DISTRIBUTION AND SERVICES AGREEMENT
THIS DISTRIBUTION AND SERVICES AGREEMENT dated December 5, 2003, by and
between INTEGRITY MANAGED PORTOLIOS a Massachusetts business trust (the
"Fund"), and INTEGRITY FUNDS DISTRIBUTOR, INC., a Kansas corporation, (the
"Distributor").
1. APPOINTMENT OF DISTRIBUTOR. The Fund appoints the Distributor as the
principal underwriter and exclusive Distributor of shares of the Oklahoma
Municipal Fund (the "Shares"), effective as of the date upon which the
continuous public offering of the Fund's Shares shall commence (the "Effective
Date"). The Fund reserves the right, however, to refuse at any time or times
to sell Shares hereunder for any reason deemed adequate by the Trustees of the
Fund. The term "Fund" as used herein shall refer to either Integrity Managed
Portfolios or the Oklahoma Municipal Fund as the context may require.
The Distributor will use its best efforts to sell through its organization
and through other dealers the Shares which the Distributor has the right to
purchase under Section 2 hereof, but the Distributor does not undertake to sell
any specific number of Shares.
The Distributor agrees that it will not take any long or short positions in
the Shares, except for long positions in those Shares purchased by the
Distributor in accordance with any systematic sales plan or any similar plan
described in the then current Prospectus of the Fund and except as permitted by
Section 2 hereof, and that so far as it can control the situation, it will
prevent any of its directors, officers or stockholders from taking any long or
short positions in the Shares, except for legitimate investment purposes.
2. SALE OF SHARES TO THE DISTRIBUTOR. The Fund hereby grants to the
Distributor the right, except as herein otherwise provided, to purchase Shares
upon the terms herein set forth. Such right hereby granted shall not apply to
Shares issued or transferred or sold at net asset value: (a) in connection with
the merger or consolidation of the Fund with any other investment company or
the acquisition by the Fund of all or substantially all of the assets or of
the outstanding Shares of any investment company; (b) in connection with a pro
rata distribution directly to the holders of Fund Shares in the nature of a
stock dividend or stock split; (c) upon the exercise of purchase or
subscription rights granted to the holders of Shares on a pro rata basis; (d)
in connection with the automatic reinvestment of dividends and distribution
from the Fund; or (e) in connection with the issue and sale of Shares to
Trustees, officers and employees of the Fund, and to directors, officers and
employees of the investment advisor (or any portfolio manager) of the Fund or
any principal underwriter (including the Distributor) of the Fund, and to any
trust, pension, profit-sharing or other benefit plan for any of the aforesaid
persons or any other such persons as described in the then current Prospectus
of the Fund, as permitted by Rule 22d-1 under the Investment Company Act of
1940.
The Distributor shall have the right to buy from the Fund the Shares
needed, but not more than the Shares needed (except for reasonable allowances
for clerical errors, delays and errors of transmission and cancellation of
orders) to fill unconditional orders for Shares received by the Distributor
from dealers and investors during each period when a particular net asset
value and public offering price are in effect as provided in Section 3 hereof;
and the price which the Distributor shall pay for the Shares so purchased shall
be the net asset value used in determining the public offering price on which
such orders were based. The Distributor shall notify the Fund at the end of
each such period, or as soon thereafter on that business day as the orders
received in such period have been compiled, of the number of Shares which the
Distributor elects to purchase hereunder.
3. PUBLIC OFFERING PRICE. The public offering price per Share shall be
determined in accordance with the then current Prospectus of the Fund. In no
event shall the public offering price exceed the net asset value per Share plus
a sales charge of 8.5% of the public offering price. The net asset value per
Share shall be determined in the Agreement and Declaration of Trust of the
Fund as then amended and in accordance with the current Prospectus of the
Fund. The Fund will cause immediate notice to be given to the Distributor of
each change in net asset value as soon as it is determined. Discounts to
dealers purchasing Shares from the Distributor for resale shall be set forth
in the form of Dealer Agreement between the Distributor and securities dealers,
as from time to time amended, and, if such discounts are described in the then
current Prospectus for the Fund, shall be as so set forth.
4. COMPLIANCE WITH NASD RULES, ETC. In selling Fund Shares, the
Distributor will in all respects duly conform with all state and Federal laws
relating to the sale of such securities and with all applicable rules and
regulations of all regulatory bodies, including without limitation, the Rules
of Fair Practice of the National Association of Securities Dealers, Inc. and
all applicable rules and regulations of the Securities and Exchange Commission
under the Investment Company Act of 1940, and will indemnify and save the Fund
harmless from any damage or expense on account of any unlawful act by the
Distributor or its agents or employees. The Distributor is not, however, to be
responsible for the acts of other dealers. Neither the distributor, any dealer,
nor any other person is authorized by the Fund to give any information or to
make any representations, other than those contained in the Registration
Statement or Prospectus heretofore or hereafter filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (as any such
Registration Statement and Prospectus may have been or may be amended from time
to time), covering the Shares, and in any supplemental information to any such
Prospectus approved by the Fund in connection with the offer or sale of Shares.
All such sales shall be made by the Distributor as principal for its own
account.
5. EXPENSES.
(a) The fund will pay or cause to be paid:
(i) all expenses in connection with the registration of Fund Shares
under the Federal securities laws, and the Fund will exercise its best
efforts to obtain said registration and qualification;
(ii) all expenses of qualifying and maintaining qualification of the
Shares for sale under the securities laws of the various states after
the initial registration in such states of the Shares;
(iii) all expenses in connection with the printing of any notices of
shareholders' meetings, proxy and proxy statements and enclosures
therewith, as well as any other notice or communication sent to
shareholders or otherwise, any annual, semi-annual or other report of
communications sent to the shareholders, and the expenses of sending
prospectuses relating to the Shares to existing shareholders;
(iv) all expenses of any Federal or state original issue tax or
transfer tax payable upon the issuance, transfer or delivery of Shares
from the Fund to the Distributor; and
(v) the cost of preparing and issuing any Share certificates which
may be issued to represent Shares.
(b) The expenses of preparing, printing and distributing advertising and
sales literature; of printing and distributing prospectuses relating to
the Shares (other than deliveries to existing shareholders), reports to
shareholders and proxy material used in connection with the sale of
Shares; of initially qualifying the Shares for sale under the securities
laws of the various states; and of any other activity which is primarily
intended to result in the sale of Shares issued by the Fund will be paid
by the Distributor, except to the extent described in Section 7 of this
Agreement. The Distributor will also permit its officers and employees
to serve without compensation as Trustees and officers of the Fund if
duly elected to such positions.
6. REPURCHASE OF SHARES. The Fund hereby authorizes the Distributor to
repurchase, upon the terms and conditions hereinafter set forth, as the Fund's
agent and for the Fund's account, such shares as may be offered for sale to the
Fund from time to time by holders of such Shares or their agents:
(a) Subject to and in conformity with all applicable Federal and state
legislation, any applicable rules of the National Association of
Securities Dealers, Inc. and any applicable rules and regulations of the
Securities and Exchange Commission under the Investment Company Act of
1940, the Distributor may accept offers of holders of Shares to resell
such Shares to the Fund on such term and conditions and at such prices
as described and provided for in the then current Prospectus of the Fund.
(b) The Distributor agrees to notify the Fund at such times as the Fund
may specify of the number of Shares repurchased for the Fund's account
and the time or times of such repurchases, and the Fund shall notify the
Distributor of the prices applicable to such repurchases.
(c) The Fund shall have the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension
or revocation shall be effective forthwith upon receipt of notice thereof
by telegraph or by written instrument from any of the Fund's officers.
In the event that the Distributor's authorization is, by the terms of
such notice, suspended for more than twenty-four hours or until further
notice, the authorization given by this Section 6 shall not be revived
except by vote of the Board of Trustees of the Fund.
(d) The Distributor agrees that all repurchases of Shares made by the
Distributor shall be made only as agent for the Fund's account and
pursuant to the terms and conditions herein set forth.
(e) The Fund agrees to authorize and direct its Custodian for the Fund
to pay for the Fund's account the repurchase price of any Shares so
repurchased for the Fund against delivery of the certificates
representing such Shares in proper form for transfer to the Fund or
against the authorized transfer of book Shares from an Open Account and
against delivery of any other documentation required by the Board of
Trustees of the Fund.
(f) The Distributor shall receive no commissions or other compensation
in respect to any repurchases of Shares for the Fund under the foregoing
authorization and appointment as agent.
(g) If any shares sold to the Distributor under the terms of this
Agreement are redeemed or repurchased by the Fund or by the Distributor
as agent or are tendered for redemption within seven business days after
the date of the Fund's confirmation of the original purchase, the
Distributor shall forfeit the amount above the net asset value received
by it in respect of such Shares, provided that the portion, if any, of
such amount reallowed by the Distributor to dealers shall be repayable to
the Fund only to the extent recovered by the Distributor from the dealer
concerned. The Distributor shall include in the form of Dealer Agreement
with securities dealers a corresponding provision for the forfeiture by
dealer of their concession with respect to Shares purchased by them and
redeemed or repurchased by the Fund or by the Distributor, as agent
within seven business days after the date of the Fund's confirmation of
their purchases.
7. SERVICE FEE. The Fund will pay an annual fee to the Distributor (the
"Distributor's Fee") of .25% times the average of the net asset values of the
Fund. The Distributor may pay a fee on a quarterly basis (the "Servicing Fee")
to broker-dealers, including the Distributor and affiliates of the adviser and
portfolio manager of the Fund, banks and savings and loan institutions and
their affiliates and associated broker-dealers that have entered into service
agreements with the Distributor ("Service Organizations") of annual amounts of
up to 0.25% of the average net asset value of all Shares owned by shareholders
with whom the Service Organization has a servicing relationship (the
"Accounts"), provided that no such payment of a Service Fee with respect to an
Account shall be made until the Service Organization has been servicing such
Account for more than a year (the "Eligible Accounts"). To the extent the
Servicing Fee is not paid to Service Organizations out of the Distributor's
Fee, the Distributor may use such fee to pay any of the expenses set forth in
Section 5(b) of this Agreement.
(a) the amount which the Fund will pay the Distributor for the
Distributor's Fee in any calendar month shall be calculated by
multiplying 1/12th of 0.25% times the average of the net asset value of
the Fund on each day during the month.
(b) The amount which the Distributor may pay the Service Organizations in
any calendar quarter shall be calculated by multiplying 1/4th of the
percentage set forth in the Service Agreement with each Service
Organization (up to a maximum of 0.25%) times the average net asset value
of the Eligible Accounts with respect to such Service Organization
during such quarter.
(c) For the purpose of determining the maximum amounts payable or
reimbursable under this Agreement, the net asset value of the Fund shall
be determined as described in Section 3 of this Agreement.
(d) The Distributor shall provide the Trustees, at least quarterly, a
written report of all amounts expended by the Distributor pursuant to
this Section 7 and, to the extent applicable, Section 5, stating in such
report the purposes for which such amounts were expended.
8. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless the
Distributor and each of its directors and officers and each person, if any,
who controls the Distributor within the meaning of Section 15 of the 1933 Act
against any loss, liability, claim, damages or expense (including the
reasonable cost of investigating or defending any alleged loss, liability,
claim, damages, or expense and reasonable counsel fees incurred in connection
therewith), arising by reason of any person acquiring any Shares, based upon
the ground that the registration statement, Prospectus, shareholder or other
information filed or made public by the Fund (as from time to time amended),
included an untrue statement of a material fact or omitted to state a material
fact required to be stated or necessary in order to make the statements not
misleading under the 1933 Act, or any other statute or the common law. However,
the Fund does not agree to indemnify the Distributor or hold it harmless to the
extent that the statement or omission was made in reliance upon, and in
conformity with, information furnished to the Fund by or on behalf of the
Distributor. In no case (i) is the indemnity of the Fund in favor of the
Distributor or any person indemnified to be deemed to protect the Distributor
or any person against any liability to the Fund or its security holders to
which the Distributor or such person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of their
duties or by reason of their reckless disregard of their obligations and duties
under this Agreement, or (ii) is the fund to be liable under its indemnity
agreement contained in this section with respect to any claim made against the
Distributor or any person (or after the Distributor or the person shall have
received notice or service on any designated agent). However, failure to
notify the fund of any claim shall not relieve the Fund from any liability
which it may have to the distributor or any person against whom such action
is brought otherwise than on account of its indemnity agreement contained in
this paragraph. The Fund shall 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 claims, but if the Fund elects to assume the defense, the
defense shall be conducted by counsel chosen by it and satisfactory to the
Distributor or persons or persons, defendant or defendants in the suit. In the
event the Fund elects to assume the defense of any suit and retain counsel, the
Distributor, officers or Trustees or controlling person or persons, defendant
or defendants in the suit, shall bear the fees and expenses of any additional
counsel retained by them. If the Fund does not elect to assume the defense of
any suit, it will reimburse the Distributor, officers or Trustees or
controlling person or persons, defendant or defendants in the suit, for the
reasonable fees and expenses of any counsel retained by them. The Fund agrees
to notify the Distributor promptly of the commencement of any litigation or
proceedings against it or any of its officers or Trustees in connection with
the issuance or sale of any of the Shares.
The Distributor also covenants and agrees that it will indemnify and hold
harmless the Fund and each of its Trustees and officers and each person, if
any, who controls the Fund within the meaning of Section 15 of the 1933 Act,
against any loss, liability, damages, claim or expense (including the
reasonable cost of investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees incurred in connection
therewith) arising by reason of any person acquiring any Shares, based upon the
1933 Act or any other stature or common law, alleging any wrongful act of the
Distributor or any of its employees or alleging that the registration
statement, Prospectus, shareholder reports or other information filed or made
public by the Fund (as from time to time amended), included an untrue statement
of a material fact or omitted to state a material fact required to be stated or
necessary in order to make the statements not misleading, insofar as the
statement or omission was made in reliance upon, and in conformity with
information furnished to the Fund by or on behalf of the Distributor. In no
case (i) is the indemnity of the Distributor in favor of the Fund or any person
indemnified to be deemed to protect the Fund or any person against any
liability to which the Fund or such person would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations and
duties under this Agreement, or (ii) is the Distributor to be liable under its
indemnity agreement contained in this paragraph with respect to any claim made
against the Fund or any person indemnified unless the Fund or person, as the
case may be, shall have notified the Distributor in writing of the claim within
a reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the Fund or
person (or after the Fund or such person shall have received notice of service
on any designated agent). However, failure to notify the Distributor of any
claim shall not relieve the Distributor from any liability which it may have
to the Fund or any person against whom the action is brought otherwise than on
account of its indemnity agreement contained in this paragraph. In the case of
any notice to the Distributor, it shall 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 the claim, but if the Distributor elects to assume the
defense, the defense shall be conducted by counsel chosen by it and
satisfactory to the Fund, to its officers and Trustees and to any controlling
person or persons, defendant or defendants in the suit. In the event that the
Distributor elects to assume the defense of any suit and retain counsel, the
Fund or controlling persons, defendant or defendants in the suit, shall bear
the fees and expense of any additional counsel retained by it. If the
Distributor does not elect to assume the defense of any suit, it will reimburse
the Fund, officers and Trustees or controlling person or persons, defendant or
defendants in the suit, for the reasonable fees and expenses of any counsel
retained by it. The Distributor agrees to notify the Fund promptly of the
commencement of any litigation or proceedings against it in connection with
the issue and sale of any of the Shares.
9. CONTINUATION, AMENDMENT OR TERMINATION OF THE AGREEMENT. This Agreement
shall become effective on the Effective Date (it having been approved prior to
such date by a majority of the Fund's Board of Trustees including a majority of
the Disinterested Trustees, as defined below) and shall remain in full force
until the second anniversary of the Effective Date unless sooner terminated as
provided herein. This Agreement shall continue in force from year to year
thereafter so long as such continuance is approved in the manner required by
the Investment Company Act of 1940 (a) this Agreement shall immediately
terminate in the event of its assignment; and (b) this Agreement may be
terminated by the Distributor or the Fund on ninety (90) days' written notice.
Upon termination of this Agreement, the obligations of the parties hereunder
shall cease and terminate as of the date of such termination, except for any
obligation to respond for a breach of this Agreement committed prior to such
termination.
This Agreement may be amended at any time by mutual consent of the parties,
provided that such consent on the part of the Fund shall have been approved (i)
by the Trustees of the Fund, and (ii) by vote of a majority of the
Disinterested Trustees cast in person at a meeting called for the purpose of
voting on such amendment.
For the purpose of this section, the term "assignment" shall have the
meaning defined in the Investment Company Act of 1940, as amended.
10. NOTICE. Any notice under this Agreement shall be given in writing,
addressed and delivered, or mailed postpaid, to the other party at any office
of such party or as such other address as such party shall have designated in
writing.
11. LIMITATION OF LIABILITY. The parties hereto are expressly put on
notice of the Fund's Agreement and Declaration of Trust dated August 10, 1990
and all amendments thereto, all of which are on file with the Secretary of The
Commonwealth of Massachusetts, and the limitation of shareholder and Trustee
liability contained therein. This agreement has been executed by and on
behalf of the Fund by its representatives as such representatives and not
individually, and the obligations of the Fund hereunder are not binding upon
any of the Trustees, officers or shareholders of the Fund individually but are
binding upon only the assets and property of the Fund. With respect to any
claim by the Distributor for recovery of that portion of the Distribution Fee
(or any other liability of the Fund arising hereunder) allocated to a
particular portfolio, if there is more than one, whether in accordance with the
express terms hereof or otherwise, the Distributor shall have recourse solely
against the assets of that portfolio to satisfy such claim and shall have no
recourse against the assets of any other portfolio for such purpose.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
executed on their behalf on the day and year first above written.
INTEGRITY MANAGED PORTFOLIOS
By: /s/ Xxxxxx X. Xxxxxxx
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INTEGRITY FUNDS DISTRIBUTOR, INC.
By: /s/ Xxxx X. Xxxxxxxx
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