Exhibit (e)(1)
CALAMOS INVESTMENT TRUST
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
AGREEMENT made as of September 24, 2003, between CALAMOS
FINANCIAL SERVICES, INC., a corporation organized under the laws of the State of
Illinois and having its principal office and place of business in Naperville,
Illinois (the "Distributor"), and CALAMOS INVESTMENT TRUST, a Massachusetts
business trust having its principal office and place of business in Naperville,
Illinois (the "Trust"), which offers shares of beneficial interest in different
series representing interests in different portfolios of assets (each series
being referred to herein as a "Fund").
WITNESSETH:
In consideration of the agreements herein contained and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the parties, it is agreed:
1. APPOINTMENT OF DISTRIBUTOR. The Trust hereby appoints Distributor as
its exclusive agent to sell and distribute Class A Shares, Class B Shares, Class
C Shares and Class I Shares (collectively "Shares") of each Fund at the offering
price thereof as from time to time determined in the manner herein provided.
Distributor hereby accepts such appointment and agrees during the term of this
Distribution Agreement to provide the services and to assume the obligations
herein set forth. The Trust agrees that it will not, without Distributor's
consent, sell or agree to sell any Shares otherwise than through Distributor,
except that (a) the Trust may itself sell Shares as an investment to the
trustees, officers, directors and bona fide full-time employees of the Trust,
Distributor and the Trust's investment adviser; and (b) the Trust may issue
Shares in connection with a merger, consolidation or acquisition of assets on
such basis as may be authorized or permitted under the Investment Company Act of
1940; provided that in no event as to any of the foregoing exceptions shall the
Shares be issued and sold at less than the net asset value thereof.
2. BASIS OF SALE OF SHARES. Distributor does not agree to sell any
specific number of Shares. Shares will be sold by Distributor as agent for the
Trust only against orders therefor. Distributor will not purchase Shares from
anyone other than the Trust except as agent for the Trust.
3. OFFERING PRICE. All Shares offered for sale by the Distributor shall
be offered for sale at a price per share (the "Offering Price") equal to (a) the
net asset value per share of the
Fund (determined in the manner set forth in the Declaration of Trust of the
Trust) plus (b) in the case of Class A Shares, except as set forth in the then
current Prospectus, a sales charge applicable to Shares, which shall be the
percentage of the Offering Price of such Shares as set forth in the Fund's then
current effective Prospectus, and, in the case of the Class B and Class C
Shares, as set forth below. The Offering Price, if not an exact multiple of one
cent, shall be adjusted to the nearest cent.
4. DISTRIBUTION FEES AND CONTINGENT DEFERRED SALES CHARGES.
(a) CLASS B SHARES. In accordance with the Amended and Restated
Distribution Plan as amended effective September 24, 2003 (the "Plan"), the
Trust in respect of each Fund shall pay to the Distributor or, at the
Distributor's direction, to a third party, monthly in arrears on or prior to the
third business day of the following calendar month, a fee (the "Class B
Distribution Fee") equal to the average daily net assets of Class B Shares
multiplied by that portion of 0.75% which the number of days in the month bears
to 365. The Trust in respect of each Fund agrees to withhold from redemption
proceeds of the B Shares, any contingent deferred sales charge ("CDSC") payable
with respect to the B Shares, as provided in such Fund's Prospectus, and to pay
the same over to the Distributor or, at the Distributor's direction, to a third
party or such party's designee, at the time the redemption proceeds are payable
to the holder of such shares redeemed. Payment of these CDSC amounts to the
Distributor is not contingent upon the adoption or continuation of any Plan.
The Distributor shall be considered to have performed all services so
as to entitle it to the right to the payment of the Class B Distribution Fee and
the right to payment of the CDSCs with respect to each Class B Share upon the
settlement date of the purchase of such Class B Share, so long as, with respect
to the Class B Distribution Fee, the Plan with regard to such Class B Shares
continues pursuant to its terms.
The provisions set forth in Section 4 of the Plan (in effect on the
date hereof) are hereby incorporated by reference into this Section 4(a) with
the same force and effect as if set forth herein in their entirety.
(b) CLASS C SHARES. In accordance with the Plan, the Trust in respect
of each Fund shall pay to the Distributor or, at the Distributor's direction, to
a third party, monthly in arrears on or prior to the third business day of the
following calendar month, a fee (the "Class C Distribution Fee") equal to the
average daily net assets of Class C Shares multiplied by that portion of 0.75%
which the number of days in the month bears to 365. The Trust in respect of each
Fund agrees to withhold from redemption proceeds of the C Shares, any CDSC
payable with respect to the C Shares, as provided in such Fund's Prospectus, and
to pay the same over to the Distributor or, at the Distributor's direction, to a
third party or such party's designee, at the time the redemption proceeds are
payable to the holder of such shares redeemed. Payment of these CDSC amounts to
the Distributor is not contingent upon the adoption or continuation of any Plan.
The Distributor shall be considered to have performed all services so
as to entitle it to the right to the payment of the Class C Distribution Fee
with respect to the first year following issuance of each Class C Share and the
right to payment of the CDSCs with respect to each Class C Share upon the
settlement date of the purchase of such Class C Share, so long as, with respect
to the Class C Distribution Fee, the Plan with regard to such Class C Shares
continues pursuant to its term.
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The provisions set forth in Section 4 of the Plan (in effect on the
date hereof) are hereby incorporated by reference into this Section 4(b) with
the same force and effect as if set forth herein in their entirety.
(c) PAYMENTS.
(i) The Trust will not take any action to waive or
change any CDSC in respect to the Class B or C Shares of any
Fund, the date of original issuance of which occurs on or
prior to the taking of such action, except as provided in the
Fund's prospectus or statement of additional information on
the date such Class B or Class C Share was issued, without the
consent of the Distributor and its assigns, and nothing will
terminate the Distributor's right to the CDSCs (including
without limitation a Complete Termination, as defined in
Section 4(iii) of the Plan) with respect to such shares.
(ii) Except as provided in Section 4(ii) of the Plan,
the Fund's obligation to pay the Distribution Fees and CDSCs
payable in respect of the Class B or C Shares of any Fund to
the Distributor shall be absolute and unconditional and shall
not be subject to any dispute, offset, counterclaim or any
defense whatsoever, at law or equity, including, without
limitation, any of the foregoing based on the insolvency or
bankruptcy of the Distributor.
5. SERVICE FEES. The Trust in respect of each Fund and Class of shares
shall pay to the Distributor, monthly in arrears on or prior to the third
business day of the following calendar month, a fee for personal shareholder
services or recordkeeping (the "Service Fee") at the rate described in the
applicable current prospectus of such Fund and Class at the time of such
payment.
6. MANNER OF OFFERING. Distributor will conform to the securities laws
of any jurisdiction in which it sells, directly or indirectly, any Shares.
Distributor also agrees to furnish to the Trust sufficient copies of any
agreements, plans or sales literature it intends to use in connection with any
sales of Shares in adequate time for the Trust to file and clear them with the
proper authorities before they are put in use, and not to use them until so
filed and cleared.
Distributor shall have the right to accept or reject orders
for the purchase of Shares. Any consideration which Distributor may receive in
connection with a rejected purchase order will be returned promptly to the
prospective purchaser. The Trust or its transfer agent or shareholder servicing
agent is authorized to confirm sales of Shares on behalf of the Distributor. The
Trust shall register or cause to be registered all Shares sold by Distributor
pursuant to the provisions hereof in such name or names and amounts as
Distributor may request from time to time and the Trust shall issue or cause to
be issued certificates evidencing such Shares for delivery to Distributor or
pursuant to Distributor's direction if and to the extent that the Trust
contemplates the issuance of such share certificates. All Shares, when so issued
and paid for, shall be fully paid and nonassessable.
7. SECURITIES LAWS. The Trust has delivered to Distributor a copy of
the current Prospectus relating to Shares. The Trust agrees that it will use its
best efforts to continue the effectiveness of the Trust's Registration Statement
under the Securities Act of 1933. The Trust
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further agrees to prepare and file any amendments to its Registration Statement
as may be necessary and any supplemental data in order to comply with the
Securities Act of 1933. The Trust has already registered under the Investment
Company Act of 1940 as an investment company, and it will use its best efforts
to maintain such registration and to comply with the requirements of said Act.
At Distributor's request, the Trust will take such steps as
may be necessary and feasible to qualify Shares for sale in states, territories
or dependencies of the United States of America, in the District of Columbia and
in foreign countries, in accordance with the laws thereof, and to renew or
extend any such qualification; provided, however, that the Trust shall not be
required to qualify Shares or to maintain the qualification of Shares in any
state, territory, dependency, district or country where it shall deem such
qualification disadvantageous to the Trust.
Distributor agrees that:
(a) Neither Distributor nor any of Distributor's officers will
take any long or short position in the Shares, but this provision shall
not prevent Distributor or Distributor's officers from acquiring Shares
for investment purposes only;
(b) Distributor shall furnish to the Trust any pertinent
information required to be inserted with respect to Distributor as
Distributor within the purview of the Securities Act of 1933 in any
reports or registration required to be filed with any governmental
authority; and
(c) Distributor will not make any representations inconsistent
with the Registration Statement or Prospectus(es) of the Fund filed
under the Securities Act of 1933, as in effect from time to time.
8. ALLOCATION OF EXPENSES.
(a) The Trust, either directly or through its investment
adviser, will be responsible for, and shall pay the expenses of:
(i) providing all necessary services, including fees
and disbursements of counsel, related to the preparation,
setting in type, printing and filing of any registration
statement and/or prospectus(es) and statement of additional
information required under the Securities Act of 1933, as
amended, or under state securities laws, covering its Shares,
and all amendments and supplements thereto, the mailing of any
such prospectus(es) and statement of additional information to
existing shareholders, and preparing, setting in type,
printing and mailing periodic reports to existing
shareholders;
(ii) the cost of all registration or qualification
fees;
(iii) the cost of preparing temporary and permanent
share certificates for Shares;
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(iv) all the Federal and state (if any) issue and/or
transfer taxes payable upon the issue by or transfer from the
Trust to the Distributor of any and all Shares distributed
hereunder.
(b) The Distributor shall bear all sales, promotion or
distribution expenses in connection with the distribution of Shares and
shall be the sole judge of the extent to which sales or promotion
expenses shall be incurred. Expenses incurred in complying with laws
regulating the issue or sale of securities shall not be deemed to be
sales, promotion or distribution expenses. Distributor agrees that,
after the prospectus(es), statement of additional information and
periodic reports have been set in type, it will bear the expense of
printing and distributing any copies thereof which are to be used in
connection with the offering of Shares to investors. Distributor
further agrees that it will bear the expenses of preparing, printing
and distributing any other literature used by Distributor or furnished
by it for use in connection with the offering of the Shares for sale to
the public.
(c) The Trust will be responsible for, and shall pay the
expenses of, maintaining shareholder accounts and furnishing or causing
to be furnished to each shareholder a statement of his account.
9. DISTRIBUTOR IS INDEPENDENT CONTRACTOR. Distributor shall be an
independent contractor. Distributor is responsible for its own conduct, for the
employment, control and conduct of its agents and employees and for injury to
such agents or employees or to others through its agents or employees.
Distributor assumes full responsibility for its agents and employees under
applicable statutes and agrees to pay all employer taxes thereunder.
10. TERM OF CONTRACT. This Distribution Agreement shall go into effect
on the date hereof and shall continue in effect until November 29, 2002, and
thereafter for successive periods of one year each if such continuance is
approved at least annually thereafter (i) either by an affirmative vote of a
majority of the outstanding Shares or by the Trustees, (ii) in either case by a
majority of the Trustees who are not interested persons of the Distributor or
(otherwise than as Trustees) of the Trust, cast in person at a meeting called
for the purpose of voting on such approval. Written notice of discontinuance of
this Distribution Agreement may be given by one party hereto to the other upon
not less than 60 days' notice.
11. ASSIGNMENT. This Distribution Agreement may not be assigned by
Distributor and shall automatically terminate in the event of an attempted
assignment by Distributor; provided, however, that Distributor may employ or
enter into agreements with such other person, persons, corporation, or
corporations, as it shall determine in order to assist it in carrying out this
Distribution Agreement, and nothing herein shall prohibit the assignment, sale
or pledge by Distributor of its rights to receive Class B Distribution Fees,
Class C Distribution Fees or the CDSC with respect to the Class B Shares or
Class C Shares.
12. INDEMNIFICATION BY DISTRIBUTOR. Distributor agrees to indemnify and
hold harmless the Trust or any other person who has been, is, or may hereafter
be an officer, Trustee or employee of the Trust against any loss, damage or
expense reasonably incurred by any of them in connection with any claim or in
connection with any action, suit, or proceeding to which any of them may be a
party, which arises out of or is alleged to arise out of or is based upon any
untrue statement or alleged untrue statement of a material fact, or the omission
or alleged omission to state a material fact necessary to make the statements
made not
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misleading, on the part of Distributor or any agent or employee of Distributor
or any other person for whose acts Distributor is responsible or is alleged to
be responsible, such as any dealer or person through whom sales are made
pursuant to an agreement with Distributor, unless such statement or omission was
made in reliance upon written information furnished by the Trust. The term
"expenses" for purposes of this and the next paragraph includes attorneys fees
and amounts paid in satisfaction of judgments or in settlements which are made
with Distributor's consent. The foregoing rights of indemnification shall be in
addition to any other rights to which the Trust or a Trustee may be entitled as
a matter of law.
13. INDEMNIFICATION BY TRUST. The Trust agrees to indemnify and hold
harmless Distributor and each person who has been, is, or may hereafter be an
officer, director, employee or agent of Distributor against any loss, damage or
expense reasonably incurred by any of them in connection with any claim or in
connection with any action, suit or proceeding to which any of them may be a
party, which arises out of or is alleged to arise out of or is based upon any
untrue or alleged untrue statement of material fact, or the omission or alleged
omission to state a material fact necessary to make the statements therein not
misleading, contained in a registration statement or prospectus, or any
amendment or supplement thereto, unless such statement or omission was made in
reliance upon written information furnished by Distributor. The foregoing rights
of indemnification shall be in addition to any other rights to which Distributor
may be entitled as a matter of law. Nothing contained herein shall relieve
Distributor of any liability to the Trust or its shareholders to which
distributor would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of its duties or reckless
disregard of its obligations and duties hereunder.
14. NON-EXCLUSIVE AGREEMENT. The services of Distributor to the Trust
hereunder shall not be deemed to be exclusive, and Distributor shall be free to
(a) render similar services to, and act as underwriter or distributor in
connection with the distribution of shares of, other investment companies, and
(b) engage in any other businesses and activities from time to time.
15. AMENDMENT. This Distribution Agreement may be amended at any time
by mutual agreement in writing of the parties hereto, provided that any such
amendment is approved by a majority of the Trustees who are not interested
persons of the Distributor or by the holders of a majority of the outstanding
Shares or Funds affected.
16. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Illinois.
17. LIMITATION OF LIABILITY. It is expressly agreed that the
obligations of the Trust hereunder shall not be binding upon any of the
Trustees, shareholders, nominees, officers, agents or employees of the Trust,
personally, but shall bind only the assets and property of the Trust as provided
in the Declaration of Trust of the Trust. The execution and delivery of this
Agreement have been authorized by the Trustees and shareholders of the Trust and
signed by an authorized officer of the Trust, acting as such, and neither such
authorization by the Trustees and shareholders 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, but shall bind only the
assets and property of the Trust as provided in its Declaration of Trust.
18. TERMINATION OF PRIOR AGREEMENT. All prior Distribution Agreements
between the parties are hereby terminated.
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IN WITNESS WHEREOF, this Distribution Agreement has been
executed for the Distributor and the Trust by their duly authorized officers, as
of the date first set forth above.
CALAMOS FINANCIAL SERVICES, INC.
By /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
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Title: Executive Vice President,
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General Counsel and Secretary
ATTEST:
By
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Name:
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Title:
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CALAMOS INVESTMENT TRUST
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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