DISTRIBUTION SERVICES AGREEMENT
Exhibit 28 (h)(8)
AGREEMENT made effective as of March 31, 2009, by and between , FIRST FINANCIAL CAPITAL
ADVISORS LLC, (the “Adviser”), having an office at 0000 Xxxxx Xxxx Xxxxx 000, Xxxxxxxxxx, XX 00000,
and FORESIDE DISTRIBUTION SERVICES, L.P., (the “Distributor”), having an office at 00 Xxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx, 00000.
WHEREAS, the Adviser (including for purposes hereof its separate asset management divisions
and subsidiaries) serves as investment adviser for the First Funds (the “Trust”) (each a “Fund” and
collectively, the “Funds”), an open-end investment company registered with the Securities and
Exchange Commission (“SEC”) under the Investment Company Act of 1940, as amended (the “Act”); and
WHEREAS, pursuant to a distribution agreement between the Distributor and the Trust currently
in effect (the “Distribution Agreement”), the Distributor acts as the principal underwriter and
distributor of shares of the Funds, which shares (the “Shares”) are registered under the Securities
Act of 1933, as amended; and
WHEREAS, in consideration of Distributor’s agreement to provide certain sales and marketing
services as described in the Distribution Agreement, the Adviser has agreed to compensate the
Distributor to the extent that the Funds are not authorized to so compensate the Distributor.
NOW THEREFORE, in consideration of the covenants hereinafter contained, the Adviser and the
Distributor agree as follows:
1. Services.
Distributor will provide the Funds and the Adviser with some or all of the marketing and sales
support services set forth in the Distribution Agreement, as the parties agree from time to time.
2. Compensation and Expenses.
(a) The Distributor shall be entitled to receive the compensation set forth in the
Distribution Agreement, based on the services selected by Funds and/or the Adviser from time to
time.
(b) In accordance with the Distribution Agreement, Adviser hereby agrees that, if the Funds
are not authorized to compensate the Distributor in full in accordance with the Distribution
Agreement, the Adviser shall compensate the Distributor to the extent that the Funds are not so
authorized.
3. Term and Termination.
(a) This Agreement will become effective upon the date first set forth above, will continue in
effect throughout the term of the Distribution Agreement, and will terminate
automatically upon any
termination
of the Distribution Agreement; provided, however, that, notwithstanding such
termination of the Distribution Agreement, the Adviser will continue to pay to Distributor all fees
to which Distributor is entitled pursuant to the Distribution Agreement for services performed
through such termination date and any other fees payable upon such termination.
(b) This Agreement will terminate immediately and automatically in the event the Distributor
is expelled as a member of the Financial Industry Regulatory Authority (“FINRA”) (the successor
organization to the National Association of Securities Dealers, Inc.), and the Adviser may
terminate this Agreement immediately upon written notice in the event the Distributor’s FINRA
membership is suspended.
(c) In addition, either party may immediately terminate this Agreement in whole or if the
provision of services having substantially the character, form and scope as those set forth
hereunder becomes illegal or contrary to any applicable law, or with the service and payment model
remaining substantially as reflected herein, a substantial risk that such a violation could occur
would be incurred.
(d) In addition, either party may immediately terminate this Agreement if it has “Cause” to do
so, which, for these purposes is defined as being applicable if (i) the other party materially
breaches this Agreement and the breach is not remedied within 30 days after the party wishing to
terminate gives the breaching party written notice of the breach; (ii) a final judicial, regulatory
or administrative ruling or order is made in which the party to be terminated has been found guilty
of criminal or unethical behavior in the conduct of its business; or (iii) the other party makes an
assignment for the benefit of its creditors, files a voluntary petition under any bankruptcy or
insolvency law, becomes the subject of an involuntary petition under any bankruptcy or insolvency
law that is not dismissed within 60 days, or a trustee or receiver is appointed under any
bankruptcy or insolvency law for the other party or its property.
4. Rights and Obligations of the Adviser and the Distributor.
The Adviser shall be responsible for the accuracy, completeness and propriety of information
concerning its organization and sales channels that the Adviser furnishes to the Distributor in
connection with the performance of the Distribution Agreement.
5. Representations and Warranties.
(a) The Adviser represents and warrants the following:
(i) this Agreement has been duly authorized by the Adviser and, when executed and delivered,
will constitute a legal, valid and binding obligation of the Adviser, enforceable against it in
accordance with its terms subject to bankruptcy, insolvency, reorganizations, moratorium and other
laws of general application affecting the rights and remedies of creditors and secured parties;
(ii) the advisory fees provided for in the Trust’s agreement(s) with the Adviser do not
contain any component that was included expressly for or earmarked for the purpose of paying for
Fund distribution; and
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(iii) this Agreement has been disclosed to the Board of Trustees of the Trust (the “Board”),
and the Adviser has provided all such information to the Board as may be appropriate (or as has
been requested by the Board) in connection with the Board’s review or approval of the arrangements
contemplated hereunder, including amounts expended by the Adviser hereunder.
(b) The Distributor represents and warrants the following:
(i) it is presently a duly registered broker-dealer with the FINRA in good standing and
covenants that it shall remain so registered and in good standing for the duration of this
Agreement, and shall immediately notify the Adviser should the foregoing no longer be true during
the term of this Agreement;
(ii) the Distributor also represents and warrants that it is in material compliance with all
laws, rules and regulations applicable to it, including but not limited to the rules and
regulations promulgated by the FINRA; and
(iii) this Agreement has been duly authorized by the Distributor and, when executed and
delivered, will constitute a legal, valid and binding obligation of the Distributor, enforceable
against the Distributor in accordance with its terms subject to bankruptcy, insolvency,
reorganizations, moratorium and other laws of general application affecting the rights and remedies
of creditors and secured parties.
6. Confidentiality.
During the term of this Agreement, the Distributor and the Adviser may have access to
confidential information relating to such matters as either party’s business, trade secrets,
systems, procedures, manuals, products, contracts, personnel, and clients. As used in this
Agreement, “Confidential Information” means information belonging to the Distributor or the Adviser
which is of value to such party and the disclosure of which could result in a competitive or other
disadvantage to either party, including, without limitation, financial information, business
practices and policies, know-how, trade secrets, market or sales information or plans, customer
lists, business plans, and all provisions of this Agreement. Confidential Information includes
information developed by either party in the course of engaging in the activities provided for in
this Agreement, unless: (i) the information is or becomes publicly known without breach of this
Agreement, (ii) the information is disclosed to the other party by a third party not under an
obligation confidentiality to the party whose Confidential Information is at issue of which the
party receiving the information should reasonably be aware, or (iii) the information is
independently developed by a party without reference to the other’s Confidential Information. Each
party will protect the other’s Confidential Information with at least the same degree of care it
uses with respect to its own Confidential Information, and will not use the other party’s
Confidential Information other than in connection with its duties and obligations hereunder.
Notwithstanding the foregoing, a party may disclose the other’s Confidential Information if (i)
required by law, regulation or legal process or if requested by any government agency or
self-regulatory organization; (ii) it is advised by counsel that it may incur liability for failure
to make such disclosure; (iii) requested to by the other party; provided that in the event of (i)
or (ii) the disclosing party shall give the other party reasonable prior notice of such disclosure
to the extent reasonably practicable and reasonably cooperate with the other party (at such other
party’s expense) in any efforts to prevent such disclosure.
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7. Limitation of Liability; Indemnification.
(a) The Adviser shall indemnify and hold harmless the Distributor and its employees, agents,
directors and officers from and against, any and all claims, demands, actions and suits, and from
and against any and all judgments, liabilities, losses, damages, costs, charges and reasonable
counsel fees incurred in connection therewith (collectively, “Losses”) arising out of or related to
the arrangement contemplated under this Agreement and/or the Distribution Agreement, except to the
extent that Losses result from the bad faith, willful misfeasance, negligence or reckless disregard
by the Distributor of its express obligations and duties hereunder and/or the Distribution
Agreement or breach by the Distributor of its obligations under this Agreement and/or the
Distribution Agreement.
(b) The Distributor shall indemnify and hold harmless the Adviser and its employees, agents,
directors and officers from and against, any and all claims, demands, actions and suits, and from
and against any and all judgments, liabilities, losses, damages, costs, charges and reasonable
counsel fees incurred in connection therewith (collectively, “Losses”) arising out of or related to
the arrangement contemplated under this Agreement and/or the Distribution Agreement, except to the
extent that Losses result from the bad faith, willful misfeasance, negligence or reckless disregard
by the Adviser of its express obligations hereunder or the breach by the Adviser of its obligations
under this Agreement.
8. Notices.
Any notice provided hereunder shall be sufficiently given when sent by registered or certified
mail to the party required to be served with such notice at the following address: if to the
Adviser, to it at 0000 Xxxxx Xxxx Xxxxx 000, Xxxxxxxxxx, XX 00000, Attention: J. Xxxxxxxx Xxxx; and
if to Distributor, to it at 00 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Broker
Dealer Chief Compliance Officer, with a copy to such other address as such party may from time to
time specify in writing to the other party pursuant to this Section.
9. Assignment.
This Agreement and the rights and duties hereunder shall not be assignable with respect to a
Fund 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.
10. Governing Law.
This Agreement shall be governed by, and interpreted in accordance with, the laws of the State
of New York.
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11. Miscellaneous.
(a) Paragraph headings in this Agreement are included for convenience only and are not to be
used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties hereto as to the subject
matter covered by this Agreement, and supersedes all prior negotiations, understandings and
agreements bearing upon the subject matter covered by this Agreement.
(c) If any part, term or provision of this Agreement is held to be illegal, in conflict with
any law or otherwise invalid, the remaining portion or portions shall be considered severable and
not be affected, and the rights and obligations of the parties shall be construed and enforced as
if this Agreement did not contain such part, term or provision.
(d) This Agreement may be executed in counterparts, each of which shall be an original but all
of which, taken together, shall constitute one and the same agreement.
(e) No amendment to this Agreement shall be valid unless made in writing and executed by both
parties hereto.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed so as to
be effective as of the day and year first above written.
FIRST FINANCIAL CAPITAL ADVISORS LLC
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FORESIDE DISTRIBUTION SERVICES, L.P. | |||
By: /s/ Xxxxxxx X. Xxxxxxx
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By: /s/ Xxxxxxx X. Xxxxxx | |||
Name: Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxx | |||
Title: Vice President
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Title: Vice President |
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