DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of this 19th day of January,
2007, by and between WY FUNDS, an Ohio business trust (the "Trust") and QUASAR
DISTRIBUTORS, LLC, a Delaware limited liability company (the "Distributor").
▇▇▇▇▇ York Capital Management Group, LLC, a Florida limited liability company
and the investment advisor to the Trust (the "Adviser"), 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 National Association of Securities Dealers, Inc. (the "NASD");
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.
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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, the NASD 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
NASD 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
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(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.
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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 NASD
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 NASD
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;
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(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 the NASD;
(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 Adviser 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 the NASD and all other
applicable federal or state laws and regulations.
5. Compensation
The Distributor shall be compensated by the Adviser 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 by the Adviser 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 not be responsible for any payments under this
Agreement.
6. Expenses
A. The Trust shall bear (to the extent not borne by the Adviser) 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.
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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.
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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).
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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. Neither party to this Agreement shall be liable to the other party,
under any provision of this Agreement, for consequential damages
that are not reasonably foreseeable, for special damages or for
punitive damages.
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 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. 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.
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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 Adviser, the written instrument shall also be signed by the
Adviser. 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. All provisions of this Agreement 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.
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13. Limitation of Trust's Liability
It is expressly agreed that the obligations of the Trust hereunder shall
not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but bind only the property of the
applicable Fund (and no other Fund), as provided in the Declaration of Trust.
The execution and delivery of this Agreement have been authorized by the
Trustees of the Trust and signed by officers of the Trust, acting as such, and
neither such authorization by such Trustees nor such execution and delivery by
such officers shall be deemed to have been made by any of them individually or
to impose any liability on any of them personally, but shall bind only the
property of the applicable Fund (and no other Fund) as provided in its
Declaration of Trust. A copy of the Agreement and Declaration of Trust is on
file with the Secretary of the State of Ohio.
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.
12
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:
WY Funds
▇▇▇▇▇ York Capital Management Group, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and notice to the Adviser shall be sent to:
▇▇▇▇▇ York Capital Management Group, 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.
13
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 January 22, 2007.
WY FUNDS QUASAR DISTRIBUTORS, LLC
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------- ----------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------- ---------------------
Title: Trustee, WY Funds Title: President
------------------ --------------------
▇▇▇▇▇ YORK CAPITAL MANAGEMENT GROUP, LLC
(with respect to section 5 only)
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇
---------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇
-------------------
Title: President
------------------
14
Exhibit A
to the
Distribution Agreement - WY Funds
Separate Series of WY Funds
Name of Series
The Core Fund
A-1
Exhibit B
to the
Distribution Agreement - WY Funds - Fee Schedule at January, 2007
ALL PAYMENTS HEREUNDER ARE THE RESPONSIBILITY OF THE ADVISER, NOT THE TRUST OR
ANY FUND. NO PAYMENT IS AN EXPENSE OF THE TRUST OR ANY FUND.
--------------------------------------------------------------------------------
QUASAR DISTRIBUTORS, LLC
REGULATORY DISTRIBUTION SERVICES
--------------------------------------------------------------------------------
Annual Fee Based Upon Market Value Per Fund
.005% (1/2 basis point) on the first $800 million fund assets - no
additional fee for any fund assets in excess of $800 million.
Minimum annual fee: $10,000 for one fund; $3,000 for each additional fund
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.
--------------------------------------------------------------------------------
SUPPLEMENTAL FEE SCHEDULES
--------------------------------------------------------------------------------
Advertising Compliance Review/NASD Filings
o $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)
o Non-NASD filed materials, e.g. Internal Use Only Materials $75 per job for
the first 10 pages (minutes if tape or video)
o 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 Adviser's Staff (if required)
o $1,500 per year per registered representative
o Quasar is limited to these licenses for sponsorship: Series, 6, 7, 24, 26,
27, 63, 66
o Plus any NASD and state fees for registered representatives, including
license and renewal fees.
Fund Fact Sheets
o Design - $1,000 per fact sheet, includes first production
o Production - $500.00 per fact sheet per production period
o All printing costs are out-of-pocket expenses, and in addition to the
design fee and production fee.
--------------------------------------------------------------------------------
B-1
The Adviser 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 Adviser shall notify the Distributor in
writing within 30 calendar days following receipt of each invoice if the Adviser
is disputing any amounts in good faith. The Adviser 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 Adviser 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.
B-2