Exhibit 99.5
RAINIER INVESTMENT MANAGEMENT MUTUAL FUNDS
SHARE DISTRIBUTION AGREEMENT
This Agreement, made as of the 1st day of October 2001, between RAINIER
INVESTMENT MANAGEMENT MUTUAL FUNDS, a Delaware business trust, (the "Trust"),
and QUASAR DISTRIBUTORS, LLC, a Delaware limited liability company (the
"Distributor").
WITNESSETH:
WHEREAS, the Trust proposes to engage in business as an open-end management
investment company and is registered as such under the Investment Company Act of
1940 (the "1940 Act"), and it is in the interest of the Trust to offer its
shares for sale continuously; and
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 in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD"); and
WHEREAS, the Trust and the Distributor wish to enter into an agreement with
each other with respect to the continuous offering of the shares of capital
stock of all series of shares of the Trust (the "Shares"), to commence after the
effectiveness of its initial registration statement filed pursuant to the
Securities Act of 1933, as amended (the "1933 Act"), and the 1940 Act.
NOW, THEREFORE, the parties agree as follows:
1. Appointment of Distributor. The Trust hereby appoints the Distributor as
its agent to sell and to arrange for the sale of the Shares, on the terms and
for the period set forth in this Agreement, and the Distributor hereby accepts
such appointment and agrees to act hereunder directly and/or through the Trust's
transfer agent in the manner set forth in the Prospectus (as defined below). It
is understood and agreed that the services of the Distributor hereunder are not
exclusive, and the Distributor may act as principal underwriter for the shares
of any other registered investment company.
2. Services and Duties of the Distributor
(a) The Distributor agrees to sell the Shares, as agent for the Trust,
from time to time during the term of this Agreement upon the terms
described in the Trust's Prospectus. As used in this Agreement, the term
"Prospectus" shall mean the prospectus (or prospectuses) and statement of
additional information included as part of the Trust's Registration
Statement, as such prospectus (or prospectuses) and statement of additional
information may be amended or supplemented from time to time, and the term
"Registration Statement" shall mean the Registration Statement most
recently filed from time to time by the Trust with the Securities and
Exchange Commission and effective under the 1933 Act and the 1940 Act, as
such Registration Statement is amended by any amendments thereto at the
time in effect. The Distributor shall not be obligated to sell any certain
number of Shares.
(b) Upon commencement of the Trust's operations, the Distributor will
hold itself available to receive orders, satisfactory to the Distributor,
for the purchase of the Shares and will accept such orders and will
transmit such orders and funds received by it in payment for such Shares as
are so accepted to the Trust's transfer agent or custodian, as appropriate,
as promptly as practicable. Purchase orders shall be deemed effective at
the time and in the manner set forth in the Prospectus. The Distributor
shall not make any short sales of Shares.
(c) The offering price of the Shares shall be the net asset value per
share of the Trust. The Trust shall furnish the Distributor, with all
possible promptness, an advice of each computation of net asset value.
3. Duties of the Trust.
(a) Maintenance of Federal Registration. The Trust shall, at its
expense, take from time to time all necessary action and such steps,
including payment of the related filing fees, as may be necessary to
register and maintain registration of a sufficient number of Shares under
the 1933 Act. The Trust agrees to file from time to time such amendments,
reports and other documents as may be necessary in order that there may be
no untrue statement of a material fact in a Registration Statement or
Prospectus, or necessary in order that there may be no omission to state a
material fact in the Registration Statement or Prospectus which omission
would make the statements therein misleading.
(b) Maintenance of "Blue Sky" Qualifications. The Trust shall, at its
expense, use its best efforts to qualify and maintain the qualification of
an appropriate number of Shares for sale under the securities laws of such
states as the Distributor and the Trust may approve, and, if necessary or
appropriate in connection therewith, to qualify and maintain the
qualification of the Trust as a broker or dealer in such states; provided
that the Trust shall not be required to amend its Declaration of Trust or
By-Laws to comply with the laws of any state, to maintain an office in any
state, to change the terms of the offering of the Shares in any state from
the terms set forth in its Prospectus, to qualify as a foreign corporation
in any state or to consent to service of process in any state other than
with respect to claims arising out of the offering and sale of the Shares.
The Distributor shall furnish such information and other material relating
to its affairs and activities as may be required by the Trust in connection
with such qualifications.
(c) Copies of Reports and Prospectus. The Trust shall, at its expense,
keep the Distributor fully informed with regard to its affairs and in
connection therewith shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor
may reasonably request for use in connection with the distribution of
Shares, including such reasonable number of copies of its Prospectus and
annual and interim reports as the Distributor may request and shall
cooperate fully in the efforts of the Distributor to sell and arrange for
the sale of the Shares and in the performance of the Distributor under this
Agreement.
4. Conformity with Applicable Law and Rules. The Distributor agrees that in
selling Shares hereunder it shall conform in all respects with the laws of the
United States and of any state in which Shares may be offered, and with
applicable rules and regulations of the NASD.
2
5. Independent Contractor. In performing its duties hereunder, the
Distributor shall be an independent contractor and neither the Distributor, nor
any of its officers, directors, employees, or representatives is or shall be an
employee of the Trust in the performance of the Distributor's duties hereunder.
The Distributor shall be responsible for its own conduct and the employment,
control, and conduct of its agents and employees and for injury to such agents
or employees or to others through its agents or employees. The Distributor
assumes full responsibility for its agents and employees under applicable
statutes and agrees to pay all employee taxes thereunder.
6. Indemnification.
(a) Indemnification of Trust. The Distributor agrees to indemnify and
hold harmless the Trust and each of its present or former Trustees,
officers, employees and representatives and each person, if any, who
controls or previously controlled the Trust within the meaning of Section
l5 of the 1933 Act against any and all losses, liabilities, damages, claims
or expenses (including the reasonable costs of investigating or defending
any alleged loss, liability, damage, claims or expense and reasonable legal
counsel fees incurred in connection therewith) to which the Trust or any
such person may become subject under the 1933 Act, under any other statute,
at common law, or otherwise, arising out of the acquisition of any Shares
by any person which (i) may be based upon any wrongful act by the
Distributor or any of the Distributor's directors, officers, employees or
representatives, or (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration Statement,
Prospectus, shareholder report or other information covering Shares filed
or made public by the Trust or any amendment thereof or supplement thereto,
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading if such statement or omission was made in reliance upon
information furnished to the Trust by the Distributor. In no case (i) is
the Distributor's indemnity in favor of the Trust, or any person
indemnified to be deemed to protect the Trust or such indemnified person
against any liability to which the Trust or such person would otherwise be
subject by reason of willful misfeasance, bad faith, or negligence in the
performance of his duties or by reason of his reckless disregard of his
obligations and duties under this Agreement or (ii) is the Distributor to
be liable under its indemnity agreement contained in this Paragraph with
respect to any claim made against the Trust or any person indemnified
unless the Trust or such person, as the case may be, shall have notified
the Distributor in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the
nature of the claim shall have been served upon the Trust or upon such
person (or after the Trust or such person shall have received notice of
such service on any designated agent). However, failure to notify the
Distributor of any such claim shall not relieve the Distributor from any
liability which the Distributor may have to the Trust or any person against
whom such action is brought otherwise than on account of the Distributor's
indemnity agreement contained in this Paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense, or, if the Distributor so elects, to assume the defense of
any suit brought to enforce any such claim, but, if the Distributor elects
to assume the defense, such defense shall be conducted by legal counsel
chosen by the Distributor and satisfactory to the Trust or to the persons
indemnified pursuant to the foregoing paragraph. In the event that the
Distributor elects to assume the defense of any such suit and retain such
legal counsel, the Trust or the persons indemnified pursuant to the
foregoing paragraph, shall bear the fees and expenses of any additional
legal counsel retained by them. If the Distributor does not elect to assume
the defense of any such suit, the Distributor will reimburse the Trust and
3
the persons indemnified pursuant to the foregoing paragraph for the
reasonable fees and expenses of any legal counsel retained by them. The
Distributor agrees to promptly notify the Trust of the commencement of any
litigation of proceedings against it or any of its officers, employees or
representatives in connection with the issue or sale of any Shares.
(b) Indemnification of the Distributor. The Trust agrees to indemnify
and hold harmless the Distributor and each of its present or former
directors, officers, employees and representatives and each person, if any,
who controls the Distributor within the meaning of Section 15 of the 1933
Act against any and all losses, liabilities, damages, claims or expenses
(including the reasonable costs of investigating or defending any alleged
loss, liability, damage, claim or expense and reasonable legal counsel fees
incurred in connection therewith) to which the Distributor or any such
person may become subject under the 1933 Act, under any other statute, at
common law, or otherwise, arising out of the acquisition of any Shares by
any person which (i) may be based upon any wrongful act by the Trust or any
of the Trust's Trustees, officers, employees or representatives acting in
such capacities, or (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration Statement,
Prospectus, shareholder report or other information covering Shares filed
or made public by the Trust or any amendment thereof or supplement thereto,
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading unless such statement or omission was made in reliance upon
information furnished to the Trust by the Distributor. In no case (i) is
the Trust's indemnity in favor of the Distributor, or any person
indemnified to be deemed to protect the Distributor or such indemnified
person against any liability to which the Distributor or such person would
otherwise be subject by reason of willful misfeasance, bad faith, or
negligence in the performance of his duties or by reason of his reckless
disregard of his obligations and duties under this Agreement, or (ii) is
the Trust to be liable under its indemnity agreement contained in this
Paragraph with respect to any claim made against Distributor, or person
indemnified unless the Distributor, or such person, as the case may be,
shall have notified the Trust in writing of the claim within a reasonable
time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Distributor or upon such person (or after the Distributor or such person
shall have received notice of such service on any designated agent).
However, failure to notify the Trust of any such claim shall not relieve
the Trust from any liability which the Trust may have to the Distributor or
any person against whom such action is brought otherwise than on account of
the Trust's indemnity agreement contained in this Paragraph.
The Trust shall be entitled to participate, at its own expense, in the
defense, or, if the Trust so elects, to assume the defense of any suit
brought to enforce any such claim, but if the Trust elects to assume the
defense, such defense shall be conducted by legal counsel chosen by the
Trust and satisfactory to the Distributor or to the persons indemnified
pursuant to the foregoing paragraph. In the event that the Trust elects to
assume the defense of any such suit and retain such legal counsel, the
Distributor or the persons indemnified pursuant to the foregoing paragraph
shall bear the fees and expenses of any additional legal counsel retained
by them. If the Trust does not elect to assume the defense of any such
suit, the Trust will reimburse the Distributor and the persons indemnified
pursuant to the foregoing paragraph for the reasonable fees and expenses of
any legal counsel retained by them. The Trust agrees to promptly notify the
Distributor of the commencement of any litigation or proceedings against it
or any of its directors, officers, employees or representatives in
connection with the issue or sale of any Shares.
4
7. Authorized Representations. The Distributor is not authorized by the
Trust to give on behalf of the Trust any information or to make any
representations in connection with the sale of Shares other than the information
and representations contained in the Registration Statement or Prospectus or
contained in shareholder reports or other material that may be prepared by or on
behalf of the Trust for the Distributor's use. This shall not be construed to
prevent the Distributor from preparing and distributing tombstone ads and sales
literature or other material as it may deem appropriate. No person other than
the Distributor is authorized to act as principal underwriter (as such term is
defined in the 0000 Xxx) for the Trust.
8. Term of Agreement. The term of this Agreement shall begin on the date
first above written, and unless sooner terminated as hereinafter provided, this
Agreement shall remain in effect for a period of two years. Thereafter, this
Agreement shall continue in effect from year to year, subject to the termination
provisions and all other terms and conditions thereof, so long as such
continuation shall be specifically approved at least annually by the Board of
Trustees or by vote of a majority of the outstanding voting securities of the
Trust and, concurrently with such approval by the Board of Trustees or prior to
such approval by the holders of the outstanding voting securities of the Trust,
as the case may be, by the vote, cast in person at a meeting called for the
purpose of voting on such approval, of a majority of the Trustees of the Trust
who are not parties to this Agreement or interested persons of any such party.
The Distributor shall furnish to the Trust, promptly upon its request, such
information as may reasonably be necessary to evaluate the terms of this
Agreement or any extension, renewal or amendment hereof.
9. Amendment or Assignment of Agreement. This Agreement may not be amended
or assigned except as permitted by the 1940 Act, and this Agreement shall
automatically and immediately terminate in the event of its assignment.
10. Termination of Agreement. This Agreement may be terminated by either
party hereto, without the payment of any penalty, on not more than upon 60 days'
nor less than 30 days' prior notice in writing to the other party; provided,
that in the case of termination by the Trust such action shall have been
authorized by resolution of a majority of the Trustees of the Trust who are not
parties to this Agreement or interested persons of any such party, or by vote of
a majority of the outstanding voting securities of the Trust.
11. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Nothing herein contained shall be deemed
to require the Trust to take any action contrary to its Declaration of Trust or
By-Laws, or any applicable statutory or regulatory requirement to which it is
subject or by which it is bound, or to relieve or deprive the Board of Trustees
of the Trust of responsibility for and control of the conduct of the affairs of
the Trust.
12. Definition of Terms. 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 1940 Act shall be resolved by reference to such term or
provision of the 1940 Act and to interpretations 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 Securities and Exchange Commission
5
validly issued pursuant to the 1940 Act. Specifically, the terms "vote of a
majority of the outstanding voting securities", "interested persons",
"assignment", and "affiliated person", as used in Paragraphs 8, 9 and 10 hereof,
shall have the meanings assigned to them by Section 2(a) of the 1940 Act. In
addition, where the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is modified by a rule, regulation or order of the
Securities and Exchange Commission, whether of special or of general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
13. Compliance with Securities Laws. The Trust represents that it is
registered as an open-end management investment company under the 1940 Act, and
agrees that it will comply with all the provisions of the 1940 Act and of the
rules and regulations thereunder. The Trust and the Distributor each agree to
comply with all of the applicable terms and provisions of the 1940 Act, the 1933
Act and, subject to the provisions of Section 4(d), all applicable "Blue Sky"
laws. The Distributor agrees to comply with all of the applicable terms and
provisions of the 1934 Act.
14. Notices. Any notice required to be given pursuant to this Agreement
shall be deemed duly given if delivered or mailed by registered mail, postage
prepaid, to the Trust at 000 Xxxxx Xxxxxx, Xxx. 0000, Xxxxxxx, XX 00000 or to
the Distributor at Quasar Distributors, LLC, Attn: President, 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000.
15. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Washington.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized representatives and their respective seals to be
hereunto affixed, as of the day and year first above written.
RAINIER INVESTMENT MANAGEMENT
MUTUAL FUNDS
By
-------------------------------------
ATTEST:
---------------------------------
QUASAR DISTRIBUTORS, LLC
By
-------------------------------------
ATTEST:
---------------------------------
