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EXHIBIT (6)
DISTRIBUTION AGREEMENT
CONESTOGA FAMILY OF FUNDS
THIS AGREEMENT is made as of this 1st day of May, 1995, between
Conestoga Family of Funds (the "Trust"), a Massachusetts business trust and SEI
Financial Services Company (the "Distributor"), a Pennsylvania corporation.
WHEREAS, the Trust is registered as an investment company with the
Securities and Exchange Commission ("SEC") under the Investment Company Act of
1940, as amended ("1940 Act"), and its Shares are registered with the SEC under
the Securities Act of 1933, as amended ("1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Trust and Distributor hereby agree as follows:
ARTICLE 1. Sale of Shares. The Trust grants to the Distributor the
exclusive right to sell Shares of the Trust at the offering price per Share in
accordance with the current prospectus, as agent and on behalf of the Trust,
during the term of this Agreement and subject to the registration requirements
of the 1933 Act, the rules and regulations of the SEC and the laws governing
the sale of securities in the various states ("Blue Sky Laws").
ARTICLE 2. Solicitation of Sales. In consideration of these rights
granted to the Distributor, the Distributor agrees to use all reasonable
efforts, consistent with its other business, in connection with the
distribution of Shares of the Trust and to maintain appropriate facilities to
receive purchase, redemption, and exchange orders for Shares; provided,
however, that the Distributor shall not be prevented from entering into like
arrangements with other issuers. The provisions of this paragraph do not
obligate the Distributor to register as a broker or dealer under the Blue Sky
Laws of any jurisdiction when it determines it would be uneconomical for it to
do so or to maintain its registration in any jurisdiction in which it is now
registered nor obligate the Distributor to sell any particular number of
Shares. The Distributor shall act as distributor of the Shares in compliance
with all applicable laws, rules and regulations, including, without limitation,
all rules and regulations made or adopted pursuant to the 1940 Act, by the
Securities and Exchange Commission or any securities association registered
under the Securities Exchange Act of 1934, as amended.
ARTICLE 3. Authorized Representations. The Distributor is not
authorized by the Trust to give any information or to make any representations
other than those contained in the current registration statements and
prospectuses of the Trust filed with the SEC or contained in Shareholder
reports or other material that may be prepared by or on behalf of the Trust for
the Distributor's use. The Distributor may prepare and distribute sales
literature and other material as it may deem appropriate, provided that such
literature and materials have been approved by the Trust prior to their use.
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ARTICLE 4. Registration of Shares. The Trust agrees that it will
take all action necessary to register Shares under the federal and state
securities laws so that there will be available for sale the number of Shares
the Distributor may reasonably be expected to sell and to pay all fees
associated with said registration. The Trust shall make available to the
Distributor such number of copies of its currently effective prospectus and
statement of additional information as the Distributor may reasonably request.
The Trust shall furnish to the Distributor copies of all information, financial
statements and other papers which the Distributor may reasonably request for
use in connection with the distribution of Shares of the Trust.
ARTICLE 5. Compensation.
(a) The Distributor does not receive compensation or reimbursement
for services performed and expenses assumed in the distribution of
Institutional Shares of the Trust.
(b) For the services performed and the expenses assumed under this
Agreement as to Retail Shares of the Trust or any other class of Shares
subsequently created by the Trust:
(1) the Distributor will be compensated as set forth
in any applicable Distribution and Services Plan adopted in
accordance with Rule 12b-1 under the Investment Company Act of
1940, as such Plans may be amended from time to time, and
subject to any further limitations on such fees as the Board
of Trustees of the Trust may impose;
(2) the Distributor will receive all contingent
deferred sales charges applied on redemptions of shares of
any class that are subject to a conditional deferred sales
on the terms and subject to such waivers as are described
in the Trust's Registration Statement and current
prospectuses, as amended from time to time, or as otherwise
required pursuant to applicable law; and
(3) the Distributor will receive all front-end sales
charges, if any, on purchases of any class of shares of each
Portfolio sold subject to such charges as described in the
Trust's Registration Statement and current prospectuses, as
amended from time to time. The Distributor, or brokers,
dealers and other financial institutions and intermediaries
that have entered into sub-distribution agreements with the
Distributor, may collect the gross proceeds derived from the
sale of such shares, remit the net asset value thereof to the
Trust upon receipt of the proceeds and retain the applicable
sales charge.
(c) The Distributor may reallow any or all of the distribution or
service fees, contingent deferred sales charges and front-end sales
charges to such brokers, dealers and other financial institutions and
intermediaries as the Distributor may from time to time determine.
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ARTICLE 6. Indemnification of Distributor. The Trust agrees to
indemnify and hold harmless the Distributor and each of its directors and
officers and each person, if any, who controls the Distributor within the
meaning of Section 15 of the 1933 Act against any loss, liability, claim,
damages or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damages, or expense and reasonable counsel
fees and disbursements incurred in connection therewith), arising by reason of
any person acquiring any Shares, based upon the ground that the registration
statement, prospectus, Shareholder reports or other information filed or made
public by the Trust (as from time to time amended) included an untrue statement
of a material fact or omitted to state a material fact required to be stated or
necessary in order to make the statements made not misleading. However, the
Trust does not agree to indemnify the Distributor or hold it harmless to the
extent that the statements or omission was made in reliance upon, and in
conformity with, information furnished to the Trust by or on behalf of the
Distributor.
In no case (i) is the indemnity of the Trust to be deemed to protect
the Distributor against any liability to the Trust or its Shareholders to which
the Distributor or such person otherwise would be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Trust to be liable to the Distributor under the
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor or any person indemnified unless the Distributor or
other person shall have notified the Trust in writing of the claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Distributor or such other person (or after the Distributor or the person shall
have received notice of service on any designated agent). However, failure to
notify the Trust of any claim shall not relieve the Trust from any liability
which it may have to the Distributor or any person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph.
The Trust shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the Trust elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Trust and satisfactory to the indemnified defendants in the suit
whose approval shall not be unreasonably withheld. In the event that the Trust
elects to assume the defense of any suit and retain counsel, the indemnified
defendants shall bear the fees and expenses of any additional counsel retained
by them. If the Trust does not elect to assume the defense of a suit, it will
reimburse the indemnified defendants for the reasonable fees and expenses of
any counsel retained by the indemnified defendants.
The Trust agrees to notify the Distributor promptly of the
commencement of any litigation or proceedings against it or any of its officers
or Trustees in connection with the issuance or sale of any of its Shares.
ARTICLE 7. Indemnification of Trust. The Distributor covenants and
agrees that it will indemnify and hold harmless the Trust and each of its
Trustees and officers and each person, if
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any, who controls the Trust within the meaning of Section 15 of the Act,
against any loss, liability, damages, claim or expense (including the
reasonable cost of investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees incurred in connection
therewith) based upon the 1933 Act or any other statute or common law and
arising by reason of any person acquiring any Shares, and alleging a wrongful
act of the Distributor or any of its employees or alleging that the
registration statement, prospectus, Shareholder reports or other information
filed or made public by the Trust (as from time to time amended) included an
untrue statement of a material fact or omitted to state a material fact
required to be stated or necessary in order to make the statements not
misleading, insofar as the statement or omission was made in reliance upon and
in conformity with information furnished to the Trust by or on behalf of the
Distributor.
In no case (i) is the indemnity of the Distributor in favor of the
Trust or any other person indemnified to be deemed to protect the Trust or any
other person against any liability to which the Trust or such other person
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Trust or any person
indemnified unless the Trust or person, as the case may be, shall have notified
the Distributor in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Trust or upon any person (or after
the Trust or such person shall have received notice of service on any
designated agent). However, failure to notify the Distributor of any claim
shall not relieve the Distributor from any liability which it may have to the
Trust or any person against whom the action is brought otherwise than on
account of its indemnity agreement contained in this paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense or, if it so elects, to assume the defense of any suit brought
to enforce the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor and
satisfactory to the indemnified defendants whose approval shall not be
unreasonably withheld. In the event that the Distributor elects to assume the
defense of any suit and retain counsel, the defendants in the suit shall bear
the fees and expenses of any additional counsel retained by them. If the
Distributor does not elect to assume the defense of any suit, it will reimburse
the indemnified defendants in the suit for the reasonable fees and expenses of
any counsel retained by them.
The Distributor agrees to notify the Trust promptly of the
commencement of any litigation or proceedings against it in connection with the
issue and sale of any of the Trusts' Shares.
ARTICLE 8. Effective Date. This Agreement shall be effective upon
its execution, and unless terminated as provided, shall continue in force for
one year from the effective date and thereafter from year to year, provided
that such annual continuance is approved by (i) either the vote of a majority
of the Trustees of the Trust, or the vote of a majority of the outstanding
voting securities of the Trust, and (ii) the vote of a majority of those
Trustees of the Trust who are not
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parties to this Agreement or the Trust's Distribution Plan or interested
persons of any such party ("Qualified Trustees"), cast in person at a meeting
called for the purpose of voting on the approval. This Agreement shall
automatically terminate in the event of its assignment. As used in this
paragraph the terms "vote of a majority of the outstanding voting securities",
"assignment" and "interested person" shall have the respective meanings
specified in the 1940 Act. In addition, this Agreement may at any time be
terminated without penalty by SFS, by a vote of a majority of Qualified
Trustees or by vote of a majority of the outstanding voting securities of the
Trust upon not less than sixty days prior written notice to the other party.
ARTICLE 9. Notices. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the party
giving notice: if to the Trust, to Xxxxxx X. Xxxxxx, 0000 Xxxxx Xxxxx,
Xxxxxxx, XX 00000, with a copy to Meridian Investment Company, 00 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, XX 00000, Attention, President and if to the Distributor, 000
Xxxx Xxxxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 00000.
ARTICLE 10. Limitation of Liability. The names "Conestoga Family of
Funds" and "Trustees of Conestoga Family of Funds" refer respectively to the
Trust created and the Trustees, as trustees but not individually or personally,
acting from time to time under a Declaration of Trust dated August 1, 1989
which is hereby referred to and a copy of which is on file at the office of the
State Secretary of the Commonwealth of Massachusetts and at the principal
office of the Trust. The obligations of "Conestoga Family of Funds" entered
into in the name or on behalf thereof by any of the Trustees, represenatives or
agents are made not individually, but in such capacities, and are not binding
upon any of the Trustees, Shareholders, represenatives of the Trust personally,
but bind only the Trust Property, and all persons dealing with any class of
shares of the Trust must look solely to the Trust Property belonging to such
class for the enforcement of any claims against the Trust.
ARTICLE 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the Commonwealth of Massachusetts and the
applicable provisions of the 1940 Act. To the extent that the applicable laws
of the Commonwealth of Massachusetts, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the latter shall control.
ARTICLE 12. Multiple Originals. This Agreement may be executed in
two or more counterparts, each of which when so executed shall be deemed to be
an original, but such counterparts shall together constitute but one and the
same instrument.
IN WITNESS, the Trust and Distributor have each duly executed this
Agreement, as of the day and year above written.
CONESTOGA FAMILY OF FUNDS SEI FINANCIAL SERVICES COMPANY
By: [SIG] By: [SIG]
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Vice President
Attest: [SIG] Attest: [SIG]
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