SUB-DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of _____,
2001, by and among AssetMark Funds, a Delaware business trust (the "Trust"),
AssetMark Capital Corporation, a California corporation (the "Distributor") and
Quasar Distributors, LLC, a Delaware limited liability company (the
"Sub-Distributor").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company,
and is authorized to issue shares of beneficial interest ("Shares") in separate
series with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a member of
the National Association of Securities Dealers, Inc. (the "NASD");
WHEREAS, the Distributor and the Trust have entered into an effective
Distribution Agreement (the "Distribution Agreement"), under the terms of which
the Distributor is the principal underwriter for the Trust.
WHEREAS, the Trust and the Distributor each desires to retain the
Sub-Distributor as sub-distributor in connection with the offering and sale of
certain of the Shares of each series listed on Schedule A (as amended from time
to time) (the "Funds") to this Agreement;
WHEREAS, the Sub-Distributor is registered as a broker-dealer under
the 1934 Act, and is a member of the NASD; and
WHEREAS, the Sub-Distributor is willing to act as sub-distributor for
the Distributor and 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 Sub-Distributor.
The Distributor and the Trust each hereby appoints the Sub-Distributor
as its agent for the sale and distribution of certain Shares of the Funds,
subject to the terms and for the period set forth in this Agreement. The
Sub-Distributor hereby accepts such appointment and agrees to act hereunder.
2. Services and Duties of the Sub-Distributor.
(a) The Sub-Distributor agrees to sell Shares of the Funds on a best
efforts basis as agent (solely for the purpose of accepting orders for the
purchase and redemption of Fund Shares, and for no other purpose) for the
Distributor and 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 ▇▇▇▇ ▇▇▇.
(b) During the continuous public offering of Shares of the Funds, the
Sub-Distributor will hold itself available to receive orders, in such form as
required by the Trust and the Distributor, and satisfactory to the
Sub-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 Sub-Distributor, with the operational assistance of the Trust's
transfer agent, shall make Shares available for sale and redemption through the
National Securities Clearing Corporation's Fund/SERV System.
(d) In connection with all matters relating to this Agreement, the
Sub-Distributor agrees to act in conformity with the Trust's Agreement and
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 Sub-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 Sub-Distributor agrees to act as agent for the Distributor and
the Trust to receive and transmit promptly to the Funds' transfer agent
shareholder requests for redemption of Shares.
(f) The Sub-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.
(g) The Sub-Distributor shall prepare reports for the Distributor to be
provided to the Board regarding its activities under this Agreement as from time
to time shall be reasonably requested by the Distributor or the Board, including
those regarding the use of 12b-1 payments received by the Sub-Distributor, if
any.
(h) The services furnished by the Sub-Distributor hereunder are not to
be deemed exclusive and the Sub-Distributor shall be free to furnish similar
services to others so long as its services under this Agreement are not impaired
thereby. Each of the Distributor and the Trust recognizes that from time to time
officers and employees of the Sub-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 Sub-Distributor as part of their
name and that the Sub-Distributor or its affiliates may enter into distribution,
administration, fund accounting, transfer agent or other agreements with such
other entities. The Trust and the Distributor reserve the right to (1) issue
Shares in connection with a merger, consolidation, or recapitalization of the
Trust or any Fund(s); (2) issue additional Shares to holders of Shares; or (3)
issue Shares in connection with any offer of exchange permitted by Section 11 of
the 1940 Act.
(i) The Sub-Distributor shall at all times during the term of this
Agreement remain registered as a broker-dealer under the 1934 Act and with all
50 states, and shall also remain a member in good standing of the NASD. The
Sub-Distributor shall immediately notify the Fund in writing if it receives
written notification that such registrations or membership has been temporarily
or permanently suspended, limited or terminated.
3. Duties and Representations of the Trust.
(a) The Trust represents that it is duly organized and in good standing
under the law of its jurisdiction of organization and registered as an open-end
management investment company under the 1940 Act. The Trust agrees that it will
act in material conformity with its Agreement and Declaration of Trust, By-Laws,
its Registration Statement as may be amended from time to time and resolutions
and other instructions of its Board. The Trust agrees to comply in all material
respects with the 1933 Act, the 1940 Act, and all other applicable federal and
state laws and regulations. The Trust represents and warrants that this
Agreement has been duly authorized by all necessary action by the Trust under
the 1940 Act, state law and the Trust's Agreement and Declaration of Trust and
By-Laws.
(b) The Trust, or its agent, 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
Sub-Distributor to use the Prospectus, in the form furnished to the
Sub-Distributor from time to time, in connection with the sale of Shares.
(c) The Trust represents and agrees that all Shares to be sold by it,
including those offered under this Agreement, are validly authorized and, when
issued in accordance with the description in the Prospectus, will be fully paid
and nonassessable. The Trust further agrees that it 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 Sub-Distributor
promptly of any such determination.
(d) The Trust agrees to advise the Sub-Distributor promptly in
writing:
(i) of any material correspondence or other communication by the
SEC or its staff relating to continued availability of the Shares for
sale by the Funds;
(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;
(iv) of all actions which may relate to the continued
availability of the Shares for sale by the Funds, taken by the SEC
with respect to any amendments to any Registration Statement or
Prospectus which may from time to time be filed with the SEC; and
(v) of assignment or termination of the Distribution Agreement.
(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, upon request of the Sub-Distributor, notify the Sub-Distributor in
writing of the states in which the Shares may be sold and shall notify the
Sub-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
Sub-Distributor to sell and arrange for the sale of Shares and shall make
available to the Sub-Distributor a statement of each computation of net asset
value. In addition, the Trust shall provide to the Sub-Distributor from time to
time copies of all information, financial statements, and other papers that the
Sub-Distributor may reasonably request for use in connection with the
distribution of Shares, including, without limitation, copies of any audited
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 Sub-Distributor may request. The Trust shall forward a copy
of any SEC filings, including the Registration Statement, to the Sub-Distributor
within one business day of any such filings. The Trust, the Distributor and the
Sub-Distributor each 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 each other party.
(h) The Trust represents and warrants that its Registration Statement
and any advertisements and sales literature of the Trust (excluding statements
relating to the Sub-Distributor and the services it provides that are based upon
written information furnished by the Sub-Distributor expressly for inclusion
therein) shall not contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and that all statements or information
furnished to the Sub-Distributor pursuant to this Agreement shall be true and
correct in all material respects.
4. Duties and Representations of the Distributor.
(a) The Distributor represents and warrants that this Agreement has
been duly authorized by all necessary action by the Distributor under the 1934
Act and any other applicable federal or state laws or regulations.
(b) The Distributor shall at all times during the term of this
Agreement remain registered as a broker-dealer under the 1934 Act and shall also
remain a member in good standing of the NASD. The Distributor shall immediately
notify the Sub-Distributor in writing if it receives written notification that
such registrations or membership has been temporarily or permanently suspended,
limited or terminated.
(c) In connection with all matters relating to this Agreement, the
Distributor agrees to act in conformity with the Trust's Agreement and
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.
(d) The Distributor represents that, pursuant to the terms of the
Distribution Agreement, it is the principal underwriter for the Trust, and shall
notify the Sub-Distributor in writing immediately upon termination of its role
as underwriter, or upon assignment or termination of the Distribution Agreement.
5. Compensation.
As compensation for the services performed and the expenses assumed by
Sub-Distributor under this Agreement including, but not limited to, any
commissions paid for sales of Shares, Sub-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
Sub-Distributor by the Distributor.
6. Expenses.
(a) The Distributor, or the Trust, but not the Sub-Distributor, 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 Sub-Distributor shall bear the expenses of registration or
qualification of the Sub-Distributor as a dealer or broker under federal or
state laws and the expenses of continuing such registration or qualification.
The Sub-Distributor does not assume responsibility for any expenses not
expressly assumed hereunder.
7. Indemnification.
(a) The Trust shall indemnify, defend and hold the Sub-Distributor, and
each of its present or former members, directors/trustees, officers, employees,
representatives and any person who controls or previously controlled the
Sub-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
Sub-Distributor, each of its present and former members, directors/trustees,
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, based upon
the Trust's failure to adhere to its obligations hereunder, or, in connection
with the Trust's performance of its duties hereunder, based upon the Trust's
violation or alleged violation of any rule of the NASD or of the SEC or any
other jurisdiction wherein Shares of the Funds are sold, or 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 Sub-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 furnished to the Trust or its counsel by the Sub-Distributor in
writing and acknowledging the purpose of its use for the purpose of, and used
in, the preparation thereof. In no event shall anything contained herein be so
construed as to protect Sub-Distributor against any liability to the Trust or
its shareholders to which Sub-Distributor would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the performance of its
duties under this Agreement or by reason of its reckless disregard of its
obligations under this Agreement.
The Trust's agreement to indemnify the Sub-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 Sub-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
Sub-Distributor, or such person, unless the failure to give notice does not
prejudice the Trust. Such notification shall be given by letter or by telegram
addressed to the Trust's President, but, unless the failure to notify the Trust
serves to prejudice the Trust, such failure so to notify the Trust of any such
action shall not relieve the Trust from any liability which the Trust may have
to the person against whom such action is brought by reason of any such untrue,
or alleged untrue, statement or omission, or alleged omission, otherwise than on
account of the Trust's indemnity agreement contained in this Section 7(a).
(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 subject to
this Agreement. If the Trust elects to assume the defense of any such claim,
such defense shall be conducted by counsel chosen by the Trust and approved by
the Sub-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 Sub-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
Sub-Distributor, and each of its present or former members, directors/trustees,
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 reasonable fees and expenses of any counsel retained by
Sub-Distributor and the indemnified defendants. The Trust's indemnification
agreement contained in Section 7 shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the
Sub-Distributor, and each of its present or former members, directors/trustees,
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 Sub-Distributor's benefit,
to the benefit of each of its present or former members, directors/trustees,
officers, employees or representatives or to the benefit of any controlling
persons and their successors. The Trust agrees promptly to notify the
Sub-Distributor of the commencement of any litigation or proceedings against the
Trust or any of its officers or directors/trustees, in connection with the issue
and sale of any of the Shares.
(c) The Trust, the Distributor, or the Sub-Distributor, when acting as
an indemnifying party, 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 7 to the maximum
extent permissible under applicable law.
(d) The Sub-Distributor shall indemnify, defend and hold each of the
Trust and the Distributor, and each of its present or former directors/trustees,
officers, employees, representatives, and any person who controls or previously
controlled each of the Trust and 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 each of the Trust and the Distributor, and each of its present
or former directors/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, based upon Sub-Distributor's failure to adhere to its
obligations hereunder, or, in connection with the Sub-Distributor's performance
of its duties hereunder, based upon Sub-Distributor's violation or alleged
violation of any rule of the NASD or of the SEC or any other jurisdiction
wherein Shares of the Funds are sold, or arising out of or based upon any untrue
statement, 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 statements therein not misleading; provided,
however, that the Sub-Distributor's obligation to indemnify the Trust, the
Distributor, or 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
written information furnished to the Sub-Distributor or its counsel by the Trust
or the Distributor in writing and acknowledging the purpose of its use for the
purpose of, and used in, the preparation thereof. In no event shall anything
contained herein be so construed as to protect the Trust or the Distributor
against any liability to the Sub-Distributor to which the Trust or the
Distributor would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of their respective duties under
this Agreement or by reason of their reckless disregard of their respective
obligations under this Agreement.
The Sub-Distributor's agreement to indemnify each of the Trust and the
Distributor, and any of the foregoing indemnitees, as the case may be, with
respect to any action, is expressly conditioned upon the Sub-Distributor being
notified of such action brought against the Trust or 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 Trust or the Distributor, or such person, unless the
failure to give notice does not prejudice the Sub-Distributor. Such notification
shall be given by letter or by telegram addressed to the Sub-Distributor's
President, but, unless the failure to notify the Sub-Distributor serves to
prejudice the Sub-Distributor, such failure so to notify the Sub-Distributor of
any such action shall not relieve the Sub-Distributor from any liability which
the Sub-Distributor 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 Sub-Distributor's indemnity
agreement contained in this Section 7(d).
(e) The Sub-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
subject to this Agreement. If the Sub-Distributor elects to assume the defense
of any such claim, such defense shall be conducted by counsel chosen by the
Sub-Distributor and approved by each of the Trust and the Distributor, which
approval shall not be unreasonably withheld. In the event the Sub-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 Sub-Distributor does
not elect to assume the defense of any such suit, or in case the Trust or the
Distributor does not, in the exercise of reasonable judgment, approve of counsel
chosen by the Sub-Distributor or, if under prevailing law or legal codes of
ethics, the same counsel cannot effectively represent the interests of both the
Trust or the Distributor and the Sub-Distributor, and each of its present or
former members, directors/trustees, officers, employees, representatives or any
controlling person, the Sub-Distributor will reimburse the indemnified person or
persons named as defendant or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by the Trust or the Distributor and the
indemnified defendants. The Sub-Distributor's indemnification agreement
contained in Section 7 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Trust or the
Distributor, and each of its present or former directors/trustees, 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 benefit of each of the Trust and the
Distributor, to the benefit of each of its present or former directors/trustees,
officers, employees or representatives or to the benefit of any controlling
persons and their successors. The Sub-Distributor agrees promptly to notify the
Trust and the Distributor of the commencement of any litigation or proceedings
against the Sub-Distributor or any of its officers or directors/trustees, in
connection with the issue and sale of any of the Shares.
(f) The Distributor shall indemnify, defend and hold the
Sub-Distributor, and each of its present or former members, directors/trustees,
officers, employees, representatives, and any person who controls or previously
controlled the Sub-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
Sub-Distributor, and each of its present or former members, directors/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, based upon
Distributor's failure to adhere to its obligations hereunder, or, in connection
with the Distributor's performance of its duties hereunder, based upon
Distributor's violation or alleged violation of any rule of the NASD or of the
SEC or any other jurisdiction wherein Shares of the Funds are sold, or arising
out of or based upon any untrue statement, 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 statements therein
not misleading; provided, however, that the Distributor's obligation to
indemnify the Sub-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 written information furnished to the Distributor or its
counsel by the Sub-Distributor in writing and acknowledging the purpose of its
use for the purpose of, and used in, the preparation thereof. In no event shall
anything contained herein be so construed as to protect the Sub-Distributor
against any liability to the Distributor to which the Sub-Distributor would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties under this Agreement or by reason of
its reckless disregard of its obligations under this Agreement.
The Distributor's agreement to indemnify the Sub-Distributor, and any
of the foregoing indemnitees, as the case may be, with respect to any action, is
expressly conditioned upon the Distributor being notified of such action brought
against the Sub-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
Sub-Distributor, or such person, unless the failure to give notice does not
prejudice the Distributor. Such notification shall be given by letter or by
telegram addressed to the Distributor's President, but, unless the failure to
notify the Distributor serves to prejudice the Distributor, such 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, or alleged omission, otherwise than on account of the Distributor's
indemnity agreement contained in this Section 7(f).
(g) 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 subject to
this Agreement. If the Distributor elects to assume the defense of any such
claim, such defense shall be conducted by counsel chosen by the Distributor and
approved by the Sub-Distributor, 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 Sub-Distributor 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 Sub-Distributor and the Distributor, and each of its
present or former members, directors/trustees, 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 reasonable fees and expenses of any counsel retained by the Sub-Distributor
and the indemnified defendants. The Distributor's indemnification agreement
contained in Section 7 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Sub-Distributor, and
its present or former members, directors/trustees, 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 benefit of the Sub-Distributor, to the benefit of its
present or former members, directors/trustees, officers, employees or
representatives or to the benefit of any controlling persons and their
successors. The Distributor agrees promptly to notify the Sub-Distributor of the
commencement of any litigation or proceedings against the Distributor or any of
its officers or directors/trustees, in connection with the issue and sale of any
of the Shares.
(h) No person shall be obligated to provide indemnification under this
Section 7 if such indemnification would be impermissible under the 1940 Act, the
1933 Act, the 1934 Act or the rules of the NASD; provided, however, in such
event indemnification shall be provided under this Section 7 to the maximum
extent so permissible.
8. Obligations of the 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.
9. 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.
10. 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. Any dispute
arising between the parties to this Agreement shall be resolved by binding
arbitration conducted in accordance with the Rules of the NASD. Such arbitration
shall take place in the jurisdiction of the respondent.
11. 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 Sub-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 Sub-Distributor, the Distributor and the Trust. If required under the 1940
Act, any such amendment must be approved by the Trust's Board, including a
majority of the Trust's Board who are not "interested persons" of any party to
this Agreement, by vote cast in person at a meeting for the purpose of voting on
such amendment. This Agreement will automatically terminate in the event of its
assignment.
12. Confidentiality.
The Sub-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 Sub-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
Sub-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 Sub-Distributor or any of its
employees, agents or representatives shall not be subject to this paragraph. In
accordance with Section 248.11 of Regulation S-P ( 17 CFR 248.1-248.30), the
Sub-Distributor will not directly or indirectly through an affiliate, disclose
any non-public personal information, as defined in Reg. S-P, received from the
Trust or any Fund(s) regarding any shareholder, to any person that is not
affiliated with the Trust or any Fund(s) or with the Sub-Distributor and,
provided that, any such information disclosed to an affiliate of the
Sub-Distributor shall be under the same limitations on non-disclosure.
13. Withdrawal of Offering.
The Trust reserves the right at any time to withdraw all offerings of
any or all Shares by written notice to Sub-Distributor at its principal office.
No Shares shall be offered by either Sub-Distributor or the Trust under any
provisions of this Agreement and no orders for the purchase of Shares hereunder
shall be accepted by the Fund if and so long as effectiveness of the
Registration Statement then in effect or any necessary amendments thereto shall
be suspended under any of the provisions of the 1933 Act, or if and so long as a
current prospectus as required by Section 5(b)(2) of the 1933 Act is not on file
with the SEC.
14. 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.
15. Notice.
Any notice required or permitted to be given by any party to the others
shall be in writing and shall be deemed to have been given on the date delivered
personally or by courier service or 3 days after sent by registered or certified
mail, postage prepaid, return receipt requested or on the date sent and
confirmed received by facsimile transmission to the other parties' respective
addresses set forth below:
Notice to the Sub-Distributor shall be sent to:
Quasar Distributors, LLC
Attn: President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice to the Trust shall be sent to:
AssetMark Funds
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Notice to the Distributor shall be sent to:
AssetMark Capital Corporation
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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.
AssetMark Funds Quasar Distributors, LLC
By: __________________________ By: ______________________________
Title: _______________________ Title: President
AssetMark Capital Corporation
By: __________________________
Title: _______________________
