BLUE SKY REGISTRATION AGREEMENT
THIS
AGREEMENT effective as of the 1st day of October, 2009, by and among Xxxxxxxx Funds, Inc., a
Maryland corporation (the “Company”), and Quasar Distributors, LLC, a
Delaware limited liability company (“Quasar”).
WHEREAS,
the Company is registered under the Investment Company Act of 1940, as amended
(“1940 Act”), as an open-end diversified management Company, and is authorized
to issue shares of beneficial interests (“Shares”) of the Xxxxxxxx Blue Chip Growth
Fund (the Fund(s)”);
WHEREAS,
the Company desires to retain Quasar as an agent in connection with the Blue Sky
registration of the Shares of the Fund;
WHEREAS,
Quasar 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 (the “FINRA”); and
WHEREAS,
Quasar is willing to act as an agent for the Company on the terms and conditions
hereinafter set forth.
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. Appointment
of Quasar.
The
Company hereby appoints Quasar as its agent for the Blue Sky registration of
certain Shares of the Funds, subject to the terms and for the period set forth
in this Agreement. Quasar hereby accepts such appointment and agrees
to act hereunder.
2. Services
and Duties of Quasar.
(a) Quasar
agrees to serve as agent for the Blue Sky registration of Shares of the Fund in
compliance with state securities laws, or other jurisdictions as may be mutually
agreed upon by the Company and Quasar.
(b) The
services furnished by Quasar hereunder are not to be deemed exclusive and Quasar
shall be free to furnish similar services to others so long as its services
under this Agreement are not impaired thereby. Quasar and the Company
recognize that from time to time officers and employees of Quasar may serve as
directors, trustees, officers and employees of other entities (including
investment Company), that such other entities may include the name of Quasar as
part of their name and that Quasar or its affiliates may enter into
distribution, administration, fund accounting, transfer agent or other
agreements with such other entities.
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3. Duties
and Representations of the Company.
(a) The
Company represents that it is duly organized and in good standing under the law
of its jurisdiction of incorporation and registered as an open-end management
investment company under the 1940 Act. The Company agrees that it
will act in material conformity with its Articles of Incorporation, By-Laws, its
Registration Statement as may be amended from time to time and resolutions and
other instructions of its Board. The Company agrees to comply in all
material respects with the 1933 Act, the 1940 Act, and all other applicable
federal and state laws and regulations. The Company represents and
warrants that this Agreement has been duly authorized by all necessary action by
the Company under the 1940 Act, state law and the Company’ Articles of
Incorporation and By-Laws.
(b) The
Company agrees to advise Quasar promptly in writing:
(i) of
any correspondence or other communication by 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;
and
(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.
4. Compensation.
As
compensation for the services performed and the expenses assumed by Quasar under
this Agreement Quasar shall be entitled to the fees and expenses set forth in
Schedule A to this Agreement which are payable promptly after the last day of
each month. Such fees shall be paid to Quasar by the
Fund.
5. Expenses.
(a) The
Fund shall bear all costs and expenses in connection with registration of the
Shares with the SEC and related compliance with state securities
laws.
(b) Quasar
shall bear the expenses of registration or qualification of Quasar as a dealer
or broker under federal or state laws and the expenses of continuing such
registration or qualification. Quasar does not assume responsibility for any
expenses not expressly assumed hereunder.
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6. Indemnification.
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(a) Company
shall indemnify and hold harmless Quasar and its respective affiliates,
officers, directors, agents, employees and controlling persons from all direct
or indirect liabilities, losses or costs (including reasonable attorneys’ fees)
arising from, related to or otherwise connected with any breach by Company of
any provision of this Agreement.
(b) Quasar
shall indemnify and hold harmless the Company and its affiliates, officers,
directors, agents, employees and controlling persons from and against any and
all direct or indirect liabilities, losses or costs (including reasonable
attorneys’ fees) arising from, related to or otherwise connected with any breach
by Quasar of any provision of this Agreement.
(c) The
Agreement of the parties in this Paragraph to indemnify each other is
conditioned upon the party entitled to indemnification (the “Indemnified Party”)
notifying the other party (the “Indemnifying Party”) promptly after the summons
or other first legal process for any claim as to which indemnity may be sought
is served on the Indemnified Party, unless failure to give such notice does not
prejudice the Indemnifying Party. The Indemnified Party shall permit
the Indemnifying Party to assume the defense of any such claim or any litigation
resulting from it, provided that counsel for the Indemnifying Party who shall
conduct the defense of such claim or litigation shall be approved by the
Indemnified Party (which approval shall not unreasonably be withheld), and that
the Indemnified Party may participate in such defense at its
expense. The failure of the Indemnified Party to give notice as
provided in this subparagraph (c) shall not relieve the Indemnifying Party from
any liability other than its indemnity obligation under this
Paragraph. No Indemnifying Party, in the defense of any such claim or
litigation, shall, without the written consent of the Indemnified Party, consent
to entry of any judgment or enter into any settlement that does not include as
an unconditional term the giving by the claimant or plaintiff to the Indemnified
Party of a release from all liability in respect to such claim or
litigation.
7. Obligations
of Company.
This
Agreement is executed by and on behalf of the Company and the obligations of the
Company hereunder are not binding upon any of the directors, officers or
shareholders of the Company individually but are binding only upon the Company
and with respect to the Fund to which such obligations pertain.
8. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original agreement but all of which counterparts shall together
constitute but one and the same instrument.
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9. 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.
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10. Duration and
Termination.
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(a) This
Agreement shall become effective with respect to the Fund as of the date
hereof. Unless sooner terminated as provided herein, this Agreement
shall continue in effect for one year from the date hereof shall continue in
effect until terminated. Either party may terminate this agreement on
60 days’ written notice.
11. Confidentiality.
Quasar
agrees on behalf of its employees to treat all records relative to the Company
and prior, present or potential shareholders of the Company as confidential, and
not to use such records for any purpose other than performance of Quasar’s
responsibilities and duties under this Agreement, except after notification and
prior approval by the Company, which approval shall not be unreasonably
withheld, and may not be withheld where Quasar may be exposed to civil or
criminal proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, when subject to governmental or
regulatory audit or investigation, or when so requested by the
Company. Records and information which have become known to the
public through no wrongful act of Quasar or any of its employees, agents or
representatives shall not be subject to this paragraph.
12. Miscellaneous.
The
captions in this Agreement are included for convenience of reference only and in
no way define or delimit any of the provisions hereof or otherwise affect their
construction or effect. Any provision of this Agreement which may be
determined by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors. As
used in this Agreement, the terms “majority of the outstanding voting
securities,” “interested person,” and “assignment” shall have the same meaning
as such terms have in the 1940 Act.
13. Notice.
Any
notice required or permitted to be given by any party to the others shall be in
writing and shall be deemed to have been given on the date delivered personally
or by courier service or 3 days after sent by registered or certified mail,
postage prepaid, return receipt requested or on the date sent and confirmed
received by facsimile transmission to the other parties’ respective addresses
set forth below:
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Notice to
Quasar shall be sent to:
Quasar
Distributors, LLC
Attn: President
000 Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
notice to
the Company shall be sent to:
U.S.
Bancorp Fund Services, LLC
Fund
Administration & Compliance
Attn:
Xxxxxxx X. Xxxxxx
XX-WI-T5F
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their officers designated as of the day and year first above
written.
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Xxxxxxxx
Funds, Inc.
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Quasar
Distributors, LLC
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By:
/s/ Xxxxxxxxx Xxxxxxxx
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By:
/s/ Xxxxx X. Xxxxxxxxx
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Title: President
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Title: Xxxxx
X. Xxxxxxxxx, President
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SCHEDULE
A
to
the
by
and between
Xxxxxxxx
Funds, Inc.
and
Quasar
Distributors, LLC
Fees
Basic Distribution
Services
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$_____
per month, to be paid monthly, all
funds
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Out-of-Pocket
Expenses
Reasonable
out-of-pocket expenses incurred by Quasar in connection with activities
primarily intended to result in the sale of Shares, including, without
limitation:
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·
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overnight
delivery charges
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·
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record
retention
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