Exhibit (e): Distribution Agreement between the Registrant and
----------- Capital Investment Group, Inc.
DISTRIBUTION AGREEMENT
This AGREEMENT, dated this the 6th day of December 2000, between XXXXXXX CAPITAL
MANAGEMENT INVESTMENT TRUST, an unincorporated business trust organized under
the laws of the State of Delaware (the "Trust"), and CAPITAL INVESTMENT GROUP,
INC., a North Carolina corporation (the "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 ("Shares") representing interests in separate series of
securities and other assets, as identified in Appendix A (each a "Fund"); and
WHEREAS, the Trust offers the Shares of such Funds and has registered the Shares
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 Trust has adopted a Plan of Distribution Pursuant to Rule 12b-1
under the 1940 Act (the "Distribution Plan") with respect to Shares of certain
of the Funds, and may enter into related agreements providing for the
distribution of such Shares; 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 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 Fund in connection with (i) the payment or reinvestment of
dividends or distributions; (ii) any merger or consolidation of
the Trust or of a 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 1940 Act, or any
other applicable provision.
(b) Distributor hereby accepts such appointment as exclusive agent
for the distribution of the Shares of each 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 Trust Instrument of the Trust.
(c) Distributor may sell Shares of each Fund to or through qualified
securities dealers or others. Distributor will require each
dealer or other such party 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 or others shall withhold the
placing of purchase orders for Shares so as to make a profit
thereby.
(d) Distributor shall order Shares of each 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
any 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 Fund,
or in advertisements and 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 any Fund whenever,
in its sole discretion, it deems such action to be desirable.
2. Offering Price of Shares. All Funds 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 of each
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
the Distribution Plan.
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 Fund under this Agreement. The Trust shall also
make available a sufficient number of copies of each 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 therefore.
(b) Except to the extent such expenses are borne by the Trust
pursuant to the Distribution Plan, 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 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 Funds Shares or render shareholder
support services not otherwise provided by the Trust's transfer
agent, administrator, or custodian, including, but not limited
to, answering routine inquiries regarding a 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 a 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 the Distribution Plan 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 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. Repurchase of Shares. Distributor as agent and for the account of the
Trust may repurchase Shares of each Fund offered for resale to it and
redeem such Shares at their net asset value.
6. Indemnification by the Trust. In absence of willful misfeasance, bad
faith, gross 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 against any and all claims,
demands, liabilities and expenses that Distributor may incur under the
1933 Act, or 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 a 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 against any and all claims,
demands, liabilities and expenses which the Trust may incur under the
1933 Act, or common law or otherwise, arising out of or based upon (i)
any alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus or Statement of Additional
Information of any 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 was made in reliance upon and in conformity with information
furnished to the Trust in connection therewith by or on behalf of
Distributor; or (ii) any act or deed of Distributor or its sales
representatives, or securities dealers and others authorized to sell
Funds Shares hereunder, or their sales representatives, that has not
been authorized by the Trust in any Prospectus or Statement of
Additional Information of any Fund or by this Agreement.
8. Term and Termination.
(a) With respect to each Fund, this Agreement shall become effective
upon the commencement of operations of each Fund as set forth in
the attached appendices. Unless terminated as herein provided,
with respect to each Fund, this Agreement shall continue in
effect for two years from the date of each Fund's commencement of
operations and, with respect to each Fund, 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
each 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) With respect to each Fund, this Agreement may be terminated 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. 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 "Xxxxxxx Capital Management Investment Trust"
means and refers to the Trustees from time to time serving under the
Agreement and Trust Instrument of the 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 Trust Instrument of Trust.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed
as of the date first written above.
XXXXXXX CAPITAL MANAGEMENT INVESTMENT TRUST
Attest: /s/ Xxxxxx X. Xxxxxxx
_________________________
By: /s/ Xxxx X. Xxxx, Xx.
____________________________
CAPITAL INVESTMENT GROUP,INC.
Attest: /s/ Xxxx Xxxxxx
_________________________
By: /s/ Xxxxxxx X. Xxxxxx
____________________________
APPENDIX A
Dated as of December 6, 2000
o The Xxxxxxx Aggressive Equity Fund
Date Fund commenced operations:__________________
o The Xxxxxxx Total Return Fund
Date Fund commenced operations:__________________
