DISTRIBUTING AGREEMENT
DISTRIBUTING AGREEMENT, dated as of July 27, 2001, between TH XXX,
XXXXXX INVESTMENT TRUST, a Massachusetts business trust (the "Trust"),
on behalf of its series TH XXX, XXXXXX EMERGING OPPORTUNITIES PORTFOLIO
(the "Fund"), and XXXXXX RETAIL MANAGEMENT, L.P., a Massachusetts
limited partnership (the "Distributor").
In consideration of the mutual agreements herein made, the parties
hereto agree as follows:
1. Exclusive Distributor. The Trust hereby agrees that the Distributor
shall be for the period of this Agreement exclusive agent for
distribution within the United States and its territories, and the
Distributor agrees to use its best efforts during such period to effect
such distribution, of shares of beneficial interest in the Fund
("Shares"); provided, however, that nothing herein shall prevent the
Fund, if it so elects, from selling or otherwise distributing its Shares
directly to any persons other than dealers. The Trust understands that
the Distributor also acts as agent for distribution of the shares of
capital stock or beneficial interests of certain open-end investment
companies which have entered into management agreements with Xxxxxx
Investments, L.L.C. and its affiliates.
2. Sales of Shares.
(a) The Shares will be offered initially at a fixed price (plus
applicable sales charges) during an offering period (the "Initial
Offering Period") that will terminate on the date specified in the
preliminary prospectus of the Fund, as the same may be amended or
supplemented during the Initial Offering Period. Sales of Shares during
the Initial Offering Period will be limited to an aggregate value of
approximately $250 million. After completion of the Initial Offering
Period, the Trust may commence a continuous offering of the Shares at a
price equal to their net asset value plus applicable sales charges, as
disclosed in the Fund's then current Prospectus (as defined below).
Such continuous offering may be discontinued at any time by the officers
of the Trust for any reason sufficient to them. The Trust may, upon
notice to the Distributor, commence other continuous offerings of the
Shares from time to time in the future. The Trust will advise the
Distributor of any limit on the aggregate value of Shares to be sold
during any continuous offering. The Initial Offering Period and any
subsequent continuous offerings are referred to herein as "Offering
Periods."
(b) The Distributor is authorized, as agent for the Fund and not as
principal, during any Offering Period (i) to offer and sell Shares to
such dealers or brokers as the Distributor may select pursuant to the
terms of written selected dealer agreements or selected broker
agreements, as the case may be, in form or forms approved by the Fund,
and (ii) to offer and sell Shares to other purchasers on such terms as
may be provided in the then current Prospectus of the Fund relating to
such Shares; provided, however, that no sales of Shares shall be
confirmed by the Distributor at any time when the Fund has informed the
Distributor that sales will not be accepted. Each sale of Shares shall
be effected by the Distributor only at the applicable price determined
by the Fund in the manner prescribed in its then current Prospectus
relating to such Shares. The Distributor shall comply with all
applicable laws, rules and regulations applicable to the sale of Shares.
The Fund agrees, as long as its Shares may legally be issued, to fill
all orders confirmed by the Distributor in accordance with the
provisions of this Agreement.
3. Compensation. As compensation for the services of the Distributor
under this Agreement, the Distributor shall be entitled to receive the
sales charge, determined in conformity with the Fund's then current
Prospectus relating to such Shares, on all sales of Shares confirmed by
the Distributor hereunder and for which payment has been received, less
the dealers' concession allowed in respect of such sales.
4. Expenses. The Fund agrees to pay the costs incident to the
authorization, issuance, sale and delivery of the Shares and any taxes
payable in that connection; the costs incident to the preparation,
printing and filing under the Investment Company Act of 1940 (the "1940
Act") and the Securities Act of 1933 (the "Securities Act") of the
Fund's Registration Statement (as defined below) and notification of
registration on Form N-8A and any amendments and exhibits thereto; the
costs of preparing, printing and distributing the Registration Statement
as originally filed and each amendment thereto and any post-effective
amendments thereof (including exhibits), any preliminary prospectus, the
Prospectus and any amendment or supplement to the Prospectus; the costs
of preparing this Agreement and the Selected Dealer Agreement, Selected
Broker Agreement and Shareholder Servicing Agreement; the costs of
filings with the National Association of Securities Dealers, Inc.; the
costs and expenses of advertising and sales material used in any
offering of the Shares; and all other costs and expenses incident to the
performance of the obligations of the Fund under this Agreement;
provided that, except as provided in this Section, the Distributor shall
pay its own costs and expenses, including the fees and expenses of its
counsel, any transfer taxes on the Shares which it may sell, the
up-front compensation to dealers, the structuring fee to UBS PaineWebber
Inc. referred to in the Prospectus and all fees and related expenses
connected with its own qualification as a broker or dealer authorized
under Federal or State laws to distribute shares of a closed-end
"interval" investment company within the meaning of Rule 23c-3 under the
1940 Act; and provided further that in the event the transactions
contemplated hereunder are not consummated, the Distributor will pay all
costs and expenses set forth in this Section which the Fund would have
paid if such transactions were consummated.
The Fund also agrees to pay all fees and related expenses which may be
incurred in connection with the qualification of Shares for sale in such
States (as well as the District of Columbia, Puerto Rico and other
territories) as the Distributor may designate, and all expenses in
connection with maintaining facilities for the issue and transfer of the
Shares, of supplying information, prices and other data to be furnished
by it hereunder and, through Xxxxxx Fiduciary Trust Company, of all data
processing and related services related to the share distribution
activity contemplated hereby.
5. Prospectus and Other Information. The Fund represents and warrants
to and agrees with the Distributor that:
(a) A registration statement on Form N-2, including a prospectus
relating to the Shares, has been filed by the Trust under both the
Securities Act and the 1940 Act. Such registration statement, as from
time to time hereafter amended, and also any other registration
statement relating to the Shares which may be filed by the Fund pursuant
to the Securities Act and the 1940 Act, is herein referred to as the
"Registration Statement", and any prospectus filed by the Fund as a part
of the Registration Statement and any prospectus within the meaning of
Rule 482 under the Securities Act prepared or authorized by the Fund, as
the "Prospectus".
(b) As of the date of this Agreement, the Registration Statement has not
been declared effective, and the Fund does not expect it to be declared
effective until on or about the close of the Initial Offering Period;
the Fund will not request the Distributor to confirm any sales of Shares
until such time as the Registration Statement has been declared
effective.
(c) At all times during any Offering Period, the Registration Statement
and Prospectus will conform in all respects to the requirements of the
Securities Act, the 1940 Act and the rules and regulations of the
Securities and Exchange Commission (including, in the case of a
preliminary prospectus, Section 10(b) of the Securities Act and the
rules thereunder), and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading (in the case of a Prospectus, in the light of the
circumstances under which they were made), except that the foregoing
does not apply to any statements or omissions in either of such
documents based upon written information furnished to the Fund by the
Distributor specifically for use therein.
The Fund agrees to prepare and furnish to the Distributor from time to
time a copy of its Prospectus, and authorizes the Distributor to use
such Prospectus, in the form furnished to the Distributor from time to
time, in connection with the sale of the Fund's Shares. The Fund also
agrees to furnish the Distributor from time to time, for use in
connection with the offer and sale of such Shares, such information with
respect to the Fund and its Shares as the Distributor may reasonably
request.
6. Compliance with NASD Rules. In selling Fund Shares, the Distributor
will in all respects duly comply with all state and federal laws
relating to the sale of such securities and with all applicable rules
and regulations of all regulatory bodies, including, without limitation,
the Conduct Rules of the National Association of Securities Dealers,
Inc., and all applicable rules and regulations of the Securities and
Exchange Commission under the 1940 Act, and will indemnify and hold the
Fund harmless from any damage or expense on account of any unlawful act
by the Distributor or its agents or employees. The Distributor is not,
however, to be responsible for the acts of other dealers or agents
except as and to the extent that they shall be acting for the
Distributor or under its direction or authority. None of the
Distributor, any dealer, any agent or any other person is authorized by
the Fund to give any information or to make any representations, other
than those contained in the Registration Statement or Prospectus, as
supplemented or amended by the Fund from time to time.
7. No Secondary Market Activity. the Distributor shall have the right
to buy from the Fund the Shares needed, but not more than the Shares
needed (except for reasonable allowances for clerical errors, delays and
errors of transmission and cancellation of orders) to fill unconditional
orders for Shares received by the Distributor from dealers, agents and
investors. It is understood that Shares of the Fund will not be
repurchased by the Distributor or by the Fund (except as described in
the Prospectus) and that no secondary market for the Shares exists
currently or is expected to develop. Any representation as to a
repurchase offer by the Fund, other than that which is set forth in the
Fund's then current Prospectus, is expressly prohibited. The
Distributor hereby covenants that it (i) will not make a secondary
market in any Shares of the Fund, (ii) will not purchase or hold such
Shares in inventory for the purpose of resale in the open market, (iii)
will not repurchase such Shares in the open market and (iv) will require
every dealer or broker or other agent participating in the distribution
of the Fund's Shares in the Offering Periods to make the same covenants
contained in clauses (i), (ii) and (iii) of this Section 7 as a
condition precedent to their participation in such distribution.
8. Indemnification.
(a) The Fund will indemnify and hold harmless the Distributor and each
person, if any, who controls the Distributor within the meaning of the
Securities Act against any losses, claims, damages or liabilities to
which the Distributor or such controlling person may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or
Prospectus or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading (in the case
of a Prospectus, in the light of the circumstances under which they were
made); and will reimburse the Distributor and each such controlling
person for any legal or other expenses reasonably incurred by the
Distributor or such controlling person in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the Fund will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of
or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or
Prospectus in conformity with written information furnished to the Fund
by the Distributor specifically for use therein; and provided further
that nothing herein shall be so construed as to protect the Distributor
against any liability to the Fund or its security holders to which the
Distributor would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence, in the performance of its duties, or by
reason of the reckless disregard by the Distributor of its obligations
and duties under this Agreement. This indemnity agreement will be in
addition to any liability which the Fund may otherwise have.
(b) The Distributor will indemnify and hold harmless the Fund, each of
its officers, each of the Trustees of the Trust and each person, if any,
who controls the Fund within the meaning of the Securities Act, against
any losses, claims, damages or liabilities to which the Fund or any such
officer, Trustee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or Prospectus or arise out
of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading (in the case of the
Prospectus, in the light of the circumstances under which they were
made), to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
conformity with written information furnished to the Fund by the
Distributor specifically for use therein; or (ii) any untrue statement
or alleged untrue statement of any material fact contained in any sales
material not prepared or authorized by the Fund which is utilized in
connection with the sale of Shares or arises out of or is based upon an
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and the Distributor will reimburse any legal or other expenses
reasonably incurred by the Fund or any such officer, Trustee or
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement
will be in addition to any liability which the Distributor may otherwise
have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from liability which it may have to any
indemnified party otherwise than under this Section. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
9. Effective Date. This Agreement shall become effective upon its
execution by an authorized officer of the respective parties to this
Agreement.
10. Term of Agreement. This Agreement shall continue in effect through
June 30, 2003 and through June 30 of each year thereafter if such
continuance is approved in the manner required by the 1940 Act and the
rules thereunder and the Distributor shall not have notified the Fund in
writing at least 60 days prior to the anniversary date of the previous
continuance that it does not desire such continuance. This Agreement
may be terminated at any time, without payment of penalty, on 60 days'
written notice to the Distributor by vote of a majority of the Trustees
of the Trust who are not interested persons (as defined in the 0000 Xxx)
of the Fund, or by vote of a majority of the outstanding voting
securities of the Fund (as defined by the 1940 Act). This Agreement
shall automatically terminate in the event of its assignment (as defined
in the 1940 Act).
11. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to
the contrary notwithstanding, this Agreement shall not be construed to
require, or to impose any duty upon, either of the parties to do
anything in violation of any applicable laws or regulations.
IN WITNESS WHEREOF, the Fund and the Distributor have caused this
Agreement to be executed by their duly authorized officers as of the
date first above written.
TH XXX, XXXXXX INVESTMENT TRUST
/s/ Xxxxxxx X. Xxxxxxxxxx
By: --------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President and Clerk
XXXXXX RETAIL MANAGEMENT, L.P.
By: --------------------------------
Name:
Title:
