AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
dated as of May 11, 1992
AMENDED AND RESTATED DISTRIBUTION AGREEMENT between The
Gabelli Growth Fund, a Massachusetts business trust (the "Fund") and Gabelli &
Company, Inc., a New York corporation (the "Distributor"). The Fund is
registered as an investment company under the Investment Company Act of 1940
(the "1940 Act"), and an indefinite number of shares (the "Shares") of the Fund
have been registered under the Securities Act of 1933 (the "1933 Act") to be
offered for sale to the public in a continuous public offering in accordance
with terms and conditions set forth in the Prospectus and Statement of
Additional Information (the "Prospectus") of the Fund included in the Fund's
Registration Statement on Form N-lA as such documents may be amended from time
to time.
In this connection, the Fund desires to amend and restate its
Distribution Agreement with the Distributor pursuant to which the Distributor
acts as the Fund's exclusive sales agent and distributor for the sale and
distribution of Shares. The Distributor has advised the Fund that it is willing
to act in such capacities, and it is accordingly agreed between them that the
Distribution Agreement between them shall be amended and restated to read in its
entirety as follows:
1. The Fund hereby appoints the Distributor as exclusive sales
agent and distributor for the sale and distribution of Shares pursuant to the
aforesaid continuous public offering of Shares, and the Fund further agrees from
and after the commencement of such continuous public offering that it will not,
without the Distributor's consent, sell or agree to sell any Shares otherwise
than through the Distributor, except the Fund may issue Shares in connection
with a merger, consolidation or acquisition of assets on such basis as may be
authorized or permitted under the 0000 Xxx.
2. The Distributor hereby accepts such appointment and agrees
to use its best efforts to sell such Shares, provided, however, that when
requested by the Fund at any time for any reason the Distributor will suspend
such efforts. The Fund may also withdraw the offering of Shares at any time when
required by the provisions of any statute, order, rule or regulation of any
governmental body having jurisdiction. It is understood that the Distributor
does not undertake to sell all or any specific portion of the Shares.
3. The Distributor represents that it is a member in good
standing of the National Association of Dealers, Inc. and agrees that it will
use all reasonable efforts to maintain such status and to abide by the Rules of
Fair Practice, the Constitution and the Bylaws of the National Association of
Securities Dealers, Inc., and all other rules and regulations that are now or
may become applicable to its performance hereunder. The Distributor will
undertake and discharge its obligations hereunder as an independent contractor
and it shall have no authority or power to obligate or bind the Fund by its
actions, conduct or contracts except that it is authorized to accept orders for
the purchase or repurchase of Shares as the Fund's agent and subject to its
approval. The Fund reserves the right to reject any order in whole or in part.
The Distributor may appoint sub-agents or distribute through dealers or
otherwise as it may determine from time to time pursuant to agreements approved
by the Fund, but this Agreement shall not be construed as authorizing any dealer
or other person to accept orders for sale or repurchase of Shares on behalf of
the Fund or otherwise act as the Fund's agent for any purpose. The Distributor
shall not utilize any materials in connection with the sale or offering of
Shares except the then current Prospectus and such other materials as the Fund
shall provide or approve in writing.
4. Shares may be sold by the Distributor only at prices and
terms described in the then current Prospectus relating to the Shares and may be
sold either through persons with whom it has selling agreements in a form
approved by the Fund's Board of Trustees or directly to prospective purchasers.
To facilitate sales, the Fund will furnish the Distributor with the net asset
value of its Shares promptly after each calculation thereof.
5. The Fund has delivered to the Distributor a copy of its
current Prospectus. It agrees that it will use its best efforts to continue the
effectiveness of its Registration Statement filed under the 1933 Act and the
1940 Act. The Fund 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 such Acts. The Fund will furnish the Distributor at the
Distributor's expense with a reasonable number of copies of the Prospectus and
any amended Prospectus for use in connection with the sale of Shares.
6. At the Distributor's request, the Fund will take such steps
at its own expense as may be necessary and feasible to qualify Shares for sale
in states, territories or dependencies of the United States of America and in
the District of Columbia in accordance with the laws thereof, and to renew or
extend any such qualification; provided, however, that the Fund shall not be
required to qualify Shares or to maintain the qualification of Shares in any
state, territory, dependency or district where it shall deem such qualification
disadvantageous to the Fund.
7. The Distributor agrees that:
(a) It will furnish to the Fund any pertinent
information required to be inserted with respect to the Distributor as
exclusive sales agent and distributor within the purview of Federal and
state securities laws in any reports or registrations required to be
filed with any government authority;
(b) It will not make any representations inconsistent
with the information contained in the Registration Statement or
Prospectus filed under the Securities Act of 1933, as in effect from
time to time;
(c) It will not use or distribute or authorize the
use of distribution of any statements other than those contained in the
Fund's then current Prospectus or in such supplemental literature or
advertising as may be authorized in writing by the Fund; and
(d) Subject to paragraph 9 below, the Distributor
will bear the costs and expenses of printing and distributing any
copies of any prospectuses and annual and interim reports of the Fund
(after such items have been prepared and set in type) which are used in
connection with the offering of Shares, and the costs and expenses of
preparing, printing and distributing any other literature used by the
Distributor or furnished by the Distributor for use in connection with
the offering of the Shares and the costs and expenses incurred by the
Distributor in advertising, promoting and selling Shares of the Fund to
the public.
8. The Fund will pay its legal and auditing expenses and the cost of
composition of any prospectuses of annual or interim reports of the
Fund.
9. The Fund will pay the Distributor for costs and expenses
incurred by the Distributor in connection with distribution of Shares by the
Distributor in accordance with the terms of a Plan of Distribution (the "Plan")
adopted by the Fund pursuant to Rule 12b-1 under the 1940 Act as such Plan may
be in effect from time to time; provided, however, that no payments shall be due
or paid to the Distributor hereunder unless and until this Agreement shall have
been approved by Trustee Approval and Disinterested Trustee Approval (as such
terms are defined in such Plan). The Fund reserves the right to modify or
terminate such Plan at any time as specified in the Plan and Rule 12b-1, and
this Section 9 shall thereupon be modified or terminated to the same extent
without further action of the parties. The persons authorized to direct the
payment of funds pursuant to this Agreement and the Plan shall provide to the
Fund's Board of Trustees, and the Trustees shall review, at least quarterly a
written report of the amounts so paid and the purposes for which such
expenditures were made.
10. The Fund agrees to indemnify, defend and hold the
Distributor, its officers, directors, employees and agents and any person who
controls the Distributor within the meaning of Section 15 of the 1933 Act (each,
an "indemnitee"), free and harmless from any against any and all liabilities and
expenses, including costs of investigation or defense (including reasonable
counsel fees) incurred by such indemnitee in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
in which such indemnitee may be or may have been involved as a party or
otherwise or with which he may be or may have been threatened, while the
Distributor was active in such capacity or by reason of the Distributor having
acted in any such capacity or arising out of or based upon any untrue statement
of a material fact contained in the then-current Prospectus relating to the
Shares or arising out of or based upon any alleged omission to state a material
fact required to be stated therein or necessary to make the statements therein
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 the Distributor to the Fund expressly for
use in any such Prospectus; provided, however, that (1) no indemnitee shall be
indemnified hereunder against any liability to the Fund or the shareholders of
the Fund or any expense of such indemnitee with respect to any matter as to
which such indemnitee shall have been adjudicated not to have acted in good
faith in the reasonable belief that its action was in the best interest of the
Fund or arising by reason of such indemnitee's willful misfeasance, bad faith,
or gross negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations under this Agreement ("disabling
conduct"), or (2) as to any matter disposed of by settlement or a compromise
payment by such indemnitee, no indemnification shall be provided unless there
has been a determination that such settlement or compromise is in the best
interests of the Fund and that such indemnitee appears to have acted in good
faith in the reasonable belief that its action was in the best interest of the
Fund and did not involve disabling conduct by such indemnitee. Notwithstanding
the foregoing, the Fund shall not be obligated to provide any such
indemnification to the extent such provision would waive any right which the
Fund cannot lawfully waive.
The Distributor agrees to indemnify, defend and hold the Fund,
its Trustees, officers, employees and agents and any person who controls the
Fund within the meaning of Section 15 of the 1933 Act (each, an "indemnitee"),
free and harmless from and against any and all liabilities and expenses,
including costs of investigation or defense (including reasonable counsel fees)
incurred by such indemnitee, but only to the extent that such liability or
expense shall arise out of or be based upon any untrue or alleged untrue
statement of a material fact contained in information furnished in writing by
the Distributor of the Fund expressly for use in a Prospectus or any alleged
omission to state a material fact in connection with such information required
to be stated therein or necessary to make such information not misleading or
arising by reason of disabling conduct by such indemnitee or any person selling
Shares pursuant to an agreement with the Distributor.
The Fund shall make advance payments in connection with the
expenses of defending any action with respect to which indemnification might be
sought hereunder if the Fund receives a written affirmation of the indemnitee's
good faith belief that the standard of conduct necessary for indemnification has
been met and a written undertaking to reimburse the Fund unless it is
subsequently determined that he is entitled to such indemnification and if the
Trustees of the Fund determine that the facts then known to them would not
preclude indemnification. In addition, at least one of the following conditions
must be met: (A) the indemnitee shall provide a security for his undertaking,
(B) the Fund shall be insured against losses arising by reason of any lawful
advances, or (C) a majority of a quorum of Trustees of the Fund who are neither
"interested persons" of the Fund (as defined in Section 2(a)(19) of the Act) nor
parties to the proceeding ("Disinterested Non-Party Trustees") or an independent
legal counsel in a written opinion, shall determine, based on a review of
readily available facts (as opposed to a full trial-type inquiry), that there is
reason to believe that the indemnitee ultimately will be found entitled to
indemnification.
All determinations with respect to indemnification hereunder
shall be made (1) by a final decision on the merits by a court or other body
before whom the proceeding was brought that such indemnitee is not liable by
reason of disabling conduct or, (2) in the absence of such a decision, by (i) a
majority vote of a quorum of the Disinterested Non-Party Trustees of the Fund,
or (ii) if such a quorum is not obtainable or even, if obtainable, if a majority
vote of such quorum so directs, independent legal counsel in a written opinion.
11. This Agreement shall become effective on the date first
set forth above and shall remain in effect for up to two years from such date
(one year in the case of Section 9) and thereafter from year to year provided
such continuance is specifically approved at least annually prior to each
anniversary of such date by (a) Trustee Approval or by vote at a meeting of
shareholders of the Fund of the lesser of (i) 67 per cent of the Shares present
or represented by proxy and (ii) 50 per cent of the outstanding Shares and (b)
by Disinterested Trustee Approval.
12. This Agreement may be terminated (a) by the Distributor at
any time without penalty by giving sixty (60) days' written notice to the Fund
which notice may be waived by the Fund; or (b) by the Fund at any time without
penalty upon sixty (60) days' written notice to the Distributor (which notice
may be waived by the Distributor); provided, however, that any such termination
by the Fund shall be directed or approved in the same manner as required for
continuance of this Agreement by Section 11(a) (or, in the case of termination
of Section 9, by Section 11(b)).
13. This Agreement may not be amended or changed except in
writing signed by each of the parties hereto and approved in the same manner as
provided for continuance of this Agreement in Section 11(a) (or, in the case of
amendment of Section 9, by Section 11(b)). Any such amendment or change shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors, but this Agreement shall not be assigned by either party
and shall automatically terminate upon assignment (as such term is defined in
the 1940 Act and the rules thereunder).
14. This Agreement shall be construed in accordance with the
laws of the State of New York applicable to agreements to be performed entirely
therein and in accordance with applicable provisions of the 1940 Act.
15. If any provision of this Agreement shall be held or made
invalid or unenforceable by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected or impaired thereby.
IN WITNESS WHEREOF the parties hereto have caused this
Agreement to be executed by their only authorized officers as of the date first
written above.
The Gabelli Growth Fund
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President, Treasurer
Gabelli & Company, Inc.
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
