EX-99.23.e.ii
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of the ___ day of ________, 2001 by and between
AmeriPrime Funds, an Ohio business trust (the "Trust"), and Capital Research
Brokerage Services, LLC, a ____________ limited liability company
("Underwriter").
WHEREAS, the Trust is an investment company registered under the Investment
Company Act of 1940, as amended (the "Act"); and
WHEREAS, Underwriter is a broker-dealer registered with the Securities and
Exchange Commission and a member of the National Association of Securities
Dealers, Inc. (the "NASD"); and
WHEREAS, the Trust and Underwriter wish to enter into an agreement
providing for the distribution by Underwriter of shares of beneficial interest
(the "Shares") of the IMS Capital Value Fund (the "Fund"), a series of the
Trust.
NOW, THEREFORE, in consideration of the promises and agreements of the
parties contained herein, the parties agree as follows:
1.......Appointment. The Trust hereby appoints Underwriter as its exclusive
agent for the distribution of the Shares of the Fund and Underwriter hereby
accepts such appointment under the terms of this Agreement. While this Agreement
is in force, the Underwriter shall not sell any Shares of the Fund except on the
terms set forth in this Agreement. Notwithstanding any other provision hereof,
the Trust may terminate, suspend or withdraw the offering of Shares of the Fund
whenever, in its sole discretion, it deems such action to be desirable.
2........Sale and Repurchase of Shares.
a) Underwriter will have the right, as agent for the Trust, to enter into
dealer agreements with responsible investment dealers, and to sell Shares to
such investment dealers against orders therefore at the public offering price
(as defined in subparagraph 2(e) hereof) less a discount determined by
Underwriter, which discount shall not exceed the amount of the sales charge
stated in the Trust's effective Registration Statement on Form N-1A under the
Securities Act of 1933, as amended, including the then current prospectus and
statement of additional information (the "Registration Statement"). Upon receipt
of an order to purchase Shares from a dealer with whom Underwriter has a dealer
agreement, Underwriter will promptly cause such order to be filled by the Trust.
(b) Underwriter will have the right, as agent for the Trust, to sell such
Shares to the public against orders therefor at the public offering price.
(c) Underwriter will also have the right, as agent for the Trust, to sell
Shares at their net asset value to such persons as may be approved by the
Trustees of the Trust, all such sales to comply with the provisions of the Act
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
(d) Underwriter will also have the right to take, as agent for the Trust,
all actions which, in Underwriter's judgment, are necessary to carry into effect
the distribution of the Shares.
(e) The public offering price for the Shares of the Fund shall be the net
asset value of the Shares of the Fund then in effect, plus any applicable sales
charge determined in the manner set forth in the Registration Statement or as
permitted by the Act and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder. In no event shall any applicable
sales charge exceed the maximum sales charge permitted by the Rules of Fair
Practice of the NASD.
(f) The net asset value of the Shares of the Fund shall be determined in
the manner provided in the Registration Statement, and when determined shall be
applicable to transactions as provided for in the Registration Statement. The
net asset value of the Shares of the Fund shall be calculated by the Trust or by
another entity on behalf of the Trust. Underwriter shall have no duty to inquire
into or liability for the accuracy of the net asset value per share as
calculated.
(g) On every sale, the Trust shall receive the applicable net asset value
of the Shares promptly, but in no event later than the tenth business day
following the date on which Underwriter shall have received an order for the
purchase of the Shares.
(h) Upon receipt of purchase instructions, Underwriter will transmit such
instructions to the Trust or its transfer agent for registration of the Shares
purchased.
(i) Nothing in this Agreement shall prevent Underwriter or any affiliated
person (as defined in the Act) of Underwriter from acting as underwriter or
distributor for any other person, firm or corporation (including other
investment companies) or in any way limit or restrict Underwriter or any such
affiliated person from buying, selling or trading any securities for its or
their own account or for the accounts of others for whom it or they may be
acting; provided, however, that Underwriter expressly represents that it will
undertake no activities which, in its judgment, will adversely affect the
performance of its obligations to the Trust under this Agreement.
(j) Underwriter, as agent of and for the account of the Trust, may
repurchase the Shares at such prices and upon such terms and conditions as shall
be specified in the Registration Statement.
3.......Sales of Shares by the Trust or other Underwriter. The Trust
reserves the right to issue any Shares at any time directly to the holders of
Shares ("Shareholders"), to sell shares through and enter underwriting
agreements with other underwriters, to sell Shares to its Shareholders or to
other persons approved by Underwriter at not less than net asset value and to
issue Shares in exchange for substantially all the assets of any corporation or
trust or for the shares of any corporation or trust.
4.......Basis of Sale of Shares. Underwriter does not agree to sell any
specific number of Shares. Underwriter, as agent for the Trust, undertakes to
sell Shares on a best efforts basis only against orders therefor.
5.......Compliance with NASD and Government Rules.
(a) Underwriter will conform to the Rules of Fair Practice of the NASD and
the securities laws of any jurisdiction in which it sells, directly or
indirectly, any Shares.
(b) Underwriter, at its own expense, will pay the costs incurred in
establishing and maintaining its relationship with the dealers selling the
Shares. Underwriter will require each dealer with whom Underwriter has a dealer
agreement to conform to the applicable provisions hereof and the Registration
Statement, and neither Underwriter nor any such dealers shall withhold the
placing of purchase orders so as to make a profit thereby.
(c) Underwriter agrees to furnish to the Trust sufficient copies of any
agreements, plans or other materials it intends to use in connection with any
sales of Shares in adequate time for the Trust to file and clear them with the
proper authorities before they are put in use, and not to use them until so
filed and cleared.
(d) Underwriter, at its own expense, will qualify as dealer or broker, or
otherwise, under all applicable State or federal laws required in order that
Shares may be sold in such States as may be mutually agreed upon by the parties.
(e) Underwriter shall not make, or permit any representative, broker or
dealer to make, in connection with any sale or solicitation of a sale of the
Shares, any representations concerning the Shares except those contained in the
then current prospectus and statement of additional information covering the
Shares and in printed information approved by the Trust as information
supplemental to such prospectus and statement of additional information. Copies
of the then effective prospectus and statement of additional information and any
such printed supplemental information will be supplied by the Trust to
Underwriter in reasonable quantities upon request.
6.......Records to be Supplied by Trust. The Trust shall furnish to
Underwriter copies of all information, financial statements and other papers
which Underwriter may reasonably request for use in connection with the
distribution of the Shares, and this shall include, but shall not be limited to,
one certified copy, upon request by Underwriter, of all financial statements
prepared for the Trust by independent public accountants.
7.......Expenses to be Borne by Fund. The Fund will bear the following
expenses:
(a) preparation, setting in type, printing of sufficient copies of the
prospectus and statement of additional information for distribution to
shareholders, and the distribution to shareholders of the prospectus and
statement of additional information;
(b) preparation, printing and distribution of reports and other
communications to shareholders;
(c) registration of the Shares under the federal securities law;
(d) qualification of the Shares for sale in the jurisdictions designated by
Underwriter;
(e) qualification of the Trust as a dealer or broker under the laws of
jurisdictions designated by Underwriter as well as qualification of the Trust to
do business in any jurisdiction, if Underwriter determines that such
qualification is necessary or desirable for the purpose of facilitating sales of
the Shares;
(f) maintaining facilities for the issue and transfer of the Shares;
(g) supplying information, prices and other data to be furnished by the
Trust under this Agreement; and
(h) any original issue taxes or transfer taxes applicable to the sale or
delivery of the Shares of certificates therefor.
8.......Services to and Actions for Trust, Not Underwriter. Any person,
even though also a director, officer, employee, shareholder, member or agent of
Underwriter, who may be or become an officer, trustee, employee or agent of the
Trust, shall be deemed, when rendering services to the Trust or acting on any
business of the Trust (other than services or business in connection with
Underwriter's duties hereunder), to be rendering such services to or acting
solely for the Trust and not as a director, officer, employee, shareholder,
member or agent, or one under the control or direction of Underwriter, even
though paid by it.
9.......Limitation of Liability. Underwriter may rely on information
reasonably believed by it to be accurate and reliable. Except as may otherwise
be required by the Act or the rules thereunder, neither Underwriter nor its
members, shareholders, officers, directors, employees, agents, control persons
or affiliates of any thereof (collectively, the "Underwriter's Employees") shall
be subject to any liability for, or any damages, expenses or losses incurred by
the Trust in connection with, any error of judgment, mistake of law, any act or
omission in connection with or arising out of any services rendered under or
payments made pursuant to this Agreement or any other matter to which this
Agreement relates, except by reason of willful misfeasance, bad faith or gross
negligence on the part of any such persons in the performance of the duties of
Underwriter under this Agreement or by reason of reckless disregard by any of
such persons of the obligations and duties of Underwriter under this Agreement.
10.......Indemnification of Underwriter. Subject to and except as otherwise
provided in the Securities Act of 1933, as amended, and the Act, the Trust shall
indemnify Underwriter and each of Underwriter's Employees (hereinafter referred
to as a "Covered Person") against all liabilities, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as fines and
penalties, and expenses, including reasonable accountants' and counsel fees,
incurred by any Covered Person in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal, before any
court or administrative or legislative body, in which such Covered Person may be
or may have been involved as a party or otherwise or with which such person may
be or may have been threatened, while serving as the underwriter for the Trust
or as one of Underwriter's Employees, or thereafter, by reason of being or
having been the underwriter for the Trust or one of Underwriter's Employees,
including but not limited to liabilities arising due to any misrepresentation or
misstatement in the Trust's prospectus, other regulatory filings, and amendments
thereto, or in other documents originating from the Trust. In no case shall a
Covered Person be indemnified against any liability to which such Covered Person
would otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties of such Covered Person.
11.......Advances of Expenses. The Trust shall advance attorneys' fees or
other expenses incurred by a Covered Person in defending a proceeding to the
full extent permitted by the Securities Act of 1933, as amended, and the Act.
12.......Termination and Amendment of this Agreement. This Agreement shall
automatically terminate, without the payment of any penalty, in the event of its
assignment. This Agreement may be amended only if such amendment is approved (i)
by Underwriter, (ii) either by action of the Board of Trustees of the Trust or
at a meeting of the Shareholders of the Fund by the affirmative vote of a
majority of the outstanding Shares, and (iii) by a majority of the Trustees of
the Trust who are not interested persons of the Trust or of Underwriter, by vote
cast in person at a meeting called for the purpose of voting on such approval.
Either the Trust or Underwriter may at any time terminate this Agreement on
sixty (60) days' written notice delivered or mailed by registered mail, postage
prepaid, to the other party.
13.......Effective Period of this Agreement. This Agreement shall take
effect upon its execution and shall remain in full force and effect for a period
of two years from the date of its execution (unless terminated automatically as
set forth in Paragraph 12, and from year to year thereafter), subject to annual
approval (i) by Underwriter, (ii) by the Board of Trustees of the Trust or a
vote of a majority of the outstanding Shares, and (iii) by a majority of the
Trustees of the Trust who are not interested persons of the Trust or of
Underwriter, by vote cast in person at a meeting called for the purpose of
voting on such approval.
14.......Limitation of Trust's Liability. The term "AmeriPrime Funds" means
and refers to the Trustees from time to time serving under the Trust's
Declaration of Trust as the same may subsequently thereto have been, or
subsequently hereto be, amended. It is expressly agreed that the obligations of
the Trust hereunder shall not be binding upon any of the Trustees, Shareholders,
nominees, officers, agents or employees of the Trust, personally, but bind only
the trust property of the Trust, as provided in the Declaration of Trust of the
Trust. The execution and delivery of this Agreement have been authorized by the
Trustees and Shareholders of the Trust and signed by the officers of the Trust,
acting as such, and neither such authorization by such Trustees and Shareholders
nor such execution and delivery by such officers shall be deemed to have been
made by any of them individually or to impose any liability on them personally,
but shall bind only the trust property of the Trust as provided in its
Declaration of Trust. A copy of the Agreement and Declaration of Trust of the
Trust is on file with the Secretary of State of Ohio.
15.......No Application to Other Series of the Trust. The terms and
provisions of this Agreement shall apply to the distribution of the shares of
the IMS Capital Value Fund only, and shall not apply to any other series of the
Trust, whether currently existing or established during the initial or renewal
term of this Agreement.
16.......Successor Investment Company. Unless this Agreement has been
terminated in accordance with Paragraph 13, the terms and provisions of this
Agreement shall become automatically applicable to any investment company which
is a successor to the Fund as a result of a reorganization, recapitalization or
change of domicile.
17.......Severability. In the event any provision of this Agreement is
determined to be void or unenforceable, such determination shall not affect the
remainder of this Agreement, which shall continue to be in force.
18.......Questions of Interpretation.
.........(a) This Agreement shall be governed by the laws of the State of Ohio.
.........(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the Act shall be resolved by reference to such term or provision of the Act
and to interpretation thereof, if any, by the United States courts or in the
absence of any controlling decision of any such court, by rules, regulations or
orders of the Securities and Exchange Commission issued pursuant to said Act. In
addition, where the effect of a requirement of the Act, reflected in any
provision of this Agreement is revised by rule, regulation or order of the
Securities and Exchange Commission, such provision shall be deemed to
incorporate the effect of such rule, regulation or order.
19.......Notices. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that for this purpose the
address of the Trust shall be 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx
00000 and of the Underwriter shall be 000 Xxxxx Xxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, XX 00000.
20.......Counterparts. This Agreement may be in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21.......Binding Effect. Each of the undersigned expressly warrants and
represents that he has the full power and authority to sign this Agreement on
behalf of the party indicated, and that his signature will operate to bind the
party indicated to the foregoing terms.
22.......Force Majeure. If Underwriter shall be delayed in its performance
of services or prevented entirely or in part from performing services due to
causes or events beyond its control, including and without limitation, acts of
God, interruption of power or other utility, transportation or communication
services, acts of civil or military authority, sabotages, national emergencies,
explosion, flood, accident, earthquake or other catastrophe, fire, strike or
other labor problems, legal action, present or future law, governmental order,
rule or regulation, or shortages of suitable parts, materials, labor or
transportation, such delay or non-performance shall be excused and a reasonable
time for performance in connection with this Agreement shall be extended to
include the period of such delay or non-performance. IN WITNESS WHEREOF, the
Trust and Underwriter have each caused this Agreement to be signed on its
behalf, all as of the day and year first above written.
......... AmeriPrime Funds
......... By:_________________________________
......... Xxxxxxx X. Xxxxxxxxxxxx, President
......... Capital Research Brokerage Services, LLC
......... By:________________________________
.........
......... Print Name: _________________________
.........
......... Title: ______________________________
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