Exhibit 99.e
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of October,
2001, by and between TRUST FOR INVESTMENT MANAGERS, a Delaware business trust
("Trust"), and QUASAR DISTRIBUTORS, LLC, a Delaware limited liability company
("Distributor").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended ("1940 Act"), as an open-end management investment company, and is
authorized to issue shares of beneficial interests ("Shares") in separate series
with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Trust desires to retain the Distributor as principal
underwriter in connection with the offering and sale of the Shares of each
series listed on Schedule A (as amended from time to time) (the "Funds") to this
Agreement;
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, this Agreement has been approved by a vote of the Trust's board of
trustees ("Board") and its disinterested trustees in conformity with Section
15(c) of the 1940 Act; and
WHEREAS, the Distributor is willing to act as principal underwriter for the
Trust on the terms and conditions hereinafter set forth.
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 THE DISTRIBUTOR.
The Trust hereby appoints the Distributor as its agent for the sale and
distribution of Shares of the Funds, subject to the terms and for the period set
forth in this Agreement. The Distributor hereby accepts such appointment and
agrees to act hereunder.
2. SERVICES AND DUTIES OF THE DISTRIBUTOR.
(a) The Distributor agrees to sell Shares of the Funds on a best efforts
basis as agent for the Trust during the term of this Agreement, 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
amended or supplemented, relating to the Funds and included in the currently
effective registration statement or post-effective amendment thereto (the
"Registration Statement") of the Trust under the Securities Act of 1933 (the
"1933 Act") and the 0000 Xxx.
(b) During the continuous public offering of Shares of the Funds, the
Distributor will hold itself available to receive orders, satisfactory to the
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Distributor, for the purchase of Shares of the Funds 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) In connection with all matters relating to this Agreement, the
Distributor agrees to act in conformity with the Trust's Declaration of Trust
and By-Laws and with the instructions of the Board and to 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. 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 and the
Distributor.
(e) The Distributor agrees to cooperate with the Trust in the development
of all proposed advertisements and sales literature relating to the Funds. 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 Funds. Repurchase of Shares by the Distributor
shall be at the price determined in accordance with, and in the manner set forth
in, the current Prospectus. At the end of each business day, the Distributor
shall notify, by any appropriate means, the Trust and its transfer agent 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 folder requests f
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 Funds. The form of any dealer agreement shall be
mutually agreed upon and approved by the Trust and the Distributor. The
Distributor may pay a portion of any applicable sales charge, or allow a
discount, to a selling broker-dealer, as described in the Prospectus or, if not
described, as agreed upon with the broker-dealer. The Distributor shall include
in the forms of agreement with selling broker-dealers a provision for the
forfeiture by them of their sales charge or discount with respect to Shares sold
by them and redeemed, repurchased or tendered for redemption within seven
business days after the date of confirmation of such purchases.
(h) The Distributor shall devote its best efforts to effect sales of Shares
of the Funds but shall not be obligated to sell any certain number of Shares.
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(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 12b-1 payments
received by the Distributor, if any.
(j) The services furnished by the Distributor hereunder are not to be
deemed exclusive and the Distributor shall be free to furnish similar services
to others so long as its services under this Agreement are not impaired thereby.
The Trust recognizes that from time to time officers and employees of the
Distributor may serve as directors, trustees, officers and employees of other
entities (including investment companies), that such other entities may include
the name of the Distributor as part of their name and that the Distributor or
its affiliates may enter into distribution, administration, fund accounting,
transfer agent or other agreements with such other entities.
3. DUTIES AND REPRESENTATIONS OF THE TRUST.
(a) The Trust represents that it is duly organized and in good standing
under the law of its jurisdiction of incorporation and registered as an open-end
management investment company under the 1940 Act. The Trust agrees that it will
act in material conformity with its Declaration of Trust, By-Laws, its
Registration Statement as may be amended from time to time and resolutions and
other instructions of its Board. The Trust agrees to comply in all material
respects with the 1933 Act, the 1940 Act, and all other applicable federal and
state laws and regulations. The Trust represents and warrants that this
Agreement has been duly authorized by all necessary action by the Trust under
the 1940 Act, state law and the Trust's Declaration of Trust and By-Laws.
(b) The Trust, or its agent, shall take or cause to be taken all necessary
action to register Shares of the Funds under the 1933 Act and to 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 represents and agrees that 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. The Trust further agrees that it shall have the right to
suspend the sale of Shares of any Fund at any time in response to conditions in
the securities markets or otherwise, and to suspend the redemption of Shares of
any Fund at any time permitted by the 1940 Act or the rules of the Securities
and Exchange Commission ("SEC"). The Trust shall advise the Distributor promptly
of any such determination.
(d) The Trust agrees to advise the Distributor promptly in writing:
(i) of any correspondence or other communication by 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;
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(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; and
(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.
(e) The Trust shall file such reports and other documents as may be
required under applicable federal and state laws and regulations. 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.
(f) 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.
(g) 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 most
current Prospectus, statement of additional information 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.
(h) The Trust represents and warrants that its Registration Statement and
any advertisements and sales literature of the Trust (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.
4. EXPENSES.
(a) The Trust shall bear all costs and expenses in connection with
registration of the Shares with the SEC and 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 of its Funds,
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 and
amendments thereto, 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 of the
Funds; and (iv) fees required in connection with the offer and sale of Shares in
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such jurisdictions as shall be selected by the Trust pursuant to Section 3(e)
hereof.
(b) The Distributor shall bear the expenses of registration or
qualification of the Distributor as a dealer or broker under federal or state
laws and the expenses of continuing such registration or qualification. The
Distributor does not assume responsibility for any expenses not expressly
assumed hereunder.
5. INDEMNIFICATION.
(a) The Trust shall indemnify, defend and hold the Distributor, and each of
its present or former members, officers, employees, representatives and any
person who controls or previously controlled the Distributor within the meaning
of Section 15 of the 1933 Act, free and harmless from and against any and all
losses, claims, demands, liabilities, damages and expenses (including the costs
of investigating or defending any alleged losses, claims, demands, liabilities,
damages or expenses and any reasonable counsel fee incurred in connection
therewith) which the Distributor, each of its present and former members,
officers, employees or representatives or any such controlling person, may incur
under the 1933 Act, the 1934 Act, any other statute (including Blue Sky laws) or
any rule or regulation thereunder, or under common law or otherwise, 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, as from time to
time amended or supplemented, or in any annual or interim report to
shareholders, or in any advertisement or sales literature, or 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; provided, however, that the Trust's obligation to indemnify the
Distributor and any of the foregoing indemnitees shall not be deemed to cover
any losses, claims, demands, liabilities, damages or expenses 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
such advertisement or sales literature in reliance upon and in conformity with
information relating to the Distributor and furnished to the Trust or its
counsel by the Distributor in writing and acknowledging the purpose of its use
for the purpose of, and used in, the preparation thereof. The Trust's agreement
to indemnify the Distributor, and any of the foregoing indemnitees, as the case
may be, with respect to any action, is expressly conditioned upon the Trust
being notified of such action brought against the Distributor, or any of the
foregoing 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, or such person, unless the failure to give notice
does not prejudice the Trust. Such notification shall be given by letter or by
telegram addressed to the Trust's President, but 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 6(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 loss, claim, demand, liability, damage or expense, 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 indemnified defendant or defendants
in such suit shall bear the fees and expenses of any additional counsel retained
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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, and each of its present or former members,
officers, employees, representatives or any controlling person, the Trust will
reimburse the indemnified person or persons named as defendant or defendants in
such suit, for the fees and expenses of any counsel retained by Distributor and
them. The Trust's indemnification agreement contained in Sections 6(a) and 6(b)
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Distributor, and each of its present
or former members, officers, employees, representatives or any controlling
person, and shall survive the delivery of any Shares and the termination of this
Agreement. This agreement of indemnity will inure exclusively to the
Distributor's benefit, to the benefit of each of its present or former members,
officers, employees or representatives or to the benefit of any controlling
persons 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 directors in connection with the issue and sale
of any of the Shares.
(c) The Trust shall advance attorney's fees and other expenses incurred by
any person in defending any claim, demand, action or suit which is the subject
of a claim for indemnification pursuant to this Section 6 to the maximum extent
permissible under applicable law.
(d) The Distributor shall indemnify, defend and hold the Trust, and each of
its present or former trustees, officers, employees, representatives, and any
person who controls or previously controlled the Trust within the meaning of
Section 15 of the 1933 Act, free and harmless from and against any and all
losses, claims, demands, liabilities, damages and expenses (including the costs
of investigation or defending any alleged losses, claims, demands, liabilities,
damages or expenses, and any reasonable counsel fee incurred in connection
therewith) which the Trust, and each of its present or former trustees,
officers, employees, representatives, or any such controlling person, may incur
under the 1933 Act, the 1934 Act, any other statute (including Blue Sky laws) or
any rule or regulation thereunder, or under common law or otherwise, arising out
of or based upon any untrue, or alleged untrue, statement of a material fact
contained in the Trust's Registration Statement or any Prospectus, as from time
to time amended or supplemented, or arising out of or based upon the omission,
or alleged omission, to state therein a material fact required to be stated
therein or necessary to make the statement not misleading, but only if such
statement or omission was made 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, and any of the
foregoing indemnitees, is expressly conditioned upon the Distributor's being
notified of any action brought against the Trust, and any of the foregoing
indemnitees, such notification to be given by letter or telegram addressed to
the Distributor's President, 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 or such person unless the failure to give notice does
not prejudice the Distributor, but 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 6(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 loss, claim, demand, liability, damage or expense, 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 indemnified
defendant or defendants 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 and the Distributor, and each of its
present or former members, officers, employees, representatives or any
controlling person, the Distributor will reimburse the indemnified person or
persons named as defendant or defendants in such suit, for the fees and expenses
of any counsel retained by the Trust and them. The Distributor's indemnification
agreement contained in Sections 6(d) and (e) shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Trust, and each of its present or former directors, officers, employees,
representatives or any controlling person, and shall survive the delivery of any
Shares and the termination of this Agreement. This Agreement of indemnity will
inure exclusively to the Trust's benefit, to the benefit of each of its present
or former directors, officers, employees or representatives or to the benefit of
any controlling persons 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 issue
and sale of any of the Shares.
(f) No person shall be obligated to provide indemnification under this
Section 6 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 6 to the maximum
extent so permissible.
6. OBLIGATIONS OF TRUST.
This Agreement is executed by and on behalf of the Trust and the
obligations of the Trust hereunder are not binding upon any of the trustees,
officers or shareholders of the Trust individually but are binding only upon the
Trust and with respect to the Funds to which such obligations pertain.
7. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original agreement but all of which counterparts shall
together constitute but one and the same instrument.
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8. 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.
9. DURATION AND TERMINATION.
(a) This Agreement shall become effective with respect to each Fund listed
on Schedule 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 Schedule 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 automatically in
effect 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 vote cast in person at a meeting called for the purpose of voting
on such approval.
(b) Notwithstanding the foregoing, this Agreement may be terminated,
without the payment of any penalty, with respect to a particular Fund (i)
through a failure to renew this Agreement at the end of a term, (ii) upon mutual
consent of the parties, or (iii) upon no less than 60 days' written notice, by
either the Trust through a vote of a majority of the members of the 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 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.
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10. CONFIDENTIALITY.
The Distributor agrees on behalf of its employees to treat all records
relative to the Trust and prior, present or potential shareholders of the Trust
as confidential, and not to use such records for any purpose other than
performance of the Distributor's responsibilities and duties under this
Agreement, except after notification and prior approval 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 proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, when subject to governmental or regulatory audit or investigation,
or when so requested by the Trust. Records and information which have become
known to the public through no wrongful act of the Distributor or any of its
employees, agents or representatives shall not be subject to this paragraph.
11. MISCELLANEOUS.
The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. 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. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors. As used in this
Agreement, 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.
12. NOTICE.
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 3 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 set forth below:
Notice to the Distributor shall be sent to:
Quasar Distributors, LLC
Attn: President
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
notice to the Trust shall be sent to:
Trust for Investment Managers
000 Xxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx
Mail Location: XX-XX-2
Xxxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated as of the day and year first above
written.
TRUST FOR INVESTMENT MANAGERS QUASAR DISTRIBUTORS, LLC
By: _______________________________ By: _______________________________
Xxxxxx X. Xxxxxxxx, Treasurer Xxxxx Xxxxxxxxx, President
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