Post-Effective Amendment
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 485BPOS Post-Effective Amendment #3 40 205K
2: EX-1 Underwriting Agreement 34 173K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 7 33K
Liquidation or Succession
4: EX-5 Opinion re: Legality 5 19K
5: EX-6 Opinion re: Discount on Capital Shares 8 27K
6: EX-9 Voting Trust Agreement 3 12K
7: EX-11 Consent of Independent Public Accountants 1 6K
8: EX-16 Statement of Additional Information 1 6K
EX-6 — Opinion re: Discount on Capital Shares
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EXHIBIT 6
DISTRIBUTION AGREEMENT
February 12, 1996
Fred Alger & Company, Incorporated
30 Montgomery Street
Jersey City, NJ 07302
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Spectra Fund (the "Fund"), an unincorporated
business trust organized under the laws of the Commonwealth of Massachusetts,
has agreed that Fred Alger & Company, Incorporated ("Alger") shall be, for the
period of this Agreement, the distributor of shares of beneficial interest of
the Fund.
1. SERVICES AS DISTRIBUTOR
1.1 Alger will act as agent for the distribution of each series of
shares of beneficial interest of the Fund (the "Shares") covered by the
registration statement, prospectus and statement of additional information then
in effect statement of additional information then in effect (the "Registration
Statement") under the Securities Act of 1933, as amended (the "1933 Act"), and
the Investment Company Act of 1940, as amended (the "1940 Act").
1.2 Alger agrees to use its best efforts to solicit orders for the sale
of the Shares at the public offering price, as determined in accordance with the
Registration Statement, and will undertake such advertising and promotion as it
believes is reasonable in connection with such solicitation. Alger agrees to
bear all selling expenses, including the cost of printing prospectuses and
statements of additional information and distributing them to prospective
shareholders.
1.3 All activities by Alger as distributor of the Shares shall comply
with all applicable laws, rules and regulations, including, without limitation,
all rules and regulations made or adopted by Securities Exchange Act of 1934.
1.4 Alger will provide one or more persons during normal business hours
to respond to telephone inquiries concerning the Fund.
1.5 Alger acknowledges that, whenever in the judgment of the Fund's
officers such action is warranted for any reason, including, without limitation,
market, economic or political conditions, those officers may decline to accept
any orders for, or make any sales of, the Shares until such time as those
officers deem it advisable to accept such orders and to make such sales.
2. DUTIES OF THE FUND
2.1 The Fund agrees to execute at its own expense any and all
documents, to furnish any and all information and to take any other actions that
may be reasonably necessary in connection with the qualification of the Shares
for sale in those states that Alger may designate.
2.2 The Fund shall furnish from time to time, for use in connection
with the sale of the Shares, such information reports with respect to the Fund
and the Shares as Alger may reasonably request, all of which shall be signed by
one or more of the Fund's duly authorized officers; and the Fund warrants that
the statements contained in any such reports, when so signed by one or more of
the Fund's officers, shall be true and correct. The Fund shall also furnish
Alger upon request with: (a) annual audits of the Fund's books and accounts made
by independent public accountants regularly retained by the Fund, (b)
semi-annual unaudited financial statements pertaining to the Fund, (c) quarterly
earnings statements prepared by the Fund, (d) a monthly itemized list of the
securities in each Portfolio, (e) monthly balance sheets as soon as practicable
after the end of each month and (f) from time to time such additional
information regarding the Fund's financial condition as Alger may reasonably
request.
3. REPRESENTATIONS AND WARRANTIES
The Fund represents to Alger that all registration statements,
prospectuses and statements of additional information filed by the Fund with the
SEC under the 1933 Act and the 1940 Act with respect to the Shares have been
prepared in conformity
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with the requirements of the 1933 Act, the 1940 Act and the rules and
regulations of the SEC thereunder. As used in this Agreement the terms
"registration statement", "prospectus" and "statement of additional information"
shall mean any registration statement, prospectus and statement of additional
information filed by the Fund with the SEC and any amendments and supplements
thereto that at any time shall have been filed with the SEC. The Fund represents
and warrants to Alger that any registration statement, prospectus and statement
of additional information, when such registration statement becomes effective,
will include all statements required to be contained therein in conformity with
the 1933 Act, the 1940 Act and the rules and regulations of the SEC; that all
statements of fact contained in any registration statement, prospectus or
statement of additional information will be true and correct when such
registration statement becomes effective; and that neither any registration
statement nor any prospectus or statement of additional information when such
registration statement becomes effective will include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser of the
Shares. Alger may, but shall not be obligated to, propose from time to time such
amendment or amendments to any registration statement and such supplement or
supplements to any prospectus or statement of additional information as, in the
light of future developments, may, in the opinion of Alger's counsel, be
necessary or advisable. If the Fund shall not propose such amendment or
amendments and/or supplement or supplements within fifteen days after receipt by
the Fund of a written request from Alger to do so, Alger may, at its option,
terminate this Agreement. The Fund shall not file any amendment to any
registration statement or supplement to any prospectus or statement of
additional information without giving Alger reasonable notice thereof in
advance; provided, however, that nothing contained in this Agreement shall in
any way limit the Fund's right to file at any time such amendments to any
registration statement and/or supplements to any prospectus or statement of
additional information, of whatever character, as the Fund may deem advisable,
such right being in all respects absolute and unconditional.
4. INDEMNIFICATION
4.1 The Fund authorizes Alger to use any prospectus or statement of
additional information furnished by the Fund from time to time, in connection
with the sale of the Fund's shares. The Fund agrees to indemnify, defend and
hold Alger, its several officers and trustees, and any person who controls Alger
within the meaning of Section 15 of the 1933 Act, free and harmless from and
against any and all claims, demands, liabilities and expenses
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(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) that Alger,
its officers and trustees, or any such controlling person, may incur under the
1933 Act, the 1940 Act or common law or otherwise, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
any registration statement, any prospectus or any statement of additional
information, or arising out of or based upon any omission or alleged omission to
state a material fact required to be stated in any registration statement, any
prospectus or any statement of additional information, or necessary to make the
statements in any of them not misleading; provided, however, that the Fund's
agreement to indemnify Alger, its officers or trustees, and any such controlling
person shall not be deemed to cover any claims, demands, liabilities or expenses
arising out of or based upon any statements or representations made by Alger or
its representatives or agents other than such statements and representations as
are contained in any registration statement, prospectus or statement of
additional information and in such financial and other statements as are
furnished to Alger pursuant to paragraph 2.2 hereof; and further provided that
the Fund's agreement to indemnify Alger and the Fund's representations and
warranties hereinbefore set forth in paragraph 3 shall not be deemed to cover
any liability to the Fund or its shareholders to which Alger would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of Alger's reckless disregard of its
obligations and duties under this Agreement. The Fund's agreement to indemnify
Alger, its officers and trustees, and any such controlling person, as aforesaid,
is expressly conditioned upon the Fund's being notified of any action brought
against Alger, its officers or trustees, or any such controlling person, such
notification to be given by letter or by telegram addressed to the Fund at its
principal office in New York, New York and sent to the Fund by the person
against whom such action is brought, within ten days after the summons or other
first legal process shall have been served. The failure so to notify the Fund of
any such action shall not relieve the Fund from any liability that the Fund may
have to the person against whom such action is brought by reason of any such
untrue or alleged untrue statement or omission or alleged omission otherwise
than on account of the Fund's indemnity agreement contained in this paragraph
4.1. The Fund will be entitled to assume the defense of any suit brought to
enforce any such claim, demand or liability, but, in such case, such defense
shall be conducted by counsel of good standing chosen by the Fund and approved
by Alger. In the event the Fund elects to assume the defense of any such suit
and retain counsel of good standing approved by Alger, the defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by any of them; but in case the Fund does not
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elect to assume the defense of any such suit, or in case Alger does not approve
of counsel chosen by the Fund, the Fund will reimburse Alger, its officers and
trustees, or the controlling person or persons named as defendant or defendants
in such suit, for the fees and expenses of any counsel retained by Alger or
them. The Fund's indemnification agreement contained in this paragraph 4.1 and
the Fund's representations and warranties in this Agreement shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of Alger, its officers and trustees, or any controlling person, and
shall survive the delivery of any of the Fund's shares. This agreement of
indemnity will inure exclusively to Alger's benefit, to the benefit of its
several officers and trustees, and their respective estates, and to the benefit
of the controlling persons and their successors. The Fund agrees to notify Alger
promptly of the commencement of any litigation or proceedings against the Fund
or any of its officers or trustees in connection with the issuance and sale of
any of the Shares.
4.2 Alger agrees to indemnify, defend and hold the Fund, its several
officers and trustees, and any person who controls the Fund within the meaning
of Section 15 of the 1933 Act, free and harmless from and against any and all
claims, demands, liabilities and expenses (including the costs of investigating
or defending such claims, demands or liabilities and any counsel fees incurred
in connection therewith) that the Fund, its officers or trustees or any such
controlling person may incur under the 1933 Act, the 1940 Act or common law or
otherwise, but only to the extent that such liability or expense incurred by the
Fund, its officers or trustees or such controlling person resulting from such
claims or demands shall arise out of or be based upon (a) any unauthorized sales
literature, advertisements, information, statements or representations or (b)
any untrue or alleged untrue statement of a material fact contained in
information furnished in writing by Alger to the Fund and used in the answers to
any of the items of the registration statement or in the corresponding
statements made in the prospectus or statement of additional information, or
shall arise out of or be based upon any omission or alleged omission to state a
material fact in connection with such information furnished in writing by Alger
to the Fund and required to be stated in such answers or necessary to make such
information not misleading. Alger's agreement to indemnify the Fund, its
officers and trustees, and any such controlling person, as aforesaid, is
expressly conditioned upon Alger's being notified of any action brought against
the Fund, its officers or trustees, or any such controlling person, such
notification to be given by letter or telegram addressed to Alger at its
executive office in New York, New York and sent to Alger by the person against
whom such action is brought, within ten days after the summons or other first
legal process shall have
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been served. Alger shall have the right of first control of the defense of such
action, with counsel of its own choosing, satisfactory to the Fund, if such
action is based solely upon such alleged misstatement or omission on Alger's
part, and in any other event the Fund, its officers or trustees or such
controlling person shall each have the right to participate in the defense or
preparation of the defense of any such action. The failure so to notify Alger of
any such action shall not relieve Alger from any liability that Alger may have
to the Fund, its officers or trustees, or to such controlling person by reason
of any such untrue or alleged untrue statement or omission or alleged omission
otherwise than on account of Alger's indemnity agreement contained in this
paragraph 4.2. Alger agrees to notify the Fund promptly of the commencement of
any litigation or proceedings against Alger or any of its officers or trustees
in connection with the issuance and sale of any of the Shares.
5. EFFECTIVENESS OF REGISTRATION
None of the Shares shall be offered by either Alger or the Fund under
any of the provisions of this Agreement and no orders for the purchase or sale
of the Shares hereunder shall be accepted by the Fund if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the 1933
Act or if and so long as a current prospectus as required by Section 5(b)(2) of
the 1933 Act is not on file with the SEC; provided, however, that nothing
contained in this paragraph 5 shall in any way restrict or have an application
to or bearing upon the Fund's obligation to redeem its shares from any
shareholder in accordance with the provisions of the Fund's prospectus,
statement of additional information or articles of incorporation.
6. NOTICE TO ALGER
The Fund agrees to advise Alger immediately in writing:
(a) of any request by the SEC for amendments to the
registration statement, prospectus or statement of additional
information then in effect or for additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement, prospectus
or statement of additional information then in effect or the initiation
of any proceeding for that purpose;
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(c) of the happening of any event that makes untrue any
statement of a material fact made in the registration statement,
prospectus or statement of additional information then in effect or
that requires the making of a change in such registration statement,
prospectus or statement of additional information in order to make the
statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendment to
any registration statement, prospectus or statement of additional
information which may from time to time be filed with the SEC.
7. TERM OF AGREEMENT
This Agreement shall continue until October 31, 1997 and thereafter
shall continue automatically for successive annual persons ending on October 31
of each year, provided such continuance is specifically approved at least
annually by (a) the Fund's Board of Trustees or (b) a vote of a majority (as
defined in the 1940 Act) of the Fund's outstanding voting securities, provided
that in either event the continuance is also approved by a majority of the
Trustees of the Fund who are not interested persons (as defined in the 1940 Act)
of any party to this Agreement, by vote cast in person at a meeting called for
the purpose of voting on such approval. This Agreement is terminable, without
penalty, on sixty days' written notice, by the Fund's Board of Trustees or by
vote of the holders of a majority of the Fund's shares, or on ninety days'
written notice, by Alger. This Agreement will also terminate automatically in
the event of its assignment (as defined in the 1940 Act and the rules
thereunder).
8. REPRESENTATION BY THE FUND
The Fund represents that a copy of its Agreement and Declaration of
Trust, dated July 5, 1995, together with all amendments thereto, is on file in
the office of the Secretary of the Commonwealth of Massachusetts.
9. LIMITATION OF LIABILITY
This Agreement has been executed on behalf of the Fund by the
undersigned officer of the Fund in his capacity as an officer of the Fund. The
obligations of this Agreement shall be binding upon the assets and property of
he Fund only and shall not be binding upon any trustee, officer or shareholder
of the Fund individually.
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10. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws (except the conflict of law rules) of the State of New York.
If the foregoing is in accordance with your understanding, kindly
indicate your acceptance by signing and returning the enclosed copy hereof.
Very truly yours,
SPECTRA FUND
By: /s/ Gregory S. Duch
---------------------------------
GREGORY S. DUCH
AUTHORIZED OFFICER
Accepted and Agreed:
FRED ALGER & COMPANY, INCORPORATED
By: /s/ Gregory S. Duch
-------------------------------------
GREGORY S. DUCH
AUTHORIZED OFFICER
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Dates Referenced Herein and Documents Incorporated by Reference
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