DISTRIBUTION AGREEMENT
The Agreement dated as of November 13, 2003, is by and between AXP Market
Advantage Series, Inc., (the "Corporation"), a Minnesota corporation, on behalf
of its underlying series AXP Portfolio Builder Conservative Fund, AXP Portfolio
Builder Moderate Conservative Fund, AXP Portfolio Builder Moderate Fund, AXP
Portfolio Builder Moderate Aggressive Fund, AXP Portfolio Builder Aggressive
Fund and AXP Portfolio Builder Total Equity Fund (individually a "Fund" and
collectively the "Funds"), and American Express Financial Advisors Inc., a
Delaware corporation ("AEFA").
Part One: DISTRIBUTION OF SECURITIES
(1) The Corporation covenants and agrees that, during the term of this
agreement and any renewal or extension, AEFA shall have the exclusive right
to act as principal underwriter for the Funds and to offer for sale and to
distribute any and all shares of each class of capital stock issued or to
be issued by the Funds.
The exclusive right to act as principal underwriter will not apply to
transactions by the Funds at net asset value as permitted by the currently
effective prospectus and statement of additional information (the
"prospectus") or to transactions by the Funds that do not involve sales to
the general public, including transactions between the Funds and its
shareholders only, transactions involving the reorganization of the Funds
and transactions involving the merger, consolidation or acquisition of
assets with another corporation or trust.
(2) AEFA hereby covenants and agrees to act as the principal underwriter of
each class of capital shares issued and to be issued by the Funds during
the period of this agreement and agrees to offer for sale such shares as
long as such shares remain available for sale, unless AEFA is unable or
unwilling to make such offer for sale or sales or solicitations therefore
legally because of any federal, state, provincial or governmental law, rule
or agency or for any financial reason. AEFA agrees to devote reasonable
time and effort to effect sales of shares of the Funds but is not obligated
to sell any specific number of shares.
(3) With respect to the offering for sale and sale of shares of each class to
be issued by the Funds, it is mutually understood and agreed that such
shares are to be sold on the following terms:
(a) AEFA has the right, as principal, to buy from the Funds the shares
needed to fill unconditional orders placed with AEFA by investors or
selling dealers (as defined below). The price AEFA will pay to the
Funds is the net asset value, determined as set forth in the
prospectus.
(b) The shares will be resold by AEFA to investors at the public offering
price, determined as set forth in the currently effective prospectus,
or to selling dealers having agreements with AEFA upon the terms and
conditions set forth in section 3(f). Shares may be sold to
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certain groups or in certain transactions without a sales charge or at
a reduced sales charge, as described in the prospectus.
(c) AEFA also has the right, as agent for the Funds, to sell shares at the
public offering price or at net asset value to certain persons and upon
certain conditions as the Funds may from time to time determine.
(d) The Funds or its transfer agent shall be promptly advised of all orders
received.
(e) The net asset value of the shares will be determined by the Funds or an
agent of the Funds in accordance with the method set forth in the
prospectus. In the event of a period of emergency, the computation of
the net asset value for the purpose of determining the number of shares
or fractional shares to be acquired may be deferred until the close of
business on the first full business day following the termination of
the period of emergency. A period of emergency shall have the
definition given thereto in the Investment Company Act of 1940.
(f) AEFA is authorized to enter into agreements with broker-dealers that
are lawfully registered under federal law and any applicable state law
or with other institutions lawfully able to distribute securities
("Selling Dealers") providing for the Selling Dealers to obtain
unconditional orders for purchases of the Funds' shares from investors,
provided, however, that AEFA may in its discretion refuse to accept
orders for shares from any particular applicant and may provide similar
discretion to Selling Dealers. AEFA will determine the portion of the
sales charge that may be allocated to the Selling Dealers. Shares sold
to Selling Dealers are for resale only at the public offering price
determined as set forth in the prospectus.
(4) The Corporation agrees to make prompt and reasonable effort to do any and
all things necessary, in the opinion of AEFA to have and to keep the Funds
and the shares properly registered or qualified in all appropriate
jurisdictions and, as to shares, in such amounts as AEFA may from time to
time designate in order that the Funds' shares may be offered or sold in
such jurisdictions.
(5) The Corporation agrees that it will furnish AEFA with information with
respect to the affairs and accounts of the Funds, and in such form as AEFA
may from time to time reasonably require and further agrees that AEFA, at
all reasonable times, shall be permitted to inspect the books and records
of the Funds.
(6) AEFA agrees to indemnify and hold harmless the Funds and each person who
has been, is, or may hereafter be a director of the Funds against expenses
reasonably incurred by any of them in connection with any claim or in
connection with any action, suit or proceeding to which any of them may be
a party, which arises out of or is alleged to arise out of any
misrepresentation or omission to state a material fact, or out of any
alleged misrepresentation or omission to state a material fact, on the part
of AEFA or any agent or employee of AEFA or any other person for whose acts
AEFA is responsible or is alleged to be responsible, unless such
misrepresentation or omission was made in reliance upon information
furnished
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by the Funds or the Corporation. AEFA also agrees likewise to indemnify and
hold harmless the Funds and each such person in connection with any claim
or in connection with any action, suit or proceeding which arises out of or
is alleged to arise out of AEFA's (or an affiliate of AEFA's) failure to
exercise reasonable care and diligence with respect to its services
rendered. The term "expenses" includes amounts paid in satisfaction of
judgments or in settlements which are made with AEFA's consent. The
foregoing rights of indemnification shall be in addition to any other
rights to which the Funds or a director may be entitled as a matter of law.
(7) AEFA agrees to cause to be delivered to each purchaser a prospectus or
circular to be furnished by the Funds in the form required by the
applicable federal laws or by the acts or statutes of any applicable state,
province or country.
(8) In connection with the repurchase of shares, AEFA will act as agent of the
Funds. Any outstanding shares may be tendered for redemption at any time,
and the Funds agrees to repurchase or redeem the shares in accordance with
the terms and conditions of the prospectus. The Funds will pay the amount
of the redemption price to shareholders on or before the seventh business
day after receiving the notice of redemption in proper form. Any applicable
contingent deferred sales charge will be paid to AEFA and the balance will
be paid to or for the account of the shareholder.
(9) AEFA, the Corporation and the Funds agree to use their best efforts to
conform with all applicable state and federal laws and regulations relating
to any rights or obligations under the terms of this agreement.
Part Two: ALLOCATION OF EXPENSES AND COMPENSATION
(1) Except as provided by the Plan and Agreement of Distribution or any other
agreement between the parties, AEFA covenants and agrees that during the
period of this agreement it will pay or cause to be paid all expenses
incurred by AEFA in the offering for sale or sale of each class of the
Funds' shares.
(2) AEFA's compensation as principal underwriter shall be (a) that part of the
sales charge retained by AEFA and (b) amounts payable as contingent
deferred sales charges on certain redemptions of shares.
Part Three: MISCELLANEOUS
(1) AEFA shall be deemed to be an independent contractor and, except as
expressly provided or authorized in this agreement, shall have no authority
to act for or represent the Corporation or the Funds.
(2) AEFA shall be free to render to others services similar to those rendered
under this agreement.
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(3) Neither this agreement nor any transaction had pursuant hereto shall be
invalidated or in any way affected by the fact that directors, officers,
agents and/or shareholders of the Corporation or the Funds are or may be
interested in AEFA as directors, officers, shareholders or otherwise; that
directors, officers, shareholders or agents of AEFA are or may be
interested in the Corporation or the Funds as directors, officers,
shareholders or otherwise; or that AEFA is or may be interested in the
Funds as shareholder or otherwise, provided, however, that neither AEFA nor
any officer or director of AEFA or any officers or directors of the
Corporation or the Funds shall sell to or buy from the Corporation or the
Funds any property or security other than a security issued by the Funds,
except in accordance with a rule, regulation or order of the Securities and
Exchange Commission.
(4) For the purposes of this agreement, a "business day" shall have the same
meaning as is given to the term in the By-laws of the Corporation.
(5) Any notice under this agreement shall be given in writing, addressed and
delivered, or mailed postpaid, to the parties to this agreement at each
company's principal place of business in Minneapolis, Minnesota, or to such
other address as either party may designate in writing mailed to the other.
(6) AEFA agrees that no officer, director or employee of AEFA will deal for or
on behalf of the Corporation or the Funds with himself as principal or
agent, or with any corporation or partnership in which he may have a
financial interest, except that this shall not prohibit:
(a) Officers, directors and employees of AEFA from having a financial
interest in the Funds or in AEFA.
(b) The purchase of securities for the Funds, or the sale of securities
owned by the Funds, through a security broker or dealer, one or more of
whose partners, officers, directors or employees is an officer,
director or employee of AEFA, provided such transactions are handled in
the capacity of broker only and provided commissions charged do not
exceed customary brokerage charges for such services.
(c) Transactions with the Funds by a broker-dealer affiliate of AEFA if
allowed by rule or order of the SEC and if made pursuant to procedures
adopted by the Board of Directors.
(7) AEFA agrees that, except as otherwise provided in this agreement or in the
Plan and Agreement of Distribution, or as may be permitted consistent with
the use of a broker-dealer affiliate of AEFA under applicable provisions of
the federal securities laws, neither it nor any of its officers, directors
or employees shall at any time during the period of this agreement make,
accept or receive, directly or indirectly, any fees, profits or emoluments
of any character in connection with the purchase or sale of securities
(except securities issued by the Funds) or other assets by or for the
Funds.
(8) This agreement may not be amended or modified in any manner except by a
written agreement executed by both parties.
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(9) This agreement is governed by the laws of the State of Minnesota.
Part Four: TERMINATION
(1) This agreement shall continue from year to year unless and until terminated
by AEFA or the Funds, except that such continuance shall be specifically
approved at least annually by a vote of a majority of the Board of
Directors who are not parties to this agreement or interested persons of
any such party, cast in person at a meeting called for the purpose of
voting on such approval, and by a majority of the Board of Directors or by
vote of a majority of the outstanding voting securities of the Funds. As
used in this paragraph, the term "interested person" shall have the meaning
as set forth in the 1940 Act.
(2) This agreement may be terminated by AEFA or the Funds at any time by giving
the other party sixty (60) days written notice of such intention to
terminate.
(3) This agreement shall terminate in the event of its assignment, the term
"assignment" for this purpose having the same meaning as set forth in the
1940 Act.
IN WITNESS WHEREOF, The parties hereto have executed the foregoing agreement on
the date and year first above written.
AXP MARKET ADVANTAGE SERIES, INC.
AXP Portfolio Builder Conservative Fund
AXP Portfolio Builder Moderate Conservative Fund
AXP Portfolio Builder Moderate Fund
AXP Portfolio Builder Moderate Aggressive Fund
AXP Portfolio Builder Aggressive Fund
AXP Portfolio Builder Total Equity Fund
By: /s/ Xxxxxx X. Xxx
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Xxxxxx X. Xxx
Vice President
AMERICAN EXPRESS FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Senior Vice President and General Manager -- Mutual Funds
