Exhibit e(1)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
AMENDED AND RESTATED DISTRIBUTION AGREEMENT, dated as of August 15, 1999,
as amended and restated through _____ __, 2003, by and between DOMINI SOCIAL
INVESTMENT TRUST (formerly, "Domini Social Equity Fund"), a Massachusetts
business trust (the "Trust"), and DSIL INVESTMENT SERVICES LLC, a New York
limited liability company and a subsidiary of Domini Social Investments LLC
(the "Distributor").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end investment
company registered under the Investment Company Act of 1940 (collectively with
the rules and regulations promulgated thereunder, the "1940 Act");
WHEREAS, the Trust's shares of beneficial interest have been divided into
one or more series ("Series"), and the shares of each Series have been divided
into one or more classes;
WHEREAS, the Board of Trustees of the Trust has adopted an Amended and
Restated Distribution Plan, dated as of May 1, 1990, as amended and restated
through ________ __, 2003 (as amended and restated and in effect from time to
time, the "Distribution Plan") with respect to the class of each Series
designated Investor Shares (the "Shares"), which is incorporated herein by
reference and pursuant to which the Trust desires to enter into this Amended
and Restated Distribution Agreement with respect to the Shares of its current
and future Series;
WHEREAS, the Trust wishes to engage the Distributor to provide certain
services with respect to the distribution of the Shares of each of its Series,
and the Distributor is willing to provide such services to each Series of the
Trust on the terms and conditions hereinafter set forth; and
WHEREAS, the Trust has entered into a Second Amended and Restated
Distribution Agreement, dated as of August 15, 1999, amended and restated as of
May 1, 2000 and June 25, 2001, and as further amended and restated August 5,
2003 (the "Original Agreement"), and desires to amend and restate the Original
Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto as herein set forth, the parties covenant and agree as
follows, and the Original Agreement is hereby amended and restated as follows:
1. The Trust grants to the Distributor the right, as agent of the Trust,
to sell Shares of each Series of the Trust upon the terms hereinbelow set forth
during the term of this Agreement. While this Agreement is in force, the
Distributor agrees to use its best efforts to find purchasers for Shares of
each Series of the Trust.
The Distributor shall have the right, as agent of the Trust, to order from
the Trust the Shares needed, but not more than the Shares needed (except for
clerical errors and errors of transmission), to fill unconditional orders for
Shares placed with the Distributor, all such orders to be made in the manner
set forth in the Trust's then-current prospectus (the "Prospectus") and
then-current statement of additional information (the "Statement of Additional
Information"). The price which shall be paid to the Trust for the Shares so
purchased shall be the net asset value per Share as determined in accordance
with the provisions of the Declaration of Trust and the By-Laws, as each may
from time to time be amended (collectively, the "Governing Instruments"). The
Distributor shall notify the Custodian of the Trust (currently Investors Bank &
Trust Company), at the end of each business day, or as soon thereafter as the
orders placed with the Distributor have been compiled, of the number of Shares
and the prices thereof which have been ordered through the Distributor since
the end of the previous business day.
The right granted to the Distributor to place orders for Shares with the
Trust shall be exclusive, except that this exclusive right shall not apply to
Shares issued in the event that an investment company (whether a regulated or
private investment company or a personal holding company) is merged with and
into or consolidated with the Trust or in the event that the Trust acquires, by
purchase or otherwise, all (or substantially all) the assets or the outstanding
shares of any such company; nor shall it apply to Shares issued by the Trust as
a dividend or stock split. The exclusive right to place orders for Shares
granted to the Distributor may be waived by the Distributor by notice to the
Trust in writing, either unconditionally or subject to such conditions and
limitations as may be set forth in such notice to the Trust. The Trust hereby
acknowledges that the Distributor may render distribution and other services to
other parties, including other investment companies. In connection with its
duties hereunder, the Distributor shall also arrange for computation of
performance statistics with respect to the Trust and arrange for publication of
current price information in newspapers and other publications.
2. The Shares may be sold by the Distributor on behalf of the Trust, to
any investor or to or through any dealer having a sales agreement with the
Distributor, upon the following terms and conditions:
The public offering price of Shares of the Trust, i.e., the price per
Share at which the Distributor or any dealer purchasing Shares through the
Distributor may sell shares to the public, shall be the net asset value of such
Shares.
The net asset value of Shares of the Trust shall be determined by the
Trust, or by an agent of the Trust, as of the close of regular trading on the
New York Stock Exchange on each day on which the New York Stock Exchange is
open for trading (and on such other days as the Trustees deem necessary in
order to comply with Rule 22c-1 under the 1940 Act), in accordance with the
method established pursuant to the Governing Instruments. The Trust shall have
the right to suspend the sale of Shares if, because of some extraordinary
condition, the New York Stock Exchange shall be closed, or if conditions
existing during the hours when the Exchange is open render such action
advisable or for any other reason deemed adequate by the Trust.
3. The Trust agrees that it will, from time to time, but subject to the
necessary approval, if any, of its shareholders, take all necessary action to
register such number of Shares under the Securities Act of 1933, as amended
(the "1933 Act"), as the Distributor may reasonably be expected to sell.
The Distributor shall be an independent contractor and neither the
Distributor nor any of its managers, officers or employees as such, is or shall
be an employee of the Trust. It is understood that Trustees, officers and
shareholders of the Trust are or may become interested in the Distributor, as
managers, officers, employees, or otherwise and that managers, officers and
employees of the Distributor are or may become similarly interested in the
Trust and that the Distributor may be or become interested in the Trust as a
shareholder or otherwise. The Distributor is responsible for its own conduct
and the employment, control and conduct (but only with respect to the duties
and obligations of the Distributor hereunder) of its agents and employees and
for any injury to any person through its agents or employees. The Distributor
assumes full responsibility for its agents and employees under applicable
statutes and agrees to pay all employer taxes thereunder.
4. The Distributor covenants and agrees that, in selling Shares, it will
use its best efforts in all respects duly to conform with the requirements of
all state and federal laws and the Conduct Rules of the NASD, Inc. relating to
the sale of Shares, and will indemnify and hold harmless the Trust and each of
its Trustees and officers and each person, if any, who controls the Trust
within the meaning of Section 15 of the Act (the "Indemnified Parties") against
all losses, liabilities, damages, claims or expenses (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 from any claim, demand, action or suit (collectively, "Claims"),
arising by reason of any person's acquiring any of the Shares through the
Distributor, which may be based upon the 1933 Act or any other statute or
common law, on account of any wrongful act of the Distributor or any of its
employees (including any failure to conform with any requirement of any state
or federal law or the Conduct Rules of the NASD, Inc. relating to the sale of
Shares) or on the ground that the registration statement under the 1933 Act,
including all amendments thereto (the "Registration Statement"), or Prospectus
or previous prospectus or Statement of Additional Information or previous
statement of additional information, with respect to such Shares, includes or
included an untrue statement of a material fact or omits or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, if and only if any such act, statement or
omission was made in reliance upon information furnished by the Distributor to
the Trust; provided, however, that in no case (i) is the indemnity of the
Distributor in favor of any Indemnified Party to be deemed to protect any such
Indemnified Party against liability to which such Indemnified Party would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its or his duties or by reason of its or his
reckless disregard of its or his obligations and duties under this Agreement,
or (ii) is the Distributor to be liable under its indemnity agreement contained
in this Section 4 with respect to any Claim made against any Indemnified Party
unless such Indemnified Party shall have notified the Distributor in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the Claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Distributor
of any such Claim shall not relieve it from any liability which it may have to
any Indemnified Party otherwise than on account of its indemnity agreement
contained in this Section 4. The Distributor 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 such Claim, and, if the Distributor elects
to assume the defense, such defense shall be conducted by counsel chosen by it
and satisfactory to each Indemnified Party. In the event that the Distributor
elects to assume the defense of any such suit and retain such counsel, each
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it but, in case the Distributor does not elect to assume the
defense of any such suit, it shall reimburse the Indemnified Parties for the
reasonable fees and expenses of any counsel retained by them. Except with the
prior written consent of the Distributor, no Indemnified Party shall confess
any Claim or make any compromise in any case in which the Distributor will be
asked to indemnify such Indemnified Party. The Distributor agrees promptly to
notify the Trust of the commencement of any litigation or proceeding against it
in connection with the issuance and sale of any of the Shares.
Neither the Distributor nor any dealer nor any other person is authorized
to give any information or to make any representation on behalf of the Trust in
connection with the sale of Shares, other than those contained in the
Registration Statement or Prospectus or Statement of Additional Information.
The Trust covenants and agrees that it will indemnify and hold harmless
the Distributor, its managers and officers and each person, if any, who
controls the Distributor within the meaning of Section 15 of the Act against
all losses, liabilities, damages, claims or expenses (including the reasonable
cost of investigating or defending any alleged loss, liabilities, damages,
claims or expenses and reasonable counsel fees incurred in connection
therewith) arising from any Claims, (i) arising by reason of any person's
acquiring any of the Shares through the Distributor, which may be based upon
the 1933 Act or any other statute or common law, on account that the
Registration Statement or Prospectus or previous prospectus or Statement of
Additional Information or previous statement of additional information, with
respect to such Shares, includes or included an untrue statement of a material
fact or omits or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, except
insofar as such act, statement or omission was made in reliance upon
information furnished by the Distributor to the Trust for use in the
Registration Statement or Prospectus or (ii) arising by reason of any agreement
of the Distributor to indemnify or hold harmless any dealer having a sales
agreement with the Distributor as provided in Section 2; provided, however,
that in no case (A) shall anything contained herein be so construed as to
protect the Distributor against any liability to the Trust or to its
shareholders 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 its reckless disregard of its obligations under this
Agreement, or (B) is the Trust to be liable under its indemnity agreement
contained in this Section 4 with respect to any Claim made against the
Distributor unless it shall have notified the Trust in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the Claim shall have been served upon it (or after
the Distributor shall have received notice of such service on any designated
agent), but failure to notify the Trust of any such Claim shall not relieve it
from any liability which it may have to the Distributor otherwise than on
account of its indemnity agreement contained in this Section 4. 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 such Claim,
and, if the Trust elects to assume the defense, such defense shall be conducted
by counsel chosen by it and satisfactory to the Distributor. In the event that
the Trust elects to assume the defense of any such suit and retain such
counsel, the Distributor shall bear the fees and expenses of any additional
counsel retained by it but, in case the Trust does not elect to assume the
defense of any such suit, it shall reimburse the Distributor for the reasonable
fees and expenses of any counsel retained by them. Except with the prior
written consent of the Trust, the Distributor shall not confess any Claim or
make any compromise in any case in which the Trust will be asked to indemnify
it. The Trust agrees promptly to notify the Distributor of the commencement of
any litigation in connection with the issuance and sale of any of the Shares.
5. (a) The Trust will pay, or cause to be paid:
(i) all costs and expenses of the Trust, including fees and
disbursements of its counsel, in connection with the preparation and filing of
the Registration Statement, Prospectus and Statement of Additional Information,
and preparing and mailing to shareholders Prospectuses, Statements of
Additional Information, statements and confirmations and periodic reports
(including the expense of setting in type the Registration Statement,
Prospectus and Statement of Additional Information or any periodic report);
(ii) the cost of preparing temporary or permanent certificates for
Shares;
(iii) the cost and expenses of delivering to the Distributor all Shares
purchased through it as agent hereunder;
(iv) all fees and disbursements of the Transfer Agent and Custodian;
and
(v) a fee to the Manager of the Trust (pursuant to the Management
Agreement).
(b) In addition and subject to the Distribution Plan, the Trust shall pay,
or shall reimburse the Distributor for any payment by the Distributor on behalf
of the Trust of, expenses incurred in connection with the sale of Shares of
each Series of the Trust, including, without limitation, payments to
broker-dealers, banks, investment advisers and other intermediaries who advise
shareholders regarding the purchase or sale or retention of Shares of the
Trust, compensation of employees and related overhead of the Distributor,
advertising, marketing and research expenses and the expenses of printing
(excluding typesetting) and distributing prospectuses and reports used for
sales purposes, expenses of preparing and printing sales literature and other
distribution-related expenses, provided that the amounts so paid or reimbursed
by the Trust in connection with the sale of Shares of any Series of the Trust
shall not to exceed 0.25% of the average daily net assets of that Series for
that Series' then-current fiscal year. The Trust hereby authorizes the
Distributor to incur expenses on behalf of the Trust as described in this
paragraph (b). The Trust acknowledges and agrees that all such expenses
incurred by the Distributor are obligations of the Trust only and that the
Distributor shall have no liability in respect thereof.
(c) Subject to the Distribution Plan, the Trust shall also pay to the
Distributor a distribution fee with respect to each Series of the Trust at an
annual rate which, when added to the amount paid or reimbursed by the Trust for
expenses with respect to that Series under paragraph (b) above, will equal
0.25% of the average daily net assets of that Series for that Series'
then-current fiscal year, as compensation for distribution services provided by
the Distributor in connection with the sale of Shares of that Series.
6. If, at any time during the term of this Agreement, the Trust shall deem
it necessary or advisable in the best interests of the Trust that any amendment
of this Agreement be made in order to comply with any recommendation or
requirement of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under Massachusetts or federal tax laws,
it shall notify the Distributor of the form of amendment which it deems
necessary or advisable and the reasons therefor. If the Distributor declines to
assent to such amendment (after a reasonable time), the Trust may terminate
this Agreement forthwith by written notice to the Distributor without payment
of any penalty. If, at any time during the term of this Agreement, the
Distributor requests the Trust to make any change in its Governing Instruments
or in its methods of doing business which are necessary in order to comply with
any requirement of federal law or regulations of the Securities and Exchange
Commission or of a national securities association of which the Distributor is
or may become a member, relating to the sale of Shares, and the Trust fails
(after a reasonable time) to make any such change as requested, the Distributor
may terminate this Agreement forthwith by written notice to the Trust without
payment of any penalty.
7. The Distributor agrees that it will not take any long or short position
in the Shares of the Trust and that, so far as it can control the situation, it
will prevent any of its managers or officers from taking any long or short
position in the Shares of the Trust, except as permitted by the Governing
Instruments.
8. This Agreement shall become effective upon its execution and shall
continue in force indefinitely as to each Series, provided that such
continuance is "specifically approved at least annually" with respect to the
applicable Series by the vote of a majority of the Trustees of the Trust who
are not "interested persons" of the Trust or of the Distributor at a meeting
specifically called for the purpose of voting on such approval, and by the
Board of Trustees of the Trust. The aforesaid requirement that continuance of
this Agreement be "specifically approved at least annually" shall be construed
in a manner consistent with the 1940 Act. If such annual approval is not
obtained, this Agreement shall terminate on the date which is 15 months after
the date of the last approval.
This Agreement may be terminated with respect to any Series of the Trust
at any time by (i) the Trust, (a) by a vote of a majority of the Trustees of
the Trust who are not "interested persons" of the Trust or the Distributor, (b)
by a vote of the Board of Trustees of the Trust, or (c) by a "vote of a
majority of the outstanding voting securities" of the applicable Series, or
(ii) by the Distributor, in any case without payment of any penalty on not more
than 60 days' nor less than 30 days' written notice to the other party.
This Agreement shall automatically terminate in the event of its
assignment.
9. The terms "vote of a majority of the outstanding voting securities",
"interested person", "assignment" and "specifically approved at least annually"
shall have the respective meanings specified in, and shall be construed in a
manner consistent with, the 1940 Act, subject, however, to such exemptions as
may be granted by the Securities and Exchange Commission thereunder.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names on their behalf by the undersigned,
thereunto duly authorized, and their respective seals to be hereto affixed, all
as of the day and year first above written. The obligations of this Agreement
are not binding upon any of the Trustees or shareholders of the Trust
individually, but bind only the Trust estate. The obligations of a particular
Series shall be paid only from the assets of that Series and shall not be
enforceable against any other Series.
Domini Social Investment Trust
By___________________________________
Title:
DSIL INVESTMENT SERVICES LLC
By___________________________________
Title:
