BLUE SKY REGISTRATION AGREEMENT
Exhibit (h)(5)
BLUE SKY REGISTRATION AGREEMENT
THIS AGREEMENT effective as of the 17th day of May, 2011, by and between XXXXX AND POWER FUNDS TRUST, a Delaware statutory trust (the “Trust”), and QUASAR DISTRIBUTORS, LLC, a Delaware limited liability company (“Quasar”).
WHEREAS, the Trust is registered under the Investment Company Act of 1940, as amended (“1940 Act”), as an open-end diversified management company, and is authorized to issue shares of beneficial interests (“Shares”) of the Xxxxx and Power Small Cap Fund (such Fund, together with any additional series of the Trust which joins this Agreement in the future, being referred to collectively herein as the “Funds”);
WHEREAS, each of the Trust desire to retain Quasar as an agent in connection with the Blue Sky registration of the Shares of the Funds;
WHEREAS, Quasar 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 (the “FINRA”); and
WHEREAS, Quasar is willing to act as an agent for the Trust on the terms and conditions hereinafter set forth.
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.
The Trust hereby appoints Quasar as its agent for the Blue Sky registration of Shares of the Funds, subject to the terms and for the period set forth in this Agreement. Quasar hereby accepts such appointment and agrees to act hereunder.
2. Services and Duties of Quasar.
(a) Quasar agrees to serve as agent for the Blue Sky registration of Shares of the Funds in compliance with state securities laws, or other jurisdictions as may be mutually agreed upon by the Trust and Quasar.
(b) The services furnished by Quasar hereunder are not to be deemed exclusive and Quasar shall be free to furnish similar services to others so long as its services under this Agreement are not impaired thereby. Quasar and the Trust recognize that from time to time officers and employees of Quasar may serve as directors, trustees, officers and employees of other entities (including investment trusts), that such other entities may include the name of Quasar as part of their name and that Quasar or its affiliates may enter into distribution, administration, fund accounting, transfer agent or other agreements with such other entities.
3. Duties and Representations of the Trust.
(a) The Trust represent that it is duly organized and in good standing under the law of its jurisdiction of organization and registered as an open-end management investment company under the 1940 Act. The Trust agrees that it will act in material 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. The Trust agrees to comply in all material respects with the 1933 Act, the 1940 Act, and all other applicable federal and state laws and regulations. The Trust represents and warrants that this Agreement has been duly authorized by all necessary action by the Trust under the 1940 Act, state law and the Trust’s Declaration of Trust and By-Laws.
(b) The Trust agrees to advise Quasar promptly in writing:
(i) of any correspondence or other communication by 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; and
(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.
4. Compensation.
As compensation for the services performed and the expenses assumed by Quasar under this Agreement Quasar shall be entitled to the fees and expenses set forth in Schedule A to this Agreement which are payable promptly after the last day of each month. Such fees shall be paid to Quasar by the Funds.
5. Expenses.
(a) The Funds shall bear all costs and expenses in connection with registration of the Shares with the SEC and related compliance with state securities laws.
(b) Quasar shall bear the expenses of registration or qualification of Quasar as a dealer or broker under federal or state laws and the expenses of continuing such registration or qualification. Quasar does not assume responsibility for any expenses not expressly assumed hereunder.
6. Indemnification.
(a) Trust shall indemnify and hold harmless Quasar and its respective affiliates, officers, directors, agents, employees and controlling persons from all direct or indirect liabilities, losses or costs (including reasonable attorneys’ fees) arising from, related to or otherwise connected with any breach by Trust of any provision of this Agreement.
(b) Quasar shall indemnify and hold harmless Trust and its affiliates, officers, directors, agents, employees and controlling persons from and against any and all direct or indirect liabilities, losses or costs (including reasonable attorneys’ fees) arising from, related to or otherwise connected with any breach by Quasar of any provision of this Agreement.
(c) The Agreement of the parties in this Paragraph to indemnify each other is conditioned upon the party entitled to indemnification (the “Indemnified Party”) notifying the other party (the “Indemnifying Party”) promptly after the summons or other first legal process for any claim as to which indemnity may be sought is served on the Indemnified Party, unless failure to give such notice does not prejudice the Indemnifying Party. The Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting from it, provided that counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation shall be approved by the Indemnified Party (which approval shall not unreasonably be withheld), and that the Indemnified Party may participate in such defense at its expense. The failure of the Indemnified Party to give notice as provided in this subparagraph (c) shall not relieve the Indemnifying Party from any liability other than its indemnity obligation under this Paragraph. No Indemnifying Party, in the defense of any such claim or litigation, shall, without the written consent of the Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term the giving by the claimant or plaintiff to the Indemnified Party of a release from all liability in respect to such claim or litigation.
7. Obligations of Trust.
This Agreement is executed by and on behalf of the Trust and the obligations of the Trust hereunder are not binding upon any of the Trustees, officers or shareholders of the Trust individually but are binding only upon the Trust and with respect to the Funds to which such obligations pertain.
8. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original agreement but all of which counterparts shall together constitute but one and the same instrument.
9. 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.
10. Duration and Termination.
This Agreement shall become effective with respect to the Funds as of the date hereof. Unless sooner terminated as provided herein, this Agreement shall continue in effect for one year from the date hereof shall continue in effect until terminated. Either party may terminate this agreement on 60 days’ written notice.
11. Confidentiality.
Quasar agrees on behalf of its employees to treat all records relative to the Trust and prior, present or potential shareholders of the Trust as confidential, and not to use such records for any purpose other than performance of Quasar’s responsibilities and duties under this Agreement, except after notification and prior approval by the Trust, which approval shall not be unreasonably withheld, and may not be withheld where Quasar may be exposed to civil or criminal proceedings for failure to comply, when requested to divulge such information by duly constituted authorities, when subject to governmental or regulatory audit or investigation, or when so requested by the Trust. Records and information which have become known to the public through no wrongful act of Quasar or any of its employees, agents or representatives shall not be subject to this paragraph.
12. Miscellaneous.
The captions in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect. 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. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors. As used in this Agreement, 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.
13. Notice.
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 3 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 set forth below:
Notice to Quasar shall be sent to:
Quasar Distributors, LLC
Attn: President
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Notice to the Trust shall be sent to:
Xxxxx and Power Funds Trust
W1520 First National Bank Building
000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their officers designated as of the day and year first above written.
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XXXXX AND POWER FUNDS TRUST |
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QUASAR DISTRIBUTORS, LLC | ||||
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By: |
/s/ Xxx X. Xxxxxxxx |
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By: |
/s/ Xxxxx Xxxxxxxxx | ||
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Xxxxx Xxxxxxxxx | ||
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Title: |
Secretary |
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Title: |
President | ||
SCHEDULE A
to the
BLUE SKY REGISTRATION AGREEMENT
by and between
Xxxxx and Power Funds Trust
and
Quasar Distributors, LLC
Fees
State Registration Fees and Other Out-of-Pocket Expenses
· $3,000 annually for the Xxxxx and Power Small Cap Fund until such time at which the Fund is registered in all 50 states, when the fee will become $5,000 annually.
Fees to be billed monthly.
