Exhibit e(1)
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made as of this 31st day of December, 2000
(the "Agreement") by and between ABN Amro Funds, a Massachusetts business trust
(the "Company") having its principal place of business at 000 Xxxxx Xx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and ABN Amro Distribution Services (USA), Inc.,
a Delaware corporation (the "Distributor") having its principal place of
business at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Company is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and its units of beneficial interest (such units of all series are hereinafter
called the "Shares") are registered with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933 (the "1933 Act"), and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
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. ("NASD"),
and
WHEREAS, the Company desires to retain the Distributor as distributor for
the investment portfolios of the Company to provide for the sale and
distribution of the Shares of the investment portfolios identified on Schedule A
(the "Funds") and for such additional classes or series as the Company may
issue, and the Distributor is prepared to provide such services commencing on
the date first written above, and
WHEREAS, the Company and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of the Company's Shares.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth herein the Distributor and the Company hereby agree as follows:
1. Service as Distributor
----------------------
1.1 The Company hereby appoints and the Distributor agrees to act as the
Company's agent to sell and arrange for the sale of the Shares covered by
the Company's registration statement under the 0000 Xxx.
1.2 The Distributor agrees to use its best efforts in connection with the
distribution of Shares, including such advertising and promotion as it
believes reasonable in connection with such distribution.
The Distributor will hold itself available to receive orders, that the
Distributor reasonably believes to be in good order, for the purchase of
the Shares and will accept such orders and will transmit such orders as are
so accepted and funds received by it in payment for such Shares to the
Company's transfer agent or custodian, as appropriate, as promptly as
practicable. Purchase orders shall be deemed effective at the time and in
the manner set forth in the Prospectus. The offering price of the Shares
will be the net asset value per
share of the Shares plus any applicable sales charges, determined as set
forth in the Prospectus. The Distributor shall not make any short sales of
the Shares.
The Distributor shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations made
or adopted by the SEC or by any securities association registered under the
1934 Act and which regulates the Distributor. The Distributor shall
maintain the required licenses and registration for itself as a broker-
dealer, and for its registered representatives or other associated persons,
under the 1934 Act and applicable state securities laws.
The Distributor is not authorized by the Company to give on behalf of the
Company any information or make any representations in connection with the
sale of Shares other than the information and representations contained in
the Registration Statement filed with the SEC under the 1933 Act and the
1940 Act, as such Registration Statement may be amended from time to time,
or contained in shareholder reports or other material that may be prepared
by or on behalf of the Company for the Distributor's use.
1.3 The Company understands that the Distributor is now, and may in the future
be, the distributor of the shares of several investment companies or series
(collectively, the "Investment Entities"), including Investment Entities
having investment objectives similar to those of the Company. The Company
further understands that investors and potential investors in the Company
may invest in shares of such other Investment Entities. The Company agrees
that the Distributor's duties to such Investment Entities shall not be
deemed in conflict with its duties to the Company under this Section 1.3.
1.4 The Distributor shall not utilize any materials in connection with the sale
or offering of Shares except the Company's current prospectus and statement
of additional information and such other materials as the Company shall
provide or approve.
1.5 All activities by the Distributor and its employees, as distributor of the
Shares, shall comply with all applicable laws, rules and regulations,
including, without limitation, all rules and regulations made or adopted by
the SEC or the National Association of Securities Dealers.
1.6 The Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Company.
1.7 Whenever in its judgment such action is warranted by unusual market,
economic or political conditions or abnormal circumstances of any kind, the
Company may decline to accept any orders for, or make any sales of, the
Shares until such time as the Company deems it advisable to accept such
orders and to make such sales, and the Company advises the Distributor
promptly of such determination.
1.8 The Company agrees to pay all costs and expenses in connection with the
registration of Shares under the Securities Act of 1933, as amended, and
all expenses in connection with maintaining facilities for the issue and
transfer of Shares and for supplying information, prices and other data to
be furnished by the Fund hereunder, and all expenses in connection with the
preparation and printing of the Fund's prospectuses and statements of
additional information for regulatory purposes and for distribution to
shareholders.
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1.9 The Company 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 the Distributor may designate. The
Company shall notify the Distributor in writing of the states in which the
Shares may be sold and shall notify the Distributor in writing of any
changes to the information contained in the previous notification.
1.10 The Company shall furnish from time to time, for use in connection with
the sale of the Shares, such information with respect to the Company and
the Shares as the Distributor may reasonably request. The Company shall
also furnish the Distributor upon request with: (a) audited annual
statements and unaudited semi-annual statements of a Fund's books and
accounts prepared by the Company, (b) quarterly earnings statements
prepared by the Company, (c) a monthly itemized list of the securities in
the Funds, (d) monthly balance sheets as soon as practicable after the end
of each month, and (e) from time to time such additional information
regarding the financial condition of the Company as the Distributor may
reasonably request.
1.11 The Company represents to the Distributor that all Registration Statements
and prospectuses filed by the Company with the SEC under the 1933 Act with
respect to the Shares have been prepared in conformity with the
requirements of the 1933 Act and the rules and regulations of the SEC
thereunder. As used in this Agreement, the term "Registration Statement"
shall mean any registration statement and any prospectus and any statement
of additional information relating to the Company filed with the SEC and
any amendments or supplements thereto at any time filed with the SEC.
Except as to information included in the Registration Statement in reliance
upon information provided to the Company by the Distributor or any
affiliate of the Distributor expressly for use in the Registration
Statement, the Company represents and warrants to the Distributor that any
Registration Statement, when such Registration Statement becomes effective,
will contain statements required to be stated therein in conformity with
the 1933 Act and the rules and regulations of the SEC; that all statements
of fact contained in any such Registration Statement will be true and
correct when such Registration Statement becomes effective; and that no
Registration Statement 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 the Shares. 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 as, in the light of future
developments, may, in the opinion of the Company's counsel, be necessary or
advisable. The Company shall promptly notify the Distributor of any advice
given to it by its counsel regarding the necessity or advisability of
amending or supplementing such Registration Statement. The Company shall
not file any amendment to any Registration Statement or supplement to any
prospectus without giving the Distributor reasonable notice thereof in
advance; provided, however, that nothing contained in this Agreement shall
in any way limit the Company's right to file at any time such amendments to
any Registration Statements and/or supplements to any prospectus, of
whatever character, as the Company may deem advisable, such right being in
all respects absolute and unconditional.
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1.12 The Company agrees to indemnify and hold harmless the Distributor, its
officers, directors, and employees, and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees) losses, damages, charges, payments and
liabilities of any sort or kind which the Distributor, its officers,
directors, employees or any such controlling person may incur under the
1933 Act, under any other statute, at common law or otherwise, but only to
the extent that such liability or expense incurred by the Distributor, its
officers, directors, employees or any controlling person resulting from
such claims or demands arise out of the acquisition of Shares by any
person which is based upon: (i) any untrue statement, or alleged untrue
statement, of a material fact contained in the Company's Registration
Statement, prospectus, statement of additional information, or sales
literature (including amendments and supplements thereto), or (ii) any
omission, or alleged omission, to state a material fact required to be
stated in the Company's Registration Statement, prospectus, statement of
additional information or sales literature (including amendments or
supplements thereto), necessary to make the statements therein not
misleading. Notwithstanding the foregoing, the Company shall not be
obligated to indemnify any entity or person pursuant to this paragraph
1.12 against any losses, claims, costs, charges, payments, damages,
liabilities or expenses (including attorneys' fees) of any sort or kind
(i) arising out of the acquisition of Shares by any person which is based
upon any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information furnished
to the Company by the Distributor or its affiliated persons for use in the
Company's Registration Statement, prospectus, or statement of additional
information or sales literature (including amendments or supplements
thereto) or (ii) arising by reason of the Distributor's willful
misfeasance, bad faith or negligence in the performance of the
Distributor's duties hereunder or by reason of reckless disregard of its
obligations or duties hereunder, from reliance on information furnished to
the Company by the Distributor or its affiliates, or from the
Distributor's refusal or failure to comply with the terms or conditions of
this Agreement.
1.13 The Distributor agrees to indemnify and hold harmless the Company, its
several officers and Trustees and each person, if any, who controls a Fund
within the meaning of Section 15 of the 1933 Act against any and all
claims, costs, expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or kind which the
Company, its officers, Trustees or any such controlling person may incur
under the 1933 Act, under any other statute, at common law or otherwise,
but only to the extent that such liability or expense incurred by the
Company, its officers or Trustees, or any controlling person resulting
from such claims or demands arose (i) out of the acquisition of any Shares
by any person which may be based upon any untrue statement, or alleged
untrue statement, of a material fact contained in the Company's
Registration Statement, prospectus, statement of additional information
(including amendments and supplements thereto) or sales literature, or any
omission, or alleged omission, to state 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 information
furnished or confirmed in writing to the Company by the Distributor or its
affiliated persons (as defined in the 1940 Act), (ii) by reason of the
Distributor's willful misfeasance, bad faith or negligence in performance
of the Distributor's duties or obligations hereunder or by reason of
reckless disregard of its duties or obligations hereunder, (iii) from
reliance on
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information furnished to the Company by the Distributor or its affiliates,
or (iv) from the Distributor's refusal or failure to comply with the terms
or conditions of this Agreement.
1.14 In any case in which one party hereto (the "Indemnifying Party") may be
asked to indemnify or hold the other party hereto (the "Indemnified
Party") harmless, the Indemnified Party will notify the Indemnifying Party
promptly after identifying any situation which it believes presents or
appears likely to present a claim for indemnification (an "Indemnification
Claim") against the Indemnifying Party, although the failure to do so
shall not prevent recovery by the Indemnified Party, and shall keep the
Indemnifying Party advised with respect to all developments concerning
such situation. The Indemnifying Party shall have the option to defend the
Indemnified Party against any Indemnification Claim which may be the
subject of this indemnification, and, in the event that the Indemnifying
Party so elects, such defense shall be conducted by counsel chosen by the
Indemnifying Party and satisfactory to the Indemnified Party, whose
approval shall not be unreasonably withheld, and thereupon the
Indemnifying Party shall take over the complete defense of the Claim and
the Indemnified Party shall sustain no further legal or other expenses in
respect of such Claim. In the event that the Indemnifying Party elects to
assume the defense of any Indemnification Claim and retains legal counsel,
the Indemnified Party shall bear the fees and expenses of any additional
legal counsel retained by it. The Indemnified Party will not confess any
Indemnification Claim or make any compromise in any case in which the
Indemnifying Party will be asked to provide indemnification, except with
the Indemnifying Party's prior written consent. The obligations of the
parties hereto under this Section 1.14 and Section 3.1 shall survive the
termination of this Agreement.
In the event that the Indemnifying Party does not elect to assume the
defense of any such suit, or in case the Indemnified Party reasonably does
not approve of counsel chosen by the Indemnifying Party, or in case there
is a conflict of interest between the Indemnifying Party and the
Indemnified Party, the Indemnifying Party will reimburse the Indemnified
Party, its officers, trustees, directors and employees, or the controlling
person or persons named as defendant or defendants in such suit, for the
reasonable fees and expenses of any counsel retained by the Indemnified
Party or such Defendant. The Indemnifying Party's indemnification
agreement contained in this Section 1.14 and the Indemnifying Party'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 Indemnified Party, its officers, directors, trustees or
employees, or any controlling persons, and shall survive the delivery of
any Shares. This agreement of indemnity will inure exclusively to the
Indemnified Party's benefit, to the benefit of its several officers,
directors, trustees or employees, and their respective estates and to the
benefit of the controlling persons and their successors. The Indemnifying
Party agrees promptly to notify the Indemnified Party of the commencement
of any litigation or proceedings against the Indemnifying Party or any of
its officers, trustees, employees or directors in connection with the
issue and sale of any Shares.
1.15 No Shares shall be offered by either the Distributor or the Company under
any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Company if and so long
as effectiveness of the Registration Statement then in effect or any
necessary amendments thereto shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a current prospectus as
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required by Section 5(b)(2) of the 1933 Act is not on file with the SEC;
provided, however, that nothing contained in this Section 1.15 shall in
any way restrict or have any application to or bearing upon the Company's
obligation to redeem Shares tendered for redemption by any shareholder in
accordance with the provisions of the Company's Registration Statement,
Declaration of Company, or bylaws.
1.16 The Company agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
(a) in the event of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement, prospectus or statement
of additional information then in effect or the initiation by service of
process on the Company of any proceeding for that purpose;
(b) of the happening of any event that makes untrue any statement of a
material fact made in the Registration Statement, prospectus or statement
of additional information then in effect or that requires the making of a
change in such Registration Statement, prospectus or statement of
additional information in order to make the statements therein not
misleading; and
(c) of all actions of the SEC with respect to any amendments to any
Registration Statement, prospectus or statement of additional information
which may from time to time be filed with the SEC.
For purposes of this section, informal requests by or acts of the Staff of
the SEC shall not be deemed actions of the SEC.
2. Term and Termination of Agreement
---------------------------------
2.1 This Agreement shall become effective upon the consummation of the
acquisition of ABN Amro Distribution Services by PFPC Inc. which is
expected to occur on or about December 31, 2000 and unless sooner
terminated as provided herein, shall continue for an initial two-year term
and thereafter shall be renewed for successive one-year terms in
accordance with the requirements of the 1940 Act. This Agreement is
terminable without penalty, on at least sixty days' written notice, by
either party. This Agreement will also terminate automatically in the
event of its assignment (as defined in the 1940 Act and the rules
thereunder).
2.2 In the event a termination notice is given by the Company, all reasonable
expenses associated with movement of records and materials and conversion
thereof will be borne by the Company.
3. Limitation of Liability
-----------------------
3.1 The Distributor shall at all times act in good faith and agrees to use its
best efforts within commercially reasonable limits to ensure the accuracy
of all services performed under this Agreement. The Distributor shall not
be liable to the Company for any error of judgment or mistake of law or
for any loss suffered by the Company in connection with the performance of
its obligations and duties under this Agreement, except a loss
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resulting from the Distributor's willful misfeasance, bad faith or
negligence in the performance of such obligations and duties, or by reason
of its reckless disregard thereof, reliance on information furnished to
the Company by the Distributor or its affiliates, or the Distributor's
refusal or failure to comply with the terms and conditions of this
Agreement. The Company shall not be liable to the Distributor for any
error of judgment or mistake of law or for any loss suffered by the
Distributor, except a loss resulting from the Company's willful
misfeasance, bad faith or negligence in the performance of its duties and
obligations hereunder, or by reason of its reckless disregard thereof.
3.2 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
3.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
TRUSTEES, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR LOST
PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES.
4. EXCLUSION OF WARRANTIES
-----------------------
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE DISTRIBUTOR DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE COMPANY, A FUND OR ANY OTHER
PERSON, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF
TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO SERVICES
PROVIDED UNDER THIS AGREEMENT. THE DISTRIBUTOR DISCLAIMS ANY WARRANTY OF
TITLE OR NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT.
5. Modifications and Waivers
-------------------------
No change, termination, modification, or waiver of any term or condition
of the Agreement shall be valid unless in writing signed by each party. No
such writing shall be effective as against the Distributor unless said
writing is executed by a Senior Vice President, Executive Vice President
or President of the Distributor. A party's waiver of a breach of any term
or condition in the Agreement shall not be deemed a waiver of any
subsequent breach of the same or another term or condition.
6. No Presumption Against Drafter
------------------------------
The Distributor and the Company have jointly participated in the
negotiation and drafting of this Agreement. The Agreement shall be
construed as if drafted jointly by the Company and the Distributor, and no
presumptions arise favoring any party by virtue of the authorship of any
provision of this Agreement.
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7. Publicity
---------
Neither the Distributor nor the Company shall release or publish news
releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it, other than
factual statements concerning the existence of the relationship, without
prior review and written approval of the other party; provided, however,
that either party may make such disclosures as are required by legal,
accounting or regulatory requirements after making reasonable efforts in
the circumstances to consult in advance with the other party.
8. Severability
------------
The parties intend every provision of this Agreement to be severable. If a
court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not
affect the validity of the remainder of this Agreement. In such case, the
parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality
of this paragraph, if a court determines that any remedy stated in this
Agreement has failed of its essential purpose, then all other provisions
of this Agreement, including the limitations on liability and exclusion of
damages, shall remain fully effective.
9. Force Majeure
-------------
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or
delay is caused, directly or indirectly, by (i) fire, flood, elements of
nature or other acts of God; (ii) any outbreak or escalation of
hostilities, war, riots or civil disorders in any country, (iii) any act
or omission of the other party or any governmental authority; (iv) any
labor disputes (whether or not the employees' demands are reasonable or
within the party's power to satisfy); or (v) nonperformance by a third
party or any similar cause beyond the reasonable control of such party,
including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event, the non-
performing party shall be excused from any further performance and
observance of the obligations so affected only for so long as such
circumstances prevail and such party continues to use commercially
reasonable efforts to recommence performance or observance as soon as
practicable.
10. Equipment Failures
------------------
Notwithstanding any other provision in this Agreement, in the event of
equipment failures or the occurrence of events beyond the Distributor's
control which render its performance under this Agreement impossible, the
Distributor shall at no additional expense to the Company take reasonable
steps to minimize service interruptions. The Distributor represents that
the various procedures and systems which the Distributor has implemented
with regard to safekeeping from loss or damage attributable to fire, theft
or any other cause of the records, and other data of the Company and the
Distributor's records, data, equipment, facilities and other property used
in performance of its obligations hereunder are reasonably adequate and
are covered by a reasonably adequate
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disaster recovery plan, and it will make such changes therein from time to
time as are reasonably required for the secure performance of its
obligations hereunder.
11. Notices
-------
Any notice or other instrument authorized or required by this Agreement to
be given in writing to the Company or the Distributor shall be
sufficiently given if addressed to the 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 Company:
ABN Amro Funds
000 Xxxxx Xx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
To the Distributor:
ABN Amro Distribution Services (USA), Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
12. Governing Law/Venue
-------------------
The laws of the State of Delaware, excluding the laws on conflicts of
laws, and the applicable provisions of the 1940 Act shall govern the
interpretation, validity, and enforcement of this Agreement. To the extent
the provisions of Delaware law or the provisions hereof conflict with the
1940 Act, the 1940 Act shall control. All actions arising from or related
to this Agreement shall be brought in the state and federal courts sitting
in the City of Wilmington, and the Distributor and the Company hereby
submit themselves to the exclusive jurisdiction of those courts
13. Counterparts
------------
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 instrument.
14. Captions
--------
The captions of this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
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15. Successors
----------
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and is not intended to
confer upon any other person any rights or remedies hereunder.
16. Arbitration
-----------
Any claim or controversy arising out of or related to this Agreement, or
breach hereof, shall be settled by arbitration administered by the
American Arbitration Association in Wilmington, Delaware in accordance
with its applicable rules, except that the Federal Rules of Evidence and
the Federal Rules of Civil Procedure with respect to the discovery process
shall apply. The parties hereby agree that judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
The parties acknowledge and agree that the performance of the obligations
under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law
provisions in this Agreement, the parties agree that the Federal
Arbitration Act shall govern and control with respect to the provisions of
this Article.
17. Confidentiality
---------------
17.1 Confidentiality. In the course of performance under this Agreement, each
----------------
party may have access to and receive disclosure of confidential
information about the other party, including but not limited to that
party's financial information, financial strategies, marketing plans,
customer profiles, sales estimates, business plans and a variety of other
information which the receiving party should reasonably consider to be
confidential and proprietary (hereinafter referred to as "Confidential
Information"). The contents of this Agreement are also Confidential
Information. Each party shall exercise reasonable care to safeguard the
confidentiality of the Confidential Information of the other. Confidential
Information of the disclosing party shall be used by the receiving party
solely in the performance of the receiving party's obligations pursuant to
this Agreement. The receiving party shall receive Confidential Information
in confidence and not disclose Confidential Information of the disclosing
party to any third party, except as may be necessary for the receiving
party to perform its obligations pursuant to this Agreement, as required
by law or a court of competent jurisdiction or by a regulatory agency with
supervisory responsibilities over the disclosing party, for confidential
consultations with accountants or attorneys, or as may otherwise be agreed
upon in writing by the disclosing party. Each party may, however, disclose
Confidential Information to its parent corporation, affiliates,
subsidiaries and affiliated companies and employees, provided that each
shall use reasonable efforts to ensure that the Confidential Information
is not duplicated or disclosed in breach of this Agreement.
Each party acknowledges that breach of the restrictions on use,
dissemination or disclosure of any Confidential Information of the other
party would result in immediate and irreparable harm, and money damages
would be inadequate to compensate the other party for that harm. Each
party shall be entitled to equitable relief, in addition to all other
available remedies, to redress any such breach.
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17.2 Ownership. In the course of performance under this Agreement, the
----------
Distributor may create reports, marketing materials, promotional
materials, and other materials relating to the Company ("Results"). The
Company acknowledges and agrees that the Distributor is the sole owner of
all rights (including, but not limited to, copyrights) to any Results, or
aspects of Results, that are used by the Distributor for administering its
clients generally and are not created solely for the Company.
Notwithstanding the foregoing, all rights (including, but not limited to,
copyrights) to any Results that are created solely for the Company
(including, but not limited to, any marketing materials and promotional
materials created solely in connection with the Company) are solely owned
by the Company and are assigned to the Company by the Distributor and the
Company shall have a perpetual, royalty free, worldwide, transferable
license to use, copy, transmit, distribute and modify any Results owned by
the Distributor as may reasonably be necessary for the Company to exploit
fully all of its rights in any Results owned by the Company.
18. Obligations of the Company
--------------------------
The Company and the Distributor agree that the obligations of the Company
under the Agreement shall not be binding upon any of the Trustees,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Company individually, but are binding only upon
the assets and property of the Company, as provided in the Declaration of
Trust of the Company. The execution and delivery of this Agreement have
been authorized by the Directors of the Company, and signed by an
authorized officer of the Company, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them or any
shareholder of the Company individually or to impose any liability on any
of them or any shareholder of the Company personally, but shall bind only
the assets and property of the Company as provided in the Declaration of
Trust of the Company. The Company and the Distributor further agree that
the obligations of a Fund under the Agreement shall not be binding on any
other Fund, but are binding only upon the assets and property of such
Fund, as provided in the Declaration of Trust.
19. Entire Agreement
----------------
This Agreement, including all Schedules hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous proposals, agreements,
contracts, representations, and understandings, whether written or oral,
between the parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
ABN AMRO FUNDS
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
ABN AMRO DISTRIBUTION SERVICES
(USA), INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: President
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SCHEDULE A
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to the Distribution Agreement
between ABN Amro Funds and
ABN Amro Distribution Services, Inc.
Name of Funds
-------------
Institutional Money Market Funds:
Institutional Prime Money Market Fund(us)
Institutional Government Money Market Fund(us)
Institutional Treasury Money Market Fund(us)
Money Market Funds:
Money Market Fund(us)
Government Money Market Fund(us)
Treasury Money Market Fund(us)
Tax-Exempt Money Market Fund(us)
U.S. Equity Funds:
Value Fund(us)
Growth Fund(us)
Small Cap Fund(us)
Real Estate Fund(us)
International Funds:
International Equity Fund(us)
Europe Equity Growth Fund(us)
Asian Tigers Fund(us)
Latin America Equity Fund(us)
Balanced Fund:
Balanced Fund(us)
U.S. Fixed Income Funds:
Fixed Income Fund(us)
Tax-Exempt Fixed Income Fund(us)
A-1
