EXHIBIT 6(f)
FORM OF
DISTRIBUTION AGREEMENT
This Distribution Agreement is made as of this 4th day of
February, 1997 by and between THE MUNDER FUNDS, INC., a Maryland
Corporation (the "Fund"), and FUNDS DISTRIBUTOR, INC., a
Massachusetts corporation ("Funds Distributor").
WHEREAS, the Fund is an open-end management investment
company and is so registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Fund desires to retain Funds Distributor as
Distributor for the Fund's shares of common stock in Class A,
Class B and Class Y Shares representing interests in the Fund's
three separate portfolios, Munder All-Season Conservative Fund,
Munder All-Season Moderate Fund, and Munder All-Season Aggressive
Fund (individually, a "Portfolio" and collectively, the
"Portfolios"), to provide for the sale and distribution of shares
of the Portfolios (the "Shares"), and Funds Distributor is willing
to render such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth herein and intending to be legally bound
hereby, the parties hereto agree as follows:
I. DELIVERY OF DOCUMENTS
The Fund has delivered to Funds Distributor copies of each
of the following documents and will deliver to it all future
amendments and supplements thereto, if any:
(a) Resolutions of the Fund's Board of Directors
authorizing the execution and delivery of this Agreement;
(b) The Fund's Articles of Incorporation as filed with the
State of Maryland - Department of Assessments and Taxation on
November 18, 1992;
(c) The Fund's By-Laws;
(d) The Fund's Notification of Registration on Form N-8A
under the 1940 Act as filed with the Securities and Exchange
Commission ("SEC");
(e) The Fund's Registration Statement on Form N-1A (the
"Registration Statement") under the Securities Act of 1933 (the
"1933 Act") and the 1940 Act, as filed with the SEC on November
18, 1992, and all amendments thereto; and
(f) The Fund's most recent Prospectuses and Statements of
Additional Information and all amendments and supplements thereto
(collectively, the "Prospectuses").
II. DISTRIBUTION
1. Appointment of Distributor. The Fund hereby appoints
Funds Distributor as Distributor of the Portfolios' Shares and
Funds Distributor hereby accepts such appointment and agrees to
render the services and duties set forth in this Section II. In
the event that the Fund establishes one or more additional
portfolios or classes of shares other than the Portfolios and the
Shares with respect to which it decides to retain Funds
Distributor to act as distributor hereunder, the Fund shall notify
Funds Distributor in writing. If Funds Distributor is willing to
render such services, it shall so notify the Fund in writing
whereupon such portfolio and such shares shall become a Portfolio
and Shares hereunder and shall be subject to the provisions of
this Agreement, except to the extent that said provision is
modified with respect to such portfolio or shares in writing by
the Fund and Funds Distributor at the time.
2. Services and Duties.
(a) The Fund agrees to sell through Funds Distributor, as
agent, from time to time during the term of this Agreement, Shares
(whether authorized but unissued or treasury shares, in the Fund's
sole discretion) upon the terms and at the current offering price
as described in the applicable Prospectus. Funds Distributor will
act only in its own behalf as principal in making agreements with
selected dealers or others for the sale and redemption of Shares,
and shall sell Shares only at the offering price thereof as set
forth in the applicable Prospectus. Funds Distributor shall
devote appropriate efforts to effect sales of Shares of each of
the Portfolios, but shall not be obligated to sell any certain
number of Shares.
(b) In all matters relating to the sale and redemption of
Shares, Funds Distributor will act in conformity with the Fund's
Articles of Incorporation, By-Laws and applicable Prospectuses and
with the instructions and directions of the Board of Directors of
the Fund and will conform to and comply with the requirements of
the 1933 Act, the 1940 Act, the regulations of the National
Association of Securities Dealers, Inc. and all other applicable
Federal or state laws and regulations.
(c) Funds Distributor will bear the cost of printing and
distributing any Prospectus (including any supplement or amendment
thereto), provided, however, that Funds Distributor shall not be
obligated to bear the expenses incurred by the Fund in connection
with (i) the preparation and printing of any supplement or
amendment to a Registration Statement or Prospectus necessary for
the continued effective registration of the Shares under the 1933
Act or state securities laws; and (ii) the printing and
distribution of any Prospectus, supplement or amendment thereto
for existing shareholders of the class ("Class") of Shares
described therein.
(d) All Shares of the Portfolios offered for sale by Funds
Distributor shall be offered for sale to the public at a price per
share (the "offering price") equal to (i) their net asset value
(determined in the manner set forth in the applicable
Prospectuses) plus, except to those classes of persons set forth
in the applicable Prospectuses, (ii) a sales charge which shall be
the percentage of the offering price of such Shares as set forth
in the applicable Prospectuses. The offering price, if not an
exact multiple of one cent, shall be adjusted to the nearest cent.
Concessions paid by Funds Distributor to broker-dealers and other
persons shall be set forth in either the selling agreements
between Funds Distributor and such broker-dealers and persons or,
if such concessions are described in the applicable Prospectuses,
shall be as so set forth. No broker-dealer or other person who
enters into a selling or distribution and servicing agreement with
Funds Distributor shall be authorized to act as agent for the Fund
in connection with the offering or sale of Shares to the public or
otherwise.
(e) If any Shares sold by Funds Distributor under the terms
of this Agreement are redeemed or repurchased by the Fund or by
Funds Distributor as agent or are tendered for redemption within
seven business days after the date of confirmation of the original
purchase of said Shares, Funds Distributor shall forfeit the
amount above the net asset value received by it with respect to
such Shares, provided that the portion, if any, of such amount re-
allowed by Funds Distributor to broker-dealers or other persons
shall be repayable to the Fund only to the extent recovered by
Funds Distributor from the broker-dealer or other persons
concerned. Funds Distributor shall include in the form of
agreement with such broker-dealers and other persons a
corresponding provision for the forfeiture by them of their
concession with respect to Shares sold by them or their principals
and redeemed or repurchased by the Fund or by Funds Distributor as
agent (or tendered for redemption) within seven business days
after the date of confirmation of such initial purchases.
(f) Funds Distributor may be reimbursed for all or a
portion of the expenses described above to the extent permitted by
one or more distribution plans adopted by the Fund on behalf of a
Portfolio pursuant to Rule 12b-1 under the 1940 Act. No provision
of this Agreement may be deemed to prohibit any payments by a
Portfolio to Funds Distributor or by a Portfolio or Funds
Distributor to investment dealers, banks or other financial
institutions through whom shares of the Fund are sold where such
payments are made under a distribution plan adopted by the Fund on
behalf of such Portfolio pursuant to Rule 12b-1 under the Act (the
"Plan"). The Fund agrees that it shall provide notice to Funds
Distributor at least 30 days prior to the effective date of the
elimination of or the decrease in the amount of expenses
reimbursable under such a distribution plan.
(g) With respect to such classes of shares, if any, that
are sold with a contingent deferred sales charge ("CDSC"), Funds
Distributor shall impose a CDSC in connection with the redemption
of the Shares of such classes, not to exceed a specified
percentage of the original purchase price of the Shares, as from
time to time set forth in the applicable Prospectuses. Funds
Distributor may retain (or receive from the Fund, as the case may
be) all of any CDSC. Funds Distributor may pay to broker-dealers
or other persons through whom such Shares are sold a commission or
other payment to the extent consistent with the current
Prospectuses and applicable rules and regulations.
3. Sales and Redemptions.
(a) The Fund shall pay all costs and expenses in connection
with the registration of the Shares under the 1933 Act, and all
expenses in connection with maintaining facilities for the issue
and transfer of the Shares and for supplying information, prices
and other data to be furnished by the Fund hereunder, and all
expenses in connection with preparing, printing and distributing
the Prospectuses except as set forth in subsection 2(c) of Section
II hereof.
(b) The Fund shall execute all documents, furnish all
information and otherwise take all actions which may be reasonably
necessary in the discretion of the Fund's officers in connection
with the sale of the Shares in such states as Funds Distributor
may designate to the Fund and the Fund may approve, and the Fund
shall pay all filing fees which may be incurred in connection with
such sale. Funds Distributor shall pay all other expenses
incurred by Funds Distributor in connection with the sale of the
Shares, except as otherwise specifically provided in this
Agreement.
(c) The Fund shall have the right to suspend the sale of
Shares at any time in response to conditions in the securities
markets or otherwise, and to suspend the redemption of Shares of
any Portfolio at any time permitted by the 1940 Act or the rules
of the SEC ("Rules").
(d) The Fund reserves the right to reject any order for
Shares, but will not do so arbitrarily or without reasonable
cause.
III. LIMITATIONS OF LIABILITY
Funds Distributor shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Fund or
any Portfolio in connection with the matters to which this
Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement.
IV. CONFIDENTIALITY
Funds Distributor will treat confidentially and as
proprietary information of the Fund all records and other
information relative to the Fund, to the Fund's prior or current
shareholders and to those persons or entities who respond to Funds
Distributor's inquiries concerning investment in the Fund, and,
except as provided below, will not use such records and
information for any purpose other than the performance of its
responsibilities and duties hereunder. Any other use by Funds
Distributor of the information and records referred to above may
be made only after prior notification to and approval in writing
by the Fund. Such approval shall not be unreasonably withheld and
may not be withheld where: (i) Funds Distributor may be exposed
to civil or criminal contempt proceedings for failure to divulge
such information; (ii) Funds Distributor is requested to divulge
such information by duly constituted authorities; or (iii) Funds
Distributor is so requested by the Fund.
V. INDEMNIFICATION
1. Fund Representation. The Fund represents and warrants
to Funds Distributor that at all times the Registration Statement
and Prospectuses will in all material respects conform to the
applicable requirements of the 1933 Act and the Rules thereunder
and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, except
that no representation or warranty in this subsection shall apply
to statements or omissions made in reliance upon and in conformity
with written information furnished to the Fund by or on behalf of
and with respect to Funds Distributor expressly for use in the
Registration Statement or Prospectuses.
2. Funds Distributor Representation. Funds Distributor
represents and warrants to the Fund that it is duly organized as a
Massachusetts corporation and is and at all times will remain duly
authorized and licensed to carry out its services as contemplated
herein.
3. Fund Indemnification. The Fund, on behalf of each
Portfolio, agrees that each Portfolio will indemnify, defend and
hold harmless Funds Distributor, its several officers and
directors, and any person who controls Funds Distributor within
the meaning of Section 15 of the 1933 Act, from and against any
losses, claims, damages or liabilities, joint or several, to which
any of them may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based
upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the
Prospectuses or in any application or other document executed by
or on behalf of a Portfolio, or arise out of or based upon,
information furnished by or on behalf of a Portfolio, filed in any
state in order to sell the Shares under the securities or blue sky
laws thereof ("Blue Sky Application"), or arise out of, or are
based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse Funds
Distributor, its several officers and directors, and any person
who controls Funds Distributor within the meaning of Section 15 of
the 1933 Act, for any legal or other expenses reasonably incurred
by any of them in investigating, defending or preparing to defend
any such action, proceeding or claim; provided, however, that
neither the Fund nor any Portfolio shall be liable in any case to
the extent that such loss, claim, damage or liability arises out
of, or is based upon, any untrue statement, alleged untrue
statement, or omission or alleged omission made in the
Registration Statement, the Prospectuses, any Blue Sky Application
or any application or other document executed by or on behalf of
the Fund in reliance upon and in conformity with written
information furnished to the Fund by or on behalf of Funds
Distributor specifically for inclusion therein.
A Portfolio shall not indemnify any person pursuant to this
subsection 3 unless the court or other body before which the
proceeding was brought has rendered a final decision on the merits
that such person was not liable by reason of his willful
misfeasance, bad faith or gross negligence in the performance of
his duties, or his reckless disregard of his obligations and
duties, under this Agreement ("disabling conduct") or, in the
absence of such a decision, a reasonable determination (based upon
a review of the facts) that such person was not liable by reason
of disabling conduct has been made by the vote of a majority of a
quorum of Directors of the Fund who are neither "interested
parties" of the Fund (as defined in the ▇▇▇▇ ▇▇▇) nor parties to
the proceeding, or by an independent legal counsel in a written
opinion.
Each Portfolio shall advance attorneys' fees and other
expenses incurred by any person in defending any claim, demand,
action or suit which is the subject of a claim for indemnification
pursuant to this subsection 3, so long as: (i) such person shall
undertake to repay all such advances unless it is ultimately
determined that he or she is entitled to indemnification
hereunder; and (ii) such person shall provide security for such
undertaking, or the Portfolio shall be insured against losses
arising by reason of any lawful advances, or a majority of a
quorum of the disinterested, non-party Directors of the Fund (or
an independent legal counsel in a written opinion) shall determine
based on a review of readily available facts (as opposed to a full
trial-type inquiry) that there is reason to believe that such
person ultimately will be found entitled to indemnification
hereunder.
The obligations of each Portfolio under this subsection 3
shall be the several (and not joint or joint and several)
obligation of each Portfolio.
4. Funds Distributor Indemnification. Funds Distributor
will indemnify, defend and hold harmless the Fund, each Portfolio,
the Fund's several officers and Directors and any person who
controls the Fund or any Portfolio within the meaning of Section
15 of the 1933 Act, from and against any losses, claims, damages
or liabilities, joint or several, to which any of them may become
subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in
respect hereof) arise out of, or are based upon, any breach of its
representations, warranties and agreements herein, or which arise
out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, the Prospectuses, any Blue Sky Application or any
application or other documents executed by or on behalf of the
Fund or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, which statement or omission
was made in reliance upon and in conformity with information
furnished in writing to the Fund or any of its several officers
and Directors by or on behalf of Funds Distributor specifically
for inclusion therein, and will reimburse the Fund, each
Portfolio, the Fund's several officers and trustees, and any
person who controls the Fund or any Portfolio within the meaning
of Section 15 of the 1933 Act, for any legal or other expenses
reasonably incurred by any of them in investigating, defending or
preparing to defend any such action, proceeding or claim.
5. General Indemnity Provision. No indemnifying party
shall be liable under its indemnity agreement contained in
subsection 3 or 4 hereof with respect to any claim made against
such indemnifying party unless the indemnified party shall have
notified the indemnifying party in writing within a reasonable
time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon
the indemnified party (or after the indemnified party shall have
received notice of such service on any designated agent), but
failure to notify the indemnifying party of any such claim shall
not relieve it from any liability which it may otherwise have to
the indemnified party. The indemnifying party will be entitled to
participate at its own expense in the defense or, if it so elects,
to assume the defense of any suit brought to enforce any such
liability, and if the indemnifying party elects to assume the
defense, such defense shall be conducted by counsel chosen by it
and reasonably satisfactory to the indemnified party. In the
event the indemnifying party elects to assume the defense of any
such suit and retain such counsel, the indemnified party shall
bear the fees and expenses of any additional counsel retained by
the indemnified party.
VI. DURATION AND TERMINATION
This Agreement shall become effective as of the date first
above written, and, unless sooner terminated as provided herein,
shall continue until February 4, 1999. Thereafter, if not
terminated, this Agreement shall continue automatically for
successive terms of one year, provided that such continuance is
specifically approved at least annually by a vote of the majority
of the Board of Directors of the Fund, including a majority of the
Directors who are not "interested persons" of the Fund and have no
direct or indirect financial interest in the operation of the
Plan, this Agreement, or in any agreement relating to the Plan
(the "Plan Directors"), by vote cast in person at a meeting called
for the purpose of voting on such approval; provided, however,
that this Agreement may be terminated with respect to any
Portfolio by the Fund at any time, without the payment of any
penalty, by vote of a majority of the Directors or by a vote of a
"majority of the outstanding voting securities" of such Portfolio
on 60 days' written notice to Funds Distributor, or by Funds
Distributor at any time, without the payment of any penalty, on 60
days' written notice to the Fund. This Agreement will
automatically and immediately terminate in the event of its
"assignment." (As used in this Agreement, the terms "majority of
the outstanding voting securities," "interested person" and
"assignment" shall have the same meanings as such terms have in
the 1940 Act.)
VII. AMENDMENT OF THIS AGREEMENT
No provision of this Agreement may be changed, waived,
discharged or terminated except by an instrument in writing signed
by the party against which an enforcement of the change, waiver,
discharge or termination is sought.
VIII. NOTICES
Notices of any kind to be given to the Fund hereunder by
Funds Distributor shall be in writing and shall be duly given if
mailed or delivered to the Fund at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇, with a copy to
▇▇▇▇ ▇. ▇▇▇▇, Esq., Dechert Price & ▇▇▇▇▇▇, ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, or at such other address or to such
individual as shall be so specified by the Fund to Funds
Distributor. Notices of any kind to be given to Funds Distributor
hereunder by the Fund shall be in writing and shall be duly given
if mailed or delivered to Funds Distributor at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇ or at such other address or to such individual as shall
be so specified by Funds Distributor to the Fund.
IX. MISCELLANEOUS
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. 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.
Subject to the provisions of Section VI hereof, this Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and shall be
governed by Maryland law; provided, however, that nothing herein
shall be construed in a manner inconsistent with the 1940 Act or
any rule or regulation of the SEC thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of
the day and year first above written.
THE MUNDER FUNDS, INC.
By:
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Attest:
FUNDS DISTRIBUTOR, INC.
By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
Attest:
7
shared/bankgrp/munder/parta/pea23/exh6f.doc
shared/bankgrp/munder/parta/pea23/exh6f.doc
