DISTRIBUTION AGREEMENT
This AGREEMENT, dated this the 17th day of September, 2002, between THE
NOTTINGHAM INVESTMENT TRUST II, an unincorporated business trust organized under
the laws of the Commonwealth of Massachusetts (the "Trust"), and CAPITAL
INVESTMENT GROUP, INC., a North Carolina corporation (the "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 ("Shares") representing interests in a series of securities
and other assets, as identified in Appendix A (each a "Fund"); and
WHEREAS, the Shares of such Fund are classified into Investor Class Shares and
Institutional Class Shares; and
WHEREAS, the Trust offers the Shares of such Fund and has registered the Shares
under the Securities Act of 1933, as amended (the "1933 Act"), pursuant to a
registration statement on Form N-1A (the "Registration Statement"), including
prospectuses (the "Prospectuses") and a statement of additional information (the
"Statement of Additional Information"); 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 Class
Shares of the Fund, and may enter into related agreements providing for the
distribution of such Shares; and
WHEREAS, Distributor has agreed to act as distributor of the Shares of the 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 the 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 the Fund in connection with (i) the
payment or reinvestment of dividends or distributions; (ii) any merger or
consolidation of the Trust or of a 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 1940 Act, or any other applicable
provision.
(b) Distributor hereby accepts such appointment as exclusive agent for the
distribution of the Shares of the 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 Trust's Declaration of Trust.
(c) Distributor may sell Shares of the 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 Prospectuses 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 the 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
Prospectuses 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 any Fund, except such
information or representations as are contained in the Registration
Statement or in the current Prospectuses or Statement of Additional
Information of the Fund, 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 any Fund whenever, in its sole
discretion, it deems such action to be desirable.
2. Offering Price of Shares. All Funds Shares 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 Prospectuses of the Fund. 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 may 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
Prospectuses 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 the Fund under this Agreement. The Trust shall also make
available a sufficient number of copies of the Fund's current Prospectuses
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 Prospectuses
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; (viii) certain taxes applicable to the sale or
delivery of the Shares or certificates therefore, and (ix) compensation to
the Distributor for services provided and expenses assumed by the
Distributor as the Trustees may authorize, from time to time, in their sole
discretion.
(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 the 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 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 a 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
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Prospectuses and Statements of Additional Information and reports of the
Trust for recipients other than existing shareholders of a 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 the 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 a Fund, 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
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 any Fund, 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 Fund Shares hereunder, or their sales representatives, that has not
been authorized by the Trust in any Prospectus or Statement of Additional
Information of any Fund or by this Agreement.
8. Term and Termination.
(a) With respect to the Fund, this Agreement shall become effective upon
the commencement of operations of each Fund as set forth in the attached
appendices. Unless terminated as herein provided, with respect to the Fund,
this Agreement shall continue in effect for two years from the date of the
Fund's commencement of operations and, with respect to the Fund, 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) With respect to the Fund, 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 the Fund or
by Distributor, on sixty days' written notice to the other party.
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(c) This Agreement shall automatically terminate in the event of its
assignment (as defined in the 1940 Act).
9. Subcontract. The Distributor may, at its expense and with the approval
of the Trustees, appoint another firm or company as its sub-distributor or
agent. The Distributor shall not, however, be relieved of any of its
obligations under this Agreement by the appointment of such sub-distributor
or agent.
10. 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 "Trustees" means and refers to the Trustees from time to time
serving under the Trust's Declaration of Trust. 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 Trust's Declaration
of Trust.
11. Notices. Notices of any kind to be given to the Trust hereunder by the
Distributor shall be in writing and shall be duly given if mailed or
delivered to The Nottingham Investment Trust II, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: C. ▇▇▇▇▇ ▇▇▇▇▇▇, III
or to such other address or to such individual as shall be so specified by
the Trust to the Distributor. Notices of any kind to be given to the
Distributor hereunder by the Trust shall be in writing and shall be duly
given if mailed or delivered to the Capital Investment Group, Inc., ▇.▇.
▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other address or to such
individual as shall be so specified by the Distributor to the Trust.
Notices shall be effective upon delivery.
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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:/s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇ III
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇ III
Title: Secretary By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
CAPITAL INVESTMENT GROUP, INC.
Attest:/s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title:_______________________________ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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APPENDIX A
Dated as of September __, 2002
o The ▇▇▇▇▇ Capital Management Mid-Cap Fund
Date Fund commenced operations: ____________
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