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AMENDED AND RESTATED DISTRIBUTION AGREEMENT
AGREEMENT made as of this 13th day of September 1999, between DRIEHAUS
MUTUAL FUNDS, a Delaware business trust (hereinafter called the "Trust"), and
DRIEHAUS SECURITIES CORPORATION, an Illinois corporation (hereinafter called the
"Distributor");
W I T N E S S E T H:
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Trust hereby appoints the Distributor as its agent for the
distribution of shares (hereinafter called "shares") of beneficial interest of
any of the Trust's authorized Portfolios in jurisdictions wherein shares of the
Trust may legally be offered for sale; provided, however, that the Trust in its
absolute discretion may issue or sell shares directly to holders of shares of
the Trust upon such terms and conditions and for such consideration, if any, as
it may determine, whether in connection with the distribution of subscription or
purchase rights, the payment or reinvestment of dividends or distributions, or
otherwise.
2. The Distributor hereby accepts appointment as agent for the
distribution of the shares of the Trust and agrees that it will use its best
efforts with reasonable promptness to sell such part of the authorized shares of
the Trust remaining unissued as from time to time be effectively registered
under the Securities Act of 1933 ("Securities Act"), at prices determined as
hereinafter provided and on terms hereinafter set forth, all subject to
applicable federal and state laws and regulations and to the Declaration of
Trust and the By-Laws of the Trust and in accordance with the then effective
registration statement ("Registration Statement") of the Trust under the
Securities Act (and related prospectus).
3. The Trust agrees that it will use its best efforts to keep
effectively registered under the Securities Act for sale as herein contemplated
such shares as the Distributor shall reasonably request and as the Securities
and Exchange Commission shall permit to be so registered.
4. Notwithstanding any other provision hereof, the Trust may
terminate, suspend or withdraw the offering of shares whenever, in its sole
discretion, it deems such action to be desirable.
5. The Distributor will act only on its own behalf as principal in
making agreements with selected dealers or others for the sale and redemption of
shares. The Distributor shall have authority to receive and accept or reject, or
arrange for the receipt and acceptance of, such orders in accordance with the
provisions hereof and the then effective Registration Statement of the Trust.
6. Shares of the Trust offered for sale or sold by the Distributor
shall be so offered or sold at a price per share determined in accordance with
the Trust's then current prospectus relating to the sale of such shares except
as departure from such prices shall be permitted by the rules and regulations of
the Securities and Exchange Commission; provided, however, that any public
offering price for shares of the Trust shall be the net asset value per share.
The net asset value per share shall
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be determined in the manner and at the times set forth in the then effective
Registration Statement (and related prospectus) relating to such shares.
7. The price the Trust shall receive for all shares purchased from
the Trust shall be the net asset value used in determining the public offering
price applicable to the sale of such shares.
8. The Distributor shall issue and deliver on behalf of the Trust (or
shall arrange for the issue and delivery of) such confirmations of sales made by
it as agent pursuant to this agreement as may be required. At or prior to the
time of issuance of shares, the Distributor will pay or cause to be paid to the
Trust the amount due the Trust for the sale of such shares. Shares shall be
registered on the transfer books of the Trust in such names and denominations as
the Distributor may specify.
9. The Trust will execute any and all documents and furnish any and
all information which may be reasonably necessary in connection with the
qualification of its shares for sale in such states as the Distributor may
reasonably request (it being understood that the Trust shall not be required
without its consent to comply with any requirement which in its opinion is
unduly burdensome).
10. The Trust will furnish to the Distributor from time to time such
information with respect to the Trust and its shares as the Distributor may
reasonably request for use in connection with the sale of shares of the Trust.
The Distributor agrees that it will not use or distribute or authorize the use,
distribution or dissemination by others in connection with the sale of such
shares any statements, other than those contained in the Trust's current
prospectus or statement of additional information, except such supplemental
literature or advertising as shall be lawful under federal and state securities
laws and regulations, and that it will furnish the Trust with copies of all such
material.
11. The Distributor shall order shares of the Trust from the Trust
only to the extent that it shall have received purchase orders therefor. The
Distributor will not make, or authorize any others to make, any short sales of
shares of the Trust.
12. The Distributor, as agent of and for the account of the Trust, may
repurchase the shares of the Trust at such prices and upon such terms and
conditions as shall be specified in the current prospectus or statement of
additional information of the Trust.
13. In selling or reacquiring shares of the Trust for the account of
the Trust, the Distributor will in all respects conform to the requirements of
all state and Federal laws and the Rules of Fair Practice of the National
Association of Securities Dealers, Inc., relating to such sale or reacquisition,
as the case may be. The Distributor will observe and be bound by all the
provisions of this Agreement and the Declaration of Trust of the Trust (and of
any fundamental policies adopted by the Trust pursuant to the Investment Company
Act of 1940 and set forth in the Registration Statement, or as to which notice
shall otherwise have been given to the Distributor) which at any time in any way
require, limit, restrict or prohibit or otherwise regulate any action on the
part of the Distributor. Distributor shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Trust or any
Portfolio in connection with the matters to which this Agreement relates,
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except a loss resulting from willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties or from reckless disregard by it of
its obligations and duties under this Agreement.
14. (a) Distributor will indemnify, defend and hold harmless the
Trust, each Portfolio, the Trust's several officers and trustees and any person
who controls the Trust or any Portfolio within the meaning of Section 15 of the
1933 Act, from and against any losses, claims, damages or liabilities joint or
several, to which any of them may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages, or liabilities (or actions
or proceedings in respect hereof) arise out of, or are based upon, any breach of
its duties hereunder, or which arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, any Blue Sky Application or any
application or other document executed by or on behalf of the Trust, 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, which
statement or omissions was made in reliance upon or in conformity with
information furnished in writing to the Trust or any of its several officers and
trustees by or on behalf of and with respect to Distributor specifically for
inclusion therein, and will reimburse the Trust, each Portfolio, the Trust's
several officers and trustees, and any person who controls the Trust or any
Portfolio within the meaning of Section 15 of the 1933 Act, for any legal or
other expenses reasonably incurred by any of them in investigating, defending or
preparing to defend any such action, proceeding or claim.
(b) Subject to the conditions set forth below, the Trust agrees
to indemnify and hold harmless the Distributor, its officers and employees, and
each person, if any, who controls the Distributor within the meaning of Section
15 of the Securities Act of 1933 and Section 20 of the Securities Exchange Act
of 1934 against any and all loss, liability, claim, damage and expense
whatsoever, jointly and severally, or otherwise (including, but not limited to,
any and all expenses whatsoever reasonably incurred in investigating, defending
or preparing to defend against any litigation, commenced or threatened, or any
claim whatsoever), arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Trust's Registration
Statement, the prospectus, or statement of additional information or any
amendment or supplement thereof, or any annual or other periodic report or proxy
statement of the Trust, or any other information provided by the Trust in
writing to the Distributor for use in any advertising and/or sales literature on
the Trust's behalf, or the omission or alleged omission therefrom of 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 and
in conformity with written information with respect to the Distributor expressly
for use in the Trust's Registration Statement, prospectus, statement of
additional information or any amendment or supplement thereof or any annual or
other periodic report or proxy statement of the Trust or any advertising or
sales literature. If any action is brought against the Distributor or any
controlling person thereof in respect of which indemnity may be sought against
the Trust pursuant to the foregoing, the Distributor shall promptly notify the
Trust in writing of the institution of such action. Anything in this
subparagraph to the contrary notwithstanding, the Trust shall not be liable for
any settlement of any such claim or action effected without its written consent,
which shall not be unreasonably withheld. The Trust agrees promptly to notify
the Distributor of the commencement of any litigation or proceedings against the
Trust or
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any of its officers or directors or controlling persons in connection with the
issue and sale of shares or in connection with the Trust's Registration
Statement, prospectus or statement of additional information, or any annual or
other periodic report or proxy statement or advertising or sales literature of
the Trust.
15. The Trust shall assume and pay all charges and expenses of its
operations not specifically assumed or otherwise to be provided by the
Distributor under this Agreement. The Trust will pay or cause to be paid
expenses (including the fees and disbursements of its own counsel) and all taxes
and fees payable to the federal, state or other governmental agencies on account
of the registration or qualification of securities issued by the Trust or
otherwise. The Trust will also pay or cause to be paid expenses incident to the
issuance of shares or beneficial interest, such as the cost of share
certificates, if any, issue taxes, and fees of the transfer agent. The
Distributor will pay all expenses (other than expenses which one or more dealers
may bear pursuant to any agreement with the Distributor) incident to the sale
and distribution of the shares issued or sold hereunder, including, without
limiting the generality of the foregoing, all expenses of printing and
distributing any prospectus and of preparing, printing and distributing or
disseminating any other literature, advertising and selling aids in connection
with the offering of the shares for sale (except that such expenses will not
include expenses incurred by the Trust in connection with the preparation,
type-setting, printing and distribution of any registration statement or report
or other communication to shareholders in their capacity as such) and expenses
of advertising in connection with such offering.
16. This agreement shall become effective on the date hereof and shall
continue in effect until December 31, 2000 and from year to year thereafter, but
only so long as such continuance is approved in the manner required by the
Investment Company Act of 1940. Either party hereto may terminate this agreement
on any date by giving the other party at least six months prior written notice
of such termination specifying the date fixed therefor. Without prejudice to any
other remedies of the Trust in any such event the Trust may terminate this
agreement at any time immediately upon any failure of fulfillment of any of the
obligations of the Distributor hereunder.
17. This agreement shall automatically terminate in the event of its
assignment.
18. Any notice under this agreement shall be in writing, addressed and
delivered or mailed, postage postpaid, to the other party at such address as
such other party may designate for the receipt of such notice.
19. The name "Driehaus Mutual Funds" refers to the trust created and
the trustees, as trustees but not individually or personally, acting from time
to time under a Declaration of Trust dated May 31, 1996, as amended, which is
hereby referred to and a copy of which is on file at the principal office of the
Trust. The trustees, officers, employees and agents of the Trust shall not
personally be bound by or liable under any written obligation, contract,
instrument, certificate or other interest or undertaking of the Trust made by
the trustees or by an officer, employee or agent of the Trust, in his or her
capacity as such, nor shall resort be had to their private property for the
satisfaction of any obligation or claim thereunder. All persons dealing with any
series or class of shares of the Trust may enforce claims against the Trust only
against the assets belonging to such series or class.
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20. If any provision of this Agreement is held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement will
not be affected thereby. This Agreement will be binding upon and shall inure to
the benefit of the parties hereto and their respective successors.
21. This Agreement shall be construed in accordance with applicable
federal law and the laws of the State of Illinois (without regard to principals
of conflicts of law).
IN WITNESS WHEREOF, the Trust and the Distributor have each caused this
agreement to be executed on its behalf by an officer thereunto duly authorized
and its seal to be affixed as of the day and year first above written.
ATTEST: DRIEHAUS MUTUAL FUNDS
By:
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Xxxx X. Xxxxx Xxxxxx X. Xxxxx
Secretary Senior Vice President
ATTEST: DRIEHAUS SECURITIES CORPORATION
By:
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Xxxx X. Xxxxx Xxxxxx X. Xxxxx
Secretary President
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