Exhibit (e)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT, dated as of April 28, 2000
between THE GABELLI GROWTH FUND (the "Fund") and GABELLI & COMPANY, INC. (the
"Distributor").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Fund, a Massachusetts business trust, is registered as an
investment company under the Investment Company Act of 1940 (the "1940 Act") and
an indefinite number of shares of its beneficial interest (hereinafter referred
to as "shares") have been registered under the Securities Act of 1933 (the "1933
Act") to be offered for sale to the public in a continuous public offering in
accordance with the terms and conditions set forth in the Fund's Prospectuses
(collectively, the "Prospectus") and Statement of Additional Information ("SAI")
included in the Fund's Registration Statement as they may be amended from time
to time; and
WHEREAS, the Fund desires that the Distributor act as general
distributor and as agent of the Fund for the sale and distribution of shares
which have been registered as described above and of any additional shares which
may become registered during the term of this Agreement; and
WHEREAS, the Distributor has advised the Fund that it is willing to act
as such general distributor and agent;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and for other good and valuable consideration the
receipt and adequacy of which is hereby acknowledged, the parties hereto hereby
agree as follows:
Section 1. The Fund hereby appoints the Distributor as its general
distributor and exclusive agent for the sale of its shares pursuant to the
aforesaid continuous public offering of its shares. From and after the date of
this Agreement, the Fund agrees that it will not, without the Distributor's
consent, sell or agree to sell any shares otherwise than through the
Distributor, except that the Fund may (a) sell shares as an investment to its
officers, directors, bona fide full-time employees, its investment adviser and
the affiliates thereof; (b) issue shares in lieu of the cash payments of
dividends and distributions; and (c) issue shares in connection with a merger,
consolidation or acquisition of assets on such basis as may be authorized or
permitted under the 1933 Act.
Section 1. The Distributor hereby accepts such appointment and agrees
to use its best efforts to sell such shares; provided, however, that when
requested by the Fund at any time because of market or other economic
considerations or abnormal circumstances of any kind, it will suspend such
efforts. The Fund may also withdraw the offering of the shares at any time when
required by the provisions of any statute, order, rule or regulation of any
governmental body having jurisdiction. It is understood that the Distributor
does not undertake to sell all or any specific portion of the shares of the
Fund. The Fund acknowledges that the Distributor may enter into sales or
servicing agreements with registered securities brokers and banks and into
servicing agreements with financial institutions and other industry
professionals, such as investment advisers, accountants and estate planning
firms. In entering into such agreements, the Distributor shall act only on its
own behalf as principal underwriter and distributor. The
Distributor shall not be responsible for making any distribution plan or service
fee payments pursuant to any plans the Fund may adopt or agreements it may enter
into.
Section 1. The offering price of the shares shall be the per-share net
asset value of the Fund, as defined in its Declaration of Trust and determined
as set forth in its Prospectus. The Fund shall furnish the Distributor, with all
possible promptness, an advice of each computation of net asset value. The
Distributor shall have the right to accept or reject orders for the purchase of
shares of the Fund. Any consideration which the Distributor may receive in
connection with a rejected purchase order shall be returned promptly. Section 1.
Section 1. The Distributor agrees promptly to issue, or arrange for the
issuance of, confirmations of all accepted purchase orders and to transmit a
copy of such confirmations to the Fund, or, if so directed, to any duly
appointed transfer or shareholder servicing agent of the Fund. The net asset
value of all shares sold pursuant to the provisions hereof shall be paid
promptly after receipt of payment from the originating dealer or purchaser and
not later than eleven business days after such confirmation even if the
Distributor has not actually received payment from the originating dealer or
purchaser. If the originating dealer or purchaser shall fail to make timely
settlement of its purchase order in accordance with the rules of NASD
Regulation, Inc., then the Distributor shall have the right to cancel such
purchase order and, at its account and risk, to hold responsible the originating
dealer or purchaser. The Distributor agrees promptly to reimburse the Fund for
any amount by which the Fund's losses, attributable to any such cancellation or
to errors on the Distributor's part in relation to the effective date of
accepted purchase orders, exceed contemporaneous gains realized by the Fund for
either of such reasons in respect to other purchase orders.
Section 1. The Fund shall register or cause to be registered all shares
sold pursuant to the provisions hereof in such name or names and amounts as the
Distributor may request from time to time and the Fund shall issue or cause to
be issued certificates evidencing such shares for delivery to the Distributor or
pursuant to the Distributor's direction if and to the extent that the
shareholder account in question contemplates the issuance of such share
certificates. All shares of the Fund, when so issued and paid for, shall be
fully non-assessable.
Section 1. The Fund has delivered to the Distributor a copy of its
current Prospectus and SAI. The Fund agrees that it will use its best efforts to
continue the effectiveness of its Registration Statement filed under the 0000
Xxx. The Fund 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 1933 Act. The Fund will furnish to the Distributor, at the
Distributor's expense, a reasonable number of copies of the Prospectus and SAI
and any amended Prospectus and SAI for use in connection with the sale of
shares.
Section 1. The Fund has already registered under the 1940 Act as an
investment company, and it will use its best efforts to maintain such
registration and to comply with the requirements of the 1940 Act.
Section 1. The Distributor agrees that:
(1) neither it nor any of its officers shall take any long or
short position in the shares of the Fund; provided, however, that this
subsection (a) shall not prevent the Distributor or its officers from acquiring
shares of the Fund for investment purposes only;
(1) it shall furnish to the Fund any pertinent information
required to be inserted, with respect to it as Distributor within the purview of
the 1933 Act, in any reports or registration required to be filed with any
governmental authority; and
(1) it shall not make any representations inconsistent with
the information contained in the Registration Statement of the Fund filed under
the 1933 Act, as in effect from time to time.
Section 1. The Fund shall pay its legal and auditing expenses and the
cost of composition, printing and mailing of sufficient copies of its Prospectus
and SAI as shall be required for annual distribution to shareholders and the
expense of registering shares for sale under federal securities laws. The
Distributor shall pay the expenses normally attributable to such sales as it may
make, including advertising and the cost of printing and mailing of the Fund's
Prospectus and SAI other than those furnished to existing shareholders. The Fund
has adopted a separate plan of distribution (collectively, the "Plan") pursuant
to the provisions of rule 12b-1 of the 1940 Act on behalf of its Class A Shares,
Class B Shares, Class C Shares and Class AAA Shares, respectively, each of which
provides for the payment of administrative and sales related expenses in
connection with the distribution of Fund shares and the Distributor agrees to
take no action inconsistent with said Plan. The Fund reserves the right to
modify or terminate such Plan at any time as specified in the Plan and Rule
12b-1, and this Section 9 shall thereupon be modified or terminated to the same
extent without further action of the parties.
Section 1. This Agreement shall become effective on the date first set
forth above and shall remain in effect for up to two years from such date (one
year in the case of Section 9) and thereafter from year to year provided such
provided that such continuance shall be specifically approved at least annually
(a) by the Fund's Board of Trustees, including a vote of a majority of the
Disinterested Non-party Trustees, cast in person at a meeting called for the
purpose of voting on such approval or (b) by the vote of the holders of a
majority of the outstanding voting securities of the Fund and by a vote of the
Board of Trustees.
Section 1. This Agreement may be terminated (a) by the Distributor at
any time without penalty by giving sixty days' written notice (which notice may
be waived by the Fund); or (b) by the Fund at any time without penalty upon
sixty days' written notice to the Distributor (which notice may be waived by the
Distributor), provided that such termination by the Fund shall be directed or
approved in the same manner as required for continuance of this Agreement by
Section 10(a) (or, in the case of termination of Section 9, by Section 10(b)).
Section 1. This Agreement may not be amended or changed except in
writing and shall be binding upon and shall enure to the benefit of the parties
hereto and their respective successors, but this Agreement shall not be assigned
by either party and shall automatically terminate upon assignment.
Section 1. The Distributor understands and agrees that the obligations
of the Fund under this Agreement are not binding upon any shareholder of the
Fund personally, but only the Fund's property; the Distributor represents that
it has notice of the provisions of the
Declaration of Trust of the Fund disclaiming shareholder liability for acts or
obligations of the Fund.
Section 1. The date of this Agreement shall be for reference purposes
only and shall not be construed to imply that this Agreement was effective on
the date first above written. This Agreement shall become effective on the date
on which the Registration Statement of the Fund shall become effective in
accordance with the provisions of the 1933 Act. Section 1.
IN WITNESS WHEREOF, the parties have executed and delivered this
Distribution Agreement as of the date first above written.
THE GABELLI GROWTH FUND
By /S/XXXXX X. XXXXXX
GABELLI & COMPANY, INC.
By XXXXXX X. XXXXXXX
