DISTRIBUTION AGREEMENT BETWEEN ASSETMARK FUNDS AND CAPITAL BROKERAGE CORPORATION
BETWEEN
AND
CAPITAL
BROKERAGE CORPORATION
THIS
AGREEMENT entered into the ____ day of _____________, 2008, by and between
ASSETMARK FUNDS, a Delaware statutory trust with an office located at 0000
Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, XX 00000-0000 (the “Trust”),
on behalf of each of its separate series of shares (each a “Fund” and
collectively, the “Funds”) as set forth on Appendix A hereto, as amended from
time to time, and CAPITAL BROKERAGE CORPORATION, a Washington corporation, and a
registered broker-dealer and member of FINRA, with its principal office located
at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx 0, Xxxxxxxx, Xxxxxxxx 00000 (the
“Distributor”).
W I T N E
S S E T H:
In
consideration of the mutual covenants and agreements of the parties hereto, the
parties mutually covenant and agree with each other as follows:
1. The
Trust, on behalf the Funds, hereby appoints the Distributor as agent of the
Funds to effect the sale and public distribution of shares of the capital stock
of each of the Funds. The distribution of shares of each of the Funds
to the public shall be effected by the Distributor, through various eligible
financial institutions and other financial institutions which are permitted by
law to offer and sell shares of the Funds to the public, either individuals or
organizations, (“eligible financial institutions”), pursuant to agreements which
provide that any such eligible financial institution shall indemnify and hold
harmless, the Funds so that in no event shall the Funds have any responsibility
or liability to any person whatsoever on account of the acts and statements of
any such eligible financial institution. The Distributor shall have
the right to select the eligible financial institutions to whom shares will be
offered by it and, subject to express provisions of this Agreement, applicable
securities laws, the Trust’s Agreement and Declaration of Trust and By-Laws and
the then current prospectus(es) of the Funds, to determine the terms and prices
in any contract for the sale of shares to any eligible financial institution
made by it as such agent for each of the Funds.
2. The
Distributor shall be the principal underwriter and agent for each of the Funds
for the sale of its shares and the Funds agree that they will not sell any
shares to any person except to fill orders for the shares received through the
Distributor. The foregoing exclusive right shall not apply: (a) to
shares issued or sold in connection with the merger or consolidation of any
other investment company with a Fund or the acquisition by purchase or otherwise
of all or substantially all the assets of any investment company or
substantially all the outstanding shares of any such company by a Fund; (b) to
shares which may be offered by a Fund to its shareholders for reinvestment of
cash distributed from capital gains or net investment income of a Fund; (c) to
shares which may be issued to shareholders of other funds who exercise any
exchange privilege set forth in the Funds’ prospectus(es) or (d) to the sale of
shares to any person in a transaction which is exempt from registration under
the Securities Act of 1933 (the “1933 Act”).
3. The
Distributor shall have the right to sell the shares of beneficial interest of
each of the Funds to eligible financial institutions, as needed (making
reasonable allowance for clerical errors and errors of transmission), but not
more than the shares needed to fill unconditional orders for shares placed with
the Distributor by eligible financial institutions. In every case the
Distributor shall charge the public offering price and the Funds shall receive
the net asset value for the shares sold, determined as provided in paragraph 4
hereof. The Distributor shall notify the Funds, or their designated
service providers, at the close of each business day (normally 5:00 p.m.,
Eastern Standard time), of the number of shares sold during each
day. Notwithstanding the foregoing, the Funds may sell their shares
to certain affiliated persons at net asset value, if and to the extent described
in the respective prospectus(es).
4. The
public offering price consists of the net asset value per share, unless
otherwise stated in the Funds’ currently effective
prospectus(es). The net asset value of shares of each of the Funds
shall be determined by the Funds or such other persons as the Board of Trustees
of the Trust may designate. The determination shall be made once a
day on which the New York Stock Exchange is open for a full business day and in
accordance with the method set out in the By-Laws of the Trust and the current
prospectus(es) of the Funds.
5. The
Distributor agrees that it will not sell any shares of a Fund to any officer,
Trustee, or partner of either the Distributor or the Trust or any firm or
corporation which may be employed by the Funds or by the Distributor except for
investment purposes only where the purchaser agrees not to resell the securities
to anyone except that Fund. The Distributor further agrees that it
will promptly advise the secretary of the Trust of all sales of shares of the
Funds to, or purchase of shares of the Funds from, any such person.
6. The
Distributor agrees that it will not for its own account purchase any shares of a
Fund except for investment purposes and that it will not for its own account
sell any such shares and any shares resulting from the reinvestment of dividends
paid on those shares, and the Distributor will not sell other shares except by
redemption of such shares by a Fund.
7. (a) On
behalf of the Funds, the Trust appoints and designates the Distributor as agent
of the Funds and the Distributor accepts such appointment as such agent, to
repurchase shares of each of the Funds in accordance with the provisions of the
Agreement and Declaration of Trust and By-Laws of the Trust.
(b) In
connection with such redemptions or repurchases, the Trust authorizes and
designates the Distributor to take any action, to make any adjustments in net
asset value, and to make any arrangements for the payment of the redemption or
repurchase price authorized or permitted to be taken or made in accordance with
the Investment Company Act of 1940, as amended (the “1940 Act”), and as set
forth in the Trust’s By-Laws and the then current prospectus(es) of the
Funds.
(c) The
authority of the Distributor under this paragraph 7 may, with the consent of the
Trust, be delegated by the Trust or redelegated by the Distributor, in whole or
in part to another person or firm, so long as such delegation by the Distributor
is approved by the Trust.
(d) The
authority granted in this paragraph 7 may be suspended by the Trust at any time
or from time to time pursuant to the provisions of its Agreement and Declaration
of Trust and By-Laws until further notice to the Distributor. The
President or any Vice President of the Trust shall have the power granted by
said provisions. After any such suspension the authority granted to
the Distributor by this paragraph 7 shall be reinstated only by a written
instrument executed on behalf of the Funds by the Trust’s President or any Vice
President.
8. The
Funds agree that they will cooperate with the Distributor to prepare, execute
and file applications for registration and qualification of its shares for sale
under the laws of the United States and the provisions and regulations of the
U.S. Securities and Exchange Commission and under the Securities Acts of such
States and in such amounts as each of the Funds may determine,
and shall pay registration fees in connection therewith. The
Distributor shall bear all expenses incident to the sale of shares of the Funds,
including without limitation, the cost of any sales material or literature, the
cost of copies of the prospectus(es) used as sales material (except those being
sent to existing shareholders) and the cost of any reports or proxy material
originally prepared for the Funds’ shareholders, to the extent that such
material is used in connection with the sale of shares of the
Funds.
9. For
its services under this Agreement, the Distributor shall be entitled to receive
a selling commission, and/or fees pursuant to any Distribution Plans pursuant to
Rule 12b-1 which may from time to time be in effect with respect to one or more
Funds, as may be stated in the Funds’ currently effective
prospectus(es). The Distributor may make payments to others from such
amounts in accordance with any selling agreement, or agreement pursuant to such
Distribution Plan, then in effect.
10. Notwithstanding
anything contained herein to the contrary, shares of each of the Funds may be
offered for sale at a price other than their current public offering price, if
such reduction or elimination is authorized by an order of the Securities and
Exchange Commission, or the Investment Company Act of 1940 or the rules and
regulations promulgated thereunder provide for such
variation. Furthermore, such shares may be offered and sold directly
by the Funds rather than by the Distributor as otherwise provided in this
Agreement.
11. This
Agreement shall become effective as of the above-written date, and shall
continue in effect for a period of more than one year from its effective date
only as long as such continuance is approved, at least annually, by the Board of
Trustees of the Trust, including a majority of those Trustees who are not
“interested persons” of any party to this Agreement voting in person at a
meeting called for the purpose of voting on such approval.
12. No
amendment to this Agreement shall be executed or become effective unless its
terms have been approved (a) by a majority of the Trustees of the Trust or by
the vote of a “majority of the outstanding voting securities” of each of the
Funds, and (b) by a majority of those Trustees who are not “interested persons”
of the Funds or of any party to this Agreement.
13. The
Trust, on behalf of the Funds, and the Distributor hereby each agree that all
literature and publicity issued by either of them referring directly or
indirectly to the Funds or to the Distributor shall be submitted to and receive
the approval of the Funds and the Distributor before the same may be used by
either party.
14. The
Distributor agrees to use its best efforts in effecting the sale and public
distribution of the shares of each of the Funds through eligible financial
institutions and to perform its duties in redeeming and repurchasing the shares
of each of the Funds, but nothing contained in this Agreement shall make the
Distributor or any of its officers and directors or shareholders liable for any
loss sustained by any of the Funds or any of the Trust’s officers, Trustees or
shareholders, or by any other person on account of any act done which is
required by this Agreement, or which is directed by the Trust provided that
nothing herein contained shall protect the Distributor against any liability to
the Funds or to any of their shareholders to which the Distributor would
otherwise be subject by reason of willful misfeasance, bad faith, or negligence
in the performance of its duties as Distributor or by reason of its reckless
disregard of its obligations or duties as Distributor under this
Agreement. Nothing in this Agreement shall protect the Distributor
from any liabilities which it may have under the 1933 Act or the 1940
Act.
15. As
used in this Agreement the terms “interested persons,” “assignment” and
“majority of the outstanding voting securities” shall have the respective
meanings specified in the 1940 Act.
16. This
Agreement may be terminated at any time, without the payment of any penalty
by: (1) the vote of a majority of the Trustees of the Trust on not
less than 30 days nor more than 60 days written notice to the Distributor, or
(2) by the Distributor at any time without the payment of any penalty, on not
less than 30 days nor more than 60 days written notice to the Trust or (3) by
any party hereto immediately upon written notice to the other parties in the
event of a breach of any provision of this Agreement by any of the
parties.
This
Agreement shall not be assigned and shall terminate automatically in the event
of its assignment or upon the termination of the Investment Advisory
Agreement.
This
Agreement shall extend to and bind the heirs, executors, administrators and
successors of the parties hereto.
17. Subject
to the duties of the parties to comply with applicable law, including any demand
of any regulatory or taxing authority having jurisdiction, the parties hereto
shall treat as confidential all information pertaining to a Fund and the actions
of the Distributor, the Trust and a Fund in respect
thereof. In accordance with Section 248.11 of Regulation S-P (17 CFR 248.1-248.30), the Distributor will not directly, or indirectly through an affiliate, disclose any non-public personal information, except as permitted or required by law, as defined in Reg. S-P, received from the Trust, regarding any shareholder, to any person that is not affiliated with the Trust, provided that, any such information disclosed to an affiliate of the Distributor shall be under the same limitations on non-disclosure.
18. Any
notice, advice or report to be given pursuant to this Agreement shall be deemed
sufficient if delivered or mailed by registered, certified or overnight mail,
postage prepaid addressed to the Trust at 0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000,
Xxxxxxxx Xxxx, XX 00000-0000 or the Distributor at 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx 0, Xxxxxxxx, XX 00000.
19. This
Agreement shall be governed by the internal laws of the State of California,
without regard to conflict of law principles; provided, however that nothing
herein shall be construed as being inconsistent with the 1940
Act. Where the effect of a requirement of the 1940 Act reflected in
any provision of this Agreement is altered by a rule, regulation or order of the
SEC, whether of special or general application, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
20. This
Agreement embodies the entire agreement and understanding between the parties
hereto, and supersedes all prior agreements and understandings relating to this
Agreement's subject matter. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
such counterparts shall, together, constitute only one instrument.
21. If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
IN
WITNESS WHEREOF, ASSETMARK FUNDS, on behalf of each of its separate series of
shares as set forth in Appendix A, and CAPITAL BROKERAGE CORPORATION, have
caused this Agreement to be signed by their duly authorized officers and their
corporate seals to be hereunto duly affixed all on the day and year above
written.
date set
forth above.
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CAPITAL
BROKERAGE CORPORATION
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APPENDIX
A
AssetMark
Large Cap Growth Fund
AssetMark
Large Cap Value Fund
AssetMark
Small/Mid Cap Growth Fund
AssetMark
Small/Mid Cap Value Fund
AssetMark
International Equity Fund
AssetMark
Real Estate Securities Fund
AssetMark
Tax-Exempt Fixed Income Fund
AssetMark
Core Plus Fixed Income Fund
AssetMark
Enhanced Fundamental Index™ Large Company Growth Fund
AssetMark
Enhanced Fundamental Index™ Large Company Value Fund
AssetMark
Enhanced Fundamental Index™ Small Company Growth Fund
AssetMark
Enhanced Fundamental Index™ Small Company Value Fund
AssetMark
Enhanced Fundamental Index™ International Equity Fund
