FLAG INVESTORS EQUITY PARTNERS FUND, INC.
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 31st day of August, 1997, by and between
Flag Investors Equity Partners Fund, Inc., with its principal office and place
of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Fund"), and
ICC Distributors, Inc., a Delaware corporation with its principal office and
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the
"Distributor").
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment
company, may issue its shares of common stock (the "Shares") in separate
series and classes and continuously offers for sale its Shares to the public;
and
WHEREAS, the Distributor is registered under the Securities Exchange
Act of 1934, as amended ("1934 Act"), as a broker-dealer and is engaged in the
business of selling shares of registered investment companies either directly
to purchasers or through other securities dealers;
WHEREAS, the Fund offers Shares in one or more series as listed in
Appendix A hereto (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Section 16, being herein referred to as a "Series," and
collectively as the "Series") and the Fund offers shares of one or more
classes (each such class together with all other classes subsequently
established by a Series being herein referred to as a "Class," and
collectively as the "Classes");
WHEREAS, the Fund desires that the Distributor offer the Shares of
each Series and Class thereof to the public and the Distributor is willing to
provide those services on the terms and conditions set forth in this Agreement
in order to promote the growth of the Fund and facilitate the distribution of
the Shares;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Fund and the Distributor hereby agree as
follows:
SECTION 1. DELIVERY OF DOCUMENTS AND APPOINTMENT
(a) The Fund has delivered to the Distributor properly certified or
authenticated copies of its Articles of Incorporation and Bylaws
(collectively, as amended from time to time, "Organic Documents"), the Fund's
Notification of Registration filed with the U.S. Securities and Exchange
Commission ("SEC") pursuant to Section 8(a) of the 1940 Act on Form N-8A under
the 1940 Act, the Fund's Registration Statement and all amendments thereto
filed with the SEC pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement") and its
current Prospectuses and Statements of Additional Information (collectively,
as
currently in effect and as amended or supplemented, the "Prospectus") and
shall promptly furnish the Distributor with all amendments of or supplements
to the foregoing, each properly certified or authenticated. In addition, the
Fund shall furnish the Distributor with properly certified or authenticated
copies of all documents, notices and reports filed with the SEC.
(b) The Fund has delivered to the Distributor certified copies of the
resolutions of the Board of Directors (the "Board") authorizing the
appointment of the Distributor as distributor and approving this Agreement.
(c) The Fund hereby appoints the Distributor as its principal
underwriter and distributor to sell its Shares to the public and hereby agrees
during the term of this Agreement to sell its Shares to the Distributor upon
the terms and conditions herein set forth.
SECTION 2. EXCLUSIVE NATURE OF DUTIES
The Distributor shall be the exclusive representative of the Fund to
act as its principal underwriter and distributor except that the rights given
under this Agreement to the Distributor shall not apply to Shares issued in
connection with the merger, consolidation or reorganization of any other
investment company with the Fund; the Fund's acquisition by purchase or
otherwise of all or substantially all of the assets or stock of any other
investment company; or the reinvestment in Shares by the Fund's shareholders
of dividends or other distributions or any other offering by the Fund of
securities to its shareholders.
SECTION 3. PURCHASE OF SHARES; OFFERING OF SHARES
(a) The Distributor shall have the right to buy from the Fund the
Shares needed to fill unconditional orders for unsold Shares of the Fund as
shall then be effectively registered under the Securities Act placed with the
Distributor by investors or securities dealers or depository institutions or
other financial intermediaries acting as agent for their customers or on their
own behalf. Alternatively, the Distributor may act as the Fund's agent, to
offer, and to solicit offers to subscribe to, unsold Shares of the Fund as
shall then be effectively registered under the Securities Act. The Distributor
will promptly forward all orders and subscriptions for Shares of the Fund. The
price which the Distributor shall pay for Shares purchased by it from the Fund
shall be the net asset value, determined as set forth in Section 3(c) hereof,
used in determining the public offering price on which the orders are based.
The price at which the Distributor shall offer and sell Shares to investors
shall be the public offering price, as set forth in Section 3(b) hereof. The
Distributor may sell Shares to securities dealers, depository institutions or
other financial intermediaries acting as agent for their customers that have
entered into agreements with the Distributor pursuant to Section 9 hereof or
acting on their own behalf. The Fund reserves the right to sell its Shares
directly to investors through subscriptions received by the Fund, but no such
direct sales shall affect the sales charges due to the Distributor hereunder.
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(b) The public offering price of the Shares of the Fund, i.e., the
price per Share at which the Distributor or selected dealers or selected
agents (each as defined in Section 11 hereof) may sell Shares to the public or
to those persons eligible to invest in Shares as described in the Fund's
Prospectus, shall be the public offering price determined in accordance with
the then currently effective Prospectus of the Fund or Class thereof under the
Securities Act, relating to such Shares, but not to exceed the net asset value
at which the Distributor, when acting as principal, is to purchase such
Shares, plus, in the case of Shares for which an initial sales charge is
assessed, an initial charge equal to a specified percentage or percentages of
the public offering price of the Shares as set forth in the current Prospectus
relating to the Shares. In the case of Shares for which an initial sales
charge may be assessed, Shares may be sold to certain classes of persons at
reduced sales charges or without any sales charge as from time to time set
forth in the current Prospectus relating to the Shares. The Fund will advise
the Distributor of the net asset value per Share at each time as the net asset
value per Share shall have been determined by the Fund.
(c) The net asset value per Share of each Series or Class thereof
shall be determined by the Fund, or an agent of the Fund, as of the close of
the New York Stock Exchange or such other time as set forth in the applicable
Prospectus on the Fund business day in accordance with the method set forth in
the Prospectus and guidelines established by the Board.
(d) The Fund reserves the right to suspend the offering of Shares of
any Class at any time in the absolute discretion of the Board, and upon notice
of such suspension the Distributor shall cease to offer Shares of the Fund or
Classes thereof specified in the notice.
(e) The Fund, or any agent of the Fund designated in writing to the
Distributor by the Fund, shall be promptly advised by the Distributor of all
purchase orders for Shares received by the Distributor and all subscriptions
for Shares obtained by the Distributor as agent shall be directed to the Fund
for acceptance and shall not be binding until accepted by the Fund. Any order
or subscription may be rejected by the Fund; provided, however, that the Fund
will not arbitrarily or without reasonable cause refuse to accept or confirm
orders or subscriptions for the purchase of Shares. The Fund (or its agent)
will confirm orders and subscriptions upon their receipt, will make
appropriate book entries and, upon receipt by the Fund (or its agent) of
payment thereof, will issue such Shares in certificated or uncertificated form
pursuant to the instructions of the Distributor. The Distributor agrees to
cause such payment and such instructions to be delivered promptly to the Fund
(or its agent).
SECTION 4. REPURCHASE OR REDEMPTION OF SHARES
(a) Any of the outstanding Shares of the Fund may be tendered for
redemption at any time, and the Fund agrees to redeem or repurchase the Shares
so tendered in accordance with its obligations as set forth in the Fund's
Organic Documents and the Prospectus relating to the Shares. The price to be
paid to redeem or repurchase the Shares of the Fund shall be equal to the net
asset value calculated in accordance with the provisions of Section 3(b)
hereof less, in the case of Shares for which a deferred sales charge is
assessed, a deferred sales charge equal to a specified percentage
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or percentages of the net asset value of those Shares as from time to time set
forth in the Prospectus relating to those Shares or their cost, whichever is
less. Shares for which a deferred sales charge may be assessed and that have
been outstanding for a specified period of time may be redeemed without
payment of a deferred sales charge as from time to time set forth in the
Prospectus relating to those Shares.
(b) The Fund or its designated agent shall pay (i) the total amount
of the redemption price consisting of the redemption price less any applicable
deferred sales charge to the redeeming shareholder or its agent and (ii)
except as may be otherwise required by the Conduct Rules (the "Rules") of the
National Association of Securities Dealers, Inc. (the "NASD") and any
interpretations thereof, any applicable deferred sales charges to the
Distributor in accordance with the Distributor's instructions on or before the
third business day subsequent to each calendar month-end.
(c) Redemption of Shares or payment therefor may be suspended at
times when the New York Stock Exchange is closed for any reason other than its
customary weekend or holiday closings, when trading thereon is restricted,
when an emergency exists as a result of which disposal by the Fund of
securities owned by the Fund is not reasonably practicable or it is not
reasonably practicable for the Fund fairly to determine the value of its net
assets, or during any other period when the SEC so permits.
SECTION 5. DUTIES AND REPRESENTATIONS OF THE DISTRIBUTOR
(a) The Distributor shall use reasonable efforts to sell Shares of
the Fund upon the terms and conditions contained herein and in the then
current Prospectus. The Distributor shall devote reasonable time and effort to
effect sales of Shares but shall not be obligated to sell any specific number
of Shares. The services of the Distributor to the Fund hereunder are not to be
deemed exclusive, and nothing herein contained shall prevent the Distributor
from entering into like arrangements with other investment companies so long
as the performance of its obligations hereunder is not impaired thereby.
(b) In selling Shares of the Fund, the Distributor shall use its best
efforts in all material respects duly to conform with the requirements of all
federal and state laws relating to the sale of the Shares. None of the
Distributor, any selected dealer, any selected agent or any other person is
authorized by the Fund to give any information or to make any representations
other than as is contained in the Fund's Prospectus or any advertising
materials or sales literature specifically approved in writing by the Fund or
its agents.
(c) The Distributor shall adopt and follow procedures for the
confirmation of sales to investors and selected dealers or selected agents,
the collection of amounts payable by investors and selected dealers or
selected agents on such sales, and the cancellation of unsettled transactions,
as may be necessary to comply with the requirements of the NASD and any other
applicable self-regulatory organization.
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(d) The Distributor will perform its duties hereunder under the
supervision of and in accordance with the directives of the Board. The
Distributor will perform its duties hereunder in accordance with the Fund's
Organic Documents and Prospectuses and with the instructions and directions of
the Board and will conform to and comply with the requirements of the 1940
Act, the Securities Act and other applicable laws.
(e) The Distributor shall provide the Board with a written report of
the amounts expended in connection with this Agreement as requested by the
Board.
(f) The Distributor represents and warrants to the Fund that:
(i) It is a corporation duly organized and existing and in
good standing under the laws of the State of Delaware and it is duly
qualified to carry on its business in the State of Maine;
(ii) It is empowered under applicable laws and by its
Articles of Incorporation to enter into and perform this Agreement;
(iii) All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
(iv) It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties
and obligations under this Agreement;
(v) This Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of the Distributor,
enforceable against the Distributor in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the rights and remedies
of creditors and secured parties;
(vi) It is registered under the 1934 Act with the SEC as a
broker-dealer, it is a member in good standing of the NASD, it will
abide by the rules and regulations of the NASD, and it will notify
the Fund if its membership in the NASD is terminated or suspended;
and
(vii) The performance by the Distributor of its obligations
hereunder does not and will not contravene any provision of its
Articles of Incorporation.
(g) Notwithstanding anything in this Agreement, including the
Appendices, to the contrary, the Distributor makes no warranty or
representation as to the number of selected dealers or selected agents with
which it has entered into agreements in accordance with Section 11 hereof, as
to the availability of any Shares to be sold through any selected dealer,
selected agent or other intermediary or as to any other matter not
specifically set forth herein.
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SECTION 6. DUTIES AND REPRESENTATIONS OF THE FUND
(a) The Fund shall furnish to the Distributor copies of all financial
statements and other documents to be delivered to shareholders or investors at
least two Fund business days prior to such delivery and shall furnish the
Distributor copies of all other financial statements, documents and other
papers or information which the Distributor may reasonably request for use in
connection with the distribution of Shares. The Fund shall make available to
the Distributor the number of copies of its Prospectuses as the Distributor
shall reasonably request.
(b) The Fund shall take, from time to time, subject to the approval
of its Board and any required approval of its shareholders, all action
necessary to fix the number of authorized Shares (if such number is not
limited) and to register the Shares under the Securities Act, to the end that
there will be available for sale the number of Shares as reasonably may be
expected to be sold pursuant to this Agreement.
(c) The Fund shall register or qualify its Shares for sale under the
securities laws of the various states of the United States and other
jurisdictions ("States") as the Fund, in its sole discretion shall determine.
Any registration or qualification may be withheld, terminated or withdrawn by
the Fund at any time in its discretion. The Distributor shall furnish such
information and other material relating to its affairs and activities as may
be required by the Fund in connection with such registration or qualification.
(d) The Fund represents and warrants to the Distributor that:
(i) It is a corporation duly organized and existing and in
good standing under the laws of the State of Maryland;
(ii) It is empowered under applicable laws and by its
Organic Documents to enter into and perform this Agreement;
(iii) All proceedings required by the Organic Documents have
been taken to authorize it to enter into and perform its duties under
this Agreement;
(iv) It is registered as an open-end management investment
company with the SEC under the 1940 Act;
(v) All Shares, when issued, shall be validly issued, fully
paid and non-assessable;
(vi) This Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of the Fund,
enforceable against the Fund in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors
and secured parties;
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(vii) The performance by the Fund of its obligations
hereunder does not and will not contravene any provision of its
Articles of Incorporation.
(viii) The Fund's Registration Statement is currently
effective and will remain effective with respect to all Shares of the
Fund's Series and Classes thereof being offered for sale;
(ix) It will use its best efforts to ensure that its
Registration Statement and Prospectuses have been or will be, as the
case may be, carefully prepared in conformity with the requirements
of the Securities Act and the rules and regulations thereunder;
(x) It will use its best efforts to ensure that (A) its
Registration Statement and Prospectuses contain or will contain all
statements required to be stated therein in accordance with the
Securities Act and the rules and regulations thereunder, (B) all
statements of fact contained or to be contained in the Registration
Statement or Prospectuses are or will be true and correct at the time
indicated or on the effective date as the case may be and (C) neither
the Registration Statement nor any Prospectus, when they 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 Shares;
(xi) It will from time to time file such amendment or
amendments to its Registration Statement and Prospectuses as, in the
light of then-current and then-prospective developments, shall, in
the opinion of its counsel, be necessary in order to have the
Registration Statement and Prospectuses 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 Shares ("Required
Amendments");
(xii) It shall not file any amendment to its Registration
Statement or Prospectuses without giving the Distributor reasonable
advance notice thereof (which shall be at least three Fund business
days); 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 its Registration Statement or Prospectuses, of whatever
character, as the Fund may deem advisable, such right being in all
respects absolute and unconditional; and
(xiii) It will use its best efforts to ensure that (A) any
amendment to its Registration Statement or Prospectuses hereafter
filed will, when it becomes effective, contain all statements
required to be stated therein in accordance with the 1940 Act and the
rules and regulations thereunder, (B) all statements of fact
contained in the Registration Statement or Prospectuses will, when it
becomes effective, be true and correct at the time indicated or on
the effective date as the case may be and (C) 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 the statements therein not misleading to
a purchaser of the Shares.
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SECTION 7. STANDARD OF CARE
(a) The Distributor shall use its best judgment and efforts in
rendering services to the Fund under this Agreement but shall be under no duty
to take any action except as specifically set forth herein or as may be
specifically agreed to by the Distributor in writing. The Distributor shall
not be liable to the Fund or any of the Fund's shareholders for any error of
judgment or mistake of law, for any loss arising out of any investment, or for
any action or inaction of the Distributor in the absence of bad faith, willful
misfeasance or gross negligence in the performance of the Distributor's duties
or obligations under this Agreement or by reason of the Distributor's reckless
disregard of its duties and obligations under this Agreement
(b) The Distributor shall not be liable to the Fund for any action
taken or failure to act in good faith reliance upon:
(i) the advice of the Fund or of counsel, who may be counsel
to the Fund or counsel to the Distributor;
(ii) any oral instruction which the Distributor receives and
which it reasonably believes in good faith was transmitted by the
person or persons authorized by the Board to give such oral
instruction (the Distributor shall have no duty or obligation to make
any inquiry or effort of certification of such oral instruction);
(iii) any written instruction or certified copy of any
resolution of the Board, and the Distributor may rely upon the
genuineness of any such document or copy thereof reasonably believed
in good faith by the Distributor to have been validly executed; or
(iv) any signature, instruction, request, letter of
transmittal, certificate, opinion of counsel, statement, instrument,
report, notice, consent, order, or other document reasonably believed
in good faith by the Distributor to be genuine and to have been
signed or presented by the Fund or other proper party or parties;
and the Distributor shall not be under any duty or obligation to inquire into
the validity or invalidity or authority or lack thereof of any statement, oral
or written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order,
or any other document or instrument which the Distributor reasonably believes
in good faith to be genuine.
(c) The Distributor shall not be responsible or liable for any
failure or delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control including, without limitation, acts of civil or military
authority, national emergencies, labor difficulties (other than those related
to the Distributor's
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employees), fire, mechanical breakdowns, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation,
communication or power supply. In addition, to the extent the Distributor's
obligations hereunder are to oversee or monitor the activities of third
parties, the Distributor shall not be liable for any failure or delay in the
performance of the Distributor's duties caused, directly or indirectly, by the
failure or delay of such third parties in performing their respective duties
or cooperating reasonably and in a timely manner with the Distributor.
SECTION 8. INDEMNIFICATION
(a) The Fund will indemnify, defend and hold the Distributor, its
employees, agents, directors and officers and any person who controls the
Distributor within the meaning of section 15 of the Securities Act or section
20 of the 1934 Act ("Distributor Indemnitees") free and harmless from and
against any and all claims, demands, actions, suits, judgments, liabilities,
losses, damages, costs, charges, reasonable counsel fees and other expenses of
every nature and character (including the cost of investigating or defending
such claims, demands, actions, suits or liabilities and any reasonable counsel
fees incurred in connection therewith) which any Distributor Indemnitee may
incur, under the Securities Act, under the securities laws of the various
States or under common law or otherwise, arising out of or based upon any
alleged untrue statement of a material fact contained in the Fund's
Registration Statement or Prospectuses, arising out of or based upon any
alleged omission to state a material fact required to be stated in any one
thereof or necessary to make the statements in any one thereof not misleading,
or arising out of or based upon any filing made with the regulatory
authorities of any State unless such statement or omission was made in
reliance upon, and in conformity with, information furnished in writing to the
Fund in connection with the preparation of the Registration Statement,
exhibits to the Registration Statement or filings made with the regulatory
authorities of any State by or on behalf of the Distributor ("Distributor
Claims").
After receipt of the Distributor's notice of termination under
Section 13(e), the Fund shall indemnify and hold each Distributor Indemnitee
free and harmless from and against any Distributor Claim; provided, that the
term Distributor Claim for purposes of this sentence shall mean any
Distributor Claim related to the matters for which the Distributor has
requested amendment to the Fund's Registration Statement and for which the
Fund has not filed a Required Amendment, regardless of with respect to such
matters whether any statement in or omission from the Registration Statement
was made in reliance upon, or in conformity with, information furnished to the
Fund by or on behalf of the Distributor.
(b) The Fund may assume the defense of any suit brought to enforce
any Distributor Claim and may retain counsel of good standing chosen by the
Fund and approved by the Distributor, which approval shall not be withheld
unreasonably. The Fund shall advise the Distributor that it will assume the
defense of the suit and retain counsel within ten (10) days of receipt of the
notice of the claim. If the Fund assumes the defense of any such suit and
retains counsel, the defendants shall bear the fees and expenses of any
additional counsel that they retain. If the Fund does not assume the defense
of any such suit, or if Distributor does not approve of counsel chosen by the
Fund or has been advised that it may have available defenses or claims that
are not available to or conflict with
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those available to the Fund, the Fund will reimburse any Distributor
Indemnitee named as defendant in such suit for the reasonable fees and
expenses of any counsel that person retains. A Distributor Indemnitee shall
not settle or confess any claim without the prior written consent of the Fund,
which consent shall not be unreasonably withheld or delayed.
(c) The Distributor will indemnify, defend and hold the Fund and its
several officers and directors (collectively, the "Fund Indemnitees"), free
and harmless from and against any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges, reasonable counsel
fees and other expenses of every nature and character (including the cost of
investigating or defending such claims, demands, actions, suits or liabilities
and any reasonable counsel fees incurred in connection therewith), but only to
the extent that such claims, demands, actions, suits, judgments, liabilities,
losses, damages, costs, charges, reasonable counsel fees and other expenses
result from, arise out of or are based upon:
(i) any alleged untrue statement of a material fact
contained in the Fund's Registration Statement or Prospectus or any
alleged omission of a material fact required to be stated or
necessary to make the statements therein not misleading, if such
statement or omission was made in reliance upon, and in conformity
with, information furnished to the Fund in writing in connection with
the preparation of the Registration Statement or Prospectus by or on
behalf of the Distributor; or
(ii) any act of, or omission by, Distributor or its sales
representatives that does not conform to the standard of care set
forth in Section 7 of this Agreement (collectively, "Fund Claims").
(d) The Distributor may assume the defense of any suit brought to
enforce any Fund Claim and may retain counsel of good standing chosen by the
Distributor and approved by the Fund, which approval shall not be withheld
unreasonably. The Distributor shall advise the Fund that it will assume the
defense of the suit and retain counsel within ten (10) days of receipt of the
notice of the claim. If the Distributor assumes the defense of any such suit
and retains counsel, the defendants shall bear the fees and expenses of any
additional counsel that they retain. If the Distributor does not assume the
defense of any such suit, or if the Fund does not approve of counsel chosen by
the Distributor or has been advised that it may have available defenses or
claims that are not available to or conflict with those available to the
Distributor, the Distributor will reimburse any Fund Indemnitee named as
defendant in such suit for the reasonable fees and expenses of any counsel
that person retains. A Fund Indemnitee shall not settle or confess any claim
without the prior written consent of the Distributor, which consent shall not
be unreasonably withheld or delayed.
(e) The Fund's and the Distributor's obligations to provide
indemnification under this Section is conditioned upon the Fund or the
Distributor receiving notice of any action brought against a Distributor
Indemnitee or Fund Indemnitee, respectively, by the person against whom such
action is brought within twenty (20) days after the summons or other first
legal process is served. Such notice shall refer to the person or persons
against whom the action is brought. The failure to
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provide such notice shall not relieve the party entitled to such notice of any
liability that it may have to any Distributor Indemnitee or Fund Indemnitee
except to the extent that the ability of the party entitled to such notice to
defend such action has been materially adversely affected by the failure to
provide notice.
(f) The provisions of this Section and the parties' 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 any Distributor
Indemnitee or Fund Indemnitee and shall survive the sale and redemption of any
Shares made pursuant to subscriptions obtained by the Distributor. The
indemnification provisions of this Section will inure exclusively to the
benefit of each person that may be a Distributor Indemnitee or Fund Indemnitee
at any time and their respective successors and assigns (it being intended
that such persons be deemed to be third party beneficiaries under this
Agreement).
(g) The Distributor agrees promptly to notify the Fund of the
commencement of any litigation or proceeding of which it becomes aware arising
out of or in any way connected with the issuance or sale of Shares. The Fund
agrees promptly to notify the Distributor of the commencement of any
litigation or proceeding of which it becomes aware arising out of or in any
way connected with the issuance or sale of its Shares.
(h) Nothing contained herein shall require the Fund to take any
action contrary to any provision of its Organic Documents or any applicable
statute or regulation or shall require the Distributor to take any action
contrary to any provision of its Articles of Incorporation or Bylaws or any
applicable statute or regulation; provided, however, that neither the Fund nor
the Distributor may amend their Organic Documents or Articles of Incorporation
and Bylaws, respectively, in any manner that would result in a violation of a
representation or warranty made in this Agreement, except if required by any
applicable statute or regulation.
(i) Nothing contained in this section shall be construed to protect
the Distributor against any liability to the Fund or the security holders of
the Fund to which the Distributor would otherwise be subject by reason of its
failure to satisfy the standard of care set forth in Section 7 of this
Agreement.
SECTION 9. NOTIFICATION TO THE DISTRIBUTOR
The Fund shall advise the Distributor immediately: (i) of any request
by the SEC for amendments to the Fund's Registration Statement or Prospectus
or for additional information; (ii) in the event of the issuance by the SEC of
any stop order suspending the effectiveness of the Fund's Registration
Statement or any Prospectus or the initiation of any proceedings for that
purpose; (iii) of the happening of any material event which makes untrue any
statement made in the Fund's then current Registration Statement or Prospectus
or which requires the making of a change in either thereof in order to make
the statements therein not misleading; and (iv) of all action of the SEC with
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respect to any amendments to the Fund's Registration Statement or Prospectus
which may from time to time be filed with the Commission under the 1940 Act or
the Securities Act.
SECTION 10. COMPENSATION; EXPENSES
(a) In consideration of the Distributor's services in connection with
the distribution of Shares of the Fund and each Class thereof, the Distributor
shall receive: (i) any applicable sales charge assessed upon investors in
connection with the purchase of Shares; (ii) from the Fund, any applicable
contingent deferred sales charge ("CDSC") assessed upon investors in
connection with the redemption of Shares; (iii) from the Fund, the
distribution service fees with respect to the Shares of those Classes as
designated in Appendix A for which a plan under Rule 12b-1 under the 1940 Act
(a "Plan") is effective (the "Distribution Fee"); and (iv) from the Fund, the
shareholder service fees with respect to the Shares of those Classes as
designated in Appendix A (the "Service Fee"). The Distribution Fee and Service
Fee shall be accrued daily by each applicable Fund or Class thereof and shall
be paid monthly as promptly as possible after the last day of each calendar
month but in any event on or before the fifth (5th) Fund business day after
month-end, at the rate or in the amounts set forth in Appendix A and, as
applicable, the Plan(s). The Fund grants and transfers to the Distributor a
general unperfected lien and security interest in any and all securities and
other assets of the Fund now or hereafter maintained in an account at the
Fund's custodian on behalf of the Fund to secure any Distribution Fees and
Service Fees owed the Distributor by the Fund under this Agreement.
(b) The Fund shall cause its transfer agent (the "Transfer Agent") to
withhold, from redemption proceeds payable to holders of Shares of the Series
and the Classes thereof, all CDSCs properly payable by the shareholders in
accordance with the terms of the applicable Prospectus and shall cause the
Transfer Agent to pay such amounts over to the Distributor as promptly as
possible after each month end.
(c) Except as specified in Sections 8 and 10(a), the Distributor
shall be entitled to no compensation or reimbursement of expenses for the
services provided by the Distributor pursuant to this Agreement. The
Distributor may receive compensation from the Fund's investment advisors,
other service providers or their respective affiliates (collectively, the
"Advisor") for its services hereunder or for additional services all as may be
agreed to between the Advisor and the Distributor. Notwithstanding anything in
this Agreement to the contrary, to the extent the Distributor receives
compensation from the Advisor that is disclosed to the Board, the Fund will
indemnify, defend and hold each Distributor Indemnitees free and harmless from
and against any and all claims, demands, actions, suits, judgments,
liabilities, losses, damages, costs, charges, reasonable counsel fees and
other expenses of every nature and character (including the cost of
investigating or defending such claims, demands, actions, suits or liabilities
and any reasonable counsel fees incurred in connection therewith) related in
any way to such payment.
(d) The Fund shall be responsible and assumes the obligation for
payment of all its expenses, including fees and disbursements of its counsel
and auditors, in connection with the
- 12 -
preparation and filing of the Registration Statement and Prospectuses
(including but not limited to the expense of setting in type the Registration
Statement and Prospectuses and printing sufficient quantities for internal
compliance, regulatory purposes and for distribution to current shareholders).
(e) The Fund shall bear the cost and expenses (i) of the registration
of its Shares for sale under the Securities Act; (ii) of the registration or
qualification of its Shares for sale under the securities laws of the various
States; (iii) if necessary or advisable in connection therewith, of qualifying
the Fund, or its Series or the Classes thereof (but not the Distributor) as an
issuer or as a broker or dealer, in such States as shall be selected by the
Fund; and (iv) payable to each State for continuing registration or
qualification therein until the Fund decides to discontinue registration or
qualification. The Distributor shall pay all expenses relating to the
Distributor's broker-dealer qualification.
SECTION 11. SELECTED DEALER AND SELECTED AGENT AGREEMENTS
(a) The Distributor shall have the right to enter into
sub-distribution agreements with securities dealers of its choice ("selected
dealers") and with depository institutions and other financial intermediaries
of its choice ("selected agents") for the sale of Shares and to fix therein
the portion of the sales charge, if any, that may be allocated to the selected
dealers or selected agents; provided, that all such agreements shall be in
substantially the form of agreement as set forth in Appendix B hereto. Shares
of each Series or Class thereof shall be resold by selected dealers or
selected agents only at the public offering price(s) set forth in the
Prospectus relating to the Shares. The Distributor shall offer and sell Shares
of the Fund only to such selected dealers as are members in good standing of
the NASD. The Distributor shall have the right to enter into shareholder
servicing agreements with financial intermediaries of its choice; provided,
that all such agreements shall be in substantially the form of agreement as
set forth in Appendix C hereto.
(b) The Distributor will supervise the Fund's relationship with
selected dealers and agents and may make payments to those selected dealers
and agents in such amounts as the Distributor may determine from time to time
in its sole discretion. The amount of payments to selected dealers and agents
by the Distributor may be reviewed by the Board from time to time; provided,
however, that no payment by the Distributor to any selected dealer or agent
with respect to a Share shall exceed the amount of payments made to the
Distributor hereunder with respect to that Share.
SECTION 12. CONFIDENTIALITY
The Distributor agrees to treat all records and other information
related to the Fund as proprietary information of the Fund and, on behalf of
itself and its employees, to keep confidential all such information, except
that the Distributor may:
(i) prepare or assist in the preparation of periodic reports
to shareholders and regulatory bodies such as the SEC;
- 13 -
(ii) provide information typically supplied in the
investment company industry to companies that track or report price,
performance or other information regarding investment companies; and
(iii) release such other information as approved in writing
by the Fund, which approval shall not be unreasonably withheld;
provided, however, that the Distributor may release any information regarding
the Fund without the consent of the Fund if the Distributor reasonably
believes that it may be exposed to civil or criminal legal proceedings for
failure to comply, when requested to release any information by duly
constituted authorities or when so requested by the Fund.
SECTION 13. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each series
or class listed in Appendix A on the later of (i) August 31, 1997 or (ii) the
date on which the Fund's Registration Statement relating to Shares of the Fund
becomes effective. Upon effectiveness of this Agreement, it shall supersede
all previous agreements between the parties hereto covering the subject matter
hereof insofar as such Agreement may have been deemed to relate to the Fund.
(b) This Agreement shall continue in effect with respect to a Series
Fund for a period of one year from its effectiveness and thereafter shall
continue in effect with respect to the Series until terminated; provided, that
continuance is specifically approved at least annually (i) by the Board or by
a vote of a majority of the outstanding voting securities of the Fund and (ii)
by a vote of a majority of Directors of the Fund (I) who are not parties to
this Agreement or interested persons of any such party (other than as
Directors of the Fund) and (II) with respect to each Class of a Series for
which there is an effective Plan, who do not have any direct or indirect
financial interest in any such Plan applicable to the Class or in any
agreements related to the Plan, cast in person at a meeting called for the
purpose of voting on such approval.
(c) This Agreement may be terminated at any time with respect to a
Series, without the payment of any penalty, (i) by the Board or by a vote of a
majority of the outstanding voting securities of the Series or, with respect
to each Class for which there is an effective Plan, a majority of Directors of
the Fund who do not have any direct or indirect financial interest in any such
Plan or in any agreements related to the Plan, on 60 days' written notice to
the Distributor or (ii) by the Distributor on 60 days' written notice to the
Fund.
(d) This Agreement shall automatically terminate upon its assignment
and upon the termination of the Distributor's membership in the NASD.
(e) If the Fund does not file a Required Amendment within fifteen
days following receipt of a written request from the Distributor to do so, the
Distributor may, at its option, terminate this Agreement immediately.
- 14 -
(f) The obligations of Sections 5(e), 6(d), 8, 9 and 10 shall survive
any termination of this Agreement with respect to a Series or Class thereof.
SECTION 14. NOTICES
Any notice required or permitted to be given hereunder by the
Distributor to the Fund or the Fund to the Distributor shall be deemed
sufficiently given if personally delivered or sent by telegram, facsimile or
registered, certified or overnight mail, postage prepaid, addressed by the
party giving such notice to the other party at the last address furnished by
the other party to the party giving such notice, and unless and until changed
pursuant to the foregoing provisions hereof each such notice shall be
addressed to the Fund or the Distributor, as the case may be, at their
respective principal places of business.
SECTION 15. ACTIVITIES OF THE DISTRIBUTOR
Except to the extent necessary to perform the Distributor's
obligations hereunder, nothing herein shall be deemed to limit or restrict the
Distributor's right, or the right of any of the Distributor's employees,
agents, officers or directors who may also be a director, officer or employee
of the Fund, or affiliated persons of the Fund 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, trust, firm, individual or
association.
SECTION 16. ADDITIONAL FUNDS AND CLASSES
In the event that the Fund establishes one or more series of Shares
or one or more classes of Shares after the effectiveness of this Agreement,
such series of Shares or classes of Shares, as the case may be, shall become
Series and Classes under this Agreement upon approval of this Agreement by the
Fund with respect to the series of Shares or class of Shares and the execution
of an amended Appendix A reflecting the applicable names and terms. The
Distributor may elect not to make any such series or classes subject to this
Agreement.
SECTION 17. MISCELLANEOUS
(a) The Distributor shall not be liable to the Fund and the Fund
shall not be liable to the Distributor for consequential damages under any
provision of this Agreement except that Distributor Claims, as that term is
used in Section 8(a), shall include consequential damages related to, arising
out of or based upon any filing made with the regulatory authorities of any
State.
(b) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by the
Distributor and the Fund.
- 15 -
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Maryland.
(d) This Agreement constitutes the entire agreement between the
Distributor and the Fund and supersedes any prior agreement with respect to
the subject matter hereof, whether oral or written.
(e) This Agreement may be executed by the parties hereto on any
number of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion
or portions shall be considered severable and not be affected, and the rights
and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or provision held to be
illegal or invalid.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(h) No affiliated person, employee, agent, officer or director of the
Distributor shall be liable at law or in equity for the Distributor's
obligations under this Agreement.
(i) The Fund shall be liable to the Distributor only with respect to
those Series and Classes of the Fund and the Distributor shall look solely to
the Fund to satisfy any liability of a Series or Class thereof to the
Distributor.
(j) Each of the undersigned warrants and represents that they have
full power and authority to sign this Agreement on behalf of the party
indicated and that their signature will bind the party indicated to the terms
hereof.
(k) The terms "vote of a majority of the outstanding voting
securities," "interested person," "affiliated person" and "assignment" shall
have the meanings ascribed thereto in the 1940 Act.
- 16 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
FLAG INVESTORS EQUITY PARTNERS
FUND, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
ICC DISTRIBUTORS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
- 17 -
FLAG INVESTORS EQUITY PARTNERS FUND, INC.
DISTRIBUTION AGREEMENT
Appendix A
as of August 31, 1997
-----------------------------------------------------------------------------------------------------------------------
Distribution Service
Series Class Fee Fee
-----------------------------------------------------------------------------------------------------------------------
Flag Investors Equity Partners Fund, Inc. Class A 0.25% ----
Class B 0.75% 0.25%
Institutional Class ---- ----
-----------------------------------------------------------------------------------------------------------------------
A - 1
FLAG INVESTORS EQUITY PARTNERS FUND, INC.
DISTRIBUTION AGREEMENT
Appendix B
[Form of Sub-Distribution Agreement]
FLAG INVESTORS FUNDS
SUB-DISTRIBUTION AGREEMENT
Ladies and Gentlemen:
ICC Distributors, Inc. ("ICC"), a Delaware corporation, serves as
Distributor (the "Distributor") of the Flag Investors Funds (collectively, the
"Funds", individually, a "Fund"). The Funds are open-end investment companies
(or series thereof) registered under the Investment Company Act of 1940, as
amended (the "Investment Company Act"). The Funds offer their shares
("Shares") to the public in accordance with the terms and conditions contained
in the Prospectus of each Fund. The term "Prospectus" as used herein refers to
each prospectus on file with the Securities and Exchange Commission which is
part of the registration statement of each Fund under the Securities Act of
1933 (the "Securities Act"). In connection with the foregoing you may serve as
a participating dealer (and, therefore, accept orders for the purchase or
redemption of Shares, respond to shareholder inquiries and perform other
related functions) on the following terms and conditions:
1. Participating Dealer. You are hereby designated a Participating Dealer
and as such are authorized (i) to accept orders for the purchase of Shares and
to transmit to the Funds such orders and the payment made therefore, (ii) to
accept orders for the redemption of Shares and to transmit to the Funds such
orders and all additional material, including any certificates for Shares, as
may be required to complete the redemption and (iii) to assist shareholders
with the foregoing and other matters relating to their investments in each
Fund, in each case subject to the terms and conditions
B - 1
set forth in the Prospectus of each Fund. You are to review each Share
purchase or redemption order submitted through you or with your assistance for
completeness and accuracy. You further agree to undertake from time to time
certain shareholder servicing activities for customers of yours who have
purchased Shares and who use your facilities to communicate with the Funds or
to effect redemptions or additional purchases of the Shares.
2. Limitation of Authority. No person is authorized to make any
representations concerning the Funds or the Shares except those contained in
the Prospectus of each Fund and in such printed information as the Distributor
may subsequently prepare. No person is authorized to distribute any sales
material relating to any Fund without the prior written approval of the
Distributor.
3. Compensation. As compensation for such services, you will look solely
to the Distributor, and you acknowledge that the Funds shall have no direct
responsibility for any compensation. In addition to any sales charge payable
to you by your customer pursuant to a Prospectus, the Distributor will pay you
no less often than annually a shareholder processing and service fee (as we
may determine from time to time in writing) computed as a percentage of the
average daily net assets maintained with each Fund during the preceding period
by shareholders who purchase their shares through you or with your assistance,
provided that said assets are at least $25,000 in the fund family for which
you are to be compensated, and provided that in all cases your name is
transmitted with each shareholder's purchase order.
4. Prospectus and Reports. You agree to comply with the provisions
contained in the Securities Act governing the distribution of prospectuses to
persons to whom you offer Shares. You further agree to deliver, upon our
request, copies of any amended Prospectus of the relevant Fund to purchasers
whose Shares you are holding as record owner and to deliver to such persons
copies of the annual and interim reports and proxy solicitation materials of
the Funds. We agree to furnish to you as many copies of each Prospectus,
annual and interim reports and proxy solicitation materials as you may
reasonably request.
5. Qualification to Act. You represent that you are a member in good
standing of National Association of Securities Dealers, Inc. (the "NASD").
Your expulsion or suspension from the NASD will automatically terminate this
Agreement on the effective date of such expulsion or suspension. You agree
that you will not offer Shares to persons in any jurisdiction in which you may
not lawfully make such offer due to the fact that you have not registered
under, or are not exempt from, the applicable registration or licensing
requirements of such jurisdiction. You agree that in performing the services
under this Agreement, you at all times, will comply with the Conduct Rules
(formerly the Rules of Fair Practice) of the NASD, including, without
limitation, the provisions of Rule 2830 (formerly Section 26) of such Rules.
You agree that you will not combine customer orders to reach breakpoints in
commission for any purposes whatsoever unless authorized by the then current
Prospectus in respect of a particular class of Shares or by us in writing. You
also agree that you will place orders immediately upon their receipt and will
not withhold any order so as to profit therefrom. In determining the amount
payable to you hereunder, we reserve the right to exclude any sales which
B - 2
we reasonably determine are not made in accordance with the terms of the
relevant prospectus and provisions of the Agreement.
6. Blue Sky. The Funds have registered an indefinite number of Shares
under the Securities Act. The Funds intend to make appropriate notice filings
in certain states where such filing is required. We will inform you as to the
states or other jurisdictions in which we believe the Shares are eligible for
sale under the respective securities laws of such states. You agree that you
will offer Shares to your customers only in those states where such Shares are
eligible to be sold. We assume no responsibility or obligation as to your
right to sell Shares in any jurisdiction.
7. Authority of Fund. Each Fund shall have full authority to take such
action as it deems advisable in respect of all matters pertaining to the
offering of its Shares, including the right not to accept any order for the
purchase of Shares.
8. Record Keeping. You will (i) maintain all records required by law to
be kept by you relating to transactions in Shares and, upon request by any
Fund, promptly make such of these records available to the Fund as the Fund
may reasonably request in connection with its operations and (ii) promptly
notify the Fund if you experience any difficulty in maintaining the records
described in the foregoing clauses in an accurate and complete manner.
9. Liability. The Distributor shall be under no liability to you except
for lack of good faith and for obligations expressly assumed by it hereunder.
In carrying out your obligations, you agree to act in good faith and without
negligence. Nothing contained in this Agreement is intended to operate as a
waiver by the Distributor or you of compliance with any provisions of the
Investment Company Act, the Securities Act, the Securities Exchange Act of
1934, as amended, or the rules and regulations promulgated by the Securities
and Exchange Commission thereunder.
10. Termination. This Agreement may be terminated by either party,
without penalty, upon ten days' notice to the other party and shall
automatically terminate in the event of its assignment, as defined in the
Investment Company Act. This Agreement may also be terminated at any time for
any particular Fund without penalty by the vote of a majority of the members
of the Board of Directors or Trustees of such Fund who are not "interested
persons" (as such phrase is defined in the Investment Company Act) and who
have no direct or indirect financial interest in the operation of the
Distribution Agreement between such Fund and the Distributor or by the vote of
a majority of the outstanding voting securities of the Fund.
11. Communications. All communications other than this agreement and
those pertaining to this agreement should be sent to the address listed below.
Any notice to you shall be duly given if mailed or telegraphed to you at the
address specified by you below.
Flag Investors Funds
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
B - 3
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us both copies of this Agreement to:
Flag Investors Funds
c/o ICC Distributors, Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Dealer Services
---------------------------
ICC Distributors, Inc.
By: ▇▇▇▇▇▇▇ ▇. Butt
Vice President
Confirmed and accepted:
Firm Name:___________________________________________________________
By:__________________________________________________________________
Signature
_____________________________________________________________________
Printed Name and Title
Date:________________________________________________________________
Address:_____________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
Clears Through:______________________________________________________
Phone No.:___________________________________________________________
B - 4
FLAG INVESTORS EQUITY PARTNERS FUND, INC.
DISTRIBUTION AGREEMENT
Appendix C
[Form of Shareholder Services Agreement]
FLAG INVESTORS FAMILY OF FUNDS
SHAREHOLDER SERVICING AGREEMENT
[Date]
Ladies and Gentlemen:
We wish to enter into this Shareholder Servicing Agreement with you
concerning the provision of support services to your clients and customers
("Customers") who may from time to time beneficially own shares of our common
stock ("Shares").
The terms and conditions of this Servicing Agreement are as follows:
Section 1.
(a) You agree to provide the following services to Customers who may from
time to time beneficially own Shares: (i) aggregating and processing purchase
and redemption requests for Shares from Customers and placing net purchase and
redemption orders with our distributor; (ii) processing dividend payments from
us on behalf of Customers; (iii) providing information periodically to
Customers showing their positions in Shares; (iv) arranging for bank wires;
(v) responding to Customer inquiries relating to the services performed by
you; (v) providing subaccounting with respect to Shares beneficially owned by
Customers; (vii) as required by law, forwarding shareholder communications
from us (such as proxies, shareholder reports, annual and semi-annual
financial statements and dividend, distribution and tax notices) to Customers;
and (viii) providing such other similar services as we may reasonably request
to the extent you are permitted to do so under applicable statutes, rules or
regulations. You will provide to Customers a schedule of any fees that you may
charge directly to them for such services. You hereby represent that such fees
are not unreasonable or excessive. Shares purchased by you on behalf of
Customers will be registered with our transfer agent in your name or in the
name of your nominee. The Customer will be the beneficial owner of Shares
purchased and held by you in accordance with the Customer's
C - 1
instructions ("Customers' Shares") and the Customer may exercise all rights of
a shareholder of the Fund.
(b) You agree that you will (i) maintain all records required by law
relating to transactions in Shares and, upon our request, promptly make such
of these records available to us as we may reasonably request in connection
with our operations, and (ii) promptly notify us if you experience any
difficulty in maintaining the records described in the foregoing clauses in an
accurate and complete manner.
Section 2. You will provide such office space and equipment, telephone
facilities and personnel (which may be a part of the space, equipment and
facilities currently used in your business, or any personnel employed by you)
as may be reasonably necessary or beneficial in order to provide the
aforementioned services to Customers.
Section 3. Neither you nor any of your officers, employees, agents or
assignees are authorized to make any representations concerning us or Shares
except those contained in our then current prospectus for such Shares, copies
of which will be supplied by us to you, or in such supplemental literature or
advertising as may be authorized by us in writing.
Section 4. For all purposes of this Agreement, you will be deemed to be
an independent contractor and will have no authority to act as agent for us in
any matter or in any respect. You may, upon prior written notice to us,
delegate your responsibilities hereunder to another person or persons;
provided, however, that notwithstanding any such delegation, you will remain
responsible for the performance of all your responsibilities under this
Agreement. By your written acceptance of this Agreement, you agree and do
release, indemnify and hold us harmless from and against any and all direct or
indirect liabilities or losses resulting from requests, directions, actions or
inactions of or by you and your offices, employees, agents or assigns
regarding your responsibilities hereunder or the purchase, redemption,
transfer or registration of Shares by or on behalf of Customers. You and your
employees will, upon request, be available during normal business hours to
consult with us or our designees concerning the performance of your
responsibilities under this Agreement.
Section 5. In consideration of the services and facilities provided by
you hereunder, we will cause our distributor to pay you, and you will accept
as full payment therefore, a fee (as we may determine from time to time in
writing) computed as a percentage of the average daily net assets of the
Customers' Shares held of record by you from time to time, which fee will be
computed daily and payable no less often than annually. For purposes of
determining the fees payable under this Section 5, the average daily net
assets of the Customer's Shares will be computed in the manner specified in
our registration statement (as the same is in effect from time to time) in
connection with the computation of the net asset value of Shares for purposes
of purchases and redemptions. The fee rate stated above may be prospectively
increased or decreased by us or by our distributor, at any time upon notice to
you. Further, we may, in our discretion and without notice, suspend or
withdraw the sale of Shares, including the sale of such shares to you for the
account of any Customer or Customers.
C - 2
Section 6. You will furnish us or our designees with such information
relating to your performance under this Agreement as we or they may reasonably
request (including, without limitation, periodic certifications confirming the
provision to Customers of the services described herein), and shall otherwise
cooperate with us and our designees (including, without limitation, any
auditors designated by us), in connection with the preparation of reports to
our Board of Directors concerning this Agreement and the monies paid or
payable by us pursuant hereto, as well as any other reports or filings that
may be required by law.
Section 7. We may enter into other similar services agreements with any
other person or persons without your consent.
Section 8. This Agreement will become effective on the date a fully
executed copy of this Agreement is received by us or by our distributor, and
is terminable, without penalty, at any time by us or by you upon ten days'
notice to the other party hereto and shall automatically terminate in the
event of its assignment, as that term is defined in the Investment Company Act
of 1940, as amended.
Section 9. This Agreement will be construed in accordance with the laws
of the State of Maryland.
Section 10. All notices and other communications to either you or us will
be duly given if mailed, telegraphed, telexed, or transmitted by similar
telecommunications device, if to us at the address below, and if to you, at
the address specified by you after your signature below:
ICC Distributors, Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Dealer Services
C - 3
If you agree to be legally bound by the provisions of this Agreement,
please sign a copy of this letter where indicated below and promptly return it
to us at the address set forth in Section 10 above.
Very truly yours,
ICC DISTRIBUTORS, INC.
By: _______________________________
▇▇▇▇▇▇▇ ▇. Butt, Vice President
Confirmed and Accepted:
Firm Name:___________________________________________________________
By:__________________________________________________________________
Name:________________________________________________________________
Address:_____________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
Date:________________________________________________________________
C - 4