on the basis set forth in the Prospectus.
8. The Trust shall furnish the Distributor from time to time, for
use in connection with the sale of Fund shares, such written information with
respect to the Trust as the Distributor may reasonably request. In each case
such written information shall be signed by an authorized officer of the Trust.
The Trust represents and warrants that such information, when signed by one of
its officers, shall be true and correct. The Trust shall also furnish to the
Distributor copies of its reports to its stockholders and such additional
information regarding the Trust's financial condition as the Distributor may
reasonably request from time to time.
9. The Registration Statement and the Prospectus have been or will
be, as the case may be, prepared in conformity with the 1933 Act, the 1940 Act
and the rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "SEC"). The Trust represents and warrants to the
Distributor that the Registration Statement and the Prospectus contain or will
contain all statements required to be stated therein in accordance with the 1933
Act, the 1940 Act and the Rules and Regulations, that all statements of fact
contained or to be contained therein are or will be true and correct at the time
indicated or the effective date, as the case may be, and that neither the
Registration Statement nor the Prospectus, when it shall become effective under
the 1933 Act or be authorized for use, shall 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 Fund
shares. The Trust shall from time to time file such amendment or amendments to
the Registration Statement and the Prospectus as, in the light of future
developments, shall, in the opinion of the Trust's counsel, be necessary in
order to have the Registration Statement and the Prospectus at all times contain
all material facts required to be stated therein or necessary to make the
statements therein not misleading to a purchaser of Fund shares. If the Trust
shall not file such amendment or amendments within 15 days after receipt by the
Trust of a written request from the Distributor to do so, the Distributor may,
at its option, terminate this agreement immediately. The Trust shall not file
any amendment to the Registration Statement or the Prospectus without giving the
Distributor reasonable notice thereof in advance, provided that nothing in this
agreement shall in any way limit the Trust's right to file at any time such
amendments to the Registration Statement or the Prospectus as the Trust may deem
advisable. The Trust represents and warrants to the Distributor that any
amendment to the Registration Statement or the Prospectus filed hereafter by the
Trust will, when it becomes effective under the 1933 Act, contain all statements
required to be stated therein in accordance with the 1933 Act, the 1940 Act and
the Rules and Regulations, that all statements of fact contained therein will,
when the same shall become effective, be true and correct, and that no such
amendment, when it becomes effective, will include an untrue statement of a
material fact or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading to a
purchaser of Fund shares.
10. Subject to the provisions of paragraph 7, the Trust shall
prepare and furnish to the Distributor from time to time such number of copies
of the most recent form of the Prospectus filed with the SEC as the Distributor
may reasonably request. The Trust authorizes the Distributor and Selling Agents
to use the Prospectus, in the form furnished to the Distributor from time to
time, in connection with the sale of Fund shares. The Trust shall indemnify,
defend and hold harmless the Distributor, its officers and partners and any
person who controls the Distributor within the meaning of the 1933 Act, from and
against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Distributor, its
officers or partners or any such controlling person, may incur under the 1933
Act, the 1940 Act, other statutes, the common law or otherwise, arising out of
or based upon any alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or arising out of or based upon any
alleged omission to state a material fact required to be stated in either
thereof or necessary to make the statements in either thereof not misleading.
Notwithstanding the foregoing, this indemnity agreement, to the extent that it
might require indemnity of any person who is an officer or partner of the
Distributor and who is also a director of the Trust, shall not inure to the
benefit of such officer or partner unless a court of competent jurisdiction
shall determine, or it shall have been determined by controlling precedent, that
such result would not be against public policy as expressed in the 1933 Act or
the 1940 Act, and in no event shall anything contained herein be so construed as
to protect the Distributor against any liability to the Trust or its
stockholders to which the Distributor would otherwise be subject by reason of
willful misfeasance, bad faith or negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
agreement. This indemnity agreement is expressly conditioned upon the Trust's
being notified of any action brought against the Distributor, its officers or
partners or any such controlling person, which notification shall be given by
letter or by telegram addressed to the Trust at its principal office in Little
Rock, Arkansas, and sent to the Trust 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 to notify the Trust of any such action shall not
relieve the Trust from any liability which it may have to the person against
whom such action is brought by reason of any such alleged untrue statement or
omission otherwise than on account of the indemnity agreement contained in this
paragraph. The Trust shall be entitled to assume the defense of any suit brought
to enforce any such claim, demand or liability, but, in such case, the defense
shall be conducted by counsel chosen by the Trust and approved by the
Distributor. If the Trust elects to assume the defense of any such suit and
retain counsel approved by the 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 the Distributor does not approve of counsel chosen by the
Trust, the Trust will reimburse the Distributor, its officers and partners or
the controlling person or persons named as defendant or defendants in such suit,
for the fees and expenses of any counsel retained by the Distributor or them. In
addition, The Distributor shall have the right to employ one separate counsel to
represent it, its officers and partners and any such controlling person who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by the Distributor against the Trust hereunder if in the
reasonable judgment of the Distributor it is advisable because of existing or
potential differing interests between the Distributor, its officers and partners
or such controlling person and the Trust in the conduct of the defense of such
action, for the Distributor, its officers and partners or such controlling
person to be represented by separate counsel, in which event the fees and
expenses of such separate counsel shall be borne by the Trust. This indemnity
agreement 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 the Distributor, its officers and partners or any such
controlling person and shall survive the delivery of any shares as provided in
this agreement. This indemnity agreement shall inure exclusively to the benefit
of the Distributor and its successors, the Distributor's officers and partners
and their respective estates and any such controlling persons and their
successors and estates. The Trust shall promptly notify the Distributor of the
commencement of any litigation or proceedings against it in connection with the
issue and sale of any Fund shares.
11. The Distributor agrees to indemnify, defend and hold harmless
the Trust, its officers and directors and any person who controls the Trust
within the meaning of the 1933 Act, from and against any and all claims,
demands, liabilities and expenses (including the cost of investigating or
defending such claims, demands or liabilities and any counsel fees incurred in
connection therewith) which the Trust, its officers or directors or any such
controlling person, may incur under the 1933 Act, the 1940 Act, other statutes,
the common law or otherwise, but only to the extent that such liability or
expense incurred by the Trust, its officers or directors or such controlling
person resulting from such claims or demands shall arise out of or be based upon
(a) any alleged untrue statement of a material fact contained in information
furnished in writing by the Distributor to the Trust specifically for use in the
Registration Statement or the Prospectus or shall arise out of or be based upon
any alleged omission required to be stated in the Registration Statement or the
Prospectus or necessary to make such information not misleading, (b) any alleged
act or omission on the Distributor's part as the Trust's agent that has not been
expressly authorized by the Trust in writing, or (c) any alleged willful
misfeasance, bad faith or negligence in the performance of the Distributor's
obligations and duties under the Agreement or by reason of its alleged reckless
disregard thereof. This indemnity agreement is expressly conditioned upon the
Distributor's being notified of any action brought against the Trust, its
officers and directors or any such controlling person, which notification shall
be given by letter or telegram, addressed to the Distributor at its principal
office in Little Rock, Arkansas, and sent to the 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. The failure to notify the
Distributor of any such action shall not relieve the Distributor from any
liability which it may have to the Trust, its officers or directors or such
controlling person by reason of any such alleged misstatement or omission on the
Distributor's part otherwise than on account of the indemnity agreement
contained in this paragraph. The Distributor shall have a right to control the
defense of such action with counsel of its own choosing and approved by the
Trust if such action is based solely upon such alleged misstatement or omission
on the Distributor's part, and in any other event the Trust, its officers and
directors or such controlling person shall each have the right to participate in
the defense or preparation of the defense of any such action at their own
expense.
12. No Fund shares shall be sold through the Distributor or by the
Trust under this agreement and no orders for the purchase of Fund shares shall
be confirmed or accepted by the Trust if and so long as the effectiveness of the
Registration Statement shall be suspended under any of the provisions of the
1933 Act. Nothing contained in this paragraph 12 shall in any way restrict,
limit or have any application to or bearing upon the Trust's obligation to
redeem Fund shares from any shareholder in accordance with the provisions of its
Declaration of Trust. The Trust will use its best efforts at all times to have
Fund shares effectively registered under the 1933 Act.
13. The Trust agrees to advise the Distributor immediately:
(a) of any request by the SEC for amendments to the Registration
Statement or the Prospectus or for additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
Prospectus under the 1933 Act or the initiation of any proceedings for
that purpose;
(c) of the happening of any material event that makes untrue any
statement made in the Registration Statement or the Prospectus or that
requires the making of a change in either thereof in order to make the
statements therein not misleading; and
(d) of any action of the SEC with respect to any amendments to
the Registration Statement or the Prospectus that may from time to
time be filed within the SEC under the 1933 Act or the 1940 Act.
14. Insofar as they concern the Trust, the Trust shall comply with
all applicable laws, rules and regulations, including, without limiting the
generality of the foregoing, all rules or regulations made or adopted pursuant
to the 1933 Act, the 1940 Act or by any securities association registered under
the 1934 Act.
15. The Distributor may, if it desires and at its own cost and
expense, appoint or employ agents to assist it in carrying out its obligations
under this agreement, but no such appointment or employment shall relieve the
Distributor of any of its responsibilities or obligations to the Trust under
this agreement.
16. The following provisions shall apply with respect to the sale
by Distributor of Class B Shares of any Fund, notwithstanding any other
provision herein to the contrary:
(a) Distributor shall have the obligation to pay all
applicable dealer allowances ("B Share Allowances") which
Selling Agents are entitled to receive in connection with the sale of Class B
Shares, including any such B Share Allowances, or portions thereof, which
registered representatives of Distributor are entitled to receive.
(b) The amounts that are payable under the Plan to
Distributor pursuant to Section 7(g) hereof with respect to
the Class B Shares of the Funds are the maximum amounts which are set forth in
Appendix A to the Plan for the Class B Shares. These amounts shall continue to
be the amounts payable with regard to the Class B Shares under the Plan unless
and until changed in accordance with the terms of such Plan or this Agreement.
(c) To the extent that Distributor engages and uses a
third-party to finance its obligation to pay B Share
Allowances as set forth in this section, Distributor shall have the right to
assign to such third-party all or any portion of Distributor's right hereunder
to receive fees in connection with the sale of Class B Shares and to direct the
Trust, upon written notice, to make direct payment of these fees to such party,
free and clear of any rights to offset or claims of the Trust or any Fund
against Distributor.
(d) The Trust acknowledges that, under the applicable
Distribution Plan for Class B Shares of the Funds, any
payments that Distributor is entitled to receive with respect to Class B Shares
shall continue, in accordance with, and subject to, the applicable terms
relating to the Class B Shares, regardless of whether Distributor is acting as
the principal underwriter for the Company (and affected Funds); provided that
the Distribution Plan for the Class B Shares has not been terminated or modified
in a way which affects the payment of such amounts.
17. Subject to the provisions of paragraph 9, this agreement shall
continue in effect until such time as there shall remain no shares registered
under the 1933 Act, provided that this agreement shall continue in effect for a
period of more than one year from the date hereof only so long as such
continuance is specifically approved at least annually in accordance with the
1940 Act and the rules thereunder. This agreement shall terminate automatically
in the event of its assignment (as defined in the 1940 Act). This agreement may,
in any event, be terminated at any time, without the payment of any penalty, by
the Trust upon 60 days' written notice to the Distributor or by the Distributor
at any time after the second anniversary of the effective date of this agreement
on 60 days' written notice to the Trust.
18. Nothing in this Agreement shall require the Trust to take any
action contrary to any provision of its Declaration of Trust or to any
applicable statute or regulation.
19. Miscellaneous.
(a) Any notice or other instrument authorized or required
by this Agreement to be given in writing to the Trust
or the Distributor shall be sufficiently given if addressed to that party and
received by it at its office set forth below or at such other place as it may
from time to time designate in writing.
To the Trust:
Xxxxx Fargo Funds Trust
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Secretary
With a copy to:
Xxxxx Fargo Bank, N.A.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: C. Xxxxx Xxxxxxx, Vice President
To the Distributor:
Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx., Senior Vice President
(b) This Agreement shall extend to and be binding upon the
parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be subject to assignment (as
that term is defined under the 1940 Act).
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(d) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, and which collectively shall be
deemed to constitute only one agreement.
(e) If any provision of this Agreement is declared to be
prohibited or unenforceable, the remaining provisions of this
Agreement shall continue to be valid and fully enforceable.
In witness whereof, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
XXXXX FARGO FUNDS TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Assistant Treasurer
XXXXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx._______
Xxxxxxx X. Xxxxx, Xx.
Senior Vice President
Approved: March 26, 1999
Appendix A
Funds of Xxxxx Fargo Funds Trust Covered by This Agreement
1. Aggressive Balanced-Equity Fund
2. Arizona Tax-Free Fund
3. Asset Allocation Fund
4. California Limited Term Tax-Free Fund
5. California Tax-Free Fund
6. California Tax-Free Money Market Fund
7. California Tax-Free Money Market Trust
8. Cash Investment Money Market Fund
9. Colorado Tax-Free Fund
10. Corporate Bond Fund
11. Disciplined Growth Fund
12. Diversified Bond Fund
13. Diversified Equity Fund
14. Diversified Small Cap Fund
15. Equity Income Fund
16. Equity Index Fund
17. Equity Value Fund
18. Government Money Market Fund
19. Growth Balanced Fund
20. Growth Equity Fund
21. Growth Fund
22. Income Fund
23. Income Plus Fund
24. Index Allocation Fund
25. Index Fund
26. Intermediate Government Income Fund
27. International Equity Fund
28. International Fund
29. Large Company Growth Fund
30. LifePath Opportunity Fund
31. LifePath 2010 Fund
32. LifePath 2020 Fund
33. LifePath 2030 Fund
34. LifePath 2040 Fund
35. Limited Term Government Income Fund
36. Minnesota Intermediate Tax-Free Fund
37. Minnesota Money Market Fund
38. Minnesota Tax-Free Fund
39. Moderate Balanced Fund
40. Money Market Fund
41. Money Market Trust
42. National Limited Term Tax-Free Fund
43. National Tax-Free Fund
44. National Tax-Free Institutional Money Market Fund
45. National Tax-Free Money Market Fund
46. National Tax-Free Money Market Trust
47. Oregon Tax-Free Fund
48. Overland Express Sweep Fund
49. Prime Investment Money Market Fund
50. Small Cap Growth Fund
51. Small Cap Opportunities Fund
52. Small Cap Value Fund
53. Small Company Growth Fund
54. Stable Income Fund
55. Strategic Income Fund
56. Treasury Plus Institutional Money Market Fund
57. Treasury Plus Money Market Fund
58. 100% Treasury Money Market Fund
59. Variable Rate Government Fund
60. Wealthbuilder Growth & Income Portfolio
61. Wealthbuilder Growth Balanced Portfolio
62. Wealthbuilder Growth Portfolio
Approved by Board of Trustees: March 26, 1999
