ETF DISTRIBUTION AGREEMENT
This ETF Distribution Agreement (this “Agreement”) is made effective as of August 20, 2026, by and among GuideStone Funds, a Delaware statutory trust (the “Trust”), on behalf of itself and the fund(s) listed on Schedule B, as may be amended from time to time (each, a “Fund”, and collectively, the “Funds”), GuideStone Capital Management, LLC, a Texas limited liability company (the “Adviser”), and Ultimus Fund Distributors, LLC, an Ohio limited liability company (the “Distributor”).
WHEREAS, the Trust is, registered as an open-end investment management company organized as a statutory trust and comprised of a number of series of securities, each series representing a portfolio of securities, having filed with the Securities and Exchange Commission (the “SEC”) a registration statement on Form N-1A under the Securities Act of 1933, as amended (the “1933 Act”), and the Investment Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, the Trust intends to create and redeem shares (the “Shares”) of each Fund on a continuous basis only in aggregations of Shares constituting a “Creation Unit” as such term is defined in the registration statement;
WHEREAS, the Shares of each Fund will be listed on one or more national securities exchanges (together, the “Listing Exchanges”);
WHEREAS, the Trust desires to retain the Distributor to act as the distributor with respect to the distribution of Creation Units of each Fund;
WHEREAS, the Distributor is a registered broker-dealer under the Securities Exchange Act of 1934, as amended (the “1934 Act”) and a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”); and
WHEREAS, the Distributor desires to provide the services described herein to the Trust and Funds.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, intending to be legally bound, the Trust, on behalf of itself and the Fund, and the Distributor hereby agree as follows:
1. Sale of Creation Units; Services
(a) The Trust grants to the Distributor the exclusive right to sell Creation Units of each Fund listed on Schedule B hereto, on the terms and during the term of this Agreement and subject to the registration requirements of the 1933 Act and the rules and regulations of the SEC, and the Distributor hereby accepts such appointment and agrees to act in such capacity hereunder. Without limiting the foregoing, the Distributor shall perform the distribution services and shall perform the marketing services set forth in Schedule A. The Distributor shall perform its services under this Agreement with due care, in good faith, and in a manner consistent with industry standards and applicable law and regulations including FINRA rules. The Trust acknowledges and agrees that Distributor does currently and may in the future distribute shares of other investment companies including investment companies having investment objectives similar to those of the Funds. The Trust further understands that existing and future investors in a Fund may invest in shares of such other investment companies. The Trust agrees that the services that Distributor provides to such other investment companies shall not be deemed in conflict with its duties to the Fund under this Agreement.
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| (b) |
Duties of the Distributor |
| a. |
The Distributor agrees that at the request of the Trust, the Distributor shall enter into certain agreements (“Participant Agreements”) between and among DTC Participants or participants in the Continuous Net Settlement System of the National Securities Clearing Corporation (“Authorized Participants”), the Distributor and the transfer agent (as applicable), for the purchase of Creation Units of a Fund. |
| b. |
The Distributor shall consult with the Trust or its agent with respect to the production and printing of prospectuses to be used in connection with creations by Authorized Participants of Creation Units. The Distributor will generally make it known in the brokerage community that Funds’ prospectuses and statements of additional information (“SAI”) are available, including by (i) advising the Listing Exchanges on behalf of its member firms of the same, (ii) making such disclosure in all marketing and advertising materials prepared and/or filed by the Distributor with FINRA, and (iii) as may otherwise be required by the SEC. The Distributor shall not bear any costs associated with printing prospectuses, SAIs and other such materials. |
| c. |
The Distributor will deliver copies of a Fund’s prospectus to purchasers of Creation Units and, upon request, will deliver the SAI. |
| d. |
The Distributor shall review and approve all sales and marketing materials for compliance with applicable laws and conditions of any applicable exemptive order within three (3) business days of their submission by the Trust to the Distributor and file such materials with FINRA as necessary or appropriate. For an additional fee, the Trust or the Adviser may request an expedited review of advertising materials, in which case Distributor will use commercially reasonable efforts to have any comments returned the next business day following the date of submission. Submissions received by Distributor after 12:00 p.m. (noon) Eastern Time on a business day will be deemed received on the next business day. All sales and marketing materials must be approved, in writing, by the Distributor prior to use, such approval not to be unreasonably withheld. |
| e. |
If the Trust, on behalf of any Fund, adopts a distribution and/or shareholder servicing plan(s) pursuant to Rule 12b-1 under the 1940 Act (the “Plan”), the Distributor shall enter into selling and/or investor servicing agreements or similar (“Sales and Investor Services Agreements”), consistent with applicable law and the registration statement and prospectus, with various broker-dealers, to sell Shares and provide services to shareholders. The Distributor agrees that (i) it shall assist in the administration of any Plan(s); (ii) it shall, at its own expense, set up and maintain a system of recording payments of fees and reimbursement of expenses disseminated pursuant to this Agreement and other agreements related to any such Plan(s) and, pursuant to the 1940 Act, report such payment activity to the Trust at least quarterly; (iii) it shall receive from the Trust all distribution and shareholder servicing fees, as applicable, at the rate and to the extent payable under the terms and conditions set forth in any Plan(s) adopted by the Trust, applicable to the appropriate class of Shares of each Fund or class of Shares thereof, as such Plan(s) may be amended from time to time, and subject to any further limitations on such fees as the Board of Trustees of the Trust may impose; and (iv) it shall pay, from the fees received from the Trust pursuant to any such Plan(s), all fees and make reimbursement of all expenses, pursuant to and in accordance with such Plan(s) and any and all Sales and Investor Services Agreements. In no event shall Distributor pay any fees pursuant to any such Plan(s) until it has received payment of such fees from the Trust or the Adviser. |
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| f. |
The Distributor has as of the date hereof, and shall at all times have and maintain, net capital of not less than that required by Rule 15c3-1 under the 1934 Act, or any successor provision thereto. In the event that the net capital of the Distributor shall fall below that required by Rule 15c3-1, or any successor provision thereto, the Distributor shall promptly provide notice to the Trust and the Adviser of such event. |
| g. |
The Distributor agrees to maintain and preserve such records as are required by Section 31 of the 1940 Act and the rules thereunder. |
| h. |
The Distributor agrees to maintain compliance policies and procedures (a “Compliance Program”) that are reasonably designed to prevent violations of the Federal Securities Laws (as defined in Rule 38a-1 of the 1940 Act) with respect to the Distributor’s services under this Agreement, and to provide any and all information with respect to the Compliance Program, including without limitation, information and certifications with respect to material violations of the Compliance Program and any material deficiencies or changes therein, as may be reasonably requested by the Trust’s Chief Compliance Officer or Board of Trustees. |
| i. |
Upon reasonable request by the Trust, the Distributor shall provide the Trust with information relating to the services provided pursuant to this Agreement as necessary and applicable to enable the Trust to complete required regulatory filings. |
2. Solicitation of Sales
In consideration of these rights granted to the Distributor, the Distributor agrees to use reasonable efforts in connection with the distribution of Creation Units of the Fund; provided, however, that the Distributor shall not be prevented from entering into like arrangements with other issuers. The Trust reserves the right to suspend sales upon due notice to Distributor if in the judgment of the Trust it is in the best interests of the Trust to do so.
3. Authorized Representations
The Distributor is not authorized by the Trust to give any information or to make any representations other than those contained in the current registration statements and prospectuses of the Trust filed with the SEC or contained in shareholder reports or other material that may be prepared by or on behalf of the Trust for the Distributor’s use. The Distributor may prepare and distribute sales literature and other material as it may deem appropriate, provided that such literature and materials have been prepared in accordance with applicable rules and regulations and approved by the Fund’s Adviser.
4. Registration of Shares
(a) The Trust and Fund agree that they will take all action necessary to register an unlimited number of Shares on Form N-1A. The Trust and Fund shall make available to the Distributor such number of copies of the currently effective prospectus and statement of additional information as the Distributor may reasonably request. The Fund shall furnish to the Distributor copies of all information, financial statements and other papers which the Distributor may reasonably request for use in connection with the distribution of Creation Units of the Fund. The Trust represents and warrants that it has or will have made as of the date on which Distributor begins distributing Creation Units, all applicable filings to exempt the Creation Units from registration under applicable rules and regulations.
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(b) The Trust agrees to issue Creation Units of each Fund and to request DTC to record on its books the ownership of the Shares constituting such Creation Units, in accordance with the book-entry system procedures described in the prospectus, in such amounts as the Distributor has requested through the transfer agent in writing or other means of data transmission, as promptly as practicable after receipt by the Trust of the requisite deposit securities and cash component (together with any fees) and acceptance of such order, upon the terms described in the registration statement and Participant Agreement. The Trust may reject any order for Creation Units or stop all receipts of such orders at any time upon reasonable notice to the Distributor, in accordance with the provisions of the prospectus and statement of additional information.
5. Compensation
(a) In consideration of Distributor’s services hereunder, the Adviser agrees to pay to Distributor the fees and charges set forth on Schedule B, attached hereto. Fees will begin to accrue with respect to each Fund on the latter of the date of this Agreement or the date Distributor begins providing services to or on behalf of such Fund.
(b) The Fund shall bear the cost and expenses of the registration of the Creation Units for sale under the 1933 Act.
(c) Notwithstanding anything in this Agreement to the contrary, the Distributor may receive compensation or reimbursement from Fund assets if and to the extent approved by the Board of Trustees of the Trust and otherwise legally permissible (e.g., paid in accordance with a board approved 12b-1 plan).
6. Indemnification of Distributor
(a) The Trust agrees to indemnify and hold harmless the Distributor and each of its managers and officers and each person, if any, who controls the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees and disbursements incurred in connection therewith), arising by reason of any person acquiring any Shares or Creation Units, based upon (i) the ground that the registration statement, prospectus, shareholder reports or other information filed or made public by the Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements made not misleading, (ii) the Trust’s failure to maintain an effective registration statement and prospectus with respect to Shares of the Fund that are the subject of the claim or demand, (iii) the Trust’s failure to properly register Fund Shares under applicable state laws, (iv) instructions given by the Trust, the Trust’s failure to perform its duties hereunder or any inaccuracy of its representations, (v) any claim brought under Section 11 of the 1933 Act, or (vi) all actions taken by Distributor hereunder resulting from Distributor’s reasonable, good faith reliance on instructions received from an officer, agent or approved service provider of the Trust; provided, however, that this indemnification shall not apply to any loss, liability, claim, damages or expense arising from the Distributor’s own Disqualifying Conduct (as defined below), breach of this Agreement or violation of applicable law.
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(b) In no case (i) is the indemnity of the Trust to be deemed to protect the Distributor or any other person against any liability to which the Distributor or such person otherwise would be subject by reason of willful misfeasance, willful misconduct, bad faith, fraud or gross negligence in the performance of duties or by reason of reckless disregard of obligations and duties under this Agreement (“Disqualifying Conduct”) by such party, or (ii) is the Trust to be liable to the Distributor under the indemnity agreement contained in this Section 6 with respect to any claim made against the Distributor or any person indemnified unless the Distributor or other person shall have notified the Trust in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Distributor or such other person (or after the Distributor or the person shall have received notice of service on any designated agent). However, failure to notify the Trust of any claim shall not relieve the Trust from any liability which it may have to the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph.
(c) 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 claims subject to this indemnity provision. If the Trust elects to assume the defense of any such claim, the defense shall be conducted by counsel chosen by the Trust and satisfactory to the indemnified defendants in the suit whose approval shall not be unreasonably withheld. In the event that the Trust elects to assume the defense of any suit and retain counsel, the indemnified defendants shall bear the fees and expenses of any additional counsel retained by them. If the Trust does not elect to assume the defense of a suit, it will reimburse the indemnified defendants for the reasonable fees and expenses of any counsel retained by the indemnified defendants. Notwithstanding the foregoing, the Trust shall not settle any claim or action in a manner that imposes any non-monetary obligation, injunctive relief, or any admission of fault or regulatory liability on the indemnified party without the prior written consent of the indemnified party.
(d) The Trust agrees to notify the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or Trustees in connection with the issuance or sale of Shares or Creation Units.
7. Indemnification of Trust
(a) The Distributor covenants and agrees that it will indemnify and hold harmless the Trust and each of its Trustees and officers and each person, if any, who controls the Trust within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees and disbursements incurred in connection therewith) arising out of or based upon any (i) Disqualifying Conduct by Distributor in connection with the offering and sale of any Shares; (ii) material breach of this Agreement by the Distributor; (iii) breach of the Distributor’s representations and warranties contained in this Agreement; (iv) violation of applicable law, FINRA rules, or any applicable exemptive order by the Distributor in performing its services under this Agreement; or (v) breach by the Distributor of its confidentiality obligations under this Agreement.
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(b) In no case (i) is the indemnity of the Distributor in favor of the Trust or any other person indemnified to be deemed to protect the Trust or any other person against any liability to which the Trust or such other person would otherwise be subject by reason of Disqualifying Conduct by such party, or (ii) is the Distributor to be liable under its indemnity agreement contained in this Section 7 with respect to any claim made against the Trust or any person indemnified unless the Trust or person, as the case may be, shall have notified the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Trust or upon any person (or after the Trust or such person shall have received notice of service on any designated agent). However, failure to notify the Distributor of any claim shall not relieve the Distributor from any liability which it may have to the Trust or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph.
(c) 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 the claim subject to this indemnity provision, but if the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by the Distributor and satisfactory to the indemnified defendants whose approval shall not be unreasonably withheld. In the event that the Distributor elects to assume the defense of any suit and retain counsel, the defendants in the 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 suit, it will reimburse the indemnified defendants in the suit for the reasonable fees and expenses of any counsel retained by the indemnified defendants. Notwithstanding the foregoing, the Distributor shall not settle any claim or action in a manner that imposes any non-monetary obligation, injunctive relief, or any admission of fault or regulatory liability on the indemnified party without the prior written consent of the indemnified party.
(d) The Distributor agrees to notify the Trust promptly of the commencement of any litigation or proceedings against it or any of its officers in connection with the sale of Shares or Creation Units.
8. Consequential Damages
In no event and under no circumstances shall either party to this Agreement be liable to anyone, including, without limitation, the other party, for consequential damages for any act or failure to act under any provision of this Agreement including trading losses, special, incidental, punitive, exemplary damages or lost profits or other indirect damages, whether or not such damages were foreseeable or the party was advised of the possibility thereof ; provided, however, that the foregoing exclusion shall not apply to: (i) any loss, liability, damages, claim or expense arising out of or related to a party’s third-party indemnification obligations under this Agreement; (ii) any breach by a party of its confidentiality obligations under this Agreement; or (iii) any loss, liability, damages, claim or expense arising out of or resulting from the breaching party’s gross negligence, fraud, bad faith, willful misconduct, willful misfeasance or reckless disregard of its duties and obligations under this Agreement.
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9. Effective Date
This Agreement shall be effective as of the date first above written, and, unless terminated as provided, shall continue in force through the second anniversary of its effective date, and thereafter from year to year, provided that such annual continuance is approved by (i) either the vote of a majority of the Trustees of the Trust, or the vote of a majority of the outstanding voting securities of the Trust, and (ii) the vote of a majority of those Trustees of the Trust who are not parties to this Agreement or the Trust’s distribution plan or interested persons of any such party (“Qualified Trustees”), cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph the terms “vote of a majority of the outstanding voting securities,” “assignment” and “interested person” shall have the respective meanings specified in the 1940 Act. In addition, this Agreement may at any time be terminated without penalty by the Trust, by a vote of a majority of Qualified Trustees or by vote of a majority of the outstanding voting securities of the Trust upon sixty days prior written notice to the Distributor or by the Distributor upon sixty days prior written notice to the Trust. Upon the termination of this Agreement for any reason, the Distributor shall cooperate fully and in good faith with the Trust to effect an orderly transition of distribution services to any successor distributor designated by the Trust. Such cooperation shall include, without limitation: (i) promptly transferring to the Trust or its designee all books, records, data, and other materials relating to the Trust that are in the Distributor’s possession or control; (ii) providing reasonable assistance and information to any successor distributor to facilitate the uninterrupted continuation of distribution services; and (iii) refraining from any action that would impair or delay such transition. The Distributor shall complete such transition activities within a reasonable period following the effective date of termination, and in any event within the timeframe reasonably requested by the Trust. Notwithstanding the termination of this Agreement for any reason, the following obligations of the parties shall survive termination and remain in full force and effect: (i) each party’s confidentiality obligations under this Agreement; (ii) each party’s indemnification obligations under Sections 6 and 7 of this Agreement with respect to any claims, losses, liabilities, damages, or expenses arising out of acts or omissions occurring prior to or in connection with the termination of this Agreement; and (iii) the Distributor’s recordkeeping obligations under this Agreement and applicable law, including without limitation any obligations imposed by the 1940 Act, the 1933 Act, and the rules and regulations of FINRA, for such periods as are required by applicable law or regulation.
10. Notices
(a) All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, (b) on the fifth business day following the date of mailing, if mailed by registered or certified mail, return receipt requested, postage prepaid to the party to receive such notice, (c) if dispatched via a nationally recognized overnight courier service (delivery receipt requested) with charges paid by the dispatching party, on the later of (i) the first business day following the date of dispatch, or (ii) the scheduled date of delivery by such service, or (d) on the date sent by electronic mail if sent during normal business hours of the recipient during a business day, and otherwise on the next business day, if sent after normal business hours of the recipient, provided that in the case of electronic mail, each notice or other communication shall be confirmed within one business day by dispatch of a copy of such notice pursuant to one of the other methods described herein, at the following addresses, or such other address as a party may designate from time to time by notice in accordance with this Section.
If to the Trust:
GuideStone Funds
Attn: Vice President – Fund Operations
5005 Lyndon B. Johnson Freeway, Suite 2200
Dallas, TX 75244-6152
GSCMOPS@GuideStone.og
If to the Adviser:
GuideStone Capital Management, LLC
Attn: Vice President – Fund Operations
5005 Lyndon B. Johnson Freeway, Suite 2200
Dallas, TX 75244-6152
GSCMOPS@GuideStone.og
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If to Distributor:
Ultimus Fund Distributors, LLC
Attn: Legal Department
225 Pictoria Drive #450
Cincinnati, OH 45246, USA
legal@ultimusfundsolutions.com
11. Limitation of Liability
A copy of the Certificate of Trust is on file with the Secretary of State of the State of Delaware and the Trust’s Trust Instrument is on file with the Trust. Notice is hereby given that this Agreement is executed on behalf of the Trustees of the Trust as Trustees and not individually and that the obligations of this instrument are not binding upon any of the Trustees, officers or shareholders of the Trust individually but binding only upon the assets and property of the applicable Fund or Trust, as relevant.
This Agreement is executed by or on behalf of the Trust with respect to each of the Funds. It is expressly acknowledged and agreed that the obligations hereunder are binding only upon the Fund to which such obligations pertain and the assets and property of such Fund. The Distributor understands that the rights and obligations of each series of shares of the Trust under the Trust Instrument are separate and distinct from those of any and all other series. This Agreement and the obligations hereunder are not binding upon any of the directors, officers or shareholders of a Fund individually.
12. Dispute Resolution; Venue and Forum Selection
Whenever either party desires to institute legal proceedings against the other concerning this Agreement, it shall provide written notice to that effect to such other party. The party providing such notice shall refrain from instituting said legal proceedings for a period of 60 days following the date of provision of such notice. During such period, the parties shall attempt in good faith to amicably resolve their dispute by negotiation among their executive officers.
Each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, if such court lacks subject matter jurisdiction, the United States District Court for the District of Delaware, for the resolution of any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, or validity thereof that is not resolved pursuant to the negotiation process set forth above. Each party hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any such proceeding in such courts, and any claim that any such proceeding brought in such courts has been brought in an inconvenient forum.
13. Entire Agreement; Amendments
This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior agreement, draft or proposal with respect to the subject matter hereof. This Agreement or any part hereof may be changed or waived only by an instrument in writing signed by the party against which enforcement of such change or waiver is sought.
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14. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any conflict of laws or choice of laws rules or principles thereof. To the extent that the applicable laws of the State of Delaware, or any of the provisions of this Agreement, conflict with the applicable provisions of the 1933 Act or the 1940 Act, these acts shall control.
15. Counterparts
This Agreement may be executed in two or more counterparts, all of which shall constitute one and the same instrument. Each such counterpart shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart. This Agreement shall be deemed executed by both parties when any one or more counterparts hereof or thereof, individually or taken together, bears the original or facsimile signatures of each of the parties.
16. Force Majeure
No breach of any obligation of a party to this Agreement (other than obligations to pay amounts owed) will constitute an event of default or breach to the extent it arises out of a cause, existing or future, that is beyond the control and without negligence of the party otherwise chargeable with breach or default, including without limitation: work action or strike; lockout or other labor dispute; flood; war; riot; theft; act of terrorism, earthquake or natural disaster; pandemic; epidemic; cyberattack; and interruption, failure, or disruption of utilities, telecommunications services, or internet services.
Either party desiring to rely upon any of the foregoing as an excuse for default or breach will, when the cause arises, give to the other party prompt notice of the facts which constitute such cause; ; use commercially reasonable efforts to mitigate the effects of such cause and resume performance as soon as reasonably practicable; and, when the cause ceases to exist, give prompt notice thereof to the other party. Each party shall maintain and keep current commercially reasonable business continuity and disaster recovery plans designed to enable continued performance, or prompt resumption of performance, of its obligations under this Agreement in the event of a force majeure event.
If a force majeure event continues for more than thirty (30) consecutive days and materially prevents performance by a party of its obligations under this Agreement, then the party not affected by such force majeure event may terminate this Agreement upon written notice to the affected party without liability except for obligations accrued prior to the effective date of termination.
17. Severability
Any provision of this Agreement that is determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. If a court of competent jurisdiction declares any provision of this Agreement to be invalid or unenforceable, the parties agree that the court making such determination shall have the power to reduce the scope, duration, or area of the provision, to delete specific words or phrases, or to replace the provision with a provision that is valid and enforceable and that comes closest to expressing the original intention of the parties, and this Agreement shall be enforceable as so modified.
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18. Confidential Information
(a) The Distributor and the Trust (in such capacity, as applicable, the “Receiving Party”) acknowledge and agree to maintain the confidentiality of Confidential Information (as hereinafter defined) provided by the Distributor and the Trust (in such capacity, as applicable, the “Disclosing Party”) in connection with this Agreement. The Receiving Party shall not disclose or disseminate the Disclosing Party’s Confidential Information to any person other than (a) those employees, agents, contractors, subcontractors and licensees of the Receiving Party, or (b) those employees, agents, contractors, subcontractors and licensees of any agent or affiliate, who have a need to know it in order to assist the Receiving Party in performing its obligations, or to permit the Receiving Party to exercise its rights under this Agreement. In addition, the Receiving Party (a) shall take all reasonable steps to prevent unauthorized access to the Disclosing Party’s Confidential Information, and (b) shall not use the Disclosing Party’s Confidential Information, or authorize other persons to use the Disclosing Party’s Confidential Information, for any purposes other than in connection with performing its obligations or exercising its rights hereunder. As used herein, “reasonable steps” means steps that a party takes to protect its own, similarly confidential or proprietary information of a similar nature, which steps shall in no event be less than a reasonable standard of care.
(b) The term “Confidential Information,” as used herein, shall mean all business strategies, plans and procedures, proprietary information, methodologies, data and trade secrets, client and customer information, and other confidential information and materials (including, without limitation, any non-public personal information as defined in Regulation S-P) of the Disclosing Party, its affiliates, their respective clients or suppliers, or other persons with whom they do business, that may be obtained by the Receiving Party from any source or that may be developed as a result of this Agreement.
(c) The provisions of this Section 18 respecting Confidential Information shall not apply to the extent, but only to the extent, that such Confidential Information: (a) is already known to the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party, (b) is subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (c) is or becomes publicly available through no wrongful act of the Receiving Party or any third party; (d) is independently developed by or for the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party; or (e) is required to be disclosed pursuant to an applicable law, rule, regulation, government requirement or court order, or the rules of any stock exchange (provided, however, that the Receiving Party shall advise the Disclosing Party of such required disclosure promptly upon learning thereof in order to afford the Disclosing Party a reasonable opportunity to contest, limit and/or assist the Receiving Party in crafting such disclosure).
(d) The Receiving Party shall advise its employees, agents, contractors, subcontractors and licensees, and shall require its agents to advise their employees, agents, contractors, subcontractors and licensees, of the Receiving Party’s obligations of confidentiality and non-use under this Section 18, and shall be responsible for ensuring compliance by its employees, agents, contractors, subcontractors and licensees with such obligations. The Receiving Party shall promptly notify the Disclosing Party in writing upon learning of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information by such persons.
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(e) Upon the Disclosing Party’s written request following the termination of this Agreement, the Receiving Party promptly shall return to the Disclosing Party, or destroy, all Confidential Information of the Disclosing Party provided under or in connection with this Agreement, including all copies, portions and summaries thereof. Notwithstanding the foregoing sentence, (a) the Receiving Party may retain copies of each item of the Disclosing Party’s Confidential Information for purposes of identifying and establishing its rights and obligations under this Agreement, for archival or audit purposes and/or to the extent required by applicable law, and (b) the Distributor shall have no obligation to return or destroy Confidential Information of the Trust that resides on save tapes or other electronic forms; provided, however, that in either case identified above all such Confidential Information retained by the Receiving Party shall remain subject to the provisions of Section 18 for so long as it is so retained. If requested by the Disclosing Party, the Receiving Party shall certify in writing its compliance with the provisions of this paragraph.
(f) Data Security; Security Incidents. The Receiving Party shall develop, implement, maintain and periodically review a comprehensive written information-security program designed to protect the security, confidentiality and integrity of Confidential Information, including, without limitation, any non-public personal information of the Trust or any shareholder of the Trust, and to protect against any anticipated threats or hazards to the security or integrity of such information and unauthorized access to or use of such information. Such written information-security program shall include administrative, technical and physical safeguards appropriate to the Receiving Party’s size and complexity, the nature and scope of its activities, and the sensitivity of the Confidential Information, including policies and procedures for risk assessment, access controls, encryption or other appropriate protections, systems monitoring, incident response, business continuity, vendor oversight, employee training and secure disposal. The Receiving Party shall promptly (but no later than 72 hours after the discovery of any actual or reasonably suspected unauthorized access to or use of Confidential Information), and in no event later than the time required by applicable law (including, without limitation, the amended Regulation S-P incident-response and notification requirements), notify the Disclosing Party in writing upon becoming aware of any actual or reasonably suspected unauthorized access to or use of Confidential Information involving non-public personal information of the Trust or any shareholder of the Trust, or any other security incident involving Confidential Information that materially compromises, or is reasonably likely to materially compromise, the confidentiality, security or integrity of such information or of any information system maintaining such information. Such notice shall be made as soon as practicable and shall include, to the extent then known, all material information reasonably available regarding the nature and scope of the incident, the information involved, the remediation and containment steps taken or proposed to be taken, and the status of any investigation, and the Receiving Party shall promptly supplement such notice as additional material information becomes available. The Receiving Party shall take all appropriate steps to contain, investigate, mitigate and remediate any such incident and shall cooperate fully with the Disclosing Party in connection with the Disclosing Party’s compliance with applicable law and regulation.
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19. Anti-Money Laundering
The Distributor represents and warrants that it has established, implemented, and maintains a written anti-money laundering program that complies in all material respects with applicable federal anti-money laundering laws and regulations, including, without limitation, the Bank Secrecy Act (31 U.S.C. § 5311 et seq.) and its implementing regulations, and Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), including applicable customer identification program, customer due diligence, and beneficial ownership requirements. The Distributor further represents and warrants that it maintains policies and procedures reasonably designed to screen customers and transactions against the sanctions lists and programs administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), and that it does not knowingly engage in any transaction or dealing with any person or entity that is the subject of applicable OFAC sanctions. The Distributor agrees to notify the Trust of any suspicious activity of which it becomes aware relating to transactions involving Shares. Upon reasonable request, the Distributor agrees to provide the Trust with documentation relating to its anti-money laundering policies and procedures.
20. Use of Name
(a) The Trust shall not use the name of the Distributor in any prospectus or statement of additional information, sales literature, and other material relating to the Trust in any manner without the prior written consent of the Distributor (which shall not be unreasonably withheld); provided, however, that the Distributor hereby approves all lawful uses of the names of the Distributor in the prospectus and statement of additional information of the Trust and in all other materials which merely refer in accurate terms to their appointment hereunder or which are required by applicable law, regulations or otherwise by the SEC, FINRA, or any state securities authority.
(b) The Distributor shall not use the name of the Trust in any publicly disseminated materials, including sales literature, in any manner without the prior written consent of the Trust (which shall not be unreasonably withheld); provided, however, that the Fund hereby approves all lawful uses of its name in any required regulatory filings of the Distributor which merely refer in accurate terms to the appointment of the Distributor hereunder, or which are required by applicable law, regulations or otherwise by the SEC, FINRA, or any state securities authority.
21. Insurance
The Distributor agrees to obtain and maintain, at its own expense, the following insurance coverages in amounts not less than the minimums specified below throughout the term of this Agreement:
(a) Errors and Omissions / Professional Liability. Errors and omissions or professional liability insurance covering claims arising out of actual or alleged negligent acts, errors, or omissions in the performance of professional services under this Agreement, with minimum limits of not less than $15,000,000 per occurrence and in the aggregate.
(b) Fidelity / Financial-Institution Bond. A fidelity bond or financial-institution bond covering employee dishonesty, theft, forgery, and other covered losses, with a minimum limit of not less than $40,000,000.
(c) Cyber / Data-Breach Liability. Cyber liability and data-breach insurance covering losses arising out of or related to unauthorized access to or use of data, data breaches, privacy liability, network security failures, and related regulatory defense and penalties, with minimum limits of not less than $10,000,000 per occurrence and in the aggregate.
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All insurance policies required under this Section 21 shall be maintained with insurers reasonably acceptable to the Trust and rated no less than A- VII by A.M. Best or an equivalent rating by a nationally recognized rating agency. Upon the Trust’s written request, the Distributor shall promptly provide the Trust with certificates of insurance evidencing the coverages required hereunder. The Distributor shall provide the Trust with not less than thirty (30) days’ prior written notice of any material reduction in coverage limits, cancellation, or non-renewal of any insurance policy required under this Section 21. The Distributor shall notify the Trust of any material claims against it, whether or not covered by insurance, that may materially and adversely affect the Trust’s rights hereunder.
22. Representations
(a) The Distributor represents and warrants that: (i) it is duly authorized and licensed under applicable law to carry out the services contemplated herein; (ii) the execution, delivery and performance of this Agreement are within its power and have been duly authorized by all necessary action; (iii) it is entering into this Agreement or providing the services contemplated hereby does not conflict with or constitute a default or require a consent under or breach of any provision of any agreement or document to which the Distributor is a party or by which it is bound; (iv) it is registered as a broker-dealer under the 1934 Act and a member of FINRA and will notify the Trust’s Chief Compliance Officer and Adviser immediately in the event of its expulsion or suspension by FINRA; (v) it is not an “affiliated person” (as defined under the 1940 Act) of the Listing Exchange or any underlying index provider for any Fund; (vi) as of the date of this Agreement and throughout the term hereof, there are no pending or, to the Distributor’s knowledge, threatened regulatory investigations, disciplinary proceedings, or enforcement actions by any governmental authority or self-regulatory organization against the Distributor that would materially impair its ability to perform its obligations under this Agreement, and the Distributor shall promptly notify the Trust in writing upon becoming aware of any such proceeding or action; and (vii) the Distributor shall maintain its registration as a broker-dealer under the 1934 Act and its membership and good standing with FINRA throughout the term of this Agreement, and shall promptly notify the Trust in writing of any event, action, or proceeding that has resulted in, or is reasonably likely to result in, the suspension, revocation, or material impairment of such registration or membership.
(b) The Trust represents and warrants that: (i) it is duly organized as a Delaware statutory trust and is and at all times will remain duly authorized to carry out its obligations as contemplated herein; (ii) it is registered as an investment company under the 1940 Act; (iii) the execution, delivery and performance of this Agreement are within its power and have been duly authorized by all necessary action; (iv) its entering into this Agreement does not conflict with or constitute a default or require a consent under or breach of any provision of any agreement or document to which the Trust is a party or by which it is bound; (v) the registration statement and each Fund’s prospectus, and sales literature and advertisements approved by the Adviser or other materials prepared by or on behalf of the Trust for the Distributor’s use (“Sales Literature and Advertisements”) have been prepared, and shall be prepared, in all material respects, in conformity with the 1933 Act, the 1940 Act and the rules and regulations of the Commission (the “Rules and Regulations”); and (vi) the registration statement and each Fund’s prospectus contain all material statements required to be stated therein in accordance with the 1933 Act, the 1940 Act and the Rules and Regulations; and (vii) all statements of fact contained therein, or in Sales Literature and Advertisements, are or will be true and correct in all material respects at the time indicated or the effective date, as the case may be, and any Fund’s prospectus shall not include any 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 in light of the circumstances in which they are made. The Trust shall not file any amendment to the registration statement or Fund’s prospectus without giving the Distributor reasonable notice thereof in advance, provided that nothing in this Agreement shall in any way limit the Trust’s right to file at any time such amendments to the registration statement or any Fund’s prospectus as the Trust may deem advisable.
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(c) The representations and warranties of the Distributor set forth in Section 22(a) are continuing representations and warranties and shall be deemed to be made by the Distributor on a continuous basis throughout the term of this Agreement. A breach of any such representation or warranty shall constitute a material breach of this Agreement. The representations and warranties of the Distributor set forth in Section 22(a) shall survive the termination or expiration of this Agreement with respect to any acts, omissions, events, or circumstances occurring prior to or in connection with such termination or expiration.
IN WITNESS WHEREOF, the Trust and Distributor have each duly executed this Agreement, as of the day and year above written.
| GuideStone Funds |
Ultimus Fund Distributors, LLC | |||||||
| on behalf of the Funds |
||||||||
| By: |
By: |
|||||||
| Name: |
Brandon Pizzurro |
Name: |
Kevin Guerette | |||||
| Title: |
President |
Title: |
President | |||||
| GuideStone Capital Management, LLC |
||||||||
| By: |
|
|||||||
| Name: |
Melanie Childers |
|||||||
| Title: |
Vice President – Fund Operations and |
|||||||
| Secretary |
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Schedule A
List of Services
FINRA Review
| |
Review and approve Fund marketing materials (including website) for compliance with SEC & FINRA advertising rules |
| |
Conduct FINRA filing of materials (including website) |
| |
Respond to FINRA comments on marketing materials, as necessary |
| |
Provide the Adviser with copy of its then-current documentation regarding SEC & FINRA marketing policies |
Contract Management
The Distributor is authorized to act as a limited agent of the Fund solely for the purposes described in this Contract Management section of Schedule A, and such agency is limited in scope to the specific activities enumerated herein. The Distributor shall have no authority to bind the Fund to any agreement, obligation, or terms beyond those expressly authorized herein, and the Fund shall not be bound by any agreement or any terms thereof that have not been expressly approved by the Fund in writing.
| |
Coordinate and negotiate sub-distribution agreements with broker/dealers and authorized participants on behalf of the Fund in accordance with the prospectus, using only forms of agreement that have been pre-approved in writing by the Fund; provided, however, that the Fund shall not be bound by any sub-distribution agreement or any terms thereof that have not been expressly approved by the Fund in writing. |
| |
Coordinate and negotiate operational agreements related to the services contemplated by this Agreement (networking agreements, NSCC redemption agreements, etc.), using only forms of agreement that have been pre-approved in writing by the Fund; provided, however, that the Fund shall not be bound by any such operational agreement or any terms thereof that have not been expressly approved by the Fund in writing. |
| |
Coordinate and negotiate on behalf of the Fund shareholder service and similar agreements to the extent permitted by applicable law, as contemplated by the Trust’s distribution and/or shareholder servicing plan and as may be agreed to by the Distributor and the Fund, using only forms of agreement that have been pre-approved in writing by the Fund; provided, however, that the Fund shall not be bound by any such agreement or any terms thereof that have not been expressly approved by the Fund in writing. |
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