Exhibit 24(b)(6)
Amended and Restated
Underwriting Agreement
between
IMPACT MANAGEMENT INVESTMENT TRUST
IMPACT FINANCIAL NETWORK, INC.
THIS UNDERWRITING AGREEMENT is made this ___ day of _________, 1997, between
Impact Management Investment Trust (the "Trust"), a Massachusetts business
trust and Impact Financial Network, Inc. ("Underwriter"), a corporation
organized under the laws of the State of Florida.
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
WHEREAS, the Underwriter is engaged in the business of promoting the
distribution of the securities of investment companies, and is a member of
the National Association of Securities Dealers (the "NASD") and is registered
as a broker-dealer under the Securities Exchange Act of 1934 (the "1934
Act"); and
WHEREAS, the Trust is authorized to issue an unlimited number of shares of
beneficial interest ("Shares") in one or more classes or series, and has
registered or qualified such Shares as the case may be for public offering
and distribution under the Securities Act of 1933 (the "1933 Act") and any
applicable state securities laws; and
WHEREAS, the Trust is authorized to offer for public sale one or more
distinct series of Shares of beneficial interest ("Series"), representing an
undivided interest in the assets, subject to the liabilities, allocated to
that Series and each Series having a separate investment objective and
policies; and
WHEREAS, the Trust has established the Impact Management Growth Portfolio
Series, and anticipates that it will establish multiple Series (each a
"Portfolio");
WHEREAS, the Trust wishes to employ the services of the Underwriter to assist
in the distribution of the Shares in accordance with applicable laws and such
Plan(s) of Distribution as the Trust may adopt; and
WHEREAS, the Underwriter wishes to provide distribution services to the Trust
as set forth below;
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties agree as follows:
1. Sale of Shares. During the term of this Agreement the Trust grants to
the Underwriter the right to sell on its behalf Shares of all Series of the
Trust, now or hereafter created, subject to the registration requirements of
the 1933 Act, and of the laws governing the sale of securities in various
states (the "Blue Sky Laws") under the terms and conditions set forth herein.
In connection therewith, the Underwriter (i) shall have the right to sell, as
agent on behalf of the Trust, Shares authorized for issue and registered
under the 1933 Act and applicable Blue Sky laws; and (ii) shall sell such
Shares only in compliance with applicable law, the terms set forth in the
Trust's currently effective registration statement, and in accordance with
any Plan of Distribution of the Trust for any Series, as may be in effect
from time to time, and further in compliance with any limitations which may
be imposed by the Trustees of the Trust. The Underwriter is not obligated to
sell any specific number of Shares.
2. Selling Dealer Agreements. Subject to the supervisory authority of the
Trustees of the Trust, and on such terms as are authorized by the Trust, the
Underwriter may enter into selling dealer agreements with selected dealers
and others ("Selling Dealers") for the provision of distribution services
related to the sale of Trust Shares as well as other shareholder services as
agreed by affected parties. The Underwriter will act only as principal in
entering into such selling dealer agreements.
3. Sale of Shares by the Trust. The rights granted to the Underwriter shall
be nonexclusive 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 of the assets of, 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 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
Prospectus (the "Prospectus") or Statement of Additional Information (the
"SAI") with respect to each Series, all Shares sold to investors by the
Underwriter or the Trust will be sold at the public offering price. The
Public offering price for all accepted subscriptions will be the net asset
value per share, determined in the manner described in the Trust's current
Prospectus or SAI with respect to the applicable Series. The Trust shall in
all cases receive the net asset value per share on all sales.
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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 Underwriter except such unconditional
orders placed with the Underwriter before it had knowledge of the suspension.
In addition, the Trust reserves the right to suspend sales and the
Underwriter'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 Trust and the Underwriter reserve the right to
reject any purchase order.
7. Solicitation of Sales. In consideration of these rights granted to the
Underwriter, the Underwriter agrees to use all reasonable efforts, consistent
with their other business, to secure purchasers for Shares of the Trust.
This shall not prevent the Underwriter from entering into like arrangements
(including arrangements involving the payment of underwriting commissions)
with other issuers. The Underwriter agrees to use all reasonable efforts to
ensure that taxpayer, identification numbers provided for shareholders of the
Trust are correct.
8. Authorized Representations. The Underwriter 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 SAI's
filed with the Securities and Exchange Commission (the "SEC") under the 1933
Act or with the states under applicable Blue Sky Laws (as those registration
statements, Prospectuses and SAI's 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 Underwriter's use. This shall not be
construed to prevent the Underwriter from preparing and distributing, in
compliance with applicable laws and regulations, sales literature or other
material as it may deem appropriate. The Underwriter will furnish or cause
to be furnished copies of such sales literature or other material to the
President of the Trust or his or her designee and will provide that designee
with a reasonable opportunity to comment on it. The Underwriter 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 and qualify under the 1933 Act and applicable state
Blue Sky Laws all shares which are to be made subject to any public offering
or sale (subject to the necessary approval, if any, of its shareholders) so
that there will be available for sale the number of Shares the Underwriter
may reasonably be expected to sell. The Trust shall furnish to the
Underwriter copies of all information, financial statements and other papers
which the Underwriter may reasonably request for use in connection with the
distribution of Shares of each Series of the Trust.
10. Repurchase of Shares. The Underwriter as agent and for the account of
the Trust may repurchase Shares offered for resale to either of them, and
redeem such Shares at their net asset value.
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11. Expenses, Compensation and Reimbursement.
(a) The Trust shall pay all fees and expenses:
(i) in connection with the preparation, setting in type and filing of any
registration statement, Prospectus and SAI under the 1933 Act, and any
amendments thereto, for the registration of its Shares;
(ii) in connection with the registration and qualification of Shares for sale
in the various states in which the Board of Trustees (the "Trustees") of the
Trust shall determine it advisable to qualify such Shares for sale (including
registering the Trust or Series as a broker or dealer or any officer of the
Trust as agent or salesperson in any state);
(iii) of preparing, setting in type, printing and mailing any report or other
communication to shareholders of the Trust in their capacity as such; and
(iv) of preparing, setting in type, printing and mailing Prospectuses, SAI's,
and any supplements thereto, sent to existing shareholders.
(b) The Underwriter shall pay costs of:
(i) printing and distributing Prospectuses, SAI's and reports prepared for
its use in connection with the offering of Shares for sale to the public;
(ii) any other literature used in connection with such offering;
(iii) advertising in connection with such offering including, but not limited
to public relations services, sales presentations, media charges, and
preparation, printing and mailing of advertising and sales literature; data
processing necessary to support a distribution effort; printing and mailing
prospectuses to prospective investors; sales commissions; and distribution
and shareholder servicing activities of broker-dealers and other financial
institutions; and
(iv) filing fees required by regulatory authorities for sales literature and
advertising materials and any additional out-of-pocket expenses incurred in
connection with these and any other costs of distribution.
(c) In addition to the services described above, the Underwriter will provide
services including assistance in the production of marketing and advertising
materials for the sale of Shares of the Trust and the Underwriter will review
them for compliance with applicable regulatory requirements, and submit them
for required regulatory review.
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(d) In connection with the services to be provided by the Underwriter, and
its costs assumed, under this Agreement, the Underwriter shall receive from
the Trust such payments as shall be authorized to be paid by the Trust
pursuant to any Plan of Distribution adopted by the Trust in accordance with
Rule 12b-1 under the 1940 Act, and reimbursement of such expenses of the
Trust as may be paid by the Underwriter from time to time.
(e) In connection with the services to be provided by the Underwriter under
this Agreement, and payments to be made and expenses to be incurred by the
parties under this Agreement, the Underwriter agrees to provide to the Board
of Trustees of the Trust such information as may be required to be reviewed
by the Trustees under Rule 12b-1 of the 1940 Act, including such financial
information as may be required in connection with the adoption, supervision,
or continuation of any Plan of Distribution of the Trust under such rule, or
the adoption of any budget thereunder.
12. Indemnification of the Trust. The Underwriter agrees to indemnify each
Portfolio of the Trust and the Trust against any and all litigation and other
legal proceedings of any kind or nature and against any liability, judgment,
cost, or penalty imposed as a result of such litigation or proceedings in any
way arising out of or in connection with the sale or distribution of the
shares of such Portfolio by the Underwriter. In the event of the threat or
institution of any such litigation or legal proceedings against any
Portfolio, the Underwriter shall defend such action on behalf of the
Portfolio or the Trust at the Underwriter's own expense, and shall pay any
such liability, judgment, cost, or penalty resulting therefrom, whether
imposed by legal authority or agreed upon by way of compromise and
settlement; provided, however, the Underwriter shall not be required to pay
or reimburse a Portfolio for any liability, judgment, cost, or penalty
incurred as result of information supplied by, or as the result of the
omission to supply information by, the Trust to the Underwriter, or to the
Underwriter by a director, officer, or employee of the Trust who is not an
"interested person," as defined in the provisions of the 1940 Act, of the
Underwriter, unless the information so supplied or omitted was available to
the Underwriter or the Portfolio's investment adviser without recourse to the
Portfolio or the Trust or any such person referred to above.
13. Effectiveness, Termination.
(a) This Agreement shall become effective as of the date first written above,
and unless terminated as provided, shall continue in force for two (2) years
from the date of its execution and thereafter from year to year, provided
continuance is approved at least annually by either (i) the vote of a
majority of the Trustees of the Trust, or by the vote of a majority of the
outstanding voting securities of the Trust, and (ii) the vote of a majority
of those Trustees of the Trust who are not interested persons of the Trust
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.
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(b) This Agreement shall automatically terminate in the event of its
assignment. As used in this Section, the terms "vote of a majority of the
outstanding voting securities," "assignment" and "interested person" shall
have the respective meanings specified in the 1940 Act and the rules enacted
thereunder as now in effect or as hereafter amended.
(c) 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: (i) by the Trust (by the vote of a majority of the Trustees
of the Trust who are not interested persons of the Trust, or by vote of a
majority of the outstanding voting securities of the Trust or an affected
series of the Trust) upon not less than sixty (60) days written notice to the
affected party; or (ii) by the Underwriter upon not less than sixty (60) days
written notice to the Trust.
14. Amendments. The Underwriter and the Trust shall regularly consult with
each other regarding the performance of their respective obligations and the
Underwriter's compensation under the foregoing provisions. In connection
therewith, the Trust shall submit to the Underwriter at a reasonable time in
advance of filing with the SEC copies of any amended or supplemented
registration statement of the Trust (including exhibits) under the 1933 Act,
and the 1940 Act, and, a reasonable time in advance of their proposed use,
copies of any amended or supplemented forms relating to any plan, program or
service offered by the Trust. Any change in such materials that would
require any change in the Underwriter's obligations under the foregoing
provisions shall be subject to the burdened party's approval, which shall not
be unreasonably withheld. In the event that a change in such documents or in
the procedures contained therein increases the cost or potential liability to
the Underwriter in performing their obligations hereunder by more than an
insubstantial amount, the Underwriter shall be entitled to receive reasonable
compensation therefor.
This Agreement may be amended at any time by mutual consent of the parties,
provided that such consent on the part of the Trust shall have been approved
(i) by the Trustees of the Trust, or by a vote of a majority of the
outstanding voting securities of the Trust, and (ii) by vote of a majority of
the Trustees of the Trust who are not interested persons of the Underwriter
or of the Trust cast in person at a meeting called for the purpose of voting
on such amendment.
15. Notice. Any notice under this Agreement shall be given in writing
addressed to the party intended to receive such notice. Any notice may be
hand delivered, or may be sent by registered or certified mail, postage
prepaid, to the receiving party, at its principal place of business.
16. 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.
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17. 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
Colorado.
18. Shareholder Liability. The Underwriter acknowledges that it has received
notice of and accepts the limitations of liability set forth in the Trust's
Agreement and Declaration of Trust. The Underwriter agrees that the Trust's
obligations hereunder shall be limited to the assets of the Trust, and that
the Underwriter shall have recourse solely against the assets of the Series
with respect to which the Trust's obligations hereunder relate and shall have
no recourse against the assets of any other Series or against any
shareholder, Trustee, officer, employee, or agent of the Trust.
19. 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 above written.
IMPACT MANAGEMENT INVESTMENT TRUST
By:__________________________________
IMPACT FINANCIAL NETWORK, INC.
By:__________________________________
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