DISTRIBUTION AGREEMENT
EXHIBIT
(e.1)
DISTRIBUTION
AGREEMENT (“Agreement”) dated as of July 12, 2007, between Heartland Group, Inc.
(the “Fund”), an open-end, management investment company organized as a
corporation under the laws of the State of Maryland, and ALPS Distributors,
Inc., a Colorado corporation and a registered broker-dealer under the Securities
Exchange Act of 1934, as amended (the “Distributor”).
WHEREAS,
the Fund is an open-end management investment company registered under the
Investment Company Act of 1940, as amended, presently consisting of the
portfolios listed in Schedule A,
attached hereto; and
WHEREAS,
the Fund wishes to employ the services of the Distributor in connection with
the
promotion and distribution of the shares of the Fund (the
“Shares”).
NOW,
THEREFORE, in consideration of the mutual promises and undertakings herein
contained, the parties agree as follows:
1. Documents
— The Fund has furnished or will furnish, upon request, the Distributor with
copies of the Fund’s Articles of Incorporation, advisory agreement, custodian
agreement, transfer agency agreement, administration agreement, current
prospectus, and statement of additional information, and all forms relating
to
any plan, program or service offered by the Fund. The Fund shall furnish, within
a reasonable time period, to the Distributor a copy of any amendment or
supplement to any of the above-mentioned documents. Upon request, the Fund
shall
furnish promptly to the Distributor any additional documents necessary or
advisable to perform its functions hereunder. As used in this Agreement the
terms “registration statement”, “prospectus” and “statement of additional
information” shall mean any registration statement, prospectus and statement of
additional information filed by the Fund with the Securities and Exchange
Commission (“SEC”) and any amendments and supplements thereto that are filed
with the SEC.
2. Sales
of
Shares — The Fund grants to the Distributor the right to sell the Shares as
agent on behalf of the Fund, during the term of this Agreement, subject to
the
registration requirements of the Securities Act of 1933, as amended (the “1933
Act”), the Investment Company Act of 1940, as amended (the “1940 Act”) and of
the laws governing the sale of securities in the various states (“Blue Sky
Laws”), under the terms and conditions set forth in this Agreement. The
Distributor shall have the right to sell, as agent on behalf of the Fund, the
Shares covered by the registration statement, prospectus and statement of
additional information for the Fund then in effect under the 1933 Act and 1940
Act.
3. Sales
of
Shares by the Fund— The rights granted to the Distributor shall be nonexclusive
in that the Fund reserves the right to sell Shares to investors on applications
received and accepted by the Fund.
4. Public
Offering Price - Except as otherwise noted in the Fund’s current prospectus
and/or statement of additional information, all Shares sold to investors by
the
Distributor or the Fund will 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 described in the Fund’s current prospectus
and/or statement of additional information. The Fund shall in all cases receive
the net asset value per Share on all sales. If a fee in connection with
shareholder redemptions is in effect, such fee will be paid to the
Fund.
5. Suspension
of Sales — The Fund reserves the right to suspend sales and the Distributor’s
authority to process orders for Shares on behalf of the Fund if, in the judgment
of the Fund, it is in the best interests of the Fund to do so. Suspension will
continue for such period as may be determined by the Fund.
EXHIBIT
(e.1)
6. Solicitation
of Sales — In consideration of these rights granted to the Distributor, the
Distributor agrees to use its best efforts to solicit orders for the sale of
the
Shares at the public offering price and will undertake such advertising and
promotion as it believes is reasonable in connection with such solicitation.
The
Distributor shall review and file such materials with the SEC and/or the
National Association of Securities Dealers, Inc. (the “NASD”) to the extent
required by the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the 1940 Act and the rules and regulations thereunder, and by the
rules of the NASD. This shall not prevent the Distributor from entering into
like arrangements with other issuers. The Distributor will act only on its
own
behalf as principal should it choose to enter into selling agreements with
selected dealers or others.
7. Authorized
Representations — The Distributor is not authorized by the Fund to give any
information or to make any representations other than those contained in the
registration statement or prospectus and statement of additional information,
or
contained in shareholder reports or other material that may be prepared by
or on
behalf of the Fund for the Distributor’s use. Consistent with the foregoing, the
Distributor may prepare and distribute sales literature or other material as
it
may deem appropriate in consultation with the Fund, provided such sales
literature complies with applicable law and regulations.
8. Registration
of Shares — The Fund agrees that it will take all action necessary to register
the Shares under the 1933 Act and the 1940 Act (subject to the necessary
approval of its shareholders). The Fund shall make available to the Distributor,
at the Distributor’s expense, such number of copies of its prospectus and
statement of additional information as the Distributor may reasonably request.
The Fund 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 of the Fund.
9. Fund
Expenses — Unless otherwise agreed to by the parties hereto in writing, the
Distributor shall not be responsible for fees and expenses in connection with
(a) filing of any registration statement, printing and the distribution of
any
prospectus and statement of additional information under the 1933 Act and/or
the
1940 Act and amendments prepared for use in connection with the offering of
Shares for sale to the public, preparing, setting in type, printing and mailing
the prospectus, statement of additional information and any supplements thereto
sent to existing shareholders, (b) preparing, setting in type, printing and
mailing any report (including annual and semi-annual reports) or other
communication to shareholders of the Fund, and (c) the Blue Sky registration
and
qualification of Shares for sale in the various states in which the officers
of
the Fund shall determine it advisable to qualify such Shares for sale (including
registering the Fund as a broker or dealer or any officer of the Fund as agent
or salesman in any state).
11. Use
of
the Distributor’s Name — The Fund shall not use the name of the Distributor, or
any of its affiliates, in any prospectus or statement of additional information,
sales literature, and other material relating to the Fund in any manner without
the prior written consent of the Distributor (which shall not be unreasonably
withheld); provided, however, that the Distributor hereby approves all lawful
uses of the names of the Distributor and its affiliates in the prospectus and
statement of additional information of the Fund and in all other materials
which
merely refer to accurate terms to their appointment hereunder or which are
required by the SEC, NASD, OCC or any state securities authority.
12. Use
of
the Fund’s Name — Neither the Distributor nor any of its affiliates shall use
the name of the Fund in any publicly disseminated materials, including sales
literature in any manner without the prior consent of the Fund (which shall
not
be unreasonably withheld); provided, however, that the Fund hereby approves
all
lawful uses of its name in any required regulatory filings of the Distributor
which merely refer in accurate terms to the appointment of the Distributor
hereunder, or which are required by the SEC, NASD, OCC or any state securities
authority.
EXHIBIT
(e.1)
13. Insurance
— The Distributor agrees to maintain fidelity bond and liability insurance
coverages which are, in scope and amount, consistent with coverages customary
for distribution activities relating to the Fund. The Distributor shall notify
the Fund upon receipt of any notice of material, adverse change in the terms
or
provisions of its insurance coverage. Such notification shall include the date
of change and the reason or reasons therefor. The Distributor shall notify
the
Fund of any material claims against it, whether or not covered by insurance,
and
shall notify the Fund from time to time as may be appropriate of the total
outstanding claims made by it under its insurance coverage.
14. Indemnification
— The Fund agrees to indemnify and hold harmless the Distributor and each of
its
directors and officers and each person, if any, who controls the Distributor
within the meaning of Section 15 of the 1933 Act, against any loss, liability,
claim, damages or expenses (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, based upon the ground that the registration statement,
prospectus, statement of additional information, shareholder reports or other
information filed or made public by the Fund (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 under the 1933 Act, the 1940 Act or any other statute or the common
law. However, the Fund does not agree to indemnify the Distributor 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 Fund by or on behalf of
the
Distributor. In no case (i) is the indemnity of the Fund in favor of the
Distributor or any person indemnified to be deemed to protect the Distributor
or
any person against any liability to the Fund or its security holders to which
the Distributor or such person would otherwise be subject by reason of willful
misfeasance, bad faith or 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 Fund to be liable under its indemnity agreement
contained in the paragraph with respect to any claim made against the
Distributor or any person indemnified unless the Distributor or person, as
the
case may be, shall have notified the Fund in writing of the claim promptly
after
the summons or other first written notification giving information of the nature
of the claims shall have been served upon the Distributor or any such person
(or
after the Distributor or such person shall have received notice of service
on
any designated agent). However, failure to notify the Fund of any claim shall
not relieve the Fund from any liability which it may have to any person against
whom such action is brought otherwise than on account of its indemnity agreement
contained in this paragraph. The Fund 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, and if the Fund elects to assume the
defense, the defense shall be conducted by counsel chosen by the Fund. In the
event the Fund elects to assume the defense of any suit and retain counsel,
the
Distributor, officers or directors or controlling person(s), defendant(s) in
the
suit, shall bear the fees and expenses of any additional counsel retained by
them. If the Fund does not elect to assume the defense of any suit, it will
reimburse the Distributor, officers or directors or controlling person(s) or
defendant(s) in the suit for the reasonable fees and expenses of any counsel
retained by them. The Fund agrees to notify the Distributor promptly of the
commencement of any litigation or proceeding against it or any of its officers
in connection with the issuance or sale of any of the Shares.
EXHIBIT
(e.1)
The
Distributor also covenants and agrees that it will indemnify and hold harmless
the Fund and each of its officers and person, if any, who controls the Fund
within the meaning of Section 15 of the 1933 Act, against any loss, liability,
damages, claims 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, the 1940 Act or any other statute
or common law, alleging (a) any wrongful act of the Distributor or any of its
employees or (b) that any sales literature, advertisements, information,
statements or representations used or made by the Distributor or any of its
affiliates or employees or that the registration statement, prospectus,
statement of additional information, (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 to the Fund by or on behalf of the
Distributor. In no case (i) is the indemnity of the Distributor in favor of
the
Fund or any person indemnified to be deemed to protect the Fund or any person
against any liability to which the Fund or such person would otherwise be
subject by reason of willful misfeasance, bad faith or 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 Distributor to
be
liable under its indemnity agreement contained in this paragraph with respect
to
any claim made against the Fund or any person indemnified unless the Fund or
person, as the case may be, shall have notified the Distributor in writing
of
the claim promptly after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the Fund
or
any such person (or after the Fund or such person shall have received notice
of
service on any designated agent). However, failure to notify the Distributor
of
any claim shall not relieve the Distributor from any liability which it may
have
to the Fund or any person against whom the action is brought otherwise than
on
account of its indemnity agreement contained in this paragraph. In the case
of
any notice to the Distributor 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 the claim, and if the Distributor elects to assume the
defense, the defense shall be conducted by counsel chosen by it and satisfactory
to the Fund, to its officers and to any controlling person(s) or defendant(s)
in
the suit. In the event that the Distributor elects to assume the defense of
any
suit and retain counsel, the Fund or controlling person(s), defendant(s) in
the
suit, shall bear the fees and expense of any additional counsel retained by
them. If the Distributor does not elect to assume the defense of any suit,
it
will reimburse the Fund, officers or controlling person(s), defendant(s) in
the
suit, for the reasonable fees and expenses of any counsel retained by them.
The
Distributor agrees to notify the Fund promptly of the commencement of any
litigation or proceedings against it in connection with the Fund and sale of
any
of the Shares.
15. Supplemental
Information — The Distributor and the Fund shall regularly consult with each
other regarding the Distributor’s performance of its obligations under this
Agreement. In connection therewith, the Fund shall submit to the Distributor
at
a reasonable time in advance of filing with the SEC reasonably final copies
of
any amended or supplemented registration statement (including exhibits) under
the 1933 Act and the 1940 Act; provided, however, that nothing contained in
this
Agreement shall in any way limit the Fund’s right to file at any time such
amendments to any registration statement and/or supplements to any prospectus
or
statement of additional information, of whatever character, as the Fund may
deem
advisable, such right being in all respects absolute and
unconditional.
The
Distributor acknowledges that the only information provided to it by the Fund
is
that contained in the registration statement, the prospectus, the statement
of
additional information and reports and financial information referred to herein.
Neither the Distributor nor any other person is authorized by the Fund to give
any information or to make any representations, other than those contained
in
such documents and any sales literature or advertisements specifically approved
by appropriate representatives of the Fund.
16. Term
—
This Agreement shall become effective as of July 12, 2007, and shall continue
until two years from such date and thereafter shall continue automatically
for
successive annual periods, provided such continuance is specifically approved
at
least annually (i) by the Fund’s Board of Directors or (ii) by a vote of a
majority of the outstanding voting securities of the relevant Series of the
Fund
(as defined in the 1940 Act), provided that in either event the continuance
is
also approved by the majority of the Directors of the Fund who are not
interested persons (as defined in the 0000 Xxx) of any party to this Agreement
by vote cast in person at a meeting called for the purpose of voting on such
approval. This Agreement is terminable without penalty on sixty days’ written
notice by the Fund’s Board of Directors, by vote of the holders of a majority of
the outstanding voting securities of the relevant Series of the Fund or by
the
Distributor. This Agreement shall automatically terminate in the event of its
assignment (as defined in the 1940 Act).
EXHIBIT
(e.1)
Upon
the
termination of this Agreement, the Distributor, at the Fund’s expense and
direction, shall transfer to such successor as the Fund shall specify all
relevant books, records and other data established or maintained by the
Distributor under this Agreement.
17. Anti-Money
Laundering - The Distributor agrees to maintain an anti-money laundering program
in compliance with Title III of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of
2001 (the “USA Patriot Act”) and all applicable laws and regulations promulgated
thereunder. The Distributor confirms that, as soon as possible, following the
request from the Fund, the Distributor will supply the Fund with copies of
the
Distributor’s anti-money laundering policy and procedures, and such other
relevant certifications and representations regarding such policy and procedures
as the Fund may reasonably request from time to time.
18. Notice
—
Any notice required or permitted to be given by either party to the other shall
be deemed sufficient if sent by (i) telecopier (fax) or (ii) 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
Fund at:
Heartland
Group, Inc.
000
Xxxxx
Xxxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Secretary
if
to the
Distributor at:
0000
Xxxxxxxx, Xxxxx 0000,
Xxxxxx,
Xxxxxxxx 00000
Attn:
General Counsel
or
such
other telecopier (fax) number or address as may be furnished by one party to
the
other.
19. Confidential
Information — The Distributor, its officers, directors, employees and agents
will treat confidentially and as proprietary information of the Fund all records
and other information relative to the Fund and to prior or present shareholders
or to those persons or entities who respond to the Distributor’s inquiries
concerning investment in the Fund, and will not use such records and information
for any purposes other than performance of its responsibilities and duties
hereunder. If the Distributor is requested or required by, but not limited
to,
depositions, interrogatories, requests for information or documents, subpoena,
civil investigation, demand or other action, proceeding or process or as
otherwise required by law, statute, regulation, writ, decree or the like to
disclose such information, the Distributor will provide the Fund with prompt
written notice of any such request or requirement so that the Fund may seek
an
appropriate protective order or other appropriate remedy and/or waive compliance
with this provision. If such order or other remedy is not sought, or obtained,
or waiver not received within a reasonable period following such notice, then
the Distributor may without liability hereunder, disclose to the person, entity
or agency requesting or requiring the information, that portion of the
information that is legally required in the reasonable opinion of the
Distributor’s counsel.
EXHIBIT
(e.1)
20. Limitation
of Liability — The Distributor agrees that the obligations assumed by the Fund
under this contract shall be limited in all cases to the Fund and its assets.
The Distributor agrees that it shall not seek satisfaction of any such
obligation from the shareholders or any individual shareholder of the Fund.
Nor
shall the Distributor seek satisfaction of any such obligation from the
Directors, officers or any individual Director or officer of the Fund. The
Distributor understands that the rights and obligations of each Series of the
Fund under the Fund’s Articles of Incorporation are separate and distinct from
those of any and all other Series.
Any
obligations of the Fund entered into in the name or on behalf thereof by any
of
the Directors or officers, representatives or agents are made not individually,
but in such capacities, and are not binding upon any of the Directors or
officers, shareholders, or representatives of the Fund personally, but bind
only
the Fund property, and all persons dealing with any Series of Shares of the
Fund
must look solely to the Fund property belonging to such Series for the
enforcement of any claims against the Fund.
21. Miscellaneous
— Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof. This Agreement
shall be construed, interpreted, and enforced in accordance with and governed
by
the laws of the State of Colorado. 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 not be changed, waived, discharged or amended except by written
instrument that shall make specific reference to this Agreement and which shall
be signed by the party against which enforcement of such change, waiver,
discharge or amendment is sought. This Agreement may be executed simultaneously
in two or more counterparts, each of which taken together shall constitute
one
and the same instrument.
All
activities by the Distributor and its agents and employees as distributor of
the
Shares shall comply with all applicable laws, rules and regulations including,
without limitation, all rules and regulations made or adopted by the SEC or
any
securities association registered under the Exchange Act.
The
Distributor will promptly transmit any orders received by it for purchase,
redemption or exchange of the Shares to the Fund’s transfer agent.
IN
WITNESS WHEREOF, the Fund has executed this instrument in its name and behalf,
and the Distributor has executed this instrument in its name and behalf, as
of
the date and year first above written.
HEARTLAND
GROUP, INC. ALPS
DISTRIBUTORS, INC.
| By: /s/ Xxxx X. Xxxxx | By: /s/ Xxxxxx X. Xxxxxx |
| Name: Xxxx X. Xxxxx | Name: Xxx Xxxxxx |
| Title: Vice President. & Secretary | Title: Managing Director |
EXHIBIT
(e.1)
Schedule
A
List
of
Portfolios
Heartland
Value Fund
Heartland
Value Plus Fund
Heartland
Select Value Fund
