DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT
(this “Agreement”) is made as of this 8th day of
September 2010, between and among RiverPark Funds Trust (the “Trust”), a Delaware
statutory trust, RiverPark Advisors, LLC (solely as relating to its obligations
set forth in Section 7.3 and Schedule C of this Agreement), a ___________
limited liability company, as investment advisor to the Trust (“Investment Advisor”)
and SEI Investments Distribution Co. (the “Distributor”), a
Pennsylvania corporation.
WHEREAS, the Trust is
registered as an investment company with the U.S. Securities and Exchange
Commission (the “SEC”) under the
Investment Company Act of 1940, as amended (the “1940 Act”), and its
shares of beneficial interest (“Shares”) are
registered with the SEC under the Securities Act of 1933, as amended (the “1933 Act”);
and
WHEREAS, the Distributor is
registered as a broker-dealer with the SEC under the Securities Exchange Act of
1934, as amended (the “1934 Act”) and is a
member of Financial Industry Regulatory Authority, Inc. (“FINRA”);
and
WHEREAS, the Trust wishes to
retain the Distributor to serve as distributor of each class or series of the
Trust (each a “Fund” and
collectively, the “Funds”) identified on
Schedule A
hereto, as from time to time amended, and for such additional classes or Funds
that the Trust may issue, on the terms and conditions set forth
below.
NOW, THEREFORE, in
consideration of the mutual covenants hereinafter contained and intending to be
legally bound, the parties hereby agree as follows:
SECTION
1 APPOINTMENT
1.1 Principal
Underwriter. The Trust hereby appoints Distributor as its principal
underwriter and distributor of Shares of the Funds and to provide such other
services in accordance with the terms set forth in this Agreement, Distributor
accepts such appointment and agrees to furnish certain related services as set
forth in this Agreement.
1.2 Direct Sales.
Notwithstanding Distributor’s appointment as principal underwriter and
distributor of Shares of the Funds, the Trust and each Fund reserve the right to
make direct sales of Shares without sales charges consistent with the terms of
the then current Prospectus, and to engage in other legally authorized
transactions in its Shares which do not involve the sale of Shares to the
general public. As used in this Agreement, the term, “Prospectus” means any
prospectus, registration statement, statement of additional information, proxy
solicitation and tender offer materials, annual or other periodic report of the
Trust or any Fund of the Trust or any advertising, marketing, shareholder
communication, or promotional material generated by the Trust or its Investment
Advisor from time to time, as appropriate, including all amendments or
supplements thereto and applicable law. Such other transactions may include,
without limitation, transactions between the Trust or any Fund or class and its
shareholders only; transactions involving the reorganization of the Trust or any
Fund; and transactions involving the merger or combination of the Trust or any
Fund with another corporation or trust.
SECTION
2 SOLICITATION OF SALES AND
OTHER SERVICES
2.1 Solicitation of
Sales. The Trust grants to Distributor the right to sell its Shares
authorized for issue, at the net asset value per Share, plus any applicable
sales charges, in accordance with the Prospectus, as agent and on behalf of the
Trust, during the term of this Agreement and subject to the registration
requirements of the 1933 Act, the rules and regulations of the SEC and the laws
governing the sale of securities in the various states (“Blue Sky Laws”).
Distributor will have the right, as agent, to sell shares of a Fund indirectly
to the public through broker-dealers which are members of FINRA and which are
acting as introducing brokers pursuant to clearing agreements with Distributor;
to broker-dealers which are members of FINRA and who have entered into selling
agreements with Distributor; or through other financial intermediaries, in each
case against orders therefore. In consideration of these rights granted to the
Distributor, the Distributor agrees to use all reasonable efforts to secure
purchasers for shares of the Trust; provided, however, that the
Distributor will not be prevented from entering into like arrangements
(including arrangements involving the payment of underwriting commissions) with
other issuers. The provisions of this paragraph do not obligate the Distributor
to register as a broker or dealer under the Blue Sky Laws of any jurisdiction or
laws of any foreign jurisdiction in which it is not now registered or to
maintain its registration in any jurisdiction in which it is now registered or
obligate the Distributor to sell any particular number of Shares. The
Distributor will not direct remuneration from commissions paid by the Trust for
portfolio securities transactions to a broker or dealer for promoting or selling
Fund Shares. The Trust reserves the right to refuse at any time or times to sell
any of its Shares for any reason deemed adequate by it. All orders through the
Distributor will be subject to acceptance and confirmation by the
Trust.
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2.2 Other Services.
Without limiting the foregoing, the Distributor will perform or supervise the
performance by others of the additional services set forth herein, including
those set forth in Schedule B, attached hereto.
SECTION
3 REPRESENTATIONS, WARRANTIES AND
COVENANTS
3.1 Representations, Warranties
and Covenants of the Trust. The Trust represents, warrants and covenants
that:
(a) it
is duly organized, validly existing and in good standing under the laws of the
state of its formation, and has all requisite power under the laws of such state
and applicable federal law to conduct its business as now being conducted and to
perform its obligations as contemplated by this Agreement;
(b) this
Agreement has been duly authorized by the board of trustees of the Trust,
including by unanimous affirmative vote of all of the independent directors of
the Trust; and when executed and delivered by the Trust, will constitute a
legal, valid and binding obligation of the Trust, enforceable against the Trust
in accordance with its terms;
(c) it
shall timely perform all obligations identified in this Agreement as obligations
of the Trust, including, without limitation, providing the Distributor with all
marketing materials reasonably requested by the Distributor and giving all
necessary consents or approvals in good faith and within a timely
manner;
(d) it
is not a party to any, and there are no, pending or threatened legal,
administrative, arbitral or other proceedings, claims, actions or governmental
or regulatory investigations or inquiries (collectively, “Actions”) of any
nature against it, its advisor or its properties or assets which could,
individually or in the aggregate, have a material effect upon its business or
financial condition, and there is no injunction, order, judgment, decree, or
regulatory restriction imposed upon it or any of its properties or
assets;
(e) it
is an investment company that is duly registered under all applicable laws and
regulations, including, without limitation the 1940 Act, and each Fund is a
separate series of the Trust;
(f) it
is and will continue to be in compliance with all applicable laws and
regulations aimed at the prevention and detection of money laundering and/or the
financing of terrorism activities including Bank Secrecy Act, as amended by USA
PATRIOT Act, U.S. Treasury Department, including the Office of Foreign Asset
Control (“OFAC”), Financial
Crimes and Enforcement Network (“FinCEN”) and the
SEC
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(g) it
has an anti-money laundering program (“AML Program”), that
at minimum includes, (i) an AML compliance officer designated to administer and
oversee the AML Program, (ii) ongoing training for appropriate personnel, (iii)
internal controls and procedures reasonably designed to prevent and detect
suspicious activity monitoring and terrorist financing activities; (iv)
procedures to comply with know your customer requirements and to verify the
identity of all customers; and (v) appropriate record keeping
procedures;
(h) each
Prospectus has been prepared in accordance with all applicable laws and
regulations and, at the time such Prospectus was filed with the SEC and became
effective, no Prospectus will include an untrue statement of a material fact or
omit to state a material fact that is required to be stated therein so as to
make the statements contained in such Prospectus not misleading;
(i) it
will notify the Distributor as soon as reasonably practical in advance of any
matter which could materially affect the Distributor’s performance of its duties
and obligations under this Agreement, including any amendment to the
Prospectus;
(j) it
will provide Distributor with a copy of each Prospectus as soon as reasonably
possible prior to or contemporaneously with filing the same with an applicable
regulatory body;
(k) it
shall fully cooperate with requests from government regulators and the
Distributor for information relating to customers and/or transactions involving
the Shares, as permitted by law, in order for the Distributor to comply with its
regulatory obligations; and
(l) in
the event it determines that it is in the interest of the Trust to suspend or
terminate the sale of any Shares, the Trust shall promptly notify the
Distributor of such fact in advance and in writing prior to the date on which
the Trust desires to cease offering the Shares.
3.2 Representations, Warranties
and Covenants of Distributor. Distributor
hereby represents, warrants and covenants as follows:
(a) it
has full power, right and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby; the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly approved by all requisite actions on its part, and no
other proceedings on its part are necessary to approve this Agreement or to
consummate the transactions contemplated hereby; this Agreement has been duly
executed and delivered by it; this Agreement constitutes a legal, valid and
binding obligation, enforceable against it in accordance with its
terms;
(b) it
is not a party to any, and there are no, pending or threatened Actions of any
nature against it or its properties or assets which could, individually or in
the aggregate, have a material effect upon its business or financial condition,
and there is no injunction, order, judgment, decree, or regulatory restriction
imposed specifically upon it or any of its properties or assets;
(c) it
is registered as a broker-dealer with the SEC under the 1934 Act and a member of
FINRA;
(d) it
shall not give any information or to make any representations other than those
contained in the current Prospectus of the Company filed with the SEC or
contained in shareholder reports or other material that may be prepared by or on
behalf of the Company for the Distributor’s use; and
(e) it
may prepare and distribute sales literature and other material as it may deem
appropriate, provided that such literature and materials have been prepared in
accordance with applicable rules and regulations.
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INVESTMENTS DISTRIBUTION CO.
SECTION
4 REGISTRATION OF
SHARES
The Trust
agrees that it will take all action necessary to register Shares under the
federal and state securities laws so that there will be available for sale the
number of Shares the Distributor (and each financial intermediary, as
applicable) may reasonably be expected to sell and to pay all fees associated
with said registration. The Trust will make available to the Distributor such
number of copies of its Prospectus as the Distributor may reasonably request.
The Trust will furnish to the Distributor copies of all information, financial
statements and other papers which the Distributor may reasonably request for use
in connection with the distribution of Shares of the Trust.
SECTION
5 AGREEMENTS WITH FINANCIAL
INTERMEDIARIES
The
Distributor will have the right to enter into agreements with financial
intermediaries of its choice for the sale of Shares and to fix therein the
portion of the sales charge, if any, that may be allocated to the financial
intermediaries on such terms and conditions as the Distributor will deem
necessary or appropriate. Shares sold to financial intermediaries will be for
resale by such intermediaries only at the public offering price set forth in the
applicable Prospectus or as otherwise permissible under the federal and state
securities laws. With respect to financial intermediaries who are acting as
brokers or dealers within the United States, the Distributor will offer and sell
Shares, as agent for the Trust, only to such financial intermediaries who are
members in good standing of FINRA. The Trust acknowledges that Distributor may
act as the Trust’s agent for transmitting, or arranging for transmission of,
distribution and/or shareholder servicing fees to be paid to financial
intermediaries in accordance with arrangements between the Trust and such
financial intermediaries.
SECTION
6 EXPENSES
6.1 Trust Expenses. The
Trust will cause each Fund to pay its pro rata share of all fees and expenses
(i) in connection with the preparation, setting in type and filing of any
Prospectus under the 1933 Act and amendments for the issue of its Shares; (ii)
in connection with the registration and qualification of Shares for sale in the
various states in which the Board of Trustees of the Trust will determine
advisable to qualify such Shares for sale; (iii) of preparing, setting in type,
printing and mailing any report or other communication to shareholders of the
Trust in their capacity as such; and (iv) of preparing, setting in type,
printing and mailing any Prospectus sent to existing shareholders.
6.2 Distributor Expenses.
Distributor will pay all of its costs and expenses (other than expenses and
costs deemed payable by the Funds and other than expenses which one or more
dealers may bear pursuant to any agreement with Distributor) incurred by it in
connection with the performance of its distribution duties
hereunder.
SECTION
7 COMPENSATION
7.1 Compensation to
Distributor. As compensation for providing the services under this
Agreement, the Distributor will receive from each Fund:
(a) all
distribution and service fees, as applicable, at the rate and under the terms
and conditions set forth in each Fund’s distribution plan established pursuant
to Rule 12b-1 under the 1940 Act (each, a “Distribution Plan”)
and/or shareholder services and similar plans applicable to the appropriate
class of shares of each Fund, as such plans may be amended from time to time,
and subject to any further limitations on such fees as the Board of Trustees of
the Trust may impose;
(b) all
front-end sales charges, if any, on purchases of Shares of each Fund sold
subject to such charges as described in the Trust’s Prospectus, as amended from
time to time. The Distributor, or brokers, dealers and other financial
institutions and intermediaries that have entered into sub-distribution
agreements with the Distributor, may collect the gross proceeds derived from the
sale of such Shares, remit the net asset value thereof to the Trust upon receipt
of the proceeds and retain the applicable sales charge; and
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(c) all
contingent deferred sales charges (“CDSC”), if any,
applied on redemptions of Shares subject to such charges on the terms and
subject to such waivers as are described in the Trust’s Prospectus, or as
otherwise required pursuant to applicable law.
7.2 Payments to Financial
Intermediaries. The Distributor may re-allow any or all of the
distribution or service fees, front-end sales charges and CDSCs that it is paid
by the Funds to such brokers, dealers and other financial institutions and
intermediaries as the Distributor may from time to time determine.
7.3 Additional
Compensation. In addition to the foregoing, the Trust will cause each
Fund to pay to Distributor its pro rata share of the annual fees set forth in
Schedule C
hereto for providing the Funds the services set forth therein. To the extent the
Funds have implemented Distribution Plans and/or shareholder servicing plans
that permit and authorize such compensation to be paid to the Distributor and
the Board of Trustees has given any necessary authorizations, the Funds will be
responsible for such compensation, or portion thereof, as have been authorized
under the applicable Distribution Plans and/or shareholder servicing plans and
which are available for such payment after the Distributor has re-allowed
applicable distribution and/or service fees to brokers, dealers and other
financial intermediaries as contemplated in Section 7.1 hereof.
The parties acknowledge that the Distributor expects to pay out substantially
all amounts it receives under the Funds’ Distribution Plans pursuant to Section 7.1. The
parties acknowledge, that to the extent proceeds received by the Distributor
pursuant to the Funds’ distribution and/or shareholder servicing plans are not
sufficient to cover the annual fee (or other expenses) payable to Distributor,
the Fund’s Investment Advisor may make such payment to Distributor from the past
profits or other resources of the Investment Advisor, including management fees
paid by the Trust. The parties further acknowledge that to the extent that fees
payable to the Distributor are paid by the Investment Advisor, the Investment
Advisor shall be responsible for making all disclosures of such payments to the
Board of Trustees.
7.4 Commissions.
Distributor may participate directly or indirectly in brokerage commissions or
“spreads” for transactions in portfolio securities of the Trust that are bought
or sold through Distributor.
SECTION
8 INDEMNIFICATION;
CONTRIBUTION; LIMITATION OF LIABILITY
8.1 Indemnification of
Distributor. The Trust agrees to indemnify, defend and hold harmless, the
Distributor, each of its directors, officers, employees and each person, if any,
who controls, is controlled by or is under common control with, the Distributor
within the meaning of Section 15 of the 1933 Act (collectively, the “Distributor Indemnified
Parties”) from and against any and all losses, claims, damages or
liabilities, joint or several, whatsoever (including any investigation, legal or
other expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted) to which the
Distributor Indemnified Parties may become subject, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Prospectus or any document incorporated by reference therein or filed as an
exhibit thereto, or any marketing literature or materials distributed on behalf
of the Trust with respect to the securities covered by the Prospectus (the
“Covered
Documents”) or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse the Distributor for any legal or other
expenses reasonably incurred by the Distributor in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that the Trust shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Covered Documents about the Distributor in reliance upon and in
conformity with written information furnished to the Trust by the Distributor
expressly for use therein.
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8.2 Indemnification
of the Trust.
Distributor will
indemnify and hold
harmless the Trust, each of its directors, officers, employees and each
person, if any, who controls, is controlled by or is under common control with,
the Trust within the meaning of Section 15 of the 1933 Act (collectively, the
“Trust
Indemnified Parties”) from and against any and all losses, claims,
damages or liabilities, joint or several, whatsoever (including any
investigation, legal or other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted) to which the Trust Indemnified Parties may become subject, to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Covered Document, in
reliance upon and in conformity with written information furnished to the Trust
by the Distributor about the Distributor expressly for use therein.
8.3 Indemnification
Procedures.
(a) If
any action or claim shall be brought against any Distributor Indemnified Party
or Trust Indemnified Party (any such party, an “Indemnified Party”
and collectively, the “Indemnified
Parties”), in respect of which indemnity may be sought against the other
party hereto, such Indemnified Party shall promptly notify the indemnifying
party in writing, and the indemnifying party shall assume the defense thereof,
including the employment of counsel and payment of all fees and expenses; but
the omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party except to the extent such
indemnifying party has been materially prejudiced by such failure.
(b) Any
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
indemnifying party has agreed in writing to pay such fees and expenses, (ii) the
indemnifying party has failed to assume the defense and employ counsel, or (iii)
the named parties to any such action (including any impleaded party) included
such Indemnified Party and the indemnifying party and such Indemnified Party
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying party or which may also result in a conflict of interest (in which
case if such Indemnified Party notifies the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action on behalf of
such Indemnified Party, it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all such
Indemnified Parties.
(c) No
indemnifying party shall, without the written consent of the Indemnified Party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the Indemnified Party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any Indemnified
Party.
(d) The
indemnifying party shall not be liable for any settlement of any such action
effected without its written consent, but if such action is settled with the
written consent of the indemnifying party, or if there shall be a final judgment
for the plaintiff in any such action and the time for filing all appeals has
expired, the indemnifying party agrees to indemnify and hold harmless any
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment.
(e) The
obligations of the indemnifying party under this Section 8 shall be in
addition to any liability that the indemnifying party may otherwise
have.
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8.4 Contribution.
If the indemnification provided for in this Section
8 is insufficient or unavailable to any
Indemnified Party under this Section
8 in respect of
any losses,
claims, damages, liabilities or expenses referred to therein, then the
indemnifying party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative benefits
received by the Trust on the one hand and the Distributor on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the Indemnified
Party failed to give the notice required under Section
8.3(a), above, then each indemnifying party shall contribute to such
amount paid or payable by such Indemnified Party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Trust on the one hand and the Distributor on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Trust on the one hand and the Distributor on the other shall be deemed to be in
the same proportion as the amount of gross proceeds received by the Trust from
the offering of the Shares under this Agreement (expressed in dollars) bears to
the net profits received by the Distributor under this Agreement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Trust
on the one hand or the Distributor on the other and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Trust and the Distributor agree that it would
not be just and equitable if contributions pursuant to this Section
8.4 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to herein. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above shall be deemed to include any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
8.5 Consequential
Damages. In no event and under no circumstances will either party to this
Agreement be liable to anyone, including, without limitation, the other party,
for consequential damages for any act or failure to act under any provision of
this Agreement.
8.6 Limitation of
Liability. A copy of the Declaration of Trust establishing the Trust is
on file in the Office of the Secretary of State of the State of Delaware, and
notice is hereby given that this Agreement is executed on behalf of the Trustees
of the Trust as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or shareholders of
the Trust individually but binding only upon the assets and property of the
Trust.
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SECTION
9 TERM AND
TERMINATION
This
Agreement will be effective upon its execution, and, unless terminated as
provided, will continue in force for two years and thereafter from year to year,
provided that such annual continuance is approved by either (i) the vote of a
majority of the Trustees of the Trust, or the vote of a majority of the
outstanding voting securities of the Trust and (ii) the vote of a majority of
those Trustees of the Trust who are not parties to this Agreement or the Trust’s
distribution plan(s) or interested persons of any such party (“Qualified Trustees”),
cast in person at a meeting called for the purpose of voting on the approval.
This Agreement may be terminated at any time without penalty by a vote of the
Trustees; by vote of a majority of the outstanding voting securities of the
Trust; or by the Distributor upon not less than sixty days prior written notice
to the other party; and shall automatically terminate upon its assignment. As
used in this paragraph the terms, “vote of a majority of the outstanding voting
securities,” “assignment” and “interested person” will have the respective
meanings specified in the 1940 Act. In the event the Trust gives notice of
termination, all expenses associated with the movement (or duplication) of
records and materials and conversion thereof to a successor service provider,
and all trailing expenses incurred by Distributor, will be borne by the
Trust.
SECTION
10 MISCELLANEOUS
10.1 Records. The books
and records pertaining to the Trust, which are in the possession or under the
control of Distributor, will be the property of the Trust. Such books and
records will be prepared and maintained as required under the 1940 Act and other
applicable securities laws, rules and regulations. The Trust and its authorized
persons will have access to such books and records at all times during the
Distributor’s normal business hours. Upon the reasonable request of the Trust,
the Distributor will provide copies of such books and records to the Trust or
its authorized persons, at the Trust’s expense.
10.2 Independent
Contractor. The Distributor will undertake and discharge its obligations
hereunder as an independent contractor. Neither Distributor nor any of its
officers, directors, employees or representatives is or will be an employee of a
Fund in connection with the performance of Distributor’s duties hereunder.
Distributor will be responsible for its own conduct and the employment, control,
compensation and conduct of its agents and employees, and for any injury to such
agents or employees or to others through its agents and employees. Any
obligations of Distributor hereunder may be performed by one or more third
parties or affiliates of Distributor.
10.3 Notices. All notices
provided for or permitted under this Agreement will be deemed effective upon
receipt, and will be in writing and (a) delivered personally, (b) sent by
commercial overnight courier with written verification of receipt, or (c) sent
by certified or registered U.S. mail, postage prepaid and return receipt
requested, to the party to be notified, at the address for such party set forth
below. Notices to the Distributor will be sent to the attention of': General
Counsel, SEI Investments Distribution Co., 0 Xxxxxxx Xxxxxx Xxxxx, Xxxx,
Xxxxxxxxxxxx 00000. Notices to the Trust will be sent to RiverPark Advisors, LLC
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
10.4 Dispute Resolution.
Whenever either party desires to institute legal proceedings against the other
party concerning this Agreement, it will provide written notice to that effect
to such other party. The party providing such notice will refrain from
instituting said legal proceedings for a period of thirty (30) days following
the date of provision of such notice. During such period, the parties will
attempt in good faith to amicably resolve their dispute by negotiation among
their executive officers.
10.5 Entire Agreement:
Amendments. This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement, draft or agreement or
proposal with respect to the subject matter hereof. This Agreement or any part
hereof may be amended or waived only by an instrument in writing signed by the
party against which enforcement of such amendment or waiver is
sought.
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INVESTMENTS DISTRIBUTION CO.
10.6 Non-Solicitation.
During the term of this Agreement and for a period of one (1) year afterward,
the Trust will not recruit, solicit, employ or engage, for the Trust or any
other person, any of the Distributor’s employees.
10.7 Governing Law. This
Agreement will be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania without giving effect to any conflict of laws or
choice of laws rules or principles thereof. To the extent that the applicable
laws of the Commonwealth of Pennsylvania, or any of the provisions of this
Agreement, conflict with the applicable provisions of the 1940 Act, the latter
will control.
10.8 Counterparts. This
Agreement may be executed in two or more counterparts, all of which will
constitute one and the same instrument. Each such counterpart will be deemed an
original, and it will not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart. This Agreement will be
deemed executed by both parties when any one or more counterparts hereof or
thereof, individually or taken together, bears the original, scanned or
facsimile signatures of each of the parties.
10.9 Force Majeure. No
breach of any obligation of a party to this Agreement (other than obligations to
pay amounts owed) will constitute an event of default or breach to the extent it
arises out of a cause, existing or future, that is beyond the control and
without negligence of the party otherwise chargeable with breach or default,
including without limitation: work action or strike; lockout or other labor
dispute; flood; war; riot; theft; act of terrorism, earthquake or natural
disaster. Either party desiring to rely upon any of the foregoing as an excuse
for default or breach will, when the cause arises, give to the other party
prompt notice of the facts which constitute such cause; and, when the cause
ceases to exist, give prompt notice thereof to the other party.
10.10 Severability. Any
provision of this Agreement that is determined to be invalid or unenforceable in
any jurisdiction will be ineffective to the extent of such invalidity or
unenforceability in such jurisdiction, without rendering invalid or
unenforceable the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction. If a
court of competent jurisdiction declares any provision of this Agreement to be
invalid or unenforceable, the parties agree that the court making such
determination will have the power to reduce the scope, duration, or area of the
provision, to delete specific words or phrases, or to replace the provision with
a provision that is valid and enforceable and that comes closest to expressing
the original intention of the parties, and this Agreement will be enforceable as
so modified.
10.11 Confidential
Information.
(a) The
Distributor and the Trust (in such capacity, the “Receiving Party”)
acknowledge and agree to maintain the confidentiality of Confidential
Information (as hereinafter defined) provided by the Distributor and the Trust
(in such capacity, the “Disclosing Party”) in
connection with this Agreement. The Receiving Party will not disclose or
disseminate the Disclosing Party’s Confidential Information to any Person other
than (a) those employees, agents, contractors, subcontractors and licensees of
the Receiving Party, or (b) with respect to the Distributor as a Receiving
Party, to those employees, agents, contractors, subcontractors and licensees of
any agent or affiliate, who have a need to know it in order to assist the
Receiving Party in performing its obligations, or to permit the Receiving Party
to exercise its rights under this Agreement. In addition, the Receiving Party
(a) will take all reasonable steps to prevent unauthorized access to the
Disclosing Party’s Confidential Information, and (b) will not use the Disclosing
Party’s Confidential Information, or authorize other Persons to use the
Disclosing Party’s Confidential Information, for any purposes other than in
connection with performing its obligations or exercising its rights hereunder.
As used herein, “reasonable steps” means steps that a party takes to protect its
own, similarly confidential or proprietary information of a similar nature,
which steps will in no event be less than a reasonable standard of
care.
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SEI
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THIS
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INVESTMENTS DISTRIBUTION CO.
(b) The
term “Confidential
Information,” as used herein, will mean all business strategies, plans
and procedures, proprietary information, methodologies, data and trade secrets,
and other confidential information and materials (including, without limitation,
any non-public personal information as defined in Regulation S-P) of the
Disclosing Party, its affiliates, their respective clients or suppliers, or
other Persons with whom they do business, that may be obtained by the Receiving
Party from any source or that may be developed as a result of this
Agreement.
(c) The
provisions of this Section 10.12
respecting Confidential Information will not apply to the extent, but only to
the extent, that such Confidential Information is: (a) already known to the
Receiving Party free of any restriction at the time it is obtained from the
Disclosing Party, (b) subsequently learned from an independent third party free
of any restriction and without breach of this Agreement; (c) or becomes publicly
available through no wrongful act of the Receiving Party or any third party; (d)
independently developed by or for the Receiving Party without reference to or
use of any Confidential Information of the Disclosing Party; or (e) required to
be disclosed pursuant to an applicable law, rule, regulation, government
requirement or court order, or the rules of any stock exchange (provided,
however, that the Receiving Party will advise the Disclosing Party of such
required disclosure promptly upon learning thereof in order to afford the
Disclosing Party a reasonable opportunity to contest, limit and/or assist the
Receiving Party in crafting such disclosure).
(d) The
Receiving Party will advise its employees, agents, contractors, subcontractors
and licensees, and will require its agents and affiliates to advise their
employees, agents, contractors, subcontractors and licensees, of the Receiving
Party’s obligations of confidentiality and non-use under this Section 10.12. and
will be responsible for ensuring compliance by its and its affiliates’
employees, agents, contractors, subcontractors and licensees with such
obligations. In addition, the Receiving Party will require all persons that are
provided access to the Disclosing Party’s Confidential Information, other than
the Receiving Party’s accountants and legal counsel, to execute confidentiality
or non-disclosure agreements containing provisions substantially similar to
those set forth in this Section 10.12. The
Receiving Party will promptly notify the Disclosing Party in writing upon
learning of any unauthorized disclosure or use of the Disclosing Party’s
Confidential Information by such persons.
(e) Upon
the Disclosing Party’s written request following the termination of this
Agreement, the Receiving Party promptly will return to the Disclosing Party, or
destroy, all Confidential Information of the Disclosing Party provided under or
in connection with this Agreement, including all copies, portions and summaries
thereof. Notwithstanding the foregoing sentence, (a) the Receiving Party may
retain one copy of each item of the Disclosing Party’s Confidential Information
for purposes of identifying and establishing its rights and obligations under
this Agreement, for archival or audit purposes and/or to the extent required by
applicable law. and (b) the Distributor will have no obligation to return or
destroy Confidential Information of the Trust that resides in save tapes of
Distributor; provided, however, that in either case all such Confidential
Information retained by the Receiving Party will remain subject to the
provisions of Section
10.12 for so long as it is so retained. If requested by the Disclosing
Party, the Receiving Party will certify in writing its compliance with the
provisions of this paragraph.
10.12 Use of
Name.
(a) The
Trust will not use the name of the Distributor, or any of its affiliates, in any
Prospectus, sales literature, and other material relating to the Trust in any
manner without the prior written consent of the Distributor (which will not be
unreasonably withheld); provided, however, that the
Distributor hereby approves all lawful uses of the names of the Distributor and
its affiliates in the Prospectus of the Trust and in all other materials which
merely refer in accurate terms to their appointment hereunder or which are
required by applicable law, regulations or otherwise by the SEC, FINRA, or any
state securities authority.
(b) Neither
the Distributor nor any of its affiliates will use the name of the Trust in any
publicly disseminated materials, including sales literature, in any manner
without the prior written consent of the Trust (which will not be unreasonably
withheld); provided, however, that the
Trust and each Fund hereby approves all lawful
uses of its name in any required
regulatory filings of the
Distributor which merely refer in accurate terms to the appointment of
the Distributor hereunder, or which are required by applicable law, regulations
or otherwise by the SEC, FINRA, or any state securities authority.
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96634v2 (Rev. 6/2009)
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INVESTMENTS DISTRIBUTION CO.
10.13 Insurance. The
Distributor agrees to maintain liability insurance coverage which is, in scope
and amount, consistent with coverage customary in the industry for distribution
activities similar to the distribution activities provided to the Trust
hereunder. The Distributor will notify the Trust upon receipt of any notice of
material, adverse change in the terms or provisions of its insurance coverage
that may materially and adversely affect the Trust’s rights hereunder. Such
notification will include the date of change and the reason or reasons
therefore. The Distributor will notify the Trust of any material claims against
it, whether or not covered by insurance that may materially and adversely affect
the Trust’s rights hereunder.
*****
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THIS
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INVESTMENTS DISTRIBUTION CO.
IN WITNESS WHEREOF, the Trust and Distributor
have each duly executed this Agreement, as of the day and year above
written.
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SEI
INVESTMENTS DISTRIBUTION CO.
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||||
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By:
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/s/ Xxxxx Xxxxxx |
By:
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/s/ Xxxxxx X. Xxxx | |
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Name:
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Xxxxx Xxxxxx |
Name:
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Xxxxxx X. Xxxx | |
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Title:
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Title:
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CFO & COO | ||
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RiverPark
Advisors, LLC
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By:
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/s/ Xxxxx Xxxxxx |
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Name:
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Xxxxx Xxxxxx |
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Title:
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SEI
96634v2 (Rev. 6/2009)
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF
SEI
INVESTMENTS DISTRIBUTION CO.
SCHEDULE
A
Funds
RiverPark
Large Growth Fund
RiverPark/Wedgewood
Fund
RiverPark
Small Cap Growth Fund
RiverPark
Short Term High Yield Fund
RiverPark/Gravity
Partners Value Fund
RiverPark/Gravity
Long-Biased Fund
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THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF
SEI
INVESTMENTS DISTRIBUTION CO.
SCHEDULE
B
List
of Services
Industry
Agreement Services
Negotiate
and execute sub-distribution agreements with broker/dealers and/or banks on
behalf of Funds
Coordinate
and execute operational agreements (networking agreements, NSCC redemption
agreements, etc.)
Coordinate
and execute 401 (k) agreements and shareholder service agreements with various
record-holders and other financial intermediaries
Coordinate
and execute service agreements with Supermarkets (e.g. Schwab, Fidelity, etc.)
and other financial intermediaries
FINRA
Review
Review
and approve all collateral fund marketing materials for compliance with SEC
& FINRA advertising rules
Conduct
FINRA filing of materials
Respond
to FINRA comments on marketing materials
Review
and file Internet sites according to FINRA policies
Provide
client with copy of SEI’s SEC & FINRA Marketing Materials
Guidebook
Investor
Services
Obtain
toll free lines and call prompters for fund family
Provide
servicing team, consisting of FINRA-licensed representatives, as well as
Interactive
Voice
Response Support to handle investor service calls
Respond
to shareholder questions regarding the fund family
Respond
to shareholder account inquiries
Respond
to shareholder questions regarding financial statements and performance
information
Submit
shareholder requests for literature (only if client chooses fulfillment
services)
Provide
standard management reports on statistics around inbound shareholder
calls
Conduct
routine Q/A testing on all shareholder services representatives
Coordinate
set-up of toll free lines, call prompter services, and consultation on best
practices around call prompters
E-Mail
Response Support
Receive
inbound email into messaging database and generate auto-response verifying
receipt.
Assess
and categorize each inbound email request or question.
Process
appropriate e-mail responses to include both “canned” and “free form”
responses.
Provide
response team consisting of FINRA-licensed reps.
Submit
requests for literature (only if client chooses fulfillment services and website
template)
Provide
standard management reports on statistics around demographics, response rates,
and standards.
Provide
Q/A review of response, conducted by licensed Principal.
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96634v2 (Rev. 6/2009)
THIS
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SEI
INVESTMENTS DISTRIBUTION CO.
SCHEDULE
C
The
Distributor will receive from the Trust, to the extent available pursuant to
Section 7
hereof, fees in the amount of $0.00 annually, payable in
equally monthly installments of $0.00, and
to the extent not available, the Distributor will look solely to the Investment
Advisor or its affiliates for the payment of such fees.
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SEI
INVESTMENTS DISTRIBUTION CO.
