UNDERWRITING AGREEMENT
BETWEEN
THE CANANDAIGUA FUNDS
-------------------------------------
AND
AMERIMUTUAL FUNDS DISTRIBUTOR, INC.
[GRAPHIC OMITTED][GRAPHIC OMITTED]
UNDERWRITING AGREEMENT
The Canandaigua Funds
AGREEMENT made this 1st day of November, 2000, by and between The
Canandaigua Funds, a Delaware Business Trust ("the Funds"), and AmeriMutual
Funds Distributor, Inc. ("the Underwriter").
BACKGROUND
WHEREAS, the Trust is offering shares of beneficial interest ("the Shares") in
an investment portfolio known as the "Canandaigua Equity Fund", and the
"Canandaigua Bond Fund", which is a series of the Trust; and
WHEREAS, the Fund is a non-diversified, open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended ("xxx 0000 Xxx"); and
WHEREAS, the Underwriter is a Trust experienced in providing distribution
services to mutual funds and possesses facilities sufficient to provide such
services; and
WHEREAS, the Trust desires to avail itself of the experience, assistance and
facilities of the Underwriter and to have the Underwriter perform for the Fund
certain services appropriate to the operations of the Fund and the Underwriter
is willing to furnish such services in accordance with the terms hereinafter set
forth, the Trust and the Underwriter agree to the following terms.
TERMS
A. DISTRIBUTION ACTIVITIES:
1. The Underwriter will receive orders from purchasers for and the
Fund will sell, issue and deliver from time to time such
purchasers, such part of the authorized shares of capital stock
of the Fund remaining un-issued as from time to time shall be
effectively registered under the Securities Act of 1933, as
amended (the "33 Act"), at prices determined as hereinafter
provided and on the terms hereinafter set forth, all subject to
applicable Federal and State laws and regulations and the
Trust's Articles of Incorporation.
2. The Underwriter shall present all orders received by it for
shares to the Fund by telegraphic or written purchase orders and
each such order shall be subject to the acceptance or rejection
by the Fund in its sole discretion.
2.1 Notwithstanding any other provision hereof,
whenever in the judgment of the Fund such action
is warranted by market, economic or political
conditions or by abnormal circumstances of any
kind, the Fund may suspend the offer of Shares in
effect and may, without liability under the
provision of this Agreement, decline to accept or
confirm any orders or make any sales of Shares
under this Agreement until such time as the Fund
shall deem it advisable to resume the offering of
such Shares, provided that as soon as practicable
after the taking of any such action a special
meeting of the Board of Directors of the Fund
shall be called to be held as soon as practicable
thereafter to determine whether or not such
action shall then continue to be effective, and
the period during, or the circumstance under,
which such action shall continue or cease to be
effective. During any period during which the
offer of Shares shall be suspended or the Fund
shall decline to accept or confirm any such
orders or make any such sales, the Fund shall be
under no obligation to confirm or accept any such
orders or make any such sale at any price.
2.2 The Fund will use its best efforts to keep
effectively registered under the 33 Act for sale
as herein contemplated such Shares as the
Underwriter shall reasonably request and as the
Securities and Exchange Commission (the "SEC")
shall permit to be so registered.
3. Sales by the Underwriter shall be made as agent for the Fund and
all such sales be made to or through qualified dealers or others
in such manner, not inconsistent with the provisions hereof and
the then effective registration statement of the Fund under the
33 Act, (and related prospectus), as the Underwriter may
determine from time to time.
4. All Shares offered for sale or sold by the Underwriter shall be
so offered or sold at a price per share (the "Offering Price")
equal to the net asset value per share (determined as authorized
from time to time by the Board of Directors of the Trust
pursuant to its charter).
4.1 For the purpose of determining the Offering
Price, the net asset value of any such Shares
shall be so determined in accordance with the
then current offering prospectus. The Fund, or
its authorized agent, will promptly furnish to
the Underwriter a statement of the Offering Price
as often a such net asset value is determined and
such statement shall at the request of the
Underwriter show the basis of computation of the
Offering Price.
4.2 Orders presented by the Underwriter for
Shares, if accepted by the Fund, shall be
accepted and confirmed by it or its duly
authorized agent at the Offering Price in effect
at the time of its receipt of such order at its
principal office.
4.3 The Underwriter will not in any event (a)
offer for sale or sell shares of capital stock in
excess of the number then effectively registered
under the 33 Act, and available for sale, or (b)
offer for sale or sell any shares in violation of
any applicable Federal or State law, rule or
regulation.
5. The Fund will execute any and all documents and furnish any and
all information which may be reasonably necessary in connection
with the qualification of its Shares of capital stock in such
states as the Underwriter may reasonably request (it being
understood that the Fund shall not be required without its
consent to qualify to do business in any jurisdiction or to
comply with any requirement which in its opinion is unduly
burdensome). The Underwriter, at its own expense, will effect
all necessary qualifications as dealer or broker.
6. The Fund will furnish to the Underwriter from time to time such
information with respect to its Shares as the Underwriter may
reasonably request for use in connection with the sale of
Shares. The Underwriter will not use or distribute or authorize
the use, distribution or dissemination by its dealers or others
in connection with such sale of any literature, advertising or
selling aids in any form or through any medium, written or oral,
without prior written specific approval thereof by the Fund.
7. Nothing herein contained shall limit the right of the Fund, in
its absolute discretion, to issue or sell Shares for such other
considerations (whether in connection with the acquisition of
assets or shares or securities of another Trust or entity or
with the merger or consolidation of any other Trust into or with
the Fund, or otherwise) as and to the extent permitted by its
charter and any applicable laws, or to issue or sell any such
Shares directly to the shareholders of the Fund, upon such terms
and conditions and for such consideration, if any, as may be
determined by the Board of Trustees, whether pursuant to the
distribution of subscription or purchase rights to such holders
or by way of dividends or otherwise.
8. At the request of the Fund, the Underwriter agrees to act as
agent for the Fund for the repurchase or redemption of shares of
the Fund at such prices as the Fund from time to time shall
prescribe.
9. In selling or reacquiring shares, the Underwriter agrees to
conform to the requirements of all state and Federal laws
relating to such sale or reacquisition, as the case may be, and
will indemnify and hold the Fund harmless from any damage or
expense on account of any wrongful act by the Underwriter or any
employee, representative or agent of the Underwriter. The
Underwriter will observe and be bound by all the provisions of
the charter of the Trust and any fundamental policies adopted by
the Fund pursuant to the 1940 Act, or otherwise, notice of which
has been given to the Underwriter.
10. Neither the Underwriter, any dealer nor any other person is
authorized by the Fund to give any information or to make any
representation other than those contained (a) in the latest
effective registration statement (and related prospectus) filed
with the SEC under the 33 Act as such registration statement
(and prospectus) may be amended from time to time, or (b) in any
statement expressly authorized by the Fund for use in connection
with any sale or reacquisition of Shares for the account of the
Fund.
D. COMPENSATION AND OTHER:
0.Xx Consideration of the agreements on the part of the
Underwriter herein contained, the Underwriter shall receive
payment in the amount of $22,750 per annum billed monthly, plus
reimbursement of all reasonable out-of-pocket expenses incurred
at the request of the Fund in fulfillment of its
responsibilities in this Agreement.
2. This Agreement shall continue in effect until such time as there
remain no unsold balance of Shares effectively registered under
the 33 Act; provided, however, that (a) this Agreement shall
continue in effect for a period of more than two years from the
date hereof only so long as such continuance is specifically
approved at least annually by the Board including by a majority
of the "disinterested Directors" or a majority of the
outstanding voting securities of the Fund, and (b) either party
hereto may terminate this Agreement on any date by giving the
other party at least ninety (90) days prior written notice of
such termination specifying the date fixed therefore.
2.1 This Agreement shall automatically terminate
in the event of its assignment by the
Underwriter, the term "assignment" having the
meaning defined in Section 2 (a) (4) of the 40
Act.
3. Any notice under this Agreement shall be in writing addressed at
the address given below, or at such other address as such party
shall theretofore have designated (by notice given to the other
party as herein provided) in writing for the receipt of such
notice:
To the Fund: To the Underwriter:
The Canandaigua Funds Mr. Xxxxxxx Xxxx
00 Xxxxx Xxxx Xxxxxx Vice President
Xxxxxxxxxxx, XX 00000 AmeriMutual Funds Distributor, Inc.
Attn: Xxxxxx Xxxxxx 000 Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, The Fund and the Underwriter have each
Caused this Agreement to be executed on its behalf by an officer
thereunto duly authorized on the day and year first written above.
THE CANANDAIGUA FUNDS AMERIMUTUAL FUNDS DISTRIBUTOR, INC.
By:___________________________ By:____________________________
Xxxxxx Xxxxxx, Chairman Xxxxxxx Xxxx, Vice President