Exhibit 6(i) under Form N-1A
Exhibit 1 under Item 601/Reg. S-K
FundManager Trust
DISTRIBUTOR'S CONTRACT
AGREEMENT made this 11th day of November, 1996, by and between
FUNDMANAGER TRUST (the "Trust"), a Delaware business trust, and
EDGEWOOD SERVICES, INC. (`Edgewood''), a New York corporation.
In consideration of the mutual covenants hereinafter contained, it
is hereby agreed by and between the parties hereto as follows:
1. The Trust hereby appoints Edgewood as its agent to sell and
distribute shares of the Trust which may be offered in one or more
series (the "Trusts") consisting of one or more classes (the
"Classes") of shares (the "Shares"), as described and set forth on
one or more exhibits to this Agreement, at the current offering
price thereof as described and set forth in the current Prospectuses
of the Trust. Edgewood hereby accepts such appointment and agrees
to provide such other services for the Trust, if any, and accept
such compensation from the Trust, if any, as set forth in the
applicable exhibits to this Agreement.
2. The sale of any Shares may be suspended without prior notice
whenever in the judgment of the Trust it is in its best interest to
do so.
3. Neither Edgewood nor any other person is authorized by the Trust to
give any information or to make any representation relative to any
Shares other than those contained in the Registration Statement,
Prospectuses, or Statements of Additional Information ("SAIs") filed
with the Securities and Exchange Commission, as the same may be
amended from time to time, or in any supplemental information to
said Prospectuses or SAIs approved by the Trust. Edgewood agrees
that any other information or representations other than those
specified above which it or any dealer or other person who purchases
Shares through Edgewood may make in connection with the offer or
sale of Shares, shall be made entirely without liability on the part
of the Trust. No person or dealer, other than Edgewood, Freedom
Distributors Corporation, Xxxxxx Xxxxxxx Incorporated, and Sutro &
Co. Incorporated, is authorized to act as agent for the Trust for
any purpose. Edgewood agrees that in offering or selling Shares as
agent of the Trust, it will, in all respects, duly conform to all
applicable state and federal laws and the rules and regulations of
the National Association of Securities Dealers, Inc., including its
Rules of Fair Practice. Edgewood will submit to the Trust copies of
all sales literature before using the same and will not use such
sales literature if disapproved by the Trust.
4. This Agreement is effective with respect to each Class as of the
date of execution of the applicable exhibit and shall continue in
effect with respect to each Class presently set forth on an exhibit
and any subsequent Classes added pursuant to an exhibit during the
initial term of this Agreement for one year from the date set forth
above, and thereafter for successive periods of one year if such
continuance is approved at least annually by the Trustees of the
Trust, including a majority of the members of the Board of Trustees
of the Trust who are not interested persons of the Trust and have no
direct or indirect financial interest in the operation of any
Distribution Plan relating to the Trust or in any related documents
to such Plan ("Disinterested Trustees"), cast in person at a meeting
called for that purpose. If a Class is added after the first annual
approval by the Trustees as described above, this Agreement will be
effective as to that Class upon execution of the applicable exhibit
and will continue in effect until the next annual approval of this
Agreement by the Trustees and thereafter for successive periods of
one year, subject to approval as described above.
5. This Agreement may be terminated with regard to a particular Trust
or Class at any time, without the payment of any penalty, by the
vote of a majority of the Disinterested Trustees or by a majority of
the outstanding voting securities of the particular Trust or Class
on not more than sixty (60) days' written notice to any other party
to this Agreement. This Agreement may be terminated with regard to a
particular Trust or Class by Edgewood on sixty (60) days' written
notice to the Trust.
6. This Agreement may not be assigned by Edgewood and shall
automatically terminate in the event of an assignment by Edgewood as
defined in the Investment Company Act of 1940, as amended, provided,
however, that Edgewood may employ such other person, persons,
corporation or corporations as it shall determine in order to assist
it in carrying out its duties under this Agreement.
7. Edgewood shall not be liable to the Trust for anything done or
omitted by it, except acts or omissions involving willful
misfeasance, bad faith, gross negligence, or reckless disregard of
the duties imposed by this Agreement.
8. This Agreement may be amended at any time by mutual agreement in
writing of all the parties hereto, provided that such amendment is
approved by the Trustees of the Trust, including a majority of the
Disinterested Trustees of the Trust, cast in person at a meeting
called for that purpose.
9. This Agreement shall be construed in accordance with and governed by
the laws of the Commonwealth of Pennsylvania.
10. (a) Subject to the conditions set forth below, the Trust agrees to
indemnify and hold harmless Edgewood and each person, if any,
who controls Edgewood within the meaning of Section 15 of the
Securities Act of 1933 and Section 20 of the Securities Act of
1934, as amended, against any and all loss, liability, claim,
damage and expense whatsoever (including but not limited to any
and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever) arising out
of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, any Prospectuses or SAIs (as from time to time
amended and supplemented) or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, unless
such statement or omission was made in reliance upon and in
conformity with written information furnished to the Trust
about Edgewood by or on behalf of Edgewood expressly for use in
the Registration Statement, any Prospectuses and SAIs or any
amendment or supplement thereof.
If any action is brought against Edgewood or any controlling
person thereof with respect to which indemnity may be sought
against the Trust pursuant to the foregoing paragraph, Edgewood
shall promptly notify the Trust in writing of the institution
of such action and the Trust shall assume the defense of such
action, including the employment of counsel selected by the
Trust and payment of expenses. Edgewood or any such controlling
person thereof shall have the right to employ separate counsel
in any such case, but the fees and expenses of such counsel
shall be at the expense of Edgewood or such controlling person
unless the employment of such counsel shall have been
authorized in writing by the Trust in connection with the
defense of such action or the Trust shall not have employed
counsel to have charge of the defense of such action, in any of
which events such fees and expenses shall be borne by the
Trust. Anything in this paragraph to the contrary
notwithstanding, the Trust shall not be liable for any
settlement of any such claim of action effected without its
written consent. The Trust agrees promptly to notify Edgewood
of the commencement of any litigation or proceedings against
the Trust or any of its officers or Trustees or controlling
persons in connection with the issue and sale of Shares or in
connection with the Registration Statement, Prospectuses, or
SAIs.
(b) Edgewood agrees to indemnify and hold harmless the Trust, each
of its Directors, each of its officers who have signed the
Registration Statement and each other person, if any, who
controls the Trust within the meaning of Section 15 of the
Securities Act of 1933, but only with respect to statements or
omissions, if any, made in the Registration Statement or any
Prospectus, SAI, or any amendment or supplement thereof in
reliance upon, and in conformity with, information furnished to
the Trust about Edgewood by or on behalf of Edgewood expressly
for use in the Registration Statement or any Prospectus, SAI,
or any amendment or supplement thereof. In case any action
shall be brought against the Trust or any other person so
indemnified based on the Registration Statement or any
Prospectus, SAI, or any amendment or supplement thereof, and
with respect to which indemnity may be sought against Edgewood,
Edgewood shall have the rights and duties given to the Trust,
and the Trust and each other person so indemnified shall have
the rights and duties given to Edgewood by the provisions of
subsection (a) above.
(c) Nothing herein contained shall be deemed to protect any person
against liability to the Trust or its shareholders to which
such person would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance
of the duties of such person or by reason of the reckless
disregard by such person of the obligations and duties of such
person under this Agreement.
(d) Insofar as indemnification for liabilities may be permitted
pursuant to Section 17 of the Investment Company Act of 1940,
as amended, for Directors, officers, Edgewood and controlling
persons of the Trust by the Trustees pursuant to this
Agreement, the Trust is aware of the position of the Securities
and Exchange Commission as set forth in the Investment Company
Act Release No. IC-11330. Therefore, the Trust undertakes that
in addition to complying with the applicable provisions of this
Agreement, in the absence of a final decision on the merits by
a court or other body before which the proceeding was brought,
that an indemnification payment will not be made unless in the
absence of such a decision, a reasonable determination based
upon factual review has been made (i) by a majority vote of a
quorum of non-party Disinterested Directors, or (ii) by
independent legal counsel in a written opinion that the
indemnitee was not liable for an act of willful misfeasance,
bad faith, gross negligence or reckless disregard of duties.
The Trust further undertakes that advancement of expenses
incurred in the defense of a proceeding (upon undertaking for
repayment unless it is ultimately determined that
indemnification is appropriate) against an officer, Directors,
Edgewood or controlling person of the Trust will not be made
absent the fulfillment of at least one of the following
conditions: (i) the indemnitee provides security for his
undertaking; (ii) the Trust is insured against losses arising
by reason of any lawful advances; or (iii) a majority of a
quorum of non-party Disinterested Trustees or independent legal
counsel in a written opinion makes a factual determination that
there is reason to believe the indemnitee will be entitled to
indemnification.
11. Edgewood is hereby expressly put on notice of the limitation of
liability as set forth in the Trust's Declaration of Trust and
agrees that the obligations assumed by the Trust pursuant to this
Agreement shall be limited in any case to the Trust and its assets
and Edgewood shall not seek satisfaction of any such obligation from
the shareholders of the Trust, the Trustees, officers, employees or
agents of the Trust, or any of them.
12. If at any time the Shares of any Trust are offered in two or more
Classes, Edgewood agrees to assist in adopting a written plan
pursuant to Rule 18f-3 under the Investment Company Act of 1940.
13. This Agreement will become binding on the parties hereto upon the
execution of the attached exhibits to the Agreement.
Exhibit A
to the
Distributor's Contract
FUNDMANAGER TRUST
AGGRESSIVE GROWTH PORTFOLIO
Financial Adviser Class
No-Load Class
GROWTH & INCOME PORTFOLIO
Financial Adviser Class
No-Load Class
GROWTH PORTFOLIO
Financial Adviser Class
No-Load Class
BOND PORTFOLIO
Financial Adviser Class
No-Load Class
MANAGED TOTAL RETURN PORTFOLIO
Financial Adviser Class
The following provisions are hereby incorporated and made part of the
Distributor's Contract dated November 11, 1996, between FundManager Trust
and Edgewood Services, Inc. (`Edgewood''), with respect to the Class of
shares set forth above.
1. The Trust hereby appoints Edgewood to engage in activities
principally intended to result in the sale of shares of the above-
listed Class ("Shares"). Pursuant to this appointment, Edgewood is
authorized to select a group of financial institutions ("Financial
Institutions") to sell Shares at the current offering price thereof
as described and set forth in the respective prospectuses of the
Trust.
2. During the term of this Agreement, the Trust may pay Edgewood for
services pursuant to this Agreement, a monthly fee under the Trust's
Rule 12b-1 Plan computed at the annual rate of the average aggregate
net asset value of the Shares held during the month. For the month
in which this Agreement becomes effective or terminates, there shall
be an appropriate proration of any fee payable on the basis of the
number of days that the Agreement is in effect during the month.
3. Edgewood may from time-to-time and for such periods as it deems
appropriate reduce its compensation to the extent any Class'
expenses exceed such lower expense limitation as Edgewood may, by
notice to the Trust, voluntarily declare to be effective.
4. Edgewood or its affiliate will prepare reports to the Board of
Trustees of the Trust on a quarterly basis showing amounts expended
hereunder including amounts paid to Financial Institutions and the
purpose for such expenditures.
5. Edgewood or its affiliate will review and file all sales literature
(advertisements, brochures and shareholder communications) for the
Trust in accordance with rules and regulations of the National
Association of Securities Dealers, Inc.
In consideration of the mutual covenants set forth in the
Distributor's Contract dated November , 1996 between FundManager Trust
and Edgewood, FundManager Trust executes and delivers this Exhibit on
behalf of the Aggressive Growth Portfolio, Growth & Income Portfolio,
Growth Portfolio, Bond Portfolio, Managed Total Return Portfolio, thereof,
first set forth in this Exhibit.
Witness the due execution hereof this 11th day of November, 1996.
ATTEST: FUNDMANAGER TRUST
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
Assistant Secretary President
(SEAL)
ATTEST: EDGEWOOD SERVICES, INC.
/S/ S. Xxxxxxx Xxxxx By: /s/R. Xxxxxxx Xxxx
S. Xxxxxxx Xxxxx R. Xxxxxxx Xxxx
Secretary SeniorVice President
(SEAL)
