DISTRIBUTION AGREEMENT
Exhibit (e)(1)
AGREEMENT made as of August 2, 2007, between American Performance Funds (the “Trust”), having
an office at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and BOSC, Inc. (“Distributor”), having an
office at One Xxxxxxxx Center, Plaza Level, Bank of Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000.
WHEREAS, the Trust is an open-end management investment company, organized as a Massachusetts
business trust and registered with the Securities and Exchange Commission (the “Commission”) under
the Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, it is intended that Distributor act as the distributor of the shares of beneficial
interest (“Shares”) of each series of the Trust, as listed on Schedule A, and such series as are
hereafter created (all of the foregoing series individually referred to herein as a “Fund” and
collectively as the “Funds”);
NOW, THEREFORE, in consideration of the mutual premises and covenants herein set forth, the
parties agree as follows:
Services as Distributor.
Distributor will act as agent of the Trust on behalf of each Fund for the distribution of the
Shares covered by the registration statement of the Trust then in effect under the Securities Act
of 1933, as amended (the “Securities Act”) and the 1940 Act. As used in this Agreement, the term
“registration statement” shall mean the registration statement of the Trust and any amendments
thereto, then in effect, including Parts A (the Prospectus), B (the Statement of Additional
Information) and C of each registration statement, as filed on Form N-1A, or any successor thereto,
with the Commission, together with any amendments thereto. The term “Prospectus” shall mean the
then-current form of Prospectus and Statement of Additional Information used by the Funds, in
accordance with the rules of the Commission, for delivery to shareholders and prospective
shareholders after the effective dates of the above-referenced registration statements, together
with any amendments and supplements thereto.
Consistent with the understanding between the Funds and the Distributor, Distributor may
solicit orders for the sale of the Shares and may undertake such advertising and promotion as it
believes reasonable in connection with such solicitation. The Trust understands that Distributor
is now and may in the future be the distributor of the shares of many other investment companies or
series, including investment companies having investment objectives similar to those of the Trust.
The Trust further understands that shareholders and potential shareholders in the Trust may invest
in shares of such other investment companies. The Trust agrees that Distributor’s duties to other
investment companies shall not be deemed in conflict with its duties to the Trust under this
Section 1.2.
Consistent with the understanding between the Funds and the Distributor, and subject to the
last sentence of this Section 1.3, Distributor may engage in such activities as it deems
appropriate in connection with the promotion and sale of the Shares, which may include advertising,
compensation of underwriters, dealers and sales personnel, the printing and mailing of Prospectuses
to prospective shareholders other than current shareholders, and the printing and mailing of sales
literature. Distributor may enter into dealer agreements and other selling agreements with
broker-dealers and other intermediaries; provided, however, that Distributor shall have no
obligation to make any payments to any third parties, whether as finder’s fees, compensation or
otherwise, unless such payment is a front-end sales load as referenced in Section 3.1 of this
Agreement or (i) Distributor has received a corresponding payment or will be reimbursed from the
applicable Fund’s Distribution Plan (as defined in Section 2 of this Agreement), the Fund’s
investment adviser (the “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.
In its capacity as distributor of the Shares, all activities of the Distributor and its
partners, agents, and employees shall comply with all applicable laws, rules and regulations,
including, without limitation, the 1940 Act, all applicable rules and regulations promulgated by
the Commission thereunder, and all applicable rules and regulations adopted by any securities
association registered under the Securities Exchange Act of 1934.
Whenever in their judgment such action is warranted by unusual market, economic or political
conditions or by abnormal circumstances of any kind, the Trust’s officers may upon reasonable
notice instruct the Distributor to decline to accept any orders for or make any sales of the Shares
until such time as those officers deem it advisable to accept such orders and to make such sales.
The Trust agrees to inform the Distributor from time to time of the states in which the Fund
or its administrator has registered or otherwise qualified shares for sale, and the Trust agrees at
its own expense to execute any and all documents and to furnish any and all information and
otherwise to take all actions that may be reasonably necessary in connection with the qualification
of the Shares for sale in such states as the administrator for the Funds may designate.
The Trust shall furnish from time to time, for use in connection with the sale of the Shares,
such supplemental information with respect to the Funds and the Shares as Distributor may
reasonably request; and the Trust warrants that the statements contained in any such supplemental
information will fairly show or represent what they purport to show or represent. The Trust shall
also furnish Distributor upon request with: (a) unaudited semi-annual statements of the Funds’
books and accounts prepared by the Trust, (b) a monthly itemized list of the securities in the
Funds, (c) monthly balance sheets as soon as practicable after the end of each month, and (d) from
time to time such additional information regarding the financial condition of the Funds as the
Distributor may reasonably request.
The Trust represents and warrants to Distributor that all registration statements, and each
Prospectus, filed by the Trust with the Commission under the Securities Act and the 1940 Act shall
be prepared in conformity with requirements of said Acts and rules and regulations of the
Commission thereunder. The registration statement and Prospectus shall contain all statements
required to be stated therein in conformity with said Acts and the rules and regulations of the
Commission thereunder, and all statements of fact contained in any such registration statement and
Prospectus are true and correct in all material respects. Furthermore, neither any registration
statement nor any Prospectus includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading to a purchaser of the Shares. The foregoing representations and warranties shall
continue throughout the term of this Agreement and be deemed to be of a continuing nature,
applicable to all Shares distributed hereunder. The Distributor may, but shall not be obligated
to, propose from time to time such amendment or amendments to any registration statement and such
supplement or supplements to any Prospectus as, in the light of future developments, may, in the
opinion of its counsel, be necessary to prevent such documents from being false and misleading. If
the Trust shall not file with the Commission any amendment or amendments and/or supplement or
supplements within fifteen days after receipt by the Trust of a written and reasonable request from
Distributor to do so, Distributor may, at its option, terminate this Agreement. In such case, the
Distributor will be held harmless from, and indemnified by Trust for, any liability or loss
resulting from the failure to implement such amendment. The Trust shall not file any amendment to
any registration statement or supplement to any Prospectus without giving Distributor reasonable
notice thereof; provided, however, that nothing contained in this Agreement shall in any way limit
the Trust’s right to file at any time such amendments to any registration statement and/or
supplements to any Prospectus, of whatever character, as the Trust may deem advisable, such right
being in all respects absolute and unconditional.
The Trust authorizes the Distributor and dealers to use any Prospectus in the form furnished
by the Trust from time to time in connection with the sale of the Shares.
The Distributor may utilize agents in its performance of its services and, with prior notice
to the Trust, appoint in writing other parties qualified to perform specific administration
services reasonably acceptable to the Trust (individually, a “Sub-Agent”) to carry out some or all
of its responsibilities under this Agreement; provided, however, that a Sub-Agent shall be the
agent of the Distributor and not the agent of the Trust, and that the Distributor shall be fully
responsible for the acts of such Sub-Agent and shall not be relieved of any of its responsibilities
hereunder by the appointment of a Sub-Agent.
The Distributor shall not be liable for any error of judgment or mistake of law or for any
loss suffered by the Trust in connection with the matters to which this Agreement relates, except a
loss resulting from willful misfeasance, bad faith or gross negligence on the Distributor’s part in
the performance of its duties, from reckless disregard by the Distributor of its obligations and
duties under this Agreement, or from the Distributor’s failure to comply with laws, rules and
regulations applicable to it in connection with its activities hereunder. The Trust agrees to
indemnify, defend and hold harmless the
Distributor, its officers, partners, employees, and any person who controls the Distributor
within the meaning of Section 15 of the Securities Act (collectively, “Distributor Indemnitees”),
from and against any and all claims, demands, liabilities and expenses (including the reasonable
cost of investigating or defending such claims, demands or liabilities and any reasonable counsel
fees incurred in connection therewith) (collectively, “Claims”) which the Distributor Indemnitees
may incur under the Securities Act or under common law or otherwise (a) as the result of the
Distributor acting as distributor of the Funds and entering into selling agreements, participation
agreements, shareholder servicing agreements or similar agreements with financial intermediaries on
behalf of the Trust, unless as a result of the willful misfeasance, bad faith or negligence of the
Distributor or the Distributor’s reckless disregard of its obligations and duties under this
Agreement; (b) arising out of or based upon (i) any untrue statement, or alleged untrue statement,
of a material fact contained in any registration statement or any Prospectus, (ii) any omission, or
alleged omission, to state a material fact required to be stated in any registration statement or
any Prospectus 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 Distributor; or (c) arising
out of or based upon the electronic processing of orders over the internet at the Trust’s request;
provided, however, that the Trust’s agreement to indemnify the Distributor Indemnitees pursuant to
this Section 1.11 shall not be construed to cover any Claims (A) pursuant to subsection (b) 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, to the
Trust by the Distributor for use in the registration statement or in corresponding statements made
in the Prospectus, advertisement or sales literature; (B) pursuant to subsections (b) or (c) above,
arising out of or based upon the willful misfeasance, bad faith or gross negligence of the
Distributor in the performance of its duties or the Distributor’s reckless disregard of its
obligations and duties under this Agreement; or (C) arising out of or based upon the Distributor’s
failure to comply with laws, rules and regulations applicable to it in connection with its
activities hereunder.
In the event of a Claim for which the Distributor Indemnitees may be entitled to
indemnification hereunder, the Distributor shall provide the Trust with written notice of the
Claim, identifying the persons against whom such Claim is brought, promptly following receipt of
service of the summons or other first legal process, and in any event within ten (10) days of such
receipt. 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 Distributor, 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 Distributor 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 Distributor, the Distributor 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 Distributor reasonably
withholds approval of counsel chosen by the Trust, the Trust will reimburse the Distributor
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 Section 1.11. The Trust’s
indemnification agreement contained in this Section 1.11 shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of the Distributor Indemnitees, and
shall survive the delivery of any Shares.
The Distributor agrees to indemnify, defend and hold harmless the Trust, its officers,
Trustees, employees, and any person who controls the Trust within the meaning of Section 15 of the
Securities Act (collectively, Trust Indemnitees), from and against any and all Claims which the
Trust Indemnitees may incur under the Securities Act or under common law or otherwise, arising out
of or based upon (a) any untrue statement, or alleged untrue statement, of a material fact
contained in any registration statement, Prospectus, or Trust-related advertisement or sales
literature, or upon any omission, or alleged omission, to state a material fact in such materials
that would be necessary to make the information 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, to the Trust by the Distributor for use in the
registration statement or in corresponding statements made in the Prospectus, or advertisement or
sales literature; (b) the willful misfeasance, bad faith or gross negligence of the Distributor in
the performance of its duties, or the Distributor’s reckless disregard of its obligations and
duties under this Agreement, or (c) the Distributor’s failure to comply with laws, rules and
regulations applicable to it in connection with its activities hereunder (other than in respect of
Trust-related advertisements or sales literature that fails to comply with applicable laws
notwithstanding the exercise of reasonable care in the preparation and review thereof by the
Distributor).
In the event of a Claim for which the Trust Indemnitees may be entitled to indemnification
hereunder, the Trust shall provide the Distributor with written notice of the Claim, identifying
the persons against whom such Claim is brought, promptly following receipt of service of the
summons or other first legal process, and in any event within ten (10) days of such receipt. The
Distributor 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 Distributor 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 Distributor’s part,
the Trust shall have the right to participate in the defense. In the event the Distributor 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 Distributor does not elect to assume the
defense of any such suit or in case the Trust reasonably withholds approval of counsel chosen by
the Distributor, the Distributor 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 Section 1.12. The Distributor’s indemnification agreement contained in
this Section 1.12 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.
No Shares shall be offered by either the Distributor or the Trust under any of the provisions
of this Agreement and no orders for the purchase or sale of Shares hereunder shall be accepted by
the Trust if and so long as the effectiveness of the registration statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of the Securities Act
or if and so long as a current Prospectus as required by Section 10(b)(2) of said Act is not on
file with the Commission; provided, however, that: (a) the Distributor will not be obligated to
cease offering shares until it has received from the Trust written notice of such events, and (b)
nothing contained in this Section 1.13 shall in any way restrict or have an application to or
bearing upon the Trust’s obligation to repurchase Shares from any shareholder in accordance with
the provisions of the Trust’s Prospectus, Agreement and Declaration of Trust, or Bylaws.
The Trust agrees to advise the Distributor as soon as reasonably practical by a notice in
writing delivered to the Distributor:
of any request by the Commission for amendments to the
registration statement or Prospectus then in effect or for additional
information;
in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or Prospectus then
in effect or the initiation by service of process on the Trust of any
proceeding for that purpose; and
of the happening of any event that makes untrue any statement of
a material fact made in the registration statement or Prospectus then in
effect or which requires the making of a change in such registration statement
or Prospectus in order to make the statements therein not misleading.
For purposes of this section, informal requests by or acts of the Staff of the Commission
shall not be deemed actions of or requests by the Commission unless they would reasonably be
expected to have a material negative impact upon the offering of Shares.
Fees; Plans of Distribution.
2.1 Attached as Schedule B to this Agreement are all plans of distribution under Rule 12b-1
under the 1940 Act approved by the Funds and in effect (collectively, the “Distribution Plan”).
The Funds will deliver to the Distributor promptly after any changes thereto updated copies of the
Distribution Plan. For its services under this Agreement, the Distributor shall be compensated as
set forth in the Distribution Plan.
Sale and Payment.
Shares of a Fund may be subject to a sales load and may be subject to the imposition of a
distribution fee pursuant to the Distribution Plan referred to above. To the extent that Shares of
a Fund are sold at an offering price which includes a sales load or subject to a contingent
deferred sales load with respect to certain redemptions (either within a single class of Shares or
pursuant to two or more classes of Shares), such Shares shall hereinafter be referred to
collectively as “Load Shares” (and in the case of Shares that are sold with a front-end sales load,
“Front-end Load Shares”, or Shares that are sold subject to a contingent deferred sales load, “CDSL
Shares”). Funds that issue Front-End Load Shares shall hereinafter be referred to collectively as
“Front-End Load Funds.” Funds that issue CDSL Shares shall hereinafter be referred to collectively
as “CDSL Funds.” Front-end Load Funds and CDSL Funds may individually or collectively be referred
as “Load Funds.” Under this Agreement, the following provisions shall apply with respect to the
sale of, and payment for, Load Shares.
The Distributor shall have the right to offer Load Shares at their net asset value, if
permitted by the Prospectus, and to sell such Load Shares to the public against orders therefor at
the applicable public offering price, as defined in Section 4 hereof. The Distributor shall also
have the right to sell Load Shares to dealers against orders therefor at the public offering price
less a concession determined by the Distributor, which concession shall not exceed the amount of
the sales charge or underwriting discount, if any, referred to in Section 4 below.
Prior to the time of delivery of any Load Shares by a Load Fund to, or on the order of, the
Distributor, the Distributor shall pay or cause to be paid to the Load Fund or to its order an
amount in New York cleared funds equal to the applicable net asset value of such Shares. The
Distributor may retain so much of any sales charge or underwriting discount as is not allowed by
the Distributor as a concession to dealers.
With respect to CDSL Funds, the following provisions shall be applicable:
The Distributor shall be entitled to receive all contingent
deferred sales load charges, 12b-1 payments and all distribution and service
fees set forth in the Distribution Plan adopted by a CDSL Fund with respect to
CDSL Shares (collectively, the “CDSL Payments”) with respect to CDSL Shares.
The Distributor may assign or sell to a third party (a “CDSL Financing
Entity”) all or a part of the CDSL Payments on CDSL Shares that the
Distributor is entitled to receive under this Agreement. The Distributor’s
right to the CDSL Payments on such CDSL Shares, if assigned or sold to a CDSL
Financing Entity, shall continue after termination of this Agreement.
The Distributor may assign or sell to a CDSL Financing Entity all
or part of the CDSL Payments the Distributor is entitled to receive. The
Distributor’s right to payment of CDSL Payments, if assigned or sold to a CDSL
Financing Entity, shall continue after termination of this
Agreement. Otherwise, (unless the Distributor is legally entitled to receive
such fees as the financing entity) the right to receive all CDSL Payments in
respect of periods subsequent to the termination of this Agreement shall
terminate upon termination of this Agreement. In the event Distributor
assigns or sells all or a part of the CDSL Payments to a CDSL Financing
Entity and this Agreement is subsequently terminated, Distributor shall have
no obligation to assist the CDSL Financing Entity in connection with such
CDSL Financing Entity’s right to receive such CDSL Payments subsequent to
such termination.
The Distributor shall not be required to offer or sell CDSL
Shares of a CDSL Fund unless and until it has received a binding commitment
from a CDSL Financing Entity (a “Commitment”) satisfactory to the Distributor
which Commitment shall cover all expenses and fees related to the offer and
sale of such CDSL Shares including, but not limited to, dealer reallowances,
financing commitment fees, and legal fees. If at any time during the term of
this Agreement the then-current CDSL financing is terminated through no fault
of the Distributor, the Distributor shall have the right to immediately cease
offering or selling CDSL Shares until substitute financing becomes effective.
(d) The Distributor and the Trust hereby agree that the terms
and conditions set forth herein regarding the offer and sale of CDSL Shares
may be amended upon approval of both parties in order to comply with the terms
and conditions of any agreement with a CDSL Financing Entity to finance the
costs for the offer and sale of CDSL Shares so long as such terms and
conditions are in compliance with the Distribution Plan.
Public Offering Price.
The public offering price of a Load Share shall be the net asset value of such Load Share next
determined, plus any applicable sales charge, all as set forth in the current Prospectus of the
Load Fund. The net asset value of Load Shares shall be determined in accordance with the
then-current Prospectus of the Load Fund.
Issuance of Shares.
The Trust reserves the right to issue, transfer or sell Load Shares at net asset values (a) in
connection with the merger or consolidation of the Trust or the Load Fund(s) with any other
investment company or the acquisition by the Trust or the Load Fund(s) of all or substantially all
of the assets or of the outstanding Shares of any other investment company; (b) in connection with
a pro rata distribution directly to the holders of Shares in the nature of a stock dividend or
split; (c) upon the exercise of subscription rights granted to the holders of Shares on a pro rata
basis; (d) in connection with the issuance of Load Shares pursuant to any exchange and reinvestment
privileges described in any then-
current Prospectus of the Load Fund; and (e) otherwise in accordance with any then-current
Prospectus of the Load Fund.
Term, Duration and Termination.
This Agreement shall become effective with respect to each Fund as of the date first written
above (the “Effective Date”) (or, if a particular Fund is not in existence on such date, on the
earlier of the date an amendment to Schedule A to this Agreement relating to that Fund is executed
or the Distributor begins providing services under this Agreement with respect to such Fund) and,
unless sooner terminated as provided herein, shall continue through June 30, 2008. Thereafter, if
not terminated, this Agreement shall continue with respect to a particular Fund automatically for
successive one-year terms, provided that such continuance is specifically approved at least
annually (a) by the vote of a majority of those members of the Trust’s Board of Trustees who are
not parties to this Agreement or interested persons of any such party, cast in person at a meeting
for the purpose of voting on such approval and (b) by the vote of the Trust’s Board of Trustees or
the vote of a majority of the outstanding voting securities of such Fund. This Agreement is
terminable without penalty with sixty days’ prior written notice, by the Trust’s Board of Trustees,
by vote of a majority of the outstanding voting securities of the Trust, or by the Distributor.
This Agreement will also terminate automatically in the event of its assignment. (As used in this
Agreement, the terms “majority of the outstanding voting securities,” “interested persons” and
“assignment” shall have the same meaning as ascribed to such terms in the 1940 Act.)
Privacy.
Nonpublic personal financial information relating to consumers or customers of the Funds
provided by, or at the direction of, the Trust to the Distributor, or collected or retained by the
Distributor to perform its duties as distributor, shall be considered confidential information.
The Distributor shall not disclose or otherwise use any nonpublic personal financial information
relating to present or former shareholders of the Funds other than for the purposes for which that
information was disclosed to the Distributor, including use under an exception in Rules 13, 14 or
15 of Securities and Exchange Commission Regulation S-P in the ordinary course of business to carry
out those purposes. The Distributor shall have in place and 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
and customers of the Funds. The Trust represents to the Distributor that it has adopted a
Statement of its privacy policies and practices as required by Securities and Exchange Commission
Regulation S-P and agrees to provide the Distributor with a copy of that statement annually.
Anti-Money Laundering Compliance.
Each of Distributor and the Trust acknowledges that it is a financial institution subject to
the USA Patriot Act of 2001 and the Bank Secrecy Act (collectively, the “AML Acts”), which require,
among other things, that financial institutions adopt
compliance programs to guard against money laundering. Each represents and warrants to the
other that it is in compliance with and will continue to comply with the AML Acts and applicable
regulations in all relevant respects. The Distributor 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 compliance
obligations applicable to financial institutions under applicable laws and, consequently, under
applicable contractual provisions requiring compliance with laws.
The Distributor shall include specific contractual provisions regarding anti-money laundering
compliance obligations in agreements entered into by the Distributor with any dealer that is
authorized to effect transactions in Shares of the Trust.
Each of Distributor 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,
including but not limited to the provision of copies of its written procedures, policies and
controls related thereto (“AML Operations”). Distributor undertakes that it will grant to the
Trust, the Trust’s anti-money laundering compliance officer and regulatory agencies, reasonable
access to copies of Distributor’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 Distributor’s AML Operations, books or records pertaining to other clients of
Distributor.
Notices.
Any notice provided hereunder shall be sufficiently given when sent by registered or certified
mail to the party required to be served with such notice at the following address: if to the
Trust, to it at AXIA Investment Management, Inc., One Xxxxxxxx Center, 15th Floor, Bank
of Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, Attn: Xxxx Xxxxx; and if to Distributor, to it at BOSC,
Inc. Xxx Xxxxxxxx Xxxxxx, Xxxxx Level, Bank of Xxxxxxxx Xxxxx, Xxxxx, XX, 00000, Attn: Compliance,
or at such other address as such party may from time to time specify in writing to the other party
pursuant to this Section.
10. Confidentiality.
During the term of this Agreement, the Distributor and the Trust may have access to
confidential information relating to such matters as either party’s business, trade secrets,
systems, procedures, manuals, products, contracts, personnel, and clients. As used in this
Agreement, “Confidential Information” means information belonging to the Distributor or the Trust
which is of value to such party and the disclosure of which could result in a competitive or other
disadvantage to either party, including, without limitation, financial information, business
practices and policies, know-how, trade secrets, market or sales information or plans, customer
lists, business plans, and all provisions of this Agreement. Confidential Information includes
information developed by either party in the course of engaging in the activities provided for in
this Agreement, unless: (i) the information is or becomes publicly known without breach of this
Agreement, (ii) the information is disclosed to the other party by a third party not under an
obligation confidentiality to the
party whose Confidential Information is at issue of which the party receiving the information
should reasonably be aware, or (iii) the information is independently developed by a party without
reference to the other’s Confidential Information. Each party will protect the other’s
Confidential Information with at least the same degree of care it uses with respect to its own
Confidential Information, and will not use the other party’s Confidential Information other than in
connection with its duties and obligations hereunder. Notwithstanding the foregoing, a party may
disclose the other’s Confidential Information if (i) required by law, regulation or legal process
or if requested by any Agency; (ii) it is advised by counsel that it may incur liability for
failure to make such disclosure; or (iii) requested to by the other party; provided that in the
event of (i) or (ii) the disclosing party shall give the other party reasonable prior notice of
such disclosure to the extent reasonably practicably and cooperate with the other party (at such
other party’s expense) in any efforts to prevent such disclosure. The obligations of
confidentiality set forth in this Section 10 shall survive the termination of this Agreement for an
indefinite period with respect to customer lists and personal non-public information regarding the
Trust’s customers, and for a period of three (3) years after termination with respect to all other
Confidential Information.
11 Governing Law
This Agreement shall be construed in accordance with the laws of the Commonwealth of
Massachusetts and the applicable provisions of the 1940 Act.
12. Prior Agreements
This Agreement constitutes the complete agreement of the parties as to the subject matter
covered by this Agreement, and supersedes all prior negotiations, understandings and agreements
bearing upon the subject matter covered by this Agreement.
13. Amendments
No amendment to this Agreement shall be valid unless made in writing and executed by both
parties hereto.
14. Matters Relating to the Trust as a Massachusetts Business Trust
It is expressly agreed that the obligations of the Trust hereunder shall not be binding upon
any of the Trustees, shareholders, nominees, officers, agents or employees of the Trust personally,
but shall bind only the trust property of the Trust. The execution and delivery of this Agreement
have been authorized by the Trustees, and this Agreement has been signed and delivered by an
authorized officer of the Trust, acting as such, and neither such authorization by the 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 them personally, but shall bind only the trust property
of the Trust as provided in the Trust’s Declaration of Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their
officers designated below as of the day and year first written above.
| AMERICAN PERFORMANCE FUNDS |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxx | |||
| Title: | President | |||
| BOSC, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | President/CEO | |||
SCHEDULE A
FUNDS
Short-Term Income Fund
Intermediate Bond Fund
Bond Fund
Intermediate Tax-Free Bond Fund
Balanced Fund
U.S. Tax-Efficient Large Cap Equity
U.S. Tax-Efficient Mid Cap Equity
U.S. Large Cap Equity Fund
U.S. Mid Cap Equity Fund
U.S. Small Cap Equity Fund
U.S. Treasury Fund
Cash Management Fund
Tax-Free Money Market Fund
Intermediate Bond Fund
Bond Fund
Intermediate Tax-Free Bond Fund
Balanced Fund
U.S. Tax-Efficient Large Cap Equity
U.S. Tax-Efficient Mid Cap Equity
U.S. Large Cap Equity Fund
U.S. Mid Cap Equity Fund
U.S. Small Cap Equity Fund
U.S. Treasury Fund
Cash Management Fund
Tax-Free Money Market Fund
SCHEDULE B
DISTRIBUTION PLAN
AMENDED AND RESTATED
DISTRIBUTION AND SHAREHOLDER SERVICES PLAN
DISTRIBUTION AND SHAREHOLDER SERVICES PLAN
Dated August 2, 2007
This Plan (the “Plan”) constitutes the DISTRIBUTION AND SHAREHOLDER SERVICES PLAN of American
Performance Funds, a Massachusetts business trust (the “Trust”), adopted pursuant to Rule 12b-1
under the Investment Company Act of 1940 (the “1940 Act”). The Plan relates to the units of
beneficial interest (“Shares”) of the Trust’s investment portfolios identified on Schedule A
hereto, as such may be amended from time to time (individually, a “Fund”).
WHEREAS, it is desirable to enable the Trust to have flexibility in meeting the investment and
Shareholder servicing needs of its future investors; and
WHEREAS, the Board of Trustees, mindful of the requirements imposed by Rule 12b-1 under the
1940 Act, has determined to effect the Plan for the provision of distribution assistance with
respect to the Shares of each Fund and for the provision of Shareholder services with respect to
the holders of Shares of each Fund;
NOW, THEREFORE, the Trust and BOSC, Inc. (the “Distributor”) hereby agree as follows:
Section 1. Each Fund shall pay the Distributor a distribution fee equal to the lesser
of (i) the fee at the applicable annual rate set forth on Schedule A hereto or (ii) such fee as may
from time to time be agreed upon in writing by the Trust and the Distributor (the “Distribution
Fee”). The Distributor may apply the Distribution Fee toward the following: (i) compensation for
its services in connection with distribution assistance with respect to a Fund’s Shares or for its
services in connection with the rendering of Shareholder services to the holders of a Fund’s
Shares: (ii) payments to financial institutions and intermediaries (such as insurance companies and
investment counselors but not including banks and savings and loan associations), broker-dealers,
and the Distributor’s affiliates and subsidiaries as compensation for services and/or reimbursement
of expenses incurred in connection with distribution assistance or Shareholder services with
respect to a Fund’s Shares; or (iii) payments to banks and savings and loan associations, other
financial institutions and intermediaries, broker-dealers, and the Distributor’s affiliates and
subsidiaries as compensation for services and/or reimbursement of expenses incurred in connection
with the provision of Shareholder services to the holders of a Fund’s Shares. The Distributor
shall receive no compensation from the Trust for its services as Distributor otherwise than as
provided in this Section 1.
Section 2. The Plan shall not take effect with respect to a Fund until it has been
approved by a vote of at least a majority of the outstanding voting securities of that Fund.
Section 3. The Plan shall not take effect until it has been approved, together with
any related agreements, by votes of a majority (or whatever greater percentage may, from time to
time, be required by Section 12(b) of the 1940 Act or the rules and regulations thereunder) of both
(a) the Trustees of the Trust and (b) the Independent Trustees of the Trust cast in person at a
meeting called for the purpose of voting on the Plan or such agreement.
Section 4. The Plan shall continue in effect with respect to a Fund for a period of
more than one year after it takes affect, provided such continuance is specifically approved at
least annually in the manner provided for approval of the Plan in Section 3.
Section 5. Any person authorized to direct the disposition of monies paid or payable
by a Fund pursuant to the Plan or any related agreement shall provide to the Trustees of the Trust,
and the Trustees shall review, at least quarterly, a written report of the amounts so expended and
the purposes for which such expenditures were made.
Section 6. The Plan may be terminated with respect to a Fund at any time by vote of a
majority of the Independent Trustees, or by vote of a majority of the outstanding voting securities
of that Fund.
Section 7. All agreements with any person relating to the implementation of the Plan
shall be in writing, and any agreement related to the Plan shall provide:
| A. | That such agreement may be terminated with respect to a Fund at any time, without payment of any penalty, by vote of a majority of the Independent Trustees, or by vote of a majority of the outstanding voting securities of that Fund, on not more than 60 days’ written, notice; and | ||
| B. | That such agreement shall terminate automatically in the event of its assignment. |
Section 8. The Plan may not be amended to increase materially the amount of the
Distribution Fee with respect to a Fund without approval in the manner provided in Sections 3 and 4
hereof and all material amendments to the Plan with respect to a Fund shall be approved in the
manner provided for approval of the Plan in Section 3.
Section 9. As used herein, (a) the term “Independent Trustees” shall mean those
Trustees of the Trust who are not interested persons of the Trust and who have no direct or
indirect financial interest in the operation of the Plan or any agreements related to it and (b)
the terms “assignment,” interested person,” and “majority of the outstanding voting securities”
shall have the respective meanings specified in the 1940 Act and the
rules and regulations thereunder, subject to such exemptions as may be granted by the
Securities and Exchange Commission.
Section 10. The names “American Performance Funds” and “Trustees of American
Performance Funds” refer respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under an Agreement and Declaration of Trust
dated October 1, 1987 to which reference is hereby made and a copy of which is on file at the
office of the Secretary of State of The Commonwealth of Massachusetts and elsewhere as required by
law, and to any and all amendments thereto so filed or hereafter filed. The obligations of
“American Performance Funds” entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities, and are not binding
upon any of the Trustees, Shareholders or representatives of the Trust personally, but bind only
the assets of the Trust, and all persons dealing with any series of shares of the Trust must look
solely to the assets of the Trust belonging to such series for the enforcement of any claims
against the Trust.
Schedule A to the
Amended and Restated
Distribution and Shareholder Services Plan
Between American Performance Funds and BOSC, Inc.
Amended and Restated
Distribution and Shareholder Services Plan
Between American Performance Funds and BOSC, Inc.
Dated August 2, 2007
| Name of Fund | Compensation* | |
American Performance Cash Management
Fund — Administrative Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of Administrative Shares of American Performance Cash Management Fund’s average daily net assets. | |
American Performance Cash Management
Fund — Service Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of Service Shares of American Performance Cash Management Fund’s average daily net assets. | |
American Performance U.S. Treasury
Fund — Administrative Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of Administrative Shares of American Performance U.S. Treasury Fund’s average daily net assets. | |
American Performance U.S. Treasury
Fund — Service Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of Service Shares of American Performance U.S. Treasury Fund’s average daily net assets. | |
American Performance Tax-Free Money
Market Fund — Administrative Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of Administrative Shares of American Performance Cash Management Fund’s average daily net assets. | |
American Performance Tax-Free Money
Market Fund — Service Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of Service Shares of American Performance Cash Management Fund’s average daily net assets. |
| Name of Fund | Compensation* | |
American Performance Bond Fund — No
Load Investor Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of No Load Investor Shares of American Performance Bond Fund’s average daily net assets. | |
American Performance Intermediate
Bond Fund — No Load Investor Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of No Load Investor Shares of American Performance Intermediate Bond Fund’s average daily net assets. | |
American Performance Intermediate
Tax-Free Bond Fund — No Load
Investor Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of No Load Investor Shares of American Performance Intermediate Tax-Free Bond Fund’s average daily net assets. | |
American Performance U.S.
Tax-Efficient Large Cap Equity Fund
— No Load Investor Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of No Load Investor Shares of American Performance U.S. Tax-Efficient Large Cap Equity Fund’s average daily net assets. | |
American Performance Short-Term
Income Fund — No Load Investor
Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of No Load Investor Shares of American Performance Short-Term Income Fund’s average daily net assets. | |
American Performance Balanced Fund
— No Load Investor Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of No Load Investor Shares of American Performance Balanced Fund’s average daily net assets. | |
American Performance U.S.
Tax-Efficient Mid Cap Equity Fund+
— No Load Investor Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of No Load Investor Shares of American Performance U.S. Tax-Efficient Mid Cap Equity Fund’s average daily net assets. | |
American Performance U.S. Large Cap
Equity Fund+ — No Load Investor
Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of No Load Investor Shares of American Performance U.S. Large Cap Equity Fund’s average daily net assets. |
| Name of Fund | Compensation* | |
American Performance U.S. Mid Cap
Equity Fund+ — No Load Investor
Shares
|
Annual rate of twenty-five one-hundredths of one percent (.25%) of No Load Investor Shares of American Performance U.S. Mid Cap Equity Fund’s average daily net assets. |
| * | All fees are computed daily and paid monthly. | |
| + | As of August 2, 2007 these funds have not commenced operations. Until each such Fund commences operation, services will not be rendered and expenses will not be incurred under this Agreement. |
