FORM OF DISTRIBUTION AGREEMENT JOHN HANCOCK INVESTORS TRUST 601 Congress Street Boston, Massachusetts 02210
Exhibit
(2)(h)(1)
FORM OF DISTRIBUTION AGREEMENT
XXXX XXXXXXX INVESTORS TRUST
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXX XXXXXXX INVESTORS TRUST
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
August __, 2012
Xxxx Xxxxxxx Funds, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: Distribution Agreement Relating to At-the-Market Offerings
Ladies and Gentlemen:
Xxxx Xxxxxxx Investors Trust is a Massachusetts business trust operating as a closed-end
management investment company (hereinafter referred to as the “Fund”). The Fund has filed a
registration statement on Form N-2 (File Nos. 333-181550 and 811-04173) (the “Registration
Statement”) pursuant to the Investment Company Act of 1940, as amended, and the Securities Act of
1933, as amended (the “1933 Act”), to register additional common shares of the Fund, which may be
issued and sold from time to time through various specified transactions, including at-the-market
(“ATM”) offerings.
You have informed us that Xxxx Xxxxxxx Funds, LLC is registered as a broker-dealer under the
provisions of the Securities Exchange Act of 1934, as amended, and is a member in good standing
with the Financial Industry Regulatory Authority, Inc. (“FINRA”). You have indicated your desire to
act as distributor for the Fund’s common shares issued pursuant to the Registration Statement. We
have been authorized by the Fund to execute and deliver this Agreement to you by a resolution of
our Board of Trustees (the “Trustees”) adopted at a meeting of the Trustees, at which a majority of
Trustees, including a majority of our Trustees who are not otherwise interested persons of our
investment manager or its related organizations, were present and voted in favor of said resolution
approving this Agreement.
1. APPOINTMENT OF DISTRIBUTOR. Upon the execution of this Agreement and in consideration of
the agreements on your part herein expressed and upon the terms and conditions set forth herein, we
hereby appoint you as the distributor for up to [ ] of the common shares of the Fund to be issued
pursuant to the Registration Statement through ATM offerings (the “Shares”) and agree that we will
issue such Shares as you may sell. You agree to use reasonable efforts to identify opportunities
for the sale of Shares, but you are not obligated to sell any specific number of the Shares. The
Shares will be sold only on such days as shall be agreed to by you and the Fund.
2. SELECTED DEALERS. You may enter into selected dealer agreements, on such terms and
conditions as you determine are not inconsistent with this Agreement, with broker-dealers to act as
your agent to effect the sale of the Shares. Such selected broker-dealers shall sell Shares only at
market prices subject to a minimum price to be established each day by you and the Fund (see
paragraph 3 below). This Agreement shall not be construed as authorizing any dealer or other person
to accept orders for sale on our behalf or to otherwise act as our agent for any purpose. You shall
not be responsible for the acts of other dealers or agents except as and to the extent that they
shall be acting for you or under your direction or authority.
3. SHARE PRICE. The price per Share shall be determined by reference to trades on the Fund’s
primary exchange. In no event shall the price be less than the current net asset value per share
plus the per share amount of the commission to be paid to you (the “Minimum Price”). You shall
suspend the sale of Shares if the per share price of the Shares is less than the Minimum Price.
4. SALES COMMISSION.
(a) You shall be entitled to receive a sales commission from the Fund in an amount equal to
1.00% of the gross sales price per Share, of which 0.80% will be re-allowed to the sub-sales agent.
(b) You may pay to selected broker-dealers such selling agent commissions (not exceeding 80%
of the total sales commission) (the “ATM Sales Agent Commission”) as you shall deem advisable,
which shall be payable from the commissions payable to you under Section 4(a) above.
5. FURNISHING OF INFORMATION. We will furnish you with copies of the Registration Statement,
and we warrant that the statements therein contained are true and correct as of the date of the
Registration Statement, as it may be amended or supplemented from time to time. We will also
furnish you with such other information that you may reasonably request for use in connection with
the distribution of the Shares, including, at least annually, audited financial statements of our
books and accounts certified by independent public accountants.
6. CONDUCT OF BUSINESS. Other than the currently effective Prospectus and Statement of
Additional Information, you will not use any sales materials or statements except literature or
advertising that conforms to the requirements of federal and state securities laws and regulations
and that have been filed, where necessary, with the appropriate regulatory authorities. You will
furnish us with copies of all material prior to their use and no such material shall be published
if we shall reasonably and promptly object.
You shall comply with the applicable federal and state laws and regulations where our shares
are offered for sale and conduct your affairs with us and with dealers, brokers or investors in
accordance with the Conduct Rules of FINRA.
7. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold you, your officers, and Directors, and any
person who controls you within the meaning of Section 15 of the 1933 Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the “1934 Act”), free and harmless from and against
any and all claims, demands or liabilities and expenses (including the cost of investigating or
defending such claims, demands or liabilities and any counsel fees incurred in connection
therewith) which you, your officers, Directors or any such controlling persons may incur under the
1933 Act, the 1934 Act, or under common law or otherwise, arising out of or based upon (i) any
untrue statement of a material fact contained in the Fund’s Registration Statement or arising out
of or based upon any alleged omission to state a material fact required to be stated in it or
necessary to make the statements in it not misleading, except insofar as such claims, demands,
liabilities or expenses arise out of or are based upon any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity with information
furnished in writing by you to the Fund for use in the Registration Statement, (ii) any untrue
statement of a material fact contained in the Fund’s advertisement or sales literature or arising
out of or based upon any alleged omission to state a material fact required to be stated in either
thereof or necessary to make the statements in either thereof not misleading, except insofar as
such claims, demands, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information furnished in writing by you to the Fund for use in such advertisement
or sales literature or (iii) any action taken or omitted by the Fund prior to the date of this
Agreement. You agree to comply with all of the applicable terms and provisions of the 1934 Act.
(b) You agree to indemnify, defend, and hold the Fund, its officers, Trustees, employees
shareholders and agents, and any person who controls the Fund within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, free and harmless from and against any and all claims,
demands, liabilities and expenses (including the cost of investigating or defending against such
claims, demands or liabilities and any counsel fees incurred in connection therewith) which the
Fund, its Trustees, officers, employees, shareholders and agents, or any such controlling person
may incur under the 1933 Act, the 1934 Act or under common law or otherwise arising out of or based
upon any untrue statement of a material fact contained in information furnished in writing by you
to the Fund for use in the Registration Statement, or arising out of or based upon any omission or
alleged omission to state a material fact in connection with such information required to be stated
in the Registration Statement necessary to make such information not misleading.
A party seeking indemnification hereunder (the Indemnitee) shall give prompt written notice to
the party from whom indemnification is sought (“Indemnitor”) of a written assertion or claim of any
threatened or pending legal proceeding which may be subject to indemnity under this Section;
provided, however, that failure to notify the Indemnitor of such written assertion or claim shall
not relieve the indemnitor of any liability arising from this
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Section. The Indemnitor shall be
entitled, if it so elects, to assume the defense of any suit brought to enforce a claim subject to
this Agreement and such defense shall be conducted by counsel chosen by the Indemnitor and
satisfactory to the Indemnitee; provided, however, that if the defendants include both the
Indemnitee and the Indemnitor, and the Indemnitee shall have reasonably concluded that there may be
one or more legal defenses available to it which are different from or additional to those
available to the Indemnitor (“conflict of interest”), the Indemnitor shall have the right to select
separate counsel to defend such claim on behalf of the Indemnitee. In the event that the
Indemnitor elects to assume the defense of any suit pursuant to the preceding sentence and retains
counsel satisfactory to the Indemnitee, the Indemnitee shall bear the fees and expenses of
additional counsel retained by it except for reasonable investigation costs which shall be borne by
the Indemnitor. If the Indemnitor (i) does not elect to assume the defense of a claim, (ii) elects
to assume the defense of a claim but chooses counsel that is not satisfactory to the Indemnitee or
(iii) has no right to assume the defense of a claim because of a conflict of interest, the
Indemnitor shall advance or reimburse the Indemnitee, at the election of the Indemnitee, reasonable
fees and disbursements of any counsel retained by Indemnitee, including reasonable investigation
costs.
8. OTHER ACTIVITIES. Your services pursuant to this Agreement shall not be deemed to be
exclusive and you may render similar services and act as an underwriter, distributor, or dealer for
other investment companies in the offering of their shares.
9. SUSPENSION OF SALES. We reserve the right at all times to suspend or limit the offering of
the shares upon written notice to you and to reject any order in whole or in part.
10. PAYMENT OF EXPENSES.
(a) You shall bear all expenses incurred by you in connection with your duties and activities
under this Agreement including the payment to selected dealers of any sales commissions for sales
of the Fund’s Shares.
(b) The Fund shall bear all costs and expenses of the Fund, including expenses (including
legal fees) pertaining to the preparation and filing of the Registration Statement and Prospectus
and any amendment or supplement thereto, and expenses pertaining to the preparation, printing and
distribution of any reports or communications to shareholders, including Prospectuses and
Statements of Additional Information, annual and interim reports, or proxy materials.
11. TERMINATION. This Agreement (i) may be terminated by the Fund at any time without the
payment of any penalty and (ii) may be terminated by you at any time without the payment of any
penalty. This Agreement shall remain in full force and effect unless terminated pursuant to this
provision or by the mutual agreement of the parties.
12. MISCELLANEOUS. This Agreement shall be subject to the laws of the State of Massachusetts
and shall be interpreted and construed to further and promote the operation of the Fund as a
closed-end management investment company.
13. STANDARD OF CARE. You shall be responsible for exercising reasonable care in carrying out
the provisions of this Agreement.
14. DECLARATION OF TRUST AND LIMITATION OF LIABILITY. A copy of the Declaration of Trust of
the Fund is on file with the Secretary of State of the Commonwealth of Massachusetts, and notice is
hereby given that this Agreement is executed by an officer of the Fund on behalf of the Trustees,
as trustees and not individually, and that the obligations of this Agreement with respect to the
Fund shall be binding upon the assets and properties of the Fund only and shall not be binding upon
the assets or properties of the Trustees, officers, employees, agents or shareholders of the Fund
individually.
If the foregoing meets with your approval, please acknowledge your acceptance by signing each
of the enclosed counterparts hereof and returning such counterparts to us, whereupon this shall
constitute a binding agreement as of the date first above written.
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Very truly yours,
Xxxx Xxxxxxx Investors Trust
_____________________________
Name:[_____________________]
Title: [______________________]
Xxxx Xxxxxxx Funds, LLC
_____________________________
Name:[______________________]
Title: [_______________________]
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