10K SMARTTRUST FUND
SERVICE AGREEMENT
This Service Agreement (the "Agreement") is between AmeriPrime
Financial Securities, Inc. (the "Distributor") and _____________________ (the
"Service Organization"), and has been adopted pursuant to Rule 12b-1 under the
Investment Company Act of 1940, as amended, (the "Act") with respect to 10k
SmartTrust Fund (the "Fund") a series of 10k SmartTrust (the "Trust") as an
agreement related to a 12b-1 distribution plan adopted pursuant to said Rule
(the "Plan"). This Agreement has been approved both by a majority of the
Trustees of the Trust, and by a majority of the Trustees who are not interested
persons of the Trust or the Fund and who have no direct or indirect financial
interest in the operation of the Plan or this Agreement (the "Disinterested
Trustees"), cast in person at a meeting called for the purpose of voting on this
Agreement. The Plan authorizes the Distributor to pay expenses which may be
deemed to be related the distribution of the Fund. Accordingly, in consideration
of the mutual covenants contained herein, the parties hereby agree as follows:
1. The Distributor hereby appoints the Service Organization (a) to
undertake from time to time distribution services to promote the sale of
shares of the Fund and (b) to render or cause to be rendered administrative
support services to the Fund and its shareholders, which distribution and
administrative support services may include, without limitation: forwarding
sales literature, aggregating and processing purchase and redemption
requests and placing net purchase and redemption orders with the Fund's
transfer agent; answering client inquiries about the Fund and referring to
the Fund those inquiries which the Service Organization is unable to
answer; assisting clients in changing dividend options, account
designations and addresses; performing sub-accounting; establishing,
maintaining and closing shareholder accounts and records; investing client
account cash balances automatically in shares of the Fund; providing
periodic statements showing a client's account balance, integrating such
statements with those of other transactions and balances in the client's
other accounts serviced by the Service Organization and performing such
other recordkeeping as is necessary for the Fund's transfer agent to comply
with the recordkeeping requirements of the Act and the regulations
promulgated thereunder; arranging for bank wires; and providing such other
information and services as the Fund reasonably may request, to the extent
the Service Organization is permitted by applicable statute, rule or
regulation to provide these services.
2. The Service Organization shall provide such office space and
equipment, telephone facilities and personnel (which may be all or any part
of the space, equipment and facilities currently used in the Service
Organization's business, or all or any personnel employed by the Service
Organization) as is necessary or beneficial for providing information and
services to shareholders of the Fund, and to assist the Fund in servicing
accounts of clients. Shares of the Fund purchased by Service Organization
on behalf of its clients may be registered in its name or the name of its
nominee. The client will be the beneficial owner of the shares of the Fund
purchased and held by Service Organization in accordance with the client's
instructions and the client may exercise all applicable rights of a holder
of such Shares. The Service Organization shall transmit promptly to clients
all prospectuses, proxy statements and other materials and communications
sent to it for transmittal to clients by or on behalf of the Trust, the
Fund or the Fund's investment advisor, administrator, underwriter,
custodian or transfer or dividend disbursing agent. Service Organization
agrees to transfer record ownership of a client's Fund shares to the client
promptly upon the request of a client. In addition, record ownership will
be promptly transferred to the client in the event that the person or
entity ceases to be Service Organization's client.
3. Distributor shall pay you a monthly fee based on the average net
asset value during any month of Fund shares which are attributable to
clients of your firm, at the rate set forth on Schedule A attached hereto
and made a part hereof. The Service Organization shall notify the Trust if
the Service Organization directly charges a fee to Fund shareholders for
its services as described in this Agreement.
4. The Service Organization agrees to comply with the requirements of
all laws applicable to it, including but not limited to, ERISA, federal and
state securities laws and the rules and regulations promulgated thereunder.
The Service Organization agrees to provide services hereunder in compliance
with the then current Prospectus and Statement of Additional Information of
the Fund and the operating procedures and policies established by the Fund,
including, but not limited to, required minimum investment and minimum
account size.
5. No person is authorized to make any representations concerning the
Fund or its shares except those contained in the current Prospectus or
Statement of Additional Information of the Fund and any such information as
may be officially designated as information supplemental to the Prospectus.
Additional copies of any Prospectus and any printed information officially
designated as supplemental to such Prospectus will be supplied by the Trust
to the Service Organization in reasonable quantities on request. Service
Organization is specifically authorized to distribute the Fund's Prospectus
and sales material received from the Fund or the Fund's Distributor. No
person is authorized to distribute any other sales material relating to the
Fund without the prior approval of the Fund.
6. The Service Organization agrees that it will provide distribution
and administrative support services only to those persons who reside in any
jurisdiction in which the Fund's shares are registered for sale and in
which the Service Organization may lawfully provide such services. Upon
request, the Fund shall provide the Service Organization with a list of the
states in which the Fund's shares are registered for sale and shall keep
such list updated. Distributor and the Trust assume no responsibility or
obligation as to the right of Service Organization to sell Fund shares in
any jurisdiction.
7. Service Organization represents that it is and will be at all times
relevant hereto a member in good standing of the National Association of
Securities Dealers, Inc., and further represents and warrants that it is
and will be at all times relevant hereto a broker-dealer properly
registered and qualified under all applicable federal, state and local laws
to engage in the business and transactions described in this Agreement.
Service Organization agrees to comply with all requirements applicable to
it of all applicable laws, including federal and state securities laws, the
Rules and Regulations of the Securities and Exchange Commission and the
Rules of Fair Practice of the National Association of Securities Dealers,
Inc. Service Organization agrees that it will not offer Fund shares to
persons in any jurisdiction in which the shares are not registered for sale
and in which Service Organization may not lawfully make such offer due to
the fact that it has not registered under, or is not exempt from, the
applicable registration or licensing requirements of such jurisdiction.
Service Organization further agrees that it will maintain all records
required by applicable law relating to transactions involving purchases or
redemptions of the shares by it or its clients. In all sales of Fund shares
to the public, Service Organization shall act as agent on behalf of the
Fund, and in no transaction, shall it act as dealer for its own account.
8. The Service Organization agrees not to solicit or cause to be
solicited directly, or indirectly at any time in the future, any proxies
from the shareholders of the Fund in opposition to proxies solicited by
management of the Trust, unless a court of competent jurisdiction shall
have determined that the conduct of a majority of the Board of Trustees of
the Trust constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard of their duties. This paragraph 8 will survive the
expiration or termination of this Agreement.
9. The Service Organization shall prepare such quarterly reports for
the Trust as shall reasonably be requested by the Trust. In addition, the
Service Organization will furnish the Trust or its designees with such
information as the Trust or they may reasonably request (including, without
limitation, periodic certifications confirming the provision to clients of
the services described herein), and will otherwise cooperate with the Trust
and its designees (including, without limitation, any auditors designated
by the Trust), in connection with the preparation of reports to the Trust's
Board of Trustees concerning this Agreement and the monies paid or payable
by the Distributor pursuant hereto, as well as any other reports or filings
that may be required by law.
10. The Service Organization acknowledges that the Distributor may
enter into similar agreements with others without the consent of the
Service Organization.
11. The Service Organization understands and acknowledges that the
Trust has the right, at its discretion and without notice, to suspend the
sale of shares or withdraw the sale of shares of the Fund.
12. This Agreement shall continue in effect for one year from the date
of its execution, and thereafter for successive periods of one year if the
form of this Agreement is approved as to the Fund at least annually by the
Trustees of the Trust, including a majority of the Disinterested Trustees,
cast in person at a meeting for that purpose. In the event this Agreement,
or any part thereof, is found invalid or is ordered terminated by any
regulatory or judicial authority, or the Service Organization shall fail to
perform the shareholder servicing and administrative functions contemplated
hereby, this Agreement is terminable effective upon receipt of notice
thereof by the Service Organization.
13. Notwithstanding paragraph 12, this Agreement may be terminated as
follows:
(a) at any time, without the payment of any penalty, by the
vote of a majority of the Disinterested Trustees of the Fund or by a vote
of a majority of the outstanding voting securities of the Fund on not more
than sixty (60) days' written notice to the parties to this Agreement;
(b) automatically in the event of the Agreement's assignment
as defined in the Act; or
(c) by any party to the Agreement without cause by giving the
other parties at least thirty (30) days' written notice of its intention to
terminate.
14. Any termination of this Agreement shall not affect the provisions
of paragraph 17, which shall survive the expiration or termination of this
Agreement and continue to be enforceable thereafter.
15. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors.
16. This Agreement is not intended to, and shall not, create any rights
against any party hereto by any third person solely on account of this
Agreement.
17. The Service Organization shall provide such security as is
necessary to prevent unauthorized use of any computer hardware or software
provided to it by or on behalf of the Trust, if any. The Service
Organization agrees to release, indemnify and hold harmless the Fund, the
Trust, the Trust's transfer agent, custodian, investment advisor,
administrator and underwriter, and their respective principals, directors,
trustees, officers, employees and agents from any and all direct or
indirect liabilities or losses resulting from requests, directions, actions
or inactions of or by the Service Organization, its officers, employees or
agents regarding the purchase, redemption, transfer or registration of
shares for accounts of the Service Organization, its clients and other
shareholders. Such indemnity shall also cover any losses and liabilities
relating to the lawfulness of Service Organization's participation in this
Agreement, or resulting from the Service Organization's performance of or
failure to perform its obligations or its breach of any representations or
warranties under this Agreement. If any claims are asserted which may give
rise to indemnification hereunder, the indemnified parties shall have the
right to engage in their own defense, including the selection and
engagement of legal counsel of their choosing and all costs of such defense
shall be borne by Service Organization. Principals of the Service
Organization will be available to consult from time to time with the Trust
concerning the administration and performance of the services contemplated
by this Agreement.
18. This Agreement may be amended only by an agreement in writing
signed by the parties.
19. To the extent this Agreement may be deemed to create obligations on
the part of the Trust, such obligations shall not be binding upon any of
the Trustees, shareholders, nominees, officers, agents or employees of the
Trust, personally, but shall bind only the property of the Trust, as
provided in the Trust's Agreement and Declaration of Trust. The
authorization of this Agreement by the Trustees shall not be deemed to have
been made by any of them individually or to impose any liability on any of
them personally.
20. If any provision of this Agreement, or any covenant, obligation or
agreement contained herein, is determined by a court to be invalid or
unenforceable, the parties agree that (a) such determination shall not
affect any other provision, covenant, obligation or agreement contained
herein, each of which shall be construed and enforced to the full extent
permitted by law, and (b) such invalid or unenforceable portion shall be
deemed to be modified to the extent necessary to permit its enforcement to
the maximum extent permitted by applicable law.
21. This Agreement shall be construed in accordance with the laws of
the State of Texas.
IN WITNESS WHEREOF, this Agreement has been executed for the parties by
their duly authorized officers, on this ______ day of
______________________, 2000.
___________________________________ AMERIPRIME FINANCIAL SECURITIES, INC.
Service Organization Distributor
By: ________________________________ By: ______________________________________
Authorized Signature Authorized Signature
SCHEDULE A
FUND FEE
10k SmartTrust Fund 1.0%
10K SMARTTRUST.
10K SMARTTRUST FUND
DISTRIBUTION AND SHAREHOLDER SERVICING PLAN, AS AMENDED
ON NOVEMBER 16, 1999
The following Distribution and Shareholder Servicing Plan, as amended
(the "Plan") has been adopted pursuant to Rule 12b-1 under the Investment
Company Act of 1940, as amended (the "Act"), by 10k SmartTrust (the "Trust"), an
Ohio Business Trust, on behalf of the 10k SmartTrust Fund (the "Fund"), a series
of the Trust. The Plan has been approved by a majority of the Trust's Board of
Trustees, including a majority of the Trustees who are not interested persons of
the Trust and who have no direct or indirect financial interest in the operation
of the Plan or in any Rule 12b-1 related agreement (as defined below) (the
"Disinterested Trustees"), cast in person at a meeting called for the purpose of
voting on such plan.
In considering whether the Trust should amend the Plan, the Board of
Trustees evaluated such information as it deemed necessary and determined that
there was a reasonable likelihood that the amendment of the Plan would benefit
the Fund and its shareholders.
The provisions of the Plan are as follows:
1. PAYMENTS BY THE FUND TO PROMOTE THE SALE OF FUND SHARES
(a) The Trust, on behalf of the Fund, will pay AmeriPrime
Financial Securities, Inc. (the "Distributor"), as principal
underwriter of the Fund's shares, a distribution and shareholder
servicing fee which will not exceed 1.00% of the average daily net
assets of the Fund in connection with the promotion and distribution of
Fund shares and the provision of personal services to shareholders. The
Distributor may pay all or a portion of these fees to any registered
securities dealer, financial institution or any other person (the
"Recipient") who renders assistance in distributing or promoting the
sale of shares, or who provides certain shareholder services, pursuant
to a written agreement (the "Rule 12b-1 Related Agreement"), a form of
which is attached hereto as Appendix A. Payment of these fees shall be
made promptly following the close of the quarter for which the fee is
payable, upon the Distributor forwarding to the Trust's Board of
Trustees the written report required by Section 2 of this Plan;
provided that the aggregate payments under the Plan to the Distributor
and all Recipients shall not exceed 0.25% (on an annualized basis) of
the average daily net assets for that quarter; and provided further
that no fees shall be paid in excess of the distribution and
shareholder servicing expenses verified in a written report and
submitted by the Distributor to the Trust's Board of Trustees as
required under Section 2 of this Plan.
(b) No Rule 12b-1 Related Agreement shall be entered into, and
no payments shall be made pursuant to any Rule 12b-1 Related Agreement,
unless such Rule 12b-1 Related Agreement is in writing and has first
been delivered to and approved by a vote of a majority of the Trust's
Board of Trustees, and of a majority of the Disinterested Trustees,
cast in person at a meeting called for the purpose of voting on such
Rule 12b-1 Related Agreement. The form of Rule 12b-1 Related Agreement
attached hereto as Appendix A has been approved by the Trust's Board of
Trustees as specified above.
(c) Any Rule 12b-1 Related Agreement shall describe the
services to be performed by the Recipient and shall specify the amount
of, or the method for determining, the compensation to the Recipient.
(d) No Rule 12b-1 Related Agreement may be entered into unless
it provides (i) that it may be terminated at any time, without the
payment of any penalty, by vote of a majority of the Fund's
shareholders, or by vote of a majority of the Disinterested Trustees,
on not more than 60 days' written notice to the other party to the Rule
12b-1 Related Agreement, and (ii) that it shall automatically terminate
in the event of its assignment.
(e) The Rule 12b-1 Related Agreement shall continue in effect
for a period of more than one year from the date of its execution only
if such continuance is specifically approved at least annually by a
vote of a majority of the Board of Trustees, and of the Disinterested
Trustees, cast in person at a meeting called for the purpose of voting
on such Rule 12b-1 Related Agreement.
2. QUARTERLY REPORTS
The Distributor shall provide to the Board of Trustees, and
the Trustees shall review, at least quarterly, a written report of all
amounts expended pursuant to the Plan. This report shall include the
identity of the Recipient of each payment and the purpose for which the
amounts were expended and such other information as the Board of
Trustees may reasonably request.
3. EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan shall become effective immediately upon approval by
the vote of a majority of the Board of Trustees, and of the
Disinterested Trustees, cast in person at a meeting called for the
purpose of voting on the approval of the Plan. The Plan shall continue
in effect for a period of one year from its effective date unless
terminated pursuant to its terms. Thereafter, the Plan shall continue
from year to year, provided that such continuance is approved at least
annually by a vote of a majority of the Board of Trustees, and of the
Disinterested Trustees, cast in person at a meeting called for the
purpose of voting on such continuance. The Plan may be terminated at
any time, without the payment of any penalty, by a majority vote of the
Fund's shareholders, or by vote of a majority of the Disinterested
Trustees.
4. SELECTION OF DISINTERESTED TRUSTEES
During the period in which the Plan is effective, the
selection and nomination of those Trustees who are Disinterested
Trustees of the Trust shall be committed to the discretion of the
Disinterested Trustees.
5. AMENDMENTS
All material amendments of the Plan shall be in writing and
shall be approved by a vote of a majority of the Board of Trustees, and
of the Disinterested Trustees, cast in person at a meeting called for
the purpose of voting on such amendment. In addition, the Plan may not
be amended to increase materially the amount to be expended by the
Trust on behalf of the Fund without the approval by a majority vote of
the Fund's shareholders.
6. RECORDKEEPING
The Trust shall preserve copies of the Plan, any Rule 12b-1
Related Agreement and all reports made pursuant to Section 2 for a
period of not less than six years from the date of this Plan, the first
two years in an easily accessible place.
PLAN PURSUANT TO RULE 12B-1
NOVEMBER 16, 1999
RECITALS
1. 10k SmartTrust, an unincorporated business trust organized under the
laws of the State of Ohio (the "Trust") is engaged in business as an open-end
management investment company and is registered as such under the Investment
Company Act of 1940, as amended (the "Act").
2. The Trust operates as a "series company" within the meaning of Rule
18f-2 under the Act and is authorized to issue shares of beneficial interest in
various series or sub-trusts (collectively the "Funds").
3. Funds of the Trust may utilize Fund assets to pay for, or reimburse
payment for, sales or promotional services or activities that have been or will
be provided in connection with distribution of shares of the Funds if such
payments are made pursuant to a Plan adopted and continued in accordance with
Rule 12b-1 under the Act.
4. The Trustees as a whole, and the Trustees who are not interested
persons of the Trust (as defined in the Act) and who have no direct or indirect
financial interest in the operation of this Plan and any agreements relating to
it (the "Qualified Trustees"), having determined, in the exercise of reasonable
business judgment and in light of their fiduciary duties under state law and
under Section 36(a) and (b) of the Act, that there is a reasonable likelihood
that this Plan will benefit the Fund and its shareholders, have approved the
Plan by votes cast in person at a meeting called for the purpose of voting on
this Plan and agreements related thereto.
5. Shareholder approval of the Plan was initially obtained in
connection with action taken to prepare and file the initial registration
statement on Form N-1A.
PLAN PROVISIONS
SECTION 1. EXPENDITURES
(a) PURPOSES. Fund assets may be utilized to pay for or reimburse
expenditures in connection with sales and promotional services related to the
distribution of Fund shares, including personal services provided to prospective
and existing Fund shareholders, which include the costs of: printing and
distribution of prospectuses and promotional materials; making slides and charts
for presentations; assisting shareholders and prospective investors in
understanding and dealing with the Fund; and travel and out-of-pocket expenses
(e.g. copy and long distance telephone charges) related thereto.
(b) AMOUNTS. Fund assets may be utilized to pay for or reimburse
expenditures in connection with sales and promotional services related to the
distribution of Fund shares, including personal services provided to prospective
and existing Fund shareholders, provided the total amount expended pursuant to
this Plan does not exceed 0.25% of net assets on an annual basis.
SECTION 2. TERM AND TERMINATION
(a) INITIAL TERM. This Plan shall become effective upon effective
registration of the Fund and shall continue in effect for a period of one year
thereafter unless terminated or otherwise continued or discontinued as provided
in this Plan.
(b) CONTINUATION OF THE PLAN. The Plan and any related agreements shall
continue in effect for periods of one year thereafter for so long as such
continuance is specifically approved at least annually by votes of a majority of
both (a) the Trustees of the Trust and (b) the Qualified Trustees, cast in
person at a meeting called for the purpose of voting on this Plan and such
related agreements.
(c) TERMINATION OF THE PLAN. This Plan may be terminated at any time by
vote of a majority of the Qualified Trustees, or by vote of a majority of the
outstanding voting securities of the Fund.
SECTION 3. AMENDMENTS
This Plan may not be amended to increase materially the amount of
distribution expenditures provided for in Section 1 hereof unless such amendment
is approved by a vote of the majority of the outstanding voting securities of
the Fund, and no material amendment to the Plan shall be made unless approved in
the manner provided for annual renewal in Section 2(b) hereof.
SECTION 4. INDEPENDENT TRUSTEES
While this Plan is in effect with respect to the Fund, the selection
and nomination of Trustees who are not interested persons of the Trust (as
defined in the Act) shall be committed to the discretion of the Trustees who are
not interested persons.
SECTION 5. QUARTERLY REPORTS
The Treasurer of the Trust shall provide to the Trustees and the
Trustees shall review, at least quarterly, a written report of the amounts
accrued and the amounts expended under this Plan for distribution, along with
the purposes for which such expenditures were made.
SECTION 6. RECORDKEEPING
The Trust shall preserve copies of this Plan and any related agreements
and all reports made pursuant to Section 5 hereof, for a period of not less than
six years from the date of this Plan, the agreements or such report, as the case
may be, the first two years in an easily accessible place.
SECTION 7. AGREEMENTS RELATED TO THIS PLAN
Agreements with persons providing distribution services to be paid for
or reimbursed under this Plan shall provide that:
(a) the agreement will continue in effect for a period of one year and
will continue thereafter only if specifically approved by vote of a majority of
the Trustees of the Trust;
(b) the agreement may be terminated at any time, without payment of any
penalty, by vote of a majority of (i) the Qualified Trustees or (ii) the
outstanding voting securities of the Fund, on not more than sixty (60) days
written notice to any other party to the agreement;
(c) the agreement will terminate automatically in the event of an
assignment;
(d) in the event the agreement is terminated or otherwise discontinued,
no further payments or reimbursements will be made by the Fund after the
effective date of such action; and
(e) payments and/or reimbursements may only be made for the specific
sales or promotional services or activities identified in Section 1 of this Plan
and must be made on or before the last day of the one year period commencing on
the last day of the calendar quarter during which the service or activity was
performed.
