Exhibit (e)(2)
FORM OF UNDERWRITING AGREEMENT FOR
PILGRIM GROWTH OPPORTUNITIES FUND
AGREEMENT made and entered into by and between PILGRIM GROWTH OPPORTUNITIES FUND
(the "Fund"), a Massachusetts business trust, and ING PILGRIM SECURITIES, INC.,
a Delaware corporation (the "Underwriter") on this 1st day of September, 2000,
as amended and restated May 9, 2001.
1. The Fund hereby appoints the Underwriter as its exclusive agent to promote
the sale and to arrange for the sale of shares of beneficial interest of
the Fund, including both unissued shares and treasury shares, through
broker-dealers or otherwise, in all parts of the United States and
elsewhere throughout the world. The Fund agrees to sell and deliver its
shares, upon the terms hereinafter set forth, as long as it has unissued
and/or treasury shares available for sale.
(a) The Fund hereby authorizes the Underwriter, subject to applicable law
and the Fund's Declaration of Trust (the "Declaration"), to accept,
for the account of the Fund, orders for the purchase of its shares,
satisfactory to the Underwriter, as of the time of receipt of such
orders by the dealer or as otherwise described in the Prospectus of
the Fund.
(b) The public offering price of the shares of the Fund shall be the net
asset value per share (as determined by the Fund) of the outstanding
shares of the Fund. The net asset value shall be regularly determined
on every business day as of the time of the regular closing of the New
York Stock Exchange ("NYSE") and the public offering price based upon
such net asset value shall become effective as set forth from time to
time in the Fund's Prospectus; such net asset value shall also be
regularly determined, and the public offering price based thereon
shall become effective, as of such other times for the regular
determination of net asset value as may be required or permitted by
rules of the National Association of Securities Dealers, Inc. ("NASD")
or of the Securities and Exchange Commission ("SEC"). The Fund shall
furnish daily to the Underwriter, with all possible promptness, a
detailed computation of net asset value of its shares.
(c) Class A shares
(i) The public offering price of Class A shares shall be equal to the
net asset value, as described above, plus a commission to be
fixed from time to time by the Underwriter not to exceed 6% of
the public offering price, except that such price per share may
be adjusted to the nearest cent. The Underwriter may fix quantity
discounts and other similar terms not inconsistent with the
provisions of the Investment Company Act of 1940, as amended (the
"1940 Act"). The Underwriter shall not impose any commission,
permit any quantity discounts or impose any other similar terms
in connection with the sale of shares of the Fund except as
disclosed in the Prospectus of the Fund.
(ii) The Underwriter shall be entitled to deduct a commission on all
Class A shares sold equal to the difference between the public
offering price and the net asset value on which such price is
based. If any such commission is received by the Fund, it will
pay the commission to the Underwriter. Out of such commission,
the Underwriter may allow to dealers such concessions as the
Underwriter may determine from time to time. Notwithstanding
anything in the Agreement, sales may be made at net asset value
as provided in the Fund's Prospectus.
(d) Class B Shares
(i) In consideration of the Underwriter's services as principal
underwriter of the Fund's Class B shares pursuant to this
Agreement and in accordance with the provisions of the Fund's
Amended and Restated Distribution and Service Plan (the "Plan")
in respect of such shares, the Fund agrees: (I) to pay to the
Underwriter or, at the Underwriter's direction, to a third party,
monthly in arrears on or prior to the 5th business day of the
following calendar month (A) a service fee (the "Service Fee")
equal to 0.25 of 1% per annum of the average daily net asset
value of the Class B shares of the Fund outstanding from time to
time, and (B) the Underwriter's "Allocable Portion" (as
hereinafter defined) of a fee (the "Distribution Fee") equal to
0.75 of 1% per annum of the average daily net asset value of the
Class B shares of the Fund outstanding from time to time, and
(II) to withhold from redemption proceeds in respect of Class B
shares of the Fund the Underwriter's Allocable Portion of the
Contingent Deferred Sales Charges ("CDSCs") payable in respect of
such redemption as provided in the Prospectus of the Fund and to
pay the same over to the Underwriter or, at the Underwriter's
direction, to a third party, at the time the redemption proceeds
in respect of such redemption are payable to the holder of the
Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services
required to be performed in order to be entitled to receive its
Allocable Portion of the Distribution Fee payable in respect of
the Class B shares of the Fund upon the settlement date of each
sale of a "Commission Share" (as defined in the Allocation
Schedule attached hereto as Schedule A) of the Fund taken into
account in determining the Underwriter's Allocable Portion of
such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this
Agreement or (to the extent waiver thereof is permitted thereby)
applicable law, the Fund's obligation to pay the Underwriter's
Allocable Portion of the Distribution Fees payable in respect to
the Class B shares of the Fund shall not be terminated or
modified for any reason (including a termination of this
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Agreement) except: (a) to the extent required by a change in the
1940 Act, the rules thereunder or the Conduct Rules of the NASD,
in each case enacted or promulgated after Xxxxx 00, 0000, (x) on
a basis which does not alter the Underwriter's Allocable Portion
of the Distribution Fees computed with reference to Commission
Shares the Date of Original Issuance (as defined in the
Allocation Schedule) of which occurs on or prior to the adoption
of such termination or modification and with respect to Free
Shares (as defined in the Allocation Schedule) which would be
attributed to such Underwriter under the Allocation Schedule with
reference, or (c) in connection with a "Complete Termination" (as
hereinafter defined) of the Plan.
(iv) The Fund will not take any action to waive or change any CDSC in
respect of the Class B shares of the Fund, except as provided in
the Fund's Prospectus or statement of additional information as
in effect as of the date hereof, without the consent of the
Underwriter and the permitted assigns of all or any portion of
its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement,
neither the termination of the Underwriter's role as principal
distributor of the Class B shares of the Fund, nor the
termination of this Agreement, nor the termination of the Plan
will terminate the Underwriter's right to its Allocable Portion
of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the
Underwriter may assign, sell or pledge (collectively, "Transfer")
its rights to the Service Fees and its Allocable Portion of the
Distribution Fees and CDSCs (but not its obligations to the Fund
under this Agreement) to raise funds to make the expenditures
related to the distribution of Class B shares of the Fund and in
connection therewith, upon receipt of notice of such Transfer,
the Fund shall pay, or cause to be paid, to the assignee,
purchaser or pledge (collectively with their subsequent
transferees, "Transferees") such portion of the Underwriter's
Service Fees, Allocable Portion of the Distribution Fees and
CDSCs in respect of the Class B shares of the Fund so
Transferred. Except as provided in (iii) above and
notwithstanding anything to the contrary set forth elsewhere in
this Agreement, to the extent the Underwriter has Transferred its
rights thereto to raise funds as aforesaid, the Fund's obligation
to pay the Underwriter's Allocable Portion of the Distribution
Fees and CDSCs payable in respect of the Class B shares of the
Fund shall be absolute and unconditional and shall not be subject
to dispute, offset, counterclaim or any defense whatsoever, at
law or equity, including, without limitation, any of the
foregoing based on the insolvency or bankruptcy of the
Underwriter other than the Underwriter's right to the
Distribution Fees and CDSCs in respect of the Class B shares of
the Fund, which have been so Transferred in connection with such
Transfer). The Fund agrees that each such Transferee is a third
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party beneficiary of the provisions of this clause (vi) but only
insofar as those provisions relate to Distribution Fees and CDSCs
Transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of
Distribution Fees and CDSCs payable in respect of the Class B
shares of the Fund shall mean the portion of such Distribution
Fees and CDSCs allocated to the Underwriter in accordance with
the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "Complete Termination"
of the Plan in respect of the Fund means a termination of the
Plan involving the complete cessation of the payment of
Distribution Fees in respect of all Class B shares of the Fund,
and the termination of the Plan and the complete cessation of the
payment of distribution fees pursuant to any other Distribution
Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the
Class B shares of the Fund and any successor fund or any fund
acquiring a substantial portion of the assets of the Fund and for
every future class of shares which has substantially similar
characteristics to the Class B shares of the Fund taking into
account the manner of payment and amount of sales charge, CDSC or
other similar charges borne directly or indirectly by the holders
of such shares; provided that (a) the Trustees of the Fund,
including the Independent Trustees of the Fund, shall have
determined that such termination is in the best interest of the
Fund and the shareholders of the Fund, and (b) such termination
does not alter the CDSC as in effect at the time of such
termination applicable to Commission Shares of the Fund, the Date
of Original Issuance (as defined in the Allocation Schedule) of
which occurs on or prior to such termination.
(ix) The Underwriter may reallow any or all of the Distribution and
Service Fees and CDSCs which it is paid under the Agreement to
such dealers as the Underwriters may from time to time determine.
(x) The Underwriter may fix quantity discounts and other similar
variances or waivers of the CDSCs not inconsistent with the
provisions of the 1940 Act; provided however, that the
Underwriter shall not impose any commission, permit any quantity
discount, or impose any other similar waiver or variance in
connection with the sale of Class B shares except as disclosed in
the Prospectus of the Fund.
(e) Class C Shares
(i) As compensation for providing services under this Agreement, (A)
the Underwriter shall receive from the Fund distribution and
service fees under the terms and conditions set forth in the Plan
for the Fund adopted under Rule 12b-1 under the 1940 Act, as that
Plan may be amended from time to time and subject to any further
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limitation on such fees as the Trustees may impose, and (B) the
Underwriter shall receive from the Fund all CDSCs applied on
redemption of Class C shares of the Fund. Whether and to what
extent a CDSC will be imposed with respect to a redemption shall
be determined in accordance with, and in a manner set forth in,
the Fund's Prospectus.
(ii) The Underwriter may reallow any or all of the distribution and
service fees and CDSCs which it is paid under the Agreement to
such dealers as the Underwriter may from time to time determine.
(iii) The Underwriter may fix quantity discounts and other similar
variances or waivers of the CDSC not inconsistent with the
provisions of the 1940 Act; provided however, that the
Underwriter shall not impose any commission, permit any quantity
discount, or impose any other similar waiver or variance in
connection with the sale of Class C shares except as disclosed in
the Prospectus of the Fund.
(f) Class T Shares
(i) The public offering price of Class T shares shall be based on the
net asset value per share (as determined by the Fund) of the
outstanding Class T shares of the Fund. The net asset value of
Class T shares shall be regularly determined on every business
day as of the time of the regular closing of the New York Stock
Exchange ("NYSE") and the offering price based upon such net
asset value shall become effective as set forth from time to time
in the Fund's Prospectus; such net asset value shall also be
regularly determined, and the offering price based thereon shall
become effective, as of such other times for the regular
determination of net asset value as may be required or permitted
by rules of the NASD, or of the SEC. The Fund shall furnish daily
to the Underwriter, with all possible promptness, a detailed
computation of net asset value of its Class T shares.
(ii) As compensation for providing services under this Agreement, (A)
the Underwriter shall receive from the Fund distribution and
service fees under the terms and conditions set forth in the Plan
for the Fund adopted under Rule 12b-1 under the 1940 Act, as that
Plan may be amended from time to time and subject to any further
limitation on such fees as the Trustees may impose, and (B) the
Underwriter shall receive from the Fund all CDSCs applied on
redemption of Class T shares of such Fund. Whether and to what
extent a CDSC will be imposed with respect to a redemption shall
be determined in accordance with, and in a manner set forth in,
the Fund's Prospectus.
(iii) The Underwriter may reallow any or all of the distribution and
services fees and CDSCs which it is paid under the Agreement to
such dealers as the Underwriter may from time to time determine.
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(iv) The Underwriter may fix quantity discounts and other similar
variances or waivers of the CDSC not inconsistent with the
provisions of the 1940 Act; provided however, that the
Underwriter shall not impose any commission, permit any quantity
discount, or impose any other similar waiver or variance in
connection with the sale of Class T shares except as disclosed in
the Prospectus of the Fund.
2. The Underwriter agrees to devote to each class reasonable time and effort
to enlist investment dealers to sell each class of shares of the Fund and
otherwise promote the sale and distribution and act as Underwriter for the
sale and distribution of each class of shares as such arrangements may
profitably be made; but so long as it does so, nothing herein contained
shall prevent the Underwriter from entering into similar arrangements with
other funds and to engage in other activities. The Fund reserves the right
to issue of each class shares in connection with any merger or
consolidation of the Fund with any other investment company or any personal
holding company or in connection with offers of exchange exempted from
Section 22(d) of the 1940 Act.
3. To the extent the Fund shall offer (as set forth in the Fund's Prospectus)
to provide physical certificates evidencing ownership of a class of shares,
upon receipt by the Fund at its principal place of business of a written
order from the Underwriter, together with delivery instructions, the Fund
shall, as promptly as practicable, cause certificates for the class of
shares called for in such order to be delivered or credited in such amounts
and in such names as shall be specified by the Underwriter, against payment
therefor in such manner as may be acceptable to the Fund.
4. All sales literature and advertisements used by the Underwriter in
connection with sales of the shares of the Fund shall be subject to the
approval of the Fund to which such literature relates. The Fund authorizes
the Underwriter in connection with the sale or arranging for the sale of
its shares to give only such information and to make only such statements
or representations as are contained in the Prospectus or in sales
literature or advertisements approved by the Fund or in such financial
statements and reports as are furnished to the Underwriter pursuant to
paragraph 6 below. The Fund shall not be responsible in any way for any
information, statements or representations given or made by the Underwriter
or its representatives or agents other than such information, statements
and representations.
5. The Underwriter, as agent of the Fund, is authorized, subject to the
direction of the Fund, to accept shares of each class for redemption at
prices not in excess of their net asset value, determined as prescribed in
the Prospectus of the Fund. The Fund shall reimburse the Underwriter
monthly for its out-of-pocket expenses reasonably incurred on behalf of the
Fund in carrying out the foregoing authorization, but the Underwriter shall
not be entitled to any commissions or other compensation in respect to such
redemptions. The Underwriter shall report all redemptions promptly to the
Fund.
6. The Fund shall keep the Underwriter fully informed with regard to its
affairs, shall furnish the Underwriter with a certified copy of all
financial statements, and a signed copy of each report, prepared by
independent public accountants and with such reasonable number of printed
copies of each annual and other periodic report of the Fund as the
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Underwriter may request, and shall cooperate fully in the efforts of the
Underwriter to sell and arrange for the sale of its shares of each class of
shares of the Fund and in the performance by the Underwriter of all its
duties under this Agreement.
7. The Fund will pay or cause to be paid expenses (including counsel fees and
disbursements) of any registration of each class of shares of beneficial
interest under, but not limited to, federal, state or other regulatory
authority, fees of filing periodic reports with regulatory bodies and of
preparing, setting in type and printing the Prospectus and any amendments
thereto prepared for use in connection with the offering of shares of each
class of the Fund, for fees and expenses incident to the issuance of shares
of beneficial interest of each class, such as the cost of stock
certificates (if offered), issuance taxes, fees of the transfer agent,
including the cost of preparing and mailing notices to shareholders
pertaining to transactions with respect to shareholders' accounts, dividend
disbursing agents' costs, including the cost for preparing and mailing
notices confirming shares acquired by shareholders pursuant to the
reinvestment of dividends and distributions, and the mailing to
shareholders of prospectuses, and notices and reports as may be required
from time to time by regulatory bodies or for such other purposes, except
for purposes of sales by the Underwriter as outlined in paragraph 8 hereof.
8. The Underwriter shall pay all of its own costs and expenses (other than
expenses and costs heretofore deemed payable by the Fund and other than
expenses which one or more dealers may bear pursuant to any agreement with
the Underwriter) incident to the sale and distribution of the shares issued
or sold hereunder including (a) expenses of printing copies of the
Prospectus to be used in connection with the sale of shares of each class
of the Fund at printer's overrun costs; (b) expenses of printing and
distributing or disseminating any other literature, advertising or selling
aids in connection with the offering of shares of each class for sale
(however, the expenses referred to in (a) and (b) do not include expenses
incurred in connection with the preparation, printing and distribution of
the Prospectus or any report or other communication to shareholders, to the
extent that such expenses are necessarily incurred to effect compliance by
the Fund with any federal or state law or other regulatory bodies); and (c)
expenses of advertising in connection with such offering; provided,
however, that the Underwriter shall not be required to pay for any such
expenses to the extent that they are paid pursuant to the Fund's
distribution plan adopted pursuant to Rule 12b-1 under the 0000 Xxx.
9. The Fund agrees to register, from time to time as necessary, additional
shares of beneficial interest of each class with the SEC, State and other
regulatory bodies and to pay the related filing fees therefor and to file
such amendments, reports and other documents as may be necessary in order
that there may be no untrue statement of a material fact in the
Registration Statement (as hereinafter defined) or Prospectus or that there
may be no omission to state a material fact therein necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading. As used in this Agreement, the term
"Registration Statement" shall mean the registration statement most
recently filed by the Fund with the SEC and effective under the Securities
7
Act of 1933, as amended, as such Registration Statement is amended from
time to time, and the term "Prospectus" shall mean the most recent form of
prospectus authorized by the Fund for use by the Underwriter and by
dealers.
10. This Agreement may be terminated at any time on not more than 60 days'
written notice, without payment of a penalty, by the Underwriter, by vote
of a majority of the outstanding voting securities, as that term its
defined in the 1940 Act, or by vote of a majority of the Trustees who are
not "interested persons" of the Fund and who have no direct or indirect
financial interest in the operation of the Plan or agreements.
11. This Agreement shall terminate automatically in the event of its Assignment
(as hereinafter defined). The term "Assignment" for this purpose shall have
the meaning defined in Section 2(a)(4) of the 1940 Act. With regards to
Class T shares, this Agreement shall also terminate automatically when
Class T shares no longer exist.
12. This Agreement has been approved by the Trustees of the Fund and shall
continue in effect for two years from its effective date. Thereafter, this
Agreement shall continue for successive annual periods, provided that such
continuance is specifically approved annually by a majority of the Trustees
who are not interested persons of the parties hereto as defined in the 1940
Act and either (a) a majority of the Trustees of the Fund or (b) by vote of
a majority of the outstanding voting securities of the Fund, as defined in
the 1940 Act.
13. The Declaration, establishing the Fund, a copy of which together with all
amendments thereto is on file in the office of the Secretary of the
Commonwealth of Massachusetts, provides that the name of the Fund refers to
the Trustees under the Declaration collectively as trustees, but not
individually or personally; and no Trustee, shareholder officer, employee
or agent of the Fund may be held to any personal liability, nor may resort
be had to their private property for the satisfaction of any obligation or
claim or otherwise in connection with affairs of the Fund, but the Fund
property only shall be liable.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers thereunto duly authorized and to become effective as of the
day and year set forth above.
PILGRIM GROWTH OPPORTUNTIES FUND
By:
-------------------------------------
Senior Vice President
ING PILGRIM SECURITIES, INC.
By:
-------------------------------------
Senior Executive Vice President
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SCHEDULE 1
Last Continued/
Name of Fund Approved by Board Re-Approval Day
------------ ----------------- ---------------
Pilgrim Growth
Opportunities Fund June 13, 2000 September 1, 2002
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SCHEDULE A
to Underwriting Agreement
ALLOCATION SCHEDULE
Defined terms used in this Schedule and not otherwise defined herein shall have
the meaning assigned to them in the Underwriting Agreement of the Fund, on
behalf of the Fund(s), and the Underwriter as of September 1, 2000 to which this
Schedule A is attached (the "Underwriting Agreement"). As used herein the
following terms shall have the meanings indicated:
CDSCs or Asset Based Sales Charges related to Class B Shares ("Shares") of the
Fund shall be allocated by the Fund among the Underwriter and any successor
principal distributor of Shares of such Fund (the "Successor Underwriter") in
accordance with this Schedule A.
"COMMISSION SHARE" means in respect of any Fund, each Share of such Fund, which
is issued under circumstances which would normally give rise to an obligation of
the holder of such Share to pay a CDSC upon redemption of such Share (including,
without limitation, any Share of such Fund issued in connection with a Permitted
Free Exchange) and any such Share shall continue to be a Commission Share of
such Fund prior to the redemption (including a redemption in connection with a
Permitted Free Exchange) or conversion of such Share, even though the obligation
to pay the CDSC may have expired or conditions for waivers thereof may exist.
"DATE OF ORIGINAL ISSUANCE" means in respect of any Commission Share, the date
with reference to which the amount of the CDSC payable on redemption thereof, if
any, is computed.
"FREE SHARE" means, in respect of any Fund, each Share of such Fund, other than
a Commission Share (including, without limitation, any Share issued in
connection with the reinvestment of dividends or capital gains).
"INCEPTION DATE" means in respect of any Fund, the first date on which such Fund
issued Shares.
"NET ASSET VALUE" means, (i) with respect to any Fund, as of the date any
determination thereof is made, the net asset value of such Fund computed in the
manner such value is required to be computed by such Fund in its reports to its
shareholders, and (ii) with respect to any share of such Fund as of any date,
the quotient obtained by dividing: (A) the net asset value of such Fund (as
computed in accordance with clause (i) above) allocated to Shares of such Fund
(in accordance with the constituent documents for such Fund) as of such date, by
(B) the number of Shares of such Fund outstanding on such date.
PART I: ATTRIBUTION OF SHARES
Shares of each Fund, which are outstanding from time to time, shall be
attributed to the Underwriter and each Successor Underwriter in accordance with
the following rules;
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14. COMMISSION SHARES:
(a) Commission Shares attributed to the Underwriter shall be Commission
Shares the Date of Original issuance of which occurred on or after the
Inception Date of such Fund and on or prior to the last date on which
the Underwriter acted as principal underwriter of Shares of such Fund.
(b) Commission Shares attributable to any Successor Underwriter shall be
Commission Shares, the Date of Original Issuance of which occurs after
the last date on which the immediately preceding principal underwriter
of Shares of such Fund acted as principal underwriter of Shares of
such Fund and prior to the last date on which the Successor
Underwriter in question acted as principal underwriter of Shares of
such Fund.
(c) A Commission Share of a particular Fund (the "Issuing Fund") issued in
consideration of the investment of proceeds of the redemption of a
Commission Share of another Fund (the "Redeeming Fund") in connection
with a Permitted Free Exchange, is deemed to have a Date of Original
issuance identical to the Date of Original Issuance of the Commission
Share of the Redeeming Fund and any such Commission Share will be
attributed to the Underwriter or any Successor Underwriter based upon
such Date of Original Issuance in accordance with rules (a) and (b)
above.
(d) A Commission Share redeemed (other than in connection with a Permitted
Free Exchange) or converted to a class A share is attributable to the
Underwriter or any Successor Underwriter based upon the Date of
Original Issuance in accordance with rule (a), (b) and (c) above.
15. FREE SHARES:
Free shares of a Fund outstanding on any date shall be attributed to the
Underwriter or any Successor Underwriter, as the case may be, in the same
proportion that the Commission Shares of such Fund outstanding on such date are
attributed to it on such date; provided that if the Transfer Agent is able to
produce monthly reports which track the Date of original Issuance for the
Commission Shares related to such Free Shares, then the Free Shares shall be
allocated pursuant to clause 1(a), (b) and (c) above.
PART II: ALLOCATION OF CDSCS ("CDSCS")
CDSCS RELATED TO THE REDEMPTION OF COMMISSION SHARES:
CDSCs in respect of the redemption of Commission Shares shall be allocated to
the Underwriter or any Successor Underwriter depending upon whether the related
redeemed Commission Share is attributable to such Underwriter or Successor
Underwriter, as the case may be, in accordance with Part I above.
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PART III: ALLOCATION OF ASSET BASED SALES CHARGES
Assuming that the Asset Based Sales Charge remains constant over time and among
Funds so that Part IV hereof does not become operative:
1. The portion of the aggregate Asset Based Sales Charges accrued in respect
of all Shares of all Funds during any calendar month allocable to the
Underwriter or any Successor Underwriter is determined by multiplying the
total of such Asset Based Sales Charges by the following fraction:
(A + C) / 2
(B + D) / 2
where:
A = The aggregate Net Asset Value of all Shares of all Funds attributed to
such Underwriter or Successor Underwriter, as the case may be, and
outstanding at the beginning of such calendar month
B = The aggregate Net Asset Value of all Shares of all Funds at the
beginning of such calendar month
C = The aggregate Net Asset Value of all Shares of all Funds attributed to
such Underwriter or Successor Underwriter, as the case may be, and
outstanding at the end of such calendar month
D = The aggregate Net Asset Value of all Shares of all Funds at the end of
such calendar month
2. If the Program Administrator reasonably determines that the Transfer Agent
is able to produce automated monthly reports which allocate the average Net
Asset Value of the Commission Shares (or all Shares if available) of all
Funds among the Underwriter and any Successor Underwriter in a manner
consistent with the methodology detailed in Part I and Part III (l) above,
the portion of the Asset Based Sales Charges accrued in respect of all such
Shares of all Funds during a particular calendar month will be allocated to
such Underwriter or Successor Underwriter by multiplying the total of such
Asset Based Sales Charges by the following fraction:
(A) / (B)
where:
A = Average Net Asset Value of all such Shares of all Funds for such
calendar month attributed to such Underwriter or Successor
Underwriter, as the case may be
B = Total average Net Asset Value of all such Shares of all Funds for such
calendar month
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PART IV: ADJUSTMENT OF THE UNDERWRITER'S OR SUCCESSOR UNDERWRITER'S SHARE OF
ASSET BASED SALES CHARGES AND CDSCS
The Parties to the Underwriting Agreement recognize that, if the terms of the
Underwriting Agreement, any Distribution Plan, any Prospectus, the Conduct Rules
or any other Applicable Law change, which change disproportionately reduces, in
a manner inconsistent with the intent of the Underwriting Agreement and this
Schedule A, the amount of the Underwriter's or the Successor Underwriter's share
of Asset Based Sales Charges and CDSCs that would have been payable had no such
change occurred, this Allocation Schedule should be adjusted by agreement among
the Fund, the Underwriter and each Successor Underwriter to conform with such
intent taking into account such change; provided, however, if the Fund, the
Underwriter and the Successor Underwriters cannot agree within thirty (30) days
after the date of any such change in Applicable Laws or in any Underwriting
Agreement, Distribution Plan, Prospectus or the Conduct Rules, the Parties shall
submit the question to arbitration in accordance with the commercial arbitration
rules of the American Arbitration Association and the decision reached by the
arbitrator shall be final and binding on the Parties hereto.
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