Exhibit 6
C/M 12034.0001 489335.1
FORM OF
DISTRIBUTION AGREEMENT
AMERINDO TECHNOLOGY FUND
A series of Amerindo Funds Inc. (the "Fund")
Xxx Xxxxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
May __, 1997
ADS Distributors, Inc.
000 Xxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxx 00000
Gentlemen:
1. In consideration of the agreements on your part herein contained and of
the payment by us to you of a front-end sales load as described in our most
current Prospectus as in effect from time to time and of a compensatory
asset-based sales charges in an amount not to exceed 0.25% per annum of the
Fund's common stock designated Class A shares' (the "Class A Shares") average
daily net assets and on the terms and conditions set forth herein, we have
agreed that you shall be, for the period of this agreement, a distributor, as
our agent, for the unsold portion of the Class A Shares, $.001 par value per
share, as may be effectively registered from time-to-time under the Securities
Act of 1933, as amended (the "1933 Act"). This Agreement is being entered into
and the payment of the asset-based sales charges are being made to you pursuant
to the Distribution and Service Plan (the "Plan") adopted by us on behalf of the
Fund in accordance with Rule 12b-l under the Investment Company Act of 1940, as
amended (the "1940 Act").
2. You will make payments from time-to-time from your fees payable
hereunder and your own resources and past profits for the following purposes:
(i) to compensate certain financial intermediaries with whom you have
written contracts for providing assistance in distributing the Class A
shares;
(ii) to pay the costs of printing and distributing the Fund's
prospectus to prospective investors; and
(iii) to defray the cost of the preparation and printing of brochures
and other promotional materials, mailings to prospective shareholders,
advertising, and other
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promotional activities, including salaries and/or commissions of sales
personnel in connection with the distribution of the Class A shares.
3. We hereby agree that you will act as our agent, and hereby appoint you
our agent, to offer, and to solicit offers to subscribe to, the unsold balance
of the Class A Shares of the Fund represented by the Fund as shall then be
effectively registered under the 0000 Xxx. You shall have the right, as
principal, to purchase Class A Shares of the Fund represented by the Fund at its
respective net asset value and to sell such shares to the public against orders
therefor at the applicable public offering price, as defined below. You shall
also have the right, as principal, to sell shares to dealers against orders
therefor at the public offering price less a concession determined in accordance
with the terms of the Fund's current Prospectus. The public offering price shall
be the net asset value of the Class A Shares, plus any applicable sales charges,
all as set forth in the Fund's current Prospectus and Statement of Additional
Information.
4. All subscriptions for Class A Shares obtained by you shall be directed
to us for acceptance and shall not be binding on us until accepted by us. You
shall have no authority to make binding subscriptions on our behalf. We reserve
the right to sell Class A Shares through other distributors or directly to
investors through subscriptions received by us at our principal office. The
right given to you under this Agreement shall not apply to any Class A Shares
issued in connection with (a) the merger or consolidation of any other
investment company with us, (b) our acquisition by purchase or otherwise of all
or substantially all of the assets or stock of any other investment company, or
(c) the reinvestment in shares of our common stock by our stockholders of
dividends or other distributions or any other offering by us of securities to
our stockholders.
5. You will use your best efforts to obtain subscriptions to the Class A
Shares upon the terms and conditions contained herein and in our Prospectus, as
in effect from time-to-time. You will send to us promptly all subscriptions
placed with you. We shall furnish you from time-to-time, for use in connection
with the offering of the Class A Shares, such other information with respect to
us and the Class A Shares as you may reasonably request. We shall supply you
with such copies of our Registration Statement and Prospectus, as in effect from
time-to-time, as you may request. Except as we may authorize in advance and in
writing, you are not authorized to give any information or to make any
representation that is not contained in the Registration Statement or
Prospectus, as then in effect. You may use employees, agents and other persons,
at your cost and expense, to assist you in carrying out your obligations
hereunder, but no such employee, agent or other person shall be deemed to be our
agent or have any rights under this Agreement. You may sell our Class A Shares
to or through qualified brokers, dealers and financial institutions under
selling and servicing agreements, provided that no dealer, financial institution
or other person shall be appointed or authorized to act as our agent without our
prior written consent. We acknowledge that you as Distributor to the Fund in
connection with the Fund's Class A Shares, pursuant to the Distribution and
Service Plan with the Fund, may arrange for broker-dealers whose customers or
clients are Fund shareholders (each a "Broker-Dealer") to enter
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into agreements with you as the Distributor pursuant to which the Broker-Dealers
will be compensated directly by the Distributor for functions not performed by
the Adviser, the Adviser's Shareholder Servicing Agents, the Distributor, the
Administrator or the Transfer Agent. Such payments will be made only pursuant to
written agreements approved in form and substance by our Board of Directors to
be entered into by the Distributor and the Broker Dealers. It is recognized that
we shall have no obligation or liability to you, the people or entities with
whom you contract or any Broker-Dealer for any such payments under such
agreements with Broker-Dealers. Our obligation is solely to make payments to the
Adviser under both the Advisory Agreement and the Shareholder Servicing
Agreement and to you the Distributor, under this Distribution Agreement. All
sales of our shares effected through you will be made in compliance with all
applicable federal securities laws and regulations and the Constitution, rules
and regulations of the National Association of Securities Dealers, Inc.
6. We reserve the right to suspend the offering of the Class A Shares at
any time, in the absolute discretion of our Board of Directors, and upon notice
of such suspension, you shall cease to offer the Class A Shares hereunder.
7. Both of us will cooperate with each other in taking such action as may
be necessary to qualify the Class A Shares for sale under the securities laws of
such states as we may designate, provided, that you shall not be required to
register as a broker-dealer or file a consent to service of process in any such
state where you are not now so registered. Pursuant to the Advisory Agreement
dated May 14, 1996 between us and the Adviser, we will pay all fees and expenses
of registering the Class A Shares under the 1933 Act and of qualification of the
Class A Shares, and to the extent necessary, our qualification under applicable
state securities laws. You will pay all expenses relating to your broker-dealer
qualification.
8. We represent to you that our Registration Statement and Prospectus have
been carefully prepared to date in conformity with the requirements of the 1933
Act and the 1940 Act and the rules and regulations of the Securities and
Exchange Commission (the "SEC") thereunder. We represent and warrant to you, as
of the date hereof, that our Registration Statement and Prospectus contain all
statements required to be stated therein in accordance with the 1933 Act and the
1940 Act and the SEC's rules and regulations thereunder; that all statements of
fact contained therein are or will be true and correct at the time indicated or
the effective date, as the case may be; and that neither our Registration
Statement nor our 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 the Class A Shares. We will from
time-to-time file such amendment or amendments to our Registration Statement and
Prospectus as, in the light of future development, shall, in the opinion of our
counsel, be necessary in order to have our Registration Statement and Prospectus
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
of our common stock. If we shall not file such amendment or amendments within
fifteen days after our receipt of a
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written request from you to do so, you may, at your option, terminate this
agreement immediately. We will not file any amendment to our Registration
Statement or Prospectus without giving you reasonable notice thereof in advance;
provided, however, that nothing in this agreement shall in any way limit our
right to file such amendments to our Registration Statement or Prospectus, of
whatever character, as we may deem advisable, such right being in all respects
absolute and unconditional. We represent and warrant to you that any amendment
to our Registration Statement or Prospectus hereafter filed by us will be
carefully prepared in conformity within the requirements of the 1933 Act and the
1940 Act and the SEC's rules and regulations thereunder and will, when it
becomes effective, contain all statements required to be stated therein in
accordance with the 1933 Act and the 1940 Act and the SEC's rules and
regulations thereunder; that all statements of fact contained therein will, when
the same shall become effective, be true and correct; and that no such
amendment, when it becomes effective, 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 our
shares.
9. We agree to indemnify, defend and hold you, and any person who controls
you within the meaning of Section 15 of the 1933 Act, free and harmless from and
against any and all claims, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which you or any such controlling person
may incur, under the 1933 Act or the 1940 Act, or under common law or otherwise,
arising out of or based upon any alleged untrue statement of a material fact
contained in our Registration Statement or Prospectus in effect from
time-to-time or arising out of or based upon any alleged omission to state a
material fact required to be stated in either of them or necessary to make the
statements in either of them not misleading, provided, however, that in no event
shall anything herein contained be so construed as to protect you against any
liability to us or our security holders to which you would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of your, duties, or by reason of your reckless disregard of your
obligations and duties under this agreement. Our agreement to indemnify you and
any such controlling person is expressly conditioned upon our being notified of
any action brought against you or any such controlling person, such notification
to be given by letter or by telegram addressed to us at our principal office and
sent to us by the person against whom such action is brought within ten days
after the summons or other first legal process shall have been served. The
failure so to notify us of any such action shall not relieve us from any
liability which we may have to the person against whom such action is brought
other than on account of our indemnity agreement contained in this paragraph 9.
We will be entitled to assume the defense of any suit brought to enforce any
such claim, and to retain counsel of good standing chosen by us and approved by
you. In the event we do elect to assume the defense of any such suit and retain
counsel of good standing approved by you, 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 we do not elect to assume the defense of any such suit, or
in case you, in good faith, do not approve of counsel chosen by us, we will
reimburse you or the controlling person or persons named as defendant or
defendants in such
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suit, for the fees and expenses of any counsel retained by you or them. Our
indemnification agreement contained in this paragraph 9 and our representations
and warranties in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of you or any controlling
person and shall survive the sale of any Class A Shares made pursuant to
subscriptions obtained by you. This agreement of indemnity will inure
exclusively to your benefit, to the benefit of your successors and assigns, and
to the benefit of any of your controlling persons and their successors and
assigns. We agree promptly to notify you of the commencement of any litigation
or proceeding against us in connection with the issue and sale of any Class A
Shares.
10. You agree to indemnify, defend and hold us, our several officers and
directors, and any person who controls us within the meaning of Section 15 of
the 1933 Act, free and harmless from and against any and all claims, demands,
liabilities, and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any reasonable counsel fees incurred in
connection therewith) which we, our officers or directors, or any such
controlling person may incur under the 1933 Act or under common law or
otherwise, but only to the extent that such liability or expense incurred by us,
our officers or directors or such controlling person shall arise out of or be
based upon any alleged untrue statement of a material fact contained in
information furnished in writing by you to us for use in our Registration
Statement or Prospectus as in effect from time-to-time, or shall arise out of or
be based upon any alleged omission to state a material fact in connection with
such information required to be stated in the Registration Statement or
Prospectus or necessary to make such information not misleading. Your agreement
to indemnify us, our officers and directors, and any such controlling person is
expressly conditioned upon your being notified of any action brought against us,
our officers or directors or any such controlling person, such notification to
be given by letter or telegram addressed to you at your principal office and
sent to you by the person against whom such action is brought, within ten days
after the summons or other first legal process shall have been served. You shall
have a right to control the defense of such action, with counsel of your own
choosing, satisfactory to us, if such action is based solely upon such alleged
misstatement or omission on your part, and in any other event you and we, our
officers or directors or such controlling person shall each have the right to
participate in the defense or preparation of the defense of any such action. The
failure to notify you of any such action shall not relieve you from any
liability which you may have to us, to our officers or directors, or to such
controlling person other than on account of your indemnity agreement contained
in this paragraph 10.
11. We agree to advise you immediately:
(a) of any request by the SEC for amendments to our Registration
Statement or Prospectus or for additional information,
(b) of the issuance by the SEC of any stop order suspending the
effectiveness of our Registration Statement or Prospectus or the initiation of
any proceedings for that purpose,
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(c) of the happening of any material event which makes untrue any
statement made in our Registration Statement or Prospectus or which requires the
making of a change in either of them in order to make the statements therein not
misleading, and
(d) of all action of the SEC with respect to any amendments to our
Registration Statement or Prospectus.
12. This Agreement will become effective on the date hereof and will remain
in effect thereafter for successive twelve-month periods (computed from each May
1), provided that such continuation is specifically approved at least annually
by vote of our Board of Directors and of a majority of those of our directors
who are not interested persons (as defined in the 0000 Xxx) and have no direct
or indirect financial interest in the operation of the Plan or in any agreements
related to the Plan, cast in person at a meeting called for the purpose of
voting on this Agreement. In the event that the Distribution and Service Plan is
either terminated or is no longer valid, this Agreement automatically and
immediately terminates. This Agreement may be terminated at any time, without
the payment of any penalty, by vote of a majority of our entire Board of
Directors and by a vote of a majority of our Directors who are not interested
persons (as defined in the 0000 Xxx) and who have no direct or indirect
financial interest in the operation of the Plan or in any agreement related to
the Plan, or by vote of a majority of our outstanding voting securities, as
defined in the Act, on sixty days' written notice to you, or by you on sixty
days' written notice to us.
13. This Agreement may not be transferred, assigned, sold or in any manner
hypothecated or pledged by you and this Agreement shall terminate automatically
in the event of any such transfer, assignment, sale, hypothecation or pledge by
you. The terms "transfer", "assignment" and "sale" as used in this paragraph
shall have the meanings ascribed thereto by governing law and in applicable
rules or regulations of the SEC thereunder.
14. Except to the extent necessary to perform your obligations hereunder,
nothing herein shall be deemed to limit or restrict your right, or the right of
any of your officers, directors or employees who may also be a director, officer
or employee of ours, or of a person affiliated with us, as defined in the 1940
Act, to engage in any other business or to devote time and attention to the
management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to another corporation,
firm, individual or association.
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If the foregoing is in accordance with your understanding, will you kindly
so indicate by signing and returning to us the enclosed copy hereof.
Very truly yours,
AMERINDO FUNDS INC.,
AMERINDO TECHNOLOGY FUND
By: ------------------------------------
Name:
Title:
Accepted:
May __, 1997
ADS DISTRIBUTORS, INC.
By: ------------------------------
Name:
Title:
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