DISTRIBUTION AGREEMENT
EX-99(e)
THIS
AGREEMENT
is made
as of this 19th day of October, 2007, by and between The Westport Funds, a
Delaware statutory trust (the “Trust”), and UMB Distribution Services, LLC, a
Wisconsin limited liability company (the “Distributor”).
WHEREAS,
the
Trust is an open-end investment company registered under the Investment Company
Act of 1940, as amended (the “1940 Act”) and is authorized to issue shares of
beneficial interests 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 Financial Industry
Regulatory Authority (“FINRA”); and
WHEREAS,
the
Trust and Distributor desire to enter into an agreement pursuant to which
Distributor shall be the distributor of the shares of the Trust representing
the
investment portfolios described on Schedule A hereto and any additional shares
and/or investment portfolios the Trust and Distributor may agree upon and
include on Schedule A as such Schedule may be amended from time to time (such
shares and any additional shares are referred to as the “Shares” and such
investment portfolios and any additional investment portfolios are individually
referred to as a “Fund” and collectively the “Funds”).
NOW,
THEREFORE,
in
consideration of the mutual promises and agreements 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.
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Appointment
of the Distributor.
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The
Trust
hereby appoints the Distributor as agent for the distribution of the Shares,
on
the terms and for the period set forth in this Agreement. Distributor hereby
accepts such appointment as agent for the distribution of the Shares on the
terms and for the period set forth in this Agreement.
2.
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Services
and Duties of the Distributor.
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2.1 Distributor
will act as agent for the distribution of Shares in accordance with the
instructions of the Trust’s Board of Trustees and the registration statement and
prospectuses then in effect with respect to the Funds under the Securities
Act
of 1933, as amended (the “1933 Act”).
2.2 Distributor
may incur expenses for appropriate distribution activities which it deems
reasonable which are primarily intended to result in the sale of Shares,
including, but not limited to, advertising, the printing and mailing of
prospectuses to other than current shareholders, and the printing and mailing
of
sales literature. At the direction of the Trust, Distributor may enter into
servicing and/or selling agreements with qualified broker/dealers and other
persons with respect to the offering of Shares to the public, and if it so
chooses Distributor may act as principal. The Distributor shall not be obligated
to incur any specific expenses nor sell any certain number of Shares of any
Fund.
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2.3 All
Shares of the Funds offered for sale by Distributor shall be offered for sale
to
the public at a price per share (the “offering price”) provided in the Funds'
then current prospectus. The Distributor shall have no liability for the payment
of the purchase price of the Shares sold pursuant to this Agreement or with
respect to redemptions or repurchases of Shares.
2.4 Distributor
shall act as distributor of the Shares in compliance in all material respects
with all applicable laws, rules and regulations, including, without limitation,
all rules and regulations made or adopted pursuant to the 1940 Act, by the
Securities and Exchange Commission (the “Commission”) and FINRA.
2.5 Distributor
shall not utilize any materials in connection with the sales or offering of
Shares except the Trust’s prospectus and statement of additional information and
such other materials as the Trust shall provide or approve. The Distributor
agrees to provide compliance review of all sales literature and marketing
materials prepared for use by or on behalf of the Trust in advance of the use
of
such materials. The Trust agrees to incorporate such changes to such materials
as the Distributor shall request. The Distributor will file the materials as
may
be required with FINRA, the Commission or state securities commissioners. 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. All advertising and sales literature related to
the
Trust shall be delivered to the Distributor for review prior to use with
sufficient time to permit the Distributor to review the material and to file
with the NASD if necessary. The Trust and the Distributor shall mutually agree
upon a reasonable turnaround time for such review. All advertising and sales
literature related to the Trust that is in use or has been in use within three
years prior to the execution of this Agreement shall be delivered to the
Distributor and the Distributor shall file such materials with the NASD, if
necessary, within 10 days of first use after the date of this
Agreement.
2.6 To
the
extent required by Section 31 of the 1940 Act and the rules and regulations
thereunder, the records covered by this Agreement and maintained by the
Distributor, which have not been previously delivered to the Trust, shall be
considered to be the property of the Trust, shall be made available upon request
for inspection by the officers, employees, and auditors of the Trust, and shall
be delivered to the Trust promptly upon request and in any event upon the date
of termination of this Agreement, in the form and manner kept by the Distributor
on such date of termination or such earlier date as may be requested by the
Trust.
2.7 The
parties acknowledge that Westport Advisers, LLC, the investment adviser of
the
Funds, has entered into separate arrangements to compensate the Distributor
for
certain services provided by the Distributor.
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3.
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Duties
and Representations of the Trust.
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3.1 The
Trust
represents that it is registered as an open-end management investment company
under the 1940 Act and that it has and will continue to act in conformity with
its Declaration of Trust, By-Laws, its registration statement as may be amended
from time to time and resolutions and other instructions of its Board of
Trustees and has and will continue to comply in all material respects with
all
applicable laws, rules and regulations including without limitation the 1933
Act, the 1934 Act, the 1940 Act, the laws of the states in which shares of
the
Funds are offered and sold, and the rules and regulations
thereunder.
3.2 The
Trust
shall take or cause to be taken all necessary action to register and maintain
the registration of the Shares under the 1933 Act for sale as herein
contemplated and shall pay all costs and expenses in connection with the
registration of Shares under the 1933 Act, and be responsible for all expenses
in connection with maintaining facilities for the issue and transfer of
Shares
and for supplying information, prices and other data to be furnished by the
Trust hereunder.
3.3 The
Trust
shall execute any and all documents and furnish any and all information and
otherwise take all actions which may be reasonably necessary in the discretion
of the Trust’s officers in connection with the qualification of the Shares for
sale in such states as Distributor and the Trust may approve, shall maintain
the
qualification of a sufficient number or amount of shares thereunder, and shall
pay all costs and expenses in connection with such qualification. The Trust
shall notify the Distributor, or cause it to be notified, of the states in
which
the Shares may be sold and shall notify the Distributor of any change to the
information.
3.4 The
Trust
shall keep the Distributor fully informed with regard to its affairs and any
expenses associated therewith shall be paid in accordance with Section 2.7.
In
addition, the Trust shall furnish Distributor from time to time such
information, documents and reports with respect to the Trust and the Shares
as
Distributor may reasonably request, and the Trust warrants that the statements
contained in any such information shall be true and correct and fairly represent
what they purport to represent.
3.5 The
Trust
represents to Distributor that (i) the Trust’s registration statement filed on
May 1, 2007 and the Funds’ prospectus dated May 1, 2007 and (ii) all
registration statements and prospectuses of the Trust to be filed in the future
with the Commission under the 1933 Act and 1940 Act with respect to the Shares
have been and will be prepared in conformity in all material respects and to
the
best of the Trust’s knowledge with the requirements of the 1933 Act, the 1940
Act, and the rules and regulations of the Commission thereunder. As used in
this
Agreement the terms “registration statement” and “prospectus” shall mean any
registration statement and prospectus (together with the related statement
of
additional information) at any time now or hereafter filed with the Commission
with respect to any of the Shares and any amendments and supplements thereto
which at any time shall have been or will be filed with said Commission.
The
Trust
represents and warrants to Distributor that any registration statement and
prospectus, when such registration statement becomes effective, will, to the
best of the Trust’s knowledge, contain all statements required to be stated
therein in conformity with the 1933 Act, the 1940 Act and the rules and
regulations of the Commission; that all information contained in the
registration statement and prospectus will, to the best of the Trust’s
knowledge, be true and correct in all material respects when such registration
statement becomes effective; and that neither the registration statement nor
any
prospectus when such registration statement becomes effective will, to the
best
of the Trust’s knowledge, include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the
statements therein not misleading. The Trust agrees to file from time to time
such amendments, supplements, reports and other documents as may be necessary
or
required in order to comply with the 1933 Act and the 1940 Act and in order
that
there may be no untrue statement of a material fact in a registration statement
or prospectus, or necessary or required in order that, to the best of the
Trust’s knowledge, there may be no omission to state a material fact in the
registration statement or prospectus which omission would make the statements
therein misleading. The Trust shall promptly notify the Distributor if it
determines that it is necessary to amend or supplement the registration
statement.
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3.6 The
Trust
shall provide the Distributor with reasonable advance notice (written or oral)
of any anticipated amendment to the registration statement or supplement to
any
prospectus and, whenever reasonably practicable, a copy of any proposed
amendment or supplement prior to filing. The Distributor shall (i) promptly
provide the Trust with any proposed revisions to such anticipated amendment
or
supplement in writing and (ii) shall notify the Trust as the Distributor sees
fit, of any other proposed revisions, questions or comments on the registration
statement, organizational documents or other documentation relating to the
Trust. The Trust shall reasonably cooperate with the Distributor to implement
reasonable and appropriate revisions and to otherwise address questions or
comments of the Distributor relating to Trust documentation. Nothing contained
in this Agreement shall in any way limit the Trust’s right or obligation to file
at any time any amendments to any registration statement and/or supplements
to
any prospectus, of whatever character, as the Trust may deem advisable, with
advice of its counsel, such right being in all respects absolute and
unconditional.
3.7 Whenever
in their judgment such action is warranted by market, economic or political
conditions, or by circumstances of any kind, the Trust may decline to accept
any
orders for, or make any sales of, any Shares until such time as it deems it
advisable to accept such orders and to make such sales and the Trust shall
advise Distributor promptly of such determination.
3.8 The
Trust
agrees to advise the Distributor promptly in writing:
(i) of
any
correspondence or other communication by the Commission or its staff relating
to
the Funds that is deemed by Trust counsel to be material to the Distributor,
including requests by the Commission for amendments to the registration
statement or prospectuses;
(ii) in
the
event of the issuance by the Commission of any stop order suspending the
effectiveness of the registration statement or prospectuses 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 registration statement or prospectuses or which requires the making
of a
change in such registration statement or prospectuses in order to make the
statements therein not misleading; and
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(iv) of
all
actions taken by the Commission with respect to any amendments to any
registration statement or prospectus which may from time to time be filed with
the Commission.
4.
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Indemnification.
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4.1(a) The
Trust
authorizes Distributor to use any prospectus or statement of additional
information, in the form furnished to Distributor from time to time, in
connection with the sale of Shares. The Trust shall indemnify, defend and hold
the Distributor, and each of its present or former directors, members, officers,
employees, representatives and any person who controls or previously controlled
the Distributor within the meaning of Section 15 of the 1933 Act (“Distributor
Indemnitees”), free and harmless (a) from and against any and all losses,
claims, demands, liabilities, damages, charges, payments, costs and expenses
(including the costs of investigating or defending any alleged losses, claims,
demands, liabilities, damages, charges, payments, costs or expenses and any
counsel fees incurred in connection therewith) of any and every nature
(“Losses”) which Distributor and/or each of the Distributor Indemnitees may
incur under the 1933 Act, the 1934 Act, any other statute (including Blue Sky
laws) or any rule or regulation thereunder, or under common law or otherwise,
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,
an
annual or interim report to shareholders or sales literature, or any amendments
or supplements thereto, or 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; provided, however,
that
the Trust’s obligation to indemnify Distributor and any of the foregoing
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
therein in reliance upon and in conformity with information relating to the
Distributor and furnished to the Trust or its counsel by Distributor in writing
for the purpose of, and used in, the preparation thereof; (b) from and against
any and all Losses which Distributor and/or each of the Distributor Indemnitees
may incur in connection with this Agreement or the Distributor’s performance
hereunder, except to the extent the Losses result from the Distributor’s willful
misfeasance, bad faith or negligence in the performance of its duties, or by
reason of its reckless disregard of its obligations and duties under this
Agreement, (c) from and against any and all Losses which Distributor and/or
each
of the Distributor Indemnitees may incur resulting from the actions or inactions
of any prior service provider to the Funds, or (d) from and against any and
all
Losses which Distributor and/or each of the Distributor Indemnitees may incur
when acting in accordance with instructions from the Trust or its
representatives. Promptly after receipt by the Distributor of notice of the
commencement of an investigation, action, claim or proceeding, the Distributor
shall, if a claim for indemnification in respect thereof is to made under this
section, notify the Trust in writing of the commencement thereof, although
the
failure to do so shall not prevent recovery by the Distributor or any
Distributor Indemnitee.
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4.1(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 loss,
claim, demand, liability, damage or expense, 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 and notifies the Distributor of such election, the indemnified
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by them subsequent to the receipt of the Trust’s
election. 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 in case there is a conflict of
interest between the Trust and the Distributor or any of the Distributor
Indemnitees, the Trust will reimburse the indemnified person or persons named
as
defendant or defendants in such suit, for the fees and expenses of any counsel
retained by Distributor and them. The Trust’s indemnification agreement
contained in this Section 4.1 and the Trust’s representations and warranties in
this Agreement shall remain operative and in full force and effect regardless
of
any investigation made by or on behalf of the Distributor and each 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 Distributor's benefit, to the benefit of each of the
Distributor Indemnitees, and their estates and successors. The Trust agrees
promptly to notify Distributor of the commencement of any litigation or
proceedings against the Trust or any of its officers or trustees in connection
with the issue and sale of any of the Shares.
4.1(c) The
Trust
acknowledges and agrees that in the event the Distributor, at the direction
of
the Trust, is required to give indemnification to any entity selling Shares
or
providing shareholder services to shareholders or others and such entity shall
make a claim for indemnification against the Distributor, the Distributor shall
make a similar claim for indemnification against the Trust and shall be entitled
to such indemnification.
4.2(a) Distributor
shall indemnify, defend and hold the Trust, and each of its present or former
trustees, officers, employees, representatives, and any person who controls
or
previously controlled the Trust within the meaning of Section 15 of the 1933
Act
(“Trust Indemnitees”), free and harmless from and against any and all Losses
which the Trust, and each of its present or former trustees, officers,
employees, representatives, or any such controlling person, may incur under
the
1933 Act, the 1934 Act, any other statute (including Blue Sky laws) or any
rule
or regulation thereunder, or under common law or otherwise, (a) arising out
of
or based upon any untrue, or alleged untrue, statement of a material fact
contained in the Trust’s registration statement or any prospectus, as from time
to time amended or supplemented, or the omission, or alleged omission, to state
therein a material fact required to be stated therein or necessary to make
the
statement not misleading, but only if such statement or omission was made in
reliance upon, and in conformity with, information relating to the Distributor
and furnished in writing to the Trust or its counsel by the Distributor for
the
purpose of, and used in, the preparation thereof, and (b) to the extent any
Losses arise out of or result from the Distributor’s willful misfeasance, bad
faith or negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations and duties under this Agreement;
Distributor's agreement to indemnify the Trust and any of the Trust Indemnitees
shall not be deemed to cover any Losses to the extent they arise out of or
result from the Trust’s willful misfeasance, bad faith or negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations and duties, under this Agreement. Promptly after receipt by the
Trust of notice of the commencement of an investigation, action, claim or
proceeding, the Trust shall, if a claim for indemnification in respect thereof
is to made under this section, notify the Distributor in writing of the
commencement thereof, although the failure to do so shall not prevent recovery
by the Trust or any Trust Indemnitee.
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4.2(b) 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 loss, claim, demand, liability, damage or expense, 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 and notifies the Trust of such
election, the indemnified defendant or defendants in such suit shall bear the
fees and expenses of any additional counsel retained by them subsequent to
the
receipt of the Distributor’s election. 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 in case there is a conflict of interest between the Distributor and the
Trust
or any of the Trust Indemnitees, the Distributor will reimburse the indemnified
person or persons named as defendant or defendants in such suit, for the fees
and expenses of any counsel retained by the Trust and them. The Distributor’s
indemnification agreement contained in this Section 4.2 and the Distributor’s
representations and warranties in this Agreement shall remain operative and
in
full force and effect regardless of any investigation made by or on behalf
of
the Trust or any 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 Trust's benefit, to the benefit of each of the Trust
Indemnitees and their estates and 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 members in connection with the issue
and sale of any of the Shares.
5.
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Offering
of Shares.
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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 such
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 1933
Act, or if and so long as the current prospectus, as amended, as required by
Section 10 of the 1933 Act is not on file with the Commission; provided,
however, that nothing contained in this Section 5 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 prospectus
or Declaration of Trust.
6.
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Limitation
of Liability
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6.1 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 performance of its
obligations and duties under this Agreement, except a loss resulting from the
Distributor’s willful misfeasance, bad faith or negligence in the performance of
such duties and obligations, or by reason of its reckless disregard thereof.
Furthermore, notwithstanding anything herein to the contrary, the Distributor
shall not be liable for any action taken or omitted to be taken in accordance
with instructions received by the Distributor from an officer or representative
of the Trust or for any action taken or omitted to be taken by any prior service
provider of the Funds.
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6.2
The
Distributor assumes no responsibility hereunder, and shall not be liable, for
any default, damage, loss of data, errors, delay or any other loss whatsoever
caused by events beyond its reasonable control. The Distributor will, however,
take all reasonable steps to minimize service interruptions for any period
that
such interruption continues beyond its control. Notwithstanding anything in
this
agreement to the contrary, in no event shall either party, its affiliates or
any
of its or their trustees, members, officers, employees, agents or
subcontractors, be liable for lost profits or consequential
damages.
7.
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Term.
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7.1 This
Agreement shall become effective with respect to each Fund listed on Schedule
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 Schedule A to this Agreement relating
to
that Fund is executed. Unless sooner terminated as provided herein, this
Agreement shall continue in effect with respect to each Fund until August 31,
2008. Thereafter, if not terminated, this Agreement shall continue automatically
in effect as to each Fund for successive annual periods, provided such
continuance is specifically approved at least annually by (i) the Trust’s Board
of Trustees or (ii) the vote of a majority (as defined in the 1940 Act and
Rule
18f-2 thereunder) 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 of Trustees who are not "interested persons" (as defined in the
0000 Xxx) of any party to this Agreement, by vote cast in person at a meeting
called for the purpose of voting on such approval.
7.2 This
Agreement may be terminated without penalty with respect to a particular Fund
(1) through a failure to renew this Agreement at the end of a term, (2) upon
mutual consent of the parties, or (3) on no less than sixty (60) days' written
notice, by the Trust’s Board of Trustees, by vote of a majority (as defined with
respect to voting securities in the 1940 Act and Rule 18f-2 thereunder) of
the
outstanding voting securities of a Fund, or by the Distributor (which notice
may
be waived by the party entitled to such notice). 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. This Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act).
7.3 In
the
event of termination of this Agreement, all reasonable and documented expenses
associated with movement of records and materials and conversion thereof shall
be paid in accordance with Section 2.7. Notwithstanding anything herein to
the
contrary, upon the termination of this Agreement as provided herein or the
liquidation of the Trust, UMBDS shall deliver the records of the Trust to the
Trust or its successor distributor in a form that is consistent with UMBDS’
applicable license agreements at the expense of the Trust, and thereafter the
Trust or its designee shall be solely responsible for preserving the records
for
the periods required by all applicable laws, rules and regulations. In the
event
a Fund is liquidated, the Distributor shall deliver the records of that Fund
to
the Trust. The Distributor shall not reduce the level of service provided to
the
Trust prior to termination following notice of termination by the
Trust.
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8.
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Trust
Limitations.
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This
Agreement is executed by the Trust with respect to each of the Funds and the
obligations hereunder are not binding on any of the trustees, officers or
shareholders of the Trust individually but are binding only upon the Fund to
which such obligations pertain and the assets and property of such Fund. All
obligations of the Trust under this Agreement shall apply only on a Fund-by-Fund
basis, and the assts of one Fund shall not be liable for the obligations of
another Fund.
9.
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Cooperation.
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(a) Upon
reasonable request of the Trust, the Distributor shall grant the Trust’s duly
authorized officers (including the Trust’s Chief Compliance Officer), investment
adviser, agents and independent registered public accounting firm access, during
normal business hours, to the Distributor’s facilities, records and personnel to
the extent such facilities, records and personnel are used in connection with
or
relate to the Distributor’s services to be provided hereunder, for the purposes
of: (i) conducting a due diligence review of the Distributor’ facilities,
recordkeeping and personnel; (ii) facilitating the preparation and audit, as
applicable, of the Funds’ financial statements; (iii) complying with any
regulatory requirements applicable to the Trust; and (iv) conducting compliance
review or audits in connection with the Chief Compliance Officer’s, Trust’s and
Board of Trustees’ obligations under Rule 38a-1 under the 1940 Act.
(b) Upon
reasonable request, the Distributor will provide sub-certifications to the
Trust
and/or its officers with respect to its services provided hereunder to support:
(i) the Trust’s compliance program and (ii) the certifications required of the
principal executive officer and principal financial officer of the Trust under
the Xxxxxxxx-Xxxxx Act of 2002 and implementing rules and
regulations.
(c)
The
Distributor shall provide the Trust with a copy of UMBFS’ reports (if any)
prepared as a result of “agreed-upon-procedures” or in compliance with the
requirements of Statement of Auditing Standards No. 70 issued by the American
Institute of Certified Public Accountants, as it may be amended from time to
time.
10.
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Miscellaneous.
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10.1 The
services of the Distributor rendered to the Funds are not deemed to be
exclusive. The Distributor may render such services and any other services
to
others, including other investment companies. The Trust recognizes that from
time to time members, officers, and employees of the Distributor may serve
as
directors, trustees, officers and employees of other entities (including other
investment companies), that such other entities may include the name of the
Distributor as part of their name and that the Distributor or its affiliates
may
enter into distribution, administration, fund accounting, transfer agent or
other agreements with such other entities.
10.2 The
Distributor agrees on behalf of itself and its employees to treat confidentially
and as proprietary information of the Trust all records relative to the Funds’
shareholders, not to use such records and information for any purpose other
than
performance of its responsibilities and duties hereunder, and not to disclose
such information except where the Distributor may be exposed to civil or
criminal proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities or court process, when subject
to
governmental or regulatory audit or investigation, or when so requested by
the
Trust. In case of any requests or demands for inspection of the records of
the
Funds, the Distributor will endeavor to notify the Trust promptly and to secure
instructions from a representative of the Trust as to such inspection. Records
and 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 which was already in the possession of the Distributor prior to
receipt thereof, shall not be subject to this paragraph.
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10.3 This
Agreement shall be governed by Wisconsin law, excluding the laws on conflicts
of
laws. 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 Commission
thereunder. 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.
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10.4 Any
notice required or to be permitted to be given by either party to the other
shall be in writing and shall be deemed to have been given when sent by
registered or certified mail, postage prepaid, return receipt requested, as
follows: Notice to the Distributor shall be sent to UMB Distribution Services,
LLC, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxx, XX, 00000, Attention: Xxxxx
Xxxxxxx, and notice to the Trust shall be sent to The Westport Funds, 000
Xxxxxxxxx Xxxxxx, Xxxxxxxx, XX, 00000, Attention: President.
10.5 This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original agreement but such counterparts shall together
constitute but one and the same instrument.
10.6 The
captions of this Agreement are included for convenience of reference only and
in
no way define or delimit any of the provisions hereof or otherwise effect their
construction or effect.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed by a duly authorized
officer as of the day and year first above written.
THE
WESTPORT FUNDS
By:
/s/
Xxxxxx X. Xxxxxxx, Xx.
Name:
Xxxxxx
X. Xxxxxxx, Xx.
Title:
President
UMB
DISTRIBUTION SERVICES, LLC
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx
X. Xxxxxxx
Title:
President
11
Schedule
A
to
the
by
and between
The
Westport Funds
and
UMB
Distribution Services, LLC
Name
of Funds
Fund
Westport
Fund
Westport
Select Cap Fund
12