EXHIBIT (e)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of this 25th day of November
2003, by and among KIRR XXXXXXX PARTNERS FUNDS, INC., a Maryland corporation
(the "Corporation") and QUASAR DISTRIBUTORS, LLC, a Delaware limited liability
company (the "Distributor").
WHEREAS, the Corporation is registered under the Investment Company Act
of 1940, as amended (the "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; and
WHEREAS, the Corporation desires to retain the Distributor as principal
underwriter in connection with the offering and sale of the Shares of each
series listed on Exhibit A hereto (as amended from time to time) (the "Fund");
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 of
the National Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, this Agreement has been approved by a vote of the
Corporation's board of directors ("Board of Directors" or the "Board") and its
disinterested directors in conformity with Section 15(c) of the 1940 Act; and
WHEREAS, the Distributor is willing to act as principal underwriter for
the Corporation 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 QUASAR AS THE DISTRIBUTOR
The Corporation hereby appoints the Distributor as its agent for the
sale and distribution of Shales of the Fund, on the terms and conditions set
forth in this Agreement, and the Distributor hereby accepts such appointment and
agrees to perform the services and duties set forth in this Agreement.
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2. SERVICES AND DUTIES OF THE DISTRIBUTOR
A. The Distributor agrees to sell Shares of the Fund on a best efforts
basis as agent for the Corporation 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 Fund and included in the currently
effective registration statement or post-effective amendment thereto (the
"Registration Statement") of the Corporation under the Securities Act of 1933
(the "1933 Act") and the 0000 Xxx.
B. During the continuous public offering of Shares of the Fund, the
Distributor will hold itself available to receive orders, satisfactory to the
Distributor, for the purchase of Shares of the Fund and will accept such orders
on behalf of the Corporation. 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
Corporation'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 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 Corporation and the Distributor.
E. The Distributor agrees to cooperate with the Corporation or its
agent in the development of all proposed advertisements and sales literature
relating to the Fund. 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 Corporation 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 Fund. 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 Corporation 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 Corporation
reserves the right to suspend such repurchase right upon written notice to the
Distributor. The Distributor further agrees to act as agent for the Corporation
to receive and transmit promptly to the Corporation's transfer agent,
shareholder requests for redemption of 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 Fund. The form of any dealer
agreement shall be mutually agreed upon and approved by the Corporation and the
Distributor. The Distributor may pay a portion of any applicable sales charge,
or allow a
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discount to a selling broker-dealer, as described in the Prospectus or, if not
so 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
(7) 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 Fund but shall not be obligated to sell any certain number of
Shares.
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-l 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 Corporation recognizes that from time to time, officers and.employees of the
Distributor may serve as directors, directors, 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 CORPORATION
A. The Corporation represents that it is duly organized and in good
standing under the law of its jurisdiction of organization and is registered as
an open-end management investment company under the 1940 Act. The Corporation
agrees that it will act in material conformity with its Articles of
Incorporation, its By-Laws, its Registration Statement, as may be amended from
time to time, and the resolutions and other instructions of its Board. The
Corporation 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
Corporation represents and warrants that this Agreement has been duly authorized
by all necessary action by the Corporation under the 1940 Act, state law and the
Corporation's Articles of Incorporation and By-Laws.
B. The Corporation, or its agent, shall take or cause to be taken, all
necessary action to register Shares of the Fund 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 Corporation 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 Corporation 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 Corporation 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 as permitted by the 1940 Act or the rules of
the Securities and Exchange Commission ("SEC"), including any and all applicable
interpretation of such by the staff of the SEC. The Corporation shall advise the
Distributor promptly of any such determination.
D. The Corporation agrees to advise the Distributor promptly in
writing:
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(i) of any material correspondence or other communication by
the SEC or its staff relating to the Fund, 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;
(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 Corporation shall file such reports and other documents as may
be required under applicable federal and state laws and regulations. The
Corporation 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 Corporation 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 Corporation 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 Corporation 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 Corporation 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 Corporation shall forward a copy of any SEC
filings, including the Registration Statement, to the Distributor within one
business day of any such filings. The Corporation 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,
Nothing in this Agreement shall require the sharing or provision of materials
protected by privilege or limitation of disclosure, including any applicable
attorney-client privilege or trade secret materials.
H. The Corporation represents and warrants that its Registration
Statement and any advertisements and sales literature prepared by the
Corporation or its agent (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.
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4. DUTIES AND REPRESENTATIONS OF THE DISTRIBUTOR
A. The Distributor represents that it is duly organized and in good
standing under the law of its jurisdiction of organization, is registered as a
broker-dealer under the 1934 Act and is a member in good standing of the NASD.
The Distributor agrees that it will act in material conformity with its Articles
of Organization and its By-Laws, as may be amended from time to time. The
Distributor agrees to comply in all material respects with the 1933 Act, the
1934 Act, the 1940 Act, and all other applicable federal and state laws and
regulations. The Distributor represents and warrants that this Agreement has
been duly authorized by all necessary action by the Distributor under the
Distributor's Articles of Organization and By-Laws.
B. The Distributor agrees to advise the Company promptly in writing of
the initiation of any proceedings against it by the SEC or its staff, the NASD
or any state regulatory authority.
5. COMPENSATION
As compensation for the services performed and the expenses assumed by
Distributor under this Agreement including, but not limited to, any commissions
paid for sales of Shares, Distributor shall be entitled to the fees and expenses
set forth in Exhibit B hereto (as amended from time to time), which are payable
promptly after the last day of each month. Such fees and expenses shall be paid
to Distributor by the Corporation from Rule 12b-l fees payable by the Fund.
6. EXPENSES
A. The Corporation or the Fund shall bear all costs and expenses in
connection with the registration of its Shares with the SEC and its 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 the Fund, 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 Fund; and (iv) fees required in connection with the offer
and sale of Shares in such jurisdictions as shall be selected by the Corporation
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.
7. INDEMNIFICATION
A. The Corporation 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 fees incurred in
connection therewith)
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(collectively, "Losses") that 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 advertisements or sales literature
prepared by the Corporation or its agent, 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, or
based upon the Corporation's failure to comply with the terms of this Agreement
or applicable law; provided, however, that the Corporation's obligation to
indemnify the Distributor and any of the foregoing indemnitees shall not be
deemed to cover any Losses 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 Corporation 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 Corporation'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 Corporation being
notified of such action or claim of loss 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 Corporation. Such notification shall be given
by letter or by telegram addressed to the Corporation's President, but the
failure so to notify the Corporation of any such action shall not relieve the
Corporation from any liability which the Corporation 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 Corporation's indemnity agreement contained in this Section 7(A).
B. The Corporation 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 Losses, but if the Corporation elects to assume the defense,
such defense shall be conducted by counsel chosen by the Corporation and
approved by the Distributor, which approval shall not be unreasonably withheld.
In the event the Corporation elects to assume the defense of any such suit and
retain such counsel, the indemnified defendant or defendants in such suit shall
bear the reasonable fees and expenses of any additional counsel retained by
them. If the Corporation 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 Corporation, or if under prevailing law or
legal codes of ethics, the same counsel cannot effectively represent the
interests of both the Corporation and the Distributor, and each, of its present
or former members, officers, employees, representatives or any controlling
person, the Corporation will reimburse the indemnified person or persons named
as defendant or defendants in such suit, for the reasonable fees and expenses of
any counsel retained by Distributor and them. The Corporation's indemnification
agreement contained in Sections 7(A) and 7(B) herein 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 Corporation agrees
promptly to notify the Distributor of the commencement of any litigation or
proceedings
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against the Corporation or any of its officers or directors in connection with
the issue and sale of any of the Shares.
C. The Corporation shall advance attorneys' 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 7 to the
maximum extent permissible under applicable law.
D. The Distributor shall indemnify, defend and hold the Corporation and
each of its present or former directors, officers, employees, representatives
and any person who controls or previously controlled the Corporation within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all Losses that the Corporation, each of its present or former directors,
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 Corporation's Registration Statement or any Prospectus, as from
time to time amended or supplemented, or arising out of or based upon
Distributor's failure to comply with the terms of this Agreement or applicable
law, or 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 Corporation or its counsel by the Distributor for the purpose of, and
used in, the preparation thereof. The Distributor's agreement to indemnify the
Corporation, and any of the foregoing indemnitees, is expressly conditioned upon
the Distributor being notified of any action or claim of loss brought against
the Corporation, 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
Corporation 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 7(D).
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 Corporation, 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 Corporation does not, in the
exercise of reasonable judgment, approve of counsel chosen by the Distributor,
or reasonable fees and expenses of any if under prevailing law or legal codes of
ethics, the same counsel cannot effectively represent the interests of both the
Corporation 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 counsel retained by the Corporation and them.
The Distributor's indemnification agreement contained in Sections 7(D) and 7(E)
herein shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Corporation, and each of its present
or former directors, officers, employees, representatives or any controlling
person, and shall survive the delivery of any
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Shares and the termination of this Agreement. This Agreement of indemnity will
inure exclusively to the Corporation'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 Corporation 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 7 to the maximum
extent so permissible. The provisions of this Section 7 shall survive the
termination of this Agreement.
8. OBLIGATIONS OF THE CORPORATION
This Agreement is executed by and on behalf of the Corporation and the
obligations of the Corporation hereunder are not binding upon any of the
directors, officers or shareholders of the Corporation individually, but are
binding only upon the Corporation and with respect to the Fund to which such
obligations pertain.
9. 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 letter
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.
10. DURATION AND TERMINATION
A. This Agreement shall become effective with respect to each Fund
listed on Exhibit 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 Exhibit A to this
Agreement relating to that Fund is executed. Unless sooner terminated as
provided herein, this Agreement shall continue in effect for two (2) years from
the date hereof. Thereafter, if not terminated, this Agreement shall continue in
effect automatically as to each Fund for successive one-year periods, provided
such continuance is specifically approved at least annually by: (i) the
Corporation'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 Corporation's Board who are not "interested
persons" of any party to this Agreement, by a 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 sixty (60) days' written
notice, by either the Corporation upon the vote of a majority of the members of
its Board who, are not "interested persons" of the Corporation 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,
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amended or supplemented in any manner whatsoever except by a written instrument
signed by the Distributor and the Corporation. If required under the 1940 Act,
any such amendment must be approved by the Corporation's Board, including a
majority of the Corporation's Board who are not "interested persons" of any
party to this Agreement, by a vote cast in person at a meeting for the purpose
of voting on such amendment. In the event that such amendment affects the
Advisor, the written instrument shall also be signed by the Advisor. This
Agreement will automatically terminate in the event of its assignment.
C. Sections 7, 9, 11 and 12 shall survive termination of this
Agreement.
11. CONFIDENTIALITY
The Distributor agrees on behalf of its employees to treat all records
relative to the Corporation and prior, present or potential shareholders of the
Corporation 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 Corporation,
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 Corporation. Records and information that 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,
In accordance with Regulation S-P, the Distributor will not disclose
any non-public personal information, as defined in Regulation S-P, received from
the Corporation or any Fund regarding any Fund shareholder; provided, however,
that the Distributor may disclose such information to any party as necessary in
the ordinary course of business to carry out the purposes for which such
information was disclosed to the Distributor, or as may be required by law. The
Distributor agrees to use reasonable precautions to protect and prevent the
unintentional disclosure of such non-public personal information.
12. ANTI-MONEY LAUNDERING PROGRAM
The Distributor represents and warrants that it; (i) has adopted an
anti-money laundering compliance program ("AML Program") that satisfies the
requirements of all applicable laws and regulations; (ii) undertakes to carry
out its AML Program to the best of its ability; and (iii) will promptly notify
the Corporation and the Advisor if an inspection by the appropriate regulatory
authorities of its AML Program identifies any material deficiency, and (vi) will
promptly remedy, any material deficiency of which it learns.
13. 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
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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.
14. NOTICES
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 three (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 as set forth below:
Notice to the Distributor shall be sent to:
Quasar Distributors, LLC
ATTN: President
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
notice to the Corporation shall be sent to:
KIRR XXXXXXX PARTNERS FUNDS, INC
ATTN: XXXXXX XXX
X.X. XXX 0000
XXXXXXXX, XX 00000
and notice to the Advisor shall be sent to:
KIRR XXXXXXX AND COMPANY, LLC
ATTN: XXXXXX XXX
X.X. XXX 0000
XXXXXXXX, XX 00000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
KIRR XXXXXXX PARTNERS FUNDS, INC
By: -s- XXXXXX XXX
---------------------------------------------------
XXXXXX XXX, VICE-PRESIDENT, TREASURER AND SECRETARY
QUASAR DISTRIBUTORS, LLC
By: -s- Xxxxx Xxxxxxxxx
---------------------------------------------------
Xxxxx Xxxxxxxxx, President
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EXHIBIT A
TO THE
DISTRIBUTION AGREEMENT
FUND NAMES
SEPARATE SERIES OF KIRR XXXXXXX PARTNERS FUNDS, INC.
Name of Series Date Added
Kirr Xxxxxxx Partners Value __________
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[U.S. BANCORP. FUND SERVICES LOGO]
QUASAR DISTRIBUTORS, LLC
REGULATORY DISTRIBUTION SERVICES
ANNUAL FEE SCHEDULE
BASIC DISTRIBUTION SERVICES*
- Fee at the annual rate of .01 of 1% (one basis point) of the Fund's average
dally net assets, payable monthly in arrears
- Minimum annual fee: first class or series -- $15,000; each additional class
or series -- $3,000
ADVERTISING COMPLIANCE REVIEW/NASD FILINGS
- $150 per job for the first 10 pages (minutes if tape or video); $20 per page
(minute if tape or video) thereafter
- NON-NASD FILED MATERIALS, E.G. INTERNAL USE ONLY MATERIALS
$100 per job for the first 10 pages (minutes if tape or video); $20 per page
(minutes if tape or video) thereafter.
- NASD EXPEDITED SERVICE FOR 3 DAY TURNAROUND
$1,000 for the first 10 pages (minutes if audio or video); $25 per page
(minute if audio or video) thereafter. (Comments are faxed. NASD may not
accept expedited request.)
LICENSING OF INVESTMENT ADVISOR'S STAFF (IF DESIRED) AS BROKER-DEALER
REPRESENTATIVES
- $900 per year per registered representative ("RR"), for 3 individuals or
less. $2,000 annual fee per RR, for 4 or more RRs
- Quasar is limited to these licenses for sponsorship: Series, 6, 7, 24, 26,
27, 63, 66, 63/65
- Plus all associated NASD and State fees for RRs, including license and
renewal fees.
OUT-OF-POCKET EXPENSES (IF APPLICABLE)*
Seasonable out-of-pocket expenses incurred by the Distributor in connection with
activities primarily intended to result in the sale of Shares, including,
without limitation:
- typesetting, printing and distribution of Prospectuses and shareholder
reports
- production, printing, distribution and placement of advertising and sales
literature and materials
- engagement of designers, free-xxxxx writers and public relations firms
- long-distance telephone lines, services and charges
- postage
- overnight delivery charges
- NASD registration and filing fees
- record retention
- travel lodging and meals
Fees are billed monthly.
- Upon prior approval of the Corporation
EXHIBIT B
U.S. BANCORP FUND SERVICES, LLC
(CONFIDENTIAL - PRICING VALID FOR 45 DAYS)
12
AGREEMENT
THIS AGREEMENT IS MADE AS OF November 25, 2003, between Kirr. Xxxxxxx &
Company, LLC (the "Adviser"), a limited liability company organized and existing
under the laws of the State of Indiana, and Quasar Distributors, LLC, a Delaware
limited liability company ("Quasar").
WHEREAS, Quasar has agreed to act as principal underwriter to the Kirr,
Xxxxxxx Partners Funds, Inc. (the "Fund") pursuant to a distribution agreement
dated November 25, 2003 ("Distribution Agreement"); and
WHEREAS, the Adviser serves as the investment adviser to the Fund and
recognizes benefits from Quasar's distribution efforts by virtue of the
maintenance or increase in Fund assets; and
WHEREAS, the Distribution Agreement limits the fees the Fund may pay
Quasar to the amounts authorized under the Fund's Distribution Plan pursuant to
Rule 12b-l under the Investment Company Act of 1940, as amended ("Rule 12b-l
Plan");
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
To the extent fees and expenses incurred by Quasar, in connection with
its performance under the Distribution Agreement exceed the permissible payments
authorized under the Fund's Rule 12b-l Plan, the Adviser shall promptly remit
payment to Quasar for such difference.
The Adviser agrees to indemnify, defend, and hold Quasar, its officers
and directors, and any person who controls Quasar within the meaning of Section
15 of the Securities Act of 1933, free and harmless from those indemnifiable
acts described in Section 7 of the Distribution Agreement, arising out of or
based upon any action of a registered representative employed by the Adviser,
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly designated officers, in one or more counterparts, as of
the day and year first written.
KIRR, XXXXXXX & COMPANY, LLC
By: -s- XXXXXX XXX
------------------------------
Its: MANAGING DIRECTOR
QUASAR DISTRIBUTIONS, LLC
By: -s- XXXXX XXXXXXXXX
------------------------------
Its: PRESIDENT
