EXHIBIT (E)(1)
DISTRIBUTION AGREEMENT
AS AMENDED DECEMBER 1, 2004
Distribution Agreement made as of the 9TH day of APRIL, 1998, effective
as of the 13TH day of FEBRUARY, 1998, between VINTAGE Mutual Funds, Inc. (the
"Company"), a Maryland Corporation having its principal office and place of
business at 0000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000, and BISYS FUND
SERVICES LIMITED PARTNERSHIP d/b/a BISYS FUND SERVICES (the "Distributor"), an
Ohio limited partnership having its principal office and place of business at
0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Company is an open-end, management investment company and
is so registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Company has adopted a Distribution and Shareholder Service
Plan, dated as of April 9, 1998 (the "Plan") which is incorporated herein by
reference and pursuant to which the Company desires to enter into this
Agreement; and
WHEREAS, the Company desires to retain the Distributor as distributor
for the Company's separate portfolios and, where applicable, separate classes of
each Fund (each a "Class" or collectively "Classes") set forth on Schedule 1
hereto, as such may be revised from time to time (each, a "Fund" or collectively
"Funds"), to provide for the sale and distribution of the Funds' shares (the
"Shares"), and the Distributor is willing to render such services;
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth herein the parties hereto agree as follows:
I. DELIVERY OF DOCUMENTS
The Company has delivered to the Distributor copies of the following
documents and will deliver to the Distributor all future amendments and
supplements thereto, if any:
(a) The Company's Articles of Incorporation and all amendments thereto
(as presently in effect and as from time to time amended, herein called the
"Charter");
(b) The Company's By-laws (as presently in effect and as from time to
time amended, herein called the "By-laws");
(c) Resolutions of the Board of Directors of the Company authorizing the
execution and delivery of this Agreement;
(d) The Company's Registration Statement under the Securities Act of
1933, as amended (the "1933 Act""), and the 1940 Act on Form N-1A most recently
filed with the Securities and Exchange Commission (the "Commission") relating to
the Shares, and all subsequent amendments or supplements thereto (the
"Registration Statement");
(e) The Company's Notification of Registration under the 1940 Act on
Form N-8A as filed with the Commission; and
(f) The Company's current Prospectuses and Statements of Additional
Information for each Fund (as presently in effect and as from time to time
amended and supplemented, herein called the "Prospectus"); and
(g) The Funds' current Distribution Plan.
II. DISTRIBUTION
1. APPOINTMENT OF DISTRIBUTOR. The Company hereby appoints the
Distributor as principal distributor of the Shares and the Distributor hereby
accepts such appointment and agrees to render the services and duties set forth
in this Section II.
2. SERVICES AND DUTIES.
(a) The Company agrees to sell through the Distributor, as agent,
from time to time during the term of this Agreement, Shares of the Funds
(whether authorized but unissued or treasury shares, in the Company's sole
discretion) upon the terms and at the current offering price as described in the
applicable Prospectus. The Distributor will act only in its own behalf as
principal in making agreements with selected broker/dealers ("Dealers") or
others for the sale and redemption of Shares, and shall sell Shares only at the
offering price thereof as set forth in the applicable Prospectus. The
Distributor shall devote its best efforts to effect the sale of Shares of each
Fund, but shall not be obligated to sell any certain number of Shares.
(b) In all matters relating to the sale and redemption of Shares,
the Distributor will act in conformity with the Company's Charter, By-laws and
Prospectuses and with the instructions and directions of the Company's Board of
Directors and will conform to and comply with the requirements of the 1933 Act,
the 1940 Act, the regulations of the National Association of Securities Dealers,
Inc. and all other applicable Federal or state laws and regulations. In
connection with the sale of Shares, the Distributor acknowledges and agrees that
it is not authorized to provide any information or make any representation other
than as contained in the Company's Registration Statement or Prospectuses and
any sales literature specifically approved by the Funds.
(c) The Distributor will bear the costs and expenses of (i) printing and
distributing to prospective investors copies of any Prospectus (including any
supplement thereto) of the Funds (after such items have been prepared and set in
type by the Funds) which are used in connection with the offering of Shares of a
Fund; and (ii) preparing, printing and distributing any other literature used by
the Distributor in connection with the sale of the Shares; (iii) any expense of
sending confirmations and statements to any dealer having a sales agreement with
the Distributor; and (iv) any compensation paid to dealers in connection with
the sale of Shares; PROVIDED, HOWEVER, that the Distributor shall not be
obligated to bear the expenses incurred by the Funds in connection with the
preparation and printing Prospectuses used for regulatory purposes and for
distribution to existing shareholders. Concessions by the Distributor to Dealers
and other persons shall be set forth in either the selling agreements between
the Distributor and such Dealers and persons or, if such concessions are
described in the then current Prospectuses, shall be as set forth. No Dealer or
other person who enters into a selling agreement with the Distributor shall be
authorized to act as agent for the Funds in connection with the offering or sale
of its Shares to the public or otherwise.
(d) All Shares of the Funds offered for sale by the Distributor shall be
offered for sale to the public at a price per Share (the "offering price") equal
to their net asset value (determined in the manner set forth in the Company's
Charter and then current Prospectuses). The offering price, if not an exact
multiple of one cent, shall be adjusted to the nearest cent. The Company
reserves the right to reject any order but will not do so without reasonable
cause.
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(e) The Distributor shall, no less than quarterly, provide the Company's
Board of Directors with a written report (in a form acceptable to the Funds) of
its activities as distributor for each Fund.
3. SALES AND REDEMPTIONS.
(a) The Company shall pay all costs and expenses of the Funds,
including fees and disbursements of its counsel, in connection with the
registration of the Shares under the 1933 Act, and all expenses in connection
with maintaining facilities for the issue and transfer of the Shares and for
supplying information, prices and other data to be furnished by the Company
hereunder, and all expenses in connection with preparing, printing and
distributing to shareholders, any Prospectus(es), statements and periodic
reports(including the expense of setting in type), except as set forth in
subsection 2(c) of Section II hereof. Under the terms of the Plan, the Company
shall compensate the Distributor through a distribution fee payable monthly at
the annual rate set forth opposite each Fund and, where applicable, Class on
Schedule 1 hereton, based upon the value of average daily net assets of each
Fund or Class as defined in the Registration Statement.
(b) The Company shall execute all documents, furnish all
information and otherwise take all actions which may be reasonably necessary in
the discretion of the Company's officers in connection with the qualification of
the Shares for sale in such states as the Distributor may designate to the
Company and the Company may approve, and the Funds shall pay all fees which may
be incurred in connection with such qualification. The Distributor shall pay all
expenses connected with its qualification as a dealer under state or Federal
laws and, except as otherwise specifically provided in this Agreement, all other
expenses incurred by the Distributor in connection with the sale of the Shares
as contemplated in this Agreement. It is understood that certain advertising,
marketing, shareholder servicing, administration and/or distribution expenses to
be incurred in connection with the Shares may be paid as provided in any plan
which may be adopted by the Funds in accordance with Rule 12b-1 under the 1940
Act.
(c) The Company hereby authorizes the Distributor to repurchase,
upon the terms and conditions set forth in the Registration Statement (as the
same may be supplemented by written instructions given by the Funds to the
Distributor from time to time), as agent of the Funds and for the account of the
Funds, such shares as may be offered for sale to the Funds from time to time.
(d) The Company shall have the right to suspend the sale of
Shares of any Fund at any time in response to conditions in the securities
markets or otherwise, and to suspend the redemption of Shares of any Fund at any
time permitted by the 1940 Act or the rules of the Commission.
(e) The Company reserves the right to reject any order for
Shares.
(f) No Shares shall be offered by either the Company or the
Distributor under any of the provisions of this Agreement and no orders for the
purchase or sale of Shares hereunder shall be accepted by the Funds if and so
long as the effectiveness of the Registration Statement shall be suspended under
any of the provisions of the 1933 Act, or if and so long as a Prospectus as
required by Section 10 of the 1933 Act is not on file with the Commission;
provided, however, that nothing contained in this sub-paragraph shall in any way
restrict or have any application to or bearing upon the Funds' obligation to
repurchase any Shares from any shareholder in accordance with the provisions of
the Charter or Prospectuses.
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III. LIMITATION OF LIABILITY
The Distributor shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Funds or any Fund in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the Distributor's part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. Any person, even though also an officer,
director, partner, employee or agent of the Distributor, who may be or become an
officer, director, employee or agent of the Funds, shall be deemed, when
rendering services to the Funds or to any Fund, or acting on any business of the
Funds or of any Fund (other than services or business in connection with the
Distributor's duties as distributor hereunder), to be rendering such services to
or acting solely for the Funds or a Fund and not as an officer, director,
partner, employee or agent or one under the control or direction of the
Distributor even though paid by the Distributor.
IV. REPRESENTATIONS AND WARRANTIES
1. COMPANY'S REPRESENTATIONS. The Company represents and warrants to the
Distributor that at all times the Registration Statement and Prospectuses will
in all material respects conform to the applicable requirements of the 1933 Act
and the rules and regulations thereunder and will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation or warranty in this subsection shall apply to statements or
omissions made in reliance upon and in conformity with written information
furnished to the Company by, or on behalf of, and with respect to, the
Distributor expressly for use in the Registration Statement or Prospectuses.
2. DISTRIBUTOR'S REPRESENTATIONS. The Distributor represents and
warrants to the Company that it is duly organized as an Ohio limited partnership
and is and at all times will remain duly authorized and licensed to carry out
its services as contemplated herein.
V. INDEMNIFICATION
1. COMPANY'S INDEMNIFICATION. The Company and each of the Funds will
indemnify, defend and hold harmless the Distributor, its several officers and
directors, and any person who controls the Distributor within the meaning of
Section 15 of the 1933 Act, from and against any losses, claims, damages or
liebilities, joint or several, to which any of them may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of, or are based upon,
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Prospectuses or in any application or other
document executed by or on behalf of the Company, or arise out of, or are based
upon, information furnished by or on behalf of the Funds filed in any state in
order to qualify the Shares under the securities or blue sky laws thereof ("Blue
Sky Application"), or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Distributor, its several officers and directors, and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act, for any legal or
other expenses reasonably incurred by any of them in investigating, defending or
preparing to defend any such action, proceeding or claim; PROVIDED, HOWEVER,
that the Company shall not be liable in any case to the extent that such loss,
claim, damage or liability arises out of, or is based upon, any untrue
statement, alleged untrue statemens, or omission or alleged omission made in the
Registration Statement, the Prospectuses, any Blue Sky Application or any
application or other document executed by or on behalf of the Funds in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of and with respect to the Distributor specifically for inclusion
therein.
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The Company shall advance attorneys' fees and other expenses
incurred by any person in defending any claim, demand, action or suit which is
the subject of a claim for indemnification pursuant to this subsection 1, so
long as such person shall: (i) undertake to repay all such advances if it is
ultimately determined that he is not entitled to indemnification hereunder; and
(ii) provide security for such undertaking, or the Company shall be insured
against losses arising by reason of any lawful advances, or a majority of a
quorum of the disinterested, non-party Directors of the Company (or an
independent legal counsel in a written opinion) shall determine based on a
review of readily available facts (as opposed to a full trial-type inquiry) that
there is reason to believe that such person ultimately will be found entitled to
indemnification hereunder.
2. DISTRIBUTOR'S INDEMNIFICATION. The Distributor will indemnify, defend
and hold harmless the Company, each Fund, the Company's several officers and
Directors and any person who controls the Company or any Fund within the meaning
of Section 15 of the 1933 Act, from and against any losses, claims, damages or
liabilities, joint or several, to which any of them may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages or linbilities
(or actions or proceedings in respect hereof) arise out of, or are based upon,
any breach of its representations and warranties in subsection 2 hereof or its
agreements in subsection 2 of Section II of this Agreement, or which arise out
of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Prospectuses, any
Blue Sky Application or any application or other document executed by or on
behalf of the Funds, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company or any of
its several officers and Directors by or on behalf of and with respect to the
Distributor specifically for inclusion therein, and will reimburse the Company,
each Fund, the Company's several officers and Directors, and any person who
controls the Company or any Fund within the meaning of Section 15 of the 1933
Act, for any legal or other expenses reasonably incurred by any of them in
investigating, defending or preparing to defend any such action, proceeding or
claim.
3. GENERAL INDEMNITY PROVISIONS. No indemnifying party shall be liable
under its indemnity ngreement contained in subsection 3 or 4 hereof with respect
to any claim made against such indemnifying party
unless the indemnified party shall have notified the indemnifying party in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon the
indemnified party (or after the indemnified party shall have received notice of
such service on any designated agent), but failure to notify the indemnifying
party of any such claim shall not relieve it from any liability which it may
otherwise have to the indemnified party. The indemnifying party will be entitled
to participate at its own expense in the defense or, if it so elects, to assume
the defense of any suit brought to enforce any such liability, and if the
indemnifying party elects to assume the defense, such defense shall be conducted
by counsel chosen by it and reasonably satisfactory to the indemnified party. In
the event the indemnifying party elects to assume the defense of any such suit
and retain such counsel, the indemnified party shall bear the fees and expenses
of any additional counsel retained by the indemnified party.
VI. TERM
As to each Fund, this Agreement shall continue until April 9, 2000 and
thereafter shall continue automatically for successive annual periods provided
such continuance is specifically approved as to the Fund at least annually by
(a) the Board of Directors or (b) vote of a majority (as defined in the 0000
Xxx) of such Fund's outstanding voting securities, provided that in either event
its continuance also is approved by a majority of the Company's Directors who
are not "interested persons" (as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. Provided, however, that this Agreement is terminable without
penalty, on 60 days' written notice to the Distributor, by the Company's
Directors or by vote of a majority of such Fund's shares or, upon not less than
90 days' written notice to the Company, by the Distributor. This Agreement will
automatically terminate, as to the relevant Funds, in the event of its
assignment (as defined in the 1940 Act).
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VII. MISCELLANEOUS
1. AMENDMENTS. No provision of this Agreement may be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
2. CONSTRUCTION. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. Subject to the provisions of Section IV hereof, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and shall be governed by Iowa law; PROVIDED,
HOWEVER, that nothing herein shall be construed in a manner inconsistent with
the 1940 Act or any rule or regulation thereunder.
3. NOTICE. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Company shall be sufficiently
given if addressed to the Company and mailed or delivered to it at its office at
the address first above written, or at such other place as the Company may from
time to time designate in writing. Any notice or other instrument in writing,
authorized or required by this Agreement to be given to the Distributor shall be
sufficiently given if addressed to the Distributor and mailed or delivered to at
its office at the address first above written, or at such other place as the
Distributor may from time to time designate in writing.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first above
written.
VINTAGE Mutual Funds, Inc.
Attest:
/s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------------ ----------------------------------
Xxxx X. Xxxxxxxxx, Secretary Xxxxx X. Xxxxx, President
BISYS FUND SERVICES LIMITED
PARTNERSHIP
By: BISYS Fund Services, Inc.,
General Partner
Attest:
/s/ By: /s/
------------------------------------ ----------------------------------
Name: Name:
------------------------------ -------------------------------
Title: Title:
----------------------------- -------------------------------
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Schedule 1
Distribution Fees
Vintage Mutual Funds, Inc.
Maximum
Annual Fee Present
Fund/Class Per Plan Approved Fee
---------- -------- ------------
Institutional Money Market Fund 0.25% 0.00%
Liquid Assets
"S" Shares 0.50% 0.40%
"S2" Shares 0.25% 0.15%
Municipal Assets
"S" Shares 0.25% 0.15%
Vintage Limited Term 0.25% 0.00%
Vintage Bond 0.25% 0.00%
Vintage Municipal Bond 0.25% 0.00%
Vintage Balanced 0.25% 0.00%
Vintage Equity
"S" Shares 0.25% 0.00%
"T" Shares 0.25% 0.00%
Vintage Growth 0.25% 0.00%
Amended 12/1/04.
