EXHIBIT (E)
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AMENDED AND RESTATED DISTRIBUTION AGREEMENT,
DATED AS OF NOVEMBER 16, 1999 BETWEEN
THE GABELLI WESTWOOD FUNDS (THE "TRUST")
AND
GABELLI & COMPANY, INC. (THE "DISTRIBUTOR")
W I T N E S S E T H:
WHEREAS, the Trust, a Massachusetts business trust, is registered as an
investment company under the Investment Company Act of 1940 (the "1940 Act")
currently consisting of the series set forth on Exhibit A hereto, as such
Exhibit may be revised from time to time (each, a "Fund"), 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 Trust's Prospectuses
(collectively, the "Prospectus") and Statement of Additional Information ("SAI")
included in the Trust's Registration Statement as they may be amended from time
to time; and
WHEREAS, the Trust desires that the Distributor continue to act as
general distributor and as agent of the Trust 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;
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:
1. The Trust 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 Trust 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 Trust may (a) sell shares as an investment to its officers, Trustees,
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 0000 Xxx.
2. The Distributor hereby accepts such appointment and agrees to use
its best efforts to sell such shares; provided, however, that when requested by
the Trust at any time because of market or other economic considerations or
abnormal circumstances of any kind, it will suspend such efforts. The Trust 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 Trust. The Trust
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 Trust
may adopt or agreements it may enter into.
3. The shares may be sold by the Distributor only at prices and terms
described in the then current Prospectus relating to the shares and may be sold
either through persons with whom it has selling agreements in a form approved by
the Trust's Board of Trustees or directly to prospective purchasers. The Trust
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 a Fund. Any consideration which
the Distributor may receive in connection with a rejected purchase order shall
be returned promptly.
4. 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 Trust, or, if so directed, to any duly
appointed transfer or shareholder servicing agent of the Trust. 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 the National
Association of Securities Dealers, 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 Trust for any amount by which the Trust'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 Trust for either of such reasons in respect to other purchase
orders.
5. The Trust 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 Trust 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 Trust, when so issued and paid for, shall be
fully non-assessable.
6. The Trust has delivered to the Distributor a copy of its current
Prospectus and SAI. The Trust agrees that it will use its best efforts to
continue the effectiveness of its Registration Statement filed under the 0000
Xxx. 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 1933 Act. The Trust 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.
7. The Trust 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.
8. The Distributor agrees that:
(a) neither it nor any of its officers shall take any long or
short position in the shares of any Fund; provided, however,
that this subsection (a) shall not prevent the Distributor or
its officers from acquiring shares of any Fund for investment
purposes only;
(b) it shall furnish to the Trust 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
(c) it shall not make any representations inconsistent with the
information contained in the Registration Statement of the
Trust filed under the 1933 Act, as in effect from time to
time.
9. The Trust 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 Trust's Prospectus and
SAI other than those furnished to existing shareholders. The Trust 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 Series, Class
B Series, Class C Series and Class AAA Series 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.
10. The Trust agrees to indemnify, defend and hold the Distributor, its
officers, Trustees, employees and agents and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act (each, an
"indemnitee"), free and harmless from any and all liabilities and expenses,
including costs of investigation or defense (including reasonable counsel fees)
incurred by such indemnitee in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, in which such
indemnitee may be or may have been involved as a party or otherwise or with
which he may be or may have been threatened, while the Distributor was active in
such capacity or by reason of the Distributor having acted in any such capacity
or arising out of or based upon any untrue statement of a material fact
contained in the then-current Prospectus relating to the shares or arising out
of or based upon any alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such claims, demands, liabilities or expenses arise out of or
are based upon any such untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information furnished
in writing by the Distributor to the Trust expressly for use in any such
Prospectus; provided, however, that (1) no indemnitee shall be indemnified
hereunder against any liability to the Trust or the shareholders of the Trust or
any expense of such indemnitee with respect to any matter as to which such
indemnitee shall have been adjudicated not to have acted in good faith in
the reasonable belief that its action was in the best interest of the Trust or
arising by reason of such indemnitee's 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 ("disabling conduct"), or (2)
as to any matter disposed of by settlement or a compromise payment by such
indemnitee, no indemnification shall be provided unless there has been a
determination that such settlement or compromise is in the best interests of the
Trust and that such indemnitee appears to have acted in good faith in the
reasonable belief that its action was in the best interest of the Trust and did
not involve disabling conduct by such indemnitee. Notwithstanding the foregoing,
the Trust shall not be obligated to provide any such indemnification to the
extent such provision would waive any right which the Trust cannot lawfully
waive.
The Distributor agrees to indemnify, defend and hold the Trust, its
Trustees, officers, employees and agents and any person who controls the Trust
within the meaning of Section 15 of the 1933 Act (each, an "indemnitee"), free
and harmless from and against any and all liabilities and expenses, including
costs of investigation or defense (including reasonable counsel fees) incurred
by such indemnitee, but only to the extent that such liability or expense shall
arise out of or be based upon any untrue or alleged untrue statement of a
material fact contained in information furnished in writing by the Distributor
of the Trust expressly for use in a Prospectus or any alleged omission to state
a material fact in connection with such information required to be stated
therein or necessary to make such information not misleading or arising by
reason of disabling conduct by such indemnitee or any person selling shares
pursuant to an agreement with the Distributor.
The Trust shall make advance payments in connection with the expenses
of defending any action with respect to which indemnification might be sought
hereunder if the Trust receives a written affirmation of the indemnitee's good
faith belief that the standard of conduct necessary for indemnification has been
met and a written undertaking to reimburse the Trust unless it is subsequently
determined that he is entitled to such indemnification and if the Trustees of
the Trust determine that the facts then known to them would not preclude
indemnification. In addition, at least one of the following conditions must be
met: (A) the indemnitee shall provide a security for his undertaking, (B) the
Trust shall be insured against losses arising by reason of any lawful advances,
or (C) a majority of a quorum of Trustees of the Trust who are neither
"interested persons" of the Trust (as defined in Section 2(a)(19) of the Act)
nor parties to this Agreement ("Disinterested Non-Party Trustees") or an
independent legal counsel in a written opinion, shall determine, based on a
review of readily available facts (as opposed to a full trial-type inquiry),
that there is reason to believe that the indemnitee ultimately will be found
entitled to indemnification.
All determinations with respect to indemnification hereunder shall be
made (1) by a final decision on the merits by a court or other body before whom
the proceeding was brought that such indemnitee is not liable by reason of
disabling conduct or, (2) in the absence of such a decision, by (i) a majority
vote of a quorum of the Disinterested Non-Party Trustees, or (ii) if such a
quorum is not obtainable or even, if obtainable, if a majority vote of such
quorum so directs, independent legal counsel in a written opinion.
11. 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 that such
continuance shall be specifically approved at least annually (a) by the Trust'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 Trust and by a vote of the Board of Trustees.
12. 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 Trust), or (b) by the Trust 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 Trust shall be directed or
approved in the same manner as required for continuance of this Agreement by
Section 11(a) (or, in the case of termination of Section 9, by Section 11(b)).
13. 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.
14. The Distributor understands and agrees that the obligations of the
Trust under this Agreement are not binding upon any shareholder of the Trust
personally, but only the Trust's property; the Distributor represents that it
has notice of the provisions of the Declaration of Trust of the Trust
disclaiming shareholder liability for acts or obligations of the Trust.
15. 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 Trust shall become effective in accordance
with the provisions of the 1933 Act.
IN WITNESS WHEREOF, the parties have executed and delivered this
Distribution Agreement as of the date first above written.
THE GABELLI WESTWOOD FUNDS
By /S/ Xxxxx X. Xxxxx
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Name: Xxxxx X. XxXxx
Title: Secretary
GABELLI & COMPANY, INC.
By /S/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
