UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of ______________________, by and between
AmeriPrime Funds, an Ohio business trust (the "Trust"), and Omni Financial
Group, LLC, ("Omni") and AmeriPrime Financial Securities, Inc. ("AFS").
WHEREAS, the Trust is an investment company registered under the
Investment Company Act of 1940, as amended (the "Act"); and
WHEREAS, Omni and AFS (each an "Underwriter," collectively the
"Underwriters") are each 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, AFS acts as underwriter to the Trust for all series of the Trust
on a non-exclusive basis; and
WHEREAS, the Underwriters and the Trust wish to enter into an agreement
providing for the co-distribution by Underwriters of shares of beneficial
interest (the "Shares") of the series of shares of the Trust listed on Exhibit A
attached hereto, as it may be amended from time to time (the "Series");
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 Omni and AFS as its
non-exclusive agents for the distribution of the Shares of the Series and Omni
and AFS hereby accept such appointment under the terms of this Agreement. While
this Agreement is in force, neither Underwriter shall sell any Shares of the
Series 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) Underwriters will each 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 AFS 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 an Underwriter has a
dealer agreement, such Underwriter will promptly cause such order to be filled
by the Trust.
(b) Each 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) Each 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) Each 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. Underwriters 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 third
business day following the date on which the 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 Underwriters or
any affiliated person (as defined in the Act) of Underwriters from acting as
underwriter or distributor for any other person, firm or corporation (including
other investment companies) or in any way limit or restrict Underwriters 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 each 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) Each 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 AFS 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. Underwriters do not agree to sell any specific
number of Shares. Each 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) Each 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) Each Underwriter, at its own expense, will pay the costs
incurred in establishing and maintaining its relationship with the dealers
selling the Shares. Each Underwriter will require each dealer with whom such
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) Each 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) Each 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) Neither Underwriter shall 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 Underwriters in reasonable quantities upon request.
6. Records to be Supplied by Trust. The Trust shall furnish to
Underwriters copies of all information, financial statements and other papers
which an 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 an 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 AFS as well as qualification of the Trust to do business in any
jurisdiction, if AFS 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
an 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 such 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 such Underwriter, even though paid by it.
9. Limitation of Liability. Each 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
respective 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 the Underwriter under this Agreement or by reason of reckless
disregard by any of such persons of the obligations and duties of the
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 each Underwriter and each 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 Omni, (ii) by AmeriPrime, (iii) 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 (iv) by a majority of the
Trustees of the Trust who are not interested persons of the Trust or of an
Underwriter, by vote cast in person at a meeting called for the purpose of
voting on such approval. Either the Trust or an 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) each 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 an
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. 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.
16. 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.
17. 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.
18. 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 and AFS shall be 0000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxx 00000 and of Omni shall be 0000 Xxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxx 00000.
19. 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.
20. 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.
21. Force Majeure. If an 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 parties 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:________________________________
Xxxxxxx X. Xxxxxxxxxxxx, President
ATTEST: Omni Financial Group, LLC
____________________________ By:_________________________________
Qui X. Xxxxx, Member
ATTEST: AmeriPrime Financial Securities, Inc.
-----------------------------
By:________________________________
Xxxxxxx X. Xxxxxxxxxxxx, President
ASA02CF3-121097-1
EXHIBIT A
TO THE UNDERWRITING AGREEMENT
DATED __________________, 1997
MAI ENHANCED EQUITY BENCHMARK FUND
MAI ENHANCED AGGRESSIVE GROWTH FUND
MAI ENHANCED CAPITAL APPRECIATION FUND
MAI ENHANCED GROWTH & INCOME FUND
MAI ENHANCED INCOME FUND
MAI ENHANCED GLOBAL FUND
ASA02CF3-112197-2
