FORM OF AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, entered into as of [ ], 1999, by and
between Nottingham Investment Trust II (the "Trust"), an unincorporated business
trust organized under the laws of The Commonwealth of Massachusetts and Capital
Investment Group, Inc., a North Carolina corporation ("Distributor").
WITNESSETH:
WHEREAS, the Trust is engaged in business as an open-end management investment
company and is so registered under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue an unlimited number of shares of
beneficial interest (the "Shares"), in separate series representing the
interests in separate funds of securities and other assets; and
WHEREAS, the Shares of the Trust are registered under the Securities Act of
1933, as amended (the "1933 Act"), pursuant to a registration statement on Form
N-1A (the "Registration Statement"), including a prospectus (the "Prospectus")
and a statement of additional information (the "Statement of Additional
Information"); and
WHEREAS, the Trust offers separate series of shares (the "Shares") representing
interests in the Trust; and
WHEREAS, the separate series of the Trust advised by ▇▇▇▇▇ Capital Management,
Inc., which are set forth in Schedule A, as amended from time to time, (each a
"Fund" and collectively the "Funds") consists, of two classes of Shares (the
Institutional Class Shares and the Investor Class Shares); and
WHEREAS, the Trust has adopted a Plan of Distribution Pursuant to Rule 12b-1
under the 1940 Act (the "Distribution Plan") with respect to the Investor Shares
of the Funds; and
WHEREAS, Distributor has agreed to act as distributor of the Shares of each Fund
for the period of this Agreement;
NOW, THEREFORE, it is hereby agreed between the parties hereto as follows:
1. Appointment of Distributor.
(a) The Trust hereby appoints Distributor its exclusive agent for the
distribution of the Shares of each Fund in jurisdictions wherein such Shares may
be legally offered for sale; provided, however, that the Trust in its absolute
discretion may issue Shares of each Fund in connection with (i) the payment or
reinvestment of dividends or distributions; (ii) any merger or consolidation of
the Trust or of each Fund with any other investment company or trust or any
personal holding company, or the acquisition of the assets of any such entity or
another fund of the Trust; or (iii) any offer of exchange permitted by Section
11 of the ▇▇▇▇ ▇▇▇.
(b) Distributor hereby accepts such appointment as exclusive agent for
the distribution of the Shares of each Fund and agrees that it will sell the
Shares as agent for the trust at prices determined as hereinafter provided and
on the terms hereinafter set forth, all according to applicable federal and
state laws and regulations and to the Agreement and Declaration of Trust of the
Trust.
(c) Distributor may sell Shares of each Fund to or through qualified
securities dealers or others. Distributor will require each dealer or other such
party to conform to the provisions hereof, the Registration Statement and the
Prospectus and Statement of Additional Information, and applicable law; and
neither Distributor nor any such dealers or others shall withhold the placing of
purchase orders for Shares so as to make a profit thereby.
(d) Distributor shall order Shares of each Fund from the Trust only to
the extent that it shall have received purchase orders therefor. Distributor
will not make, or authorize any dealers or others to make: (i) any short sales
of Shares; or (ii) any sales of Shares to any Trustee or officer of the Trust or
to any officer or director of Distributor or of any corporation or association
furnishing investment advisory, managerial or supervisory services to the Trust,
or to any such corporation or association, unless such sales are made in
accordance with the then current Prospectus and Statement of Additional
Information.
(e) Distributor is not authorized by the Trust to give any information
or make any representations regarding the Shares of each Fund, except such
information or representations as are contained in the Registration Statement or
in the current Prospectus or Statement of Additional Information of the Funds,
or in advertisements and sales literature prepared by or on behalf of the Trust
for Distributor's use.
(f) Notwithstanding any provision hereof, the Trust may terminate,
suspend or withdraw the offering of Shares of each Fund whenever, in its sole
discretion, it deems such action to be desirable.
2. Offering Price of Shares. All Shares of each Fund sold under
this Agreement shall be sold at the public offering price per Share in effect at
the time of the sale, as described in the then current Prospectus of the Funds.
The excess, if any, of the public offering price over the net asset value of the
Shares sold by Distributor as agent shall be retained by Distributor as a
commission for its services hereunder. Out of such commission Distributor may
allow commissions or concessions to dealers and my allow them to others in its
discretion in such amounts as Distributor shall determine from time to time.
Except as may be otherwise determined by Distributor from time to time, such
commissions or concessions shall be uniform to all dealers. At no time shall the
Trust receive less than the full net asset value of the Shares, determined in
the manner set forth in the then current Prospectus and Statement of Additional
Information. Distributor shall also be entitled to such commissions and other
fees and payments as may be authorized by the Trustees of the Trust from time to
time under the Distribution Plan.
3. Furnishing of Information. The Trust shall furnish to
Distributor copies of any information, financial statements and other documents
that Distributor may reasonably request for use in connection with the sale of
Shares of each Fund under this Agreement. The Trust shall also make available a
sufficient number of copies of the Funds' current prospectus and Statement of
Additional Information for use by the Distributor.
4. Expenses.
(a) The Trust will pay or cause to be paid the following expenses: (i)
preparation, printing and distribution to shareholders of the Prospectus and
Statement of Additional Information; (ii) preparation, printing and distribution
of reports and other communications to shareholders; (iii) registration of the
Shares under the federal securities laws; (iv) qualification of the Shares for
sale in certain states; (v) qualification of the Trust as a dealer or broker
under state law as well as qualification of the Trust as an entity authorized to
do business in certain states; (vi) maintaining facilities for the issue and
transfer of Shares; (vii) supplying information, prices and other data to be
furnished by the Trust under this Agreement; and (viii) certain taxes applicable
to the sale or delivery of the Shares or certificates therefor.
(b) Except to the extent such expenses are borne by the Trust pursuant
to the Distribution Plan, Distributor will pay or cause to be paid the following
expenses: (i) payments to sales representatives of the Distributor and to
securities dealers and others in respect of the sale of Shares of each Fund;
(ii) payment of compensation to and expenses of employees of the Distributor and
any of its affiliates to the extent they engage in or support distribution of
each Fund's Shares or render shareholder support services not otherwise provided
by the Trust's transfer agent, administrator, or custodian, including, but not
limited to, answering routine inquiries regarding each Fund, processing
shareholder transactions, and providing such other shareholder services as the
Trust may reasonably request; (iii) formulation and implementation of marketing
and promotional activities, including, but not limited to, direct mail
promotions and television, radio, newspaper, magazine and other mass media
advertising; (iv) preparation, printing and distribution of sales literature and
of Prospectuses and Statements of Additional Information and reports of the
Trust for recipients other than existing shareholders of each Fund; and (v)
obtaining such information, analyses and reports with respect to marketing and
promotional activities as the Trust may, from time to time, reasonably request.
(c) Distributor in connection with the Distribution Plan shall prepare
and deliver reports to the Trustees of the Trust on a regular basis, at least
quarterly, showing the expenditures with respect to each Fund pursuant to the
Distribution Plan and the purposes therefor, as well as any supplemental reports
as the Trustees of the Trust, from time to time, may reasonably request.
5. Repurchase of Shares. Distributor as agent and for the account
of the Trust may repurchase Shares of each Fund offered for resale to it and
redeem such Shares at their net asset value.
6. Indemnification by the Trust. In absence of willful
misfeasance, bad faith, gross negligence or reckless disregard of obligations or
duties hereunder on the part of Distributor, the Trust agrees to indemnify
Distributor and its officers and partners against any and all claims, demands,
liabilities and expenses that Distributor may incur under the 1933 Act, or
common law or otherwise, arising out of or based upon any alleged untrue
statement of a material fact contained in the Registration Statement or any
Prospectus or Statement of Additional Information of the Funds, or in any
advertisements or sales literature prepared by or on behalf of the Trust for
Distributor's use, or any omission to state a material fact therein, the
omission of which makes any statement contained therein misleading, unless such
statement or omission was made in reliance upon and in conformity with
information furnished to the Trust in connection therewith by or on behalf of
Distributor. Nothing herein contained shall require the Trust to take any action
contrary to any provision of its Agreement and Declaration of Trust or any
applicable statute or regulation.
7. Indemnification by Distributor. Distributor agrees to
indemnify the Trust and its officers and Trustees against any and all claims,
demands, liabilities and expenses which the Trust may incur under the 1933 Act,
or common law or otherwise, arising out of or based upon (i) any alleged untrue
statement of a material fact contained in the Registration Statement or any
Prospectus or Statement of Additional Information of the Funds, or in any
advertisements or sales literature prepared by or on behalf of the Trust for
Distributor's use, or any omission to state a material fact therein, the
omission of which makes any statement contained therein misleading, if such
statement or omission was made in reliance upon and in conformity with
information furnished to the trust in connection therewith by or on behalf of
Distributor; or (ii) any act or deed of Distributor or its sales
representatives, or securities dealers and others authorized to sell Shares of
each Fund hereunder, or their sales representatives, that has not been
authorized by the Trust in any Prospectus or Statement of Additional Information
of the Funds or by this Agreement.
8. Term and Termination.
(a) With respect to any new Fund of the Trust that is advised by ▇▇▇▇▇
Capital Management, Inc., this Agreement shall continue in effect for an initial
two year period from the date such new Fund is added to this Agreement, as set
forth in Exhibit A, unless sooner terminated as provided herein. Unless
terminated as herein provided, this Agreement shall continue in effect, with
respect to each Fund (after its initial two year term), for one year from the
date hereof and shall continue in full force and effect for successive periods
of one year thereafter, but only so long as each such continuance is approved
(i) by either the Trustees of the Trust or by vote of a majority of the
outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of the Fund and, in
either event, (ii) by vote of a majority of the Trustees of the Trust who are
not parties to this Agreement or interested persons (as defined in the ▇▇▇▇ ▇▇▇)
of any such party and who have no direct or indirect financial interest in this
Agreement or in the operation of the Distribution Plan or in any agreement
related thereto ("Independent Trustees"), cast at a meeting called for the
purpose of voting on such approval.
(b) This Agreement may be terminated at any time without the payment of
any penalty by vote of the Trustees of the Trust or a majority of the
Independent Trustees or by vote of a majority of the outstanding voting
securities (as defined in the ▇▇▇▇ ▇▇▇) of any of the Funds or by Distributor,
on sixty days' written notice to the other party.
(c) This Agreement shall automatically terminate in the event of its
assignment (as defined in the 1940 Act).
9. Limitation of Liability. The obligations of the Trust
hereunder shall not be binding upon any of the Trustees, officers or
shareholders of the Trust personally, but shall bind only the assets and
property of the Trust. The term "The Nottingham Investment Trust II" means and
refers to the Trustees from time to time serving under the Agreement and
Declaration of Trust of the Trust, a copy of which in on file with the Secretary
of the Commonwealth of Massachusetts. The execution and delivery of this
Agreement has been authorized by the Trustees, and this Agreement has been
signed on behalf of the Trust by an authorized officer of the Trust, acting as
such and not individually, and neither such authorization by such Trustees 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 the
Agreement and Declaration of Trust.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed
as of the date first written above.
THE NOTTINGHAM INVESTMENT TRUST II
Attest: _________________________
By: __________________________
CAPITAL INVESTMENT GROUP, INC.
Attest: __________________________
By: __________________________
SCHEDULE A
The list below, which shall be amended from time to time, sets forth
the Funds of the Nottingham Trust II which are advised by ▇▇▇▇▇ Capital
Management, Inc., and the shares of which are distributed by Capital Investment
Group, Inc.
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FUNDS DATE ADDED TO THE AGREEMENT
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The ▇▇▇▇▇ Capital Management Equity Fund [insert date]
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The ▇▇▇▇▇ Capital Management Balanced [insert date]
Fund
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The ▇▇▇▇▇ Capital Management Small [insert date]
Company Fund
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The ▇▇▇▇▇ Capital Management International [insert date]
Equity Fund
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