Exhibit 23(e)
FORM OF DISTRIBUTION AGREEMENT
FOR
THE GABELLI UTILITIES FUND
DISTRIBUTION AGREEMENT, dated July __, 1999, between The Gabelli
Utilities Fund, a Delaware business trust (the "Fund"), and Gabelli &
Company, Inc., a New York corporation (the "Distributor"). The Fund is
registered as an investment company under the Investment Company Act of
1940, as amended (the "1940 Act"), and an indefinite number of shares (the
"Shares") of the Fund, par value $.001 per share (the "Shares"), have been
registered under the Securities Act of 1933, as amended (the "1933 Act") to
be offered for sale to the public in a continuous public offering in
accordance with terms and conditions set forth in the Prospectus and
Statement of Additional Information (the "Prospectus") of the Fund included
in the Fund's Registration Statement on Form N-1A as such documents may be
amended from time to time.
In this connection, the Fund desires that the Distributor act as
its exclusive sales agent and distributor for the sale and distribution of
Shares. The Distributor has advised the Fund that it is willing to act in
such capacities, and it is accordingly agreed between them as follows:
1. The Fund hereby appoints the Distributor as exclusive sales
agent and distributor for the sale and distribution of Shares pursuant to
the aforesaid continuous public offering of Shares, and the Fund further
agrees from and after the commencement of such continuous public offering
that it will not, without the Distributor's consent, sell or agree to sell
any Shares otherwise than through the Distributor, except the Fund may
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 Fund at any time for any reason the Distributor will
suspend such efforts. The Fund may also withdraw the offering of 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 will
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.
3. The Distributor represents that it is a member in good
standing of the National Association of Dealers, Inc. and agrees that it
will use all reasonable efforts to maintain such status and to abide by the
Rules of Fair Practice, the Constitution and the Bylaws of the National
Association of Securities Dealers, Inc., and all other rules and
regulations that are now or may become applicable to its performance
hereunder. The Distributor will undertake and discharge its obligations
hereunder as an independent contractor and it shall have no authority or
power to obligate or bind the Fund by its actions, conduct or contracts
except that it is authorized to accept orders for the purchase or
repurchase of Shares as the Fund's agent and subject to its approval. The
Fund reserves the right to reject any order in whole or in part. The
Distributor may appoint sub-agents or distribute through dealers or
otherwise as it may determine from time to time pursuant to agreements
approved by the Fund, but this Agreement shall not be construed as
authorizing any dealer or other person to accept orders for sale or
repurchase of Shares on behalf of the Fund or otherwise act as the Fund's
agent for any purpose. The Distributor shall not utilize any materials in
connection with the sale or offering of Shares except the then current
Prospectus and such other materials as the Fund shall provide or approve in
writing.
4. 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 Fund's Board of Trustees or directly to prospective
purchasers. To facilitate sales, the Fund will furnish the Distributor
with the net asset value of its Shares promptly after each calculation
thereof.
5. The Fund has delivered to the Distributor a copy of the
current Prospectus for the Fund. It agrees that it will use its best
efforts to continue the effectiveness of its Registration Statement filed
under the 1933 Act and the 1940 Act. 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 such Acts. The Fund will
furnish the Distributor at the Distributor's expense with a reasonable
number of copies of the Prospectus and any amended Prospectus for use in
connection with the sale of Shares.
6. At the Distributor's request, the Fund will take such steps
at its own expense as may be necessary and feasible to qualify Shares for
sale in states, territories or dependencies of the United States of America
and in the District of Columbia in accordance with the laws thereof, and to
renew or extend any such qualification; provided, however, that the Fund
shall not be required to qualify Shares or to maintain the qualification of
Shares in any state, territory, dependency or district where it shall deem
such qualification disadvantageous to the Fund.
7. The Distributor agrees that:
(a) It will furnish to the Fund any pertinent information
required to be inserted with respect to the Distributor as exclusive
sales agent and distributor within the purview of Federal and state
securities laws in any reports or registrations required to be filed
with any government authority;
(b) It will not make any representations inconsistent with the
information contained in the Registration Statement or Prospectus
filed under the Securities Act of 1933, as in effect from time to
time;
(c) It will not use or distribute or authorize the use or
distribution of any statements other than those contained in the
Fund's then current Prospectus or in such supplemental literature or
advertising as may be authorized in writing by the Fund; and
(d) Subject to Paragraph 9 below, the Distributor will bear the
costs and expenses of printing and distributing any copies of any
prospectuses and annual and interim reports of the Fund (after such
items have been prepared and set in type) which are used in connection
with the offering of Shares, and the costs and expenses of preparing,
printing and distributing any other literature used by the Distributor
or furnished by the Distributor for use in connection with the
offering of the Shares and the costs and expenses incurred by the
Distributor in advertising, promoting and selling Shares of the Fund
to the public. 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, Class B, Class C 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.
8. The Fund will pay its legal and auditing expenses and the
cost of composition of any prospectuses of annual or interim reports of the
Fund.
9. The Fund will pay the Distributor for costs and expenses
incurred by the Distributor in connection with distribution of Shares by
the Distributor in accordance with the terms of a Plan of Distribution (the
"Plan") adopted by the Fund pursuant to Rule 12b-1 under the 1940 Act as
such Plan may be in effect from time to time; provided, however, that no
payments shall be due or paid to the Distributor hereunder unless and until
this Agreement shall have been approved by Board Approval and Disinterested
Board Approval (as such terms are defined in such 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. The
persons authorized to direct the payment of funds pursuant to this
Agreement and the Plan shall provide to the Fund's Board of Trustees, and
the Trustees shall review, at least quarterly a written report of the
amounts so paid and the purposes for which such expenditures were made.
10. The Fund agrees to indemnify, defend and hold the
Distributor, its officers, directors, 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 Fund expressly for use in any such
Prospectus; provided, however, that (1) no indemnitee shall be indemnified
hereunder against any liability to the Fund or the shareholders of the Fund
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
Fund 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 Fund 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 Fund and did not involve disabling
conduct by such indemnitee. Notwithstanding the foregoing the Fund shall
not be obligated to provide any such indemnification to the extent such
provision would waive any right which the Fund cannot lawfully waive.
The Distributor agrees to indemnify, defend and hold the Fund,
its Trustees, officers, employees and agents and any person who controls
the Fund 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 Fund 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 Fund shall make advance payments in connection with the
expenses of defending any action with respect to which indemnification
might be sought hereunder if the Fund 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
Fund unless it is subsequently determined that he is entitled to such
indemnification and if the trustees of the Fund 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 Fund shall be insured
against losses arising by reason of any lawful advances, or (C) a majority
of a quorum of trustees of the Fund who are neither "interested persons" of
the Fund (as defined in Section 2(a)(19) of the Act) nor parties to the
proceeding ("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 of the Fund, 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 such continuance is specifically approved at least annually prior
to each anniversary of such date by (a) Board Approval or by vote at a
meeting of shareholders of the Fund of the lesser of (i) 67 per cent of the
Shares present or represented by proxy and (ii) 50 per cent of the
outstanding Shares and (b) by Disinterested Board Approval.
12. This Agreement may be terminated (a) by the Distributor at
any time without penalty by giving sixty (60) days' written notice to the
Fund which notice may be waived by the Fund; or (b) by the Fund at any time
without penalty upon sixty (60) days' written notice to the Distributor
(which notice may be waived by the Distributor); provided, however, that
any such termination by the Fund 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 signed by each of the parties hereto and approved in the same
manner as provided for continuance of this Agreement in Section 11(a) (or,
in the case of amendment of Section 9, by Section 11(b)). Any such
amendment or change shall be binding upon and shall inure 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 (as such term is defined in the 1940 Act and the rules
thereunder).
14. This Agreement shall be construed in accordance with the
laws of the State of New York applicable to agreements to be performed
entirely therein and in accordance with applicable provisions of the 1940
Act.
15. If any provision of this Agreement shall be held or made
invalid or unenforceable by a court decision, statute, rule or otherwise,
the remainder of this Agreement shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized officers as of the date first
written above.
THE GABELLI UTILITIES FUND
By:________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
GABELLI & COMPANY, INC.
By: _________________________________
Name: Xxxxx X. Xxxxxx
Title:
