Exhibit (e)(1)
FORM OF DISTRIBUTION AGREEMENT
AGREEMENT made this 4th day of September, 2007, between The Coventry Group
(the "Trust"), having an office at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 and
Foreside Distribution Services, L.P. ("Distributor"), having an office at 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, the Trust is an open-end management investment company, organized
as a Massachusetts business trust and registered with the Securities and
Exchange Commission (the "Commission") under the Investment Company Act of 1940,
as amended (the "1940 Act"); and
WHEREAS, it is intended that Distributor act as the distributor of the
shares of beneficial interest ("Shares") of each series of the Trust, as listed
on Schedule A, and such series as are hereafter created (all of the foregoing
series individually referred to herein as a "Fund" and collectively as the
"Funds");
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services as Distributor.
1.1 Distributor will act as agent of Company on behalf of each Fund for the
distribution of the Shares covered by the registration statement of Company then
in effect under the Securities Act of 1933, as amended (the "Securities Act")
and the 1940 Act. As used in this Agreement, the term "registration statement"
shall mean the registration statement of the Company and any amendments thereto,
then in effect, including Parts A (the Prospectus), B (the Statement of
Additional Information) and C of each registration statement, as filed on Form
N-1A, or any successor thereto, with the Commission, together with any
amendments thereto. The term "Prospectus" shall mean the then-current form of
Prospectus and Statement of Additional Information used by the Funds, in
accordance with the rules of the Commission, for delivery to shareholders and
prospective shareholders after the effective dates of the above-referenced
registration statements, together with any amendments and supplements thereto.
The Company will notify Distributor in advance of any proposed changes to
Schedule A to this Agreement.
1.2 Consistent with the understanding between the Funds and the
Distributor, Distributor may solicit orders for the sale of the Shares and may
undertake such advertising and promotion as it believes reasonable in connection
with such solicitation. The Company understands that Distributor is now and may
in the future be the distributor of the shares of many other investment
companies or series, including investment companies having investment objectives
similar to those of the Company. The Company further understands that
shareholders and potential shareholders in the Company may invest in shares of
such other investment companies. The Company agrees that Distributor's duties to
other investment companies shall not be deemed in conflict with its duties to
the Company under this Section 1.2.
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1.3 Consistent with the understanding between the Funds and the
Distributor, and subject to the last sentence of this Section 1.3, Distributor
may engage in such activities as it deems appropriate in connection with the
promotion and sale of the Shares, which may include advertising, compensation of
underwriters, dealers and sales personnel, the printing and mailing of
Prospectuses to prospective shareholders other than current shareholders, and
the printing and mailing of sales literature. Distributor may enter into dealer
agreements and other selling agreements with broker-dealers and other
intermediaries; provided, however, that Distributor shall have no obligation to
make any payments to any third parties, whether as finder's fees, compensation
or otherwise, unless (i) Distributor has received a corresponding payment from
the applicable Fund's Distribution Plan (as defined in Section 2 of this
Agreement), the Fund's investment adviser (the "Adviser") or from another source
as may be permitted by applicable law, and (ii) such corresponding payment has
been approved by the Company's Board of Trustees (the "Board").
1.4 In its capacity as distributor of the Shares, all activities of the
Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, all applicable rules and regulations promulgated by the Commission
thereunder, and all applicable rules and regulations adopted by any securities
association registered under the Securities Exchange Act of 1934.
1.5 Whenever in their judgment such action is warranted by unusual market,
economic or political conditions or by abnormal circumstances of any kind, the
Company's officers may upon reasonable notice instruct the Distributor to
decline to accept any orders for or make any sales of the Shares until such time
as those officers deem it advisable to accept such orders and to make such
sales.
1.6 The Company agrees to inform the Distributor from time to time of the
states in which the Fund or its administrator has registered or otherwise
qualified shares for sale, and the Company agrees at its own expense to execute
any and all documents and to furnish any and all information and otherwise to
take all actions that may be reasonably necessary in connection with the
qualification of the Shares for sale in such states as the Distributor may
designate.
1.7 The Company shall furnish from time to time, for use in connection with
the sale of the Shares, such supplemental information with respect to the Funds
and the Shares as Distributor may reasonably request; and the Company warrants
that the statements contained in any such supplemental information will fairly
show or represent what they purport to show or represent. The Company shall also
furnish Distributor upon request with: (a) unaudited semi-annual statements of
the Funds' books and accounts prepared by the Company, and (b) from time to time
such additional information regarding the Funds as the Distributor may
reasonably request.
1.8 The Company represents and warrants to Distributor that all
registration statements, and each Prospectus, filed by the Company with the
Commission under the Securities Act and the 1940 Act shall be prepared in
conformity with requirements of said
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Acts and rules and regulations of the Commission thereunder, and all
Company-related advertisement or sales literature shall be prepared in
conformity with requirements of applicable laws and regulations. The
registration statement, Prospectus and advertisement or sales literature shall
contain all statements required to be stated therein in conformity with said
Acts, laws and regulations and the rules and regulations of the Commission
thereunder or other applicable regulatory authority, and all statements of fact
contained in any such registration statement, Prospectus and advertisement or
sales literature are true and correct in all material respects. Furthermore,
neither any registration statement nor any Prospectus nor any advertisement or
sales literature includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading to a purchaser of the Shares. The foregoing
representations and warranties shall continue throughout the term of this
Agreement and be deemed to be of a continuing nature, applicable to all Shares
distributed hereunder. The Company may, but shall not be obligated to, propose
from time to time such amendment or amendments to any registration statement and
such supplement or supplements to any Prospectus as, in the light of future
developments, may, in the opinion of the Company's counsel, be necessary or
advisable. If the Company shall not propose any amendment or amendments and/or
supplement or supplements within 15 days after receipt by the Company of a
written request from Distributor to do so, Distributor may, at its option,
terminate this Agreement. In such case, the Distributor will be held harmless
from, and indemnified by Company for, any liability or loss resulting from the
failure to implement such amendment. The Company shall not file any amendment to
any registration statement or supplement to any Prospectus without giving
Distributor reasonable notice thereof in advance; provided, however, that
nothing contained in this Agreement shall in any way limit the Company's right
to file at any time such amendments to any registration statement and/or
supplements to any Prospectus, of whatever character, as the Company may deem
advisable, such right being in all respects absolute and unconditional.
1.9 The Company authorizes the Distributor and dealers to use any
Prospectus in the form furnished by the Company from time to time in connection
with the sale of the Shares.
1.10 The Distributor may, at its expense, utilize agents in its performance
of its services and, with prior notice to the Company, appoint in writing other
parties qualified to perform specific administration services reasonably
acceptable to the Company (individually, a "Sub-Agent") to carry out some or all
of its responsibilities under this Agreement; provided, however, that a
Sub-Agent shall be the agent of the Distributor and not the agent of the
Company, and that the Distributor shall be fully responsible for the acts of
such Sub-Agent and shall not be relieved of any of its responsibilities
hereunder by the appointment of a Sub-Agent.
1.11 The Distributor shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Company in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the Distributor's part in the
performance of its duties, from reckless
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disregard by the Distributor of its obligations and duties under this Agreement,
or from the Distributor's failure to comply with laws, rules and regulations
applicable to it in connection with its activities hereunder. The Company agrees
to indemnify, defend and hold harmless the Distributor, its officers, partners,
employees, and any person who controls the Distributor within the meaning of
Section 15 of the Securities Act (collectively, "Distributor Indemnitees"), from
and against any and all claims, demands, liabilities and expenses (including the
reasonable cost of investigating or defending such claims, demands or
liabilities and any reasonable counsel fees incurred in connection therewith)
(collectively, "Claims") which the Distributor Indemnitees may incur under the
Securities Act or under common law or otherwise (a) as the result of the
Distributor acting as distributor of the Funds and entering into selling
agreements, participation agreements, shareholder servicing agreements or
similar agreements with financial intermediaries on behalf of the Company; (b)
arising out of or based upon (i) any untrue statement, or alleged untrue
statement, of a material fact contained in any registration statement or any
Prospectus, (ii) any omission, or alleged omission, to state a material fact
required to be stated in any registration statement or any Prospectus or
necessary to make the statements therein not misleading, or (iii) any untrue
statement, or alleged untrue statement, of a material fact in any
Company-related advertisement or sales literature, or any omission, or alleged
omission, to state a material fact required to be stated therein to make the
statements therein not misleading, in either case notwithstanding the exercise
of reasonable care in the preparation or review thereof by the Distributor; or
(c) arising out of or based upon the electronic processing of orders over the
internet at the Company's request; provided, however, that the Company's
agreement to indemnify the Distributor Indemnitees pursuant to this Section 1.11
shall not be construed to cover any Claims (A) pursuant to subsection (b) above
to the extent such untrue statement, alleged untrue statement, omission, or
alleged omission, was furnished in writing, or omitted from the relevant writing
furnished, as the case may be, to the Company by the Distributor for use in the
registration statement or in corresponding statements made in the Prospectus,
advertisement or sales literature; (B) arising out of or based upon the willful
misfeasance, bad faith or gross negligence of the Distributor in the performance
of its duties or the Distributor's reckless disregard of its obligations and
duties under this Agreement; or (C) arising out of or based upon the
Distributor's failure to comply with laws, rules and regulations applicable to
it in connection with its activities hereunder.
In the event of a Claim for which the Distributor Indemnitees may be
entitled to indemnification hereunder, the Distributor shall provide the Company
with written notice of the Claim, identifying the persons against whom such
Claim is brought, promptly following receipt of service of the summons or other
first legal process, and in any event within 10 days of such receipt. The
Company will be entitled to assume the defense of any suit brought to enforce
any such Claim if such defense shall be conducted by counsel of good standing
chosen by the Company and approved by the Distributor, which approval shall not
be unreasonably withheld. In the event any such suit is not based solely on an
alleged untrue statement, omission, or wrongful act on the Company's part, the
Distributor shall have the right to participate in the defense. In the event the
Company elects to assume the defense of any such suit and retain counsel of good
standing so approved by the Distributor, the Distributor Indemnitees in such
suit shall
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bear the fees and expenses of any additional counsel retained by any of them,
but in any case where the Company does not elect to assume the defense of any
such suit or in case the Distributor reasonably withholds approval of counsel
chosen by the Company, the Company will reimburse the Distributor Indemnitees
named as defendants in such suit, for the reasonable fees and expenses of any
counsel retained by them to the extent related to a Claim covered under this
Section 1.11. The Company's indemnification agreement contained in this Section
1.11 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.
1.12 The Distributor agrees to indemnify, defend and hold harmless the
Company, its officers, trustees, directors, employees, and any person who
controls the Company within the meaning of Section 15 of the Securities Act
(collectively, "Company Indemnitees"), from and against any and all Claims which
the Company Indemnitees may incur under the Securities Act or under common law
or otherwise, arising out of or based upon (a) any untrue statement, or alleged
untrue statement, of a material fact contained in any registration statement,
Prospectus, or Company-related advertisement or sales literature, or upon any
omission, or alleged omission, to state a material fact in such materials that
would be necessary to make the information therein not misleading, which untrue
statement, alleged untrue statement, omission, or alleged omission, was
furnished in writing, or omitted from the relevant writing furnished, as the
case may be, to the Company by the Distributor for use in the registration
statement or in corresponding statements made in the Prospectus, or
advertisement or sales literature; (b) the willful misfeasance, bad faith or
gross negligence of the Distributor in the performance of its duties, or the
Distributor's reckless disregard of its obligations and duties under this
Agreement, or (c) the Distributor's failure to comply with laws, rules and
regulations applicable to it in connection with its activities hereunder (other
than in respect of Fund-related advertisements or sales literature that fail to
comply with applicable laws despite the Distributor's exercise of reasonable
care in the preparation and review thereof).
In the event of a Claim for which the Company Indemnitees may be entitled
to indemnification hereunder, the Company shall provide the Distributor with
written notice of the Claim, identifying the persons against whom such Claim is
brought, promptly following receipt of service of the summons or other first
legal process, and in any event within ten (10) days of such receipt. The
Distributor will be entitled to assume the defense of any suit brought to
enforce any such Claim if such defense shall be conducted by counsel of good
standing chosen by the Distributor and approved by the Company, which approval
shall not be unreasonably withheld. In the event any such suit is not based
solely on an alleged untrue statement, omission, or wrongful act on the
Distributor's part, the Company shall have the right to participate in the
defense. In the event the Distributor elects to assume the defense of any such
suit and retain counsel of good standing so approved by the Company, the Company
Indemnitees in such suit shall bear the fees and expenses of any additional
counsel retained by any of them, but in any case where the Distributor does not
elect to assume the defense of any such suit or in case the Company reasonably
withholds approval of counsel chosen by the Distributor, the Distributor will
reimburse the Company Indemnitees named as defendants in such suit,
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for the reasonable fees and expenses of any counsel retained by them to the
extent related to a Claim covered under this Section 1.12. The Distributor's
indemnification agreement contained in this Section 1.12 shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Company Indemnitees, and shall survive the delivery of any Shares.
1.13 No Shares shall be offered by either the Distributor or the Company
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Company if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities Act or if and so long as a current Prospectus as required by Section
10(b)(2) of said Securities Act is not on file with the Commission; provided,
however, that: (a) the Distributor will not be obligated to cease offering
shares until it has received from the Company written notice of such events, and
(b) nothing contained in this Section 1.13 shall in any way restrict or have an
application to or bearing upon the Company's obligation to repurchase Shares
from any shareholder in accordance with the provisions of the Company's
Prospectus, Agreement and Declaration of Trust, or By-laws.
1.14 The Company agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
(a) of any request by the Commission for amendments to the
registration statement or Prospectus then in effect or for
additional information;
(b) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or
Prospectus then in effect or the initiation by service of process
on the Company of any proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement of
a material fact made in the registration statement or Prospectus
then in effect or which requires the making of a change in such
registration statement or Prospectus in order to make the
statements therein not misleading; and
(d) of any other event which could reasonably be expected to have a
material adverse impact upon the offering of Shares or the
Distributor's provision of services under this Agreement.
For purposes of this section, informal requests by or acts of the Staff of
the Commission shall not be deemed actions of or requests by the Commission
unless they would reasonably be expected to have a material negative impact upon
the offering of Shares.
1.15 NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, UNDER
NO CIRCUMSTANCES SHALL EITHER PARTY BE
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LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE,
CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST REVENUE, LOST PROFITS OR LOST
OR DAMAGED DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR
LIKELIHOOD OF SUCH DAMAGES.
2. Fees.
2.1 The Funds may adopt from time to time one or more plans of distribution
under Rule 12b-1 under the 1940 Act (collectively, the "Distribution Plan"). The
Funds will promptly deliver to Distributor any Distribution Plan and any changes
thereto or updated copies thereof. For its services under this Agreement, the
Distributor shall be compensated and reimbursed for its expenses as set forth on
Schedules B and C to this Agreement. If the Funds have a Distribution Plan that
permits and authorizes them to compensate and reimburse the Distributor and
required Board approvals have been given, then the Funds shall be responsible
for all such compensation and reimbursements or such portions of it as have been
permitted and authorized under the Distribution Plan. It is contemplated by the
Distributor that the Adviser shall compensate and reimburse the Distributor for
its provision to the Funds of any distribution services for which the Funds are
not authorized to compensate and reimburse the Distributor. The fees set forth
on Schedules B and C are subject to change by Distributor upon 30 days advance
notice.
2.2 If: (i) the Distributor properly receives fees from the Funds under the
Distribution Plan, other than for services rendered or expenses incurred, that
the Distributor is not obligated to pay to third party broker-dealers, plan
administrators or others ("Retained Fees"), and (ii) the Funds have authority
under the Distribution Plan to pay for some or all of the Distributor's services
under this Agreement ("Permitted Services"), then all of the Retained Fees will
either be (a) returned to the Funds or (b) credited against the compensation
payable by the Funds to the Distributor for Permitted Services.
2.3 In the event that the Distributor is requested or authorized by the
Company or is required by governmental regulation, summons, subpoena,
investigation, examination or other legal or regulatory process to produce
documents or personnel with respect to services provided by the Distributor to
the Company or any Fund, the Company will, so long as the Distributor is not the
subject of the investigation or proceeding in which the information is sought,
pay the Distributor for its professional time (at its standard billing rates)
and reimburse the Distributor for its out-of-pocket expenses (including
reasonable attorneys fees) incurred in responding to such requests or
requirements.
3. Sale and Payment.
3.1 Shares of a Fund may be subject to a sales load and may be subject to
the imposition of a distribution fee pursuant to a Distribution Plan as referred
to above. To the extent that Shares of a Fund are sold at an offering price
which includes a sales load
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or subject to a contingent deferred sales load with respect to certain
redemptions (either within a single class of Shares or pursuant to two or more
classes of Shares), such Shares shall hereinafter be referred to collectively as
"Load Shares" (and in the case of Shares that are sold with a front-end sales
load, "Front-end Load Shares", or Shares that are sold subject to a contingent
deferred sales load, "CDSL Shares"). Funds that issue Front-End Load Shares
shall hereinafter be referred to collectively as "Front-End Load Funds." Funds
that issue CDSL Shares shall hereinafter be referred to collectively as "CDSL
Funds." Front-end Load Funds and CDSL Funds may individually or collectively be
referred as "Load Funds." Under this Agreement, the following provisions shall
apply with respect to the sale of, and payment for, Load Shares.
3.2 The Distributor shall have the right to offer Load Shares at their net
asset value and to sell such Load Shares to the public against orders therefor
at the applicable public offering price, as defined in Section 4 hereof. The
Distributor shall also have the right to sell Load Shares to dealers against
orders therefor at the public offering price less a concession determined by the
Distributor, which concession shall not exceed the amount of the sales charge or
underwriting discount, if any, referred to in Section 4 below.
3.3 Prior to the time of delivery of any Load Shares by a Load Fund to, or
on the order of, the Distributor, the Distributor shall pay or cause to be paid
to the Load Fund or to its order an amount in same-day funds equal to the
applicable net asset value of such Shares. The Distributor may retain so much of
any sales charge or underwriting discount as is not allowed by the Distributor
as a concession to dealers.
3.4 With respect to CDSL Funds, the following provisions shall be
applicable:
(a) The Distributor shall be entitled to receive all contingent
deferred sales load charges, 12b-1 payments and all distribution and
service fees set forth in the Distribution Plan adopted by a CDSL Fund
(collectively, the "CDSL Payments") with respect to CDSL Shares. The
Distributor may assign or sell to a third party (a "CDSL Financing Entity")
all or a part of the CDSL Payments on CDSL Shares that the Distributor is
entitled to receive under this Agreement. The Distributor's right to the
CDSL Payments on such CDSL Shares, if assigned or sold to a CDSL Financing
Entity, shall continue after termination of this Agreement.
(b) Unless the Distributor is legally entitled to receive such fees as
the financing entity, the right to receive all CDSL Payments in respect of
periods subsequent to the termination of this Agreement shall terminate
upon termination of this Agreement. In the event Distributor assigns or
sells all or a part of the CDSL Payments to a CDSL Financing Entity and
this Agreement is subsequently terminated, Distributor shall have no
obligation to assist the CDSL Financing Entity in connection with such CDSL
Financing Entity's right to receive such CDSL Payments subsequent to such
termination.
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(c) The Distributor shall not be required to offer or sell CDSL Shares
of a CDSL Fund unless and until it has received a binding commitment from a
CDSL Financing Entity (a "Commitment") satisfactory to the Distributor
which Commitment shall cover all expenses and fees related to the offer and
sale of such CDSL Shares including, but not limited to, dealer
reallowances, financing commitment fees, and legal fees. If at any time
during the term of this Agreement the then-current CDSL financing is
terminated through no fault of the Distributor, the Distributor shall have
the right to immediately cease offering or selling CDSL Shares until
substitute financing becomes effective.
(d) The Distributor and the Company hereby agree that the terms and
conditions set forth herein regarding the offer and sale of CDSL Shares may
be amended upon approval of both parties in order to comply with the terms
and conditions of any agreement with a CDSL Financing Entity to finance the
costs for the offer and sale of CDSL Shares so long as such terms and
conditions are in compliance with the Distribution Plan.
4. Public Offering Price.
The public offering price of a Load Share shall be the net asset value of
such Load Share next determined, plus any applicable sales charge, all as set
forth in the current Prospectus of the Load Fund. The net asset value of Load
Shares shall be determined in accordance with the then-current Prospectus of the
Load Fund.
5. Issuance of Shares.
The Company reserves the right to issue, transfer or sell Load Shares at
net asset values (a) in connection with the merger or consolidation of the
Company or the Load Fund(s) with any other investment company or the acquisition
by the Company or the Load Fund(s) of all or substantially all of the assets or
of the outstanding Shares of any other investment company; (b) in connection
with a pro rata distribution directly to the holders of Shares in the nature of
a stock dividend or split; (c) upon the exercise of subscription rights granted
to the holders of Shares on a pro rata basis; (d) in connection with the
issuance of Load Shares pursuant to any exchange and reinvestment privileges
described in any then-current Prospectus of the Load Fund; and (e) otherwise in
accordance with any then-current Prospectus of the Load Fund.
6. Term, Duration and Termination.
This Agreement shall become effective with respect to each Fund as of the
date first written above (the "Effective Date") (or, if a particular Fund is not
in existence on such date, on the earlier of the date an amendment to Schedule A
to this Agreement relating to that Fund is executed or the Distributor begins
providing services under this Agreement with respect to such Fund) and, unless
sooner terminated as provided herein, shall continue for a period of one year.
Thereafter, if not terminated, this Agreement shall continue with respect to a
particular Fund automatically for successive one-year
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terms, provided that such continuance is specifically approved at least annually
(a) by the vote of a majority of those members of the Board who are not parties
to this Agreement or interested persons of any such party, cast in person at a
meeting for the purpose of voting on such approval and (b) by the vote of the
Board or the vote of a majority of the outstanding voting securities of such
Fund. This Agreement is terminable without penalty with 60 days' prior written
notice, by the Board, by vote of a majority of the outstanding voting securities
of the Company, or by the Distributor. This Agreement will also terminate
automatically in the event of its assignment. (As used in this Agreement, the
terms "majority of the outstanding voting securities," "interested persons" and
"assignment" shall have the same meaning as ascribed to such terms in the 1940
Act.)
7. Privacy.
Nonpublic personal financial information relating to consumers or customers
of the Funds provided by, or at the direction of, the Company to the
Distributor, or collected or retained by the Distributor to perform its duties
as distributor, shall be considered confidential information. The Distributor
shall not disclose or otherwise use any nonpublic personal financial information
relating to present or former shareholders of the Funds other than for the
purposes for which that information was disclosed to the Distributor, including
use under an exception in Rules 13, 14 or 15 of Securities and Exchange
Commission Regulation S-P in the ordinary course of business to carry out those
purposes. 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 consumers and customers of the Funds.
The Company represents to the Distributor that it has adopted a Statement of its
privacy policies and practices as required by Securities and Exchange Commission
Regulation S-P and agrees to provide the Distributor with a copy of that
statement annually.
8. Anti-Money Laundering Compliance.
8.1 Each of Distributor and the Company acknowledges that it is a financial
institution subject to the USA Patriot Act of 2001 and the Bank Secrecy Act
(collectively, the "AML Acts"), which require, among other things, that
financial institutions adopt compliance programs to guard against money
laundering. Each represents and warrants to the other that it is in compliance
with and will continue to comply with the AML Acts and applicable regulations in
all relevant respects. The Distributor shall also provide written notice to each
person or entity with which it entered an agreement prior to the date hereof
with respect to sale of the Company's Shares, such notice informing such person
of anti-money laundering compliance obligations applicable to financial
institutions under applicable laws and, consequently, under applicable
contractual provisions requiring compliance with laws.
8.2 The Distributor shall include specific contractual provisions regarding
anti-money laundering compliance obligations in agreements entered into by the
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Distributor with any dealer that is authorized to effect transactions in Shares
of the Company.
8.3 Each of Distributor and the Company agrees that it will take such
further steps, and cooperate with the other as may be reasonably necessary, to
facilitate compliance with the AML Acts, including but not limited to the
provision of copies of its written procedures, policies and controls related
thereto ("AML Operations"). Distributor undertakes that it will grant to the
Company, the Company's anti-money laundering compliance officer and regulatory
agencies, reasonable access to copies of Distributor's AML Operations, books and
records pertaining to the Company only. It is expressly understood and agreed
that the Company and the Company's compliance officer shall have no access to
any of Distributor's AML Operations, books or records pertaining to other
clients of Distributor.
9. Notices.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail, or by nationally recognized overnight courier, to
the party required to be served with such notice at the following address: if to
the Company, to it at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attention:
President; and if to Distributor, to it at 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: 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.
10. Confidentiality.
During the term of this Agreement, the Distributor and the Company 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 Company 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
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or legal process or if requested by any Agency; (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 practicably and cooperate with the other party (at such
other party's expense) in any efforts to prevent such disclosure.
10. Governing Law .
This Agreement shall be construed in accordance with the laws of the State
of New York, without regard to New York's conflicts of laws principles, and the
applicable provisions of the 1940 Act.
11. Prior Agreements.
This Agreement constitutes the complete agreement of the parties 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.
12. Amendments.
No amendment to this Agreement shall be valid unless made in writing and
executed by both parties hereto.
13. Matters Relating to the Trust as a Massachusetts Business Trust.
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 shall bind only the trust
property of the Trust. The execution and delivery of this Agreement have been
authorized by the Trustees, and this Agreement has been signed and delivered by
an authorized officer of the Trust, acting as such, and neither such
authorization by the 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 them personally, but shall bind only the trust property of the
Trust as provided in the Trust's Declaration of Trust.
* * * * * *
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first written
above.
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THE COVENTRY GROUP
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
FORESIDE DISTRIBUTION SERVICES, L.P.
By: /s/ Xxxxx X. Xxx
---------------------------------
Name: Xxxxx X. Xxx
Title: President
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SCHEDULE A
FUNDS
GendeX Fund
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SCHEDULE B
COMPENSATION OF THE DISTRIBUTOR
1. BASIC DISTRIBUTION SERVICES. For providing the distribution entity and
related infrastructure and platform, including requisite registrations and
qualifications, premises, personnel, compliance, ordinary Board meeting
preparation, maintenance of selling agreements, clearance of advertising and
sales literature with regulators, filing appropriate documentation for advisory
representatives to qualify as registered representatives of the Distributor
(provided that the Adviser is solely responsible for its representatives'
meeting examination requirements) and their related registrations and fees,
ordinary supervisory services and overhead, the Distributor shall receive an
annual fee of $20,000, billed monthly.
2. SPECIAL DISTRIBUTION SERVICES. For special distribution services, including
those set forth on Schedule D to this Agreement, such as additional personnel,
registrations, printing and fulfillment, website services, proprietary
distribution expertise for particular circumstances, and any other services in
addition to the basic distribution services covered by Paragraph 1 above, the
Distributor shall be reimbursed promptly upon invoicing its expenses for such
services, including: (a) all costs to support additional personnel; (b)
regulatory fees including FINRA CRD costs associated with marketing materials;
and (c) printing, postage and fulfillment costs, and (d) amounts payable under
additional agreements to which Distributor is a party.
3. SPECIAL CONDUIT SITUATIONS. If the Distribution Plan, or any other Fund plans
of distribution under Rule 12b-1 that contemplate up front and/or recurring
commission and/or service payments to broker dealers, retirement plan
administrators or others by the Distributor with respect to back-end loads,
level loads, or otherwise, unless expressly agreed otherwise in writing between
the parties, all such payments shall be made to the Distributor, which shall act
as a conduit for making such payments to such broker-dealers, retirement plan
administrators or others.
4. OTHER PAYMENTS BY THE DISTRIBUTOR. If the Distributor is required to make any
payments to third parties in respect of distribution, which payments are
contemplated by the parties to this Agreement or otherwise arise in the ordinary
course of business, the Distributor shall be promptly reimbursed for such
payments upon invoicing them.
5. FEE ADJUSTMENTS. The fixed fees and other fees expressed as stated dollar
amounts in this Schedule B and in this Agreement are subject to annual
increases, commencing on the one-year anniversary date of the date of this
Agreement, in an amount equal to the percentage increase in consumer prices for
services as measured by the United States Consumer Price Index entitled "All
Services Less Rent of Shelter," or a similar index should such index no longer
be published, since such one-year anniversary or since the date of the last fee
increase, as applicable.
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SCHEDULE C
SPECIAL DISTRIBUTION SERVICES AND FEES
SERVICES FEES
-------- ----
1. WHOLESALING PERSONNEL SERVICES WHOLESALING PERSONNEL SERVICES FEES
Wholesaling Personnel may be external For each individual constituting the
wholesalers and/or internal Wholesaling Personnel employed by the
wholesalers. Distributor pursuant to this Agreement,
the Distributor shall receive annually
Services include soliciting support an amount equal to the sum of:
of the Funds with selling broker
dealers; participating in promotional (i) all compensation paid annually by
meetings, presentations, conferences the Distributor to the employee; plus
and other and forums; identifying
high potential personnel of the (ii) a management oversight fee equal
Adviser and selling broker dealers; to:
and assisting with mail solicitations
and literature fulfillment. (a) if one to four Wholesaling
Personnel are employed, 30% of
the salary compensation and 5%
of the bonus or commission
compensation, or
(b) if five or more Wholesaling
Personnel are employed, 25% of
the salary compensation and 5%
of the bonus or commission
compensation;
plus
(iii) 18% of the total compensation
(covering costs of the Distributor's
employee benefits that are provided by
the Distributor).
In addition, the Distributor shall be
reimbursed for all related costs to
support, educate and train and maintain
compliance oversight of Wholesaling
Personnel and other personnel such as
sales management, marketing and
performance reporting personnel
(including time and expenses, continuing
education, seminars, rent, supplies,
phone, computers, firm element, license,
registration)
Upon any termination of Wholesaling
Personnel at the request of the Funds or
upon termination of this Agreement by
the Funds for any reason other than
cause, the Distributor will be
reimbursed its severance costs with
respect to such terminated Wholesaling
Personnel.
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Expenses Applicable to Special Distribution Services
Except as expressly set forth above, out-of-pocket expenses incurred by
Distributor in the performance of its services under this Agreement are not
included in the above fees. Such out-of-pocket expenses may include, without
limitation:
- reasonable travel and entertainment costs;
- expenses incurred by the Distributor in qualifying, registering and
maintaining the registration of the Distributor and each individual
comprising Wholesaling Personnel as a registered representative of the
Distributor under applicable federal and state laws and rules of the FINRA,
e.g., CRD fees and state fees;
- Sponsorships, Promotions, Sales Incentives;
- any and all compensation to be paid to a third party as paying agent for
distribution activities (platform fees, finders fees, sub-TA fees, 12b-1
pass thru, commissions, etc.);
- costs and expenses incurred for telephone service, photocopying and office
supplies;
- advertising costs;
- costs for printing, paper stock and costs of other materials, electronic
transmission, courier, talent utilized in sales materials (e.g. models),
design output, photostats, photography, and illustrations;
- packaging, shipping, postage, and photocopies;
- taxes that are paid or payable by the Distributor or its affiliates in
connection with its services hereunder, other than taxes customarily and
actually imposed upon the income that the Distributor receives hereunder;
and
- amounts paid to the FINRA based on Distributor's revenue and/or the number
of Distributor's registered representatives.
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