DISTRIBUTION AGREEMENT
THE TREASURER'S FUND, INC.
00 Xxx Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx 00000-0000
April 14, 1997
Gabelli Fixed Income Distributors, Inc.
00 Xxx Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx 00000-0000
Gentlemen:
1. In consideration of the agreements on your part herein contained
and of the payment by us to you of a fee of $1 per year and on the terms and
conditions set forth herein, we have agreed that you shall be, for the period of
this agreement, a distributor, as our agent, for the unsold portion of each
series of such number of shares of our common stock, $.001 par value per share,
as may be effectively registered from time to time under the Securities Act of
1933, as amended (the "1933 Act"). This agreement is being entered into pursuant
to the Distribution and Service Plan (the "Plan") adopted by us on behalf of
each of our portfolio series in accordance with Rule 12b-1 under the Investment
Company Act of 1940, as amended (the "1940 Act").
2. We hereby agree that you will act as our agent, and hereby
appoint you our agent, to offer, and to solicit offers to subscribe to, the
unsold balance of shares of each series of our common stock as shall then be
effectively registered under the 1933 Act. All subscriptions for shares of our
common stock obtained by you shall be directed to us for acceptance and shall
not be binding on us until accepted by us. You shall have no authority to make
binding subscriptions on our behalf. We reserve the right to sell shares of each
series of our common stock through other distributors or directly to investors
through subscriptions received by us at our principal office in Darien,
Connecticut. The right given to you under this agreement shall not apply to any
shares of our common stock issued in connection with (a) the merger or
consolidation of any other investment company with us, (b) our acquisition by
purchase or otherwise of all or substantially all of the assets or stock of any
other investment company, or (c) the reinvestment in shares of our common stock
by our stockholders of dividends or other distributions or any other offering by
us of securities to our stockholders.
3. You will use your best efforts to obtain subscriptions to shares
of each series of our common stock upon the terms and conditions contained
herein and in our Prospectus, as in effect from time to time. You will send to
us promptly all subscriptions placed with you. We shall furnish you from time to
time, for use in connection with the offering of shares of our common stock,
such other information with respect to us and shares of our common stock as you
may reasonably request. We shall supply you with such copies of our Registration
Statement and Prospectus, as in effect from time to time, as you may request.
Except as we may authorize in writing, you are not authorized to give any
information or to make any representation that is not contained in the
Registration Statement or Prospectus, as then in effect. You may use employees,
agents and other persons, at your cost and expense, to assist you in carrying
out your obligations hereunder, but no such employee, agent or other person
shall be deemed to be our agent or have any rights under this Agreement. You may
sell our shares to or through qualified brokers, dealers and financial
institutions under selling and servicing agreements provided that no dealer,
financial institution or other person shall be appointed or authorized to act as
our agent without our written consent. We acknowledge that you and Gabelli Fixed
Income L.L.C. (the "Advisor") may arrange for organizations whose customers or
clients are shareholders of our corporation ("Participating Organizations") to
enter into agreements with the Advisor pursuant to which the Participating
Organizations will be compensated directly by the Advisor, or through you, for
providing assistance in the distribution of our shares and for the performance
of shareholder servicing and related administrative functions not performed by
the Advisor, the Administrator or the Transfer Agent. Such payments will be made
only pursuant to written agreements approved in form and substance by our Board
of Directors to be entered into by the Advisor and the Participating
Organizations. It is recognized that we shall have no obligation or liability to
you, them or any Participating Organization for any such payments under the
agreements with Participating Organizations. Our obligation is solely to make
payments to the Advisor under the Advisory Agreement. It is understood that the
Advisor may, in its sole discretion, reimburse you for any of these expenses, or
for any other expenses for which the Advisor is responsible under the Advisory
Agreement, that you may incur on its behalf. All sales of our shares effected
through you will be made in compliance with all applicable federal securities
laws and regulations and the Constitution, rules and regulations of the National
Association of Securities Dealers, Inc. ("NASD").
4. We reserve the right to suspend the offering of shares of our
common stock at any time, in the absolute discretion of our Board of Directors,
and upon notice of such suspension you shall cease to offer shares of our common
stock hereunder.
5. Both of us will cooperate with each other in taking such action
as may be necessary to qualify shares of our common stock for sale under the
securities laws of such states as we may designate, provided, that you shall not
be required to register as a broker-dealer or file a consent to service of
process in any such state where you are not now so registered. Pursuant to an
Advisory Agreement dated April 14, 1997 between us and the Advisor, we will pay
all fees and expenses of registering shares of all series of our common stock
under the 1933 Act and of qualification of shares of all series of our common
stock, and to the extent necessary, our
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qualification under applicable state securities laws. You will pay all expenses
relating to your broker-dealer qualification.
6. We represent to you that our Registration Statement and
Prospectus have been carefully prepared to date in conformity with the
requirements of the 1933 Act and the 1940 Act and the rules and regulations of
the Securities and Exchange Commission (the "SEC") thereunder. We represent and
warrant to you, as of the date hereof, that our Registration Statement and
Prospectus contain all statements required to be stated therein in accordance
with the 1933 Act and the 1940 Act and the SEC's rules and regulations
thereunder; that all statements of fact contained therein are or will be true
and correct at the time indicated or the effective date as the case may be; and
that neither our Registration Statement nor our Prospectus, when they shall
become effective or be authorized for use, will include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser of shares
of our common stock. We will from time to time file such amendment or amendments
to our Registration Statement and Prospectus as, in the light of future
development, shall, in the opinion of our counsel, be necessary in order to have
our Registration Statement and Prospectus at all times contain all material
facts required to be stated therein or necessary to make any statements therein
not misleading to a purchaser of shares of our common stock. If we shall not
file such amendment or amendments within fifteen days after the receipt of a
written request from you to do so, you may, at your option, terminate this
agreement immediately. We will not file any amendment to our Registration
Statement or Prospectus without giving you reasonable notice thereof in advance;
provided, however, that nothing in this agreement shall in any way limit our
right to file such amendments to our Registration Statement or Prospectus, of
whatever character, as we may deem advisable, such right being in all respects
absolute and unconditional. We represent and warrant to you that any amendment
to our Registration Statement or Prospectus hereafter filed by us will be
carefully prepared in conformity within the requirements of the 1933 Act and the
1940 Act and the SEC's rules and regulations thereunder and will, when it
becomes effective, contain all statements required to be stated therein in
accordance the 1933 Act and the 1940 Act and the SEC's rules and regulations
thereunder; that all statements of fact contained therein will, when the same
shall become effective, be true and correct; and that no such amendment, when it
becomes effective, will include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading to a purchaser of our shares.
7. We agree to indemnify, defend and hold you, and any person who
controls you within the meaning of Section 15 of the 1933 Act, free and harmless
from and against any and all claims, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which you or any such controlling
person may incur, under the 1933 Act or the 1940 Act, or under common law or
otherwise, arising out of or based upon any alleged untrue statement of a
material fact contained in our Registration Statement or Prospectus in effect
from time to time or arising out of or based upon any alleged omission to state
a material fact required to be stated in either of them or necessary to make the
statements in either of them not misleading; provided, however, that in no event
shall anything herein contained be so construed as to protect you against any
liability to us or our security
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holders to which you would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of your duties,
or by reason of your reckless disregard of your obligations and duties under
this agreement. Our agreement to indemnify you and any such controlling person
is expressly conditioned upon our being notified of any action brought against
you or any such controlling person, such notification to be given by letter or
by telegram addressed to us at our principal office in Darien, Connecticut, and
sent to us by the person against whom such action is brought within ten days
after the summons or other first legal process shall have been served. The
failure so to notify us of any such action shall not relieve us from any
liability which we may have to the person against whom such action is brought
other than on account of our indemnity agreement contained in this paragraph 7.
We will be entitled to assume the defense of any suit brought to enforce any
such claim, and to retain counsel of good standing chosen by us and approved by
you. In the event we do elect to assume the defense of any such suit and retain
counsel of good standing approved by you, the defendant or defendants in such
suit shall bear the fees and expenses of any additional counsel retained by any
of them; but in case we do not elect to assume the defense of any such suit, or
in case you, in good faith, do not approve of counsel chosen by us, we will
reimburse you or the controlling person or persons named as defendant or
defendants in such suit, for the fees and expenses of any counsel retained by
you or them. Our indemnification agreement contained in this paragraph 7 and our
representations and warranties in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of you or any
controlling person and shall survive the sale of any shares of our common stock
made pursuant to subscriptions obtained by you. This agreement of indemnity will
inure exclusively to your benefit, to the benefit of your successors and
assigns, and to the benefit of your controlling persons and their successors and
assigns. We agree promptly to notify you of the commencement of any litigation
or proceeding against us in connection with the issue and sale of any shares of
our common stock.
8. You agree to indemnify, defend and hold us, our several officers
and directors, and any person who controls us within the meaning of Section 15
of the 1933 Act, free and harmless from and against any and all claims, demands,
liabilities, and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any reasonable counsel fees incurred in
connection therewith) which we, our officers and directors, or any such
controlling person, may incur under the 1933 Act or under common law or
otherwise, but only to the extent that such liability or expense incurred by us,
our officers or directors or such controlling person shall arise out of or be
based upon any alleged untrue statement of a material fact contained in
information furnished in writing by you to us for use in our Registration
Statement or Prospectus as in effect from time to time, or shall arise out of or
be based upon any alleged omission to state a material fact in connection with
such information required to be stated in the Registration Statement or
Prospectus or necessary to make such information not misleading. Your agreement
to indemnify us, our officers and directors, and any such controlling person is
expressly conditioned upon your being notified of any action being brought
against us, our officers or directors or any such controlling person, such
notification to be given by letter or telegram addressed to you at your
principal office in Darien, Connecticut, and sent to you by the person against
whom such action is brought, within ten days after the summons or other first
legal process shall have been served. You shall have a right to
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control the defense of such action, with counsel of your own choosing,
satisfactory to us, if such action is based solely upon such alleged
misstatement or omission on your part, and in any other event you and we, our
officers or directors or such controlling person shall each have the right to
participate in the defense or preparation of any such action. The failure so to
notify you of any such action shall not relieve you from any liability which you
may have to us, to our officers or directors, or to such controlling person
other than on account of your indemnity agreement contained in this paragraph 8.
9. We agree to advise you immediately:
(a) of any request by the SEC for amendments to our
Registration Statement or Prospectus or for additional information.
(b) of the issuance by the SEC of any stop order suspending
the effectiveness of our Registration Statement or Prospectus or the initiation
of any proceedings for that purpose.
(c) of the happening of any material event which makes untrue
any statement made in our Registration Statement or Prospectus or which requires
the making of a change in either of them in order to make the statements therein
not misleading, and
(d) of all action of the SEC with respect to any amendments to
our Registration Statement or Prospectus.
10. This Agreement will become effective on the date hereof and will
remain in effect until March 31, 1998 and thereafter for successive twelve-month
periods (computed from each March 31st), provided that such continuation is
specifically approved at least annually by vote of our Board of Directors and of
a majority of those of our directors who are not interested persons (as defined
in the 0000 Xxx) and have no direct or indirect financial interest in the
operation of the Plan or in any agreements related to the Plan, cast in person
at a meeting called for the purpose of voting on this Agreement. This Agreement
may be terminated at any time, without the payment of any penalty, by vote of a
majority of our entire Board of Directors, or by a vote of a majority of our
Directors who are not interested persons (as defined in the 0000 Xxx) and who
have no direct or indirect financial interest in the operation of the Plan or in
any agreement related to the Plan, or by vote of a majority of our outstanding
voting securities, as defined in the Act, on sixty days' written notice to you,
or by you on sixty days' written notice to us.
11. This Agreement may not be transferred, assigned, sold or in any
manner hypothecated or pledged by you and this Agreement shall terminate
automatically in the event of any such transfer, assignment, sale, hypothecation
or pledge by you. The terms "transfer", "assignment" and "sale" as used in this
paragraph shall have the meanings ascribed thereto by governing law and in
applicable rules or regulations of the SEC thereunder.
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12. Except to the extent necessary to perform your obligations
hereunder, nothing herein shall be deemed to limit or restrict your right, or
the right of any of your officers, directors or employees who may also be a
director, officer or employee of ours, or of a person affiliated with us, as
defined in the 1940 Act, to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of a
similar or dissimilar nature, or to render services of any kind to another
corporation, firm, individual or association.
If the foregoing is in accordance with your understanding, will you
kindly so indicate by signing and returning to us the enclosed copy hereof.
Very truly yours,
THE TREASURER'S FUND, INC.
By
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Accepted:
April 14, 1997
GABELLI FIXED INCOME DISTRIBUTORS, INC.
By
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