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EXHIBIT EX-99.e.
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of _________________, 2001 by and between
PFPC DISTRIBUTORS, INC., a Massachusetts corporation ("PFPC Distributors"), and
the AB FUNDS TRUST, a Delaware business trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended, and the rules
promulgated thereunder (the "1940 Act"), and is currently offering units of
beneficial interest (such units of all series are hereinafter called the
"Shares"), representing interests in investment portfolios of the Trust
identified on Exhibit A hereto (the "Funds") which are registered with the
Securities and Exchange Commission (the "SEC") pursuant to the Trust's
Registration Statement on Form N-1A (the "Registration Statement"); and
WHEREAS, the Trust wishes to retain PFPC Distributors to serve as
distributor for the Funds to provide for the sale and distribution of the Shares
of the Funds identified on Exhibit A and for such additional classes or series
as the Trust may issue, and PFPC Distributors wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended and
the rules promulgated thereunder.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended and the rules promulgated thereunder.
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(c) "Authorized Person" means any officer of the Trust and any
other person duly authorized by the Trust's Board of Trustees
to give Oral Instructions and Written Instructions on behalf
of the Trust. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document
signed by both parties hereto.
(d) "NASD" means the National Association of Securities Dealers,
Inc.
(e) "Oral Instructions" mean oral instructions received by PFPC
Distributors from an Authorized Person or from a person
reasonably believed by PFPC Distributors to be an Authorized
Person. PFPC Distributors may, in its sole discretion in each
separate instance, consider and rely upon instructions it
receives from an Authorized Person via electronic mail as Oral
Instructions.
(f) "Registration Statement" means any Registration Statement and
any Prospectus and any Statement of Additional Information
relating to the Trust filed with the SEC and any amendments or
supplements thereto at any time filed with the SEC.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940
Act, the NASD Rules of Conduct and any state securities laws.
(h) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by PFPC Distributors or (ii)
trade instructions transmitted (and received by PFPC
Distributors) by means of an electronic transaction reporting
system access to which requires use of a password or other
authorized identifier. The instructions may be delivered by
hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Trust hereby appoints PFPC Distributors to serve as
the distributor of
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its Shares in accordance with the terms set forth in this Agreement.
PFPC Distributors accepts such appointment and agrees to furnish such
services. The Trust understands that PFPC Distributors is now, and may
in the future be, the distributor of the shares of several investment
companies or series (collectively, the "Investment Entities"),
including Investment Entities having investment objectives similar to
those of the Trust. The Trust further understands that investors and
potential investors in the Trust may invest in shares of such other
Investment Entities. The Trust agrees that PFPC Distributors' duties to
such Investment Entities shall not be deemed in conflict with its
duties to the Trust under this Agreement.
3. DELIVERY OF DOCUMENTS.
(a) The Trust has provided or, where applicable, will provide PFPC
Distributors with the following:
(i) At PFPC Distributors' request, certified or
authenticated copies of the resolutions of the
Trust's Board of Trustees, approving the appointment
of PFPC Distributors or its affiliates to provide
services to the Trust and approving this Agreement;
(ii) A copy of the Trust's most recent effective
Registration Statement;
(iii) Copies of any distribution and/or shareholder
servicing plans and agreements made in respect of the
Trust or a Fund;
(iv) A copy of the Trust's organizational documents, as
filed with the state in which the Trust is organized;
(v) Audited annual statements and unaudited semi-annual
statements of a Fund's books and accounts prepared by
the Trust;
(vi) Copies (certified or authenticated where applicable)
of any and all amendments or supplements to the
foregoing; and
(viii) Such other additional information as PFPC
Distributors may reasonably request.
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(b) The Trust agrees to advise PFPC Distributors as soon as
reasonably practical by a notice in writing delivered to PFPC
Distributors:
(i) of any request by the SEC for amendments to the
Registration Statement, Prospectus or Statement of
Additional Information then in effect or for
additional information;
(ii) in the event of the issuance by the SEC of any stop
order suspending the effectiveness of the
Registration Statement, Prospectus or Statement of
Additional Information then in effect or the
initiation by service of process on the Trust of any
proceeding for that purpose;
(iii) of the happening of any event that makes untrue any
statement of a material fact made in the Registration
Statement, Prospectus or Statement of Additional
Information then in effect or that requires the
making of a change in such Registration Statement,
Prospectus or Statement of Additional Information in
order to make the statements therein not misleading;
and
(iv) of all actions of the SEC with respect to any
amendments to any Registration Statement, Prospectus
or Statement of Additional Information which may from
time to time be filed with the SEC.
For purposes of this paragraph, informal requests by or acts
of the staff of the SEC shall not be deemed actions of or
requests by the SEC.
4. COMPLIANCE WITH RULES AND REGULATIONS. PFPC Distributors undertakes to
comply with all applicable requirements of the Securities Laws and any
laws, rules and regulations of governmental authorities having
jurisdiction with respect to the duties to be performed by PFPC
Distributors hereunder. Except as specifically set forth herein, PFPC
Distributors assumes no responsibility for such compliance by the Trust
or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Distributors
shall act only upon Oral Instructions or Written Instructions.
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(b) PFPC Distributors shall be entitled to rely upon any Oral
Instruction or Written Instruction it receives from an
Authorized Person (or from a person reasonably believed by
PFPC Distributors to be an Authorized Person) pursuant to this
Agreement. PFPC Distributors may assume that any Oral
Instruction or Written Instruction received hereunder is not
in any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or
proceeding of the Trust's Board of Trustees or of the Trust's
shareholders, unless and until PFPC Distributors receives
Written Instructions to the contrary.
(c) The Trust agrees to forward to PFPC Distributors Written
Instructions confirming Oral Instructions (except where such
Oral Instructions are given by PFPC or its affiliates) so that
PFPC Distributors receives the Written Instructions by the
close of business on the same day that such Oral Instructions
are received. The fact that such confirming Written
Instructions are not received by PFPC Distributors or differ
from the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized
by the Oral Instructions or PFPC Distributors' ability to rely
upon such Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received
from an Authorized Person, PFPC Distributors shall incur no
liability to the Trust in acting upon such Oral Instructions
or Written Instructions provided that PFPC Distributors'
actions comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Trust. If PFPC Distributors is in doubt as to
any action it should or should not take, PFPC Distributors may
request directions or advice, including
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Oral Instructions or Written Instructions, from the Trust.
(b) Advice of Counsel. If PFPC Distributors shall be in doubt as
to any question of law pertaining to any action it should or
should not take, PFPC Distributors may request advice from
counsel of its own choosing at its own cost (who may be
counsel for the Trust, the Trust's investment adviser or PFPC
Distributors, at the option of PFPC Distributors).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC Distributors receives from the Trust, and
the advice it receives from counsel, PFPC Distributors may,
upon providing to the Trust notice of such conflict, rely upon
and follow the advice of counsel.
(d) Protection of PFPC Distributors. PFPC Distributors shall be
protected in any action it takes or does not take in reliance
upon directions or advice or Oral Instructions or Written
Instructions it receives from the Trust or from counsel and
which PFPC Distributors believes, in good faith, to be
consistent with those directions or advice or Oral
Instructions or Written Instructions, provided that in
carrying out any such action PFPC has not acted with willful
misfeasance, bad faith, gross negligence or reckless disregard
of its duties hereunder. Nothing in this section shall be
construed so as to impose an obligation upon PFPC Distributors
(i) to seek such directions or advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC Distributors'
properly taking or not taking such action.
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7. RECORDS; VISITS. The books and records pertaining to the Trust and the
Funds, which are in the possession or under the control of PFPC
Distributors, shall be the property of the Trust. Such books and
records shall be prepared and maintained as required by the 1940 Act
and other applicable securities laws, rules and regulations. The Trust
and Authorized Persons shall have access to such books and records at
all times during PFPC Distributors' normal business hours. Upon the
reasonable request of the Trust, copies of any such books and records
shall be provided by PFPC Distributors to the Trust or to an Authorized
Person, at the Trust's expense.
8. CONFIDENTIALITY.
(1) Each party shall keep confidential any information relating to the
other party's business ("Confidential Information"). Confidential
Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product
plans, marketing strategies, finances, operations, customer
relationships, customer profiles, customer lists, sales estimates,
business plans, and internal performance results relating to the
past, present or future business activities of the Trust or PFPC
Distributors, their respective subsidiaries and affiliated
companies and the customers, clients and suppliers of any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the Trust
or PFPC Distributors a competitive advantage over its competitors;
(c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how, and
trade secrets,
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whether or not patentable or copyrightable; and (d) anything
designated as confidential.
(2) Notwithstanding the foregoing, information shall not be subject to
such confidentiality obligations if it: (a) is already known to
the receiving party at the time it is obtained; (b) is or becomes
publicly known or available through no wrongful act of the
receiving party; (c) is rightfully received from a third party
who, to the best of the receiving party's knowledge, is not under
a duty of confidentiality; (d) is released by the protected party
to a third party without restriction; (e) is required to be
disclosed by the receiving party pursuant to a requirement of a
court order, subpoena, governmental or regulatory agency or law
(provided the receiving party will provide the other party written
notice of such requirement, to the extent such notice is
permitted); (f) is relevant to the defense of any claim or cause
of action asserted against the receiving party; or (g) has been or
is independently developed or obtained by the receiving party.
(3) PFPC may not disclose nonpublic personal information of Trust
shareholders (whether past, present or future shareholders) other
than (a) in the ordinary course of business of performing
obligations under this Agreement or (b) after notice to the Trust
to the extent permissible under applicable law, pursuant to a
court order, subpoena, governmental or regulatory request.
9. COMPENSATION.
(a) The Trust shall pay all fees and expenses:
(i) in connection with the preparation, setting in type
and filing of any registration statement, Prospectus
and Statement of Additional Information under the
1933 Act, and any amendments thereto, for the issue
of Shares;
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(ii) in connection with the registration and qualification
of Shares for sale in the various states in which the
Board of Trustees of the Trust shall determine it
advisable to qualify Shares for sale (including
registering the Trust or any series as a broker or
dealer, or any officer of the Trust as an agent or
salesperson in any state);
(iii) of preparing, setting in type, printing and mailing
any report or other communication to shareholders of
the Trust in their capacity as such; and
(iv) of printing and mailing Prospectuses, Statements of
Additional Information, and any supplements thereto,
sent to existing shareholders.
(b) PFPC Distributors may, in its sole discretion, pay such
expenses as it deems reasonable for:
(i) printing and distributing Prospectuses, Statements of
Additional Information and reports prepared for its
use in connection with the offering of Shares for
sale to the public;
(ii) any other literature used in connection with such
offering; and
(iii) advertising in connection with such offering.
10. INDEMNIFICATION.
(a) The Trust agrees to indemnify and hold harmless PFPC
Distributors and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including,
without limitation, attorneys' fees and disbursements and
liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC
Distributors takes under this Agreement including without
limitation in accordance with Oral or Written Instructions or
at the Trust's request or direction. Neither PFPC
Distributors, nor any of its affiliates, shall be indemnified
against any liability (or any expenses incident to such
liability) caused by PFPC
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Distributors' or its affiliates' own willful misfeasance, bad
faith, negligence, gross negligence or reckless disregard of
its duties and obligations under this Agreement.
(b) The Trust agrees to indemnify and hold harmless PFPC
Distributors, its officers, directors, and employees, and any
person who controls PFPC Distributors within the meaning of
Section 15 of the 1933 Act, free and harmless (a) from and
against any and all claims, costs, expenses (including
reasonable attorneys' fees) losses, damages, charges, payments
and liabilities of any sort or kind which PFPC Distributors,
its officers, directors, employees or any such controlling
person may incur under the 1933 Act, under any other statute,
at common law or otherwise, arising out of or based upon: (i)
any untrue statement, or alleged untrue statement, of a
material fact contained in the Trust's Registration Statement,
Prospectus, Statement of Additional Information, or sales
literature (including amendments and supplements thereto), or
(ii) any omission, or alleged omission, to state a material
fact required to be stated in the Trust's Registration
Statement, Prospectus, Statement of Additional Information or
sales literature (including amendments or supplements
thereto), necessary to make the statements therein not
misleading, provided, however, that insofar as losses, claims,
damages, liabilities or expenses arise out of or are based
upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity
with information furnished to the Trust by PFPC Distributors
or its affiliated persons for use in the Trust's Registration
Statement, Prospectus, or Statement of Additional Information
or sales literature (including amendments or supplements
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thereto), such indemnification is not applicable; and (b) from
and against any and all such claims, demands, liabilities and
expenses (including such costs and counsel fees) which PFPC
Distributors, its officers and trustees, or such controlling
person, may incur in connection with this Agreement or PFPC
Distributors' performance hereunder (but excluding such
claims, demands, liabilities and expenses (including such
costs and counsel fees) arising out of or based upon any
untrue statement, or alleged untrue statement, of a material
fact contained in any Registration Statement or any Prospectus
or arising out of or based upon any omission, or alleged
omission, to state a material fact required to be stated in
either any Registration Statement or any Prospectus or
necessary to make the statements in either thereof not
misleading)), unless such claims, demands, liabilities and
expenses (including such costs and counsel fees) arise by
reason of PFPC Distributors' willful misfeasance, bad faith,
negligence or gross negligence in the performance of PFPC
Distributors' duties hereunder. The Trust acknowledges and
agrees that in the event that PFPC Distributors, at the
request of the Trust, is required to give indemnification
comparable to that set forth in this paragraph to any
broker-dealer selling Shares of the Trust or servicing agent
servicing the shareholders of the Trust and such broker-dealer
or servicing agent shall make a claim for indemnification
against PFPC Distributors, PFPC Distributors shall make a
similar claim for indemnification against the Trust.
(c) PFPC Distributors agrees to indemnify and hold harmless the
Trust, its several officers and Board members and each person,
if any, who controls a Fund within the meaning of Section 15
of the 1933 Act against any and all claims, costs,
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expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or kind
which the Trust, its officers, Board members or any such
controlling person may incur under the 1933 Act, under any
other statute, at common law or otherwise, but only to the
extent that such liability or expense incurred by the Trust,
its officers or Board members, or any controlling person
resulting from such claims or demands arose out of the
acquisition of any Shares by any person which may be based
upon any untrue statement, or alleged untrue statement, of a
material fact contained in the Trust's Registration Statement,
Prospectus or Statement of Additional Information or sales
literature (including amendments and supplements thereto), or
any omission, or alleged omission, to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, if such statement or
omission was made in reliance upon information furnished or
confirmed in writing to the Trust by PFPC Distributors or its
affiliated persons (as defined in the 1940 Act). The foregoing
rights of indemnification shall be in addition to any other
rights to which the Trust or any such person shall be entitled
to as a matter of law.
(d) In any case in which one party hereto (the "Indemnifying
Party") may be asked to indemnify or hold the other party
hereto (the "Indemnified Party") harmless, the Indemnified
Party will notify the Indemnifying Party promptly after
identifying any situation which it believes presents or
appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party,
although the failure to do so shall not prevent recovery by
the Indemnified Party, and shall keep the Indemnifying Party
advised with respect to all developments
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concerning such situation. The Indemnifying Party shall have
the option to defend the Indemnified Party against any
Indemnification Claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party
so elects, such defense shall be conducted by counsel chosen
by the Indemnifying Party and satisfactory to the Indemnified
Party, and thereupon the Indemnifying Party shall take over
complete defense of the Indemnification Claim and the
Indemnified Party shall sustain no further legal or other
expenses in respect of such Indemnification Claim. In the
event that the Indemnifying Party does not elect to assume the
defense of any such suit, or in case the Indemnified Party
reasonably does not approve of counsel chosen by the
Indemnifying Party, or in case there is a conflict of interest
between the Indemnifying Party or the Indemnified Party, the
Indemnifying Party will reimburse the Indemnified Party for
the fees and expenses of any counsel retained by the
Indemnified Party. Each party agrees promptly to notify the
other of the commencement of any litigation or proceedings
against it or any of its officers or trustees in connection
with the issue and sale of any Shares. The Indemnified Party
will not confess any Indemnification Claim or make any
compromise in any case in which the Indemnifying Party will be
asked to provide indemnification, except with the Indemnifying
Party's prior written consent.
11. RESPONSIBILITY OF PFPC DISTRIBUTORS.
(a) PFPC Distributors shall be under no duty to take any action
hereunder on behalf of the Trust except as specifically set
forth herein or as may be specifically agreed to by PFPC
Distributors and the Trust in a written amendment hereto. PFPC
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Distributors shall be obligated to exercise care and diligence
in the performance of its duties hereunder and to act in good
faith in performing services provided for under this
Agreement. PFPC Distributors shall be liable only for any
damages arising out of PFPC Distributors' failure to perform
its duties under this Agreement to the extent such damages
arise out of PFPC Distributors' willful misfeasance, bad
faith, gross negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC Distributors shall
not be liable for losses beyond its control, including,
without limitation, delays or errors or loss of data occurring
by reason of circumstances beyond PFPC Distributors' control,
provided that PFPC Distributors has acted in accordance with
the standard set forth in Section 11(a) above; and (ii) PFPC
Distributors shall not be under any duty or obligation to
inquire into and shall not be liable for the validity or
invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument
which conforms to the applicable requirements of this
Agreement, and which PFPC Distributors reasonably believes to
be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC Distributors nor its affiliates shall be liable
for any consequential, special or indirect losses or damages,
whether or not the likelihood of such losses or damages was
known by PFPC Distributors or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
12. DUTIES AND OBLIGATIONS OF THE TRUST.
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(a) The Trust represents to PFPC Distributors that all
Registration Statements and Prospectuses filed by the Trust
with the SEC under the 1933 Act with respect to the Shares
have been prepared in conformity with the requirements of the
1933 Act and the rules and regulations of the SEC thereunder.
Except as to information included in the Registration
Statement in reliance upon information provided to the Trust
by PFPC Distributors or any affiliate of PFPC Distributors
expressly for use in the Registration Statement, the Trust
represents and warrants to PFPC Distributors that any
Registration Statement, when such Registration Statement
becomes effective, will contain statements required to be
stated therein in conformity with the 1933 Act and the rules
and regulations of the SEC; that all statements of fact
contained in any such Registration Statement will be true and
correct when such Registration Statement becomes effective;
and that no Registration Statement when such Registration
Statement becomes effective will include an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading to a purchaser of the Shares. PFPC
Distributors may but shall not be obligated to propose from
time to time such amendment or amendments to any Registration
Statement and such supplement or supplements to any Prospectus
as, in the light of future developments, may, in the opinion
of the PFPC Distributors' counsel, be necessary or advisable.
PFPC Distributors shall promptly notify the Trust of any
advice given to it by its counsel regarding the necessity or
advisability of amending or supplementing such Registration
Statement. If the Trust shall not propose such amendment or
amendments and/or supplement or
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supplements within fifteen days after receipt by the Trust of
a written request from PFPC Distributors to do so, PFPC
Distributors may, at its option, terminate this Agreement. The
Trust shall not file any amendment to any Registration
Statement or supplement to any Prospectus without giving PFPC
Distributors reasonable notice thereof in advance; provided,
however, that nothing contained in this Agreement shall in any
way limit the Trust's right to file at any time such
amendments to any Registration Statements and/or supplements
to any Prospectus, of whatever character, as the Trust may
deem advisable, such right being in all respects absolute and
unconditional. The Trust authorizes PFPC Distributors to use
any Prospectus or Statement of Additional Information in the
form furnished from time to time in connection with the sale
of the Shares.
(b) The Trust represents and warrants to PFPC Distributors that
the Trust is an investment company registered under the 1940
Act and the Shares sold by each Fund are, and will be,
registered under the 1933 Act.
(c) The net asset value of the Shares shall be determined in the
manner provided in the then current Prospectus and Statement
of Additional Information relating to the Shares, and when
determined shall be applicable to all transactions as provided
in the Prospectus. The net asset value of the Shares shall be
calculated by the Trust or by another entity on behalf of the
Trust. PFPC Distributors shall have no duty to inquire into,
or liability for, the accuracy of the net asset value per
Share as calculated.
(d) Whenever in its judgment such action is warranted by unusual
market, economic or political conditions or abnormal
circumstances of any kind, the Trust may
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decline to accept any orders for, or make any sales of, the
Shares until such time as the Trust deems it advisable to
accept such orders and to make such sales, and the Trust
advises PFPC Distributors promptly of such determination.
(e) The Trust agrees to execute any and all documents and to
furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with
the qualification of the Shares for sale in such states as
PFPC Distributors may request. The Trust shall notify PFPC
Distributors in writing of the states in which the Shares may
be sold and shall notify PFPC Distributors in writing of any
changes to the information contained in the previous
notification.
13. DUTIES AND OBLIGATIONS OF PFPC DISTRIBUTORS.
(a) PFPC Distributors will act on behalf of the Trust for the
distribution of the Shares covered by the Registration
Statement under the 1933 Act and provide the distribution
services outlined below and as follows: (i) preparation and
execution of sales or servicing agreements, (ii) preparation
of quarterly 12b-1 Reports to the Board, (iii) literature
review, recommendations and submission to the NASD.
(b) PFPC Distributors agrees to use efforts deemed appropriate by
PFPC Distributors to solicit orders for the sale of the Shares
and will undertake such advertising and promotion as it
believes reasonable in connection with such solicitation. To
the extent that PFPC Distributors receives fees under any plan
adopted by the Trust pursuant to Rule 12b-1 under the 1940
Act, PFPC Distributors agrees to furnish and/or enter into
arrangements with others for the furnishing of marketing or
sales services with respect to the Shares as may be required
pursuant to such plan. To the extent that PFPC Distributors
receives shareholder services fees under any
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shareholder services plan adopted by the Trust, PFPC
Distributors agrees to furnish and/or enter into arrangements
with others for the furnishing of, personal and/or account
maintenance services with respect to the relevant shareholders
of the Trust as may be required pursuant to such plan. It is
contemplated that PFPC Distributors will enter into sales or
servicing agreements with securities dealers, financial
institutions and other industry professionals, such as
investment advisers, accountants and estate planning firms.
PFPC Distributors will require each dealer with whom PFPC
Distributors has a selling agreement to conform to the
applicable provisions of the Prospectus, with respect to the
public offering price of the Shares, and PFPC Distributors
shall not cause the Trust to withhold the placing of purchase
orders so as to make a profit thereby.
(c) PFPC Distributors shall not utilize any materials in
connection with the sale or offering of Shares except the
Trust's Prospectus and Statement of Additional Information and
such other materials as the Trust shall provide or approve in
writing. The Trust agrees to furnish PFPC Distributors with
sufficient copies of any and all: agreements, plans,
communications with the public or other materials which the
Trust intends to use in connection with any sales of Shares,
in adequate time for PFPC Distributors to file and clear such
materials with the proper authorities before they are put in
use. PFPC Distributors and the Trust may agree that any such
material does not need to be filed subsequent to distribution.
In addition, the Trust agrees not to use any such materials
until so filed and cleared for use, if required, by
appropriate authorities as well as by PFPC Distributors.
(d) PFPC Distributors will transmit any orders received by it for
purchase or
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redemption of the Shares to the transfer agent for the Trust.
PFPC Distributors will have no liability for payment for the
purchase of Shares sold pursuant to this Agreement or with
respect to redemptions or repurchases of Shares.
(e) No Shares shall be offered by either PFPC Distributors or the
Trust under any of the provisions of this Agreement and no
orders for the purchase or sale of Shares hereunder shall be
accepted by the Trust if and so long as effectiveness of the
Registration Statement then in effect or any necessary
amendments thereto shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a current
Prospectus as required by Section 5(b)(2) of the 1933 Act is
not on file with the SEC; provided, however, that nothing
contained in this paragraph shall in any way restrict or have
any application to or bearing upon the Trust's obligation to
redeem Shares tendered for redemption by any shareholder in
accordance with the provisions of the Trust's Registration
Statement, trust instrument, or bylaws.
14. DURATION AND TERMINATION. This Agreement shall become effective on the
date first written above and, unless sooner terminated as provided
herein, shall continue for an initial two-year term and thereafter
shall be renewed for successive one-year terms, provided such
continuance is specifically approved at least annually by (i) the
Trust's Board of Trustees or (ii) by a vote of a majority (as defined
in the 1940 Act and Rule 18f-2 thereunder) of the outstanding voting
securities of the Trust, provided that in either event the continuance
is also approved by a majority of the Board Members who are not parties
to this Agreement and who are not interested persons (as defined in the
▇▇▇▇ ▇▇▇) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This
Agreement is terminable without penalty, on at least
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sixty days' written notice, by the Trust's Board of Trustees, by vote
of a majority (as defined in the 1940 Act and Rule 18f-2 thereunder) of
the outstanding voting securities of the Trust, or by PFPC
Distributors. This Agreement will also terminate automatically in the
event of its assignment (as defined in the 1940 Act and the rules
thereunder). In the event the Trust gives notice of termination, all
expenses associated with movement (or duplication) of records and
materials and conversion thereof to a successor transfer agent or other
service provider and all trailing expenses incurred by PFPC
Distributors will be borne by the Trust provided such expenses are
reasonable in nature and documented.
15. NOTICES. Notices shall be addressed (a) if to PFPC Distributors, at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President; (b)
if to the Trust, at , Attention: _________ or (c) if to neither of
the foregoing, at such other address as shall have been given by like
notice to the sender of any such notice or other communication by the
other party. If notice is sent by confirming telegram, cable, telex or
facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be deemed
to have been given three days after it has been mailed. If notice is
sent by messenger, it shall be deemed to have been given on the day it
is delivered.
16. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
17. NON-SOLICITATION. During the term of this Agreement and for a period of
one year afterward, the Trust shall not recruit, solicit, employ or
engage, for the Trust or any other person, any of PFPC Distributors'
employees.
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18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
19. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
20. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Trust agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC Distributors hereunder
without the prior written approval of PFPC Distributors, which
approval shall not be unreasonably withheld or delayed.
(c) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(d) Governing Law. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
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(e) Partial Invalidity. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
(f) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(g) No Representations or Warranties. Except as expressly provided
in this Agreement, PFPC Distributors hereby disclaims all
representations and warranties, express or implied, made to
the Trust or any other person, including, without limitation,
any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to
services provided under this Agreement. PFPC Distributors
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
(i) Limitations of Liability of the Trustees and Shareholders.
PFPC Distributors is hereby expressly put on notice of the
limitation of shareholder liability as set forth in the
Trust's Declaration of Trust and notice is hereby given that
this Agreement is executed on behalf of the Trustees of the
Trust as Trustees and not individually and that the
obligations of this Agreement are not binding upon any of the
Trustees or Shareholders individually but are binding only
upon the assets and
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property of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC DISTRIBUTORS, INC.
By:
----------------------------------
Title:
-------------------------------
AB FUNDS TRUST
By:
----------------------------------
Title:
-------------------------------
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EXHIBIT A
THIS EXHIBIT A, dated as of ____________________, 2001, is Exhibit A to
that certain Underwriting Agreement dated as of ____________________, 2001,
between PFPC Distributors, Inc. and the AB Funds Trust.
FUNDS
THE BLENDED FUNDS
Flexible Income Fund
Growth & Income Fund
Capital Opportunities Fund
Global Equity Fund
THE SELECT FUNDS
Money Market Fund
Low Duration Bond Fund
Medium Duration Bond Fund
Extended Duration Bond Fund
Equity Index Fund
Value Equity Fund
Growth Equity Fund
Small Cap Equity Fund
International Equity Fund
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