DISTRIBUTION AGREEMENT
THE MP63 FUND, INC.
AGREEMENT made this ____ day of ___________, [year], by and between
The MP 63 Fund, Inc., a Maryland corporation, having its principal office and
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ (the "Corporation"),
and AmeriMutual Fund Distributors, Inc., a New York corporation having its
principal office and place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("AmeriMutual").
WHEREAS, the Corporation is an open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Corporation is authorized to issue shares of common
stock interest ("Shares") in separate series, with each such series representing
interests in a separate portfolio of securities and other assets, and is
authorized to divide those series into separate classes; and
WHEREAS, the Corporation offers Shares in the series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Corporation and made subject to this Agreement being herein
referred to as a "Fund," and collectively as the "Funds") and the Corporation
offers Shares of the classes of each Fund as listed in Appendix A hereto (each
such class together with all other classes subsequently established by the
Corporation and made subject to this Agreement being herein referred to as a
"Class," and collectively as the "Classes"); and
WHEREAS, AmeriMutual is registered under the Securities Exchange Act
of 1934, as amended ("1934 Act"), as a broker-dealer and is engaged in the
business of selling shares of registered investment companies either directly to
purchasers or through other financial intermediaries; and
WHEREAS, the Corporation desires that AmeriMutual offer, as principal
underwriter, the Shares of each Fund and Class thereof to the public and
AmeriMutual is willing to provide those services on the terms and conditions set
forth in this Agreement in order to promote the growth of the Funds and
facilitate the distribution of the Shares;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Corporation and AmeriMutual hereby agree as
follows.
1. APPOINTMENT OF AMERIMUTUAL AND DELIVERY OF DOCUMENTS
The Corporation hereby appoints AmeriMutual, and AmeriMutual hereby
agrees, to act as distributor of the Shares of the Funds and Classes for the
period and on the terms set forth in this Agreement. In connection therewith,
the Corporation has delivered to AmeriMutual copies of the Corporation's
Declaration of Corporation, Corporation Instrument and Bylaws ("Organic
Documents"); the Corporation's current Registration Statement; the Corporation's
notification of registration under the 1940 Act on Form N-8A as filed with the
SEC; the Corporation's current Prospectus and Statement of Additional
Information for each Fund (collectively, as currently in effect and as amended
or supplemented, the "Prospectus"); each current plan of distribution or similar
document adopted by the Corporation under Rule 12b-1 under the 1940 Act ("Plan")
and each current shareholder service plan or similar document adopted by the
Corporation ("Service Plan").
The Corporation shall promptly furnish AmeriMutual with:all
amendments of or supplements to the foregoing; and a certified copy of the
resolution of the Board appointing AmeriMutual and authorizing the execution and
delivery of this Agreement.
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2. EXCLUSIVE NATURE OF DUTIES
AmeriMutual shall be the exclusive representative of the Corporation
to act as distributor of the Funds except that the rights given under this
Agreement to AmeriMutual shall not apply to: (i) Shares issued in connection
with the merger, consolidation or reorganization of any other investment company
or series or class thereof with a Fund or Class thereof; (ii) a Fund's
acquisition by purchase or otherwise of all or substantially all of the assets
or stock of any other investment company or series or class thereof; (iii) the
reinvestment in Shares by a Fund's shareholders of dividends or other
distributions; or (iv) any other offering by the Corporation of securities to
its shareholders (collectively "exempt transactions").
Notwithstanding the foregoing, AmeriMutual is and may in the future
distribute shares of other investment companies including investment companies
having investment objectives similar to those of the Funds. The Corporation
further understands that existing and future investors in the Funds may invest
in shares of such other investment companies. The Corporation agrees that the
services that AmeriMutual provides to such other investment companies shall not
be deemed in conflict with its duties to the Corporation under this Agreement.
3. OFFERING OF SHARES
AmeriMutual shall have the right to buy from the Corporation the
Shares needed to fill unconditional orders for Shares of the Funds placed with
AmeriMutual by investors or selected dealers or selected agents (each as defined
in Section 11 hereof) acting as agent for their customers' or on their own
behalf. Alternatively, AmeriMutual may act as the Corporation's agent, to offer,
and to solicit offers to subscribe to, Shares of the Funds.
The price that AmeriMutual shall pay for Shares purchased from the
Corporation shall be the NAV of the respective Class or Classes used in
determining the Public Offering Price on which the orders are based. Shares
purchased by AmeriMutual are to be resold by AmeriMutual to investors at the
respective Public Offering Price(s), or to selected dealers or selected agents
acting in accordance with the terms of selected dealer or selected agent
agreements described in Section 11 of this Agreement. The Corporation will
advise AmeriMutual of the NAV(s) each time that it is determined by the
Corporation, or its designated agent, and at such other times as AmeriMutual may
reasonably request.
AmeriMutual will promptly forward all orders and subscriptions to the
Corporation or it de signated agent. All orders and all subscriptions shall be
directed to the Corporation for acceptance and shall not be binding until
accepted by the Corporation. Any order or subscription may be rejected by the
Corporation; provided, however, that the Corporation will not arbitrarily or
without reasonable cause refuse to accept or confirm orders or subscriptions for
the purchase of Shares. The Corporation or its designated agent will confirm
orders and subscriptions upon their receipt, will make appropriate book entries
and, upon receipt by the Corporation or its designated agent of payment
therefor, will issue such Shares in certificated or uncertificated form pursuant
to the instructions of AmeriMutual. AmeriMutual agrees to cause such payment and
such instructions to be delivered promptly to the Corporation or its designated
agent.
The Corporation reserves the right to sell Shares directly to
investors through subscriptions received by the Corporation, but no such direct
sales shall affect the sales charges due to AmeriMutual hereunder.
The Corporation reserves the right to suspend the offering of Shares
of a Fund or of any Class thereof at any time in the absolute discretion of the
Board, and upon notice of such suspension AmeriMutual shall cease to offer
Shares of the Funds or Classes thereof specified in the notice.
No Shares shall be offered by either AmeriMutual or the Corporation
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Corporation if and so long as
the effectiveness of the Registration Statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities Act, or if and so long as a current prospectus, as required by
Section 10(b) of the Securities Act, as amended, is not on file with the SEC;
provided, however, that nothing contained in this paragraph shall in any way
limit the Corporation's obligation to repurchase Shares from any shareholder in
accordance with the provisions of the Corporation's Organic Documents or the
prospectus applicable to the Shares.
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4. REPURCHASE OR REDEMPTION OF SHARES BY THE CORPORATION
Any of the outstanding Shares of a Fund or Class thereof may be
tendered for redemption at any time, and the Corporation agrees to redeem or
repurchase the Shares so tendered in accordance with its obligations as set
forth in the Organic Documents and the Prospectus relating to the Shares.
The Corporation or its designated agent shall pay: the total amount
of the redemption price consisting of the NAV less any applicable deferred sales
charge to the redeeming shareholder or its agent, and except as may be otherwise
required by the NASD Rules, any applicable deferred sales charges to AmeriMutual
in accordance with AmeriMutual's instructions on or before the fifth business
day (or such other earlier business day as is customary in the investment
company industry) subsequent to the Corporation's or its agent's having received
the notice of redemption in proper form.
Redemption of Shares or payment therefor may be suspended at times
when the New York Stock Exchange is closed for any reason other than its
customary weekend or holiday closings, when trading thereon is restricted, when
an emergency exists as a result of which disposal by the Corporation of
securities owned by a Fund is not reasonably practicable or it is not reasonably
practicable for the Corporation fairly to determine the value of a Fund's net
assets, or during any other period when the SEC so requires or permits.
5. DUTIES AND REPRESENTATIONS OF AMERIMUTUAL
AmeriMutual shall use reasonable efforts to sell Shares of the Funds
upon the terms and conditions contained herein and in the then current
Prospectus. AmeriMutual shall devote reasonable time and effort to effect sales
of Shares but shall not be obligated to sell any specific number of Shares. The
services of AmeriMutual to the Corporation hereunder are not to be deemed
exclusive, and nothing herein contained shall prevent AmeriMutual from entering
into like arrangements with other investment companies so long as the
performance of its obligations hereunder is not impaired thereby.
AmeriMutual will execute and deliver agreements with broker/dealers,
financial institutions and other industry professionals based on the forms
attached hereto or based on the additional forms of agreement approved from time
to time by the Board with respect to the various classes of shares of the Funds,
including but not limited to forms of sales support agreements and shareholder
servicing agreements approved in connection with a distribution and/or servicing
plan approved in accordance with Rule 12b-1 under the 1940 Act.
AmeriMutual will use appropriate efforts to solicit orders for the
sale of Shares and shall undertake such activities as it believes reasonable and
appropriate and which are primarily intended to result in the sale of Shares,
including, but not limited to, advertising, compensation of underwriters,
dealers and sales personnel, the printing and mailing of prospectuses to other
than current shareholders, and the printing and mailing of sales literature.
AmeriMutual shall be responsible for reviewing and providing advice and counsel
on all sales literature (e.g., advertisements, brochures and shareholder
communications) with respect to each of the Funds. In addition, AmeriMutual will
provide one or more persons, during normal business hours, to respond to
telephone questions with respect to the Funds.
All activities by AmeriMutual and its agents and employees as
distributor of Shares shall comply with all applicable laws, rules and
regulations, including, without limitation, the 1940 Act, the Securities Act,
the Securities Exchange Act, and the NASD Rules, all rules and regulations made
or adopted pursuant to the 1940 Act by the SEC or any securities association
registered under the Securities Exchange Act.
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In selling Shares of the Funds, AmeriMutual shall use its best
efforts in all material respects duly to conform with the requirements of all
federal and state laws relating to the sale of the Shares. None of AmeriMutual,
any selected dealer, any selected agent or any other person is authorized by the
Corporation to give any information or to make any representations other than as
is contained in a Fund's Prospectus or any advertising materials or sales
literature specifically approved in writing by the Corporation or its agents.
AmeriMutual shall adopt and follow procedures for the confirmation of
sales to investors and selected dealers or selected agents, the collection of
amounts payable by investors and selected dealers or selected agents on such
sales, and the cancellation of unsettled transactions, as may be necessary to
comply with the requirements of the NASD.
AmeriMutual represents and warrants to the Corporation that:
It is a corporation duly organized and existing and in good standing
under the laws of the State of New York and it is duly qualified to carry on its
business in the State of New York;
It is empowered under applicable laws and by its Articles of
Incorporation to enter into and perform this Agreement;
All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement;
It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement;
This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of the Distributor, enforceable against the
Distributor in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties;
It is registered under the Securities Exchange Act with the SEC as a
broker-dealer, it is a member in good standing of the NASD, it will abide by the
NASD Rules, and it will notify the Corporation if its membership in the NASD is
terminated or suspended; and
The performance by the Distributor of its obligations hereunder does
not and will not contravene any provision of its Articles of Incorporation.
Notwithstanding anything in this Agreement, including the Appendices,
to the contrary, AmeriMutual makes no warranty or representation as to the
number of selected dealers or selected agents with which it has entered into
agreements in accordance with Section 11 hereof, as to the availability of any
Shares to be sold through any selected dealer, selected agent or other
intermediary or as to any other matter not specifically set forth herein.
6. DUTIES AND REPRESENTATIONS OF THE CORPORATION
The Corporation shall furnish to AmeriMutual copies of all financial
statements and other documents to be delivered to shareholders or investors at
least two Fund Business Days prior to such delivery and shall furnish
AmeriMutual copies of all other financial statements, documents and other papers
or information which AmeriMutual may reasonably request for use in connection
with the distribution of Shares. The Corporation shall make available to
AmeriMutual the number of copies of the Funds' Prospectuses, as AmeriMutual
shall reasonably request.
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The Corporation shall take, from time to time, subject to the
approval of the Board and any required approval of the shareholders of the
Corporation, all actions necessary to fix the number of authorized Shares (if
such number is not unlimited) and to register the Shares under the Securities
Act, to the end that there will be available for sale the number of Shares as
reasonably may be expected to be sold pursuant to this Agreement.
The Corporation will execute any and all documents, furnish any and
all information and otherwise take all actions that may be reasonably necessary
to register or qualify Shares for sale in such states as AmeriMutual may
designate to the Corporation and the Corporation may approve, and the
Corporation shall pay all fees and other expenses incurred in connection with
such registration or qualification; provided that AmeriMutual shall not be
required to register as a broker-dealer or file a consent to service of process
in any State and neither the Corporation nor any Fund or Class thereof shall be
required to qualify as a foreign corporation, trust or association in any State.
Any registration or qualification may be withheld, terminated or withdrawn by
the Corporation at any time in its discretion. AmeriMutual shall furnish such
information and other material relating to its affairs and activities as the
Corporation requires in connection with such registration or qualification.
The Corporation represents and warrants to AmeriMutual that:
It is a corporation duly organized and existing and in good standing
under the laws of the State of Maryland;
It is empowered under applicable laws and by its Organic Documents to
enter into and perform this Agreement;
All proceedings required by the Organic Documents have been taken to
authorize it to enter into and perform its duties under this Agreement;
It is an open-end management investment company registered with the
SEC under the 1940 Act;
All Shares, when issued, shall be validly issued, fully paid and
non-assessable;
This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of the Corporation, enforceable against the
Corporation in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties;
The performance by the Distributor of its obligations hereunder does
not and will not contravene any provision of its Articles of Incorporation.
The Registration statement and Prospectus are currently effective and
will remain effective with respect to all Shares of the Funds and Classes
thereof being offered for sale;
The Registration Statement and Prospectuses have been or will be, as
the case may be, carefully prepared in conformity with the requirements of the
Securities Act and the rules and regulations thereunder;
The Registration Statement and Prospectuses contain or will contain
all statements required to be stated therein in accordance with the Securities
Act and the rules and regulations thereunder; all statements of fact contained
or to be contained in the Registration Statement or Prospectuses are or will be
true and correct at the time indicated or on the effective date as the case may
be; and neither the Registration Statement nor any Prospectus, when they shall
become effective or be authorized for use, will 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 to a purchaser of
Shares;
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It will from time to time file such amendment or amendments to the
Registration Statement and Prospectuses as, in the light of then-current and
then-prospective developments, shall, in the opinion of its counsel, be
necessary in order to have the Registration Statement and Prospectuses at all
times contain all material facts required to be stated therein or necessary to
make any statements therein not misleading to a purchaser of Shares ("Required
Amendments");
It shall not file any amendment to the Registration Statement or
Prospectuses without giving AmeriMutual reasonable advance notice thereof;
provided, however, that nothing contained in this Agreement shall in any way
limit the Corporation's right to file at any time such amendments to the
Registration Statement or Prospectuses, of whatever character, as the
Corporation may deem advisable, such right being in all respects absolute and
unconditional; and
Any amendment to the Registration Statement or Prospectuses hereafter
filed will, when it becomes effective, contain all statements required to be
stated therein in accordance with the 1940 Act and the rules and regulations
thereunder; all statements of fact contained in the Registration Statement or
Prospectuses will, when it becomes effective, be true and correct at the time
indicated or on the effective date as the case may be; and no such amendment,
when it becomes effective, will include an untrue statement of a material fact
or will omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading to a purchaser of the Shares.
7. INDEMNIFICATION OF AMERIMUTUAL BY THE CORPORATION
The Corporation authorizes AmeriMutual and any dealers with whom
AmeriMutual has entered into dealer agreements to use any Prospectus in the form
furnished by the Corporation in connection with the sale of Shares. The
Corporation agrees to indemnify, defend and hold AmeriMutual, its several
officers and directors, and any person who controls AmeriMutual 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 reasonable
cost of investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) which AmeriMutual, its
officers and directors, or any such controlling persons, may incur under the
Securities Act, the 1940 Act, or common law or otherwise, arising out of or
based upon any untrue statement, or alleged untrue statement, of a material fact
required to be stated in either any Registration Statement or any Prospectus,
any omission, or alleged omission, to state a material fact required to be
stated in any Registration Statement or any Prospectus or necessary to make the
statements in any of them misleading, or the Corporation's failure to maintain
an effective Registration Statement and Prospectuses with respect to Shares of
the Funds and Classes that are the subject of the claim or demand.
The Corporation's agreement to indemnify AmeriMutual, its officers or
directors, and any such controlling person will not be deemed to cover any such
claim, demand, liability or expense to the extent that it arises out of or is
based upon any such untrue statement, alleged untrue statement, omission or
alleged omission made in any Registration Statement or any Prospectus in
reliance upon information furnished by AmeriMutual, its officers, directors or
any such controlling person to the Corporation or its representatives for use in
the preparation thereof, or willful misfeasance, bad faith or gross negligence
in the performance of AmeriMutual's duties, or by reason of AmeriMutual's
reckless disregard of its obligations and duties under this Agreement
("Disqualifying Conduct").
The Corporation's agreement to indemnify AmeriMutual, its officers
and directors, and any such controlling person, as aforesaid, is expressly
conditioned upon the Corporation's being notified of any action brought against
AmeriMutual, its officers or directors, or any such controlling person, such
notification to be given by letter, by facsimile or by telegram addressed to the
Corporation at its address set forth above within a reasonable period of time
after the summons or other first legal process shall have been served; provided,
however, that the failure to notify the Corporation of any such action shall not
relieve the Corporation from any liability which the Corporation may have to the
person against whom such action is brought by reason of any such untrue, or
alleged untrue, statement or omission, or alleged omission, otherwise than on
account of the Corporation's indemnity agreement contained in this Section.
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The Corporation will be entitled to assume the defense of any suit
brought to enforce any such claim, demand or liability, but, in such case, such
defense shall be conducted by counsel of good standing chosen by the Corporation
and approved by AmeriMutual, which approval shall not be unreasonably withheld.
If the Corporation elects to assume the defense of any such suit and retain
counsel of good standing approved by AmeriMutual, the defendant or defendants in
such suit shall bear the fees and expenses of any additional counsel retained by
any of them; but in case the Corporation does not elect to assume the defense of
any such suit, the Corporation will reimburse AmeriMutual, its officers and
directors, or the controlling person or persons named as defendant or defendants
in such suit, for the reasonable fees and expenses of any counsel retained by
them.
The Corporation's indemnification agreement contained in this Section
and the Corporation's representations and warranties in this Agreement shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of AmeriMutual, its officers and directors, or any
controlling person, and shall survive the delivery of any Shares. This agreement
of indemnity will inure exclusively to AmeriMutual'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. The Corporation agrees
promptly to notify AmeriMutual of the commencement of any litigation or
proceedings against the Corporation or any of its officers or Board members in
connection with the issue and sale of Shares.
8. INDEMNIFICATION OF THE CORPORATION BY AMERIMUTUAL
AmeriMutual agrees to indemnify, defend and hold the Corporation, its
several officers and Board members, and any person who controls the Corporation
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
reasonable cost of investigating or defending such claims, demands or
liabilities and any reasonable counsel fees incurred in connection therewith)
which the Corporation, its officers or Board members, or any such controlling
person, may incur under the Securities Act, the 1940 Act, or under common law or
otherwise, but only to the extent that such liability or expense incurred by the
Corporation, its officers or Board members, or such controlling person resulting
from such claims or demands shall arise out of or be based upon any unauthorized
sales literature, advertisements, information, statements or representations or
any Disqualifying Conduct in connection with the offering and sale of any
Shares, or shall arise out of or be based upon any untrue, or alleged untrue,
statement of a material fact contained in information furnished in writing by
AmeriMutual to the Corporation specifically for use in the Corporation's
Registration Statement and used in the answers to any of the items of the
Registration Statement or in the corresponding statements made in the
Prospectus, or shall arise out of or be based upon any omission, or alleged
omission, to state a material fact in connection with such information furnished
in writing by AmeriMutual to the Corporation and required to be stated in such
answers or necessary to make such information not misleading.
AmeriMutual's agreement to indemnify the Corporation, its officers
and Directors, and any such controlling person, as aforesaid, is expressly
conditioned upon AmeriMutual's being notified of any action brought against the
Corporation, its officers or Directors, or any such controlling person, such
notification to be given by letter, by facsimile or by telegram addressed to
AmeriMutual at its address set forth above within a reasonable period of time
after the summons or other first legal process shall have been served.
The failure so to notify AmeriMutual of any such action shall not
relieve AmeriMutual from any liability which its may have to the person against
whom such action is brought by reason of any such untrue, or alleged untrue,
statement or omission, or alleged omission, otherwise than on account of
AmeriMutual's indemnity agreement contained in this Section.
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AmeriMutual will be entitled to assume the defense of any suit
brought to enforce any such claim, demand or liability, but, in such case, such
defense shall be conducted by counsel of good standing chosen by AmeriMutual and
approved by the Corporation, which approval shall not be unreasonably withheld.
If AmeriMutual elects to assume the defense of any such suit and retain counsel
of good standing approved by the Corporation, the defendant or defendants in
such suit shall bear the fees and expenses of any additional counsel retained by
any of them; but in the case AmeriMutual does not elect to assume the defense of
any such suit, AmeriMutual will reimburse the Corporation, the Corporation's
officers and directors, or the controlling person or persons named as defendant
or defendants in such suit, for the reasonable fees and expenses of any counsel
retained by the Corporation or them.
AmeriMutual's indemnification agreement contained in this Section and
AmeriMutual's representations and warranties in this Agreement shall remain
operative and in full force and effect regardless of any investigation made by
AmeriMutual or on behalf of AmeriMutual, its officers and directors, or any
controlling person, and shall survive the delivery of any Shares. This agreement
of indemnity will inure exclusively to the Corporation's benefit, to the benefit
of the Corporation's officers and trustees, and their respective estates, and to
the benefit of any controlling persons and their successors. AmeriMutual agrees
promptly to notify the Corporation of the commencement of any litigation or
proceedings against AmeriMutual or any of its officers or trustees in connection
with the issue and sale of Shares.
9. NOTIFICATION BY THE CORPORATION
The Corporation agrees to advise AmeriMutual as soon as reasonably
practical: of any request by the SEC for amendments to the Registration
Statement or any Prospectus then in effect; of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement or any
Prospectus then in effect or of the initiation of any proceeding for that
purpose; of the happening of any event that makes untrue any statement of a
material fact made in the Registration Statement or any Prospectus then in
effect or which requires the making of a change in such Registration Statement
or Prospectus in order to make the statements therein not misleading; of all
actions of the SEC with respect to any amendment to any Registration Statement
or any Prospectus which may from time to time be filed with the SEC; and if a
current Prospectus is not on file with the SEC.
For purposes of this section, informal requests by or acts of the
Staff of the SEC shall not be deemed actions of or requests by the SEC.
10. COMPENSATION AND EXPENSES
In consideration of the Distributor's services in connection with the
distribution of Shares of each Fund and Class thereof, AmeriMutual shall
receive: any applicable sales charge assessed upon investors in connection with
the purchase of Shares; from the Corporation, any applicable contingent deferred
sales charge ("CDSC") assessed upon investors in connection with the redemption
of Shares; from the Corporation, the distribution service fees with respect to
the Shares of those Classes as designated in Appendix A for which a Plan is
effective (the "Distribution Fee"); and from the Corporation, the shareholder
service fees with respect to the Shares of those Classes as designated in
Appendix A for which a Service Plan is effective (the "Shareholder Service
Fee").
The Distribution Fee and Shareholder Service Fee shall be accrued
daily by each applicable Fund or Class thereof and shall be paid monthly as
promptly as possible after the last day of each calendar month but in any event
on or before the fifth (5th) Fund Business Day after month-end, at the rate or
in the amounts set forth in the Plan(s). The Corporation grants and transfers to
AmeriMutual a general lien and security interest in any and all securities and
other assets of a Fund now or hereafter maintained in an account at the Fund's
custodian on behalf of the Fund to secure any Distribution Fees and Shareholder
Service Fees owed AmeriMutual by the Corporation under this Agreement.
The Corporation shall cause its transfer agent (the "Transfer Agent")
to withhold, from redemption proceeds payable to holders of Shares of the Funds
and the Classes thereof, all CDSCs properly payable by the shareholders in
accordance with the terms of the applicable Prospectus and shall cause the
Transfer Agent to pay such amounts over to AmeriMutual as promptly as possible
after the settlement date for each redemption of Shares.
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The Corporation shall be responsible and assumes the obligation for
payment of all the expenses of the Funds, including fees and disbursements of
its counsel and auditors, in connection with the preparation and filing of the
Registration Statement and Prospectuses (including but not limited to the
expense of setting in type the Registration Statement and Prospectuses and
printing sufficient quantities for internal compliance, regulatory purposes and
for distribution to current shareholders).
The Corporation shall bear the cost and expenses (i) of the
registration of the Shares for sale under the Securities Act; (ii) of the
registration or qualification of the Shares for sale under the securities laws
of the various States; (iii) if necessary or advisable in connection therewith,
of qualifying the Corporation, the Funds or the Classes thereof (but not
AmeriMutual) as an issuer or as a broker or dealer, in such States as shall be
selected by the Corporation and AmeriMutual pursuant to Section 6(c) hereof; and
(iv) payable to each State for continuing registration or qualification therein
until the Corporation decides to discontinue registration or qualification
pursuant to Section 6(c) hereof. AmeriMutual shall pay all expenses relating to
AmeriMutual's broker-dealer qualification.
11. SELECTED DEALER AND SELECTED AGENT AGREEMENTS
The Distributor shall have the right to enter into selected dealer
agreements with securities dealers of its choice ("selected dealers") and
selected agent agreements with depository institutions and other financial
intermediaries of its choice ("selected agents") for the sale of Shares and to
fix therein the portion of the sales charge, if any, that may be allocated to
the selected dealers or selected agents; provided, that the Corporation shall
approve the forms of agreements with selected dealers or selected agents and
shall review the compensation set forth therein. Selected dealers and selected
agents shall resell Shares of each Fund or Class thereof at the public offering
price(s) set forth in the Prospectus relating to the Shares. Within the United
States, AmeriMutual shall offer and sell Shares of the Funds only to selected
dealers that are members in good standing of the NASD.
12. CONFIDENTIALITY
The Distributor agrees to treat all records and other information
related to the Corporation as proprietary information of the Corporation and, on
behalf of itself and its employees, to keep confidential all such information,
except that AmeriMutual may: prepare or assist in the preparation of periodic
reports to shareholders and regulatory bodies such as the SEC; provide
information typically supplied in the investment company industry to companies
that track or report price, performance or other information regarding
investment companies; and release such other information as approved in writing
by the Corporation, which approval shall not be unreasonably withheld; provided,
however, that AmeriMutual may release any information regarding the Corporation
without the consent of the Corporation if AmeriMutual reasonably believes that
it may be exposed to civil or criminal legal proceedings for failure to comply,
when requested to release any information by duly constituted authorities or
when so requested by the Corporation.
13. EFFECTIVENESS AND DURATION
This Agreement shall become effective as of the date hereof and will
continue for an initial two-year term and will continue thereafter so long as
such continuance is specifically approved at least annually (i) by the
Corporation's Board or (ii) by a vote of a majority of the Shares of the
Corporation or the relevant Fund, as the case may be, provided that in either
event its continuance also is approved by a majority of the Board members who
are not "interested persons" of any party to this Agreement, by vote cast in
person at a meeting called for the purpose of voting on such approval.
This agreement is terminable, without penalty, on not less than sixty
days' notice, by t he Board, by vote of a majority of the outstanding voting
securities of such Corporation, or by AmeriMutual.
9
This Agreement will automatically and immediately terminate in the
event of its "assignment."
AmeriMutual agrees to notify the Corporation immediately upon the
event of AmeriMutual's expulsion or suspension by the NASD. This Agreement will
automatically and immediately terminate in the event of AmeriMutual's expulsion
or suspension by the NASD.
14. DEFINITIONS
As used in this Agreement, the following terms shall have the meaning
set forth below:
The "Board" means the Board of Directors of the Corporation.
"Fund Business Day" means any day on which the NAV of Shares of the
applicable Fund is determined as stated in the then current prospectus.
"NASD Rules" means the Constitution, By-Laws, and Rules of Fair
Practice of the National Association of Securities Dealers, Inc. (the "NASD")
and any interpretations thereof.
"NAV" means the net asset value per Share of each Class of each Fund
as determined by the Corporation, or its designated agent, in accordance with
and at the times indicated in the applicable Prospectus of the Corporation on
each Fund Business Day in accordance with the method set forth in the Prospectus
and guidelines established by the Board.
"Public Offering Price" means the price per Share of each Class of
each Fund at which AmeriMutual or selected dealers or selected agents may sell
Shares to the public or to those persons eligible to invest in Shares as
described in the applicable Prospectus of the Corporation, determined in
accordance with such Prospectus under the Securities Act relating to such
Shares.
"Prospectus" means the current prospectuses and statements of
additional information of each Fund and Class thereof, as currently in effect
and as amended or supplemented.
"Registration Statement" means the Corporation's Registration
Statement on Form N-1A and all amendments thereto filed with the SEC.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"1940 Act" means the Investment Company Act of 1940, as amended.
The terms "majority of the outstanding voting securities,"
"interested person" and "assignment" shall have the same meanings as such terms
have in the 1940 Act.
15. MISCELLANEOUS
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
The laws of the State of New York shall govern this agreement without
giving effect to principles of conflicts of laws.
10
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. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized persons, as of the day and year first above written.
THE MP63 FUND, INC. AMERIMUTUAL FUND DISTRIBUTORS, INC.
By: By: :
------------------------------- -----------------------------------
▇▇▇▇ ▇▇▇▇▇▇, President ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
11
DISTRIBUTION AGREEMENT
The MP63 Fund, Inc.
SCHEDULE A
THE MP63 FUND, INC.