Exhibit 23(e) under Form N-1A
Exhibit 1 under Item 601/Reg. S-K
DISTRIBUTOR'S AGREEMENT
This Agreement is made this 16th day of September, 2002, by and among
Edgewood Services, Inc. ("Edgewood"), a New York corporation having its
principal office and place of business at Federated Investors Tower, 0000
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, BBH Trust and BBH Fund,
Inc. (each an "Investment Company"), a Massachusetts business trust and
Maryland corporation, respectively, each having its principal office and
place of business at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000.
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. Each Investment Company hereby appoints Edgewood as its agent to sell
and distribute shares of the Investment Company which may be
offered in one or more portfolios (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 Investment
Company. Edgewood hereby accepts such appointment and agrees to
provide such other services for each Investment Company, if any,
and accept such compensation from the Investment Company, 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 an Investment Company it is in its best
interest to do so.
3. Neither Edgewood nor any other person is authorized by any Investment
Company 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 ("SEC") on behalf of said Investment Company, as the
same may be amended from time to time, or in any supplemental
information to said Prospectuses or SAIs approved by the
Investment Company. 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 only upon the prior approval on the part of any Investment
Company, and that any such information and/or representations
that are not preapproved by the relevant Investment Company shall
be made entirely without liability on the part of such Investment
Company. No person or dealer, other than Edgewood, is authorized
to act as agent for any Investment Company for the purposes of
this Agreement. Edgewood agrees that in offering or selling
Shares as agent of each Investment Company, 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 Conduct Rules. Edgewood
will submit to the relevant Investment Company copies of all
sales literature before using the same and will not use such
sales literature unless approved by the Investment Company.
4. This Agreement is effective with respect to each Fund and each Class,
as applicable, as of the date of execution of the applicable
exhibit and shall continue in effect with respect to each Fund or
Class presently set forth on an exhibit and any subsequent Funds
or Classes added pursuant to an exhibit during the initial term
of this Agreement for two years from the date set forth above,
and thereafter for successive periods of one year if such
continuance is approved at least annually by the
Directors/Trustees of each Investment Company including a
majority of the members of the Board of Directors/Trustees of
said Investment Company who are not "interested persons" (as that
term is defined by the Investment Company Act of 1940 ("1940
Act")) of the Investment Company and have no direct or indirect
financial interest in the operation of any Distribution Plan
relating to the Investment Company or in any related documents to
such Plan ("Independent Directors/Trustees") cast in person at a
meeting called for that purpose. If a Fund or Class is added
after the first approval by the Directors/Trustees as described
above, this Agreement will be effective as to that Fund or Class
upon execution of the applicable exhibit and will continue in
effect until the next approval of this Agreement by the
Directors/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 Independent Directors/Trustees or by a
majority of the outstanding voting securities of the particular
Fund or Class on not more than ninety (90) 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 ninety (90) days' written notice to each Investment Company.
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 1940 Act, 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. Subject to the provisions of Section 10 herein, Edgewood shall not be
liable to any Investment Company for anything done or omitted by
it, except acts or omissions involving willful misfeasance, bad
faith, negligence, or reckless disregard of the duties imposed by
this Agreement. Edgewood's total liability to the Investment
Company under this Agreement during any twelve-month period shall
be limited to actual or direct damages up to$500,000.00.
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 Directors/Trustees of each Investment Company,
including a majority of the Independent Directors/Trustees of
each Investment Company 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, each Investment
Company 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 ("1933
Act") and Section 20 of the Securities and Exchange Act of
1934 ("1934 Act") against any and all loss, liability,
claim, damage and reasonable 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 (1)
any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement,
Prospectuses, SAIs or sales literature filed with the SEC
or the NASD, as the case may be, on behalf of said
Investment Company (as they may be amended or supplemented
from time to time), or the omission or alleged omission
there from 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
said Investment Company about Edgewood by or on behalf of
Edgewood expressly for use in the Registration Statement,
Prospectuses, SAIs or sales literature or any amendment or
supplement thereto; or (2) the Investment Company's failure
to qualify its Shares for sale in any state or jurisdiction
of the United States.
If any action is brought against Edgewood or any
controlling person thereof with respect to which indemnity
may be sought against an Investment Company pursuant to the
foregoing paragraph, Edgewood shall promptly notify the
Investment Company in writing of the institution of such
action and the Investment Company shall assume the defense
of such action, including the employment of counsel
selected by the Investment Company and payment of
reasonable expenses. The failure to give notice as
required by this Section 10 in a timely fashion shall not
result in Edgewood's waiver of any right to indemnification
hereunder except to the extent the Investment Company is
prejudiced thereby and then only to the extent of such
prejudice. 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 Investment Company in connection with the
defense of such action or the Investment Company 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 Investment Company. Despite anything to
the contrary in this paragraph, no Investment Company shall
be liable for any settlement of any such claim of action
effected without its prior written consent. Each
Investment Company agrees promptly to notify Edgewood of
the commencement of any litigation or proceedings against
said Investment Company or any of its officers or Directors
or controlling persons in connection with the issue and
sale of Shares or in connection with the Registration
Statement, any Prospectuses and SAIs, or any amendment or
supplement thereto.
(b) Subject to the conditions set forth below, Edgewood agrees to indemnify
and hold harmless each Investment Company, each of its
Directors/Trustees, each of its officers who have signed
the Registration Statement and each other person, if any,
who controls said Investment Company within the meaning of
Section 15 of the 1933 Act and Section 20 of the 1934 Act,
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 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, Prospectuses or
SAIs filed with the SEC on behalf of said Investment
Company (as they may be amended or supplemented from time
to time), 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, provided
that such statement or omission was made in reliance upon
and in conformity with written information furnished to
said Investment Company about Edgewood by or on behalf of
Edgewood expressly for use in the Registration Statement,
Prospectuses or SAIs, or any amendment or supplement
thereto.
If any action is brought against an Investment Company, any
controlling person thereof, or any other person so
indemnified, with respect to which indemnity may be sought
against Edgewood pursuant to the foregoing paragraph, the
Investment Company shall promptly notify Edgewood in
writing of the institution of such action and Edgewood
shall assume the defense of such action, including the
employment of counsel selected by Edgewood and payment of
reasonable expenses. The failure to give notice as
required by this Section 10 in a timely fashion shall not
result in the Investment Company's waiver of any right to
indemnification hereunder except to the extent Edgewood is
prejudiced thereby and then only to the extent of such
prejudice. Each Investment Company, any such controlling
person thereof or any other person so indemnified, 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 the Investment Company or such persons unless
the employment of such counsel shall have been authorized
in writing by Edgewood in connection with the defense of
such action or Edgewood 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 Edgewood.
Despite anything to the contrary in this paragraph,
Edgewood shall not be liable for any settlement of any such
claim or for any other action effected without its prior
written consent. Edgewood agrees promptly to notify the
relevant Investment Company of the commencement of any
litigation or proceedings against Edgewood or any of its
controlling persons in connection with the issue and sale
of Shares or in connection with the Registration Statement,
Prospectuses or SAIs.
(c) Nothing herein contained shall be deemed to protect any person against
liability to an Investment Company or its shareholders to
which such person would otherwise be subject by reason of
willful misfeasance, bad faith or 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 1940 Act for an Investment Company,
Directors/Trustees, officers, Edgewood and controlling
persons of each Investment Company by the
Directors/Trustees pursuant to this Agreement, each
Investment Company is aware of the position of the
Securities and Exchange Commission as set forth in the
Investment Company Act Release No. IC-11330. Therefore,
each Investment Company 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 Independent
Directors/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. Each Investment Company
further undertakes that advancement of expenses incurred in
the defense of a proceeding (upon undertaking for repayment
unless it is ultimately determined that indemnification is
appropriate) against an Investment Company, officer,
Directors/Trustees, Edgewood or controlling person of said
Investment Company will not be made absent the fulfillment
of at least one of the following conditions: (i) the
indemnitee provides security for his undertaking; (ii) said
Investment Company is insured against losses arising by
reason of any lawful advances; or (iii) a majority of a
quorum of non-party Independent Directors/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. If at any time the Shares of any Fund are offered in two or more
Classes, Edgewood agrees to assist in adopting a written plan
pursuant to Rule 18f-3 under the 1940 Act.
12. This Agreement will become binding on the parties hereto upon the
execution of the attached exhibits to the Agreement.
13. Edgewood or its affiliate will review and file all sales literature
(advertisements, brochures and shareholder communications) for
each Investment Company in accordance with rules and regulations
of the National Association of Securities Dealers, Inc.
14. Edgewood agrees to maintain the security and confidentiality of
nonpublic personal information ("NPI") of each Investment
Company's customers and consumers, as those terms are defined in
Xxxxxxxxxx X-X, 00 XXX Part 248. Edgewood agrees to use and
redisclose such NPI for the limited purposes of processing and
servicing transactions, or for specified law enforcement
purposes; and to service providers or in connection with joint
marketing arrangements directed by an Investment Company, in each
instance in furtherance of fulfilling Edgewood's obligations
under this Agreement and consistent with the exceptions provided
in 17 CFR Sections 248.14, 248.15 and 248.13, respectively.
15. (a) Each Investment Company and Edgewood hereby acknowledge
that the Investment Companies have delegated the
responsibilities under the USA Patriot Act enumerated below
to Edgewood:
(1) Screening for and prohibiting transactions with foreign shell banks;
(2) Correspondent and Private bank screening and documentation;
(3) Suspicious activity screening and reporting;
(4) Cash and cash equivalent transaction reporting;
(5) Information sharing as provided by the USA Patriot Act;
(6) Customer identification, verification and records maintenance of those
investor clients dealing directly with Edgewood;
(7) Contract with certain financial intermediaries selling Shares of the
Funds to perform customer identification,
verification and records maintenance of those
investor clients dealing directly with the financial
intermediary; and
(8) Assess the reputation and associated risk of establishing relationships
with financial intermediaries through either omnibus
or individually registered accounts.
(b) Edgewood accepts such delegation and represents and
warrants that (1) it has examined the aspects of its
operations that may give rise to Bank Secrecy Act and/or U.
S. Treasury Department regulatory requirements or that are
vulnerable to money laundering or terrorist financing
activity, (the "Suspect Activity"), (2) it has developed an
anti-money laundering program (the "Program") in the
reasonable and good faith belief that the effective
implementation of the Program will result in compliance
with applicable regulatory requirements and the elimination
of Suspect Activity, and (3) it has implemented the Program
and will continue to (i) monitor the operation of, (ii)
assess the effectiveness of, and (iii) modify, as
appropriate or as required by applicable requirements, the
Program.
(c) Edgewood further acknowledges that, because the Investment
Companies remain responsible for assuring compliance with
anti-money laundering regulations, Edgewood agrees to
provide information and reports to the Investment
Companies' designated Compliance Officer, as may from time
to time be requested, and, in addition, to provide the
Compliance Officer with notice of any contact by any
regulatory authority or its contemplated response to the
regulatory authority.
(d) Edgewood does hereby consent to and provide its assurance
that it will provide to any federal examiners of the
Investment Companies such information and records relating
to the Program as may be requested and will allow those
examiners to inspect Edgewood for purposes of the Program.
Edgewood Services, Inc.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President
BBH Trust
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BBH Fund, Inc.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Exhibit A
to the
Distributor's Agreement
BBH Fund, Inc.
BBH Broad Market Fixed Income Fund
Class I Shares
Class N Shares
BBH European Equity Fund
BBH High Yield Fixed Income Fund
Class I Shares
Class N Shares
BBH Inflation-Indexed Securities Fund
Class I Shares
Class N Shares
Class A Shares
BBH International Equity Fund
Class I Shares
Class N Shares
BBH Tax-Efficient Equity Fund
Class I Shares
Class N Shares
BBH Pacific Basin Equity Fund
BBH Trust
BBH Money Market Fund
BBH Tax Free S/I Fixed Income Fund
BBH Tax-Exempt Money Fund
BBH U.S. Treasury Money Fund
In consideration of the mutual covenants set forth in the Distributor's
Agreement dated September 16, 2002, among BBH Fund, Inc. and BBH Trust and
Edgewood Services, Inc. with respect to the Funds and Class of shares set
forth above.
Witness the due execution hereof this 16th day of September, 2002.
Edgewood Services, Inc. BBH Fund, Inc.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title: Vice President
BBH Trust
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
