PROSPECTOR FUNDS, INC. DISTRIBUTION AGREEMENT
THIS
AGREEMENT is made and entered into as of this ____ day of September,
2007, by and between PROSPECTOR FUNDS, INC., a Maryland corporation (the
“Company”) and QUASAR DISTRIBUTORS, LLC, a Delaware limited liability company
(the “Distributor”). PROSPECTOR PARTNERS ASSET MANAGEMENT, LLC, a
Delaware limited liability company and the investment advisor to the Company
(the “Advisor”), is a party hereto with respect to Section 5
only.
WHEREAS,
the Company 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 Funds’ adviser or its designated affiliate or agent, on behalf of the Funds,
will maintain a call center to respond to information and transaction requests
from existing and potential shareholders of the Funds;
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 Company desires to retain the Distributor as principal underwriter in
connection with the offer and sale of the Shares of each series of the Company
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 Company’s board of directors
(“Board of Directors” or the “Board”), including its disinterested directors
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:
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1.
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Appointment
of Quasar as Distributor
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The
Company hereby appoints the Distributor as its agent for the sale and
distribution of Shares of the Funds 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.
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2.
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Services
and Duties of
the Distributor
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A.
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The
Distributor agrees to sell Shares on a best efforts basis as agent
for the
Company 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
Company filed under the Securities Act of 1933, as amended (the “1933
Act”) and the 1940 Act. The Company 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.
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B.
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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
Company. Such purchase orders shall be deemed effective at the
time and in the manner set forth in the
Prospectus.
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C.
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The
Distributor, with the operational assistance of the Company’s transfer
agent, shall make Shares available for sale and redemption through
the
National Securities Clearing Corporation’s Fund/SERV
System.
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D.
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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
Company.
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E.
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The
Distributor agrees to cooperate with the Company 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 Company 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.
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F.
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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 Company 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 Company reserves the right to
suspend such repurchase right upon written notice to the
Distributor. The Distributor further agrees to act as agent for
the Company to receive and transmit promptly to the Company’s transfer
agent, shareholder requests for redemption of
Shares.
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G.
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At
the request of the Company, 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
Company. 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.
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H.
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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.
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I.
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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.
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J.
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The
Distributor agrees to advise the Company promptly in writing of the
initiation of any proceedings against it by the SEC or its staff,
the NASD
or any state regulatory authority.
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K.
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The
Distributor shall monitor amounts paid under Rule 12b-1 plans and
pursuant
to sales loads to ensure compliance with applicable NASD
rules
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L.
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The
Distributor shall provide the services set forth herein in accordance
with
the applicable service standards in Exhibit C [To be
discussed].
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3.
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Representations
and Covenants of the
Company
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A.
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The
Company hereby represents and warrants to the Distributor, which
representations and warranties shall be deemed to be continuing throughout
the term of this Agreement, that:
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(1)
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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;
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(2)
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This
Agreement has been duly authorized, executed and delivered by the
Company
in accordance with all requisite action and constitutes a valid and
legally binding obligation of the Company, 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;
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(3)
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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;
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(4)
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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;
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(5)
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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
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(6)
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The
Registration Statement (at the time of its effectiveness) and any
advertisements and sales literature prepared by the Company 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.
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B.
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The
Company, or its agent, shall take or cause to be taken, all necessary
action to register Shares of the Funds under the 1933 Act, qualify
such
shares for sale in such states as the Company 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 Company 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.
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C.
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The
Company agrees to advise the Distributor promptly in
writing:
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(i) of
any material correspondence or other communication by the Securities and
Exchange Commission (the “SEC”) or its staff relating to the Funds, 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.
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D.
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The
Company or its agent 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.
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E.
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The
Company 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.
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F.
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The
Company 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 Company 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 Company 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 Company shall forward a copy of
any SEC filings, including the Registration Statement, to the Distributor
within one business day of any such filings. The Company
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.
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G.
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The
Company has reviewed and is familiar with the provisions of NASD
Rule
2830(k) prohibiting directed brokerage. In addition, the
Company agrees not to enter into any agreement (whether orally or
in
writing) under which the Company 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 Company fails to comply with the
provisions of NASD Rule 2830(k), the Company shall promptly notify
the
Distributor.
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4.
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Additional
Representations and Covenants of the
Distributor
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The
Distributor hereby represents, warrants and covenants to the Company, which
representations, warranties and covenants shall be deemed to be continuing
throughout the term of this Agreement, that:
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(1)
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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;
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(2)
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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;
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(3)
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It
(i) has compliance policies and procedures reasonably designed to
ensure
compliance with the Federal Securities laws as that term is defined
in
Rule 38a-1 under the 1940 Act, (ii) will upon request, provide reports
and
certifications in a mutually agreed upon form to the Company’s Chief
Compliance Officer regarding the foregoing, and (iii) will maintain
appropriate records in accordance with Rule
38a-1;
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(4)
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To
the extent it has access to the Funds’ portfolio holdings prior to their
public dissemination, it will comply with the Funds’ portfolio holdings
disclosure policy;
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(5)
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It
will maintain a disaster recovery and business continuity plan and
adequate and reliable computer and other telecommunications equipment
as
are required by regulations applicable to the Distributor and as
are
necessary and appropriate for the Distributor to carry out its obligations
under this Agreement and, upon the Company’s reasonable request, will
provide supplemental information concerning the aspects of the
Distributor’s disaster recovery and business continuity plan that are
relevant to the services provided by the Distributor
hereunder;
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(6)
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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;
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(7)
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It
is registered as a broker-dealer under the 1934 Act and is a member
in
good standing of FINRA;
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(8)
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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 Company 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
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(9)
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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 the NASD and all other applicable federal or state
laws and
regulations.
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5.
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Compensation
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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
Company 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 Company shall notify the
Distributor in writing within 30 calendar days following receipt of each invoice
if the Company is disputing any amounts in good faith. The Company shall pay
such disputed amounts within 10 calendar days of the day on which the parties
agree to the amount to be paid. In the absence of fraud and/or deceit
and with the exception of any fee or expense the Company is disputing in good
faith as set forth above, unpaid invoices shall accrue a finance charge of
1½%
per month after the due date. Notwithstanding anything to the contrary, amounts
owed by the Company 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 Company 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.
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6.
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Expenses
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A.
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The
Company 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 Company pursuant to
Section
3(D) hereof.
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B.
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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.
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7.
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Indemnification
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A.
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Each
Fund 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 in
connection with such Fund only, (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 Company 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 Company’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 Fund’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 Company or its counsel
by
the Distributor for the purpose of, and used in, the preparation
thereof. The Fund’s agreement to indemnify the Distributor
Indemnitees is expressly conditioned upon the Fund 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 Fund; provided, that the failure so to notify the Fund
of
any such action shall not relieve the Fund from any liability which
the
Fund 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 Fund’s indemnity agreement
contained in this Section 7(A).
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B.
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The
relevant Fund 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 Fund elects to assume the defense,
such defense shall be conducted by counsel chosen by the Fund and
approved
by the Distributor, which approval shall not be unreasonably
withheld. In the event the Fund 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 Fund 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 Fund, or if
under
prevailing law or legal codes of ethics, the same counsel cannot
effectively represent the interests of both the Fund and the Distributor
Indemnitees, the Fund will reimburse the Distributor Indemnitees
for the
reasonable fees and expenses of any counsel retained by
them. The Fund’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 Fund agrees promptly to notify the
Distributor of the commencement of any litigation or proceedings
against
the Fund or any of its officers or directors in connection with the
offer
and sale of any of the Shares.
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C.
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The
relevant Fund 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.
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D.
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The
Distributor shall indemnify, defend and hold the Company and each
of its
directors, officers, employees, representatives and any person who
controls the Company within the meaning of Section 15 of the 1933
Act
(collectively, the “Company Indemnitees”), free and harmless from and
against any and all Losses that the Company Indemnitees may sustain
or
incur or that may be asserted against a Company 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
Company 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
Company or its counsel by the Distributor for the purpose of, and
used in,
the preparation thereof. The Distributor’s agreement to
indemnify the Company Indemnitees is expressly conditioned upon the
Distributor being notified of any action or claim of loss brought
against
the Company 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 Company 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).
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E.
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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 Company, 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
Company
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
Company
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 Company Indemnitees and the Distributor, the Distributor
will
reimburse the Company 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 Company 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 Company Indemnitees and their
successors. The Distributor agrees promptly to notify the
Company 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.
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F.
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The
Distributor shall advance attorneys’ fees and other expenses incurred by
any Company 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.
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G.
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No
party to this Agreement shall be liable to the other parties for
consequential, special or punitive damages under any provision of
this
Agreement.
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H.
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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 the NASD; provided, however, in such event
indemnification shall be provided under this Section 7 to the maximum
extent so permissible.
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8.
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Proprietary
and Confidential
Information
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The
Distributor agrees on behalf of itself and its managers, officers, and employees
to treat confidentially and as proprietary information of the Company, all
records and other information relative to the Company and prior, present or
potential shareholders of the Company (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 Company, 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 Company. 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
Company or its agent, shall not be subject to this paragraph.
Further,
the Distributor will adhere to the privacy policies adopted by the Company
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
Company and its shareholders.
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9.
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Records
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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 Company, 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
Company 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 Company or its designee on and in accordance with its
request.
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10.
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Compliance
with Laws
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The
Company has and retains primary responsibility for all compliance matters
relating to the Funds, 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 Funds 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 Company of its responsibilities for assuring such compliance
or
the Board of Director’s oversight responsibility with respect
thereto.
11.
Term
of Agreement; Amendment;
Assignment
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A.
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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 Company’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 Company’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.
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B.
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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 Company upon the vote of a majority of the members of its Board
who
are not “interested persons” of the Company 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
Company. If required under the 1940 Act, any such amendment
must be approved by the Company’s Board, including a majority of the
Company’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.”
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C.
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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.
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D.
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Sections
7 and 8 shall survive termination of this
Agreement.
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12.
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Duties
in the Event of
Termination
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In
the event that, in connection with termination, a successor to any of the
Distributor’s duties or responsibilities hereunder is designated by the Company
by written notice to the Distributor, the Distributor will promptly, upon such
termination and at the expense of the Company, 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 Company (if such form differs from the form in which the
Distributor has maintained the same, the Company 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
Company.
13.
Early Termination
In
the absence of any material breach of this Agreement, should the Company elect
to terminate this Agreement prior to the end of the term, the Company agrees
to
pay the following fees:
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a.
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all
fees associated with converting services to successor service
provider;
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b.
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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;
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c.
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all
out-of-pocket costs associated with a-b
above.
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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
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
notice
to the Company shall be sent to:
c/o
Prospector Partners Asset Management, LLC
▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
and
notice to the Advisor shall be sent to:
Prospector
Partners Asset Management, LLC
▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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 or after September 17,
2007.
PROSPECTOR
FUNDS,
INC. QUASAR
DISTRIBUTORS, LLC
By:________________________________ By:______________________________
Name:_____________________________ Name:____________________________
Title:______________________________ Title:_____________________________
PROSPECTOR
ASSET MANAGEMENT, LLC
(with
respect to section 5 only)
By:________________________________
Name:_____________________________
Title:______________________________
Exhibit
A
to
the
Fund
Names
Separate
Series of Prospector Funds, Inc.
Name
of
Series Date
Added
Prospector
Capital Appreciation Fund On
or after September
___, 2007
Prospector
Opportunity Fund
On
or after September ___,
2007
Exhibit
B
to
the
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QUASAR
DISTRIBUTORS, LLC
REGULATORY
DISTRIBUTION SERVICES
FEE
SCHEDULE at June, 2007
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Regulatory
Distribution Annual Services Per Fund*
· 1.0
basis point on all assets subject to the cap
· Minimum
annual fee
· $15,000
first fund, capped at $25,000
· $ 3,000
each additional fund, capped at $10,000
Advertising
Compliance Review/NASD Filings
· $175
per job for the first 10 pages (minutes if tape or video); $20 per
page
(minute if tape or video) thereafter (includes NASD filing
fee)
· Non-NASD
filed materials, e.g. Internal Use Only
Materials
$75
per job for the first 10 pages (minutes if tape or video)
· NASD
Expedited Service for 3 Day Turnaround
$1,000
for the first 10 pages (minutes if audio or video); $25 per page
(minute
if audio or video) thereafter. (Comments are
faxed. NASD may not accept expedited request.)
Licensing
of Investment Advisor’s Staff (if required)
· $1,500
per year per registered representative
· Quasar
is limited to these licenses for sponsorship: Series, 6, 7, 24,
26, 27, 63, 66
· Plus
any NASD and state fees for registered representatives, including
license
and renewal fees.
Fund
Fact Sheets
· Design
- $1,000 per fact sheet, includes first production
· Production
- $500.00 per fact sheet per production period
· All
printing costs are out-of-pocket expenses, and in addition to the
design
fee and production fee.
Plus
Out-Of-Pocket Expenses– Including but not limited to typesetting,
printing and distribution of prospectuses and shareholder reports,
production, printing, distribution and placement of advertising and
sales
literature and materials, engagement of designers, free-▇▇▇▇▇ writers
and
public relations firms, long-distance telephone lines, services and
charges, postage, overnight delivery charges, NASD registration
fees, record retention, travel, lodging and meals and
all
other out-of-pocket expenses.
Fees
are billed monthly.
*Subject
to annual CPI increase, Milwaukee
MSA.
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Exhibit
B (continued) to the Distribution Agreement
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CHIEF
COMPLIANCE OFFICER
SUPPORT
SERVICES
FEE
SCHEDULE at June, 2007
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Chief
Compliance Officer Support Services
U.S.Bancorp
provides support to the Chief Compliance Officer (CCO) of each fund
serviced either by U.S. Bancorp Fund Services, LLC or Quasar Distributors,
LLC. Indicated below are samples of functions performed by
USBFS in this CCO support role:
• Business
Line Functions Supported
• Fund
Administration and Compliance
• Transfer
Agent and Shareholder Services
• Fund
Accounting
• Custody
Services
• Securities
Lending Services
• Distribution
Services
• Daily
Resource to Fund CCO, Fund Board, Advisor
• Provide
USBFS/USB Critical Procedures & Compliance Controls
• Daily
and Periodic Reporting
• Periodic
CCO Conference Calls
• Dissemination
of Industry/Regulatory Information
• Client
& Business Line CCO Education & Training
• Due
Diligence Review of USBFS Service Facilities
• Quarterly
USBFS Certification
• Board
Meeting Presentation and Board Support
• Testing,
Documentation, Reporting
Annual
Fee Schedule*
· $1,200
per service line per year
Fees
are billed monthly.
*Subject
to annual CPI increase, Milwaukee MSA.
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Exhibit
C
Service
Standards – Distribution Services – Prospector Funds, Inc.
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Quasar
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Item
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Standard
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5
Day Feedback Turnaround - Mkting & Ad Material
Requests
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100.0%
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SK
02081 0009 810304