UNDERWRITING AGREEMENT
This
Agreement made as of __________ by and between MMA Praxis Funds (the
“Trust”), a Delaware statutory trust and an open-end registered investment
company, and BHIL Distributors,
Inc., an Ohio corporation (“Underwriter”).
WHEREAS, the Trust is an open-end
management investment company registered under the Investment Company Act of
1940, as amended (the “Act”); and
WHEREAS, Underwriter is a broker-dealer
registered with the Securities and Exchange Commission and a member of the
Financial Industry Regulatory Authority (“FINRA”); and
WHEREAS, the Trust and Underwriter are
desirous of entering into an agreement providing for the distribution by
Underwriter of shares of beneficial interest (the “Shares”) of each series of
the Trust (the “Series”);
NOW, THEREFORE, in consideration of the
promises and agreements of the parties contained herein, the parties agree as
follows:
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1.
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Appointment.
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(a) The
Trust appoints Underwriter as its exclusive agent for the distribution of
Shares, and Underwriter hereby accepts such appointment under the terms of this
Agreement. While this Agreement is in force, the Trust shall not sell
any Shares except on the terms set forth in this
Agreement. Notwithstanding any other provision hereof, the Trust may
terminate, suspend or withdraw the offering of Shares whenever, in its sole
discretion, it deems such action to be desirable. Upon notice of such
termination, suspension or withdrawal, the Underwriter shall cease to offer
Shares.
(b) Underwriter
may engage in such activities as both parties deem appropriate in connection
with the promotion and sale of Shares, which shall be listed on Schedule A
attached hereto, which may be amended from time to time. Underwriter
shall have no obligation to make any payments to any third parties, whether as
financing of commissions, sales concessions or similar payments; finder’s fees;
compensation; or otherwise, unless: (i) Underwriter has received a corresponding
payment from the Trust as described in Section 7 of this Agreement, from the
Trust’s investment adviser or from another source as may be permitted by
applicable law, and (ii) such corresponding payment has been approved by the
Trust’s Board of Trustees.
(c) In
its capacity as distributor of Shares, all activities of the Underwriter and its
officers, agents, and employees shall comply with all applicable laws, rules and
regulations, including, without limitation, the Investment Company Act of 1940,
all applicable rules and regulations promulgated by the Securities and Exchange
Commission thereunder, and all applicable rules and regulations adopted by any
securities association registered under the Securities Exchange Act of
1934. During the term of this Agreement, Underwriter shall maintain
its legal status as a distributor and shall comply with applicable laws, rules
and regulations, including those of the FINRA applicable to
it. Underwriter shall review written advertisements and sales
literature for compliance with FINRA requirements.
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2.
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Sale and Repurchase of
Shares.
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(a) Underwriter
will have the right, as agent for the Trust, to enter into dealer agreements
with responsible investment dealers, and to sell Shares to such investment
dealers against orders therefore at the public offering price (as defined in
subparagraph 2(d) hereof) stated in the Trust’s effective Registration Statement
on Form N-1A under the Securities Act of 1933, as amended, including the
then-current prospectus and statement of additional information (the
“Registration Statement”). Upon receipt of an order to purchase
Shares from a dealer with whom Underwriter has a dealer agreement, Underwriter
will promptly cause such order to be filled by the Trust.
(b) Underwriter
will also have the right, as an agent for the Trust, to sell such Shares to the
public against orders thereof at the public offering price.
(c) Underwriter
will also have the right to take, as agent for the Trust, all actions which, in
Underwriter’s judgment, are necessary to carry into effect the distribution of
Shares.
(d) The
public offering price for Shares of each Series shall be the respective net
asset value of Shares of that Series then in effect, plus any applicable sales
charge determined in the manner set forth in the Registration Statement or as
permitted by the Act and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder. In no event shall any
applicable sales charge exceed the maximum sales charge permitted by FINRA
Rules.
(e) The
net asset value of Shares of each Series shall be determined in the manner
provided in the Registration Statement, and when determined shall be applicable
to transactions as provided for in the Registration Statement. The
net asset value of Shares of each Series shall be calculated by the Trust or by
another entity on behalf of the Trust. Underwriter shall have no duty
to inquire into or liability for the accuracy of the net asset value per Share
as calculated.
(f) On
every sale, the Trust shall receive the applicable net asset value of Shares
promptly, but in no event later than the third business day following the date
on which Underwriter shall have received an order for the purchase of
Shares.
(g) Upon
receipt of purchase instructions, Underwriter will transmit such instructions to
the Trust or its transfer agent for registration of Shares
purchased.
(h) Nothing
in this Agreement shall prevent Underwriter or any affiliated person (as defined
in the Act) of Underwriter from acting as underwriter or distributor for any
other person, firm or corporation (including other investment companies) or in
any way limit or restrict Underwriter or any such affiliated person from buying,
selling or trading any securities for its or their own accounts or for the
accounts of others for whom it or they may be acting; provided, however, that
Underwriter expressly represents that it will undertake no activities which, in
its judgment, will adversely affect the performance of its obligations to the
Trust under this Agreement.
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(i) Underwriter,
as agent of and for the account of the Trust, may repurchase Shares at such
prices and upon such terms and conditions as shall be specified in the
Registration Statement.
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3.
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Sale of Shares by the
Trust.
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The Trust
reserves the right to sell Shares through other distributors or directly through
subscriptions received by the Trust or the Trust's transfer agent, and to issue
Shares in exchange for substantially all the assets of any corporation or trust
or series thereof or for the shares of any corporation or trust or series
thereof. The right given to Underwriter under this Agreement shall not apply to
Shares issued in connection with (a) the merger or consolidation of any other
investment company with the Trust, (b) the Trust's acquisition, by purchase or
otherwise, of all or substantially all of the assets or stock of any other
investment company, or (c) the reinvestment in Shares by shareholders of the
Trust of dividends or other distributions or any other offering by the Trust of
securities to Trust shareholders.
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4.
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Basis of Sale of
Shares.
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Underwriter
does not agree to sell any specific number of Shares. Underwriter, as
agent for the Trust, undertakes to sell Shares on a best-efforts basis only
against orders therefore.
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5.
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FINRA Rules,
etc.
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(a) Underwriter
will conform to FINRA Rules and the securities laws of any jurisdiction in which
it sells, directly or indirectly, any Shares.
(b) Underwriter
will require each dealer with whom Underwriter has a dealer agreement to conform
to the applicable provisions hereof and the Registration Statement with respect
to the public offering price of Shares, and neither Underwriter nor any such
dealers shall withhold the placing of purchase orders so as to make a profit
thereby.
(c) Underwriter
agrees to furnish to the Trust sufficient copies of any agreements, plans or
other materials it intends to use in connection with any sales of Shares in
adequate time for the Trust to file and clear them with the proper authorities
before they are put in use, and not to use them until so filed and
cleared.
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(d) Underwriter,
at its own expense, will qualify as dealer or broker, or otherwise, under all
applicable state of federal laws required in order that Shares may be sold in
such States as may be mutually agreed upon by both the parties.
(e) Underwriter
shall not make, or permit any representative, broker or dealer to make, in
connection with any sale or solicitation of a sale of Shares, any
representations concerning Shares except those contained in the then-current
prospectus and statement of additional information covering Shares and in
printed information covering Shares approved by the Trust as information
supplemental to such prospectus and statement of additional
information. Copies of the then-effective prospectus and statement of
additional information and any such printed supplemental information will be
supplied by the Trust to Underwriter in reasonable quantities upon
request.
(f) Trust
agrees to maintain its registration as an open-end management investment company
under the Investment Company Act of 1940, to register and maintain registration
of its Shares under the Securities Act of 1933, to qualify such Shares with the
appropriate states and to comply with applicable laws, rules and regulations
applicable to it.
(g) Trust
acknowledges that Underwriter is a wholly-owned subsidiary of a publicly-held
company, as described in Schedule B, and agrees to abide by the requirements
of Rule 12(d)(3) of the Act prohibiting Trust from acquiring shares
of the Underwriter or its affiliates.
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6.
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Records and Documents
to be Supplied by Trust.
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The Trust
shall furnish to Underwriter copies of all information, financial statements and
other documents which Underwriter may reasonably request for use in connection
with the distribution of Shares, and this shall include, but shall not be
limited to, one copy, upon request by Underwriter, of all financial statements
prepared for the Trust by independent public accountants.
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7.
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Fees and
Expenses.
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For
performing its services under this Agreement, Underwriter will receive an annual
fee, paid monthly, as applicable, either through front-end sales load, 12b-1
fees or fees paid from the Trust’s Administrator pursuant to Schedule
C.
The Trust
shall promptly reimburse Underwriter for any expenses which are to be paid by
the Trust in accordance with the following paragraph. In the
performance of its obligations under this Agreement, Underwriter will pay only
the costs incurred in qualifying as a broker or dealer under state and federal
laws and in establishing and maintaining its relationships with the dealers
selling Shares. All other costs in connection with the offering of
Shares will be paid in accordance with agreements between the Trust,
Underwriter, the Trust’s investment adviser and/or the Trust’s Administrator as
permitted by applicable law, including the Act and rules and regulations
promulgated thereunder.
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8.
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Indemnification of the
Trust.
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Underwriter
agrees to indemnify and hold harmless the Trust and each person who has been,
is, or may hereafter be a trustee, director, officer, employee, shareholder or
control person of the Trust ("Trust Indemnitees") against any loss, damage or
expense (including the reasonable costs of investigating or defending any claim,
action, suit or proceeding and any reasonable counsel fees) reasonably incurred
by Trust Indemnitees in connection with any claim or in connection with any
action, suit or proceeding ("Claims") to which any of them may be a party, which
arises out of or is alleged to arise out of or is based upon (a) any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Trust-related advertisement or sales literature, or
upon the omission or alleged omission to state a material fact in such materials
necessary to make the statements therein not misleading, which untrue statement,
alleged untrue statement, omission, or alleged omission, was furnished in
writing, or omitted from the relevant writing furnished, as the case may be, by
the Underwriter or any agent or employee of Underwriter or any other person for
whose acts Underwriter is responsible, for use in the Registration Statement or
in corresponding statements made in any advertisement or sales literature,
unless such statement or omission was made in reliance upon written information
furnished by the Trust; (b) the willful misfeasance, bad faith or negligence of
the Underwriter in the performance of its obligations under this Agreement, or
the Underwriter’s
reckless disregard of its obligations under this Agreement, (c) the
Underwriter’s failure to comply with laws, rules and regulations applicable to
it in connection with its activities hereunder; or (d) Underwriter’s failure to
exercise reasonable care and diligence with respect to its services, if any,
rendered in connection with investment, reinvestment, automatic withdrawal and
other plans for Shares; provided, however, that the Underwriter’s agreement to
indemnify the Trust Indemnitees pursuant to this Paragraph 8 shall not be
construed to cover any Claims (A) arising out of or based upon the willful
misfeasance, bad faith or negligence of the Trust in the performance of its
obligations under this Agreement or the Trust’s reckless disregard of its
obligations under this Agreement; or (B) arising out of or based upon the
Trust's failure to comply with laws, rules and regulations applicable to it in
connection with its activities hereunder. The term “expenses” for
purposes of Paragraphs 8 and 9 includes amounts paid in satisfaction of
judgments or in settlements which are made with the indemnifying party's
consent. The foregoing rights of indemnification shall be in addition
to any other rights to which the Trust or each such person may be entitled as a
matter of law.
In the
event of a Claim for which the Trust Indemnitees may be entitled to
indemnification hereunder, the Trust shall fully and promptly advise the
Underwriter in writing of all pertinent facts concerning such Claim, but failure
to do so in good faith shall not affect the Underwriter’s indemnification
obligations under this Agreement except to the extent that the Underwriter is
materially prejudiced thereby. The Underwriter will be
entitled to assume the defense of any suit brought to enforce any such Claim if
such defense shall be conducted by counsel of good standing chosen by the
Underwriter and approved by the Trust, which approval shall not be unreasonably
withheld. In the event any such suit is not based solely on an
alleged untrue statement, omission, or wrongful act on the Underwriter’s part,
the Trust shall have the right to participate in the defense. In the
event the Underwriter elects to assume the defense of any such suit and retain
counsel of good standing so approved by the Trust, the Trust Indemnitees in such
suit shall bear the fees and expenses of any additional counsel retained by any
of them, but in any case where the Underwriter does not elect to assume the
defense of any such suit or in case the Trust reasonably withholds approval of
counsel chosen by the Underwriter, the Underwriter will reimburse the Trust
Indemnitees named as defendants in such suit, for the reasonable fees and
expenses of any counsel retained by them to the extent related to a Claim
covered under this Paragraph 8. The Underwriter’s indemnification
agreement contained in this Paragraph 8 shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of the Trust
Indemnitees, and shall survive the delivery of any Shares.
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9.
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Indemnification of
Underwriter
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The Trust
agrees to indemnify and hold harmless each person who has been, is, or may
hereafter be a director, officer, employee, shareholder or control person of
Underwriter ("Underwriter Indemnitees") against any loss, damage or expense
(including the reasonable costs of investigating or defending any claim, action,
suit or proceeding and any reasonable counsel fees) reasonably incurred by
Underwriter Indemnitees in connection with any claim or in connection with any
action, suit or proceeding ("Claims") to which any of them may be a party, which
arises out of or is alleged to arise out of or is based upon (a) the Underwriter
acting as distributor of the Trust and each Series; (b) the Underwriter or any
subsidiary or affiliate of the Underwriter acting as a member of the National
Securities Clearing Corporation (or any successor or other entity performing
similar functions) (“NSCC”) on behalf of the Trust; (c) the Underwriter or any
subsidiary or affiliate of the Underwriter entering into selling agreements,
dealer agreements, participation agreements, NSCC Trust SERV or Networking
agreements or similar agreements (collectively, “Dealer Agreements”) with
financial intermediaries on behalf of the Trust; (d) any of the following: (i)
any untrue statement, or alleged untrue statement, of a material fact contained
in any Registration Statement, (ii) any omission, or alleged omission, to
state a material fact required to be stated in any Registration Statement or
necessary to make the statements therein not misleading, or (iii) any untrue
statement, or alleged untrue statement, of a material fact in any Trust-related
advertisement or sales literature, or any omission, or alleged omission, to
state a material fact required to be stated therein to make the statements
therein not misleading, in either case notwithstanding the exercise of
reasonable care in the preparation or review thereof by the Underwriter; (e) the
material breach by the Trust of any provision of this Agreement; provided,
however, that the Trust's agreement to indemnify the Underwriter Indemnitees
pursuant to this Paragraph 9 shall not be construed to cover any Claims (A)
pursuant to subsection (d) above to the extent such untrue statement, alleged
untrue statement, omission, or alleged omission, was furnished in writing, or
omitted from the relevant writing furnished, as the case may be, by
the Underwriter for use in the Registration Statement or in corresponding
statements made in the prospectus, advertisement or sales literature; (B)
arising out of or based upon the willful misfeasance, bad faith or negligence,
including clerical errors and mechanical failures, on the part of any of such
persons in the performance of Underwriter’s obligations under this Agreement or
from the reckless disregard by any of such persons of Underwriter’s obligations
and duties under this Agreement, or (C) arising out of or based upon the
Underwriter’s failure to comply with laws, rules and regulations applicable to
it in connection with its activities hereunder, for all of which exceptions
Underwriter shall be liable to the Trust.
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In the
event of a Claim for which the Underwriter Indemnitees may be entitled to
indemnification hereunder, the Underwriter shall fully and promptly advise the Trust in
writing of all pertinent facts concerning such Claim, but failure to do so in
good faith shall not affect the Trust’s indemnification obligations under this
Agreement except to the extent that the Trust is materially prejudiced
thereby. The Trust will be entitled to assume the defense of
any suit brought to enforce any such Claim if such defense shall be conducted by
counsel of good standing chosen by the Trust and approved by the Underwriter,
which approval shall not be unreasonably withheld. In the event any
such suit is not based solely on an alleged untrue statement, omission, or
wrongful act on the Trust’s part, the Underwriter shall have the right to
participate in the defense. In the event the Trust elects to assume
the defense of any such suit and retain counsel of good standing so approved by
the Underwriter, the Underwriter Indemnitees in such suit shall bear the fees
and expenses of any additional counsel retained by any of them, but in any case
where the Trust does not elect to assume the defense of any such suit or in case
the Underwriter reasonably withholds approval of counsel chosen by the Trust,
the Trust will reimburse the Underwriter Indemnitees named as defendants in such
suit, for the reasonable fees and expenses of any counsel retained by them to
the extent related to a Claim covered under this Paragraph 9. The
Trust’s indemnification agreement contained in this Paragraph 9 shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Underwriter Indemnitees, and shall survive the delivery of
any Shares.
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10.
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Termination and
Amendment of this Agreement.
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This
Agreement may be amended only if such amendment is approved (i) by Underwriter
and (ii) either by action of the Board of Trustees of the Trust, including a
majority of the Trustees of the Trust who are not “interested persons” of the
Trust or of Underwriter as that term is defined in the Investment Company Act of
1940 (“Independent Trustees”) or by the affirmative vote of a majority of the
outstanding Shares of the Trust.
This
Agreement shall automatically terminate, without payment of any penalty, in the
event of its assignment.
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Either
the Trust or Underwriter may at any time terminate this Agreement on sixty (60)
days written notice delivered or mailed, postage prepaid, to the other
party. Upon delivery of such notice of termination to the Trust or
Underwriter, the Trust may, in its sole discretion, elect to extend the term of
this Agreement for a period of three (3) months (the "Transition Period")
following the date of termination specified in such notice in order to provide
sufficient time for the Trust to transition to another service provider;
provided, however, that the date of the conversion of services, data and books
and records to the new service provider during the Transition Period is subject
to the approval of Underwriter, which approval shall not be unreasonably
withheld. During such Transition Period, the terms of this Agreement, including
without limitation the provisions dealing with compensation and indemnification,
shall continue in full force and effect.
In the
event that in connection with the termination of this Agreement a successor to
any of Underwriter's duties or responsibilities under this Agreement is
designated by the Trust by written notice to Underwriter, Underwriter shall,
promptly upon such termination and at the expense of the Trust, transfer all
records maintained by Underwriter under this Agreement and shall cooperate in
the transfer of such duties and responsibilities, including provision for
assistance from Underwriter's cognizant personnel in the establishment of books,
records and other data by such successor.
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11.
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Effective Period of
this Agreement.
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This
Agreement shall take effect upon the date first written above and shall remain
in full force and effect (unless terminated automatically as set forth in
Paragraph 10), until ____________, and from year to year thereafter, subject to
annual approval (i) by a majority of the Board of Trustees of the Trust,
including a majority of the Independent Trustees cast in person at a meeting
called for the purpose of voting on such renewal or (ii) by a vote of a majority
of the outstanding Shares of the Trust.
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12.
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New
Series
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The terms
and provisions of this Agreement shall become automatically applicable to any
additional series of the Trust established during the initial or renewal term of
this Agreement.
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13.
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Successor Investment
Trust.
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Unless
this Agreement has been terminated in accordance with Paragraph 10, the terms
and provision of this Agreement shall become automatically applicable to any
investment company which is a successor to the Trust as a result of
reorganization, recapitalization or change of domicile.
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14.
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Anti-Money Laundering
Compliance.
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(a) The
Underwriter and the Trust each acknowledges that it is a financial institution
subject to the U.S. Bank Secrecy Act (31 U.S.C. 5311 et seq.) and the
implementing regulations thereunder (collectively, the “AML Acts”), which
require, among other things, that financial institutions adopt compliance
programs to guard against money laundering. Each party also
acknowledges that it is subject to U.S. economic and trade sanctions
administered by the Office of Foreign Assets Control, U.S. Department of the
Treasury (“OFAC”).
(b) Each party
represents and warrants to the other that it is in compliance with and will
continue to comply with the AML Acts in all relevant respects. The
Underwriter shall also provide written notice to each person or entity with
which it entered an agreement prior to the date hereof with respect to sale of
the Trust’s Shares, such notice informing such person of anti-money laundering
and OFAC compliance obligations applicable to financial institutions under
applicable laws and, consequently, under applicable contractual provisions
requiring compliance with laws.
(c) The
Underwriter shall include specific contractual provisions regarding anti-money
laundering compliance obligations in agreements entered into by the Underwriter
with any dealer that is authorized to effect transactions in Shares of the
Trust.
(d) Each
of Underwriter and the Trust agrees that it will take such further steps, and
cooperate with the other as may be reasonably necessary, to facilitate
compliance with the AML Acts and with each party’s obligations under U.S.
economic and trade sanctions administered by OFAC, including but not limited to
the provision of copies of its written procedures, policies and controls related
thereto (“AML Operations”). Underwriter undertakes that
it will grant to the Trust, the Trust’s Anti-Money Laundering Officer and
regulatory agencies, reasonable access to copies of Underwriter’s AML
Operations, books and records pertaining to the Trust only. It is
expressly understood and agreed that the Trust and the Trust’s compliance
officer shall have no access to any of Underwriter’s AML Operations, books or
records pertaining to other clients of Underwriter.
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15.
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Limitation of
Liability.
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It is
expressly agreed that the obligation of the Trust hereunder shall not be binding
upon any of the Trustees, shareholders, nominees, officers, agents or employees
of the Trust, personally, but bind only the trust property of the
Trust. The execution and delivery of this Agreement have been
authorized by the Trustees of the Trust, acting as such, and executed and
delivered by an officer of the Trust, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the trust property of
the Trust.
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16.
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Authorizations.
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This
Agreement has been duly authorized by the Trust and, when executed and delivered
by the Trust, will constitute a legal, valid and binding obligation of the
Trust, enforceable against the Trust in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the right and remedies of creditors and secured
parties.
This
Agreement has been duly authorized by Underwriter and, when executed and
delivered by Underwriter, will constitute a legal, valid and binding obligation
of Underwriter, enforceable against Underwriter in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the right and remedies of creditors and secured
parties.
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17.
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Safeguarding of
Records of Trust
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Underwriter
represents and warrants that the various procedures and systems which
Underwriter has implemented with regard to safekeeping from loss or damage
attributable to fire, theft or any other cause of the records, and other data of
the Trust and Underwriter's records, data, equipment, facilities and other
property used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as are reasonably
required for the secure performance of its obligations hereunder.
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18.
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References to Parties
in Printed Materials
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The Trust
shall not circulate any printed matter that contains any reference to
Underwriter without the prior approval of Underwriter, including but not limited
to advertising and sales literature for the Trust. The Trust will submit printed
matter requiring approval to Underwriter in draft form, allowing sufficient time
for review by Underwriter prior to any deadline for printing.
Underwriter
shall not circulate any printed matter that contains any reference to the Trust
without the prior approval of the Trust. Underwriter will submit
printed matter requiring approval to the Trust in draft form, allowing
sufficient time for review by the Trust prior to any deadline for
printing.
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19.
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Maintenance of
Fidelity Bond
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Underwriter
shall maintain a fidelity bond covering larceny and embezzlement and an
insurance policy with respect to directors and officers errors and omissions
coverage in amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Trust, Underwriter shall
provide evidence that coverage is in place. Underwriter shall notify the Trust
should its insurance coverage with respect to professional liability or errors
and omissions coverage be canceled. Such notification shall include the date of
cancellation and the reasons therefore. Underwriter shall notify the Trust of
any material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trust should the total outstanding claims made by Underwriter under its
insurance coverage materially impair, or threaten to materially impair, the
adequacy of its coverage.
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20.
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Confidentiality
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Without
the prior consent of the other party, no party shall disclose Confidential
Information (as defined below) of any other party received in connection with
the services provided under this Agreement. The receiving party shall use the
same degree of care as it uses to protect its own confidential information of
like nature, but no less than a reasonable degree of care, to maintain in
confidence the Confidential Information of the disclosing party. The foregoing
provisions shall not apply to any information that (i) is, at the time of
disclosure, or thereafter becomes, part of the public domain through a source
other than the receiving party, (ii) is subsequently learned from a third party
that, to the knowledge of the receiving party, is not under an obligation of
confidentiality to the disclosing party, (iii) was known to the receiving party
at the time of disclosure, or (iv) is generated independently by the receiving
party, or (v) is disclosed pursuant to applicable law, subpoena, applicable
professional standards, request of a governmental or regulatory agency, or other
process after reasonable notice to the other party. The parties further agree
that a breach of this provision would irreparably damage the other party and
accordingly agree that each of them is entitled, in addition to all other
remedies at law or in equity, to an injunction or injunctions without bond or
other security to prevent breaches of this provision.
For the
purpose of this Agreement, Confidential Information shall mean NPPI (as defined
below), any information identified by either party as "Confidential" and/or
"Proprietary" or which, under all of the circumstances, ought reasonably to be
treated as confidential and/or proprietary, or any nonpublic information
obtained hereunder concerning the other party.
Nonpublic
personal financial information relating to shareholders and/or potential
shareholders (i.e., customers and/or consumers) of the Trust (“NPPI”) provided
by, or at the direction of, the Trust to Underwriter, or collected or retained
by Underwriter in the course of performing its duties and responsibilities under
this Agreement shall remain the sole property of the Trust. Underwriter shall
not give, sell or in any way transfer such Confidential Information to any
person or entity, other than affiliates of Underwriter except in connection with
the performance of Underwriter's duties and responsibilities under this
Agreement, at the direction of the Trust or as required or permitted by law
(including applicable anti-money laundering laws). Underwriter represents,
warrants and agrees that it has in place and will maintain physical, electronic
and procedural safeguards reasonably designed to protect the security,
confidentiality and integrity of, and to prevent unauthorized access to or use
of records and information relating to consumers or customers of the Trust. The
Trust represents to Underwriter that it has adopted a statement of its privacy
policies and practices as required by Regulation S-P and agrees to provide
Underwriter with a copy of that statement annually.
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The
parties agree to comply with any and all regulations promulgated by the
Securities and Exchange Commission or other applicable laws regarding the
confidentiality of shareholder information.
The
provisions of this Section shall survive the termination of this
Agreement.
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21.
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Captions
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The
captions in this Agreement are included for convenience of reference only and in
no way define or limit any of the provisions hereof or otherwise affect their
construction or effect.
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22.
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Cooperation Between
Parties
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Each
party agrees to perform such further acts and execute such further documents as
are necessary to effectuate the purposes hereof.
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23.
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Severability.
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In the
event any provision of this Agreement is determined to be void or unenforceable,
such determination shall not affect the remainder of this Agreement, which shall
continue to be in force.
|
|
24.
|
Questions of
Interpretation.
|
|
|
(a)
|
This
Agreement shall be governed by the laws of the State of
Ohio.
|
(b) Any
question of interpretation of any term of provision of this Agreement having a
counterpart in or otherwise derived from a term or provision of the Act shall be
resolved by reference to such term or provision of the Act and to interpretation
thereof, if any, by the United States courts or in the absence of any
controlling decision of any such court, by rules, regulations or orders of the
Securities and Exchange Commission issued pursuant to said Act. In
addition, where the effect of a requirement of the Act, reflected in any
provision of this Agreement is revised by rule, regulation or order of the
Securities and Exchange Commission, such provision shall be deemed to
incorporate the effect of such rule, regulation or order.
|
|
25.
|
Notices.
|
Any
notices under this Agreement shall be in writing, addressed and delivered or
mailed postage paid to the other party at such address as such other party may
designate for the receipt of such notice. Until further notice to the
other party, it is agreed that the address of the Trust for this purpose shall
be 0000 Xxxxx Xxxx Xxxxxx, X.X. Xxx 000, Xxxxxx, XX 00000 and that the address
of Underwriter for this purpose shall be 0000 X. Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, XX 00000.
12
|
|
26.
|
Counterparts.
|
This
Agreement may be executed in one or more counterparts, and by the parties hereto
on separate counterparts, each of which shall be deemed an original but all of
which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Trust and
Underwriter have each caused this Agreement to be signed in duplicate on their
behalf, all as of the day and year first above written.
MMA
PRAXIS FUNDS
________________________
Name:
Title:
BHIL
Distributors, Inc.
________________________
Name:
Xxxxx X. Xxxxxxxxx
Title:President
13
Schedule
A
to
the
between
___________
Funds and BHIL Distributors, Inc.
In
exchange for the fees described in Paragraph 7, Underwriter shall perform the
following services:
|
|
1.
|
Solicit
and deliver orders for sale of
Shares;
|
|
|
2.
|
Undertake
advertising and promotion of Shares as it believes reasonable in
connection with solicitation of
Shares;
|
|
|
3.
|
Compensate
dealers for activities described under the Dealer Agreement to sell
Shares.
|
14
Schedule
B
to
the
between
___________
Funds and BHIL Distributors, Inc.
Corporate
Structure
As
referenced in Section 5 (g), Underwriter, BHIL Distributors, Inc., is a
wholly-owned subsidiary of Diamond Hill Investment Group, Inc. Diamond Hill
Investment Group, Inc. is a public company trading under the NASDAQ symbol DHIL
and may be included in certain market capitalization-based equity indicies used
to track the stock market. More information about Diamond Hill is provide at
xxx.xxxxxxx-xxxx.xxx.
15
Schedule
C
(Effective
___________)
This
Schedule C shall apply to the shares of the funds in the Trust and any other
series that may be started in the future:
Fees to
be paid to BHIL:
|
|
n
|
Distributor
& Statutory Underwriter Fees:
|
|
|
n
|
Base
Fee:
|
$50,000
|
|
|
n
|
Variable
Expenses
|
No charge
to transition existing Dealer Agreements
Dealer
Agreement
Set-up $100/
Agreement
Sales
Literature
Review $
75/ Item Reviewed
Annual
web
review $100/1-50pp
$200/50-100pp
$300/over
100pp
|
|
Monthly
web maintenance fee
|
$50/unlimited
material changes*
|
*If
entire re-design of web or significant portion of website, price will be
negotiated.
*If new
web material (i.e., brochure), such material would be submitted as a regular
hard copy piece for review at $75.
|
|
n
|
Out
of Pocket Expenses:
|
Printing
& Postage, Bank Charges, Regulatory Filing Fees,
Travel to
Client Board Meetings, FINRA Sales Literature Review and Record
Retention
16
