THE AMERICAN FUNDS TAX-EXEMPT SERIES II
AMENDED AND RESTATED PRINCIPAL UNDERWRITING AGREEMENT
THIS PRINCIPAL UNDERWRITING AGREEMENT, between THE AMERICAN FUNDS TAX-EXEMPT
SERIES II, a Massachusetts business trust (the "Trust"), which has a single
series, The Tax-Exempt Fund of California (the "Fund"), and AMERICAN FUNDS
DISTRIBUTORS, INC., a California corporation (the "Distributor").
W I T N E S S E T H:
WHEREAS, the Fund is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end diversified investment company which
offers five classes of shares of beneficial interest, designated as Class A
shares, Class B shares, Class C shares, Class F shares, and Class R-5 shares,
and it is a part of the business of the Fund, and affirmatively in the interest
of the Fund, to offer shares of the Fund either from time to time or
continuously as determined by the Fund's officers subject to authorization by
its Board of Trustees; and
WHEREAS, the Distributor is engaged in the business of promoting the
distribution of shares of investment companies through securities
broker-dealers; and
WHEREAS, the Fund and the Distributor wish to enter into an agreement with each
other to promote the distribution of the shares of the Fund and of all series
or classes of the Fund which may be established in the future;
NOW, THEREFORE, the parties agree as follows:
1. (a) The Distributor shall be the exclusive principal underwriter for the
sale of the shares of the Fund and of each series or class of the Fund which
may be established in the future, except as otherwise provided pursuant to the
following subsection (b). The terms "shares of Fund" or "shares" as used
herein shall mean shares of beneficial interest of the Fund and each series or
class which may be established in the future and become covered by this
Agreement in accordance with Section 30 of this Agreement.
(b) The Fund may, upon 60 days' written notice to the Distributor, from time to
time designate other principal underwriters of its shares with respect to areas
other than the North American continent, Hawaii, Puerto Rico, and such
countries or other jurisdictions as to which the Fund may have expressly waived
in writing its right to make such designation. In the event of such
designation, the right of the Distributor under this Agreement to sell shares
in the areas so designated shall terminate, but this Agreement shall remain
otherwise in full force and effect until terminated in accordance with the
other provisions hereof.
2. In the sale of shares of the Fund, the Distributor shall act as agent of the
Fund except in any transaction in which the Distributor sells such shares as a
dealer to the public, in which event the Distributor shall act as principal for
its own account.
3. The Fund shall sell shares only through the Distributor, except that the
Fund may, to the extent permitted by the 1940 Act and the rules and regulations
promulgated thereunder or pursuant thereto, at any time:
(a) issue shares to any corporation, association, trust, partnership or other
organization, or its, or their, security holders, beneficiaries or members, in
connection with a merger, consolidation or reorganization to which the Fund is
a party, or in connection with the acquisition of all or substantially all the
property and assets of such corporation, association, trust, partnership or
other organization;
(b) issue shares at net asset value to the holders of shares of capital stock
or beneficial interest of other investment companies served as investment
adviser by any affiliated company or companies of The Capital Group Companies,
Inc., to the extent of all or any portion of amounts received by such
shareholders upon redemption or repurchase of their shares by the other
investment companies;
(c) issue shares at net asset value to its shareholders in connection with
the reinvestment of dividends paid and other distributions made by the Fund;
(d) issue shares at net asset value to persons entitled to purchase shares at
net asset value without sales charge or contingent deferred sales charge as
described in the Fund's current Registration Statement in effect under the
Securities Act of 1933, as amended, for each series issued by the Fund at the
time of such offer or sale.
4. The Distributor shall devote its best efforts to the sale of shares of the
Fund and shares of any other mutual funds served as investment adviser by
affiliated companies of The Capital Group Companies, Inc., and insurance
contracts funded by shares of such mutual funds, for which the Distributor has
been authorized to act as a principal underwriter for the sale of shares. The
Distributor shall maintain a sales organization suited to the sale of shares of
the Fund and shall use its best efforts to effect such sales in jurisdictions
as to which the Fund shall have expressly waived in writing its right to
designate another principal underwriter pursuant to subsection 1(b) hereof, and
shall effect and maintain appropriate qualification to do so in all those
jurisdictions in which it sells or offers shares for sale and in which
qualification is required.
5. Within the United States of America, all dealers to whom the Distributor
shall offer and sell shares must be duly licensed and qualified to sell shares
of the Fund. Shares sold to dealers shall be for resale by such dealers only
at the public offering price set forth in the current Prospectus of the Fund's
Registration Statement in effect under the Securities Act of 1933, as amended
("Prospectus"). The Distributor shall not, without the consent of the Fund,
sell or offer for sale any shares of a series or class issued by the Fund other
than as principal underwriter pursuant to this Agreement.
6. In its sales to dealers, it shall be the responsibility of the Distributor
to insure that such dealers are appropriately qualified to transact business in
the shares under applicable laws, rules and regulations promulgated by such
national, state, local or other governmental or quasi-governmental authorities
as may in a particular instance have jurisdiction.
7. The applicable public offering price of shares shall be the price which is
equal to the net asset value per share, as shall be determined by the Fund in
the manner and at the time or times set forth in and subject to the provisions
of the Prospectus of the Fund.
8. All orders for shares received by the Distributor shall, unless rejected by
the Distributor or the Fund, be accepted by the Distributor immediately upon
receipt and confirmed at an offering price determined in accordance with the
provisions of the Prospectus and the 1940 Act, and applicable rules in effect
thereunder. The Distributor shall not hold orders subject to acceptance nor
otherwise delay their execution. The provisions of this Section shall not be
construed to restrict the right of the Fund to withhold shares from sale under
Section 20 hereof.
9. The Fund or its transfer agent shall be promptly advised of all orders
received, and shall cause shares to be issued upon payment therefor in New York
or Los Angeles Clearing House Funds.
10. The Distributor shall adopt and follow procedures as approved by the
officers of the Fund for the confirmation of sales to dealers, the collection
of amounts payable by dealers on such sales, and the cancellation of unsettled
transactions, as may be necessary to comply with the requirements of the
Securities and Exchange Commission or the National Association of Securities
Dealers, Inc. ("NASD"), as such requirements may from time to time exist.
11. The Distributor, as a principal underwriter under this Agreement for Class
A shares, shall receive (i) that part of the sales charge which is retained by
the Distributor after allowance of discounts to dealers, unless waived by the
Distributor for certain qualified fee-based programs, as set forth in the
Prospectus of the Fund, and (ii) amounts payable to the Distributor pursuant to
the Fund's Plan of Distribution under Rule 12b-1 under the 1940 Act relating to
its Class A shares.
12. The Distributor, as principal underwriter under this agreement for Class B
shares shall receive (i) distribution fees as commissions for the sale of Class
B shares and contingent deferred sales charges ("CDSC") (as defined below), as
set forth in the Fund's Prospectus, and (ii) shareholder service fees at the
rate of 0.25% per annum of the average net asset value of Class B shares
pursuant to the Fund's Plan of Distribution under Rule 12b-1 under the 1940 Act
relating to its Class B shares (the " Class B Plan").
(a) In accordance with the Class B Plan, and subject to the limit on
asset-based sales charges set forth in NASD Conduct Rule 2830 (and any
successor provision thereto), the Fund shall pay to the Distributor or, at the
Distributor's direction, to a third-party, monthly in arrears on or prior to
the 10th business day of the following calendar month, the Distributor's
Allocable Portion (as defined below) of a fee (the "Distribution Fee") which
shall accrue daily in an amount equal to the product of (A) the daily
equivalent of 0.75% per annum multiplied by (B) the net asset value of the
Class B shares of the Fund outstanding on such day. The Fund agrees to withhold
from redemption proceeds of the Class B shares, the Distributor's Allocable
Portion of any CDSCs payable with respect to the Class B shares, as provided in
the Fund's Prospectus, and to pay the same over to the Distributor or, at the
Distributor's direction to a third-party, at the time the redemption proceeds
are payable to the holder of such shares redeemed. Payment of these CDSC
amounts to the Distributor is not contingent upon the adoption or continuation
of any Class B Plan.
(b) For purposes of this Agreement, the term "Allocable Portion" of
Distribution Fees and CDSCs payable with respect to Class B shares shall mean
the portion of such Distribution Fees and CDSC allocated to the Distributor in
accordance with the Allocation Schedule attached hereto as Schedule A.
(c) The Distributor shall be considered to have completely earned the right
to the payment of its Allocable Portion of the Distribution Fees and the right
to payment of its Allocable Portion of the CDSCs with respect to each
"Commission Share" (as defined in the Allocation Schedule attached hereto as
Schedule A) upon the settlement date of such Commission Share taken into
account in determining the Distributor's Allocable Portion of Distribution
Fees.
(d) The provisions set forth in Section 1 of the Class B Plan (in effect on
the date hereof) relating to Class B shares, together with the related
definitions are hereby incorporated into this Section 12 by reference with the
same force and effect as if set forth herein in their entirety.
13. The Distributor, as principal underwriter under this agreement for Class C
shares shall receive (i) distribution fees as commissions for the sale of Class
C shares and CDSCs, as set forth in the Fund's Prospectus, and (ii) shareholder
service fees at the rate of 0.25% per annum of the average net asset value of
Class C shares pursuant to the Fund's Plan of Distribution under Rule 12b-1
under the 1940 Act relating to its Class C shares (the "Class C Plan").
(a) In accordance with the Class C Plan, and subject to the limit on
asset-based sales charges set forth in NASD Conduct Rule 2830 (and any
successor provision thereto), the Fund shall pay to the Distributor, no more
frequently than monthly in arrears within 30 days of receipt of an invoice for
payment, the Distributor's Allocable Portion (as defined below) of a fee (the
"Distribution Fee") which shall accrue daily in an amount equal to the daily
equivalent of 0.75% per annum of the net asset value of the Class C shares
outstanding on such day. The Fund agrees to withhold from redemption proceeds
of the Class C shares, the Distributor's Allocable Portion of any CDSCs payable
with respect to the Class C shares, as provided in the Fund's Prospectus and to
pay the same over to the Distributor, or, at the Distributor's direction to a
third party, at the time the redemption proceeds are payable to the holder of
such shares redeemed. Payment of these CDSC amounts to the Distributor is not
contingent upon the adoption or continuation of any Class C Plan.
(b) For purposes of this Agreement, the term "Allocable Portion" of
Distribution Fees and CDSCs payable with respect to Class C shares shall mean
the portion of such Distribution Fees and CDSC allocated to the Distributor in
accordance with the Allocation Schedule attached hereto as Schedule B.
(c) The Distributor shall be considered to have completely earned the right
to the payment of its Allocable Portion of the Distribution Fees and the right
to payment of its Allocable Portion of the CDSCs with respect to each
"Commission Share" (as defined in the Allocation Schedule attached hereto as
Schedule B) upon the settlement date of such Commission Share taken into
account in determining the Distributor's Allocable Portion of Distribution
Fees.
(d) The provisions set forth in Section 1 of the Class C Plan (in effect on
the date hereof) relating to Class C shares, together with the related
definitions are hereby incorporated into this Section 13 by reference with the
same force and effect as if set forth herein in their entirety.
14. The Distributor, as principal underwriter under this agreement for Class F
shares, shall receive shareholder service fees at the rate of 0.25% per annum
of the average net asset value of Class F shares pursuant to the Fund's Plan of
Distribution under Rule 12b-1 under the 1940 Act relating to its Class F shares
(the "Class F Plan").
15. The Distributor, as principal underwriter under this agreement for Class
R-5 shares shall receive no compensation for the sale of Class R-5 shares.
16. The Fund agrees to use its best efforts to maintain its registration as a
diversified open-end management investment company under the 0000 Xxx.
17. The Fund agrees to use its best efforts to maintain an effective Prospectus
under the Securities Act of 1933, as amended, and warrants that such Prospectus
will contain all statements required by and will conform with the requirements
of such Securities Act of 1933 and the rules and regulations thereunder, and
that no part of any such Prospectus, at the time the Registration Statement of
which it is a part becomes effective, will contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein,
or necessary to make the statements therein not misleading (excluding any
information provided by the Distributor in writing for inclusion in the
Prospectus). The Distributor agrees and warrants that it will not in the sale
of shares use any Prospectus, advertising or sales literature not approved by
the Fund or its officers nor make any untrue statement of a material fact nor
omit the stating of a material fact necessary in order to make the statements
made, in the light of the circumstances under which they are made, not
misleading. The Distributor agrees to indemnify and hold the Fund harmless
from any and all loss, expense, damage and liability resulting from a breach of
the agreements and warranties contained in this Section, or from the use of any
sales literature, information, statistics or other aid or device employed in
connection with the sale of shares.
18. The expense of each printing of each Prospectus and each revision thereof
or addition thereto deemed necessary by the Fund's officers to meet the
requirements of applicable laws shall be divided between the Fund, the
Distributor and any other principal underwriter of the shares of the Fund as
follows:
(a) the Fund shall pay the typesetting and make-ready charges;
(b) the printing charges shall be prorated between the Fund, the Distributor,
and any other principal underwriter(s) in accordance with the number of copies
each receives; and
(c) expenses incurred in connection with the foregoing, other than to meet
the requirements of the Securities Act of 1933, as amended, or other applicable
laws, shall be borne by the Distributor, except in the event such incremental
expenses are incurred at the request of any other principal underwriter(s), in
which case such incremental expenses shall be borne by the principal
underwriter(s) making the request.
19. The Fund agrees to use its best efforts to qualify and maintain the
qualification of an appropriate number of the shares of each series or class it
offers for sale under the securities laws of such states as the Distributor and
the Fund may approve. Any such qualification for any series or class may be
withheld, terminated or withdrawn by the Fund at any time in its discretion.
The expense of qualification and maintenance of qualification shall be borne by
the Fund, but the Distributor shall furnish such information and other material
relating to its affairs and activities as may be required by the Fund or its
counsel in connection with such qualifications.
20. The Fund may withhold shares of any series or class from sale to any
person or persons or in any jurisdiction temporarily or permanently if, in the
opinion of its counsel, such offer or sale would be contrary to law or if the
Trustees or the President or any Vice President of the Fund determines that
such offer or sale is not in the best interest of the Fund. The Fund will give
prompt notice to the Distributor of any withholding and will indemnify it
against any loss suffered by the Distributor as a result of such withholding by
reason of nondelivery of shares of any series or class after a good faith
confirmation by the Distributor of sales thereof prior to receipt of notice of
such withholding.
21. (a) This Agreement may be terminated at any time, without payment of any
penalty, as to the Fund or any series on sixty (60) days' written notice by the
Distributor to the Fund.
(b) This Agreement may be terminated as to the Fund or any series or class by
either party upon five (5) days' written notice to the other party in the event
that the Securities and Exchange Commission has issued an order or obtained an
injunction or other court order suspending effectiveness of the Registration
Statement covering the shares of the Fund or such series or class.
(c) This Agreement may be terminated as to the Fund or any series or class by
the Fund upon five (5) days' written notice to the Distributor provided either
of the following events has occurred:
(i) the NASD has expelled the Distributor or suspended its membership in that
organization; or
(ii) the qualification, registration, license or right of the Distributor to
sell shares of any series in a particular state has been suspended or canceled
by the State of California or any other state in which sales of the shares of
the Fund or such series during the most recent 12-month period exceeded 10% of
all shares of such series sold by the Distributor during such period.
(d) This Agreement may be terminated as to the Fund or any series or class at
any time on sixty (60) days' written notice to the Distributor without the
payment of any penalty, by vote of a majority of the Independent Trustees or by
vote of a majority of the outstanding voting securities (as defined in the 0000
Xxx) of the Fund or such series or class.
22. This Agreement shall not be assignable by either party hereto and in the
event of assignment shall automatically terminate forthwith. The term
"assignment" shall have the meaning set forth in the 1940 Act. Notwithstanding
this Section, this Agreement, with respect to the Fund's Class B and Class
529-B shares, has been approved in accordance with Section 25 in anticipation
of the Distributor's transfer of its Allocable Portion of Distribution Fees and
CDSCs (but not its obligations under this Agreement) to a third-party pursuant
to a "Purchase and Sale Agreement" in order to raise funds to cover
distribution expenditures, and such transfer will not cause a termination of
this Agreement. If Distributor determines to transfer its Allocable Portion of
Distribution Fees and CDSCs in respect of Class C or Class 529-C shares to a
third party, such transfer shall not cause a termination of this Agreement.
23. No provision of this Agreement shall protect or purport to protect the
Distributor against any liability to the Fund or holders of its shares for
which the Distributor would otherwise be liable by reason of willful
misfeasance, bad faith, or gross negligence.
24. This Agreement shall become effective on May 15, 2002. Unless sooner
terminated in accordance with the other provisions hereof, this Agreement shall
continue in effect until May 31, 2002, and shall continue in effect from year
to year thereafter but only so long as such continuance is specifically
approved at least annually by (i) the vote of a majority of the Independent
Trustees of the Fund cast in person at a meeting called for the purpose of
voting on such approval, and (ii) the vote of either a majority of the entire
Board of Trustees of the Fund or a majority (within the meaning of the 0000
Xxx) of the outstanding voting securities of the Fund.
25. If the Fund shall at any time issue shares in more than one series or
class, this Agreement shall take effect with respect to such series or class of
the Fund which may be established in the future at such time as it has been
approved as to such series or class by vote of the Board of Trustees and the
Independent Trustees in accordance with Section 24. The Agreement as approved
with respect to any series or class shall specify the compensation payable to
the Distributor pursuant to Sections 11 through 15, as well as any provisions
which may differ from those herein with respect to such series, subject to
approval in writing by the Distributor.
This Agreement may be approved, amended, continued or renewed with respect to a
series or class as provided herein notwithstanding such approval, amendment,
continuance or renewal has not been effected with respect to any one or more
other series or class of the Fund.
This Agreement shall be construed under and shall be governed by the laws of
the State of California, and the parties hereto agree that proper venue of any
action with respect hereto shall be Los Angeles County, California.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in duplicate original by their officers thereunto duly authorized, as
of February 1, 2002.
AMERICAN FUNDS DISTRIBUTORS, INC. THE AMERICAN FUNDS TAX-EXEMPT SERIES II
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx, Xx.
Xxxxx X. Xxxxxxxx Xxxx X. Xxxxx, Xx.
President Chairman of the Board
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxxx
Secretary Secretary
SCHEDULE A
TO THE
AMENDED AND RESTATED PRINCIPAL UNDERWRITING AGREEMENT
ALLOCATION SCHEDULE
The following relates solely to Class B shares.
The Distributor's Allocable Portion of Distribution Fees and CDSCs in respect
of Class B shares shall be 100% until such time as the Distributor shall cease
to serve as exclusive distributor of Class B shares; thereafter, collections
that constitute CDSCs and Distribution Fees relating to Class B shares shall be
allocated among the Distributor and any successor distributor ("Successor
Distributor") in accordance with this Schedule.
Defined terms used in this Schedule and not otherwise defined herein shall have
the meanings assigned to them in the Amended and Restated Principal
Underwriting Agreement (the "Distribution Agreement"), of which this Schedule
is a part. As used herein the following terms shall have the meanings
indicated:
"Commission Share" means each B share issued under circumstances which would
normally give rise to an obligation of the holder of such share to pay a CDSC
upon redemption of such share (including, without limitation, any B share
issued in connection with a permitted free exchange), and any such share shall
continue to be a Commission Share of the applicable Fund prior to the
redemption (including a redemption in connection with a permitted free
exchange) or conversion of such share, even though the obligation to pay the
CDSC may have expired or conditions for waivers thereof may exist.
"Date of Original Issuance" means in respect of any Commission Share, the date
with reference to which the amount of the CDSC payable on redemption thereof,
if any, is computed.
"Free Share" means, in respect of a Fund, each B share of the Fund, other than
a Commission Share (including, without limitation, any B share issued in
connection with the reinvestment of dividends or capital gains).
"Inception Date" means in respect of a Fund, the first date on which the Fund
issued shares.
"Net Asset Value" means the net asset value determined as set forth in the
Prospectus of each Fund.
"Omnibus Share" means, in respect of a Fund, a Commission Share or Free Share
sold by one of the selling agents maintaining shares in an omnibus account.
If, subsequent to the Successor Distributor becoming exclusive distributor of
the Class B shares, the Distributor reasonably determines that the transfer
agent is able to track all Commission Shares and Free Shares sold by any of the
selling agents listed on Exhibit I in the same manner as Commission Shares and
Free Shares are currently tracked in respect of selling agents not listed on
Exhibit I, then Exhibit I shall be amended to delete such selling agent from
Exhibit I so that Commission Shares and Free Shares sold by such selling agent
will no longer be treated as Omnibus Shares.
PART I: ATTRIBUTION OF CLASS B SHARES
Class B shares that are outstanding from time to time, shall be attributed to
the Distributor and each Successor Distributor in accordance with the following
rules;
(1) Commission Shares other than Omnibus Shares:
(a) Commission Shares that are not Omnibus Shares ("Non-Omnibus Commission
Shares") attributed to the Distributor shall be those Non-Omnibus Commission
Shares the Date of Original Issuance of which occurred on or after the
Inception Date of the applicable Fund and on or prior to the date the
Distributor ceased to be exclusive distributor of Class B shares of the Fund.
(b) Non-Omnibus Commission Shares attributable to each Successor Distributor
shall be those Non-Omnibus Commission Shares the Date of Original Issuance of
which occurs after the date such Successor Distributor became the exclusive
distributor of Class B shares of the Fund and on or prior to the date such
Successor Distributor ceased to be the exclusive distributor of Class B shares
of the Fund.
(c) A Non-Omnibus Commission Share of a Fund issued in consideration of the
investment of proceeds of the redemption of a Non-Omnibus Commission Share of
another fund (the "Redeeming Fund") in connection with a permitted free
exchange, is deemed to have a Date of Original Issuance identical to the Date
of Original Issuance of the Non-Omnibus Commission Share of the Redeeming Fund,
and any such Commission Share will be attributed to the Distributor or
Successor Distributor based upon such Date of Original Issuance in accordance
with rules (a) and (b) above.
(2) Free Shares:
Free Shares that are not Omnibus Shares ("Non-Omnibus Free Shares") of a Fund
outstanding on any date shall be attributed to the Distributor or a Successor
Distributor, as the case may be, in the same proportion that the Non-Omnibus
Commission Shares of a Fund outstanding on such date are attributed to each on
such date; provided that if the Distributor and its transferees reasonably
determines that the transfer agent is able to produce monthly reports that
track the Date of Original Issuance for such Non-Omnibus Free Shares, then such
Free Shares shall be allocated pursuant to clause 1(a), (b) and (c)
above.
(3) Omnibus Shares:
Omnibus Shares of a Fund outstanding on any date shall be attributed to the
Distributor or a Successor Distributor, as the case may be, in the same
proportion that the Non-Omnibus Commission Shares of the applicable Fund
outstanding on such date are attributed to it on such date; provided that if
the Distributor reasonably determines that the transfer agent is able to
produce monthly reports that track the Date of Original Issuance for the
Omnibus Shares, then the Omnibus Shares shall be allocated pursuant to clause
1(a), (b) and (c) above.
PART II: ALLOCATION OF CDSCs
(1) CDSCs Related to the Redemption of Non-Omnibus Commission Shares:
CDSCs in respect of the redemption of Non-Omnibus Commission Shares shall be
allocated to the Distributor or a Successor Distributor depending upon whether
the related redeemed Commission Share is attributable to the Distributor or
such Successor Distributor, as the case may be, in accordance with Part I
above.
(2) CDSCs Related to the Redemption of Omnibus Shares:
CDSCs in respect of the redemption of Omnibus Shares shall be allocated to the
Distributor or a Successor Distributor in the same proportion that CDSCs
related to the redemption of Non-Omnibus Commission Shares are allocated to
each thereof; provided, that if the Distributor reasonably determines that the
transfer agent is able to produce monthly reports which track the Date of
Original Issuance for the Omnibus Shares, then the CDSCs in respect of the
redemption of Omnibus Shares shall be allocated among the Distributor and any
Successor Distributor depending on whether the related redeemed Omnibus Share
is attributable to the Distributor or a Successor Distributor, as the case may
be, in accordance with Part I above.
PART III: ALLOCATION OF DISTRIBUTION FEE
Assuming that the Distribution Fee remains constant over time so that Part IV
hereof does not become operative:
(1) The portion of the aggregate Distribution Fee accrued in respect of all
Class B shares of a Fund during any calendar month allocable to the Distributor
or a Successor Distributor is determined by multiplying the total of such
Distribution Fee by the following fraction:
(A + C)/2
(B + D)/2
where:
A= The aggregate Net Asset Value of all Class B shares of a Fund attributed to
the Distributor or such Successor Distributor, as the case may be, and
outstanding at the beginning of such calendar month
B= The aggregate Net Asset Value of all Class B shares of a Fund at the
beginning of such calendar month
C= The aggregate Net Asset Value of all Class B shares of a Fund attributed to
the Distributor or such Successor Distributor, as the case may be, and
outstanding at the end of such calendar month
D= The aggregate Net Asset Value of all Class B shares of a Fund at the end of
such calendar month
(2) If the Distributor reasonably determines that the transfer agent is able to
produce automated monthly reports that allocate the average Net Asset Value of
the Commission Shares (or all Class B shares if available) of a Fund among the
Distributor and any Successor Distributor in a manner consistent with the
methodology detailed in Part I and Part III(1) above, the portion of the
Distribution Fee accrued in respect of all such Class B shares of a Fund during
a particular calendar month will be allocated to the Distributor or a Successor
Distributor by multiplying the total of such Distribution Fee by the following
fraction:
(A)/(B)
where:
A= Average Net Asset Value of all such Class B shares of a Fund for such
calendar month attributed to the Distributor or a Successor Distributor, as the
case may be
B= Total average Net Asset Value of all such Class B shares of a Fund for such
calendar month
PART IV: ADJUSTMENT OF THE DISTRIBUTOR'S ALLOCABLE PORTION AND EACH SUCCESSOR
DISTRIBUTOR'S ALLOCABLE PORTION
The parties to the Distribution Agreement recognize that, if the terms of any
distributor's contract, any distribution plan, any prospectus, the Conduct
Rules or any other applicable law change so as to disproportionately reduce, in
a manner inconsistent with the intent of this Distribution Agreement, the
amount of the Distributor's Allocable Portion or any Successor Distributor's
Allocable Portion had no such change occurred, the definitions of the
Distributor's Allocable Portion and/or the Successor Distributor's Allocable
Portion in respect of the Class B shares relating to a Fund shall be adjusted
by agreement among the relevant parties; provided, however, if the Distributor,
the Successor Distributor and the Fund cannot agree within thirty (30) days
after the date of any such change in applicable laws or in any distributor's
contract, distribution plan, prospectus or the Conduct Rules, they shall submit
the question to arbitration in accordance with the commercial arbitration rules
of the American Arbitration Association and the decision reached by the
arbitrator shall be final and binding on each of them.
SCHEDULE B
TO THE
AMENDED AND RESTATED PRINCIPAL UNDERWRITING AGREEMENT
ALLOCATION SCHEDULE
The following relates solely to Class C shares.
The Distributor's Allocable Portion of Distribution Fees and CDSCs in respect
of Class C shares shall be 100% until such time as the Distributor shall cease
to serve as exclusive distributor of Class C shares; thereafter, collections
that constitute CDSCs and Distribution Fees relating to Class C shares shall be
allocated among the Distributor and any successor distributor ("Successor
Distributor") in accordance with this Schedule. At such time as the
Distributor's Allocable Portion of the Distribution Fees equals zero, the
Successor Distributor shall become the Distributor for purposes of this
Allocation Schedule.
Defined terms used in this Schedule and not otherwise defined herein shall have
the meanings assigned to them in the Amended and Restated Principal
Underwriting Agreement (the "Distribution Agreement"), of which this Schedule
is a part. As used herein the following terms shall have the meanings
indicated:
"Commission Share" means each C share issued under circumstances which would
normally give rise to an obligation of the holder of such share to pay a CDSC
upon redemption of such share (including, without limitation, any C share
issued in connection with a permitted free exchange), and any such share shall
continue to be a Commission Share of the applicable Fund prior to the
redemption (including a redemption in connection with a permitted free
exchange) or conversion of such share, even though the obligation to pay the
CDSC may have expired or conditions for waivers thereof may exist.
"Date of Original Issuance" means in respect of any Commission Share, the date
with reference to which the amount of the CDSC payable on redemption thereof,
if any, is computed.
"Free Share" means, in respect of a Fund, each C share of the Fund, other than
a Commission Share (including, without limitation, any C share issued in
connection with the reinvestment of dividends or capital gains).
"Inception Date" means in respect of a Fund, the first date on which the Fund
issued shares.
"Net Asset Value" means the net asset value determined as set forth in the
Prospectus of each Fund.
"Omnibus Share" means, in respect of a Fund, a Commission Share or Free Share
sold by one of the selling agents maintaining shares in an omnibus account
("Omnibus Selling Agents"). If, subsequent to the Successor Distributor
becoming exclusive distributor of the Class C shares, the Distributor
reasonably determines that the transfer agent is able to track all Commission
Shares and Free Shares sold by any of the Omnibus Selling Agents in the same
manner as Non-Omnibus Commission Shares and Free Shares (defined below) are
currently tracked, then Omnibus Shares of such Omnibus Selling Agent shall be
treated as Commission Shares and Free Shares.
PART I: ATTRIBUTION OF CLASS C SHARES
Class C shares that are outstanding from time to time, shall be attributed to
the Distributor and each Successor Distributor in accordance with the following
rules;
(1) Commission Shares other than Omnibus Shares:
(a) Commission Shares that are not Omnibus Shares ("Non-Omnibus Commission
Shares") attributed to the Distributor shall be those Non-Omnibus Commission
Shares (i) the Date of Original Issuance of which occurred on or after the
Inception Date of the applicable Fund and on or prior to the date the
Distributor ceased to be exclusive distributor of Class C shares of the Fund
and (ii) that are subject to a CDSC (without regard to any conditions for
waivers thereof).
(b) Non-Omnibus Commission Shares attributable to each Successor Distributor
shall be those Non-Omnibus Commission Shares (i) the Date of Original Issuance
of which occurs after the date such Successor Distributor became the exclusive
distributor of Class C shares of the Fund and on or prior to the date such
Successor Distributor ceased to be the exclusive distributor of Class C shares
of the Fund and (ii) that are subject to a CDSC (without regard to any
conditions for waivers thereof).
(c) A Non-Omnibus Commission Share of a Fund issued in consideration of the
investment of proceeds of the redemption of a Non-Omnibus Commission Share of
another fund (the "Redeeming Fund") in connection with a permitted free
exchange, is deemed to have a Date of Original Issuance identical to the Date
of Original Issuance of the Non-Omnibus Commission Share of the Redeeming Fund,
and any such Commission Share will be attributed to the Distributor or
Successor Distributor based upon such Date of Original Issuance in accordance
with rules (a) and (b) above.
(2) Free Shares:
Free Shares that are not Omnibus Shares ("Non-Omnibus Free Shares") of a Fund
outstanding on any date shall be attributed to the Distributor or a Successor
Distributor, as the case may be, in the same proportion that the Non-Omnibus
Commission Shares of a Fund outstanding on such date are attributed to each on
such date; provided that if the Distributor and its transferees reasonably
determines that the transfer agent is able to produce monthly reports that
track the Date of Original Issuance for such Non-Omnibus Free Shares, then such
Free Shares shall be allocated pursuant to clause 1(a), (b) and (c) above.
(3) Omnibus Shares:
Omnibus Shares of a Fund outstanding on any date shall be attributed to the
Distributor or a Successor Distributor, as the case may be, in the same
proportion that the Non-Omnibus Commission Shares of the applicable Fund
outstanding on such date are attributed to it on such date; provided that if
the Distributor reasonably determines that the transfer agent is able to
produce monthly reports that track the Date of Original Issuance for the
Omnibus Shares, then the Omnibus Shares shall be allocated pursuant to clause
1(a), (b) and (c) above.
PART II: ALLOCATION OF CDSCs
(1) CDSCs Related to the Redemption of Non-Omnibus Commission Shares:
CDSCs in respect of the redemption of Non-Omnibus Commission Shares shall be
allocated to the Distributor or a Successor Distributor depending upon whether
the related redeemed Commission Share is attributable to the Distributor or
such Successor Distributor, as the case may be, in accordance with Part I
above.
(2) CDSCs Related to the Redemption of Omnibus Shares:
CDSCs in respect of the redemption of Omnibus Shares shall be allocated to the
Distributor or a Successor Distributor in the same proportion that CDSCs
related to the redemption of Non-Omnibus Commission Shares are allocated to
each thereof; provided, that if the Distributor reasonably determines that the
transfer agent is able to produce monthly reports which track the Date of
Original Issuance for the Omnibus Shares, then the CDSCs in respect of the
redemption of Omnibus Shares shall be allocated among the Distributor and any
Successor Distributor depending on whether the related redeemed Omnibus Share
is attributable to the Distributor or a Successor Distributor, as the case may
be, in accordance with Part I above.
PART III: ALLOCATION OF DISTRIBUTION FEE
Assuming that the Distribution Fee remains constant over time so that Part IV
hereof does not become operative:
(1) The portion of the aggregate Distribution Fee accrued in respect of all
Class C shares of a Fund during any calendar month allocable to the Distributor
or a Successor Distributor is determined by multiplying the total of such
Distribution Fee by the following fraction:
(A + C)/2
(B + D)/2
where:
A= The aggregate Net Asset Value of all Class C shares of a Fund attributed to
the Distributor or such Successor Distributor, as the case may be, and
outstanding at the beginning of such calendar month
B= The aggregate Net Asset Value of all Class C shares of a Fund at the
beginning of such calendar month
C= The aggregate Net Asset Value of all Class C shares of a Fund attributed to
the Distributor or such Successor Distributor, as the case may be, and
outstanding at the end of such calendar month
D= The aggregate Net Asset Value of all Class C shares of a Fund at the end of
such calendar month
(2) If the Distributor reasonably determines that the transfer agent is able to
produce automated monthly reports that allocate the average Net Asset Value of
the Commission Shares (or all Class C shares if available) of a Fund among the
Distributor and any Successor Distributor in a manner consistent with the
methodology detailed in Part I and Part III(1) above, the portion of the
Distribution Fee accrued in respect of all such Class C shares of a Fund during
a particular calendar month will be allocated to the Distributor or a Successor
Distributor by multiplying the total of such Distribution Fee by the following
fraction:
(A)/(B)
where:
A= Average Net Asset Value of all such Class C shares of a Fund for such
calendar month attributed to the Distributor or a Successor Distributor, as the
case may be
B= Total average Net Asset Value of all such Class C shares of a Fund for such
calendar month
PART IV: ADJUSTMENT OF THE DISTRIBUTOR'S ALLOCABLE PORTION AND EACH SUCCESSOR
DISTRIBUTOR'S ALLOCABLE PORTION
The parties to the Distribution Agreement recognize that, if the terms of any
distributor's contract, any distribution plan, any prospectus, the Conduct
Rules or any other applicable law change so as to disproportionately reduce, in
a manner inconsistent with the intent of this Distribution Agreement, the
amount of the Distributor's Allocable Portion or any Successor Distributor's
Allocable Portion had no such change occurred, the definitions of the
Distributor's Allocable Portion and/or the Successor Distributor's Allocable
Portion in respect of the Class C shares relating to a Fund shall be adjusted
by agreement among the relevant parties; provided, however, if the Distributor,
the Successor Distributor and the Fund cannot agree within thirty (30) days
after the date of any such change in applicable laws or in any distributor's
contract, distribution plan, prospectus or the Conduct Rules, they shall submit
the question to arbitration in accordance with the commercial arbitration rules
of the American Arbitration Association and the decision reached by the
arbitrator shall be final and binding on each of them.
