EXHIBIT 99(e)
DISTRIBUTION AGREEMENT
THIS AGREEMENT (this "Agreement") made this 10th day of June, 2005,
between The Xxxxxxx, Xxxxx Funds (the "Trust"), having an office at 00000 Xxxxx
Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and BISYS Fund
Services Limited Partnership ("Distributor"), having an office at 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, the Trust is an open-end management investment company, organized
as a Delaware statutory trust and registered with the Securities and Exchange
Commission (the "Commission") under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, it is intended that Distributor act as the distributor of the
shares of beneficial interest ("Shares") of each series of the Trust, as listed
on Schedule A, and such series as are hereafter created (all of the foregoing
series individually referred to herein as a "Fund" and collectively as the
"Funds");
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services as Distributor.
1.1 Distributor will act as agent of the Trust on behalf of each Fund for
the distribution of the Shares covered by the registration statement of the
Trust then in effect under the Securities Act of 1933, as amended (the
"Securities Act") and the 1940 Act. As used in this Agreement, the term
"registration statement" shall mean the registration statement of the Trust and
any amendments thereto, then in effect, including Parts A (the Prospectus), B
(the Statement of Additional Information) and C of each registration statement,
as filed on Form N-1A, or any successor thereto, with the Commission, together
with any amendments thereto. The term "Prospectus" shall mean the then-current
form of Prospectus and Statement of Additional Information used by the Funds, in
accordance with the rules of the Commission, for delivery to shareholders and
prospective shareholders after the effective dates of the above-referenced
registration statements, together with any amendments and supplements thereto.
1.2 Consistent with the understanding between the Funds and the
Distributor, Distributor may solicit orders for the sale of the Shares. The
Trust understands that Distributor is now and may in the future be the
distributor of the shares of many other investment companies or series,
including investment companies having investment objectives similar to those of
the Trust. The Trust further understands that shareholders and potential
shareholders in the Trust may invest in shares of such other investment
companies. The Trust agrees that Distributor's duties to other investment
companies shall not be deemed in conflict with its duties to the Trust under
this Section 1.2; provided, however, Distributor expressly represents and
warrants that it will undertake no activities which will materially and
adversely affect the ability of the Distributor to perform its obligations to
the Trust under this Agreement.
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1.3 Consistent with the understanding between the Funds and the
Distributor, and subject to the last sentence of this Section 1.3, Distributor
may engage in the printing and mailing of Prospectuses to prospective
shareholders other than current shareholders, and the printing and mailing of
sales literature provided by the Trust. Subject to the prior approval of the
Trust, Distributor may enter into dealer agreements and other selling agreements
with broker-dealers and other intermediaries; provided, however, that
Distributor shall have no obligation to make any payments to any third parties,
whether as finder's fees, compensation or otherwise, unless (i) Distributor has
received a corresponding payment from the applicable Fund's Distribution Plan
(as defined in Section 2 of this Agreement), the Fund's investment adviser (the
"Adviser") or from another source as may be permitted by applicable law, and
(ii) such corresponding payment has been approved by the Trust's Board of
Trustees.
1.4 In its capacity as distributor of the Shares, Distributor covenants
that all activities of the Distributor and its partners, agents, and employees
shall comply with all applicable laws, rules and regulations, including, without
limitation, the 1940 Act, all applicable rules and regulations promulgated by
the Commission thereunder, all applicable rules and regulations adopted by any
securities association registered under the Securities Exchange Act of 1934, and
all applicable rules and regulations the state securities or "blue sky"
regulator in each state in which the Distributor sells Shares.
1.5 The Trust's officers may, in their absolute discretion, so long as in
accordance with the Prospectus and all applicable laws, instruct the Distributor
to decline to accept any orders for or make any sales of the Shares until such
time as those officers deem it advisable to accept such orders and to make such
sales.
1.6 Upon request, the Trust agrees to inform the Distributor from time to
time of the states in which the Fund or its administrator has registered or
otherwise qualified shares for sale. The Distributor shall notify the Trust
regarding additional states that the Trust should consider for qualification of
the Shares for sale in, based on the fact that an order has been requested in
such state and the Distributor shall take all actions necessary to assist the
Trust in qualifying the Shares in the states in which the Trust determines to
qualify the Shares for sale. The Trust agrees at its own expense to execute any
and all documents and to take all actions that may be reasonably necessary in
connection with the qualification of the Shares for sale in such states.
1.7 The Trust shall furnish or cause to be furnished from time to time,
for use in connection with the sale of the Shares, such supplemental information
with respect to the Funds and the Shares as Distributor may reasonably request;
and the Trust warrants that the statements contained in any such supplemental
information will fairly show or represent what they purport to show or
represent. The Trust shall also furnish or cause to be furnished to Distributor
upon request with: (a) unaudited semi-annual statements of the Funds' books and
accounts prepared by the Trust, (b) a monthly itemized list of the securities in
the Funds, (c) monthly balance sheets as soon as practicable after the end of
each month, and (d) from time to time, such additional financial information of
the Funds as the Distributor may reasonably request.
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1.8 The Distributor shall furnish to the Trust quarterly, a copy of the
Distributor's FOCUS (Financial and Operational Combined Uniform Single) Report
on Form X-17A-5 filed quarterly with the National Association of Securities
Dealers.
1.9 The Trust represents and warrants to Distributor that all registration
statements, and each Prospectus, filed by the Trust with the Commission under
the Securities Act and the 1940 Act shall be prepared in conformity with
requirements of said Acts and rules and regulations of the Commission
thereunder. The registration statement and Prospectus shall contain all
statements required to be stated therein in conformity with said Acts and the
rules and regulations of the Commission thereunder, and all statements of fact
contained in any such registration statement and Prospectus are true and correct
in all material respects. Furthermore, neither any registration statement nor
any Prospectus includes an untrue statement of a material fact or omits 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 foregoing
representations and warranties shall continue throughout the term of this
Agreement and be deemed to be of a continuing nature, applicable to all Shares
distributed hereunder. The Trust 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 may, in the opinion of the
Trust's counsel, be necessary or advisable. If the Trust shall not propose any
amendment or amendments and/or supplement or supplements within fifteen days
after receipt by the Trust of both (1) a written request from Distributor to do
so and (2) oral or written advice from counsel for the Distributor or the Trust
that such proposed amendments and/or supplements are required under a reasonable
interpretation of the federal securities laws, Distributor may, at its option,
terminate this Agreement. In such case, the Distributor will be held harmless
from, and indemnified by the Trust for, any liability or loss resulting from the
failure to implement such amendment. The Trust shall provide reasonable notice
(with a copy thereof) to Distributor prior to filing any amendment to any
registration statement or supplement to any Prospectus, as applicable; provided,
however, that nothing contained in this Agreement shall in any way limit the
Trust's right to file at any time such amendments to any registration statement
and/or supplements to any Prospectus, of whatever character, as the Trust may
deem advisable, such right being in all respects absolute and unconditional.
1.10 The Trust authorizes the Distributor and dealers to use any
Prospectus in the form furnished by the Trust from time to time in connection
with the sale of the Shares. The Distributor shall, as soon as reasonably
practicable after its receipt of notice to such effect from the Trust, cease the
sale by Distributor of any series of Shares specified in such notice and/or
cease the use or delivery by the Distributor of any Prospectus, supplement
thereto or sales literature specified in such notice.
1.11 The Distributor may, at its own expense, utilize agents in its
performance of its services and, with prior notice to the Trust, appoint in
writing other parties qualified to perform specific administration services
reasonably acceptable to the Trust (individually, a "Sub-Agent") to carry out
some or all of its responsibilities under this Agreement; provided, however,
that a Sub-Agent shall be the agent of the Distributor and not the agent of the
Trust, and that the Distributor shall be fully responsible for the acts of
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such Sub-Agent and shall not be relieved of any of its responsibilities
hereunder by the appointment of a Sub-Agent.
1.12 The Distributor shall not be liable for any loss suffered by the
Trust in connection with the matters to which this Agreement relates, except a
loss resulting from (i) willful misfeasance, bad faith or gross negligence on
the Distributor's part in the performance of its duties, from reckless disregard
by the Distributor of its obligations and duties under this Agreement, or (ii)
from the Distributor's failure to comply with laws, rules and regulations
applicable to it in connection with its activities hereunder. The Trust agrees
to indemnify, defend and hold harmless the Distributor, its officers, partners,
employees, and any person who controls the Distributor within the meaning of
Section 15 of the Securities Act (collectively, "Distributor Indemnitees"), from
and against any and all claims, demands, liabilities and expenses (including the
reasonable cost of investigating or defending such claims, demands or
liabilities and any reasonable counsel fees incurred in connection therewith)
(collectively, "Claims") which the Distributor Indemnitees may incur under the
Securities Act or under common law or otherwise (a) as the result of the
Distributor acting as distributor of the Funds and entering into selling
agreements, participation agreements, shareholder servicing agreements or
similar agreements with financial intermediaries on behalf of the Trust within
the scope of this Agreement; (b) arising out of or based upon (i) any untrue
statement, or alleged untrue statement, of a material fact contained in any
registration statement or any Prospectus, (ii) any omission, or alleged
omission, to state a material fact required to be stated in any registration
statement or any Prospectus or necessary to make the statements therein not
misleading, or (iii) any untrue statement, or alleged untrue statement, of a
material fact in any Trust-related advertisement or sales literature, or any
omission, or alleged omission, to state a material fact required to be stated
therein to make the statements therein not misleading, in either case
notwithstanding the exercise of reasonable care in the preparation or review
thereof by the Distributor; (c) arising out of or based upon the payment or
repayment of any fees made under the Distribution Plan (as defined in Section 2
below) or any penalties imposed or whether by reason of a finding against the
defendants in that certain civil suit commenced by Xxxxxx Xxxxxxxx, as
Plaintiff, against the Adviser, the Trust's Board of Trustees, and the Xxxxxxx,
Xxxxx Micro Cap Growth Fund, as Defendants, in the United States District Court
for the Southern District of New York, No. 03 CV 9741 (VM) (the "Litigation") or
otherwise; or (d) arising out of or based upon the electronic processing of
orders over the internet at the Trust's request; provided, however, that the
Trust's agreement to indemnify the Distributor Indemnitees pursuant to this
Section 1.12 shall not be construed to cover any Claims (A) pursuant to
subsection (b) above to the extent such untrue statement, alleged untrue
statement, omission, or alleged omission, was (i) furnished to the Trust by the
Distributor for use in the registration statement or in corresponding statements
made in the Prospectus, advertisement or sales literature or (ii) based on the
failure of the Distributor to furnish information concerning the Distributor
required to be included in such Prospectus, advertisement or sales literature;
(B) arising out of or based upon the willful misfeasance, bad faith or gross
negligence of the Distributor in the performance of its duties or the
Distributor's reckless disregard of its obligations and duties under this
Agreement; or (C) arising out of or based upon the Distributor's failure to
comply with laws, rules and regulations applicable to it in connection with its
activities hereunder.
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In the event of a Claim for which the Distributor Indemnitees may be
entitled to indemnification hereunder, the Distributor shall provide the Trust
with written notice of the Claim, identifying the persons against whom such
Claim is brought, promptly following receipt of service of the summons or other
first legal process, and in any event within ten (10) days of such receipt. The
Trust will be entitled to assume the defense of any suit brought to enforce any
such Claim if such defense shall be conducted by counsel of good standing chosen
by the Trust and approved by the Distributor, which approval shall not be
unreasonably withheld. In the event any such claim for indemnity is not based
solely on subsection (b) of the preceding paragraph, the Distributor shall have
the right to participate in the defense. In the event the Trust elects to assume
the defense of any such suit and retain counsel of good standing so approved by
the Distributor, the Distributor Indemnitees in such suit shall bear the fees
and expenses of any additional counsel retained by any of them unless (i) the
employment of such counsel shall have been authorized in writing by the Trust in
connection with the defense of such action, (ii) the Trust shall not have
employed counsel to take charge of the defense of such action within a
reasonable time or (iii) the defenses available to the Trust and the Distributor
Indemnitees are likely to present a conflict of interest for one counsel to
represent both the Trust and the Distributor Indemnitees, in any of which event
the reasonable fees and expenses of counsel for the Distributor Indemnitees
shall be borne by the Trust and paid as incurred to the extent related to a
Claim covered under this Section 1.12. The Trust's indemnification agreement
contained in this Section 1.12 shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Distributor
Indemnitees, and shall survive the delivery of any Shares.
1.13 The Distributor agrees to indemnify, defend and hold harmless the
Trust, its officers, Trustees, employees, and any person who controls the Trust
within the meaning of Section 15 of the Securities Act (collectively, "Trust
Indemnitees"), from and against any and all Claims which the Trust Indemnitees
may incur under the Securities Act or under common law or otherwise, arising out
of or based upon (a) any untrue statement, or alleged untrue statement, of a
material fact contained in any registration statement, Prospectus, or
Trust-related advertisement or sales literature, or upon any omission, or
alleged omission, to state a material fact in such materials that would be
necessary to make the information therein not misleading, which untrue
statement, alleged untrue statement, omission, or alleged omission, was (A)
furnished in writing to the Trust by the Distributor for use in the registration
statement or in corresponding statements made in the Prospectus, advertisement
or sales literature or (B) based on the failure of the Distributor to furnish
information concerning the Distributor required to be included in such
Prospectus, advertisement or sales literature; (b) the willful misfeasance, bad
faith or gross negligence of the Distributor in the performance of its duties,
or the Distributor's reckless disregard of its obligations and duties under this
Agreement, or (c) the Distributor's failure to comply with laws, rules and
regulations applicable to it in connection with its activities hereunder (other
than in respect of Trust related advertisements or sales literature that fails
to comply with the applicable laws notwithstanding the exercise of reasonable
care in the preparation and review thereof by the Distributor.
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In the event of a Claim for which the Trust Indemnitees may be entitled to
indemnification hereunder, the Trust shall provide the Distributor with written
notice of the Claim, identifying the persons against whom such Claim is brought,
promptly following receipt of service of the summons or other first legal
process, and in any event within ten (10) days of such receipt. The Distributor
will be entitled to assume the defense of any suit brought to enforce any such
Claim if such defense shall be conducted by counsel of good standing chosen by
the Distributor and approved by the Trust, which approval shall not be
unreasonably withheld. In the event any such suit is not based solely on an
alleged untrue statement, omission, or wrongful act on the Distributor's part,
the Trust shall have the right to participate in the defense. In the event the
Distributor elects to assume the defense of any such suit and retain counsel of
good standing so approved by the Trust, the Trust Indemnitees in such suit shall
bear the fees and expenses of any additional counsel retained by any of them
unless (i) the employment of such counsel shall have been authorized in writing
by the Distributor in connection with the defense of such Claim, (ii) the
Distributor shall not have employed counsel to take charge of the defense of
such Claim within a reasonable time or (iii) the defenses available to the
Distributor and the Trust Indemnitees are likely to present a conflict of
interest for one counsel to represent both the Distributor and the Trust
Indemnitees, in any of which event the reasonable fees and expenses of counsel
for the Trust Indemnitees shall be borne by the Distributor and paid as incurred
to the extent related to a Claim covered under this Section 1.13. The
Distributor's indemnification agreement contained in this Section 1.13 shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Trust Indemnitees, and shall survive the delivery of
any Shares.
1.14 No Shares shall be offered by either the Trust or the Distributor
under any of the provisions of this Agreement, no orders for the purchase or
sale of Shares hereunder shall be accepted by the Trust or the Distributor, and
no Prospectus, supplement thereto or sales literature shall be used or delivered
by the Trust or the Distributor if and so long as the effectiveness of the
registration statement then in effect or any necessary amendments thereto shall
be suspended under any of the provisions of the Securities Act or if and so long
as a current Prospectus as required by Section 10(b)(2) of said Act is not on
file with the Commission; provided, however, that: (a) the Distributor will not
be obligated to cease offering Shares or acceptance of orders, or cease use or
delivery of any Prospectus by it until it has received from the Trust written
notice of such events, and (b) nothing contained in this Section 1.14 shall in
any way restrict or have an application to or bearing upon the Trust's
obligation to repurchase Shares from any shareholder in accordance with the
provisions of the Trust's Prospectus, Amended and Restated Trust Instrument, or
Bylaws.
1.15 The Trust agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
(a) of any request by the Commission for amendments to the
registration statement or Prospectus then in effect or for
additional information;
(b) in the event of the issuance by the Commission of any stop
order suspending the effectiveness of the registration
statement or
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Prospectus then in effect or the initiation by service of
process on the Trust of any proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement
of a material fact made in the registration statement or
Prospectus then in effect or which requires the making of a
change in such registration statement or Prospectus in order
to make the statements therein not misleading; and
(d) of any action of the Commission with respect to any amendment
to any registration statement or Prospectus which may from
time to time be filed with the Commission, which could
reasonably be expected to have a material negative impact upon
the offering of Shares.
For purposes of this section, informal requests by or acts of the Staff of
the Commission shall not be deemed actions of or requests by the Commission
unless they would reasonably be expected to have a material negative impact upon
the offering of Shares.
1.16 Distributor agrees that so long as it is not prohibited by law from
disclosing such information, it shall advise the Trust as soon as reasonably
practical upon receipt of any orders, sanctions or publicly available inquiries
made by the Commission directly applicable to the provision of services
hereunder and reasonably likely to have a material adverse effect on the
provision of services hereunder.
2. Fees.
2.1 Attached as Schedule B to this Agreement are all plans of distribution
under Rule 12b-1 under the 1940 Act approved by the Funds and in effect
(collectively, the "Distribution Plan"). The Funds will deliver to Distributor
promptly after any changes thereto updated copies of the Distribution Plan. The
Trust represents, warrants and covenants (which representation, warrant and
covenant shall be continuing) that the Distribution Plan complies in all
respects with the 1940 Act and all other applicable laws. The Trust further
represents and warrants that payments made under the Distribution Plan have been
reviewed by the Trust's Board of Trustees, and that such payments are in
accordance with the Distribution Plan and such payments will continue to be in
accordance with the Distribution Plan. For its services under this Agreement,
the Distributor shall be compensated as set forth on Schedule C to this
Agreement. If the Funds have a Distribution Plan that permits and authorizes
them to compensate the Distributor and required board approvals have been given,
then the Funds shall be responsible for all such compensation or such portions
of it as have been permitted and authorized under the Distribution Plan. The
Trust and the Distributor acknowledge that the Distribution Plan states that the
Funds are permitted to reimburse the Adviser, the Distributor and others for all
expenses incurred by such parties within the scope of the Distribution Plan
specific to each Fund of the Trust, up to a maximum aggregate amount of .25% per
annum of the average daily net assets of such Fund. The Trust and the
Distributor further acknowledge that it is the policy and practice of the
Adviser to fund the Trust and other parties for expenses incurred by such
parties within the scope of the
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Distribution Plan specific to each Fund of the Trust, where such expenses exceed
the maximum aggregate amount of expenses permitted by the Distribution Plan. The
Trust and the Distributor acknowledge that the role of the Distributor with
respect to the Distribution Plan is solely that of an administrator of, and
paying agent under, the Distribution Plan, and the Distributor exercises no
discretion with respect to the level or purposes of the Distribution Plan, all
such discretion residing solely with the Trust and its Board of Trustees.
2.2 If: (i) the Distributor properly receives fees from the Funds under
the Distribution Plan, other than for services rendered or expenses incurred,
that the Distributor is not obligated to pay to third party broker-dealers, plan
administrators or others ("Retained Fees"), and (ii) the Funds have authority
under the Distribution Plan to pay for some or all of the Distributor's services
under this Agreement ("Permitted Services"), then all of the Retained Fees will
either be (a) returned to the Funds and/or (b) credited against the compensation
payable by the Funds to the Distributor for Permitted Services.
3. Term, Duration and Termination.
This Agreement shall become effective with respect to each Fund as of June
27, 2005 (the "Effective Date") (or, if a particular Fund is not in existence on
such date, on the earlier of the date an amendment to Schedule A to this
Agreement relating to that Fund is executed or the Distributor begins providing
services under this Agreement with respect to such Fund) and, unless sooner
terminated as provided herein, shall continue for a two year period following
the Effective Date. Thereafter, if not terminated, this Agreement shall continue
with respect to a particular Fund automatically for successive one-year terms,
provided that such continuance is specifically approved at least annually (a) by
the vote of a majority of those members of the Trust's Board of Trustees who are
not parties to this Agreement or interested persons of any such party, cast in
person at a meeting for the purpose of voting on such approval and (b) by the
vote of the Trust's Board of Trustees or the vote of a majority of the
outstanding voting securities of such Fund. This Agreement is terminable without
penalty with sixty days' prior written notice, by the Trust's Board of Trustees,
by vote of a majority of the outstanding voting securities of the Trust, or by
the Distributor. This Agreement will also terminate automatically in the event
of its assignment. (As used in this Agreement, the terms "majority of the
outstanding voting securities," "interested persons" and "assignment" shall have
the same meaning as ascribed to such terms in the 1940 Act.)
4. Privacy.
Nonpublic personal financial information relating to consumers or
customers of the Funds provided by, or at the direction of, the Trust to the
Distributor, or collected or retained by the Distributor to perform its duties
as distributor, shall be considered confidential information. The Distributor
shall not disclose or otherwise use any nonpublic personal financial information
relating to present or former shareholders of the Funds other than for the
purposes for which that information was disclosed to the Distributor, including
use under an exception in Rules 13, 14 or 15 of Commission Regulation S-P in the
ordinary course of business to carry out those purposes; provided,
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however, that the Distributor may transfer such information to its affiliates
involved in servicing the Trust or as required or permitted by law. The
Distributor shall have in place and maintain physical, electronic and procedural
safeguards reasonably designed to protect the security, confidentiality and
integrity of, and to prevent unauthorized access to or use of, records and
information relating to consumers and customers of the Funds. The Distributor
represents to the Trust that the Distributor has adopted a statement of its
privacy policies and practices as required by Securities and Exchange Commission
Regulation S-P and agrees to provide the Trust with a copy of that statement
annually. The Distributor further represents and warrants that it complies, and
will continue to comply during the duration of this Agreement, with the
requirements of Securities and Exchange Commission Regulation S-P.
5. Anti-Money Laundering Compliance.
5.1 Each of Distributor and the Trust acknowledges that it is a financial
institution subject to the USA Patriot Act of 2001 and the Bank Secrecy Act
(collectively, the "AML Acts"), which require, among other things, that
financial institutions adopt compliance programs to guard against money
laundering. Each represents and warrants to the other that it is in compliance
with and will continue to comply with the AML Acts and applicable regulations in
all relevant respects. The Distributor shall also provide written notice to each
person or entity with which it entered an agreement prior to the date hereof
with respect to sale of the Trust's Shares, such notice informing such person of
anti-money laundering compliance obligations applicable to financial
institutions under applicable laws and, consequently, under applicable
contractual provisions requiring compliance with laws.
5.2 The Distributor shall include specific contractual provisions
regarding anti-money laundering compliance obligations in agreements entered
into by the Distributor with any dealer that is authorized to effect
transactions in Shares of the Trust.
5.3 Each of Distributor and the Trust agrees that it will take such
further steps, and cooperate with the other as may be reasonably necessary, to
facilitate compliance with the AML Acts, including but not limited to the
provision of each party's written procedures, policies and controls related
thereto ("AML Operations"). Distributor undertakes that it will grant to the
Trust, the Trust's anti-money laundering compliance officer and regulatory
agencies, reasonable access to copies of Distributor's AML Operations, books and
records pertaining to the Trust only. It is expressly understood and agreed that
the Trust and the Trust's compliance officer shall have no access to any of
Distributor's AML Operations, books or records pertaining to other clients of
Distributor.
6. Notices.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to it at 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxxx Xxxxxxx,
with a copy to Dhiya El-Saden, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000; and if to Distributor, to it at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attn: Broker Dealer Chief Compliance Officer,
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with a copy to BISYS Distribution Services, 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx
00000, attn: President, or at such other address as such party may from time to
time specify in writing to the other party pursuant to this Section.
7. Confidentiality.
During the term of this Agreement, the Distributor and the Adviser may
have access to confidential information relating to such matters as either
party's business, trade secrets, systems, procedures, manuals, products,
contracts, personnel, and clients. As used in this Agreement, "Confidential
Information" means information belonging to the Distributor or the Adviser which
is of value to such party and the disclosure of which could result in a
competitive or other disadvantage to either party, including, without
limitation, financial information, business practices and policies, know-how,
trade secrets, market or sales information or plans, customer lists, business
plans, and all provisions of this Agreement. Confidential Information includes
information developed by either party in the course of engaging in the
activities provided for in this Agreement, unless: (i) the information is or
becomes publicly known without breach of this Agreement, (ii) the information is
disclosed to the other party by a third party not under an obligation of
confidentiality to the party whose Confidential Information is at issue of which
the party receiving the information should reasonably be aware, or (iii) the
information is independently developed by a party without reference to the
other's Confidential Information. Each party will protect the other's
Confidential Information with at least the same degree of care it uses with
respect to its own Confidential Information, and will not use the other party's
Confidential Information other than in connection with its duties and
obligations hereunder. Notwithstanding the foregoing, a party may disclose the
other's Confidential Information if (i) required by law, regulation or legal
process or if requested by any governmental agency; (ii) it is advised by
counsel that it may incur liability for failure to make such disclosure; (iii)
requested to by the other party; provided that in the event of (i) or (ii) the
disclosing party shall give the other party reasonable prior notice of such
disclosure to the extent reasonably practicably and cooperate with the other
party (at such other party's expense) in any efforts to prevent such disclosure.
8. Governing Law
This Agreement shall be construed in accordance with the laws of the State
of New York and the applicable provisions of the 1940 Act.
9. Prior Agreements
This Agreement constitutes the complete agreement of the parties as to the
subject matter covered by this Agreement, and supersedes all prior negotiations,
understandings and agreements bearing upon the subject matter covered by this
Agreement.
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10. Amendments
No amendment to this Agreement shall be valid unless made in writing and
executed by both parties hereto.
11. Matters Relating to the Trust as a Delaware Business Trust
It is expressly agreed that the obligations of the Trust hereunder shall
not be binding upon any of the Trustees, the Adviser, shareholders, nominees,
officers, agents or employees of the Trust personally, but shall bind only the
trust property of the Trust. The execution and delivery of this Agreement have
been authorized by the Trustees, and this Agreement has been signed and
delivered by an authorized officer of the Trust, acting as such, and neither
such authorization by the Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on them personally, but shall bind only the trust property
of the Trust as provided in the Trust's Amended and Restated Trust Instrument.
* * * * * *
Distribution Agreement Final Effective June 27, 2005
11
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first written
above.
THE XXXXXXX, XXXXX FUNDS
By: /s/ G. Xxxxxx Xxxxxxx
--------------------------
Name: G. Xxxxxx Xxxxxxx
Title: Co President
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc., its General
Partner
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: President
SCHEDULE A
FUNDS
Xxxxxxx, Xxxxx Mid Cap Growth Fund
Xxxxxxx, Xxxxx Micro-Cap Growth Fund
Xxxxxxx, Xxxxx Small Cap Growth Fund
Distribution Agreement Final Effective June 27, 2005
13
SCHEDULE B
DISTRIBUTION PLAN OF
THE BJURMAN FUNDS
AS AMENDED NOVEMBER 19, 1998
The following Distribution Plan (the "Plan") has been adopted pursuant to
Rule 12b-1 under the Investment Company Act of 1940, as amended (the "Act"), by
The Bjurman Funds (the "Trust") on behalf of Bjurman Micro-Cap Growth Fund (the
"Fund") and any separate series of the Trust hereinafter organized. The Plan has
been approved by a majority of the Trust's Board of Trustees, including a
majority of the trustees who are not interested persons of the Trust and who
have no direct or indirect financial interest in the operation of the Plan (the
"non-interested trustees"), cast in person a t a meeting called for the purpose
of voting on such plan.
In reviewing the Plan, The Board of Trustees determined that the adoption
of the Plan would be prudent and in the best interests of the Trust and its
shareholders. Such approval included a determination that in the exercise of
their reasonable business judgement and in light of their fiduciary duties,
there is a reasonable likelihood that the Plan will benefit the Trust and its
shareholders. The Plan has also been approved by a vote of the initial
shareholders of the Fund.
The Provisions of the Plan are:
1. The Fund shall reimburse the Adviser, the Distributor or others for
all expenses incurred by such parties in the promotion and
distribution of shares of the Fund of the Trust, including but not
limited to, the printing of prospectuses and reports used for sales
purposes, expenses of preparation of sales literature and related
expenses, advertisement, and other distribution-related expenses, as
well a s any distribution or service fees paid to securities dealers
or others who have executed a servicing agreement with the Trust on
behalf of the Fund or the Distributor, which form of agreement has
been approved by the Trustees, including the non-interested
trustees. The monies to be paid pursuant to any such servicing
agreement shall be used to pay dealers or others for, among other
things, furnishing personal services and maintaining shareholder
accounts, which services include, among other things, assisting in
establishing and maintaining customer accounts and records;
assisting with the purchase and redemption requests; arranging for
bank wires; monitoring dividend payments from the Trust on behalf of
customers; forwarding certain shareholder communications form the
Trust to customers; receiving and answering correspondence; and
aiding in maintaining the investment of their respective customers
in the Fund.
2. The maximum aggregate amount which may be reimbursed by the Fund to
such parties pursuant to paragraph 1 shall be 0.25% per annum of the
average daily net assets of the Fund.
3. The Adviser and the Distributor shall collect and monitor the
documentation of payments made under paragraph 1, and shall furnish
to the Board of Trustees of the Trust, for their review, on a
quarterly basis, a written report of the monies reimbursed to them
and others under the Plan as to the Fund, and shall furnish the
Board of
14
Trustees of the Trust with such information as the Board may
reasonably request in connection with the payments made under the
Plan as to the Fund in order to enable the Board to make an informed
determination of whether the Plan should be continued.
4. The Plan shall continue in effect for a period of more than one year
only so long as continuance is specifically approved at least
annually by the Trust's Board of Trustees, including the
non-interested trustees, cast in person at a meeting called for the
purpose of voting on the plan.
5. The Plan, or any agreements entered into pursuant to this Plan, may
be terminated at any time, without penalty, by vote of a majority of
the outstanding voting securities of the Trust, or by vote of a
majority of the non-interested Trustees, on not more than sixty (60)
days' written notice, and shall terminate automatically in the event
of any act that constitutes an assignment of the management
agreement between the Trust and the Manager.
6. The Plan and any agreements entered into pursuant to this Plan may
not be amended to increase materially the amount to be spent by the
Fund for distribution pursuant to Paragraph 1 hereof without
approval by a majority of the Fund's outstanding voting securities.
7. All material amendments to the Plan, or any agreements entered into
pursuant to the Plan, shall be approved by the non-interested
trustees cast in person at a meeting called for the purpose of
voting on any such amendment.
8. So long as the Plan is in effect, the selection and nomination of
the Trust's non-interested trustees shall be committed to the
discretion of such non-interested trustees.
9. This Plan shall take effect on the 18th day of December, 1998
15
SCHEDULE C
COMPENSATION OF THE DISTRIBUTOR
1. BASIC DISTRIBUTION SERVICES. For providing the distribution entity and
related infrastructure and platform, including requisite registrations and
qualifications, premises, personnel, compliance, ordinary fund board meeting
preparation, maintenance of selling agreements, clearance of advertising and
sales literature with regulators, filing appropriate documentation for advisory
representatives to qualify as registered representatives of the Distributor
(provided that the Adviser is solely responsible for its representatives'
meeting examination requirements) and their related registrations and fees,
ordinary supervisory services, overhead, Financial Research Corporation's Mutual
Fund Views on the News and Monitor publications, and return on investment, the
Distributor shall receive an annual fee of $24,000.00, billed in equal monthly
installments of $2,000.
2. SPECIAL CONDUIT SITUATIONS. If the Distribution Plan, or any other Fund plans
of distribution under Rule 12b-1 that contemplate up front and/or recurring
commission and/or service payments to broker dealers, retirement plan
administrators or others by the Distributor with respect to back-end loads,
level loads, or otherwise, unless expressly agreed otherwise in writing between
the parties, all such payments shall be made to the Distributor, which shall act
as a conduit for making such payments to such broker-dealers, retirement plan
administrators or others.
3. OTHER PAYMENTS BY THE DISTRIBUTOR. If the Distributor is required to make any
payments to third parties in respect of distribution, which payments are
contemplated by the parties to the Agreement or otherwise arise in the ordinary
course of business, the Distributor shall be promptly reimbursed for such
payments upon invoicing them.
4. FEE ADJUSTMENTS. The fixed fees and other fees expressed as stated dollar
amounts in this Schedule C and in this Agreement are subject to annual
increases, commencing on the one-year anniversary date of the date of this
Agreement, in an amount equal to the percentage increase in consumer prices for
services as measured by the United States Consumer Price Index entitled "All
Services Less Rent of Shelter," or a similar index mutually agreed to should
such index no longer be published, since such one-year anniversary or since the
date of the last fee increase, as applicable; but under no circumstances may an
annual increase exceed six percent (6%).
Expenses Applicable to Basic Distribution Services and Special Conduit
Situations:
Except as expressly set forth above, out of pocket expenses incurred by
Distributor in the performance of its services under this Agreement are not
included in the above fees. Such out-of-pocket expenses may include, without
limitation:
- reasonable travel and entertainment costs, if approved of by the Trust;
16
- expenses incurred by the Distributor in qualifying, registering and
maintaining the registration of the Distributor relating to specific
activities of the Trust under applicable federal and state laws and rules
of the NASD, e.g., CRD fees and state fees;
- upon approval of the Trust, any and all compensation to be paid to a third
party as paying agent for distribution activities (platform fees, finders
fees, sub-TA fees, 12b-1 pass thru, commissions, etc.);
- costs and expenses incurred for telephone service, photocopying and office
supplies;
- costs for printing, paper stock and costs of other materials, electronic
transmission, courier, design output, photostats, photography, and
illustrations;
- packaging, shipping, postage, and photocopies; and
- upon notification (oral discussion or submission of invoice) to the Trust,
any taxes that are paid or payable by the Distributor or its affiliates in
connection with its services hereunder, other than taxes customarily and
actually imposed upon the income that the Distributor receives hereunder.
17
