DISTRIBUTION AGREEMENT
BETWEEN
KALMAR POOLED INVESTMENT TRUST
AND
XXXXXX SQUARE DISTRIBUTORS, INC.
THIS DISTRIBUTION AGREEMENT is made as of the 31st day of
January, 1997, between Kalmar Pooled Investment Trust, a Delaware
business trust (the "Trust"), having its principal place of
business in Greenville, Delaware, and Xxxxxx Square Distributors,
Inc., a corporation organized under the laws of the State of
Delaware (the "Distributor"), having its principal place of
business in Wilmington, Delaware.
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 offers for sale one or more
series of shares of beneficial interest ("Series") each of which
may offer one or more sub-series (or classes) of shares;
WHEREAS, each share of a Series represents an undivided
interest in the assets, subject to the liabilities, allocated to
that Series and each Series has a separate investment objective
and investment policies;
WHEREAS, at the present time, the Trust has established two
Series, each with a single class of shares, and the Trust may
establish additional Series and/or classes in the future; and
WHEREAS, the Trust desires to avail itself of the services of
Distributor, with such assistance from its affiliates as the
latter may provide; and the Distributor is willing to furnish
such services to the Trust with respect to each of the Series
listed on Schedule A to this Agreement (each a "Fund" or
collectively "Funds"), as such Schedule shall be amended from
time to time on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained, the parties agree as follows:
1. SALE OF SHARES. The Trust grants to the Distributor the
right to sell shares of beneficial interest in all classes or
Series of the Trust, now or hereafter created, (the "Shares")
on its behalf during the term of this Agreement and subject
to the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and of the laws governing
the sale of securities in various states (the "Blue Sky
Laws") under the following terms and conditions: the
Distributor (i) shall have the right to sell, as agent on
behalf of the Trust, Shares authorized for issue and
registered under the 1933 Act; (ii) may sell Shares under
offers of exchange, if available, between and among the funds
distributed by Distributor and advised by Xxxxxx Square
Management Corporation or Wilmington Trust Company; and (iii)
shall sell such Shares only in compliance with applicable
law, the terms set forth in the Trust's currently effective
registration statement, in accordance with any plan of
distribution adopted by the Trust and in compliance with any
limitations which may be imposed by the Trustees of the
Trust.
2. SELLING AGREEMENTS. Subject to the supervisory authority of
the Trustees of, and on such terms as are authorized by, the
Trust, the Distributor may enter into agreements with
financial or investment consultants, brokers, dealers or
others ("Selling Dealers") for the provision of distribution
services related to the sale of Shares as well as other
shareholder services as agreed by the affected parties. The
Distributor will only act as principal in entering into such
agreements.
3. SALE OF SHARES BY THE TRUST. The rights granted to the
Distributor shall be non-exclusive 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, 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 issued 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 prospectuses (the "Prospectus") or Statements
of Additional Information (the "SAI") with respect to each
Series or class, all Shares sold to investors will be sold at
the public offering price. The public offering price for all
accepted subscriptions will be the net asset value per share,
plus any applicable sales charge on such shares, determined
in the manner described in the Trust's current Prospectus or
SAI with respect to the applicable Series or class.
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 Distributor except such unconditional orders placed
with the Distributor before it had knowledge of the
suspension. In addition, the Trust reserves the right to
suspend sales and the Distributor'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 Distributor
reserves the right to reject any purchase order.
7. SOLICITATION OF SALES. In consideration of these rights
granted to the Distributor, the Distributor agrees to use all
reasonable efforts, consistent with its other business, to
secure purchasers for Shares of the Trust. This shall not
prevent the Distributor from entering into like arrangements
(including arrangements involving the payment of underwriting
commissions) with other issuers. Distributor agrees to use
all reasonable efforts to ensure that taxpayer identification
numbers provided for shareholders of the Trust are correct.
8. AUTHORIZED REPRESENTATIONS. The Distributor 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 SAIs
filed with the Securities and Exchange Commission under the
1933 Act (as those registration statements, Prospectuses and
SAIs may be amended from time to time), or contained in
shareholder reports or other material that may be prepared by
or on behalf of the Trust for the Distributor's use. This
shall not be construed to prevent the Distributor from
preparing and distributing, in compliance with applicable
laws and regulations, sales literature or other material as
it may deem appropriate. The Distributor will furnish or
cause to be furnished copies of such sales literature or
other material to the President of the Trust or his designee
and will provide him with a reasonable opportunity to comment
on it. The Distributor agrees to take appropriate action to
cease using such sales literature or other material to which
the Trust reasonably objects as promptly as practicable after
receipt of the objection.
9. PORTFOLIO SECURITIES. Portfolio securities of every Series
of the Trust may be bought or sold by or through the
Distributor, and the Distributor may participate directly or
indirectly in brokerage commissions or "spreads" for
transactions in portfolio securities of any Series of the
Trust. However, all sums of money received by the
Distributor as a result of such purchases and sales or as a
result of such participation must, after reimbursement of
actual expenses of the Distributor in connection with such
activity, be paid over by the Distributor to or for the
benefit of the applicable Series.
10.REGISTRATION OF SHARES. The Trust agrees that it will take
all action necessary to register Shares under the 1933 Act
(subject to the necessary approval, if any, of its
shareholders) so that there will be available for sale the
number of Shares the Distributor may reasonably be expected
to sell. The Trust shall furnish to the Distributor copies
of all information, financial statements and other papers
which the Distributor may reasonably request for use in
connection with the distribution of Shares of each Series of
the Trust.
11.EXPENSES, COMPENSATION AND REIMBURSEMENT
(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 issue of its Shares;
(ii) in connection with filings required in connection
with the Sale of Shares for sale in the various
states in which the Board of Trustees (the
"Trustees") of the Trust shall determine it advisable
to offer 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, SAIs, and any supplements thereto, sent
to existing shareholders.
(b)The Distributor shall pay expenses of:
(i) printing and distributing Prospectuses, SAIs and
reports prepared for its use in connection with the
offering of the Shares for sale to the public;
(ii) any other literature used in connection with such
offering; and
(iii) advertising in connection with such offering.
(c)In addition to the services described above, Distributor
will provide services including assistance in the
production of marketing and advertising materials for the
sale of Shares of the Trust and their review for
compliance with applicable regulatory requirements,
entering into dealer agreements with broker-dealers to
sell Shares of the Trust and monitoring their financial
strength and contractual compliance, providing, directly
or through its affiliates certain investor support
services, personal service, and the maintenance of
shareholder accounts.
(d)In connection with the services to be provided by the
Distributor under this Agreement, the Distributor shall
receive reimbursement from the Trust's investment adviser
for fees and expenses (which may include without
limitation reimbursement for the expenses incurred
pursuant to Section 9(b) hereof) incurred pursuant to
this Agreement.
12.INDEMNIFICATION.
(a)The Trust agrees to indemnify and hold harmless the
Distributor and each of its directors and officers and
each person, if any, who controls the Distributor within
the meaning of Section 15 of the 1933 Act and Section
20(a) of the Securities Act of 1934 (the "1934 Act")
against any loss, liability, claim, damages or expense
(including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damages, or
expense and reasonable counsel fees incurred in
connection therewith) arising by reason of any person
acquiring any Shares, based upon the 1933 Act or any
other statute or common law, alleging any wrongful act of
the Trust or any of its employees or representatives, or
based upon the grounds that the registration statements,
Prospectuses, SAIs, shareholder reports or other
information filed or made public by the Trust (as from
time to time amended) included an untrue statement of a
material fact or omitted to state a material fact
required to be stated or necessary in order to make the
statements not misleading. However, the Trust does not
agree to indemnify the Distributor or hold it harmless to
the extent that the statement or omission was made in
reliance upon, and in conformity with, information
furnished to the Trust in writing by or on behalf of the
Distributor. In no case (i) is the indemnity of the
Trust in favor of the Distributor or any person
indemnified to be deemed to protect the Distributor or
any person against any liability to the Trust or its
security holders to which the Distributor or such person
would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless
disregard of its obligations and duties under this
Agreement, or (ii) is the Trust to be liable under its
indemnity agreement contained in this Section 10(a) with
respect to any claim made against the Distributor or any
person indemnified unless the Distributor or person, as
the case may be, shall have notified the Trust in writing
of the claim within a reasonable time after the summons
or other first written notification giving information of
the nature of the claim shall have been served upon the
Distributor or any such person or after the Distributor
or such person shall have received notice of service on
any designated agent. However, failure to notify the
Trust of any claim shall not relieve the Trust from any
liability which it may have to the Distributor or any
person against whom such action is brought other than on
account of its indemnity agreement contained in this
Section 10(a). The Trust shall be entitled to
participate at its own expense in the defense, or, if it
so elects, to assume the defense of any suit brought to
enforce any claims, but if the Trust elects to assume the
defense, the defense shall be conducted by counsel chosen
by it and satisfactory to the Distributor, or person or
persons, defendant or defendants in the suit. In the
event the Trust elects to assume the defense of any suit
and retain counsel, the Distributor, officers or
directors or controlling person(s) or defendant(s) in the
suit, shall bear the fees and expenses of any additional
counsel retained by them. If the Trust does not elect to
assume the defense of any suit, it will reimburse the
Distributor, officers or directors or controlling
person(s) or defendant(s) in the suit, for the reasonable
fees and expenses of any counsel retained by them. The
Trust agrees to notify the Distributor promptly of the
commencement of any litigation or proceedings against it
or any of its officers or Trustees in connection with the
issuance or sale of any of the Shares.
(b)The Distributor also covenants and agrees that it will
indemnify and hold harmless the Trust and each of the
members of its Trustees and officers and each person, if
any, who controls the Trust within the meaning of Section
15 of the 1933 Act, against any loss, liability, damages,
claim or expense (including the reasonable cost of
investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees
incurred in connection therewith) arising by reason of
any person acquiring any Shares, based upon the 1933 Act
or any other statute or common law, alleging any wrongful
act of the Distributor or any of its employees or
representatives, or alleging that the registration
statements, Prospectuses, SAIs, shareholder reports or
other information filed or made public by the Trust (as
from time to time amended) included an untrue statement
of a material fact or omitted to state a material fact
required to be stated or necessary in order to make the
statements not misleading, insofar as the statement or
omission was made in reliance upon, and in conformity
with, information furnished in writing to the Trust by or
on behalf of the Distributor. In no case (i) is the
indemnity of the Distributor in favor of the Trust or any
person indemnified to be deemed to protect the Trust or
any person against any liability to which the Trust or
such person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless
disregard of its obligations and duties under this
Agreement, or (ii) is the Distributor to be liable under
its indemnity agreement contained in this Section 10(b)
with respect to any claim made against the Trust or any
person indemnified unless the Trust or person, as the
case may be, shall have notified the Distributor in
writing of the claim within a reasonable time after the
summons or other first written notification giving
information of the nature of the claim shall have been
served upon the Trust or any such person or after the
Trust or such person shall have received notice of
service on any designated agent. However, failure to
notify the Distributor of any claim shall not relieve the
Distributor from any liability which it may have to the
Trust or any person against whom the action is brought
other than on account of its indemnity agreement
contained in this Section 10(b). In the case of any
notice to the Distributor, it shall be entitled to
participate, at its own expense, in the defense, or, if
it so elects, to assume the defense of any suit brought
to enforce any claims, but if the Distributor elects to
assume the defense, the defense shall be conducted by
counsel chosen by it and satisfactory to the Trust, to
its officers and Trustees and to any controlling
person(s) or any defendants(s) in the suit. In the event
the Distributor elects to assume the defense of any suit
and retain counsel, the Trust or controlling person(s) or
defendant(s) in the suit, shall bear the fees and
expenses of any additional counsel retained by them. If
the Distributor does not elect to assume the defense of
any suit, it will reimburse the Trust, its officers or
Trustees, controlling person(s) or defendant(s) in the
suit, for the reasonable fees and expenses of any counsel
retained by them. The Distributor agrees to notify the
Trust promptly of the commencement of any litigation or
proceedings against it in connection with the issue and
sale of any of the Shares.
13.EFFECTIVENESS, TERMINATION, ETC. This Agreement shall become
effective on the day and year first written above, and unless
terminated as provided, shall continue in force for one (1)
year from the date of its execution and thereafter from year
to year, provided continuance after the one (1) year period
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, who have
no direct or indirect financial interest in the operation of
any Plan of the Trust or any agreements related to the Plan
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. This Agreement shall
automatically terminate in the event of its assignment. As
used in this Section 12, 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. 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
by vote of a majority of the Trustees of the Trust who are
not interested persons of the Trust and who have no direct or
indirect financial interest in the operation of any Plan of
the Trust or any agreements related to the Plan, or by vote
of a majority of the outstanding voting securities of the
Trust, on not more than sixty (60) days' written notice to
the Trust. This Agreement may be terminated by the
Distributor upon not less than sixty (60) days' prior written
notice to the Trust.
14.NOTICE. Any notice under this Agreement shall be given in
writing addressed and hand delivered or sent by registered or
certified mail, postage prepaid, to the other party to this
Agreement at its principal place of business.
15.SEVERABILITY. If any provision of this Agreement shall be
held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
16.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
Delaware.
17.SHAREHOLDER LIABILITY. The Distributor is hereby expressly
put on notice of the limitation of shareholder liability as
set forth in the Agreement and Declaration of Trust of the
Trust and agrees that obligations assumed by the Trust
pursuant to this Agreement shall be limited in all cases to
the Trust and its assets, and if the liability relates to one
or more series, the obligations hereunder shall be limited to
the respective assets of such series. The Distributor
further agrees that it shall not seek satisfaction of any
such obligation from the shareholders or any individual
shareholder of a series of the Trust, nor from the Trustees
or any individual Trustee of the Trust.
18.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 or 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 written above.
KALMAR POOLED INVESTMENT TRUST
By: /s/ Ford X. Xxxxxx, Xx.
-----------------------------
Ford X. Xxxxxx, Xx., President
XXXXXX SQUARE DISTRIBUTORS, INC.
By: /s Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx, President
Acknowledgment as to
reimbursement with respect to
marketing expenses of Xxxxxx
Square Distributors, Inc. as
Distributor.
Kalmar Investment Advisers, as Investment Adviser
By: /s/ Ford X. Xxxxxx, Xx.
-----------------------
Ford X. Xxxxxx, Xx., President
Date: 7/10/97
APPENDIX A
SCHEDULE A
KALMAR POOLED INVESTMENT TRUST
FUND LISTING
Kalmar "Growth-with-Value" Small Cap Fund
Kalmar "Growth-with-Value" Micro Cap Fund
