Exhibit 99.(h)(5)
BLUE SKY REGISTRATION AGREEMENT
THIS AGREEMENT effective as of the 1st day of July, 2004, by and AMONG
▇▇▇▇▇ AND POWER GROWTH FUND, INC. and ▇▇▇▇▇ AND POWER, INC., (collectively the
"Funds"), both Minnesota corporations, and QUASAR DISTEUBUTORS, LLC, a Delaware
limited liability company ("Quasar").
WHEREAS, the Funds are registered under the Investment Company Act of 1940,
as amended ("1940 Act"), as an open-end diversified management companies, and
are authorized to issue shares of common stock;
WHEREAS, each Fund desires to retain Quasar as an agent in connection with
the Blue Sky registration of the Shares of the Funds;
WHEREAS, Quasar 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, Quasar is willing to act as an agent for the Funds 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.
Each Fund hereby appoints Quasar as its agent for the Blue Sky registration
of certain Shares of the Funds, subject to the terms and for the period set
forth in this Agreement. Quasar hereby accepts such appointment and agrees to
act hereunder.
2. SERVICES AND DUTIES OF QUASAR.
(a) Quasar agrees to serve as agent for the Blue Sky registration of Shares
of the Funds in compliance with state securities laws, or other jurisdictions as
may be mutually agreed upon by each Fund and Quasar.
(b) The services furnished by Quasar hereunder are not to be deemed
exclusive and Quasar shall be free to furnish similar services to others so long
as its services under this Agreement are not impaired thereby. Quasar and each
Fund recognizes that from time to time officers and employees of Quasar may
serve as directors, trustees, officers and employees of other entities
(including investment companies), that such other entities may include the name
of Quasar as part of their name and that Quasar or its affiliates may enter into
distribution, administration, fund accounting, transfer agent or other
agreements with such other entities.
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3. DUTIES AND REPRESENTATIONS OF THE FUNDS.
(a) Each Fund represents that it is duly organized and in good standing
under the law of its jurisdiction of incorporation and registered as an open-end
management investment company under the 1940 Act. Each Fund agree that it will
act in material conformity with its Articles of Incorporation, By-Laws, its
Registration Statement as may be amended from time to time and resolutions and
other instructions of its Board. Each Fund agrees to comply in all material
respects with the 1933 Act, the 1940 Act, and all other applicable federal and
state laws and regulations. Each Fund represents and warrants that this
Agreement has been duly authorized by all necessary action by the Funds under
the 1940 Act, state law and each Fund's Articles of Incorporation and By-Laws.
(b) The Funds agree to advise Quasar promptly in writing:
(i) of any correspondence or other communication by the SEC or its
staff relating to the Fund, including requests by the SEC for amendments to
the Registration Statement or Prospectus;
(ii) in the event of the issuance by the SEC of any stop-order
suspending the effectiveness of the Registration Statement then in effect
or the initiation of any proceeding for that purpose;
(iii) of the happening of any event which makes untrue any statement
of a material fact made in the Prospectus or which requires the making of a
change in such Prospectus in order to make the statements therein not
misleading; and
(iv) of all actions taken by the SEC with respect to any amendments
to any Registration Statement or Prospectus, which may from time to time be
filed with the SEC.
4. COMPENSATION.
As compensation for the services performed and the expenses assumed by
Quasar under this Agreement Quasar shall be entitled to the fees and expenses
set forth in Schedule A to this Agreement which are payable promptly after the
last day of each month. Such fees shall be paid to Quasar by the Funds.
5. EXPENSES.
(a) The Funds shall bear all costs and expenses in connection with
registration of the Shares with the SEC and related compliance with state
securities laws as contemplated under the Blue Sky Compliance Servicing
Agreement with U.S. Bancorp Fund Services, LLC, as amended.
(b) Quasar shall bear the expenses of registration or qualification of
Quasar as a dealer or broker under federal or state laws and the expenses of
continuing such registration or qualification. Quasar does not assume
responsibility for any expenses not expressly assumed hereunder.
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6. INDEMNIFICATION.
(a) Each Fund shall indemnify and hold harmless Quasar and its respective
affiliates, officers, directors, agents, employees and controlling persons from
all direct or indirect liabilities, losses or costs (including reasonable
attorneys' fees) arising from, related to or otherwise connected with any breach
by the Funds of any provision of this Agreement.
(b) Quasar shall indemnify and hold harmless each Fund and its affiliates,
officers, directors, agents, employees and controlling persons from and against
any and all direct or indirect liabilities, losses or costs (including
reasonable attorneys' fees) arising from, related to or otherwise connected with
any breach by Quasar of any provision of this Agreement.
(c) The Agreement of the parties in this Paragraph to indemnify each other
is conditioned upon the party entitled to indemnification (the "Indemnified
Party") notifying the other party (the "Indemnifying Party") promptly after the
summons or other first legal process for any claim as to which indemnity may be
sought is served on the Indemnified Party, unless failure to give such notice
does not prejudice the Indemnifying Party. The Indemnified Party shall permit
the Indemnifying Party to assume the defense of any such claim or any litigation
resulting from it, provided that counsel for the Indemnifying Party who shall
conduct the defense of such claim or litigation shall be approved by the
Indemnified Party (which approval shall not unreasonably be withheld), and that
the Indemnified Party may participate in such defense at its expense. The
failure of the Indemnified Party to give notice as provided in this subparagraph
(c) shall not relieve the Indemnifying Party from any liability other than its
indemnity obligation under this Paragraph. No Indemnifying Party, in the defense
of any such claim or litigation, shall, without the written consent of the
Indemnified Party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term the giving by the claimant or
plaintiff to the Indemnified Party of a release from all liability in respect to
such claim or litigation.
7. OBLIGATIONS OF THE FUNDS.
This Agreement is executed by and on behalf of the Funds and the
obligations of the Funds hereunder are not binding upon any of the directors,
officers or shareholders of the Funds individually but are binding only upon
each Funds.
8. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original agreement but all of which counterparts shall
together constitute but one and the same instrument.
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.
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10. DURATION AND TERMINATION.
(a) This Agreement shall become effective with respect to the Funds as of
the date hereof. Unless sooner terminated as provided herein, this Agreement
shall continue in effect for one year from the date hereof. Either party may
terminate this agreement on 60 days' written notice.
11. CONFIDENTIALITY.
Quasar agrees on behalf of its employees to treat all records relative to
the Funds and prior, present or potential shareholders of the Funds as
confidential, and not to use such records for any purpose other than performance
of Quasar's responsibilities and duties under this Agreement, except after
notification and prior approval by the Funds, which approval shall not be
unreasonably withheld, and may not be withheld where Quasar 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 Funds. Records
and information which have become known to the public through no wrongful act of
Quasar or any of its employees, agents or representatives shall not be subject
to this paragraph.
12. 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.
13. NOTICE.
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 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 set forth below:
Notice to Quasar shall be sent to:
Quasar Distributors, LLC
Attn: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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notice to the Funds shall be sent to:
▇▇▇▇▇ and Power Growth Fund, Inc.
▇▇▇▇▇ and Power Balanced Fund, Inc.
W1520 First National Bank Building
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated as of the day and year first above
written.
▇▇▇▇▇ AND POWER GROWTH FUND, INC. QUASAR DISTRIBUTORS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President Title: President
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▇▇▇▇▇ AND POWER BALANCED FUND, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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SCHEDULE A
TO THE
BLUE SKY REGISTRATION AGREEMENT
BY AND AMONG
▇▇▇▇▇ AND POWER GROWTH FUND, INC.
▇▇▇▇▇ AND POWER BALANCED FUND, INC.
AND
QUASAR DISTRIBUTORS, LLC
FEES
STATE REGISTRATION FEES AND OTHER OUT-OF-POCKET EXPENSES RELATED TO QUASAR
- No charge.
