Hibernia Funds Distributor's Contract
Exhibit e(vii) under Form N-1A
Exhibit 1 under Item 601/Reg. S-K
DISTRIBUTOR'S CONTRACT
This contract is made this 30th day of December, 2002, by and between
Edgewood Services, Inc. ("Edgewood"), a New York corporation, and Hibernia Funds
("Investment Company"), a Massachusetts business trust having its principal
office and place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000.
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The 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 the 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 the Investment Company it is in its
best interest to do so.
3. Neither Edgewood nor any other person is authorized by the
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, 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 entirely without liability on the part of
the Investment Company. No person or dealer, other than Edgewood,
is authorized to act as agent for the Investment Company for any
purpose. Edgewood agrees that in offering or selling Shares as
agent of the 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
Investment Company copies of all sales literature before using the
same and will not use such sales literature if disapproved 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 seven months 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 Investment Company including a majority of the members of
the Board of Trustees of the 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 Trustees") cast in
person at a meeting called for that purpose. If a Fund or Class
is added after the first annual approval by the 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 annual approval of this
Agreement by the Trustees and thereafter for successive periods of
one year, subject to approval as described above.
5. This Agreement may be terminated with regard to a particular Fund
or Class at any time, without the payment of any penalty, by the
vote of a majority of the Independent Trustees or by a majority of
the outstanding voting securities of the particular Fund or Class
on not more than sixty (60) days' written notice to any other
party to this Agreement. This Agreement may be terminated with
regard to a particular Fund or Class by Edgewood on sixty (60)
days' written notice to the 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. Edgewood shall not be liable to the Investment Company 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 Investment Company, including a
majority of the Independent Trustees of the 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 Commonwealth of Pennsylvania.
10.(a) Subject to the conditions set forth below, the 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
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 (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,
unless such statement or omission was made in reliance upon
and in conformity with written information furnished to the
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 Edgewood or any controlling
person thereof with respect to which indemnity may be sought
against the 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 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 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, the Investment
Company shall not be liable for any settlement of any such
claim of action effected without its written consent. The
Investment Company agrees promptly to notify Edgewood of the
commencement of any litigation or proceedings against the
Investment Company 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, 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 the Investment Company, each of its
Trustees, each of its officers who have signed the Registration
Statement and each other person, if any, who controls the
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 (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 the 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 the 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 expenses. The 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 written
consent. Edgewood agrees promptly to notify the 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 the Investment Company 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 1940 Act for Trustees, officers,
Edgewood and controlling persons of the Investment Company by
the Trustees pursuant to this Agreement, the 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, the 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 Trustees, or
(ii) by independent legal counsel in a written opinion that the
indemnitee was not liable for an act of willful misfeasance,
bad faith, gross negligence or reckless disregard of duties.
The 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 officer,
Trustees, Edgewood or controlling person of the 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) the Investment Company is
insured against losses arising by reason of any lawful
advances; or (iii) a majority of a quorum of non-party
Independent 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 is hereby expressly put on notice of the limitation of
liability as set forth in the Investment Company's Declaration of
Trust and agrees that the obligations assumed by the Investment
Company pursuant to this Agreement shall be limited in any case to
the Investment Company and its assets, and Edgewood shall not seek
satisfaction of any such obligation from the shareholders of the
Investment Company, the Trustees, officers, employees or agents of
the Investment Company, or any of them.
14. Edgewood or its affiliate will review and file all sales
literature (advertisements, brochures and shareholder
communications) for the Investment Company in accordance with
rules and regulations of the National Association of Securities
Dealers, Inc.
15. Edgewood agrees to maintain the security and confidentiality of
nonpublic personal information ("NPI") of Fund 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; for
specified law enforcement and miscellaneous purposes; and to
service providers or in connection with joint marketing
arrangements directed by the Funds, in each instance in
furtherance of fulfilling Edgewood's obligations under this
contract and consistent with the exceptions provided in 17 CFR
Sections 248.14, 248.15 and 248.13, respectively.
EDGEWOOD SERVICES, INC.
By:
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
HIBERNIA FUNDS
By:
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Exhibit A
to the
Distributor's Contract
HIBERNIA FUNDS
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FUNDS CLASS
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Hibernia Capital Appreciation Fund Class A Shares
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Hibernia Cash Reserves Fund Class A Shares
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Hibernia Louisiana Municipal Income Fund Class A Shares
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Hibernia Mid-Cap Equity Fund Class A Shares
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Hibernia Total Return Fund
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Hibernia U.S. Government Income Fund
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Hibernia U.S. Treasury Money Market Fund
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The following provisions are hereby incorporated and made part of
the Distributor's Contract dated December 30, 2002, between Hibernia
Funds ("Investment Company") and Edgewood Services, Inc. ("Edgewood")
with respect to the Class of shares set forth above.
1. The Investment Company 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 Investment Company.
2. During the term of this Agreement, the Investment Company will
pay Edgewood for services pursuant to this Agreement, a monthly
fee computed at the annual rate of 0.25% of the average aggregate
net asset value of 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 Investment Company, voluntarily declare to be
effective.
4. Edgewood will enter into separate written agreements with various
Financial Institutions to provide certain of the services set
forth in Paragraph 1 herein. Edgewood, in its sole discretion,
may pay Financial Institutions a periodic fee in respect of
Shares owned from time to time by their clients or customers.
The schedules of such fees and the basis upon which such fees
will be paid shall be determined from time to time by Edgewood in
its sole discretion.
5. Edgewood will prepare reports to the Board of Trustees of the
Investment Company on a quarterly basis showing amounts expended
hereunder including amounts paid to Financial Institutions and
the purpose for such expenditures.
In consideration of the mutual covenants set forth in the
Distributor's Contract dated December 10, 2002, between the Investment
Company and Edgewood, the Investment Company executes and delivers this
Exhibit on behalf of the Funds, and with respect to the Share Classes
thereof, first set forth in this Exhibit.
Witness the due execution hereof this 30h day of December, 2002
HIBERNIA FUNDS EDGEWOOD SERVICES, INC.
By: By:
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President Title: Vice President
Exhibit B
to the
Distributor's Contract
HIBERNIA FUNDS
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FUNDS CLASS
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Hibernia Capital Appreciation Fund Class B Shares
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Hibernia Cash Reserves Fund Class B Shares
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Hibernia Louisiana Municipal Income Fund Class B Shares
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Hibernia Mid-Cap Equity Fund Class B Shares
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Hibernia U.S. Treasury Money Market Fund
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The following provisions are hereby incorporated and made part of
the Distributor's Contract dated December 30, 2002, between Hibernia
Funds ("Investment Company") and Edgewood Services, Inc. ("Edgewood")
with respect to the Class of shares set forth above.
1. The Investment Company 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 Investment Company.
2. During the term of this Agreement, the Investment Company will
pay Edgewood for services pursuant to this Agreement, a monthly
fee computed at the annual rate of 0.75% of the average aggregate
net asset value of 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 Investment Company, voluntarily declare to be
effective.
4. Edgewood will enter into separate written agreements with various
Financial Institutions to provide certain of the services set
forth in Paragraph 1 herein. Edgewood, in its sole discretion,
may pay Financial Institutions a periodic fee in respect of
Shares owned from time to time by their clients or customers.
The schedules of such fees and the basis upon which such fees
will be paid shall be determined from time to time by Edgewood in
its sole discretion.
5. Edgewood will prepare reports to the Board of Trustees of the
Investment Company on a quarterly basis showing amounts expended
hereunder including amounts paid to Financial Institutions and
the purpose for such expenditures.
In consideration of the mutual covenants set forth in the
Distributor's Contract dated December 10, 2002, between the Investment
Company and Edgewood, the Investment Company executes and delivers this
Exhibit on behalf of the Funds, and with respect to the Share Classes
thereof, first set forth in this Exhibit.
Witness the due execution hereof this 30th day of December, 2002
HIBERNIA FUNDS EDGEWOOD SERVICES, INC.
By: By:
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President Title: Vice President
