DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of this 28th day of June,
2000, by and among Cullen Funds Trust, a Delaware business trust ("Trust"),
Cullen Capital Management LLC, a Delaware limited liability company (the
"Adviser") and Quasar Distributors, LLC, a Delaware limited liability company
("Distributor").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interests ("Shares") in separate
series with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Adviser is duly registered under the Investment Advisers
Act of 1940, as amended, and any applicable state securities laws, as an
investment adviser;
WHEREAS, the Trust desires to retain the Distributor as principal
underwriter in connection with the offering and sale of the Shares of each
series listed on Schedule A (as amended from time to time) (the "Funds") to this
Agreement;
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, this Agreement has been approved by a vote of the Trust's
board of trustees ("Board") and its disinterested trustees in conformity with
Section 15(c) of the 1940 Act; and
WHEREAS, the Distributor is willing to act as principal underwriter 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 THE DISTRIBUTOR.
The Trust hereby appoints the Distributor as its agent for the sale and
distribution of Shares of the Funds, subject to the terms and for the period set
forth in this Agreement. The Distributor hereby accepts such appointment and
agrees to act hereunder.
2. SERVICES AND DUTIES OF THE DISTRIBUTOR.
(a) The Distributor agrees to sell Shares of the Funds as agent for the
Trust during the term of this Agreement, 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 amended or supplemented,
relating to the Funds and included in the currently effective registration
statement or post-effective amendment thereto (the "Registration Statement") of
the Trust under the Securities Act of 1933 (the "1933 Act") and the 0000 Xxx.
(b) During the continuous public offering of Shares of the Funds, the
Distributor will hold itself available to receive orders, satisfactory to the
Distributor, for the purchase of Shares of the Funds 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 through the National Securities
Clearing Corporation's Fund/SERV System.
(d) In connection with all matters relating to this Agreement, the
Distributor agrees to act in conformity with the Trust's Declaration of Trust
and By-Laws and with the instructions of the Board and to 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. 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 and the
Distributor.
(e) The Distributor agrees to cooperate with the Trust in the
development of all proposed advertisements and sales literature relating to the
Funds. 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.
(f) The Distributor at its sole discretion may repurchase Shares
offered for sale by shareholders of the Funds. Repurchase of Shares by the
Distributor shall be at the price determined in accordance with, and in the
manner set forth in, the current Prospectus. At the end of each business day,
the Distributor shall notify, by any appropriate means, the Trust and its
transfer agent 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.
(g) The Distributor may, in its discretion, acting only as principal on
its own behalf, enter into written agreements (the "Rule 12b-1 Agreement"), a
form of which is attached hereto as Appendix A, with such qualified
broker-dealers as it may select, in order that such broker-dealers also may sell
Shares of the Funds. The Distributor may pay a portion of any applicable sales
charge, or allow a discount, to a selling broker-dealer, as described in the
Prospectus or, if not described, as agreed upon with the broker-dealer. The
Distributor shall include in the forms of agreement with selling broker-dealers
a provision for the forfeiture by them of their sales charge or discount with
respect to Shares sold by them and redeemed, repurchased or tendered for
redemption within seven business days after the date of confirmation of such
purchases.
(h) The Distributor shall devote its best efforts to effect sales of
Shares of the Funds 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.
(j) The services furnished by the Distributor hereunder are not to be
deemed exclusive and the Distributor shall be free to furnish similar services
to others so long as its services under this Agreement are not impaired thereby.
The Trust recognizes that from time to time officers and employees of the
Distributor may serve as directors, trustees, officers and employees of other
entities (including 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.
3. DUTIES AND REPRESENTATIONS OF THE TRUST.
(a) The Trust represents that it is registered as an open-end
management investment company under the 1940 Act and 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.
(b) The Trust shall take or cause to be taken all necessary action to
register Shares of the Funds under the 1933 Act and to 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 shall have the right to suspend the sale of Shares of any
Fund at any time in response to conditions in the securities markets or
otherwise, and to suspend the redemption of Shares of any Fund at any time
permitted by the 1940 Act or the rules of the Securities and Exchange Commission
("SEC"). The Trust shall advise the Distributor promptly of any such
determination.
(d) The Trust agrees to advise the Distributor promptly in writing:
(i) of any correspondence or other communication by the SEC or
its staff relating to the Funds, 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.
(e) The Trust shall file such reports and other documents as may be
required under applicable federal and state laws and regulations. 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.
(f) 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.
(g) 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 most
current Prospectus, statement of additional information and annual and interim
reports to shareholders as the Distributor may request. 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.
4. COMPENSATION.
As compensation for the services performed and the expenses assumed by
Distributor under this Agreement including, but not limited to, any commissions
paid for sales of Shares, Distributor shall be entitled to the fees and expenses
set forth in Schedule B to this Agreement which are payable promptly after the
last day of each month. Such fees shall be paid to Distributor by the Trust
pursuant to its Rule 12b-1 plan or, if Rule 12b-1 payments are not sufficient to
pay such fees and expenses, or if the Rule 12b-1 plan is discontinued, or if the
Fund's sponsor, the Adviser, otherwise determines that Rule 12b-1 fees shall
not, in whole or in part, be used to pay Distributor, the Adviser shall be
responsible for the payment of the amount of such fees not covered by Rule 12b-1
payments.
5. EXPENSES.
(a) The Trust shall bear all costs and expenses in connection with
registration of the Shares with the SEC and 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 of its Funds,
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 and
amendments thereto, 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 of the
Funds; 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(e)
hereof.
(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.
6. INDEMNIFICATION.
(a) The Trust shall indemnify, defend and hold the Distributor, and
each of its present or former members, officers, employees, representatives and
any person who controls or previously controlled the Distributor within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all losses, claims, demands, liabilities, damages and expenses (including
the costs of investigating or defending any alleged losses, claims, demands,
liabilities, damages or expenses and any reasonable counsel fee incurred in
connection therewith) which the Distributor, each of its present and former
members, officers, employees or 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, 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, as from time to time amended or supplemented, or in any annual or
interim report to shareholders, or in any advertisement or sales literature, 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 the Distributor and any of the foregoing indemnitees
shall not be deemed to cover any losses, claims, demands, liabilities, damages
or expenses 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 such advertisement or sales literature in
reliance upon and in conformity with 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; and provided further that the Trust's
agreement to indemnify the Distributor and any of the foregoing indemnitees
shall not be deemed to cover any liability to the Trust or its shareholders to
which the Distributor would otherwise be subject by reason of its willful
misfeasance, bad faith or gross negligence in the performance of its duties, or
by reason of its reckless disregard of its obligations and duties under this
Agreement. The Trust's agreement to indemnify the Distributor, and any of the
foregoing indemnitees, as the case may be, with respect to any action, is
expressly conditioned upon the Trust being notified of such action brought
against the Distributor, or any of the foregoing 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, or such person, such notification to be given by letter or by
telegram addressed to the Trust's President, but 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 6(a).
(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, the indemnified defendant or defendants
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, and each of its present or former members,
officers, employees, representatives or any controlling person, 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 Sections 6(a) and 6(b)
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 its present or former directors,
officers, employees, representatives or any controlling person, 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 its present or former members, officers, employees or
representatives or to the benefit of any controlling persons 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 directors in connection with the issue and sale of any of the
Shares.
(c) The Trust shall not indemnify any person pursuant to this Section 6
unless (i) the court or other body before which the proceeding was brought has
rendered a final decision on the merits that such indemnified person was not
liable by reason of his willful misfeasance, bad faith or gross negligence in
the performance of his duties, or his reckless disregard of obligations and
duties, under this Agreement or, (ii) in the absence of such a decision, a
reasonable determination (based upon a review of the facts) that such
indemnified person was not liable by reason of such conduct has been made by the
vote of a majority of a quorum of trustees of the Trust who are neither
"interested persons" of the Trust nor parties to the proceedings, or by an
independent legal counsel in a written opinion.
(d) The Trust shall advance attorney's fees and other expenses incurred
by any person in defending any claim, demand, action or suit which is the
subject of a claim for indemnification pursuant to this Section 6, so long as:
(i) such person shall undertake to repay all such advances unless it is
ultimately determined that he is entitled to indemnification hereunder; and (ii)
such person shall provide security for such undertaking, or the Trust shall be
insured against losses arising by reason of any lawful advances, or a majority
of a quorum of the disinterested, non-party trustees of the Trust (or an
independent legal counsel in a written opinion) shall determine, based on a
review of readily available facts (as opposed to a full trial-type inquiry),
that there is reason to believe that such person ultimately will be found
entitled to indemnification hereunder.
(e) 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, free and harmless from and against any and all
losses, claims, demands, liabilities, damages and expenses (including the costs
of investigation or defending any alleged losses, claims, demands, liabilities,
damages or expenses, and any reasonable counsel fee incurred in connection
therewith) 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, 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 in any annual or interim report to
shareholders or in any advertisement or sales literature, or arising out of or
based upon 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 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 and any
of the foregoing indemnitees shall not be deemed to cover any liability to the
Distributor to which the Trust would otherwise be subject by reason of its
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations and duties,
under this Agreement. The Distributor's agreement to indemnify the Trust, and
any of the foregoing indemnitees, is expressly conditioned upon the
Distributor's being notified of any action brought against the Trust, and any of
the foregoing indemnitees, such notification to be given by letter or telegram
addressed to the Distributor's President, 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 or such person, but 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 6(e).
(f) 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, the indemnified
defendant or defendants 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 and the Distributor, and each of its
present or former members, officers, employees, representatives or any
controlling person, 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 Sections 6(e) and (f) 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, and each of its present or former directors, officers, employees,
representatives or any controlling person, 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 its present
or former directors, officers, employees or representative or to the benefit of
any controlling persons 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 issue
and sale of any of the Shares.
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.
(a) 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 for one year from the
date hereof. Thereafter, if not terminated, this Agreement shall continue
automatically in effect 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 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 no less than 60 days' written notice, by
either the Trust through a vote of a majority of the members of the 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. This Agreement will automatically terminate in
the event of its assignment.
11. CONFIDENTIALITY.
The Distributor 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 the Distributor'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 the
Distributor 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 the Distributor 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 when delivered
personally or sent by registered or certified mail, postage prepaid, return
receipt requested or sent by facsimile transmission to the other parties'
respective addresses set forth below:
Notice to the Distributor shall be sent to:
Quasar Distributors, LLC
Attn: Xxxxxx Xxxxx
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Notice to the Trust shall be sent to:
Cullen Funds Trust
Attn: President
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Notice to the Adviser shall be sent to:
Cullen Capital Management LLC
Attn: President
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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.
CULLEN FUNDS TRUST QUASAR DISTRIBUTORS, LLC
By: /S/ XXXXXX X. XXXXXXXX By: /S/ XXXXX XXXXXXXXX
------------------------------ -------------------
Title: Trustee Title: President
CULLEN CAPITAL MANAGEMENT LLC
By: /S/ XXXXX X. XXXXXX
----------------------------
Title: President
June 28, 2000
SCHEDULE A
TO THE
DISTRIBUTION AGREEMENT
BY AND AMONG
CULLEN FUNDS TRUST
CULLEN CAPITAL MANAGEMENT LLC
AND
QUASAR DISTRIBUTORS, LLC
NAMES OF FUNDS
Cullen Value Fund
SCHEDULE B
TO THE
DISTRIBUTION AGREEMENT
BY AND AMONG
CULLEN FUNDS TRUST
CULLEN CAPITAL MANAGEMENT LLC
AND
QUASAR DISTRIBUTORS, LLC
FEES
BASIC DISTRIBUTION SERVICES
o Fee at the annual rate of .01 of 1% (one basis point) of the Fund's average
daily net assets, payable monthly in arrears
o Minimum annual fee: first portfolio -- $15,000; each additional
portfolio -- $3,000
ADVERTISING COMPLIANCE REVIEW/NASD FILINGS
o $150 for the first 10 pages/minutes; $20 per page/minute thereafter
o NASDR Expedited Service for 3 day turnaround
o $1000 for the first 10 pages/minutes; $25 per page/minute thereafter
(Comments are faxed. NASDR may not accept expedited request.)
LICENSING OF INVESTMENT ADVISOR'S STAFF (IF DESIRED)
o $900 per year per Series 7 representative
o All associated NASD and State fees for Registered Representatives, including
license and renewal fees.
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:
o typesetting, printing and distribution of Prospectuses and shareholder
reports
o production, printing, distribution and placement of advertising and sales
literature and materials
o engagement of designers, free-xxxxx writers and public relations firms
o long-distance telephone lines, services and charges
o postage
o overnight delivery charges
o regulatory filing fees
o record retention
o travel, lodging and meals
APPENDIX A
RULE 12B-1 AGREEMENT
QUASAR DISTRIBUTORS, LLC
000 XXXX XXXXXXXX XXXXXX
XXXXX 000
XXXXXXXXX, XX 00000
DEALER AGREEMENT
This Agreement is made as of ______________________, 2000, between
Quasar Distributors, LLC ("QUASAR"), a Delaware limited liability company, and
__________________________________ ("DEALER"), a corporation organized and
existing under the laws of ______________________________.
WHEREAS, Cullen Funds Trust (the "Trust") is registered under the
Investment Company Act of 1940, as amended ("1940 Act"), as an open-end
management investment company and currently offers for public sale shares of
common stock or beneficial interest ("Shares") in the separate series of the
Trust listed on Schedule A (each, a "Fund");
WHEREAS, QUASAR serves as principal underwriter in connection with the
offering and sale of the Shares of each Fund pursuant to a Distribution
Agreement, and
WHEREAS, DEALER desires to serve as a selected dealer for the Shares of
the Funds.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein, QUASAR and DEALER agree as follows:
1. OFFERS AND SALES OF SHARES. The DEALER agrees to offer and sell
Shares only at the public offering price currently in effect, in accordance with
the terms of the then-current prospectus(es), including any supplements or
amendments thereto, of each Fund ("Prospectus"). The DEALER agrees to act only
as agent on behalf of its customers in such transactions and shall not have
authority to act as agent for the Fund(s), for QUASAR, or for any other dealer
in any respect. All purchase orders are subject to acceptance by QUASAR and the
relevant Fund and become effective only upon confirmation by QUASAR or an agent
of the Fund. In its sole discretion, either the Fund or QUASAR may reject any
purchase order and may, provided notice is given to the DEALER, suspend sales or
withdraw the offering of Shares entirely.
2. PROCEDURES FOR PURCHASES. The procedures relating to all orders and
the handling of them shall be made in accordance with the procedures set forth
in each Fund's Prospectus, and to the extent consistent with the Prospectus,
written instructions forwarded to DEALER by QUASAR from time to time.
3. SETTLEMENT AND DELIVERY FOR PURCHASES. Transactions shall be settled
by the DEALER by payment in federal funds of the full purchase price to QUASAR,
or if applicable procedures exist, to the Fund's transfer agent. Payment for
Shares shall be received by QUASAR or the Fund's transfer agent, as the case may
be, by the later of (a) the end of the third business day following the Dealer's
receipt of the customer's order to purchase such Shares or (b) the end of one
business day following the Dealer's receipt of the customer's payment for such
Shares, but in no event later than the end of the sixth business day following
the Dealer's receipt of the customer's order. If such payment is not received
within the time specified, the sale may be canceled forthwith without any
responsibility or liability on QUASAR's part or on the part of the Funds.
QUASAR shall pay to the DEALER, not less frequently than monthly, the
aggregate fees due it on orders received and settled.
4. PROCEDURES FOR REDEMPTION, REPURCHASE AND EXCHANGE. Redemptions or
repurchases of Shares as well as exchange requests shall be made in accordance
with the procedures set forth in each Fund's Prospectus, and to the extent
consistent with the Prospectus, written instructions forwarded to DEALER by
QUASAR from time to time.
5. COMPENSATION.
(a) On each purchase of Shares by the DEALER from QUASAR, the total
sales charges and discount to dealer, if any, shall be as stated in each Fund's
Prospectus. Such sales charges and discounts to dealers are subject to
reductions under a variety of circumstances as described in each Fund's
Prospectus. To obtain these reductions, QUASAR must be notified when a sale
takes place that would qualify for the reduced charge. If any Shares sold to the
DEALER under the terms of this Agreement are redeemed by a Fund or tendered for
redemption or repurchased by a Fund or by QUASAR as agent within seven business
days after the date the DEALER purchased such Shares, the DEALER shall forfeit
its right to any discount or commission received by or allowed to the DEALER
from the original sale.
(b) From time to time during the term of this Agreement, QUASAR may
make payments to DEALER pursuant to one or more distribution plans adopted by
certain of the Funds pursuant to Rule 12b-1 under the 1940 Act ("Distribution
Plan") in consideration, with respect to each such Fund, of DEALER'S furnishing
distribution services hereunder. The provisions and terms of a Fund's
Distribution Plan are described in its Prospectus and statement of additional
information ("SAI"), and the DEALER agrees that QUASAR has made no
representations to the DEALER with respect to the Distribution Plan in addition
to or conflicting with the description set forth therein. The DEALER agrees that
(i) DEALER has no right to receive payment of any amounts otherwise payable to
it by QUASAR under a Fund's Distribution Plan until such time as QUASAR is in
receipt of such fee from the Fund and (ii) QUASAR'S liability to the DEALER for
the payment of any such fees is limited solely to the amount of the applicable
Fund's fee sent to QUASAR.
6. EXPENSES. The DEALER agrees that it will bear all expenses
incurred in connection with its performance of this Agreement.
7. DEALER REGISTRATION. The DEALER represents and warrants that it is
registered as a broker-dealer under the Securities Exchange Act of 1934 ( the
"1934 Act"), is qualified as a broker-dealer in all states or other
jurisdictions in which it sells Fund Shares, and, if it sells shares in
additional states or jurisdictions in the future, will become qualified to act
as a dealer in each such state or jurisdiction prior to selling any Fund shares.
The DEALER shall maintain any filings and licenses required by federal and state
laws to conduct the business contemplated under this Agreement. The DEALER
further represents and warrants that it is a member in good standing of the
National Association of Securities Dealers, Inc. ("NASD") and that it agrees to
abide by the Conduct Rules of the NASD. The DEALER further represents and
warrants that it is a member of the Securities Investor Protection Corporation
in good standing.
8. COMPLIANCE WITH FEDERAL AND STATE LAWS.
(a) The DEALER will not sell any of the Shares except in compliance
with all applicable federal and state securities laws. In connection with sales
and offers to sell Shares, the DEALER will furnish or cause to be furnished to
each person to whom any such sale or offer is made, at or prior to the time of
offering or sale, a copy of the Prospectus and, if requested, the related SAI.
QUASAR shall be under no liability to the DEALER except for lack of good faith
and for obligations expressly assumed by QUASAR herein. Nothing herein
contained, however, shall be deemed to be a condition, stipulation or provision
binding any persons acquiring any security to waive compliance with, or to
relieve the parties hereto from any liability arising under, the federal
securities laws.
(b) QUASAR shall, from time to time, inform the DEALER as to the states
and jurisdictions in which QUASAR believes the Shares have been qualified for
sale under, or are exempt from the requirements of, the respective securities
laws of such states and jurisdictions. The DEALER agrees that it will not
knowingly offer or sell Shares in any state or jurisdiction in which such Shares
are not qualified, unless any such offer or sale is made in a transaction that
qualifies for an exemption from registration.
(c) QUASAR assumes no responsibility in connection with the
registration of the DEALER under the laws of the various states or under federal
law or the DEALER'S qualification under any such law to offer or sell Shares.
9. UNAUTHORIZED REPRESENTATIONS. No person is authorized to make any
representations concerning Shares of the Funds except those contained in the
Prospectus, SAI and printed information issued by each Fund or by QUASAR as
information supplemental to each Prospectus. QUASAR shall, upon request, supply
the DEALER with reasonable quantities of Prospectuses and SAIs. The DEALER
agrees not to use other advertising or sales material relating to the Funds
unless approved by QUASAR in advance of such use. Neither party shall use the
name of the other party in any manner without the other party's written consent,
except as required by any applicable federal or state law, rule or regulation,
and except pursuant to any mutually agreed upon promotional programs.
10. CONFIRMATIONS. The DEALER agrees to send confirmations of orders to
its customers as required by Rule 10b-10 of the 1934 Act. In the event the
customers of DEALER place orders directly with the Fund or any of its agents,
confirmations will be sent to such customers, as required, by the Fund's
transfer agent.
11. RECORDS. The DEALER agrees to maintain all records required by
applicable state and federal laws and regulations relating to the offer and sale
of Shares to its customers, and upon the reasonable request of QUASAR, or of the
Fund(s), to make these records available to QUASAR or the Fund's administrator
as reasonably requested. On orders placed directly with the Fund or its agents,
the Fund's transfer agent will maintain all records required by state and
federal laws and regulations relating to the offer and sale of Shares.
12. TAXPAYER IDENTIFICATION NUMBERS. The DEALER agrees to obtain any
taxpayer identification number certification from its customers required under
the Internal Revenue Code and any applicable Treasury regulations, and to
provide QUASAR or its designee with timely written notice of any failure to
obtain such taxpayer identification number certification in order to enable the
implementation of any required backup withholding.
13. INDEMNIFICATION.
(a) The DEALER shall indemnify and hold harmless QUASAR, each Fund, the
transfer agent and administrator of the Funds, and their 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 the DEALER of
any provision of this Agreement.
(b) QUASAR shall indemnify and hold harmless the DEALER 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 (Indemnified
Party) notifying the other party (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. 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 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.
14. NO AGENCY CREATED. Nothing in this Agreement shall be deemed or
construed to make the DEALER an employee, agent, representative or partner of
any of the Funds or of QUASAR, and the DEALER is not authorized to act for
QUASAR or for any Fund or to make any representations on QUASAR's or the Funds'
behalf. The DEALER acknowledges that this Agreement is not exclusive and that
QUASAR may enter into similar arrangements with other broker-dealers.
15. TERMINATION, ASSIGNMENT AND AMENDMENT. Either party to this
Agreement may cancel this Agreement by giving ten days' written notice to the
other. Such notice shall be deemed to have been given on the date on which it
was either delivered personally to the other party or any officer or member
thereof or was mailed to the other party at its address as shown below in
Paragraph 16. This Agreement will terminate automatically without notice with
respect to any Fund if (a) the DEALER files a petition in bankruptcy, (b) a
trustee or the like is appointed for the DEALER or its assets under federal
bankruptcy laws, (c) the DEALER'S registration as a broker-dealer with the
Securities and Exchange Commission is suspended or revoked, (d) the DEALER'S
NASD membership is suspended or revoked, (e) an application for a protective
decree under the provisions of the Securities Investor Protection Act of 1970
shall have been filed against the DEALER, or (f) the Distribution Agreement
between QUASAR and a Fund is terminated. Termination of this Agreement by
operation of this Paragraph 15 shall not affect any unpaid obligations under
Paragraphs 3, 5 or 6 of this Agreement or the liability, legal and indemnity
obligations set forth under Paragraphs 7, 8, 9 or 13 of this Agreement. This
Agreement may not be amended by either party without the prior written consent
of the other party.
16. NOTICES. Except as otherwise specifically provided in this
Agreement, all notices required or permitted to be given pursuant to this
Agreement shall be given in writing and delivered by personal delivery or by
postage prepaid, registered or certified United States first-class mail, return
receipt requested, or by electronic mail, telex, telegram or similar means of
same day delivery (with a confirming copy by mail as provided herein). Unless
otherwise notified in writing, all notices to QUASAR shall be given or sent to
QUASAR at its offices located at:
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
All notices to the DEALER shall be given or sent to DEALER at its offices
located at:
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17. 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. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
18. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws (without regard, however, to conflicts of law principles) of the State
of Wisconsin, provided that no provision shall be construed in a manner not
consistent with the 1940 Act or any rule or regulation thereunder.
19. CONFIDENTIALITY. QUASAR and the DEALER agree to preserve the
confidentiality of any and all materials and information furnished by either
party in connection with this Agreement. The provisions of this Paragraph shall
not apply to any information which is: (a) independently developed by the
receiving party, provided the receiving party can satisfactorily demonstrate
such independent development with appropriate documentation; (b) known to the
receiving party prior to disclosure by the disclosing party; (c) lawfully
disclosed to the receiving party by a third party not under a separate duty of
confidentiality with respect thereto to the disclosing party; or (d) otherwise
publicly available through no fault or breach by the receiving party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated as of the day and year first written
above.
QUASAR DISTRIBUTORS, LLC
By:
Type Name:
DEALER
By:
Type Name:
SCHEDULE A
SERIES OF CULLEN FUNDS TRUST
NAMES OF FUNDS
Cullen Value Fund
