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EXHIBIT 6(i)
DISTRIBUTION AGREEMENT
AGREEMENT made this 1st day of December, 1995, between Fountain Square
Funds (the "Trust"), having its principal place of business at 00 Xxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, and BISYS Fund Services Limited
Partnership d/b/a BISYS Fund Services ("Distributor"), having its principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust is an open-end management investment company,
organized as a Massachusetts business trust and registered with the Securities
and Exchange Commission (the "Commission") under the Investment Company Act of
1940 (the "1940 Act"); and
WHEREAS, it is intended that Distributor act as the distributor of the
units of beneficial interest ("Shares") of each of the investment portfolios of
the Trust identified in Schedule A hereto as such Schedule may be amended from
time to time (such portfolios being referred to individually 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 for the distribution of the
Shares covered by the registration statement and prospectus of the Trust then
in effect under the Securities Act of 1933, as amended (the "Securities Act").
As used in this Agreement, the term "registration statement" shall mean Parts A
(the prospectus), B (the Statement of Additional Information) and C of each
registration statement that is filed on Form N-1A, or any successor thereto,
with the Commission, together with any amendments thereto. The term
"prospectus" shall mean each form of prospectus and Statement of Additional
Information used by the Funds 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 Distributor agrees to use appropriate efforts to solicit
orders for the sale of the Shares and will undertake such advertising and
promotion as it believes reasonable in connection with such solicitation. The
Trust understands that Distributor is now and may in the future be the
distributor of the shares of several investment companies or series (together,
"Companies") including Companies having investment objectives similar to those
of the Trust. The Trust further understands that investors and potential
investors in the Trust may invest in shares of such other Companies. The Trust
agrees that Distributor's duties to such Companies shall not be deemed in
conflict with its duties to the Trust under this paragraph 1.2.
Distributor shall, at its own expense, finance appropriate activities
which it deems reasonable which are primarily intended to result in the sale of
the Shares, including, but not limited to, advertising, compensation of
underwriters, dealers and sales personnel, the printing
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EXHIBIT 6(i)
and mailing of prospectuses to other than current Shareholders, and the
printing and mailing of sales literature.
1.3 In its capacity as distributor of the Shares, all activities
of Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, each state as required, all rules and regulations promulgated by the
Commission thereunder and all rules and regulations adopted by any securities
association registered under the Securities Exchange Act of 1934.
1.4 Distributor will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to the Trust.
1.5 Distributor will transmit any orders when received by it for
purchase or redemption of the Shares to the transfer agent and custodian for
the Funds.
1.6 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind, the Trust's officers may 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.
1.7 Distributor will act only on its own behalf as principal if it
chooses to enter into selling agreements with selected dealers or others.
1.8 The Trust agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the qualification
of the Shares for sale in such states as Distributor may designate.
1.9 The Trust shall furnish from time to time, for use in
connection with the sale of the Shares, such 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 information shall fairly
show or represent what they purport to show or represent. The Trust shall also
furnish Distributor upon request with: (a) unaudited semi-annual financial
statements 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 information regarding
the financial condition of the Funds as Distributor may reasonably request.
1.10 The Trust represents to Distributor that, with respect to the
Shares, all current and existing registration statements and prospectuses filed
by the Trust with the Commission under the Securities Act have been carefully
prepared in conformity with requirements of said Act and rules and regulations
of the Commission thereunder. The registration statement and prospectus
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EXHIBIT 6(i)
contain all statements required to be stated therein in conformity with said
Act and the rules and regulations of said Commission and all statements of fact
contained in any such registration statement and prospectus are true and
correct. 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 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,
in the light of future developments, may, in the opinion of the Trust's
counsel, be necessary or advisable. If the Trust shall not provide such
amendment or amendments and/or supplement or supplements within fifteen days
after receipt by the Trust following a written request from Distributor to do
so, Distributor may, at its option, terminate this Agreement. The Trust shall
not file any amendment to any registration statement or supplement to any
prospectus without giving Distributor reasonable notice thereof in advance;
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.
1.11 The Trust authorizes Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of the Shares. The Trust agrees to indemnify, defend and hold Distributor, its
several partners and employees, and any person who controls Distributor within
the meaning of Section 15 of the Securities Act free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
cost of investing or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which Distributor, its partners
and employees, or any such controlling person, may incur under the Securities
Act or under common law or otherwise, arising out of or based upon any untrue
statement, or alleged untrue statement, of a material fact contained in any
registration statement or any prospectus or arising out of or based upon any
omission, or alleged omission, to state a material fact required to be stated
in either any registration statement or any prospectus or necessary to make the
statements in either thereof not misleading. Provided, however, that the
Trust's agreement to indemnify Distributor, its partners or employees, and any
such controlling person shall not be deemed to cover any claims, demands,
liabilities or expenses arising out of any statements or representations as are
contained in any prospectus and in such financial and other statements as are
furnished in writing to the Trust by Distributor and used in the answers to the
registration statement or in the corresponding statements made in the
prospectus, or arising out of or based upon any omission or alleged omission to
state a material fact in connection with the giving of such information
required to be stated in such answers or necessary to make the answers not
misleading; and further provided that the Trust's agreement to indemnify
Distributor and the Trust's representations and warranties hereinbefore set
forth in paragraph 1.10 shall not be deemed to cover any liability to the Trust
or its Shareholders to which Distributor would otherwise be subject by reason
of willful misfeasance, bad faith or negligence in the performance of its
duties, or by reason of
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EXHIBIT 6(i)
Distributor's reckless disregard of its obligations and duties under this
Agreement. The Trust's agreement to indemnify Distributor, its partners and
employees and any such controlling person, as aforesaid, is expressly
conditioned upon the Trust being notified of any action brought against
Distributor, its partners or employees, or any such controlling person, such
notification to be given by letter or by telegram addressed to the Trust at its
principal office in Columbus, Ohio and sent to the Trust by the person against
whom such action is brought, within 10 days after the summons or other first
legal process shall have been served. The failure to so notify the Trust of any
such action shall not relieve the Trust from any liability which the Trust may
have to the person against whom such action is brought by reason of any such
untrue, or allegedly untrue, statement or omission, or alleged omission.
otherwise than on account of the Trust's indemnity agreement contained in this
paragraph 1.11. The Trust will be entitled to assume the defense of any suit
brought to enforce any such claim, demand or liability, but, in such case, such
defense shall be conducted by counsel of good standing chosen by the Trust and
approved by Distributor, which approval shall not be unreasonably withheld. In
the event the Trust elects to assume the defense of any such suit and retain
counsel of good standing approved by Distributor, the defendant or defendants
in such suit shall bear the fees and expenses of any additional counsel
retained by any of them; but in case the Trust does not elect to assume the
defense of any such suit, or in case Distributor reasonably does not approve of
counsel chosen by the Trust, the Trust will reimburse Distributor, its partners
and employees, or the controlling person or persons named as defendant or
defendants in such suit, for the fees and expenses of any counsel retained by
Distributor or them. The Trust's indemnification agreement contained in this
paragraph 1.11 and the Trust's representations and warranties in this Agreement
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of Distributor, its partners and employees,
of any controlling person, and shall survive the delivery of any Shares.
This Agreement of indemnity will inure exclusively to Distributor's
benefit, to the benefit of its several partners and employees, and their
respective estates, and to the benefit of the controlling persons And their
successors. The Trust agrees promptly to notify Distributor of the commencement
of any litigation or proceedings against the Trust or any of its officers or
Trustees in connection with the issue and sale of any Shares.
1.12 Distributor agrees to indemnify, defend and hold the Trust, its
several officers and Trustees and any person who controls the Trust within the
meaning, of Section 15 of the Securities Act free and harmless from and against
any and all claims, demands, liabilities and expenses (including the costs of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which the Trust, its officers or
Trustees or any such controlling person may incur under the Securities Act or
under common law or otherwise, but only to the extent that such liability or
expense incurred by the Trust, its officers or Trustees or such controlling
person resulting from such claims or demands, shall arise out of or be based
upon any untrue, or alleged untrue, statement of a material fact contained in
information furnished in writing by Distributor to the Trust and used in the
answers to any of
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EXHIBIT 6(i)
the items of the registration statement or in the corresponding statements made
in the prospectus, or shall out of or be based upon any omission, or alleged
omission, to state a material fact in connection with such information
furnished in writing, by Distributor to the Trust required lo be stated in such
answers or necessary to make such information not misleading. Distributor's
agreement to indemnify the Trust, its officers and Trustees, and any such
controlling person, as aforesaid, is expressly conditioned upon Distributor
being notified of any action brought against the Trust, its officers or
Trustees, or any such controlling person, such notification to be given by
letter or telegram addressed to Distributor at its principal office in
Columbus, Ohio, and sent to Distributor by the person against whom such action
is brought, within 10 days after the summons or other first legal process shall
have been served. Distributor shall have the right of first control of the
defense of such action, with counsel of its own choosing, satisfactory to the
Trust, if such action is based solely upon such alleged misstatement or
omission on Distributor's part, and in any other event the Trust, its officers
or Trustees or such controlling person shall each have the right to participate
in the defense or preparation of the defense of any such action. The failure to
so notify Distributor of any such action shall not relieve Distributor from any
liability which Distributor may have to the Trust, its officers or Trustees, or
to such controlling person by reason of any such untrue or alleged untrue
statement, or omission or alleged omission, otherwise than on account of
Distributor's indemnity agreement contained in this paragraph 1.12.
1.13 No Shares shall be offered by either Distributor or the Trust
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Trust 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 nothing contained in this paragraph 1.13 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, Agreement and Declaration of Trust, or Bylaws.
1.14 The Trust agrees to advise Distributor as soon as reasonably
practical by a notice in writing delivered to Distributor or its counsel:
(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 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
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EXHIBIT 6(i)
the making of a change in such registration statement or
prospectus in order to make the statements therein not
misleading; and
(d) of all 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.
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.
1.15 Distributor agrees on behalf of itself and its partners and
employees to treat confidentially and as proprietary information of the Trust
all records and other information relative to the Trust and its prior, present
or potential Shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except, after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where
Distributor may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
1.16 This Agreement shall be governed by the laws of the State of
Ohio.
2. Representations
---------------
2.1 The Distributor hereby represents that it is a member in good
standing of the National Association of Securities Dealers, Inc. and that it
is a broker-dealer properly registered and qualified under all applicable
federal, state and local laws to engage in the business and transactions
described in this Agreement. The Distributor further represents that, neither
it nor any of its partners, officers or employees is ineligible to serve as a
principal underwriter, trustee, officer or employee of a registered investment
company by virtue of his or her status as a person described in Section 9 of
the 1940 Act.
3. Fee
---
3.1 The Distributor shall receive from the Funds identified on
Schedule B hereto (the "Distribution Plan Funds") a distribution fee at the
rate and upon the terms and conditions set forth in the Trust's Rule 12b-1 Plan
as amended from time to time. The distribution fee shall be accrued daily and
shall be paid on the first business day of each month, or at such time(s) as
the Distributor shall reasonably request.
4. Sale and Payment.
----------------
Pursuant to the Agreement and Declaration of Trust dated September 15,
1988, each
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EXHIBIT 6(i)
Fund may be divided into separate classes of Shares in which case the Shares of
one or more classes may be subject to a sales load and may be subject to the
imposition of a distribution fee pursuant to the Distribution and Shareholder
Services Plan referred to above. To the extent that shares of a Fund are sold
at an offering price which includes a sales load or that Shares of one or more
classes of a Fund are sold at such an offering price, such Shares shall
hereinafter be referred to collectively as "Loan Shares" and individually as a
"Load Share." A Fund that contains Load Shares shall hereinafter be referred to
collectively as "Load Funds" and individually as a "Load Fund." Under this
Agreement, the following provisions shall apply with respect to the sale of,
and payment for, Load Shares of the Load Funds identified in Schedule C
attached hereto.
4.1 Distributor shall have the right to purchase Load Shares at
their net asset value and to sell such Load Shares to the public against orders
therefor at the applicable public offering price, as defined in Section 5
hereof Distributor shall also have the right to sell Load Shares to dealers
against orders therefor at the public offing price less a concession determined
by Distributor, which concession shall not exceed the amount of the sales
charge or underwriting discount, if any, referred to in Section 5 below.
4.2 Prior to the time of delivery of any Load Shares by a Load
Fund to, or on the order of, the Distributor, the Distributor shall pay or
cause to be paid to the Load Fund or to its order an amount in Boston or New
York clearing house funds, (or in federal finds in those instances in which the
Distributor has received federal funds) equal to the applicable net asset value
of such Shares. The Distributor may retain so much of any sales charge or
underwriting discount as is not allowed by the Distributor as a concession to
dealers.
5. Public Offering Price.
----------------------
The public offering price of a Load Share, plus any applicable sales
charge, all as set forth in the current prospectus of the Load Fund. The net
asset value of Shares shall be determined in accordance with the provisions of
the Agreement and Declaration of Trust and Bylaws of Load Fund.
6. Issuance of Shares.
------------------
The Trust reserves the right to issue, transfer or sell Load Shares at
net asset value (a) in connection with the merger or consolidation of the Trust
or the Load Fund(s) with any other investment company or the acquisition by the
Trust or the Load Fund(s) of all or substantially all of the assets or of the
outstanding Shares of any other investment company; (b) in connection with a
pro rata distribution directly to the holders of Shares in the nature of a
stock dividend or split; (c) upon the exercise of subscription rights granted
to the holders of Shares on a pro rata basis; (d) in connection with the
issuance of Load Shares pursuant to any exchange and reinvestment privileges
described in any then current prospectus of the
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EXHIBIT 6(i)
Load Fund; and (3) otherwise in accordance with any then current prospectus of
the Load Fund.
7. Term, Duration and Termination.
------------------------------
This Agreement shall become effective with respect to each Fund listed
on Schedule A hereof as of the date first written above (or, if a particular
Fund is not in existence on such date, on the date an amendment to Schedule A
to this Agreement relating to that Fund is executed) and, unless sooner
terminated as provided herein, shall continue until December 1, 1997.
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 the members of the Trust's Board of Trustees who are not parties to
this Agreement or interested person for the purpose of voting on such approval
and (b) by the vote of a majority of the outstanding voting securities of such
Fund. This Agreement is terminable without penalty, on not more than
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 meanings as ascribed to such terms in the 1940 Act.)
8. Limitation of Liability of the Trustees and Shareholders.
---------------------------------------------------------
The names "Fountain Square Funds" and "Trustees of "Fountain Square
Funds" refer respectively to the Trust created and the Trustees, as trustees
but not individually or personally, acting from time to time under the
Agreement and Declaration of Trust dated September 15, 1988 to which reference
is hereby made and a copy of which is on file at the office of the Secretary of
State of the Commonwealth of Massachusetts and elsewhere as required by law,
and to any and all amendments thereto so filed or hereafter filed. The
obligations of "Fountain Square Funds" entered into in the name or on behalf
thereof by any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, Shareholders or representatives of the Trust personally, but bind
only the assets of the Trust, and all persons dealing with any series of Shares
of the Trust must look solely to the assets of the Trust belonging to such
series for the enforcement of any claims against the Trust.
IN WITNESS WHEREFORE, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first
written above.
FOUNTAIN SQUARE FUNDS BISYS FUND SERVICES
LIMITED PARTNERSHIP
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EXHIBIT 6(i)
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------- ----------------------------
Print Name: Xxxxxx X. Xxxxxxxx Print Name: Xxxxxxx X. Xxxxxx
------------------------- ----------------------------
Title: Vice President Name: Executive Vice President
------------------------- ----------------------------
Date: December 1, 1995 Date: December 1, 1995
------------------------- ----------------------------
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EXHIBIT 6(i)
SCHEDULE A
TO THE
DISTRIBUTION AGREEMENT
BETWEEN FOUNTAIN SQUARE FUNDS AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
Name of Fund
Fountain Square Government Cash Reserves Fund
Fountain Square Commercial Paper Fund
Fountain Square U.S. Treasury Obligations Fund
Fountain Square U.S. Government Securities Fund
Fountain Square Quality Bond Fund
Fountain Square Ohio Tax-Free Bond Fund
Fountain Square Quality Growth Fund
Fountain Square Mid Cap Fund
Fountain Square Balanced Fund
Fountain Square International Equity Fund
FOUNTAIN SQUARE FUNDS
BY: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Vice President
----------------------------------
BISYS FUND SERVICES
LIMITED PARTNERSHIP
By: BISYS Fund Services, inc.
General Partner
BY: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Print Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President
----------------------------------
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EXHIBIT 6(i)
SCHEDULE B TO THE
DISTRIBUTION AGREEMENT
BETWEEN FOUNTAIN SQUARE FUNDS AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
Name of Distribution Plan Fund
Fountain Square Government Cash Reserves Fund
Fountain Square Commercial Paper Fund
Fountain Square U.S. Treasury Obligations Fund
Fountain Square U.S. Government Securities Fund
Fountain Square Quality Bond Fund
Fountain Square Ohio Tax-Free Bond Fund
Fountain Square Quality Growth Fund
Fountain Square Mid Cap Fund
Fountain Square Balanced Fund
Fountain Square International Equity Fund
FOUNTAIN SQUARE FUNDS
BY: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Vice President
----------------------------------
BISYS FUND SERVICES
LIMITED PARTNERSHIP
By: BISYS Fund Services, inc.
General Partner
BY: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Print Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President
----------------------------------
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EXHIBIT 6(i)
SCHEDULE C
TO THE
DISTRIBUTION AGREEMENT
BETWEEN FOUNTAIN SQUARE FUNDS AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
Name of Load Fund
-----------------
Fountain Square Government Cash Reserves Fund
Fountain Square Quality Bond Fund
Fountain Square Ohio Tax-Free Bond Fund
Fountain Square Quality Growth Fund
Fountain Square Mid Cap Fund
Fountain Square Balanced Fund
Fountain Square International Equity Fund
FOUNTAIN SQUARE FUNDS
BY: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Vice President
----------------------------------
BISYS FUND SERVICES
LIMITED PARTNERSHIP
By: BISYS Fund Services, inc.
General Partner
BY: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Print Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President
----------------------------------
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