Exhibit (e)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this ___ day of _______, 2006, by and
between Nakoma Mutual Funds, a Delaware statutory trust (the "Trust"), and UMB
Distribution Services, LLC, a Wisconsin limited liability company (the
"Distributor").
WHEREAS, the Trust is an open-end investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act") and is authorized to
issue shares of beneficial interests in separate series with each such series
representing interests in a separate portfolio of securities and other assets;
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a member of
the National Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Trust and Distributor desire to enter into an agreement
pursuant to which Distributor shall be the distributor of the shares of the
Trust representing the investment portfolios described on Schedule A hereto and
any additional shares and/or investment portfolios the Trust and Distributor may
agree upon and include on Schedule A as such Schedule may be amended from time
to time (such shares and any additional shares are referred to as the "Shares"
and such investment portfolios and any additional investment portfolios are
individually referred to as a "Fund" and collectively the "Funds").
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. APPOINTMENT OF THE DISTRIBUTOR.
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The Trust hereby appoints the Distributor as agent for the distribution
of the Shares, on the terms and for the period set forth in this Agreement.
Distributor hereby accepts such appointment as agent for the distribution of the
Shares on the terms and for the period set forth in this Agreement.
2. SERVICES AND DUTIES OF THE DISTRIBUTOR.
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2.1 Distributor will act as agent for the distribution of Shares in
accordance with the instructions of the Trust's Board of Trustees and the
registration statement and prospectuses then in effect with respect to the Funds
under the Securities Act of 1933, as amended (the "1933 Act").
2.2 Distributor may incur expenses for appropriate distribution
activities which it deems reasonable which are primarily intended to result in
the sale of Shares, including, but not limited to, advertising, the printing and
mailing of prospectuses to other than current shareholders, and the printing and
mailing of sales literature. At the direction of the Trust, Distributor may
enter into servicing and/or selling agreements with qualified broker/dealers and
other persons with respect to the offering of Shares to the public, and if it so
chooses Distributor may act as principal. The Distributor shall not be obligated
to incur any specific expenses nor sell any certain number of Shares of any
Fund.
2.3 All Shares of the Funds offered for sale by Distributor shall be
offered for sale to the public at a price per share (the "offering price")
provided in the Funds' then current prospectus. The Distributor shall have no
liability for the payment of the purchase price of the Shares sold pursuant to
this Agreement or with respect to redemptions or repurchases of Shares.
2.4 Distributor shall act as distributor of the Shares in material
compliance in all respects with all applicable laws, rules and regulations,
including, without limitation, all rules and regulations made or adopted
pursuant to the 1940 Act, by the Securities and Exchange Commission (the
"Commission") and the NASD.
2.5 Distributor shall not utilize any materials in connection with the
sales or offering of Shares except the Trust's prospectus and statement of
additional information and such other materials as the Trust shall provide or
approve. The Distributor agrees to provide NASD and Commission compliance review
of all sales literature and marketing materials prepared for use by or on behalf
of the Trust in advance of the use of such materials. The Fund agrees to
incorporate such changes to such materials as the Distributor shall request. The
Distributor will file the materials as may be required with the NASD, SEC or
state securities commissioners. 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.
2.6 In connection with its duties under this Agreement, Distributor
shall use reasonable efforts to cooperate with all reasonable requests of the
Fund related to the Fund's administration and monitoring of the Fund's
compliance program as adopted by the Board of Trustees pursuant to Rule 38a-1
under the Investment Company Act of 1940 as amended, a copy of which has been
provided to the Distributor.
2.7 As compensation for the services performed hereunder and the
expenses incurred by Distributor, the Distributor shall be entitled to the fees
and be reimbursed the expenses as provided in Exhibit B hereto.
3. DUTIES AND REPRESENTATIONS OF THE TRUST.
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3.1 The Trust represents that it is registered as an open-end
management investment company under the 1940 Act and that it has and will
continue to act in conformity with its Declaration of Trust, By-Laws, its
registration statement as may be amended from time to time and resolutions and
other instructions of its Board of Trustees and has and will continue to comply
with all applicable laws, rules and regulations including without limitation the
1933 Act, the 1934 Act, the 1940 Act, the laws of the states in which shares of
the Funds are offered and sold, and the rules and regulations issued pursuant to
each of the foregoing laws.
3.2 The Trust shall take or cause to be taken all necessary action to
register and maintain the registration of the Shares under the 1933 Act for sale
as herein contemplated and shall pay all costs and expenses in connection with
the registration of Shares under the 1933 Act, and be responsible for all
expenses in connection with maintaining facilities for the issue and transfer of
Shares and for supplying information, prices and other data to be furnished by
the Trust hereunder.
3.3 The Trust shall execute any and all documents and furnish any and
all information and otherwise take all actions which may be reasonably necessary
in the discretion of the Trust's officers in connection with the qualification
of the Shares for sale in such states as Distributor and the Trust may approve,
shall maintain the qualification of a sufficient number or amount of shares
thereunder, and shall pay all costs and expenses in connection with such
qualification. The Trust shall notify the Distributor, or cause it to be
notified, of the states in which the Shares may be sold and shall notify the
Distributor of any change to the information.
3.4 The Trust shall keep the Distributor informed with respect to its
affairs as necessary for Distributor to perform its services under this
Agreement and to fulfill any applicable regulatory or legal responsibilities.
The Trust shall furnish Distributor from time to time such information,
documents and reports with respect to the Trust and the Shares as Distributor
may reasonably request, and the Trust warrants that the statements contained in
any such information shall be true and correct in all material respects and
fairly represent what they purport to represent.
3.5 The Trust represents to Distributor that all registration
statements and prospectuses of the Trust filed or to be filed with the
Commission under the 1933 Act and 1940 Act with respect to the Shares have been
and will be prepared in conformity with the requirements of the 1933 Act, the
1940 Act, and the rules and regulations of the Commission thereunder. As used in
this Agreement the terms "registration statement" and "prospectus" shall mean
any registration statement and prospectus (together with the related statement
of additional information) at any time now or hereafter filed with the
Commission with respect to any of the Shares and any amendments and supplements
thereto which at any time shall have been or will be filed with said Commission.
The Trust represents and warrants to Distributor that any registration statement
and prospectus, when such registration statement becomes effective, will contain
all statements required to be stated therein in conformity with the 1933 Act,
the 1940 Act and the rules and regulations of the Commission; that all
information contained in the registration statement and prospectus will be true
and correct in all material respects when such registration statement becomes
effective; and that neither the registration statement nor any prospectus when
such registration statement becomes effective will include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The Trust
agrees to file from time to time such amendments, supplements, reports and other
documents as may be necessary or required in order to comply with the 1933 Act
and the 1940 Act and in order that there may be no untrue statement of a
material fact in a registration statement or prospectus, or necessary or
required in order that there may be no omission to state a material fact in the
registration statement or prospectus which omission would make the statements
therein misleading. The Trust shall promptly notify the Distributor of any
advice given to it by counsel to the Trust regarding the necessity or
advisability of amending or supplementing the registration statement.
3.6 General duties.
(i) The Trust shall not file any amendment to the registration
statement or supplement to any prospectus without giving Distributor reasonable
notice thereof in advance and if the Distributor in writing affirmatively
declines to assent to such amendment (after a reasonable time), the Trust may
immediately terminate this Agreement pursuant to Section 7.3.
(ii) If Distributor, based on the advice of its counsel, concludes that
an amendment or amendments and/or supplement or supplements to the Trust's
registration statement or any part thereof is required to comply with the 1933
Act or the 1940 Act, Distributor shall provide a written request to the Trust
identifying the reason for the amendment or supplement and its suggested
language for such supplement or amendment. The Trust and the Distributor shall
work together in good faith with counsel to the Trust to resolve the issue
identified by the Distributor and make the appropriate amendments or
supplements. If the Trust refuses to make an amendment or supplement which is
acceptable to Distributor, Distributor may immediately terminate this agreement
pursuant to Section 7.3.
(iii) If Distributor, based on the advice of its counsel, concludes
that the Trust must make a change in its governing instruments or in its methods
of doing business necessary for the Trust to comply with any requirement of
applicable law or regulation, Distributor shall provide a written request to the
Trust identifying the change and the reason for the change. The Trust and the
Distributor shall work together in good faith with counsel to the Trust to
resolve the issue identified by the Distributor and make the appropriate change
or changes. If the Trust refuses to make a change which is acceptable to the
Distributor, Distributor may immediately terminate this agreement pursuant to
Section 7.3.
(iv) Nothing contained in this Agreement shall in any way limit the
Trust's right or obligation to file at any time any amendments to any
registration statement and/or supplements to any prospectus, of whatever
character, as the Trust may deem advisable such right being in all respects
absolute and unconditional.
3.7 Whenever in their judgment such action is warranted by market,
economic or political conditions, or by circumstances of any kind, the Trust may
decline to accept any orders for, or make any sales of, any Shares until such
time as it deems it advisable to accept such orders and to make such sales and
the Trust shall advise Distributor promptly of such determination.
3.8 The Trust agrees to advise the Distributor promptly
in writing:
(i) of any correspondence or other communication by the
Commission or its staff relating to the Funds including requests by the
Commission for amendments to the registration statement or prospectuses;
(ii) in the event of the issuance by the Commission of any
stop order suspending the effectiveness of the registration statement or
prospectuses 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 registration statement or prospectuses
or which requires the making of a change in such registration statement or
prospectuses in order to make the statements therein not misleading; and
(iv) of all actions taken by the Commission with respect to
any amendments to any registration statement or prospectus which may from time
to time be filed with the Commission.
3.9 From time to time, the Trust shall inform the Distributor in
writing of the names of the individuals authorized to provide the Distributor
with instructions or directions pursuant to this Agreement ("Authorized
Persons"). The Distributor shall not be held to have notice of any change in the
authority of any Authorized Person until receipt of written notice thereof from
the Trust.
4. INDEMNIFICATION.
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4.1(a) The Trust shall indemnify, defend and hold the Distributor, and
each of its present or former directors, members, officers, employees,
representatives and any person who controls or previously controlled the
Distributor within the meaning of Section 15 of the 1933 Act ("Distributor
Indemnitees"), free and harmless from and against any and all losses, claims,
demands, liabilities, damages, charges, payments and costs, as well as expenses
related to the foregoing (including the reasonable costs of investigating or
defending any alleged losses, claims, demands, liabilities, damages, charges,
payments, costs or expenses related to the foregoing and any reasonable counsel
fees incurred in connection therewith) of any and every nature ("Losses") which
Distributor and/or each of the Distributor Indemnitees may incur under the 1933
Act, the 1934 Act, any other statute (including Blue Sky laws) or any rule or
regulation thereunder, or under common law or otherwise:
(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, an annual or interim report to shareholders or
sales literature, or any amendments or supplements thereto, or arising out of or
based upon any omission, or alleged omission, to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Trust's obligation to indemnify
Distributor and any of 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 therein in reliance upon and in conformity
with information relating to the Distributor and furnished to the Trust or its
counsel by Distributor for the purpose of, and used in, the preparation thereof;
(ii) relating to Distributor's performance hereunder, except
to the extent the Losses result from the Distributor's willful misfeasance, bad
faith or negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations and duties under this Agreement; or
(iii) from and against any and all Losses which Distributor
and/or each of the Distributor Indemnitees may incur in connection with this
Agreement, or from and against any and all Losses which Distributor and/or each
of the Distributor Indemnitees may incur when acting in accordance with
instructions from the Trust or any Authorized Person.
Promptly after receipt by the Distributor of notice of the commencement
of an investigation, action, claim or proceeding, the Distributor shall, if a
claim for indemnification in respect thereof is to made under this section,
notify the Trust in writing of the commencement thereof, although the failure to
do so shall not prevent recovery by the Distributor or any Distributor
Indemnitee.
4.1(b) The Trust shall be entitled to participate at its own expense in
the defense or, if it so elects, to assume the defense of any suit brought to
enforce any such loss, claim, demand, liability, damage or expense, 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 and notifies the Distributor of such
election, the indemnified defendant or defendants in such suit shall bear the
fees and expenses of any additional counsel retained by them subsequent to the
receipt of the Trust's election. 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 in case there
is a conflict of interest between the Trust and the Distributor or any of the
Distributor Indemnitees, the Trust will reimburse the indemnified person or
persons named as defendant or defendants in such suit, for the reasonable fees
and reasonable expenses of any counsel retained by Distributor and them. The
Trust's indemnification agreement contained in this Section 4.1 and the Trust's
representations and warranties in this Agreement shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Distributor and each 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 Distributor's benefit, to the benefit of
each of the Distributor Indemnitees, and their estates and successors. The Trust
agrees promptly to notify Distributor in writing of the commencement of any
litigation or proceedings against the Trust or any of its officers or trustees
in connection with the issue and sale of any of the Shares.
4.1(c) The Trust acknowledges and agrees that if the Trust, or an
authorized officer thereof, requires the Distributor to give indemnification to
any entity selling Shares or providing shareholder services to shareholders or
others and such entity shall make a claim for indemnification against the
Distributor, the Distributor shall make a similar claim for indemnification
against the Trust and shall be entitled to such indemnification. The Distributor
acknowledges that if it enters into any agreement to indemnify such third party
that imposes greater obligations than the Trust's indemnification obligations
under this Agreement, the Trust's obligation to indemnify the Distributor will
be limited to the obligation set forth in this Agreement.
4.2(a) Distributor shall indemnify, defend and hold the Trust, and each
of its present or former trustees, officers, employees, representatives, and any
person who controls or previously controlled the Trust within the meaning of
Section 15 of the 1933 Act ("Trust Indemnitees"), free and harmless from and
against any and all Losses which the Trust, and each of its present or former
trustees, officers, employees, representatives, or any such controlling person,
may incur under the 1933 Act, the 1934 Act, any other statute (including Blue
Sky laws) or any rule or regulation thereunder, or under common law or
otherwise,
(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, an annual or interim report to shareholders or sales literature,
or any amendments or supplements thereto, or the omission, or alleged omission,
to state therein a material fact required to be stated therein or necessary to
make the statement not misleading, but only if such statement or omission was
made in reliance upon, and in conformity with, 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, and
(ii) arising out of or resulting from the Distributor's willful
misfeasance, bad faith or negligence in the performance of its duties, or by
reason of its reckless disregard of its obligations and duties under this
Agreement.
Distributor's agreement to indemnify the Trust and any of the Trust
Indemnitees shall not be deemed to cover any Losses to the extent they arise out
of or result from the Trust's willful misfeasance, bad faith or negligence in
the performance of its duties, or by reason of its reckless disregard of its
obligations and duties, under this Agreement. Promptly after receipt by the
Trust of notice of the commencement of an investigation, action, claim or
proceeding, the Trust shall, if a claim for indemnification in respect thereof
is to made under this section, notify the Distributor in writing of the
commencement thereof, although the failure to do so shall not prevent recovery
by the Trust or any Trust Indemnitee.
4.2(b) The Distributor shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume the defense of any suit
brought to enforce any such loss, claim, demand, liability, damage or expense,
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 and notifies the
distributor of such election, the indemnified defendant or defendants in such
suit shall bear the fees and expenses of any additional counsel retained by them
subsequent to the receipt of the Distributor's election. 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, the Distributor will reimburse the indemnified person or persons
named as defendant or defendants in such suit, for the reasonable fees and
reasonable expenses of any counsel retained by the Trust and them. The
Distributor's indemnification agreement contained in this Section 4.2 and the
Distributor's representations and warranties in this Agreement shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Trust or any 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 Trust's benefit, to the benefit of each
of the Trust Indemnitees and their estates and 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 members in
connection with the issue and sale of any of the Shares.
5. OFFERING OF SHARES.
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No Shares shall be offered by either the Distributor or the Trust under
any of the provisions of this Agreement and no orders for the purchase or sale
of such Shares hereunder shall be accepted by the Trust if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the 1933
Act, or if and so long as the current prospectus as required by Section 10 of
the 1933 Act, as amended, is not on file with the Commission; provided, however,
that nothing contained in this paragraph 5 shall in any way restrict or have an
application to or bearing upon the Trust's obligation to repurchase Shares from
any shareholder in accordance with the provisions of the prospectus or Articles
of Trust.
6. LIMITATION OF LIABILITY
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6.1 The Distributor shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Funds in connection with the
performance of its obligations and duties under this Agreement, except a loss
resulting from the Distributor's willful misfeasance, bad faith or negligence in
the performance of such duties and obligations, or by reason of its reckless
disregard thereof. Furthermore, notwithstanding anything herein to the contrary,
the Distributor shall not be liable for any action taken or omitted to be taken
in accordance with instructions received by the Distributor from an Authorized
Person of the Trust.
6.2 The Distributor shall maintain adequate and reliable computer and
other equipment necessary or appropriate to carry out its obligations under this
Agreement. Upon the Fund's reasonable request, the Distributor shall provide
supplemental information concerning the aspects of its disaster recovery and
business continuity plan that are relevant to the services provided hereunder.
Notwithstanding the foregoing or any other provision of this agreement, the
Distributor assumes no responsibility hereunder, and shall not be liable, for
any default, damage, loss of data or documents, errors, delay or any other loss
whatsoever caused by events beyond its reasonable control. Events beyond the
Administrator's control include, without limitation, force majeure events. In
the event of force majeure, computer or other equipment failures or similar
events beyond its reasonable control, the Distributor shall follow applicable
procedures in its disaster recovery and business continuity plan and use
commercially reasonable efforts to minimize any service interruption.
6.3 Notwithstanding anything in this Agreement to the contrary, in no
event shall either party, its affiliates or any of its or their trustees,
members, officers, employees, agents or subcontractors, be liable for lost
profits or consequential damages.
7. TERM.
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7.1 This Agreement shall become effective with respect to each Fund
listed on Schedule A hereof as of the date hereof and, with respect to each Fund
not in existence on that date, on the date an amendment to Schedule A to this
Agreement relating to that Fund is executed. Unless sooner terminated as
provided herein, this Agreement shall continue in effect with respect to each
Fund for one year from the effective date of this Agreement. Thereafter, if not
terminated, this Agreement shall continue automatically in effect as to each
Fund for successive annual periods, provided such continuance is specifically
approved at least annually by (i) the Trust's Board of Trustees or (ii) the vote
of a majority (as defined in the 1940 Act and Rule 18f-2 thereunder) 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 of Trustees who
are not "interested persons" (as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval.
7.2 This Agreement may be terminated without penalty with respect
to a particular Fund:
(a) through a failure to renew this Agreement at the end of a
term;
(b) upon mutual consent of the parties;
(c) automatically in the event of its assignment (as defined in
the 1940 Act); or
(d) on at least thirty (30) days' written notice,
(i) by the Trust's Board of Trustees,
(ii) by vote of a majority (as defined with respect to voting
securities in the 1940 Act and Rule 18f-2 thereunder) of
the outstanding voting securities of a Fund, or
(iii) by the Distributor.
Such notice may be waived by the party entitled to such notice.
7.3 This Agreement may be immediately terminated pursuant to Section
3.6 upon the receipt of a written notice of termination from the terminating
party. Any termination pursuant to Section 3.6 shall be without penalty to the
terminating party.
7.4 In the event of termination of this Agreement, all reasonable
expenses associated with movement of records and materials and conversion
thereof shall be borne by the Funds.
8. MISCELLANEOUS.
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8.1 The services of the Distributor rendered to the Funds are not
deemed to be exclusive. The Distributor may render such services and any other
services to others, including other investment companies. The Trust recognizes
that from time to time members, officers, and employees of the Distributor may
serve as directors, trustees, officers and employees of other entities
(including other investment companies), that such other entities may include the
name of the Distributor as part of their name and that the Distributor or its
affiliates may enter into distribution, administration, fund accounting,
transfer agent or other agreements with such other entities.
8.2 Confidentiality.
(a) The Distributor agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of the Trust all records
relative to the Funds' shareholders, not to use such records and information for
any purpose other than performance of its responsibilities and duties hereunder,
and not to disclose such information except where the Distributor may be exposed
to civil or criminal proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities or court process, when
subject to governmental or regulatory audit or investigation, or when so
requested by the Trust. In case of any requests or demands for inspection of the
records of the Funds, the Distributor will endeavor to notify the Trust promptly
and to secure instructions from a representative of the Trust as to such
inspection. Records and 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 which was already in the possession of the
Distributor prior to receipt thereof, shall not be subject to this paragraph.
(b) The Distributor hereby acknowledges that in the normal course of
its provision of services to the Fund it will come into possession of material
nonpublic information concerning the Fund. Such information may include
portfolio holdings, trading strategies and pending transactions not generally
known to the public. The Distributor acknowledges and agrees that it has duties
of confidentiality and care with respect to such material nonpublic information.
The Distributor represents that it has implemented effective policies and
procedures designed to safeguard such information and to ensure that no employee
or other representative trades on such information, communicates it to others,
except as contemplated by this Agreement, or otherwise misuses it.
8.3 This Agreement shall be governed by Wisconsin law, excluding the
laws on conflicts of laws. 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 Commission thereunder. 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.
8.4 Any notice required or to be permitted to be given by either party
to the other shall be in writing and shall be deemed to have been given when
sent by registered or certified mail, postage prepaid, return receipt requested,
as follows: Notice to the Distributor shall be sent to UMB Distribution
Services, LLC, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxx, XX, 00000,
Attention: Xxxxx Xxxxxxx, and notice to the Trust shall be sent to Nakoma Mutual
Fund, 000 Xxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Xxx Xxxxxxx.
8.5 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original agreement but such counterparts
shall together constitute but one and the same instrument.
8.6 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.
8.7 The captions of this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise effect their construction or effect.
8.8. The Distributor shall maintain a fidelity bond covering larceny
and embezzlement and an insurance policy with respect to directors and officers
errors and omissions coverage in amounts that are appropriate in light of its
duties and responsibilities hereunder. Upon the request of the Fund, the
Administrator shall provide evidence that coverage is in place. The Distributor
shall notify the Fund should its insurance coverage with respect to professional
liability or errors and omissions coverage be canceled and not replaced.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer as of the day and year first above written.
NAKOMA MUTUAL FUNDS
(the "Trust")
By:_____________________________________
Its _______________________________
UMB DISTRIBUTION SERVICES, LLC
(the "Distributor")
By: ____________________________________
Its _______________________________
SCHEDULE A
TO THE
DISTRIBUTION AGREEMENT
BY AND BETWEEN
NAKOMA MUTUAL FUNDS
AND
UMB DISTRIBUTION SERVICES, LLC
NAME OF FUNDS
FUND EFFECTIVE DATE
Series A- Nakoma Absolute Return Fund Date of this Agreement
SCHEDULE B
TO THE
DISTRIBUTION AGREEMENT
BY AND BETWEEN
NAKOMA MUTUAL FUNDS
AND
UMB DISTRIBUTION SERVICES, LLC
FEES
ANNUAL ASSET-BASED FEES (PER PORTFOLIO)*
|X| First $1 billion 2.00 basis points, plus
|X| Next $1 billion 1.75 basis points, plus
|X| Next $1 billion 1.50 basis points, plus
|X| Over $3 billion 1.25 basis points
* For UMB Distribution Services, LLC, or Grand Distribution Services, LLC, as
named distributor. This schedule is applied to each of the portfolios and is
subject to the per-portfolio minimum below.
MINIMUM ANNUAL FEE
Per fund $40,000** ** UMB ISG will waive 50% of the minimum fees for portfolios
under $25 million and waive 25% of the minimum fees for portfolios between $25
million and $50 million during the first year of operations.
ADVERTISING COMPLIANCE
Review and comment on advertising $150 per hour, plus filing fees
not prepared by UMB Investment Services
Group's Financial Marketing Group
