DISTRIBUTION AGREEMENT
This Agreement made as of June 7, 2012 by and between Ultimus Managers Trust (the “Trust”), an Ohio business trust, and Ultimus Fund Distributors, LLC, an Ohio limited liability company (“Distributor”).
WHEREAS, the Trust is an open-end management investment company registered under the Investment Company Act of 1940, as amended (the “Act”); and
WHEREAS, Distributor is a broker-dealer registered with the Securities and Exchange Commission and a member of the Financial Industry Regulatory Authority (“FINRA”); and
WHEREAS, the Trust and Distributor are desirous of entering into an agreement providing for the distribution by Distributor of shares of beneficial interest (the “Shares”) of each series of shares of the Trust listed on Schedule A attached hereto (the “Fund”), as such Schedule A may be amended from time to time;
NOW, THEREFORE, in consideration of the premises and agreements of the parties contained herein, the parties agree as follows:
The Trust hereby appoints Distributor as its exclusive agent for the distribution of the Shares, and Distributor hereby accepts such appointment under the terms of this Agreement. While this Agreement is in force, the Trust shall not sell any Shares except on the terms set forth in this Agreement. Notwithstanding any other provision hereof, the Trust may terminate, suspend or withdraw the offering of Shares whenever, in its sole discretion, it deems such action to be desirable.
(b) | Distributor will also have the right, as agent for the Trust, to sell such Shares to the public against orders therefor at the public offering price. |
(c) | Distributor will also have the right to take, as agent for the Trust, all actions which, in Distributor’s reasonable judgment, are necessary to carry into effect the distribution of the Shares. |
(g) | Upon receipt of purchase instructions, Distributor will transmit such instructions to the Trust or its transfer agent for the issuance and registration of the Shares purchased. |
(i) | Distributor, as agent of and for the account of the Trust, may repurchase the Shares at such prices and upon such terms and conditions as shall be specified in the Registration Statement. |
The Trust reserves the right to issue any Shares at any time directly to the holders of Shares (“Shareholders”), to sell Shares to its Shareholders or to other persons at not less than net asset value and to issue Shares in exchange for substantially all the assets of any corporation or trust or for the shares of any corporation or trust.
Distributor does not agree to sell any specific number of Shares. Distributor, as agent for the Trust, undertakes to sell Shares on a best efforts basis only against orders therefor.
2
The Trust shall furnish to Distributor copies of all information, financial statements and other papers which Distributor may reasonably request for use in connection with the distribution of the Shares, and this shall include, but shall not be limited to, one certified copy, upon request by Distributor, of all financial statements prepared for the Trust by independent public accountants.
For performing its services under this Agreement, Distributor will receive a fee from the Fund and/or its investment adviser(s) in accordance with, and in the manner set forth in, Schedule B attached hereto, as such Schedule may be amended from time to time. The Fund or its investment adviser(s) shall promptly reimburse Distributor for any expenses that are to be paid by the Fund in accordance with the following paragraph.
In the performance of its obligations under this Agreement, Distributor will pay only the costs incurred in qualifying as a broker or dealer under state and federal laws and in establishing and maintaining its relationships with the dealers selling the Shares. All other costs in connection with the offering of the Shares will be paid by the Fund or its investment adviser(s) in accordance with agreements between them as permitted by applicable laws, including the Act and rules and regulations promulgated thereunder. These costs include, but are not limited to, licensing fees, filing fees (including FINRA), travel and such other expenses as may be incurred by Distributor on behalf of the Fund.
Notwithstanding the foregoing, Distributor agrees that it shall not be entitled to receive any fee from a Fund or to be reimbursed by a Fund for any distribution or offering related costs unless and until the Trust has adopted on behalf of the Fund a plan of distribution pursuant to Rule 12b-1 which permits the payment of such fee or the reimbursement of such costs.
Distributor agrees to indemnify and hold harmless the Trust and each person who has been, is, or may hereafter be a Trustee, officer, employee, shareholder or control person of the Trust against any loss, damage or expense (including the reasonable costs of investigation and reasonable attorneys’ fees) reasonably incurred by any of them in connection with any claim or in connection with any action, suit or proceeding to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact, or the omission or alleged omission to state a material fact necessary to make the statements not misleading, on the part of Distributor or any agent or employee of Distributor or any other person for whose acts Distributor is responsible, unless such statement or omission was made in reliance upon written information furnished by the Trust; (ii) Distributor’s failure to exercise reasonable care and diligence with respect to its services, if any, rendered in connection with investment, reinvestment, automatic withdrawal and other plans for Shares; and (iii) Distributor’s failure to comply with applicable laws and the Rules of FINRA. The Distributor will advance attorneys’ fees or other expenses incurred by any such person in defending a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnification. The term “expenses” for purposes of this and the next paragraph includes amounts paid in satisfaction of judgments or in settlements which are made with Distributor’s consent. The foregoing rights of indemnification shall be in addition to any other rights to which the Trust or each such person may be entitled as a matter of law.
3
The Trust, on behalf of each Fund, agrees to indemnify and hold harmless Distributor and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Distributor against any loss, damage or expense (including the reasonable costs of investigation and reasonable attorneys’ fees) reasonably incurred by any of them in connection with the matters to which this Agreement relates, except a loss resulting from the failure of Distributor or any such other person to comply with applicable law or the terms of this Agreement, or from willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, on the part of any of such persons in the performance of Distributor’s duties or from the reckless disregard by any of such persons of Distributor’s obligations and duties under this Agreement, for all of which exceptions Distributor shall be liable to the Trust. The Trust will advance attorneys’ fees or other expenses incurred by any such person in defending a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnification.
In order that the indemnification provisions contained in this Paragraph 9 shall apply, it is understood that if in any case the Trust may be asked to indemnify Distributor or any other person or hold Distributor or any other person harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that Distributor will use all reasonable care to identify and notify the Trust promptly concerning any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Distributor and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Distributor, and thereupon the Trust shall take over complete defense of the claim, and neither Distributor nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Distributor shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Distributor or any such person except with the Trust’s written consent.
Notwithstanding any other provision of this Agreement, Distributor shall be entitled to receive and act upon advice of counsel (who may be counsel for the Trust or its own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant to such advice, provided that such action is not in violation of applicable federal or state laws or regulations.
4
This Agreement shall automatically terminate, without the payment of any penalty, in the event of its assignment, as that term is defined in the Act, by Distributor. This Agreement may be amended only if such amendment is approved (i) by Distributor and (ii) by the Board of Trustees of the Trust, including the approval of a majority of the Trustees of the Trust who are not interested persons of the Trust or of Distributor by vote cast in person at a meeting called for the purpose of voting on such approval.
Either the Trust or Distributor may at any time terminate this Agreement with respect to any Fund on sixty (60) days’ written notice delivered or mailed by registered mail, postage prepaid, to the other party.
This Agreement shall take effect upon its execution and shall remain in full force and effect for an initial term of two (2) years from the date of its execution (unless terminated as set forth in Section 11), and shall continue in effect from year to year thereafter, subject to annual approval of such continuance by the Board of Trustees of the Trust, including the approval of a majority of the Trustees of the Trust who are not interested persons of the Trust or of Distributor by vote cast in person at a meeting called for the purpose of voting on such approval.
Unless this Agreement has been terminated in accordance with Paragraph 11, the terms and provisions of this Agreement shall become automatically applicable to any investment company which is a successor to the Trust as a result of reorganization, recapitalization or change of domicile.
5
A copy of the Trust’s Declaration of Trust is on file with the Secretary of the State of Ohio, and notice is hereby given that the obligations of the Trust hereunder shall not be binding upon any of the Trustees, shareholders, nominees, officers, agents or employees of the Trust, personally, but bind only the trust property of the Trust. The execution and delivery of this Agreement have been authorized by the Trustees of the Trust and signed by an officer of the Trust, acting as such, and neither such authorization by such Trustees nor such execution and delivery by such officer shall be deemed to have been made by any of them individually or to impose any liability on any of them personally, but shall bind only the trust property of the Trust. To the extent a matter under this Agreement relates only to a particular Fund of the Trust, that Fund or the investment adviser to such Fund, depending on whether or not such Fund has adopted a Rule 12b-1 plan, shall be solely responsible for all liabilities in connection with such matter, and the Distributor agrees to look solely to the assets of such Fund or the investment adviser to such Fund for the payment or performance thereof and any other liabilities arising in connection with this Agreement, and no other Fund shall incur any liability or obligation in connection therewith.
In the event any provision of this Agreement is determined to be void or unenforceable, such determination shall not affect the remainder of this Agreement, which shall continue to be in force.
(a) | This Agreement shall be governed by the laws of the State of Ohio. |
Any notices under this Agreement shall be in writing, addressed and delivered or mailed postage paid to the other party, with a copy to the Trust’s counsel, at such address as such other party may designate for the receipt of such notice. Such notice will be effective upon receipt. Until further notice to the other party, it is agreed that the address of the Trust for this purpose shall be 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000, Attn: Xxxxxx X. Xxxxxx; and that the address of Distributor for this purpose shall be 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000, Attn: Xxxxxx X. Xxxxxx.
6
18. | Execution |
This Agreement may be executed by one or more counterparts, each of which shall be deemed an original, but all of which together will constitute one in the same instrument.
IN WITNESS WHEREOF, the Trust and Distributor have each caused this Agreement to be signed in duplicate on their behalf, all as of the day and year first above written.
|
|||
|
|
|
|
|
/s/Xxxxxx X. Xxxxxx
|
|
|
|
|
Name: Xxxxxx X. Xxxxxx
|
|
|
|
Its: President
|
|
|
|
|
|
|
ULTIMUS FUND DISTRIBUTORS, LLC
|
|
|
|
|
|
|
|
By:
|
/s/Xxxxxx X. Xxxxxx
|
|
|
|
Name: Xxxxxx X. Xxxxxx
|
|
|
|
Its: President
|
|
7
SCHEDULE A
TO THE DISTRIBUTION AGREEMENT BETWEEN
8
TO THE DISTRIBUTION AGREEMENT BETWEEN
Ultimus shall be entitled to receive an annual fee of $6,000, paid in monthly installments, from each Fund listed on Schedule A and/or from the investment adviser(s) to such Fund.
9