DISTRIBUTION AGREEMENT
AGREEMENT made as of [ ], 2004 between THE ALLIANCEBERNSTEIN POOLING
PORTFOLIOS, a Massachusetts business trust (the "Trust"), on behalf of each of
its portfolio series (each, a "Fund"), and ALLIANCEBERNSTEIN INVESTMENT RESEARCH
AND MANAGEMENT, INC., a Delaware corporation (the "Underwriter").
WITNESSETH
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), as an open-end management investment
company and it is in the interest of the Trust to offer its shares for sale
continuously;
WHEREAS, the Underwriter is a securities firm engaged in the business of
selling shares of investment companies either directly to purchasers or through
other securities dealers;
WHEREAS, the Trust and the Underwriter wish to enter into an agreement
with each other with respect to the continuous offering of the Trust's shares in
order to promote the growth of the Trust and facilitate the distribution of its
shares;
NOW, THEREFORE, the parties agree as follows:
SECTION 1. Appointment of Underwriter. The Trust hereby appoints the
Underwriter as the principal underwriter and distributor of the Trust to sell
the public its shares of beneficial interest (the "shares") and hereby agrees
during the term of this Agreement to sell shares to the Underwriter upon the
terms and conditions set forth herein.
SECTION 2. Exclusive Nature of Duties. The Underwriter shall be the
exclusive representative of the Trust to act as principal underwriter and
distributor except that the rights given under this Agreement to the Underwriter
shall not apply to shares issued in connection with (a) the merger or
consolidation of any other investment company with a Fund, (b) a Fund's
acquisition by purchase or otherwise of all or substantially all of the assets
or shares of any other investment company or (c) the reinvestment in shares by a
Fund's shareholders of dividends or other distributions.
SECTION 3. Purchase of Shares from the Trust.
(a) The Underwriter shall have the right to buy from the Trust the shares
needed to fill unconditional orders for shares of the Trust placed with the
Underwriter by investors or securities dealers, depository institutions or other
financial intermediaries acting as agent for their customers. The price which
the Underwriter shall pay for the shares so purchased from the Trust shall be
the net asset value, determined as set forth in Section 3(d) hereof, used in
determining the public offering price on which such orders are based.
(b) The shares are to be resold by the Underwriter to investors at the net
asset value thereof, determined as set forth in Section 3(d) hereof.
1
(c) Reserved.
(d) The net asset value of shares of the Trust shall be determined by the
Trust, or any agent of the Trust, as of the close of regular trading on the New
York Stock Exchange on each business day in accordance with the method set forth
in the Prospectus and Statement of Additional Information of the Trust (the
"Prospectus" and "Statement of Additional Information," respectively) under the
Securities Act of 1933, as amended (the "Securities Act"), and guidelines
established by the Trustees of the Trust.
(e) The Trust reserves the right to suspend the offering of its shares at
any time in the absolute discretion of its Trustees.
(f) The Trust, or any agent of the Trust designated in writing to the
Underwriter by the Trust, shall be promptly advised by the Underwriter of all
purchase orders for shares received by the Underwriter. Any order may be
rejected by the Trust. The Trust (or its agent) will confirm orders upon their
receipt, will make appropriate book entries and upon receipt by the Trust (or
its agent) of payment thereof, will deliver deposit receipts or certificates for
such shares pursuant to the instructions of the Underwriter. Payment shall be
made to the Trust in New York Clearing House funds. The Underwriter agrees to
cause such payment and such instructions to be delivered promptly to the Trust
(or its agent).
SECTION 4. Repurchase or Redemption of Shares by the Trust.
(a) Any of the outstanding shares may be tendered for redemption at any
time, and the Trust agrees to redeem or repurchase the shares so tendered in
accordance with its obligations as set forth in Section 2 of Article VI of its
Agreement and Declaration of Trust and in accordance with the applicable
provisions set forth in the Prospectus and Statement of Additional Information.
The price to be paid to redeem or repurchase the shares shall be equal to the
net asset value calculated in accordance with the provisions of Section 3(d)
hereof. All payments by the Trust hereunder shall be made in the manner set
forth below.
(b) The Trust (or its agent) shall pay the total amount of the redemption
price pursuant to the instructions of the Underwriter in New York Clearing House
funds on or before the seventh business day subsequent to its having received
the notice of redemption in proper form.
(c) Redemption of shares of a Fund or payment by a Fund may be suspended
at times when the New York Stock Exchange is closed, when trading thereon is
closed, when trading thereon is restricted, when an emergency exists as a result
of which disposal by such Fund of securities owned by it is not reasonably
practicable or it is not reasonably practicable for the Trust fairly to
determine the value of such Fund's net assets or during any other period when
the Securities and Exchange Commission, by order, so permits.
SECTION 5. Distribution Services Fees and Service Fees. The Trust shall
pay the Underwriter no fees of any kind for its services hereunder. The Trust
understands and agrees, however, that the Underwriter and its affiliates may
receive compensation from third parties in connection with the Underwriter's
services hereunder.
2
SECTION 6. Duties of the Trust.
(a) The Trust shall furnish to the Underwriter copies of all information,
financial statements and other papers that the Underwriter may reasonably
request for use in connection with the distribution of shares of the Trust, and
this shall include one certified copy, upon request by the Underwriter, of all
financial statements prepared for the Trust by independent public accountants.
The Trust shall make available to the Underwriter such number of copies of the
Prospectus as the Underwriter shall reasonably request.
(b) The Trust shall register the shares under the Securities Act, to the
end that there will be available for sale such number of shares of each Fund as
the Underwriter reasonably may be expected to sell.
(c) The Trust shall use its best efforts to qualify and maintain the
qualification of an appropriate number of shares of each Fund under the
securities laws of such states of the United States or other jurisdictions as
the Underwriter and the Trust may approve. Any such qualification may be
withheld, terminated or withdrawn by the Trust at any time in its discretion. As
provided in Section 9(b) hereof, the expense of qualification and maintenance of
qualification shall be borne by the Underwriter. The Underwriter shall furnish
such information and other material relating to its affairs and activities as
may be required by the Trust in connection with such qualification.
(d) The Trust will furnish, in reasonable quantities upon request by the
Underwriter, copies of annual and interim reports of the Trust.
SECTION 7. Duties of the Underwriter.
(a) The Underwriter shall devote reasonable time and effort to effect
sales of shares of the Trust, but shall not be obligated to sell any specific
number of shares. The services of the Underwriter to the Trust hereunder are not
to be deemed exclusive and nothing in this Agreement shall prevent the
Underwriter from entering into like arrangements with other investment companies
so long as the performance of its obligations hereunder is not impaired thereby.
(b) In selling shares of the Trust, the Underwriter shall use its best
efforts in all material respects duly to conform with the requirements of all
federal and state laws relating to the sale of such securities. Neither the
Underwriter, any selected dealer, any selected agent nor any other person is
authorized by the Trust to give any information or to make any representations,
other than those contained in the Trust's Registration Statement (the
"Registration Statement"), as amended from time to time, under the Securities
Act and the Investment Company Act or the Prospectus and Statement of Additional
Information or any sales literature specifically approved in writing by the
Trust.
(c) The Underwriter shall adopt and follow procedures, as approved by the
officers of the Trust, for the confirmation of sales to investors and selected
dealers, the collection of amounts payable by investors and selected dealers on
such sales, and the cancellation of unsettled transactions, as may be necessary
to comply with the requirements of the NASD, as such requirements may from time
to time exist.
3
SECTION 8. Selected Dealer and Agent Agreements.
(a) The Underwriter shall have the right to enter into selected dealer
agreements with securities dealers of its choice ("selected dealers") and
selected agent agreements with depository institutions and other financial
intermediaries of its choice ("selected agents") for the sale of shares;
provided, that the Trust shall approve the forms of agreements with selected
dealers and selected agents and shall evidence such approval by filing said
forms and amendments thereto as exhibits to its Registration Statement. Shares
sold to selected dealers or through selected agents shall be for resale by such
selected dealers and selected agents only at the public offering price set forth
in the Prospectus and Statement of Additional Information.
(b) Within the United States, the Underwriter shall offer and sell shares
only to such selected dealers as are members in good standing of the NASD.
SECTION 9. Payment of Expenses.
(a) During the term of this Agreement, the Underwriter shall be
responsible for and hereby assumes the obligation for payment of all of the
Trust's expenses that might otherwise be required to be included as "other
expenses" of the Fund for purposes of Item 3 of Form N-1A (other than expenses
described in Section 9(b) of this Agreement), including, without limitation, the
following expenses:
(1) Expenses of the Trust's independent public accountants;
(2) Expenses of the Trust's transfer agent(s), registrar, dividend
disbursing agent(s) and shareholder recordkeeping services;
(3) Expenses of the Trust's custodian, including any recordkeeping
services provided by the custodian;
(4) Expenses relating to obtaining quotations for calculating the
value of each Fund's net assets;
(5) Expenses relating to the preparation of such reports and other
materials as may reasonably be requested by the Trust's Trustees;
(6) Expenses relating to the maintenance of the Trust's tax records;
(7) Expenses, including expenses relating to the procurement of
legal services, incident to meetings of the Trust's shareholders, the
preparation and mailing of prospectuses and reports of the Trust to its
shareholders, the filing of reports with regulatory bodies, the
maintenance of the Trust's existence and qualification to do business and
the registration of shares with federal and state securities authorities;
(8) Fees and expenses of Trustees and officers of the Trust, and the
fees and expenses of any legal counsel or any other persons engaged by
such persons in connection with the discharge of their duties as Trustees
or officers;
4
(9) Costs of printing certificates representing shares of the Trust;
(10) The Trust's pro rata portion of the fidelity bond required by
Section 17(g) of the Act or other insurance premiums; and
(11) Association membership dues.
(b) The Trust shall bear, and the Underwriter shall not be responsible
for, the following expenses:
(1) Taxes, if any, levied against the Trust or any of its Funds;
(2) Brokerage fees and commissions in connection with the purchase
and sale of portfolio securities for any of the Funds;
(3) Costs, including any interest expenses, of borrowing money;
(4) Extraordinary expenses, including extraordinary legal expenses
and expenses incurred in connection with litigation, proceedings, or other
claims and/or the legal obligations of the Trust to indemnify its
trustees, officers, employees, shareholders, distributors and agents with
respect thereto; and
(5) Organizational and offering expenses of the Trust and the Funds
to the extent authorized by the Trust's Board of Trustees, and any other
expenses that are capitalized in accordance with generally accepted
accounting principles.
SECTION 10. Indemnification.
(a) The Trust agrees to indemnify, defend and hold the Underwriter, and
any person who controls the Underwriter 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 investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) which the Underwriter or any such controlling person may incur, under
the Securities Act, or under common law or otherwise, arising out of or based
upon any alleged untrue statement of a material fact contained in the Trust's
Registration Statement, Prospectus or Statement of Additional Information in
effect from time to time under the Securities Act or arising out of or based
upon any alleged omission to state a material fact required to be stated in any
one thereof or necessary to make the statements in any one thereof not
misleading; provided, however, that in no event shall anything herein contained
be so construed as to protect the Underwriter against any liability to the Trust
or its security holders to which the Underwriter would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties, or by reason of the Underwriter's reckless disregard of its
obligations and duties under this Agreement. The Trust's agreement to indemnify
the Underwriter and any such controlling person as aforesaid is expressly
conditioned upon the Trust's being notified of the commencement of any action
brought against the Underwriter or any such controlling person, such
notification to be given by letter or by telegram addressed to the Trust at its
principal office in New York, New York, and sent to the Trust by the person
against whom such action is brought within ten days after the summons or other
first legal
5
process shall have been served. The failure to so notify the Trust of the
commencement of any such action shall not relieve the Trust from any liability
which it may have to the person against whom such action is brought by reason of
any such alleged untrue statement or omission otherwise than on account of the
indemnity agreement contained in this Section 10. The Trust will be entitled to
assume the defense of any suit brought to enforce any such claim, and to retain
counsel of good standing chosen by the Trust and approved by the Underwriter. In
the event the Trust does not elect to assume the defense of any such suit and
retain counsel of good standing approved by the Underwriter, 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 the Underwriter does not approve of
counsel chosen by the Trust, the Trust will reimburse the Underwriter or the
controlling person or persons named as defendant or defendants in such suit, for
the fees and expenses of any counsel retained by the Underwriter or such
persons. The indemnification agreement contained in this Section 10 shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Underwriter or any controlling person and shall survive the
sale of any of the Trust's shares made pursuant to subscriptions obtained by the
Underwriter. This agreement of indemnity will inure exclusively to the benefit
of the Underwriter, to the benefit of its successors and assigns, and to the
benefit of any controlling persons and their successors and assigns. The Trust
agrees promptly to notify the Underwriter of the commencement of any litigation
or proceeding against the Trust in connection with the issue and sale of any of
its shares.
(b) The Underwriter 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 cost 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, Trustees 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 the Underwriter or any affiliate thereof to the Trust for use in
its Registration Statement, Prospectus or Statement of Additional Information in
effect from time to time under the Securities Act, or shall arise out of or be
based upon any alleged omission 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. The Underwriter's agreement to indemnify the Trust, its officers and
Trustees, and any such controlling person as aforesaid is expressly conditioned
upon the Underwriter being notified of the commencement 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 the Underwriter at
its principal office in New York, and sent to the Underwriter by the person
against whom such action is brought, within ten days after the summons or other
first legal process shall have been served. The failure so to notify the
Underwriter of the commencement of any such action shall not relieve the
Underwriter from any liability which it may have to the Trust, to its officers
and Trustees, or to such controlling person by reason of any such untrue
statement or omission on the part of the Underwriter otherwise than on account
of the indemnity agreement contained in this Section 10. The Underwriter shall
have a right to control the defense
6
of such action, with counsel of good standing of its own choosing, satisfactory
to the Trust, if such action is based solely upon such alleged misstatement or
omission on its part, and in any other event the Underwriter and the Trust, and
their officers and directors and Trustees, and such controlling person shall
each have the right to participate in the defense or preparation of the defense
of any such action. The indemnification agreement contained in this Section 10
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Trust, its several officers and
Trustees or any controlling person and shall survive the sale of any of the
Trust's shares made pursuant to subscriptions obtained by the Underwriter. This
agreement of indemnity will inure exclusively to the benefit of the Trust, to
the benefit of its successors and assigns, and to the benefit of any of the
Trust's officers, Trustees or controlling persons and their successors and
assigns. The Underwriter agrees promptly to notify the Trust of the commencement
of any litigation or proceeding against the Underwriter in connection with the
issue and sale of any of the Trust's shares.
SECTION 11. Notification by the Trust.
The Trust agrees to advise the Underwriter immediately:
(a) of any request by the Securities and Exchange Commission for
amendments to the Trust's Registration Statement, Prospectus or Statement of
Additional Information or for additional information;
(b) in the event of the issuance by the Securities and Exchange Commission
of any stop order suspending the effectiveness of the Trust's Registration
Statement, Prospectus or Statement of Additional Information or the initiation
of any proceeding for that purpose;
(c) of the happening of any material event which makes untrue any
statement made in the Trust's Registration Statement, Prospectus or Statement of
Additional Information or which requires the making of a change in any one
thereof in order to make the statements therein not misleading; and
(d) of all actions of the Securities and Exchange Commission with respect
to any amendments to the Trust's Registration Statement, Prospectus or Statement
of Additional Information which may from time to time be filed with the
Securities and Exchange commission under the Securities Act.
SECTION 12. Term of Agreement.
(a) This Agreement shall become effective on the date hereof and shall
continue in effect until two years from the date of its execution, and
thereafter for successive twelve-month periods with respect to each Fund;
provided, however, that such continuance is specifically approved at least
annually by the Trustees of the Trust or by vote of the holders of a majority of
the outstanding voting securities (as defined in the Investment Company Act) of
that Fund, and, in either case, by a majority of the Trustees of the Trust who
are not parties to this Agreement or interested persons, as defined in the
Investment Company Act, of any such party (other than as Trustees of the Trust);
provided further, however, that if the continuation of this Agreement is not
approved as to any Fund, the Underwriter may continue to render to such Fund the
services
7
described herein in the manner and to the extent permitted by the Investment
Company Act and the rules and regulations thereunder. Upon effectiveness of this
Agreement, it shall supersede all previous agreements between the parties hereto
covering the subject matter hereof. This Agreement may be terminated (i) by the
Trust with respect to any Fund at any time, without the payment of any penalty,
by the vote of a majority of the outstanding voting securities (as so defined)
of such Fund, or by a vote of a majority of the Trustees of the Trust who are
not interested persons, as defined in the Investment Company Act, of the Trust
(other than as Trustees of the Trust), in any such event on sixty days' written
notice to the Underwriter, or (ii) by the Underwriter with respect to any Fund
on sixty days' written notice to the Trust.
(b) This Agreement may be amended at any time with the approval of the
Trustees of the Trust, provided that any material amendments of the terms hereof
will become effective only upon approval as provided in the first proviso of the
first sentence of Section 12(a) hereof.
SECTION 13. No Assignment. This Agreement may not be transferred,
assigned, sold or in any manner hypothecated or pledged by either party hereto
and this Agreement shall terminate automatically in the event of any such
transfer, assignment, sale, hypothecation or pledge. The terms "transfer,"
"assignment," and "sale" as used in this paragraph shall have the meanings
ascribed thereto by governing law and any interpretation thereof contained in
rules or regulations promulgated by the Securities and Exchange Commission
thereunder.
SECTION 14. Notices. Any notice required or permitted to be given
hereunder by either party to the other shall be deemed sufficiently given if
sent by registered mail, postage prepaid, addressed by the party giving such
notice to the other party at the last address furnished by such other party to
the party giving notice, and unless and until changed pursuant to the foregoing
provisions hereof addressed to the Trust or the Underwriter.
SECTION 15. Governing Law. The provisions of this Agreement shall be, to
the extent applicable, construed and interpreted in accordance with the laws of
the State of New York.
SECTION 16. Notice. A copy of the Agreement and Declaration of Trust of
the Trust is on file with the Secretary of State of The Commonwealth of
Massachusetts and notice is hereby given that this instrument is executed on
behalf of the Trustees of the Trust as Trustees and not individually, and that
the obligations of or arising out of this instrument are not binding upon any of
the Trustees or shareholders individually but are binding only upon the assets
and property of each of the respective Funds.
SECTION 17. Separate Agreements. The Trust, on behalf of each Fund, shall
be deemed to have entered into a wholly separate Agreement relating exclusively
to each such Fund. Any amendment to or termination of this Agreement explicitly
relating to one or more Funds shall have no affect on, and shall not be
considered to amend or terminate this Agreement with respect to, any other Fund.
[The Remainder of this Page Intentionally Left Blank.]
8
IN WITNESS WHEREOF, the parties have executed this Distribution Agreement
as of the date first set forth above.
THE ALLIANCEBERNSTEIN POOLING PORTFOLIOS
------------------------------------------
By:
Title:
ALLIANCEBERNSTEIN INVESTMENT
RESEARCH AND MANAGEMENT, INC.
------------------------------------------
By:
Title:
