DISTRIBUTION AGREEMENT
THIS AGREEMENT (the “Agreement”) is made as of April 16 , 2018, between Xxxxx Capital Management Mutual Funds, a Delaware statutory trust (the “Trust”), and ALPS Distributors, Inc., a Colorado corporation (“ALPS”).
WHEREAS, the Trust is an open-end management investment company registered under the Investment Company Act of 1940, as amended (the “1940 Act”), presently consisting of one or more portfolios (each a “Fund” and collectively the “Funds”);
WHEREAS, ALPS is registered as a broker-dealer under the Securities Exchange Act of 1934, as amended, and a member of the Financial Industry Regulatory Authority, Inc.;
WHEREAS, the Trust and ALPS are parties to a distribution agreement, as amended, attached hereto as Exhibit 1 (“Prior Distribution Agreement”);
WHEREAS, on January 11, 2018, DST Systems, Inc. (“DST”), the ultimate parent company of ALPS (as of that date), announced that it had entered into a definitive agreement under which SS&C Technologies Holdings, Inc. (“SS&C”) will acquire all of the outstanding common stock of DST (the “Transaction”);
WHEREAS, upon completion of the Transaction, SS&C will have indirect controlling interest in ALPS and, as such, the Transaction may result in an “assignment” (as such term is defined under the 0000 Xxx) of the Prior Distribution Agreement;
WHEREAS, under the 1940 Act, an assignment includes any direct or indirect transfer of a controlling block of an entity’s voting securities and, as a result of an assignment, the Prior Distribution Agreement may be deemed terminated; and
WHEREAS, in light of the possible assignment and change in control of ALPS in connection with the Transaction, ALPS and the Trust wish to enter into this Agreement effective upon close of the Transaction.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the parties agree as follows.
| 1. | Appointment. The Trust hereby appoints ALPS to provide the distribution services set forth
in the Prior Distribution Agreement, attached hereto as Exhibit 1. |
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| 2. | Incorporation. Except as provided below in Section 3, all terms, conditions, representations,
warranties and covenants contained in the Prior Distribution Agreement, attached
hereto as Exhibit 1, are incorporated herein by reference. |
| 3. | Conflicts. | |||
| (a) | To the
extent any defined term within the main body of this Agreement (“Main Body”; for the avoidance of doubt, the term “Main Body” excludes Exhibit 1
and any future exhibit to this Agreement (each, a “Future Exhibit”))
conflicts with a defined term provided in Exhibit 1, the defined term included in
the Main Body shall control and the conflicting defined term within Exhibit 1 is
hereby replaced with the defined term contained within the Main Body. |
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| (b) | To the
extent there is any other conflict between the Main Body and Exhibit 1, the Main
Body shall control. |
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| (c) | To the
extent there is a conflict between Exhibit 1 and a Future Exhibit, the Future Exhibit
shall control. |
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| 4. | Duration and Termination of this Agreement. | |||
| (a) | Initial
Term. This Agreement shall become effective as of the date first written above
(the “Start Date”) and shall continue thereafter throughout the period
that ends two (2) years after the Start Date (the “Initial Term”). |
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| (b) | Renewal
Term. If not sooner terminated, this Agreement shall renew at the end of the
Initial Term and shall thereafter continue for successive annual periods, provided
such continuance is specifically approved at least annually (i) by the Trust’s
Board of Trustees or (ii) by a vote of a majority of the outstanding voting securities
of the relevant Fund of the Trust, provided that in either event the continuance
is also approved by the majority of the Trustees of the Trust who are not interested
persons (as defined in the 0000 Xxx) of any party to this Agreement by vote cast
in person at a meeting called for the purpose of voting on such approval. If a plan
under Rule 12b-1 of the 1940 Act is in effect (where applicable), continuance of
the plan and this Agreement must be approved at least annually by a majority of
the Trustees of the Trust who are not interested persons (as defined in the 0000
Xxx) and have no financial interest in the operation of such plan or in any agreements
related to such plan, cast in person at a meeting called for the purpose of voting
on such approval. |
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| (c) | This Agreement
is terminable on sixty (60) days’ written notice by the Trust’s Board
of Trustees, by vote of the holders of a majority of the outstanding voting securities
of the relevant Fund of the Trust, or by ALPS. |
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| (d) | Deliveries
Upon Termination. Upon termination of this Agreement, ALPS agrees to cooperate
in the orderly transfer of distribution duties and shall deliver to the Trust or
as otherwise directed by the Trust (at the expense of the Trust) all records and
other documents made or accumulated in the performance of its duties for the Trust
hereunder. In the event ALPS gives notice of termination under this Agreement, it
will continue to provide the services contemplated hereunder after such termination
at the contractual rate for up to 120 days, provided that the Trust uses all reasonable
commercial efforts to appoint such replacement on a timely basis. |
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| 5. | Assignment.
This Agreement will automatically terminate in the event of its assignment (as defined
in the 1940 Act). This Agreement shall not be assignable by the Trust without the
prior written consent of ALPS. |
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| 6. | Amendments.
This Agreement may only be amended by the parties in writing. |
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| 7. | ||
| 8. | Counterparts.
This Agreement may be executed by the patties hereto on any number of counterparts,
and all of said counterparts taken together shall be deemed to constitute one and
the same instrument. |
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| 9. | Entire
Agreement. This Agreement embodies The entire agreement and understanding among
the parties and supersedes all prior agreements and understandings relating to the
subject matter hereof; provided, however, that ALPS may embody in one or more separate
documents its agreement, if any, with respect to delegated duties and oral instruction. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
EXHIBIT 1
Distribution Agreement (the “Agreement”) made this 1st day of November, 2011, by and between Nottingham Investment Trust II, a Delaware statutory trust (the “Trust”) and ALPS Distributors, Inc., a Colorado corporation (the “Distributor”).
WHEREAS, the Trust is a registered open-end management investment company organized as a series trust offering a number of portfolios of securities (each a “Fund” and collectively, the “Funds”);
WHEREAS, the Trust and Distributor are party to a Distribution Agreement dated August 1, 2011, attached hereto as Exhibit A and incorporated herein by reference (the “Distribution Agreement”) whereby the Trust retained the Distributor to promote and distribute the shares of the Funds.
WHEREAS, on July 19, 2011, ALPS Holdings, Inc., (“AHI”) the parent company of the Distributor, entered into a merger agreement pursuant to which AHI agreed to be acquired by DST Systems, Inc. (“DST”) (the “Transaction”); the acquisition also includes an indirect controlling interest in the Distributor;
WHEREAS, upon completion of the Transaction, the Transaction may result in an “assignment”, as such term is defined under the Investment Company Act of 1940, as amended, (the “1940 Act”) of the Distribution Agreement;
WHEREAS, under the 1940 Act, an assignment includes any direct or indirect transfer of a controlling block of an entity’s voting securities and a result of the assignment, henceforth the Distribution Agreement may be deemed terminated; and
WHEREAS, in light of the proposed assignment and change in control of the Distributor in connection with the Transaction, the Distributor and Trust wish to enter into this Agreement effective upon close of the Transaction.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the Trust and the Distributor agree as follows:
| 1. | Appointment.
The Trust hereby appoints the Distributor to provide the distribution services set
forth in the Distribution Agreement. |
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| 2. | All terms,
conditions, representations and warranties contained in the Distribution Agreement
are incorporated herein by reference and both the Trust and Distributor hereby agree
that unless specified elsewhere in this Agreement, all terms, conditions, representations
and warranties contained in the this Agreement, including the Distribution Agreement
attached hereto as Exhibit A and incorporated herein by reference, constitutes the
entire understanding between the parties hereto, and supersede any prior understanding
or agreements between the parties related to the services contemplated herein, including
the Distribution Agreement. |
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| 3. | Duration and Termination. This Agreement shall be effective on the date first set forth above,
and unless terminated as provided herein, shall continue for two years from its
effective date, and thereafter from year to year, provided such continuance is approved
annually by the vote of a majority of the Board of Trustees, and by the vote of
those Trustees who are not “interested persons” of the Trust (the “Independent Trustees”)
and, if a plan under Rule 12b-1 under the 1940 Act is in effect, by the vote of
those Trustees who are not “interested persons” of the Trust and who are not parties
to such plan or this Agreement and have no financial interest in the operation of
such plan or in any agreements related to such plan, cast in person at a meeting
called for the purpose of voting on the approval. This Agreement may be terminated
at any time, without the |
payment
of any penalty, as to each Fund (i) by vote of majority of the Independent Trustees
or (ii) by vote of a majority (as defined in the 0000 Xxx) of the outstanding voting
securities of the Fund, on at least sixty (60) days prior written notice to the
Distributor. In addition, this Agreement may be terminated at any time by the Distributor
upon at least sixty (60) days prior written notice to the Trust. This Agreement
shall automatically terminate in the event of its assignment. As such in this paragraph,
the terms “assignment” and “interested persons” shall have the respective meanings
specified in the 1940 Act. |
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| 4. | Amendment. No provision of this Agreement may be changed, waived, discharged or terminated
except by an instrument in writing signed by the party against which an enforcement
of the change, waiver, discharge or termination is sought. |
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| 5. | Choice of Law. This Agreement shall be governed by, and construed and enforced in accordance
with the laws of the State of Colorado, without giving effect to the choice of laws
provisions thereof. |
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| 6. | Counterparts. This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same
instrument. |
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| 7. | All capitalized
terms used but not defined in this Agreement shall have the meanings ascribed to
them in the Distribution Agreement. |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their officers designated below as of the date first set forth above.
ALPS DISTRIBUTORS, INC.
NOTTINGHAM INVESTMENT TRUST II
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of August 1st, 2011, between Nottingham Investment Trust II____________, a Massachusetts trust (the “Fund”), and ALPS Distributors, Inc., a Colorado corporation (“ALPS”).
WHEREAS, the Fund is an open-end diversified investment company registered under the Investment Company Act of 1940, as amended, and the series portfolios of the Fund that will be covered by this Agreement are listed in Appendix A (the “Portfolios”);
WHEREAS, ALPS is registered as a broker-dealer under the Securities Exchange Act of 1934 (the “1934 Act”) and a member of the Financial Industry Regulatory Authority (“FINRA”); and
WHEREAS, the Fund wishes to employ the services of ALPS in connection with the promotion and distribution of the shares of the Fund (the “Shares”).
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the parties agree as follows.
1. |
ALPS Appointment and Duties. | |||
(a) |
The Fund
hereby appoints ALPS to provide the distribution services set forth in this Agreement
on Appendix B with respect to the Portfolios, as amended from time to time, upon
the terms and conditions hereinafter set forth. ALPS hereby accepts such appointment
and agrees to furnish such specified services. ALPS shall for all purposes be deemed
to be an independent contractor and shall, except as otherwise expressly authorized
in this Agreement, have no authority to act for or represent the Fund in any way
or otherwise be deemed an agent of the Fund. |
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(b) |
ALPS may
employ or associate itself with a person or persons or organizations as ALPS believes
to be desirable in the performance of its duties hereunder; provided that, in such
event, the compensation of such person or persons or organizations shall be paid
by and be the sole responsibility of ALPS, and the Fund shall bear no cost or obligation
with respect thereto; and provided further that ALPS shall not be relieved of any
of its obligations under this Agreement in such event and shall be responsible for
all acts of any such person or persons or organizations taken in furtherance of
this Agreement to the same extent it would be for its own acts. |
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2. |
ALPS Compensation; Expenses. | |||
(a) |
ALPS will
bear all expenses in connection with the performance of its services under this
Agreement, except as otherwise provided herein. ALPS will not bear any of the costs
of Fund personnel. Other Fund expenses incurred shall be borne by the Fund or the
Fund’s investment adviser, including, but not limited to, initial organization
and offering expenses; the blue sky registration and qualification of Shares for
sale in the |
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various
states in which the officers of the Fund shall determine it advisable to qualify
such Shares for sale (including registering the Fund as a broker or dealer or any
officer of the Fund as agent or salesman in any state); litigation expenses; taxes;
costs of preferred shares; expenses of conducting repurchase offers for the purpose
of repurchasing Fund shares; administration, transfer agency, and custodial expenses;
interest; Fund directors’ or trustees’ fees; brokerage fees and commissions;
state and federal registration fees; advisory fees; insurance premiums; fidelity
bond premiums; Fund and investment advisory related legal expenses; costs of maintenance
of Fund existence; printing and delivery of materials in connection with meetings
of the Fund’s directors or trustees; printing and mailing of shareholder reports,
prospectuses, statements of additional information, other offering documents and
supplements, proxy materials, and other communications to shareholders; securities
pricing data and expenses in connection with electronic filings with the U.S. Securities
and Exchange Commission (the “SEC”). |
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| 3. | Documents. The Fund has furnished or will furnish, upon request, ALPS with copies
of the Fund’s Declaration of Trust, advisory agreement, custodian agreement,
transfer agency agreement, administration agreement, current prospectus, statement
of additional information, periodic Fund reports, and all forms relating to any
plan, program or service offered by the Fund. The Fund shall furnish, within a reasonable
time period, to ALPS a copy of any amendment or supplement to any of the above-mentioned
documents. Upon request, the Fund shall furnish promptly to ALPS any additional
documents necessary or advisable to perform its functions hereunder. As used in
this Agreement the terms “registration statement,” “prospectus” and “statement
of additional information” shall mean any registration statement, prospectus and
statement of additional information filed by the Fund with the SEC and any amendments
and supplements thereto that are filed with the SEC. |
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| 4. |
Sales of Shares. |
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| (a) | The Fund
grants to ALPS the right to sell the Shares as agent on behalf of the Fund, during
the term of this Agreement, subject to the registration requirements of the Securities
Act of 1933, as amended (the “1933 Act”), the Investment Company Act of 1940, as
amended (the “1940 Act”), and of the laws governing the sale of securities in the
various states (“Blue Sky Laws”), under the terms and conditions set forth in this
Agreement. ALPS shall have the right to sell, as agent on behalf of the Fund, the
Shares covered by the registration statement, prospectus and statement of additional
information for the Fund then in effect under the 1933 Act and 1940 Act. |
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| (b) | The rights
granted to ALPS shall be exclusive, except that the Fund reserves the right to sell
Shares directly to investors on applications received and accepted by the Fund. |
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| (c) | Except
as otherwise noted in the Fund’s current prospectus and/or statement of additional
information, all Shares sold to investors by ALPS or the Fund will be sold at the
public offering price. The public offering price for all accepted subscriptions |
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will be
the net asset value per Share, as determined in the manner described in the Fund’s current prospectus and/or statement of additional information. |
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| (d) | The Fund
shall receive the net asset value per Share on all sales. If a fee in connection
with shareholder redemptions is in effect, such fee will be paid to the Fund. The
net asset value of the Shares will be calculated by the Fund or by another entity
on behalf of the Fund. ALPS has no duty to inquire into, or liability for, the accuracy
of the net asset value per Share as calculated. |
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| (e) | The Fund
reserves the right to suspend sales and ALPS’ authority to process orders for
Shares on behalf of the Fund if, in the judgment of the Fund, it is in the best
interests of the Fund to do so. Suspension will continue for such period as may
be determined by the Fund. |
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| (f) | In consideration
of these rights granted to ALPS, ALPS agrees to use its best efforts to solicit
orders for the sale of the Shares at the public offering price and will undertake
such advertising and promotion as it believes is reasonable in connection with such
solicitation. ALPS shall review and file such materials with the SEC and/or FINRA
to the extent required by the 1934 Act and the 1940 Act and the rules and regulations
thereunder, and by the rules of FINRA. This shall not prevent ALPS from entering
into like arrangements (including arrangements involving the payment of underwriting
commissions) with other issuers. ALPS will act only on its own behalf as principal
should it choose to enter into selling agreements with selected dealers or others. |
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| (g) | ALPS is
not authorized by the Fund to give any information or to make any representations
other than those contained in the registration statement or prospectus and statement
of additional information, or contained in shareholder reports or other material
that may be prepared by or on behalf of the Fund for ALPS’ use. Consistent
with the foregoing, ALPS may prepare and distribute sales literature or other material
as it may deem appropriate in consultation with the Fund, provided such sales literature
complies with applicable law and regulations. |
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| (h) | The Fund
agrees that it will take all action necessary to register the Shares under the 1933
Act and the 1940 Act (subject to the necessary approval of its shareholders). The
Fund shall make available to ALPS, at ALPS’ expense, such number of copies
of its prospectus, statement of additional information, and periodic reports as
ALPS may reasonably request. The Fund shall furnish to ALPS copies of all information,
financial statements and other papers, which ALPS may reasonably request for use
in connection with the distribution of Shares of the Fund. |
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| (i) | The Fund
agrees 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 ALPS may designate. The
Fund must notify ALPS in writing of the states in which the Shares may be
sold and must notify ALPS in writing of any changes to the information contained
in the previous notification. |
| (j) | The Fund
shall not use the name of ALPS, or any of its affiliates, in any prospectus or statement
of additional information, sales literature, and other material relating to the
Fund in any manner without the prior written consent of ALPS (which shall not be
unreasonably withheld); provided, however, that ALPS hereby approves all lawful
uses of the names of ALPS and its affiliates in the prospectus and statement of
additional information of the Fund and in all other materials which merely refer
in accurate terms to its appointment hereunder or which are required by the SEC,
FINRA, OCC or any state securities authority. |
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| (k) | Neither
ALPS nor any of its affiliates shall use the name of the Fund in any publicly disseminated
materials, including sales literature, in any manner without the prior consent of
the Fund (which shall not be unreasonably withheld); provided, however, that the
Fund hereby approves all lawful uses of its name in any required regulatory filings
of ALPS which merely refer in accurate terms to the appointment of ALPS hereunder,
or which are required by the SEC, FINRA, OCC or any state securities authority. |
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| (l) | ALPS will
promptly transmit any orders received by it for purchase, redemption, or exchange
of the Shares to the Fund’s transfer agent. |
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| (m) | The Fund
agrees to issue Shares of the Fund and to request The Depository Trust Company to
record on its books the ownership of such Shares in accordance with the book-entry
system procedures described in the prospectus in such amounts as ALPS has requested
through the transfer agent in writing or other means of data transmission, as promptly
as practicable after receipt by the Fund of the requisite deposit securities and
cash component (together with any fees) and acceptance of such order, upon the terms
described in the Registration Statement. |
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| (n) | The Fund
agrees that it will take all action necessary to register an indefinite number of
Shares under the 0000 Xxx. The Fund shall make available to ALPS, at ALPS’
expense, such number of copies of its prospectus, statement of additional information,
and periodic reports as ALPS may reasonably request. The Fund will furnish to ALPS
copies of all information, financial statements and other papers, which ALPS may
reasonably request. |
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| (o) | The Fund
agrees 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 ALPS may designate. The
Fund will keep ALPS informed of the jurisdictions in which Shares of the Fund are
authorized for sale and shall promptly notify ALPS of any change in this information. |
| 5. | Insurance.
ALPS agrees to maintain fidelity bond and liability insurance coverages which are,
in scope and amount, consistent with coverages customary for distribution activities
relating to the Fund. ALPS shall notify the Fund upon receipt of any notice of material,
adverse change in the terms or provisions of its insurance coverage. Such notification
shall include the date of change and the reason or reasons therefor. ALPS shall
notify the Fund of any material claims against it, whether or not covered by insurance,
and shall notify the Fund from time to time as may be appropriate of the total outstanding
claims made by it under its insurance coverage. |
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| 6. |
Right to Receive Advice. |
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| (a) | Advice
of the Fund and Service Providers. If ALPS is in doubt as to any action it should
or should not take, ALPS may request directions, advice, or instructions from the
Fund or, as applicable, the Fund’s investment adviser, custodian, or other
service providers. |
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| (b) | Advice
of Counsel. If ALPS is in doubt as to any question of law pertaining to any action
it should or should not take, ALPS may request advice from counsel of its own choosing
(who may be counsel for the Fund, the Fund’s investment adviser, or ALPS, at
the option of ALPS). |
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| 7. | Standard of Care; Limitation of Liability; Indemnification. | |||
| (a) | ALPS shall
be obligated to act in good faith and to exercise commercially reasonable care and
diligence in the performance of its duties under this Agreement. |
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| (b) | In the
absence of willful misfeasance, bad faith, negligence, or reckless disregard by
ALPS in the performance of its duties, obligations, or responsibilities set forth
in this Agreement, ALPS and its affiliates, including their respective officers,
directors, agents, and employees, shall not be liable for, and the Fund agrees to
indemnify, defend and hold harmless such persons from, all taxes, charges, expenses,
assessments, claims, and liabilities (including, without limitation, attorneys’
fees and disbursements and liabilities arising under applicable federal and state
laws) arising directly or indirectly from the following: |
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| (i) | the inaccuracy
of factual information furnished to ALPS by the Fund or the Fund’s investment
adviser, custodians, or other service providers; |
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| (ii) | any untrue
statement of a material fact or omission of a material fact required to be stated
or necessary in order to make the statements not misleading under the 1933 Act,
the 1940 Act, or any other statute or the common law, in any registration statement,
prospectus, statement of additional information, shareholder report, or other information
filed or made public by the Fund (as amended from time to time), except to the extent
the statement or omission was made in reliance upon, and in conformity with, information
furnished to the Fund by or on behalf of ALPS; |
| (iii) | any error
of judgment or mistake of law or for any loss suffered by the Fund in connection
with the matters to which this Agreement relates; |
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| (iv) | losses,
delays, failure, errors, interruption or loss of data occurring directly or indirectly
by reason of circumstances beyond its reasonable control, including without limitation,
acts of God, action or inaction of civil or military authority, war, terrorism,
riot, fire, flood, sabotage, labor disputes, elements of nature, or non-performance
by a third party; |
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| (v) | ALPS’
reliance on any instruction, direction, notice, instrument or other information
that ALPS reasonably believes to be genuine; |
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| (vi) | loss of
data or service interruptions caused by equipment failure; or |
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| (vii) | any other
action or omission to act which ALPS takes in connection with the provision of services
to the Fund. |
(c) |
ALPS shall
indemnify and hold harmless the Fund, the Fund’s investment adviser and their
respective officers, directors, agents, and employees from and against any and all
taxes, charges, expenses, assessments, claims, and liabilities (including, without
limitation, attorneys’ fees and disbursements and liabilities arising under
applicable federal and state laws) arising directly or indirectly from ALPS’
willful misfeasance, bad faith, negligence, or reckless disregard in the performance
of its duties, obligations, or responsibilities set forth in this Agreement. |
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(d) |
Notwithstanding
anything in this Agreement to the contrary, neither party shall be liable under
this Agreement to the other party hereto for any punitive, consequential, special
or indirect losses or damages. Any indemnification payable by a party to this Agreement
shall be net of insurance maintained by the indemnified party as of the time the
claim giving rise to indemnity hereunder is alleged to have arisen to the extent
it covers such claim. |
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| 8. |
Activities of ALPS. The services of ALPS under this Agreement are not to be
deemed exclusive, and ALPS shall be free to render similar services to others. The
Fund recognizes that from time to time directors, officers and employees of ALPS
may serve as directors, officers and employees of other corporations or businesses
(including other investment companies) and that such other corporations and businesses
may include ALPS as part of their name and that ALPS or its affiliates may enter
into distribution agreements or other agreements with such other corporations and
businesses. |
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| 9. |
Accounts and Records. The accounts and records maintained by ALPS shall be
the property of the Fund. ALPS shall prepare, maintain and preserve such accounts
and records as required by the 1940 Act and other applicable securities laws, rules
and regulations. ALPS shall surrender such accounts and records to the Fund, in
the form in which such accounts and records have been maintained or preserved, promptly
upon |
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receipt of instructions from the Fund. The Fund shall have access to such accounts
and records at all times during ALPS’ normal business hours. Upon the reasonable
request of the Fund, copies of any such books and records shall be provided by ALPS
to the Fund at the Fund’s expense. ALPS shall assist the Fund, the Fund’s
independent auditors, or, upon approval of the Fund, any regulatory body, in any
requested review of the Fund’s accounts and records, and reports by ALPS or
its independent accountants concerning its accounting system and internal auditing
controls will be open to such entities for audit or inspection upon reasonable request.
ALPS or its undersigned as defined by Rule l 7a-4 of the Securities and Exchange
Act (the “Exchange Act”), shall have access to all electronic communications, including
password access to the system storing the electronic communications, of registered
representatives of ALPS that are associated with the Fund and are required to be
maintained under Rule 17a-4 of the Exchange Act and FINRA Rules 3110 and 3010. Electronic
storage media maintained by the Fund will comply with Rule 17 a-4 of the Exchange
Act. |
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| 10. |
Confidential and Proprietary Information. ALPS agrees that it will, on behalf
of itself and its officers and employees, treat all transactions contemplated by
this Agreement, and all records and information relative to the Fund and its current
and former shareholders and other information germane thereto, as confidential and
as proprietary information of the Fund and not to use, sell, transfer, or divulge
such information or records to any person for any purpose other than performance
of its duties hereunder, except after prior notification to and approval in writing
from the Fund, which approval shall not be unreasonably withheld. Approval may not
be withheld where ALPS may be exposed to civil, regulatory, or criminal proceedings
for failure to comply, when requested to divulge such information by duly constituted
authorities, or when requested by the Fund. When requested to divulge such information
by duly constituted authorities, ALPS shall use reasonable commercial efforts to
request confidential treatment of such information. ALPS 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 the Fund and its current
and former shareholders. |
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| 11. |
Compliance with Rules and Regulations. ALPS shall comply (and to the extent
ALPS takes or is required to take action on behalf of the Fund hereunder shall cause
the Fund to comply) with all applicable requirements of the 1940 Act and other applicable
laws, rules, regulations, orders and code of ethics, as well as all investment restrictions,
policies and procedures adopted by the Fund of which ALPS has knowledge (it being
understood that ALPS is deemed to have knowledge of all investment restrictions,
policies or procedures set out in the Fund’s public filings or otherwise provided
to ALPS and with all applicable requirements of the 1940 Act and other applicable
laws, rules, regulations, orders and code of ethics). Except as set out in this
Agreement, ALPS assumes no responsibility for such compliance by the Fund. ALPS
shall maintain at all times a program reasonably designed to prevent violations
of the federal securities laws (as defined in Rule 38a-1 under the 0000 Xxx) with
respect to the services provided, and shall provide to the Fund a certification
to such effect no less than annually or as otherwise reasonably requested by the
Fund. ALPS shall make available its compliance personnel and shall provide at its
own expense |
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| summaries and other relevant materials relating to such program as reasonably requested by the Fund. | ||||
| 12. | Representations and Warranties of ALPS. ALPS represents and warrants to the Fund that: | |||
| (a) | It is duly
organized and existing as a corporation and in good standing under the laws of the
State of Colorado. |
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| (b) | It is empowered
under applicable laws and by its Articles of Incorporation and By-laws to enter
into and perform this Agreement. |
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| (c) | All requisite
corporate proceedings have been taken to authorize it to enter into and perform
this Agreement. |
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| (d) | It has and
will continue to have access to the necessary facilities, equipment and personnel
to perform its duties and obligations under this Agreement in accordance with industry
standards. |
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| (e) | ALPS has conducted
a review of its supervisory controls system and has made available to the Fund the
most current report of such review and any updates thereto. Every time ALPS conducts
a review of its supervisory control system it will make available to the Fund for
inspection a report of such review and any updates thereto. ALPS shall immediately
notify the Fund of any changes in how it conducts its business that would materially
change the results of its most recent review of its supervisory controls system
and any other changes to ALPS’ business that would affect the business of the
Fund or the Fund’s investment adviser. |
|||
| 13. |
Representations and Warranties of the Fund. The Fund represents and warrants
to ALPS that: |
|||
| (a) | It is a trust
duly organized and existing and in good standing under the laws of the state of
Massachusetts and is registered with the SEC as an open-end diversified management
investment company. |
|||
| (b) | It is empowered
under applicable laws and by its Declaration of Trust and By-laws to enter into
and perform this Agreement. |
|||
| (c) | The Board
of Trustees of the Fund has duly authorized it to enter into and perform this Agreement. |
|||
| (d) | Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to make any modifications
to its registration statement or adopt any policies which would affect materially
the obligations or responsibilities of ALPS hereunder without the prior notification
to ALPS. |
|||
| 14. |
Consultation Between the Parties. ALPS and the Fund shall regularly consult
with each other regarding ALPS’ performance of its obligations under this Agreement.
In connection therewith, the Fund shall submit to ALPS at a reasonable time in advance
of filing with the SEC reasonably final copies of any amended or supplemented registration
statement (including exhibits) under the 1933 Act and the 1940 Act; provided, however,
that nothing contained in this Agreement shall in any way limit the Fund’s
right to file at any time such amendments to any registration statement and/or supplements
to any prospectus or statement of additional information, of whatever character,
as the Fund may deem advisable, such right being in all respects absolute and unconditional. |
|||
| 15. |
Anti-Money Laundering. ALPS agrees to maintain an anti-money laundering program
in compliance with Title III of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the
“USA Patriot Act”) and all applicable laws and regulations promulgated thereunder.
ALPS confirms that, as soon as possible, following the request from the Fund, ALPS
will supply the Fund with copies of ALPS’ anti-money laundering policy and
procedures, and such other relevant certifications and representations regarding
such policy and procedures as the Fund may reasonably request from time to time. |
|||
| 16. |
Business Interruption Plan. ALPS shall maintain in effect a business interruption
plan, and enter into any agreements necessary with appropriate parties making reasonable
provisions for emergency use of electronic data processing equipment customary in
the industry. In the event of equipment failures, ALPS shall, at no additional expense
to the Fund, take commercially reasonable steps to minimize service interruptions. |
|||
| 17. |
Duration and Termination of this Agreement. |
|||
(a) |
Initial
Term. This Agreement shall become effective as of the date first written above
(the “Start Date”) and shall continue thereafter throughout the period that ends
two (2) years after the Start Date (the “Initial Term”). |
|||
(b) |
Renewal
Term. If not sooner terminated, this Agreement shall renew at the end of the
Initial Term and shall thereafter continue for successive annual periods, provided
such continuance is specifically approved at least annually (i) by the Fund’s
Board of Trustees or (ii) by a vote of a majority of the outstanding voting securities
of the relevant portfolio of the Fund, provided that in either event the continuance
is also approved by the majority of the Trustees of the Fund who are not interested
persons (as defined in the 0000 Xxx) of any party to this Agreement by vote cast
in person at a meeting called for the purpose of voting on such approval. If a plan
under Rule 12b-1 of the 1940 Act is in effect, continuance of the plan and this
Agreement must be approved at least annually by a majority of the Trustees of the
Fund who are not interested persons (as defined in the 0000 Xxx) and have no financial
interest in the operation of such plan or in any agreements related to such plan,
cast in person at a meeting called for the purpose of voting on such approval. |
|||
| (c) | This Agreement
is terminable without penalty on sixty (60) days’ written notice by the Fund’s Board of Trustees, by vote of the holders of a majority of the outstanding
voting securities of the relevant portfolio of the Fund, or by ALPS. |
|||
| (d) | Deliveries
Upon Termination. Upon termination of this Agreement, ALPS agrees to cooperate
in the orderly transfer of distribution duties and shall deliver to the Fund or
as otherwise directed by the Fund (at the expense of the Fund) all records and other
documents made or accumulated in the performance of its duties for the Fund hereunder.
In the event ALPS gives notice of termination under this Agreement, it will continue
to provide the services contemplated hereunder after such termination at the contractual
rate for up to 120 days, provided that the Fund uses all reasonable commercial efforts
to appoint such replacement on a timely basis. |
|||
| 18. |
Assignment. This Agreement will automatically terminate in the event of its
assignment (as defined in the 1940 Act). This Agreement shall not be assignable
by the Fund without the prior written consent of ALPS. |
|||
| 19. | ||||
| 20. |
Names. The obligations of the Fund entered into in the name or on behalf thereof
by any director, shareholder, representative, or agent thereof are made not individually,
but in such capacities, and are not binding upon any of the directors, shareholders,
representatives or agents of the Fund personally, but bind only the property of
the Fund, and all persons dealing with the Fund must look solely to the property
of the Fund for the enforcement of any claims against the Fund. |
|||
| 21. |
Amendments to this Agreement. This Agreement may only be amended by the parties
in writing. |
|||
| 22. |
Notices. All notices and other communications hereunder shall be in writing,
shall be deemed to have been given when received or when sent by telex or facsimile,
and shall be given to the following addresses (or such other addresses as to which
notice is given): |
|||
| To ALPS: | |
ALPS Distributors,
Inc. 0000 Xxxxxxxx, Xxxxx xx00 Xxxxxx, Xxxxxxxx 00000 Attn: General Counsel Fax: (000) 000-0000 |
|
| To the Fund: |
| Name: Nottingham
Investment Trust II Address: 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Attn: Xxxxx Xxx and Xxx Xxxxx Fax: 000.000.0000 |
|
| With a copy to Fund Counsel: | |
| The Law Offices
of Xxxx X. Xxxxxx A Member Firm of the 1940 Act Law Group 0000 X. 000xx Xxxxxxx Xxxxx 000 Xxxxxxx, XX 00000 Fax: 000.000.0000 |
| 24. | Counterparts. This Agreement may be executed by the parties hereto on any number of counterparts,
and all of said counterparts taken together shall be deemed to constitute one and
the same instrument. |
|
| 25. | Entire
Agreement. This Agreement embodies the entire agreement and understanding among
the parties and supersedes all prior agreements and understandings relating to the
subject matter hereof; provided, however, that ALPS may embody in one or more separate
documents its agreement, if any, with respect to delegated duties and oral instructions. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
 |
APPENDIX A
LIST OF PORTFOLIOS
The
Xxxxx Capital Management Small Company Fund (BCSIX)
The Xxxxx Capital Management
International Equity Fund (BCIIX)
The Xxxxx Capital Management Mid-Cap Fund (BCMSX)
APPENDIX B
SERVICES
• |
Act as legal underwriter/distributor | |||
• |
Maintain licensing of sponsor’s staff: | |||
| • | Coordinate
testing |
|||
| • | File documentation |
|||
| • | Maintain
and supervise existing registrations |
|||
• |
Prepare, update, execute and maintain broker/dealer selling agreements |
|||
• |
Review/ file all marketing materials with FINRA | |||
• |
Oversee and administer 12b-1 plans | |||
• |
AVA: AdLit advertising review system & Selling Agreement Maintenance System |
|||
• |
Providing reasonable assistance to the Fund’s CCO in the performance of its
duties, including responding to periodic checklists, granting interviews with key
ALPS staff that the CCO determines appropriate in conjunction with the CCO’s
monitoring of the Fund’s service provider and such other assistance as the
CCO may reasonably request from time to time. |
|||
Amendment To Distribution Agreement
This Amendment, entered into as of July 16, 2015 (the “Execution Date”) and effective as of July 29, 2015 (the “Effective Date”), to the Distribution Agreement (“Agreement”), by and between Xxxxx Capital Management Mutual Funds (formerly known as Nottingham Investment Trust II), a Delaware statutory Trust (the “Trust”) and ALPS Distributors, Inc., a Colorado corporation (the “Distributor”).
WHEREAS, the Trust and ALPS entered into a Distribution Agreement, dated as of November 1, 2011 (the “Agreement”), as in effect prior to giving effect to this Amendment; and
WHEREAS, the Trust and Distributor wish to amend the provisions of the Agreement to reflect a revised APPENDIX A - LIST OF PORTFOLIOS.
NOW, THEREFORE, the parties hereby agree to amend the Agreement as follows:
| 1. | Upon the
Effective Date, the parties hereto agree to delete the current APPENDIX A — LIST OF
PORTFOLIOS of the Agreement in its entirety and replace it with a new APPENDIX A — LIST OF PORTFOLIOS attached hereto and incorporated by reference herein. |
||
| 2. | Except
as specifically set forth herein, all other provisions of the Agreement shall remain
in full force and effect. Any items not defined in this Amendment shall have the
meanings ascribed to them in the Agreement. |
IN WITNESS WHEREOF, the parties have executed this Amendment as of the Execution Date.
| XXXXX CAPITAL
MANAGEMENT MUTUAL FUNDS |
ALPS DISTRIBUTORS, INC. | |
 |
 |
APPENDIX A
LIST OF PORTFOLIOS
(Effective July 29, 2015)
The
Xxxxx Capital Management Small Company Fund Investor Shares (BCSIX)
The Xxxxx
Capital Management Small Company Fund Institutional Shares (BCSSX)
The
Xxxxx Capital Management International Equity Fund Investor Shares (BCIIX)
The
Xxxxx Capital Management International Equity Fund Institutional Shares (BCISX)
The
Xxxxx Capital Management Mid-Cap Fund Investor Shares (BCMSX)
The Xxxxx Capital
Management Mid-Cap Fund Institutional Shares (BCMIX)
The Xxxxx Capital Management International
Small Company Fund Investor Shares (BCSVX)
The Xxxxx Capital Management International
Small Company Fund Institutional Shares (BCSFX)
Amendment No. 2 To Distribution Agreement
This Amendment, entered into as of August 19, 2015 (the “Execution Date”) and effective as of July 29, 2015 (the “Effective Date”), to the Distribution Agreement (this “Amendment”) by and between Xxxxx Capital Management Mutual Funds (formerly known as Nottingham Investment Trust II), a Delaware statutory Trust (the “Trust”) and ALPS Distributors, Inc., a Colorado corporation (the “Distributor”).
WHEREAS, the Trust and Distributor entered into an Distribution Agreement dated as of November 1, 2011, as amended, as in effect prior to giving effect to this Amendment (the “Agreement”); and
WHEREAS, the Trust and Distributor wish to amend the provisions of the Agreement to reflect a revised APPENDIX A — LIST OF PORTFOLIOS.
NOW, THEREFORE, the parties hereby agree to amend the Agreement as follows:
1. Effective as of the date of this Amendment, all references to “The Xxxxx Capital Management Mid-Cap Fund” in the Agreement shall be replaced with “The Xxxxx Capital Management Mid Company Fund.”
2. Effective as of the date of this Amendment, Appendix A to the Agreement is replaced in its entirety with the new Appendix A attached hereto and incorporated by reference herein.
3. Except as specifically set forth herein, all other provisions of the Agreement shall remain in full force and effect. Any items not defined in this Amendment shall have the meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the Execution Date.
| XXXXX CAPITAL MANAGEMENT MUTUAL FUNDS | ALPS DISTRIBUTORS, INC | |
 |
 |
APPENDIX A
LIST OF PORTFOLIOS
(Effective July 29, 2015)
The
Xxxxx Capital Management Small Company Fund Investor Shares (BCSIX)
The Xxxxx
Capital Management Small Company Fund Institutional Shares (BCSSX)
The Xxxxx
Capital Management International Equity Fund Investor Shares (BCIIX)
The Xxxxx
Capital Management International Equity Fund Institutional Shares (BCISX)
The
Xxxxx Capital Management Mid Company Fund Investor Shares (BCMSX)
The Xxxxx Capital
Management Mid Company Fund Institutional Shares (BCMIX)
The Xxxxx Capital Management
International Small Company Fund Investor Shares (BCSVX)
The Xxxxx Capital Management
International Small Company Fund Institutional Shares (BCSFX)
