DISTRIBUTION AGREEMENT
This Agreement made as of May 1, 2008 by and between Stralem Fund (the
"Trust"), a Delaware business trust, and Ultimus Fund Distributors, LLC, an Ohio
limited liability company ("Distributor").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "Act"); and
WHEREAS, Distributor is a broker-dealer registered with the Securities and
Exchange Commission (the "SEC") and a member of FINRA; and
WHEREAS, the Trust and Distributor are desirous of entering into an
agreement providing for the distribution by Distributor of shares of beneficial
interest (the "Shares") of each series of shares of the Trust listed on Schedule
A attached hereto (the "Series"), as such Schedule A may be amended from time to
time;
NOW, THEREFORE, in consideration of the premises and agreements of the
parties contained herein, the parties agree as follows:
1. Appointment.
------------
The Trust hereby appoints Distributor as its agent for the distribution of
the Shares, and Distributor hereby accepts such appointment under the
terms of this Agreement. The Trust may terminate, suspend or withdraw the
offering of Shares whenever, in its sole discretion, it deems such action
to be desirable.
2. Sale and Repurchase of Shares.
------------------------------
(a) Distributor will have the right, as agent for the Trust, to sell
such Shares to the public against orders therefor at the public
offering price.
(b) Distributor will also have the right to take, as agent for the
Trust, all actions which, in Distributor's reasonable judgment, are
necessary to carry into effect the distribution of the Shares.
Distributor will review and approve all advertising and sales
literature of the Trust prior to first use and, if required, will
file such advertising and sales literature with FINRA. In addition,
Distributor may, in its discretion, license any individual employed
by the Trust's investment adviser if the Distributor deems such
licensing to be appropriate in light of such individual's
responsibilities with respect to the offering of shares of the
Trust.
(c) The public offering price for the Shares of each Series shall be the
respective net asset value of the Shares of that Series then in
effect, plus any applicable sales charge determined in the manner
set forth in the Registration Statement or as permitted by the Act
and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder. In no event shall any applicable
sales charge exceed the maximum sales charge permitted by the Rules
of FINRA.
(d) The net asset value of the Shares of each Series shall be determined
in the manner provided in the Registration Statement, and when
determined shall be applicable to transactions as provided for in
the Registration Statement. The net asset value of the Shares of
each Series shall be calculated by the Trust or by another entity on
behalf of the Trust. Distributor shall have no duty to inquire into
or liability for the accuracy of the net asset value per Share as
calculated.
(e) On every sale, the Trust shall receive the applicable net asset
value of the Shares promptly, but in no event later than the third
business day following the date on which Distributor shall have
received an order for the purchase of the Shares.
(f) Upon receipt of purchase instructions, Distributor will transmit
such instructions to the Trust or its transfer agent for the
issuance and registration of the Shares purchased.
(g) Nothing in this Agreement shall prevent Distributor or any
affiliated person (as defined in the Act) of Distributor from acting
as distributor for any other person, firm or corporation (including
other investment companies) or in any way limit or restrict
Distributor or any such affiliated person from buying, selling or
trading any securities for its or their own account or for the
accounts of others from whom it or they may be acting; provided,
however, that Distributor expressly represents that it will
undertake no activities which, in its reasonable judgment, will
adversely affect the performance of its obligations to the Trust
under this Agreement.
(h) Distributor, as agent of and for the account of the Trust, may
repurchase the Shares at such prices and upon such terms and
conditions as shall be specified in the Registration Statement.
3. Sale of Shares by the Trust.
----------------------------
The Trust reserves the right to issue any Shares at any time directly to
the holders of Shares ("Shareholders"), to sell Shares to its Shareholders
or to other persons at not less than net asset value and to issue Shares
in exchange for substantially all the assets of any corporation or trust
or for the shares of any corporation or trust.
4. Basis of Sale of Shares.
------------------------
Distributor does not agree to sell any specific number of Shares.
Distributor, as agent for the Trust, undertakes to sell Shares on a best
efforts basis only against orders therefor.
5. Rules of FINRA.
---------------
(a) In providing services hereunder, Distributor will comply with the
Rules of FINRA, the federal securities laws and the rules thereunder
and the securities laws and regulations of each state and other
jurisdiction in which it sells, directly or indirectly, any Shares.
(b) Distributor agrees to furnish to the Trust sufficient copies of any
agreements, plans or other materials it intends to use in connection
with any sales of Shares in reasonably adequate time for the Trust
to file and clear them with the proper authorities before they are
put in use, and not to use them until so filed and cleared. At the
request of the Trust, Distributor will assume responsibility for the
review and clearance of all advertisements and sales literature.
(c) Distributor, at its own expense, will qualify as dealer or broker,
or otherwise, under all applicable state or federal laws required in
order that Shares may be sold in such States as may be mutually
agreed upon by the parties.
(d) Distributor shall not make, or permit any representative, broker or
dealer to make, in connection with any sale or solicitation of a
sale of the Shares, any representations concerning the Shares except
those contained in the then current prospectus and statement of
additional information covering the Shares and in printed
information approved by the Trust as information supplemental to
such prospectus and statement of additional information. Copies of
the then
2
effective prospectus and statement of additional information and any
such printed supplemental information will be supplied by the Trust
to Distributor in reasonable quantities upon request.
6. Records to be Supplied by Trust.
--------------------------------
The Trust shall furnish to Distributor copies of all information,
financial statements and other papers which Distributor may reasonably
request for use in connection with the distribution of the Shares, and
this shall include, but shall not be limited to, one certified copy, upon
request by Distributor, of all financial statements prepared for the Trust
by independent public accountants.
7. Fees and Expenses.
------------------
Distributor will not receive a fee from the Trust or its investment
adviser under this Agreement. The Distributor's affiliate, Ultimus Fund
Solutions, LLC, however, will receive an additional processing fee of $500
per month for providing the Trust with the ability to access Fund/SERV and
Networking through National Securities Clearing Corporation. This fee is
payable to Ultimus irrespective of whether or not the Trust has any
investors through the Fund/SERV or Networking platforms. The Trust or its
investment adviser shall promptly reimburse Distributor for any expenses
that are to be paid by the Trust in accordance with the following
paragraph.
In the performance of its obligations under this Agreement, Distributor
will pay only the costs incurred in qualifying as a broker or dealer under
state and federal laws and in establishing and maintaining its
relationships with the dealers selling the Shares. All other costs in
connection with the offering of the Shares will be paid by the Trust or
its investment adviser in accordance with agreements between them as
permitted by applicable laws, including the Act and rules and regulations
promulgated thereunder. These costs include, but are not limited to,
licensing fees, filing fees (including FINRA), travel and such other
expenses as may be incurred by Distributor on behalf of the Trust.
8. Indemnification of Trust.
-------------------------
Distributor agrees to indemnify and hold harmless the Trust and each
person who has been, is, or may hereafter be a Trustee, officer, employee,
shareholder or control person of the Trust against any loss, damage or
expense (including the reasonable costs of investigation and reasonable
attorneys' fees) reasonably incurred by any of them in connection with any
claim or in connection with any action, suit or proceeding to which any of
them may be a party, which arises out of or is alleged to arise out of or
is based upon (i) any untrue statement or alleged untrue statement of a
material fact, or the omission or alleged omission to state a material
fact necessary to make the statements not misleading, on the part of
Distributor or any agent or employee of Distributor or any other person
for whose acts Distributor is responsible, unless such statement or
omission was made in reliance upon written information furnished by the
Trust; (ii) Distributor's failure to exercise reasonable care and
diligence with respect to its services, if any, rendered in connection
with investment, reinvestment, automatic withdrawal and other plans for
Shares; (iii) Distributor's failure to comply with applicable laws and the
Rules of FINRA; (iv) any action or inaction by Distributor or any other
person for whose acts Distributor is responsible constituting willful
misfeasance, bad faith or negligence, including clerical errors and
mechanical failures; or (v) the breach of the terms of this Agreement by
Distributor. The Distributor will advance attorneys' fees or other
expenses incurred by any such person in defending a proceeding, upon the
undertaking by or on behalf of such person to repay the advance if it is
ultimately determined that such person is not entitled to indemnification.
The term "expenses" for purposes of this and the next paragraph includes
amounts paid in satisfaction of judgments or in settlements which are made
with Distributor's consent. The foregoing rights of indemnification shall
be in addition to any other rights to which the Trust or each such person
may be entitled as a matter of law.
3
9. Indemnification of Distributor.
-------------------------------
The Trust agrees to indemnify and hold harmless Distributor and each
person who has been, is, or may hereafter be a director, officer,
employee, shareholder or control person of Distributor against any loss,
damage or expense (including the reasonable costs of investigation and
reasonable attorneys' fees) reasonably incurred by any of them in
connection with the matters to which this Agreement relates, except a loss
resulting from the failure of Distributor or any such other person to
comply with applicable law or the terms of this Agreement, or from willful
misfeasance, bad faith or negligence, including clerical errors and
mechanical failures, on the part of any of such persons in the performance
of Distributor's duties or from the reckless disregard by any of such
persons of Distributor's obligations and duties under this Agreement, for
all of which exceptions Distributor shall be liable to the Trust. The
Trust will advance attorneys' fees or other expenses incurred by any such
person in defending a proceeding, upon the undertaking by or on behalf of
such person to repay the advance if it is ultimately determined that such
person is not entitled to indemnification.
In order that the indemnification provisions contained in this Paragraph 9
shall apply, it is understood that if in any case the Trust may be asked
to indemnify Distributor or any other person or hold Distributor or any
other person harmless, the Trust shall be fully and promptly advised of
all pertinent facts concerning the situation in question, and it is
further understood that Distributor will use all reasonable care to
identify and notify the Trust promptly concerning any situation which
presents or appears likely to present the probability of such a claim for
indemnification against the Trust. The Trust shall have the option to
defend Distributor and any such person against any claim which may be the
subject of this indemnification, and in the event that the Trust so elects
it will so notify Distributor, and neither Distributor nor any such person
shall in such situation initiate further legal or other expenses for which
it shall seek indemnification under this Paragraph 9. If the Trust elects
to assume the defense of any such claim, the defense shall be conducted by
counsel chosen by the Trust and reasonably satisfactory to the indemnified
party, whose approval shall not be unreasonably withheld, as long as the
Trust is conducting a good faith and diligent defense. In the event that
the Trust elects to assume the defense of any suit and retain counsel, the
indemnified party shall bear the fees and expenses of any additional
counsel retained by it. Distributor shall in no case confess any claim or
make any compromise in any case in which the Trust will be asked to
indemnify Distributor or any such person except with the Trust's written
consent.
Notwithstanding any other provision of this Agreement, Distributor shall
be entitled to receive and act upon advice of counsel (who may be counsel
for the Trust or its own counsel) and shall be without liability for any
action reasonably taken or thing reasonably done pursuant to such advice,
provided that such action is not in violation of applicable federal or
state laws or regulations.
10. Representations of the Parties.
-------------------------------
(a) The Trust certifies to Distributor that: (1) as of the date of the
execution of this Agreement, each Series that is in existence as of
such date has an unlimited number of authorized shares, and (2) this
Agreement has been duly authorized by the Trust and, when executed
and delivered by the Trust, will constitute a legal, valid and
binding obligation of the Trust, enforceable against the Trust 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.
(b) Distributor represents and warrants that: (1) the various procedures
and systems which Distributor has implemented with regard to
safeguarding from loss or damage attributable to fire, theft, or any
other cause the records and other data of the Trust and
Distributor's records, data, equipment, facilities and other
property used in the performance of its obligations hereunder
4
are adequate and that it will make such changes therein from time to
time as are required for the secure performance of its obligations
hereunder, (2) this Agreement has been duly authorized by
Distributor and, when executed and delivered by Distributor, will
constitute a legal, valid and binding obligation of Distributor,
enforceable against Distributor 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 a broker-dealer
registered with the SEC and a member in good standing of FINRA, and
(4) it currently has, and will continue to have, access to the
facilities, equipment and personnel necessary to perform its duties
and obligations under this Agreement.
11. Termination and Amendment of this Agreement.
--------------------------------------------
This Agreement shall automatically terminate, without the payment of any
penalty, in the event of its assignment by Distributor. This Agreement may
be amended only if such amendment is approved (i) by Distributor and (ii)
by the Board of Trustees of the Trust, including the approval of a
majority of the Trustees of the Trust who are not interested persons of
the Trust or of Distributor by vote cast in person at a meeting called for
the purpose of voting on such approval.
Either the Trust or Distributor may at any time terminate this Agreement
on sixty (60) days' written notice delivered or mailed by registered mail,
postage prepaid, to the other party.
12. Effective Period of this Agreement.
-----------------------------------
This Agreement shall take effect upon its execution and shall remain in
full force and effect for an initial term of two (2) years from the date
of its execution (unless terminated as set forth in Section 11), and shall
continue in effect from year to year thereafter, subject to annual
approval of such continuance by the Board of Trustees of the Trust,
including the approval of a majority of the Trustees of the Trust who are
not interested persons of the Trust or of Distributor by vote cast in
person at a meeting called for the purpose of voting on such approval.
13. Successor Investment Company.
-----------------------------
Unless this Agreement has been terminated in accordance with Paragraph 11,
the terms and provisions of this Agreement shall become automatically
applicable to any investment company which is a successor to the Trust as
a result of reorganization, recapitalization or change of domicile.
14. Limitation of 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 trust
property of the Trust. The execution and delivery of this Agreement have
been authorized by the Trustees of the Trust and signed by an officer of
the Trust, acting as such, and neither such authorization by such Trustees
nor such execution and delivery by such officer 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 trust property of the Trust. If a
matter relates only to a particular series of the Trust, that series shall
be solely responsible for all liabilities in connection with such matter,
and the Distributor agrees that resort shall be had solely to the assets
of such series for the payment or performance thereof.
5
15. Severability.
-------------
In the event any provision of this Agreement is determined to be void or
unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
16. Questions of Interpretation.
----------------------------
(a) This Agreement shall be governed by the laws of the State of Ohio.
(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term
or provision of the Act shall be resolved by reference to such term
or provision of the Act and to interpretation thereof, if any, by
the United States courts or in the absence of any controlling
decision of any such court, by rules, regulations or orders of the
SEC issued pursuant to said Act. In addition, where the effect of a
requirement of the Act, reflected in any provision of this Agreement
is revised by rule, regulation or order of the SEC, such provision
shall be deemed to incorporate the effect of such rule, regulation
or order.
17. Arbitration.
------------
Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration administered by the
American Arbitration Association in accordance with its Commercial
Arbitration Rules. Each party shall select a single arbitrator. The
arbitrators selected by each party shall, within ten (10) days of their
appointment, select a third neutral arbitrator. In the event that they are
unable to select a third neutral arbitrator, the parties or their
attorneys may request the American Arbitration Association to appoint the
third neutral arbitrator. Each party hereby consents to Cincinnati, Ohio
as the place of arbitration, and judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
18. Notices.
--------
Any notices under this Agreement shall be in writing, addressed and
delivered or mailed postage paid to the other party, with a copy to the
Trust's counsel, at such address as such other party may designate for the
receipt of such notice. Such notice will be effective upon receipt. Until
further notice to the other party, it is agreed that the address of the
Trust for this purpose shall be ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and that the address of Distributor for this purpose shall
be ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇.
19. Assignment.
-----------
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of
the other party. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and
permitted assigns.
20. Execution.
----------
This Agreement may be executed by one or more counterparts, each of which
shall be deemed an original, but all of which together will constitute one
in the same instrument.
6
IN WITNESS WHEREOF, the Trust and Distributor have each caused this
Agreement to be signed in duplicate on their behalf, all as of the day and year
first above written.
ATTEST: STRALEM FUND
By: /s/Phillippe ▇. ▇▇▇▇▇▇▇
------------------------------- ------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
ATTEST: ULTIMUS FUND DISTRIBUTORS, LLC
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: President
7
SCHEDULE A
TO THE DISTRIBUTION AGREEMENT BETWEEN
STRALEM FUND
AND
ULTIMUS FUND DISTRIBUTORS, LLC
FUND PORTFOLIOS
---------------
Stralem Equity Fund