DISTRIBUTION AGREEMENT
BETWEEN
THE RIGHTIME FUND, INC.
AND
LINCOLN INVESTMENT PLANNING INC.
THIS AGREEMENT entered into the day of November, 1991, by and
between THE RIGHTIME FUND, INC., a Maryland corporation with an office
located at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000 (the
"Corporation") for The Rightime Mid-Cap Fund Series (the "Fund"), and
LINCOLN INVESTMENT PLANNING INC., a Pennsylvania corporation, with its
principal office located at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx
00000-0000 (the "Distributor").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements of the
parties hereto, the parties intending to be bound, mutually covenant and
agree with each other as follows:
1. The Corporation, on behalf of the Fund, hereby appoints the
Distributor as agent of the Fund to effect the sale and public
distribution of shares of the capital stock of the Fund. This
appointment is made by the Corporation for the Fund and accepted by the
Distributor upon the understanding that the distribution of shares of
the Fund to the public be effected by the Distributor or through various
securities dealers, either individuals or organizations, but that it
shall be done in such manner that the Fund shall be under no
responsibility or liability to any person whatsoever on account of the
acts and statements of any such individual or organization. The
Distributor shall have the sole right to select the security dealers to
whom shares will be offered by it and, subject to express provisions of
this Agreement, applicable securities laws, the Corporation's Articles
of Incorporation and the By-Laws and the then current Prospectus of the
Fund, to determine the terms and prices in any contract for the sale of
shares to any dealer made by it as such agent for the Fund.
2. The Distributor shall be the exclusive agent for the Fund for
the sale of its shares and the Fund agrees that it will not sell any
shares to any person except to fill orders for the shares received
though the Distributor; provided, however, that the foregoing exclusive
right shall not apply: (a) to shares issued or sold in connection with
the merger or consolidation of any other investment company with the
Fund or the acquisition by purchase or otherwise of all or substantially
all the assets of any investment company or substantially all the
outstanding shares of any such company by the Fund; (b) to shares which
may be offered by the Fund to its stockholders for reinvestment of cash
distributed from capital gains or net investment income of the Fund; or
(c) to shares which may be issued to shareholders of other Funds who
exercise any exchange privilege set forth in the Fund's Prospectus.
3. The Distributor shall have the right to sell the shares of the
Fund's capital stock to dealers, as needed (making reasonable allowance
for clerical errors and errors of transmission), but not more than the
shares needed to fill unconditional orders for shares placed with the
Distributor by dealers. In every case the Distributor shall charge the
public offering price and the Fund shall receive the net asset value for
the shares sold, determined as provided in Paragraph 4 hereof. The
Distributor shall notify the Fund at the close of each business day
(normally 5:00 p.m., New York City time), of the number of shares sold
during each day. Notwithstanding the foregoing, the Fund may sell its
shares to certain affiliated persons at net asset value, as described in
the prospectus.
4. The public offering price consists of the net asset value per
share plus a maximum sales charge of: 4.75% for purchases under $50,000;
3.75% for purchases of $50,000 but less than $100,000; 2.75% for
purchases of $1,000,000 but less than $500,000; 1.75% for purchases of
$500,000 but less than $1,000,000; .75% for purchases of $1,000,000 but
less than $3,000,000; and no sales charges for purchases of $3,000,000
or more; unless otherwise stated in the Fund's currently effective
Prospectus. The net asset value of shares of the Fund shall be
determined by the Fund or the Fund's custodian, or such officer or
officers or other persons as the Board of Directors of the Corporation
may designate. The determination shall be made once each day on which
the New York Stock Exchange is open for a full business day and in
accordance with the method set out in the By-Laws of the Corporation and
the current Prospectus of the Fund.
5. The Distributor agrees that it will not sell any shares of the
Fund to any officer, director, or partner of either the Distributor or
of the Corporation or any firm or corporation which may be employed by
the Fund or by the Distributor except for investment purposes only and
where the purchaser agrees not to resell the securities to anyone except
the Fund. The Distributor further agrees that it will promptly advise
the Secretary of the Corporation of all sales of shares of the Fund to,
or purchase of shares of the Fund from, any such person.
6. The Distributor agrees that it will not for its own account
purchase any shares of the Fund except for investment purposes and that
it will not for its own account sell any such shares excepting only
those shares which it may own at the time of executing this Agreement
and any shares resulting from the reinvestment of dividends paid on
those shares, and the Distributor will not sell other shares except by
redemption of such shares by the Fund.
7. (a) On behalf of the Fund the Corporation appoints and
designates the Distributor as agent of the Fund and the Distributor
accepts such appointment as such agent, to repurchase shares of the Fund
in accordance with the provisions of the Articles of Incorporation and
By-Laws of the Corporation.
(b) In connection with such redemptions or repurchases the
Corporation authorizes and designates the Distributor to take any
action, to make any adjustments in net asset value, and to make any
arrangements for the payment of the redemption or repurchase price
authorized or permitted to be taken or made in accordance with the
Investment Company Act of 1940 and as set forth in the Corporation's By-
Laws and then current Prospectus of the Fund.
(c) The authority of the Distributor under this Paragraph 7 may,
with the consent of the Corporation, be re-delegated in whole or in part
to another person or firm.
(d) The authority granted in this Paragraph 7 may be suspended
by the Corporation at any time or from time to time pursuant to the
provisions of its Articles of Incorporation until further notice to the
Distributor. The President or any Vice President of the Corporation
shall have the power granted by said provisions. After any such
suspension the authority granted to the Distributor by this Paragraph 7
shall be reinstated only by a written instrument executed on behalf of
the Fund by the Corporation's President or any Vice President.
8. The Fund agrees that it will cooperate with the Distributor to
prepare, execute and file applications for registration and
qualification of its shares for sale under the laws of the United States
and the provisions and regulations of the U.S. Securities and Exchange
Commission and under the Securities Acts of such States and in such
amounts as the Fund may determine, and shall pay registration fees in
connection therewith. The Distributor shall bear all expenses incident
to the sale of shares of the Fund, including without limitation, the
cost of any sales material or literature, the cost of copies of the
prospectus used as sales material (except those being sent to existing
shareholders) and the cost of any reports or proxy material prepared for
the Fund's stockholders to the extent that such material is used in
connection with the sale of shares of the Fund, except to the extent
that the Fund is obligated to bear such costs under a distribution plan
adopted by the Fund.
9. For its services under this Agreement, the Distributor shall be
entitled to receive the maximum amount of the payment called for under
the Fund's Distribution Plan (the "Plan") adopted pursuant to the
Investment Company Act of 1940 Rule 12b-1 (the "Rule"). The Distributor
may make payments to others from such amounts in accordance with the
Plan or any agreement in effect under such Plan. The Distributor agrees
to comply with the Rule and the Plan in connection with receipt and
disbursement of funds under the Plan.
10. Notwithstanding anything contained herein to the contrary,
shares of the Fund may be offered for sale at a price other than their
current net asset value or regular public offering price, if such
reduction or elimination is authorized by an order of the Securities and
Exchange Commission, or the Investment Company Act of 1940 or the rules
and regulations promulgated thereunder provide for such variation.
Furthermore, such shares may be offered and sold directly by the Fund
rather than by the Distributor as otherwise provided in this Agreement.
11. This Agreement shall become effective November 1991 and shall
continue in effect for a period of more than one year from its effective
date only as long as such continuance is approved, at least annually, by
the Board of Directors of the corporation, including a majority of those
Directors who are not "interested persons" of any party to this
Agreement voting in person at a meeting called for the purpose of voting
on such approval. If payments hereunder are made pursuant to provisions
of a plan adopted by the Fund pursuant to Investment Company Act of 1940
Rule 12b-1, then renewals hereof shall also be made in accordance with
the requirements of such rule. This Agreement may be terminated by
either party hereto upon thirty (30) days' written notice to the other
party. This Agreement shall automatically terminate in the event of its
assignment by the Distributor (as the term "assignment" is defined by
the Investment Company Act of 1940, as amended) unless the United States
Securities and Exchange Commission has issued an order exempting the
Fund and the Distributor from the provisions of the Investment Company
Act of 1940, as amended, which would otherwise have effected the
termination of this Agreement.
12. No amendment to this Agreement shall be executed or become
effective unless its terms have been approved (a) by a majority of the
directors of the Corporation or by the vote of a majority of the
outstanding voting securities of the Fund, and (b) by a majority of
those directors who are not interested persons of the Fund or of any
party to this Agreement.
13. The Corporation, on behalf of the Fund, and the Distributor
hereby each agree that all literature and publicity issued by either of
them referring directly or indirectly to the Fund or to the Distributor
shall be submitted to and receive the approval of the Fund and the
Distributor before the same may be used by either party.
14. (a) The Distributor agrees to use its best efforts in
effecting the sale and public distribution of the shares of the Fund
through dealers and to perform its duties in redeeming and repurchasing
the shares of the Fund, but nothing contained in this Agreement shall
make the Distributor or any of its officers and directors or
shareholders liable for any loss sustained by the Fund or any of the
Corporation's officers, directors or shareholders, or by any other
person on account of any act done or omitted to be done by the
Distributor under this Agreement provided that nothing herein contained
shall protect the Distributor against any liability to the Fund or to
any of its shareholders to which the Distributor would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence
in the performance of its duties as Distributor or by reason of its
reckless disregard of its obligations or duties as Distributor under
this Agreement. Nothing in this Agreement shall protect the Distributor
from any liabilities which it may have under the Securities Act of 1933
or the Investment Company Act of 1940.
(b) The Distributor may, from time to time, enter into
agreements with security dealers and other qualified entities selected
by it and may make assistance payments to such dealers in such amounts
as it deems appropriate, provided that such payments are permitted by
the then current distribution plan adopted by the Fund in accordance
with Rule 12b-1 of the Investment Company Act,of 1940, as amended.
15. As used in this Agreement the terms "interested persons,"
"assignment," and "majority of the outstanding voting securities" shall
have the respective meanings specified in the Investment Company Act of
1940 as now in effect.
IN WITNESS WHEREOF, THE RIGHTIME FUND, INC., for The Rightime Mid-Cap
Fund Series, and LINCOLN INVESTMENT PLANNING, INC. have caused this
Agreement to be signed by their duly
authorized officers and their corporate seals to be hereunto duly
affixed all on the day and year above written.
Attest: THE RIGHTIME FUND, INC.
______________________________ ______________________________
---------------------- ----------------------------
Xxxxxx X. Xxxxx, Xx., Xxxxx X. Rights, President
Secretary
Attest: LINCOLN INVESTMENT PLANNING, INC.
______________________________ ______________________________
Secretary Xxxxxx X. Xxxxx, Xx.,
President
197948.1
