CALAMOS INVESTMENT TRUST Sixth Amended and Restated Distribution Agreement
Exhibit x0
XXXXXXX INVESTMENT TRUST
Sixth Amended and Restated
This SIXTH AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the “Agreement”) made as of June 17,
2009, 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 of each Fund (collectively, the “Shares”) 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 Sixth Amended and Restated
Distribution Plan effective May 1, 2009 (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.
2
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.
3
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.
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:
4
(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, 2009, 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
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.
5
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.
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.
6
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.
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/ Xxxxxx X. Xxxxx | |||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Title: | Senior Vice President, Director of Operations | |||||
| ATTEST: | ||||||
| /s/ Xxxxx X. Xxxxx | ||||||
| Name: | Xxxxx X. Xxxxx | |||||
| Title: | Senior Vice President, General | |||||
| Counsel and Secretary | ||||||
| CALAMOS INVESTMENT TRUST | ||||||
| By | /s/ Xxxxxx Xxxxx | |||||
| Name: | Xxxxxx Xxxxx | |||||
| Title: | Secretary | |||||
7
