Exhibit 5
FORM OF AMENDED DISTRIBUTION AGREEMENT
BETWEEN
OPUS INVESTMENT TRUST
AND
VERAVEST INVESTMENTS, INC.
This Amended Distribution Agreement, made as of the ___ day of ________, 2004,
by and between Opus Investment Trust, a business trust organized and existing
under the laws of the Commonwealth of Massachusetts (hereinafter called the
"Trust") and VeraVest Investments, Inc., a corporation organized and existing
under the laws of the Commonwealth of Massachusetts (hereinafter called the
"Distributor").
WITNESSETH:
WHEREAS, the Trust engages in business as an open-end management investment
company and is registered as such under the federal Investment Company Act of
1940, as amended ("ICA-40"); and
WHEREAS, the Trust is authorized to issue shares of beneficial interest
("Shares") in separate series, with each such series representing the interests
in a separate portfolio of securities and other assets; and
WHEREAS, the Trust currently offers Shares in the Opus Cash Reserves ("Fund"),
such series together with any other series which may be established later and
served by the Distributor hereunder, being herein referred to collectively as
the "Funds" and individually referred to as a "Fund"; and
WHEREAS, the Distributor is engaged in the business of distributing securities,
including shares of investment companies, and is registered as a broker-dealer
under the Securities Exchange Act of 1934, as amended, ("SEA-34") and is a
member of the National Association of Securities Dealers, Inc. ("NASD"); and
WHEREAS, the Trust desires the Distributor to act as the distributor in the
public offering of the Shares of the Funds; and
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. Delivery of Trust Documents. The Trust has furnished Distributor with
copies, properly certified or authenticated, of each of the following:
(a) Agreement and Declaration of Trust as in effect on the date hereof
("Declaration of Trust").
(b) By-Laws of the Trust as in effect on the date hereof.
(c) Resolutions of the Board of Trustees of the Trust selecting
Distributor as principal underwriter for the Funds and approving this
form of agreement.
The Trust shall furnish the Distributor from time to time with copies,
properly certified or authenticated, of all the amendments of, or
supplements to, the foregoing, if any.
The Trust shall furnish Distributor promptly with properly certified or
authenticated copies of any registration statements filed by it on behalf
of the Funds with the Securities and Exchange Commission under the
Securities Act of 1933, as amended ("SA-33") or ICA-40, together with any
financial statements and exhibits included therein, and all amendments or
supplements thereto hereafter filed.
2. Sale of Shares. Subject to the provisions of Paragraphs 3, 4, and 6 hereof,
and to such minimum purchase requirements as may from time to time be
currently indicated in the Trust's prospectus, on behalf of the
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Funds, the Distributor is authorized to sell, as agent for the Trust, on
behalf of the Funds, Shares authorized for issuance and registered under
SA-33. Distributor may also purchase as principal such Shares for resale to
the public. Such sale will be made by Distributor on behalf of the Funds by
accepting unconditional orders to purchase the Shares placed with
Distributor by investors and such purchases will be made by Distributor
only after acceptance by Distributor of such orders. The sales price to the
public of such Shares shall be the public offering price as defined in
Paragraph 5 hereof.
3. Sale of Shares by the Trust. The rights granted to the Distributor shall be
nonexclusive in that the Trust, on behalf of the Funds, reserves the right
to sell Shares of the Funds to investors pursuant to applications received
and accepted by the Trust or its transfer agent, if any. Further, the Trust
reserves the right to issue Shares in connection with the merger or
consolidation of any other investment company, trust or personal holding
company with the Trust or the Trust's acquisition by the purchase or
otherwise, of all or substantially all of the assets of an investment
company, trust or personal holding company. Any right granted to
Distributor to accept orders for Shares, or to make sales on behalf of the
Funds or to purchase Shares for resale, will not apply to Shares issued in
connection with the merger or consolidation of any other investment company
with the Trust or its acquisition by purchase or otherwise, of all or
substantially all of the assets of any investment company, trust or
personal holding company, or substantially all of the outstanding shares or
interests of any such entity, and such right shall not apply to Shares that
may be offered by the Trust to shareholders by virtue of their being
shareholders of the Funds.
4. Shares Covered by this Agreement. This Agreement relates to the issuance
and sale of Shares that are duly authorized, registered, and available for
sale by the Trust, on behalf of the Funds, including redeemed or
repurchased Shares if and to the extent that they may be legally sold and
if, but only if, the Trust authorizes the Distributor to sell them.
5. Public Offering Price. All Shares sold by the Distributor pursuant to this
Agreement shall be sold at the public offering price. The public offering
price for all accepted subscriptions will be the net asset value per share,
as determined in the manner provided in the Trust's Declaration of Trust,
with respect to the Funds, as now in effect, or as it may be amended (and
as reflected in the then current prospectus of the Trust, with respect to
the Funds), next
determined after the order is accepted by the Distributor. The Distributor
will process orders submitted by brokers for the sale of Shares at the
public offering price exclusive of any commission charged by such broker to
his customer.
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 accepted by the Distributor except such unconditional
orders placed with the Distributor before it had knowledge of the
suspension. In addition, the Trust reserves the right to suspend sales and
Distributor's authority to accept orders for Shares on behalf of a Fund if,
in the judgment of the Board of Trustees of the Trust, it is in the best
interests of the Trust or Fund to do so, such suspension to continue for
such period as may be determined by the Board of Trustees; and in that
event, no orders to purchase Shares shall be processed or accepted by the
Distributor on behalf of the Funds while such suspension remains in effect
except for Shares necessary to cover unconditional orders accepted by
Distributor before it had knowledge of the suspension, unless otherwise
directed by the Board of Trustees.
7. Solicitation of Orders. In consideration of the rights granted to the
Distributor under this Agreement, Distributor will use its best efforts
(but only in states in which Distributor may lawfully do so) to obtain from
investors unconditional orders for Shares authorized for issuance by the
Trust, on behalf of the Funds, and registered under SA-33, provided that
Distributor may in its discretion reject any order to purchase Shares. This
does not obligate the Distributor to register or maintain its registration
as a broker or dealer under the state securities laws of any jurisdiction
if, in the discretion of the Distributor, such registration is not
practical or feasible. The Funds shall make available to the Distributor at
the expense of the Distributor such number of copies of the Funds'
currently effective prospectus as the Distributor may reasonably request.
The Funds shall furnish to the Distributor copies of all information,
financial statements and other papers which the Distributor may reasonably
request for use in connection with the distribution of Shares.
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8. Authorized Representations. The Trust is not authorized by the Distributor
to give, on behalf of the Distributor, any information or to make any
representations other than the information and representations contained in
a registration statement or prospectus filed with the SEC under SA-33
and/or ICA-40, covering Shares, as such registration statement and
prospectus may be amended or supplemented from time to time.
Distributor is not authorized by the Trust to give on behalf of the Funds
any information or to make any representations in connection with the sale
of Shares other than the information and representations contained in a
registration statement or prospectus filed with the Securities and Exchange
Commission ("SEC") under SA-33 and/or ICA-40, covering Shares, as such
registration statement and prospectus may be amended or supplemented from
time to time, or contained in shareholder reports or other material that
may be prepared by or on behalf of the Fund for the Distributor's use. This
shall not be construed to prevent the Distributor from preparing and
distributing tombstone ads and sales literature or other material as it may
deem appropriate. No person other than Distributor is authorized to act as
principal underwriter (as such term is defined in ICA-40, as amended) for
the Trust.
9. Registration and Sale of Additional Shares. The Trust, on behalf of the
Funds will, from time to time, use its best efforts to register under
SA-33, such Shares of the Funds as Distributor may reasonably be expected
to sell on behalf of the Funds. In connection therewith, the Trust, on
behalf of the Funds, hereby agrees to register an indefinite number of
Shares under SA-33 and ICA-40. The Trust, on behalf of the Funds will, in
cooperation with the Distributor, take such action as may be necessary from
time to time to qualify such Shares in any state mutually agreeable to the
Distributor and the Funds, and to maintain such qualification.
10. Expenses. The Distributor shall pay, or will enter arrangements providing
that persons other than Distributor shall pay, all fees and expenses:
a. incurred in connection with its registration as a broker or dealer or
the registration or qualification of its officers, directors or
representations under federal and state laws; and
b. incurred in connection with the sale and offering for sale of Shares
which may have been specifically allocated to the Distributor.
Other than the expenses specifically assumed by the Distributor or the
investment manager of the Trust, under the Management Agreement
between the investment manager and the Trust, all expenses incurred in
the operation of the Trust are borne by the Trust.
11. Conformity with Law. Distributor agrees that in selling Shares it shall
duly conform in all respects with the laws of the United States and any
state in which such Shares may be offered for sale by Distributor pursuant
to this Agreement and to the rules and regulations of the NASD.
12. Independent Contractor. Distributor shall be an independent contractor and
neither Distributor, nor any of its officers, directors, employees, or
representatives is or shall be an employee of the Trust in the performance
of Distributor's duties hereunder. Distributor shall be responsible for its
own conduct and 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. Distributor assumes full responsibility for its
agents and employees under applicable statutes and agrees to pay all
employee taxes thereunder.
13. Indemnification. Distributor agrees to indemnify and hold harmless the
Trust or Funds, as appropriate, and each of the Trust's Trustees, officers,
employees, representatives and each person, if any, who controls the Trust
or Funds within the meaning of Section 15 of SA-33 against any and all
losses, liabilities, damages, claims or expenses (including the reasonable
costs of investigating or defending any alleged loss, liability, damage,
claim or expense and reasonable legal counsel fees incurred in connection
therewith) to which the Trust or Funds or such of the Trust's Trustees,
officers, employees, representatives or controlling person may become
subject under SA-33, under any other statute, at common law, or otherwise,
arising out of the acquisition of any Shares by any person which (i) may be
based upon any
wrongful act by Distributor or any of Distributor's directors, officers,
employees or representatives, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact contained in a
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registration statement, prospectus, shareholder report or other information
covering Shares filed or made public by the Trust, on behalf of the Funds,
or any amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading unless such
statement or omission was made in reliance upon information furnished to
the Distributor by the Trust. In no case (i) is Distributor's indemnity in
favor of the Trust or Funds, as appropriate, or any person indemnified to
be deemed to protect the Trust or Funds, as appropriate, or such
indemnified person against any liability to which the Trust or Funds, as
appropriate, or such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of his
duties or by reason of his reckless disregard of his obligations and duties
under this Agreement or (ii) is Distributor to be liable under its
indemnity agreement contained in this Paragraph with respect to any claim
made against the Trust or Funds, as appropriate, or any person indemnified
unless the Trust or Funds, as appropriate, or such person, as the case may
be, shall have notified Distributor 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 Funds, as appropriate, or upon such person (or after the Trust
or Fund or such person shall have received notice of such service on any
designated agent). However, failure to notify Distributor of any such claim
shall not relieve Distributor from any liability which Distributor may have
to the Trust or Fund or any person against whom such action is brought
otherwise than on account of Distributor's indemnity agreement contained in
this Paragraph.
Distributor shall be entitled to participate, at its own expense, in the
defense, or, if Distributor so elects, to assume the defense of any suit
brought to enforce any such claim, but, if Distributor elects to assume the
defense, such defense shall be conducted by legal counsel chosen by
Distributor and satisfactory to the Trust, on behalf of the Funds, to its
Trustees, officers, employees or representatives, or to any controlling
person or persons, defendant or defendants, in the suit. In the event that
Distributor elects to assume the defense of any such suit and retain such
legal counsel, the Trust, its Trustees, officers, employees,
representatives or controlling person or persons, defendant or defendants
in the suit, shall bear the fees and expenses of any additional legal
counsel retained by them. If Distributor does not elect to assume the
defense of any such suit, Distributor will reimburse the Trust, on behalf
of the Funds, such Trustees, officers, employees, representatives or
controlling person or persons, defendant or defendants in such suit for the
reasonable fees and expenses of any legal counsel retained by them.
Distributor agrees to promptly notify the Trust of the commencement of any
litigation or proceedings against it or any of its directors, officers,
employees or representatives in connection with the issue or sale of any
Shares.
The Trust, on behalf of the Funds, agrees to indemnify and hold harmless
Distributor and each of its directors, officers, employees, representatives
and each person, if any, who controls Distributor within the meaning of
Section 15 of SA-33 against any and all losses, liabilities, damages,
claims or expenses (including the reasonable costs of investigating or
defending any alleged loss, liability, damage, claim or expense and
reasonable legal counsel
fees incurred in connection therewith) to which Distributor or such of its
directors, officers, employees, representatives or controlling person may
become subject under SA-33, under any other statute, at common law, or
otherwise, arising out of the acquisition of any Shares by any person which
(i) may be based upon any wrongful act by the Trust or any of the Trust's
Trustees, officers, employees or representatives, or (ii) may be based upon
any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, prospectus, shareholder report or
other information covering Shares filed or made public by the Trust, on
behalf of the Funds, or any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading unless such statement or omission was made in reliance upon
information furnished to the Trust by the Distributor. In no case (i) is
the Trust's indemnity in favor of the Distributor, or any person
indemnified to be deemed to protect the Distributor or such indemnified
person against any liability to which the Distributor or such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his duties or by reason of his reckless
disregard of his obligations and duties under this Agreement, or (ii) is
the Trust, on behalf of the Funds, to be liable under its indemnity
agreement contained in this Paragraph with respect to any claim made
against Distributor, or person indemnified unless Distributor, or such
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 Distributor or upon such person (or after Distributor or such
person shall
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have received notice of such service on any designated agent). However,
failure to notify the Trust of any such claim shall not relieve the Trust
from any liability which the Trust may have to Distributor or any person
against whom such action is brought otherwise than on account of the
Trust's indemnity agreement contained in this Paragraph.
The Trust, on behalf of the Funds, shall be entitled to participate, at its
own expense, in the defense, or, if the Trust, on behalf of the Funds, so
elects, to assume the defense of any suit brought to enforce any such
claim, but, if the Trust, on behalf of the Funds, elects to assume the
defense, such defense shall be conducted by legal counsel chosen by the
Trust, on behalf of the Funds, and satisfactory to Distributor, to its
directors, officers, employees or representatives, or to any controlling
person or persons, defendant or defendants, in the suit. In the event that
the Trust, on behalf of the Funds, elects to assume the defense of any such
suit and retain such legal counsel, Distributor, its directors, officers,
employees, representatives or controlling person or persons, defendant or
defendants in the suit, shall bear the fees and expenses of any additional
legal counsel retained by them. If the Trust, on behalf of the Funds, does
not elect to assume the defense of any such suit, the Trust, on behalf of
the Funds, will reimburse Distributor, such directors, officers, employees,
representatives or controlling person or persons, defendant or defendants
in such suit for the reasonable fees and expenses of any legal counsel
retained by them. The Trust, on behalf of the Funds, agrees to promptly
notify Distributor of the commencement of any litigation or proceedings
against it or any of its Trustees, officers, employees, or representatives
in connection with the issue or sale of any Shares.
14. Limitation on Liability. A copy of Trust's Declaration of Trust is on file
with the Secretary of State of the Commonwealth of Massachusetts, and
notice is hereby given that this
instrument is executed by the Trustees as Trustees or any officer or
officers as officers and not individually, and that the obligations of this
instrument are not binding upon any of the Trustees, officers or
shareholders individually but are binding only upon the assets and property
of the Trust.
15. Duration and Termination of this Agreement. This Agreement shall become
effective upon its execution ("effective date") and, unless terminated as
provided, shall remain in effect through __________, 2005 and from year to
year thereafter, but only so long as such continuance is specifically
approved at least annually by the vote of a majority of the Trustees of the
Trust who are not interested persons of Distributor or of the Trust, cast
in person at a meeting called for the purpose of voting on such approval,
and by vote of the Trustees of the Trust or of a majority of the
outstanding voting securities of the Trust. This Agreement may, on 60 days'
written notice, be terminated at any time, without the payment of any
penalty, by the vote of a majority of the Trustees of the Trust who are not
interested persons of Distributor or the Trust, by a vote of a majority of
the outstanding voting securities of the Trust, or by Distributor. This
Agreement will automatically terminate in the event of its assignment. In
interpreting the provisions of this Paragraph 15, the definitions contained
in Section 2(a) of ICA-40 (particularly the definitions of "interested
person," "assignment," and "majority of the outstanding securities") shall
be applied.
16. Amendment of this Agreement. No provisions of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which enforcement of the change,
waiver, discharge or termination is sought. If the Trust should at any time
deem it necessary or advisable in the best interests of the Trust that any
amendment of this Agreement be made in order to comply with the
recommendations or requirements of the SEC or other governmental authority
or to obtain any advantage under state or federal tax laws and notifies
Distributor of the form of such amendment, and the reasons therefor, and if
Distributor should decline to assent to such amendment, the Trust may
terminate this Agreement forthwith. If Distributor should at any time
request that a change be made in the Trust's Declaration of Trust or
By-Laws or in its methods of doing business, in order to comply with any
requirements of federal law or regulations of the SEC, or of a national
securities association of which Distributor is or may be a member relating
to the sale of Shares, and the Trust, on behalf of the Funds, should not
make such necessary change within a reasonable time, Distributor may
terminate this Agreement forthwith.
17. Additional Funds. In the event that the Trust establishes one or more
series of Shares in addition to the Funds with respect to which it desires
to have Distributor render services as distributor under the terms hereof,
it
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shall so notify Distributor in writing, and if Distributor agrees in
writing to provide such services, such series of Shares shall become a Fund
hereunder.
18. Miscellaneous. The captions in this Agreement are included to 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 simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same instrument.
19. Notice. Any notice required or permitted to be given by either party to the
other shall be deemed sufficient if hand-delivered, or if sent by
registered or certified mail, postage prepaid, addressed by the party
giving notice to the other party at the last address furnished by the other
party to the party giving notice: if to the Trust, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 and if to the Distributor, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000.
OPUS INVESTMENT TRUST
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
VERAVEST INVESTMENTS, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
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Date: _________, 2004
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