DISTRIBUTION AGREEMENT
between
THE ENTERPRISE GROUP OF FUNDS II, INC.
and
ENTERPRISE FUND DISTRIBUTORS, INC.
(Applicable to Class A, Class B, Class C and Class Y Shares)
THIS AGREEMENT made this 28th day of December, 2004 by and between THE
ENTERPRISE GROUP OF FUNDS II, INC., a Maryland corporation (the "Corporation"),
with respect to the series of beneficial interest set forth on Appendix A to
this Agreement, and any applicable classes thereof (each a "Fund", collectively,
the "Funds"), and ENTERPRISE FUND DISTRIBUTORS, INC., a Georgia corporation (the
"Distributor").
WITNESSETH:
In consideration of the mutual covenants herein contained and other
good and valuable consideration, the receipt whereof is hereby acknowledged, the
parties hereto agree as follows:
FIRST:
The Corporation on behalf of the Funds hereby appoints the Distributor
and such affiliates of the Distributor as enter into similar agreements as its
exclusive agents for the sale of shares of the Funds to the public directly
and/or through investment dealers and financial institutions in the United
States and throughout the world.
SECOND:
The Corporation shall not sell any shares of the Funds except through
one of its agents and under the terms and conditions set forth in paragraph
FOURTH below. Notwithstanding the provisions of the foregoing sentence, however,
this appointment does not preclude sales of shares of the Funds directly through
the Funds' transfer agent(s) in the manner set forth in a Fund's Registration
Statement. As used in this Agreement, the term "Registration Statement" shall
mean the currently effective registration statement of a Fund, and any
supplements thereto, under the Securities Act of 1933 (the "1933 Act"), and the
Investment Company Act of 1940, as amended (the "1940 Act").
THIRD:
The Distributor hereby accepts appointment as agent for the sale of
the shares of the Funds and agrees that it will use its best efforts to sell
such shares; provided, however, that:
. the Distributor may, and when requested by the Corporation on behalf
of a Fund shall, suspend its efforts to effectuate such sales at any
time when, in the opinion of the Distributor or of the Corporation, no
sales should be made because of market or other economic
considerations or abnormal circumstances of any kind; and
. the Corporation may withdraw the offering of the shares of a Fund (i)
at any time with the consent of the Distributor, or (ii) without such
consent when so required by the provisions of any statute or of any
order, rule or regulation of any governmental body having
jurisdiction. It is mutually
understood and agreed that the Distributor does not undertake to sell
any specific amount of the shares of the Funds. The Corporation shall
have the right to specify minimum amounts for initial and subsequent
orders for the purchase of shares of any Fund.
FOURTH:
The public offering price of Class A, Class B, Class C and Class Y
shares of a Fund (the "offering price") shall be the net asset value per share
of the applicable Fund plus a sales charge, if any. Net asset value per share
shall be determined in accordance with the provisions of the Registration
Statement of the applicable Fund.
As compensation for its service activities under this Agreement with
respect to Class A, Class B and Class C, the Distributor shall receive from the
Corporation a service fee, based on the amount of sales of such shares
attributable to the Distributor, at the rate and under the terms and conditions
of the distribution plan adopted by the Corporation on behalf of a Fund pursuant
to Rule 12b-1 under the 1940 Act (the "12b-1 Plan"), as such Plan is amended
from time to time, and subject to any further limitations on such fee as the
Board of Directors may impose.
As compensation for its activities under this Agreement with respect
to the distribution of Class A and Class C, the Distributor shall retain the
initial sales charges, if any, based on the amount of sales of such shares
attributable to the Distributor, on purchases of Class A and Class C shares as
set forth in the Registration Statement. The Distributor is authorized to
collect the gross proceeds derived from the sale of the Class A and Class C,
remit the net asset value thereof to the Corporation upon receipt of the
proceeds and retain the initial sales charge, if any.
As compensation for its activities under this Agreement with respect
to the distribution of the Class A, Class B and Class C shares, the Distributor
shall receive all contingent deferred sales charges, based on the amount of
sales of such shares attributable to the Distributor, imposed on redemptions of
Class A, Class B and Class C shares of each Fund. Whether and at what rate a
contingent deferred sales charge will be imposed with respect to a redemption
shall be determined in accordance with, and in the manner set forth in, the
Registration Statement.
As compensation for its activities under this Agreement with respect
to the distribution of the Class A, Class B and Class C shares, the Distributor
shall receive from the Corporation a distribution fee, based on the amount of
sales of such shares attributable to the Distributor, at the rate and under the
terms and conditions of the 12b-1 Plan, as such Plan is amended from time to
time, and subject to any further limitations on such fee as the Board of
Directors may impose.
The Distributor may reallow any or all of the initial sales charges,
contingent deferred sales charges, or service fees which it is paid under this
Agreement with respect to Class A, Class B or Class C shares to such dealers as
the Distributor may from time to time determine. The Corporation shall have no
obligation to compensate or reimburse the Distributor for any services performed
by it hereunder with respect to Class Y shares.
FIFTH:
The Distributor shall act as agent of the Corporation on behalf of the
Funds in connection with the sale and repurchase of shares of the Funds. Except
with respect to such sales and repurchases, the Distributor shall act as
principal in all matters relating to the promotion of the sale of shares of the
Funds and shall enter into all of its own engagements, agreements and contracts
as principal on its own account. The Distributor may enter into agreements with
investment dealers and financial institutions selected by the Distributor,
authorizing such investment dealers and financial institutions to offer and sell
shares of the Funds to the public upon the terms and conditions set forth
therein, which shall not be inconsistent with the
provisions of this Agreement. Each agreement shall provide that the investment
dealer and financial institution shall act as a principal, and not as an agent,
of the Corporation on behalf of the Funds.
SIXTH:
The Funds shall bear:
. the expenses of qualification of shares of the Funds for sale in
connection with such public offerings in such states as shall be
selected by the Distributor, and of continuing the qualification
therein until the Distributor notifies the Corporation that it does
not wish such qualification continued; and
. all legal expenses in connection with the foregoing.
SEVENTH:
The Distributor shall bear the expenses of printing from the final
proof and distributing the Funds' prospectuses and statements of additional
information (including supplements thereto) relating to public offerings made by
the Distributor pursuant to this Agreement (which shall not include those
prospectuses and statements of additional information, and supplements thereto,
to be distributed to shareholders of the Funds), and any other promotional or
sales literature used by the Distributor or furnished by the Distributor to
dealers in connection with such public offerings, and expenses of advertising in
connection with such public offerings.
The Distributor may be reimbursed for all or a portion of such
expenses, or may receive reasonable compensation for distribution related
services, to the extent those services are deemed to be appropriate subjects for
the payment of "service fees" under Rule 2830 of the Conduct Rules of the
National Association of Securities Dealers, Inc. and permitted by the 12b-1
Plan.
EIGHTH:
The Distributor will accept orders for the purchase of shares of the
Funds only to the extent of purchase orders actually received and not in excess
of such orders, and it will not avail itself of any opportunity of making a
profit by expediting or withholding orders. It is mutually understood and agreed
that the Corporation may reject purchase orders where, in the judgment of the
Corporation, such rejection is in the best interest of the Corporation.
NINTH:
The Corporation, on behalf of the Funds, and the Distributor shall
each comply with all applicable provisions of the 1940 Act, the 1933 Act and all
other federal and state laws, rules and regulations governing the issuance and
sale of shares of the Funds.
TENTH:
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of the
Distributor, the Corporation on behalf of the Funds agrees to indemnify the
Distributor against any and all claims, demands, liabilities and expenses which
the Distributor may incur under the 1933 Act, or common law or otherwise,
arising out of or based upon any alleged untrue statement of a material fact
contained in any Registration Statement or prospectus of a Fund, or any omission
to state a material fact therein, the omission of which makes any statement
contained therein misleading, unless such statement or omission was made in
reliance upon, and in conformity with, information furnished to the Corporation
or a Fund in connection therewith by or on behalf of the
Distributor. The Distributor agrees to indemnify the Corporation and the Funds
against any and all claims, demands, liabilities and expenses which the
Corporation or a Fund may incur arising out of or based upon any act or deed of
the Distributor or its sales representatives which has not been authorized by
the Corporation or a Fund in its prospectus or in this Agreement.
The Distributor agrees to indemnify the Corporation and the Funds
against any and all claims, demands, liabilities and expenses which the
Corporation or the Funds may incur under the 1933 Act, or common law or
otherwise, arising out of or based upon any alleged untrue statement of a
material fact contained in any Registration Statement or prospectus of a Fund,
or any omission to state a material fact therein if such statement or omission
was made in reliance upon, and in conformity with, information furnished to the
Corporation or a Fund in connection therewith by or on behalf of the
Distributor.
Notwithstanding any other provision of this Agreement, the Distributor
shall not be liable for any errors of the Funds' transfer agent(s), or for any
failure of any such transfer agent to perform its duties.
ELEVENTH:
Nothing herein contained shall require the Corporation to take any
action contrary to any provision of its Articles of Incorporation, or to any
applicable statute or regulation.
TWELFTH:
This Agreement shall become effective with respect to each Fund as of
the date hereof, shall continue in force and effect until December 28, 2005, and
shall continue in force and effect from year to year thereafter, provided, that
such continuance is specifically approved with respect to such Fund at least
annually (a)(i) by the Board of Directors of the Corporation or (ii) by the vote
of a majority of the outstanding voting securities (as defined in Section
2(a)(42) of the 1940 Act), and (b) by vote of a majority of the Corporation's
directors who are not parties to this Agreement or "interested persons" (as
defined in Section 2(a)(19) of the 0000 Xxx) of any party to this Agreement cast
in person at a meeting called for such purpose.
THIRTEENTH:
This Agreement may be terminated with respect to any Fund at any time,
without the payment of any penalty, by vote of the Board of Directors of the
Corporation or by vote of a majority of the outstanding voting securities of the
applicable Fund, or by the Distributor, on sixty (60) days' written notice to
the other party.
This Agreement shall automatically terminate in the event of its
assignment, the term "assignment" having the meaning set forth in Section
2(a)(4) of the 1940 Act.
FOURTEENTH:
Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage prepaid, to the other party at such address as the
other party may designate for the receipt of notices. Until further notice to
the other party, it is agreed that the addresses of both the Corporation and the
Distributor shall be as follows:
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx Xxxxx
FIFTEENTH:
Notice is hereby given that, as provided by applicable law, the
obligations of or arising out of this Agreement are not binding upon any of the
shareholders of the Corporation individually, but are binding only upon the
assets and property of the Corporation and that the shareholders shall be
entitled, to the fullest extent permitted by applicable law, to the same
limitation on personal liability as stockholders of private corporations for
profit.
SIXTEENTH:
This Agreement shall be deemed to be a contract made in the State of
Maryland and governed by, construed in accordance with and enforced pursuant to
the internal laws of the State of Maryland without reference to its conflicts of
laws rules.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate on the day and year first above written.
THE ENTERPRISE GROUP OF FUNDS II, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
ENTERPRISE FUND DISTRIBUTORS, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx
Title: President
APPENDIX A
TO
DISTRIBUTION AGREEMENT
OF
THE ENTERPRISE GROUP OF FUNDS II, INC.
CLASS A, CLASS B, CLASS C AND CLASS Y SHARES
Enterprise Multi-Cap Growth Fund
Enterprise Small Company Growth Fund
Enterprise Small Company Value Fund
Enterprise Capital Appreciation Fund
Enterprise Deep Value Fund
Enterprise Equity Fund
Enterprise Equity Income Fund
Enterprise Growth Fund
Enterprise Growth and Income Fund
Enterprise International Growth Fund
Enterprise Global Financial Services Fund
Enterprise Global Socially Responsive Fund
Enterprise Mergers and Acquisitions Fund
Enterprise Technology Fund
Enterprise Managed Fund
Enterprise Strategic Allocation Fund
Enterprise Government Securities Fund
Enterprise High-Yield Bond Fund
Enterprise Short Duration Bond Fund
Enterprise Tax-Exempt Income Fund
Enterprise Total Return Fund
Enterprise Money Market Fund
