Exhibit (e)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT,
dated as of April 28, 2000 between
THE GABELLI ASSET FUND (the "Fund") and GABELLI & COMPANY,
INC. (the "Distributor").
W I T N E S S E T H:
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WHEREAS, the Fund, a Massachusetts business trust, is registered as an
investment company under the Investment Company Act of 1940 (the "1940
Act") 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 Fund's Prospectuses (collectively, the
"Prospectus") and Statement of Additional Information ("SAI") included in
the Fund's Registration Statement as they may be amended from time to time;
and
WHEREAS, the Fund desires that the Distributor act as general
distributor and as agent of the Fund 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; and
WHEREAS, the Distributor has advised the Fund that it is willing
to act as such general distributor and agent;
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:
Section 5. The Fund 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 Fund 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 Fund may (a) sell shares as an
investment to its officers, directors, 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 1933 Act.
Section 6. 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 because of market or other economic
considerations or abnormal circumstances of any kind, it will suspend such
efforts. The Fund 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 Fund. The Fund 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 Fund may adopt or agreements
it may enter into.
Section 7. The offering price of the shares shall be the
per-share net asset value of the Fund, as defined in its Declaration of
Trust and determined as set forth in its Prospectus. The Fund 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 the Fund. Any
consideration which the Distributor may receive in connection with a
rejected purchase order shall be returned promptly. Section 1.
Section 8. 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 Fund, or, if so directed, to
any duly appointed transfer or shareholder servicing agent of the Fund. 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 NASD Regulation, 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 Fund for any amount by which the Fund'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 Fund for either of
such reasons in respect to other purchase orders.
Section 9. The Fund 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 Fund 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 Fund, when so issued
and paid for, shall be fully non-assessable.
Section 10. The Fund has delivered to the Distributor a copy of
its current Prospectus and SAI. The Fund agrees that it will use its best
efforts to continue the effectiveness of its Registration Statement filed
under the 0000 Xxx. 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 the 1933 Act. The Fund 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.
Section 11. The Fund 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.
Section 12. The Distributor agrees that:
(1) neither it nor any of its officers shall take any long or
short position in the shares of the Fund; provided, however, that this
subsection (a) shall not prevent the Distributor or its officers from
acquiring shares of the Fund for investment purposes only;
(2) it shall furnish to the Fund 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
(3) it shall not make any representations inconsistent with the
information contained in the Registration Statement of the Fund filed under
the 1933 Act, as in effect from time to time.
Section 13. The Fund 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 Fund's Prospectus and SAI other than
those furnished to existing shareholders. 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 Shares, Class B
Shares, Class C Shares 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. 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.
Section 14. 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 provided that such continuance shall be specifically
approved at least annually (a) by the Fund'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 Fund and by a vote of the Board of Trustees.
Section 15. 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 Fund); or (b) by the Fund 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 Fund shall be directed or approved in the same manner as
required for continuance of this Agreement by Section 10(a) (or, in the
case of termination of Section 9, by Section 10(b)).
Section 16. 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.
Section 17. The Distributor understands and agrees that the
obligations of the Fund under this Agreement are not binding upon any
shareholder of the Fund personally, but only the Fund's property; the
Distributor represents that it has notice of the provisions of the
Declaration of Trust of the Fund disclaiming shareholder liability for acts
or obligations of the Fund.
Section 18. 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 Fund 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 ASSET FUND
By /s/Xxxxx X. Xxxxxx
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GABELLI & COMPANY, INC.
By /s/ Xxxxxx X. Xxxxxxx
