1
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of the 28th day of June, 2000 by and between
each of the open-end investment management companies listed on Schedule A,
attached hereto, together with all other open-end management investment
companies subsequently established and made subject to this Agreement in
accordance with Section 4.3 below (each a "Fund", collectively the "Funds") and
Funds Distributor, Inc., a Massachusetts corporation having a place of business
at 00 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxxxxx 00000 ("FDI").
WHEREAS, the shares of beneficial interest of each of the Funds are
currently divided into a number of separate series of shares, or funds, each
corresponding to a distinct portfolio of securities (each a "Series"), and many
of which are also divided into multiple classes of shares, all as set forth on
Schedule A. For purposes of this Agreement the term "Shares" shall mean the
authorized shares of the relevant Series and classes of shares of the Series, if
any, and otherwise shall mean the Fund's authorized shares;
WHEREAS, FDI is registered as a broker-dealer with the Securities and
Exchange Commission (the "SEC") under the Securities Exchange Act of 1934 (the
"1934 Act") and is a member of the National Association of Securities Dealers,
Inc. (the "NASD");
WHEREAS, Grantham, Mayo, Van Otterloo & Co. LLC ("Adviser") is the
registered investment adviser to the Fund pursuant to Management Contracts
between the Adviser and the Fund;
WHEREAS, the Board of Trustees of the Fund wish to engage FDI to act as
the distributor for the Fund and FDI is willing to render such service on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises set forth below, the parties agree as follows:
1. Services as Distributor
1.1 FDI will act as agent for the distribution of Shares covered by,
and in accordance with, the registration statement and prospectus then in effect
under the Securities Act of 1933, as amended (the "1933 Act"), and will transmit
promptly any orders received by FDI for purchase or redemption of Shares to the
Transfer and Dividend Disbursing Agent for the Fund of which the Fund has
notified FDI in writing.
1.2 FDI agrees to use its best efforts to perform its duties hereunder
in the solicitation of orders for the sale of Shares. It is contemplated that
FDI may enter into sales or servicing agreements with securities dealers,
financial institutions and other industry professionals, such as investment
advisers, accountants and estate planning firms, and in so doing FDI will act
only on its own behalf as principal.
1.3 FDI shall act as distributor of Shares in compliance with all
applicable laws, rules and regulations, including, without limitations, the
Investment Company Act of 1940, as amended (the "1940 Act"), the 1933 Act, the
1934 Act, the Rules of the NASD, the Fund's Agreement and Declaration of Trust
and By-Laws. FDI represents and warrants that it is a
1
2
broker-dealer registered with the SEC and that it is registered with the
relevant securities regulatory agencies in all fifty states, the District of
Columbia and Puerto Rico. FDI also represents and warrants that it is a member
of the NASD.
1.4 FDI shall file Fund advertisements, sales literature and other
marketing and sales related materials with the appropriate regulatory agencies
and shall obtain such approvals for their use as may be required by the SEC, the
NASD and/or state securities administrators.
1.5 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind deemed by the parties hereto to render sales of a Fund's Shares not in the
best interest of the Fund, the parties hereto may decline to accept any orders
for, or make any sales of, any Shares until such time as those parties deem it
advisable to accept such orders and to make such sales and each party shall
advise promptly the other party of any such determination.
1.6 The Fund agrees to pay all costs and expenses in connection with
the registration of Shares under the 1933 Act and all expenses in connection
with maintaining facilities for the issue and transfer of Shares and for
supplying information, prices and other data to be furnished by the Fund
hereunder, and all expenses in connection with the preparation and printing of
the Fund's prospectuses and statements of additional information for regulatory
purposes and for distribution to shareholders; provided however, that the Fund
shall not pay any of the costs of advertising or promotion for the sale of
Shares, except as authorized by a plan adopted pursuant to Rule 12b-1 under the
1940 Act. FDI shall also be entitled to compensation for FDI's services as
provided in any Distribution Plan adopted as to any Series and class of the
Fund's Shares pursuant to Rule 12b-1 ("Rule 12b-1 fees"). To the extent that
Rule 12b-1 fees are paid to FDI as default broker-dealer, such Rule 12b-1 fees
shall continue to be paid to FDI after FDI ceases to act as distributor of the
Fund for so long as FDI continues to serve as such default broker-dealer.
1.7 The Fund agrees to execute any and all documents and to furnish any
and all information and otherwise to take all actions which may be reasonably
necessary in the discretion of the Fund's officers in connection with the
qualification of Shares for sale in such states as FDI may designate to the Fund
and the Fund may approve, and the Fund agrees to pay all expenses which may be
incurred in connection with such qualification. FDI shall pay all expenses
connected with its own qualification as a dealer under state or Federal laws
and, except as otherwise specifically provided in this Agreement, all other
expenses incurred by FDI in connection with the sale of Shares as contemplated
in this Agreement.
1.8 The Fund shall furnish FDI from time to time, for use in connection
with the sale of Shares, such information with respect to the Fund or any
relevant Series and the Shares as FDI may reasonably request. The Fund also
shall furnish FDI upon request with: (a) semi-annual reports and annual audited
reports of the Fund's books and accounts made by independent public accountants
regularly retained by the Fund, (b) quarterly earnings statements prepared by
the Fund, (c) a monthly itemized list of the securities in the Fund's or, if
applicable, each Series' portfolio, (d) monthly balance sheets as soon as
practicable after the end of each month, and (e) from time to time such
additional information regarding the Fund's financial condition as FDI may
reasonably request.
2
3
1.9 The Fund represents to FDI that all registration statements and
prospectuses filed by the Fund with the SEC under the 1933 Act and under the
1940 Act with respect to the Shares have been prepared in conformity with the
requirements of said Acts and rules and regulations of the SEC thereunder. As
used in this Agreement the terms "registration statement" and "prospectus" shall
mean any registration statement and prospectus of a Fund, including the
statement of additional information incorporated by reference therein, filed
with the SEC and any amendments and supplements thereto which at any time shall
have been filed with said Commission. The Fund represents and warrants to FDI
that any registration statement and prospectus, when such registration statement
becomes effective, will contain all material statements required to be stated
therein in conformity with said Acts and the rules and regulations of said
Commission; and that neither any registration statement nor any prospectus when
such registration statement becomes effective will include an 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. The Fund
may, but shall not be obligated to, propose from time to time such amendment or
amendments to any registration statement and such supplement or supplements to
any prospectus as, in the light of future developments, may, in the opinion of
the Fund's counsel, be necessary or advisable. If the Fund shall not propose
such amendment or amendments and/or supplement or supplements within fifteen
days after receipt by the Fund of a written request from FDI to do so, FDI may,
at its option, terminate this Agreement on not less than 60 days' notice or
decline to make offers of the Fund's securities until such amendments are made.
The Fund shall not file any amendment to any registration statement or
supplement to any prospectus without giving FDI reasonable notice thereof in
advance; provided, however, that nothing contained in this Agreement shall in
any way limit the Fund's right to file at any time such amendments to any
registration statement and/or supplements to any prospectus, of whatever
character, as the Fund may deem advisable, such right being in all respects
absolute and unconditional.
1.10 The Fund authorizes FDI and any dealers with whom FDI has entered
into dealer agreements to use any prospectus in the form furnished by the Fund
in connection with the sale of Shares. The Fund agrees to indemnify, defend and
hold FDI, its several officers and directors, and any person who controls FDI
within the meaning of Section 15 of the 1933 Act free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
reasonable cost of investigating or defending such claims, demands or
liabilities and any reasonable counsel fees incurred in connection therewith)
which FDI, its officers and directors, or any such controlling persons, may
incur under the 1933 Act, the 1940 Act, or common law or otherwise, arising out
of or on the basis of any untrue statement, or alleged untrue statement, of a
material fact required to be stated in either any registration statement or any
prospectus or any statement of additional information, or arising out of or
based upon any omission, or alleged omission, to state a material fact required
to be stated in any registration statement, any prospectus or any statement of
additional information or necessary to make the statements in any of them not
misleading, except that the Fund's agreement to indemnify FDI, its officers or
directors, and any such controlling person will not be deemed to cover any such
claim, demand, liability or expense to the extent that it arises out of or is
based upon any such untrue statement, alleged untrue statement, omission or
alleged omission made in any registration statement, any prospectus or any
statement of additional information in reliance upon information furnished by
FDI, its officers, directors or any such controlling person to the Fund or its
representatives for use in the preparation thereof, and except that the Fund's
agreement to indemnify FDI and the Fund's representations and warranties set out
in paragraph 1.9 of this Agreement will not be deemed to cover any liability to
the Fund or its shareholders to which FDI would otherwise be
3
4
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations and duties under this Agreement ("Disqualifying Conduct"). The
Fund's agreement to indemnify FDI, its officers and directors, and any such
controlling person, as aforesaid, is expressly conditioned upon the Fund's being
notified of any action brought against FDI, its officers or directors, or any
such controlling person, such notification to be given by letter, by facsimile
or by telegram addressed to the Fund at its address set forth on Schedule A,
attached hereto, within a reasonable period of time after the summons or other
first legal process shall have been served. The failure so to notify the Fund of
any such action shall not relieve the Fund from any liability which the Fund may
have to the person against whom such action is brought by reason of any such
untrue, or alleged untrue, statement or omission, or alleged omission, otherwise
than on account of the Fund's indemnity agreement contained in this paragraph
1.10. The Fund will be entitled to assume the defense of any suit brought to
enforce any such claim, demand or liability, but, in such case, such defense
shall be conducted by counsel of good standing chosen by the Fund and approved
by FDI, which approval shall not be unreasonably withheld. In the event the Fund
elects to assume the defense of any such suit and retain counsel of good
standing approved by FDI, 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 Fund does not elect to assume the defense of any such suit, the Fund
will reimburse FDI, its officers and directors, or the controlling person or
persons named as defendant or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by FDI or them. The Fund's indemnification
agreement contained in this paragraph 1.10 and the Fund's representations and
warranties in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of FDI, its officers and
directors, or any controlling person, and shall survive the delivery of any
Shares. This agreement of indemnity will inure exclusively to FDI's benefit, to
the benefit of FDI's several officers and directors, and their respective
estates, and to the benefit of any controlling persons and their successors. The
Fund agrees promptly to notify FDI of the commencement of any litigation or
proceedings against the Fund or any of its officers or Trustees in connection
with the issue and sale of Shares.
1.11 FDI agrees to indemnify, defend and hold the Fund, its several
officers and Trustees, and any person who controls the Fund within the meaning
of Section 15 of the 1933 Act free and harmless from and against any and all
claims, demands, liabilities and expenses (including the reasonable cost of
investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) which the Fund, its
officers or Trustees, or any such controlling person, may incur under the 1933
Act, the 1940 Act, or under common law or otherwise, but only to the extent that
such liability or expense incurred by the Fund, its officers or Trustees, or
such controlling person resulting from such claims or demands, (a) shall arise
out of or be based upon any unauthorized sales literature, advertisements,
information, statements or representations or any Disqualifying Conduct in
connection with the offering and sale of any Shares, (b) shall arise out of or
be based upon any untrue, or alleged untrue, statement of a material fact
contained in information furnished in writing by FDI to the Fund specifically
for use in the Fund's registration statement, or shall arise out of or be based
upon any omission, or alleged omission, to state a material fact in connection
with such information furnished in writing by FDI to the Fund and required to be
stated in such answers or necessary to make such information not misleading or
(c) any other liability to which the Fund becomes subject by reason of willful
misfeasance, bad faith or gross negligence in the performance (or failure to
perform) of FDI's duties under the Agreement. FDI's agreement to indemnify the
Fund, its officers and Trustees, and any such controlling person, as aforesaid,
is
4
5
expressly conditioned upon FDI being notified of any action brought against
the Fund, its officers or Trustees, or any such controlling person, such
notification to be given by letter, by facsimile or by telegram addressed to FDI
at its address set forth below within a reasonable period of time after the
summons or other first legal process shall have been served. FDI shall have the
right to control the defense of such action, with counsel of its own choosing,
satisfactory to the Fund, if such action is based solely upon such alleged
misstatement or omission on FDI's part, and in any other event the Fund, its
officers or Trustees, or such controlling person shall each have the right to
participate in the defense or preparation of the defense of any such action. The
failure so to notify FDI of any such action shall not relieve FDI from any
liability which FDI may have to the Fund, its officers or Trustees, or to such
controlling person by reason of any such untrue, or alleged untrue, statement or
omission, or alleged omission, otherwise than on account of FDI's indemnity
agreement contained in this paragraph 1.11. This agreement of indemnity will
inure exclusively to the Fund's benefit, to the benefit of the Fund's officers
and Trustees, and their respective estates, and to the benefit of any
controlling persons and their successors. FDI agrees promptly to notify the Fund
of the commencement of any litigation or proceedings against FDI or any of its
officers or directors in connection with the issue and sale of Shares.
1.12 No Shares shall be offered by either FDI or the Fund under any of
the provisions of this Agreement and no orders for the purchase or sale of such
Shares hereunder shall be accepted by the Fund if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the 1933
Act or if and so long as a current prospectus as required by Section 10 of said
Act, as amended, is not on file with the SEC; provided, however, that nothing
contained in this paragraph 1.12 shall in any way restrict or have an
application to or bearing upon the Fund's obligation to repurchase any Shares
from any shareholder in accordance with the provisions of the Fund's prospectus
or charter documents.
1.13 The Fund agrees to advise FDI immediately in writing:
(a) of any request by the SEC for amendments to the
registration statement or prospectus then in effect or for additional
information (not including comments provided by the SEC on an amendment
to the Fund's registration statement);
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or
prospectus then in effect or the initiation of any proceeding for that
purpose;
(c) of the happening of any event which makes untrue any
statement of a material fact made in the registration statement or
prospectus then in effect or which requires the making of a change in
such registration statement or prospectus in order to make the
statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendments to
any registration statement or prospectus which may from time to time be
filed with the SEC (not including comments provided by the SEC on an
amendment to the Fund's registration statement).
5
6
2. Offering Price
Shares of any class of a Fund offered for sale by FDI shall be offered
at a price per share (the "Offering Price") plus a purchase premium, as set
forth in the then-current prospectus. The Offering Price, if not an exact
multiple of one cent, shall be adjusted to the nearest cent. In addition, Shares
of any class of the Fund offered for sale by FDI may be subject to a redemption
fee as set forth in the Fund's then-current prospectus. Purchase premiums and
redemption fees are retained by the Fund to offset transaction costs associated
with investments and redemptions. Any payments to dealers shall be governed by a
separate agreement between FDI and such dealer and the Fund's then-current
prospectus.
3. Term
This Agreement shall become effective with respect to the Fund as of
the date hereof and will continue for an initial two-year term and will continue
thereafter so long as such continuance is specifically approved at least
annually (i) by the Fund's Board of Trustees or (ii) by a vote of a majority of
the Shares of the Fund or the relevant Series, as the case may be, provided that
in either event its continuance also is approved by a majority of the Board of
Trustees who are not "interested persons" of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval. This Agreement is terminable with respect to a Fund, a Series or a
class, without penalty, on not less than sixty days' notice, by the Fund's Board
of Trustees, by vote of a majority of the outstanding voting securities of such
Fund, or by FDI. This Agreement will automatically and immediately terminate in
the event of its "assignment." (As used in this Agreement, the terms "majority
of the outstanding voting securities," "interested person" and "assignment"
shall have the same meanings as such terms have in the 1940 Act). FDI agrees to
notify the Fund immediately upon the event of its expulsion, suspension or
censure by the NASD. This Agreement will automatically and immediately terminate
in the event of FDI's expulsion or suspension by the NASD.
4. Miscellaneous
4.1 The Fund recognizes that, except to the extent otherwise agreed to
by the parties hereto, FDI's directors, officers and employees may from time to
time serve as directors, trustees, officers and employees of corporations and
business trusts (including other investment companies), and that FDI or FDI's
affiliates may enter into distribution or other agreements with other
corporations and trusts.
4.2 No provision of this Agreement may be changed, waived, discharged
or terminated orally, but only by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
4.3 This Agreement and the Schedules forming a part hereof may be
amended at any time by a writing signed by each of the parties hereto. In the
event that the Trustees of any additional funds indicate by vote that such funds
are to be made parties to this Agreement, whether such funds were in existence
at the time of the effective date of this Agreement or subsequently formed,
Schedule A hereto shall be amended to reflect the addition of such new funds and
such new funds shall thereafter become parties hereto. In the event that any of
the Funds listed on Schedule A terminates its registration as a management
investment company, or
6
7
otherwise ceases operations, Schedule A shall be amended to reflect the deletion
of such Fund and its various Series and classes.
4.4 This Agreement is executed by the Board of Trustees of the Fund,
not individually, but in their capacity as Trustees under the Agreement and
Declaration of Trust made June 24, 1985, as amended. None of the shareholders,
Trustees, officers, employees, or agents of the Fund shall be personally bound
or liable under this Agreement, nor shall resort be had to their private
property for the satisfaction of any obligation or claim hereunder but only to
the property of the Fund and, if the obligation or claim relates to the property
held by the Fund for the benefit of one or more but fewer than all Series, then
only to the property held for the benefit of the affected Series.
4.5 This Agreement shall be governed by the internal laws of The
Commonwealth of Massachusetts without giving effect to principles of conflicts
of laws.
4.6 If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule, or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties have executed this Agreement by a duly
authorized representative of the parties hereto.
GMO TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
FUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
7
8
SCHEDULE A
GMO TRUST
00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Series Classes
------ -------
U. S. Core Fund II, III, IV
Tobacco-Free Core Fund III
Value Fund III
Fundamental Value Fund III
Intrinsic Value Fund III
Growth Fund III
Small Cap Value Fund III
Small Cap Growth Fund III
REIT Fund III
International Core Fund II, III, IV
Currency Hedged International Core Fund III, IV
Foreign Fund II, III, IV
International Small Companies Fund III
Japan Fund III
Emerging Markets Fund III, IV
Evolving Countries Fund III
Asia Fund III
Global Properties Fund III
Domestic Bond Fund III
U.S. Bond/Global Alpha A Fund III
U.S. Bond/Global Alpha B Fund III
International Bond Fund III
Currency Hedged International Bond Fund III
Global Bond Fund III
Emerging Country Debt Fund III, IV
Short-Term Income Fund III
Global Hedged Equity Fund III
Inflation Indexed Bond Fund III
Emerging Country Debt Share Fund III
International Equity Allocation Fund III
World Equity Allocation Fund III
Global (U.S.+) Equity Allocation Fund III
Global Balanced Allocation Fund III
U.S. Sector Fund III
Pelican Fund --
Tax-Managed U.S. Equities Fund III
Tax-Managed International Equities Fund III
Tax-Managed Small Companies Fund III
8
