EXHIBIT (E)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of this 28th day of April ,
2004, by and among XXXXXXXX XXXXX FUNDS, INC., a Wisconsin corporation (the
"Corporation"), XXXXXXXX INVESTMENT MANAGEMENT, LLC, a Delaware limited
liability company (the "Advisor") 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 common stock ("Shares") in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Advisor serves as the investment advisor for specified series
of the Corporation as identified on Exhibit A hereto (the "Funds") and are duly
registered under the Investment Advisers Act of 1940, as amended, and any
applicable state securities laws, as an investment advisors; 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) (each series a
"Fund", collectively the "Funds"); 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 Shares of the Funds, 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.
2. SERVICES AND DUTIES OF THE DISTRIBUTOR
A. The Distributor agrees to sell Shares of the Funds on a best
efforts basis as agent for the 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 Funds 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 Funds, the
Distributor will hold itself available to receive orders, satisfactory to the
Distributor, for the purchase of Shares of the Funds 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 Funds. The Distributor agrees to review all proposed
advertisements and sales literature for compliance with applicable laws and
regulations, and shall file with appropriate regulators, those advertisements
and sales literature it believes are in compliance with such laws and
regulations. The Distributor agrees to furnish to the Corporation and the
appropriate Advisor any comments provided by regulators with respect to such
materials and to use its best efforts to obtain the approval of the regulators
to such materials.
F. The Distributor, at its sole discretion, may repurchase Shares
offered for sale by shareholders of the Funds. Repurchase of Shares by the
Distributor shall be at the price determined in accordance with, and in the
manner set forth in, the current Prospectus. At the end of each business day,
the Distributor shall notify, by any appropriate means, the 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
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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 Funds. 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 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 Funds 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-1 payments
received by the Distributor, if any.
J. The services furnished by the Distributor hereunder are not to be
deemed exclusive and the Distributor shall be free to furnish similar services
to others so long as its services under this Agreement are not impaired thereby.
The Corporation recognizes that from time to time, officers and employees of the
Distributor may serve as 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.
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B. The Corporation, or its agent, shall take or cause to be taken,
all necessary action to register Shares of the Funds under the 1933 Act and to
maintain an effective Registration Statement for such Shares in order to permit
the sale of Shares as herein contemplated. The 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:
(i) of any material correspondence or other communication by
the SEC or its staff relating to the Funds, including
requests by the SEC for amendments to the Registration
Statement or Prospectus;
(ii) in the event of the issuance by the SEC of any
stop-order suspending the effectiveness of the
Registration Statement then in effect or the initiation
of any proceeding for that purpose;
(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.
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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.
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.
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 Operating Agreement, 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 Operating Agreement.
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
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of each month. Such fees and expenses shall be paid to Distributor by the
Corporation from Rule 12b-1 fees payable by the appropriate Fund or, if the Fund
does not have a Rule 12b-1 plan, or if Rule 12b-1 fees are not sufficient to pay
such fees and expenses, or if the Rule 12b-1 plan is discontinued, or if the
Advisor otherwise determines that Rule 12b-1 fees shall not, in whole or in
part, be used to pay Distributor, the Advisor shall be responsible for the
payment of the amount of such fees and expenses attributable or allocated to a
Fund and not covered by Rule 12b-1 payments as more fully described in Exhibit B
hereto.
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 its Funds, including but not limited to: (i) fees and disbursements of its
counsel and independent public accountants; (ii) costs and expenses of the
preparation, filing, printing and mailing of Registration Statements and
Prospectuses and amendments thereto, as well as related advertising and sales
literature; (iii) costs and expenses of the preparation, printing and mailing of
annual and interim reports, proxy materials and other communications to
shareholders of the Funds; and (iv) fees required in connection with the offer
and sale of Shares in 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) (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
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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 against the Corporation or any of its officers in connection with
the issue and sale of any of the Shares.
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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 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 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
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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 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 Corporation's benefit, to the benefit of each of its
present or former 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 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
officers or shareholders of the Corporation individually, but are binding only
upon the Corporation and with respect to the Funds 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 latter shall
control, and nothing herein shall be construed in a manner inconsistent with the
1940 Act or any rule or order of the SEC thereunder.
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.
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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,
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 an
individual Advisor or the Advisors, the written instrument shall also be signed
by the appropriate 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 Advisors if an
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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 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:
Xxxxxxxx Xxxxx Funds, Inc.
Attn: President
1200 Xxxx X. Xxxxxxx Xxxxx
Xxxxxxx XX 00000
and notice to the Advisor shall be sent to:
Xxxxxxxx Investment Management, LLC
Attn: President
1200 Xxxx X. Xxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxx XX 00000
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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.
QUASAR DISTRIBUTORS, LLC
By:____________________________
Xxxxx Xxxxxxxxx, President
XXXXXXXX INVESTMENT
MANAGEMENT, LLC
By:____________________________
Xxxx X. Xxxxxxxx, President
XXXXXXXX PLUMB FUNDS, INC.
By:____________________________
Xxxx X. Xxxxxxxx, Chief
Executive Officer
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EXHIBIT A
TO THE
DISTRIBUTION AGREEMENT
FUND NAMES
SEPARATE SERIES OF XXXXXXXX PLUMB FUNDS, INC.
Name of Series
Xxxxxxxx Xxxxx Growth Fund
Xxxxxxxx Plumb Bond Fund
EXHIBIT B
TO THE
DISTRIBUTION AGREEMENT
FEE SCHEDULE
BASIC DISTRIBUTION SERVICES
Minimum annual fee: $45,000, payable monthly in arrears. Such annual fee shall
be allocated among the Funds based on a ratio of net asset value of each Fund at
the end of each month. Xxxxxxxx Investment Management LLC, will be responsible
for each Fund's Basic Distribution Expenses based on month-end net asset value
for so long as it continues to serve as advisor to a series of the Corporation.
Market Value Fee at the annual rate of .0025 of 1% (one quarter of one basis
point) of the Fund's (effective for assets over $750 million, cumulative for all
series of Xxxxxxxx Plumb Funds, Inc. subject to this Agreement), average daily
net assets, payable monthly in arrears. Xxxxxxxx Investment Management LLC, will
be responsible for Market Value fees of the Funds they advise based on month-end
net asset value of each series of the Corporation for so long as it continues to
serve as advisor to the Funds
ADVERTISING COMPLIANCE REVIEW/NASD FILINGS
The Advisor will be responsible for fees associated with the submission of
advertising and sales literature to Distributor and be responsible for
cooperating with Distributor in fulfilling its compliance responsibilities.
$150 per job for the first 10 pages (minutes if tape or video); $20 per page
(minutes if tape or video) thereafter.
NON-NASD FILED MATERIALS, E.G. INTERNAL USE ONLY MATERIALS:
$75 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:
$1000 for the first 10 pages (minutes if audio or video) $25 per page (minutes
if audio or video) thereafter. (Comments are faxed. NASD may not accept
expedited request.)
LICENSING OF INVESTMENT ADVISOR'S STAFF (IF DESIRED)
Each Advisor will be responsible for fees associated with registration of its
own staff
$900 per year per representative
Quasar is limited to these licenses for sponsorship: 6 7 24 26 27 63 66 63/65
All associated NASD and State fees for Registered Representatives, including
license and renewal fees.
OUT-OF-POCKET EXPENSES
Reasonable 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 fees
(NASD advertising filing fees are included in Advertising Compliance
Review section above)
record retention
travel, lodging and meals
ALL FEES XXXX MONTHLY
