Exhibit e
Conformed
SECOND AMENDED AND RESTATED
---------------------------
DISTRIBUTION AGREEMENT
----------------------
SECOND AMENDED AND RESTATED DISTRIBUTION AGREEMENT, dated as of August
15, 1999, amended and restated as of May 1, 2000 and further amended and
restated as of June 25, 2001 by and between DOMINI SOCIAL INVESTMENT TRUST
(formerly, "Domini Social Equity Fund"), a Massachusetts business trust (the
"Trust"), and DSIL INVESTMENT SERVICES LLC, a New York limited liability company
and a subsidiary of Domini Social Investments LLC (the "Distributor").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Trust is engaged in business as an open-end investment
company registered under the Investment Company Act of 1940 (collectively with
the rules and regulations promulgated thereunder, the "1940 Act");
WHEREAS, the Trust's shares of beneficial interests ("Shares") have
been divided into one or more series ("Series");
WHEREAS, the Board of Trustees of the Trust has adopted a Second
Amended and Restated Distribution Plan, dated as of May 1, 1990, amended and
restated as of January 14, 2000 and as further amended and restated as of May
14, 2001 (as amended and restated and in effect from time to time, the
"Distribution Plan"), which is incorporated herein by reference and pursuant to
which the Trust desires to enter into this Second Amended and Restated
Distribution Agreement with respect to its current and future Series;
WHEREAS, the Trust wishes to engage the Distributor to provide certain
services with respect to the distribution of the Shares of each of its Series,
and the Distributor is willing to provide such services to each Series of the
Trust on the terms and conditions hereinafter set forth; and
WHEREAS, the Trust has entered into an Amended and Restated
Distribution Agreement, dated as of August 15, 1999 and amended and restated as
of May 1, 2000 (the "Original Agreement"), and desires to
amend and restate the Original Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as herein set forth, the parties covenant and agree as
follows, and the Original Agreement is hereby amended and restated as follows:
1. The Trust grants to the Distributor the right, as agent of the
Trust, to sell Shares of each Series of the Trust upon the terms hereinbelow set
forth during the term of this Agreement. While this Agreement is in force, the
Distributor agrees to use its best efforts to find purchasers for Shares of each
Series of the Trust.
The Distributor shall have the right, as agent of the Trust, to order
from the Trust the Shares needed, but not more than the Shares needed (except
for clerical errors and errors of transmission), to fill unconditional orders
for Shares placed with the Distributor, all such orders to be made in the manner
set forth in the Trust's then-current prospectus (the "Prospectus") and
then-current statement of additional information (the "Statement of Additional
Information"). The price which shall be paid to the Trust for the Shares so
purchased shall be the net asset value per Share as determined in accordance
with the provisions of the Declaration of Trust and By-Laws, as each may from
time to time be amended (collectively, the "Governing Instruments"). The
Distributor shall notify the Custodian of the Trust (currently Investors Bank &
Trust Company), at the end of each business day, or as soon thereafter as the
orders placed with the Distributor have been compiled, of the number of Shares
and the prices thereof which have been ordered through the Distributor since the
end of the previous business day.
The right granted to the Distributor to place orders for Shares with
the Trust shall be exclusive, except that this exclusive right shall not apply
to Shares issued in the event that an investment company (whether a regulated or
private investment company or a personal holding company) is merged with and
into or consolidated with the Trust or in the event that the Trust acquires, by
purchase or otherwise, all (or substantially all) the assets or the outstanding
shares of any such company; nor shall it apply to Shares issued by the Trust as
a dividend or stock split. The exclusive right to place orders for Shares
granted to the Distributor may be waived by the Distributor by notice to the
Trust in writing, either unconditionally or subject to such conditions and
limitations as may be set forth in such notice to the Trust. The Trust hereby
acknowledges that the Distributor may render distribution and other services to
other parties, including other investment companies. In
-2-
connection with its duties hereunder, the Distributor shall also arrange for
computation of performance statistics with respect to the Trust and arrange for
publication of current price information in newspapers and other publications.
2. The Shares may be sold by the Distributor on behalf of the Trust, to
any investor or to or through any dealer having a sales agreement with the
Distributor, upon the following terms and conditions:
The public offering price of Shares of the Trust, i.e., the price per
Share at which the Distributor or any dealer purchasing Shares through the
Distributor may sell shares to the public, shall be the net asset value of such
Shares.
The net asset value of Shares of the Trust shall be determined by the
Trust, or by an agent of the Trust, as of the close of the New York Stock
Exchange on each day on which the New York Stock Exchange is open for trading
(and on such other days as the Trustees deem necessary in order to comply with
Rule 22c-1 under the 1940 Act), in accordance with the method established
pursuant to the Governing Instruments. The Trust shall have the right to suspend
the sale of Shares if, because of some extraordinary condition, the New York
Stock Exchange shall be closed, or if conditions existing during the hours when
the Exchange is open render such action advisable or for any other reason deemed
adequate by the Trust.
3. The Trust agrees that it will, from time to time, but subject to the
necessary approval, if any, of its shareholders, take all necessary action to
register such number of Shares under the Securities Act of 1933, as amended (the
"1933 Act"), as the Distributor may reasonably be expected to sell.
The Distributor shall be an independent contractor and neither the
Distributor nor any of its directors, officers or employees as such, is or shall
be an employee of the Trust. It is understood that Trustees, officers and
shareholders of the Trust are or may become interested in the Distributor, as
directors, officers, employees, or otherwise and that directors, officers and
employees of the Distributor are or may become similarly interested in the Trust
and that the Distributor may be or become interested in the Trust as a
shareholder or otherwise. The Distributor is responsible for its own conduct and
the employment, control and conduct (but only with respect to the duties and
obligations of the Distributor hereunder) of its agents and employees and for
any injury to any person through its agents or employees. The Distributor
assumes full
-3-
responsibility for its agents and employees under applicable statutes and agrees
to pay all employer taxes thereunder.
4. The Distributor covenants and agrees that, in selling Shares, it
will use its best efforts in all respects duly to conform with the requirements
of all state and federal laws and the Conduct Rules of the National Association
of Securities Dealers, Inc. relating to the sale of Shares, and will indemnify
and hold harmless the Trust and each of its Trustees and officers and each
person, if any, who controls the Trust within the meaning of Section 15 of the
Act (the "Indemnified Parties") against all losses, liabilities, damages, claims
or expenses (including the reasonable cost of investigating or defending any
alleged loss, liability, damages, claim or expense and reasonable counsel fees
incurred in connection therewith) arising from any claim, demand, action or suit
(collectively, "Claims"), arising by reason of any person's acquiring any of the
Shares through the Distributor, which may be based upon the 1933 Act or any
other statute or common law, on account of any wrongful act of the Distributor
or any of its employees (including any failure to conform with any requirement
of any state or federal law or the Conduct Rules of the National Association of
Securities Dealers, Inc. relating to the sale of Shares) or on the ground that
the registration statement under the 1933 Act, including all amendments thereto
(the "Registration Statement"), or Prospectus or previous prospectus or
Statement of Additional Information or previous statement of additional
information, with respect to such Shares, includes or included an untrue
statement of a material fact or omits or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, if and only if any such act, statement or omission was
made in reliance upon information furnished by the Distributor to the Trust;
provided, however, that in no case (i) is the indemnity of the Distributor in
favor of any Indemnified Party to be deemed to protect any such Indemnified
Party against liability to which such Indemnified Party would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its or his duties or by reason of its or his reckless disregard
of its or his obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in this Section
4 with respect to any Claim made against any Indemnified Party unless such
Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the Claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such Claim shall not relieve it from any liability which it may have to any
Indemnified Party otherwise than on account of its indemnity agreement contained
in this Section 4. The
-4-
Distributor 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 such Claim, and, if the Distributor elects to assume the defense,
such defense shall be conducted by counsel chosen by it and satisfactory to each
Indemnified Party. In the event that the Distributor elects to assume the
defense of any such suit and retain such counsel, each Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it but, in case
the Distributor does not elect to assume the defense of any such suit, it shall
reimburse the Indemnified Parties for the reasonable fees and expenses of any
counsel retained by them. Except with the prior written consent of the
Distributor, no Indemnified Party shall confess any Claim or make any compromise
in any case in which the Distributor will be asked to indemnify such Indemnified
Party. The Distributor agrees promptly to notify the Trust of the commencement
of any litigation or proceeding against it in connection with the issuance and
sale of any of the Shares.
Neither the Distributor nor any dealer nor any other person is
authorized to give any information or to make any representation on behalf of
the Trust in connection with the sale of Shares, other than those contained in
the Registration Statement or Prospectus or Statement of Additional Information.
The Trust covenants and agrees that it will indemnify and hold harmless
the Distributor, its directors and officers and each person, if any, who
controls the Distributor within the meaning of Section 15 of the Act against all
losses, liabilities, damages, claims or expenses (including the reasonable cost
of investigating or defending any alleged loss, liabilities, damages, claims or
expenses and reasonable counsel fees incurred in connection therewith) arising
from any Claims, (i) arising by reason of any person's acquiring any of the
-
Shares through the Distributor, which may be based upon the 1933 Act or any
other statute or common law, on account that the Registration Statement or
Prospectus or previous prospectus or Statement of Additional Information or
previous statement of additional information, with respect to such Shares,
includes or included an untrue statement of a material fact or omits or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, except insofar as such act,
statement or omission was made in reliance upon information furnished by the
Distributor to the Trust for use in the Registration Statement or Prospectus or
(ii) arising by reason of any agreement of the Distributor to indemnify or hold
--
harmless any dealer having a sales agreement with the Distributor as provided in
Section 2 ; provided, however, that in no case (A) is the indemnity of the Trust
-------- ------- -
in favor of the Distributor deemed to protect any person who is also an officer
or Trustee of the Trust or who
-5-
controls the Trust within the meaning of Section 15 of the 1933 Act unless a
court of competent jurisdiction shall determine, or it shall have been
determined by controlling precedent, that such result would not be against
public policy as expressed in the 1933 Act; and further provided, that in no
event shall anything contained herein be so construed as to protect the
Distributor against any liability to the Trust or to its shareholders to which
the Distributor 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 under this Agreement, or (B) is the Trust
-
to be liable under its indemnity agreement contained in this Section 4 with
respect to any Claim made against the Distributor unless it shall have notified
the Trust in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the Claim shall have been
served upon it (or after the Distributor shall have received notice of such
service on any designated agent), but failure to notify the Trust of any such
Claim shall not relieve it from any liability which it may have to the
Distributor otherwise than on account of its indemnity agreement contained in
this Section 4. 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 such Claim, and, if the Trust elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to the
Distributor. In the event that the Trust elects to assume the defense of any
such suit and retain such counsel, the Distributor shall bear the fees and
expenses of any additional counsel retained by it but, in case the Trust does
not elect to assume the defense of any such suit, it shall reimburse the
Distributor for the reasonable fees and expenses of any counsel retained by
them. Except with the prior written consent of the Trust, the Distributor shall
not confess any Claim or make any compromise in any case in which the Trust will
be asked to indemnify it. The Trust agrees promptly to notify the Distributor of
the commencement of any litigation in connection with the issuance and sale of
any of the Shares.
5. The Trust will pay, or cause to be paid:
(i) all costs and expenses of the Trust, including fees and
disbursements of its counsel, in connection with the preparation and filing of
the Registration Statement, Prospectus and Statement of Additional Information,
and preparing and mailing to shareholders Prospectuses, Statements of Additional
Information, statements and confirmations and periodic reports (including the
expense of setting in type the Registration Statement, Prospectus and Statement
of Additional Information or any periodic report);
-6-
(ii) the cost of preparing temporary or permanent
certificates for Shares;
(iii) the cost and expenses of delivering to the Distributor
all Shares purchased through it as agent hereunder;
(iv) subject to the Distribution Plan, a distribution fee to
the Distributor at an annual rate not to exceed 0.25% of the average daily net
assets of each Series of the Trust for that Series' then-current fiscal year in
anticipation of, or as reimbursement for, expenses incurred by the Distributor
in connection with the sale of Shares of that Series or required to be borne by
the Distributor hereunder, including, without limitation, payments to
broker-dealers, banks and investment advisers who advise shareholders regarding
the purchase or sale or retention of Shares of the Trust, compensation of
employees of the Distributor, advertising expenses and the expenses of printing
(excluding typesetting) and distributing prospectuses and reports used for sales
purposes, expenses of preparing and printing sales literature and other
distribution-related expenses whether or not specifically required to be made by
the Distributor pursuant to the terms of this Agreement;
(v) subject to the Distribution Plan, a distribution fee, in
addition to the fee provided in paragraph (iv) above, at an annual rate which,
when added to the amount received by the Distributor with respect to a Series
under paragraph (vi) above, will equal 0.25% of the average daily net assets of
that Series for its then-current fiscal year, as compensation for distribution
services provided by the Distributor in connection with the sale of Shares of
that Series;
(vi) all fees and disbursements of the Transfer Agent and
Custodian; and
(vii) a fee to the Manager of the Trust (pursuant to the
Management Agreement).
The Distributor agrees that with respect to the sale of Shares of the
Trust, subject to the Trust's obligations under clause (iv) above, (a) after the
---
Prospectus and Statement of Additional Information and periodic reports have
been set in type, it will bear the expense (other than the cost of mailing to
shareholders of the Trust) of printing and distributing any copies thereof
ordered by it which are to be used in connection with the offering or sale of
Shares to any dealer or prospective investor, and (b) it will bear the expenses
---
of preparing, printing and distributing any other literature used by the
Distributor or furnished by it for use by any dealer in connection with the
offering of Shares for sale to the public and any
-7-
expense of sending confirmations and statements to any dealer having a sales
agreement with the Distributor.
6. If, at any time during the term of this Agreement, the Trust shall
deem it necessary or advisable in the best interests of the Trust that any
amendment of this Agreement be made in order to comply with any recommendation
or requirement of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under Massachusetts or federal tax laws, it
shall notify the Distributor of the form of amendment which it deems necessary
or advisable and the reasons therefor. If the Distributor declines to assent to
such amendment (after a reasonable time), the Trust may terminate this Agreement
forthwith by written notice to the Distributor without payment of any penalty.
If, at any time during the term of this Agreement, the Distributor requests the
Trust to make any change in its Governing Instruments or in its methods of doing
business which are necessary in order to comply with any requirement of federal
law or regulations of the Securities and Exchange Commission or of a national
securities association of which the Distributor is or may become a member,
relating to the sale of Shares, and the Trust fails (after a reasonable time) to
make any such change as requested, the Distributor may terminate this Agreement
forthwith by written notice to the Trust without payment of any penalty.
7. The Distributor agrees that it will not take any long or short
position in the Shares of the Trust and that, so far as it can control the
situation, it will prevent any of its Directors or officers from taking any long
or short position in the Shares of the Trust, except as permitted by the
Governing Instruments.
8. This Agreement shall become effective upon its execution and shall
continue in force indefinitely as to each Series, provided that such continuance
--------
is "specifically approved at least annually" with respect to the applicable
Series by the vote of a majority of the Trustees of the Trust who are not
"interested persons" of the Trust or of the Distributor at a meeting
specifically called for the purpose of voting on such approval, and by the Board
of Trustees of the Trust. The aforesaid requirement that continuance of this
Agreement be "specifically approved at least annually" shall be construed in a
manner consistent with the 1940 Act. If such annual approval is not obtained,
this Agreement shall terminate on the date which is 15 months after the date of
the last approval.
This Agreement may be terminated with respect to any Series of the
Trust at any time by (i) the Trust, (a) by the vote of a majority of the
--- ---
Trustees of the Trust who are not "interested persons" of the Trust or the
-8-
Distributor, (b) by the vote of the Board of Trustees of the Trust, or (c) by
--- ---
the "vote of a majority of the outstanding voting securities" of the applicable
Series, or (ii) by the Distributor, in any case without payment of any penalty
----
on not more than 60 days nor less than 30 days written notice to the other
party.
This Agreement shall automatically terminate in the event of its
assignment.
9. The terms "vote of a majority of the outstanding voting
securities", "interested person", "assignment" and "specifically approved at
least annually" shall have the respective meanings specified in, and shall be
construed in a manner consistent with, the 1940 Act, subject, however, to such
-------
exemptions as may be granted by the Securities and Exchange Commission
thereunder.
[Signature page follows.]
-9-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names on their behalf by the undersigned,
thereunto duly authorized, and their respective seals to be hereto affixed, all
as of the day and year first above written. The obligations of this Agreement
are not binding upon any of the Trustees or shareholders of the Trust
individually, but bind only the Trust estate. The obligations of a particular
Series shall be paid only from the assets of that Series and shall not be
enforceable against any other Series.
Domini Social Investment Trust
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President
DSIL INVESTMENT SERVICES LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Treasurer
-10-
