DISTRIBUTION AGREEMENT CAPITAL MANAGEMENT SMALL-CAP FUND
CAPITAL
MANAGEMENT SMALL-CAP FUND
THIS
AGREEMENT, entered into as of this 19th day of December, 2009, by and between
Capital Management Investment Trust, an unincorporated business trust organized
under the laws of the Commonwealth of Massachusetts (the “Trust”), and
Xxxxxxxxxx Xxxxxxx & Co., LLC, a New York limited liability company (the
“Distributor”).
WITNESSETH:
WHEREAS,
the Trust is engaged in business as an open-end management investment company
and is so registered under the Investment Company Act of 1940, as amended (“1940
Act”); and
WHEREAS,
the Trust is authorized to issue an unlimited number of shares of beneficial
interest (“Shares”), in separate series representing the interests in separate
funds of securities and other assets; and
WHEREAS,
the Shares of the Trust are registered under the Securities Act of 1933, as
amended (“1933 Act”), pursuant to a registration statement on Form N-1A
(“Registration Statement”), including a prospectus (“Prospectus”) and a
statement of additional information (“Statement of Additional Information”);
and
WHEREAS,
the Trust offers separate series of shares (“Shares”) representing interests in
the Trust; and
WHEREAS,
a separate series of the Trust, the CAPITAL MANAGEMENT MID-CAP FUND, advised by
Capital Management Associates, Inc., (the “Fund”) currently consists of two
class of Shares; and
WHEREAS,
the Trust is also at this time adopting a Plan of Distribution Pursuant to Rule
12b-1 under the 1940 Act (“Distribution Plan”) with respect to the Investor
Class Shares of the Fund; and
WHEREAS,
Distributor has agreed to act as distributor of the Shares of the Fund for the
period of this Agreement;
NOW,
THEREFORE, it is hereby agreed between the parties hereto as
follows:
1. Appointment of
Distributor.
(a) The
Trust hereby appoints Distributor its exclusive agent for the distribution of
the Shares of the Fund in jurisdictions wherein such Shares may be legally
offered for sale; provided, however, that the Trust in its absolute discretion
may issue Shares of the Fund in connection with (i) the payment or reinvestment
of dividends or distributions; (ii) any merger or consolidation of the Trust or
of the Fund with any other investment company or trust or any personal holding
company, or the acquisition of the assets of any such entity or another fund of
the Trust; or (iii) any offer of exchange permitted by Section 11 of the 0000
Xxx.
(b) Distributor
hereby accepts such appointment as exclusive agent for the distribution of the
Shares of the Fund and agrees that it will sell the Shares as agent for the
Trust at prices determined as hereinafter provided and on the terms hereinafter
set forth, all according to applicable federal and state laws and regulations
and to the Agreement and Declaration of Trust of the Trust.
(c) Distributor
may sell Shares of the Fund to or through qualified securities dealers or
others. Distributor will require each dealer or other such party to conform to
the provisions hereof, the Registration Statement and the Prospectus and
Statement of Additional Information, and applicable law; and neither Distributor
nor any such dealers or others shall withhold the placing of purchase orders for
Shares so as to make a profit thereby.
(d) Distributor
shall order Shares of the Fund from the Trust only to the extent that it shall
have received purchase orders therefor. Distributor will not make, or authorize
any dealers or others to make: (i) any short sales of Shares; or (ii) any sales
of Shares to any Trustee or officer of the Trust or to any officer or director
of Distributor or of any corporation or association furnishing investment
advisory, managerial or supervisory services to the Trust, or to any such
corporation or association, unless such sales are made in accordance with the
then current Prospectus and Statement of Additional Information.
(e) Distributor
is not authorized by the Trust to give any information or make any
representations regarding the Shares of the Fund, except such information or
representations as are contained in the Registration Statement or in the current
Prospectus or Statement of Additional Information of the Fund, or in
advertisements and sales literature prepared by or on behalf of the Trust for
Distributor’s use.
(f) Notwithstanding
any provision hereof, the Trust may terminate, suspend or withdraw the offering
of Shares of the Fund whenever, in its sole discretion, it deems such action to
be desirable.
2. Offering Price of
Shares. All Shares of the Fund sold under this Agreement shall be sold at
the public offering price per Share in effect at the time of the sale, as
described in the then current Prospectus of the Fund. The excess, if any, of the
public offering price over the net asset value of the Shares sold by Distributor
as agent shall be retained by Distributor as a commission for its services
hereunder. Out of such commission Distributor may allow commissions or
concessions to dealers and may allow them to others in its discretion in such
amounts as Distributor shall determine from time to time. Except as may be
otherwise determined by Distributor, from time to time, such commissions or
concessions shall be uniform to all dealers. At no time shall the Trust receive
less than the full net asset value of the Shares, determined in the manner set
forth in the then current Prospectus and Statement of Additional Information.
Distributor shall also be entitled to such commissions and other fees and
payments as may be authorized by the Trustees of the Trust from time to time
under the Distribution Plan.
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3. Furnishing of
Information. The Trust shall furnish to Distributor copies of any
information, financial statements and other documents that Distributor may
reasonably request for use in connection with the sale of Shares of the Fund
under this Agreement. The Trust shall also make available a sufficient number of
copies of the Fund’s current Prospectus and Statement of Additional Information
for use by the Distributor.
4. Expenses.
(a) The
Trust will pay or cause to be paid the following expenses: (i) preparation,
printing and distribution to shareholders of the Prospectus and Statement of
Additional Information; (ii) preparation, printing and distribution of reports
and other communications to shareholders; (iii) registration of the Shares under
the federal securities laws; (iv) qualification of the Shares for sale in
certain states; (v) qualification of the Trust as a dealer or broker under state
law as well as qualification of the Trust as an entity authorized to do business
in certain states; (vi) maintaining facilities for the issue and transfer of
Shares; (vii) supplying information, prices and other data to be furnished by
the Trust under this Agreement; and (viii) certain taxes applicable to the sale
or delivery of the Shares or certificates therefor.
(b) Except
to the extent such expenses are borne by the Trust pursuant to the Distribution
Plan, Distributor will pay or cause to be paid the following expenses: (i)
payments to sales representatives of the Distributor and to securities dealers
and others in respect of the sale or servicing of shareholders with respect to
Shares of the Fund; (ii) payment of compensation to and expenses of employees of
the Distributor and any of its affiliates to the extent they engage in or
support distribution of the Fund’s Shares or render shareholder support services
not otherwise provided by the Trust’s transfer agent, administrator, or
custodian, including, but not limited to, answering routine inquiries regarding
the Fund, processing shareholder transactions, and providing such other
shareholder services as the Trust may reasonably request; (iii) formulation and
implementation of marketing and promotional activities, including, but not
limited to, direct mail promotions and television, radio, newspaper, magazine
and other mass media advertising; (iv) preparation, printing and distribution of
sales literature and of Prospectuses and Statements of Additional Information
and reports of the Trust for recipients other than existing shareholders of the
Fund; and (v) obtaining such information, analyses and reports with respect to
marketing and promotional activities as the Trust may, from time to time,
reasonably request.
(c) Distributor
in connection with the Distribution Plan shall prepare and deliver reports to
the Trustees of the Trust on a regular basis, at least quarterly, showing the
expenditures with respect to the Fund pursuant to the Distribution Plan and the
purposes therefor, as well as any supplemental reports as the Trustees of the
Trust, from time to time, may reasonably request.
5. Repurchase of Shares.
Distributor as agent and for the account of the Trust may repurchase Shares of
the Fund offered for resale to it and redeem such Shares at their net asset
value.
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6. Indemnification by the
Trust. In absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of
Distributor, the Trust agrees to indemnify Distributor and its officers and
partners against any and all claims, demands, liabilities and expenses that
Distributor may incur under the 1933 Act, or common law or otherwise, arising
out of or based upon any alleged untrue statement of a material fact contained
in the Registration Statement or any Prospectus or Statement of Additional
Information of the Fund, or in any advertisements or sales literature prepared
by or on behalf of the Trust for Distributor’s use, or any omission to state a
material fact therein, the omission of which makes any statement contained
therein misleading, unless such statement or omission was made in reliance upon
and in conformity with information furnished to the Trust in connection
therewith by or on behalf of Distributor. Nothing herein contained shall require
the Trust to take any action contrary to any provision of its Agreement and
Declaration of Trust or any applicable statute or regulation.
7. Indemnification by
Distributor. Distributor agrees to indemnify the Trust and its officers
and Trustees against any and all claims, demands, liabilities and expenses which
the Trust may incur under the 1933 Act, or common law or otherwise, arising out
of or based upon (i) any alleged untrue statement of a material fact contained
in the Registration Statement or any Prospectus or Statement of Additional
Information of the Fund, or in any advertisements or sales literature prepared
by or on behalf of the Trust for Distributor’s use, or any omission to state a
material fact therein, the omission of which makes any statement contained
therein misleading, if such statement or omission was made in reliance upon and
in conformity with information furnished to the trust in connection therewith by
or on behalf of Distributor; or (ii) any act or deed of Distributor or its sales
representatives, or securities dealers and others authorized to sell Shares of
the Fund hereunder, or their sales representatives, that has not been authorized
by the Trust in any Prospectus or Statement of Additional Information of the
Fund or by this Agreement.
8. Confidentiality. The
Distributor agrees, on behalf of itself and its officers, directors, agents and
employees, to treat as confidential all records and other information relating
to the Trust and its prior, present, and future shareholders (the “Confidential
Information”) and to not use or disclose the Confidential Information for any
purpose other than in performance of its responsibilities and duties under the
Agreement. Notwithstanding the forgoing, the Distributor may divulge the
Confidential Information (i) with the prior written consent of the Trust; (ii)
when the Distributor, in good faith, believes it may be exposed to civil or
criminal contempt proceedings for failure to comply with court orders or when
requested by duly constituted governmental authorities or the Financial Industry
Regulatory Authority, Inc. (FINRA) pursuant to their respective legal authority,
upon prior written notice to the Trust, unless prohibited by the court order or
governmental authority; (iii) to the Trust’s investment adviser(s),
administrator, transfer agent, custodian, outside legal counsel or independent
public accountants, in the ordinary course of business, to the extent necessary
for those service providers to perform their respective services to the Trust;
(iv) to the Trust, when requested by the Trust, or (v) when requested by a
shareholder, but only with respect to Confidential Information that specifically
relates to such shareholder and the shareholder’s account. For purposes of this
section, the following records and other information shall not be considered
Confidential Information: any record or other information relating to the Trust
and its prior, present, and future shareholders (a) which is or becomes publicly
available through no negligent or unauthorized act or omission by the
Distributor; (b) which is disseminated by the Trust in a public filing with the
SEC or posted on the website of the Trust, the Fund, the Fund’s investment
adviser, or any of the Fund’s other service providers for general public review;
(c) which is lawfully obtained from third parties who are not under an
obligation of confidentiality to the Trust or its prior, present, and future
shareholders; or (d) previously known by the Distributor prior to the date of
the Agreement.
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9. Term and
Termination.
(a) This
Agreement shall become effective for the Fund and its separate classes of shares
on the date written above. Unless terminated as herein provided, this Agreement
shall continue in effect, with respect to the Fund, for one year from the date
written above and shall continue in full force and effect for successive periods
of one year thereafter, but only so long as each such continuance is approved
(i) by either the Trustees of the Trust or by vote of a majority of the
outstanding voting securities (as defined in the 0000 Xxx) of the Fund and, in
either event, (ii) by vote of a majority of the Trustees of the Trust who are
not parties to this Agreement or interested persons (as defined in the 0000 Xxx)
of any such party and who have no direct or indirect financial interest in this
Agreement or in the operation of the Distribution Plan or in any agreement
related thereto (“Independent Trustees”), cast at a meeting called for the
purpose of voting on such approval.
(b) This
Agreement may be terminated at any time without the payment of any penalty by
vote of the Trustees of the Trust or a majority of the Independent Trustees or
by vote of a majority of the outstanding voting securities (as defined in the
0000 Xxx) of any of the Funds or by Distributor, on sixty (60) days’ written
notice to the other party.
(c) This
Agreement shall automatically terminate in the event of its assignment (as
defined in the 1940 Act).
10. Limitation of
Liability. The obligations of the Trust hereunder shall not be binding
upon any of the Trustees, officers or shareholders of the Trust personally, but
shall bind only the assets and property of the Trust. The term “Capital
Management Investment Trust” means and refers to the Trustees from time to time
serving under the Agreement and Declaration of Trust of the Trust, a copy of
which in on file with the Secretary of State of the Commonwealth of
Massachusetts. The execution and delivery of this Agreement has been authorized
by the Trustees, and this Agreement has been signed on behalf of the Trust by an
authorized officer of the Trust, acting as such and not individually, and
neither such authorization by such Trustees 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 the Agreement and Declaration of
Trust.
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IN
WITNESS THEREOF, the parties hereto have caused this Agreement to be executed as
of the date first written above.
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx
Xxxxxx
Title:
President
Attest: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx
X. Xxxxxx
Title: CCO
XXXXXXXXXX
XXXXXXX & CO., LLC
By:
/s/
Xxxxx Xxxxxxx
Name:
Xxxxx
Xxxxxxx
Title:
Vice
Chairman
Attest: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx
X. Xxxxxx
Title: CCO
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