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Exhibit (e)(i)
THE ENTERPRISE GROUP OF FUNDS, INC.
DISTRIBUTOR'S AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTOR'S AGREEMENT (hereinafter, the
"Agreement") is made by and between THE ENTERPRISE GROUP OF FUNDS, INC. (the
"Fund") and ENTERPRISE FUND DISTRIBUTORS, INC. (the "Distributor").
WITNESSETH THAT:
1. APPOINTMENT OF FUND DISTRIBUTOR. The Fund hereby appoints
Distributor as the exclusive distributor to sell, as agent and not as principal,
shares of the $1.00 par value common stock of each class of the Portfolios of
the Fund (hereinafter called the "Shares") during the term of this Agreement.
Distributor hereby accepts such appointment and, during the continuance of this
Agreement, agrees to use its best efforts to increase the sale and distribution
of the Shares.
It is recognized that the terms of this Agreement may be varied by
amendment from time to time as to specific Portfolios of the Fund.
The appointment of Distributor and its acceptance shall not be deemed
to be a commitment by Distributor for the purchase of any specific number of
shares.
2. AGREEMENT TO SELL SHARES THROUGH DISTRIBUTOR. The Fund hereby agrees
to sell Shares through Distributor exclusively, at any time or from time to
time, on or after the effective date of this Agreement, upon the terms and
conditions below stated, provided at the time of any such sale there is a
Registration Statement in effect.
This Agreement to sell shall not apply to Shares issued or transferred
(a) in connection with the merger or consolidation of the Fund with any other
investment company or trust, or the acquisition of all or substantially all of
the assets or of the outstanding shares of any investment company or trust, or
(b) pursuant to an offer of exchange exempted under Section 22(d) of the
Investment Company Act of 1940 by reason of the fact that said offer is
permitted by Section 11 of the Act, or (c) upon the sale to a registered unit
investment trust which is the issuer of periodic payment plan certificates, the
net proceeds of which are invested in redeemable securities, or (d) in
connection with the pro rata distribution directly to holders of Shares in the
nature of a stock dividend or split-up, or (e) upon the exercise of any such
rights as the shareholders of the Fund may have to purchase Shares on a pro rata
basis, or (f) in connection with reinvestment of dividends and distributions by
shareholders, or (g) pursuant to sales exempted from Section 22 (d) of the
Investment Company Act of 1940 by rule or regulation of the Commission, except
as may otherwise be provided in the current Prospectus of the Fund, or (h) to
meet the requirements of similar programs using the shares of a foreign
investment company approved by the Fund and having the Shares as its investment
medium.
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3. SOLICITATION OF ORDERS. The Distributor is authorized, and shall use
its best efforts, to enter into agreements with broker-dealers and other
financial institutions (the "Retail Broker-Dealers") (which may include
affiliates of the Distributor) that are lawfully registered under federal law
and any applicable state law, providing for such Retail Broker-Dealers to obtain
from investors unconditional orders for Shares authorized for issue by the Fund.
The Distributor may, at its discretion refuse to accept orders for such Shares
from any applicant and may provide similar discretion to the Retail
Broker-Dealers.
A. DISTRIBUTOR NOT AGENT OF FUND IN RESPECT TO DEALERS
In making agreements with Retail Broker-Dealers or others, the
Distributor shall act only in its own behalf as principal and in no sense as
agent for the Fund and shall be agent for the Fund only in respect of sales and
repurchases of Shares.
B. TERMS
All Shares shall be sold for cash on delivery.
C. DELIVERY
The Fund agrees to instruct its transfer agent that, upon presentation
of a receipted statement evidencing that the Custodian has received payment
therefor for the Fund's account, the Custodian shall deliver to Distributor
certificates for Shares so paid for in definitive form registered in such names
and in such amounts as Distributor shall request in writing.
D. ADJUSTMENT FOR ERROR AND DELAY
The purchase price of any Shares sold by or repurchased by Distributor
under this Agreement will be subject to reasonable adjustment for clerical
errors, delays and errors of transmission, and cancellation of orders.
4. RESTRICTIONS ON RESALE BY DISTRIBUTOR. Distributor will, in
transactions with others than the Fund, sell Shares only at the then applicable
public offering price as set forth in the Fund's Prospectus (i.e. net asset
value plus any applicable sales charge). Shares so sold by Distributor to cover
telegraphic orders addressed to it at any of its offices may be sold at the
applicable price at the time of transmittal as indicated by the telegraphic time
stamp thereon, and Shares sold by it to cover other orders may be sold at the
applicable price at the time of receipt in any of its offices.
Distributor will not make any short sales of Shares.
5. IMPOSITION OF CONTINGENT DEFERRED SALES CHARGES. The Fund may impose
a Contingent Deferred Sales Charge ("CDSC") upon redemptions within a fixed
period of time of Shares sold hereunder which CDSC shall be paid to the
Distributor. Any such CDSC shall be the amount stated in the Fund's Prospectus.
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6. DISTRIBUTOR AS AGENT FOR REPURCHASE OF SHARES. During the term of
this Agreement, Distributor is authorized to act as Agent for the Fund to
repurchase Shares tendered to the Fund upon the terms and conditions of
repurchase set forth in the Prospectus. Unless and until Distributor is notified
of the suspension of the right of redemption in accordance with any rights so
reserved in the Prospectus, Distributor is authorized to repurchase Shares
tendered at the prices determined in the manner set forth in the Prospectus, and
all such repurchases of Shares by Distributor as Agent for the Fund prior to
receipt of such notice shall be honored by the Fund. Distributor will not as
such Agent repurchase any Shares after receipt from the Fund of written notice
that the right of redemption is suspended.
The Fund will pay or direct its Custodian to pay from the Fund's
account the repurchase price of any Shares repurchased by its Agent against
delivery of the certificates representing such Shares in proper form for
transfer to the Fund. Tenders by telegraph to any of Distributor's offices will
be deemed to have been made at the telegraphic time of transmittal stamped on
the telegram.
Distributor agrees to notify the Fund each day of the number of Shares
which it has repurchased as Agent and of the applicable price or prices at which
such repurchases were made, and to present the certificates for the said Shares
to the Custodian for payment as the same are received in proper form for
transfer to the Fund.
Distributor accepts its appointment as Agent to repurchase Shares and
agrees to act in such capacity without any compensations other than as provided
by other items of this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF THE FUND. The Fund represents and
warrants that:
(a) A Registration Statement with respect to the Shares has
been filed with the Commission and is effective under the Act.
(b) At the time of any sales of Shares by the Distributor on
behalf of the Fund hereunder, the Registration Statement then in effect
under the Act and Prospectus will fully comply with the provisions of
the Act and the Rules and Regulations of the Commission thereunder, and
neither the Registration Statement, the Prospectus nor the Statement of
Additional Information will contain any untrue statement of material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; providing
that the foregoing representation and warranty shall not apply to
statements or omissions in such Registration Statement. Prospectus or
Statement of Additional Information made in reliance upon and in
conformity with information furnished in writing to the Fund by the
Distributor.
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(c) The presently outstanding Shares of the Fund are validly
issued, fully paid and nonassessable Shares; and the Shares to be sold
hereunder, upon issue and receipt of considerations therefor, will be
validly issued, fully paid, and nonassessable Shares of the Fund.
(d) The Fund is a duly registered, open-end investment company
of the management type under the Investment Company Act of 1940; the issue and
sale of Shares to be sold hereunder, upon receipt of the consideration therefor,
will conform to the requirements of the Investment Company Act of 1940.
8. REPRESENTATIONS AND WARRANTIES OF THE DISTRIBUTOR. Distributor
hereby represents and warrants that it is a member of the National Association
of Securities Dealers, Inc. and it is registered as a broker-dealer under the
Securities Exchange Act of 1934 and that such membership and registration shall
be in effect at all times in which it is engaged in selling the Shares
hereunder.
9. INDEMNIFICATION BY FUND. The Fund agrees to indemnify, defend and
hold Distributor, its officers and directors, and any person who controls it,
within the meaning of Section 15 of the Act, free and harmless from and against
any and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities, and any counsel
fees incurred in connection therewith) which Distributor, its officers,
directors or any such controlling person may incur under the Act, or under
common law or otherwise, arising out of or based upon any untrue statement of
material fact contained in the Fund's Registration Statement, Prospectus or
Statement of Additional Information or arising out of or based upon any alleged
omission to state a material fact required to be stated in either thereof or
necessary to make the statements in either thereof not misleading, except
insofar as such claims, demands, liabilities or expenses arise out of or are
based upon any such untrue statement or omission or alleged untrue statement or
omission made in reliance and in conformity with information furnished in
writing by Distributor to the Fund for use in the Fund's Registration Statement,
Prospectus or Statement of Additional Information.
This Indemnity Agreement, to the extent that it might require indemnity
of any person who is also an officer or director of the Fund or who controls the
Fund within the meaning of Section 15 of the Act shall not inure to the benefit
of such officer, director or controlling person unless a court of competent
jurisdiction shall determine, or it shall have been determined by controlling
precedent, that such result would not be against public policy as expressed in
the Act.
In no event shall anything contained herein be so construed as to
protect the Distributor against any liability to the Fund or its security
holders to which Distributors 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 under this Agreement. The
Fund's agreement to indemnify Distributor, its officers and directors and any
such controlling person as aforesaid is conditioned upon the Fund being notified
within ninety days of any action brought against Distributor, its officers or
directors, or any such controlling person, such notification to be given by
letter or telegram addressed to the Fund as its principal business office.
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10. INDEMNIFICATION BY DISTRIBUTOR. Distributor agrees to indemnify,
defend and hold the Fund, its officers and directors and any person who controls
the Fund, if any, within the meaning of Section 15 of Act of 1933, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands, or
liabilities and any counsel fees incurred in connection therewith) which the
Fund, its directors or officers or any such controlling person may incur under
the Act or under common law or otherwise; but only to the extent that such
liability or expense incurred by the Fund, its directors or officers or any such
controlling person may incur under the Act or under common law or otherwise; but
only to the extent that such liability or expense incurred by the Fund, its
directors or officers, or such controlling person resulting from such claims or
demands shall arise out of or be based upon any alleged untrue statement of a
material fact contained in information furnished in writing by Distributor to
the Fund for use in the Fund's Registration Statement, Prospectus or Statement
of Additional Information or shall arise out of or be based upon any alleged
omissions to state a material fact in connection with such information required
to be stated in the Registration Statement, Prospectus or Statement of
Additional Information or necessary to make such information not misleading.
Distributor's agreement to indemnify the Fund, its directors and
officers, and any such controlling person as aforesaid is conditioned upon the
Distributor being notified within ninety days of any action brought against the
Fund, its officers or directors or any such controlling person, such
notification being given by letter or telegram addressed to Distributor at its
principal business office.
11. EXTENT AND EFFECTIVENESS OF INDEMNITY PROVISIONS, WARRANTIES AND
REPRESENTATIONS. The indemnity agreements, warranties and representations
contained in this Agreement shall remain operative and in full force and effect
regardless of: (a) any termination of this contract; (b) any investigation made
by or on behalf of either of the parties hereto or by any person controlling
either party; and (c) acceptance of and payment hereunder for any of the Shares.
The indemnity agreements, warranties and representations made in this
Agreement are made with the understanding that neither the individual members of
the Board of Directors or the individual officers or any of the individual
shareholders of either the Fund or Distributor shall be personally liable
thereunder.
Nothing contained in this Agreement shall be deemed to protect either
party from any liability to the other party or to protect the members of either
party's Board of Directors or officers or shareholders from any liability to
which such persons would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of duties or by reason of
reckless disregard of obligations and duties under this Agreement.
12. CERTAIN EXPENSE TO BE PAID BY DISTRIBUTOR. During the continuance
of this Agreement, Distributor will:
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(i) Select the States in which it desires the Shares to be
offered for sale and will undertake to qualify or maintain the
qualification thereof for lawful offering and sale therein under the
so-called "Blue Sky" Laws of such States respectively, except that fees
and charges (including legal fees) in connection therewith will be
borne by the Fund;
(ii) Prepare the sales literature and assist in the
preparation of prospectuses and registration statements pertinent to
any such offering or sale;
(iii) Bear the expenses occasioned by the printing and
distribution of such prospectuses (except for the expenses of
prospectuses required to be delivered to current Fund shareholders) and
the printing and distribution of such sales literature; and
(iv) Bear the expense of advertising the offering of the
Shares; and
(v) Make such other expenditures as it deems appropriate.
The Fund will cooperate with Distributor to the extent of supplying all
necessary documents, exhibits and information, and will execute and permit to be
filed with the proper public bodies, such applications, including amendments and
renewals thereof, instruments, papers and exhibits as may be appropriate to
enable the Shares to be offered for sale under the "Blue Sky" Laws of such
States as Distributor shall reasonably determine, and will cooperate with
Distributor and its counsel in the presentation of said applications (including
amendments and renewals thereof), to the end that the Shares may be qualified in
such States under the respective "Blue Sky" Laws thereof; provided that the Fund
shall not be required to amend its Articles of Incorporation or By-Laws to
comply with the laws of any State, to maintain an office in any State, to change
the terms of the offering of its capital stock in any State from the terms set
forth in its Registration Statement and Prospectus, to qualify as a foreign
corporation in any State or to consent to service of process in any State other
than with respect to claims arising out of the offering of its capital stock.
13. CERTAIN INFORMATION TO BE FURNISHED BY THE FUND. The Fund shall
furnish Distributor for its use in connection with the sale of the Fund shares
such information with respect to the Fund and its Shares as Distributor may
reasonably request.
Without limiting the generality of the foregoing, the Fund shall
furnish to Distributor the following information:
(a) The Fund will furnish the determinations of the net asset value of
the Portfolios of Fund Shares with such frequency and as of such times and will
cause the offering price to be effective for such periods as are set forth in
the Prospectus or Statement of Additional Information of the Fund. These
determinations shall be furnished as often as they are made, and the
computations underlying these determinations shall also be made available.
The Fund will advise Distributor immediately of:
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(i) Any request of the Commission for amendments to the
Registration Statement, Prospectus or Statement of Additional
Information; or for additional information;
(ii) Any stop order suspending the effectiveness of the
registration statement, prospectus or Statement of Additional
Information;
(iii) The happening of any event which makes untrue any
statement, or which requires the making of any change, in the
Registration Statement, Prospectus or Statement of Additional
Information in order to make the statements therein not misleading;
(iv) All action of the Commission with respect to any
amendments to the Registration Statement, Prospectus or Statement of
Additional Information which may from time to time be filed with the
Commission under the Act; and
(v) The commencement of any litigation or proceedings
against the Fund or any of its officers or directors in connection with
the issue and sale of any shares of its capital stock.
14. FUND'S RIGHT TO SUSPEND THE SALES OF SHARES. Anything to the
contrary in this Agreement notwithstanding, the Fund may suspend the offering
price currently in effect and may, without incurring any liability under any of
the provisions of this Agreement, decline to accept or confirm any orders for or
make any sales of any shares of the Fund's capital stock under this Agreement
until such time as it shall deem it advisable to accept and confirm such orders
and to make such sales, and, during any period during which the offering price
currently in effect shall be suspended or during which the Fund shall decline to
accept or confirm any such orders or make any such sales, the Fund shall be
under no obligation to confirm or accept any such orders or make any such sales
at any price.
15. REPORTS OF DISPOSITION OF MONIES. The Fund, and the Distributor to
the extent applicable, shall require any person authorized to direct the
disposition of monies paid or payable by the Fund pursuant to this Agreement or
any plans of distribution pursuant to Rule 12b-1 under the Investment Company
Act of 1940 to provide at least quarterly to the Board of Directors of the Fund
a written report of the amounts so expended and the purposes for which such
expenditures were made. The Board of Directors will review such reports
promptly, and at least quarterly.
16. TERMINATION. The Fund may terminate this Agreement at any time,
without the payment of any penalty, by vote of a majority of those directors of
the Fund who are not interested persons of the Fund and who have no direct or
indirect financial interest in this Agreement, or by vote of a majority of its
outstanding voting securities; and Distributor may terminate this Agreement by
sixty days written notice to the Fund at any time without the payment of any
penalty. This Agreement may be assigned by the Fund, but may not be assigned by
Distributor. This Agreement will immediately terminate in the event of its
assignment.
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17. TERM OF AGREEMENT. This Agreement shall not be effective unless it
has been approved by a vote of the Board of Directors of the Fund, including a
majority of those directors of the Fund who are not interested persons of the
Fund and who have no direct or indirect financial interest in this Agreement,
cast in person at a meeting called for the purpose of voting on such approval.
Subject to prior termination as provided above, this Agreement shall continue in
force for one (1) year from the date of its effectiveness and from year to year
thereafter, if its continuance after said date is specifically approved on or
before said date and at least annually thereafter by vote or the Board of
Directors of the Fund, including a majority of those directors who are not
parties to this Agreement or interested persons of any such party and who have
no direct or indirect financial interest in this Agreement, cast in person at
meeting called for the purpose of voting on such approval.
18. DEFINITIONS. The terms "assignment," "Commission," "interested
persons," and "vote of a majority of the outstanding voting securities", when
used herein, shall have the respective meanings specified in the federal
Investment Company Act of 1940 as now or hereunder in effect.
The term "Act" when used herein shall mean the Securities Act of 1933.
The term "Registration Statement" shall mean the Registration Statement
then in effect under the Act with respect to the Fund's Shares.
The term "Prospectus" shall mean the Prospectus then constituting a
part of the Registration Statement as well as any amendments and supplements to
the Prospectus then constituting a part of the Registration Statement.
19. MISCELLANEOUS. This Agreement shall be governed by the laws of
Georgia and shall be binding on the parties hereto, their successors and assigns
to the extent permitted by law.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
this 1st day of March, 1998.
THE ENTERPRISE GROUP OF FUNDS, INC.
By:/s/ XXXXXXXXX X. XXXXXXXXX
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Xxxxxxxxx X. XxXxxxxxx
Secretary
ENTERPRISE FUND DISTRIBUTORS, INC.
By:/s/ XXXXXXXXX X. XXXXXXXXX
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Xxxxxxxxx X. XxXxxxxxx
Senior Vice President and Secretary
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