IMG MUTUAL FUNDS, INC.
EXHIBIT # 6(b)
TO
POST-EFFECTIVE AMENDMENT NO. 7
FORM N-1A REGISTRATION STATEMENT
DISTRIBUTION AGREEMENT
AGREEMENT dated as of ___________ ___, 199__, between BISYS Fund
Services, Inc., (the "Distributor") and IMG Mutual Funds, Inc., (the "IMG
Funds").
WHEREAS, the IMG Funds desires to appoint the Distributor as
distributor of the units of beneficial interest of each of the investment
portfolios (the "Funds") of the IMG Funds identified on Schedule A hereto, (such
units of beneficial interest are hereinafter called "Shares") and the
Distributor has agreed to so act as distributor.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Services as Distributor.
1.1 Distributor will act as agent for the distribution of the Shares
covered by the registration statement and prospectus of the IMG Funds then in
effect under the Securities Act of 1933, as amended (the "Securities Act"). As
used in this Agreement, the term "registration statement" shall mean Part A (the
prospectus), B (the Statement of Additional Information) and C of each
registration statement that is filed on Form N-1A, or any successor thereto,
with the Securities and Exchange Commission (the "Commission"), together with
any amendments thereto. The term "prospectus" shall mean each form of prospectus
and Statement of Additional Information used by the Funds for delivery to
shareholders and prospective shareholders after the effective date of the above
referenced registration statements, together with any amendments and supplements
thereto.
1.2 Distributor agrees to use appropriate efforts to solicit orders for
the sale of the Shares and will undertake such advertising and promotion as it
believes reasonable in connection with such solicitation. The IMG Funds
understands that Distributor is now and may in the future be the distributor of
the shares of several investment companies or series (together, "Companies")
including Companies having investment objectives similar to those of the IMG
Funds. The IMG Funds further understands that investors and potential investors
in the IMG Funds may invest in shares of such other Companies. The IMG Funds
agrees that Distributor's duties to such Companies shall not be deemed in
conflict with its duties to the IMG Funds under this paragraph 1.2
Distributor shall, at its own expense, finance accounting activities
which it deems reasonable which are primarily intended to result in the sale of
the Shares, including, but not limited to, advertising, compensation of
underwriters, dealers and sales personnel, the printing and mailing of
prospectuses to other than current Shareholders, and the printing and mailing of
sales literature.
1.3 In its capacity as distributor of the Shares, all activities of
Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations including, without limitation, the
Investment Company Act of 1940, as amended (the "1940 Act"), all rules and
regulations promulgated by the Commission thereunder and all rules and
regulations adopted b any securities association registered under the Securities
Exchange Act of 1934.
1.4 Distributor will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to the IMG Funds.
1.5 Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent and custodian for the Funds.
1.6 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind, the IMG Funds' officers may decline to accept any orders for, or make any
sales of, the Shares until such time as those officers deem it advisable to
accept such orders and to make such sales.
1.7 Distributor will act only on its own belief as principal if it
chooses to enter into selling agreements with selected dealers or others.
1.8 The IMG Funds agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the qualification of
the Shares for sale in such states as Distributor may designate.
1.9 The IMG Funds shall furnish from time to time, for use in
connection with the sale of the Shares, such information with respect to the
Funds and the Shares as Distributor may reasonably request; and the IMG Funds
warrants that the statements contained in any such information shall fairly show
or represent what they purport to show or represent. The IMG Funds shall also
furnish Distributor upon request with: (a) unaudited semi-annual statements of
the Funds' books and accounts prepared by the IMG Funds, (b) a monthly itemized
list of the securities in the Funds, (c) monthly balance sheets as soon as
practicable after the end of each month, and (d) from time to time such
additional information regarding the financial condition of the Funds as
Distributor may reasonably request.
1.10 The IMG Funds represents to Distributor that, with respect to the
Shares, all registration statements and prospectuses filed by the IMG Funds with
the Securities and Exchange Commission under the Securities Act have been
carefully prepared in conformity with requirements of said Act and rules and
regulations of the Commission thereunder. The registration statement and
prospectus contain all statements required to be stated therein in conformity
with said Act and the rules and regulations of said Commission and all
statements of fact contained in any such registration statement and prospectus
are true and correct. Furthermore, neither any registration statement nor any
prospectus includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading to a purchaser of the Shares. The IMG Funds may, but
shall not be obligated to, propose from time to time such amendment or
amendments to any registration statement and such supplement or supplements to
any prospectus as, in the light of future developments, may, in the opinion of
the IMG Funds' counsel, be necessary or advisable. If the IMG Funds shall not
propose such amendment or amendments and/or supplement or supplements within
fifteen (15) days after receipt by the IMG Funds of a written request from
Distributor to do so, Distributor may, at its option, terminate this Agreement.
The IMG Funds shall not file any amendment to any registration statement or
supplement to any prospectus without giving Distributor reasonable notice
thereof in advance; provided, however, that nothing contained in this Agreement
shall in any way limit the IMG Funds' right to file at any time such amendments
to any registration statement and/or supplements to any prospectus, of whatever
character, as the IMG Funds may deem advisable, such right being in all respects
absolute and unconditional.
1.11 The IMG Funds authorizes Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of the Shares. The IMG Funds agrees to indemnify, defend and hold Distributor,
its several partners and employees, and any person who controls Distributor
within the meaning of Section 15 of the Securities 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
counsel fees incurred in connection therewith) which Distributor, its partners
and employees, or any such controlling person, may incur under the Securities
Act or under common law or otherwise, arising out of or based upon any untrue
statement, or alleged untrue statement, of a material fact contained in any
registration statement or any prospectus or arising out of or based upon any
omissions, or alleged omission, to state a material fact required to be stated
in either any registration statement or any prospectus or necessary to make the
statements in either thereof not misleading. Provided, however, that the IMG
Funds' agreement to indemnify Distributor, its partners or employees, and any
such controlling person shall not be deemed to cover any claims, demands,
liabilities or expenses arising out of any statements or representations as are
contained in any prospectus and in such financial and other statements as are
furnished in writing to the IMG Funds by Distributor and used in the answers to
the registration statement or in the corresponding statements made in the
prospectus, or arising out of or based upon any omission to state a material
fact in connection with the giving of such information required to be stated in
such answers or necessary to make the answers not misleading; and further
provided that the IMG Funds' agreement to indemnify Distributor and the IMG
Funds' representations and warranties hereinbefore set forth in paragraph 1.10
shall not be deemed to cover any liability to the IMG Funds or its Shareholders
to which Distributor would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties, or
by reason of Distributor's reckless disregard of its obligations and duties
under this Agreement. The IMG Funds' agreement to indemnify Distributor, its
partners and employees and any such controlling person, as aforesaid, is
expressly conditioned upon the IMG Funds being notified of any action brought
against Distributor, its partners or employees, or any such controlling person,
such notification to be given by letter or by telegram addressed to the IMG
Funds at its principal office in Des Moines, Iowa and sent to the IMG Funds by
the person against whom such action is brought, within 10 days after the summons
or other first legal process shall have been served. The failure to so notify
the IMG Funds of any such action shall not relieve the IMG Funds from any
liability which the IMG Funds may have to the person against whom such action is
brought by reason of any such untrue, or allegedly untrue, statement or
omission, or alleged omission, otherwise than on account of the IMG Funds'
indemnity agreement contained in this paragraph 1.11. The IMG Funds will be
entitled to assume the defense of any suit brought to enforce any such claim,
demand or liability, but, in such case, such defense shall be conducted by
counsel of good standing chosen by the IMG Funds and approved by Distributor,
which approval shall not be reasonably withheld. In the event the IMG Funds
elects to assume the defense of any such suit and retain counsel of good
standing approved by Distributor, 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 the IMG Funds does not elect to assume the defense of any such suit,
or in case Distributor reasonably does not approve of counsel chosen by the IMG
Funds, the IMG Funds will reimburse Distributor, its partners and employees, or
the controlling person or persons named as defendant or defendants in such suit,
for the fees and expenses of any counsel retained by Distributor or them. The
IMG Funds' indemnification agreement contained in this paragraph 1.11 and the
IMG Funds' representations and warranties in this Agreement shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of Distributor, its partners and employees, or any controlling
person, and shall survive the delivery of any Shares.
This Agreement of indemnity will inure exclusively to Distributor's
benefit, to the benefit of its several partners and employees, and their
respective estates, and to the benefit of the controlling persons and their
successors. The IMG Funds agrees promptly to notify Distributor of the
commencement of any litigation or proceedings against the IMG Funds or any of
its officers or IMG Funds in connection with the issue and sale of any Shares.
1.12 Distributor agrees to indemnify, defend and hold the IMG Funds,
its several officers and Directors and any person who controls the IMG Funds
within the meaning of Section 15 of the Securities Act free and harmless from
and against any and all claims, demands, liabilities and expenses (including the
costs of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the IMG Funds, its officers
or Directors or any such controlling person, may incur under the Securities Act
or under common law or otherwise, but only to the extent that such liability or
expense incurred by the IMG Funds, its officers or Directors or such controlling
person resulting from such claims or demands, shall arise out of or be based
upon any untrue, or alleged untrue, statement of a material fact contained in
information furnished in writing by Distributor to the IMG Funds and used in the
answers to any of the items of the registration statement or in the
corresponding statements made in the prospectus, or shall arise out of or be
based upon any omission, or alleged omission, to state a material fact in
connection with such information furnished in writing by Distributor to the IMG
Funds required to be stated in such answers or necessary to make such
information not misleading. Distributor's agreement to indemnify the IMG Funds,
its officers and Directors being notified of any action brought against the IMG
Funds, its officers or Directors, or any such controlling person, such
notification to be given by letter or telegram addressed to Distributor at its
principal office in Des Moines, Iowa, and sent to Distributor by the person
against whom such action is brought, within 10 days after the summons or other
first legal process shall have been served. Distributor shall have the right of
first control of the defense of such action, with counsel of its own choosing,
satisfactory to the IMG Funds, if such action is based solely upon such alleged
misstatement or omission on Distributor's part, and in any other event the IMG
Funds, its 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 so notify Distributor of any such action shall not
relieve Distributor from any liability which Distributor may have to the IMG
Funds, its officers or Directors, or to such controlling person by reason of any
such untrue or alleged untrue statement, or omission or alleged omission,
otherwise than on account of Distributor's indemnity agreement contained in this
paragraph 1.12.
1.13 No Shares shall be offered by either Distributor or the IMG Funds
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the IMG Funds if and so long as
the effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities Act or if and so long as a current prospectus as required by Section
10(b)(2) of said Act is not on file with the Commission; provided, however, that
nothing contained in this paragraph 1.13 shall in any way restrict or have an
application to or bearing upon the IMG Funds' obligation to repurchase Shares
from any Shareholders in accordance with the provisions of the IMG Funds'
prospectus, Agreement and Articles of Incorporation, or Bylaws.
1.4 The IMG Funds agrees to advise Distributor as soon as reasonably
practical by a notice in writing delivered to Distributor or its counsel:
(a) of any request by the Commission for amendments to the
registration statement or prospectus then in effect or for
additional information;
(b) in the event of the issuance by the Commission of any stop
order suspending the effectiveness of the registration
statement or prospectus then in effect or the initiation by
service of process on the IMG Funds of any proceeding for that
purpose;
(c) of the happening of any event that makes untrue any statement
of a material fact made in the registration statement or
prospectus then in effect or which requires the making of a
change in such registration statement or prospectus in order
to make the statements therein not misleading; and
(d) of all actions of the Commission with respect to any amendment
to any registration statement or prospectus which may from
time to time be filed with the Commission.
For purposes of this section, informal requests by or acts of the Staff
of the Commission shall not be deemed actions of or requests by the Commission.
1.15 Distributor agrees on behalf of itself and its partners and
employees to treat confidentiality and as proprietary information of the IMG
Funds all records and other information relative to the IMG Funds and its prior,
present or potential Shareholders, and not to use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except, after prior notification to and approval in writing by the
IMG Funds, which approval shall not be unreasonably withheld and may not be
withheld where Distributor may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such information by
duly constituted authorities, or when so requested by the IMG Funds.
1.16 This Agreement shall be governed by the laws of the Commonwealth
of Massachusetts.
2. Fee.
2.1 The Distributor shall receive from the Funds identified on Schedule
B hereto (the "Distribution Plan Funds") a distribution fee at the rate and upon
the terms and conditions set forth in the Distribution and Shareholder Services
Plan attached as Schedule C hereto, and as amended from time to time. The
distribution fee shall be accrued daily and shall be paid on the first business
day of each month, or at such time(s) as the Distributor shall reasonably
request.
3. Sale and Payment.
Under this Agreement, the following provisions shall apply with respect
to the sale of, and payment for, those Shares sold at an offering price which
includes a sales load as described in the prospectus of the Funds identified on
Schedule D hereto (collectively, the "Load Funds"; individually, a "Load Fund"):
(a) The Distributor shall have the right, as principal, to purchase
Shares from the Load Funds at their net asset value and to sell such Shares to
the public against orders therefor at the applicable public offering price, as
defined in Section 4 hereof. The Distributor shall also have the right, as
principal, to sell Shares to dealers against orders therefor at the public
offering price less a concession determined by the Distributor, which concession
shall not exceed the amount of the sales charge or underwriting discount, if
any, referred to in Section 4 below.
(b) Prior to the time of deliver of any Shares by a Load Fund to, or on
the order of, the Distributor, the Distributor shall pay or cause to be paid to
the Load Fund or to its order an amount in Boston or New York clearing house
funds equal to the applicable net asset value of such Shares. The Distributor
may retain so much of any sales charge or underwriting discount as is not
allowed by the Distributor as a concession to dealers.
4. Public Offering Price.
The public offering price of a Share of a Load Fund shall be the net
asset value of a Share, plus any applicable sales charge, all as set forth in
the current prospectus of the Load Fund. The net asset value of Shares shall be
determined in accordance with the provisions of the Agreement and Articles of
Incorporation and Bylaws of the IMG Funds and the then current prospectus of the
Load Fund.
5. Issuance of Shares.
The IMG Funds reserves the right to issue, transfer or sell Shares of
the Load Funds at net asset value (a) in connection with the merger or
consolidation of the IMG Funds or the Load Fund(s) with any other investment
company or the acquisition by the IMG Funds or the Load Fund(s) of all or
substantially all of the assets or of the outstanding Shares of any other
investment company; (b) in connection with a pro rata distribution directly to
the holders of Shares in the nature of a stock dividend or split; (c) upon the
exercise of subscription rights granted to the holders of Shares on a pro rata
basis; (d) in connection with the issuance of Shares pursuant to any exchange
and reinvestment privileges described in any then current prospectus of the Load
Fund; and (e) otherwise in accordance with any then current prospectus of the
Load Fund.
6. Term and Matter Relating to the IMG Funds.
This Agreement shall become effective on _______________ __, 199__ and,
unless sooner terminated as provided herein, shall continue until _____________
__, 199__, and thereafter shall continue automatically for successive annual
periods, provided such continuance is specifically approved at least annually by
a majority of the IMG Funds' Board of Directors who are not parties to the
Agreement or 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. This Agreement is terminable without penalty, on not
less than sixty (60) days' notice, by the IMG Funds' Board of Directors, by vote
of a majority of the outstanding voting securities (as defined in the 0000 Xxx)
of the IMG Funds or by the Distributor. This Agreement will also terminate
automatically in the event of its assignment (as defined in the 1940 Act).
The names "IMG Mutual Funds, Inc." and "Directors of the IMG Mutual
Funds, Inc." refer respectively to the IMG Funds created and the Directors, as
directors but not individually or personally, acting from time to time under the
Agreement and Articles of Incorporation dated as of November 17, 1994 to which
reference is hereby made a copy of which is on file at the office of the
Secretary of the State of Maryland and elsewhere as required by law, and to any
and all amendments thereto so filed or hereafter filed. The obligations of "IMG
Mutual Funds, Inc." entered into in the name or on behalf thereof by any of the
Directors, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Directors, Shareholders or
representatives of IMG Funds personally, but bind only the assets of IMG Funds,
and all persons dealing with any series of Shares of IMG Fund must look solely
to the assets of the IMG Funds belonging to such series for the enforcement of
any claims against the IMG Funds.
IN WITNESS WHEREOF, each of the parties has caused its duly authorized
signatories to execute this Agreement as of the date first written above.
IMG Mutual Funds, Inc.
By:
Name:
Title:
BISYS Fund Services, Inc.
By:
Name:
Title:
Schedule A
TO THE DISTRIBUTION AGREEMENT
BETWEEN IMG MUTUAL FUNDS, INC. AND
BISYS FUND SERVICES, INC.
Names of Funds
Vintage Equity Fund Vintage Aggressive Growth Fund Vintage Balanced Fund Vintage
Municipal Bond Fund Vintage Bond Fund Vintage Income Fund Vintage Limited Term
Bond Fund Liquid Assets Fund Government Assets Fund Municipal Assets Fund
Schedule B
TO THE DISTRIBUTION AGREEMENT
BETWEEN IMG MUTUAL FUNDS, INC. AND
BISYS FUND SERVICES, INC.
Names of Funds
Vintage Equity Fund Vintage Aggressive Growth Fund Vintage Balanced Fund Vintage
Municipal Bond Fund Vintage Bond Fund Vintage Income Fund Vintage Limited Term
Bond Fund Liquid Assets Fund Government Assets Fund Municipal Assets Fund
Schedule C
TO THE DISTRIBUTION AGREEMENT
BETWEEN IMG MUTUAL FUNDS, INC. AND
BISYS FUND SERVICES, INC.
DISTRIBUTION AND SHAREHOLDER SERVICE PLAN
This Plan (the "Plan") constitutes the distribution and shareholder service plan
of the IMG Mutual Funds, Inc., a Maryland corporation (the "IMG Funds"), adopted
pursuant to Rule 12b-1 under the Investment Company Act of 1940 (the "1940
Act"). The Plan relates to those investment portfolios ("Funds") identified on
Schedule B of the IMG Funds' Distribution Agreement, as amended from time to
time (the "Distribution Plan Funds").
Section 1. Each Distribution Plan Fund shall pay to BISYS Fund Services, Inc.,
the distributor (the "Distributor") of the IMG Funds' units of beneficial
interest (the "Shares"), a fee in an amount not to exceed on an annual basis
0.01% of the average daily net asset value of such Fund (the "Distribution Fee")
, up to an annual maximum of $100,000 for all Funds, for: (a) payments the
Distributor makes to banks and other institutions and broker/dealers (a
"Participating Organization") for distribution assistance and/or Shareholder
service pursuant to an agreement between the Distributor and the Participating
Organization; or (b) reimbursement of expenses incurred by a Participating
Organization pursuant to an agreement in connection with distribution assistance
and/or Shareholder service including, but not limited to, the reimbursement of
expenses relating to printing and distributing prospectuses to persons other
than Shareholders of a Distribution Plan Fund, printing and distributing
advertising and sales literature and reports to Shareholders used in connection
with the sale of Shares, and personnel and communication equipment used in
servicing Shareholder accounts and prospective Shareholder inquiries. For
purposes of the Plan, a Participating Organization may include the Distributor
or any of its affiliates or subsidiaries.
Section 2. The Distribution Fee shall be paid by the Distribution Plan Funds to
the Distributor only to compensate or to reimburse the Distributor for payments
or expenses incurred pursuant to Section 1.
Section 3. The Plan shall not take effect with respect to a Distribution Plan
Fund until it has been approved by a vote of at least a majority of the
outstanding voting securities of such Fund.
Section 4. The Plan shall not take effect until it has been approved, together
with any related agreements, by votes of the majority (or whatever greater
percentage may, from time to time, be required by Section 12(b) of the 1940 Act
or the rules and regulations thereunder) of both (a) the Directors of the IMG
Funds, and (b) the Independent Directors of the IMG Funds cast is person at a
meeting called for the purpose of voting on the Plan or such agreement.
Section 5. The Plan shall continue in effect for a period of more than one year
after it takes effect only so long as such continuance is specifically approved
at least annually in the manner provided for approval of the Plan in section 4.
Section 6. Any person authorized to direct the disposition of monies paid or
payable by the Distribution Plan Funds pursuant to the Plan or any related
agreement shall provide to the Directors of the IMG Funds, and the Directors
shall review, at least quarterly, a written report of the amounts so expended
and the purposes for which such expenditures were made.
Section 7. The Plan may be terminated at any time by vote of a majority of the
Independent Directors, or by vote of a majority of a Distribution Plan Fund's
outstanding voting securities.
Section 8. All agreements with any person relating to implementation of the Plan
shall be in writing, and any agreement related to the Plan shall provide:
(a) That such agreement may be terminated at any time, without
payment of any penalty, by vote of a majority of the
Independent Directors or by vote of a majority of the
outstanding voting securities of the Distribution Plan Fund,
on not more than 60 days' written notice to any other party to
the agreement; and
(b) That such agreement shall terminated automatically in the event of
its assignment.
Section 9. The Plan may not be amended to increase materially the amount of
distribution expenses permitted pursuant to Section 1 hereof without approval in
the manner provided in Section 3 hereof, and all material amendments to the Plan
shall be approved in the manner provided for approval of the Plan in Section 4.
Section 10. As used in the Plan, (a) the term "Independent Directors" shall mean
those Directors of the IMG Funds who are not interested persons of the IMG
Funds, and have no direct or indirect financial interest in the operation of the
Plan or any agreements related to it, and (b) the terms "assignment",
"interested persons" and "majority of the outstanding voting securities" shall
have the respective meanings specified in the 1940 Act and the rules and
regulations thereunder, subject to such exemptions as may be granted by the
Securities Exchange Commissions.
