AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT, entered into as of March 15,
1999, by and between Nottingham Investment Trust II (the "Trust"), an
unincorporated business trust organized under the laws of The Commonwealth of
Massachusetts and Capital Investment Group, Inc., a North Carolina corporation
("Distributor").
WITNESSETH:
WHEREAS, the Trust is engaged in business as an open-end management investment
company and is so registered under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue an unlimited number of shares of
beneficial interest (the "Shares"), in separate series representing interests in
separate funds of securities and other assets; and
WHEREAS, the Trust is authorized to issue interest in separate classes of Shares
for each of its series now or in the future existing; and
WHEREAS, the Shares of the Trust are registered under the Securities Act of
1933, as amended (the "1933 Act"), pursuant to a registration statement on Form
N-1A (the "Registration Statement"), including a prospectus (the "Prospectus")
and a statement of additional information (the "Statement of Additional
Information"); and
WHEREAS, the separate series of the Trust advised by Xxxxxxxx, Xxxxx & Xxxxxx
Asset Management, Inc. which are set forth in Schedule A (each a "Designated
Fund"), as amended from time to time, consists of three classes of Shares (the
Institutional Class Shares, the Investor Class Shares and the Class C Shares);
and
WHEREAS, the Trust has adopted a Distribution Plan pursuant to Rule 12b-1 under
the 1940 Act (the "Distribution Plan") with respect to the Investor Class Shares
and the Class C Shares of the series designated in Schedule A, and may enter
into related agreements providing for the distribution of such Shares of each
Designated Fund; and
WHEREAS, Distributor has agreed to act as distributor of the Shares of the Funds
for the period of this Agreement;
NOW, THEREFORE, it is hereby agreed between the parties hereto as follows:
1. Appointment of Distributor.
(a) The Trust hereby appoints Distributor its exclusive agent for the
distribution of the Shares of each Designated Fund in jurisdictions wherein such
Shares may be legally offered for sale; provided, however, that the Trust in its
absolute discretion may issue Shares of each Designated Fund in connection with
(i) the payment or reinvestment of dividends or distributions, (ii) any merger
or consolidation of the Trust or of each Designated Fund with any other
investment company or trust or any personal holding company, or the acquisition
of the assets of any such entity or another fund of the Trust; or (iii) any
offer of exchange permitted by Section 11 of the 0000 Xxx.
(b) Distributor hereby accepts such appointment as exclusive agent for
the distribution of the Shares of each Designated Fund and agrees that it will
sell the Shares as agent for the Trust at prices determined as hereinafter
provided and on the terms hereinafter set forth, all according to applicable
federal and state laws and regulations and to the Agreement and Declaration of
Trust of the Trust.
(c) Distributor may sell Shares of each Designated Fund to or through
qualified dealers or others. Distributor will require each dealer to conform to
the provisions hereof, the Registration Statement and the Prospectus and
Statement of Additional Information, and applicable law; and neither Distributor
nor any such dealers shall withhold the placing of purchase orders for Shares so
as to make a profit thereby.
(d) Distributor shall order Shares of each Designated Fund from the
Trust only to the extent that it shall have received purchase orders therefor.
Distributor will not make, or authorize any dealers or others to make: (i) any
short sales of Shares; or (ii) any sales of Shares to any Trustee or officer of
the Trust or to any officer or director of Distributor or of any corporation or
association furnishing investment advisory, managerial or supervisory services
to the Trust, or to any such corporation or association, unless such sales are
made in accordance with the then current Prospectus and Statement of Additional
Information.
(e) Distributor is not authorized by the Trust to give any information
or make any representations regarding the Shares of each Designated Fund, except
such information or representations as are contained in the Registration
Statement or in the current Prospectus or Statement of Additional Information of
each Designated Fund, or in sales literature prepared by or on behalf of the
Trust for Distributor's use.
(f) Notwithstanding any provision hereof, the Trust may terminate,
suspend or withdraw the offering of Shares of each Designated Fund whenever, in
its sole discretion, it deems such action to be desirable.
2. Offering Price of Shares. All Designated Fund Shares sold under this
Agreement shall be sold at the public offering price per Share in effect at the
time of the sale, as described in the then current Prospectus for the Designated
Fund. The excess, if any, of the public offering price over the net asset value
of the Shares sold by Distributor as agent shall be retained by Distributor as a
commission for its services hereunder. Out of such commission Distributor may
allow commissions or concessions to dealers and may allow them to others in its
discretion in such amounts as Distributor shall determine from time to time.
Except as may be otherwise determined by Distributor from time to time, such
commissions or concessions shall be uniform to all dealers. At no time shall the
Trust receive less than the full net asset value of the Shares, determined in
the manner set forth in the then current Prospectus and Statement of Additional
Information. Distributor shall also be entitled to such commissions and other
fees and payments as may be authorized by the Trustees of the Trust from time to
time under any Distribution Plan adopted by the Trust.
3. Furnishing of Information. The Trust shall furnish to Distributor
copies of any information, financial statements and other documents that
Distributor may reasonably request for use in connection with the sale of shares
of each Designated Fund under this Agreement. The Trust shall also make
available a sufficient number of copies of each Designated Fund's current
Prospectus and Statement of Additional Information for use by the Distributor.
4. Expenses.
(a) The Trust will pay or cause to be paid the following expenses: (i)
preparation, printing and distribution to shareholders of the Prospectus and
Statement of Additional Information; (ii) preparation, printing and distribution
of reports and other communications to shareholders; (iii) registration of the
Shares under the federal securities laws; (iv) qualification of the Shares for
sale in certain states; (v) qualification of the Trust as a dealer or broker
under state law as well as qualification of the Trust as an entity authorized to
do business in certain states; (vi) maintaining facilities for the issue and
transfer of Shares; (vii) supplying information, prices and other data to be
furnished by the Trust under this Agreement; and (viii) certain taxes applicable
to the sale or delivery of the Shares or certificates therefor.
(b) Except to the extent such expenses are borne by the Trust pursuant
to any Distribution Plan adopted by the Trust with respect to any Class of
Shares issued by any Designated Fund, Distributor will pay or cause to be paid
the following expenses: (i) payments to sales representatives of the Distributor
and to securities dealers and others in respect of the sale of Shares of each
Designated Fund; (ii) payment of compensation to and expenses of employees of
the Distributor and any of its affiliates to the extent they engage in or
support distribution of each Designated Fund's Shares or render shareholder
support services not otherwise provided by the Trust's transfer agent,
administrator, or custodian, including, but not limited to, office space and
equipment, telephone facilities and expenses, answering routine inquiries
regarding each Designated Fund, processing shareholder transactions, and
providing such other shareholder services as the Trust may reasonably request;
(iii) formulation and implementation of marketing and promotional activities,
including, but not limited to, direct mail promotions and television, radio,
newspaper, magazine and other mass media advertising; (iv) preparation, printing
and distribution of sales literature and of Prospectuses and Statements of
Additional Information and reports of the Trust for recipients other than
existing shareholders of each Designated Fund; and (v) obtaining such
information, analyses and reports with respect to marketing and promotional
activities as the Trust may, from time to time, reasonably request.
(c) Distributor in connection with any Distribution Plan adopted by
the Trust shall prepare and deliver reports to the Trustees of the Trust on a
regular basis, at least quarterly, showing the expenditures with respect to each
Designated Fund pursuant to the Distribution Plan and the purposes therefor, as
well as any supplemental reports as the Trustees of the Trust, from time to
time, may reasonably request.
5. Redemption of Shares. Distributor as agent and for the account of
the Trust may redeem Shares at their net asset value plus any applicable sales
load or redemption fee as specified in the Trust's current Prospectus and
Statement of Additional Information.
6. Indemnification by the Trust. The distributor shall exercise
reasonable care in connection with its responsibilities under this Agreement. In
absence of misfeasance, bad faith, negligence or reckless disregard of
obligations or duties hereunder on the part of Distributor, the Trust agrees to
indemnify Distributor and its officers and partners and to hold them harmless
against any and all claims, demands, liabilities and expenses that Distributor
may incur under the 1933 Act, the 1940 Act, common law or otherwise arising out
of or based upon any alleged untrue statement of a material fact contained in
the Registration Statement or any Prospectus or Statement of Additional
Information of each Designated Fund, or in any advertisements or sales
literature prepared by or on behalf of the Trust for Distributor's use, or any
omission to state a material fact therein, the omission of which makes any
statement contained therein misleading, unless such statement or omission was
made in reliance upon and in conformity with information furnished to the Trust
in connection therewith by or on behalf of Distributor. Nothing herein contained
shall require the Trust to take any action contrary to any provision of its
Agreement and Declaration of Trust or any applicable statute or regulation.
7. Indemnification by Distributor. Distributor agrees to indemnify the
Trust and its officers and Trustees and to hold them harmless against any and
all claims, demands, liabilities and expenses which the Trust may incur under
the 1933 Act, the 1940 Act, common law or otherwise arising out of or based upon
(i) any untrue statement of a material fact or alleged untrue statement of a
material fact contained in the Registration Statement or any Prospectus or
Statement of Additional Information of each Designated Fund, or in any
advertisements or sales literature prepared by or on behalf of the Trust for
Distributor's use, or any omission to state a material fact therein, the
omission of which makes any statement contained therein misleading, if such
statement or omission to state a material fact was made in reliance upon and in
conformity with information furnished to the Trust in connection therewith by or
on behalf of Distributor; (ii) any act or deed of Distributor or its sales
representatives, or securities dealers and others authorized to sell Shares
hereunder or their sales representatives that has not been specifically
authorized in advance by the Trust in any Prospectus or Statement of Additional
Information of each Designated Fund or by this Agreement or other written
instrument; or (iii) any misfeasance, bad faith or negligence by the Distributor
or reckless disregard by the Distributor of its obligations or duties hereunder.
8. Term and Termination.
(a) With respect to any new Designated Fund of the Trust that is
advised by Xxxxxxxx, Xxxxx & Xxxxxx Asset Management, Inc., this Agreement shall
continue in effect for an initial two year period from the date such Designated
Fund is added to this Agreement, as set forth in Schedule A, unless sooner
terminated as provided herein. Unless terminated as herein provided, this
Agreement shall continue in effect, with respect to each Designated Fund (after
its initial two year term), for one year from the date hereof and shall continue
in full force and effect for successive periods of one year thereafter, but only
so long as each such continuance is approved (i) by either the Trustees of the
Trust or by vote of a majority of the outstanding voting securities (as defined
in the 0000 Xxx) of the Designated Fund and, in either event, (ii) by vote of a
majority of the Trustees of the Trust who are not parties to this Agreement or
interested persons (as defined in the 0000 Xxx) of any such party and who have
no direct or indirect financial interest in this Agreement or in the operation
of the Distribution Plan or in any agreement related thereto ("Independent
Trustees"), cast at a meeting called for the purpose of voting on such approval.
(b) This Agreement may be terminated with respect to any Fund, at any
time without the payment of any penalty by vote of the Trustees of the Trust or
a majority of the Independent Trustees or by vote of a majority of the
outstanding voting securities (as defined in the 0000 Xxx) of each Fund or by
Distributor, on sixty days' written notice to the other party.
(c) This Agreement shall automatically terminate in the event of its
assignment (as defined in the 1940 Act).
9. Limitation of Liability. It is expressly agreed that the obligations
of the Trust hereunder shall not be binding upon any of the Trustees, officers
or shareholders of the Trust personally, but shall bind only the assets and
property of the Trust. The term "Nottingham Investment Trust II" means and
refers to the Trustees from time to time serving under the Agreement and the
Declaration of Trust of the Trust dated October 25, 1990, and amended and
restated on the 17th of April 1995 ("Amended and Restated Declaration of
Trust"). The execution and delivery of this Agreement has been authorized by the
Trustees, and this Agreement has been signed on behalf of the Trust by an
authorized officer of the Trust, acting as such and not individually, and
neither such authorization by such Trustees nor such execution and delivery by
such officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the assets
and property of the Trust as provided in the Agreement and Amended and Restated
Declaration of Trust and by Massachusetts Business Trust or other applicable
law.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed
as of the date first written above.
NOTTINGHAM INVESTMENT TRUST II
Attest: ____________________
By: __________________________
CAPITAL INVESTMENT GROUP, INC.
Attest: ____________________
By: __________________________
SCHEDULE A
The list below, which may be amended from time to time, sets forth the
Funds of the Nottingham Trust II that are advised by Xxxxxxxx, Xxxxx and Xxxxxx
Asset Management, Inc., and the shares of which are distributed by Capital
Investment Group, Inc. as provided in the Amended and Restated Distribution
Agreement:
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FUNDS DATE ADDED TO THE AGREEMENT
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WST Growth & Income Fund March 15, 1999
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