EXHIBIT (e)(1)
FORM OF DISTRIBUTION AGREEMENT
AGREEMENT made as of August 1, 2005, between American Performance Funds
(the "Trust"), having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
BISYS Fund Services Limited Partnership ("Distributor"), having an office at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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.
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 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 on Schedules C and D to this Agreement. If the Funds have a Distribution
Plan that permits and authorizes them to compensate the Distributor and required
board approvals have been given, then the Funds shall be responsible for all
such compensation or such portions of it as have been permitted and authorized
under the Distribution Plan. If the Funds are not permitted and
authorized to compensate the Distributor for fees and expenses in full in
accordance with Schedules C and D, then the Adviser shall agree with the
Distributor in a separate instrument that the Adviser shall compensate the
Distributor in accordance with Schedules C and D to the extent that the Funds
are not so permitted or authorized. The fees set forth on Schedules C and D are
subject to change by Distributor upon 30 days advance notice.
2.2 If: (i) the Distributor properly receives fees from the Funds under the
Distribution Plan, other than for services rendered or expenses incurred, that
the Distributor is not obligated to pay to third party broker-dealers, plan
administrators or others ("Retained Fees"), and (ii) the Funds have authority
under the Distribution Plan to pay for some or all of the Distributor's services
under this Agreement ("Permitted Services"), then all of the Retained Fees will
either be (a) returned to the funds and/or (b) credited against the compensation
payable or reimbursement made by the Funds to the Distributor for Permitted
Services.
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, 2006.
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 BOk Investment Advisers,
Inc., Bank of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇▇▇▇▇; and if to
Distributor, to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Broker Dealer Chief Compliance Officer, with
a copy to BISYS Distribution Services, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
attn: President, 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:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.
its General Partner
By:
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Acknowledged as to payment and
reimbursement obligations set forth in
Section 2:
BOK INVESTMENT ADVISERS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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. Tax-Efficient Small 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
Institutional Cash Management Fund
Institutional U.S. Treasury Fund
Institutional Tax-Exempt Money Market Fund
AMERICAN PERFORMANCE FUNDS
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.
its General Partner
By:
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
SCHEDULE B
DISTRIBUTION PLAN
AMENDED AND RESTATED
DISTRIBUTION ND SHAREHOLDER SERVICES PLAN
October 1, 1993
This Plan (the "Plan") constitutes the DISTRIBUTION AN 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 BISYS Fund Services Limited Partnership (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.
Section 2. The Distribution Fee shall be accrued daily and payable monthly,
and shall be paid by each Fund to the Distributor irrespective of whether such
fee exceeds the amounts paid (or payable) by the Distributor pursuant to section
1.
Section 3. 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 4. 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 5. 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 4.
Section 6. 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 7. 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 8. 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 9. 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 4.
Section 10. 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 11. 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.
AMERICAN PERFORMANCE FUNDS
By:
------------------------------------
Title:
---------------------------------
Date: October 1, 1993
THE WINSBURY COMPANY LIMITED PARTNERSHIP
By: The Winsbury Corporation, General
Partner
By:
------------------------------------
Title:
---------------------------------
Date: October 1, 1993
Schedule A
to the Amended and Restated
Distribution and Shareholder Services Plan
between the American Performance Funds and
BISYS Fund Services Limited Partnership
(formerly, The Winsbury Company Limited Partnership)
Dated October 1, 1993
Name of Fund Compensation*
------------ -------------
American Performance Cash Annual rate of twenty-five one-hundredths of
Management Fund one percent (.25%) of American Performance
Cash Management Fund's average daily net
assets.
American Performance U.S. Annual rate of twenty-five one-hundredths
Treasury Fund of one percent (.25%) of American
Performance U.S. Treasury Fund's average
daily net assets.
American Performance Annual rate of twenty-five one-hundredths of
Bond Fund one percent (.25%) of American Performance
Bond Fund's average daily net assets.
American Performance Annual rate of twenty-five one-hundredths of
Intermediate Bond Fund one percent (.25%) of American Performance
Intermediate Bond Fund's average daily net
assets.
American Performance Annual rate of twenty-five one-hundredths of
Intermediate Tax-Free Bond Fund one percent (.25%) of American Performance
Intermediate Tax-Free Bond Fund's average
daily net assets.
American Performance Annual rate of twenty-five one-hundredths of
U.S. Tax-Efficient Large Cap one percent (.25%) of American Performance
Equity Fund U.S. Tax-Efficient Large Cap Equity Fund's
average daily net assets.
American Performance Annual rate of twenty-five one-hundredths of
Short-Term Income Fund one percent (.25%) of American Performance
Short-Term Income Fund's average daily net
assets.
Name of Fund Compensation*
------------ -------------
American Performance Annual rate of twenty-five one-hundredths of
Balanced Fund one percent (.25%) of American Performance
Balanced Fund's average daily net assets.
American Performance Annual rate of twenty-five one-hundredths of
Growth Equity Fund one percent (.25%) of American Performance
Growth Equity Fund's average daily net
assets.
American Performance Annual rate of twenty-five one-hundredths of
U.S. Tax-Efficient Small Cap one percent (.25%) of American Performance
Equity Fund U.S. Tax-Efficient Small Cap Equity Fund's
average daily net assets.
American Performance Annual rate of twenty-five one-hundredths of
U.S. Tax-Efficient Mid one percent (.25%) of American Performance
Cap Equity Fund U.S. Tax-Efficient Mid Cap Equity Fund's
average daily net assets.
American Performance Annual rate of twenty-five one-hundredths of
U.S. Large Cap Equity one percent (.25%) of American Performance
Fund U.S. Large Cap Equity Fund's average daily
net assets.
American Performance Annual rate of twenty-five one-hundredths of
U.S. Mid Cap Equity Fund one percent (.25%) of American Performance
U.S. Mid Cap Equity Fund's average daily net
assets.
American Performance Annual rate of twenty-five one-hundredths of
U.S. Small Cap Equity Fund one percent (.25%) of American Performance
U.S. Small Cap Equity Fund's average daily
net assets.
AMERICAN PERFORMANCE FUNDS
By:
------------------------------------
Title:
---------------------------------
Date: October 27, 2005
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.,
General Partner
By:
------------------------------------
Title:
---------------------------------
Date: October 27, 2005
----------
* All fees are computed daily and paid monthly.
Schedule A
to the Amended and Restated
Distribution and Shareholder Services Plan
between the American Performance Funds and
BISYS Fund Services Limited Partnership
(formerly, The Winsbury Company Limited Partnership)
Dated October 27, 2005
Name of Fund Compensation*
------------ -------------
American Performance Cash Annual rate of twenty-five one-hundredths
Management Fund - All of one percent Shares (.25%) of American
Performance Cash Management Fund's average
daily net assets.
American Performance U.S. Treasury Annual rate of twenty-five one-hundredths
Fund - All Shares of one percent (.25%) of American
Performance U.S. Treasury Fund's average
daily net assets.
American Performance Bond Fund - Annual rate of twenty-five one-hundredths
Class A Shares of one percent (.25%) of Class A Shares of
American Performance Bond Fund's average
daily net assets.
American Performance Intermediate Annual rate of twenty-five one-hundredths
Bond Fund - Class A Shares of one percent (.25%) of Class A Shares of
American Performance Intermediate Bond
Fund's average daily net assets.
American Performance Intermediate Annual rate of twenty-five one-hundredths
Tax-Free Bond Fund - Class A Shares of one percent (.25%) of Class A Shares of
American Performance Intermediate Tax-Free
Bond Fund's average daily net assets.
American Performance U.S. Tax- Annual rate of twenty-five one-hundredths
Efficient Large Cap Equity Fund - of one percent (.25%) of Class A Shares of
Class A Shares American Performance U.S. Tax-Efficient
Large Cap Equity Fund's average daily net
assets.
American Performance Short-Term Annual rate of twenty-five one-hundredths
Income Fund - Class A Shares of one percent (.25%) of Class A Shares of
American Performance Short-Term Income
Fund's average daily net assets.
Name of Fund Compensation*
------------ -------------
American Performance Balanced Annual rate of twenty-five one-hundredths
Fund - Class A Shares of one percent (.25%) of Class A Shares of
American Performance Balanced Fund's
average daily net assets.
American Performance Growth Annual rate of twenty-five one-hundredths
Equity Fund - Class A Shares of one percent (.25%) of Class A Shares of
American Performance Growth Equity Fund's
average daily net assets.
American Performance U.S. Tax- Annual rate of twenty-five one-hundredths
Efficient Small Cap Equity Fund - of one percent (.25%) of Class A Shares of
Class A Shares American Performance U.S. Tax-Efficient
Small Cap Equity Fund's average daily net
assets.
American Performance U.S. Tax- Annual rate of twenty-five one-hundredths
Efficient Mid Cap Equity Fund - of one percent (.25%) of Class A Shares of
Class A Shares American Performance U.S. Tax-Efficient
Mid Cap Equity Fund's average daily net
assets.
American Performance U.S. Large Annual rate of twenty-five one-hundredths
Cap Equity Fund - Class A Shares of one percent (.25%) of Class A Shares of
American Performance U.S. Large Cap Equity
Fund's average daily net assets.
American Performance U.S. Mid Cap Annual rate of twenty-five one-hundredths
Equity Fund - Class A Shares of one percent (.25%) of Class A Shares of
American Performance U.S. Mid Cap Equity
Fund's average daily net assets.
American Performance U.S. Small Cap Annual rate of twenty-five one-hundredths
Equity Fund - Class A Shares of one percent (.25%) of Class A Shares of
American Performance U.S. Small Cap Equity
Fund's average daily net assets.
AMERICAN PERFORMANCE FUNDS
By:
------------------------------------
Title:
---------------------------------
Date: October 27, 2005
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.,
General Partner
By:
------------------------------------
Title:
---------------------------------
Date: October 27, 2005
----------
* All fees are computed daily and paid monthly.
SCHEDULE C
COMPENSATION OF THE DISTRIBUTOR
1. BASIC DISTRIBUTION SERVICES. For providing the distribution entity and
related infrastructure and platform, including requisite registrations and
qualifications, premises, personnel, compliance, ordinary fund board meeting
preparation, maintenance of selling agreements, clearance of advertising and
sales literature with regulators, filing appropriate documentation for advisory
representatives to qualify as registered representatives of the Distributor
(provided that the Adviser is solely responsible for its representatives'
meeting examination requirements) and their related registrations and fees,
ordinary supervisory services, overhead, Financial Research Corporation's Mutual
Fund Views on the News and Monitor publications, and return on investment, the
Distributor shall receive an annual fee of $75,000.00, billed monthly.
2. SPECIAL DISTRIBUTION SERVICES. For special distribution services requested by
the Trust, including, without limitation, those set forth on Schedule D to this
Agreement, such as additional personnel, registrations, marketing services,
printing and fulfillment, website services, proprietary distribution expertise
for particular circumstances, and any other services in addition to the basic
distribution services covered by Paragraph 1 above, the Distributor shall be
reimbursed promptly upon invoicing its expenses for such services, including:
(a) all costs to support additional personnel; (b) regulatory fees including
NASD CRD costs associated with marketing materials; and (c) printing, postage
and fulfillment costs, and (d) amounts payable under additional agreements to
which Distributor is a party.
3. SPECIAL CONDUIT SITUATIONS. If the Distribution Plan, or any other Fund plans
of distribution under Rule 12b-1 that contemplate up front and/or recurring
commission and/or service payments to broker dealers, retirement plan
administrators or others by the Distributor with respect to back-end loads,
level loads, or otherwise, unless expressly agreed otherwise in writing between
the parties, all such payments shall be made to the Distributor, which shall act
as a conduit for making such payments to such broker-dealers, retirement plan
administrators or others.
4. OTHER PAYMENTS BY THE DISTRIBUTOR. If the Distributor is required to make any
payments to third parties in respect of distribution, which payments are
contemplated by the parties to the Distribution Agreement or otherwise arise in
the ordinary course of business, the Distributor shall be promptly reimbursed
for such payments upon invoicing them.
5. FEE ADJUSTMENTS. The fixed fees and other fees expressed as stated dollar
amounts in this Schedule C and in this Agreement are subject to annual
increases, as may be mutually agreed upon.
AMERICAN PERFORMANCE FUNDS
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.
its General Partner
By:
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
SCHEDULE D
SPECIAL DISTRIBUTION SERVICES AND FEES
SERVICES FEES
-------- ----
1. WHOLESALING PERSONNEL SERVICES WHOLESALING PERSONNEL SERVICES FEES
Wholesaling Personnel may be external For each individual constituting the
wholesalers and/or internal wholesalers. Wholesaling Personnel employed by the
Distributor pursuant to this Agreement, the
Services include soliciting support of Distributor shall receive annually an
the Funds with selling broker dealers; amount equal to the sum of:
participating in promotional meetings,
presentations, conferences and other and (i) all compensation paid annually by the
forums; identifying high potential personnel Distributor to the employee; plus
of the Adviser and selling broker dealers;
and assisting with mail solicitations and (ii) a management oversight fee equal to:
literature fulfillment.
(a) if one to four Wholesaling
Personnel are employed, 30% of
the salary compensation and 5% of
the bonus or commission
compensation, or
(b) if five or more Wholesaling
Personnel are employed, 25% of
the salary compensation and 5% of
the bonus or commission
compensation; plus
(iii) 18% of the total compensation.
In addition, the Distributor shall be
reimbursed for all related costs to
support, educate and train and maintain
compliance oversight of Wholesaling
Personnel and other personnel such as sales
management personnel, (including time and
expenses, continuing education, seminars,
rent, supplies, phone, computers, firm
element, license, registration)
Upon any termination of Wholesaling
Personnel at the request of the Funds or
upon termination of this Agreement by the
Funds for any reason other than cause, the
Distributor will be reimbursed its
severance costs with respect to such
terminated Wholesaling Personnel; provided
that the Distributor shall consult with the
Trust (or if directed by the Trust, the
Adviser) and give the Trust (or the
Adviser) the opportunity to pay additional
amounts to the Distributor so as to allow
the Distributor to increase the severance
payments the Distributor would otherwise
have made to such Wholesaling Personnel.
2. MARKETING AND RELATED SERVICES MARKETING AND RELATED SERVICES FEES
Marketing Execution: services include
identification and development of Marketing Execution: Quote available upon
appropriate marketing and communications request.
programs, projects and other initiatives;
collaboration on initiating, researching, Performance Reporting
developing, and delivering appropriate sales
and marketing materials; and management of Monthly Reports
marketing and advertising projects.
Monthly Updating and Typesetting
Performance Reporting: services include -- $850 - $1,000 per sheet per month
creation of templates for monthly fact (for an All-in-One style report)
sheets and quarterly fact sheets; populating
templates with performance data obtained
from third parties; and coordinating steps Initial Design and Setup (1-time
needed for final printing and distribution. charge) -- $500 per sheet
Quarterly Reports
Quarterly Reports
Creative Communication and Editorial
Services: services include preparing drafts Quarterly Updating and
of textual commentary and management Typesetting -- $300 - $350 per Fund
discussion and analysis for annual; and sheet per Share Class per quarter
semi-annual reports, including portfolio
manager interviews; providing creative Initial Design and Setup per
design and direction; and coordinating Fund sheet (1-time charge) -- $500
production, including typesetting (initial per Fund sheet
composition and changes to composition),
charts and ancillary items. Annual & Semi-Annual Reports
Production Timing: Coordination:
- No timing guarantees can be made for - $3,000 Initial Fee (includes
completion of monthly and quarterly Chairman's Letter and 1st Fund)
fact sheets where any of the
information needed to produce the - $500 for each additional Fund
reports is generated by service
providers other than the Distributor. NOTE: The above charges do not
However, a basic estimate of turnaround include the typesetting, printing,
time may be given based upon when the shipping, fulfillment, ▇▇▇▇▇ filing or
unit receives all necessary data in quick-turnaround charges that may be
good order. Under normal conditions, incurred from the financial printer.
the Performance Reporting unit expects The above fees are for coordinating
to make proofs ready for review (either the project only.
printed or electronic PDF format) by
the 4th business day after the final Creative Communication and Editorial
piece of data is received. If Services
compliance review is necessary (e.g.,
when Morningstar ratings data is used) Quote available upon request.
an additional 2 days may be required
for review.
- Printing turnaround (once the
factsheets are signed-off by the
client) is usually approximately 4-5
calendar days with most jobs shipping
by the 5th day.
If requested, final electronic PDF files may
be generated and e-mailed on the day the job
is signed-off on by the client. These PDFs
may be distributed and printed as necessary
until the final printed pieces arrive.
3. FRC SERVICES FRC SERVICES FEES
FRC's program components include: Market Analytics Publications: Quote
available upon request.
-Market Analytics Publications
-Advanced Research Publications
-Analyst Support Advanced Research Publications:
-SME Direct Access
- Topic Briefs
The Trust acknowledges that certain FRC
publications may be provided only to parties - FRC Focus (typical cost is around
that have entered into a written agreement $1,500)
or addendum that sets forth the terms of use
of such publications and the associated fee. White Papers - FRC Vision
The Trust will notify the Distributor (typical cost is around $2,500)
whether the Trust or the Adviser or both
will enter into such an agreement or - Research Studies (costs vary, however
addendum. The Trust acknowledges that if typically range between $3,500 and
only one of the Trust or the Adviser enters $12,500)
into such agreement or addendum, the other
party will be prohibited from receiving or Analyst Support: Quote available
using such publications. upon request
SME Direct Access: Quote
available upon request
Other FRC Fees:
- Client participation in funding FRC
Franchise Level program: $12,500
- All subsequent content and support
hours may be purchased at a 20%
discount from standard pricing.
Expenses Applicable to Basic Distribution Services, Special Conduit Situations,
and Special Distribution Services
Except as expressly set forth above, actual out-of-pocket expenses incurred by
Distributor in the performance of its services under this Agreement are not
included in the above fees. Such actual out-of-pocket expenses may include,
without limitation:
- reasonable travel and entertainment costs;
- expenses incurred by the Distributor in qualifying, registering and
maintaining the registration of the Distributor and each individual
comprising Wholesaling Personnel as a registered representative of the
Distributor under applicable federal and state laws and rules of the NASD,
e.g., CRD fees and state fees;
- sponsorships, Promotions, Sales Incentives;
- any and all compensation to be paid to a third party as paying agent for
distribution activities (platform fees, finders fees, sub-TA fees, 12b-1
pass thru, commissions, etc.);
- costs and expenses incurred for telephone service, photocopying and office
supplies;
- advertising costs;
- costs for printing, paper stock and costs of other materials, electronic
transmission, courier, talent utilized in sales materials (e.g. models),
design output, photostats, photography, and illustrations;
- packaging, shipping, postage, and photocopies; and taxes that are paid or
payable by the Distributor or its affiliates in connection with its
services hereunder, other than taxes customarily and actually imposed upon
the income that the Distributor receives hereunder.
AMERICAN PERFORMANCE FUNDS
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.
its General Partner
By:
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President