Exhibit 6(b)
BT PYRAMID MUTUAL FUNDS
DISTRIBUTOR'S CONTRACT
AGREEMENT made as of this 30th day of September, 1996, by and between
BT PYRAMID MUTUAL FUNDS (the "Trust"), a Massachusetts business trust, and
Edgewood Services, Inc. ("EDGEWOOD"), a New York corporation.
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Trust hereby appoints EDGEWOOD as its principal underwriter, to act as
agent in selling and distributing shares of the Trust which may be offered in
one or more series (the "Funds") consisting of one or more classes (the
"Classes") of shares (the "Shares"), as described and set forth on one or more
exhibits to this Agreement, at the current offering price thereof as described
and set forth in the current Prospectuses of the Trust. EDGEWOOD hereby accepts
such appointment and agrees to provide such other services for the Trust, if
any, and accept such compensation from the Trust, if any, as set forth in the
applicable exhibits to this Agreement.
2. The sale of any Shares may be suspended without prior notice whenever in the
judgment of the Trust it is in its best interest to do so. In addition, the
Trust and EDGEWOOD reserve the right to reject any purchase order.
3. Neither EDGEWOOD nor any other person is authorized by the Trust to give any
information or to make any representation relative to any Shares other than
those contained in the Registration Statement, Prospectuses, or Statements of
Additional Information ("SAIs") filed with the Securities and Exchange
Commission, as the same may be amended from time to time, or in any supplemental
information to said Prospectuses or SAIs approved by the Trust. EDGEWOOD agrees
that any other information or representations other than those specified above
which it or any dealer or other person who purchases Shares through EDGEWOOD may
make in connection with the offer or sale of Shares, shall be made entirely
without liability on the part of the Trust. With respect to the duties and
services provided for in this Agreement, no person or dealer, other than
EDGEWOOD, is authorized to act as agent for the Trust for any purpose. EDGEWOOD
agrees that in offering or selling Shares as agent of the Trust, it will, in all
respects, duly conform to all applicable state and federal laws and the rules
and regulations of the National Association of Securities Dealers, Inc.,
including its Rules of Fair Practice. EDGEWOOD will submit to the Trust copies
of all sales literature before using the same and will not use such sales
literature if disapproved by the Trust.
4. This Agreement is effective with respect to each Class as of the date of
execution of the applicable exhibit and shall continue in effect with respect to
each Class presently set forth on an exhibit and any subsequent Classes added
pursuant to an exhibit during the initial term of this Agreement for one year
from the date set forth above, and thereafter for successive periods of one year
if such continuance is approved at least annually by the Trustees of the Trust
including a majority of the members of the Board of Trustees of the Trust who
are not interested persons of the Trust and have no direct or indirect financial
interest in the operation of any Distribution Plan relating to the Trust or in
any related documents to such Plan ("Disinterested Trustees") cast in person at
a meeting called for that purpose. If a Class is added after the first annual
approval by the Trustees as described above, this Agreement will be effective as
to that Class upon execution of the applicable exhibit and will continue in
effect until the next annual approval of this Agreement by the Trustees and
thereafter for successive periods of one year, subject to approval as described
above.
5. This Agreement may be terminated with regard to a particular Fund or Class at
any time, without the payment of any penalty, by the vote of a majority of the
Disinterested Trustees or by a majority of the outstanding voting securities of
the particular Fund or Class on not more than sixty (60) days' written notice to
any other party to this Agreement. This Agreement may be terminated with regard
to a particular Fund or Class by EDGEWOOD on sixty (60) days' written notice to
the Trust.
6. This Agreement may not be assigned by EDGEWOOD and shall automatically
terminate in the event of an assignment by EDGEWOOD as defined in the Investment
Company Act of 1940, as amended, provided, however, that EDGEWOOD may employ
such other person, persons, corporation or corporations as it shall determine in
order to assist it in carrying out its duties under this Agreement.
7. EDGEWOOD shall not be liable to the Trust for anything done or omitted by it,
except acts or omissions involving willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties imposed by this Agreement.
8. This Agreement may be amended at any time by mutual agreement in writing of
all the parties hereto, provided that such amendment is approved by the Trustees
of the Trust including a majority of the Disinterested Trustees of the Trust
cast in person at a meeting called for that purpose.
9. This Agreement shall be construed in accordance with and governed by the laws
of the State of New York.
10. (a) Subject to the conditions set forth below, the Trust agrees to
indemnify and hold harmless EDGEWOOD and each person, if any, who
controls EDGEWOOD within the meaning of Section 15 of the Securities Act
of 1933 and Section 20 of the Securities Exchange Act of 1934, as
amended, against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever) arising out
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of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Prospectuses
or SAIs (as from time to time amended and supplemented) or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading,
unless such statement or omission was made in reliance upon and in
conformity with written information furnished to the Trust about EDGEWOOD
by or on behalf of EDGEWOOD expressly for use in the Registration
Statement, any Prospectuses and SAIs or any amendment or supplement
thereof.
If any action is brought against EDGEWOOD or any controlling person
thereof with respect to which indemnity may be sought against the Trust
pursuant to the foregoing paragraph, EDGEWOOD shall promptly notify the
Trust in writing of the institution of such action and the Trust shall
assume the defense of such action, including the employment of counsel
selected by the Trust and payment of expenses. EDGEWOOD or any such
controlling person thereof shall have the right to employ separate
counsel in any such case, but the fees and expenses of such counsel shall
be at the expense of EDGEWOOD or such controlling person unless the
employment of such counsel shall have been authorized in writing by the
Trust in connection with the defense of such action or the Trust shall
not have employed counsel to have charge of the defense of such action,
in any of which events such fees and expenses shall be borne by the
Trust. Anything in this paragraph to the contrary notwithstanding, the
Trust shall not be liable for any settlement of any such claim of action
effected without its written consent. The Trust agrees promptly to notify
EDGEWOOD of the commencement of any litigation or proceedings against the
Trust or any of its officers or Trustees or controlling persons in
connection with the issue and sale of Shares or in connection with the
Registration Statement, Prospectuses, or SAIs.
(b) EDGEWOOD agrees to indemnify and hold harmless the Trust, each of its
Trustees, each of its officers who have signed the Registration Statement
and each other person, if any, who controls the Trust within the meaning
of Section 15 of the Securities Act of 1933, against any and all loss,
liability, claims, damage and expense whatsoever (including but not
limited to any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced
or threatened, or any claim whatsoever) arising out of or based upon any
untrue statement or any alleged untrue statement of material fact
contained in the Registration Statement, any Prospectuses or SAIs (as
from time to time amended or supplemented) or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
respect to alleged statements or alleged omissions or statements or
omissions, if any, made in the Registration Statement or any Prospectus,
SAI, or any amendment or supplement thereof in reliance upon, and in
conformity with, information furnished to the Trust about EDGEWOOD by or
on behalf of EDGEWOOD expressly for use in the Registration Statement or
any Prospectus, SAI, or any amendment or supplement thereof. In case any
action shall be brought against the Trust or any other person so
indemnified based on the Registration Statement or any Xxxxxxxxxx, XXX,
0
or any amendment or supplement thereof, and with respect to which
indemnity may be sought against EDGEWOOD, EDGEWOOD shall have the rights
and duties given to the Trust, and the Trust and each other person so
indemnified shall have the rights and duties given to EDGEWOOD by the
provisions of subsection (a) above.
(c) Nothing herein contained shall be deemed to protect any person
against liability to the Trust or its shareholders to which such person
would otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of the duties of such person or by
reason of the reckless disregard by such person of the obligations and
duties of such person under this Agreement.
(d) Insofar as indemnification for liabilities may be permitted pursuant
to Section 17 of the Investment Company Act of 1940, as amended, for
Trustees, officers, EDGEWOOD, and controlling persons of the Trust by the
Trust pursuant to this Agreement, the Trust is aware of the position of
the Securities and Exchange Commission as set forth in the Investment
Company Act Release No. IC-11330. Therefore, the Trust undertakes that in
addition to complying with the applicable provisions of this Agreement,
in the absence of a final decision on the merits by a court or other body
before which the proceeding was brought, that an indemnification payment
will not be made unless in the absence of such a decision, a reasonable
determination based upon factual review has been made (i) by a majority
vote of a quorum of non-party Disinterested Trustees, or (ii) by
independent legal counsel in a written opinion that the indemnitee was
not liable for an act of willful misfeasance, bad faith, gross negligence
or reckless disregard of duties. The Trust further undertakes that
advancement of expenses incurred in the defense of a proceeding (upon
undertaking for repayment unless it is ultimately determined that
indemnification is appropriate) against an officer, Trustee, EDGEWOOD or
controlling person of the Trust will not be made absent the fulfillment
of at least one of the following conditions: (i) the indemnitee provides
security for his undertaking; (ii) the Trust is insured against losses
arising by reason of any lawful advances; or (iii) a majority of a quorum
of non-party Disinterested Trustees or independent legal counsel in a
written opinion makes a factual determination that there is reason to
believe the indemnitee will be entitled to indemnification.
11. EDGEWOOD is hereby expressly put on notice of the limitation of liability as
set forth in the Declaration of Trust and agrees that the obligations assumed by
the Trust pursuant to this Agreement shall be limited in any case to the Trust
and its assets and EDGEWOOD shall not seek satisfaction of any such obligation
from the shareholders of the Trust, the Trustees, officers, employees or agents
of the Trust, or any of them.
12. This Agreement will become binding on the parties hereto upon the execution
of the attached exhibits to the Agreement.
13. EDGEWOOD shall be responsible for reviewing and making any filings of
advertisements and sales literature relating to the Funds that have been
furnished to EDGEWOOD.
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14. EDGEWOOD agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trust all records and other
information not otherwise publicly available relative to the Trust and its
prior, present or potential shareholders and not to use such records and
information for any purpose other than performance of its responsibilities and
duties hereunder, except after prior notification to and approval in writing by
the Trust, which approval shall not be unreasonably withheld and may not be
withheld where EDGEWOOD may be exposed to civil or criminal contempt proceedings
for failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
15. EDGEWOOD and the Trust each hereby represents and warrants to the other that
it has all the requisite authority to enter into, execute, deliver and perform
its obligations under this Agreement and that, with respect to it, this
Agreement is legal, valid and binding, and enforceable in accordance with its
terms.
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Exhibit A
to the
Distributor's Contract
BT PYRAMID MUTUAL FUNDS
As Last Amended: December 11, 1996
The following provisions are hereby incorporated and made part of the
Distributor's Contract dated as of September 30, 1996, between BT Pyramid Mutual
Funds and Edgewood Services, Inc. with respect to the Funds and Classes of
shares set forth in Schedule A to this Exhibit, attached hereto (collectively,
"Funds").
1. The Trust hereby appoints EDGEWOOD to engage in activities principally
intended to result in the sale of shares of the Funds ("Shares"). Pursuant to
this appointment, EDGEWOOD is authorized to select a group of financial
institutions ("Financial Institutions") to sell Shares at the current offering
price thereof as described and set forth in the respective prospectuses of the
Trust and/or provide services and shareholder account maintenance services to
Fund shareholders.
2. During the term of this Agreement, the Trust will pay EDGEWOOD for services
pursuant to this Agreement, a monthly fee computed at the annual rate indicated
on Schedule A on the average aggregate net asset value of the Shares held during
the month. For the month in which this Agreement becomes effective or
terminates, there shall be an appropriate proration of any fee payable on the
basis of the number of days that the Agreement is in effect during the month.
3. EDGEWOOD may from time-to-time and for such periods as it deems appropriate
reduce its compensation to the extent any Fund's expenses exceed such lower
expense limitation as EDGEWOOD may, by notice to the Trust, voluntarily declare
to be effective.
4. EDGEWOOD will enter into separate written agreements with various firms to
provide certain of the services set forth in Paragraph 1 herein. EDGEWOOD, in
its sole discretion, may pay Financial Institutions a periodic fee in respect of
Shares owned from time to time by their clients or customers. The schedules of
such fees and the basis upon which such fees will be paid shall be determined
from time to time by EDGEWOOD in its sole discretion.
5. EDGEWOOD will prepare reports to the Board of Trustees of the Trust on a
quarterly basis showing amounts expended hereunder including amounts paid to
Financial Institutions and the purpose for such expenditures.
In consideration of the mutual covenants set forth in the Distributor's
Contract dated as of September 30, 1996 between BT Pyramid Mutual Funds and
EDGEWOOD, BT Pyramid Mutual Funds executes and delivers this Exhibit on behalf
of the Funds, and with respect to the Classes set forth in Schedule A to this
Exhibit.
Witness the due execution hereof this 30th day of September, 1996.
ATTEST: BT Pyramid Mutual Funds
/s/ Xxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------- --------------------------
[Secretary] [Vice President]
(SEAL)
ATTEST: Edgewood Services, Inc.
/s/ S. Xxxxxxx Xxxxx By: /s/ R. Xxxxxxx Xxxx
-------------------- ---------------------------
[Secretary] [Senior Vice President]
(SEAL)
SCHEDULE A
OF
EXHIBIT A
TO THE
DISTRIBUTOR'S CONTRACT
As Last Amended: December 11, 1996
The provisions of the Distributor's Contract between BT Pyramid Mutual Funds and
Edgewood Services, Inc. shall be effective with respect to each Fund and Class
as of the date set forth below.
Name of Fund Effective Date Fee
------------ -------------- ---
BT Investment Money Market Fund September 30, 1996 0.20%
BT Investment Equity 500 Index Fund September 30, 1996 0.20%
BT Investment Limited Term U.S. Government September 30, 1996 0.20%
Securities Fund
BT Investment Equity Appreciation Fund
Investment Class September 30, 1996 0.20%
Advisor Class September 30, 1996 0.50%
BT Institutional Asset Management Fund September 30, 1996 0.20%
BT RetirementPlus Fund December 11, 1996 0.20%
Investment Class
Exhibit B
to the
Distributor's Contract
BT PYRAMID MUTUAL FUNDS
In consideration of the mutual covenants set forth in the Distributor's
Contract dated September 30, 1996 between BT PYRAMID MUTUAL FUNDS and EDGEWOOD,
BT PYRAMID MUTUAL FUNDS executes and delivers this Exhibit on behalf of the
Funds and Classes of shares first set forth in Schedule A to this Exhibit,
attached hereto.
Witness the due execution hereof this 30th day of September, 1996.
ATTEST: BT Pyramid Mutual Funds
/s/ Xxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
----------------- ------------------------
[Secretary] [Vice President]
(SEAL)
ATTEST: Edgewood Services, Inc.
/s/ S. Xxxxxxx Xxxxx By: /s/ R. Xxxxxxx Xxxx
-------------------- -------------------------
[Secretary] [Senior Vice President]
(SEAL)
SCHEDULE A
OF
EXHIBIT B
TO THE
DISTRIBUTOR'S CONTRACT
The provisions of the Distributor's Contract between BT Pyramid Mutual
Funds and Edgewood Services, Inc. shall be effective with respect to each Fund
and Class as of the date set forth below.
Name of Fund Effective Date
------------ --------------
BT Retirement PlusFund December 11, 1996
Institutional Class
Xxxxxxxxxxx & Xxxxxxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
(000) 000-0000
(000) 000-0000
February 24, 1997
BT Pyramid Mutual Funds
000 Xxxxxxx Xxxxxx
Bankers Trust Plaza
New York, New York
Re: BT Retirement Plus Fund
Ladies and Gentlemen:
BT Pyramid Mutual Funds (the "Trust") is an unincorporated voluntary
association organized under the laws of The Commonwealth of Massachusetts on
March 4, 1992. You have requested our opinion in connection with the Trust's
issuance of shares of beneficial interest (the "Shares") in the series
designated as BT Retirement Plus Fund (the "Fund").
We have, as special counsel to the Trust, participated in certain
proceedings related to the Trust. We have examined copies, either certified or
otherwise proved to be genuine, of the Declaration of Trust, and any amendments
thereto, and by-laws of the Trust, the minutes of meetings of its board of
trustees and other documents relating to its organization and operation. We have
also received the certificate of an officer of the Fund as attached hereto and
have, with your consent, relied upon the information set forth in such
certificate. Based upon the foregoing, and subject to compliance with the
Securities Act of 1933, the Investment Company Act of 1940 and applicable state
laws regulating the offer and sale of securities, it is our opinion that the
unlimited number of Shares of the Fund that are currently being registered may
be legally and validly issued in accordance with the Trust's Declaration of
Trust, as amended, and by-laws; and when so issued, the Shares will be legally
issued, fully paid and non-assessable by the Trust.
The Trust is an entity of the type commonly known as a "Massachusetts
business trust." Under Massachusetts law, shareholders could, under certain
circumstances, be held personally liable for the obligations of the Trust. The
Declaration of Trust, as amended, provides that "[n]o Shareholder shall be
subject to any personal liability whatsoever to any Person [defined as
individuals, corporations, partnerships, trusts, associations, joint ventures
and other entities, whether or not legal entities, and governments and agencies
and political subdivisions thereof, whether domestic or foreign] in connection
with Trust Property or the acts, obligations or affairs of the Trust...and all
such Persons shall look solely to the Trust Property for satisfaction of claims
of any nature arising in connection with the affairs of the Trust." The
Declaration of Trust also
BT Pyramid Mutual Funds
February 24, 1997
page two
provides that "[e]very written obligation contract, instrument, artifact, Share,
other security of the Trust or undertaking made or issued by the Trustees shall
recite...that the obligations of any such instrument are not binding upon any of
the Trustees or Shareholders individually, but bind only the Trust estate." The
Declaration of Trust further provides that the Trust "shall indemnify and hold
each Shareholder harmless from and against all claims and liabilities to which
such Shareholder may become subject by reason of his being or having been a
Shareholder, and shall reimburse such Shareholder for all legal and other
expenses reasonably incurred by him in connection with any such claim or
liability...[provided that] no Trust Property shall be used to indemnify or
reimburse any Shareholder of any shares of any series other than Trust Property
allocated or belonging to that series." Thus, the risk of a shareholder
incurring financial loss on account of shareholder liability is limited to
circumstances in which the Trust or series would be unable to meet its
obligations.
We hereby consent to the filing of this opinion in connection with
Post-Effective Amendment No. 14 to the Trust's Registration Statement on Form
N-1A (File No. 33-45973) to be filed with the Securities and Exchange
Commission. We also consent to the reference to our firm under the caption
"Counsel" in the Statement of Additional Information filed as part of the
Registration Statement.
Very truly yours,
Xxxxxxxxxxx & Xxxxxxxx LLP
By: /s/ Xxxx X. Xxxxxxxx
------------------------
Xxxx X. Xxxxxxxx
