Exhibit (e)(2)
Amended and Restated Distribution Agreement
AGREEMENT made this 12/th/ day of February, 2002 by and between XXXXXX
XXXXXX INVESTMENT TRUST, a Massachusetts business trust (the "Trust"), and
XXXXXX XXXXXX DISTRIBUTORS, L.P., a Delaware limited partnership (the
"Distributor").
W I T N E S S E T H:
In consideration of the promises and covenants hereinafter contained, and
for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by each of the parties hereto, the Trust and the Distributor
agree as follows:
1. Distributor. The Trust hereby appoints the Distributor as general
distributor of shares of beneficial interest of each series ("Series") of
the Trust ("Series shares") during the term of this Agreement. The Trust
reserves the right, however, to refuse at any time or times to sell any
Series shares hereunder for any reason deemed adequate by the Board of
Trustees of the Trust.
2. Sale and Payment. Under this agreement, the following provisions shall
apply with respect to the sale of and payment for Series shares:
(a) The Distributor shall have the right, as principal, to purchase
Series shares from the Trust at their net asset value and to sell
such shares to the public against orders therefor at such net asset
value.
(b) Prior to the time of delivery of any shares by the Trust to, or on
the order of, the Distributor, the Distributor shall pay or cause to
be paid to the Trust or to its order an amount in Boston or New York
clearing house funds equal to the applicable net asset value of such
shares.
3. Fee. For its services as general distributor of the Series shares, the
Trust shall pay to the Distributor, on behalf of each Series that has
adopted a Distribution Plan, a Distribution Fee at the rate and upon the
terms and conditions set forth in the Distribution Plans attached as
Exhibit A hereto, and as amended from time to time. The Distribution Fee
shall be accrued daily and paid monthly to the Distributor as soon as
practicable after the end of the calendar month in which it accrues, but
in any event within five business days following the last day of the
month.
4. Public Offering Price. The public offering price shall be the net asset
value of Series shares. The net asset value of Series shares shall be
determined in accordance with the provisions of the agreement and
declaration of trust and by-laws of the Trust and the current
prospectus(es) of the Trust relating to the Series shares.
5. Trust Issuance of Series Shares. The delivery of Series shares shall be
made promptly by a credit to a shareholder's open account for the relevant
Series. The Trust reserves the right (a) to issue Series shares at any
time directly to the shareholders of the Series as a stock dividend or
stock split, (b) to issue to such shareholders Series shares, or rights to
subscribe to Series shares, as all or part of any dividend that may be
distributed to shareholders of the Series or as all or part of any
optional or alternative dividend that may be distributed to
shareholders of the Series, and (c) to sell Series shares in accordance
with any current applicable prospectus of the Trust relating to the
Series shares.
6. Repurchase. The Distributor shall act as agent for the Trust in
connection with the repurchase of Series shares by the Trust to the
extent and upon the terms and conditions set forth in the current
applicable prospectus(es) of the Trust relating to the Series shares, and
the Trust agrees to reimburse the Distributor, from time to time upon
demand, for any reasonable expenses incurred in connection with such
repurchases of shares.
7. Undertaking Regarding Sales. The Distributor shall use reasonable efforts
to sell Series shares but does not agree hereby to sell any specific
number of Series shares and shall be free to act as distributor of the
shares of other investment companies. Series shares will be sold by the
Distributor only against orders therefor. The Distributor shall not
purchase Series shares from anyone except in accordance with Sections 2
and 6 and shall not take "long" or "short" positions in Series shares
contrary to the agreement and declaration of trust or by-laws of the
Trust.
8. Compliance. The Distributor shall conform to the Conduct Rules of the
National Association of Securities Dealers, Inc. ("NASD") and the sale of
securities laws of any jurisdiction in which it sells, directly or
indirectly, any Series shares. The Distributor agrees to make timely
filings, with the Securities and Exchange Commission (the "SEC") in
Washington, D.C., the NASD and such other regulatory authorities as may
be required, of any sales literature relating to the Series and intended
for distribution to prospective investors. The Distributor also agrees to
furnish to the Trust sufficient copies of any agreements or plans it
intends to use in connection with any sales of Series shares in adequate
time for the Trust to file and clear them with the proper authorities
before they are put in use (which the Trust agrees to use its best
efforts to do as expeditiously as reasonably possible), and not to use
them until so filed and cleared.
9. Registration and Qualification of Series Shares. The Trust agrees to
execute such papers and to do such acts and things as shall from time to
time be reasonably requested by the Distributor for the purpose of
qualifying and maintaining qualification of the Series shares for sale
under the so-called Blue Sky Laws of any state or for maintaining the
registration of the Trust and of the Series shares under the federal
Investment Company Act of 1940 (the "1940 Act") and the federal
Securities Act of 1933, to the end that there will be available for sale
from time to time such number of Series shares as the Distributor may
reasonably be expected to sell. The Trust shall advise the Distributor
promptly of (a) any action of the SEC or any authorities of any state or
territory, of which it may be advised, affecting registration or
qualification of the Trust or the Series shares, or rights to offer
Series shares for sale, and (b) the happening of any event which makes
untrue any statement or which requires the making of any change in the
Trust's registration statement or its prospectus relating to the Series
shares in order to make the statements therein not misleading.
10. Distributor is an Independent Contractor. The Distributor shall be an
independent contractor and neither the Distributor nor any of its
officers or employees as such is or
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shall be an employee of the Trust. The Distributor is responsible for its
own conduct and 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. The Distributor assumes full responsibility for
its agents and employees under applicable statutes and agrees to pay all
employer taxes thereunder.
11. Expenses Paid by Distributor. While the Distributor continues to act as
agent of the Trust to obtain subscriptions for and to sell Series shares,
the Distributor shall pay the following:
(a) all expenses of printing (exclusive of typesetting) and distributing
any prospectus for use in offering Series shares for sale, and all
other copies of any such prospectus used by the Distributor, and
(b) all other expenses of advertising and of preparing, printing and
distributing all other literature or material for use in connection
with offering Series shares for sale.
12. Interests in and of Distributor. It is understood that any of the
shareholders, trustees, officers, employees and agents of the Trust may be
a shareholder, director, officer, employee or agent of, or be otherwise
interested in, the Distributor, any affiliated person of the Distributor,
any organization in which tthe Distributor may have an interest or any
organization which may have an interest in the Distributor; that the
Distributor, any such affiliated person or any such organization may have
an interest In the Trust; and that the existence of any such dual interest
shall not affect the validity hereof or of any transaction hereunder
except as otherwise provided in the agreement and declaration of the trust
or by-laws of the Trust, in the limited partnership agreement of the
Distributor or by specific provision of applicable law.
13. Effective Date and Termination. This Agreement shall become effective as
of the date of its execution, and
(a) Unless otherwise terminated, this Agreement shall continue in effect
with respect to the shares of a Series so long as such continuation
is specifically approved at least annually (i) by the Board of
Trustees of the Trust or by the vote of a majority of the votes
which may be cast by shareholders of the Series and (ii) by a vote
of a majority of the Board of Trustees of the Trust who are not
interested persons of the Distributor or the Trust, cast in person
at a meeting called for the purpose of voting on such approval.
(b) This Agreement may at any time be terminated on sixty days' notice
to the Distributor either by vote of a majority of the Trust's Board
of Trustees then in office or by the vote of a majority of the votes
which may be cast by shareholders of the Series.
(c) This Agreement shall automatically terminate in the event of its
assignment.
(d) This Agreement may be terminated by the Distributor on ninety days'
written notice to the Trust.
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Termination of this Agreement pursuant to this section shall be without
payment of any penalty.
14. Definitions. For purposes of this Agreement, the following definitions
shall apply:
(a) The "vote of a majority of the votes which may be cast by shareholders of
the Series" means (1) 67% or more of the votes of the Series present (in
person or by proxy) and entitled to vote at such meeting, if the holders
of more than 50% of the outstanding shares of the Series entitled to vote
at such meeting are present; or (2) the vote of the holders of more than
50% of the outstanding shares of the Series entitled to vote at such
meeting, whichever is less.
(b) The terms "affiliated person," "interested person" and "assignment"
shall have their respective meanings as defined in the 1940 Act
subject, however, to such exemptions as may be granted by the SEC
under the 1940 Act.
15. Amendment. This Agreement may be amended at any time by mutual consent of
the parties, provided that such consent on the part of the Series shall
be approved (i) by the Board of Trustees of the Trust or by vote of a
majority of the votes which may be cast by shareholders of the Series and
(ii) by a vote of a majority of the Board of Trustees of the Trust who
are not interested persons of the Distributor or the Trust cast in person
at a meeting called for the purpose of voting on such approval.
16. Applicable Law and Liabilities. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of
Massachusetts. All sales hereunder are to be made, and title to the Series
shares shall pass, in Boston, Massachusetts.
17. Limited Recourse. The Distributor hereby acknowledges that the Trust's
obligations hereunder are binding only on the assets and property
belonging to the Trust.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
XXXXXX XXXXXX INVESTMENT TRUST
BY: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
President
XXXXXX XXXXXX DISTRIBUTORS, L.P.
By: Xxxxxx Xxxxxx Distributors, Incorporated,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President
A copy of the Agreement and Declaration of Trust establishing Xxxxxx Xxxxxx
Investment Trust (the "Trust") is on file with the Secretary of The Commonwealth
of Massachusetts, and notice is hereby given that this Agreement is executed on
behalf of the Trust by officers of the Trust as officers and not individually
and that the obligations of or arising out of this Agreement are not binding
upon any of the trustees, officers or shareholders of the Trust individually but
are binding only upon the assets and property of the Trust.
