WINTERGREEN FUND, INC.
DISTRIBUTION AGREEMENT
AGREEMENT made as of the ___ day of September, 2005, by and between
Wintergreen Fund, Inc., a Maryland corporation that acts as an open-end
investment company, with its principal office and place of business at 000 Xxxxx
00 Xxxx, Xxxxxxxx Xxxxx, XX 00000 (the "Client"), and Foreside Fund Services,
LLC, a Delaware limited liability company with its principal office and place of
business at Two Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Foreside").
WHEREAS, the Client is each registered under the 1940 Act (as defined
below) as an open-end management investment company that issues or intends to
issue shares of beneficial interest (the "SHARES"), in separate funds and
classes;
WHEREAS, the Client offers Shares in the funds as listed in SCHEDULE 1
hereto (the funds, together with all other funds subsequently established by the
Client and made subject to this Agreement in accordance with Section 7.5 of this
Agreement being herein referred to as a "FUND," and collectively as the "FUNDS")
and the Client intends to offer shares of various classes of each Fund as listed
in SCHEDULE 1 hereto (each such class together with all other classes
subsequently established by the Client in a Fund in accordance with Section 7.5
of this Agreement being herein referred to as a "CLASS," and collectively as the
"CLASSES"); and
WHEREAS, the Client desires that Foreside offer, as distributor, the
Shares of each Fund and Class thereof to the public and Foreside is willing to
provide those services on the terms and conditions set forth in this Agreement
in order to promote the growth of the Funds and facilitate the distribution of
the Shares;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Client and Foreside hereby agree as follows:
SECTION 1. DEFINITIONS; APPOINTMENT; DELIVERY OF DOCUMENTS
1.1 FREQUENTLY USED DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings:
(a) "1940 ACT" means the Investment Company Act of 1940, as amended.
(b) "ADVISER" means Wintergreen Advisers, LLC, the adviser to each of the
Funds listed in Schedule 1 hereto.
(c) "AFFILIATE" means, with respect to any Person, any other Person that
is controlled by, controls, or is under common control with such
Person; for purposes hereof,
"CONTROL" of a Person means (i) ownership of, or possession of the
right to vote, more than 25% of the outstanding voting equity of that
person or (ii) the right to control the appointment of the board of
directors, management or executive officers of that person.
(d) "AGREEMENT" means this Agreement and any appendices and schedules
attached hereto, in each case as they may be amended from time to
time.
(e) "AUTHORIZED PERSON(S)" means the persons described or listed on
SCHEDULE 2 hereto.
(f) "CONDUCT RULES" means the Conduct Rules of the NASD.
(g) "CLASS" and "CLASSES" have the meaning set forth in the preamble to
this Agreement.
(h) "CLIENT" has the meaning set forth in the preamble to this Agreement
and includes successors-in-interest; unless the context shall require
otherwise, references to the Client shall include any Funds or Classes
thereof.
(i) "EFFECTIVE DATE" means the date first set forth above.
(j) "GOVERNING BODY" means, for any entity, the Person or body of Persons
governing the operations of the entity under its Organic Documents
(for example, if the entity is a corporation, its board of directors).
(k) "FORESIDE" has the meaning set forth in the preamble to this Agreement
and includes successors-in-interest.
(l) "FUND" and "FUNDS" have the meaning set forth in the preamble to this
Agreement.
(m) "INSTRUCTION" means any oral and written notice or statement directing
action or inaction, including any such notice or statement transmitted
to Foreside (i) in electronic format by machine readable input,
electronic mail, CRT data entry or other similar means, or (ii) in
person or by telephone, telecopy, vocal telegram or similar means.
(n) "LAWS" means any statutes, rules and regulations of any governmental
authority and applicable judicial or regulatory interpretations
thereof including without limitation the Conduct Rules of the NASD.
(o) "NASD" means the National Association of Securities Dealers, Inc.
(p) "NSCC" means the National Securities Clearing Corporation.
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(q) "ORGANIC DOCUMENTS" means, for any entity, the documents pursuant to
which the entity was formed as a legal entity, as such documents may
be amended from time to time.
(r) "PARTIES" means the Client and Foreside.
(s) "PERSON" means any natural person or incorporated or unincorporated
entity.
(t) "PLAN" has the meaning set forth in Section 2.5(a).
(u) "PREDECESSOR RECORDS" has the meaning set forth in Section 2.9(b).
(v) "PROSPECTUS" has the meaning set forth in Section 2.4(a).
(w) "REGISTRATION STATEMENT" means a registration statement filed under
the Securities with respect to the Shares, as amended from time to
time.
(x) "SEC" means the United States Securities and Exchange Commission and
any successor governmental authority.
(y) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(z) "SERVICING AGENT" has the meaning in Section 2.3.
(aa) "SERVICE PLAN" has the meaning set forth in Section 2.5(a).
(bb) "SERVICES" means the services provided by Foreside to the Client set
forth in Section 2.4.
(cc) "SERVICES COMMENCEMENT DATE" means, with respect to any Fund or Class
thereof, (i) if the registration statement of the Fund or Class is
effective as of the Effective Date, then such Effective Date; (ii), if
such registration statement is not effective as of the Effective Date,
then the date such registration statement is declared effective; or
(iii) such other date as may be agreed in writing by the Parties.
(dd) "SHAREHOLDER" means any Person that holds Shares of record.
(ee) "SHARES" has the meaning set forth in the preamble to this Agreement.
(ff) "STATE" means any of the various states and territories of the United
States.
Other capitalized terms used but not defined in this Section 1.1 shall have the
meanings set forth in this Agreement.
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1.2 APPOINTMENT. The Client hereby appoints Foreside to act as distributor for
the period and on the terms set forth in this Agreement, and Foreside hereby
accepts such appointment and in connection with such appointment agrees to
provide the Services on the terms and conditions set forth in this Agreement,
subject to applicable Laws, Organic Documents and the current Registration
Statement of the Client.
SECTION 2. OFFERING AND REDEMPTION OF SHARES; FORESIDE'S DUTIES; OTHER RELATED
TERMS AND CONDITIONS
2.1. OFFERING OF SHARES.
(a) Foreside shall act as the Client's agent to offer, and to solicit offers to
subscribe to, unsold Shares of the Funds as shall then be effectively
registered under the Securities Act. Foreside will promptly forward all
orders and subscriptions to the Client, or its designated agent. The price
at which Foreside shall offer the Shares shall be the net asset value per
Share, determined as set forth in Section 2.1(b) hereof. The Client
reserves the right to sell Shares directly to investors through
subscriptions received by the Client.
(b) The public offering price of the Shares of a Fund (i.e., the price per
Share at which Foreside or Servicing Agents may offer or sell Shares to the
public or to those persons eligible to invest in Shares as described in the
applicable Prospectus) shall be the public offering price determined in
accordance with the then-currently effective Prospectus of the Fund or
Class thereof under the Securities Act relating to such Shares. The Client
will advise Foreside of the net asset value per Share at each time as the
net asset value per Share shall have been determined by the Client and at
such other times as Foreside may reasonably request.
(c) The net asset value per Share of each Fund or Class thereof shall be
determined by the Client, or its designated agent, in accordance with and
at the times indicated in the applicable Prospectus in accordance with the
method set forth in the Prospectus and guidelines established by the
Client's Governing Body.
(d) The Client reserves the right to suspend the offering of Shares of a Fund
or of any Class thereof at any time in the absolute discretion of their
Governing Body, and upon notice of such suspension Foreside shall cease to
offer Shares of the Funds or Classes thereof specified in the notice.
(e) The Client, or any agent of the Client designated in writing to Foreside by
the Client, shall be promptly advised by Foreside or Servicing Agents of
all purchase orders for Shares received by Foreside or such Servicing
Agents, and all such subscriptions for Shares obtained by Foreside as agent
shall be directed to the Client or their agent for acceptance and shall not
be binding until accepted by the Client. The Client, in its discretion, may
refuse to accept any order for the purchase of shares that Foreside or
Servicing Agents may tender to it. Foreside acknowledges that the Client
seeks to avoid so called "market timers" and may reject or refuse to accept
or confirm orders or subscriptions from any persons who exhibit or who may
exhibit market timing behavior.
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The Client or their designated agent will confirm orders and subscriptions
upon their receipt, will make appropriate book entries and, upon receipt by
the Client or its designated agent of payment thereof, will issue such
Shares in uncertificated form pursuant to the instructions of Foreside.
(f) Neither Foreside, any Servicing Agent nor any other person is authorized by
the Client to give any information or to make any representations other
than as is contained in a Fund's Prospectus or any advertising materials or
sales literature specifically approved in writing by the Client or its
agents.
2.2. REPURCHASE AND REDEMPTION OF SHARES.
(a) Any of the outstanding Shares of a Fund or Class thereof may be tendered
for redemption at any time, and the Client agrees to redeem or repurchase
the Shares so tendered in accordance with their obligations as set forth in
the Organic Documents and the Prospectus relating to the Shares. The price
to be paid to redeem or repurchase the Shares of a Fund or Class thereof
shall be equal to the net asset value calculated in accordance with the
provisions of Section 2.1(b) hereof less any redemption fees or other
applicable fees or expenses as set forth in the then-current Prospectus.
(b) The Client or its designated agent shall pay (i) the total amount of the
redemption price consisting of the redemption price after applicable
redemption or other fees and (ii) except as may be otherwise required by
the Conduct Rules and any interpretations thereof, in accordance with
Foreside's instructions, on or before the seventh day (or such other
earlier business day as is customary in the investment company industry)
subsequent to the Client or its agent having received the notice of
redemption in proper form.
(c) Redemption of Shares or payment therefor may be suspended at times when the
New York Stock Exchange is closed for any reason other than its customary
weekend or holiday closings, when trading thereon is restricted, when an
emergency exists as a result of which disposal by the Client of securities
owned by a Fund is not reasonably practicable or it is not reasonably
practicable for the Client fairly to determine the value of a Fund's net
assets, or during any other period when the SEC so requires or permits.
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2.3. SERVICING AGENTS.
At the request of the Client, Foreside shall enter into Servicing Agent
agreements with securities dealers, depository institutions and other financial
intermediaries for the purpose of facilitating the offer, sale and redemption of
Shares by Shareholders; PROVIDED, that the Client shall pre-approve the forms of
agreements with Servicing Agents and shall have the right to approve any
compensation set forth therein or any material changes from such pre-approved
forms. Shares of each Fund or Class thereof shall be offered and resold by
Servicing Agents only at the public offering prices and under the terms set
forth in the Prospectus relating to the Shares. Within the United States,
Foreside shall enter into Servicing Agent agreements only with members in good
standing of the NASD or financial intermediaries otherwise exempt from
registration as a broker-dealer for receiving transaction based compensation,
such as banks and trust companies.
2.4. FORESIDE'S SERVICES AND DUTIES; EXCLUSIVITY.
(a) Foreside shall use reasonable efforts to solicit orders to purchase Shares
of the Funds upon the terms and conditions contained herein and in the then
current Prospectus. Foreside shall devote reasonable time and effort to
effect sales of Shares but shall not be obligated to sell any specific
number of Shares.
(b) Foreside shall maintain its registration as a broker-dealer in all States.
Foreside will notify the Client immediately if it ceases maintaining
registration in advance of any required filing or renewal date.
(c) In performing its services under this Agreement, Foreside shall conform in
all respects with the requirements of all Federal and State Laws relating
to the offer and sale of the Shares.
(d) Foreside shall, at the request of the Client (i) attempt to maintain active
agreements with any Servicing Agents related to the servicing of the Funds
that, prior to the Effective Date of this Agreement, acted in similar
capacities for a Fund, and (ii) assist the Client in obtaining additional
agreements with broker-dealers and other financial intermediaries.
(e) Insofar as it is required to ensure compliance with the Conduct Rules,
Foreside shall track and maintain appropriate information with respect to
payments made by each Fund under Rule 12b-1 under the 1940 Act and other
payments such as marketplace distribution, maintenance and service fees,
and shall make quarterly reports to the Board regarding such payments.
(f) Foreside shall adopt and follow procedures for the confirmation of sales to
investors and selected dealers or selected agents, the collection of
amounts payable by investors and selected dealers or selected agents on
such sales, and the cancellation of unsettled transactions, as may be
necessary to comply with the requirements of the 1934 Act and the NASD.
(g) Foreside shall maintain membership with the NSCC and any other similar
successor organization to sponsor a participant number for the Funds so as
to enable the Shares to be traded through FundSERV. Foreside is not
responsible for any operational matters associated with FundSERV or
Networking transactions.
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(h) Nothing contained herein shall be construed to require Foreside to perform
any service that could cause Foreside to be deemed an investment adviser
for purposes of the 1940 Act or the Investment Advisers Act of 1940, as
amended.
(i) Neither Foreside, nor any other person acting on behalf of Foreside is
authorized to give any information or to make any representations other
than as is contained in a Fund's Prospectus, statement of additional
information, or any advertising materials or sales literature specifically
approve in writing by the Client or its agents.
(j) Except as specifically set forth in this Agreement to the contrary,
Foreside assumes no responsibility for compliance by the Client with any
Laws applicable to the Client with which Foreside has no role in achieving
compliance; and, notwithstanding any other provision of this Agreement to
the contrary, Foreside assumes no responsibility under this Agreement to
Client or any other Person for compliance by the Client or Foreside with
the Laws of any jurisdiction other than those of the United States.
(k) Nothing contained in this Agreement shall require Foreside to perform any
functions or duties on any weekend day or on any other day on which the
Client does not accept subscriptions and redemptions of its Shares (a
"BUSINESS DAY"). Functions or duties normally scheduled to be performed on
any day that is not a Business Day shall be performed on, and as of, the
next Business Day, unless otherwise required by applicable Law.
(l) Foreside shall be the exclusive representative of the Client to act as
distributor of the Shares of the Funds and Classes, except that the rights
given under this Agreement to Foreside shall not apply to: (i) Shares
issued in connection with the merger, consolidation or reorganization of
any other investment company or series or class thereof with a Fund or
Class thereof; (ii) a Fund's acquisition by purchase or otherwise of all or
substantially all of the assets or stock of any other investment company or
series or class thereof; (iii) the reinvestment in Shares by a Fund's
shareholders of dividends or other distributions; or (iv) any other
offering by the Client of securities to their shareholders.
2.5. CERTAIN DOCUMENTS; CHANGES IN LAW.
(a) Contemporaneous with the Effective Date, the Client shall deliver to
Foreside copies of the following documents: (i) the Client's Organic
Documents; (ii) the Prospectuses for the Funds and Classes thereof (each, a
"PROSPECTUS"); (iii) each current plan of distribution or similar document
adopted by the Client under Rule 12b-1 under the 1940 Act ("PLAN") and each
current shareholder service plan or similar document adopted by the Client
("SERVICE PLAN") and (iv) any relevant policies and procedures adopted by
the Client pursuant to Rule 38a-1 of the 1940 Act that are applicable to
the services provided by Foreside. The Client shall also deliver to
Foreside: (x) a copy of the resolution of the Board of Directors of the
Client (the "Board") appointing Foreside and authorizing the execution and
delivery of this Agreement; and (y) any other documents, materials or
information that Foreside shall reasonably request to enable it to perform
its duties pursuant to this Agreement.
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(b) Client shall deliver to Foreside as soon as is reasonably practical any and
all amendments to the documents required to be delivered under Section
2.5(a).
(c) In the event there is a change in Law related to or affecting the Services,
Foreside shall begin performing new service(s) as soon as such change is
effective or enforceable. If such new service(s) are materially different
or more burdensome than the current level of service(s), the parties shall
agree to mutually acceptable policies and procedures for such new
service(s).
2.6. RELIANCE ON INSTRUCTIONS, DOCUMENTS AND ADVICE.
(a) With respect to the subject matter of this Agreement, Foreside may rely on
(i) with respect to any matter, advice or Instruction that it receives and
that it reasonably believes in good faith was transmitted by the Client 's
Governing Body or an Authorized Person; or (ii) with respect to any factual
matter, any signature, Instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report, notice,
consent, order, or other document of or presented by any Person (including
any authorized representative(s) of any predecessor service providers to
the Client ).
(b) Notwithstanding any other provisions of this Agreement to the contrary,
Foreside shall have no duty or obligation to inquire into (i) the
authenticity of any statement, oral or written Instruction, resolution,
signature, request, letter of transmittal, certificate, opinion of counsel,
instrument, report, notice, consent, order, or any other document or
instrument that Foreside reasonably believes in good faith to be genuine;
or (ii) the authority or lack thereof of any Person to represent or act as
an agent for any other Person, PROVIDED that Foreside reasonably believes
in good faith that such authority exists, and, PROVIDED, FURTHER, that with
respect to Instructions of the Client , Foreside may only rely on
Instructions of the Client ' Governing Body or Authorized Persons.
(c) Foreside may assume that any Instructions are not in any way inconsistent
with the Organizational Documents, the Prospectus, or any proceeding or
resolution of the Client's Governing Body or the Shareholders of the Client
, unless and until Foreside receives written notice to the contrary from
the Client's Governing Body or an Authorized Person, and provided that
Foreside makes reasonable inquiry into any instructions if Foreside has
doubts regarding the intention of any instructions.
(d) Absent specific written notice to the contrary, Foreside may assume that
Authorized Persons are authorized to deliver instructions relating to all
or any matter under this Agreement. The Client's Governing Body may at any
time (i) change the list of Authorized Persons or (ii) limit an Authorized
Person's authority upon delivery of written notice from a representative
thereof to Foreside.
(e) About any matter related to the Client or the Services, Foreside may rely
on the advice of the Client or Client's outside counsel, or the advice of
counsel to Foreside; PROVIDED Foreside notifies Client in advance of its
intentions. Any costs related to such
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advice or Instructions shall be borne by the Client, except that Foreside
shall be responsible for costs related to advice from in-house counsel to
Foreside or any affiliate of Foreside. In the event of any conflict between
advice or Instructions Foreside receives from (i) any Authorized Person and
(ii) advice from counsel, Foreside may rely on advice from counsel.
(f) Nothing in this Section 2.6 shall be construed as imposing on Foreside any
obligation to seek advice or Instructions, or, subject to Section 3.1(b),
to act in accordance with such advice or Instructions if and when received.
2.7. OTHER ACTIVITIES.
Foreside may provide services similar to those provided under this Agreement for
any other Person on such terms as may be arranged with such Person, and Foreside
shall not be required to disclose to the Client any fact or thing that may come
to the knowledge of Foreside in the course of so doing.
2.8 COOPERATION WITH INDEPENDENT AUDITORS AND COUNSEL. Foreside shall cooperate
with the independent auditor(s) and attorneys of the Client and shall take
reasonable action to make all necessary information related to the Services
available to such auditors and attorneys for the performance of their duties.
2.9 CERTAIN RESPONSIBILITIES OF THE CLIENT. The Client agrees to:
(a) Comply in all material respects with all applicable provisions of the 1940
Act, the Securities Act, Conduct Rules and all other Laws governing the
issuance and sale of Shares or otherwise applicable to the Client .
(b) Prior to the Services Commencement Date, deliver or cause to be delivered
to Foreside all books, records and other documents relating to the Client's
prior operations and service providers, if any, that, in Foreside's
reasonable opinion, are necessary for Foreside properly to provide the
Services (collectively "PREDECESSOR RECORDS").
(c) Provide, and cause each other agent or service provider to the Client to
provide, to Foreside all such information (and in such reasonable medium)
that Foreside may reasonably request in connection with the Services and
this Agreement.
(d) Upon request, deliver to Foreside in advance of filing thereof with the SEC
any relevant portions of the Registration Statement in order to permit
Foreside and its agents to review and comment upon, at Foreside's
discretion, those portions thereof that describe Foreside and Foreside's
duties and obligations under this Agreement, including the indemnity
provisions hereof, and the Client shall not make any reference to Foreside
and such duties, obligations and indemnities in any Registration Statement
without Foreside's consent, which consent shall not be unreasonably
withheld or delayed.
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(e) Upon request, furnish to Foreside copies of all financial statements and
other documents to be delivered to shareholders or investors within a
reasonable period of time prior to such delivery and shall furnish Foreside
copies of all other financial statements, documents and other papers or
information which Foreside may reasonably request for use in connection
with the distribution of Shares. The Client shall make available to
Foreside the number of copies of the Funds' Prospectuses as Foreside shall
reasonably request.
(f) The Client shall take, from time to time, subject to the approval of the
Board and any required approval of the shareholders of the Client, all
action necessary to fix the number of authorized Shares (if such number is
not limited) and to register the Shares under the Securities Act, to the
end that there will be available for sale the number of Shares as
reasonably may be expected to be sold pursuant to this Agreement.
(g) The Client shall execute any and all documents, furnish to Foreside any and
all information, otherwise use its best efforts to take all actions that
may be reasonably necessary and cooperate with Foreside in taking any
action as may be necessary to register or qualify Shares for sale under the
securities laws of the various states of the United States and other
jurisdictions ("States") as Foreside shall designate (subject to approval
by the Client); provided that Foreside shall not be required to register as
a broker-dealer or file a consent to service of process in any State and
neither the Client nor any Fund or Class thereof shall be required to
qualify as a foreign corporation, Client or association in any State. Any
registration or qualification may be withheld, terminated or withdrawn by
the Client at any time in its discretion. Foreside shall furnish such
information and other material relating to its affairs and activities as
may be required by the Client in connection with such registration or
qualification.
(h) Cause the transfer agent for each Fund and Class, where necessary or
appropriate, to provide Foreside with any information that may be necessary
for Foreside to perform its duties under this Agreement.
(i) Advise Foreside as soon as reasonably possible: (i) of the issuance by the
SEC of any stop order suspending the effectiveness of the Client's
Registration Statement or any Prospectus or the initiation of any
proceedings for that purpose; or (ii) of the happening of any material
event which makes untrue any statement made in the Client's Registration
Statement or which requires the making of a change in either thereof in
order to make the statements therein not misleading.
SECTION 3. RECORDKEEPING; PROPRIETARY INFORMATION; CONFIDENTIALITY
3.1 PREDECESSOR RECORDS; OWNERSHIP; INSPECTION; SUCCESSORS.
(a) Predecessor Records received by Foreside pursuant to Section 2.9(b) shall
be the property of the Client. The Client and the Client's authorized
representatives shall have access to such Predecessor Records at all times
during Foreside's normal business hours.
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Upon the reasonable advance request of the Client or such authorized
representatives, copies of any such Predecessor Records shall be provided
by Foreside, at the Client's expense, to the Client or its authorized
representatives.
(b) If Foreside receives a request or demand from a third party to inspect any
Predecessor Records, Foreside will endeavor to notify the Client and to
secure Instructions from the Client or an Authorized Person about such
inspection. Foreside shall abide by such Instructions for granting or
denying the inspection; PROVIDED, that Foreside may grant the inspection
without Instructions or in contravention of specific Instructions if
Foreside is advised by counsel to Foreside or the Client that failure to do
so is substantially likely to result in liability to Foreside; and
provided, FURTHER, that in such event, Foreside shall endeavor promptly to
advise the Client of such contrary advice, to the extent practicable in
advance of any actual inspection.
(c) Upon termination of this Agreement, Foreside shall, at the expense and
direction of the Client, transfer to Client or any successor service
provider all Predecessor Records in the electronic or other medium in which
such material is then maintained by Foreside.
3.2 PROPRIETARY INFORMATION OF FORESIDE. The Client acknowledges that the
databases, computer programs, screen formats, report formats, interactive design
techniques, and documentation manuals maintained by Foreside on databases under
the control and ownership of Foreside or a third party constitute copyrighted,
trade secret, or other proprietary information (collectively, "PROPRIETARY
INFORMATION") of substantial importance to Foreside or the third party. The
Client agrees to treat all Proprietary Information as proprietary to Foreside
and further agrees that it shall maintain as confidential any Proprietary
Information, except as may be provided under this Agreement, and that breach by
the Client of this confidentiality obligation would cause irreparable injury to
Foreside.
3.3 CONFIDENTIALITY.
(a) Each Party (for purposes of this Section 3.3, a "RECEIVING PARTY") agrees
to keep confidential all information disclosed by the other Party (for
purposes of this Section 3.3, a "DISCLOSING PARTY"), including, without
limitation all forms and types of financial, business, marketing,
operations, technical, economic and engineering information of the
Disclosing Party, whether tangible or intangible.
(b) Notwithstanding any provision of this Agreement to the contrary, the
Parties agree that the following information shall not be deemed
confidential information: (i) information that was known to the receiving
Party before receipt thereof from or on behalf of the Disclosing Party;
(ii) information that is disclosed to the Receiving Party by a third person
who has a right to make such disclosure without any obligation of
confidentiality to the Party seeking to enforce its rights under this
Section 3; (iii) information that is or becomes generally known in the
trade without violation of this Agreement by the Receiving Party; or (iv)
information that is independently developed by the Receiving Party or its
employees or affiliates without reference to the Disclosing Party's
information.
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(c) Notwithstanding any provision of this Agreement to the contrary, Foreside
may: (i) provide information to Foreside's counsel and to Persons engaged
by Foreside or the Client to provide services with respect to the Client;
(ii) provide information consistent with the Procedures or with operating
procedures that are customary with respect to the Services in the industry;
(iii) identify the Client as a client of Foreside for Foreside's sales and
marketing purposes; and (iv) provide information as approved by an
Authorized Person, PROVIDED, that (A) such approval shall not be
unreasonably withheld or delayed, and (B) Foreside may release information
without approval of the Client if Foreside is advised by counsel to
Foreside or the Client that failure to do so will result in liability to
Foreside; and PROVIDED, FURTHER, that, in such event Foreside shall
endeavor promptly to advise the Client of such advice, to the extent
practicable in advance of any actual release of information.
(d) Foreside acknowledges that certain Shareholder information made available
by the Client to Foreside or otherwise maintained by Foreside under this
Agreement may be deemed nonpublic personal information under the
Xxxxx-Xxxxx-Xxxxxx Act and other applicable privacy Laws (collectively,
"PRIVACY LAWS"). Foreside agrees (i) not to disclose or use such
information except as required to carry out its duties under the Agreement
or as otherwise permitted by law in the ordinary course of business; (ii)
to limit access to such information to authorized representatives of
Foreside and the Client ; (iii) to establish and maintain reasonable
physical, electronic and procedural safeguards to protect such information;
and (iv) to cooperate with the Client and provide reasonable assistance in
ensuring compliance with such Privacy Laws to the extent applicable to
either or both of the Parties.
SECTION 4. RESPONSIBILITY OF FORESIDE; INDEMNIFICATION; OTHER LIABILITY-RELATED
MATTERS
4.1. RESPONSIBILITY OF FORESIDE; LIMITATIONS.
(a) Foreside shall be under no duty to take any action under this Agreement
except as specifically set forth in this Agreement or as may be
specifically agreed to by Foreside and the Client in a written amendment to
this Agreement.
(b) In performing the Services, Foreside (i) shall act in good faith and shall
be obligated to exercise care and diligence; and (ii) may, without limiting
the generality of any other provision of this Agreement, rely on
Instructions, advice and information pursuant to Section 2.6.
(c) Notwithstanding anything in this Agreement to the contrary, Foreside shall
be liable to the Client only for any damages arising out of Foreside's
failure to perform its duties under this Agreement to the extent such
damages were caused solely and directly by Foreside's willful misfeasance,
bad faith, gross negligence or reckless disregard of such duties.
12
(d) Foreside shall not be liable for the delays or errors of Persons that
provide services to the Client or Foreside (other than employees of
Foreside) or of other Persons, including the failure by any such Person to
provide information to Foreside when they have a duty to do so
(irrespective of whether that duty is owed specifically to Foreside or a
third party).
4.2 INDEMNIFICATION; NOTIFICATION OF CLAIMS.
(a) Notwithstanding anything in this Agreement to the contrary, Foreside shall
not be responsible for, and the Client shall on behalf of each applicable
Fund or Class thereof, indemnify and hold harmless Foreside, its employees,
directors, officers and managers and any person who controls Foreside
within the meaning of section 15 of the Securities Act or section 20 of the
Securities Exchange Act of 1934, as amended, (for purposes of this Section
4.2(a), "FORESIDE INDEMNITEES") from and against, any and all losses,
damages, costs, charges, reasonable counsel fees, payments, liabilities and
other expenses of every nature and character (including, but not limited
to, direct and indirect reasonable reprocessing costs) arising out of or
attributable to all and any of the following (for purposes of this Section
4.2(a), a "FORESIDE CLAIM"):
(i) any material action (or omission to act) of Foreside or its agents
taken in connection with this Agreement; PROVIDED, that such action
(or omission to act) is taken in good faith and without willful
misfeasance, gross negligence or reckless disregard by Foreside of its
duties and obligations under this Agreement;
(ii) any untrue statement of a material fact contained in the Registration
Statement or arising out of or based upon any alleged omission to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, unless such statement or
omission was made in reliance upon, and in conformity with,
information furnished to the Client in connection with the preparation
of the Registration Statement or exhibits to the Registration
Statement by or on behalf of Foreside;
(iii)any material breach of the Client's agreements, representations,
warranties, and covenants in Sections 2.9 and 5.2 of this Agreement;
or
(iv) the reliance on or use by Foreside or its agents or subcontractors of
information, records, documents or services which have been prepared,
maintained or performed by the Client or any agent of the Client,
including but not limited to any Predecessor Records provided pursuant
to Section 2.9(b).
(b) Foreside will indemnify, defend and hold the Client and its several
officers and members of their Governing Bodies and any person who controls
the Client within the meaning of section 15 of the Securities Act or
section 20 of the Securities Exchange Act of 1934, as amended,
(collectively, the "CLIENT INDEMNITEES" and, with the Foreside Indemnitees,
an "INDEMNITEE"), free and harmless from and against any and all claims,
13
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses of every nature and
character (including the cost of investigating or defending such claims,
demands, actions, suits or liabilities and any reasonable counsel fees
incurred in connection therewith), but only to the extent that such claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses result from, arise out
of or are based upon all and any of the following (for purposes of this
Section 4.2(c), a "CLIENT CLAIM" and, with a Foreside Claim, a "CLAIM"):
(i) any material action (or omission to act) of Foreside or its agents
taken in connection with this Agreement, provided that such action (or
omission to act) is not taken in good faith and with willful
misfeasance, gross negligence or reckless disregard by Foreside of its
duties and obligations under this Agreement.
(ii) any untrue statement of a material fact contained in the Registration
Statement or any alleged omission of a material fact required to be
stated or necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon, and in
conformity with, information furnished to the Client in writing in
connection with the preparation of the Registration Statement by or on
behalf of Foreside; or
(iii)any material breach of Foreside's agreements, representations,
warranties and covenants set forth in Section 2.4 and 5.1 hereof.
(d) The Client or Foreside (for purpose of this Section 4.2(d), an
"INDEMNIFYING PARTY") may assume the defense of any suit brought to enforce
any Foreside Claim or Client Claim, respectively, and may retain counsel
chosen by the Indemnifying Party and approved by the other Party, which
approval shall not be unreasonably withheld or delayed. The Indemnifying
Party shall advise the other Party that it will assume the defense of the
suit and retain counsel within ten (10) days of receipt of the notice of
the claim. If the Indemnifying Party assumes the defense of any such suit
and retains counsel, the other Party shall bear the fees and expenses of
any additional counsel that they retain. If the Indemnifying Party does not
assume the defense of any such suit, or if other Party does not approve of
counsel chosen by the Indemnifying Party, or if the other Party has been
advised that it may have available defenses or claims that are not
available to or conflict with those available to the Indemnifying Party,
the Indemnifying Party will reimburse any Indemnitee named as defendant in
such suit for the reasonable fees and expenses of any counsel that the
Indemnitee retains. An Indemnitee shall not settle or confess any claim
without the prior written consent of the Client, which consent shall not be
unreasonably withheld or delayed.
(e) An Indemnifying Party's obligation to provide indemnification under this
section is conditioned upon the Indemnifying Party receiving notice of any
action brought against an Indemnitee within twenty (20) days after the
summons or other first legal process is served. Such notice shall refer to
the Person or Persons against whom the action is brought. The failure to
provide such notice shall not relieve the Indemnifying Party of
14
any liability that it may have to any Indemnitee except to the extent that
the ability of the party entitled to such notice to defend such action has
been materially adversely affected by the failure to provide notice.
(f) The provisions of this section and the parties' 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 any
Indemnitee and shall survive the sale and redemption of any Shares made
pursuant to subscriptions obtained by Foreside. The indemnification
provisions of this section will inure exclusively to the benefit of each
person that may be an Indemnitee at any time and their respective
successors and assigns (it being intended that such persons be deemed to be
third party beneficiaries under this Agreement).
4.3 OTHER LIABILITY-RELATED MATTERS. Notwithstanding anything in this Agreement
to the contrary, except as specifically set forth below:
(a) Neither Party shall be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by reason of
circumstances beyond its reasonable control, including, without limitation,
acts of God; action or inaction of civil or military authority; public
enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor
disputes; civil commotion; interruption, loss or malfunction of utilities,
transportation, computer or communications capabilities; insurrection; or
elements of nature;
(b) Neither Party shall be liable for any consequential, special or indirect
losses or damages suffered by the other Party, whether or not the
likelihood of such losses or damages was known by the Party;
(c) No affiliate, director, officer, employee, manager, shareholder, partner,
agent, counsel or consultant of either Party shall be liable at law or in
equity for the obligations of such Party under this Agreement or for any
damages suffered by the other Party related to this Agreement;
(d) Except as set forth in Section 4.2(f), there are no third party
beneficiaries of this Agreement;
(e) Each Party shall have a duty to mitigate damages for which the other Party
may become responsible;
(f) The assets and liabilities of each Fund are separate and distinct from the
assets and liabilities of each other Fund, and no Fund shall be liable or
shall be charged for any debt, obligation or liability of any other Fund,
whether arising under this Agreement or otherwise; and in asserting any
rights or claims under this Agreement, Foreside shall look only to the
assets and property of the Fund to which Foreside's rights or claims relate
in settlement of such rights or claims; and
15
(g) Each Party agrees promptly to notify the other party of the commencement of
any litigation or proceeding of which it becomes aware arising out of or in
any way connected with the issuance or sale of Shares.
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF FORESIDE. Foreside represents and warrants
to the Client that:
(a) It is a limited liability company duly organized and existing and in good
standing under the laws of the State of Delaware and it is duly qualified
to carry on its business in the State of Maine;
(b) It is empowered under applicable Laws and by its Organic Documents to enter
into this Agreement and perform its obligations under this Agreement;
(c) All requisite limited liability company proceedings have been taken to
authorize it to enter into this Agreement and perform its obligations under
this Agreement;
(d) It has and will continue to have access to the necessary facilities,
equipment, and personnel to perform its duties and obligations under this
Agreement;
(e) This Agreement, when executed and delivered, will constitute a legal, valid
and binding obligation of Foreside, enforceable against Foreside in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties;
(f) The performance by Foreside of its obligations under this Agreement does
not and will not contravene any provision of its Organic Documents;
(g) It is registered under the 1934 Act with the SEC as a broker-dealer, it is
a member in good standing of the NASD, it will abide by the rules and
regulations of the NASD, and it will immediately notify the Client if any
regulatory actions are instituted against it by the SEC or NASD or its
membership in the NASD or registration with any State is terminated or
suspended.
5.2 REPRESENTATIONS AND WARRANTIES OF THE CLIENT. The Client represents and
warrants to Foreside that:
(a) It is duly organized and existing and in good standing under the laws of
the jurisdiction of its organization;
(b) It is empowered under applicable Laws and by their Organic Documents to
enter into this Agreement and perform its obligations under this Agreement;
16
(c) All requisite corporate or similar proceedings have been taken to authorize
it to enter into this Agreement and perform its obligations under this
Agreement.
(d) This Agreement, when executed and delivered, will constitute a legal, valid
and binding obligation of the Client, enforceable against the Client in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties;
(e) With respect to all Shares from time to time being offered for sale to the
public, a Registration Statement is currently effective or will be
effective at the time of sale, and will remain effective, and all
appropriate Federal and State securities law filings have been made and
will continue to be made;
(f) The Registration Statement has been, and any amendment thereto will be, as
the case may be, prepared in conformity with the requirements of the
Securities Act and the 1940 Act and the rules and regulations thereunder,
and all material statements of fact contained or to be contained in the
Registration Statement are or will be true and correct in all material
respects at the time indicated or on the effective date, as the case may
be; and the Registration Statement, when it shall become effective or be
authorized for use, will not 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 to a purchaser of Shares; and
(g) It shall not file any amendment to the Registration Statement or
Prospectuses without giving Foreside reasonable advance notice thereof;
provided, however, that nothing contained in this Agreement shall in any
way limit the Client's right to file at any time such amendments to the
Registration Statement or Prospectuses, of whatever character, as the
Client may deem advisable, such right being in all respects absolute and
unconditional.
SECTION 6. COMPENSATION AND EXPENSES
6.1 COMPENSATION.
Foreside shall be entitled to no compensation or reimbursement of
expenses from Client for the services provided by Foreside pursuant to
this Agreement. Foreside may receive compensation from the Client or
the Client's Adviser related to its services hereunder or for
additional services as may be agreed to between the Client, Adviser and
Foreside.
6.2 EXPENSES.
(a) The Client shall bear the cost and expenses: (i) of the registration of
the Shares for sale under the Securities Act; and (ii) of the
registration or qualification of the Shares for sale under the
securities laws of the various States;
(b) Foreside shall pay all expenses relating to Foreside's broker-dealer
qualification. Foreside shall also pay all expenses incurred in
providing office space, equipment, and personnel as may be necessary or
convenient to provide the Services.
17
6.3 OTHER COMPENSATION. Notwithstanding anything in this Agreement to the
contrary, Foreside and its affiliates may receive compensation or reimbursement
from the Client and the Adviser with respect to any services not included under
this Agreement.
SECTION 7. EFFECTIVENESS, DURATION, TERMINATION; ADDITIONAL FUNDS AND CLASSES
7.1. EFFECTIVENESS. This Agreement shall become effective on the Effective
Date, and shall become effective with respect to each Fund or Class
thereof on the Services Commencement Date with respect to such Fund or
Class.
7.2. DURATION. This Agreement shall continue in effect with respect to
Client for two years following the Effective Date and thereafter shall
continue in effect with respect to each Fund until terminated;
provided, that continuance is specifically approved at least annually
pursuant to Section 15 of the 1940 Act and otherwise as required
pursuant to any Plan.
7.3. TERMINATION.
(a) This Agreement may be terminated at any time with respect to a Fund,
without the payment of any penalty, (i) by the Client's Governing Body or
by a vote of a majority of the outstanding voting securities of the Fund
or, with respect to each Class of a Fund for which there is an effective
Plan, a majority of members of the Client's Governing Body who do not have
any direct or indirect financial interest in any such Plan or in any
agreements related to the Plan, on sixty (60) days' written notice to
Foreside or (ii) by Foreside on sixty (60) days' written notice to the
Client.
(b) This Agreement shall automatically terminate upon its assignment or upon
the termination of Foreside's membership in the NASD.
7.4 SURVIVAL. The provisions of Sections 2.6, 2.8, 3.1(c), 3.2, 3.3, 4, 6.1,
6.2, 7 and 8 shall survive any termination of this Agreement.
7.5 ADDITIONAL FUNDS AND CLASSES.
(a) In the event that the Client requests Foreside to provide services with
respect to one or more additional funds and/or classes of the Client after
the Effective Date, such funds and/or classes shall become Funds and/or
Classes under this Agreement for all purposes hereof upon the execution of
a joinder to this Agreement by the Client and Foreside.
(b) In the event that after the Effective Date the Client winds up one or more
Funds and/or Classes or otherwise terminate this Agreement with respect to
a Fund and its
18
Classes, such Fund or Class shall from the date of such winding up or
termination no longer be deemed a Fund or Class under this Agreement,
PROVIDED, that the Client shall remain obligated pursuant to Section 6 to
make any payments for obligations incurred through the date of termination
respecting such Fund and its Classes, including any obligations that
specifically survive the termination of this Agreement with respect to such
Fund or Class.
SECTION 8. MISCELLANEOUS
8.1 AMENDMENTS. No provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by the
Parties; PROVIDED, that (i) the Client may amend SCHEDULE 2 as permitted by
Section 2.6(d); and (ii) the Client and/or Foreside may, as a result of the
addition or termination of a Fund or Class hereunder as contemplated by Section
7.5, amend SCHEDULE 1 as permitted by Section 7.5.
8.2 GOVERNING OF LAW. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the Laws of the State of
Delaware, without giving effect to the conflicts of laws, principles and rules
thereof.
8.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the Parties hereto and supersedes any prior agreement with respect to the
subject matter hereof, whether oral or written.
8.4 COUNTERPARTS. This Agreement may be executed by the Parties hereto in any
number of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
8.5 SEVERABILITY. If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and unaffected, and the rights and
obligations of the Parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
8.6 HEADINGS. Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
8.7 NOTICES AND OTHER COMMUNICATIONS; ELECTRONIC RECORDS.
(a) Any notice required or permitted to be given hereunder by either party to
the other shall be deemed sufficiently given if in writing and personally
delivered or sent by, facsimile or registered, certified or overnight mail,
postage prepaid, addressed by the party giving such notice to the other
party at the address furnished below unless and until changed by Foreside
or Client, as the case may be. Notice shall be given to each party at the
following addresses:
19
IF TO FORESIDE:
Foreside Fund Services, LLC
Two Portland Square, first floor
Xxxxxxxx, Xxxxx 00000
Attn: Corporate Counsel
Fax: (000) 000-0000
IF TO CLIENT :
Wintergreen Fund, Inc.
000 Xxxxx 00 Xxxx, xxxxxx xxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
(b) This Agreement and electronic signatures and records delivered and
maintained under the Agreement shall be effective to the fullest extent
permitted by Law, PROVIDED that references in this Agreement to written
approval or approval in writing of either Party shall be restricted to a
writing executed by a then-current executive officer of such Party. Each
Party agrees to maintain a copy of this Agreement and any amendments to
this Agreement for its records.
8.8 INTERPLEADER. In the event of a dispute about any funds of the Client held
by Foreside from time to time under this Agreement, Foreside or its agents may
commence an action in interpleader and pay the disputed funds into a court of
competent jurisdiction, and the Client shall reimburse Foreside for its
reasonable costs and expenses related to any such action in interpleader.
8.9. CERTAIN TERMS. The terms "vote of a majority of the outstanding voting
securities," "interested person," "affiliated person" and "assignment" shall
have the meanings ascribed thereto in the 1940 Act.
SECTION 9. ANTI-MONEY LAUNDERING COMPLIANCE
9.1 FORESIDE ANTI-MONEY LAUNDERING PROGRAM. Foreside hereby represents and
warrants that it has implemented and enforces an anti-money laundering program
("AMLP") that complies with laws, regulations and regulatory guidance applicable
to Foreside, and includes, at a minimum:
(A) written policies, procedures, and controls to detect and prevent money
laundering, as appropriate to the nature of Foreside's business;
(B) a designated compliance officer with sufficient authority to oversee
the AML Program;
(C) an ongoing training program for relevant FFS employees and associated
persons; and
20
(D) scheduled independent testing of FFS' AML Program.
9.2 DELIVERY OF DOCUMENTS. Foreside agrees to furnish to the Client the
following documents:
a. a copy of Foreside's AMLP as in effect on the date hereof, and any
material amendment thereto promptly after the adoption of any such
amendment;
b. a copy of any deficiency letter sent by federal examination
authorities concerning Foreside's AMLP; and
c. periodically, upon request from the Client, a report on Foreside's
AMLP that includes a certification to the Client concerning Foreside's
implementation of, and ongoing compliance with, its AMLP and a copy of
any audit report prepared with respect to Foreside's AMLP.
9.3. REPORTS. Foreside agrees to provide periodic reports concerning its
compliance with Foreside's AMLP and/or the Client's AML Program at such times as
may be reasonably requested by the Client's Board of Directors or AML Compliance
Officer.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers or representatives, as of the day and year first above written.
WINTERGREEN FUND, INC.
BY: _______________________________
-------------------
President
FORESIDE FUND SERVICES, LLC
BY: _______________________________
Xxxx Xxxxxx
President
LIST OF SCHEDULES AND APPENDICES THAT ARE PART OF THIS AGREEMENT:
SCHEDULE 1 Funds and Classes of the Client
SCHEDULE 2 Authorized Persons
22
WINTERGREEN FUND, INC.
SCHEDULE 1
FUNDS AND CLASSES OF THE CLIENT
AS OF THE EFFECTIVE DATE:
-------------------------- ------------------------------
FUNDS CLASSES
-------------------------- ------------------------------
Wintergreen Fund, Inc. Single Class
-------------------------- ------------------------------
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WINTERGREEN FUND, INC.
SCHEDULE 2
AUTHORIZED PERSONS
1. AUTHORIZED PERSONS:
In addition to the officers (including assistant officers) of the Client, the
following persons are authorized to give Instructions to Foreside with respect
to this Agreement:
-------------------------- ------------------------------
NAME TITLE
-------------------------- ------------------------------
-------------------------- ------------------------------
-------------------------- ------------------------------
-------------------------- ------------------------------
-------------------------- ------------------------------
-------------------------- ------------------------------
-------------------------- ------------------------------
-------------------------- ------------------------------
2. CHANGE IN AUTHORIZED PERSONS
Any change in Authorized Persons shall only be made in accordance with Section
2.6(d) of the Agreement.
24
