EXHIBIT 23(E)(I) UNDER FORM N-1A
EXHIBIT 1(E) UNDER ITEM 601/REG. S-K
DISTRIBUTOR'S CONTRACT
This contract is made as of this 23rd day of June, 2006, by and between
EDGEWOOD SERVICES, INC. ("Edgewood"), a New York corporation, and THE HUNTINGTON
FUNDS, a Delaware statutory trust having its principal office and place of
business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000-0000. ("Investment
Company").
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 with respect to Edgewood's duties and
responsibilities under this Contract, except for the limited circumstance
to allow Edgewood to delegate to a financial institution the right to
receive share orders in proper form from its customers on the Investment
Company's behalf for purposes of Rule 22c-1 under the Investment Company
Act of 1940 ("1940 Act") and related interpretive guidance and
regulations, provided that the financial institution and Edgewood agree
in writing that (a) on each day the Funds are open for trading, in order
for the financial institution's customers to receive that day's NAV, the
financial institution must receive its customers' orders prior to the
time the Funds calculate their NAV as disclosed in their prospectuses
(the "Cut-Off Time"), and must communicate to the Funds' transfer agent a
report of the trading activity of its customers in the Funds for that day
by 9:00 a.m. EST on the next day the Funds are open for business; and (b)
the financial institution represents and warrants to Edgewood that the
financial institution has, and will maintain at all times during the term
of the written agreement with Edgewood, appropriate internal controls for
the segregation of purchase and redemption orders received prior to the
Cut-Off Time, from purchase and redemption orders received after the Cut-
Off Time on any day the Funds are open for trading. 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 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 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 0000 Xxx) 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 and Section 20 of the Securities and Exchange
Act of 1934 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. Anything in this paragraph to the contrary
notwithstanding, 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 Securities Act of 1933
and Section 20 of the Securities and Exchange Act of 1934, 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. Anything in this paragraph to the contrary
notwithstanding, 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 Agreement and 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: /s/ Xxxxxxx X. Xxxxx. Jr.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: President
THE HUNTINGTON FUNDS
By: /s/ B. Xxxxxxxx Xxxxxxx
Name: B. Xxxxxxxx Xxxxxxx
Title: President
