Exhibit No. EX-99.e.1
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of this ____ day of ________,
200__, by and between ___________________, a _________________ business trust
(the "Trust") and QUASAR DISTRIBUTORS, LLC, a Delaware limited liability company
(the "Distributor"). ___________________, a ____________________ and the
investment advisor to the Trust (the "Advisor"), is a party hereto with respect
to Section 5 only.
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
is authorized to issue shares of beneficial interest ("Shares") in separate
series, with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a member of
the Financial Industry Regulatory Authority ("FINRA");
WHEREAS, the Trust desires to retain the Distributor as principal
underwriter in connection with the offer and sale of the Shares of each series
of the Trust listed on Exhibit A hereto (as amended from time to time) (each a
"Fund" and collectively, the "Funds"); and
WHEREAS, this Agreement has been approved by a vote of the Trust's board of
trustees ("Board of Trustees" or the "Board"), including its disinterested
trustees voting separately, in conformity with Section 15(c) of the 1940 Act.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. Appointment of Quasar as Distributor
The Trust hereby appoints the Distributor as its agent for the sale and
distribution of Shares of the Fund in jurisdictions wherein the Shares may be
legally offered for sale, on the terms and conditions set forth in this
Agreement, and the Distributor hereby accepts such appointment and agrees to
perform the services and duties set forth in this Agreement. The services and
duties of the Distributor shall be confined to those matters expressly set forth
herein, and no implied duties are assumed by or may be asserted against the
Distributor hereunder.
2. Services and Duties of the Distributor
A. The Distributor agrees to sell Shares on a best efforts basis as agent
for the Trust upon the terms and at the current offering price (plus
sales charge, if any) described in the Prospectus. As used in this
Agreement, the term "Prospectus" shall mean the current prospectus,
including the statement of additional information, as both may be
amended or supplemented, relating to the Fund and included in the
currently effective registration statement (the "Registration
Statement") of the Trust filed under the Securities Act of 1933, as
amended (the "1933 Act") and the 1940 Act. The Trust shall in all
cases receive the net asset value per Share on all sales. If a sales
charge is in effect, the Distributor shall remit the sales charge (or
portion thereof) to broker-dealers who have sold Shares, as described
in Section 2(G), below. In no event shall the Distributor be entitled
to all or any portion of such sales charge.
B. During the continuous public offering of Shares, the Distributor will
hold itself available to receive orders, satisfactory to the
Distributor, for the purchase of Shares and will accept such orders on
behalf of the Trust. Such purchase orders shall be deemed effective at
the time and in the manner set forth in the Prospectus.
C. The Distributor, with the operational assistance of the Trust's
transfer agent, shall make Shares available for sale and redemption
through the National Securities Clearing Corporation's Fund/SERV
System.
D. The Distributor acknowledges and agrees that it is not authorized to
provide any information or make any representations other than as
contained in the Prospectus and any sales literature specifically
approved by the Trust.
E. The Distributor agrees to cooperate with the Trust or its agent in the
development of all proposed advertisements and sales literature
relating to the Fund. The Distributor agrees to review all proposed
advertisements and sales literature for compliance with applicable
laws and regulations, and shall file with appropriate regulators those
advertisements and sales literature it believes are in compliance with
such laws and regulations. The Distributor agrees to furnish to the
Trust any comments provided by regulators with respect to such
materials and to use its best efforts to obtain the approval of the
regulators to such materials.
F. The Distributor, at its sole discretion, may repurchase Shares offered
for sale by shareholders of the Fund. Repurchase of Shares by the
Distributor shall be at the price determined in accordance with, and
in the manner set forth in, the Prospectus. At the end of each
business day, the Distributor shall notify the Trust and its transfer
agent, by any appropriate means, of the orders for repurchase of
Shares received by the Distributor since the last report, the amount
to be paid for such Shares and the identity of the shareholders
offering Shares for repurchase. The Trust reserves the right to
suspend such repurchase right upon written notice to the Distributor.
The Distributor further agrees to act as agent for the Trust to
receive and transmit promptly to the Trust's transfer agent,
shareholder requests for redemption of Shares.
G. The Distributor may, in its discretion, enter into agreements with
such qualified broker-dealers as it may select, in order that such
broker-dealers also may sell Shares of the Fund. The form of any
dealer agreement shall be approved by the Trust. To the extent there
is a sales charge in effect, the Distributor shall pay the applicable
sales charge (or portion thereof), or allow a discount, to the selling
broker-dealer, as described in the Prospectus.
H. The Distributor shall devote its best efforts to effect sales of
Shares of the Fund but shall not be obligated to sell any certain
number of Shares.
I. The Distributor shall prepare reports for the Board regarding its
activities under this Agreement as from time to time shall be
reasonably requested by the Board, including reports regarding the use
of any 12b-1 payments received by the Distributor.
J. The Distributor agrees to advise the Trust promptly in writing of the
initiation of any proceedings against it by the SEC or its staff,
FINRA or any state regulatory authority.
K. The Distributor shall monitor amounts paid under Rule 12b-1 plans and
pursuant to sales loads to ensure compliance with applicable FINRA
rules.
3. Representations and Covenants of the Trust
A. The Trust hereby represents and warrants to the Distributor, which
representations and warranties shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement and to
perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered
by the Trust in accordance with all requisite action and
constitutes a valid and legally binding obligation of the Trust,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and
secured parties;
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state and
federal, and has obtained all regulatory approvals necessary to
carry on its business as now conducted; there is no statute,
rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or
performance of this Agreement;
(4) All Shares to be sold by it, including those offered under this
Agreement, are validly authorized and, when issued in accordance
with the description in the Prospectus, will be fully paid and
nonassessable;
(5) The Registration Statement, and Prospectus included therein, have
been prepared in conformity with the requirements of the 1933 Act
and the 1940 Act and the rules and regulations thereunder; and
(6) The Registration Statement (at the time of its effectiveness) and
any advertisements and sales literature prepared by the Trust or
its agent (excluding statements relating to the Distributor and
the services it provides that are based upon written information
furnished by the Distributor expressly for inclusion therein)
shall not contain any untrue statement of material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that
all statements or information furnished to the Distributor
pursuant to this Agreement shall be true and correct in all
material respects.
B. The Trust, or its agent, shall take or cause to be taken, all
necessary action to register Shares of the Fund under the 1933 Act,
qualify such shares for sale in such states as the Trust and the
Distributor shall approve, and maintain an effective Registration
Statement for such Shares in order to permit the sale of Shares as
herein contemplated. The Trust authorizes the Distributor to use the
Prospectus, in the form furnished to the Distributor from time to
time, in connection with the sale of Shares.
C. The Trust agrees to advise the Distributor promptly in writing:
(i) of any material correspondence or other communication by the
Securities and Exchange Commission (the "SEC") or its staff relating
to the Fund, including requests by the SEC for amendments to the
Registration Statement or Prospectus;
(ii) in the event of the issuance by the SEC of any stop-order
suspending the effectiveness of the Registration Statement then in
effect or the initiation of any proceeding for that purpose;
(iii) of the happening of any event which makes untrue any
statement of a material fact made in the Prospectus or which requires
the making of a change in such Prospectus in order to make the
statements therein not misleading;
(iv) of all actions taken by the SEC with respect to any
amendments to any Registration Statement or Prospectus, which may from
time to time be filed with the SEC; and
(v) in the event that it determines to suspend the sale of Shares
at any time in response to conditions in the securities markets or
otherwise, or in the event that it determines to suspend the
redemption of Shares at any time as permitted by the 1940 Act or the
rules of the SEC, including any and all applicable interpretations of
such by the staff of the SEC.
D. The Trust shall notify the Distributor in writing of the states in
which the Shares may be sold and shall notify the Distributor in
writing of any changes to such information.
E. The Trust agrees to file from time to time such amendments to its
Registration Statement and Prospectus as may be necessary in order
that its Registration Statement and Prospectus will not contain any
untrue statement of material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
F. The Trust shall fully cooperate in the efforts of the Distributor to
sell and arrange for the sale of Shares and shall make available to
the Distributor a statement of each computation of net asset value. In
addition, the Trust shall keep the Distributor fully informed of its
affairs and shall provide to the Distributor, from time to time,
copies of all information, financial statements and other papers that
the Distributor may reasonably request for use in connection with the
distribution of Shares, including without limitation, certified copies
of any financial statements prepared for the Trust by its independent
public accountants and such reasonable number of copies of the
Prospectus and annual and interim reports to shareholders as the
Distributor may request. The Trust shall forward a copy of any SEC
filings, including the Registration Statement, to the Distributor
within one business day of any such filings. The Trust represents that
it will not use or authorize the use of any advertising or sales
material unless and until such materials have been approved and
authorized for use by the Distributor. Nothing in this Agreement shall
require the sharing or provision of materials protected by privilege
or limitation of disclosure, including any applicable attorney-client
privilege or trade secret materials.
G. The Trust has reviewed and is familiar with the provisions of FINRA
Rule 2830(k) prohibiting directed brokerage. In addition, the Trust
agrees not to enter into any agreement (whether orally or in writing)
under which the Trust directs or is expected to direct its brokerage
transactions (or any commission, markup or other payment from such
transactions) to a broker or dealer for the promotion or sale of Fund
Shares or the shares of any other investment company. In the event the
Trust fails to comply with the provisions of FINRA Rule 2830(k), the
Trust shall promptly notify the Distributor.
4. Additional Representations and Covenants of the Distributor
The Distributor hereby represents, warrants and covenants to the Trust,
which representations, warranties and covenants shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the jurisdiction
of its organization, with full power to carry on its business as now
conducted, to enter into this Agreement and to perform its obligations
hereunder;
(2) This Agreement has been duly authorized, executed and delivered by the
Distributor in accordance with all requisite action and constitutes a
valid and legally binding obligation of the Distributor, enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties;
(3) It is conducting its business in compliance in all material respects
with all applicable laws and regulations, both state and federal, and
has obtained all regulatory approvals necessary to carry on its
business as now conducted; there is no statute, rule, regulation,
order or judgment binding on it and no provision of its charter,
bylaws or any contract binding it or affecting its property which
would prohibit its execution or performance of this Agreement;
(4) It is registered as a broker-dealer under the 1934 Act and is a member
in good standing of FINRA;
(5) It: (i) has adopted an anti-money laundering compliance program ("AML
Program") that satisfies the requirements of all applicable laws and
regulations; (ii) undertakes to carry out its AML Program to the best
of its ability; (iii) will promptly notify the Trust and the Advisor
if an inspection by the appropriate regulatory authorities of its AML
Program identifies any material deficiency; and (vi) will promptly
remedy any material deficiency of which it learns; and
(6) In connection with all matters relating to this Agreement, it will
comply with the requirements of the 1933 Act, the 1934 Act, the 1940
Act, the regulations of FINRA and all other applicable federal or
state laws and regulations.
5. Compensation
The Distributor shall be compensated for providing the services set forth
in this Agreement in accordance with the fee schedule set forth on Exhibit B
hereto (as amended from time to time). The Distributor shall also be compensated
for such out-of-pocket expenses (e.g., telecommunication charges, postage and
delivery charges, and reproduction charges) as are reasonably incurred by the
Distributor in performing its duties hereunder. The Trust shall pay all such
fees and reimbursable expenses within 30 calendar days following receipt of the
billing notice, except for any fee or expense subject to a good faith dispute.
The Trust shall notify the Distributor in writing within 30 calendar days
following receipt of each invoice if the Trust is disputing any amounts in good
faith. The Trust shall pay such disputed amounts within 10 calendar days of the
day on which the parties agree to the amount to be paid. With the exception of
any fee or expense the Trust is disputing in good faith as set forth above,
unpaid invoices shall accrue a finance charge of 1 1/2% per month after the due
date. Notwithstanding anything to the contrary, amounts owed by the Trust to the
Distributor shall only be paid out of the assets and property of the particular
Fund involved. Such fees and expenses shall be paid to Distributor by the Trust
from Rule 12b-1 fees payable by the appropriate Fund or, if the Fund does not
have a Rule 12b-1 plan, or if Rule 12b-1 fees are not sufficient to pay such
fees and expenses, or if the Rule 12b-1 plan is discontinued, or if the Advisor
otherwise determines that Rule 12b-1 fees shall not, in whole or in part, be
used to pay Distributor, the Advisor shall be responsible for the payment of the
amount of such fees and expenses not covered by Rule 12b-1 payments.
6. Expenses
A. The Trust shall bear all costs and expenses in connection with the
registration of its Shares with the SEC and its related compliance
with state securities laws, as well as all costs and expenses in
connection with the offering of the Shares and communications with
shareholders, including but not limited to: (i) fees and disbursements
of its counsel and independent public accountants; (ii) costs and
expenses of the preparation, filing, printing and mailing of
Registration Statements and Prospectuses, as well as related
advertising and sales literature; (iii) costs and expenses of the
preparation, printing and mailing of annual and interim reports, proxy
materials and other communications to shareholders; and (iv) fees
required in connection with the offer and sale of Shares in such
jurisdictions as shall be selected by the Trust pursuant to Section
3(D) hereof.
B. The Distributor shall bear the expenses of registration or
qualification of the Distributor as a dealer or broker under federal
or state laws and the expenses of continuing such registration or
qualification. The Distributor does not assume responsibility for any
expenses not expressly assumed hereunder.
7. Indemnification
A. The Trust shall indemnify, defend and hold the Distributor and each of
its managers, officers, employees, representatives and any person who
controls the Distributor within the meaning of Section 15 of the 1933
Act (collectively, the "Distributor Indemnitees"), free and harmless
from and against any and all claims, demands, losses, expenses and
liabilities of any and every nature (including reasonable attorneys'
fees) (collectively, "Losses") that the Distributor Indemnitees may
sustain or incur or that may be asserted against a Distributor
Indemnitee by any person (i) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or any Prospectus, or in any annual or
interim report to shareholders, or in any advertisements or sales
literature prepared by the Trust or its agent, or (ii) arising out of
or based upon any omission, or alleged omission, to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) based upon the Trust's
refusal or failure to comply with the terms of this Agreement or from
its bad faith, negligence, or willful misconduct in the performance of
its duties under this Agreement; provided, however, that the Trust's
obligation to indemnify the Distributor Indemnitees shall not be
deemed to cover any Losses arising out of any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, Prospectus, annual or interim report, or any
advertisement or sales literature in reliance upon and in conformity
with written information relating to the Distributor and furnished to
the Trust or its counsel by the Distributor for the purpose of, and
used in, the preparation thereof. The Trust's agreement to indemnify
the Distributor Indemnitees is expressly conditioned upon the Trust
being notified of such action or claim of loss brought against the
Distributor Indemnitees 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 the Distributor Indemnitees, unless
the failure to give notice does not prejudice the Trust; provided,
that the failure so to notify the Trust of any such action shall not
relieve the Trust from any liability which the Trust may have to the
person against whom such action is brought by reason of any such
untrue, or alleged untrue, statement or omission, or alleged omission,
otherwise than on account of the Trust's indemnity agreement contained
in this Section 7(A).
B. 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 Losses, but if the Trust elects to assume the
defense, such defense shall be conducted by counsel chosen by the
Trust and approved by the Distributor, which approval shall not be
unreasonably withheld. In the event the Trust elects to assume the
defense of any such suit and retain such counsel, the Distributor
Indemnitees in such suit shall bear the fees and expenses of any
additional counsel retained by them. If the Trust does not elect to
assume the defense of any such suit, or in case the Distributor does
not, in the exercise of reasonable judgment, approve of counsel chosen
by the Trust, or if under prevailing law or legal codes of ethics, the
same counsel cannot effectively represent the interests of both the
Trust and the Distributor Indemnitees, the Trust will reimburse the
Distributor Indemnitees for the reasonable fees and expenses of any
counsel retained by them. The Trust's indemnification agreement
contained in Sections 7(A) and 7(B) herein shall remain operative and
in full force and effect regardless of any investigation made by or on
behalf of the Distributor Indemnitees and shall survive the delivery
of any Shares and the termination of this Agreement. This agreement of
indemnity will inure exclusively to the benefit of the Distributor
Indemnitees and their successors. The Trust agrees promptly to notify
the Distributor of the commencement of any litigation or proceedings
against the Trust or any of its officers or trustees in connection
with the offer and sale of any of the Shares.
C. The Trust shall advance attorneys' fees and other expenses incurred by
any Distributor Indemnitee in defending any claim, demand, action or
suit which is the subject of a claim for indemnification pursuant to
this Section 7 to the maximum extent permissible under applicable law.
D. The Distributor shall indemnify, defend and hold the Trust and each of
its trustees, officers, employees, representatives and any person who
controls the Trust within the meaning of Section 15 of the 1933 Act
(collectively, the "Trust Indemnitees"), free and harmless from and
against any and all Losses that the Trust Indemnitees may sustain or
incur or that may be asserted against a Trust Indemnitee by any person
(i) arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement
or any Prospectus, or in any annual or interim report to shareholders,
or in any advertisements or sales literature prepared by the
Distributor, or (ii) arising out of or based upon any omission, or
alleged omission, to state therein a material fact required to be
stated therein or necessary to make the statement not misleading, or
(iii) based upon the Distributor's refusal or failure to comply with
the terms of this Agreement or from its bad faith, negligence, or
willful misconduct in the performance of its duties under this
Agreement; provided, however, that with respect to clauses (i) and
(ii), above, the Distributor's obligation to indemnify the Trust
Indemnitees shall only be deemed to cover Losses arising out of any
untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, Prospectus, annual or
interim report, or any advertisement or sales literature in reliance
upon and in conformity with written information relating to the
Distributor and furnished to the Trust or its counsel by the
Distributor for the purpose of, and used in, the preparation thereof.
The Distributor's agreement to indemnify the Trust Indemnitees is
expressly conditioned upon the Distributor being notified of any
action or claim of loss brought against the Trust Indemnitees 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 the
Trust Indemnitees, unless the failure to give notice does not
prejudice the Distributor; provided, that the failure so to notify the
Distributor of any such action shall not relieve the Distributor from
any liability which the Distributor may have to the person against
whom such action is brought by reason of any such untrue, or alleged
untrue, statement or omission, otherwise than on account of the
Distributor's indemnity agreement contained in this Section 7(D).
E. The 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 Losses, but if the Distributor elects to
assume the defense, such defense shall be conducted by counsel chosen
by the Distributor and approved by the Trust, which approval shall not
be unreasonably withheld. In the event the Distributor elects to
assume the defense of any such suit and retain such counsel, the Trust
Indemnitees in such suit shall bear the fees and expenses of any
additional counsel retained by them. If the Distributor does not elect
to assume the defense of any such suit, or in case the Trust does not,
in the exercise of reasonable judgment, approve of counsel chosen by
the Distributor, or if under prevailing law or legal codes of ethics,
the same counsel cannot effectively represent the interests of both
the Trust Indemnitees and the Distributor, the Distributor will
reimburse the Trust Indemnitees for the reasonable fees and expenses
of any counsel retained by them. The Distributor's indemnification
agreement contained in Sections 7(D) and 7(E) herein shall remain
operative and in full force and effect regardless of any investigation
made by or on behalf of the Trust Indemnitees and shall survive the
delivery of any Shares and the termination of this Agreement. This
agreement of indemnity will inure exclusively to the benefit of the
Trust Indemnitees and their successors. The Distributor agrees
promptly to notify the Trust of the commencement of any litigation or
proceedings against the Distributor or any of its officers or
directors in connection with the offer and sale of any of the Shares.
F. The Distributor shall advance attorneys' fees and other expenses
incurred by any Trust Indemnitee in defending any claim, demand,
action or suit which is the subject of a claim for indemnification
pursuant to this Section 7 to the maximum extent permissible under
applicable law.
G. No party to this Agreement shall be liable to the other parties for
consequential, special or punitive damages under any provision of this
Agreement.
H. No person shall be obligated to provide indemnification under this
Section 7 if such indemnification would be impermissible under the
1940 Act, the 1933 Act, the 1934 Act or the rules of FINRA; provided,
however, in such event indemnification shall be provided under this
Section 7 to the maximum extent so permissible.
8. Proprietary and Confidential Information
The Distributor agrees on behalf of itself and its managers, officers, and
employees to treat confidentially and as proprietary information of the Trust,
all records and other information relative to the Trust and prior, present or
potential shareholders of the Trust (and clients of said shareholders), and not
to use such records and information for any purpose other than the performance
of its responsibilities and duties hereunder, except (i) after prior
notification to and approval in writing by the Trust, which approval shall not
be unreasonably withheld and may not be withheld where the Distributor may be
exposed to civil or criminal contempt proceedings for failure to comply, (ii)
when requested to divulge such information by duly constituted authorities, or
(iii) when so requested by the Trust. Records and other information which have
become known to the public through no wrongful act of the Distributor or any of
its employees, agents or representatives, and information that was already in
the possession of the Distributor prior to receipt thereof from the Trust or its
agent, shall not be subject to this paragraph.
Further, the Distributor will adhere to the privacy policies adopted by the
Trust pursuant to Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, as may be modified from
time to time. In this regard, the Distributor shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed to protect
the security, confidentiality and integrity of, and to prevent unauthorized
access to or use of, records and information relating to the Trust and its
shareholders.
9. Records
The Distributor shall keep records relating to the services to be performed
hereunder in the form and manner, and for such period, as it may deem advisable
and is agreeable to the Trust, but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31 of
the 1940 Act and the rules thereunder. The Distributor agrees that all such
records prepared or maintained by the Distributor relating to the services to be
performed by the Distributor hereunder are the property of the Trust and will be
preserved, maintained, and made available in accordance with such applicable
sections and rules of the 1940 Act and will be promptly surrendered to the Trust
or its designee on and in accordance with its request.
10. Compliance with Laws
The Trust has and retains primary responsibility for all compliance matters
relating to the Fund, including but not limited to compliance with the 1940 Act,
the Internal Revenue Code of 1986, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, the USA
Patriot Act of 2002 and the policies and limitations of the Fund relating to its
portfolio investments as set forth in its Prospectus and statement of additional
information. The Distributor's services hereunder shall not relieve the Trust of
its responsibilities for assuring such compliance or the Board of Trustee's
oversight responsibility with respect thereto.
11. Term of Agreement; Amendment; Assignment
A. This Agreement shall become effective with respect to each Fund listed
on Exhibit A hereof as of the date hereof and, with respect to each
Fund not in existence on that date, on the date an amendment to
Exhibit A to this Agreement relating to that Fund is executed. Unless
sooner terminated as provided herein, this Agreement shall continue in
effect for two years from the date hereof. Thereafter, if not
terminated, this Agreement shall continue in effect automatically as
to each Fund for successive one-year periods, provided such
continuance is specifically approved at least annually by: (i) the
Trust's Board, or (ii) the vote of a "majority of the outstanding
voting securities" of a Fund, and provided that in either event, the
continuance is also approved by a majority of the Trust's Board who
are not "interested persons" of any party to this Agreement, by a vote
cast in person at a meeting called for the purpose of voting on such
approval.
B. Notwithstanding the foregoing, this Agreement may be terminated,
without the payment of any penalty, with respect to a particular Fund:
(i) through a failure to renew this Agreement at the end of a term,
(ii) upon mutual consent of the parties, or (iii) upon not less than
60 days' written notice, by either the Trust upon the vote of a
majority of the members of its Board who are not "interested persons"
of the Trust and have no direct or indirect financial interest in the
operation of this Agreement, or by vote of a "majority of the
outstanding voting securities" of a Fund, or by the Distributor. The
terms of this Agreement shall not be waived, altered, modified,
amended or supplemented in any manner whatsoever except by a written
instrument signed by the Distributor and the Trust. If required under
the 1940 Act, any such amendment must be approved by the Trust's
Board, including a majority of the Trust's Board who are not
"interested persons" of any party to this Agreement, by a vote cast in
person at a meeting for the purpose of voting on such amendment. In
the event that such amendment affects the Advisor, the written
instrument shall also be signed by the Advisor. This Agreement will
automatically terminate in the event of its "assignment."
C. As used in this Section, the terms "majority of the outstanding voting
securities," "interested person," and "assignment" shall have the same
meaning as such terms have in the 1940 Act.
D. Sections 7 and 8 shall survive termination of this Agreement.
12. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
the Distributor's duties or responsibilities hereunder is designated by the
Trust by written notice to the Distributor, the Distributor will promptly, upon
such termination and at the expense of the Trust, transfer to such successor all
relevant books, records, correspondence, and other data established or
maintained by the Distributor under this Agreement in a form reasonably
acceptable to the Trust (if such form differs from the form in which the
Distributor has maintained the same, the Trust shall pay any expenses associated
with transferring the data to such form), and will cooperate in the transfer of
such duties and responsibilities, including provision for assistance from the
Distributor's personnel in the establishment of books, records, and other data
by such successor. If no such successor is designated, then such books, records
and other data shall be returned to the Trust.
13. Early Termination
In the absence of any material breach of this Agreement, should the Trust
elect to terminate this Agreement prior to the end of the term, the Trust agrees
to pay the following fees:
a. all monthly fees through the life of the contract, including the
rebate of any negotiated discounts;
b. all fees associated with converting services to successor service
provider;
c. all fees associated with any record retention and/or tax reporting
obligations that may not be eliminated due to the conversion to a
successor service provider;
d. all out-of-pocket costs associated with a-c above.
14. Governing Law
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent that
the applicable laws of the State of Wisconsin, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control, and nothing herein shall be construed in a manner inconsistent with the
1940 Act or any rule or order of the SEC thereunder.
15. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower either
party to act as agent for the other party to this Agreement, or to conduct
business in the name, or for the account, of the other party to this Agreement.
16. Services Not Exclusive
Nothing in this Agreement shall limit or restrict the Distributor from
providing services to other parties that are similar or identical to some or all
of the services provided hereunder.
17. Invalidity
Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. In such case, the
parties shall in good faith modify or substitute such provision consistent with
the original intent of the parties.
18. Notices
Any notice required or permitted to be given by any party to the others
shall be in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three days after sent by registered or
certified mail, postage prepaid, return receipt requested, or on the date sent
and confirmed received by facsimile transmission to the other parties'
respective addresses as set forth below:
Notice to the Distributor shall be sent to:
Quasar Distributors, LLC
Attn: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.:_________________
notice to the Trust shall be sent to:
________________________
________________________
________________________
________________________
________________________
and notice to the Advisor shall be sent to:
________________________
________________________
________________________
________________________
19. Multiple Originals
This Agreement may be executed on two or more counterparts, each of which
when so executed shall be deemed to be an original, but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
The parties hereby agree that the Distribution Services provided by Quasar
Distributors, LLC will commence on ________________, 2006.
TRUST QUASAR DISTRIBUTORS, LLC
By:________________________________ By:______________________________
Name:_____________________________ Name:____________________________
Title:______________________________ Title:_____________________________
ADVISOR
(with respect to section 5 only)
By:_________________________________
Name:_______________________________
Title:______________________________
Exhibit A
to the
Distribution Agreement
Fund Names
Separate Series of _______________________
Name of Series Date Added
Exhibit B
to the
Distribution Agreement
Fee Schedule