Exhibit (e)(4)
AMENDED AND RESTATED
XXXXX XXXXXX INVESTMENT TRUST
DISTRIBUTION AGREEMENT
This AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the "Agreement") made as
of this 23rd day of January, 1999 between XXXXX XXXXXX INVESTMENT TRUST, a
Massachusetts business trust (the "Trust"), and XXXXX XXXXXX INVESTMENTS L.L.C.,
a Delaware limited liability company (the "Distributor");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Trust is an open-end, diversified, management investment
company registered under the Investment Company Act of 1940 (the "1940 Act"),
the units of beneficial interest ("Shares") of which are registered under the
Securities Act of 1933 (the "1933 Act"); and
WHEREAS, the Trust is authorized to issue Shares in one or more separate
series with each such series representing the interests in a separate portfolio
of securities and other assets (each series, a "Portfolio" and all such series
together with any other series hereinafter created, the "Portfolios");
WHEREAS, the Trust currently offers Shares in two Portfolios, the Xxxxx
Xxxxxx Growth Fund Portfolio and the Xxxxx Xxxxxx Income Fund Portfolio and,
commencing on June 1, 1999, will offer Shares in a third Portfolio, the Xxxxx
Xxxxxx Money Market Fund Portfolio;
WHEREAS, the Trust and the Distributor entered into a Distribution
Agreement dated August 1, 1988 (the "Original Agreement") and now wish to amend
and restate the Original Agreement; and
WHEREAS, the Trust desires to continue to retain the Distributor as the
principal distributor for Shares of the Portfolios and the Distributor is
willing to continue to act in such capacity;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. The Trust hereby appoints the Distributor as its exclusive agent for
the distribution of its Shares of beneficial interest. Such Shares may be
distributed by the Distributor in any state or jurisdiction where they may be
legally offered.
2. The Distributor hereby accepts such appointment and agrees that it
will use its best efforts to sell the Shares. The Distributor may offer Shares
through one or more of its subsidiaries that are licensed to sell Shares, and
through registered representatives of selected broker-dealer firms
which are members of the National Association of Securities Dealers, Inc. and
which have entered into selling agreements with the Distributor (the "Firms").
3. The Trust agrees to execute such documents and to furnish such
information as may be reasonably necessary to register or qualify the Shares for
sale in the states or jurisdictions which the Distributor may reasonably request
(it being understood that the Trust shall not be required without its consent to
qualify to do business in any jurisdiction or to comply with any requirement
which in its opinion is unduly burdensome).
4. The Trust, on behalf of its Portfolios, will pay or cause to be paid:
(a) expenses of any registration or qualification of the Shares for sale under
the federal securities laws and the securities laws of any state or other
jurisdiction in which the Shares shall be sold; (b) the expenses of any reports
or acts required by law in connection with such registration or qualification;
and (c) the expenses incidental to the issuance of the Shares, such as issue
taxes, and fees of the transfer agent. In addition, the Trust, on behalf of its
Portfolios, will pay or cause to be paid, expenses incurred in connection with
the preparation, printing and distribution of any report or communication to
Shareholders in their capacity as such.
5. The Distributor will pay all expenses related to its registration or
qualification as a broker-dealer under federal, state or other applicable law
and, except as set forth in Section 4 above, all expenses related to the
distribution of the Shares other than: (a) expenses which a Portfolio of the
Trust may bear pursuant to any "Distribution Plan and Agreement" Pursuant to
Rule 12b-1 under the 1940 Act between the Distributor and the Trust; (b)
expenses which one or more of the Firms may bear pursuant to any agreements
between such Firms and the Distributor; or (c) costs which are reimbursable
under any other agreement in effect from time to time between the Trust and the
Distributor, including the Shareholder Service Agreement dated July 1, 1988 as
from time to time amended.
6. Shares of any Portfolio offered for sale or sold by the Distributor
shall be so offered or sold at a price per share determined in accordance with
the then current Prospectus relating to the sale of such Shares except as
departure from such prices shall be permitted by the rules and regulations of
the Securities and Exchange Commission ("SEC"); provided, however, that any
public offering price for the Shares shall be the net asset value per Share plus
a sales charge in the amount, if any, set forth in the then current Prospectus
of the Trust relating to such Shares. The net asset value per Share shall be
determined in the manner and at the times set forth in the then current
Prospectus of the Trust relating to such Shares.
The price the Trust shall receive for all Shares purchased from it shall be
the net asset value used in determining the public offering price applicable to
the sale of such Shares. The excess, if any, of the sales price over the net
asset value of the Shares sold by the Distributor as agent shall be retained by
the Distributor as a commission for its services hereunder. The Distributor may
allow discounts, commissions, fees or other concessions to Firms, and may allow
them to others in its discretion, in such amounts as the Distributor shall
determine from time to time. Except as may be
2
otherwise determined by the Distributor and the Trust from time to time as
provided in the then current Prospectus, such discounts, commissions, fees or
other concessions shall be uniform to all Firms.
The Distributor will require each Firm to conform to the provisions hereof
and the Registration Statement (and related Prospectus) at the time in effect
with respect to the public offering price of the Shares, and neither the
Distributor nor any such Firms shall withhold the placing of purchase orders so
as to make a profit thereby.
7. (a) The Trust agrees, as long as the Shares of any Portfolio may
legally be issued, to fill all orders confirmed by the Distributor in accordance
with the provisions of this Agreement. However, the Trust reserves the right to
suspend or withdraw the offering of Shares of any Portfolio of the Trust at any
time in its absolute discretion, subject to applicable laws, rules and
regulations.
(b) The Distributor shall order Shares from the Trust only to the
extent that it shall have received purchase orders therefor. The Distributor
will not make, or authorize any Firms or others to make, any short sales of the
Shares.
(c) The Distributor, as agent of and for the account of the Trust,
may repurchase Shares at such prices and upon such terms and conditions as shall
be specified in the current Prospectus of the Trust.
(d) The Distributor shall comply with all applicable laws, rules and
regulations, and with the Trust's Declaration of Trust, Bylaws and Registration
Statement insofar as any of the foregoing relate to its activities hereunder.
(e) The Trust and the Distributor shall agree upon procedures
relating to the sale of Shares, payment therefor, delivery of confirmations and
other related matters.
8. Notwithstanding the Distributor's appointment as exclusive agent for
distribution of the Shares, the Trust in its absolute discretion may: (a) issue
Shares in connection with the acquisition of assets or shares or securities of
another trust, corporation or entity, or in connection with a merger or
consolidation with any other trust, corporation or entity, as and to the extent
permitted by the Declaration of Trust and any applicable laws; (b) issue or sell
Shares directly to the shareholders of its Portfolios upon such terms and
conditions and for such consideration, if any, as it may determine, whether in
connection with the distribution of subscription or purchase rights, the payment
or reinvestment of dividends or distributions, or otherwise; or (c) issue or
sell Shares at net asset value to the shareholders of any other investment
company, for which the Distributor shall act as a distributor, who wish to
exchange all or a portion of their investment in shares of such other investment
company for Shares of any Portfolio of the Trust.
3
9. (a) The Trust agrees to file from time to time such registration
statements and amendments thereto as may be required under the federal
securities laws or by the rules and regulations of the SEC thereunder. Any such
registration statement, as from time to time amended, relating to the Trust,
which may be declared effective by the SEC, is herein referred to as the
"Registration Statement," and any prospectus and statement of additional
information relating to the Trust as a part of the Registration Statement are
referred to as the "Prospectus" and "SAI," respectively.
(b) The Trust will furnish to the Distributor from time to time its
current Prospectus, SAI and such other information with respect to the Trust,
its Portfolios or its Shares as the Distributor may reasonably request for use
in connection with the sale of the Shares.
(c) The Trust authorizes the Distributor in connection with the sale
or arranging for the sale of the Shares to give only such information and to
make only such statements or representations as are contained in the Trust's
current Prospectus or SAI or in sales literature or advertisements furnished or
approved by the Trust. The Trust shall not be responsible in any way for any
other information, statements or representations given or made by the
Distributor, its employees, agents or representatives, or any of the selected
broker-dealer firms which have entered into selling agreements with the
Distributor.
10. (a) The Trust agrees to indemnify and hold harmless the Distributor,
and any person who controls the Distributor within the meaning of Section 15 of
the 1933 Act, against any and all losses, claims, damages and liabilities
(including reasonable legal and other expenses of defending any actions) arising
out of: (i) any untrue or alleged untrue statement of a material fact contained
in its Registration Statement, Prospectus, SAI or in any sales literature or
advertisements furnished or approved by the Trust, and utilized by the
Distributor; or (ii) any omission or alleged omission to state in the foregoing
documents the material facts required to be stated or necessary to make the
statements therein not misleading, unless such untrue or alleged untrue
statement or omission or alleged omission of fact was made in conformity with
information given to the Trust by the Distributor specifically for use in such
documents.
(b) The Distributor agrees to indemnify and hold harmless the Trust
and any person who controls the Trust within the meaning of Section 15 of the
1933 Act and each officer and Trustee of the Trust to the same extent and in the
same manner as the Trust has agreed to indemnify the Distributor as outlined in
the preceding paragraph, but only with respect to information given to the Trust
by the Distributor specifically for use in the Trust's Registration Statement,
Prospectus, SAI, sales literature or advertising. The Distributor also agrees to
indemnify and hold harmless the Trust against any and all losses, claims,
damages and liabilities (including reasonable legal and other expenses of
defending any actions) arising out of or based upon any acts or deeds of the
Distributor (including any employee, agent or sales representative of the
Distributor) which are outside the scope of the Distributor's authority pursuant
to this Agreement.
4
(c) The indemnity agreements in this Section 10 shall remain
operative and in full force and effect regardless of the expiration or
termination of this Agreement but only with respect to statements made,
omissions or actions occurring prior to such expiration or termination.
(d) Nothing contained herein shall relieve either party of any
liability to the other or to the Trust's shareholders to which they would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence, in the performance of their duties or by reason of their reckless
disregard of their obligations and duties under this Agreement.
11. This Agreement shall remain in full force and effect until July 31,
2000. It may be continued thereafter from year to year provided that such
continuance is specifically approved at least annually in a manner consistent
with the 1940 Act.
12. (a) Either party may terminate this Agreement with respect to any or
all Portfolios of the Trust at any time, without the payment of any penalty, on
not less than 30 days written notice to the other party. The Trust's decision to
terminate this Agreement may be reached by vote of a majority of the Board of
Trustees, including a majority of the Trustees who are not "interested persons"
of the Trust, as that term is defined by the 1940 Act, or by vote of a "majority
of the outstanding voting securities" of the affected Portfolios, as that term
is defined by the 1940 Act. In addition, without prejudice to any other remedies
of the Trust, the Trust may terminate this Agreement with respect to any or all
Portfolios of the Trust at any time in its absolute discretion immediately upon
any failure by the Distributor to fulfill its obligations hereunder.
(b) Termination of this Agreement with respect to any Portfolio shall
in no way affect the continued validity of this Agreement or the performance
thereunder with respect to any other Portfolios.
(c) This Agreement shall automatically terminate in the event of its
assignment (as defined in the 1940 Act).
13. (a) This Agreement may be amended by mutual consent of the parties.
(b) Where the effect of a requirement of the 1940 Act, which is
reflected in any provision of this Agreement, is relaxed by a rule, regulation,
order or change of interpretive position by the SEC, whether of special or
general application, such provision shall be deemed to incorporate the effect of
such rule, regulation, order or change of interpretive position.
14. Any notice under this Agreement shall be given in writing, addressed
and delivered, or mailed postpaid, to the other party at the principal office of
such party. Until further notice to the other party, it is agreed that the
address of both the Trust and the Distributor is 000 X. Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000.
5
15. Nothing contained in this Agreement shall prevent the Distributor, or
any affiliated person of the Distributor, from rendering distribution services
to other investment companies; acting as distributor to other persons, firms or
corporations; or engaging in other business activities.
16. The Trustees of the Trust and the shareholders of each Portfolio shall
not be liable for any obligations of the Trust or any Portfolio under this
Agreement, and the Distributor or any other person, in asserting rights or
claims under this Agreement, shall look only to the assets and property of the
Trust or such Portfolio in settlement of such right or claim, and not to such
Trustees or shareholders.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois, except that the provisions of Paragraph 16
shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Trust and the Distributor have executed this
Agreement in the City of Chicago, Illinois on the date set forth above.
Attest: XXXXX XXXXXX INVESTMENT TRUST
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------- ------------------------
Secretary Its President
Attest: XXXXX XXXXXX INVESTMENTS L.L.C.
/s/ W. A. Xxxxxx By: /s/ Xxxxxxx X.Xxxxxxx
------------------ -----------------------
Secretary Its Chief Executive Officer
6
