Exhibit e(2)
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of _________ __, 2003, by and between
DOMINI SOCIAL INVESTMENT TRUST, 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") and consists
of one or more series;
WHEREAS, the Trust desires to enter into this Distribution Agreement with
respect to the shares designated Class R Shares for each of its current and
future series; and
WHEREAS, the Trust wishes to engage the Distributor to provide certain
services with respect the distribution of Class R Shares of the Trust, and the
Distributor is willing to provide such services to each series of the Trust on
the terms and conditions hereinafter set forth;
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:
1. The Trust grants to the Distributor the right, as agent of the Trust,
to sell its shares of beneficial interest designated Class R Shares ("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 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 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, 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 National Association of
Securities Dealers, 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 National
Association of Securities Dealers, 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, 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; provided,
however, that in no case (i) is the indemnity of the Trust in favor of the
Distributor deemed to protect any person who is also an officer or Trustee of
the Trust or who controls the Trust within the meaning of Section 15 of the
1933 Act unless a court of competent jurisdiction shall determine, or it shall
have been determined by controlling precedent, that such result would not be
against public policy as expressed in the 1933 Act; and further provided, that
in no event 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 (ii) 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. 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, printing, reproducing and
distributing to shareholders and prospective 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; and
(iii) the cost and expenses of delivering to the Distributor all Shares
purchased through it as agent hereunder. The Distributor shall receive no
compensation for its services to the Trust hereunder.
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 of the Trust, 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 the
vote of a majority of the Trustees of the Trust who are not "interested
persons" of the Trust or the Distributor, (b) by the vote of the Board of
Trustees of the Trust, or (c) by the "vote of a majority of the outstanding
voting securities" of the Shares of the applicable series of the Trust, 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 may not be altered or amended, except by an instrument in writing,
and executed by both parties. 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.
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 of the Trust 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:
