DISTRIBUTION AGREEMENT
Fiduciary Management Associates
0000 Xxxxxx xx xxx Xxxxxxxx Xxx
Xxxx, Xxx Xxxx 00000
July 22, 1992
Alliance Fund Distributors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the mutual
agreements herein contained and on the terms and conditions set
forth herein, we have agreed that you shall be, for the period of
this agreement, a distributor, as our agent, for the unsold
portion of such number of our shares of beneficial interest ($.01
par value) as may from time to time be effectively registered
under the Securities Act of 1933, as amended (hereinafter
referred to as the "Act").
1. We hereby agree to offer through you as our agent,
and to solicit, through you as our agent, offers to subscribe to
the unsold balance of shares as shall then be effectively
registered under the Act, and you are appointed our agent for
such purpose. All subscriptions for. our shares obtained by you
shall be directed to us for acceptance and shall not be binding
on us until accepted by us. You shall have no authority to make
binding subscriptions on our behalf. We reserve the right to sell
our shares through other distributors or directly to investors
through subscriptions received by us at our principal office in
New York, New York. The right given to you under this agreement
shall not apply to shares issued in connection with (a) the
merger or consolidation of any other investment company with us,
(b) our acquisition by purchase or otherwise of all or
substantially all of the assets or stock of any other investment
company or (c) the reinvestment in our shares by our stockholders
of dividends or other distributions or any other offering of
shares to our stockholders.
2. You will use your best efforts to obtain
subscriptions to our shares upon the terms and conditions
contained herein and in the then current Prospectus and Statement
of Additional Information, including the offering price. You will
send to us promptly all subscriptions placed with you. We shall
advise you of the approximate net asset value per share or net
asset value per share (as used in the Prospectus and Statement of
Additional Information) on any date requested by you and at such
other times as it shall have been determined by us. We shall
furnish you from time to time, for use in connection with the
offering of our shares, such other information with respect to us
and our shares as you may reasonably request. We shall supply you
with such copies of our current Prospectus and Statement of
Additional Information in effect from time to time as you may
request. You are not authorized to give any information or to
make any representations, other than those contained in the
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Registration Statement or Prospectus and Statement of Additional
Information, as then in effect, filed under the Act covering our
shares or which we may authorize in writing. You may use
employees and agents at your cost and expenses to assist you in
carrying out your obligations hereunder but no such employee or
agent shall be deemed to be our agent or have any rights under
this agreement.
3. We reserve the right to suspend the offering of our
shares at any time, in the absolute discretion of our Trustees,
and upon notice of such suspension you shall cease to offer our
shares hereunder.
4. Both of us will cooperate with each other in taking
such action as may be necessary to qualify our shares for sale
under the securities laws of such states as we may designate,
provided, that, you shall not be required to register as a
broker-dealer or file a consent to service of process in any such
state. Pursuant to our Advisory Agreement dated July 22, 1992
with Alliance Capital Management L.P., we will pay all fees and
expenses of registering our Shares under the Act and of
qualification of our shares and our qualification under
applicable state securities laws. You shall pay all expenses
relating to your broker-dealer qualification.
5. We represent to you that our Registration
Statement, Prospectus and Statement of Additional Information (as
in effect from time to time) under the Act have been or will be,
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as the case may be, carefully prepared in conformity with the
requirements of the Act and the rules and regulations of the
Securities and Exchange Commission thereunder. We represent and
warrant to you that our Registration Statement, Prospectus and
Statement of Additional Information contain or will contain all
statements required to be stated therein in accordance with the
Act and the rules and regulations of said commission, and that
all statements of fact contained or to be contained therein are
or will be true and correct at the time indicated or the
effective date as the case may be; that neither our Registration
Statement nor our Prospectus and Statement of Additional
Information, when it shall become effective or be authorized for
use, 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 to a
purchaser of our shares. We will from time to time file such
amendment or amendments to our Registration Statement, Prospectus
and Statement of Additional Information as, in the light of
future developments, shall, in the opinion of our counsel, be
necessary in order to have our Registration Statement, Prospectus
and Statement of Additional Information at all times contain all
material facts required to be stated therein or necessary to make
any statements therein not misleading to a purchaser of our
shares, but, if we shall not file such amendment or amendments
within fifteen days after receipt by us of a written request from
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you to do so, you may, at your option, terminate this agreement
immediately. We shall not file any amendment to our Registration
Statement or Prospectus and Statement of Additional Information
without giving you reasonable notice thereof in advance;
provided, however, that nothing contained in this agreement shall
in any way limit our right to file at any time such amendments to
our Registration Statement or Prospectus and Statement of
Additional Information, of whatever character, as we may deem
advisable, such right being in all respects absolute and
unconditional. We represent and warrant to you that any amendment
to our Registration Statement or Prospectus and Statement of
Additional Information hereafter filed by us will, when it
becomes effective, contain all statements required to be stated
therein in accordance with the Act and the rules and regulations
of said Commission, that all statements of fact contained therein
will, when the same shall become effective, be true and correct
and that no such amendment, when it becomes effective, will
include an untrue statement of a material fact or will omit to
state a material fact required to be stated therein or necessary
to make statements therein not misleading to a purchaser of our
shares.
6. We agree to indemnify, defend and hold you, and any
person who controls you within the meaning of Section 15 of the
Act, free and harmless from and against any and all claims,
demands, liabilities and expenses (including the cost of
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investigating or defending such claims, demands or liabilities
and any counsel fees incurred in connection therewith) which you
or any such controlling person may incur, under the Act, or under
common law or otherwise, arising out of or based upon any alleged
untrue statement of a material fact contained in our Registration
Statement or Prospectus and Statement of Additional Information
in effect from time to time under the Act or arising out of or
based upon any alleged omission to state a material fact required
to be stated in either thereof or necessary to make the
statements in either thereof not misleading; provided, however,
that in no event shall anything herein contained be so construed
as to protect you against any liability to us or our security
holders to which you would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the
performance of your duties, or by reason of your reckless
disregard of your obligations and duties under this agreement.
Our agreement to indemnify you and any such controlling person as
aforesaid is expressly conditioned upon our being notified of any
action brought against you or any such controlling person, such
notification to be given by letter or by telegram addressed to us
at our principal office in New York, New York, and sent to us 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 us of any such action shall not
relieve us from any liability which we may have to the person
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against whom such action is brought by reason of any such alleged
untrue statement or omission otherwise than on account of our
indemnity agreement contained in this paragraph 6. We 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 us
and approved by you. In the event we do elect to assume the
defense of any such suit and retain counsel of good standing
approved by you, 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 we do not elect to assume the defense of
any such suit, or in case you do not approve of counsel chosen by
us, we will reimburse you or the controlling person or persons
named as defendant or defendants in such suit, for the fees and
expenses of any counsel retained by you or them. Our
indemnification agreement contained in this paragraph 6 and our
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 you or any controlling
person and shall survive the sale of any of our shares made
pursuant to subscriptions obtained by you. This agreement of
indemnity will inure exclusively to your benefit, to the benefit
of your successors and assigns, and to the benefit of any
controlling persons and their successors and assigns. We agree
promptly to notify you of the commencement of any litigation or
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proceeding against us in connection with the issue and sale of
any of our shares.
7. You agree to indemnify, defend and hold us, our
several officers and trustees, and any person who controls us
within the meaning of Section 15 of the Act, free and harmless
from and against any and all claims, demands, liabilities, and
expenses (including the cost of investigating or defending such
claims, demands or liabilities and any reasonable counsel fees
incurred in connection therewith) which we, our officers or
trustees, or any such controlling person may incur under the Act
or under common law or otherwise, but only to the extent that
such liability, or expense incurred by us, our officers or
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 you to us for use in our Registration Statement or
Prospectus and Statement of Additional Information in effect from
time to time under the 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 or Prospectus and Statement of Additional Information
or necessary to make such information not misleading. Your
agreement to indemnify us, our officers and trustees, and any
such controlling person as aforesaid is expressly conditioned
upon your being notified of any action brought against us, our
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officers or trustees or any such controlling person, such
notification to be given by letter or telegram addressed to you
at your principal office in New York, New York, and sent to you
by the person against whom such action is brought, within ten
days after the summons or other first legal process shall have
been served. You shall have a right to control the defense of
such action, with counsel of your own choosing, satisfactory to
us, if such action is based solely upon such alleged misstatement
or omission on your part, and in any other event you and we, our
officers or trustees or such controlling person shall each have
the right to participate in the defense or preparation of the
defense of such action. The failure to so notify you of any such
action shall not relieve you from any liability which you may
have to us, to our officers or trustees, or to such controlling
person by reason of any such untrue statement or omission on your
part otherwise than on account of your indemnity agreement
contained in this paragraph 7.
8. We agree to advise you immediately:
(a) of any request by the Securities and Exchange
Commission for amendments to our Registration Statement or
Prospectus and 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 our Registration Statement or Prospectus and
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Statement of Additional Information or the initiation of any
proceedings for that purpose,
(c) of the happening of any material event which makes
untrue any statement made in our Registration Statement or
Prospectus and Statement of Additional Information or which
requires the making of a change in either thereof in order to
make the statements therein not misleading, and
(d) of all action of the Securities and Exchange
Commission with respect to any amendments to our Registration
Statement or Prospectus and Statement of Additional Information
which may from time to time be filed with the Securities and
Exchange commission under the Act.
9. This agreement shall become effective as of
July 22, 1992 and shall remain in effect until September 30, 1992
and thereafter automatically for successive twelve-month periods
(computed from each October 1) provided that such continuance is
specifically approved at least annually by a vote of a majority
of outstanding voting securities, as defined in the Investment
Company Act of 1940, or by our Trustees and in either case by a
majority of our trustees who are not parties to this agreement or
interested persons, as defined in the Investment Company Act of
1940, of any such party. This agreement may be terminated at any
time, without the payment of any penalty, by vote of a majority
of our outstanding voting securities (as so defined), or by a
vote of a majority of our entire Board of Trustees, on sixty
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days, written notice to you, or by you, on sixty days' written
notice to us.
10. This agreement may not be transferred, assigned,
sold or in any manner hypothecated or pledged by you 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.
11. Except to the extent necessary to perform your
obligations hereunder, nothing herein shall be deemed to limit or
restrict your right, or the right of any of your officers,
directors or employees who may also be a trustee, officer or
employee of ours, to engage in any other business or to devote
time and attention to the management or other aspects of any
other business, whether of a similar or dissimilar nature, or to
render services of any kind to any other corporation, firm,
individual or association.
If the foregoing is in accordance with your
understanding, will you kindly so indicate by signing and
returning to us the enclosed copy hereof.
Very truly yours,
FIDUCIARY MANAGEMENT ASSOCIATES
/s/ Xxxx X. Xxxxxx
By______________________________
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Xxxx X. Xxxxxx
Executive Vice President
Accepted as of the date first set
forth above
ALLIANCE FUND DISTRIBUTORS, INC.
/s/ Xxxxxx Xxxxxx
By___________________________
Xxxxxx Xxxxxx
President
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00250061.AI0
