ASHPORT MUTUAL FUNDS
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made as of the _____ day
of July , 2001 by and among the Ashport Mutual Funds (the "Fund"), a
Massachusetts business trust and State Trust Investments, Inc. . (the
"Distributor"), a Florida corporation.
WITNESSETH THAT:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act")
and has registered its shares of common stock (the "Shares") under the
Securities Act of 1933, as amended (the "1933 Act") in one or more distinct
series of Shares, and classes thereof (each class is hereinafter referred to as
a "Portfolio");
WHEREAS, the Distributor is a broker-dealer registered with the U.S.
Securities and Exchange Commission (the "SEC") and a member in good standing of
the National Association of Securities Dealers, Inc. (the "NASD");
WHEREAS, the Fund has adopted a plan of distribution (the "Distribution
Plan") pursuant to Rule 12b-1 under the 1940 Act relating to the payment by the
Fund of distribution expenses; and
WHEREAS, the Fund and the Distributor desire to enter into this Agreement
pursuant to which the Distributor will provide distribution services to the
Portfolios of the Fund identified on Schedule A, as may be amended from time to
time, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Fund and the Distributor, intending to be
legally bound hereby, agree as follows:
1. APPOINTMENT OF DISTRIBUTOR. The Fund hereby appoints the Distributor
as its exclusive agent for the distribution of the Shares, and the Distributor
hereby accepts such appointment under the terms of this Agreement. The Fund
shall not sell any Shares to any person except to fill orders for the Shares
received through the Distributor; provided, however, that the foregoing
exclusive right shall not apply: (i) to Shares issued or sold in connection with
the merger or consolidation of any other investment company with the Fund or the
acquisition by purchase or otherwise of all or substantially all of the assets
of any investment company or substantially all of the outstanding shares of any
such company by the Fund; (ii) to Shares which may be offered by the Fund to its
shareholders for reinvestment of cash distributed from capital gains or net
investment income of the Fund; (iii) to Shares which may be issued to
shareholders of other funds who exercise any exchange privilege set forth in the
Fund's Prospectus; or (iv) to Shares which may be sold to persons purchasing
such Shares directly from the Fund or the Fund's Transfer Agent. Notwithstanding
any other provision hereof, the Fund may terminate, suspend, or withdraw the
offering of the Shares whenever, in its sole discretion, it deems such action to
be desirable, and the Distributor shall process no
further orders for Shares after it receives notice of such termination,
suspension or withdrawal.
2. FUND DOCUMENTS. The Fund has provided the Distributor with properly
certified or authenticated copies of the following Fund related documents in
effect on the date hereof: the Fund's organizational documents, including the
Trust Instrument and By-Laws; the Fund's Registration Statement on Form N-1A,
including all exhibits thereto; the Fund's most current Prospectus and Statement
of Additional Information; and resolutions of the Fund's Board of Trustees
authorizing the appointment of the Distributor and approving this Agreement. The
Fund shall promptly provide to the Distributor copies, properly certified or
authenticated, of all amendments or supplements to the foregoing. The Fund shall
provide to the Distributor copies of all other information which the Distributor
may reasonably request for use in connection with the distribution of Shares,
including, but not limited to, a certified copy of all financial statements
prepared for the Fund by its independent public accountants. The Fund shall also
supply the Distributor with such number of copies of the current Prospectus,
Statement of Additional Information and shareholder reports as the Distributor
shall reasonably request.
3. DISTRIBUTION SERVICES. The Distributor shall sell and repurchase
Shares as set forth below, subject to the registration requirements of the 1933
Act and the rules and regulations thereunder, and the laws governing the sale of
securities in the various states ("Blue Sky Laws"):
a. The Distributor, as agent for the Fund, shall sell Shares to the
public against orders therefor at the public offering price,
which shall be the net asset value of the Shares then in effect
plus any applicable sales loads.
b. The net asset value of the Shares shall be determined in the
manner provided in the then current Prospectus and Statement of
Additional Information. The net asset value of the Shares shall
be calculated by the Fund or by another entity on behalf of the
Fund. The Distributor shall have no duty to inquire into or
liability for the accuracy of the net asset value per Share as
calculated.
c. Upon receipt of purchase instructions, the Distributor shall
transmit such instructions to the Fund or its transfer agent for
registration of the Shares purchased.
d. The Distributor, in light of Fund policies, procedures and
disclosure documents, shall also have the right to take, as agent
for the Fund, all actions which, in the Distributor's judgment,
are necessary to effect the distribution of Shares.
e. Nothing in this Agreement shall prevent the Distributor or any
"affiliated person" from buying, selling or trading any
securities for its or their own account or for the accounts of
others for whom it or they may be acting; provided, however, that
the Distributor expressly agrees that it shall not for its own
account purchase any Shares of the Fund except for investment
purposes and that it shall not for its own account sell any such
Shares except for redemption of such Shares by the Fund, and that
it shall not undertake activities which, in its judgment, would
adversely affect the performance of its obligations to the Fund
under this Agreement.
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f. The Distributor, as agent for the Fund, shall repurchase Shares
at such prices and upon such terms and conditions as shall be
specified in the Prospectus.
4. DISTRIBUTION SUPPORT SERVICES. In addition to the sale and repurchase
of Shares, the Distributor shall perform the distribution support services set
forth on Schedule B attached hereto, as may be amended from time to time.
5. REASONABLE EFFORTS. The Distributor shall use all reasonable efforts
in connection with the distribution of Shares. The Distributor shall have no
obligation to sell any specific number of Shares and shall only sell Shares
against orders received therefor. The Fund shall retain the right to refuse at
any time to sell any of its Shares for any reason deemed adequate by it.
6. COMPLIANCE. In furtherance of the distribution services being provided
hereunder, the Distributor and the Fund agree as follows:
a. The Distributor shall comply with the Rules of Fair Practice of
the NASD and the securities laws of any jurisdiction in which it
sells, directly or indirectly, Shares.
b. The Distributor shall require each dealer with whom the
Distributor has a selling agreement to conform to the applicable
provisions of the Fund's most current Prospectus and Statement of
Additional Information, with respect to the public offering price
of the Shares.
c. The Fund agrees to furnish to the Distributor sufficient copies
of any agreements, plans, communications with the public or other
materials it intends to use in connection with any sales of
Shares in a timely manner in order to allow the Distributor to
review, approve and file such materials with the appropriate
regulatory authorities and obtain clearance for use. The Fund
agrees not to use any such materials until so filed and cleared
for use by appropriate authorities and the Distributor.
d. The Distributor, at its own expense, shall qualify as a broker or
dealer, or otherwise, under all applicable Federal or state laws
required to permit the sale of Shares in such states as shall be
mutually agreed upon by the parties; provided, however that the
Distributor shall have no obligation to register as a broker or
dealer under the Blue Sky Laws of any jurisdiction if it
determines that registering or maintaining registration in such
jurisdiction would be uneconomical.
e. The Distributor shall not, in connection with any sale or
solicitation of a sale of the Shares, or make or authorize any
representative, service organization, broker or dealer to make,
any representations concerning the Shares except those contained
in the Fund's most current Prospectus covering the Shares and in
communications with the public or sales materials approved by the
Distributor as information supplemental to such Prospectus.
7. EXPENSES. Expenses shall be allocated as follows:
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a. The Fund shall bear the following expenses: preparation, setting
in type, and printing of sufficient copies of the Prospectus and
Statement of Additional Information for distribution to existing
shareholders; preparation and printing of reports and other
communications to existing shareholders; distribution of copies
of the Prospectus, Statement of Additional Information and all
other communications to existing shareholders; registration of
the Shares under the Federal securities laws; qualification of
the Shares for sale in the jurisdictions mutually agreed upon by
the Fund and the Distributor; transfer agent/shareholder
servicing agent services; supplying information, prices and other
data to be furnished by the Fund under this Agreement; any
original issue taxes or transfer taxes applicable to the sale or
delivery of the Shares or certificates therefor; and items
covered by the Distribution Plan.
b. To the extent not covered by the Distribution Plan, the Adviser
shall pay all other expenses incident to the sale and
distribution of the Shares sold hereunder, including, without
limitation: printing and distributing copies of the Prospectus,
Statement of Additional Information and reports prepared for use
in connection with the offering of Shares for sale to the public;
advertising in connection with such offering, including public
relations services, sales presentations, media charges,
preparation, printing and mailing of advertising and sales
literature; filing fees required by regulatory authorities for
sales literature and advertising materials; any additional
out-of-pocket expenses incurred in connection with the foregoing
and any other costs of distribution.
8. COMPENSATION. For the distribution and distribution support services
provided by the Distributor pursuant to the terms of the Agreement, the Fund
shall, pursuant to the Distribution Plan, pay to the Distributor the
compensation set forth in Schedule A attached hereto, which schedule may be
amended from time to time. In addition, the Distributor may retain any portion
of any sales load which is imposed on the sale of Shares and not reallocated by
the Distributor to a dealer, as set forth in the Prospectus and subject to
applicable NASD rules, and offset the amount payable to the Distributor pursuant
to Schedule A against any amounts so retained. To the extent not covered by the
Distribution Plan or offset by the retention of sales loads, the Adviser shall
pay to Distributor the compensation set forth in Schedule A and shall also
reimburse the Distributor for its out-of-pocket expenses related to the
performance of its duties hereunder, including, without limitation,
telecommunications charges, postage and delivery charges, record retention
costs, reproduction charges and traveling and lodging expenses incurred by
officers and employees of the Distributor. If this Agreement becomes effective
subsequent to the first day of the month or terminates before the last day of
the month, the Fund shall pay to the Distributor a distribution fee that is
prorated for that part of the month in which this Agreement is in effect. All
rights of compensation and reimbursement under this Agreement for services
performed by the Distributor as of the termination date shall survive the
termination of this Agreement.
9. USE OF DISTRIBUTOR'S NAME. The Fund shall not use the name of the
Distributor or any of its affiliates in the Prospectus, Statement of Additional
Information, sales literature or other material relating to the Fund in a manner
not approved prior thereto in writing by the Distributor; provided, however,
that the Distributor shall approve all uses of its and its affiliates' names
that merely refer in accurate terms to their appointments or that are required
by
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the Securities and Exchange Commission (the "SEC") or any state securities
commission; and further provided, that in no event shall such approval be
unreasonably withheld.
10. USE OF FUND'S NAME. Neither the Distributor nor any of its affiliates
shall use the name of the Fund or material relating to the Fund on any forms
(including any checks, bank drafts or bank statements) for other than internal
use in a manner not approved prior thereto in writing by the Fund; provided,
however, that the Fund shall approve all uses of its name that merely refer in
accurate terms to the appointment of the Distributor hereunder or that are
required by the SEC or any state securities commission; and further provided,
that in no event shall such approval be unreasonably withheld.
11. LIABILITY OF DISTRIBUTOR. The duties of the Distributor shall be
limited to those expressly set forth herein, and no implied duties, except the
duty to act in good faith, are assumed by or may be asserted against the
Distributor hereunder. The Distributor may, in connection with this Agreement
employ agents or attorneys in fact, and shall not be liable for any loss arising
out of or in connection with its actions under this Agreement, so long as it
acts in good faith and with due diligence, and is not negligent or guilty of any
willful misfeasance, bad faith or gross negligence, or reckless disregard of its
obligations and duties under this Agreement. As used in this Section 11 and in
Section 12 (except the second paragraph of Section 12), the term "Distributor"
shall include directors, officers, employees and other agents of the
Distributor.
12. INDEMNIFICATION OF DISTRIBUTOR. Any director, officer, employee,
shareholder or agent of the Distributor who may be or become an officer,
Trustee, employee or agent of the Fund, shall be deemed, when rendering services
to the Fund or acting on any business of the Fund (other than services or
business in connection with the Distributor's duties hereunder), to be rendering
such services to or acting solely for the Fund and not as a director, officer,
employee, shareholder or agent of, or one under the control or direction of, the
Distributor, even though receiving a salary from the Distributor.
The Fund agrees to indemnify and hold harmless the Distributor, and each
person, who controls the Distributor within the meaning of Section 15 of the
1933 Act, or Section 20 of the Securities Exchange Act of 1934, as amended
("1934 Act"), against any and all liabilities, losses, damages, claims and
expenses, joint or several (including, without limitation, reasonable attorneys'
fees and disbursements and investigation expenses incident thereto) to which
they, or any of them, may become subject under the 1933 Act, the 1934 Act, the
1940 Act or other Federal or state laws or regulations, at common law or
otherwise, insofar as such liabilities, losses, damages, claims and expenses (or
actions, suits or proceedings in respect thereof) arise out of or relate to any
untrue statement or alleged untrue statement of a material fact contained in a
Prospectus, Statement of Additional Information, supplement thereto, sales
literature or other written information prepared by the Fund and provided by the
Fund to the Distributor for the Distributor's use hereunder, or arise out of or
relate to 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. The Distributor (or any person controlling the Distributor) shall
not be entitled to indemnity hereunder for any liabilities, losses, damages,
claims or expenses (or actions, suits or proceedings in respect thereof)
resulting from (i) an untrue statement or omission or alleged untrue statement
or omission made in the Prospectus, Statement of Additional Information, or
supplement, sales or other literature, in reliance upon and in
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conformity with information furnished in writing to the Fund by the Distributor
specifically for use therein or (ii) the Distributor's own willful misfeasance,
bad faith, gross negligence or reckless disregard of its duties and obligations
in the performance of this Agreement.
The Distributor agrees to indemnify and hold harmless the Fund, and each
person who controls the Fund within the meaning of Section 15 of the 1933 Act,
or Section 20 of the 1934 Act, against any and all liabilities, losses, damages,
claims and expenses, joint or several (including, without limitation reasonable
attorneys' fees and disbursements and investigation expenses incident thereto)
to which they, or any of them, may become subject under the 1933 Act, the 1934
Act, the 1940 Act or other Federal or state laws, at common law or otherwise,
insofar as such liabilities, losses, damages, claims or expenses arise out of or
relate to any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus or Statement of Additional Information or any
supplement thereto, sales literature or other written material, or arise out of
or relate to actions or oral representations of Distributor's associated persons
and to 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, if based upon information furnished in writing to the Fund by the
Distributor specifically for use therein.
A party seeking indemnification hereunder (the "Indemnitee") shall give
prompt written notice to the party from whom indemnification is sought
("Indemnitor") of a written assertion or claim of any threatened or pending
legal proceeding which may be subject to indemnity under this Section; provided,
however, that failure to notify the Indemnitor of such written assertion or
claim shall not relieve the Indemnitor of any liability arising from this
Section. The Indemnitor shall be entitled, if it so elects, to assume the
defense of any suit brought to enforce a claim subject to this Agreement and
such defense shall be conducted by counsel chosen by the Indemnitor and
satisfactory to the Indemnitee; provided, however, that if the defendants
include both the Indemnitee and the Indemnitor, and the Indemnitee shall have
reasonably concluded that there may be one or more legal defenses available to
it which are different from or additional to those available to the Indemnitor
("conflict of interest"), the Indemnitor shall not have the right to elect to
defend such claim on behalf of the Indemnitee, and the Indemnitee shall have the
right to select separate counsel to defend such claim on behalf of the
Indemnitee. In the event that the Indemnitor elects to assume the defense of any
suit pursuant to the preceding sentence and retains counsel satisfactory to the
Indemnitee, the Indemnitee shall bear the fees and expenses of additional
counsel retained by it except for reasonable investigation costs which shall be
borne by the Indemnitor. If the Indemnitor (i) does not elect to assume the
defense of a claim, (ii) elects to assume the defense of a claim but chooses
counsel that is not satisfactory to the Indemnitee or (iii) has no right to
assume the defense of a claim because of a conflict of interest, the Indemnitor
shall advance or reimburse the Indemnitee, at the election of the Indemnitee,
reasonable fees and disbursements of any counsel retained by Indemnitee,
including reasonable investigation costs.
13. FORCE MAJEURE. The Distributor shall not be liable for any delays or
errors occurring by reason of circumstances not reasonably foreseeable and
beyond its control, including, but not limited, to acts of civil or military
authority, national emergencies, work stoppages, fire, flood, catastrophe, acts
of God, insurrection, war, riot or failure of communication or power supply. In
the event of equipment breakdowns which are beyond the reasonable control of the
Distributor and not primarily attributable to the failure of the
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Distributor to reasonably maintain or provide for the maintenance of such
equipment, the Distributor shall, at no additional expense to the Fund, take
reasonable steps in good faith to minimize service interruptions, but shall have
no liability with respect thereto.
14. SCOPE OF DUTIES. The Distributor and the Fund shall regularly consult
with each other regarding the Distributor's performance of its obligations and
its compensation under the foregoing provisions. In connection therewith, the
Fund shall submit to the Distributor at a reasonable time prior to or at the
same time as filing with the SEC copies of any amended or supplemented
Registration Statement of the Fund (including exhibits) under the 1940 Act and
the 1933 Act, and at a reasonable time in advance of their proposed use, copies
of any amended or supplemented forms relating to any plan, program or service
offered by the Fund. Any change in such materials that would require any change
in the Distributor's obligations under the foregoing provisions shall be subject
to the Distributor's approval. In the event that a change in such documents or
in the procedures contained therein increases the cost or burden to the
Distributor of performing its obligations hereunder, the Distributor shall be
entitled to receive reasonable compensation therefore.
15. DURATION. This Agreement shall become effective as of the date first
above written, and shall continue in force for two years from that date and
thereafter from year to year, provided continuance is approved at least annually
by (i) either the vote of a majority of the Trustees of the Fund, or by the vote
of a majority of the outstanding voting securities of each Portfolio, and (ii)
the vote of a majority of those Trustees of the Fund who are not interested
persons of the Fund, and who are not parties to this Agreement or interested
persons of any such party, cast in person at a meeting called for the purpose of
voting on the approval.
16. TERMINATION. This Agreement shall terminate as follows:
a. This Agreement shall terminate automatically in the event of its
assignment.
b. This Agreement shall terminate upon the failure to approve the
continuance of the Agreement after the initial two year term as
set forth in Section 16 above.
c. This Agreement shall terminate at any time upon a vote of the
majority of the Trustees who are not interested persons of the
Fund or by a vote of the majority of the outstanding voting
securities of each Portfolio, upon not less than 60 days prior
written notice to the Distributor.
d. The Distributor may terminate this Agreement upon not less than
60 days prior written notice to the Fund.
Upon the termination of this Agreement, the Fund shall pay to the
Distributor such compensation and out-of-pocket expenses as may be payable for
the period prior to the effective date of such termination. In the event that
the Fund designates a successor to any of the Distributor's obligations
hereunder, the Distributor shall, at the expense and direction of the Fund,
transfer to such successor all relevant books, records and other data
established or maintained by the Distributor pursuant to the foregoing
provisions.
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17. AMENDMENT. The terms of this Agreement shall not be waived, altered,
modified, amended or supplemented in any manner whatsoever except by a written
instrument signed by the Distributor and the Fund and shall not become effective
unless its terms have been approved by the majority of the Trustees of the Fund
or by a "vote of majority of the outstanding voting securities" of each
Portfolio and by a majority of those Trustees who are not "interested persons"
of the Fund or any party to this Agreement.
18. DEFINITIONS. As used in this Agreement, the terms "vote of a majority
of the outstanding voting securities," "assignment," "interested person" and
"affiliated person" shall have the respective meanings specified in the 1940 Act
and the rules enacted thereunder as now in effect or hereafter amended.
19. CONFIDENTIALITY. The Distributor shall treat confidentially and as
proprietary information of the Fund all records and other information relating
to the Fund and prior, present or potential shareholders and shall not use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except as may be required by
administrative or judicial tribunals or as requested by the Fund.
20. NOTICE. Any notices and other communications required or permitted
hereunder shall be in writing and shall be effective upon delivery by hand or
upon receipt if sent by certified or registered mail (postage prepaid and return
receipt requested) or by a nationally recognized overnight courier service
(appropriately marked for overnight delivery) or upon transmission if sent by
telex or facsimile (with request for immediate confirmation of receipt in a
manner customary for communications of such respective type and with physical
delivery of the communication being made by one or the other means specified in
this Section 22 as promptly as practicable thereafter). Notices shall be
addressed as follows:
(a) if to the Fund:
Ashport Mutual Funds
000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
(b) if to the Distributor:
State Trust Investments, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
or to such other respective addresses as the parties shall designate by like
notice, provided that notice of a change of address shall be effective only upon
receipt thereof.
21. SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
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22. GOVERNING LAW. This Agreement shall be administered, construed and
enforced in accordance with the laws of the State of Florida to the extent that
such laws are not preempted by the provisions of any law of the United States
heretofore or hereafter enacted, as the same may be amended from time to time.
23. ENTIRE AGREEMENT. This Agreement (including the Schedules attached
hereto) contains the entire agreement and understanding of the parties with
respect to the subject matter hereof and supersedes all prior written or oral
agreements and understandings with respect thereto.
24. MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. 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. This Agreement may be executed in three counterparts,
each of which taken together shall constitute one and the same instrument.
25. LIMITATION OF LIABILITY. The term "Ashport Mutual Funds" means and
refers to the Trustees from time to time serving under the Trust Instrument of
the Fund dated _May 24, 2001, as the same may subsequently thereto have been, or
subsequently hereto be, amended. It is expressly agreed that obligations of the
Fund hereunder shall not be binding upon any Trustee, shareholder, nominees,
officers, agents or employees of the Fund, personally, but bind only the assets
and property of the Fund, as provided in the Trust Instrument. The execution and
delivery of this Agreement have been authorized by the Trustees and signed by an
authorized officer of the Fund, acting as such, and neither such authorization
nor such execution and delivery shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
bind only the assets and property of the Fund as provided in the Trust
Instrument. The Trust Instrument is on file with the Secretary of the
Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
ASHPORT MUTUAL FUNDS
By: ___________________________________
Xxxxx Vurgait
President & Trustee
STATE TRUST INVESTMENTS, INC.
By: ___________________________________
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SCHEDULE A
ASHPORT MUTUAL FUNDS
Portfolios and Fee Schedule
Portfolios covered by Distribution Agreement:
Series Portfolio
------ ---------
Fees for distribution and distribution support services on behalf of the
Portfolios:
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