958934.2 3
DISTRIBUTION AGREEMENT
December 6, 2001
GE Investment Distributors, Inc.
000 Xxxx Xxxxx Xxxx, Xxxxxxxx X
Xxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements
set out below, Centurion Funds, Inc., a corporation formed under
the laws of the State of Maryland (the Fund), has agreed that GE
Investment Distributors, Inc. (GEID) will be, for the period of
this Agreement, the distributor of shares of common stock of each
series of the Fund.
1. Services as Distributor.
1.1 GEID agrees to solicit orders for the sale of shares of
the Fund and to undertake advertising and promotion that it
believes reasonable in connection with the solicitation.
1.2 GEID will act as agent for the distribution of shares
of the Fund covered by, and in accordance with, the Fund's
Registration Statement on Form N-1A then in effect under the
Securities Act of 1933, as amended (the Securities Act), the
Registration Statement on Form N-1A, together with the prospectus
(the Prospectus) and statement of additional information (the
Statement) included as part of the Registration Statement on Form
N-1A, any amendments to the Registration Statement on Form N-1A,
and any supplements to, or material incorporated by reference
into the Prospectus or Statement, being referred to collectively
in this Agreement as the Registration Statement.
1.3 All activities by GEID as distributor of shares of the
Fund will comply with all applicable laws, rules and regulations,
including, without limitation, all rules and regulations made or
adopted pursuant to the Securities Act or the Investment Company
Act of 1940, as amended (the 1940 Act), by the Securities and
Exchange Commission (the Commission) or any securities
association registered under the Securities Exchange Act of 1934
(the Exchange Act).
1.4 (a) GEID will have the right to purchase from the Fund
the shares needed, but not more than the shares needed (except
for clerical errors in transmission), to fill unconditional
orders for shares placed through GEID. The price that GEID will
pay for the shares so purchased from the Fund will be the current
public offering price on which the orders were based, as
described in paragraph (b) of this Section 1.4.
(b) The public offering price of the shares of the
Fund will be the net asset value determined as set forth in the
Registration Statement, plus any applicable sales charge.
(c) GEID will have the right to enter into selected
dealer agreements. All dealers of Fund shares will act in
accordance with the Registration Statement and Prospectus then in
effect under the Securities Act. All activities by dealers of
Fund shares will comply with all applicable laws, rules and
regulations, including, without limitation, all rules and
regulations made or adopted pursuant to the Securities Act and
the 1940 Act by the Commission or any securities association
registered under the Exchange Act.
(d) The Fund's transfer and dividend agent, or any
other agent designated in writing by the Fund, will be promptly
advised by GEID of all purchase orders for shares of the Fund.
The Fund may cease, on the basis of market, economic or political
conditions, or on the basis of any other abnormal conditions, to
accept any orders for Fund shares or continue to sell shares
until the Directors deem it advisable to accept the orders and to
make the sales. The Fund will promptly advise GEID of the
determination to recommence accepting orders or selling shares.
The Fund (or its agent) will confirm orders for shares upon their
receipt, or in accordance with any exemptive order of the
Commission, and will make appropriate book entries pursuant to
the instructions of GEID. GEID agrees to cause payment for
shares and instructions as to book entries to be delivered
promptly to the Fund (or its agent).
1.5 The outstanding shares of the Fund are subject to
redemption as set forth in the Fund's Charter dated as of August
20, 1998, as amended from time to time (the Charter), and in
accordance with the applicable provisions set forth in the
Prospectus. The price to be paid to redeem the shares will be
equal to their net asset value, determined as set forth in the
Prospectus.
1.6 GEID will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to
the Fund.
1.7 The Fund agrees at its own expense to execute any and
all documents, to furnish any and all information, and to take
any other actions, that may be reasonably necessary in connection
with (a) registering shares under the Securities Act to the
extent necessary to have available for sale the number of shares
as may reasonably be expected to be purchased and (b) the
qualification and maintenance of the qualification of shares of
the Fund for sale in such states as GEID may designate, except
that the Fund will not be obligated to execute a general consent
to service of process in any state.
1.8 The Fund will furnish GEID from time to time, for use
in connection with the sale of shares of the Fund such
information with respect to the Fund and its shares as GEID may
reasonably request, all of which information must be signed by
one or more of the Fund's duly authorized officers; and the Fund
warrants that the statements contained in any such information,
when so signed by the Fund's officers, will be true and correct.
The Fund will also furnish GEID upon request with: (a) financial
statements of the Fund or any series of the Fund audited at least
annually by independent public accountants regularly retained by
the Fund, (b) quarterly earnings statements of the Fund or any
series of the Fund prepared by the Fund, (c) a monthly itemized
list of the securities in the portfolio of the Fund or any series
of the Fund, (d) monthly balance sheets with respect to the Fund
or any series of the Fund as soon as practicable after the end of
each month and (e) from time to time any additional information
regarding the financial condition of the Fund or any series of
the Fund as GEID may reasonably request.
1.9 The Fund represents to GEID that the Registration
Statement filed by the Fund with the Commission under the
Securities Act has been carefully prepared in conformity with the
requirements of the Securities Act and the 1940 Act and the
respective rules and regulations of the Commission thereunder.
The Fund represents and warrants to GEID that the Registration
Statement, upon its becoming effective, will contain all
statements required to be stated therein in conformity with the
Securities Act and the rules and regulations of the Commission
thereunder; that all statements of fact contained in the
Registration Statement will be true and correct when the
Registration Statement becomes effective; and that the
Registration Statement, upon its becoming effective, will not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The Fund may, but will
not be obligated to, propose from time to time such amendment or
amendments to the Registration Statement and such supplement or
supplements to the Prospectus as may, in the Fund's judgment, be
necessary or advisable. If the Fund does not propose an
amendment or amendments or supplement or supplements within 15
days after receipt by the Fund of a written request from GEID to
do so, GEID may, at its option, terminate this Agreement in
accordance with the requirements of Section 2 of this Agreement
or decline to make offers of the Fund's securities until the
amendments are made. The Fund will not file any amendment to the
Registration Statement or supplement to the Prospectus without
giving GEID reasonable notice thereof in advance; provided,
however, that nothing contained in this Agreement will in any way
limit the Fund's right to file at any time such amendments to the
Registration Statement or supplements to the Prospectus, of
whatever character, as the Fund may deem advisable, this right
being in all respects absolute and unconditional.
1.10 (a) The Fund authorizes GEID to use any prospectus
with respect to the Fund or series of the Fund in the forms
furnished to GEID from time to time in connection with the sale
of Fund shares and agrees to furnish such quantities of the
prospectus as GEID may reasonably request. GEID will devote
reasonable time and effort to effect sales of Fund shares, but
will not be obligated to sell any specific number of shares. The
services of GEID under this Agreement are not to be deemed
exclusive and nothing contained in this Agreement should be
deemed to prevent GEID from entering into distribution
arrangements with other investment companies so long as the
performance of its obligations under this Agreement is not
impaired by GEID's doing so.
(b) In selling the shares of the Fund, GEID and
selected dealers will use their best efforts in all respects duly
to conform with the requirements of all federal and state laws
and regulations of the National Association of Securities
Dealers, Inc. (the NASD) relating to the sale of the shares.
Neither GEID nor any other person is authorized by the Fund to
give any information or to make any representations, other than
those contained in the Registration Statement or the Prospectus
or in any sales literature specifically approved by the Fund.
(c) GEID will adopt and follow procedures, as approved
by the Fund, for the confirmation of sales to purchasers of Fund
shares, the collection of amounts payable by those purchasers,
and the cancellation of unsettled transactions, as may be
necessary to comply with the requirements of the NASD and
applicable rules and regulations of the Commission.
(d) GEID represents to the Fund that GEID is a broker-
dealer registered with the Commission under the Exchange Act, is
a member of the NASD, and is registered or licensed under the
laws of all jurisdictions in which its activities require it to
be so registered or licensed. GEID shall maintain such
registration or license in effect at all times during the term of
this Agreement and will immediately notify the Fund of the
occurrence of any event that would disqualify GEID from serving
as the distributor of shares of the Fund by operation of Section
9(a) of the 1940 Act or otherwise.
1.11 (a) The Fund agrees promptly to notify GEID of the
commencement of any litigation or proceedings against the Fund or
any of its officers or Directors in connection with the issuance
and sale of any shares of the Fund.
(b) The Fund agrees to indemnify and hold GEID, its
several officers and directors, and any person who controls GEID
within the meaning of Section 15 of the Securities Act, free and
harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or
defending those claims, demands or liabilities and any counsel
fees incurred in connection with them) that GEID, its officers
and directors, or the controlling person may incur under the
Securities Act or under common law or otherwise, arising out of
or based upon any untrue statement, or alleged untrue statement,
of a material fact contained in the Registration Statement or the
Prospectus or arising out of or based upon any omission, or
alleged omission, to state a material fact required to be stated
in either the Registration Statement or Prospectus or necessary
to make the statements in either not misleading; provided,
however, that the Fund's agreement to indemnify GEID, its
officers and directors, and the controlling person will not be
deemed to cover any claims, demands, liabilities or expenses
arising out of any untrue statement or alleged untrue statement
or omission or alleged omission in the Registration Statement or
Prospectus made in reliance upon and in conformity with written
information furnished to the Fund by GEID specifically for use in
the preparation of the Registration Statement or the Prospectus.
(c) The Fund's agreement to indemnify GEID, its
officers and directors, and any controlling person, described in
paragraph (b) of this Section 1.11, is expressly conditioned upon
the Fund's being notified of any action brought against GEID, its
officers or directors, or any controlling person, such
notification to be given by letter or by telegram addressed to
the Fund at its principal office in Phoenix, Arizona within ten
days after the summons or other first legal process is served.
The failure to notify the Fund in this manner of any such action
will relieve the Fund from any liability that the Fund may have
to the person against whom the action is brought by reason of any
such untrue, or alleged untrue, statement or omission, or alleged
omission, otherwise than on account of the Fund's indemnity
agreement contained in this Section 1.11.
(d) The Fund will be entitled to assume the defense of
any suit brought to enforce any claim, demand or liability
contemplated by this Section 1.11, but, in such case, the defense
will be conducted by counsel of good standing chosen by the Fund
and approved by GEID (who will not, except with the consent of
GEID, be counsel to the Fund). In the event the Fund elects to
assume the defense of any such suit and retain counsel of good
standing approved by GEID, the defendant or defendants in the
suit will bear the fees and expenses of any additional counsel
retained by any of them; but in case the Fund does not elect to
assume the defense of any such suit, or in case GEID does not
approve of counsel chosen by the Fund, the Fund will reimburse
GEID, its officers and directors, or the controlling person or
persons named as defendant or defendants in the suit, for the
fees and expenses of any counsel retained by GEID or them.
(e) The Fund's indemnification agreement contained in
this Section 1.11 and the Fund's representations and warranties
in this Agreement will remain operative and in full force and
effect regardless of any investigation made by or on behalf of
GEID, its officers and directors, or any controlling person, and
will survive the delivery of any shares of the Fund. The Fund's
agreement of indemnity will inure exclusively to GEID's benefit,
to the benefit of its several officers and directors, and their
respective estates, and to the benefit of any controlling persons
and their successors, except that the Fund will not be obligated
to indemnify any entity or person pursuant to this Section 1.11
against any liability to which GEID, its officers and directors,
or any controlling person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in performance
of, or reckless disregard of, the obligations and duties set
forth in this Agreement.
1.12 (a) GEID agrees to indemnify and hold the Fund, its
several officers and Directors, and any person, if any, who
controls the Fund within the meaning of Section 15 of the
Securities Act, free and harmless from and against any and all
claims, demands, liabilities and expenses (including the cost of
investigating or defending those claims, demands or liabilities
and any counsel fees incurred in connection with them) that the
Fund, its officers or Directors, or the controlling person, may
incur under the Securities Act, or under common law or otherwise,
but only to the extent that the liability or expense incurred by
the Fund, its officers or Directors, or the controlling person
resulting from the claims or demands arise out of or are based
upon any untrue, or alleged untrue statement of a material fact
contained in information furnished in writing by GEID to the Fund
specifically for use in the Registration Statement and used in
the Fund's answers to any of the items of the Registration
Statement or in the corresponding statements made in the
Prospectus, or arise out of or are based upon any omission, or
alleged omission, to state a material fact in connection with the
information furnished in writing by GEID to the Fund and required
to be stated in the answers or necessary to make the information
not misleading.
(b) GEID's agreement to indemnify the Fund, its
officers and Directors, and any controlling person under this
Section 1.12 is expressly conditioned upon GEID being notified of
any action brought against the Fund, its officers or Directors,
or any controlling person, such notification to be given by
letter or telegram addressed to GEID at its principal office in
Stamford, Connecticut and sent to GEID by the person against whom
the action is brought, within ten days after the summons or other
first legal process is served. The failure to notify GEID of any
such action will not relieve GEID from any liability that GEID
may have to the Fund, its officers or Directors, or to the
controlling person otherwise than on account of GEID's indemnity
agreement contained in this Section 1.12.
(c) GEID will have the right to control the defense of
any action contemplated by this Section 1.12, with counsel of its
own choosing, satisfactory to the Fund, unless the action
referred to in paragraph (a) of this Section 1.12 is not based
solely upon an alleged misstatement or omission on GEID's part.
In such event, the Fund, its officers or Directors or the
controlling person will each have the right to participate in the
defense or preparation of the defense of the action.
(d) GEID will not be obligated to indemnify any entity
or person pursuant to this Section 1.12 against any liability to
which the Fund, its officers and Directors, or any controlling
person would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in performance of, or
reckless disregard of, the obligations and duties set forth in
this Agreement.
1.13 No shares of the Fund may be offered by GEID, selected
dealers or the Fund under any of the provisions of this
Agreement, and no orders for the purchase or sale of shares of
the Fund pursuant to this Agreement may be accepted by the Fund
if and so long as the effectiveness of the Registration Statement
is suspended under any of the provisions of the Securities Act or
if and so long as a current prospectus as required by Section 10
of the Securities Act is not on file with the Commission;
provided, however, that nothing contained in this Section 1.13
will in any way restrict or have an application to or bearing
upon the Fund's obligation to redeem its shares from any
shareholder in accordance with the provisions of Section 1.5 of
this Agreement and provided, further, that GEID may continue to
offer shares of the Fund until GEID has been notified in writing
of the occurrence of any of the foregoing events.
1.14 The Fund agrees to advise GEID immediately in writing:
(a) of any request by the Commission for amendments to
the Registration Statement or the Prospectus or any additional
information regarding the Fund or any of its series;
(b) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement
or the initiation of any proceeding for that purpose;
(c) of the happening of any event that makes untrue
any statement of a material fact made in the Registration
Statement or the Prospectus or that requires the making of any
change in the Registration Statement or the Prospectus in order
to make the statements therein not misleading; and
(d) of all actions of the Commission with respect to
any amendments to the Registration Statement or the Prospectus
that may from time to time be filed with the Commission.
2. Term.
This Agreement will become effective as of the date hereof
and thereafter will continue automatically for successive annual
periods, so long as its continuance is specifically approved at
least annually (a) by the Directors of the Fund or (b) by a vote
of a majority (as defined in the 0000 Xxx) of the Fund's
outstanding voting securities, provided that in either event the
continuance is also approved by a majority of the Directors who
are not parties to this Agreement or interested persons (as
defined in the 0000 Xxx) of any party by vote cast in person at a
meeting called for the purpose of voting on the approval. This
Agreement is terminable without penalty, (a) on not less than 60
days' notice (i) by action of the Directors who are not
interested persons (as defined in the 0000 Xxx) of the Fund, or
(ii) by the vote of holders of a majority of the Fund's shares,
or (b) upon not less than 60 days' written notice by GEID. This
Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act and the rules under the
1940 Act).
3. Amendments.
This Agreement may be amended by the parties only if the
amendment is specifically approved by (a) the Directors of the
Fund, or by the vote of a majority of outstanding voting
securities of the Fund, and (b) a majority of those Directors of
the Fund who are not parties to this Agreement or interested
persons (as defined in the 0000 Xxx) of any party cast in person
at a meeting called for the purpose of voting on the approval.
4. Miscellaneous.
4.1 (a) The Fund will bear all costs and expenses
including fees and disbursements of its counsel and independent
accountants, in connection with the preparation and filing of any
registration statements and prospectus under the Securities Act
and the 1940 Act, and all amendments and supplements thereto, and
the expense of preparing, printing, mailing and otherwise
distributing prospectus, annual or interim reports or proxy
materials to shareholders.
(b) The Fund will bear all costs and expenses of
qualification of its shares for sale in such states of the United
States or other jurisdictions as selected by GEID pursuant to
Section 1.7 of this Agreement and the cost and expenses payable
to each for continuing qualification therein.
4.2 The Fund represents that a copy of the Charter is on
file with the Secretary of State of Maryland.
* * * * *
If the terms and conditions described above are in
accordance with your understanding, kindly indicate your
acceptance of this Agreement by signing and returning to us the
enclosed copy of this Agreement.
Very truly yours,
CENTURION FUNDS, INC.
By:
Name:
Title:
Accepted:
GE INVESTMENT DISTRIBUTORS, INC.
By:
Name:
Title:
