1933 Act File No. 33-89754
1940 Act File No. 811-8992
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 X
Pre-Effective Amendment No. ....................
Post-Effective Amendment No. 8 ....................... X
and/or
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 X
Amendment No. 9 .................................... X
FUNDMANAGER PORTFOLIOS
(formerly, FUNDMANAGER TRUST)
(Exact Name of Registrant as Specified in Charter)
Federated Investors Tower, Pittsburgh, Pennsylvania 15222-3779
(Address of Principal Executive Offices)
(412) 288-1900
(Registrant's Telephone Number)
Victor R. Siclari, Esquire
Federated Investors Tower
Pittsburgh, Pennsylvania 15222-3779
(Name and Address of Agent for Service)
It is proposed that this filing will become effective
(check appropriate box)
__ immediately upon filing pursuant to paragraph (b)
X on December 30, 1997 pursuant to paragraph (b)
60 days after filing pursuant to paragraph (a) (i) on ____________ pursuant
to paragraph (a) (i) 75 days after filing pursuant to paragraph (a)(ii) on
_________________ pursuant to paragraph (a)(ii) of Rule 485
If appropriate, check the following box:
[X] this post-effective amendment designates a new effective date for a
previously filed post-effective amendment.
<PAGE>
Copies to:
John J. Danello Edward T. O'Dell, P.C
Freedom Capital Management Corporation Goodwin, Procter & Hoar
One Beacon Street One Exchange Place
Boston, Massachusetts 02108 Boston, Massachusetts 02109
<PAGE>
CROSS-REFERENCE SHEET
This Amendment to the Registration Statement of FUNDMANAGER PORTFOLIOS
(formerly, FundManager Trust)),which is comprised of six Portfolios: (1)
Aggressive Growth Portfolio, consisting of two classes of shares (a) Financial
Adviser Class and (b) No-Load Class; (2) Growth Portfolio, consisting of two
classes of shares (a) Financial Adviser Class and (b) No-Load Class; (3) Growth
with Income Portfolio, consisting of two classes of shares (a) Financial Adviser
Class and (b) No-Load Class; (4) Bond Portfolio, consisting of two classes of
shares (a) Financial Adviser Class and (b) No-Load Class; (5) Managed Total
Return Portfolio, consisting of one class of shares (a) Financial Adviser Class,
and (6) International Portfolio, consisting of two classes of shares (a)
Financial Adviser Class and (b) No-Load Class relates to all portfolios except
International Portfolio and is comprised of the following (The remaining
references to other portfolios have been kept for easier cross reference.):
PART A. INFORMATION REQUIRED IN A PROSPECTUS.
Prospectus Heading
(Rule 404(c) Cross Reference)
Item 1. Cover Page....................(1-6) Cover Page.
Item 2. Synopsis (1-6) Summary of Fund Expenses.
Item 3. Condensed Financial
Information (1-5) Financial Highlights;
(1-6) Performance Information.
Item 4. General Description of
Registrant. (1-6) FundManager Portfolios; (1-5)
Investment Objectives; (6) Investment
Objective; (1-6) Investments of and
Investment Techniques Employed By
Mutual Funds in which the Portfolio
May Invest; (1-6) Investment Policies
and Restrictions; (1-5) Risks and
Other Considerations; (6) Additional
Risks and Other Considerations; (1-6)
Capitalization.
Item 5. Management of the Fund (1-6)
Management of FundManager Portfolios;
(1-6) The Adviser; (1-6) The
Administrator; (1-6) The
Distributors;(1-5) Custodian and
Transfer Agent; (6) Custodian; (6)
Transfer Agent, Dividend Disbursing
Agent, and Shareholder Servicing
Agent; (1a-5a,6) Service
Organizations; (1-6) Other Expenses;
(1-6) Portfolio Transactions.
Item 6. Capital Stock and Other
Securities (1-6) Dividends, Distributions and
Taxes; (1-6) Voting; (1-6)
Shareholder Inquiries.
Item 7. Purchase of Securities Being
Offered (1-6) The Distributors;(1-6)
Determination of Net Asset Value;(1-6)
Purchase of Shares; (1a-5a, 6)
Retirement Plans; (1a-5a,6) Individual
Retirement Accounts; (1a-5a,6) Defined
Contribution Plan; (1a-5a,6) Exchange
Privilege; (1b-4b,6) FundManager
Advisory Program.
Item 8. Redemption or Repurchase (1-6)
Redemption of Shares; (1a-5a,6)
Redemption of Shares Purchased Through
a Distributor or Authorized Securities
Dealer; (1b-5b) Redemption of Shares
Purchased Through a Distributor; (1-5)
Direct Redemption; (6) Financial
Adviser Class; (1a-5a,6) Redemption By
Wire or Telephone; (1a-5a,6)
Systematic Withdrawal Plan; (6) Limits
on Redemptions.
Item 9. Legal Proceedings None.
<PAGE>
PART B. INFORMATION REQUIRED IN A STATEMENT OF ADDITIONAL INFORMATION.
Item 10. Cover Page....................(1-6) Cover Page.
Item 11. Table of Contents.............(1-6) Table of Contents.
Item 12. General Information and
History (1-6) Other Information.
Item 13. Investment Objectives and
Policies.....................(1-6) Investment Policies;
(1-6) Investment Restrictions.
Item 14. Management of the Fund (1-6) Management; (1-6) Trustees
Compensation.
Item 15. Control Persons and Principal
Holders of Securities........(1-6) Management; (1-6) Other
Information.
Item 16. Investment Advisory and Other
Services.....................(1-6) Management; (1-6) Investment
Adviser
Item 17. Brokerage Allocation..........(1-6) Portfolio Transactions.
Item 18. Capital Stock and Other
Securities (1-6) Other Information.
Item 19. Purchase, Redemption and
Pricing of Securities Being
Offered......................(1-6) See Part A Prospectus - Purchase
of Shares; (1-6) See Part A Prospectus
- Redemption of Shares; (1-6) See Part
A Prospectus - Determination of Net
Asset Value.
Item 20. Tax Status....................(1-5) See Part A Prospectus -
Dividends, Distributions and Taxes;
(6) The Portfolio's Tax Status.
Item 21. Underwriters (1-6) Management; (1-6) Administrator;
(1-6) Distributors; (6) Service
Organizations.
Item 22. Calculation of Performance
Data.........................(1-6) Other Information;
(1-6) Performance Information.
Item 23. Financial Statements..........To be filed by amendment.
Incorporate by reference pursuant to Rule 411 under the Securities Act of 1933,
Parts A and B of Post-Effective Amendment No. 6, filed September 30, 1997, in
their entirety.
PART C OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements: To be filed by amendment.
(b) Exhibits:
(l) (i) Conformed copy of the Master Trust Agreement of the
Registrant; (4)
(ii) Conformed copy of the Amendment No. 1 to Master Trust
Agreement; (4)
(iii) Conformed copy of the Amendment No. 2 to Master Trust
Agreement; (11)
(iv) Conformed copy of the Amendment No. 3 to Master Trust
Agreement; (11)
(2) Copy of By-Laws of the Registrant; (4)
(3) Not Applicable
(4) Not Applicable
(5) Conformed copy of the new Master Investment Advisory Contract and
Investment Advisory Contract Supplement for Aggressive Growth
Portfolio, Growth Portfolio, Growth with Income Portfolio, Bond
Portfolio, Managed Total Return Portfolio; (11)
(6) (i) Conformed copy of the Distributors Contract between Edgewood
Services Company and FundManager Portfolios; (11)
(ii) Conformed copy of the Master Distributors Contract between
Tucker Anthony Incorporated and FundManager Portfolios; (11)
(iii) Conformed copy of the Master Distributors Contract between
Sutro & Co. Incorporated and FundManager Portfolios; (11)
(iv) Conformed copy of the Master Distributors Contract between
Freedom Distributors Corporation and FundManager Portfolios;
(11)
(v) Form of Mutual Funds Sales and Service Agreement; +
(7) Not Applicable
-----------------------------------
+ All exhibits have been filed electronically.
(4) Incorporated by reference to Post-Effective Amendment No.2 to the
Registrant's Registration Statement as filed with the Commission
on January 30, 1996. (File Nos. 33-89754 and 811-8992)
(11) Incorporated by reference to Post-Effective Amendment No.4 to the
Registrant's Registration Statement as filed with the Commission
on January 23, 1997. (File Nos. 33-89754 and 811-8992)
<PAGE>
(8) Conformed copy of Custodian Agreement between FundManager
Portfolios and Investors Bank & Trust Company; (11)
(i) Domestic Custody and Accounting Fee Schedule; (12)
(ii) Conformed copy of Custodian Contract between
FundManager Portfolios and State Street Bank and
Trust Company; +
(9) (i) Conformed copy of the Administrative Services Agreement between
FundManager Portfolios and Federated Administrative Services; (11)
(ii) Conformed copy of the Transfer Agency and Service Agreement
between FundManager Portfolios and Investors Bank & Trust Company; (11)
(iii) Conformed copy of Agreement for Transfer Agency
Services between FundManager Portfolios and Federated
Shareholder Services Company; +
(10) Opinion and Consent of counsel; (2)
(11) Not Applicable
(12) Not Applicable
(13) Not Applicable
(14) Not Applicable
(15) (i) Amended and Restated Master Distribution Plan and
Supplements for the Financial Adviser Class of shares; (3)
(ii) Amended and Restated Master Distribution Plan and
Supplements for the Financial Adviser Class of
shares; +
-----------------------------------
+ All exhibits have been filed electronically.
(2) Incorporated by reference to Pre-Effective Amendment No. 1 to
the Registrant's Registration Statement as filed with the Commission
on May 3, 1995. (File Nos. 33-89754 and 811-8992)
(3) Incorporated by reference to Post-Effective Amendment No.1 to the
Registrant's Registration Statement as filed with the Commission
on July 28, 1995. (File Nos. 33-89754 and 811-8992)
(11) Incorporated by reference to Post-Effective Amendment No.4 to the
Registrant's Registration Statement as filed with the Commission
on January 23, 1997. (File Nos. 33-89754 and 811-8992)
(12) Incorporated by reference to Post-Effective Amendment No. 7 to the
Registrant's Registration Statement as filed with the Commission
on October 21, 1997. (File Nos. 33-89754 and 811-8992)
<PAGE>
(16) Copy of Performance Data Calculations: Aggressive Growth
Portfolio, Growth Portfolio, Growth with Income Portfolio,
Bond Portfolio, Managed Total Return Portfolio; (2)
(17) Not Applicable
(18) (i) Multiple Class Expense Allocation Plan; (3)
(ii) Amended Multiple Class Expense Allocation Plan; +
(19) Conformed copy of Powers of Attorney of Trustees and
Officers of Registrant; (11)
ITEM 25. Persons Controlled by or Under Common Control with Registrant:
Not Applicable
ITEM 26. Number of Holders of Securities.
Title of Class Number of Record Holders
as of October 28, 1997
Aggressive Growth Portfolio
Financial Adviser Class 1,563
No-Load Class 143
Growth Portfolio
Financial Adviser Class 750
No-Load Class 129
Growth with Income Portfolio
Financial Adviser Class 870
No-Load Class 132
Bond Portfolio
Financial Adviser Class 231
No-Load Class 110
Managed Total Return Portfolio
Financial Adviser Class 605
International Portfolio
Financial Adviser Class 0
No-Load Class 0
ITEM 27. Indemnification; (4)
- -----------------------------------
+ All exhibits have been filed electronically.
(2) Incorporated by reference to Pre-Effective Amendment No. 1 to
the Registrant's Registration Statement as filed with the Commission
on May 3, 1995. (File Nos. 33-89754 and 811-8992)
(3) Incorporated by reference to Post-Effective Amendment No.1 to the
Registrant's Registration Statement as filed with the Commission on July 28,
1995. (File Nos. 33-89754 and 811-8992)
(4) Incorporated by reference to Post-Effective Amendment No.2 to the
Registrant's Registration Statement as filed with the Commission on January 30,
1996. (File Nos. 33-89754 and 811-8992) (11) Incorporated by reference to
Post-Effective Amendment No.4 to the Registrant's Registration Statement as
filed with the Commission on January 23, 1997. (File Nos. 33-89754 and 811-8992)
<PAGE>
ITEM 28. Business and Other Connections of Investment Adviser:
For a description of the other business of the investment adviser, see the
section entitled "Management of FundManager Portfolios-The Adviser" in
Part A.
The names and principal occupations of each director and executive officer of
Freedom Capital Management Corporation are set forth below:
NAME BUSINESS AND OTHER CONNECTIONS
John H. Goldsmith President and Chief Executive Officer of
Freedom Securities Corporation; Chairman and Chief
Executive Officer of Tucker Anthony Incorporated;
Managing Director of Freedom Capital
Dexter A. Dodge Chairman and Director of Freedom Capital;
Vice President of Freedom Distributors Corporation
Lawrence G. Kirshbaum Chief Financial Officer of Freedom
Securities Corporation; Director of Tucker Anthony
Holding Corp., Sutro Group and John
Hancock Clearing Corporation; Managing Director of
Freedom Capital; Registered Principal of
Tucker Anthony Incorporated; Former Chief
Executive Officer of Kirshbaum & Co. and of
Prescott, Ball & Turben
John J. Danello Chief Operating Officer, Managing Director, Clerk
and General Counsel of Freedom Capital; President
and Director of Freedom Distributors Corporation
Richard V. Howe Managing Director of Freedom Capital
Arthur E. McCarthy Managing Director of Tucker Anthony Incorporated
Michael M. Spencer Senior Vice President and Director of
Fixed-Income
Investments of Freedom Capital; Portfolio Manager
at Shawmut Investment Advisers
Terrence J. Gerlich Managing Director of Freedom Capital
Charles B. Lipson President of the M.D. Hirsch Division of the
Adviser since February 1995; President and Chief
Operating Officer of the M.D. Hirsch Division of
Republic Asset Management Corporation from February
1991 to December 1994
Michael D. Hirsch Chairman, M.D. Hirsch Division of the Adviser since
February 1995; Vice President and Executive Vice
Chairman and Managing Director, Portfolio Manager
of M.D. Hirsch Division of Republic Asset Management
Corporation from June 1993 to February 1994
<PAGE>
ITEM 29. Principal Underwriters
(a) Edgewood Services, Inc. the Distributor for shares of the
Registrant, acts as principal underwriter for the following
open-end investment companies, including the Registrant: BT
Advisor Funds, BT Pyramid Mutual Funds, BT Investment Funds, BT
Institutional Funds, Excelsior Institutional Trust (formerly,
UST Master Funds, Inc.), Excelsior Tax-Exempt Funds, Inc.
(formerly, UST Master Tax-Exempt Funds, Inc.), Excelsior
Institutional Trust, FTI Funds, FundManager Portfolios,
Marketvest Funds, Marketvest Funds, Inc.
and Old Westbury Funds, Inc.
(b)
(1) (2) (3)
Name and Principal Positions and Offices Positions and Offices
Business Address With Distributor With Registrant
Lawrence Caracciolo Director, President, --
Federated Investors Tower Edgewood Services, Inc.
Pittsburgh, PA 15222-3779
Arthur L. Cherry Director, --
Federated Investors Tower Edgewood Services, Inc.
Pittsburgh, PA 15222-3779
J. Christopher Donahue Director, --
Federated Investors Tower Edgewood Services, Inc.
Pittsburgh, PA 15222-3779
Thomas P. Sholes Vice President, --
Federated Investors Tower Edgewood Services, Inc.
Pittsburgh, PA 15222-3779
Ronald M. Petnuch Vice President, --
Federated Investors Tower Edgewood Services, Inc.
Pittsburgh, PA 15222-3779
Thomas P. Schmitt Vice President, --
Federated Investors Tower Edgewood Services, Inc.
Pittsburgh, PA 15222-3779
Ernest L. Linane Assistant Vice President, --
Federated Investors Tower Edgewood Services, Inc.
Pittsburgh, PA 15222-3779
S. Elliott Cohan Secretary, Assistant Secretary
Federated Investors Tower Edgewood Services, Inc.
Pittsburgh, PA 15222-3779
Thomas J. Ward Assistant Secretary, --
Federated Investors Tower Edgewood Services, Inc.
Pittsburgh, PA 15222-3779
Kenneth W. Pegher, Jr. Treasurer, --
Federated Investors Tower Edgewood Services, Inc.
<PAGE>
(ai) Freedom Distributors Corp., a Distributor for shares of the
Registrant, also acts as principal underwriter for the following open-end
investment companies: Freedom Mutual Fund and Freedom Group of Tax Exempt Funds.
(bi)
(1) (2) (3)
Name and Principal Positions and Offices Positions and Offices
Business Address With Distributor With Registrant
John J. Danello President and Director Executive Vice
One Beacon Street of Freedom Distributors President of the
Boston, MA 02108 Corp. Registrant.
Michael G. Ferry Treasurer of Freedom --
One Beacon Street Distributors Corp.
Boston, MA 02108
Dexter A. Dodge Director of Freedom Trustee, Chairman
One Beacon Street Distributors Corp. and Chief
Boston, MA 02108 Executive Officer
of the Registrant.
Maureen M. Renzi Vice President and Clerk Assistant
One Beacon Street of Freedom Distributors Secretary of the
Boston, MA 02108 Corp. Registrant.
(aii) Tucker Anthony Incorporated, a Distributor for shares of the Registrant,
also acts as principal underwriter for the following open-end investment
companies: Freedom Mutual Fund and Freedom Group of Tax Exempt Funds.
(bii)
(1) (2) (3)
Name and Principal Positions and Offices Positions and Offices
Business Address With Distributor With Registrant
John H. Goldsmith Chairman, Chief Executive --
One World Financial Center Officer and Director of
New York, NY 10281 Tucker Anthony Incorporated.
Robert H. Yevich President and Director of --
One World Financial Center Tucker Anthony Incorporated.
New York, NY 10281
Thomas A. Pasquale Executive Vice President --
One World Financial Center and Director of Tucker
New York, NY 10281 Anthony Incorporated.
Marc Menchel Executive Vice President, --
One World Financial Center Secretary and Clerk of
New York, NY 10281 Tucker Anthony Incorporated.
Thomas E Gilligan Treasurer and Chief Executive, --
One World Financial Center Officer of Tucker Anthony
New York, NY 10281 Incorporated.
<PAGE>
(aiii) Sutro & Co. Incorporated, a Distributor for shares of the
Registrant, also acts as principal underwriter for the following open-end
investment companies: Freedom Mutual Fund and Freedom Group of Tax Exempt Funds.
(biii)
(1) (2) (3)
Name and Principal Positions and Offices Positions and Offices
Business Address With Distributor With Registrant
John F. Luikart President and Chief Executive --
201 California Street Officer of Sutro & Co.
San Francisco, CA 94111 Incorporated.
Mary Jane Delaney Executive Vice President --
201 California Street and General Counsel of
San Francisco, CA 94111 Sutro & Co. Incorporated.
John H. Goldsmith Director of Sutro & Co. --
One World Financial Center Incorporated.
New York, NY 10281
Fergus J. Henehan Executive Vice President of --
201 California Street Sutro & Co. Incorporated.
San Francisco, CA 94111
John W. Eisle Executive Vice President of --
201 California Street Sutro & Co. Incorporated.
San Francisco, CA 94111
Thomas R. Weinberger Executive Vice President of --
201 California Street Sutro & Co. Incorporated.
San Francisco, CA 94111
(c) Not Applicable.
ITEM 30. Location of Accounts and Records:
All accounts and records required to be maintained by Section 31(a) of the
Investment Company Act of 1940 and the Rules 31a-1 through 31a-3 promulgated
thereunder will be maintained at one of the following locations:
Registrant Federated Investors Tower
Pittsburgh, Pennsylvania 15222-3779
Freedom Capital Management Corporation One Beacon Street
("Adviser") Boston Massachusetts 02108.
Federated Administrative Services Federated Investors Tower
("Administrator") Pittsburgh, Pennsylvania 15222-3779
Federated Shareholder Services Company P.O. Box 8600
("Transfer Agent and Dividend Boston, Massachusetts 02266-8600
Disbursing Agent and Shareholder
Servicing Agent")
State Street Bank and Trust Company P.O. Box 8600
("Custodian and Portfolio Boston, Massachusetts 02266-8600
Accountant")
<PAGE>
ITEM 31. Management Services:
Not applicable.
ITEM 32. Undertakings
Registrant hereby undertakes to comply with Section 16(c) of the 1940 Act
as though such provisions of the Act were applicable to the Registrant except
that the request referred to in the third full paragraph thereof may only be
made by shareholders who hold in the aggregate at least 10% of the outstanding
shares of the Registrant, regardless of the net asset value or values of shares
held by such requesting shareholders.
Registrant hereby undertakes to furnish to each person to whom a
prospectus is delivered a copy of the Registrant's latest annual report to
shareholders upon request and without charge.
Registrant hereby undertakes to file a post-effective amendment using
financial statements, which need not be certified, within four to six months
from the effective date of Registrant's Post- Effective Amendment No. 5.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
and the Investment Company Act of 1940, the Registrant, FUNDMANAGER PORTFOLIOS
(formerly, FundManager Trust), certifies that it meets all of the requirements
for effectiveness of this Amendment to its Registration Statement pursuant to
Rule 485(b) under the Securities Act of 1933 and has duly caused this Amendment
to its Registration Statement to be signed on its behalf by the undersigned,
thereto duly authorized, in the City of Pittsburgh and the Commonwealth of
Pennsylvania on the 26th day of November, 1997.
FUNDMANAGER PORTFOLIOS
(formerly, FUNDMANAGER TRUST)
By: /s/ Victor R. Siclari
Victor R. Siclari, Secretary
November 26, 1997
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to its Registration Statement has been signed below by the following person in
the capacity and on the date indicated:
NAME TITLE DATE
By: /s/ Victor R. Siclari Attorney in Fact November 26, 1997
Victor R. Siclari For the Persons
SECRETARY Listed Below
/s/Dexter A. Dodge* Chairman and Trustee
Dexter A. Dodge (Chief Executive Officer)
/s/Charles B. Lipson* President
Charles B. Lipson (Principal Executive Officer)
/s/Judith J. Mackin* Treasurer
Judith J. Mackin (Principal Financial and
Accounting Officer)
/s/Ernest T. Kendall* Trustee
Ernst T. Kendall
/s/Richard B. Osterberg* Trustee
Richard B. Osterberg
/s/John R. Haack* Trustee
John R. Haack
* By Power of Attorney
Exhibit 6(v) under Form N-1A
Exhibit 1 under Item 601/Reg. S-K
MUTUAL FUNDS
SALES AND SERVICE
AGREEMENT
This Agreement is entered into between the financial institution executing
this Agreement ("Financial Institution") and Freedom Distributors Corporation
("Freedom") with respect to those investment companies listed in Exhibit A
hereto (referred to individually as the "Fund" and collectively as the "Funds")
for whose shares of beneficial interest or capital stock ("Shares") Freedom
serves as co-distributor and/or coordinates shareholder services.
A. FINANCIAL INSTITUTION.
1. Status of Financial Institution as "Bank" or Registered Broker-Dealer.
Financial Institution represents and warrants to Freedom:
(a)(i) that it is a broker or dealer as defined in Section 3(a)(4) or 3(a)(5) of
the Securities Exchange Act of 1934 ("Exchange Act"); that it is registered with
the Securities and Exchange Commission pursuant to Section 15 of the Exchange
Act; that it is a member of the National Association of Securities Dealers,
Inc.; that its customers' accounts are insured by the Securities Investors
Protection Corporation ("SIPC"); and that, during the term of this Agreement, it
will abide by all of the rules and regulations of the NASD including, without
limitation, the NASD Rules of Fair Practice. Financial Institution agrees to
notify Freedom immediately in the event of (1) the termination of its coverage
by the SIPC; (2) its expulsion or suspension from the NASD, or (3) its being
found to have violated any applicable federal or state law, rule or regulation
arising out of its activities as a broker-dealer or in connection with this
Agreement, or which may otherwise affect in any material way its ability to act
in accordance with the terms of this Agreement. Financial Institution's
expulsion from the NASD will automatically terminate this Agreement immediately
without notice. Suspension of Financial Institution from the NASD for violation
of any applicable federal or state law, rule or regulation will terminate this
Agreement effective immediately upon Freedom's written notice of termination to
Financial Institution; or
(a)(ii) that it is a "bank," as that term is defined in Section 3(a)(6) of the
Exchange Act and that, during the term of this Agreement, it will abide by the
rules and regulations of those state and federal banking authorities with
appropriate jurisdiction over the Financial Institution, especially those
regulations dealing with the activities of the Institution as described under
this Agreement. Financial Institution agrees to notify Freedom immediately of
any action by or communication from state or federal banking authorities, state
securities authorities, the Securities and Exchange Commission, or any other
party which may affect its status as a bank, or which may otherwise affect in
any material way its ability to act in accordance with the terms of this
Agreement. Any action or decision of any of the foregoing regulatory authorities
or any court of appropriate jurisdiction which affects Financial Institution's
ability to act in accordance with the terms of this agreement, including the
loss of its exemption from registration as a broker or dealer, will terminate
this Agreement effective upon Freedom's written notice of termination to
Financial Institution; and
(b) that Financial Institution is registered with the appropriate securities
authorities in all states in which its activities make such registration
necessary.
2. Financial Institution Acts as Agent for its Customers.
The parties agree that in each transaction in the Shares of any Fund and
with regard to any services rendered pursuant to this Agreement: (a) Financial
Institution is acting as agent for the customer; (b) each transaction is
initiated solely upon the order of the customer; (c) as between Financial
Institution and its customer, the customer will have full beneficial ownership
of all Shares of the Funds; (d) each transaction shall be for the account of the
customer and not for Financial Institution's account; and (e) each transaction
shall be without recourse to Financial Institution provided that Financial
Institution acts in accordance with the terms of this Agreement. Financial
Institution shall not have any authority in any transaction to act as Freedom's
agent or as agent for the Funds.
B. SALES OF FUND SHARES.
3. Execution of Orders for Purchase and Redemption of Shares.
(a) All orders for the purchase of any Shares shall be executed at the
then-current public offering price per share (i.e., the net asset value per
share plus the applicable initial sales load, if any) and all orders for the
redemption of any Shares shall be executed at the net asset value per share, in
each case as described in the prospectus of the Fund. Any applicable redemption
fee or deferred sales charge will be deducted by the Fund prior to the
transmission of the redemption proceeds to Financial Institution or its
customer. Freedom and the Funds reserve the right to reject any purchase request
in their sole discretion. If required by law, each transaction shall be
confirmed in writing on a fully disclosed basis and, if confirmed by Freedom, a
copy of each confirmation shall be sent simultaneously to Financial Institution
if Financial Institution so requests.
(b) The procedures relating to all orders will be subject to the terms of the
prospectus of each Fund and Freedom's written instructions to Financial
Institution from time to time.
(c) Payments for Shares shall be made as specified in the applicable Fund
prospectus. If payment for any purchase order is not received in accordance with
the terms of the applicable Fund prospectus, Freedom reserves the right, without
notice, to cancel the sale and to hold Financial Institution responsible for any
loss sustained as a result thereof.
4. Initial Sales Loads Payable to Financial Institution.
(a) On each order accepted by Freedom, in exchange for the performance of sales
and/or distribution services, Financial Institution will be entitled to receive
the applicable percentage of the initial sales load, if any, as established by
Freedom from the amount paid by Financial Institution's customer. The initial
sales loads for any Fund shall be those set forth in its prospectus. The portion
of the initial sales load payable to Financial Institution may be changed at any
time at Freedom's sole discretion upon written notice to Financial Institution.
(b) Transactions may be settled by Financial Institution: (1) by payment of the
full purchase price less an amount equal to Financial Institution's applicable
percentage of the initial sales load, or (2) by payment of the full purchase
price, in which case Financial Institution shall receive, not less frequently
than monthly, the aggregate fees due it on orders received and settled.
(c) It shall be the obligation of the Financial Institution either: (i) to
provide Freedom with all necessary information regarding the application of the
appropriate initial sales load to each transaction, or (ii) to assess the
appropriate initial sales load for each transaction and to forward the public
offering price, net of the amount of the initial sales load to be reallocated to
the Financial Institution, to the appropriate Fund. Neither the Fund nor Freedom
shall have any responsibility to correct the payment or assessment of an
incorrect initial sales load due to the failure of the Financial Institution to
fulfill the foregoing obligation.
C. DISTRIBUTION SERVICES.
5. Agreement to Provide Distribution Services.
(a) With regard to those Funds which pay asset-based sales charges (pursuant to
Distribution Plans adopted under Investment Company Act Rule 12b-1), as noted on
Exhibit A hereto (or, if more recently published, the Fund's current
prospectus), Freedom hereby appoints Financial Institution to render or cause to
be rendered distribution and sales services to the Funds and their shareholders.
(b) The services to be provided under this Paragraph (a) may include, but are
not limited to, the following:
(i) reviewing the activity in Fund accounts;
(ii) providing training and supervision of its personnel;
(iii) maintaining and distributing current copies of prospectuses and
shareholder reports;
(iv) advertising the availability of its services and products;
(v) providing assistance and review in designing materials to send to customers
and potential customers and developing methods of making such materials
accessible to customers and potential customers; and
(vi) responding to customers' and potential customers' questions about the
Funds.
6. Asset-Based Sales Loads Payable to Financial Institution.
During the term of this Agreement, Freedom will pay Financial Institution
asset-based sales charges (also known as "Rule 12b-1 Fees") for each Fund as set
forth in Exhibit A to this Agreement (or, if more recently published, the Fund's
current prospectus). For the payment period in which this Agreement becomes
effective or terminates, there shall be an appropriate proration of the fee on
the basis of the number of days that this Agreement is in effect during the
quarter.
D. SHAREHOLDER SERVICES.
7. Agreement to Provide Shareholder and Account Maintenance Services.
With regard to those Funds which pay a Shareholder Services Fee to
Financial Institutions, as noted on Exhibit A hereto (or, if more recently
published, the Fund's current prospectus), Financial Institution agrees to
render or cause to be rendered personal services to shareholders of the Funds
and/or the maintenance of accounts of shareholders of the Funds ("Shareholder
Services"). Financial Institution agrees to provide Shareholder Services which,
in its best judgment, are necessary or desirable for its customers who are
investors in the Funds. Financial Institution further agrees to provide Freedom,
upon request, a written description of the Shareholder Services which Financial
Institution is providing hereunder.
8. Shareholder Service Fees Payable to Financial Institution.
During the term of this Agreement, Freedom will pay Financial Institution
Shareholder Service Fees as set forth in Exhibit A to this Agreement (or, if
more recently published, the Fund's current prospectus). For the payment period
in which this Agreement becomes effective or terminates, there shall be an
appropriate proration of the fee on the basis of the number of days that this
Agreement is in effect during the quarter.
<PAGE>
E. SUPPLEMENTAL PAYMENTS.
9. Supplemental Payments to Financial Institution.
During the term of this Agreement, Freedom or their affiliates will make
Supplemental Payments to Financial Institution as set forth in Exhibit A to this
Agreement (or, if more recently published, the Fund's current prospectus) as
additional compensation for services described in Paragraphs 5 or 7, above; such
payments will be made from the assets of Freedom or its affiliates, and not from
assets of the Funds nor from fees payable under applicable Distribution (Rule
12b-1) Plans. For the payment period in which this Agreement becomes effective
or terminates, there shall be an appropriate proration of the payments on the
basis of the number of days that this Agreement is in effect during the quarter.
F. MISCELLANEOUS.
10. Delivery of Prospectuses to Customers.
Financial Institution will deliver or cause to be delivered to each
customer, at or prior to the time of any purchase of Shares, a copy of the
current prospectus of the Fund and, upon request by a customer or shareholder, a
copy of the Fund's current Statement of Additional Information. Financial
Institution shall not make any representations concerning any Shares other than
those contained in the prospectus or Statement of Additional Information of the
Fund or in any promotional materials or sales literature furnished to Financial
Institution by Freedom or the Fund.
11. ERISA Assets.
(a) Financial Institution understands that the Department of Labor views ERISA
as prohibiting fiduciaries of discretionary ERISA assets from receiving
administrative service fees or other compensation from funds in which the
fiduciary's discretionary ERISA assets are invested. To date, the Department of
Labor has not issued any exemptive order or advisory opinion that would exempt
fiduciaries from this interpretation. Without specific authorization from the
Department of Labor, fiduciaries should carefully avoid investing discretionary
assets in any fund pursuant to an arrangement where the fiduciary is to be
compensated by the fund for such investment. Receipt of such compensation could
violate ERISA provisions against fiduciary self-dealing and conflict of interest
and could subject the fiduciary to substantial penalties.
(b) Financial Institution will not perform or provide any duties which would
cause it to be a fiduciary under Section 4975 of the Internal Revenue Code, as
amended. For purposes of that Section, Financial Institution understands that
any person who exercises any discretionary authority or discretionary control
with respect to any individual retirement account or its assets, or who renders
investment advice for a fee, or has any authority or responsibility to do so, or
has any discretionary authority or discretionary responsibility in the
administration of such an account, is a fiduciary.
12. Indemnification.
(a) Financial Institution shall indemnify and hold harmless Freedom, each Fund,
the other co-distributors, and transfer agents of the Funds, and their
respective subsidiaries, affiliates, officers, directors, agents and employees
from all direct or indirect liabilities, losses or costs (including attorneys
fees) arising from, related to or otherwise connected with: (1) any breach by
Financial Institution of any provision of this Agreement; or (2) any actions or
omissions of Freedom, any Fund, the other co-distributors, and the transfer
agents of the Funds, and their subsidiaries, affiliates, officers, directors,
agents and employees in reliance upon any oral, written or computer or
electronically transmitted instructions believed to be genuine and to have been
given by or on behalf of Financial Institution.
(b) Freedom shall indemnify and hold harmless Financial Institution and its
subsidiaries, affiliates, officers, directors, agents and employees from and
against any and all direct or indirect liabilities, losses or costs (including
attorneys fees) arising from, related to or otherwise connected with: (1) any
breach by Freedom of any provision of this Agreement; or (2) any alleged untrue
statement of a material fact contained in any Fund's Registration Statement or
Prospectus, or as a result of or based upon any alleged omission to state a
material fact required to be stated therein or necessary to make the statements
contained therein not misleading.
(c) The agreement of the parties in this Paragraph to indemnify each other is
conditioned upon the party entitled to indemnification ("Indemnified Party")
giving notice to the party required to provide indemnification ("Indemnifying
Party") promptly after the summons or other first legal process for any claim as
to which indemnity may be sought is served on the Indemnified Party. The
Indemnified Party shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting from it, provided that counsel for
the Indemnifying Party who shall conduct the defense of such claim or litigation
shall be approved by the Indemnified Party (which approval shall not
unreasonably be withheld), and that the Indemnified Party may participate in
such defense at its expense. The failure of the Indemnified Party to give notice
as provided in this subparagraph (c) shall not relieve the Indemnifying Party
from any liability other than its indemnity obligation under this Paragraph. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
without the consent of the Indemnified Party, consent to entry of any judgment
or enter into any settlement that does not include as an unconditional term the
giving by the claimant or plaintiff to the Indemnified Party of a release from
all liability in respect to such claim or litigation.
(d) The provisions of this Paragraph 12 shall survive the termination of this
Agreement.
13. Customer Names Proprietary to Financial Institution.
(a) The names of Financial Institution's customers are and shall remain
Financial Institution's sole property and shall not be used by Freedom or its
affiliates for any purpose except the performance of their respective duties and
responsibilities under this Agreement and except for servicing and informational
mailings relating to the Funds. Notwithstanding the foregoing, this Paragraph 13
shall not prohibit Freedom or any of its affiliates from utilizing the names of
Financial Institution's customers for any purpose if the names are obtained in
any manner other than from Financial Institution pursuant to this Agreement.
(b) Neither party shall use the name of the other party in any manner without
the other party's written consent, except as required by any applicable federal
or state law, rule or regulation, and except pursuant to any mutually agreed
upon promotional programs.
(c) The provisions of this Paragraph 13 shall survive the termination of this
Agreement.
14. Security Against Unauthorized Use of Funds' Recordkeeping Systems.
Financial Institution agrees to provide such security as is necessary to
prevent any unauthorized use of the Funds' recordkeeping system, accessed via
any computer hardware or software provided to Financial Institution by Freedom
or its affiliates.
15. Solicitation of Proxies.
Financial Institution agrees not to solicit or cause to be solicited
directly, or indirectly, at any time in the future, any proxies from the
shareholders of any or all of the Funds in opposition to proxies solicited by
management of the Fund or Funds, unless a court of competent jurisdiction shall
have determined that the conduct of a majority of the Board of Trustees of the
Fund or Funds constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard of their duties. This Paragraph 15 will survive the term of
this Agreement.
16. Certification of Customers' Taxpayer Identification Numbers.
Financial Institution agrees to obtain any taxpayer identification number
certification from its customers required under Section 3406 of the Internal
Revenue Code, and any applicable Treasury regulations, and to provide Freedom or
its designee with timely written notice of any failure to obtain such taxpayer
identification number certification in order to enable the implementation of any
required backup withholding.
17. Notices.
Except as otherwise specifically provided in this Agreement, all notices
required or permitted to be given pursuant to this Agreement shall be given in
writing and delivered by personal delivery or by postage prepaid, registered or
certified United States first class mail, return receipt requested, overnight
courier services, or by facsimile or similar electronic means of delivery (with
a confirming copy by mail as provided herein). Unless otherwise notified in
writing, all notices to Freedom shall be given or sent to Freedom at its offices
located at One Beacon Street, Boston, Massachusetts 02108, and all notices to
Financial Institution shall be given or sent to it at its address shown below.
18. Termination and Amendment.
(a) This Agreement shall become effective in this form as of the date set forth
below or as of the first date thereafter upon which Financial Institution
executes any transaction, performs any service, or receives any payment pursuant
hereto. This Agreement supersedes any prior sales, distribution, shareholder
service, or administrative service agreements between the parties.
(b) With respect to each Fund, this Agreement shall continue in effect for one
year from the date of its execution, and thereafter for successive periods of
one year if the form of this Agreement is approved at least annually by the
Trustees of the Fund, including a majority of the members of the Board of
Trustees of the Fund who are not interested persons of the Fund and have no
direct or indirect financial interest in the operation of the Fund's
Distribution Plan or in any related documents to such Plan ("Independent
Trustees") cast in person at a meeting called for that purpose.
(c) This Agreement, including Exhibit A hereto, may be amended by Freedom from
time to time by the following procedure. Freedom will mail a copy of the
amendment to Financial Institution's address, as shown below. If Financial
Institution does not object to the amendment within thirty (30) days after its
receipt, the amendment will become part of the Agreement. Financial
Institution's objection must be in writing and be received by Freedom within
such thirty days.
(d) Notwithstanding subparagraph 18(b) and in addition to subparagraph 1(a),
this Agreement may be terminated as follows:
(i) at any time, without the payment of any penalty, by the vote of a
majority of the Independent Trustees of the Fund or by a vote of a majority of
the outstanding voting securities of the Fund as defined in the Investment
Company Act of 1940 on not more than sixty (60) days' written notice to the
parties to this Agreement;
(ii) automatically in the event of the Agreement's assignment as defined
in the Investment Company Act of 1940, upon the termination of the
"Distributor's Contract" between the Fund and Freedom, or upon the termination
of the Distribution Plan to which this Agreement is related; and
(iii) by any party to the Agreement without cause by giving the other
party at least sixty (60) days' written notice of its intention to
terminate.
(e) The termination of this Agreement with respect to any one Fund will not
cause the Agreement's termination with respect to any other Fund.
19. Governing Law.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts, without regard to the conflict of laws principles
thereof.
FREEDOM DISTRIBUTORS CORPORATION
By:
Name:
Title:
- ---------------------------------------
Financial Institution Name
(Please Print or Type)
- ---------------------------------------
Address
- ---------------------------------------
City State Zip Code
By:______________________________
Authorized Signature
- ---------------------------------------
Title
- ---------------------------------------
Print Name or Type Name
Dated:_____________________
<PAGE>
EXHIBIT A
FEE SCHEDULE FOR MUTUAL FUND SALES AND SERVICES AGREEMENT WITH
FREEDOM DISTRIBUTORS CORPORATION
This Exhibit to the Mutual Fund Sales and Services Agreement between Freedom and
the Financial Institution executing the Agreement sets forth the Funds which are
offered pursuant to the Agreement. This Exhibit is subject to change pursuant to
Sections 17 and 18 of the Agreement.
FUNDMANAGER PORTFOLIOS:
Financial Advisor Class - Aggressive Growth Portfolio; Growth Portfolio;
Growth with Income Portfolio; Bond Portfolio; Managed Total Return Portfolio
Advance Commissions: NONE
Supplemental Payments: NONE
Initial Sales Load, Asset-based Sales Charge, & Shareholder Service Fee:
- --------------------------------------------------------------------------------
Amount Invested Sales Charge Sales Charge Dealer Distribution
as a % of as a % of Net Concession as and/or
Offering Price Amount a % of Service Fees
Invested Offering Price
- --------------------------------------------------------------------------------
Less than $50,000 4.75% 4.99% 4.00% 0.25%
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$50,000 up to 4.50% 4.71% 4.00% 0.25%
$100,000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$100,000 up to 3.50% 3.63% 3.00% 0.25%
$250,000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$250,000 up to 2.50% 2.56% 2.00% 0.25%
$500,000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$500,000 up to $1 2.00% 2.04% 1.75% 0.25%
million
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$1 million or more None None *(see below) 0.25%
- --------------------------------------------------------------------------------
Exhibit 8(ii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
CUSTODIAN CONTRACT
Between
FUNDMANAGER PORTFOLIOS
(formerly FUNDMANAGER TRUST)
and
STATE STREET BANK AND TRUST COMPANY
Series/Trust
21B
<PAGE>
TABLE OF CONTENTS
Page
1. Employment of Custodian and Property to be Held By
It......................................................................1
2. Duties of the Custodian with Respect to Property
of the Fund Held by the Custodian......................................2
2.1 Holding Securities...............................................2
2.2 Delivery of Securities...........................................2
2.3 Registration of Securities.......................................4
2.4 Bank Accounts....................................................5
2.5 Availability of Federal Funds....................................5
2.6 Collection of Income.............................................5
2.7 Payment of Fund Monies...........................................5
2.8 Liability for Payment in Advance of Receipt of
Securities Purchased...................................................7
2.9 Appointment of Agents............................................7
2.10 Deposit of Fund Assets in Securities System......................7
2.10A Deposit of Fund Assets with Mutual Fund Transfer Agent...........8
2.11 Fund Assets Held in the Custodian's Direct
Paper System.....................................................9
2.12 Segregated Account..............................................10
2.13 Ownership Certificates for Tax Purposes.........................11
2.14 Proxies.........................................................11
2.15 Communications Relating to Portfolio Securities.................11
3. Payments for Repurchases or Redemptions and Sales
of Shares of the Fund.................................................11
4. Proper Instructions...................................................12
5. Actions Permitted Without Express Authority...........................12
6. Evidence of Authority.................................................13
7. Duties of Custodian With Respect to the Books of Account
and Calculation of Net Asset Value and Net Income......................13
8. Records...............................................................14
9. Opinion of Fund's Independent Accountants.............................14
10. Reports to Fund by Independent Public Accountants.....................14
11. Compensation of Custodian.............................................14
12. Responsibility of Custodian...........................................14
13. Effective Period, Termination and Amendment...........................15
14. Successor Custodian...................................................16
15. Interpretive and Additional Provisions................................17
16. Additional Funds......................................................17
17. Massachusetts Law to Apply............................................17
18. Prior Contracts.......................................................17
19. Shareholder Communications Election...................................17
20. Limitation of Liability...............................................18
<PAGE>
46
CUSTODIAN CONTRACT
This Contract between FundManager Portfolios (formerly FundManager Trust),
a business trust organized and existing under the laws of Delaware, having its
principal place of business at One Beacon Street, Boston, Massachusetts 02108
hereinafter called the "Fund", and State Street Bank and Trust Company, a
Massachusetts trust company, having its principal place of business at 225
Franklin Street, Boston, Massachusetts, 02110, hereinafter called the
"Custodian",
WITNESSETH:
WHEREAS, the Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
WHEREAS, the Fund intends to initially offer shares in five series, the
Aggressive Growth Portfolio, Growth Portfolio, Growth with Income Portfolio,
Bond Portfolio and Managed Total Return Portfolio (such series together with all
other series subsequently established by the Fund and made subject to this
Contract in accordance with paragraph 17, being herein referred to as the
"Portfolio(s)");
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It
The Fund hereby employs the Custodian as the custodian of the assets of
the Portfolios of the Fund, including shares of other mutual funds ("Mutual Fund
Shares"), pursuant to the provisions of the Master Trust Agreement. The Fund on
behalf of the Portfolio(s) agrees to deliver to the Custodian all securities and
cash of the Portfolios, and all payments of income, payments of principal or
capital distributions received by it with respect to all securities owned by the
Portfolio(s) from time to time, and the cash consideration received by it for
such new or treasury shares of beneficial interest of the Fund representing
interests in the Portfolios, ("Shares") as may be issued or sold from time to
time. The Custodian shall not be responsible for any property of a Portfolio
held or received by the Portfolio and not delivered to the Custodian. With
respect to uncertificated Mutual Fund Shares, the holding of confirmation
statements that identify the shares as being recorded in the Custodian's name on
behalf of the Fund will be deemed custody for purposes hereof.
Upon receipt of "Proper Instructions" (within the meaning of Article 4),
the Custodian shall on behalf of the applicable Portfolio(s) from time to time
employ one or more sub-custodians, but only in accordance with an applicable
vote by the Board of Trustees of the Fund on behalf of the applicable
Portfolio(s), and provided that the Custodian shall have no more or less
responsibility or liability to the Fund on account of any actions or omissions
of any sub-custodian so employed than any such sub-custodian has to the
Custodian.
2. Duties of the Custodian with Respect to Property of the Fund Held By the
Custodian
2.1 Holding Securities. The Custodian shall hold and physically segregate for
the account of each Portfolio all non-cash property, including all
securities owned by such Portfolio, other than (a) securities which are
maintained pursuant to Section 2.10 in a clearing agency which acts as a
securities depository or in a book-entry system authorized by the U.S.
Department of the Treasury, collectively referred to herein as "Securities
System"; (b) commercial paper of an issuer for which State Street Bank and
Trust Company acts as issuing and paying agent ("Direct Paper") which is
deposited and/or maintained in the Direct Paper System of the Custodian
pursuant to Section 2.11; and (c) uncertificated Mutual Fund Shares which
are maintained pursuant to Section 2.10A in an account with the transfer
agent for the Mutual Fund.
2.2 Delivery of Securities. The Custodian shall release and deliver securities
owned by a Portfolio held by the Custodian, in a Securities System account
of the Custodian, in the Custodian's Direct Paper book entry system
account ("Direct Paper System Account") only upon receipt of Proper
Instructions from the Fund on behalf of the applicable Portfolio, which
may be continuing instructions when deemed appropriate by the parties, and
only in the following cases:
1) Upon sale of such securities for the account of the Portfolio and
receipt of payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Portfolio;
3) In the case of a sale effected through a Securities System, in
accordance with the provisions of Section 2.10 hereof;
4) In the case of a sale of Mutual Fund Shares, in accordance with the
provisions of Section 2.10A hereof;
5) To the depository agent in connection with tender or other similar
offers for securities of the Portfolio;
6) To the issuer thereof or its agent when such securities are called,
redeemed, retired or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be delivered to the
Custodian;
7) To the issuer thereof, or its agent, for transfer into the name of the
Portfolio or into the name of any nominee or nominees of the Custodian
or into the name or nominee name of any agent appointed pursuant to
Section 2.9 or into the name or nominee name of any sub-custodian
appointed pursuant to Article 1; or for exchange for a different
number of bonds, certificates or other evidence representing the same
aggregate face amount or number of units; provided that, in any such
case, the new securities are to be delivered to the Custodian;
8) Upon the sale of such securities for the account of the Portfolio, to
the broker or its clearing agent, against a receipt, for examination
in accordance with "street delivery" custom; provided that in any such
case, the Custodian shall have no responsibility or liability for any
loss arising from the delivery of such securities prior to receiving
payment for such securities except as may arise from the Custodian's
own negligence or willful misconduct;
9) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of
the securities of the issuer of such securities, or pursuant to
provisions for conversion contained in such securities, or pursuant
to any deposit agreement; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the Custodian;
10) In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar
securities or the surrender of interim receipts or temporary
securities for definitive securities; provided that, in any such
case, the new securities and cash, if any, are to be delivered to
the Custodian;
11) For delivery in connection with any loans of securities made by the
Portfolio, but only against receipt of adequate collateral as agreed
upon from time to time by the Custodian and the Fund on behalf of
the Portfolio, which may be in the form of cash or obligations
issued by the United States government, its agencies or
instrumentalities or other permissible liquid securities, except
that in connection with any loans for which collateral is to be
credited to the Custodian's account in the book-entry system
authorized by the U.S. Department of the Treasury, the Custodian
will not be held liable or responsible for the delivery of
securities owned by the Portfolio prior to the receipt of such
collateral;
12) For delivery as security in connection with any borrowings by the
Fund on behalf of the Portfolio requiring a pledge of assets by the
Fund on behalf of the Portfolio, but only against receipt of amounts
borrowed;
13) For delivery in accordance with the provisions of any agreement
among the Fund on behalf of the Portfolio, the Custodian and a
broker-dealer registered under the Securities Exchange Act of 1934
(the "Exchange Act") and a member of The National Association of
Securities Dealers, Inc. ("NASD"), relating to compliance with the
rules of The Options Clearing Corporation and of any registered
national securities exchange, or of any similar organization or
organizations, regarding escrow or other arrangements in connection
with transactions by the Portfolio of the Fund;
14) For delivery in accordance with the provisions of any agreement
among the Fund on behalf of the Portfolio, the Custodian, and a
Futures Commission Merchant registered under the Commodity Exchange
Act, relating to compliance with the rules of the Commodity Futures
Trading Commission and/or any Contract Market, or any similar
organization or organizations, regarding account deposits in
connection with transactions by the Portfolio of the Fund;
15) Upon receipt of instructions from the transfer agent ("Transfer
Agent") for the Fund, for delivery to such Transfer Agent or to the
holders of shares in connection with distributions in kind, as may
be described from time to time in the currently effective prospectus
and statement of additional information of the Fund, related to the
Portfolio ("Prospectus"), in satisfaction of requests by holders of
Shares for repurchase or redemption; and
16) For any other proper corporate purpose, but only upon receipt of, in
addition to Proper Instructions from the Fund on behalf of the
applicable Portfolio, a certified copy of a resolution of the Board
of Trustees or of the Executive Committee signed by an officer of
the Fund and certified by the Secretary or an Assistant Secretary,
specifying the securities of the Portfolio to be delivered, setting
forth the purpose for which such delivery is to be made, declaring
such purpose to be a proper corporate purpose, and naming the person
or persons to whom delivery of such securities shall be made.
2.3 Registration of Securities. Securities held by the Custodian (other than
bearer securities) shall be registered in the name of the Portfolio or in
the name of any nominee of the Fund on behalf of the Portfolio or of any
nominee of the Custodian which nominee shall be assigned exclusively to
the Portfolio, unless the Fund has authorized in writing the appointment
of a nominee to be used in common with other registered investment
companies having the same investment adviser as the Portfolio, or in the
name or nominee name of any agent appointed pursuant to Section 2.9 or in
the name or nominee name of any sub-custodian appointed pursuant to
Article 1. All securities accepted by the Custodian on behalf of the
Portfolio under the terms of this Contract shall be in "street name" or
other good delivery form. If, however, the Fund directs the Custodian to
maintain securities in "street name", the Custodian shall utilize its best
efforts only to timely collect income due the Fund on such securities and
to notify the Fund on a best efforts basis only of relevant corporate
actions including, without limitation, pendency of calls, maturities,
tender or exchange offers.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the name of each Portfolio of the Fund, subject
only to draft or order by the Custodian acting pursuant to the terms of
this Contract, and shall hold in such account or accounts, subject to the
provisions hereof, all cash received by it from or for the account of the
Portfolio, other than cash maintained by the Portfolio in a bank account
established and used in accordance with Rule 17f-3 under the Investment
Company Act of 1940. Funds held by the Custodian for a Portfolio may be
deposited by it to its credit as Custodian in the Banking Department of
the Custodian or in such other banks or trust companies as it may in its
discretion deem necessary or desirable; provided, however, that every such
bank or trust company shall be qualified to act as a custodian under the
Investment Company Act of 1940 and that each such bank or trust company
and the funds to be deposited with each such bank or trust company shall
on behalf of each applicable Portfolio be approved by vote of a majority
of the Board of Trustees of the Fund. Such funds shall be deposited by the
Custodian in its capacity as Custodian and shall be withdrawable by the
Custodian only in that capacity.
2.5 Availability of Federal Funds. Upon mutual agreement between the Fund on
behalf of each applicable Portfolio and the Custodian, the Custodian
shall, upon the receipt of Proper Instructions from the Fund on behalf of
a Portfolio, make federal funds available to such Portfolio as of
specified times agreed upon from time to time by the Fund and the
Custodian in the amount of checks received in payment for Shares of such
Portfolio which are deposited into the Portfolio's account.
2.6 Collection of Income. Subject to the provisions of Section 2.3, the
Custodian shall collect on a timely basis all income and other payments
with respect to registered securities held hereunder to which each
Portfolio shall be entitled either by law or pursuant to custom in the
securities business, and shall collect on a timely basis all income and
other payments with respect to bearer securities if, on the date of
payment by the issuer, such securities are held by the Custodian or its
agent thereof and shall credit such income, as collected, to such
Portfolio's custodian account. Without limiting the generality of the
foregoing, the Custodian shall detach and present for payment all coupons
and other income items requiring presentation as and when they become due
and shall collect interest when due on securities held hereunder. Income
due each Portfolio on securities loaned pursuant to the provisions of
Section 2.2 (10) shall be the responsibility of the Fund. The Custodian
will have no duty or responsibility in connection therewith, other than to
provide the Fund with such information or data as may be necessary to
assist the Fund in arranging for the timely delivery to the Custodian of
the income to which the Portfolio is properly entitled.
2.7 Payment of Fund Monies. Upon receipt of Proper Instructions from the Fund
on behalf of the applicable Portfolio, which may be continuing
instructions when deemed appropriate by the parties, the Custodian shall
pay out monies of a Portfolio in the following cases only:
1) Upon the purchase of domestic securities, options, futures contracts
or options on futures contracts for the account of the Portfolio but
only (a) against the delivery of such securities or evidence of
title to such options, futures contracts or options on futures
contracts to the Custodian (or any bank, banking firm or trust
company doing business in the United States or abroad which is
qualified under the Investment Company Act of 1940, as amended, to
act as a custodian and has been designated by the Custodian as its
agent for this purpose) registered in the name of the Portfolio or
in the name of a nominee of the Custodian referred to in Section 2.3
hereof or in proper form for transfer; (b) in the case of a purchase
effected through a Securities System, in accordance with the
conditions set forth in Section 2.10 hereof; (c) in the case of a
purchase of Mutual Fund Shares, in accordance with the conditions
set forth in Section 2.10A hereof; (d) in the case of a purchase
involving the Direct Paper System, in accordance with the conditions
set forth in Section 2.11; (e) in the case of repurchase agreements
entered into between the Fund on behalf of the Portfolio and the
Custodian, or another bank, or a broker-dealer which is a member of
NASD, (i) against delivery of the securities either in certificate
form or through an entry crediting the Custodian's account at the
Federal Reserve Bank with such securities or (ii) against delivery
of the receipt evidencing purchase by the Portfolio of securities
owned by the Custodian along with written evidence of the agreement
by the Custodian to repurchase such securities from the Portfolio or
(f) for transfer to a time deposit account of the Fund in any bank,
whether domestic or foreign; such transfer may be effected prior to
receipt of a confirmation from a broker and/or the applicable bank
pursuant to Proper Instructions from the Fund as defined in Article
5;
2) In connection with conversion, exchange or surrender of securities
owned by the Portfolio as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued by the Portfolio as
set forth in Article 4 hereof;
4) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments for
the account of the Portfolio: interest, taxes, management,
accounting, transfer agent and legal fees, and operating expenses of
the Fund whether or not such expenses are to be in whole or part
capitalized or treated as deferred expenses;
5) For the payment of any dividends on Shares of the Portfolio declared
pursuant to the governing documents of the Fund;
6) For payment of the amount of dividends received in respect of
securities sold short;
7) For any other proper purpose, but only upon receipt of, in addition
to Proper Instructions from the Fund on behalf of the Portfolio, a
certified copy of a resolution of the Board of Trustees or of the
Executive Committee of the Fund signed by an officer of the Fund and
certified by its Secretary or an Assistant Secretary, specifying the
amount of such payment, setting forth the purpose for which such
payment is to be made, declaring such purpose to be a proper
purpose, and naming the person or persons to whom such payment is to
be made.
2.8 Liability for Payment in Advance of Receipt of Securities Purchased.
Except for payments for securities held as contemplated by Section 2.10A
hereof, or as specifically stated otherwise in this Contract, in any and
every case where payment for purchase of securities for the account of a
Portfolio is made by the Custodian in advance of receipt of the securities
purchased in the absence of specific written instructions from the Fund on
behalf of such Portfolio to so pay in advance, the Custodian shall be
absolutely liable to the Fund for such securities to the same extent as if
the securities had been received by the Custodian.
2.9 Appointment of Agents. The Custodian may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the Investment Company Act of
1940, as amended, to act as a custodian, as its agent to carry out such of
the provisions of this Article 2 as the Custodian may from time to time
direct; provided, however, that the appointment of any agent shall not
relieve the Custodian of its responsibilities or liabilities hereunder.
The transfer agent for Mutual Fund Shares purchased by a Portfolio shall
not be deemed an agent or subcustodian of the Custodian for purposes of
this Section 2.9 or any other provision of this Agreement.
2.10 Deposit of Fund Assets in Securities Systems. The Custodian may deposit
and/or maintain securities owned by a Portfolio in a clearing agency
registered with the Securities and Exchange Commission under Section 17A
of the Securities Exchange Act of 1934, which acts as a securities
depository, or in the book-entry system authorized by the U.S. Department
of the Treasury and certain federal agencies, collectively referred to
herein as "Securities System" in accordance with applicable Federal
Reserve Board and Securities and Exchange Commission rules and
regulations, if any, and subject to the following provisions:
1) The Custodian may keep securities of the Portfolio in a Securities
System provided that such securities are represented in an account
("Account") of the Custodian in the Securities System which shall
not include any assets of the Custodian other than assets held as a
fiduciary, custodian or otherwise for customers;
2) The records of the Custodian with respect to securities of the
Portfolio which are maintained in a Securities System shall identify
by book-entry those securities belonging to the Portfolio;
3) The Custodian shall pay for securities purchased for the account of
the Portfolio upon (i) receipt of advice from the Securities System
that such securities have been transferred to the Account, and (ii)
the making of an entry on the records of the Custodian to reflect
such payment and transfer for the account of the Portfolio. The
Custodian shall transfer securities sold for the account of the
Portfolio upon (i) receipt of advice from the Securities System that
payment for such securities has been transferred to the Account, and
(ii) the making of an entry on the records of the Custodian to
reflect such transfer and payment for the account of the Portfolio.
Copies of all advices from the Securities System of transfers of
securities for the account of the Portfolio shall identify the
Portfolio, be maintained for the Portfolio by the Custodian and be
provided to the Fund at its request. Upon request, the Custodian
shall furnish the Fund on behalf of the Portfolio confirmation of
each transfer to or from the account of the Portfolio in the form of
a written advice or notice and shall furnish to the Fund on behalf
of the Portfolio copies of daily transaction sheets reflecting each
day's transactions in the Securities System for the account of the
Portfolio;
4) The Custodian shall provide the Fund for the Portfolio with any
report obtained by the Custodian on the Securities System's
accounting system, internal accounting control and procedures for
safeguarding securities deposited in the Securities System;
5) The Custodian shall have received from the Fund on behalf of the
Portfolio the initial or annual certificate, as the case may be,
required by Article 13 hereof;
6) Anything to the contrary in this Contract notwithstanding, the
Custodian shall be liable to the Fund for the benefit of the
Portfolio for any loss or damage to the Portfolio resulting from use
of the Securities System by reason of any negligence, misfeasance or
misconduct of the Custodian or any of its agents or of any of its or
their employees or from failure of the Custodian or any such agent
to enforce effectively such rights as it may have against the
Securities System; at the election of the Fund, it shall be entitled
to be subrogated to the rights of the Custodian with respect to any
claim against the Securities System or any other person which the
Custodian may have as a consequence of any such loss or damage if
and to the extent that the Portfolio has not been made whole for any
such loss or damage.
2.10A Deposit of Fund Assets with Mutual Fund Transfer Agent. Mutual Fund Shares
shall be deposited and/or maintained in an account maintained with the
transfer agent for the Mutual fund ("Fund Agent"). Each such transfer
agent shall be deemed to be a "Securities Depository" for purposes of Rule
17f-4 of the Investment Company Act of 1940. The Fund hereby directs the
Custodian to deposit and/or maintain such securities with Fund Agents,
subject to the following provisions:
1) The Custodian shall keep Mutual Fund Shares owned by a Portfolio
with a Fund Agent provided that such Mutual Fund Shares are
maintained in an account on the books and records of the Fund Agent
in the name of the Custodian as custodian for the Portfolio.
2) The records of the Custodian with respect to Mutual Fund Shares
which are maintained with a Fund Agent shall identify by book-entry
those Mutual Fund Shares which the Portfolio or its investment
advisor have identified to the Custodian as belonging to the
Portfolio;
3) The Custodian shall pay for Mutual Fund Shares purchased for the
account of the Portfolio upon (i) receipt of advice from the
Portfolio's investment adviser that such Mutual Fund Shares have
been purchased and will be transferred to the account of the
Custodian, on behalf of the Portfolio, on the books and records of
the Fund Agent, and (ii) the making of an entry on the records of
the Custodian to reflect such payment and transfer for the account
of the Portfolio. The Custodian shall receive confirmation of the
purchase of such Mutual Fund Shares and the transfer of such Mutual
Fund Shares to the Custodian's account with the Fund Agent only
after such payment is made. The Custodian shall transfer Mutual Fund
Shares redeemed for the account of a Portfolio (i) upon receipt of
an advice from the Portfolio's investment adviser that such Mutual
Fund Shares have been redeemed and that payment for such Mutual Fund
Shares will be transferred to the Custodian and (ii) the making of
an entry on the records of the Custodian to reflect such transfer
and payment for the account of the Portfolio. The Custodian will
receive confirmation of the redemption of such Mutual Fund Shares
and payment therefor only after such Mutual Fund Shares are
redeemed. Copies of all advices from the investment adviser of
purchases and sales of Mutual Fund Shares for the account of the
Portfolio shall identify the Portfolio, be maintained for the
Portfolio by the Custodian, and be provided to the Fund at its
request;
4) The Custodian shall be not be liable to the Fund or any Portfolio
for any loss or damage to the Fund or any Portfolio resulting from
maintenance of Mutual Fund Shares with a Fund Agent except for
losses resulting directly from the negligence, misfeasance or
misconduct of the Custodian or any of its agents or of any of its or
their employees.
2.11 Fund Assets Held in the Custodian's Direct Paper System. The Custodian may
deposit and/or maintain securities owned by a Portfolio in the Direct
Paper System of the Custodian subject to the following provisions:
1) No transaction relating to securities in the Direct Paper System will
be effected in the absence of Proper Instructions from the Fund on
behalf of the Portfolio;
2) The Custodian may keep securities of the Portfolio in the Direct
Paper System only if such securities are represented in an account
("Account") of the Custodian in the Direct Paper System which shall
not include any assets of the Custodian other than assets held as a
fiduciary, custodian or otherwise for customers;
3) The records of the Custodian with respect to securities of the
Portfolio which are maintained in the Direct Paper System shall
identify by book-entry those securities belonging to the Portfolio;
4) The Custodian shall pay for securities purchased for the account of
the Portfolio upon the making of an entry on the records of the
Custodian to reflect such payment and transfer of securities to the
account of the Portfolio. The Custodian shall transfer securities
sold for the account of the Portfolio upon the making of an entry on
the records of the Custodian to reflect such transfer and receipt of
payment for the account of the Portfolio;
5) The Custodian shall furnish the Fund on behalf of the Portfolio
confirmation of each transfer to or from the account of the
Portfolio, in the form of a written advice or notice, of Direct
Paper on the next business day following such transfer and shall
furnish to the Fund on behalf of the Portfolio copies of daily
transaction sheets reflecting each day's transaction in the
Securities System for the account of the Portfolio;
6) The Custodian shall provide the Fund on behalf of the Portfolio with
any report on its system of internal accounting control as the Fund
may reasonably request from time to time.
2.12 Segregated Account. The Custodian shall upon receipt of Proper
Instructions from the Fund on behalf of each applicable Portfolio
establish and maintain a segregated account or accounts for and on behalf
of each such Portfolio, into which account or accounts may be transferred
cash and/or securities, including securities maintained in an account by
the Custodian pursuant to Section 2.10 hereof, (i) in accordance with the
provisions of any agreement among the Fund on behalf of the Portfolio, the
Custodian and a broker-dealer registered under the Exchange Act and a
member of the NASD (or any futures commission merchant registered under
the Commodity Exchange Act), relating to compliance with the rules of The
Options Clearing Corporation and of any registered national securities
exchange (or the Commodity Futures Trading Commission or any registered
contract market), or of any similar organization or organizations,
regarding escrow or other arrangements in connection with transactions by
the Portfolio, (ii) for purposes of segregating cash or government
securities in connection with options purchased, sold or written by the
Portfolio or commodity futures contracts or options thereon purchased or
sold by the Portfolio, (iii) for the purposes of compliance by the
Portfolio with the procedures required by Investment Company Act Release
No. 10666, or any subsequent release or releases of the Securities and
Exchange Commission relating to the maintenance of segregated accounts by
registered investment companies and (iv) for other proper corporate
purposes, but only, in the case of clause (iv), upon receipt of, in
addition to Proper Instructions from the Fund on behalf of the applicable
Portfolio, a certified copy of a resolution of the Board of Trustees or of
the Executive Committee signed by an officer of the Fund and certified by
the Secretary or an Assistant Secretary, setting forth the purpose or
purposes of such segregated account and declaring such purposes to be
proper corporate purposes.
2.13 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and state
tax purposes in connection with receipt of income or other payments with
respect to securities of each Portfolio held by it and in connection with
transfers of securities.
2.14 Proxies. The Custodian shall, with respect to the securities held
hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of
the Portfolio or a nominee of the Portfolio, all proxies, without
indication of the manner in which such proxies are to be voted, and shall
promptly deliver to the Portfolio such proxies, all proxy soliciting
materials and all notices relating to such securities.
2.15 Communications Relating to Portfolio Securities. Subject to the provisions
of Section 2.3, the Custodian shall transmit promptly to the Fund for each
Portfolio all written information (including, without limitation, pendency
of calls and maturities of securities and expirations of rights in
connection therewith and notices of exercise of call and put options
written by the Fund on behalf of the Portfolio and the maturity of futures
contracts purchased or sold by the Portfolio) received by the Custodian
from issuers of the securities being held for the Portfolio. With respect
to tender or exchange offers, the Custodian shall transmit promptly to the
Portfolio all written information received by the Custodian from issuers
of the securities whose tender or exchange is sought and from the party
(or his agents) making the tender or exchange offer. If the Portfolio
desires to take action with respect to any tender offer, exchange offer or
any other similar transaction, the Portfolio shall notify the Custodian at
least three business days prior to the date on which the Custodian is to
take such action.
3. Payments for Repurchases or Redemptions and Sales of Shares of the Fund
From such funds as may be available for the purpose but subject to the
limitations of the Master Trust Agreement and any applicable votes of the Board
of Trustees of the Fund pursuant thereto, the Custodian shall, upon receipt of
Proper Instructions from the Transfer Agent, make funds available for payment to
holders of Shares who have delivered to the Transfer Agent a request for
redemption or repurchase of their Shares. In connection with the redemption or
repurchase of Shares of a Portfolio, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to or through a commercial
bank designated by the redeeming shareholders. In connection with the redemption
or repurchase of Shares of the Fund, the Custodian shall honor checks drawn on
the Custodian by a holder of Shares, which checks have been furnished by the
Fund to the holder of Shares, when presented to the Custodian in accordance with
such procedures and controls as are mutually agreed upon from time to time
between the Fund and the Custodian.
The Custodian shall receive from the distributor for the Shares or from
the Transfer Agent of the Fund and deposit into the account of the appropriate
Portfolio such payments as are received for Shares of that Portfolio issued or
sold from time to time by the Fund. The Custodian will provide timely
notification to the Fund on behalf of each such Portfolio and the Transfer Agent
of any receipt by it of payments for Shares of such Portfolio.
4. Proper Instructions
Proper Instructions as used herein means a writing signed or initialed by
one or more person or persons as the Board of Trustees shall have from time to
time authorized. Each such writing shall set forth the specific transaction or
type of transaction involved, including a specific statement of the purpose for
which such action is requested. Oral instructions will be considered Proper
Instructions if the Custodian reasonably believes them to have been given by a
person authorized to give such instructions with respect to the transaction
involved. The Fund shall cause all oral instructions to be confirmed in writing.
Upon receipt of a certificate of the Secretary or an Assistant Secretary as to
the authorization by the Board of Trustees of the Fund accompanied by a detailed
description of procedures approved by the Board of Trustees, Proper Instructions
may include communications effected directly between electro-mechanical or
electronic devices provided that the Board of Trustees and the Custodian are
satisfied that such procedures afford adequate safeguards for the Portfolios'
assets. For purposes of this Section, Proper Instructions shall include
instructions received by the Custodian pursuant to any three-party agreement
which requires a segregated asset account in accordance with Section 2.12.
5. Actions Permitted without Express Authority
The Custodian may in its discretion, without express authority from the
Fund on behalf of each applicable Portfolio:
1) make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this
Contract, provided that all such payments shall be accounted for to
the Fund on behalf of the Portfolio;
2) surrender securities in temporary form for securities in definitive
form;
3) endorse for collection, in the name of the Portfolio, checks, drafts
and other negotiable instruments; and
4) in general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other
dealings with the securities and property of the Portfolio except as
otherwise directed by the Board of Trustees of the Fund.
6. Evidence of Authority
The Custodian shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper believed by it to be
genuine and to have been properly executed by or on behalf of the Fund. The
Custodian may receive and accept a certified copy of a vote of the Board of
Trustees of the Fund as conclusive evidence (a) of the authority of any person
to act in accordance with such vote or (b) of any determination or of any action
by the Board of Trustees pursuant to the Master Trust Agreement as described in
such vote, and such vote may be considered as in full force and effect until
receipt by the Custodian of written notice to the contrary.
7. Duties of Custodian with Respect to the Books of Account and Calculation
of Net Asset Value and Net Income
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Board of Trustees of the Fund to keep
the books of account of each Portfolio and/or compute the net asset value per
share of the outstanding shares of each Portfolio or, if directed in writing to
do so by the Fund on behalf of the Portfolio, shall itself keep such books of
account and/or compute such net asset value per share. If so directed, the
Custodian shall also calculate daily the net income of the Portfolio as
described in the Fund's currently effective prospectus related to such Portfolio
and shall advise the Fund and the Transfer Agent daily of the total amounts of
such net income and, if instructed in writing by an officer of the Fund to do
so, shall advise the Transfer Agent periodically of the division of such net
income among its various components. The Fund acknowledges and agrees that, with
respect to investments maintained with Fund Agents, the Fund's investment
adviser is the sole source of information as to the amount paid for the purchase
of Fund Shares and that the Fund Agent is the sole source of information on the
number of shares of a fund held by a Fund Agent on behalf of a Portfolio and
that the Custodian has the absolute right to rely on holdings information
furnished by the Fund Agent to the Custodian in performing its duties under this
Contract, including without limitation, the duties set forth in this Section 7
and in Section 8 hereof; provided that the Custodian shall exercise reasonable
care in comparing any confirmation received from a Fund Agent with purchase
information received from the investment advisor and notifying the investment
advisor of any discrepancy. The calculations of the net asset value per share
and the daily income of each Portfolio shall be made at the time or times
described from time to time in the Fund's currently effective prospectus related
to such Portfolio.
8. Records
The Custodian shall with respect to each Portfolio create and maintain all
records relating to its activities and obligations under this Contract in such
manner as will meet the obligations of the Fund under the Investment Company Act
of 1940, with particular attention to Section 31 thereof and Rules 31a-1 and
31a-2 thereunder. All such records shall be the property of the Fund and shall
at all times during the regular business hours of the Custodian be open for
inspection by duly authorized officers, employees or agents of the Fund and
employees and agents of the Securities and Exchange Commission. The Custodian
shall, at the Fund's request, supply the Fund with a tabulation of securities
owned by each Portfolio and held by the Custodian and shall, when requested to
do so by the Fund and for such compensation as shall be agreed upon between the
Fund and the Custodian, include certificate numbers in such tabulations.
9. Opinion of Fund's Independent Accountant
The Custodian shall take all reasonable action, as the Fund on behalf of
each applicable Portfolio may from time to time request, to obtain from year to
year favorable opinions from the Fund's independent accountants with respect to
its activities hereunder in connection with the preparation of the Fund's Form
N-1A, and Form N-SAR or other annual reports to the Securities and Exchange
Commission and with respect to any other requirements of such Commission.
10. Reports to Fund by Independent Public Accountants
The Custodian shall provide the Fund, on behalf of each of the Portfolios
at such times as the Fund may reasonably require, with reports by independent
public accountants on the accounting system, internal accounting control and
procedures for safeguarding securities, futures contracts and options on futures
contracts, including securities deposited and/or maintained in a Securities
System, relating to the services provided by the Custodian under this Contract;
such reports, shall be of sufficient scope and in sufficient detail, as may
reasonably be required by the Fund to provide reasonable assurance that any
material inadequacies would be disclosed by such examination, and, if there are
no such inadequacies, the reports shall so state.
11. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time between the
Fund on behalf of each applicable Portfolio and the Custodian.
12. Responsibility of Custodian
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Contract and shall be held harmless in acting
upon any notice, request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party or parties,
including any futures commission merchant acting pursuant to the terms of a
three-party futures or options agreement. The Custodian shall be held to the
exercise of reasonable care in carrying out the provisions of this Contract, but
shall be kept indemnified by and shall be without liability to the Fund for any
action taken or omitted by it in good faith without negligence. It shall be
entitled to rely on and may act upon advice of counsel (who may be counsel for
the Fund) on all matters, and shall be without liability for any action
reasonably taken or omitted pursuant to such advice.
If the Fund on behalf of a Portfolio requires the Custodian to take any
action with respect to securities, which action involves the payment of money or
which action may, in the opinion of the Custodian, result in the Custodian or
its nominee assigned to the Fund or the Portfolio being liable for the payment
of money or incurring liability of some other form, the Fund on behalf of the
Portfolio, as a prerequisite to requiring the Custodian to take such action,
shall provide indemnity to the Custodian in an amount and form satisfactory to
it.
If the Fund requires the Custodian, its affiliates, subsidiaries or
agents, to advance cash or securities for any purpose (including but not limited
to securities settlements, foreign exchange contracts and assumed settlement)
for the benefit of a Portfolio or in the event that the Custodian or its nominee
shall incur or be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Contract, except such as
may arise from its or its nominee's own negligent action, negligent failure to
act or willful misconduct, any property at any time held for the account of the
applicable Portfolio shall be security therefor and should the Fund fail to
repay the Custodian promptly, the Custodian shall be entitled to utilize
available cash and to dispose of such Portfolio's assets to the extent necessary
to obtain reimbursement.
In no event shall the Custodian be liable for indirect, special or
consequential damages.
13. Effective Period, Termination and Amendment
This Contract shall become effective as of its execution, shall continue
in full force and effect until terminated as hereinafter provided, may be
amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not sooner
than thirty (30) days after the date of such delivery or mailing; provided,
however that the Custodian shall not with respect to a Portfolio act under
Section 2.10 hereof in the absence of receipt of an initial certificate of the
Secretary or an Assistant Secretary that the Board of Trustees of the Fund has
approved the initial use of a particular Securities System by such Portfolio, as
required by Rule 17f-4 under the Investment Company Act of 1940, as amended and
that the Custodian shall not with respect to a Portfolio act under Section 2.11
hereof in the absence of receipt of an initial certificate of the Secretary or
an Assistant Secretary that the Board of Trustees has approved the initial use
of the Direct Paper System by such Portfolio; provided further, however, that
the Fund shall not amend or terminate this Contract in contravention of any
applicable federal or state regulations, or any provision of the Master Trust
Agreement, and further provided, that the Fund on behalf of one or more of the
Portfolios may at any time by action of its Board of Trustees (i) substitute
another bank or trust company for the Custodian by giving notice as described
above to the Custodian, or (ii) immediately terminate this Contract in the event
of the appointment of a conservator or receiver for the Custodian by the
Comptroller of the Currency or upon the happening of a like event at the
direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination of the Contract, the Fund on behalf of each applicable
Portfolio shall pay to the Custodian such compensation as may be due as of the
date of such termination and shall likewise reimburse the Custodian for its
costs, expenses and disbursements.
14. Successor Custodian
If a successor custodian for the Fund or one or more of the Portfolios
shall be appointed by the Board of Trustees of the Fund, the Custodian shall,
upon termination, deliver to such successor custodian at the office of the
Custodian, duly endorsed and in the form for transfer, all securities of each
applicable Portfolio then held by it hereunder and shall transfer to an account
of the successor custodian all of the securities of each such Portfolio held in
a Securities System.
If no such successor custodian shall be appointed, the Custodian shall, in
like manner, upon receipt of a certified copy of a vote of the Board of Trustees
of the Fund, deliver at the office of the Custodian and transfer such
securities, funds and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Board of Trustees shall have been delivered to
the Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver to a bank or trust
company, which is a "bank" as defined in the Investment Company Act of 1940,
doing business in Boston, Massachusetts, of its own selection, having an
aggregate capital, surplus, and undivided profits, as shown by its last
published report, of not less than $25,000,000, all securities, funds and other
properties held by the Custodian on behalf of each applicable Portfolio and all
instruments held by the Custodian relative thereto and all other property held
by it under this Contract on behalf of each applicable Portfolio and to transfer
to an account of such successor custodian all of the securities of each such
Portfolio held in any Securities System.
Thereafter, such bank or trust company shall be the successor of the Custodian
under this Contract.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Fund to procure the certified copy of the vote referred to or of
the Board of Trustees to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other properties and
the provisions of this Contract relating to the duties and obligations of the
Custodian shall remain in full force and effect.
15. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and the
Fund on behalf of each of the Portfolios, may from time to time agree on such
provisions interpretive of or in addition to the provisions of this Contract as
may in their joint opinion be consistent with the general tenor of this
Contract. Any such interpretive or additional provisions shall be in a writing
signed by both parties and shall be annexed hereto, provided that no such
interpretive or additional provisions shall contravene any applicable federal or
state regulations or any provision of the Master Trust Agreement of the Fund. No
interpretive or additional provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Contract.
16. Additional Funds
In the event that the Fund establishes one or more series of Shares in
addition to the Aggressive Growth Portfolio, Growth Portfolio, Growth with
Income Portfolio, Bond Portfolio and Managed Total Return Portfolio with respect
to which it desires to have the Custodian render services as custodian under the
terms hereof, it shall so notify the Custodian in writing, and if the Custodian
agrees in writing to provide such services, such series of Shares shall become a
Portfolio hereunder.
17. Massachusetts Law to Apply
This Contract shall be construed and the provisions thereof interpreted
under and in accordance with laws of The Commonwealth of Massachusetts.
18. Prior Contracts
This Contract supersedes and terminates, as of the date hereof, all prior
contracts between the Fund on behalf of each of the Portfolios and the Custodian
relating to the custody of the Fund's assets.
19. Shareholder Communications Election
Securities and Exchange Commission Rule 14b-2 requires banks which hold
securities for the account of customers to respond to requests by issuers of
securities for the names, addresses and holdings of beneficial owners of
securities of that issuer held by the bank unless the beneficial owner has
expressly objected to disclosure of this information. In order to comply with
the rule, the Custodian needs the Fund to indicate whether it authorizes the
Custodian to provide the Fund's name, address, and share position to requesting
companies whose securities the Fund owns. If the Fund tells the Custodian "no",
the Custodian will not provide this information to requesting companies. If the
Fund tells the Custodian "yes" or does not check either "yes" or "no" below, the
Custodian is required by the rule to treat the Fund as consenting to disclosure
of this information for all securities owned by the Fund or any funds or
accounts established by the Fund. For the Fund's protection, the Rule prohibits
the requesting company from using the Fund's name and address for any purpose
other than corporate communications. Please indicate below whether the Fund
consents or objects by checking one of the alternatives below.
YES [X] The Custodian is authorized to release the Fund's name, address,
and share positions.
NO [ ] The Custodian is not authorized to release the Fund's name,
address, and share positions.
20. Limitation of Liability
The Fund is organized as a Delaware business trust, and references in this
Contract to the Fund mean and refer to the Trustees from time to time serving
under its Master Trust Agreement and pursuant to its Certificate of Trust on
file with the Secretary of State of Delaware, as the same may be amended from
time to time, pursuant to which the Fund conducts its business. It is expressly
agreed that the obligations of the Fund hereunder shall not be binding upon any
of the Trustees, shareholders, nominees, officers, agents or employees of the
Fund, as provided in said Master Trust Agreement. Moreover, if the Fund has more
than one series or Portfolio, no series or Portfolio of the Fund other than the
series or Portfolio on whose behalf a specified transaction shall have been
undertaken shall be responsible for the obligations of the Fund, and persons
engaging in transactions with the Fund shall look only to the assets of that
series or Portfolio to satisfy those obligations. The execution and delivery of
this Contract has been authorized by the Trustees and signed by an authorized
officer of the Fund, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them but shall bind only the trust property of the Fund as
provided in such Master Trust Agreement.
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 21st day of March , 1997.
ATTEST FUNDMANAGER PORTFOLIOS
(formerly FUNDMANAGER TRUST)
/s/ Victor R. Siclari By: /s/ Charles B. Lipson
Victor R. Siclari Charles B. Lipson
Secretary President
ATTEST STATE STREET BANK AND TRUST COMPANY
/s/ Francine S. Hayes By /s/ Ronald E. Logue
Francine S. Hayes Ronald E. Logue
Executive Vice President
<PAGE>
STATE STREET BANK AND TRUST COMPANY
DOMESTIC CUSTODY AND ACCOUNTING FEE SCHEDULE
FREEDOM CAPITAL MANAGEMENT CORPORATION
I. CUSTODY, PORTFOLIO AND FUND ACCOUNTING
CUSTODY, PORTFOLIO AND FUND ACCOUNTING SERVICE: Maintain custody of fund
assets. Settle portfolio purchases and sales. Report buy and sell fails.
Determine and collect portfolio income. Make cash disbursements and report
cash transactions. Maintain investment ledgers, provide selected portfolio
transactions, position and income reports. Maintain general ledger and
capital stock accounts. Prepare daily trial balance. Calculate net asset
value daily. Provide selected general ledger reports. Securities yield or
market value quotations will be provided to State Street by the fund.
ANNUAL FEES PER PORTFOLIO
Custody, Portfolio
Fund Net Assets and Fund Accounting
First $20 Million 7 basis points
Next $80 Million 3 basis points
Excess 1 basis point
Minimum Charges Per Month $1,500
Multiclass Accounting Per Class $750
II. PORTFOLIO TRADES - FOR EACH LINE ITEM PROCESSED
State Street Bank Repos $7.00
Maturity Collections $8.00
PTC Purchase, Sale, Deposit or Withdrawal $16.00
All Other Trades $16.00
III. AUTOMATED PRICING
Base charge per month $375.00
Monthly quote charge Equities $5.00
<PAGE>
IV. HOLDINGS CHARGE
For each issue maintained -- monthly charge $5.00
V. DIVIDEND CHARGES
(For items held at the Request of Traders over record date in
street form) $50.00
VI. SPECIAL SERVICES
Fees for activities of a non-recurring nature such as fund consolidations
or reorganizations, extraordinary security shipments and the preparation
of special reports will be subject to negotiation. Fees for automated
pricing, yield calculation and other special items will be negotiated
separately.
VII. OUT-OF-POCKET EXPENSES
A billing for the recovery of applicable out-of-pocket expenses will be
made as of the end of each month. Out-of-pocket expenses include, but are
not limited to the following:
- Telephone
- Wire Charges ($5.25 per wire in and $5 out) - Postage and
Insurance - Courier Service - Duplicating - Legal Fees - Supplies
Related to Fund Records - Rush Transfer -- $8.00 each - Transfer
Fees - Sub-custodian Charges - Price Waterhouse Audit Letter
- Federal Reserve Fee for Return Check items over $2,500 - $4.25 -
GNMA Transfer - $15 each - PTC Deposit/Withdrawal for same day
turnarounds - $50.00
FREEDOM CAPITAL MANAGEMENT CORP. STATE STREET BANK & TRUST COMPANY
By /s/ Charles B. Lipson By /s/ Ronald E. Logue
Title President TitleExecutive Vice President
Date 4/8/97 Date 3/31/97
<PAGE>
Freedom Capital Management Corporation
M.D. Hirsch Division
FundManager Portfolios Authorized Signature List
State Street Custody
Signature Initials
Charles B. Lipson /s/ Charles B. Lipson /s/ CBL
Michael D. Hirsch /s/ Michael D. Hirsch /s/ MDH
Brian O'Dell /s/ Brian P. O'Dell /s/ BPO
David Kealey /s/ David Kealey /s/ DK
Martin Orgel /s/ Martin S. Orgel /s/ MSO
Patrick Clark /s/ Patrick J. Clark /s/ PJC
Exhibit 9(iii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
AGREEMENT
FOR
TRANSFER AGENCY SERVICES
AGREEMENT made as of March 21, 1997, by and between FUNDMANAGER PORTFOLIOS
(formerly, FundManager Trust), having its principal office and place of business
at One Beacon Street, Boston, Massachusetts 02108 (the "Trust"), on behalf of
the portfolios (individually referred to herein as a "Fund" and collectively as
"Funds") of the Trust, and FEDERATED SHAREHOLDER SERVICES COMPANY, a Delaware
business trust, having its principal office and place of business at Federated
Investors Tower, Pittsburgh, Pennsylvania 15222-3779, on behalf of itself and
its subsidiaries (the "Company").
WHEREAS, the Trust is organized as a Delaware business trust and is
registered as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), with authorized and issued
shares of beneficial interests ("Shares");
WHEREAS, the Trust desires to appoint the Company as its transfer agent,
dividend disbursing agent, and agent in connection with certain other activities
for each Fund, and the Company desires to accept such appointment;
WHEREAS, from time to time the Trust may desire and may instruct the Company
to subcontract for the performance of certain of its duties and responsibilities
hereunder to another agent (the "Agent"); and
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:
ARTICLE 1. TERMS OF APPOINTMENT.
Subject to the terms and conditions set forth in this Agreement, the Trust
hereby appoints the Company to act as, and the Company agrees to act as,
transfer agent and dividend disbursing agent for each Fund's Shares, and agent
in connection with any accumulation, open-account or similar plans provided to
the shareholders of any Fund ("Shareholder(s)"), including without limitation
any periodic investment plan or periodic withdrawal program.
As used throughout this Agreement, a "Proper Instruction" means a writing
signed or initialed by one or more person or persons as the Board shall have
from time to time authorized. Each such writing shall set forth the specific
transaction or type of transaction involved. Oral instructions will be deemed to
be Proper Instructions if (a) the Company reasonably believes them to have been
given by a person previously authorized in Proper Instructions to give such
instructions with respect to the transaction involved, and (b) the Trust, or the
Fund, and the Company promptly cause such oral instructions to be confirmed in
writing. Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the Trust, or the
Fund, and the Company are satisfied that such procedures afford adequate
safeguards for the Fund's assets. Proper Instructions may only be amended in
writing.
ARTICLE 2. DUTIES OF THE COMPANY.
The Company shall perform the following services in accordance with Proper
Instructions as may be provided from time to time by the Trust as to any Fund:
A. Purchases
(1) The Company shall receive orders and payment for the purchase of
shares and promptly deliver payment and appropriate documentation
therefore to the custodian of the relevant Fund (the "Custodian").
The Company shall notify the Fund and the Custodian on a daily
basis of the total amount of orders and payments so delivered.
(2) Pursuant to purchase orders and in accordance with the Fund's
current Prospectus, the Company shall compute and issue the
appropriate number of Shares of each Fund and hold such Shares in
the appropriate Shareholder accounts.
(3) For certificated Funds, if a Shareholder or its agent requests a
certificate, the Company, as Transfer Agent, shall countersign and
mail by first class mail, a certificate to the Shareholder at its
address as set forth on the transfer books of the Funds, subject
to any Proper Instructions regarding the delivery of certificates.
(4) In the event that any check or other order for the purchase of
Shares of the Fund is returned unpaid for any reason, the Company
shall debit the Share account of the Shareholder by the number of
Shares that had been credited to its account upon receipt of the
check or other order, promptly mail a debit advice to the
Shareholder, and notify the Fund of its action. In the event that
the amount paid for such Shares exceeds proceeds of the redemption
of such Shares plus the amount of any dividends paid with respect
to such Shares, the Fund or its distributor will reimburse the
Company on the amount of such excess.
B. Distribution
(1) Upon notification by the Funds of the declaration of any
distribution to Shareholders, the Company shall act as Dividend
Disbursing Agent for the Funds in accordance with the provisions
of its governing document and the then-current Prospectus of the
Fund. The Company shall prepare and mail or credit income, capital
gain, or any other payments to Shareholders. As the Dividend
Disbursing Agent, the Company shall, on or before the payment date
of any such distribution, notify the Custodian of the estimated
amount required to pay any portion of said distribution which is
payable in cash and request the Custodian to make available
sufficient funds for the cash amount to be paid out. The Company
shall reconcile the amounts so requested and the amounts actually
received with the Custodian on a daily basis. If a Shareholder is
entitled to receive additional Shares by virtue of any such
distribution or dividend, appropriate credits shall be made to the
Shareholder's account, for certificated Funds, delivered where
requested; and
(2) The Company shall maintain records of account for each Fund and advise
the Trust, each Fund and its Shareholders as to the foregoing.
C. Redemptions and Transfers
(1) The Company shall receive redemption requests and redemption
directions and, if such redemption requests comply with the
procedures as may be described in the Fund Prospectus or set forth
in Proper Instructions, deliver the appropriate instructions
therefor to the Custodian. The Company shall notify the Funds on a
daily basis of the total amount of redemption requests processed
and monies paid to the Company by the Custodian for redemptions.
(2) At the appropriate time upon receiving redemption proceeds from
the Custodian with respect to any redemption, the Company shall
pay or cause to be paid the redemption proceeds in the manner
instructed by the redeeming Shareholders, pursuant to procedures
described in the then-current Prospectus of the Fund.
(3) If any certificate returned for redemption or other request for
redemption does not comply with the procedures for redemption
approved by the Fund, the Company shall promptly notify the
Shareholder of such fact, together with the reason therefor, and
shall effect such redemption at the price applicable to the date
and time of receipt of documents complying with said procedures.
(4) The Company shall effect transfers of Shares by the registered
owners thereof.
(5) The Company shall identify and process abandoned accounts and uncashed
checks for state escheat requirements on an annual basis and report
such actions to the Fund.
<PAGE>
D. Recordkeeping
(1) The Company shall record the issuance of Shares of each Fund, and
maintain pursuant to applicable rules of the Securities and
Exchange Commission ("SEC") a record of the total number of Shares
of the Fund which are authorized, based upon data provided to it
by the Fund, and issued and outstanding. The Company shall also
provide the Fund on a regular basis or upon reasonable request
with the total number of Shares which are authorized and issued
and outstanding, but shall have no obligation when recording the
issuance of Shares, except as otherwise set forth herein, to
monitor the issuance of such Shares or to take cognizance of any
laws relating to the issue or sale of such Shares, which functions
shall be the sole responsibility of the Funds.
(2) The Company shall establish and maintain records pursuant to
applicable rules of the SEC relating to the services to be
performed hereunder in the form and manner as agreed to by the
Trust or the Fund to include a record for each Shareholder's
account of the following:
(a) Name, address and tax identification number (and whether
such number has been certified);
(b) Number of Shares held;
(c) Historical information regarding the account, including
dividends paid and date and price for all transactions;
(d) Any stop or restraining order placed against the account;
(e) Information with respect to withholding in the case of a
foreign account or an account for which withholding is
required by the Internal Revenue Code;
(f) Any dividend reinvestment order, plan application, dividend
address and correspondence relating to the current
maintenance of the account;
(g) Certificate numbers and denominations for any Shareholder
holding certificates;
(h) Any information required in order for the Company to perform
the calculations contemplated or required by this Agreement.
(3) The Company shall preserve any such records required to be
maintained pursuant to the rules of the SEC for the periods
prescribed in said rules as specifically noted below. Such record
retention shall be at the expense of the Company, and such records
may be inspected by the Fund at reasonable times. The Company may,
at its option at any time, and shall forthwith upon the Fund's
demand, turn over to the Fund and cease to retain in the Company's
files, records and documents created and maintained by the Company
pursuant to this Agreement, which are no longer needed by the
Company in performance of its services or for its protection. If
not so turned over to the Fund, such records and documents will be
retained by the Company for six years from the year of creation,
during the first two of which such documents will be in readily
accessible form. At the end of the six year period, such records
and documents will either be turned over to the Fund or destroyed
in accordance with Proper Instructions.
E. Confirmations/Reports
(1) The Company shall furnish to the Fund periodically the following
information:
(a) A copy of the transaction register;
(b) Dividend and reinvestment blotters;
(c) The total number of Shares issued and outstanding in each
state for "blue sky" purposes as determined according to
Proper Instructions delivered from time to time by the Fund
to the Company;
(d) Shareholder lists and statistical information;
(e) Payments to third parties relating to distribution
agreements, allocations of sales loads, redemption fees, or
other transaction- or sales-related payments;
(f) Such other information as may be agreed upon from time to
time.
(2) The Company shall prepare in the appropriate form, file with the
Internal Revenue Service and appropriate state agencies, and, if
required, mail to Shareholders, such notices for reporting
dividends and distributions paid as are required to be so filed
and mailed and shall withhold such sums as are required to be
withheld under applicable federal and state income tax laws, rules
and regulations.
(3) In addition to and not in lieu of the services set forth above,
the Company shall:
(a) Perform all of the customary services of a transfer agent,
dividend disbursing agent and, as relevant, agent in
connection with accumulation, open-account or similar plans
(including without limitation any periodic investment plan
or periodic withdrawal program), including but not limited
to: maintaining all Shareholder accounts, mailing
Shareholder reports and Prospectuses to current
Shareholders, withholding taxes on accounts subject to
back-up or other withholding (including non-resident alien
accounts), preparing and filing reports on U.S. Treasury
Department Form 1099 and other appropriate forms required
with respect to dividends and distributions by federal
authorities for all Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders
for all purchases and redemptions of Shares and other
conformable transactions in Shareholder accounts, preparing
and mailing activity statements for Shareholders, and
providing Shareholder account information; and
(b) provide a system which will enable the Fund to monitor the
total number of Shares of each Fund sold in each state
("blue sky reporting"). The Fund shall by Proper
Instructions (i) identify to the Company those transactions
and assets to be treated as exempt from the blue sky
reporting for each state and (ii) verify the classification
of transactions for each state on the system prior to
activation and thereafter monitor the daily activity for
each state. The responsibility of the Company for each
Fund's state blue sky registration status is limited solely
to the recording of the initial classification of
transactions or accounts with regard to blue sky compliance
and the reporting of such transactions and accounts to the
Fund as provided above.
F. Other Duties
(1) The Company shall answer correspondence from Shareholders relating
to their Share accounts and such other correspondence as may from
time to time be addressed to the Company;
(2) The Company shall prepare Shareholder meeting lists, mail proxy
cards and other material supplied to it by the Fund in connection
with Shareholder Meetings of each Fund; receive, examine and
tabulate returned proxies, and certify the vote of the
Shareholders;
(3) The Company shall establish and maintain facilities and procedures
for safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any; and for the preparation or
use, and for keeping account of, such certificates, forms and
devices.
ARTICLE 3. DUTIES OF THE TRUST.
A. Compliance
The Trust or Fund assume full responsibility for the preparation,
contents and distribution of their own Prospectus and for complying with
all applicable requirements of the Securities Act of 1933, as amended
(the "1933 Act"), the 1940 Act and any laws, rules and regulations of
government authorities having jurisdiction.
B. Share Certificates
The Trust shall supply the Company with a sufficient supply of blank
Share certificates and from time to time shall renew such supply upon
request of the Company. Such blank Share certificates shall be properly
signed, manually or by facsimile, if authorized by the Trust and shall
bear the seal of the Trust or facsimile thereof; and notwithstanding the
death, resignation or removal of any officer of the Trust authorized to
sign certificates, the Company may continue to countersign certificates
which bear the manual or facsimile signature of such officer until
otherwise directed by the Trust.
C. Distributions
The Fund shall promptly inform the Company of the declaration of any
dividend or distribution on account of any Fund's shares.
ARTICLE 4. COMPENSATION AND EXPENSES.
A. Annual Fee
For performance by the Company under this Agreement, the Trust and/or
the Fund agree to pay the Company an annual maintenance fee as agreed
upon between the parties and as may be added to or amended from time to
time. Such fees may be changed from time to time subject to written
agreement between the Trust and the Company. Pursuant to information in
the Fund Prospectus or other information or instructions from the Fund,
the Company may sub-divide any Fund into sub-components for
recordkeeping purposes. The Company will charge the Fund the same fees
for each such sub-component the same as if each were a Fund.
B. Reimbursements
In addition to the fee paid under Article 4A above, the Trust and/or
Fund agree to reimburse the Company for out-of-pocket expenses or
advances incurred by the Company for the items agreed upon between the
parties, as may be added to or amended from time to time. In addition,
any other expenses incurred by the Company at the request or with the
consent of the Trust and/or the Fund will be reimbursed by the
appropriate Fund.
C. Payment
The compensation and out-of-pocket expenses shall be accrued by the Fund
and shall be paid to the Company no less frequently than monthly, and
shall be paid daily upon request of the Company. The Company will
maintain detailed information about the compensation and out-of-pocket
expenses by Fund.
D. Any schedule of compensation agreed to hereunder, as may be adjusted
from time to time, shall be dated and signed by a duly authorized
officer of the Trust and/or the Funds and a duly authorized officer of
the Company.
ARTICLE 5. ASSIGNMENT OF DUTIES.
Except as provided below, no right or obligation under this Agreement may be
assigned by either party without the written consent of the other party.
A. This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
B. The Company may without further consent on the part of the Trust
subcontract for the performance hereof with any such other provider of
services which is duly registered as a transfer agent pursuant to
Section 17A(c)(1) of the Securities Exchange Act of 1934, as amended, or
any succeeding statute; provided, however, that the Company shall be as
fully responsible to the Trust for the acts and omissions of any
subcontractor as it is for its own acts and omissions; or
C. The Company shall upon instruction from the Trust subcontract for the
performance hereof with an Agent selected by the Trust; provided,
however, that the Company shall in no way be responsible to the Trust
for the acts and omissions of the Agent.
ARTICLE 6. DOCUMENTS.
A. In connection with the appointment of the Company under this Agreement,
the Trust shall file with the Company the following documents:
(1) A copy of the Charter and By-Laws of the Trust and all amendments
thereto;
(2) A copy of the resolution of the Board of the Trust authorizing this
Agreement;
(3) Specimens of all forms of outstanding Share certificates of the
Trust or the Funds in the forms approved by the Board of the Trust
with a certificate of the Secretary of the Trust as to such
approval;
(4) All account application forms and other documents relating to
Shareholders accounts; and
(5) A copy of the current Prospectus for each Fund.
B. The Trust will also furnish from time to time the following documents:
(1) Each resolution of the Board of the Trust authorizing the
original issuance of each Fund's Shares;
(2) Each Registration Statement filed with the SEC and amendments
thereof and orders relating thereto in effect with respect to the
sale of Shares of any Fund;
(3) A certified copy of each amendment to the governing document and
the By-Laws of the Trust;
(4) Certified copies of each vote of the Board authorizing officers
to give Proper Instructions to agents for shareholder
recordkeeping or transfer agency services;
(5) Specimens of all new Share certificates representing Shares of
any Fund, accompanied by Board resolutions approving such forms;
(6) Such other certificates, documents or opinions which the Company
may, in its discretion, deem necessary or appropriate in the
proper performance of its duties; and
(7) Revisions to the Prospectus of each Fund.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES.
A. Representations and Warranties of the Company
The Company represents and warrants to the Trust that:
(1) It is a business trust duly organized and existing and in good
standing under the laws of the State of Delaware.
(2) It is duly qualified to carry on its business in the State of
Delaware.
(3) It is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement.
(4) All requisite proceedings have been taken to authorize it to
enter into and perform its obligations under this Agreement.
(5) It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
(6) It is in compliance with federal securities law requirements and
in good standing as a transfer agent.
B. Representations and Warranties of the Trust
The Trust represents and warrants to the Company that:
(1) It is an investment company duly organized and existing and in
good standing under the laws of its state of organization;
(2) It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform its obligations under this
Agreement;
(3) All corporate proceedings required by said Charter and By-Laws
have been taken to authorize it to enter into and perform its
obligations under this Agreement;
(4) The Trust is an open-end investment company registered under the
1940 Act; and
(5) A registration statement under the 1933 Act will be effective,
and appropriate state securities law filings have been made and
will continue to be made, with respect to all Shares of each Fund
being offered for sale.
ARTICLE 8. STANDARD OF CARE AND INDEMNIFICATION.
A. Standard of Care
The Company shall be held to a standard of reasonable care in carrying
out the provisions of this Contract. The Company shall be entitled to
rely on and may act upon advice of counsel (who may be counsel for the
Trust) on all matters, and shall be without liability for any action
reasonably taken or omitted pursuant to such advice, provided that such
action is not in violation of applicable federal or state laws or
regulations, and is in good faith and without negligence.
B. Indemnification by Trust
The Company shall not be responsible for and the Trust or Fund shall
indemnify and hold the Company, including its officers, directors,
shareholders and their agents employees and affiliates, harmless against
any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liabilities arising out of or attributable to:
(1) The acts or omissions of any Custodian, Adviser, Sub-adviser or
other party contracted by or approved by the Trust or Fund,
(2) The reliance on or use by the Company or its agents or
subcontractors of information, records and documents in proper
form which
(a) are received by the Company or its agents or subcontractors
and furnished to it by or on behalf of the Fund, its
Shareholders or investors regarding the purchase, redemption
or transfer of Shares and Shareholder account information;
(b) are received by the Company from independent pricing services
or sources for use in valuing the assets of the Funds; or
(c) are received by the Company or its agents or subcontractors
from Advisers, Sub-advisers or other third parties
contracted by or approved by the Trust or Fund for use in
the performance of services under this Agreement;
(d) have been prepared and/or maintained by the Fund or its
affiliates or any other person or firm on behalf of the Trust.
(3) The reliance on, or the carrying out by the Company or its agents
or subcontractors of Proper Instructions of the Trust or the
Fund.
(4) The offer or sale of Shares in violation of any requirement under
the federal securities laws or regulations or the securities laws
or regulations of any state that such Shares be registered in such
state or in violation of any stop order or other determination or
ruling by any federal agency or any state with respect to the
offer or sale of such Shares in such state.
Provided, however, that the Company shall not be protected by this
Article 8.B. from liability for any act or omission resulting from
the Company's willful misfeasance, bad faith, negligence or
reckless disregard of its duties of failure to meet the standard
of care set forth in 8.A. above.
C. Reliance
At any time the Company may apply to any officer of the Trust or Fund
for instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by the
Company under this Agreement, and the Company and its agents or
subcontractors shall not be liable and shall be indemnified by the Trust
or the appropriate Fund for any action reasonably taken or omitted by it
in reliance upon such instructions or upon the opinion of such counsel
provided such action is not in violation of applicable federal or state
laws or regulations. The Company, its agents and subcontractors shall be
protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures of
the officers of the Trust or the Fund, and the proper countersignature
of any former transfer agent or registrar, or of a co-transfer agent or
co-registrar.
D. Notification
In order that the indemnification provisions contained in this Article
15 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification
shall promptly notify the other party of such assertion, and shall keep
the other party advised with respect to all developments concerning such
claim. The party who may be required to indemnify shall have the option
to participate with the party seeking indemnification in the defense of
such claim. The party seeking indemnification shall in no case confess
any claim or make any compromise in any case in which the other party
may be required to indemnify it except with the other party's prior
written consent.
ARTICLE 9. TERMINATION OF AGREEMENT.
This Agreement may be terminated by either party upon one hundred twenty
(120) days' written notice to the other. Should the Trust exercise its rights to
terminate, all out-of-pocket expenses associated with the movement of records
and materials will be borne by the Trust or the appropriate Fund. Additionally,
the Company reserves the right to charge for any other reasonable expenses
associated with such termination. The provisions of Article 9 shall survive the
termination of this Agreement.
ARTICLE 10. AMENDMENT.
This Agreement may be amended or modified by a written agreement executed by
both parties.
ARTICLE 11. INTERPRETIVE AND ADDITIONAL PROVISIONS.
In connection with the operation of this Agreement, the Company and the Trust
may from time to time agree on such provisions interpretive of or in addition to
the provisions of this Agreement as may in their joint opinion be consistent
with the general tenor of this Agreement. Any such interpretive or additional
provisions shall be in a writing signed by both parties and shall be annexed
hereto, provided that no such interpretive or additional provisions shall
contravene any applicable federal or state regulations or any provision of the
Charter. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Agreement.
ARTICLE 12. GOVERNING LAW.
This Agreement shall be construed and the provisions hereof interpreted under
and in accordance with the laws of the Commonwealth of Massachusetts
ARTICLE 13. NOTICES.
Except as otherwise specifically provided herein, Notices and other writings
delivered or mailed postage prepaid to the Trust at One Beacon Street, Boston,
Massachusetts 02108, or to the Company at Federated Investors Tower, Pittsburgh,
Pennsylvania, 15222-3779, or to such other address as the Trust or the Company
may hereafter specify, shall be deemed to have been properly delivered or given
hereunder to the respective address.
ARTICLE 14. COUNTERPARTS.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original.
ARTICLE 15. LIMITATIONS OF LIABILITY OF TRUSTEES AND SHAREHOLDERS OF THE TRUST
AND THE COMPANY.
The execution and delivery of this Agreement have been authorized by the
Trustees of the Trust and the Company, and signed by an authorized officer of
each, acting as such, and neither such authorization by such Trustees nor such
execution and delivery by such officer shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally. The
obligations of this Agreement are not binding upon any of the Trustees or
Shareholders of the Trust or the Company, but bind only the appropriate property
of the Fund and the Company, as provided in their Declarations of Trust.
ARTICLE 16. MERGER OF AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject hereof whether
oral or written.
ARTICLE 17. SUCCESSOR AGENT.
If a successor agent for the Trust shall be appointed by the Trust, the
Company shall upon termination of this Agreement deliver to such successor agent
at the office of the Company all properties of the Trust held by it hereunder.
If no such successor agent shall be appointed, the Company shall at its office
upon receipt of Proper Instructions deliver such properties in accordance with
such instructions.
In the event that no written order designating a successor agent or Proper
Instructions shall have been delivered to the Company on or before the date when
such termination shall become effective, then the Company shall have the right
to deliver to a bank or trust company, which is a "bank" as defined in the 1940
Act, of its own selection, having an aggregate capital, surplus, and undivided
profits, as shown by its last published report, of not less than $2,000,000, all
properties held by the Company under this Agreement. Thereafter, such bank or
trust company shall be the successor of the Company under this Agreement.
ARTICLE 18. FORCE MAJEURE.
The Company shall have no liability for cessation of services hereunder or
any damages resulting therefrom to the Fund as a result of work stoppage, power
or other mechanical failure, natural disaster, governmental action,
communication disruption or other impossibility of performance.
ARTICLE 19. ASSIGNMENT; SUCCESSORS.
This Agreement shall not be assigned by either party without the prior
written consent of the other party, except that either party may assign to a
successor all of or a substantial portion of its business, or to a party
controlling, controlled by, or under common control with such party. Nothing in
this Article 19 shall prevent the Company from delegating its responsibilities
to another entity to the extent provided herein.
ARTICLE 20. SEVERABILITY.
In the event any provision of this Agreement is held illegal, void or
unenforceable, the balance shall remain in effect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
FUNDMANAGER PORTFOLIOS
By: /s/ Ronald M. Petnuch
Name: Ronald M. Petnuch
Title: Executive Vice President
FEDERATED SHAREHOLDER SERVICES COMPANY
By: /s/ Thomas P. Schmitt
Name: Thomas P. Schmitt
Title: Vice President
<PAGE>
FEE SCHEDULE TO AGREEMENT FOR
TRANSFER AGENCY SERVICES DATED MARCH 21, 1997
BETWEEN
FUNDMANAGER PORTFOLIOS
AND
FEDERATED SHAREHOLDER SERVICES COMPANY
I. ANNUAL MAINTENANCE CHARGE
These fees are billable on a monthly basis at the rate of 1/12 of the
annual fee. A charge is made for an account in the month that an account opens
or closes.
Annual base fee per class $20,000.00
($12,000.00 additional classes)
Per Account Charges:
Daily Accrual Funds $16.00 per account*
Periodic Accrual Funds $10.00 per account*
(Plus out-of-pocket expenses)
An additional $5.00 per account will be charged for any Fund or Class whose
accounts require CDSC processing.
II. OUT-OF-POCKET EXPENSES
Out-of-pocket expenses include but are not limited to postage (including
overnight courier service), statement stock, envelopes, telecommunication
charges (including Fax), travel, duplicating, forms, bank account charges,
supplies, microfiche, computer access charges, client specific enhancements,
12b-1 payment processing, disaster recovery, closed account fees, processing
fees (including check encoding), and expenses incurred at the specific direction
of the fund. Postage for mass mailings is due seven days in advance of the
mailing date.
III. COST OF LIVING INCREASE
The fees and expenses set forth in this Schedule may increase annually upon each
anniversary of this Agreement over the fees and expenses during the prior twelve
(12) months, as calculated under this Schedule, in an amount equal to the annual
percentage increase of the Boston, Massachusetts Consumer Price Index (not to
exceed 6% annually) as last reported by the U.S. Bureau of Labor Statistics for
the twelve months immediately preceding such anniversary; provided that, in any
event, the parties agree to review this fee schedule every twelve (12) months
from the effective date of the Agreement and may revise the fees and expenses on
such terms as they mutually agree.
IV. PAYMENT
Payment is due thirty days after the date of the invoice.
FUNDMANAGER PORTFOLIOS
By: /s/ Ronald M. Petnuch
Name: Ronald M. Petnuch
Title: Executive Vice President
FEDERATED SHAREHOLDER SERVICES COMPANY
By: /s/ Thomas P. Schmitt
Name: Thomas P. Schmitt
Title: Vice President
Exhibit 15(ii) under Form N-1A
Exhibit 1 under Item 601/Reg. S-K
AMENDED AND RESTATED MASTER DISTRIBUTION PLAN
This Distribution Plan (the "Plan") was adopted by the Board of Trustees
for FundManager Trust (the "Trust") on March 14, 1995 and amended and restated
on June 13, 1995 and November 11, 1996.
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment company Act of 1940 (the "Act") and is authorized
to issue shares of beneficial interest in separate series (or
sub-trusts)("Funds") which may be divided into one or more separate classes of
shares of beneficial interest (a "Class"); and
WHEREAS, the Trust employs Freedom Capital Management Corporation (the
"Adviser") to render investment management services with respect to the Funds as
the Trustees shall establish and designate from time to time; and
WHEREAS, the Trust employs Freedom Distributors Corp., Edgewood Services,
Inc., Tucker Anthony Incorporated and Sutro & Co. Incorporated (each a
"Distributor" and collectively, the "Distributors") to distribute the shares of
each Fund designated as the Financial Adviser Class of shares (the "Shares");
and
WHEREAS, the Trust intends to reimburse the Distributors for (1) expenses
incurred in connection with advertising and marketing the Shares and (2)
payments to broker-dealers, banks and other financial institutions, or other
intermediaries ("Service Organizations") for shareholder services and for
services rendered in the distribution of the Shares and for the provision of
certain shareholder services with respect to the Shares;
WHEREAS, the Board of Trustees determined on June 13, 1995 to divide
shares of the Funds existing as of such date into two classes, with the existing
shares to be designated as the Financial Adviser Class shares.
WHEREAS, the Board of Trustees determined to amend and restate this Plan
to reflect the designation of the existing shares as Financial Adviser Class
shares.
WHEREAS, the Board of Trustees of the Trust has determined to adopt this
Plan and has determined that there is a reasonable likelihood that the Plan will
benefit the Financial Adviser Class shareholders; and
NOW THEREFORE, the Trust adopts the Plan on the following terms and
conditions:
1. The Plan shall pertain to Financial Adviser Class shares of such Funds
as shall be designated from time to time by the Trustees of the Trust in any
Supplement to the Plan ("Supplement").
2. The Trust will reimburse the Distributors for costs and expenses
incurred in connection with the distribution and marketing of the Shares and for
to provision of certain shareholder services. Such distribution and shareholder
servicing costs and expenses would include (i) advertising by radio, television,
newspapers, magazines, brochures, sales literature, direct mail or any other
form of advertising, (ii) expenses of sales employees or agents of the
Distributors, including salary, commissions, travel and related expense, (iii)
payments to Service Organizations for services in connection with the provision
of personal services and shareholder account maintenance services and the
distribution of Shares, including fees calculated with reference to the average
daily net asset value of Shares held by shareholders who have a brokerage or
other service relationship with the Service Organization receiving such fees,
(iv) costs of printing prospectuses and other materials to be given or sent to
prospective investors (including costs and fees incurred in registering, the
Shares in the states in which it is to be sold) and (v) such other similar
services as the Trustees determine to be reasonably calculated to result in the
sale of Shares.
The Distributors will be reimbursed for such costs, expenses or payments
on a monthly basis, subject to an annual limit of the average daily net assets
of the Shares of each Fund as shall be set forth with respect to a Fund in any
Supplement to the Plan. Payments made out of or charged against the assets of
the Shares of a Fund must be in reimbursement for distribution services rendered
for or on behalf of the Shares of the Fund or for personal services or
shareholder account maintenance services rendered to the Fund's financial
Adviser Class shareholders. The Distributors may also receive and retain
brokerage commissions with respect to portfolio transactions for the Fund to the
extent not prohibited by the fund's Prospectus or Statement of Additional
Information.
3. As consideration for providing (or causing to be provided) personal
services and shareholder account maintenance services, the Distributors may pay
Service Organizations a fee at an annual rate up to 0.25% of the average daily
net assets attributable to the Shares of a Fund for its then-current fiscal
year, and be reimbursed therefore under the terms of this Plan.
4. This Trust shall pay all costs and expenses in connection with
preparation , printing and distribution of the Trust's prospectuses to current
shareholders and the implementation and operation of the Plan.
5. The Amendment and Restatement of the Plan shall not require shareholder
approval with respect to a Fund whose shareholders previously voted to approve
the Plan. The Plan shall not take effect with respect to Shares of a Fund until
it has been approved by a vote of at lest a majority (as defined in the Act) of
the Shares of the Fund had the Trustees have executed a Supplement as set forth
in paragraph 1. With respect to the submission of the Plan for such a vote, it
shall have been effectively approved with respect to the Shares of a Fund if a
majority of the shares of each Fund votes for approval of the Plan,
notwithstanding that the matter has not been approved by a majority of the
outstanding voting securities of the Trust.
6. The Plan shall not take effect with respect to Shares of a Fund until
it has been approved, together with any related Agreements and Supplements, by
votes of a majority of both (a) the Board of Trustees of the Trust and (b) those
Trustees of the Trust who are not "interested persons" of the Trust (as defined
in the Act) and have no direct or indirect financial interest in the operation
of the Plan or any agreements related to it (the "Plan Trustees"), cast in
person at a meeting (or meetings) called for the purpose of voting on the Plan
and such related agreement.
7. The Plan shall continue in effect so long as such continuance is
specifically approved at least annually in the manner provided for approval of
the Plan in paragraph 6.
8. Any person authorized to direct the disposition of monies paid or
payable by the Trust pursuant to the Plan or any related agreement shall provide
to the Trust's Board of Trustees, and the Board shall review, at least
quarterly, a written report of the amounts so expended and the purposes for
which such expenditures were made.
9. Any agreement related to the Plan shall be in writing and shall
provide: (a) that such agreement may be terminated with respect to a Fund at any
time, without payment of any penalty, by vote of a majority of the Plan Trustees
or by vote of a majority of the outstanding voting securities of a Fund, on not
more than 60 days' written notice to any other party to the agreement, and (b)
that such agreement shall terminate automatically in the event of its
assignment.
10. The Plan may be terminated at any time, without payment of any
penalty, with respect to each Fund, by vote of a majority of the Plan Trustees
or by vote of a majority of the outstanding voting securities of that Fund.
11. The Plan may be amended at any time by the Board of Trustees provided
that (a) any amendment to increase materially the costs which a Fund may bear
for distribution of Shares pursuant to the Plan shall be effective only upon
approval by a vote of a majority of the shares of the Fund and (b) any material
amendments of the terms of the Plan shall become effective only upon approval as
provided in paragraph 6 hereof.
12. While the Plan is in effect, the selection and nomination of Trustees
who are not interested persons (as defined in the Act) of the Trust shall be
committed to the discretion of the Trustees who are not interested persons of
the Trust.
13. The Trust shall preserve copies of the Plan and any related agreements
and all reports made pursuant to paragraph 8 hereof for a period of not less
than six years from the date of the Plan, the agreements or such report, as the
case may be, the first two years of which shall be in an easily accessible
place.
<PAGE>
FUNDMANAGER TRUST
AMENDED AND RESTATED DISTRIBUTION PLAN SUPPLEMENT
AGGRESSIVE GROWTH FUND
WHEREAS, FundManager Trust (the "Trust") is an open-end investment company
organized as a Delaware business trust which consists of separate series (or
sub-trusts) of shares of beneficial interest which may be divided into one or
more classes of shares of beneficial interest as may be established and
designated by the Trustees from time to time; and
WHEREAS, the Trust has adopted a Master Distribution Plan ("Plan") which
provides that the Plan shall pertain to the Financial Adviser Class shares
("Financial Adviser Class Shares") of such series as shall be designated from
time to time by the Trustees of the Trust in any Supplement to the Plan; and
WHEREAS, Aggressive Growth Fund (the "Fund") is a separate series of the
Trust with a class of shares of beneficial interest designated as Financial
Adviser Class Shares.
NOW, THEREFORE, the Trustees of the Trust hereby take the following
actions, subject to the conditions set forth:
1. As provided in paragraph 1 of the Plan, the Trust hereby adopts
the Plan on behalf the Financial Adviser Class Shares of the Fund, the terms and
conditions of such Plan being hereby incorporated herein by reference;
2. The term "Fund" as used in the Plan shall refer to the Fund;
and
3. As provided in paragraph 2 of the Plan, the Distributors shall be
reimbursed for such costs, expenses or payments as set forth in the Plan,
subject to an annual limit with respect to the Fund of 0.50% of the fund's
average daily net assets attributable to its Financial Adviser Class Shares.
Adopted March 14, 1995 and amended and restated June 13, 1995 and November 11,
1996.
<PAGE>
FUNDMANAGER TRUST
AMENDED AND RESTATED DISTRIBUTION PLAN SUPPLEMENT
GROWTH FUND
WHEREAS, FundManager Trust (the "Trust") is an open-end investment company
organized as a Delaware business trust which consists of separate series (or
sub-trusts) of shares of beneficial interest which may be divided into one or
more classes of shares of beneficial interest as may be established and
designated by the Trustees from time to time; and
WHEREAS, the Trust has adopted a Master Distribution Plan ("Plan") which
provides that the Plan shall pertain to the Financial Adviser Class shares
("Financial Adviser Class Shares") of such series as shall be designated from
time to time by the Trustees of the Trust in any Supplement to the Plan; and
WHEREAS, Growth Fund (the "Fund") is a separate series of the Trust with a
class of shares of beneficial interest designated as Financial Adviser Class
Shares.
NOW, THEREFORE, the Trustees of the Trust hereby take the following
actions, subject to the conditions set forth:
1. As provided in paragraph 1 of the Plan, the Trust hereby adopts
the Plan on behalf the Financial Adviser Class Shares of the Fund, the terms and
conditions of such Plan being hereby incorporated herein by reference;
2. The term "Fund" as used in the Plan shall refer to the Fund; and
3. As provided in paragraph 2 of the Plan, the Distributors shall be
reimbursed for such costs, expenses or payments as set forth in the Plan,
subject to an annual limit with respect to the Fund of 0.50% of the fund's
average daily net assets attributable to its Financial Adviser Class Shares.
Adopted March 14, 1995 and amended and restated June 13, 1995 and November 11,
1996.
<PAGE>
FUNDMANAGER TRUST
AMENDED AND RESTATED DISTRIBUTION PLAN SUPPLEMENT
GROWTH & INCOME FUND
WHEREAS, FundManager Trust (the "Trust") is an open-end investment company
organized as a Delaware business trust which consists of separate series (or
sub-trusts) of shares of beneficial interest which may be divided into one or
more classes of shares of beneficial interest as may be established and
designated by the Trustees from time to time; and
WHEREAS, the Trust has adopted a Master Distribution Plan ("Plan") which
provides that the Plan shall pertain to the Financial Adviser Class shares
("Financial Adviser Class Shares") of such series as shall be designated from
time to time by the Trustees of the Trust in any Supplement to the Plan; and
WHEREAS, Growth & Income Fund (the "Fund") is a separate series of the
Trust with a class of shares of beneficial interest designated as Financial
Adviser Class Shares.
NOW, THEREFORE, the Trustees of the Trust hereby take the following
actions, subject to the conditions set forth:
1. As provided in paragraph 1 of the Plan, the Trust hereby adopts
the Plan on behalf the Financial Adviser Class Shares of the Fund, the terms and
conditions of such Plan being hereby incorporated herein by reference;
2. The term "Fund" as used in the Plan shall refer to the Fund; and
3. As provided in paragraph 2 of the Plan, the Distributors shall be
reimbursed for such costs, expenses or payments as set forth in the Plan,
subject to an annual limit with respect to the Fund of 0.50% of the fund's
average daily net assets attributable to its Financial Adviser Class Shares.
Adopted March 14, 1995 and amended and restated June 13, 1995 and November 11,
1996.
<PAGE>
FUNDMANAGER TRUST
AMENDED AND RESTATED DISTRIBUTION PLAN SUPPLEMENT
BOND FUND
WHEREAS, FundManager Trust (the "Trust") is an open-end investment company
organized as a Delaware business trust which consists of separate series (or
sub-trusts) of shares of beneficial interest which may be divided into one or
more classes of shares of beneficial interest as may be established and
designated by the Trustees from time to time; and
WHEREAS, the Trust has adopted a Master Distribution Plan ("Plan") which
provides that the Plan shall pertain to the Financial Adviser Class shares
("Financial Adviser Class Shares") of such series as shall be designated from
time to time by the Trustees of the Trust in any Supplement to the Plan; and
WHEREAS, Bond Fund (the "Fund") is a separate series of the Trust with a
class of shares of beneficial interest designated as Financial Adviser Class
Shares.
NOW, THEREFORE, the Trustees of the Trust hereby take the following
actions, subject to the conditions set forth:
1. As provided in paragraph 1 of the Plan, the Trust hereby adopts
the Plan on behalf the Financial Adviser Class Shares of the Fund, the terms and
conditions of such Plan being hereby incorporated herein by reference;
2. The term "Fund" as used in the Plan shall refer to the Fund; and
3. As provided in paragraph 2 of the Plan, the Distributors shall be
reimbursed for such costs, expenses or payments as set forth in the Plan,
subject to an annual limit with respect to the Fund of 0.50% of the fund's
average daily net assets attributable to its Financial Adviser Class Shares.
Adopted March 14, 1995 and amended and restated June 13, 1995 and November 11,
1996.
<PAGE>
FUNDMANAGER TRUST
AMENDED AND RESTATED DISTRIBUTION PLAN SUPPLEMENT
MANAGED TOTAL RETURN FUND
WHEREAS, FundManager Trust (the "Trust") is an open-end investment company
organized as a Delaware business trust which consists of separate series (or
sub-trusts) of shares of beneficial interest which may be divided into one or
more classes of shares of beneficial interest as may be established and
designated by the Trustees from time to time; and
WHEREAS, the Trust has adopted a Master Distribution Plan ("Plan") which
provides that the Plan shall pertain to the Financial Adviser Class shares
("Financial Adviser Class Shares") of such series as shall be designated from
time to time by the Trustees of the Trust in any Supplement to the Plan; and
WHEREAS, Managed Total Return Fund (the "Fund") is a separate series of
the Trust with a class of shares of beneficial interest designated as Financial
Adviser Class Shares.
NOW, THEREFORE, the Trustees of the Trust hereby take the following
actions, subject to the conditions set forth:
1. As provided in paragraph 1 of the Plan, the Trust hereby adopts
the Plan on behalf the Financial Adviser Class Shares of the Fund, the terms and
conditions of such Plan being hereby incorporated herein by reference;
2. The term "Fund" as used in the Plan shall refer to the Fund; and
3. As provided in paragraph 2 of the Plan, the Distributors shall be
reimbursed for such costs, expenses or payments as set forth in the Plan,
subject to an annual limit with respect to the Fund of 0.50% of the fund's
average daily net assets attributable to its Financial Adviser Class Shares.
Adopted March 14, 1995 and amended and restated June 13, 1995 and November 11,
1996.
Exhibit 18(ii) under Form N-1A
Exhibit 99 under Item 601/Reg. S-K
FUNDMANAGER PORTFOLIOS
(FORMERLY FUNDMANAGER TRUST)
MULTIPLE CLASS EXPENSE ALLOCATION PLAN
ADOPTED PURSUANT TO RULE 18F-3
WHEREAS, FundManager Portfolios (formerly FundManager Trust), a Delaware
business trust (the "Trust"), engages in business as an open-end management
investment company and is registered as such under the Investment Company Act of
1940, as amended (the "Act"); and
WHEREAS, the Trust is authorized to (i) issue shares of beneficial
interest ("Shares") in separate series, with the Shares of each such series
representing the interests in a separate portfolio of securities and other
assets, and (ii) divide the Shares within each series into two or more classes;
and
WHEREAS, the Trust has established five portfolio series as the date
hereof: Aggressive Growth Portfolio (formerly Aggressive Growth Fund), Growth
Portfolio (formerly Growth Fund), Growth & Income Portfolio (formerly Growth &
Income Fund), Bond Portfolio (formerly Bond Fund), and Managed Total Return
Portfolio (formerly Managed Total Return Bond Fund) (such portfolios being
referred to collectively herein as the "Initial Series" -- such series, together
with all series subsequently established by the Trust and made subject to this
Plan, being referred to herein individually as a "Series" and collectively as
the "Series"); and
WHEREAS, (i) Shares of each of the Aggressive Growth Portfolio, Growth
Portfolio, Growth & Income Portfolio and Income Portfolio series of the trust
have been divided into two Classes, such Classes established and designated as
"Financial Adviser Class" shares and "No-Load Class" shares and (ii) Shares of
the Managed Total Return Portfolio series of the Trust have been established and
designated as "Financial Adviser Class" shares; and
WHEREAS, the Board of Trustees as a whole, and the Trustees who are not
interested persons of the Trust (as defined in the Act) (the "Qualified
Trustees"), having determined in the exercise of their reasonable business
judgment that this Plan is in the best interest of each class of each Initial
Series, each Initial Series as a whole, and the Trust as a whole, have
accordingly approved this Plan.
NOW, THEREFORE, the Trust hereby adopts this Plan in accordance with Rule
18f-3 under the Act, on the following terms and conditions:
1. CLASS DIFFERENCES. Each class of Shares of Initial Series shall
represent interests in the same portfolio of investments of such Initial Series
and shall be identical in all respects, except that each class shall differ with
respect to: (i) arrangements for shareholder services or the distribution of
Shares, or both, and the allocation of expenses, as provided for in Sections 2
and 3 of this Plan; (ii) the exclusive right of a class to vote on certain
matters relating to the Master Distribution Plan adopted by the Trust pursuant
to Rule 12b-1 under the Act with respect to such class, if any, (iii) such
differences relating to purchase minimums, sales charges, eligible investors,
conversion features and exchange privileges as may be set forth in the
prospectuses and statements of additional information of the Initial Series, as
the same may be amended or supplemented from time to time (the "Prospectuses"
and "SAIs," respectively); and (iv) the designation of each class of Shares.
2. DIFFERENCES IN DISTRIBUTION AND RELATED SERVICES. The Financial Adviser
Class Shares and No-Load Class Shares of each Initial Series shall have a
different arrangement for shareholder services or the distribution of Shares, or
both, as follows:
Financial Adviser Class Shares shall be subject to an annual distribution
and servicing fee of up to 0.50% of the nets assets of the Initial Series
allocable to such Financial Adviser Class Shares. Of such amount, up to .25% of
the net assets of the Initial Series allocable to Financial Adviser Class Shares
may be paid to broker-dealers or other financial institutions who advise
shareholders regarding the purchase, sale, or retention of Financial Adviser
Class Shares and who provide shareholders with personal services and account
maintenance services. The distribution and servicing fee may be used to finance
activities in accordance with Rule 12b-1 under the Act and the Master
Distribution Plan adopted by the Trust pursuant to Rule 12b-1. No-Load Class
Shares shall not be subject to any distribution and servicing fees or sales
charges.
Effective as of November 11, 1996, Edgewood Services, Inc., Freedom
Distributors Corp., Tucker Anthony Incorporated ("Tucker Anthony") and Sutro &
Co. Incorporated ("Sutro") shall serve as co-distributors of the Initial Series.
However, No-Load Class Shares shall be offered only by Tucker Anthony and Sutro
to participants in the FundManager Advisory Program or to employees through
tax-deferred retirement plans of Tucker Anthony, Sutro and Freedom Capital
Management Corp.
3. ALLOCATION OF EXPENSES.
(a) CLASS EXPENSES. Expenses relating to different arrangements for
shareholder services or the distribution of Shares, or both, shall be allocated
to and paid by that class. A class may pay a different share of other expenses,
not including advisory or custodial fees or other expenses related to the
management of a Series' assets, if such expenses are actually incurred in a
different degree than other classes. For example, expenses incurred in
connection with any meeting of shareholders of a particular class, and
litigation expenses incurred with respect to matters affecting only a particular
class shall be allocated to that class.
(b) OTHER ALLOCATIONS. All other expenses of a Series shall be
allocated to each class on the basis of the net asset value of that class in
relation to the net asset value of the Series. Notwithstanding the foregoing,
the distributor or adviser of a Series may waive or reimburse the expenses of a
specific class or classes to the extent permitted under Rule 18f-3 under the
Act.
4. TERM AND TERMINATION.
(a) INITIAL SERIES. This Plan shall become effective with respect to
each Class of a Initial Series as of the later of (i) the date on which a
Registration Statement with respect to the Financial Adviser Class Shares and
No-Load Class Shares of such Initial Series becomes effective under the
Securities Act of 1933, as amended, or (ii) the date on which such class of the
Initial Series commences offering its Shares to the public, and shall continue
in effect with respect to such class of Shares (subject to Section 4(c) hereof)
until terminated in accordance with the provisions of Section 4(c) hereof.
(b) ADDITIONAL SERIES OR CLASSES. This Plan shall become effective
with respect to any class of an Initial Series other than the Financial Adviser
Class Shares and No-Load Class Shares of the Initial Series, and respect to each
additional Series or class thereof established by the Trust after the date
hereof and made subject to this Plan, upon commencement of the initial public
offering thereof, provided that the Plan has previously been approved with
respect to such additional Series or class by votes of a majority of both (i)
the Board of Trustees of the Trust and (ii) the Qualified Trustees, and shall
continue if effect with respect to each such additional Series or class (subject
to Section 4(c) hereof) until terminated in accordance with the provisions of
Section 4(c) hereof. An addendum hereto setting forth any specific and different
terms of such additional Series or classes shall be attached to this Plan.
(c) TERMINATION. This Plan may be terminated at any time with
respect to the Trust or any Series or class thereof, as the case may be, by vote
of a majority of both the Trustees of the Trust and the Qualified Trustees. The
Plan may remain in effect with respect to a Series or class thereof even if it
has been terminated in accordance with the Section 4(c) with respect to one or
more other Series or classes of the Trust.
5. AMENDMENTS. Any material amendment to this Plan shall require the
affirmative vote of a majority of both the Trustees of the Trustees of the Trust
and the Qualified Trustees.
Dated: June 13, 1995, as amended January 24, 1997 (to reflect board action on
December 10, 1996)
