DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into this ____ day of
______________, 2005_, by and between Xxxxxxx Investment Trust, a Delaware
statutory trust (the "Trust"), on behalf of its Separately Managed Account
Reserve Trust (SMART) series (the "Fund"), Quasar Distributors, LLC, a Delaware
limited liability company (the "Distributor") and Xxxxxxx Investment Partners,
L.P., a Delaware limited partnership and the investment advisor to the Trust
(the "Advisor").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company,
and is authorized to issue shares of beneficial interest in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets ("Shares");
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");
WHEREAS, the Trust desires to retain the Distributor as principal
underwriter in connection with the offer and sale of the Shares; and
WHEREAS, this Agreement has been approved by a vote of the Trust's
board of trustees ("Board of Trustees" or the "Board"), including its
disinterested trustees voting separately, in conformity with Section 15(c) of
the 1940 Act.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. Appointment of Quasar as Distributor
The Trust hereby appoints the Distributor as its agent for the sale and
distribution of Shares of the Fund in jurisdictions wherein the Shares may be
legally offered for sale, on the terms and conditions set forth in this
Agreement, and the Distributor hereby accepts such appointment and agrees to
perform the services and duties set forth in this Agreement. The services and
duties of the Distributor shall be confined to those matters expressly set forth
herein, and no implied duties are assumed by or may be asserted against the
Distributor hereunder.
2. Services and Duties of the Distributor
A. The Distributor agrees to sell Shares on a best efforts basis
as agent for the Trust, through qualified broker-dealers
appointed by the Trust, upon the terms and at the current
offering price (plus sales charge, if any) described in the
Prospectus. As used in this Agreement, the term "Prospectus"
shall mean the current prospectus, including the statement of
additional information, as both may be amended or
supplemented, relating to the Fund and included in the
currently effective registration statement (the "Registration
Statement") of the Trust filed under the
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Securities Act of 1933, as amended (the "1933 Act") and the
1940 Act. The Trust shall in all cases receive the net asset
value per Share on all sales.
B. During the continuous public offering of Shares, the
Distributor shall hold itself available to receive orders,
satisfactory to the Distributor, for the purchase of Shares
and shall accept such orders on behalf of the Trust. Such
purchase orders shall be deemed effective at the time and in
the manner set forth in the Prospectus.
C. The Distributor, with the operational assistance of the
Trust's transfer agent, shall make Shares available for sale
and redemption through the National Securities Clearing
Corporation's Fund/SERV System.
D. The Distributor acknowledges and agrees that it is not
authorized to provide any information or make any
representations other than as contained in the Prospectus and
any sales literature specifically approved by the Trust.
E. The Distributor agrees to cooperate with the Trust or its
agent in the development of all proposed advertisements and
sales literature relating to the Fund. The Distributor agrees
to review all proposed advertisements and sales literature for
compliance with applicable laws and regulations, and shall
file with appropriate regulators those advertisements and
sales literature it believes are in compliance with such laws
and regulations. The Distributor agrees to furnish to the
Trust any comments provided by regulators with respect to such
materials and to use its best efforts to obtain the approval
of the regulators to such materials.
F. The Distributor, at its sole discretion, may repurchase Shares
offered for sale by shareholders of the Fund. Repurchase of
Shares by the Distributor shall be at the price determined in
accordance with, and in the manner set forth in, the
Prospectus. At the end of each business day, the Distributor
shall notify the Trust and its transfer agent, by any
appropriate means, of the orders for repurchase of Shares
received by the Distributor since the last report, the amount
to be paid for such Shares and the identity of the
shareholders offering Shares for repurchase. The Trust
reserves the right to suspend such repurchase right upon
written notice to the Distributor. The Distributor further
agrees to act as agent for the Trust to receive and transmit
promptly to the Trust's transfer agent, shareholder requests
for redemption of Shares.
G. The Distributor shall enter into agreements with such
qualified broker-dealers as the Trust may select, in order
that such broker-dealers also may sell Shares of the Fund. The
form of any dealer agreement shall be approved by the Trust.
H. The Distributor shall devote its best efforts to effect sales
of Shares of the Fund but shall not be obligated to sell any
certain number of Shares.
I. The Distributor shall prepare reports for the Board regarding
its activities under this Agreement as from time to time shall
be reasonably requested by the Board.
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J. The Distributor agrees to advise the Trust promptly in writing
of the initiation of any proceedings against it by the SEC or
its staff, the NASD or any state regulatory authority.
3. Representations and Covenants of the Trust
A. The Trust hereby represents and warrants to the Distributor,
which representations and warranties shall be deemed to be
continuing throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of
the jurisdiction of its organization, with full power
to carry on its business as now conducted, to enter
into this Agreement and to perform its obligations
hereunder;
(2) This Agreement has been duly authorized, executed and
delivered by the Trust in accordance with all
requisite action and constitutes a valid and legally
binding obligation of the Trust, enforceable in
accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws
of general application affecting the rights and
remedies of creditors and secured parties;
(3) It is conducting its business in compliance in all
material respects with all applicable laws and
regulations, both state and federal, and has obtained
all regulatory approvals necessary to carry on its
business as now conducted; there is no statute, rule,
regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract
binding it or affecting its property which would
prohibit its execution or performance of this
Agreement;
(4) All Shares to be sold by it are validly authorized
and, when issued in accordance with the description
in the Prospectus, will be fully paid and
nonassessable;
(5) The Registration Statement, and Prospectus included
therein, have been prepared in conformity with the
requirements of the 1933 Act and the 1940 Act and the
rules and regulations thereunder; and
(6) The Registration Statement (at the time of its
effectiveness) and any advertisements and sales
literature prepared by the Trust or its agent
(excluding statements relating to the Distributor and
the services it provides that are based upon written
information furnished by the Distributor expressly
for inclusion therein) shall not contain any untrue
statement of material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and all statements or information
furnished to the Distributor pursuant to this
Agreement shall be true and correct in all material
respects.
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B. The Trust, or its agent, shall take or cause to be taken all
necessary action to register Shares of the Fund under the 1933
Act, qualify such shares for sale in such states as the Trust
and the Distributor shall approve, and maintain an effective
Registration Statement for such Shares in order to permit the
sale of Shares as herein contemplated. The Trust authorizes
the Distributor to use the Prospectus, in the form furnished
to the Distributor from time to time, in connection with the
sale of Shares.
C. The Trust agrees to advise the Distributor promptly in
writing:
(i) of any material correspondence or other
communication to the Trust or its agents (other than the
Distributor) by the Securities and Exchange Commission (the
"SEC") or its staff relating to the Fund, including requests
by the SEC for amendments to the Registration Statement or
Prospectus;
(ii) of the issuance by the SEC of any stop-order
suspending the effectiveness of the Registration Statement
then in effect or the initiation of any proceeding for that
purpose;
(iii) of the happening of any event which makes
untrue any statement of a material fact made in the Prospectus
or which requires the making of a change in such Prospectus in
order to make the statements therein not misleading;
(iv) of all actions taken by the SEC with respect to
any amendments to any Registration Statement or Prospectus,
which may from time to time be filed with the SEC; and
(v) in the event that it determines to suspend the
sale of Shares at any time in response to conditions in the
securities markets or otherwise, or in the event that it
determines to suspend the redemption of Shares at any time as
permitted by the 1940 Act or the rules of the SEC, including
any and all applicable interpretations of such by the staff of
the SEC.
D. The Trust shall notify the Distributor in writing of the
states in which the Shares may be sold and shall notify the
Distributor in writing of any changes to such information.
E. The Trust agrees to file from time to time such amendments to
its Registration Statement and Prospectus as may be necessary
in order that its Registration Statement and Prospectus will
not contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
F. The Trust shall fully cooperate in the efforts of the
Distributor to sell and arrange for the sale of Shares and
shall make available to the Distributor a statement of each
computation of net asset value. In addition, the Trust shall
keep the Distributor fully informed of its affairs and shall
provide to the Distributor, from time to time, copies of all
information, financial statements and other papers that
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the Distributor may reasonably request for use in connection
with the distribution of Shares, including without limitation,
certified copies of any financial statements prepared for the
Trust by its independent public accountants and such
reasonable number of copies of the Prospectus and annual and
interim reports to shareholders as the Distributor may
request. The Trust shall forward a copy of any SEC filings,
including the Registration Statement, to the Distributor
within one business day of any such filings. The Trust
represents that it will not use or authorize the use of any
advertising or sales material unless and until such materials
have been approved and authorized for use by the Distributor.
Nothing in this Agreement shall require the sharing or
provision of materials protected by privilege or limitation of
disclosure, including any applicable attorney-client privilege
or trade secret materials.
G. The Trust has reviewed and is familiar with the provisions of
NASD Rule 2830(k) prohibiting directed brokerage. In addition,
the Trust agrees not to enter into any agreement (whether
orally or in writing) under which the Trust directs or is
expected to direct its brokerage transactions (or any
commission, markup or other payment from such transactions) to
a broker or dealer for the promotion or sale of Fund Shares or
the shares of any other investment company. In the event the
Trust fails to comply with the provisions of NASD Rule
2830(k), the Trust shall promptly notify the Distributor.
4. Additional Representations and Covenants of the Distributor
The Distributor hereby represents, warrants and covenants to the Trust,
which representations, warranties and covenants shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on
its business as now conducted, to enter into this Agreement
and to perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and
delivered by the Distributor in accordance with all requisite
action and constitutes a valid and legally binding obligation
of the Distributor, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and
remedies of creditors and secured parties;
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state
and federal, and has obtained all regulatory approvals
necessary to carry on its business as now conducted; there is
no statute, rule, regulation, order or judgment binding on it
and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its
execution or performance of this Agreement;
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(4) It is registered as a broker-dealer under the 1934 Act and is
a member in good standing of the NASD;
(5) It: (i) has adopted an anti-money laundering compliance
program ("AML Program") that satisfies the requirements of all
applicable laws and regulations; (ii) undertakes to carry out
its AML Program to the best of its ability in accordance with
applicable professional standards; (iii) will promptly notify
the Trust and the Advisor if an inspection by the appropriate
regulatory authorities or a required annual independent audit
of its AML Program identifies any material deficiency; and
(vi) will promptly remedy any material deficiency of which it
learns; and
(6) In connection with all matters relating to this Agreement, it
will comply with the requirements of the 1933 Act, the 1934
Act, the 1940 Act, the regulations of the NASD and all other
applicable federal or state laws and regulations.
5. Compensation
The Distributor shall be compensated, for providing the services set
forth in this Agreement in accordance with the fee schedule set forth on Exhibit
A hereto (as amended from time to time). The Distributor shall also be
compensated, for such out-of-pocket expenses (e.g., telecommunication charges,
postage and delivery charges, and reproduction charges) as are reasonably
incurred by the Distributor in performing its duties hereunder. The Advisor
shall pay all such fees and reimbursable expenses within 30 calendar days
following receipt of the Distributor's billing notice, except for any fee or
expense subject to a good faith dispute. The Advisor shall notify the
Distributor in writing within 30 calendar days following receipt of each invoice
if the Advisor is disputing any amounts in good faith. The Advisor shall pay
such disputed amounts within 10 calendar days of the day on which the parties
agree to the amount to be paid. In no event shall the Trust or the Fund have any
obligation to the Distributor pursuant to this Section 5.
6. Expenses
A. The Advisor shall bear all costs and expenses in connection
with the registration of its Shares with the SEC and its
related compliance with state securities laws, as well as all
costs and expenses in connection with the offering of the
Shares and communications with shareholders, including but not
limited to: (i) fees and disbursements of its counsel and
independent public accountants; (ii) costs and expenses of the
preparation, filing, printing and mailing of Registration
Statements and Prospectuses, as well as related advertising
and sales literature; (iii) costs and expenses of the
preparation, printing and mailing of annual and interim
reports, proxy materials and other communications to
shareholders; and (iv) fees required in connection with the
offer and sale of Shares in such jurisdictions as shall be
selected by the Trust pursuant to Section 3(D) hereof.
B. The Distributor shall bear the expenses of registration or
qualification of the Distributor as a dealer or broker under
federal or state laws and the expenses of continuing such
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registration or qualification. The Distributor does not assume
responsibility for any expenses not expressly assumed
hereunder.
7. Indemnification
A. The Trust shall indemnify, defend and hold the Distributor and
each of its managers, officers, employees, representatives and
any person who controls the Distributor within the meaning of
Section 15 of the 1933 Act (collectively, the "Distributor
Indemnitees"), free and harmless from and against any and all
claims, demands, losses, expenses and liabilities of any and
every nature (including reasonable attorneys' fees)
(collectively, "Losses") that the Distributor Indemnitees may
sustain or incur or that may be asserted against a Distributor
Indemnitee by any person (i) arising out of or based upon any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any
Prospectus, or in any annual or interim report to shareholders
with respect to the Fund, or in any advertisements or sales
literature prepared by the Trust or its agent with respect to
the Fund, or (ii) arising out of or based upon any omission,
or alleged omission, to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or (iii) based upon the Trust's
refusal or failure to comply with the terms of this Agreement
or from its bad faith, negligence, or willful misconduct in
the performance of its duties under this Agreement; provided,
however, that with respect to clauses (i) and (ii) above, the
Trust's obligation to = indemnify the Distributor Indemnitees
shall not be deemed to cover any Losses arising out of any
untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement,
Prospectus, any such annual or interim report, or any such
advertisement or sales literature in reliance upon and in
conformity with written information relating to the
Distributor and furnished to the Trust or its counsel by the
Distributor for the purpose of, and used in, the preparation
thereof. The Trust's agreement to indemnify the Distributor
Indemnitees is expressly conditioned upon the Trust being
notified of such action or claim of loss brought against the
Distributor Indemnitees within a reasonable time after the
summons or other first legal process giving information of the
nature of the claim shall have been served upon the
Distributor Indemnitees, unless the failure to give notice
does not prejudice the Trust; provided, that the failure so to
notify the Trust of any such action shall not relieve the
Trust from any liability which the Trust may have to the
person against whom such action is brought by reason of any
such untrue, or alleged untrue, statement or omission, or
alleged omission, otherwise than on account of the Trust's
indemnity agreement contained in this Section 7(A).
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 Losses, but if the Trust
elects to assume the defense, such defense shall be conducted
by counsel chosen by the Trust and approved by the
Distributor, which approval shall not be unreasonably
withheld. In the event the Trust elects to assume the defense
of any such suit and retain such counsel, the Distributor
Indemnitees in such suit shall bear the fees and expenses of
any additional counsel retained by
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them. If the Trust does not elect to assume the defense of any
such suit, or in case the Distributor does not, in the
exercise of reasonable judgment, approve of counsel chosen by
the Trust, or if under prevailing law or legal codes of
ethics, the same counsel cannot effectively represent the
interests of both the Trust and the Distributor Indemnitees,
the Trust shall reimburse the Distributor Indemnitees for the
reasonable fees and expenses of any counsel retained by them
(but not more than one counsel for all Distributor
Indemnitees). The Trust's indemnification agreement contained
in Sections 7(A) and 7(B) herein shall remain operative and in
full force and effect regardless of any investigation made by
or on behalf of the Distributor Indemnitees and shall survive
the delivery of any Shares and the termination of this
Agreement. This agreement of indemnity shall inure exclusively
to the benefit of the Distributor Indemnitees and their
successors. The Trust agrees promptly to notify the
Distributor of the commencement of any litigation or
proceedings against the Trust or any of its officers or
trustees in connection with the offer and sale of any of the
Shares.
C. The Trust shall advance attorneys' fees and other expenses
reasonably incurred by any Distributor Indemnitee in defending
any claim, demand, action or suit which is the subject of a
claim for indemnification pursuant to this Section 7 to the
maximum extent permissible under applicable law.
D. The Distributor shall indemnify, defend and hold the Trust and
each of its trustees, officers, employees, representatives and
any person who controls the Trust within the meaning of
Section 15 of the 1933 Act (collectively, the "Trust
Indemnitees"), free and harmless from and against any and all
Losses that the Trust Indemnitees may sustain or incur or that
may be asserted against a Trust Indemnitee by any person (i)
arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in the Registration
Statement or any Prospectus, or in any annual or interim
report to shareholders with respect to the Fund, or in any
advertisements or sales literature prepared by the Distributor
with respect to the Fund, or (ii) arising out of or based upon
any omission, or alleged omission, to state therein a material
fact required to be stated therein or necessary to make the
statement not misleading, or (iii) based upon the
Distributor's refusal or failure to comply with the terms of
this Agreement or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this
Agreement; provided, however, that with respect to clauses (i)
and (ii), above, the Distributor's obligation to indemnify the
Trust Indemnitees shall only be deemed to cover Losses arising
out of any untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration
Statement, Prospectus, any such annual or interim report, or
any such advertisement or sales literature in reliance upon
and in conformity with written information relating to the
Distributor and furnished to the Trust or its counsel by the
Distributor for the purpose of, and used in, the preparation
thereof. The Distributor's agreement to indemnify the Trust
Indemnitees is expressly conditioned upon the Distributor
being notified of any action or claim of loss brought against
the Trust Indemnitees within a reasonable time after the
summons or other first legal process giving information of the
nature of the claim shall have been served upon the Trust
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Indemnitees, unless the failure to give notice does not
prejudice the Distributor; provided, that the failure so to
notify the Distributor of any such action shall not relieve
the Distributor from any liability which the Distributor may
have to the person against whom such action is brought by
reason of any such untrue, or alleged untrue, statement or
omission, otherwise than on account of the Distributor's
indemnity agreement contained in this Section 7(D).
E. The Distributor shall be entitled to participate at its own
expense in the defense, or if it so elects, to assume the
defense of any suit brought to enforce any such Losses, but if
the Distributor elects to assume the defense, such defense
shall be conducted by counsel chosen by the Distributor and
approved by the Trust, which approval shall not be
unreasonably withheld. In the event the Distributor elects to
assume the defense of any such suit and retain such counsel,
the Trust Indemnitees in such suit shall bear the fees and
expenses of any additional counsel retained by them. If the
Distributor does not elect to assume the defense of any such
suit, or in case the Trust does not, in the exercise of
reasonable judgment, approve of counsel chosen by the
Distributor, or if under prevailing law or legal codes of
ethics, the same counsel cannot effectively represent the
interests of both the Trust Indemnitees and the Distributor,
the Distributor shall reimburse the Trust Indemnitees for the
reasonable fees and expenses of any counsel retained by them
(but not more than one counsel for all Trust Indemnitees). The
Distributor's indemnification agreement contained in Sections
7(D) and 7(E) herein shall remain operative and in full force
and effect regardless of any investigation made by or on
behalf of the Trust Indemnitees and shall survive the delivery
of any Shares and the termination of this Agreement. This
agreement of indemnity shall inure exclusively to the benefit
of the Trust Indemnitees and their successors. The Distributor
agrees promptly to notify the Trust of the commencement of any
litigation or proceedings against the Distributor or any of
its officers or directors in connection with the offer and
sale of any of the Shares.
F. The Distributor shall advance attorneys' fees and other
expenses reasonably incurred by any Trust Indemnitee in
defending any claim, demand, action or suit which is the
subject of a claim for indemnification pursuant to this
Section 7 to the maximum extent permissible under applicable
law.
G. No party to this Agreement shall be liable to the other
parties for consequential, special or punitive damages under
any provision of this Agreement.
H. No person shall be obligated to provide indemnification under
this Section 7 if such indemnification would be impermissible
under the 1940 Act, the 1933 Act, the 1934 Act or the rules of
the NASD; provided, however, in such event indemnification
shall be provided under this Section 7 to the maximum extent
so permissible.
8. Proprietary and Confidential Information
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The Distributor agrees on behalf of itself and its managers, officers,
and employees to treat confidentially and as proprietary information of the
Trust, all records and other information relative to the Trust and prior,
present or potential shareholders of the Trust (and clients of said
shareholders), and not to use such records and information for any purpose other
than the performance of its responsibilities and duties hereunder, except (i)
after prior notification to and approval in writing by the Trust, which approval
shall not be unreasonably withheld and may not be withheld where the Distributor
may be exposed to civil or criminal contempt proceedings for failure to comply,
(ii) when requested to divulge such information by duly constituted authorities,
or (iii) when so requested by the Trust. Records and other information which
have become known to the public through no wrongful act of the Distributor or
any of its employees, agents or representatives, and information that was
already in the possession of the Distributor prior to receipt thereof from the
Trust or its agent, shall not be subject to this paragraph.
Further, the Distributor shall adhere to the privacy policies adopted
by the Trust pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be
modified from time to time. In this regard, the Distributor shall have in place
and maintain physical, electronic and procedural safeguards reasonably designed
to protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of, records and information relating to the Trust
and its shareholders.
9. Records
The Distributor shall keep records relating to the services to be
performed hereunder in the form and manner, and for such period, as it may deem
advisable and is agreeable to the Trust, but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31 of
the 1940 Act and the rules thereunder. The Distributor agrees that all such
records prepared or maintained by the Distributor relating to the services to be
performed by the Distributor hereunder are the property of the Trust and shall
be preserved, maintained, and made available in accordance with such applicable
sections and rules of the 1940 Act and shall be promptly surrendered to the
Trust or its designee on and in accordance with its request.
10. Compliance with Laws
The Trust acknowledges that it has and retains primary responsibility
for all compliance matters relating to the Fund, including but not limited to
compliance with the 1940 Act, the Internal Revenue Code of 1986, the
Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot Act of 2002 and the policies and
limitations of the Fund relating to its portfolio investments as set forth in
its Prospectus and statement of additional information. The Distributor's
services hereunder shall not relieve the Trust of its responsibilities for
assuring such compliance or the Board of Trustee's oversight responsibility with
respect thereto.
11. Term of Agreement; Amendment; Assignment
A. This Agreement shall become effective as of the date hereof.
Unless sooner terminated as provided herein, this Agreement
shall continue in effect for two years from the date hereof.
Thereafter, if not terminated, this Agreement shall continue
in effect automatically for successive one-year periods,
provided such
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continuance is specifically approved at least annually by: (i)
the Board of Trustees, or (ii) the vote of a "majority of the
outstanding voting securities" of the Fund, and provided that
in either event, the continuance is also approved by a
majority of the Board of Trustees who are not "interested
persons" of any party to this Agreement, by a vote cast in
person at a meeting called for the purpose of voting on such
approval.
B. Notwithstanding the foregoing, this Agreement may be
terminated, without the payment of any penalty (i) through a
failure to renew this Agreement at the end of a term, (ii)
upon mutual consent of the parties, or (iii) upon not less
than 60 days' written notice, by either the Trust upon the
vote of a majority of the members of its Board who are not
"interested persons" of the Trust and have no direct or
indirect financial interest in the operation of this
Agreement, or by vote of a "majority of the outstanding voting
securities" of the Fund, by the Advisor, or by the
Distributor. The terms of this Agreement shall not be waived,
altered, modified, amended or supplemented in any manner
whatsoever except by a written instrument signed by all
parties. If required under the 1940 Act, any such amendment
must be approved by the Board, including a majority of the
Board who are not "interested persons" of any party to this
Agreement, by a vote cast in person at a meeting for the
purpose of voting on such amendment. In the event that such
amendment affects the Advisor, the written instrument shall
also be signed by the Advisor. This Agreement shall
automatically terminate in the event of its "assignment."
C. As used in this Section, the terms "majority of the
outstanding voting securities," "interested person," and
"assignment" shall have the same meaning as such terms have in
the 1940 Act.
D. Sections 7, 8, 9, 10, 12, 13 and 17 shall survive termination
of this Agreement.
12. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any
of the Distributor's duties or responsibilities hereunder is designated by the
Trust by written notice to the Distributor, the Distributor shall promptly, upon
such termination and at the reasonable expense of the Trust, transfer to such
successor all relevant books, records, correspondence, and other data
established or maintained by the Distributor under this Agreement in a form
reasonably acceptable to the Trust (if such form differs from the form in which
the Distributor has maintained the same, the Trust shall pay any reasonable
expenses associated with transferring the data to such form), and shall
cooperate in the transfer of such duties and responsibilities, including
provision for assistance from the Distributor's personnel in the establishment
of books, records, and other data by such successor. If no such successor is
designated, then such books, records and other data shall be returned to the
Trust.
13. Governing Law
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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.
14. No Agency Relationship
Except as otherwise set forth in this Agreement, nothing herein
contained shall be deemed to authorize or empower any party to act as agent for
any other party to this Agreement, or to conduct business in the name, or for
the account, of the other party to this Agreement.
15. Services Not Exclusive
Nothing in this Agreement shall limit or restrict the Distributor from
providing services to other parties that are similar or identical to some or all
of the services provided hereunder.
16. Invalidity
Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. In such case, the
parties shall in good faith modify or substitute such provision consistent with
the original intent of the parties.
17. Notices
Any notice required or permitted to be given by any party to the others
shall be in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three days after sent by registered or
certified mail, postage prepaid, return receipt requested, or on the date sent
and confirmed received by facsimile transmission to the other parties'
respective addresses as set forth below:
Notice to the Distributor shall be sent to:
Quasar Distributors, LLC
Attn: President
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
notice to the Trust and Advisor shall be sent to:
Xxxxxxx Investment Trust
Attn: President
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
12
18. Declaration of Trust
This agreement is the entire agreement among the parties with respect
to the subject matter hereof. The Distributor and the Advisor
acknowledge and agree that the obligations of the Trust hereunder are
not binding upon any of the trustees or representatives of the Trust
individually, but only on the assets of the Trust, and that they must
look solely to the assets of the Trust belonging to a Fund for the
enforcement of any claims against the Trust with respect to services on
behalf of such Fund (and not to the assets of the Trust belonging to
any other Fund).
19. Multiple Originals
This Agreement may be executed on two or more counterparts, each of
which when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
XXXXXXX INVESTMENT TRUST QUASAR DISTRIBUTORS, LLC
By:_____________________________ By:______________________________
Name:___________________________ Name:____________________________
Title:____________________________ Title:_____________________________
XXXXXXX INVESTMENT PARTNERS, L.P.
By:______________________________
Name:___________________________
Title:_____________________________
13
Exhibit A to the Xxxxxxx Investment Trust
Distribution Agreement
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QUASAR DISTRIBUTORS, LLC
REGULATORY DISTRIBUTION SERVICES
ANNUAL FEE SCHEDULE
--------------------------------------------------------------------------------
Basic Distribution Services*
----------------------------
o $2,500 annually, payable monthly in arrears
Advertising Compliance Review/NASD Filings
------------------------------------------
o $175 per job for the first 10 pages (minutes if tape or video); $20 per page
(minutes if tape or video) thereafter.
o Non-NASD filed materials, e.g. Internal Use Only Materials
$75 per job for the first 10 pages (minutes if audio or video); $25 per page
(minutes if tape or video) thereafter.
o NASD Expedited Service for 3 Day Turnaround
$1,000 for the first 10 pages (minutes if audio or video); $25 per page
(minute if audio or Video) thereafter. (Comments are faxed. NASD may not
accept expedited request.)
Licensing of Investment Advisor's Staff (if desired)
----------------------------------------------------
o $750 per year registered representative ("RR")
o Quasar is limited to these licenses for sponsorship: Series
6,7,24,26,27,63,66
o Plus all associated NASD and state fees for Registered Representatives,
including license and renewal fees.
Fund Fact Sheets
----------------
o Design - $1,000 per fact sheet, includes first production
o Production - $500.00 per fact sheet per production period
o All printing costs are out-of-pocket expenses, and in addition to the design
fee and production fee.
Out-of-Pocket Expenses
----------------------
Reasonable our-of-pocket expenses incurred by the Distributor in connection with
activities primarily intended to result in the sale of Shares, including,
without limitation:
o typesetting, printing and distribution of Prospectuses and shareholder
reports
o production, printing, distribution and placement of advertising and sales
literature and materials
o engagement of designers, free-xxxxx writers and public relations firms
o long-distance telephone lines, services and charges
o postage
o overnight delivery charges
o NASD registration fees
(NASD advertising filing fees are included in Advertising Compliance Review
section above)
o record retention
o travel, lodging and meals
Fees are billed monthly
*Subject to CPI increase, Milwaukee MSA.
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