Exhibit No. EX. 99.e.1
Amended and Restated Distribution Agreement
between
THE OLSTEIN FUNDS
and
OLSTEIN CAPITAL MANAGEMENT, L.P.
THIS AGREEMENT made on the 18th day of August, 1995, amended and restated
on the 29th day of July, 1998, September 29, 2004, and subsequently amended and
restated effective on the 1st day of October 2007, between The Olstein Funds
(the "Trust"), a Delaware statutory trust and Olstein Capital Management, L.P.
(formerly, Xxxxxxx & Associates, L.P.) ("Olstein"), a limited partnership
organized under the laws of the State of New York.
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company and is
authorized to issue an unlimited number of shares of beneficial interest, par
value $0.001 per share in one or more classes or series ("Shares"), and has
registered such Shares for public offering and distribution under the Securities
Act of 1933 (the "1933 Act") and any applicable state securities laws; and
WHEREAS, Olstein is engaged in the business of promoting the distribution
of the securities of investment companies, is a member of the Financial Industry
Regulatory Authority (the "FINRA") and is registered as a broker-dealer under
the Securities Exchange Act of 1934 (the "1934 Act") and in various states; and
WHEREAS, the Trust wishes to employ the services of Olstein as the sole
principal underwriter and national distributor of the Shares, and Olstein wishes
to provide such services.
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties agree to amend as follows:
1. Sale of Shares. During the term of this Agreement the Trust grants to
Olstein the right to sell on its behalf Shares of all series and classes of the
Trust, now or hereafter created, subject to the registration requirements of the
1933 Act, and of the laws governing the sale of securities in various states
(the "Blue Sky Laws") under the terms and conditions set forth herein. In
connection therewith, Olstein (i) shall have the right to sell, as agent on
behalf of the Trust, Shares authorized for issue and registered under the 1933
Act and applicable Blue Sky Laws; (ii) shall sell such Shares only in compliance
with applicable law, the terms set forth in the Trust's currently effective
registration statement, and in accordance with any Plan of Distribution of the
Trust for each series and class, as may be in effect from time to time, and
further in compliance with any limitations which may be imposed by the Trustees
of the Trust. Olstein is not obligated to sell any specific number of Shares.
2. Selling Dealer Agreements. Subject to the supervisory authority of the
Trustees of the Trust, and on such terms as are authorized by the Trust, Olstein
may enter into selling dealer agreements with selected dealers and others
("Selling Dealers") for the provision of distribution services related to the
sale of Trust Shares as well as other shareholder services as agreed by affected
parties. Olstein will act only as principal in entering into such selling dealer
agreements.
3. Sale of Shares by the Trust. The rights granted to Olstein shall be
non-exclusive in that the Trust reserves the right to sell its Shares to
investors on applications received and accepted by the Trust. Further, the Trust
reserves the right to issue Shares in connection with (a) the merger or
consolidation of the assets of, or acquisition by the Trust through purchase or
otherwise, with any other investment company, trust or personal holding company;
(b) the payment or reinvestment of dividends or distributions; or (c) any offer
of exchange permitted by Section 11 of the 1940 Act.
4. Shares Covered by this Agreement. This Agreement shall apply to all
Shares of the Trust, all Shares of the Trust held in its treasury in the event
that in the discretion of the Trust treasury Shares shall be sold, and all
Shares of the Trust repurchased for resale.
5. Public Offering Price. Except as otherwise noted in the Trust's current
Prospectus (the "Prospectus") or Statement of Additional Information (the "SAI")
with respect to each series and class, all Shares sold to investors by Olstein
or the Trust will be sold at the public offering price. The public offering
price for all accepted subscriptions will be the net asset value per share, plus
any applicable sales charge on such Shares, determined in the manner described
in the Trust's current Prospectus or SAI with respect to the applicable series
and class. The Trust shall in all cases receive not less than the net asset
value per share on all sales.
6. Suspension of Sales. If and whenever the determination of net asset
value is suspended and until such suspension is terminated, no further orders
for Shares shall be processed by Olstein except such unconditional orders placed
with Olstein before it had knowledge of the suspension. In addition, the Trust
reserves the right to suspend sales and Olstein's authority to process orders
for Shares on behalf of the Trust if, in the judgment of the Trust, it is in the
best interests of the Trust to do so. Suspension will continue for such period
as may be determined by the Trust. In addition, the Trust and Olstein reserve
the right to reject any purchase order.
7. Solicitation of Sales. In consideration of these rights granted to
Olstein, Olstein agrees to use all reasonable efforts, consistent with its other
businesses, to secure purchasers for Shares of the Trust. This shall not prevent
Olstein from entering into like arrangements (including arrangements involving
the payment of underwriting commissions) with other issuers. Olstein agrees to
use all reasonable efforts to ensure that taxpayer identification numbers
provided for shareholders of the Trust are correct.
8. Authorized Representations. Olstein is not authorized by the Trust to
give any information or to make any representations other than those contained
in the appropriate registration statements, Prospectuses or SAI's filed with the
Securities and Exchange Commission (the "SEC") under the 1933 Act or with the
states under applicable Blue Sky Laws (as those registration statements,
Prospectuses and SAI's may be amended from time to time), or contained in
shareholder reports or other material that may be prepared by or on behalf of
the Trust for Olstein's use. This shall not be construed to prevent Olstein from
preparing and distributing, in compliance with applicable laws and regulations,
sales literature or other material as it may deem appropriate. Olstein will
furnish or cause to be furnished copies of such sales literature or other
material to the President of the Trust or his or her designee and will provide
that designee with a reasonable opportunity to comment on it. Olstein agrees to
take appropriate action to cease using such sales literature or other material
to which the Trust reasonably objects as promptly as practicable after receipt
of the objection.
9. Registration of Shares. The Trust agrees that it will take all action
necessary to register under the 1933 Act. Shares which are to be made subject to
any public offering or sale (subject to the necessary approval, if any, of its
shareholders) and to arrange for such Shares to be available for sale in
relevant states, so that there will be available for sale the number of Shares
Olstein may reasonably be expected to sell. The Trust shall furnish to Olstein
copies of all information, financial statements and other papers which Olstein
may reasonably request for use in connection with the distribution of Shares of
the Trust.
10. Repurchase of Shares. Olstein, as agent and for the account of the
Trust, may repurchase Shares offered for resale to it, and redeem such Shares at
their net asset value.
11. Expenses, Compensation and Reimbursement.
(a) The Trust shall pay all fees and expenses:
(i) in connection with the preparation, setting in type and
filing of any registration statement, Prospectus and SAI under the
1933 Act, and any amendments thereto, for the registration of its
Shares;
(ii) in connection with the qualification of Shares for sale in
the various states in which the Board of Trustees (the "Trustees") of
the Trust shall determine it advisable to qualify such Shares for sale
(including registering the Trust or any series as a broker or dealer
or any officer of the Trust as agent or salesperson in any state);
(iii) of preparing, setting in type, printing and mailing any
report or other communication to shareholders of the Trust in their
capacity as such; and
(iv) of preparing, setting in type, printing and mailing
Prospectuses, SAI's, and any supplements thereto, sent to existing
shareholders.
(b) Olstein shall pay costs of:
(i) printing and distributing Prospectuses, SAI's and reports
prepared for its use in connection with the offering of Shares for
sale to the public;
(ii) any other literature used in connection with such offering;
(iii) advertising in connection with such offering including, but
not limited to public relations services, sales presentations, media
charges, and preparation, printing and mailing of advertising and
sales literature; data processing necessary to support a distribution
effort; printing and mailing prospectuses to prospective investors;
sales commissions; and distribution and shareholder servicing
activities of broker-dealers and other financial institutions; and
(iv) filing fees required by regulatory authorities for sales
literature and advertising materials and any additional out-of-pocket
expenses incurred in connection with these and any other costs of
distribution.
(c) In addition to the services described above, Olstein will provide
services including assistance in the production of marketing and
advertising materials for the sale of Shares of the Trust and
Olstein will review them for compliance with applicable
regulatory requirements, and submit them for required regulatory
review.
(d) In connection with the services to be provided by Olstein under
this Agreement, Olstein shall receive from the Trust such
underwriting discounts as shall be authorized from time to time
with respect to the sale of Shares, such payments as shall be
authorized to be paid by the Trust pursuant to any Plan of
Distribution adopted by the Trust in accordance with Rule 12b-1
under the 1940 Act, and reimbursement of such expenses of the
Trust as may be paid by Olstein from time to time.
(e) In connection with the services to be provided by Olstein under
this Agreement, and payments to be made and expenses to be
incurred by the parties under this Agreement, Olstein agrees to
provide to the Board of Trustees of the Trust such information as
may be required to be reviewed by the Trustees under Rule 12b-1
of the 1940 Act, including such financial information as may be
required in connection with the adoption, supervision, or
continuation of any Plan of Distribution of the Trust under such
rule, or the adoption of any budget thereunder.
12. Indemnification.
(a) The Trust agrees to indemnify and hold harmless Olstein and its
employees, along with its general partner and the directors and
officers of the general partner against any loss, liability,
claim, damages or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim,
damages, or expense and reasonable counsel fees incurred in
connection therewith) arising by reason of any person acquiring
any Shares of beneficial interest of the Trust, based upon the
1933 Act or any other statute or common law, alleging any
wrongful act of the Trust or any of its employees or
representatives, or based upon the grounds that the registration
statements, Prospectuses, SAI's, shareholder reports or other
information filed or made public by the Trust (as from time to
time amended) included an untrue statement of a material fact or
omitted to state a material fact required to be stated or
necessary in order to make the statements not misleading.
However, the Trust does not agree to indemnify Olstein or hold it
harmless to the extent that the statement or omission was made in
reliance upon, and in conformity with, information furnished to
the Trust in writing by or on behalf of Olstein. In no case (i)
is the indemnity of the Trust in favor of Olstein or any person
indemnified to be deemed to protect Olstein or any person against
any liability to the Trust or its security holders to which
Olstein or such person would otherwise be subject by reason of
willful misfeasance, bad faith or ordinary negligence in the
performance of its duties or by reason of its reckless disregard
of its obligations and duties under this Agreement, or (ii) is
the Trust to be liable under its indemnity agreement contained in
this section with respect to any claim made against Olstein any
person indemnified unless Olstein or person, as the case may be,
shall have notified the Trust in writing of the claim within a
reasonable time after the summons or other first written
notification giving information of the nature of the claim shall
have been served upon Olstein or any such person or after Olstein
or such person shall have received notice of service on any
designated agent. However, except to the extent the Trust is
harmed thereby, failure to notify the Trust of any claim shall
not relieve the Trust from any liability which it may have
Olstein or any person against whom such action is brought other
than on account of its indemnity agreement contained in this
section. The Trust shall be entitled to participate at its own
expense in the defense, or, if it so elects, to assume the
defense of any suit brought to enforce any claims, but if the
Trust elects to assume the defense, the defense shall be
conducted by counsel chosen by it and satisfactory to Olstein or
person or persons, defendant or defendants in the suit. In the
event the Trust elects to assume the defense of any suit and
retain counsel, Olstein, officers or trustees or controlling
person(s) or defendant(s) in the suit, shall bear the fees and
expenses of any additional counsel retained by them. If the Trust
does not elect to assume the defense of any suit, it will
reimburse Olstein, officers or trustee or controlling person(s)
or defendant(s) in the suit, for the reasonable fees and expenses
of any counsel retained by them. The Trust agrees to notify
Olstein promptly of the commencement of any litigation or
proceedings against it or any of its officers or Trustees in
connection with the issuance or sale of any of the Shares.
(b) Olstein also covenants and agrees that it will indemnify and hold
harmless the Trust and each of its trustees and officers and each
person, if any, who controls the Trust within the meaning of
Section 15 of the 1933 Act, against any loss, liability, damages,
claim or expense (including the reasonable cost of investigating
or defending any alleged loss, liability, damages, claim or
expense and reasonable counsel fees incurred in connection
therewith) arising by reason of any person acquiring any Shares,
based upon the 1933 Act or any other statute or common law,
alleging any wrongful act of Olstein from which such
indemnification is sought, or any of its employees or
representatives, or alleging that the registration statements,
Prospectuses, SAI's, shareholder reports or other information
filed or made public by the Trust (as from time to time amended)
included an untrue statement of a material fact or omitted to
state a material fact required to be stated or necessary in order
to make the statements not misleading, insofar as the statement
or omission was made in reliance upon, and in conformity with,
information furnished in writing to the Trust by or on behalf of
Olstein from which such indemnification is sought. In no case (i)
is the indemnity of Olstein in favor of the Trust or any person
indemnified to be deemed to protect the Trust or any person
against any liability to which the Trust or such person would
otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of its duties or by reason
of its reckless disregard of its obligations and duties under
this Agreement, or (ii) Olstein to be liable under its indemnity
agreement contained in this section with respect to any claim
made against the Trust or any person indemnified unless the Trust
or person, as the case may be, shall have notified Olstein in
writing of the claim within a reasonable time after the summons
or other first written notification giving information of the
nature of the claim shall have been served upon the Trust or any
such person or after the Trust or such person shall have received
notice of service on any designated agent. However, failure to
notify Olstein of any claim shall not relieve Olstein from any
liability which it may have to the Trust or any person against
whom the action is brought other than on account of its indemnity
agreement contained in this section. In the case of any notice to
Olstein, it shall be entitled to participate, at its own expense,
in the defense or, if it so elects, to assume the defense of any
suit brought to enforce any claims, but if Olstein elects to
assume the defense, the defense shall be conducted by counsel
chosen by it and satisfactory to the Trust, to its officers and
trustees and to any controlling person(s) or any defendants(s) in
the suit. In the event Olstein elects to assume the defense of
any suit and retain counsel, the Trust or controlling person(s)
or defendant(s) in the suit, shall bear the fees and expenses of
any additional counsel retained by them. If Olstein does not
elect to assume the defense of any suit, it will reimburse the
Trust, its officers or Trustees, controlling person(s) or
defendant(s) in the suit, for the reasonable fees and expenses of
any counsel retained by them. Olstein agrees to notify the Trust
promptly of the commencement of any litigation or proceedings
against it in connection with the issue and sale of any of the
Shares.
13. Liability of Olstein. Olstein shall not be liable for any damages or
loss suffered by the Trust in connection with the matters to which this
Agreement relates, except for damage or loss resulting from willful misfeasance,
bad faith or gross negligence on Olstein's part in the performance, or reckless
disregard, of its duties under this Agreement. Any person, even though also an
officer, partner, employee or agent of Olstein, or any of its affiliates, who
may be or become an officer of the Trust, shall be deemed, when rendering
services to or acting on any business of the Trust in any such capacity (other
than services or business in connection with Olstein's duties under this
Agreement), to be rendering such services to or acting solely for the Trust and
not as an officer, partner, employee or agent or one under the control or
direction of Olstein or any of its affiliates, even if paid by Olstein or an
affiliate thereof.
14. Acts of God, Equipment Failure. Olstein shall not be liable for any
delays or errors occurring by reason of circumstances not reasonably foreseeable
and beyond its control, including but not limited to acts of civil or military
authority, national emergencies, work stoppages, fire, flood, catastrophe, acts
of God, insurrection, war, riot or failure of communication or power supply. In
addition, in the event of equipment breakdowns which are (i) beyond the
reasonable control of Olstein and (ii) not primarily attributable to the failure
of Olstein to reasonably maintain or provide for the maintenance of such
equipment, Olstein shall, at no additional expense to the Trust, take reasonable
steps in good faith to minimize service interruptions but shall have no
liability with respect thereto.
15. Effectiveness, Termination.
(a) This Agreement shall become effective October 1, 2007 and unless
terminated as provided, shall continue from year to year (through
September 30 of each year), provided continuance is approved at
least annually by either (i) the vote of a majority of the
Trustees of the Trust, or by the vote of a majority of the
outstanding voting securities of the Trust, and (ii) the vote of
a majority of those Trustees of the Trust who are not interested
persons of the Trust and who are not parties to this Agreement or
interested persons of any party, cast in person at a meeting
called for the purpose of voting on the approval.
(b) This Agreement shall automatically terminate in the event of its
assignment. As used in this Section, the terms "vote of a
majority of the outstanding voting securities," "assignment" and
"interested person" shall have the respective meanings specified
in the 1940 Act and the rules enacted thereunder as now in effect
or as hereafter amended.
(c) In addition to termination by failure to approve continuance or
by assignment, this Agreement may at any time be terminated
without the payment of any penalty, on not less than sixty (60)
days written notice, by the Trust (by the vote of a majority of
the Trustees of the Trust, or by vote of a majority of the
outstanding voting securities of the Trust or an affected series
of the Trust) or by Olstein.
16. Amendments. Olstein and the Trust shall regularly consult with each
other regarding Olstein's performance of its obligations and its compensation
under the foregoing provisions. In connection therewith, the Trust shall submit
to Olstein at a reasonable time in advance of filing with the SEC copies of any
amended or supplemented registration statement of the Trust (including exhibits)
under the 1933 Act, and the 1940 Act, and, a reasonable time in advance of their
proposed use, copies of any amended or supplemented forms relating to any plan,
program or service offered by the Trust. Any change in such materials that would
require any change in Olstein's obligations under the foregoing provisions shall
be subject to the burdened party's approval, which shall not be unreasonably
withheld. In the event that a change in such documents or in the procedures
contained therein increases the cost or potential liability to Olstein in
performing its obligations hereunder by more than an insubstantial amount,
Olstein shall be entitled to receive reasonable compensation therefor.
This Agreement may be amended at any time by mutual consent of the parties,
provided that such consent on the part of the Trust shall have been approved (i)
by the Trustees of the Trust, or by a vote of a majority of the outstanding
voting securities of the Trust, and (ii) by vote of a majority of the Trustees
of the Trust who are not interested persons of Olstein or of the Trust cast in
person at a meeting called for the purpose of voting on such amendment.
17. Notice. Any notice under this Agreement shall be given in writing
addressed to the party intended to receive such notice. Any notice may be hand
delivered, or may be sent by registered or certified mail, postage prepaid, to
the receiving party, at its principal place of business.
18. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
19. Governing Law. To the extent that state law has not been preempted by
the provisions of any law of the United States heretofore or hereafter enacted,
as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws of the State of
Delaware.
20. Shareholder Liability. Olstein acknowledges that it has received notice
of and accepts the limitations of liability set forth in the Trust's Agreement
and Declaration of Trust. Olstein agrees that the Trust's obligations hereunder
shall be limited to the assets of the Trust, and that Olstein shall have
recourse solely against the assets of the series with respect to which the
Trust's obligations hereunder relate and shall have no recourse against the
assets of any other series or against any shareholder, Trustee, officer,
employee, or agent of the Trust.
21. Miscellaneous. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. This Agreement may be executed in two
counterparts, each of which taken together shall constitute one and the same
instrument.
22. Anti-Money Laundering.
(a) The parties acknowledge that compliance with the anti-money
laundering programs, when fully and properly implemented and
enforced by each party, are critical to preventing the Trust from
being used for money laundering purposes or for the financing of
terrorist activities, and that the Trust is relying on Olstein to
prevent, detect and report suspected money laundering activity in
connection with Trust shareholder transactions that are
facilitated by Olstein.
(b) Olstein agrees to develop, maintain and implement, and shall
cause any agents or representatives of Olstein used to perform
services under the Agreement to maintain, an anti-money
laundering policies and procedures that comply with the Bank
Secrecy Act of 1970 and Title III of the USA PATRIOT Act of 2001
(the "USA Patriot Act") and the implementing regulations (the
"AML Rules") applicable to the Trust (the "AML Procedures").
(c) Olstein acknowledges that t he Trust will not have access to
detailed information about the beneficial owners of the Trust's
shares. Accordingly, Olstein agrees to provide prompt written
notification to the Trust of: (i) any known or suspected money
laundering activity in connection with the Trust; (ii) any known
or suspected violations of the AML Rules in connection with the
Trust; (iii) any reports received by the Distributor from any
federal regulator(s) pertaining to material non-compliance with
the AML Rules in connection with the Trust; and (iv) any action
taken in response to (i) through (iii).
(d) Each party agrees not to disclose to any third party, other than
a federal law enforcement or regulatory agency, or the Trust's
investment manager, any information pertaining to suspected
money-laundering activity that either party may provide to the
other party or to any federal or state law enforcement or
regulatory agency.
(e) Olstein shall permit the Trust's chief compliance officer, the
Trust's anti-money laundering compliance officer and federal
regulators to: (i) access such information and records maintained
by Olstein that relate to Olstein's implementation of the AML
Procedures on behalf of the Trust; and (ii) inspect Olstein's
implementation of the AML Procedures on behalf of the Trust.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Distribution Agreement.
THE OLSTEIN FUNDS
/s/ Xxxxxx X. Xxxxxxx
By: Xxxxxx X. Xxxxxxx, President
XXXXXXX CAPITAL MANAGEMENT, L.P.
By: Olstein Advisers, LLC, General Partner
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
