Exhibit (e)(1)
CALAMOS INVESTMENT TRUST
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
AGREEMENT made as of December 13, 2004, between CALAMOS FINANCIAL
SERVICES LLC, a limited liability company organized under the laws of the State
of Delaware 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
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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.
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.
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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 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.
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(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;
(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 July 31, 2005, and thereafter
for successive periods of
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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 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.
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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.
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 LLC
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: EVP, Chief Financial Officer,
Administrative Officer and Treasurer
ATTEST:
/s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
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Title: Secretary
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CALAMOS INVESTMENT TRUST
By /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
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Title: Secretary
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