EXHIBIT 23(e)(3)
SELECTED CAPITAL PRESERVATION TRUST
DISTRIBUTION SERVICES AGREEMENT AND PLAN OF DISTRIBUTION
DATED JANUARY 1, 2001
AS AMENDED JANUARY 30, 2004
AGREEMENT as of January 1, 2001, by and between SELECTED CAPITAL PRESERVATION
TRUST, an Ohio business trust (the "Trust"), and XXXXX DISTRIBUTORS, LLC, a
Delaware limited liability company ("Underwriter").
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 Underwriter to distribute shares of the Trust
(hereinafter called "shares") in jurisdictions wherein shares of the Trust
may legally be offered for sale; provided, however, that the Trust in its
absolute discretion may (a) issue or sell shares directly to holders of
shares of the Trust upon such terms and conditions and for such
consideration, if any, as it may determine, whether in connection with the
distribution of subscription or purchase rights, the payment or
reinvestment of dividends or distributions, or otherwise; (b) issue or sell
shares at net asset value to the shareholders of any other investment
company for which Underwriter shall act as exclusive distributor who wish
to exchange all or a portion of their investment in shares of such other
investment company for shares of the Trust; or (c) issue or sell shares at
net asset value in connection with the acquisition of part or all of the
assets or equity of any other business entity or as a party to a
reorganization, merger or consolidation.
Underwriter accepts such appointment hereunder and agrees during the term
hereof to render the services and to assume the obligations herein set
forth for the compensation herein provided. Underwriter will use its best
efforts with reasonable promptness to sell such part of the authorized
shares of the Trust remaining unissued as from time to time shall be
effectively registered under the Securities Act of 1933 ("Securities Act")
at prices determined as hereinafter provided and on terms hereinafter set
forth, all subject to applicable Federal and state laws and regulations and
to the Declaration of Trust of the Trust. The price the Trust shall receive
for all shares purchased from the Trust shall be the net asset value used
in determining the public offering price applicable to the sale of such
shares.
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Underwriter shall provide such office space and equipment, telephone
facilities, personnel, literature, distribution, advertising and promotion
as it deems necessary or beneficial for distributing shares of the Trust.
Underwriter may provide some or all of these services for the Trust
directly and may appoint broker-dealers and other financial services firms
("Firms") to provide such services for existing and potential clients of
the Firms.
This Agreement applies to the single currently authorized series of the
Trust ("Fund"). This Fund is the "Selected Daily Governmental Fund". Should
the Trust establish any additional series subsequent to the date hereof for
which the Trust wishes to appoint Underwriter to arrange for the sale of
the shares thereof under the terms of this Agreement, the Trust shall
provide Underwriter with written notice to such effect. If Underwriter is
willing to serve in such capacity, it shall provide the Trust with a
written notice to such effect whereupon the shares of such series, together
with the shares of the Fund named above, shall be included in the term
"shares" hereunder and such series, together with the Fund named above,
shall be included in the term "Funds" hereunder.
This Agreement applies to the two currently authorized Classes of Shares,
Class S shares and Class D shares ("Classes of shares"). Should the Trust
establish any additional Classes of shares subsequent to the date hereof
for which the Trust wishes to appoint Underwriter to arrange for the sale
of the shares thereof under the terms of this Agreement, the Trust shall
provide Underwriter with written notice to such effect. If Underwriter is
willing to serve in such capacity, it shall provide the Trust with a
written notice to such effect whereupon this agreement shall apply with
equal effect to the new Class of shares.
Underwriter shall for all purposes herein provided be deemed to be an
independent contractor and unless otherwise expressly provided or
authorized hereunder, shall have no authority to act for or represent the
Trust in any way or otherwise be deemed an agent of the Trust. The services
of Underwriter to the Trust under this Agreement are not to be deemed
exclusive and Underwriter shall be free to render similar services or other
services to others.
In carrying out its duties and responsibilities hereunder, Underwriter may,
pursuant to separate selling group agreements, appoint various Firms to
provide distribution services contemplated hereunder directly to or for the
benefit of existing and potential shareholders who may be clients of such
Firm. Underwriter, and not the Trust, will be responsible for the payment
of compensation to such Firms for such services.
2. Underwriter may sell shares of the Trust directly to investors. In
addition, Underwriter may sell shares of the Trust to or through qualified
Firms in such manner, not inconsistent with
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the provisions hereof and the then effective registration statement of the
Trust under the Securities Act (including the related prospectus and
statement of additional information, collectively referred to hereinafter
as the "registration statement"), as Underwriter may determine from time to
time, provided that no Firm or other person shall be appointed or
authorized to act as agent of the Trust without the prior consent of the
Trust.
Shares of the Trust offered for sale or sold by Underwriter shall be
offered or sold at a price per share determined in accordance with the then
current prospectus relating to the sale of such shares except as departure
from such prices shall be permitted by the rules and regulations of the
Securities and Exchange Commission; provided, however, that any public
offering price for shares of the Trust shall be the net asset value per
share. The net asset value per share of each Fund of the Trust shall be
determined in the manner and at the times set forth in the then current
prospectus of the Trust relating to such shares.
Underwriter will conform and will require each Firm to conform to the
provisions hereof and the registration statement at the time in effect
under the Securities Act with respect to the public offering price, manner
of sales and payment terms of the Trust's shares, and neither Underwriter
nor any such Firms shall withhold the placing of purchase orders so as to
make a profit thereby.
3. The Trust will use its best efforts to keep effectively registered under
the Securities Act for sale as herein contemplated such shares as
Underwriter shall reasonably request and as the Securities and Exchange
Commission shall permit to be so registered. Notwithstanding any other
provision hereof, the Trust may terminate, suspend or withdraw the offering
of shares whenever, in its sole discretion, it deems such action to be
desirable.
4. The Trust will execute any and all documents and furnish any and all
information that may be reasonably necessary in connection with the
qualification of its shares for sale (including the qualification of the
Trust as a dealer where necessary or advisable) in such states or other
jurisdictions as Underwriter may reasonably request (it being understood
that the Trust shall not be required without its consent to comply with any
requirement that in its opinion is unduly burdensome). The Trust will
furnish to Underwriter from time to time such information with respect to
the Trust and its shares as the Underwriter may reasonably request for use
in connection with the sale of shares of the Trust.
5. Underwriter shall issue and deliver or shall arrange for various Firms to
issue and deliver on behalf of the Trust such confirmations of sales made
by it as agent pursuant to this agreement as may be required. At or prior
to the time of issuance of shares, Underwriter will pay or cause to be paid
to the Trust the amount due the Trust for the sale of such
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shares. Certificates shall be issued for shares or registered on the
transfer books of the Trust in such names and denominations as Underwriter
may specify.
6. Underwriter shall order shares of the Trust from the Trust only to the
extent that it shall have received purchase orders therefor. Underwriter
will not make or authorize any Firms or others to make any short sales of
shares of the Trust. Underwriter, as agent of and for the account of the
Trust, may repurchase the shares of the Trust at such prices and upon such
terms and conditions as shall be specified in the current prospectus of the
Trust. In selling or reacquiring shares of the Trust for the account of the
Trust, Underwriter will in all respects conform to the requirements of all
state and Federal laws and the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. relating to such sale or
reacquisition, as the case may be, and will indemnify and hold harmless the
Trust from any damage or expense on account of any wrongful act by
Underwriter or any employee, representative or agent of Underwriter.
Underwriter will observe and be bound by all the provisions of the
Declaration of Trust of the Trust (and of any fundamental policies adopted
by the Trust pursuant to the Investment Company Act of 1940, notice of
which shall have been given to Underwriter) that at the time in any way
require, limit, restrict or prohibit or otherwise regulate any action on
the part of Underwriter.
7. The Trust shall assume and pay all charges and expenses of its operations
not specifically assumed or otherwise to be provided by Underwriter under
this Agreement. The Trust will pay or cause to be paid expenses (including
the fees and disbursements of its own counsel) and all taxes and fees
payable to the Federal, state or other governmental agencies on account of
the registration or qualification of securities issued by the Trust or
otherwise. The Trust will also pay or cause to he paid expenses incident to
the issuance of shares of beneficial interest, such as the cost of share
certificates, issue taxes, and fees of the transfer agent. Underwriter will
pay all expenses (other than expenses that one or more Firms may bear
pursuant to any agreement with Underwriter) incident to the sale and
distribution of the shares issued or sold hereunder including, without
limiting the generality of the foregoing, all expenses of printing and
distributing any prospectus and of preparing, printing and distributing or
disseminating any other literature, advertising and selling aids in
connection with the offering of the shares for sale (except that such
expenses shall not include expenses incurred by the Trust in connection
with the preparation, typesetting, printing and distribution of any
registration statement, prospectus or report or other communication to
shareholders in their capacity as such), expenses of advertising in
connection with such offering, compensation to Firms referred to in Section
1 hereof and sales compensation to Underwriter's registered
representatives.
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8. For the services and facilities described herein, the Trust will pay to
Underwriter at the end of each calendar month a distribution services fee
computed at an annual rate of 0.25% of the average daily net assets of each
Fund. The fees shall be charged to each Fund of the Trust subject to this
agreement based upon the average daily net assets of such Fund and at the
annual rate provided above. For the month and year in which this Agreement
terminates, there shall be appropriate proration on the basis of the number
of days that the Agreement is in effect during the month and year,
respectively.
9. This Agreement incorporates the plan of the Trust pursuant to Rule 12b-1
under the Investment Company Act of 1940 and such plan shall be continued,
amended and terminated in accordance with the Rule.
10. Underwriter is authorized under the Plan of Distribution to utilize monies
from any source whatsoever to finance its activities hereunder. To the
extent any management fees paid by the Trust may be considered to be
indirectly financing any activity or expense that is primarily intended to
result in the sale of shares within the meaning of Rule 12b-1, the payment
of such fees is authorized.
11. At least quarterly, Underwriter shall prepare reports for the Board of
Trustees of the Trust showing amounts expended by Underwriter hereunder and
the purposes therefor and such other information as from time to time shall
be reasonably requested by the Board of Trustees.
12. This Agreement shall become effective on the date hereof and shall continue
through January 1, 2002 and shall continue as to a Fund thereafter, so long
as such continuance is specifically approved for such Fund at least
annually by a vote of the Board of Trustees of the Trust including the
trustees who are not interested persons of the Trust and who have no direct
or indirect financial interest in this Agreement or in any agreement
related to this Agreement.
To the extent this Agreement incorporates the Rule 12b-1 Distribution Plan,
this Agreement may not be amended to increase the amount to be paid to
Underwriter for services hereunder without the vote of a majority of the
outstanding voting securities of each Fund of the Trust, and all material
amendments to this Agreement must in any event be approved by a vote of the
Board of Trustees of the Trust including the trustees who are not
interested persons of the Trust and who have no direct or indirect
financial interest in this Agreement or in any agreement related to this
Agreement, cast in person at a meeting called for such purpose.
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This Agreement shall automatically terminate in the event of its assignment
and may be terminated at any time without the payment of any penalty by the
Trust or by Underwriter on sixty (60) days written notice to the other
party. The Trust may effect termination with respect to any Fund by a vote
of (i) a majority of the Board of Trustees, (ii) a majority of the trustees
who are not interested persons of the Trust and who have no direct or
indirect financial interest in this Agreement or in any agreement related
to this Agreement, or (iii) a majority of the outstanding voting securities
of the Fund. Notwithstanding the foregoing, termination of this Agreement
shall not terminate the Distribution Plan incorporated herein (including
authorized payment of fees to an underwriter) unless the Board of Trustees
shall have determined that such plan is terminated.
The terms "assignment," "interested persons" and "vote of a majority of the
outstanding voting securities" shall have the meanings set forth in the
Investment Company Act of 1940 and the rules and regulations thereunder.
Upon termination (including non-continuance) of this Agreement, the
obligation of the Trust to make payments to the Underwriter shall cease,
except that such termination shall not affect the right of Underwriter to
receive payments on any unpaid balance of the compensation described in
Section 8 earned prior to such termination.
13. Underwriter will not use or distribute or authorize the use, distribution
or dissemination by Firms or others in connection with the sale of shares,
any statements, other than those contained in the Trust's current
prospectus, except such supplemental literature or advertising as shall be
lawful under Federal and state securities laws and regulations, and will
furnish the Trust with copies of all such material.
14. If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder shall not be thereby
affected.
15. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as
such other party may designate for the receipt of such notice.
16. All parties hereto are expressly put on notice of the Trust's Declaration
of Trust and all amendments thereto, all of which are on file with the
Secretary of State of Ohio, and the limitation of shareholder and trustee
liability contained therein. This Agreement has been executed by and on
behalf of the Trust by its representatives as such representatives and not
individually, and the obligations of the Trust hereunder are not binding
upon any of the trustees, officers or shareholders of the Trust
individually but are binding upon only the
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assets and property of the Trust. With respect to any claim by Underwriter
for recovery of that portion of the fees (or any other liability of the
Trust arising hereunder) allocated hereunder to a particular Fund whether
in accordance with the express terms hereof or otherwise. Underwriter shall
have recourse solely against the assets of that Fund to satisfy such claim
and shall have no recourse against the assets of any other Fund for such
purpose.
17. The Underwriter acknowledges that the use of the term "Selected" in its
name is with the acquiescence of the Trust and is subject to revocation at
any time by the Board of Trustees or by a majority of the trustees who are
not interested persons of the Trust.
18. This Agreement shall be construed in accordance with applicable Federal law
and (except as to Section 16 hereof that shall be construed in accordance
with the laws of the State of Ohio) the laws of the State of New Mexico.
IN WITNESS WHEREOF, the Fund and Underwriter have caused this Agreement to be
executed as of the day and year first above written.
SELECTED CAPITAL PRESERVATION TRUST
By: _____________________________________
Xxxxxx Xxxx, Vice President
XXXXX DISTRIBUTORS, LLC
By:______________________________________
Xxxxxx Xxxx, Vice President
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