Exhibit 23E
AVALON FUNDS, INC.
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of December 1, 2000, between Avalon Funds,
Inc., a Maryland corporation (the "Fund"), Avalon Trust Company, a regulated
trust company operating under the laws of the state of New Mexico ("Avalon"),
and Unified Financial Securities, Inc., an Indiana corporation (the
"Distributor").
WITNESSETH:
WHEREAS, the Fund is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund has entered into an Operating Services Agreement with
Avalon wherein Avalon is responsible for providing, among others, underwriting
services to the Fund; and
WHEREAS, Avalon wishes to retain to retain the Distributor as the principal
underwriter of the Fund's shares of beneficial interest (the "Shares"), and the
Fund consents to the appointment of Distributor to provide such services; and
WHEREAS, the Distributor is willing to render such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties hereto agree as follows:
SECTION 1. Delivery of Documents. The Fund has delivered to the Distributor
copies of the following documents and will deliver to the Distributor all future
amendments and supplements thereto, if any:
(a) The Fund's Articles of Incorporation and all amendments thereto (as
currently in effect and as from time to time amended, hereinafter referred to as
the "Articles");
(b) The Fund's By-Laws (as currently in effect and as from time to time
amended, hereinafter referred to as the "By-Laws");
(c) Resolutions of the Board of Directors authorizing the execution and
delivery of this Agreement;
(d) The Fund's Registration Statement under the Securities Act of 1933, as
amended (the "1933 Act"), and the 1940 Act on Form N-1A most recently filed with
the Securities and Exchange Commission (the "Commission") and all subsequent
amendments or supplements thereto (the "Registration Statement");
(e) The Fund's Notification of Registration under the 1940 Act on Form N-8A
as filed with the Commission; and
(f) The Fund's current Prospectus and Statement of Additional Information
(as currently in effect and as from time to time amended and supplemented,
hereinafter collectively referred to as the "Prospectus").
SECTION 2. Distribution.
2.1 Appointment of Distributor. Avalon, with the Fund's express consent,
hereby appoints the Distributor as principal underwriter of the Shares of each
portfolio of the Fund that is set forth on Exhibit A to this Agreement (each a
"Portfolio") and the Distributor hereby accepts such appointment and agrees to
render the services and duties set forth in this Agreement.
2.2 Services and Duties.
(a) The Fund agrees to sell through the Distributor, as agent, from time to
time during the term of this Agreement, Shares of each Portfolio upon the terms
and at the current offering prices as described in the Prospectus. The
Distributor will act only in its own behalf as principal in making agreements
with selected dealers or others for the sale and redemption of Shares, and shall
sell Shares only at the offering prices as set forth in the Prospectus. The
Distributor shall devote its best efforts to effect the sale of shares, but
shall not be obligated to sell any certain number of Shares.
(b) In all matters relating to the sale and redemption of Shares, the
Distributor and its designated agent(s) will act in conformity with the Fund's
Articles, By-laws and Prospectus and with the instructions and directions of the
Board of Directors and will conform and comply with the requirements of the
Securities Exchange Act of 1934, as amended, the 1933 Act, the 1940 Act, the
regulations of the National Association of Securities Dealers, Inc. and all
other applicable federal or state laws or regulations. In connection with the
sale of Shares, the Distributor acknowledges and agrees that it is not
authorized to provide any information or make any representation other than as
contained in the Fund's Registration Statement or Prospectus and any sales
literature approved by the Fund.
(c) The Fund will not bear any costs and expenses incurred with respect to
distribution of shares except to the extent the Fund is permitted to do so by
applicable law. It is understood that Avalon will bear the costs and expenses
incurred for (i) printing and mailing to prospective investors copies of the
Prospectus (including supplements thereto) and annual and interim reports of the
Fund which are used in connection with the offering of Fund's Shares; (ii)
preparing, printing and mailing any other literature used by the Distributor in
connection with the sale of the Shares and (iii) reimbursement for NASD
advertising compliance expenses advanced by the Distributor.
(d) All Fund Shares offered for sale by the Distributor shall be offered
for sale to the public at a price per Share (the "offering price") equal to
their net asset value (determined in the manner set forth in the Fund's
then-current Prospectus).
2.3 Sales and Redemptions.
(a) The Fund shall pay all costs and expenses in connection with the
registration of the Shares under the
1933 Act, and all expenses in connection with maintaining facilities for the
issue and transfer of the Shares and for supplying information, prices and other
data to be furnished by the Fund hereunder, and all expenses in connection with
preparing, printing and distributing any Prospectus, except as set forth in
Section 2.2(c) hereof.
(b) The Fund shall execute all documents, furnish all information and
otherwise take all actions which may be reasonably necessary in the discretion
of the Fund's officers in connection with the qualification of the Shares for
sale in such states as the Distributor may designate to the Fund and the Fund
may approve, and Avalon shall pay all fees which may be incurred in connection
with such qualification. The Distributor shall pay all expenses connected with
its qualification as a dealer under state or federal laws. It is understood that
certain advertising, marketing, shareholder servicing, administration and/or
distribution expenses to be incurred in connection with the Shares may be paid
as provided in any plan which may be adopted by the Fund in accordance with Rule
12b-1 under the 1940 Act.
(c) The Fund shall have the right to suspend the sale of Shares at any time
in response to conditions in the securities markets or otherwise, and to suspend
the redemption of Shares at any time permitted by the 1940 Act or the rules of
the Commission
(d) The Fund reserves the right to reject any order for Shares.
(e) No Shares shall be offered by either the Fund or the Distributor under
any provisions of this Agreement and no orders for the purchase or sale of
Shares hereunder shall be accepted by the Fund if and so long as the
effectiveness of the Registration Statement shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a Prospectus as required by
Section 10 of the 1933 Act is not on file with the Commission; provided,
however, that nothing contained in this subsection shall in any way restrict or
have any application to or bearing upon the Fund's obligation to repurchase any
Shares from any shareholder in accordance with the provisions of the Prospectus.
2.4 Fees and Expenses. For performing its services under this Agreement,
Distributor will receive from Avalon a minimum fee of $15,000 per year to be
paid on a monthly basis. Avalon shall promptly reimburse Distributor for any
expenses which are to be paid by the Fund in accordance with the following
paragraph.
In the performance of its obligations under this Agreement, all other costs
in connection with the offering of the Shares will be paid by Avalon. These
costs include, but are not limited to, licensing fees, filing fees, sales
literature and website review fees (@ $75.00 per hour), travel and such other
expenses as may be incurred by Distributor on behalf of the Fund.
SECTION 3. Limitation of Liability.
(a) The Distributor shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the Distributor's part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. Any person, even though also an officer,
director, partner, employee or agent of the Distributor, who may be or become an
officer, Director, employee or agent of the Fund, shall be deemed, when
rendering services to the Fund, or acting on any business of the Fund (other
than services or business in connection with the Distributor's duties as
distributor hereunder), to be rendering such services to or acting solely for
the Fund and not as an officer, director, partner, employee or agent of, or one
under the control or direction of, the Distributor even though paid by the
Distributor.
(b) In the performance of its duties hereunder, the Distributor shall be
obligated to exercise due care and diligence, and to act in good faith in
performing
the services provided for under this Agreement. In performing its services
hereunder, the Distributor shall be entitled to rely on any oral or written
instructions, notices or other communications from the Fund and its custodian,
officers and Directors, investors, agents and other service providers which the
Distributor reasonably believes to be genuine, valid and authorized. The
Distributor shall also be entitled to consult with and rely on the advice and
opinions of outside legal counsel retained by the Fund, as necessary or
appropriate.
(c) The Fund. The term "Avalon Funds, Inc." means and refers to the
Directors from time to time serving under the current Amended and Restated
Articles of Incorporation of the Fund, as the same may subsequently thereto have
been, or subsequently hereto be amended. It is expressly agreed that the
obligations of the Fund hereunder shall not be binding upon any of the
Directors, shareholders, nominees, officers, agents or employees of the Fund,
personally, but bind only the assets and property of the Fund, as provided in
the Amended and Restated Articles of Incorporation of the Fund. The execution
and delivery of this Agreement have been authorized by the Directors of the Fund
and signed by an authorized officer of the Fund, acting as such, and neither
such authorization by such Directors nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the assets
and property of the Fund as provided in its Master Fund Agreement.
SECTION 4. Indemnification.
4.1. Fund Representations. The Fund represents and warrants to the
Distributor that at all times the Registration Statement and Prospectus will in
all material respects conform to the applicable requirements of the 1933 Act and
the rules and regulations thereunder and will not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation or warranty is made herein with respect to any statements in the
Registration Statement or Prospectus made in reliance upon and in conformity
with written information furnished to the Fund by, or on behalf of' and with
respect to, the Distributor specifically for use in the Registration Statement
or Prospectus.
4.2. Distributor's Representations. The Distributor represents and warrants
to the Fund that it is duly organized and validly existing as an Indiana
corporation and is and at all times will remain duly authorized and licensed to
carry out its services as contemplated herein.
4.3. Fund Indemnification. The Fund will indemnify, defend and hold
harmless the Distributor, its several officers and directors, and any person who
controls the Distributor within the meaning of Section 15 of the 1933 Act, from
and against any losses, claims, damages or liabilities, joint or several, to
which any of them may become subject under the 1933 Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus or in any application or other document executed by or
on behalf of the Fund, or arise out of, or are based upon, information furnished
by or on behalf of the Fund filed in any state in order to qualify the Shares
under the securities or blue sky laws thereof ("Blue Sky Application"), or arise
out of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Distributor, its several officers
and directors, and any person who controls the Distributor within the meaning of
Section 15 of the 1933 Act, for any legal or other expenses reasonably incurred
by any of them in investigating, defending or preparing to defend any such
action, proceeding or claim; provided, however, that the Fund shall not be
liable in any case to the extent that such loss, claim, damage or liability
arises out of, or is based upon, any untrue statement, alleged untrue statement,
or omission or alleged omission made in the Registration Statement, the
Prospectus, any Blue Sky Application or any application or other document
executed by or on behalf of the Fund in reliance upon and in conformity with
written information furnished to the Fund by, or on behalf of, and with respect
to, the Distributor specifically for inclusion therein.
The Fund shall not indemnify any person pursuant to this Section 4.3 unless
the court or other body before which the proceeding was brought has rendered a
final decision on the merits that such person was not liable by reason of his
willful misfeasance, bad faith or gross negligence in the performance of his
duties, or his reckless disregard of obligations and duties, under this
Agreement ("disabling conduct") or, in the absence of such a decision, a
reasonable determination (based upon a review of the facts) that such person was
not liable by reason of disabling conduct has been made by the vote of a
majority of Directors who are neither "interested persons" of the Fund (as
defined in the 0000 Xxx) nor parties to the proceeding, or by an independent
legal counsel in a written opinion.
The Fund shall advance attorneys' fees and other expenses incurred by any
person in defending any claim, demand, action or suit which is the subject of a
claim for indemnification pursuant to this Section 4.3, so long as such person
shall: (i) undertake to repay all such advances unless it is ultimately
determined that he is entitled to indemnification hereunder; and (ii) provide
security for such undertaking, or the Fund shall be insured against losses
arising by reason of any lawful advances, or a majority of a quorum of
disinterested non-party Directors of the Fund (or an independent legal counsel
in a written opinion) shall determine based on a review of readily available
facts (as opposed to a full trial-type inquiry) that there is reason to believe
that such person ultimately will be found entitled to indemnification hereunder.
4.4. Distributor's Indemnification. The Distributor will indemnify, defend
and hold harmless the Fund, the Fund's several officers and Directors and any
person who controls the Fund within the meaning of Section 15 of the 1933 Act,
from and against any losses, claims, damages or liabilities, joint or several,
to which any of them may become subject under the 1933 Act or otherwise, insofar
as such losses, claims, damages, liabilities (or actions or proceedings in
respect hereof) arise out of, or are based upon, any breach of its
representations and warranties in Section 4.2 hereof, or which arise out of, or
are based upon, any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus, any Blue Sky
Application or any application or other document executed by or on behalf of the
Fund, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, which statement or omission was made in reliance upon and in
conformity with written information furnished to the Fund or any of its several
officers and Directors by, or on behalf of, and with respect to, the Distributor
specifically for inclusion therein, and will reimburse the Fund, the Fund's
several officers and Directors, and any person who controls the Fund within the
meaning of Section 15 of the 1933 Act, for any legal or other expenses
reasonably incurred by any of them in investigating, defending or preparing to
defend any such action, proceeding or claim.
4.5. General Indemnity Provisions. No indemnifying party shall be liable
under its indemnity agreement contained in Section 4.3 or 4.4 hereof with
respect to any claim made against such indemnifying party unless the indemnified
party shall have notified the indemnifying party in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the indemnified party (or after
the indemnified party shall have received notice of such service on any
designated agent), but failure to notify the indemnifying party of any such
claim shall not relieve it from any liability which it may otherwise have to the
indemnified party. The indemnifying party will be entitled to participate at its
own expense in the defense or, if it so elects, to assume the defense of any
suit brought to enforce any such liability, and if the indemnifying party elects
to assume the defense, such defense shall be conducted by counsel chosen by it
and reasonably satisfactory to the indemnified party. In the event the
indemnifying party elects to assume the defense of any such suit and retain such
counsel, the indemnified party shall bear the fees and expenses of any
additional counsel retained by the indemnified party.
SECTION 5. Duration and Termination. The term of this Agreement shall begin on
the date of this Agreement for each Portfolio that has executed an Exhibit
hereto on the date of this Agreement and shall continue in effect with respect
to each such Portfolio (and any subsequent Portfolios added pursuant to an
Exhibit executed during the
initial term of this Agreement) for two years thereafter, and shall continue in
effect from year to year thereafter, subject to termination as hereinafter
provided, if such continuance is approved at least annually by (a) a majority of
the outstanding voting securities (as defined in the 0000 Xxx) of such Portfolio
or by vote of the Fund's Board of Directors, cast in person at a meeting called
for the purpose of voting on such approval, and (b) by vote of a majority of the
Directors of the Fund who are not parties to this Agreement or "interested
persons" (as defined in the 0000 Xxx) of any party to this Agreement, cast in
person at a meeting called for the purpose of voting on such approval. If a
Portfolio is added pursuant to an Exhibit executed after the date of this
Agreement as described above, this Agreement shall become effective with respect
to that Portfolio upon execution of the applicable Exhibit and shall continue in
effect until the next annual continuance of this Agreement and from year to year
thereafter, subject to approval as described above. This Agreement may be
terminated by the Fund with respect to any Portfolio at any time, without the
payment of any penalty, by the Board of Directors or by vote of a majority of
the outstanding voting securities (as defined in the 0000 Xxx) of such
Portfolio, on 60 days' written notice to the Distributor, or by the Distributor
at any time, without the payment of any penalty, on 90 days' written notice to
the Fund. This Agreement will automatically and immediately terminate in the
event of its assignment (as defined in the 1940 Act).
SECTION 6. Miscellaneous.
6.1. Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
6.2. Construction. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. Subject to the provisions of Section 5 hereof, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors.
6.3. Notices. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund or Avalon shall be
sufficiently given if addressed to the Fund or Avalon, as appropriate, and
mailed or delivered to it at its principal office set forth in the Registration
Statement, or at such other place as the Fund or Avalon may from time to time
designate in writing. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Distributor shall be sufficiently
given if addressed to the Distributor and mailed or delivered to it at 000 Xxxxx
Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: President, or at
such other place as the Distributor may from time to time designate in writing.
6.4. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana.
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit to be
executed by their officers designated below as of the date and year first above
written.
AVALON FUNDS, INC. AVALON TRUST COMPANY
By: ______________________________ By: ________________________________
Title: ____________________________ Title: _____________________________
Date: _____________________________ Date: ______________________________
UNIFIED FINANCIAL SECURITIES, INC.
By ______________________________
Title ______________________________
Date: ______________________________
By ______________________________
Title ______________________________
Date: ______________________________
EXHIBIT A
to
Distribution Agreement
List of Portfolios
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The Education Fund
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