DISTRIBUTION AGREEMENT
between
KALMAR POOLED INVESTMENT TRUST
and
PFPC DISTRIBUTORS, INC.
THIS DISTRIBUTION AGREEMENT is made as of the 2nd day of
January, 2001, between Kalmar Pooled Investment Trust, a Delaware business trust
(the "Trust"), having its principal place of business in Greenville, Delaware,
and PFPC Distributors, Inc., a corporation organized under the laws of the State
of Massachusetts ("the "Distributor"), having its principal place of business in
Westborough, Massachusetts.
WHEREAS, the Trust is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end management investment
company, and offers for sale one or more series of shares of beneficial interest
("Series") each of which may offer one or more sub-series (or classes) of
shares;
WHEREAS, each share of a Series represents an individual
interest in the assets, subject to the liabilities, allocated to that Series and
each Series has a separate investment objective and investment policies;
WHEREAS, at the present time, the Trust has established two
Series, each with a single class of shares, and the Trust may establish
additional Series and/or classes in the future; and
WHEREAS, the Trust desires to avail itself of the services of
Distributor, with such assistance from its affiliates as the latter may provide;
and the Distributor is willing to furnish such services to the Trust with
respect to each of the Series listed on Schedule A to this Agreement (each a
"Fund" or collectively "Funds"), as such Schedule shall be amended from time to
time on the terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained, the parties agree as follows:
1. Sale of Shares. The Trust grants to the Distributor the right to sell
shares of beneficial interest in all classes or Series of the Trust, now or
hereafter created, (the "Shares") on its behalf during the term of this
Agreement and subject to the registration requirements of the Securities
Act of 1933, as amended (the "1933 Act"), and of the laws governing the
sale of securities in various states (the "Blue Sky Laws") under the
following terms and conditions: the Distributor (i) shall have the right to
sell, as agent on behalf of the Trust, Shares authorized for issue and
registered under the 1933 Act, (ii) shall sell such Shares only in
compliance with applicable law, the terms set forth in the Trust's
currently
effective registration statement, in accordance with any plan of
distribution adopted by the Trust and in compliance with any limitations
which may be imposed by the Trustees of the Trust.
2. Selling Agreements. Subject to the supervisory authority of the Trustees
of, and on such terms as are authorized by, the Trust, the Distributor may
enter into agreements with financial or investment consultants, brokers,
dealers or other ("Selling Dealers") for the provision of distribution
services related to the sale of Shares as well as other shareholder
services as agreed by the affected parties. The Distributor will only act
as principal in entering into such agreement.
3. Sale of Shares by the Trust. The rights granted to the Distributor shall be
non-exclusive in that the Trust reserves the right to sell its Shares to
investors on applications received and accepted by the Trust. Further, the
Trust reserves the right to issue Shares in connection with (a) the merger
or consolidation, or acquisition by the Trust through purchase or
otherwise, with any other investment company, trust or personal holding
company; (b) the payment or reinvestment of dividends or distributions; or
(c) any offer of exchange permitted by Section 11 of the 1940 Act.
4. Shares Covered by this Agreement. This Agreement shall apply to issued
Shares of all Series of the Trust, Shares of all Series of the Trust held
in its treasury in the event that in the discretion of the Trust treasury
Shares shall be sold, and Shares of all Series of the Trust repurchased for
resale.
5. Public Offering Price. Except as otherwise noted in the Trust's current
prospectuses (the "Prospectus") or Statements of Additional Information
(the "SAI") with respect to each Series or class, all Shares sold to
investors will be sold at the public offering price. The public offering
price for all accepted subscriptions will be the net asset value per share,
plus any applicable sales charge on such shares, determined in the manner
described in the Trust's current Prospectus or SAI with respect to the
applicable Series or class.
6. Suspension of Sales. If and whenever the determination of net asset value
is suspended and until such suspension is terminated, no further orders for
Shares shall be processed by the Distributor except such unconditional
orders placed with the Distributor before it had knowledge of the
suspension. In addition, the Trust reserves the right to suspend sales and
the Distributor's authority to process orders for Shares on behalf of the
Trust if, in the judgment of the Trust, it is in the best interests of the
Trust to do so. Suspension will continue for such period as may be
determined by the Trust. In addition, the Distributor reserves the right to
reject any purchase order.
7. Solicitation of Sales. In consideration of these rights granted to the
Distributor, the Distributor agrees to use all reasonable efforts,
consistent with its other business, to secure purchasers for Shares of the
Trust. This shall not prevent the Distributor from
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entering into like arrangements (including arrangements involving the
payment of underwriting commissions) with other issuers.
8. Authorized Representations. The Distributor is not authorized by the Trust
to give any information or to make any representations other than those
contained in the appropriate registration statements, Prospectuses or SAIs
filed with the Securities and Exchange Commission under the 1933 Act (as
those registration statements, Prospectuses and SAIs may be amended from
time to time), or contained in shareholder reports or other material that
may be prepared by or on behalf of the Trust for the Distributor's use.
This shall not be construed to prevent the Distributor from preparing and
distributing, in compliance with applicable laws and regulations, sales
literature or other material as it may deem appropriate. The Distributor
will furnish or cause to be furnished copies of such sales literature or
other material to the President of the Trust or his designee and will
provide him with a reasonable opportunity to comment on it. The Distributor
agrees to take appropriate action to cease using such sales literature or
other material to which the Trust reasonably objects as promptly as
practicable after receipt of the objection.
9. Registration of Shares. The Trust agrees that it will take all action
necessary to register Shares under the 1933 Act (subject to the necessary
approval, if any, of its shareholders) so that there will be available for
sale the number of Shares the Distributor may reasonably be expected to
sell. The Trust 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 each
Series of the Trust.
10. Expenses, Compensation and Reimbursement
a. The Trust shall pay all fees and expenses:
i. in connection with the preparation, typesetting and filing of any
registration statement, Prospectus and SAI under the 1933 Act,
and any amendments thereto, for the issue of its Shares;
ii. in connection with filings required in connection with the Sale
of Shares for sale in the various states in which the Board of
Trustees (the "Trustees") of the Trust shall determine it
advisable to offer such Shares for sale (including registering
the Trust or Series as a broker or dealer or any officer of the
Trust as agents or salesperson in any state);
iii. of preparing, typesetting, printing and mailing any report or
other communication to shareholders of the Trust in their
capacity as such; and
iv. of preparing, typesetting, printing and mailing Prospectuses,
SAIs, and any supplements thereto, sent to existing shareholders.
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b. The Distributor shall pay expenses of:
i. printing and distributing Prospectuses, SAIs and reports prepared
for its use in connection with the offering of the Shares for
sale to the public;
ii. any other literature used in connection with such offering; and
iii. advertising in connection with such offering.
c. In addition to the services described above, Distributor will provide
services including assistance in the production of marketing and
advertising materials for the sale of Shares of the Trust and their
review for compliance with applicable regulatory requirements,
entering into dealer agreements with broker-dealers to sell Shares of
the Trust and will notify the Trust of any conditions that develop
that would adversely affect the performance of the dealer's obligation
under the selling agreement.
d. In connection with the services to be provided by the Distributor
under this Agreement, the Distributor shall receive reimbursement from
the Trust's investment adviser for fees and expenses (which may
include without limitation reimbursement for the expenses incurred
pursuant to Section 9(b) hereof incurred pursuant to this Agreement.
11. Indemnification.
a. The Trust 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 and Section 20(a) of the Securities Act of 1934 (the "1934 Act")
against any loss, liability, claim, damages or expense (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 1933 Act or any other statute or
common law, alleging any wrongful act of the Trust or any of its
employees or representatives, or based upon the grounds that the
registration statements, Prospectuses, SAIs, shareholder reports or
other information filed or made public by the Trust (as from time to
time amended) included an untrue statement of material fact or omitted
to state a material fact required to be stated or necessary in order
to make the statements not misleading. However, the Trust 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 Trust in writing by or
on behalf of the Distributor. In no case (i) is the indemnity of the
Trust in favor of the Distributor or any person indemnified to be
deemed to protect the Distributor or any person against any liability
to the Trust or its security holders to which the
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Distributor or such person would otherwise be subject by reason of
willful misfeasance, bad faith or gross 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 Trust to
be liable under its indemnity agreement contained in this Section
10(a) 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 Trust in writing of the claim within a
reasonable time after the summons or other first written notification
giving information of the nature of the claim 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 Trust of any claim shall not
relieve the Trust from any liability which it may have to the
Distributor or any person against whom such action is brought other
than on account of its indemnity agreement contained in this Section
10(a). The Trust 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, but if the Trust elects to assume the
defense, the defense shall be conducted by counsel chosen by it and
satisfactory to the Distributor, or person or persons, defendant or
defendants in the suit. In the event the Trust elects to assume the
defense of any suit and retain counsel, the Distributor, officers or
directors or controlling person(s) or defendant(s) in the suit, shall
bear the fees and expenses of any additional counsel retained by them.
If the Trust 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 Trust agrees to notify
the Distributor promptly of the commencement of any litigation or
proceedings against it or any of its officers or Trustees in
connection with the issuance or sale of any of the Shares.
b. The Distributor also covenants and agrees that it will indemnify and
hold harmless the Trust and each of the members of its Trustees and
officers and each person, if any, who controls the Trust within the
meaning of Section 15 of the 1933 Act, against any loss, liability,
damages, claim or expense (including the reasonable costs of investing
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
or any other statute or common law, alleging any wrongful act of the
Distributor or any of this employees or representatives, or alleging
that the registration statements, Prospectuses, SAIs, shareholder
reports or other information filed or made public by the Trust (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 in writing to the Trust by or on behalf of
the Distributor. In
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no case (i) is the indemnity of the Distributor in favor of the Trust
or any person indemnified to be deemed to protect the Trust or any
person against any liability to which the Trust or such person would
otherwise be subject by reason of willful misfeasance, bad faith or
gross 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 Section 10(b) with respect to any claim made against
the Trust or any person indemnified unless the Trust or person, as the
case may be, shall have notified the Distributor in writing of the
claim within a reasonable time after the summons or other first
written notification giving information of the nature of the claim
shall have been served upon the Trust or any such person or after the
Trust 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 Trust or any person against whom the action is brought
other than on account of its indemnity agreement contained in this
Section 10(b). 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 any
claims, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by it and satisfactory to
the Trust, to its officers and Trustees and to any controlling
person(s) or any defendants(s) in the suit. In the event the
Distributor elects to assume the defense of any suit and retain
counsel, the Trust or controlling person(s) or defendant(s) in the
suit, shall bear the fees and expenses of any additional counsel
retained by them. If the Distributor does not elect to assume the
defense of any suit, it will reimburse the Trust, its officers or
Trustees, controlling person(s) or defendant(s) in the suit, for the
reasonable fees and expenses of any counsel retained by them. The
Distributor agrees to notify the Trust promptly of the commencement of
any litigation or proceedings against it in connection with the issue
and sale of any of the Shares.
12. Effectiveness Termination, etc. This Agreement shall become effective on
the day and year first written above, and unless terminated as provided,
shall continue in force for one (1) year from the date of its execution and
thereafter from year to year, provided its continuance after the one (1)
year period is approved at least annually by either (i) a majority of the
Trustees of the Trust or (ii) a majority of the outstanding voting
securities of the Trust, provided that in either event its continuance also
is approved by the vote of a majority of those Trustees of the Trust who
are not interested persons of the Trust, who have no direct or indirect
financial interest in the operation of any Plan of the Trust or any
agreements related to the Plan and who are not parties to this Agreement or
interested persons of any party, cast in person at a meeting called for the
purpose of voting on the approval. This Agreement shall automatically
terminate in the event of its assignment. As used in this Section 12, the
terms "vote of a majority of the outstanding voting securities,"
"assignment" and "interested person" shall have the respective meanings
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specified in the 1940 Act and the rules enacted thereunder as now in effect
or as hereafter amended. In addition to termination by failure to approve
continuance or by assignment, this Agreement may at any time be terminated
without the payment of any penalty by vote of a majority of the Trustees of
the Trust who are not interested persons of the Trust and who have no
direct or indirect financial interest in the operation of any Plan of the
Trust or any agreements related to the Plan, or by vote of a majority of
the outstanding voting securities of the Trust, on not more than sixty (60)
days' written notice to the Trust. This Agreement may be terminated by the
Distributor upon not less than sixty (60) days' prior written notice to the
Trust.
13. Notice. Any notice under this Agreement shall be given in writing addressed
and hand delivered or sent by registered or certified mail, postage
prepaid, to the other party to this Agreement at its principal place of
business.
14. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
15. Governing Law. To the extent that state law has not been preempted by the
provisions of any law of the United States heretofore or hereafter enacted,
as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws of the State of
Delaware.
16. Shareholder Liability. The Distributor is hereby expressly put on notice of
the limitation of shareholder liability as set forth in the Agreement and
Declaration of Trust of the Trust and agrees that obligations assumed by
the Trust pursuant to this Agreement shall be limited in all cases to the
Trust and its assets, and if the liability relates to one or more series,
the obligations hereunder shall be limited to the respective assets of such
series. The Distributor further agrees that it shall not seek satisfaction
of any such obligation from the shareholders or any individual shareholder
of a series of the Trust, nor from the Trustees or any individual Trustee
of the Trust.
17. Miscellaneous. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
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 be
executed in two counterparts, each of which taken together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first written above.
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KALMAR POOLED INVESTMENT TRUST
By: /s/ Ford ▇. ▇▇▇▇▇▇, ▇▇.
------------------------
Name: Ford ▇. ▇▇▇▇▇▇, ▇▇., President
------------------------------
PFPC DISTRIBUTORS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Pres.
----------------------
Acknowledgment as to reimbursement with
respect to marketing expenses of PFPC
Distributors, Inc., as Distributor
Kalmar Investment Advisers, as Investment Adviser
By: /s/ Ford ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------
Name: Ford ▇. ▇▇▇▇▇▇, ▇▇., President
------------------------------
Date: 12/04/00
--------
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SCHEDULE A
KALMAR POOLED INVESTMENT TRUST
FUND LISTING
Kalmar "Growth-with-Value" Small Cap Fund
Kalmar "Growth-with-Value" Micro Cap Fund
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