DISTRIBUTION AGREEMENT
THIS
AGREEMENT is made and entered into as of the ___ day of ______, 2007, by and
between the TRUST
FOR PROFESSIONAL MANAGERS,
a
Delaware statutory trust (the “Trust”) and
QUASAR DISTRIBUTORS, LLC,
a
Delaware limited liability company (the “Distributor”) and LEADER
CAPITAL CORP.,
a
Delaware limited liability company and the investment advisor to the Trust
(the
“Advisor”), is a party hereto with respect to Section 5 only.
WHEREAS,
the Trust is registered under the Investment Company Act of 1940, as amended
(the “1940 Act”), as an open-end management investment company, and is
authorized to issue shares of beneficial interest (“Shares”) in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS,
the Distributor is registered as a broker-dealer under the Securities Exchange
Act of 1934, as amended (the “1934 Act”), and is a member of the National
Association of Securities Dealers, Inc. (the “NASD”);
WHEREAS,
the Trust desires to retain the Distributor as principal underwriter in
connection with the offer and sale of the Shares of each series of the Trust
listed on Exhibit
A
hereto
(as amended from time to time) (each a “Fund” and collectively, the “Funds”);
and
WHEREAS,
this Agreement has been approved by a vote of the Trust’s board of trustees
(“Board of Trustees” or the “Board”), including its disinterested trustees
voting separately, in conformity with Section 15(c) of the 1940
Act.
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which
is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. |
Appointment
of Quasar as Distributor
|
The
Trust
hereby appoints the Distributor as its agent for the sale and distribution
of
Shares of the Fund in jurisdictions wherein the Shares may be legally offered
for sale, on the terms and conditions set forth in this Agreement, and the
Distributor hereby accepts such appointment and agrees to perform the services
and duties set forth in this Agreement. The services and duties of the
Distributor shall be confined to those matters expressly set forth herein,
and
no implied duties are assumed by or may be asserted against the Distributor
hereunder.
2. |
Services
and Duties of the Distributor
|
A. |
The
Distributor agrees to sell Shares on a best efforts basis as agent
for the
Trust upon the terms and at the current offering price (plus sales
charge,
if any) described in the Prospectus. As used in this Agreement, the
term
“Prospectus” shall mean the current prospectus, including the statement of
additional information, as both may be amended or supplemented, relating
to the Fund and included in the currently effective registration
statement
(the “Registration Statement”) of the Trust filed under the Securities Act
of 1933, as amended (the “1933 Act”) and the 1940 Act. The Trust shall in
all cases receive the net asset value per Share on all sales. If
a sales
charge is in effect, the Distributor shall remit the sales charge
(or
portion thereof) to broker-dealers who have sold Shares, as described
in
Section 2(G), below. In no event shall the Distributor be entitled
to all
or any portion of such sales
charge.
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1
B. |
During
the continuous public offering of Shares, the Distributor will hold
itself
available to receive orders, satisfactory to the Distributor, for
the
purchase of Shares and will accept such orders on behalf of the Trust.
Such purchase orders shall be deemed effective at the time and in
the
manner set forth in the Prospectus.
|
C. |
The
Distributor, with the operational assistance of the Trust’s transfer
agent, shall make Shares available for sale and redemption through
the
National Securities Clearing Corporation’s Fund/SERV
System.
|
D. |
The
Distributor acknowledges and agrees that it is not authorized to
provide
any information or make any representations other than as contained
in the
Prospectus and any sales literature specifically approved by the
Trust.
|
E. |
The
Distributor agrees to cooperate with the Trust or its agent in the
development of all proposed advertisements and sales literature relating
to the Fund. The Distributor agrees to review all proposed advertisements
and sales literature for compliance with applicable laws and regulations,
and shall file with appropriate regulators those advertisements and
sales
literature it believes are in compliance with such laws and regulations.
The Distributor agrees to furnish to the Trust any comments provided
by
regulators with respect to such materials and to use its best efforts
to
obtain the approval of the regulators to such
materials.
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F. |
The
Distributor, at its sole discretion, may repurchase Shares offered
for
sale by shareholders of the Fund. Repurchase of Shares by the Distributor
shall be at the price determined in accordance with, and in the manner
set
forth in, the Prospectus. At the end of each business day, the Distributor
shall notify the Trust and its transfer agent, by any appropriate
means,
of the orders for repurchase of Shares received by the Distributor
since
the last report, the amount to be paid for such Shares and the identity
of
the shareholders offering Shares for repurchase. The Trust reserves
the
right to suspend such repurchase right upon written notice to the
Distributor. The Distributor further agrees to act as agent for the
Trust
to receive and transmit promptly to the Trust’s transfer agent,
shareholder requests for redemption of
Shares.
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G. |
The
Distributor may, in its discretion, enter into agreements with such
qualified broker-dealers as it may select, in order that such
broker-dealers also may sell Shares of the Fund. The form of any
dealer
agreement shall be approved by the Trust. To the extent there is
a sales
charge in effect, the Distributor shall pay the applicable sales
charge
(or portion thereof), or allow a discount, to the selling broker-dealer,
as described in the Prospectus.
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2
H. |
The
Distributor shall devote its best efforts to effect sales of Shares
of the
Fund but shall not be obligated to sell any certain number of
Shares.
|
I. |
The
Distributor shall prepare reports for the Board regarding its activities
under this Agreement as from time to time shall be reasonably requested
by
the Board, including reports regarding the use of any 12b-1 payments
received by the Distributor.
|
J. |
The
Distributor agrees to advise the Trust promptly in writing of the
initiation of any proceedings against it by the SEC or its staff,
the NASD
or any state regulatory authority.
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K. |
The
Distributor shall monitor amounts paid under Rule 12b-1 plans and
pursuant
to sales loads to ensure compliance with applicable NASD
rules.
|
3. |
Representations
and Covenants of the Trust
|
A. |
The
Trust hereby represents and warrants to the Distributor, which
representations and warranties shall be deemed to be continuing throughout
the term of this Agreement, that:
|
(1) |
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
(2) |
This
Agreement has been duly authorized, executed and delivered by the
Trust in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of the Trust, enforceable in accordance with its
terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other
laws of general application affecting the rights and remedies of
creditors
and secured parties;
|
(3) |
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement;
|
(4) |
All
Shares to be sold by it, including those offered under this Agreement,
are
validly authorized and, when issued in accordance with the description
in
the Prospectus, will be fully paid and
nonassessable;
|
(5) |
The
Registration Statement, and Prospectus included therein, have been
prepared in conformity with the requirements of the 1933 Act and
the 1940
Act and the rules and regulations thereunder; and
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3
(6) |
The
Registration Statement (at the time of its effectiveness) and any
advertisements and sales literature prepared by the Trust or its
agent
(excluding statements relating to the Distributor and the services
it
provides that are based upon written information furnished by the
Distributor expressly for inclusion therein) shall not contain any
untrue
statement of material fact or omit to state any material fact required
to
be stated therein or necessary to make the statements therein not
misleading, and that all statements or information furnished to the
Distributor pursuant to this Agreement shall be true and correct
in all
material respects.
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B. |
The
Trust, or its agent, shall take or cause to be taken, all necessary
action
to register Shares of the Fund under the 1933 Act, qualify such shares
for
sale in such states as the Trust and the Distributor shall approve,
and
maintain an effective Registration Statement for such Shares in order
to
permit the sale of Shares as herein contemplated. The Trust authorizes
the
Distributor to use the Prospectus, in the form furnished to the
Distributor from time to time, in connection with the sale of
Shares.
|
C. |
The
Trust agrees to advise the Distributor promptly in writing:
|
(i) |
of
any material correspondence or other communication by the Securities
and
Exchange Commission (the “SEC”) or its staff relating to the Fund,
including requests by the SEC for amendments to the Registration
Statement
or Prospectus;
|
(ii) |
in
the event of the issuance by the SEC of any stop-order suspending
the
effectiveness of the Registration Statement then in effect or the
initiation of any proceeding for that purpose;
|
(iii) |
of
the happening of any event which makes untrue any statement of a
material
fact made in the Prospectus or which requires the making of a change
in
such Prospectus in order to make the statements therein not misleading;
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(iv) |
of
all actions taken by the SEC with respect to any amendments to any
Registration Statement or Prospectus, which may from time to time
be filed
with the SEC; and
|
(v) |
in
the event that it determines to suspend the sale of Shares at any
time in
response to conditions in the securities markets or otherwise, or
in the
event that it determines to suspend the redemption of Shares at any
time
as permitted by the 1940 Act or the rules of the SEC, including any
and
all applicable interpretations of such by the staff of the
SEC.
|
D. |
The
Trust shall notify the Distributor in writing of the states in which
the
Shares may be sold and shall notify the Distributor in writing of
any
changes to such information.
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4
E. |
The
Trust agrees to file from time to time such amendments to its Registration
Statement and Prospectus as may be necessary in order that its
Registration Statement and Prospectus will not contain any untrue
statement of material fact or omit to state any material fact required
to
be stated therein or necessary to make the statements therein not
misleading.
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F. |
The
Trust shall fully cooperate in the efforts of the Distributor to
sell and
arrange for the sale of Shares and shall make available to the Distributor
a statement of each computation of net asset value. In addition,
the Trust
shall keep the Distributor fully informed of its affairs and shall
provide
to the Distributor, from time to time, copies of all information,
financial statements and other papers that the Distributor may reasonably
request for use in connection with the distribution of Shares, including
without limitation, certified copies of any financial statements
prepared
for the Trust by its independent public accountants and such reasonable
number of copies of the Prospectus and annual and interim reports
to
shareholders as the Distributor may request. The Trust shall forward
a
copy of any SEC filings, including the Registration Statement, to
the
Distributor within one business day of any such filings. The Trust
represents that it will not use or authorize the use of any advertising
or
sales material unless and until such materials have been approved
and
authorized for use by the Distributor. Nothing in this Agreement
shall
require the sharing or provision of materials protected by privilege
or
limitation of disclosure, including any applicable attorney-client
privilege or trade secret
materials.
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G. |
The
Trust has reviewed and is familiar with the provisions of NASD Rule
2830(k) prohibiting directed brokerage. In addition, the Trust agrees
not
to enter into any agreement (whether orally or in writing) under
which the
Trust directs or is expected to direct its brokerage transactions
(or any
commission, markup or other payment from such transactions) to a
broker or
dealer for the promotion or sale of Fund Shares or the shares of
any other
investment company. In the event the Trust fails to comply with the
provisions of NASD Rule 2830(k), the Trust shall promptly notify
the
Distributor.
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4. |
Additional
Representations and Covenants of the
Distributor
|
The
Distributor hereby represents, warrants and covenants to the Trust, which
representations, warranties and covenants shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) |
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
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(2) |
This
Agreement has been duly authorized, executed and delivered by the
Distributor in accordance with all requisite action and constitutes
a
valid and legally binding obligation of the Distributor, enforceable
in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting
the rights and remedies of creditors and secured
parties;
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5
(3) |
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement;
|
(4) |
It
is registered as a broker-dealer under the 1934 Act and is a member
in
good standing of the NASD;
|
(5) |
It:
(i) has adopted an anti-money laundering compliance program (“AML
Program”) that satisfies the requirements of all applicable laws and
regulations; (ii) undertakes to carry out its AML Program to the
best of
its ability; (iii) will promptly notify the Trust and the Advisor
if an
inspection by the appropriate regulatory authorities of its AML Program
identifies any material deficiency; and (vi) will promptly remedy
any
material deficiency of which it learns;
and
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(6) |
In
connection with all matters relating to this Agreement, it will comply
with the requirements of the 1933 Act, the 1934 Act, the 1940 Act,
the
regulations of the NASD and all other applicable federal or state
laws and
regulations.
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5. |
Compensation
|
The
Distributor shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit
B
hereto
(as amended from time to time). The Distributor shall also be compensated for
such out-of-pocket expenses (e.g., telecommunication charges, postage and
delivery charges, and reproduction charges) as are reasonably incurred by the
Distributor in performing its duties hereunder. The Trust shall pay all such
fees and reimbursable expenses within 30 calendar days following receipt of
the
billing notice, except for any fee or expense subject to a good faith dispute.
The Trust shall notify the Distributor in writing within 30 calendar days
following receipt of each invoice if the Trust is disputing any amounts in
good
faith. The Trust shall pay such disputed amounts within 10 calendar days of
the
day on which the parties agree to the amount to be paid. With the exception
of
any fee or expense the Trust is disputing in good faith as set forth above,
unpaid invoices shall accrue a finance charge of 1½% per month after the due
date. Notwithstanding anything to the contrary, amounts owed by the Trust to
the
Distributor shall only be paid out of the assets and property of the particular
Fund involved. Such fees and expenses shall be paid to Distributor by the Trust
from Rule 12b-1 fees payable by the appropriate Fund or, if the Fund does not
have a Rule 12b-1 plan, or if Rule 12b-1 fees are not sufficient to pay such
fees and expenses, or if the Rule 12b-1 plan is discontinued, or if the Advisor
otherwise determines that Rule 12b-1 fees shall not, in whole or in part, be
used to pay Distributor, the Advisor shall be responsible for the payment of
the
amount of such fees and expenses not covered by Rule 12b-1
payments.
6
6. |
Expenses
|
A. |
The
Trust shall bear all costs and expenses in connection with the
registration of its Shares with the SEC and its related compliance
with
state securities laws, as well as all costs and expenses in connection
with the offering of the Shares and communications with shareholders,
including but not limited to: (i) fees and disbursements of its counsel
and independent public accountants; (ii) costs and expenses of the
preparation, filing, printing and mailing of Registration Statements
and
Prospectuses, as well as related advertising and sales literature;
(iii)
costs and expenses of the preparation, printing and mailing of annual
and
interim reports, proxy materials and other communications to shareholders;
and (iv) fees required in connection with the offer and sale of Shares
in
such jurisdictions as shall be selected by the Trust pursuant to
Section
3(D) hereof.
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B. |
The
Distributor shall bear the expenses of registration or qualification
of
the Distributor as a dealer or broker under federal or state laws
and the
expenses of continuing such registration or qualification. The Distributor
does not assume responsibility for any expenses not expressly assumed
hereunder.
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7. |
Indemnification
|
A. |
The
Trust shall indemnify, defend and hold the Distributor and each of
its
managers, officers, employees, representatives and any person who
controls
the Distributor within the meaning of Section 15 of the 1933 Act
(collectively, the “Distributor Indemnitees”), free and harmless from and
against any and all claims, demands, losses, expenses and liabilities
of
any and every nature (including reasonable attorneys’ fees) (collectively,
“Losses”) that the Distributor Indemnitees may sustain or incur or that
may be asserted against a Distributor Indemnitee by any person (i)
arising
out of or based upon any untrue statement or alleged untrue statement
of a
material fact contained in the Registration Statement or any Prospectus,
or in any annual or interim report to shareholders, or in any
advertisements or sales literature prepared by the Trust or its agent,
or
(ii) arising out of or based upon any omission, or alleged omission,
to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, or (iii) based upon
the
Trust’s refusal or failure to comply with the terms of this Agreement or
from its bad faith, negligence, or willful misconduct in the performance
of its duties under this Agreement; provided, however, that the Trust’s
obligation to indemnify the Distributor Indemnitees shall not be
deemed to
cover any Losses arising out of any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement, Prospectus, annual or interim report, or any advertisement
or
sales literature in reliance upon and in conformity with written
information relating to the Distributor and furnished to the Trust
or its
counsel by the Distributor for the purpose of, and used in, the
preparation thereof. The Trust’s agreement to indemnify the Distributor
Indemnitees is expressly conditioned upon the Trust being notified
of such
action or claim of loss brought against the Distributor Indemnitees
within
a reasonable time after the summons or other first legal process
giving
information of the nature of the claim shall have been served upon
the
Distributor Indemnitees, unless the failure to give notice does not
prejudice the Trust; provided, that the failure so to notify the
Trust of
any such action shall not relieve the Trust from any liability which
the
Trust may have to the person against whom such action is brought
by reason
of any such untrue, or alleged untrue, statement or omission, or
alleged
omission, otherwise than on account of the Trust’s indemnity agreement
contained in this Section 7(A).
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7
B. |
The
Trust shall be entitled to participate at its own expense in the
defense,
or if it so elects, to assume the defense of any suit brought to
enforce
any such Losses, but if the Trust elects to assume the defense, such
defense shall be conducted by counsel chosen by the Trust and approved
by
the Distributor, which approval shall not be unreasonably withheld.
In the
event the Trust elects to assume the defense of any such suit and
retain
such counsel, the Distributor Indemnitees in such suit shall bear
the fees
and expenses of any additional counsel retained by them. If the Trust
does
not elect to assume the defense of any such suit, or in case the
Distributor does not, in the exercise of reasonable judgment, approve
of
counsel chosen by the Trust, or if under prevailing law or legal
codes of
ethics, the same counsel cannot effectively represent the interests
of
both the Trust and the Distributor Indemnitees, the Trust will reimburse
the Distributor Indemnitees for the reasonable fees and expenses
of any
counsel retained by them. The Trust’s indemnification agreement contained
in Sections 7(A) and 7(B) herein 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
and
the termination of this Agreement. This agreement of indemnity will
inure
exclusively to the benefit of the Distributor Indemnitees and their
successors. The Trust agrees promptly to notify the Distributor of
the
commencement of any litigation or proceedings against the Trust or
any of
its officers or trustees in connection with the offer and sale of
any of
the Shares.
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C. |
The
Trust shall advance attorneys’ fees and other expenses incurred by any
Distributor Indemnitee in defending any claim, demand, action or
suit
which is the subject of a claim for indemnification pursuant to this
Section 7 to the maximum extent permissible under applicable
law.
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D. |
The
Distributor shall indemnify, defend and hold the Trust and each of
its
trustees, officers, employees, representatives and any person who
controls
the Trust within the meaning of Section 15 of the 1933 Act (collectively,
the “Trust Indemnitees”), free and harmless from and against any and all
Losses that the Trust Indemnitees may sustain or incur or that may
be
asserted against a Trust Indemnitee by any person (i) arising out
of or
based upon any untrue or alleged untrue statement of a material fact
contained in the Registration Statement or any Prospectus, or in
any
annual or interim report to shareholders, or in any advertisements
or
sales literature prepared by the Distributor, or (ii) arising out
of or
based upon any omission, or alleged omission, to state therein a
material
fact required to be stated therein or necessary to make the statement
not
misleading, or (iii) based upon the Distributor’s refusal or failure to
comply with the terms of this Agreement or from its bad faith, negligence,
or willful misconduct in the performance of its duties under this
Agreement; provided, however, that with respect to clauses (i) and
(ii),
above, the Distributor’s obligation to indemnify the Trust Indemnitees
shall only be deemed to cover Losses arising out of any untrue statement
or alleged untrue statement or omission or alleged omission made
in the
Registration Statement, Prospectus, annual or interim report, or
any
advertisement or sales literature in reliance upon and in conformity
with
written information relating to the Distributor and furnished to
the Trust
or its counsel by the Distributor for the purpose of, and used in,
the
preparation thereof. The Distributor’s agreement to indemnify the Trust
Indemnitees is expressly conditioned upon the Distributor being notified
of any action or claim of loss brought against the Trust Indemnitees
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served
upon
the Trust Indemnitees, unless the failure to give notice does not
prejudice the Distributor; provided, that the failure so to notify
the
Distributor of any such action shall not relieve the Distributor
from any
liability which the Distributor may have to the person against whom
such
action is brought by reason of any such untrue, or alleged untrue,
statement or omission, otherwise than on account of the Distributor’s
indemnity agreement contained in this Section 7(D).
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8
E. |
The
Distributor shall be entitled to participate at its own expense in
the
defense, or if it so elects, to assume the defense of any suit brought
to
enforce any such Losses, but if the Distributor elects to assume
the
defense, such defense shall be conducted by counsel chosen by the
Distributor and approved by the Trust, which approval shall not be
unreasonably withheld. In the event the Distributor elects to assume
the
defense of any such suit and retain such counsel, the Trust Indemnitees
in
such suit shall bear the fees and expenses of any additional counsel
retained by them. If the Distributor does not elect to assume the
defense
of any such suit, or in case the Trust does not, in the exercise
of
reasonable judgment, approve of counsel chosen by the Distributor,
or if
under prevailing law or legal codes of ethics, the same counsel cannot
effectively represent the interests of both the Trust Indemnitees
and the
Distributor, the Distributor will reimburse the Trust Indemnitees
for the
reasonable fees and expenses of any counsel retained by them. The
Distributor’s indemnification agreement contained in Sections 7(D) and
7(E) herein 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 and the termination of this
Agreement. This agreement of indemnity will inure exclusively to
the
benefit of the Trust Indemnitees and their successors. The Distributor
agrees promptly to notify the Trust of the commencement of any litigation
or proceedings against the Distributor or any of its officers or
directors
in connection with the offer and sale of any of the
Shares.
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F. |
The
Distributor shall advance attorneys’ fees and other expenses incurred by
any Trust Indemnitee in defending any claim, demand, action or suit
which
is the subject of a claim for indemnification pursuant to this Section
7
to the maximum extent permissible under applicable
law.
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G. |
No
party to this Agreement shall be liable to the other parties for
consequential, special or punitive damages under any provision of
this
Agreement.
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H. |
No
person shall be obligated to provide indemnification under this Section
7
if such indemnification would be impermissible under the 1940 Act,
the
1933 Act, the 1934 Act or the rules of the NASD; provided, however,
in
such event indemnification shall be provided under this Section 7 to
the maximum extent so permissible.
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9
8. |
Proprietary
and Confidential Information
|
The
Distributor agrees on behalf of itself and its managers, officers, and employees
to treat confidentially and as proprietary information of the Trust, all records
and other information relative to the Trust and prior, present or potential
shareholders of the Trust (and clients of said shareholders), and not to use
such records and information for any purpose other than the performance of
its
responsibilities and duties hereunder, except (i) after prior notification
to
and approval in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where the Distributor may be exposed to civil
or criminal contempt proceedings for failure to comply, (ii) when requested
to
divulge such information by duly constituted authorities, or (iii) when so
requested by the Trust. Records and other information which have become known
to
the public through no wrongful act of the Distributor or any of its employees,
agents or representatives, and information that was already in the possession
of
the Distributor prior to receipt thereof from the Trust or its agent, shall
not
be subject to this paragraph.
Further,
the Distributor will adhere to the privacy policies adopted by the Trust
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time
to time. In this regard, 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 the Trust and its
shareholders.
9. |
Records
|
The
Distributor shall keep records relating to the services to be performed
hereunder in the form and manner, and for such period, as it may deem advisable
and is agreeable to the Trust, but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31
of
the 1940 Act and the rules thereunder. The Distributor agrees that all such
records prepared or maintained by the Distributor relating to the services
to be
performed by the Distributor hereunder are the property of the Trust and will
be
preserved, maintained, and made available in accordance with such applicable
sections and rules of the 1940 Act and will be promptly surrendered to the
Trust
or its designee on and in accordance with its request.
10. |
Compliance
with Laws
|
The
Trust
has and retains primary responsibility for all compliance matters relating
to
the Fund, including but not limited to compliance with the 1940 Act, the
Internal Revenue Code of 1986, the Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot
Act of 2002 and the policies and limitations of the Fund relating to its
portfolio investments as set forth in its Prospectus and statement of additional
information. The Distributor’s services hereunder shall not relieve the Trust of
its responsibilities for assuring such compliance or the Board of Trustee’s
oversight responsibility with respect thereto.
10
11. |
Term
of Agreement; Amendment;
Assignment
|
A. |
This
Agreement shall become effective with respect to each Fund listed
on
Exhibit
A
hereof as of the date hereof and, with respect to each Fund not in
existence on that date, on the date an amendment to Exhibit
A
to
this Agreement relating to that Fund is executed. Unless sooner terminated
as provided herein, this Agreement shall continue in effect for two
years
from the date hereof. Thereafter, if not terminated, this Agreement
shall
continue in effect automatically as to each Fund for successive one-year
periods, provided such continuance is specifically approved at least
annually by: (i) the Trust’s Board, or (ii) the vote of a “majority of the
outstanding voting securities” of a Fund, and provided that in either
event, the continuance is also approved by a majority of the Trust’s Board
who are not “interested persons” of any party to this Agreement, by a vote
cast in person at a meeting called for the purpose of voting on such
approval.
|
B. |
Notwithstanding
the foregoing, this Agreement may be terminated, without the payment
of
any penalty, with respect to a particular Fund: (i) through a failure
to
renew this Agreement at the end of a term, (ii) upon mutual consent
of the
parties, or (iii) upon not less than 60 days’ written notice, by either
the Trust upon the vote of a majority of the members of its Board
who are
not “interested persons” of the Trust and have no direct or indirect
financial interest in the operation of this Agreement, or by vote
of a
“majority of the outstanding voting securities” of a Fund, or by the
Distributor. The terms of this Agreement shall not be waived, altered,
modified, amended or supplemented in any manner whatsoever except
by a
written instrument signed by the Distributor and the Trust. If required
under the 1940 Act, any such amendment must be approved by the Trust’s
Board, including a majority of the Trust’s Board who are not “interested
persons” of any party to this Agreement, by a vote cast in person at a
meeting for the purpose of voting on such amendment. In the event
that
such amendment affects the Advisor, the written instrument shall
also be
signed by the Advisor. This Agreement will automatically terminate
in the
event of its “assignment.”
|
C. |
As
used in this Section, the terms “majority of the outstanding voting
securities,” “interested person,” and “assignment” shall have the same
meaning as such terms have in the 1940
Act.
|
D. |
Sections
7 and 8 shall survive termination of this
Agreement.
|
11
12. |
Duties
in the Event of Termination
|
In
the
event that, in connection with termination, a successor to any of the
Distributor’s duties or responsibilities hereunder is designated by the Trust by
written notice to the Distributor, the Distributor will promptly, upon such
termination and at the expense of the Trust, transfer to such successor all
relevant books, records, correspondence, and other data established or
maintained by the Distributor under this Agreement in a form reasonably
acceptable to the Trust (if such form differs from the form in which the
Distributor has maintained the same, the Trust shall pay any expenses associated
with transferring the data to such form), and will cooperate in the transfer
of
such duties and responsibilities, including provision for assistance from the
Distributor’s personnel in the establishment of books, records, and other data
by such successor. If no such successor is designated, then such books, records
and other data shall be returned to the Trust.
13. |
Early
Termination
|
In
the
absence of any material breach of this Agreement, should the Trust elect to
terminate this Agreement prior to the end of the term, the Trust agrees to
pay
the following fees:
a. |
all
monthly fees through the life of the contract, including the rebate
of any
negotiated discounts;
|
b. |
all
fees associated with converting services to successor service
provider;
|
c. |
all
fees associated with any record retention and/or tax reporting obligations
that may not be eliminated due to the conversion to a successor service
provider;
|
d. |
all
out-of-pocket costs associated with a-c
above.
|
14. |
Governing
Law
|
This
Agreement shall be construed in accordance with the laws of the State of
Wisconsin, without regard to conflicts of law principles. To the extent that
the
applicable laws of the State of Wisconsin, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control, and nothing herein shall be construed in a manner inconsistent with
the
1940 Act or any rule or order of the SEC thereunder.
15. |
No
Agency Relationship
|
Nothing
herein contained shall be deemed to authorize or empower either party to act
as
agent for the other party to this Agreement, or to conduct business in the
name,
or for the account, of the other party to this Agreement.
16. |
Services
Not Exclusive
|
Nothing
in this Agreement shall limit or restrict the Distributor from providing
services to other parties that are similar or identical to some or all of the
services provided hereunder.
12
17. |
Invalidity
|
Any
provision of this Agreement which may be determined by competent authority
to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case, the
parties shall in good faith modify or substitute such provision consistent
with
the original intent of the parties.
18. |
Notices
|
Any
notice required or permitted to be given by any party to the others shall be
in
writing and shall be deemed to have been given on the date delivered personally
or by courier service, or three days after sent by registered or certified
mail,
postage prepaid, return receipt requested, or on the date sent and confirmed
received by facsimile transmission to the other parties’ respective addresses as
set forth below:
Notice
to
the Distributor shall be sent to:
Quasar
Distributors, LLC
Attn:
President
000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
notice
to
the Trust shall be sent to:
U.S.
Bancorp Fund Services, LLC
000
X.
Xxxxxxxx
Xxxxxxxxx,
XX 00000
and
notice to the Advisor shall be sent to:
Leader
Capital Corp.
000
XX
Xxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
19. |
Multiple
Originals
|
This
Agreement may be executed on two or more counterparts, each of which when so
executed shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
13
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
a duly authorized officer on one or more counterparts as of the date first
above
written.
The
parties hereby agree that the Distribution Services provided by Quasar
Distributors, LLC will commence on or after
________, 2007
TRUST FOR PROFESSIONAL MANAGERS | QUASAR DISTRIBUTORS, LLC |
By:________________________________ | By:______________________________ |
Name: Xxxxxx Xxxxxxxxx | Name: Xxxxx X. Xxxxxxxxx |
Title: Chairman | Title: President |
LEADER CAPITAL CORP. | |
(with respect to section 5 only) | |
By:________________________________ | |
Name:_____________________________ | |
Title:______________________________
|
14
Exhibit
A
to
the
Fund
Names
Name of Series | Date Added |
Leader Short Term Bond Fund | on or after _______, 2007 |
A-1
Exhibit
B
to
the
QUASAR
DISTRIBUTORS, LLC
REGULATORY
DISTRIBUTION SERVICES
ANNUAL
FEE SCHEDULE
|
(A) Basic
Distribution Services*
· 1
basis point of the Fund’s average daily net assets, payable monthly in
arrears
· Minimum
annual fee: first class or series -- $7,500; each additional series
--
$1,000
(B) Advertising
Compliance Review/NASD Filings
· $175
per job for the first 10 pages (minutes if tape or video); $20 per
page
(minute if tape or video) thereafter (includes NASD
filing fee)
·
Non-NASD
filed materials, e.g. Internal Use Only
Materials
$100
per job for the first 10 pages (minutes if tape or video)
· NASD
Expedited Service for 3 Day Turnaround
$1,000
for the first 10 pages (minutes if audio or video); $25 per page
(minute
if audio or video) thereafter. (Comments are faxed. NASD may not
accept
expedited request.)
Licensing
of Investment Advisor’s Staff (if desired)
· $1,500
per year per registered representative
· Quasar
is limited to these licenses for sponsorship: Series, 6, 7, 24, 26,
27,
63, 66
· Plus
all associated NASD and State fees for Registered Representatives,
including license and renewal fees.
Fund
Fact Sheets
· Design
- $1,000 per fact sheet, includes first production
· Production
- $500.00 per fact sheet per production period
·
All
printing costs are out-of-pocket expenses, and in addition to the
design
fee and production fee.
Out-of-Pocket
Expenses
Reasonable
out-of-pocket expenses incurred by the Distributor in connection
with
activities primarily intended to result in the sale of Shares, including,
without limitation:
· typesetting,
printing and distribution of Prospectuses and shareholder reports
· production,
printing, distribution and placement of advertising and sales literature
and materials
· engagement
of designers, free-xxxxx writers and public relations firms
· long-distance
telephone lines, services and charges
· postage
· overnight
delivery charges
· NASD
registration fees
(NASD advertising filing fees are included in Advertising Compliance
Review section above)
· record
retention
· travel,
lodging and meals
Fees
are billed monthly.
*
Subject to CPI increase, Milwaukee
MSA.
|
B-1