AMENDED AND RESTATED UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of March 5, 1996, by and between AmeriPrime
Funds, an Ohio business trust (the "Trust"), and AmeriPrime Financial
Securities, Inc., a Texas corporation ("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 entered into an agreement on October
20, 1995 providing for the distribution by Underwriter of shares of beneficial
interest (the "Shares") of certain series of shares of the Trust (the "Series");
and
WHEREAS, the Trust and Underwriter wish to amend and restate the
Underwriting Agreement to include all Series of the Trust, including MAXIM
Contrarian Fund and to provide the ability to add additional series by amending
Exhibit A attached hereto.
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 Series listed on Exhibit A
attached hereto, as it may be amended from time to time, and Underwriter hereby
accepts such appointment under the terms of this Agreement. While this Agreement
is in force, the Trust shall not sell any Shares 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 any Series 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 therefor 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 each Series
(and, with respect to each Series offering multiple classes of Shares, the
Shares of each Class of such Series) shall be the respective net asset value of
the Shares of that Series (or Class of that Series) 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 each Series (or Class
of a Series) 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 each
Series (or each Class of a Series) 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. The Trust reserves the right to issue
any Shares at any time directly to the holders of Shares ("Shareholders"), 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 Trust. The Trust 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
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 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 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 referredto 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'
expenses incurred by a Covered Person in defending a fees or other
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 Trust 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. New Series. The terms and provisions of this Agreement shall
become automatically applicable to any additional series of the
Trust 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 Trust 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 ▇▇▇.▇▇ 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and of the Underwriter shall be
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
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.
ATTEST: AmeriPrime Funds
By:/s/________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, President
ATTEST:
AmeriPrime Financial Securities, Inc.
By:_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, President
UNDERWRITING AGREEMENT EXHIBIT A
▇▇▇▇ ▇▇▇▇▇▇ Equity Income Fund Fountainhead Special Value Fund AIT
Vision U.S. Equity Portfolio GLOBALT Growth Fund MAXIM Contrarian Fund
IMS Capital Value Fund ▇▇▇▇▇▇ Small-Cap Value Fund Florida Street Bond
Fund Florida Street Growth Fund MAI Enhanced Index Fund MAI Growth and
Income Fund MAI Aggressive Growth Fund MAI High-Yield Income Fund MAI
Capital Appreciation Fund MAI Global Equity Fund
