BT ADVISOR FUNDS
DISTRIBUTOR'S CONTRACT
AGREEMENT made as of this 30th day of September, 1996, by and between
BT ADVISOR FUNDS (the "Trust"), a Massachusetts business trust, and
Edgewood Services, Inc. ("EDGEWOOD"), a New York corporation.
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Trust hereby appoints EDGEWOOD as its principal underwriter, to
act as agent in selling and distributing shares of the Trust which may be
offered in one or more series (the "Funds") consisting of one or more
classes (the "Classes") of shares (the "Shares"), as described and set
forth on one or more exhibits to this Agreement, at the current offering
price thereof as described and set forth in the current Prospectuses of the
Trust. EDGEWOOD hereby accepts such appointment and agrees to provide such
other services for the Trust, if any, and accept such compensation from the
Trust, if any, as set forth in the applicable exhibits to this Agreement.
2. The sale of any Shares may be suspended without prior notice
whenever in the judgment of the Trust it is in its best interest to do so.
In addition, the Trust and EDGEWOOD reserve the right to reject any
purchase order.
3. Neither EDGEWOOD nor any other person is authorized by the Trust to
give any information or to make any representation relative to any Shares
other than those contained in the Registration Statement, Prospectuses, or
Statements of Additional Information ("SAIs") filed with the Securities and
Exchange Commission, as the same may be amended from time to time, or in
any supplemental information to said Prospectuses or SAIs approved by the
Trust. EDGEWOOD agrees that any other information or representations other
than those specified above which it or any dealer or other person who
purchases Shares through EDGEWOOD may make in connection with the offer or
sale of Shares, shall be made entirely without liability on the part of the
Trust. With respect to the duties and services provided for in this
Agreement, no person or dealer, other than EDGEWOOD, is authorized to act
as agent for the Trust for any purpose. EDGEWOOD agrees that in offering
or selling Shares as agent of the Trust, it will, in all respects, duly
conform to all applicable state and federal laws and the rules and
regulations of the National Association of Securities Dealers, Inc.,
including its Rules of Fair Practice. EDGEWOOD will submit to the Trust
copies of all sales literature before using the same and will not use such
sales literature if disapproved by the Trust.
4. This Agreement is effective with respect to each Class as of the
date of execution of the applicable exhibit and shall continue in effect
with respect to each Class presently set forth on an exhibit and any
subsequent Classes added pursuant to an exhibit during the initial term of
this Agreement for one year from the date set forth above, and thereafter
for successive periods of one year if such continuance is approved at least
annually by the Trustees of the Trust including a majority of the members
of the Board of Trustees of the Trust who are not interested persons of the
Trust and have no direct or indirect financial interest in the operation of
any Distribution Plan relating to the Trust or in any related documents to
such Plan ("Disinterested Trustees") cast in person at a meeting called for
that purpose. If a Class is added after the first annual approval by the
Trustees as described above, this Agreement will be effective as to that
Class upon execution of the applicable exhibit and will continue in effect
until the next annual approval of this Agreement by the Trustees and
thereafter for successive periods of one year, subject to approval as
described above.
5. This Agreement may be terminated with regard to a particular Fund or
Class at any time, without the payment of any penalty, by the vote of a
majority of the Disinterested Trustees or by a majority of the outstanding
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voting securities of the particular Fund or Class on not more than sixty
(60) days' written notice to any other party to this Agreement. This
Agreement may be terminated with regard to a particular Fund or Class by
EDGEWOOD on sixty (60) days' written notice to the Trust.
6. This Agreement may not be assigned by EDGEWOOD and shall
automatically terminate in the event of an assignment by EDGEWOOD as
defined in the Investment Company Act of 1940, as amended, provided,
however, that EDGEWOOD may employ such other person, persons, corporation
or corporations as it shall determine in order to assist it in carrying out
its duties under this Agreement.
7. EDGEWOOD shall not be liable to the Trust for anything done or
omitted by it, except acts or omissions involving willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties imposed by
this Agreement.
8. This Agreement may be amended at any time by mutual agreement in
writing of all the parties hereto, provided that such amendment is approved
by the Trustees of the Trust including a majority of the Disinterested
Trustees of the Trust cast in person at a meeting called for that purpose.
9. This Agreement shall be construed in accordance with and governed by
the laws of the State of New York.
10. (a) Subject to the conditions set forth below, the Trust agrees to
indemnify and hold harmless EDGEWOOD and each person, if any, who
controls EDGEWOOD within the meaning of Section 15 of the Securities
Act of 1933 and Section 20 of the Securities Exchange Act of 1934, as
amended, against any and all loss, liability, claim, damage and
expense whatsoever (including but not limited to any and all expenses
whatsoever reasonably incurred in investigating, preparing or
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defending against any litigation, commenced or threatened, or any
claim whatsoever) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, any Prospectuses or SAIs (as from time to time
amended and supplemented) or the omission or alleged omission
therefrom of 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
written information furnished to the Trust about EDGEWOOD by or on
behalf of EDGEWOOD expressly for use in the Registration Statement,
any Prospectuses and SAIs or any amendment or supplement thereof.
If any action is brought against EDGEWOOD or any controlling
person thereof with respect to which indemnity may be sought against
the Trust pursuant to the foregoing paragraph, EDGEWOOD shall promptly
notify the Trust in writing of the institution of such action and the
Trust shall assume the defense of such action, including the
employment of counsel selected by the Trust and payment of expenses.
EDGEWOOD or any such controlling person thereof shall have the right
to employ separate counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of EDGEWOOD or such
controlling person unless the employment of such counsel shall have
been authorized in writing by the Trust in connection with the defense
of such action or the Trust shall not have employed counsel to have
charge of the defense of such action, in any of which events such fees
and expenses shall be borne by the Trust. Anything in this paragraph
to the contrary notwithstanding, the Trust shall not be liable for any
settlement of any such claim of action effected without its written
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consent. The Trust agrees promptly to notify EDGEWOOD of the
commencement of any litigation or proceedings against the Trust or any
of its officers or Trustees or controlling persons in connection with
the issue and sale of Shares or in connection with the Registration
Statement, Prospectuses, or SAIs.
(b) EDGEWOOD agrees to indemnify and hold harmless the Trust, each
of its Trustees, each of its officers who have signed the Registration
Statement and each other person, if any, who controls the Trust within
the meaning of Section 15 of the Securities Act of 1933, against any
and all loss, liability, claims, damage and expense whatsoever
(including but not limited to any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever)
arising out of or based upon any untrue statement or any alleged
untrue statement of material fact contained in the Registration
Statement, any Prospectuses or SAIs (as from time to time amended or
supplemented) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with respect to alleged
statements or alleged omissions or statements or omissions, if any,
made in the Registration Statement or any Prospectus, SAI, or any
amendment or supplement thereof in reliance upon, and in conformity
with, information furnished to the Trust about EDGEWOOD by or on
behalf of EDGEWOOD expressly for use in the Registration Statement or
any Prospectus, SAI, or any amendment or supplement thereof. In case
any action shall be brought against the Trust or any other person so
indemnified based on the Registration Statement or any Prospectus,
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SAI, or any amendment or supplement thereof, and with respect to which
indemnity may be sought against EDGEWOOD, EDGEWOOD shall have the
rights and duties given to the Trust, and the Trust and each other
person so indemnified shall have the rights and duties given to
EDGEWOOD by the provisions of subsection (a) above.
(c) Nothing herein contained shall be deemed to protect any person
against liability to the Trust or its shareholders to which such
person would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of the duties of such
person or by reason of the reckless disregard by such person of the
obligations and duties of such person under this Agreement.
(d) Insofar as indemnification for liabilities may be permitted
pursuant to Section 17 of the Investment Company Act of 1940, as
amended, for Trustees, officers, EDGEWOOD, and controlling persons of
the Trust by the Trust pursuant to this Agreement, the Trust is aware
of the position of the Securities and Exchange Commission as set forth
in the Investment Company Act Release No. IC-11330. Therefore, the
Trust undertakes that in addition to complying with the applicable
provisions of this Agreement, in the absence of a final decision on
the merits by a court or other body before which the proceeding was
brought, that an indemnification payment will not be made unless in
the absence of such a decision, a reasonable determination based upon
factual review has been made (i) by a majority vote of a quorum of
non-party Disinterested Trustees, or (ii) by independent legal counsel
in a written opinion that the indemnitee was not liable for an act of
willful misfeasance, bad faith, gross negligence or reckless disregard
of duties. The Trust further undertakes that advancement of expenses
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incurred in the defense of a proceeding (upon undertaking for
repayment unless it is ultimately determined that indemnification is
appropriate) against an officer, Trustee, EDGEWOOD or controlling
person of the Trust will not be made absent the fulfillment of at
least one of the following conditions: (i) the indemnitee provides
security for his undertaking; (ii) the Trust is insured against losses
arising by reason of any lawful advances; or (iii) a majority of a
quorum of non-party Disinterested Trustees or independent legal
counsel in a written opinion makes a factual determination that there
is reason to believe the indemnitee will be entitled to
indemnification.
11. EDGEWOOD is hereby expressly put on notice of the limitation of
liability as set forth in the Declaration of Trust and agrees that the
obligations assumed by the Trust pursuant to this Agreement shall be
limited in any case to the Trust and its assets and EDGEWOOD shall not seek
satisfaction of any such obligation from the shareholders of the Trust, the
Trustees, officers, employees or agents of the Trust, or any of them.
12. This Agreement will become binding on the parties hereto upon the
execution of the attached exhibits to the Agreement.
13. EDGEWOOD shall be responsible for reviewing and making any filings
of advertisements and sales literature relating to the Funds that have been
furnished to EDGEWOOD.
14. EDGEWOOD agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trust all records and
other information not otherwise publicly available 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
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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 EDGEWOOD 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.
15. EDGEWOOD and the Trust each hereby represents and warrants to the
other that it has all the requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement and that, with
respect to it, this Agreement is legal, valid and binding, and enforceable
in accordance with its terms.
* * * * *
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Exhibit A
to the
Distributor's Contract
BT ADVISOR FUNDS
The following provisions are hereby incorporated and made part of the
Distributor's Contract dated as of September 30, 1996, between BT Advisor
Funds and Edgewood Services, Inc. with respect to the Funds and Classes of
shares set forth in Schedule A to this Exhibit, attached hereto
(collectively, `Funds'').
1. The Trust hereby appoints EDGEWOOD to engage in activities
principally intended to result in the sale of shares of the Funds
("Shares"). Pursuant to this appointment, EDGEWOOD is authorized to select
a group of financial institutions ("Financial Institutions") to sell Shares
at the current offering price thereof as described and set forth in the
respective prospectuses of the Trust and/or provide services and
shareholder account maintenance services to Fund shareholders.
2. During the term of this Agreement, the Trust will pay EDGEWOOD for
services pursuant to this Agreement, a monthly fee computed at the annual
rate indicated on Schedule A on the average aggregate net asset value of
the Shares held during the month. For the month in which this Agreement
becomes effective or terminates, there shall be an appropriate proration of
any fee payable on the basis of the number of days that the Agreement is in
effect during the month.
3. EDGEWOOD may from time-to-time and for such periods as it deems
appropriate reduce its compensation to the extent any Fund's expenses
exceed such lower expense limitation as EDGEWOOD may, by notice to the
Trust, voluntarily declare to be effective.
4. EDGEWOOD will enter into separate written agreements with various
firms to provide certain of the services set forth in Paragraph 1 herein.
EDGEWOOD, in its sole discretion, may pay Financial Institutions a periodic
fee in respect of Shares owned from time to time by their clients or
customers. The schedules of such fees and the basis upon which such fees
will be paid shall be determined from time to time by EDGEWOOD in its sole
discretion.
5. EDGEWOOD will prepare reports to the Board of Trustees of the Trust
on a quarterly basis showing amounts expended hereunder including amounts
paid to Financial Institutions and the purpose for such expenditures.
In consideration of the mutual covenants set forth in the
Distributor's Contract dated as of September 30, 1996 between BT Advisor
Funds and EDGEWOOD, BT Advisor Funds executes and delivers this Exhibit on
behalf of the Funds, and with respect to the Classes set forth in Schedule
A to this Exhibit.
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Witness the due execution hereof this 30th day of September, 1996.
ATTEST: BT ADVISOR FUNDS
/s/ Xxx x. Xxxxxx By:/s/ Xxxxxxx X. Xxxxx, Xx.
[Secretary] [Vice President]
(SEAL)
ATTEST: EDGEWOOD SERVICES, INC.
/s/ S. Xxxxxxx Xxxxx By:/s/ R. Xxxxxxx Xxxx
[Secretary] [Senior Vice President]
(SEAL)
SCHEDULE A
OF
EXHIBIT A
TO THE
DISTRIBUTOR'S CONTRACT
The provisions of the Distributor's Contract between BT Advisor Funds
and Edgewood Services, Inc. shall be effective with respect to each Fund
and Class as of the date set forth below.
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Distribution
Name of Fund Effective Date and/or
Service Fee
Global High Yield Securities September 30, 0.35%
Fund 1996
Capital Appreciation Fund September 30, 0.50%
1996
Small Cap Fund September 30, 0.50%
1996
International Equity Fund September 30, 0.50%
1996
Pacific Basin Equity Fund September 30, 0.50%
1996
Latin American Equity Fund September 30, 0.50%
1996
Growth Fund
Intermediary Class September 30, 0.50%
Investment Class 1996 0.20%
September 30,
1996
Growth and Income Fund
Intermediary Class September 30, 0.50%
Investment Class 1996 0.20%
September 30,
1996
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5
Exhibit B
to the
Distributor's Contract
BT ADVISOR FUNDS
In consideration of the mutual covenants set forth in the
Distributor's Contract dated September 30, 1996 between BT ADVISOR FUNDS
and EDGEWOOD, BT ADVISOR FUNDS executes and delivers this Exhibit on behalf
of the Funds and Classes of shares first set forth in Schedule A to this
Exhibit, attached hereto.
Witness the due execution hereof this 30th day of September, 1996.
ATTEST: BT ADVISOR FUNDS
/s/ Xxx X. Xxxxxx By:/s/ Xxxxxxx X. Xxxxx, Xx.
[Secretary] [Vice President]
(SEAL)
ATTEST: EDGEWOOD SERVICES, INC.
/s/ S. Xxxxxxx Xxxxx By:/s/ R. Xxxxxxx Xxxx
[Secretary] [Senior Vice President]
(SEAL)
SCHEDULE A
OF
EXHIBIT B
TO THE
DISTRIBUTOR'S CONTRACT
The provisions of the Distributor's Contract between BT Advisor Funds
and Edgewood Services, Inc. shall be effective with respect to each Fund
and Class as of the date set forth below.
Name of Fund Effective Date
U.S. Bond Index Fund
Advisor Class September 30,
Institutional Class 1996
September 30,
1996
Equity 500 Equal Weighted Index Fund
Advisor Class September 30,
Institutional Class 1996
September 30,
1996
Small Cap Index Fund
Advisor Class September 30,
Institutional Class 1996
September 30,
1996
EAFE Equity Index Fund
Advisor Class September 30,
Institutional Class 1996
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September 30,
1996
