Amended and Restated
Underwriting Agreement
Between
IMPACT MANAGEMENT INVESTMENT TRUST
IMPACT FINANCIAL NETWORK, INC.
THIS UNDERWRITING AGREEMENT is made this 28th day of January, 2002, between
Impact Management Investment Trust (the "Trust"), a Massachusetts business trust
and Impact Financial Network, Inc. ("Underwriter"), a corporation organized
under the laws of the State of Florida.
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company; and
WHEREAS, the Underwriter is engaged in the business of promoting the
distribution of the securities of investment companies, and is a member of the
National Association of Securities Dealers (the "NASD") and is registered as a
broker-dealer under the Securities Exchange Act of 1934 (the "1934 Act"); and
WHEREAS, the Trust is authorized to issue an unlimited number of shares of
beneficial interest ("Shares") in one or more classes or series, and has
registered or qualified such shares as the case may be for public offering and
distribution under the Securities Act of 1933 (the "1933 Act") and any
applicable state securities laws; and
WHEREAS, the Trust is authorized to offer for public sale one or more
distinct series of Shares of beneficial interest ("Series"), representing an
undivided interest in the assets, subject to the liabilities, allocated to that
Series and each Series having a separate investment objective and policies; and
WHEREAS, the Trust has established as separate series the portfolios listed
on appendix A to this Agreement (each a "Portfolio"); and
WHEREAS, the Trust wishes to employ the services of the Underwriter to
assist in the distribution of the Shares in accordance with applicable laws and
such Plan(s) of Distribution as the Trust may adopt; and
WHEREAS, the Underwriter wishes to provide distribution services to the
Trust as set forth below;
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties agree as follows:
1. SALES OF SHARES. During the term of this Agreement the Trust grants to
the Underwriter the right to sell on it behalf Shares of all Series of the
Trust, now or hereafter created, subject to the registration requirements of the
1933 Act, and of the laws governing the
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sale of securities in various states (the "Blue Sky Laws") under the terms and
conditions set forth herein. In connection therewith, the Underwriter (I) shall
have the right to sell, as agent on behalf of the Trust, Shares authorized for
issue and registered under the 1933 Act and applicable Blue Sky laws; and (ii)
shall sell such Shares only in compliance with applicable law, the terms set
forth in the Trust's currently effective registration statement, and in
accordance with any Plans of Distribution of the Trust for any Series, as may be
in effect from time to time, and further in compliance with any limitations
which may be imposed by the Trustees of the Trust. The Underwriter is not
obligated to sell any specific number of Shares.
2. SELLING DEALER AGREEMENTS. Subject to the supervisory authority of
the Trustees of the Trust, and on such terms as are authorized by the Trust,
the Underwriter may enter into selling dealer agreements with selected dealers
and others ("Selling Dealers") for the provision of distribution services
related to the sale of Trust Shares as well as other shareholder services as
agreed by affected parties. The Underwriter will act only as principal in
entering into such selling dealer agreements.
3. SALES OF SHARES BY THE TRUST. The rights granted to the Underwriter
shall be nonexclusive in that the Trust reserves the right to sell its Shares to
investors on applications received and accepted by the Trust. Further, the Trust
reserves the right to issue Shares in connection with (a) the merger or
consolidation of the assets of, or acquisition by the Trust through purchase or,
otherwise, with any other investment company, trust or personal holding company;
(b) the payment or reinvestment of dividends or distributions; or (c) any offer
of exchange permitted by Section 11 of the 1940 Act.
4. SHARES COVERED BY THIS AGREEMENT. This Agreement shall apply to Shares
of all Series of the Trust, Shares of all Series of the Trust held in its
treasury in the event that in the discretion of the Trust treasury Shares shall
be sold, and Shares of all series of the Trust repurchased for resale.
5. PUBLIC OFFERING PRICE. Except as otherwise noted in the Trust's
current Prospectus (the "Prospectus") or Statement of Additional Information
(the "SAI") with respect to each Series, all Shares sold to investors by the
Underwriter or the Trust will be sold at the public offering price. The Public
offering price for all accepted subscriptions will be the net asset value per
share, determined in the manner described in the Trust's current Prospectus or
SAI with respect to the applicable Series. The Trust shall in all cases receive
the net asset value per share on all sales.
6. SUSPENSION OF SALES. If and whenever the determination of net asset
value is suspended and until such suspension is terminated, no further orders
for Shares shall be processed by the Underwriter except such unconditional
orders placed with the Underwriter before it had knowledge of the suspension. In
addition, the Trust reserves the right to suspend sales and the Underwriter's
authority to process orders for Shares on behalf of the Trust if, in the
judgment of the Trust it is in the best interests of the Trust to do so.
Suspension will continue for such period as may be determined by the Trust. In
addition, the Trust and the Underwriter reserve the right to reject any purchase
order.
7. SOLICITATION OF SALES. In consideration of these rights granted to the
Underwriter, the Underwriter agrees to use all reasonable efforts, consistent
with their other business, to secure purchasers for Shares of the Trust. This
shall not prevent the Underwriter from entering into like arrangements
(including arrangements involving the payment of underwriting commissions) with
other issuers. The Underwriter agrees to use all reasonable
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efforts to ensure that taxpayer, identification numbers provided for
shareholders of the Trust are correct.
8. AUTHORIZED REPRESENTATIONS. The Underwriter is not authorized by the
Trust to give any information or to make any representations other than those
contained in the appropriate registration statements, Prospectuses or SAI's
filed with the Securities and Exchange Commission (the "SEC") under the 1933 Act
or with the states under applicable Blue Sky Laws (as those registration
statements, Prospectus and SAI's may be amended from time to time), or Contained
in shareholder reports or other materials that may be prepared by or on behalf
of the Trust for the Underwriter's use. This shall not be construed to prevent
the Underwriter from preparing and distribution, in compliance with applicable
laws and regulations, sales literature or other material as it may deem
appropriate. The Underwriter will furnish or cause to be furnished copies of
such sales literature or other material to the President of the Trust or his or
her designee and will provide that designee with reasonable opportunity to
comment on it. The Underwriter agrees to take appropriate action to cease using
such sales literature or other material to which the Trust reasonable objects as
promptly as practicable after receipt of the objection.
9. REGISTRATION OF SHARES. The Trust agrees that it will take all action
necessary to register and qualify under the 1933 Act and applicable state Blue
Sky Laws all shares which are to be made subject to any public offering or sale
(subject to the necessary approval, if any, of its shareholders) so that there
will be available for sale the number of Shares the Underwriter may reasonably
be expected to sell. The Trust shall furnish to the Underwriter copies of all
information, financial statements and other papers which the Underwriter may
reasonably request for use in connection with the distribution of Shares of each
Series of the Trust.
10. REPURCHASE OF SHARES. The Underwriter as agent for the account of the
Trust may repurchase Shares offered for resale to either of them, and redeem
such Shares at their net asset value.
11. EXPENSES, COMPENSATION AND REIMBURSEMENTS.
(a) The Trust shall pay all fees and expenses:
(i) in connection with the preparation, setting in type and
filing of any registration statement, Prospectus and SAI
under the 1933 Act, and any amendments thereto, for the
registration of its shares;
(ii) in connection with the registration and qualification of
Shares for sale in the various states in which the Board of
Trustees (the "Trustees") of the Trust shall determine it
advisable to qualify such Shares for sale (including
registering the Trust or Series as a broker or dealer or
any officer of the Trust as agent or salesperson in any
state);
(iii) of preparing, setting in type, printing and mailing any
report or other communication to shareholders of the Trust
in their capacity as such; and
(iv) of preparing, setting in type, printing and mailing
Prospectuses, SAI's, and any supplements thereto, sent to
existing shareholders.
(b) The Underwriter shall pay costs of:
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(i) printing and distributing Prospectuses, SAI's and reports
prepared for its use in connection with the offering of
Shares for sale of the public;
(ii) any other literature used in connection with such offering;
(iii) advertising in connection with such offering including, but
not limited to public relations services, sales
presentations, media charges, and preparation, printing and
mailing of advertising and sales literature; data
processing necessary to support a distribution effort;
printing and mailing prospectuses to prospective investors;
sales commissions; and distribution and shareholder
servicing activities of broker-dealers and other financial
institutions; and
(iv) filing fees required by regulatory authorities for sales
literature and advertising materials and any additional
out-of-pocket expenses incurred in connection with these
and any other costs of distribution.
(c) In addition to the services describes above, the Underwriter will
provide services including assistance in the production of
marketing and advertising materials for the sale of Share of the
Trust and the Underwriter will review them for compliance with
applicable regulatory requirements, and submit them for required
regulatory review.
(d) In connection with the services to be provided by the
Underwriter, and its costs assumed, under this Agreement, the
Underwriter shall receive from the Trust such payments as shall
be authorized to be paid by the Trust pursuant to any Plan of
Distribution adopted by the Trust in accordance with the Rule
12b-1 under the 1940 Act, and reimbursement of such expenses of
the Trust as may be paid by the Underwriter from time to time.
(e) In connection with the services to be provided by the Underwriter
under this Agreement, and payments to be made and expenses to be
incurred by the parties under this Agreement, the Underwriter
agrees to provide to the Board of Trustees of the Trust such
information as may be required to be reviewed by the Trustees
under Rule 12b-1 of the 1940 Act, including such financial
information as may be required in connection with the adoption,
supervision, or continuation of any Plan of Distribution of the
Trust under such rule, or the adoption of any budget thereunder.
12. INDEMNIFICATION OF THE TRUST. The Underwriter agrees to indemnify each
Portfolio of the Trust and the Trust against any and all litigation and other
legal proceedings of any kind of nature and against any liability, judgment,
cost, or penalty imposed as a result of such litigation or proceedings in any
way arising out of or in connection with the sale or distribution of the shares
of such Portfolio by the Underwriter. In the event of the threat or institution
of any such litigation or legal proceedings against any Portfolio, the
Underwriter shall defend such action on behalf of the Portfolio or the Trust at
the Underwriter's own expense, and shall pay any such liability, judgment, cost,
or penalty resulting therefrom, whether imposed by legal authority or agreed
upon by way of compromise and settlement; provided, however, the Underwriter
shall not be required to pay or reimburse a Portfolio for any liability,
judgment, cost, or penalty incurred as result of information supplied by, or as
the result of the omission to supply information by, the Trust to the
Underwriter, or to the Underwriter by a director, officer, or employee of the
Trust who is not an "interested person," as defined in the provisions of the
1940 Act, of the Underwriter, unless the information so supplied or omitted was
available to the
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Underwriter or the Portfolio's investment adviser without recourse to the
Portfolio or the Trust or any such person referred to above.
13. EFFECTIVENESS, TERMINATION.
(a) This agreement shall become effective as of the date first
written above, and unless terminated as provided, shall continue
in force for two (2) years from the date of its execution and
thereafter from year to year, provided continuance is approved at
least annually by either (i) the vote of a majority of the
Trustees of the Trust, or by the vote of a majority of the
outstanding voting securities of the Trust, and (ii) the vote of
a majority of those Trustees of the Trust who are not interested
persons of the Trust and who are not parties to this Agreement or
interested persons of any party, cast in person at a meeting
called for the purpose of voting on the approval.
(b) This Agreement shall automatically terminate in the event of its
assignment. As used in this Section, the terms "vote of a
majority of the outstanding voting securities," "assignment" and
"interested person" shall have the respective meanings specified
in the 1940 Act and the rules enacted thereunder as now in effect
or as hereafter amended.
(c) In addition to termination by failure to approve continuance or
by assignment, this Agreement may at any time be terminated
without the payment of any penalty: (i) by the Trust (by the vote
of a majority of the Trustees of the Trust who are not interested
persons of the Trust, or by vote of a majority of the outstanding
voting securities of the Trust or an affected series of the
Trust) upon not less than sixty (60) days written notice to the
affected party; and (ii) by the Underwriter upon not less than
sixty (60) days written notice of the Trust.
14. AMENDMENTS. The Underwriter and the Trust shall regularly consult with
each other regarding the performance of their respective obligations and the
Underwriter's compensation under the foregoing provisions. In connection
therewith, the Trust shall submit to the Underwriter at a reasonable time in
advance of filing with the SEC copies of any amended or supplemented
registration statement of the Trust (including exhibits) under the 1933 Act, and
the 1940 Act, and, a reasonable time in advance of their proposed use, copies of
any amended or supplemented forms relating to any plan, program or service
offered by the Trust. Any change in such materials that would require any change
in the Underwriter's obligations under the foregoing provisions shall be subject
to the burdened party's approval, which shall not be unreasonably withheld. In
the event that a change in such documents or in the procedures contained therein
increases the cost or potential liability to the Underwriter in performing their
obligations hereunder by more than an insubstantial amount, the Underwriter
shall be entitled to receive reasonable compensation therefore.
This Agreement may be amended at any time by mutual consent of the parties,
provided that such consent on the part of the Trust shall have been approved (i)
by the Trustees of the Trust, or by a vote of majority of the outstanding voting
securities of the Trust, and (ii) by vote of a majority of the Trustees of the
Trust who are not interested persons of the Underwriter or of the Trust cast in
person at a meeting called for the purpose of voting on such amendment.
15. NOTICE. Any notice under this Agreement shall be given in writing
addressed to the party intended to receive such notice. Any notice may be hand
delivered, or may be sent by registered or certified mail, postage prepaid, to
the receiving party, at its principal place of business.
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16. SERVERABILITY. If any provision of the Agreement shall be held or made
invalid by a court decision, statue, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
17. GOVERNING LAW. To the extent that state law has not been preempted by
the provisions of any law of the United States heretofore or hereafter enacted,
as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws of the State of
Colorado.
18. SHAREHOLDER LIABILITY. The Underwriter acknowledges that it has
received notice of and accepts the limitations of liability set forth in the
Trust's Agreement and Declaration of Trust. The Underwriter agrees that the
Trust's obligations hereunder shall be limited to the assets of the Trust, and
that the Underwriter shall have recourse solely against the assets of the Series
with respect to which the Trust's obligations hereunder relate and shall have no
recourse against the assets of any other Series or against any shareholder,
Trustee, officer, employee, or agent of the Trust.
19. MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction of effect. This Agreement may be executed in two
counterparts, each of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
IMPACT MANAGEMENT INVESTMENT TRUST
By: /s/ X.X. Xxxx
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IMPACT FINANCIAL NETWORK, INC.
By: /s/ Xxxxxxx Xxxxx
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APPENDIX A
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Impact Total Return Portfolio
IMPACT 25 Fund
IMPACT 25 Variable Fund
Xxxxxxxxx Large Cap Variable Fund
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