DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of the ______ day of ________, 1999 by and
between each of the open-end investment management companies listed on Schedule
A, attached hereto, together with all other open-end management investment
companies subsequently established and made subject to this Agreement in
accordance with Section 4.3 below (each a "Fund", collectively the "Funds") and
Funds Distributor, Inc., a Massachusetts corporation ("FDI").
WHEREAS, the shares of beneficial shares of each of the Funds is currently
divided into a number of separate series of shares, or funds, each corresponding
to a distinct portfolio of securities (each a "Series"), and many of which are
also divided into multiple classes of shares. For purposes of this Agreement
the term "Shares" shall mean the authorized shares of the relevant Series, if
any, and otherwise shall mean the Fund's authorized shares;
WHEREAS, FDI is registered as a broker-dealer with the Securities and
Exchange Commission ("SEC") under the Securities and Exchange Act of 1934 (the
"1934 Act") and is a member of the National Association of Securities Dealers,
Inc. (the "NASD");
WHEREAS, CDC Investment Management Corporation ("Adviser") is the
registered investment adviser to the Funds pursuant to the investment advisory
agreements between Adviser and the Funds;
WHEREAS, the Board of Trustees of the Funds wishes to engage FDI to act as
the distributor for the Funds and FDI is willing to render such services;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
set forth below, the parties agree as follows:
1. SERVICES AS DISTRIBUTOR
1.1 FDI will act as agent for the distribution of Shares covered by, and
in accordance with, the registration statement then in effect under the
Securities Act of 1933, as amended (the "1933 Act"), and will transmit promptly
any orders received by FDI for purchase or redemption of Shares to the Transfer
and Dividend Disbursing Agent for the Fund of which the Fund has notified FDI in
writing.
1.2 FDI agrees to use its best efforts to solicit orders for the sale of
Shares in accordance with the terms and conditions of the registration
statement. It is contemplated that FDI may enter into sales or servicing
agreements with securities dealers, financial institutions and other industry
professionals, such as investment advisers, accountants and estate planning
firms, and in so doing FDI will act only on its own behalf as principal.
1.3 FDI shall act as distributor of Shares in compliance with all
applicable laws, rules and regulations, including, without limitations, the
Investment Company Act of 1940, as amended (the "1940 Act"), the 1933 Act, 1934
Act and the Rules of the NASD, and the Funds'
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Declaration of Trust and By-Laws. FDI represents and warrants that it is and
shall continue to be during the term of this Agreement, a broker-dealer
registered with the SEC and that it is registered with the relevant securities
regulatory agencies in all fifty states, the District of Columbia and Puerto
Rico. FDI also represents and warrants that it is a member of the NASD.
1.4 FDI shall file Fund advertisements, sales literature and other
marketing and sales related materials with the appropriate regulatory agencies
to the extent such materials are submitted to FDI for such filing and shall
obtain such approvals for their use as may be required by the SEC, the NASD
and/or state securities administrators.
1.5 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind deemed by the parties hereto to render sales of a Fund's Shares not in the
best interest of the Fund, the parties hereto may decline to accept any orders
for, or make any sales of, any Shares until such time as those parties deem it
advisable to accept such orders and to make such sales and each party shall
advise promptly the other party of any such determination.
1.6 The Fund agrees to pay all costs and expenses in connection with the
registration of Shares under the 1933 Act and all expenses in connection with
maintaining facilities for the issue and transfer of Shares and for supplying
information, prices and other data to be furnished by the Fund hereunder, and
all expenses in connection with the preparation and printing of the Fund's
prospectuses and statements of additional information for regulatory purposes
and for distribution to shareholders; provided, however, that the Fund shall not
pay any of the costs of advertising or promotion for the sale of Shares, except
as authorized by a plan adopted pursuant to Rule 12b-1 under the 1940 Act. FDI
shall also be entitled to compensation for FDI's services as provided in any
Distribution Plan adopted as to any Series and class of the Fund's Shares
pursuant to Rule 12b-1.
1.7 The Fund agrees to execute any and all documents and to furnish any
and all information and otherwise to take all actions which may be reasonably
necessary in the discretion of the Fund's officers in connection with the
qualification of Shares for sale in such states as FDI may designate to the Fund
and the Fund may approve, and the Fund agrees to pay all expenses which may be
incurred in connection with such qualification provided however that the Fund
will not be required to qualify to do business as a foreign corporation in any
jurisdiction. FDI shall pay all expenses connected with its own qualification
as a dealer under state or Federal laws and, except as otherwise specifically
provided in this Agreement, all other expenses incurred by FDI in connection
with the sale of Shares as contemplated in this Agreement.
1.8 The Fund shall furnish FDI from time to time, for use in connection
with the sale of Shares, such information with respect to the Fund or any
relevant Series and the Shares as FDI may reasonably request, all of which shall
be signed by one or more of the Fund's duly authorized officers; and the Fund
warrants that the statements contained in any such information, when so signed
by the Fund's officers, shall be true and correct in all material respects. The
Fund also shall furnish FDI upon request with: (a) semi-annual reports and
annual audited reports of the Fund's books and accounts made by independent
public accountants regularly retained by the Fund, (b) quarterly earnings
statements prepared by the Fund, (c) a monthly
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itemized list of the securities in the Fund's or, if applicable, each Series'
portfolio, (d) monthly balance sheets as soon as practicable after the end of
each month, and (e) from time to time such additional information regarding the
Fund's financial condition as FDI may reasonably request.
1.9 The Fund represents to FDI that all registration statements and
prospectuses filed by the Fund with the SEC under the 1933 Act and under the
1940 Act with respect to the Shares have been prepared in conformity with the
requirements of said Acts and rules and regulations of the SEC thereunder. As
used in this Agreement the terms "registration statement" and "prospectus" shall
mean any registration statement and prospectus, including the statement of
additional information incorporated by reference therein, filed with the SEC and
any amendments and supplements thereto which at any time shall have been filed
with the SEC. The Fund represents and warrants to FDI that any registration
statement and prospectus, when such registration statement becomes effective,
will contain all statements required to be stated therein in conformity with
said Acts and the SEC's rules and regulations; that all statements of fact
contained in any such registration statement and prospectus will be true and
correct in all material respects when such registration statement becomes
effective; and that neither any registration statement nor any prospectus 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 in light of the
circumstances under which they were made, not misleading. The Fund 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 Fund's counsel, be necessary or advisable. If the Fund shall not propose
such amendment or amendments and/or supplement or supplements within fifteen
days after receipt by the Fund of a written request from FDI to do so and such
request relates to language regarding the distribution of Fund Shares or
information pertaining to FDI, FDI may, at its option, terminate this Agreement
in accordance with Section 3 of this Agreement or decline to make offers of the
Fund's securities until such amendments are made. The Fund shall not file any
amendment to any registration statement or supplement to any prospectus without
giving FDI reasonable notice thereof in advance; 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 any registration statement and/or supplements to any
prospectus, of whatever character, as the Fund may deem advisable, such right
being in all respects absolute and unconditional.
1.10 The Fund authorizes FDI and any dealers with whom FDI has entered
into dealer agreements to use any prospectus in the form furnished by the Fund
in connection with the sale of Shares. The Fund agrees to indemnify, defend and
hold FDI, its several officers and directors, and any person who controls FDI
within the meaning of Section 15 of the 1933 Act, free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
reasonable cost of investigating or defending such claims, demands or
liabilities and any reasonable counsel fees incurred in connection therewith)
which FDI, its officers and directors, or any such controlling persons, may
incur under the 1933 Act, the 1940 Act, or common law or otherwise, arising out
of or on the basis of any untrue statement, or alleged untrue statement, of a
material fact required to be stated in either any registration statement or any
prospectus or any statement of additional information, or arising out of or
based upon any omission, or alleged omission, to state a material fact required
to be stated in any registration statement, any prospectus or any statement of
additional information or necessary to make the statements in any
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of them in light of the circumstances under which they were made not misleading,
except that the Fund's agreement to indemnify FDI, its officers or directors,
and any such controlling person will not be deemed to cover any such claim,
demand, liability or expense to the extent that it arises out of or is based
upon any such untrue statement, alleged untrue statement, omission or alleged
omission made in any registration statement, any prospectus or any statement of
additional information in reliance upon information furnished by FDI, its
officers, directors or any such controlling person to the Fund or its
representatives for use in the preparation thereof, provided in each case any
information so provided has not been changed in any way, and except that the
Fund's agreement to indemnify FDI and the Fund's representations and warranties
set out in paragraph 1.9 of this Agreement will not be deemed to cover any
liability to the Funds or their shareholders to which FDI would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations and duties under this Agreement ("Disqualifying Conduct"). The
Fund's agreement to indemnify FDI, its officers and directors, and any such
controlling person, as aforesaid, is expressly conditioned upon the Fund's being
notified of any action brought against FDI, its officers or directors, or any
such controlling person, such notification to be given by letter, by facsimile
or by telegram addressed to the Fund at its address set forth below within a
reasonable period of time after the summons or other first legal process shall
have been served. The failure so to notify the Fund of any such action shall
not relieve the Fund from any liability which the Fund may have to the person
against whom such action is brought by reason of any such untrue, or alleged
untrue, statement or omission, or alleged omission, (i) except to the extent the
Fund's ability to defend such action has been materially adversely affected by
such failure, or (ii) otherwise than on account of the Fund's indemnity
agreement contained in this paragraph 1.10. The Fund will be entitled to assume
the defense of any suit brought to enforce any such claim, demand or liability,
but, in such case, such defense shall be conducted by counsel of good standing
chosen by the Fund and approved by FDI. In the event the Fund elects to assume
the defense of any such suit and retain counsel of good standing approved by
FDI, the defendant or defendants in such suit shall bear the fees and expenses
of any additional counsel retained by any of them; but in case the Fund does not
elect to assume the defense of any such suit, the Fund will reimburse FDI, its
officers and directors, or the controlling person or persons named as defendant
or defendants in such suit, for the reasonable fees and expenses of any counsel
retained by FDI or them, subject to the right of the Fund to assume the defense
of such suit with counsel of good standing at any time prior to settlement or
final determination thereof. The Fund's indemnification agreement contained in
this paragraph 1.10 and the Fund's 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 FDI, its officers and directors, or any
controlling person, and shall survive the delivery of any Shares. This
agreement of indemnity will inure exclusively to FDI's benefit, to the benefit
of FDI's several officers and directors, and their respective estates, and to
the benefit of any controlling persons and their successors. The Fund agrees
promptly to notify FDI of the commencement of any litigation or proceedings
against the Fund or any of its officers or Board members in connection with the
issue and sale of Shares.
1.11 FDI agrees to indemnify, defend and hold the Fund, its several
officers and Board members, and any person who controls the Fund within the
meaning of Section 15 of the 1933 Act free and harmless from and against any and
all claims, demands, liabilities and expenses (including the reasonable cost of
investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) which the Fund, its
officers or
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Board members, or any such controlling person, may incur under the 1933 Act, the
1940 Act, or under common law or otherwise, but only to the extent that such
liability or expense incurred by the Fund, its officers or Board members, or
such controlling person resulting from such claims or demands, (a) shall arise
out of or be based upon any unauthorized sales literature, advertisements,
information, statements or representations or any Disqualifying Conduct in
connection with the offering and sale of any Shares, or (b) shall arise out of
or be based upon any untrue, or alleged untrue, statement of a material fact
contained in information furnished in writing by FDI to the Fund specifically
for use in the Fund's registration statement and used in the answers to any of
the items of the registration statement or in the corresponding statements made
in the prospectus or statement of additional information, or shall arise out of
or be based upon any omission, or alleged omission, to state a material fact in
connection with such information furnished in writing by FDI to the Fund and
required to be stated in such answers or necessary to make such information, in
light of the circumstances under which it was made not misleading, provided in
each case any information so provided has not been changed in any way. FDI's
agreement to indemnify the Fund, its officers and Board members, and any such
controlling person, as aforesaid, is expressly conditioned upon FDI being
notified of any action brought against the Fund, its officers or Board members,
or any such controlling person, such notification to be given by letter, by
facsimile or by telegram addressed to FDI at its address set forth below within
a reasonable period of time after the summons or other first legal process shall
have been served. FDI shall have the right to control the defense of such
action, with counsel of its own choosing, satisfactory to the Fund, if such
action is based solely upon such alleged misstatement or omission on FDI's part,
and in any other event the Fund, its officers or Board members, or such
controlling person shall each have the right to participate in the defense or
preparation of the defense of any such action. The failure so to notify FDI of
any such action shall not relieve FDI from any liability which FDI may have to
the Fund, its officers or Board members, or to such controlling person by reason
of any such untrue, or alleged untrue, statement or omission, or alleged
omission (i) except to the extent FDI's ability to defend such action has been
materially adversely affected by such failure, or (ii) otherwise than on account
of FDI's indemnity agreement contained in this paragraph 1.11. This agreement
of indemnity will inure exclusively to the Fund's benefit, to the benefit of the
Fund's officers and Board members, and their respective estates, and to the
benefit of any controlling persons and their successors. FDI agrees promptly to
notify the Fund of the commencement of any litigation or proceedings against FDI
or any of its officers or directors in connection with the issue and sale of
Shares.
1.12 No Shares shall be offered by either FDI or the Fund under any of
the provisions of this Agreement and no orders for the purchase or sale of such
Shares hereunder shall be accepted by the Fund if and so long as the
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 10 of said
Act, as amended, is not on file with the SEC; provided, however, that nothing
contained in this paragraph 1.12 shall in any way restrict or have an
application to or bearing upon the Fund's obligation to repurchase any Shares
from any shareholder in accordance with the provisions of the Fund's prospectus
or charter documents.
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1.13 The Fund agrees to advise FDI immediately in writing:
(a) of any request by the SEC for amendments to the registration statement
or prospectus then in effect or for additional information;
(b) in the event of the issuance by the SEC of any stop order suspending
the effectiveness of the registration statement or prospectus then in effect or
the initiation of any proceeding for that purpose;
(c) of the happening of any event which makes untrue any statement of a
material fact made in the registration statement or prospectus then in effect or
which requires the making of a change in such registration statement or
prospectus in order to make the statements therein not misleading in any
material respect; and
(d) of all actions of the SEC with respect to any amendments to any
registration statement or prospectus which may from time to time be filed with
the SEC.
2. OFFERING PRICE
Shares of any class of the Fund offered for sale by FDI shall be offered at
a price per share (the "Offering Price") equal to (a) the net asset value
(determined in the manner set forth in the Fund's registration statement) plus
(b) a sales charge, if any and except to those persons set forth in the then-
current prospectus, which shall be the percentage of the Offering Price of such
Shares as set forth in the Fund's then-current prospectus. The Offering Price,
if not an exact multiple of one cent, shall be adjusted to the nearest cent. In
addition, if applicable, Shares of any class of the Fund offered for sale by FDI
may be subject to a contingent deferred sales charge as set forth in the Fund's
then-current prospectus. FDI shall be entitled to receive any sales charge or
contingent deferred sales charge in respect of the Shares. Any payments to
dealers shall be governed by a separate agreement between FDI and such dealer
and the Fund's then-current prospectus.
3. TERM
This Agreement shall become effective with respect to the Fund as of the
date hereof and will continue for an initial two-year term and will continue
thereafter so long as such continuance is specifically approved at least
annually (i) by the Fund's Board or (ii) by a vote of a majority of the Shares
of the Fund or the relevant Series, as the case may be, provided that in either
event its continuance also is approved by a majority of the Board members who
are not "interested persons" 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 with respect to a Fund, without penalty, on not less
than sixty days' notice, by the Fund's Board of Trustees, by vote of a majority
of the outstanding voting securities of such Fund, or by FDI. 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). FDI agrees to notify the Fund immediately
upon the event of its expulsion or suspension by the NASD. This
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Agreement will automatically and immediately terminate in the event of FDI's
expulsion or suspension by the NASD.
4. LIMITATION OF LIABILITY.
The Trust and the Adviser agree that the obligations of CDC MPT+ Funds (the
"Trust") under this Agreement will not be binding upon any of the Trustees,
shareholders, nominees, officers, employees or agents, whether past, present or
future, of the Trust, individually, but are binding only upon the assets and
property of the relevant Fund, as provided in the Trust Instrument. The
execution and delivery of this Agreement have been authorized by the Trustees of
the Trust, and signed by an authorized officer of the Trust, acting as such, and
neither the authorization by the Trustees nor the execution and delivery by the
officer will be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but will bind only the trust
property of the Trust as provided in the Trust Instrument. No Series of the
Trust, including the Funds, will be liable for any claims against any other
Series.
5. MISCELLANEOUS
5.1 The Fund recognizes that, except to the extent otherwise agreed to
by the parties hereto, FDI's directors, officers and employees may from time to
time serve as directors, trustees, officers and employees of corporations and
business trusts (including other investment companies), and that FDI or FDI's
affiliates may enter into distribution or other agreements with other
corporations and trusts.
5.2 No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
5.3 This Agreement and the Schedules forming a part hereof may be
amended at any time by a writing signed by each of the parties hereto. In the
event that the Board members of any additional funds indicate by vote that such
funds are to be made parties to this Agreement, whether such funds were in
existence at the time of the effective date of this Agreement or subsequently
formed, Schedule A hereto shall be amended to reflect the addition of such new
funds and such new funds shall thereafter become parties hereto. In the event
that any of the Funds listed on Schedule A terminates its registration as a
management investment company, or otherwise ceases operations, Schedule A shall
be amended to reflect the deletion of such Fund and its various classes.
5.4 This Agreement shall be governed by the internal laws of The
Commonwealth of Massachusetts without giving effect to principles of conflicts
of laws.
5.5 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. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
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5.6 Any notice provided hereunder shall be sufficiently given when sent
by registered or certified mail to the Fund at the following address: c/o CDC
Investment Management Corporation, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: _________________, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq. and
to FDI at the following address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: President, with a copy to General Counsel, or at such other address
as the parties may from time to time specify in writing to the other party.
IN WITNESS WHEREOF, the parties have executed this Agreement by a duly
authorized representative of the parties hereto.
CDC MPT+ FUNDS
By:
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Name:
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Title:
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FUNDS DISTRIBUTOR, INC.
By:
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Name:
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Title:
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SCHEDULE A
CDC MPT+ FUNDS
U.S. Core Equity Fund
Aggressive Equity Fund
Global Independence Fund
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