Exhibit (e)(1)
CALAMOS INVESTMENT TRUST
SECOND AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
This SECOND AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the
"Agreement") made as of March 1, 2007, between CALAMOS FINANCIAL SERVICES LLC, a
limited liability company organized under the laws of the State of Delaware and
having its principal office and place of business in Naperville, Illinois (the
"Distributor"), and CALAMOS INVESTMENT TRUST, a Massachusetts business trust
having its principal office and place of business in Naperville, Illinois (the
"Trust"), which offers shares of beneficial interest in different series
representing interests in different portfolios of assets (each series being
referred to herein as a "Fund").
WITNESSETH:
In consideration of the agreements herein contained and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, it is agreed:
1. APPOINTMENT OF DISTRIBUTOR. The Trust hereby appoints the Distributor as
its exclusive agent to sell and distribute Class A Shares, Class B Shares, Class
C Shares, Class I and Class R Shares (collectively, the "Shares") of each Fund
at the offering price thereof as from time to time determined in the manner
herein provided. The Distributor hereby accepts such appointment and agrees
during the term of this Agreement to provide the services and to assume the
obligations set forth herein. 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 (a) the Trust may itself sell Shares as an
investment to the trustees, officers, directors and bona fide full-time
employees of the Trust, the Distributor and the Trust's investment adviser; and
(b) the Trust may issue Shares in connection with a merger, consolidation or
acquisition of assets on such basis as may be authorized or permitted under the
Investment Company Act of 1940, as amended (the "Investment Company Act");
provided that in no event as to any of the foregoing exceptions shall the Shares
be issued and sold at less than the net asset value thereof.
2. BASIS OF SALE OF SHARES. The Distributor does not agree to sell any
specific number of Shares. Shares will be sold by the Distributor as agent for
the Trust only against orders therefor. The Distributor will not purchase Shares
from anyone other than the Trust except as agent for the Trust.
3. OFFERING PRICE. All Shares offered for sale by the Distributor shall be
offered for sale at a price per share (the "Offering Price") equal to (a) the
net asset value per share of the Fund (determined in the manner set forth in the
Trust's Declaration of Trust) plus (b) in the case of Class A Shares, except as
set forth in the then current Prospectuses, a sales charge applicable to Shares,
which shall be the percentage of the Offering Price of such Shares as set forth
in the Fund's then current effective Prospectuses, and, in the case of the Class
B, Class C and Class R Shares, as set forth below. The Offering Price, if not an
exact multiple of one cent, shall be adjusted to the nearest cent.
4. DISTRIBUTION FEES AND CONTINGENT DEFERRED SALES CHARGES.
(A) CLASS B SHARES. In accordance with the Second Amended and Restated
Distribution Plan effective December 14, 2006 (the "Plan"), the Trust in respect
of each Fund shall pay to the Distributor or, at the Distributor's direction, to
a third party, monthly in arrears on or prior to the third business day of the
following calendar month, a fee (the "Class B Distribution Fee") equal to the
average daily net assets of Class B Shares multiplied by that portion of 0.75%
that the number of days in the month bears to 365. The Trust in respect of each
Fund agrees to withhold from redemption proceeds of the Class B Shares, any
contingent deferred sales charge ("CDSC") payable with respect to the Class B
Shares, as provided in such Fund's Prospectus, and to pay the same over to the
Distributor or, at the Distributor's direction, to a third party or such party's
designee, at the time the redemption proceeds are payable to the holder of such
shares redeemed. Payment of these CDSC amounts to the Distributor is not
contingent upon the adoption or continuation of any Plan.
The Distributor shall be considered to have performed all services so as to
entitle it to the right to the payment of the Class B Distribution Fee so long
as the Plan with regard to such Class B Shares continues pursuant to its terms
and the right to payment of any CDSC with respect to each Class B Share upon the
settlement date of the redemption of such Class B Share.
The provisions set forth in Section 5 of the Plan (in effect on the date
hereof) are hereby incorporated by reference into this Section 4(a) with the
same force and effect as if set forth herein in their entirety.
(B) CLASS C SHARES. In accordance with the Plan, the Trust in respect of
each Fund shall pay to the Distributor or, at the Distributor's direction, to a
third party, monthly in arrears on or prior to the third business day of the
following calendar month, a fee (the "Class C Distribution Fee") equal to the
average daily net assets of Class C Shares multiplied by that portion of 0.75%
that the number of days in the month bears to 365. The Trust in respect of each
Fund agrees to withhold from redemption proceeds of the Class C Shares, any CDSC
payable with respect to the Class C Shares, as provided in such Fund's
Prospectus, and to pay the same over to the Distributor or, at the Distributor's
direction, to a third party or such party's designee, at the time the redemption
proceeds are payable to the holder of such shares redeemed. Payment of these
CDSC amounts to the Distributor is not contingent upon the adoption or
continuation of any Plan.
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The Distributor shall be considered to have performed all services so as to
entitle it to the right to the payment of the Class C Distribution Fee with
respect to the first year following issuance of each Class C Share so long as
with respect to the Class C Distribution Fee, the Plan with regard to such Class
C Shares continues pursuant to its term and the right to payment of the CDSC
with respect to each Class C Share upon the settlement date of the redemption of
such Class C Share,.
The provisions set forth in Section 5 of the Plan (in effect on the date
hereof) are hereby incorporated by reference into this Section 4(b) with the
same force and effect as if set forth herein in their entirety.
(C) CLASS R SHARES. In accordance with the Plan, the Trust in respect of
each Fund shall pay to the Distributor or, at the Distributor's direction, to a
third party, monthly in arrears on or prior to the third business day of the
following calendar month, a fee (the "Class R Distribution Fee") equal to the
average daily net assets of Class R Shares multiplied by that portion of 0.50%
that the number of days in the month bears to 365.
(D) PAYMENTS.
(i) The Trust will not take any action to waive or change any
CDSC in respect to the Class B or C Shares of any Fund, the date of
original issuance of which occurs on or prior to the taking of such
action, except as provided in the Fund's prospectus or statement of
additional information on the date such Class B or Class C Share was
issued, without the consent of the Distributor and its assigns, and
nothing will terminate the Distributor's right to the CDSCs (including
without limitation a Complete Termination, as defined in Section
5(iii) of the Plan) with respect to such shares.
(ii) Except as provided in Section 5(ii) of the Plan, the Fund's
obligation to pay the Distribution Fees and CDSCs payable in respect
of the Class B or C Shares of any Fund, as applicable, to the
Distributor shall be absolute and unconditional and shall not be
subject to any dispute, offset, counterclaim or any defense
whatsoever, at law or equity, including, without limitation, any of
the foregoing based on the insolvency or bankruptcy of the
Distributor.
5. SERVICE FEES. The Trust in respect of each Fund and Class of shares
shall pay to the Distributor, monthly in arrears on or prior to the third
business day of the following calendar month, a fee for personal shareholder
services or recordkeeping (the "Service Fee") at the rate described in the
applicable current prospectus of such Fund and Class at the time of such
payment.
6. MANNER OF OFFERING. The Distributor will conform to the securities laws
of any jurisdiction in which it sells, directly or indirectly, any Shares. The
Distributor also agrees to furnish to the Trust sufficient copies of any
agreements, plans or sales literature it intends to use in connection with any
sales of Shares in adequate time for the Trust to file and clear them with the
proper authorities before they are put in use, and not to use them until so
filed and cleared.
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The Distributor shall have the right to accept or reject orders for
the purchase of Shares. Any consideration that the Distributor may receive in
connection with a rejected purchase order will be returned promptly to the
prospective purchaser. The Trust or its transfer agent or shareholder servicing
agent is authorized to confirm sales of Shares on behalf of the Distributor. The
Trust shall register or cause to be registered all Shares sold by the
Distributor 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
Distributor or pursuant to Distributor's direction if and to the extent that the
Trust contemplates the issuance of such share certificates. All Shares, when so
issued and paid for, shall be fully paid and nonassessable.
7. SECURITIES LAWS. The Trust has delivered to Distributor a copy of the
current Prospectus relating to Shares. The Trust agrees that it will use its
best efforts to continue the effectiveness of the Trust's Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act"). 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
Securities Act. The Trust has already registered under the Investment Company
Act as an investment company, and it will use its best efforts to maintain such
registration and to comply with the requirements of said Act.
At the Distributor's request, the Trust will take such steps as may be
necessary and feasible to qualify Shares for sale in states, territories or
dependencies of the United States of America, in the District of Columbia and in
foreign countries, in accordance with the laws thereof, and to renew or extend
any such qualification; provided, however, that the Trust shall not be required
to qualify Shares or to maintain the qualification of Shares in any state,
territory, dependency, district or country where it shall deem such
qualification disadvantageous to the Trust.
The Distributor agrees that:
(a) Neither the Distributor nor any of it officers will take any long
or short position in the Shares, but this provision shall not prevent the
Distributor or its officers from acquiring Shares for investment purposes
only;
(b) The Distributor shall furnish to the Trust any pertinent
information required to be inserted with respect to the Distributor as the
Distributor within the purview of the Securities Act in any reports or
registration required to be filed with any governmental authority; and
(c) The Distributor will not make any representations inconsistent
with the Registration Statement or Prospectus(es) of the Funds filed under
the Securities Act, as in effect from time to time.
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8. ALLOCATION OF EXPENSES.
(a) The Trust, either directly or through its investment adviser, will
be responsible for, and shall pay the expenses incurred in connection with:
(i) providing all necessary services, including fees and
disbursements of counsel, related to the preparation, setting in type,
printing and filing of any registration statement and/or
prospectus(es) and statement of additional information required under
the Securities Act, or under state securities laws, covering its
Shares, and all amendments and supplements thereto, the mailing of any
such prospectus(es) and statement of additional information to
existing shareholders, and preparing, setting in type, printing and
mailing periodic reports to existing shareholders;
(ii) the cost of all registration or qualification fees;
(iii) the cost of preparing temporary and permanent share
certificates for Shares;
(iv) all the Federal and state (if any) issue and/or transfer
taxes payable upon the issue by or transfer from the Trust to the
Distributor of any and all Shares distributed hereunder.
(b) The Distributor shall bear all sales, promotion or distribution
expenses in connection with the distribution of Shares and shall be the
sole judge of the extent to which sales or promotion expenses shall be
incurred. Expenses incurred in complying with laws regulating the issue or
sale of securities shall not be deemed to be sales, promotion or
distribution expenses. The Distributor agrees that, after the
prospectus(es), statement of additional information and periodic reports
have been set in type, it will bear the expense of printing and
distributing any copies thereof that are to be used in connection with the
offering of Shares to investors. The Distributor further agrees that it
will bear the expenses of preparing, printing and distributing any other
literature used by the Distributor or furnished by it for use in connection
with the offering of the Shares for sale to the public.
(c) The Trust will be responsible for, and shall pay the expenses of,
maintaining shareholder accounts and furnishing or causing to be furnished
to each shareholder a statement of his account.
9. THE DISTRIBUTOR IS AN INDEPENDENT CONTRACTOR. The Distributor shall be
an independent contractor. The Distributor is responsible for its own conduct,
for the employment, control and conduct of its agents and employees and for
injury to such agents or employees or to others through its agents or employees.
The Distributor assumes full responsibility for its agents and employees under
applicable statutes and agrees to pay all employer taxes thereunder.
10. TERM OF CONTRACT. This Distribution Agreement shall go into effect on
the date hereof and shall continue in effect until July 31, 2007, and thereafter
for successive periods of one year each if such continuance is approved at least
annually thereafter (i) either by an affirmative vote of a majority of the
outstanding Shares or by the Trustees, (ii) in either case by a
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majority of the Trustees who are not interested persons of the Distributor or
(otherwise than as Trustees) of the Trust, cast in person at a meeting called
for the purpose of voting on such approval. Written notice of discontinuance of
this Distribution Agreement may be given by one party hereto to the other upon
not less than 60 days' notice.
11. ASSIGNMENT. This Distribution Agreement may not be assigned by the
Distributor and shall automatically terminate in the event of an attempted
assignment by the Distributor; provided, however, that the Distributor may
employ or enter into agreements with such other person, persons, corporation, or
corporations, as it shall determine in order to assist it in carrying out this
Distribution Agreement, and nothing herein shall prohibit the assignment, sale
or pledge by the Distributor of its rights to receive Class B Distribution Fees,
Class C Distribution Fees, Class R Distribution Fees or the CDSC with respect to
the Class B Shares or Class C Shares.
12. INDEMNIFICATION BY DISTRIBUTOR. The Distributor agrees to indemnify and
hold harmless the Trust or any other person who has been, is, or may hereafter
be an officer, Trustee or employee of the Trust against any loss, damage or
expense reasonably incurred by any of them in connection with any claim or in
connection with any action, suit, or proceeding to which any of them may be a
party, which arises out of or is alleged to arise out of or is based upon any
untrue statement or alleged untrue statement of a material fact, or the omission
or alleged omission to state a material fact necessary to make the statements
made not misleading, on the part of the Distributor or any agent or employee of
the Distributor or any other person for whose acts the Distributor is
responsible or is alleged to be responsible, such as any dealer or person
through whom sales are made pursuant to an agreement with the Distributor,
unless such statement or omission was made in reliance upon written information
furnished by the Trust. The term "expenses" for purposes of this and the next
paragraph includes attorney's fees and amounts paid in satisfaction of judgments
or in settlements that are made with the Distributor's consent. The foregoing
rights of indemnification shall be in addition to any other rights to which the
Trust or a Trustee may be entitled as a matter of law.
13. INDEMNIFICATION BY TRUST. The Trust agrees to indemnify and hold
harmless the Distributor and each person who has been, is, or may hereafter be
an officer, director, employee or agent of the Distributor against any loss,
damage or expense reasonably incurred by any of them in connection with any
claim or in connection with any action, suit or proceeding to which any of them
may be a party, which arises out of or is alleged to arise out of or is based
upon any untrue or alleged untrue statement of material fact, or the omission or
alleged omission to state a material fact necessary to make the statements
therein not misleading, contained in a registration statement or prospectus, or
any amendment or supplement thereto, unless such statement or omission was made
in reliance upon written information furnished by the Distributor. The foregoing
rights of indemnification shall be in addition to any other rights to which the
Distributor may be entitled as a matter of law. Nothing contained herein shall
relieve the Distributor of any liability to the Trust or its shareholders to
which the Distributor would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of its duties or
reckless disregard of its obligations and duties hereunder.
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14. NON-EXCLUSIVE AGREEMENT. The services of the Distributor to the Trust
hereunder shall not be deemed to be exclusive, and the Distributor shall be free
to (a) render similar services to, and act as underwriter or distributor in
connection with the distribution of shares of, other investment companies, and
(b) engage in any other businesses and activities from time to time.
15. AMENDMENT. This Distribution Agreement may be amended at any time by
mutual agreement in writing of the parties hereto, provided that any such
amendment is approved by a majority of the Trustees who are not interested
persons of the Distributor or by the holders of a majority of the outstanding
Shares or Funds affected.
16. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of Illinois.
17. LIMITATION OF LIABILITY. It is expressly agreed that the obligations of
the Trust hereunder shall not be binding upon any of the Trustees, shareholders,
nominees, officers, agents or employees of the Trust, personally, but shall bind
only the assets and property of the Trust as provided in the Trust's Declaration
of Trust. The execution and delivery of this Agreement have been authorized by
the Trustees and shareholders of the Trust and signed by an authorized officer
of the Trust, acting as such, and neither such authorization by the Trustees and
shareholders 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 its Declaration of Trust.
18. TERMINATION OF PRIOR AGREEMENT. All prior Distribution Agreements
between the parties are hereby terminated.
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IN WITNESS WHEREOF, this Distribution Agreement has been executed for the
Distributor and the Trust by their duly authorized officers, as of the date
first set forth above.
CALAMOS FINANCIAL SERVICES LLC
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Chief
Operating Officer and Treasurer
ATTEST:
/s/ Xxxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Executive Vice President, General
Counsel and Secretary
CALAMOS INVESTMENT TRUST
By /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Secretary
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