DISTRIBUTION AGREEMENT
THIS
AGREEMENT is made and entered into as of the 24th day of
October,
2007, by and between the TRUST FOR PROFESSIONAL MANAGERS, a
Delaware statutory trust (the “Trust”) on behalf of its series, Xxxxxxx
Value Fund and QUASAR DISTRIBUTORS, LLC, a Delaware
limited liability company (the “Distributor”). THUNDERSTORM
MUTUAL FUNDS LLC, a limited liability company and the investment
advisor to the Trust (the “Advisor”), is a party hereto with respect to Section
5 only.
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 Financial
Industry Regulatory Authority (“FINRA”);
WHEREAS,
the Trust desires to retain the Distributor as principal underwriter in
connection with the offer and sale of the Shares of each series of the Trust
listed on Exhibit A hereto (as amended from time to time) (each a “Fund”
and collectively, the “Funds”); and
WHEREAS,
this Agreement has been approved by a vote of the Trust’s board of trustees
(“Board of Trustees” or the “Board”), including its disinterested trustees
voting separately, in conformity with Section 15(c) of the 1940
Act.
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:
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1.
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Appointment
of Quasar as Distributor
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The
Trust
hereby appoints the Distributor as its agent for the sale and distribution
of
Shares of the Fund in jurisdictions wherein the Shares may be legally offered
for sale, on the terms and conditions set forth in this Agreement, and the
Distributor hereby accepts such appointment and agrees to perform the services
and duties set forth in this Agreement. The services and duties of
the Distributor shall be confined to those matters expressly set forth herein,
and no implied duties are assumed by or may be asserted against the Distributor
hereunder.
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2.
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Services
and Duties of the
Distributor
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A.
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The
Distributor agrees to sell Shares on a best efforts basis as agent
for the
Trust 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 both may be amended or
supplemented, relating to the Fund and included in the currently
effective
registration statement (the “Registration Statement”) of the Trust filed
under the Securities Act of 1933, as amended (the “1933 Act”) and the 1940
Act. The Trust shall in all cases receive the net asset value
per Share on all sales. If a sales charge is in effect, the
Distributor shall remit the sales charge (or portion thereof) to
broker-dealers who have sold Shares, as described in Section 2(G),
below. In no event shall the Distributor be entitled to all or
any portion of such sales charge.
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1
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B.
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During
the continuous public offering of Shares, the Distributor will
hold itself
available to receive orders, satisfactory to the Distributor, for
the
purchase of Shares 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.
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C.
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The
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.
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D.
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The
Distributor acknowledges and agrees that it is not authorized to
provide
any information or make any representations other than as contained
in the
Prospectus and any sales literature specifically approved by the
Trust.
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E.
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The
Distributor agrees to cooperate with the Trust or its agent in
the
development of all proposed advertisements and sales literature
relating
to the Fund. The Distributor agrees to review all proposed
advertisements and sales literature for compliance with applicable
laws
and regulations, and shall file with appropriate regulators those
advertisements and sales literature it believes are in compliance
with
such laws and regulations. The Distributor agrees to furnish to
the Trust any comments provided by regulators with respect to such
materials and to use its best efforts to obtain the approval of
the
regulators to such materials.
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F.
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The
Distributor, at its sole discretion, may repurchase Shares offered
for
sale by shareholders of the Fund. Repurchase of Shares by the
Distributor shall be at the price determined in accordance with,
and in
the manner set forth in, the Prospectus. At the end of each
business day, the Distributor shall notify the Trust and its transfer
agent, by any appropriate means, of the orders for repurchase of
Shares
received by the Distributor since the last report, the amount to
be paid
for such Shares and the identity of the shareholders offering Shares
for
repurchase. The Trust reserves the right to suspend such
repurchase right upon written notice to the Distributor. The
Distributor further agrees to act as agent for the Trust to receive
and
transmit promptly to the Trust’s transfer agent, shareholder requests for
redemption of Shares.
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G.
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The
Distributor may, in its discretion, enter into agreements with
such
qualified broker-dealers as it may select, in order that such
broker-dealers also may sell Shares of the Fund. The form of
any dealer agreement shall be approved by the Trust. To the
extent there is a sales charge in effect, the Distributor shall
pay the
applicable sales charge (or portion thereof), or allow a discount,
to the
selling broker-dealer, as described in the
Prospectus.
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2
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H.
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The
Distributor shall devote its best efforts to effect sales of Shares
of the
Fund but shall not be obligated to sell any certain number of
Shares.
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I.
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The
Distributor shall prepare reports for the Board regarding its activities
under this Agreement as from time to time shall be reasonably requested
by
the Board, including reports regarding the use of any 12b-1 payments
received by the Distributor.
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J.
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The
Distributor agrees to advise the Trust promptly in writing of the
initiation of any proceedings against it by the SEC or its staff,
FINRA or
any state regulatory authority.
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K.
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The
Distributor shall monitor amounts paid under Rule 12b-1 plans and
pursuant
to sales loads to ensure compliance with applicable FINRA
rules.
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3.
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Representations
and Covenants of the Trust
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A.
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The
Trust hereby represents and warrants to the Distributor, which
representations and warranties shall be deemed to be continuing
throughout
the term of this Agreement, that:
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(1)
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It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
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(2)
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This
Agreement has been duly authorized, executed and delivered by the
Trust in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of the Trust, enforceable 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;
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(3)
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It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as
now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement;
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(4)
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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;
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(5)
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The
Registration Statement, and Prospectus included therein, have been
prepared in conformity with the requirements of the 1933 Act and
the 1940
Act and the rules and regulations thereunder;
and
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(6)
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The
Registration Statement (at the time of its effectiveness) and any
advertisements and sales literature prepared by the Trust or its
agent
(excluding statements relating to the Distributor and the services
it
provides that are based upon written information furnished by the
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
Distributor pursuant to this Agreement shall be true and correct
in all
material respects.
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B.
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The
Trust, or its agent, shall take or cause to be taken, all necessary
action
to register Shares of the Fund under the 1933 Act, qualify such
shares for
sale in such states as the Trust and the Distributor shall approve,
and
maintain an effective Registration Statement for such Shares in
order to
permit the sale of Shares as herein contemplated. The Trust
authorizes the Distributor to use the Prospectus, in the form furnished
to
the Distributor from time to time, in connection with the sale
of
Shares.
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C.
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The
Trust agrees to advise the Distributor promptly in
writing:
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(i) of
any
material correspondence or other communication by the Securities and Exchange
Commission (the “SEC”) or its staff relating to the Fund, including requests by
the SEC for amendments to the Registration Statement or Prospectus;
(ii) in
the
event of the issuance by the SEC of any stop-order suspending the effectiveness
of the Registration Statement then in effect or the initiation of any proceeding
for that purpose;
(iii) of
the
happening of any event which makes untrue any statement of a material fact
made
in the Prospectus or which requires the making of a change in such Prospectus
in
order to make the statements therein not misleading;
(iv) of
all
actions taken by the SEC with respect to any amendments to any Registration
Statement or Prospectus, which may from time to time be filed with the SEC;
and
(v) in
the
event that it determines to suspend the sale of Shares at any time in response
to conditions in the securities markets or otherwise, or in the event that
it
determines to suspend the redemption of Shares at any time as permitted by
the
1940 Act or the rules of the SEC, including any and all applicable
interpretations of such by the staff of the SEC.
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D.
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The
Trust shall notify the Distributor in writing of the states in
which the
Shares may be sold and shall notify the Distributor in writing
of any
changes to such information.
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E.
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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.
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F.
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The
Trust shall fully cooperate in the efforts of the Distributor to
sell and
arrange for the sale of Shares and shall make available to the
Distributor
a statement of each computation of net asset value. In
addition, the Trust shall keep the Distributor fully informed of
its
affairs and shall provide to the Distributor, from time to time,
copies of
all information, financial statements and other papers that the
Distributor may reasonably request for use in connection with the
distribution of Shares, including without limitation, certified
copies of
any financial statements prepared for the Trust by its independent
public
accountants and such reasonable number of copies of the Prospectus
and
annual and interim reports to shareholders as the Distributor may
request. The Trust shall forward a copy of any SEC filings,
including the Registration Statement, to the Distributor within
one
business day of any such filings. The Trust represents that it
will not use or authorize the use of any advertising or sales material
unless and until such materials have been approved and authorized
for use
by the Distributor. Nothing in this Agreement shall require the
sharing or provision of materials protected by privilege or limitation
of
disclosure, including any applicable attorney-client privilege
or trade
secret materials.
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G.
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The
Trust has reviewed and is familiar with the provisions of FINRA
Rule
2830(k) prohibiting directed brokerage. In addition, the Trust
agrees not to enter into any agreement (whether orally or in writing)
under which the Trust directs or is expected to direct its brokerage
transactions (or any commission, markup or other payment from such
transactions) to a broker or dealer for the promotion or sale of
Fund
Shares or the shares of any other investment company. In the
event the Trust fails to comply with the provisions of FINRA Rule
2830(k),
the Trust shall promptly notify the
Distributor.
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4.
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Additional
Representations and Covenants of the
Distributor
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The
Distributor hereby represents, warrants and covenants to the Trust, which
representations, warranties and covenants shall be deemed to be continuing
throughout the term of this Agreement, that:
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(1)
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It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
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(2)
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This
Agreement has been duly authorized, executed and delivered by the
Distributor in accordance with all requisite action and constitutes
a
valid and legally binding obligation of the Distributor, enforceable
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;
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(3)
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It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as
now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement;
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(4)
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It
is registered as a broker-dealer under the 1934 Act and is a member
in
good standing of FINRA;
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(5)
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It:
(i) has adopted an anti-money laundering compliance program (“AML
Program”) that satisfies the requirements of all applicable laws and
regulations; (ii) undertakes to carry out its AML Program to the
best of
its ability; (iii) will promptly notify the Trust and the Advisor
if an
inspection by the appropriate regulatory authorities of its AML
Program
identifies any material deficiency; and (vi) will promptly remedy
any
material deficiency of which it learns;
and
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(6)
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In
connection with all matters relating to this Agreement, it will
comply
with the requirements of the 1933 Act, the 1934 Act, the 1940 Act,
the
regulations of FINRA and all other applicable federal or state
laws and
regulations.
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5.
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Compensation
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The
Distributor shall be compensated for providing the services set forth in
this
Agreement in accordance with the fee schedule set forth on Exhibit B
hereto (as amended from time to time). The Distributor shall also be
compensated for such out-of-pocket expenses (e.g., telecommunication charges,
postage and delivery charges, and reproduction charges) as are reasonably
incurred by the Distributor in performing its duties hereunder. The
Trust shall pay all such fees and reimbursable expenses within 30 calendar
days
following receipt of the billing notice, except for any fee or expense subject
to a good faith dispute. The Trust shall notify the Distributor in
writing within 30 calendar days following receipt of each invoice if the
Trust
is disputing any amounts in good faith. The Trust shall pay such disputed
amounts within 10 calendar days of the day on which the parties agree to
the
amount to be paid. With the exception of any fee or expense the Trust
is disputing in good faith as set forth above, unpaid invoices shall accrue
a
finance charge of 1½% per month after the due date. Notwithstanding anything to
the contrary, amounts owed by the Trust to the Distributor shall only be
paid
out of the assets and property of the particular Fund involved. Such
fees and expenses shall be paid to Distributor by the Trust from Rule 12b-1
fees
payable by the appropriate Fund or, if the Fund does not have a Rule 12b-1
plan,
or if Rule 12b-1 fees are not sufficient to pay such fees and expenses, or
if
the Rule 12b-1 plan is discontinued, or if the Advisor otherwise determines
that
Rule 12b-1 fees shall not, in whole or in part, be used to pay Distributor,
the
Advisor shall be responsible for the payment of the amount of such fees and
expenses not covered by Rule 12b-1 payments.
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6.
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Expenses
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A.
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The
Trust shall bear all costs and expenses in connection with the
registration of its Shares with the SEC and its 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,
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, 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;
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(D) hereof.
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B.
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The
Distributor shall bear the expenses of registration or qualification
of
the Distributor as a dealer or broker under federal or state laws
and the
expenses of continuing such registration or qualification. The
Distributor does not assume responsibility for any expenses not
expressly
assumed hereunder.
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7.
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Indemnification
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A.
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The
Trust shall indemnify, defend and hold the Distributor and each
of its
managers, officers, employees, representatives and any person who
controls
the Distributor within the meaning of Section 15 of the 1933 Act
(collectively, the “Distributor Indemnitees”), free and harmless from and
against any and all claims, demands, losses, expenses and liabilities
of
any and every nature (including reasonable attorneys’ fees) (collectively,
“Losses”) that the Distributor Indemnitees may sustain or incur or that
may be asserted against a Distributor Indemnitee by any person
(i) 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,
or in any annual or interim report to shareholders, or in any
advertisements or sales literature prepared by the Trust or its
agent, or
(ii) 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, or (iii) based upon
the
Trust’s refusal or failure to comply with the terms of this Agreement
or
from its bad faith, negligence, or willful misconduct in the performance
of its duties under this Agreement; provided, however, that the
Trust’s
obligation to indemnify the Distributor Indemnitees shall not be
deemed to
cover any Losses 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 advertisement
or
sales literature in reliance upon and in conformity with written
information relating to the Distributor and furnished to the Trust
or its
counsel by the Distributor for the purpose of, and used in, the
preparation thereof. The Trust’s agreement to indemnify the
Distributor Indemnitees is expressly conditioned upon the Trust
being
notified of such action or claim of loss brought against the Distributor
Indemnitees within a reasonable time after the summons or other
first
legal process giving information of the nature of the claim shall
have
been served upon the Distributor Indemnitees, unless the failure
to give
notice does not prejudice the Trust; provided, that the failure
so to
notify the Trust of any such action shall not relieve the Trust
from any
liability which the Trust may have to the person against whom such
action
is brought by reason of any such untrue, or alleged untrue, statement
or
omission, or alleged omission, otherwise than on account of the
Trust’s
indemnity agreement contained in this Section
7(A).
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7
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B.
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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 Losses, but if the Trust elects to assume the defense,
such
defense shall be conducted by counsel chosen by the Trust and approved
by
the Distributor, which approval shall not be unreasonably
withheld. In the event the Trust elects to assume the defense
of any such suit and retain such counsel, the Distributor Indemnitees
in
such suit shall bear the fees and expenses of any additional counsel
retained by them. If the Trust does not elect to assume the
defense of any such suit, or in case the Distributor does not,
in the
exercise of reasonable judgment, approve of counsel chosen by the
Trust,
or if under prevailing law or legal codes of ethics, the same counsel
cannot effectively represent the interests of both the Trust and
the
Distributor Indemnitees, the Trust will reimburse the Distributor
Indemnitees for the reasonable fees and expenses of any counsel
retained
by them. The Trust’s indemnification agreement contained in
Sections 7(A) and 7(B) herein shall remain operative and in full
force and
effect regardless of any investigation made by or on behalf of
the
Distributor Indemnitees 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 Distributor Indemnitees
and
their successors. The Trust agrees promptly to notify the
Distributor of the commencement of any litigation or proceedings
against
the Trust or any of its officers or trustees in connection with
the offer
and sale of any of the Shares.
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C.
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The
Trust shall advance attorneys’ fees and other expenses incurred by any
Distributor Indemnitee 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.
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D.
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The
Distributor shall indemnify, defend and hold the Trust and each
of its
trustees, officers, employees, representatives and any person who
controls
the Trust within the meaning of Section 15 of the 1933 Act (collectively,
the “Trust Indemnitees”), free and harmless from and against any and all
Losses that the Trust Indemnitees may sustain or incur or that
may be
asserted against a Trust Indemnitee by any person (i) arising out
of or
based upon any untrue or alleged untrue statement of a material
fact
contained in the Registration Statement or any Prospectus, or in
any
annual or interim report to shareholders, or in any advertisements
or
sales literature prepared by the Distributor, or (ii) 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 statement
not
misleading, or (iii) based upon the Distributor’s refusal or failure to
comply with the terms of this Agreement or from its bad faith,
negligence,
or willful misconduct in the performance of its duties under this
Agreement; provided, however, that with respect to clauses (i)
and (ii),
above, the Distributor’s obligation to indemnify the Trust Indemnitees
shall only be deemed to cover Losses 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
advertisement or sales literature in reliance upon and in conformity
with
written information relating to the Distributor and furnished to
the Trust
or its counsel by the Distributor for the purpose of, and used
in, the
preparation thereof. The Distributor’s agreement to indemnify
the Trust Indemnitees is expressly conditioned upon the Distributor
being
notified of any action or claim of loss brought against the Trust
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 Indemnitees, unless the failure to give
notice
does not prejudice the Distributor; provided, that the failure
so to
notify the Distributor of any such action shall not relieve the
Distributor from any liability which the Distributor may have to
the
person against whom such action is brought by reason of any such
untrue,
or alleged untrue, statement or omission, otherwise than on account
of the
Distributor’s indemnity agreement contained in this Section
7(D).
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E.
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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 Losses, but if the Distributor elects to assume
the
defense, such defense shall be conducted by counsel chosen by the
Distributor and approved by the Trust, which approval shall not
be
unreasonably withheld. In the event the Distributor elects to
assume the defense of any such suit and retain such counsel, the
Trust
Indemnitees in such suit shall bear the fees and expenses of any
additional counsel retained by them. If the Distributor does
not elect to assume the defense of any such suit, or in case the
Trust
does not, in the exercise of reasonable judgment, approve of counsel
chosen by the Distributor, or if under prevailing law or legal
codes of
ethics, the same counsel cannot effectively represent the interests
of
both the Trust Indemnitees and the Distributor, the Distributor
will
reimburse the Trust Indemnitees for the reasonable fees and expenses
of
any counsel retained by them. The Distributor’s indemnification
agreement contained in Sections 7(D) and 7(E) herein shall remain
operative and in full force and effect regardless of any investigation
made by or on behalf of the Trust Indemnitees 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 Trust Indemnitees and their
successors. The Distributor agrees promptly to notify the Trust
of the commencement of any litigation or proceedings against the
Distributor or any of its officers or directors in connection with
the
offer and sale of any of the
Shares.
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F.
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The
Distributor shall advance attorneys’ fees and other expenses incurred by
any Trust Indemnitee 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.
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G.
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No
party to this Agreement shall be liable to the other parties for
consequential, special or punitive damages under any provision
of this
Agreement.
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H.
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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 FINRA; provided, however,
in such
event indemnification shall be provided under this Section 7 to the
maximum extent so permissible.
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8.
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Proprietary
and Confidential
Information
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The
Distributor agrees on behalf of itself and its managers, officers, and employees
to treat confidentially and as proprietary information of the Trust, all
records
and other information relative to the Trust and prior, present or potential
shareholders of the Trust (and clients of said shareholders), and not to
use
such records and information for any purpose other than the performance of
its
responsibilities and duties hereunder, except (i) after prior notification
to
and approval in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where the Distributor may be exposed to
civil
or criminal contempt proceedings for failure to comply, (ii) when requested
to
divulge such information by duly constituted authorities, or (iii) when so
requested by the Trust. Records and other information which have
become known to the public through no wrongful act of the Distributor or
any of
its employees, agents or representatives, and information that was already
in
the possession of the Distributor prior to receipt thereof from the Trust
or its
agent, shall not be subject to this paragraph.
Further,
the Distributor will adhere to the privacy policies adopted by the Trust
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time
to time. In this regard, the Distributor shall have in place and
maintain physical, electronic and procedural safeguards reasonably designed
to
protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of, records and information relating to the
Trust
and its shareholders.
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9.
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Records
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The
Distributor shall keep records relating to the services to be performed
hereunder in the form and manner, and for such period, as it may deem advisable
and is agreeable to the Trust, but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section
31 of
the 1940 Act and the rules thereunder. The Distributor agrees that
all such records prepared or maintained by the Distributor relating to the
services to be performed by the Distributor hereunder are the property of
the
Trust and will be preserved, maintained, and made available in accordance
with
such applicable sections and rules of the 1940 Act and will be promptly
surrendered to the Trust or its designee on and in accordance with its
request.
10
|
10.
|
Compliance
with Laws
|
The
Trust
has and retains primary responsibility for all compliance matters relating
to
the Fund, including but not limited to compliance with the 1940 Act, the
Internal Revenue Code of 1986, the Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot
Act of 2002 and the policies and limitations of the Fund relating to its
portfolio investments as set forth in its Prospectus and statement of additional
information. The Distributor’s services hereunder shall not relieve
the Trust of its responsibilities for assuring such compliance or the Board
of
Trustee’s oversight responsibility with respect thereto.
|
11.
|
Term
of Agreement; Amendment;
Assignment
|
|
A.
|
This
Agreement shall become effective with respect to each Fund listed
on
Exhibit 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
Exhibit
A to this Agreement relating to that Fund is
executed. Unless sooner terminated as provided herein, this
Agreement shall continue in effect for two years from the date
hereof. Thereafter, if not terminated, this Agreement shall
continue in effect automatically 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 a 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 not less than 60 days’ written notice, by either
the Trust upon the vote of a majority of the members of its Board
who are
not “interested persons” of the Trust and have no direct or indirect
financial interest in the operation of this Agreement, or by vote
of a
“majority of the outstanding voting securities” of a Fund, or by the
Distributor. The terms of this Agreement shall not be waived,
altered, modified, amended or supplemented in any manner whatsoever
except
by a written instrument signed by the Distributor and the
Trust. 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
a vote cast in person at a meeting for the purpose of voting on
such
amendment. In the event that such amendment affects the
Advisor, the written instrument shall also be signed by the
Advisor. This Agreement will automatically terminate in the
event of its “assignment.”
|
|
C.
|
As
used in this Section, 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.
|
|
D.
|
Sections
7 and 8 shall survive termination of this
Agreement.
|
11
|
12.
|
Duties
in the Event of
Termination
|
In
the
event that, in connection with termination, a successor to any of the
Distributor’s duties or responsibilities hereunder is designated by the Trust by
written notice to the Distributor, the Distributor will promptly, upon such
termination and at the expense of the Trust, transfer to such successor all
relevant books, records, correspondence, and other data established or
maintained by the Distributor under this Agreement in a form reasonably
acceptable to the Trust (if such form differs from the form in which the
Distributor has maintained the same, the Trust shall pay any expenses associated
with transferring the data to such form), and will cooperate in the transfer
of
such duties and responsibilities, including provision for assistance from
the
Distributor’s personnel in the establishment of books, records, and other data
by such successor. If no such successor is designated, then such
books, records and other data shall be returned to the Trust.
13. Early
Termination
In
the absence of any material breach
of this Agreement, should the Trust elect to terminate this Agreement prior
to
the end of the term, the Trust agrees to pay the following fees:
|
a.
|
all
monthly fees through the life of the contract, including the rebate
of any
negotiated discounts;
|
|
b.
|
all
fees associated with converting services to successor service
provider;
|
|
c.
|
all
fees associated with any record retention and/or tax reporting
obligations
that may not be eliminated due to the conversion to a successor
service
provider;
|
|
d.
|
all
out-of-pocket costs associated with a-c
above.
|
14. 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.
15. No
Agency Relationship
Nothing
herein contained shall be deemed to authorize or empower either party to
act as
agent for the other party to this Agreement, or to conduct business in the
name,
or for the account, of the other party to this Agreement.
16. Services
Not Exclusive
Nothing
in this Agreement shall limit or restrict the Distributor from providing
services to other parties that are similar or identical to some or all of
the
services provided hereunder.
12
17. Invalidity
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. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties.
18. Notices
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 three 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 as
set forth below:
Notice
to
the Distributor shall be sent to:
Quasar
Distributors, LLC
Attn: President
000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
notice
to
the Trust shall be sent to:
U.S.
Bancorp Fund Services, LLC
000
X.
Xxxxxxxx
Xxxxxxxxx,
XX 00000
and
notice to the Advisor shall be sent to:
Thunderstorm
Mutual Funds
LLC
Xxx
Xxxxxxx Xx.
Xxxxxx,
XX 00000
19. Multiple
Originals
This
Agreement may be executed on two or more counterparts, each of which when
so
executed shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
13
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
a duly authorized officer on one or more counterparts as of the date first
above
written.
The
parties hereby agree that the Distribution Services provided by Quasar
Distributors, LLC will commence on or after September 20,
2007.
| TRUST FOR PROFESSIONAL MANAGERS | QUASAR DISTRIBUTORS, LLC |
| By: /s/ Xxxxxx Xxxxxxxxx | By: /s/ Xxxxx X. Xxxxxxxxx |
| Name: Xxxxxx Xxxxxxxxx | Name: Xxxxx X. Xxxxxxxxx |
| Title: Chairman | Title: President |
| THUNDERSTORM MUTUAL FUNDS LLC | |
| (with respect to section 5 only) | |
| By: /s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | |
| Title: Chairman |
14
Exhibit
A
to
the
Fund
Names
| Name of Series |
Date
Added
|
| Xxxxxxx Value Fund |
on
or after October 24, 2007
|
A-1
