Exhibit #6
PRINCIPAL UNDERWRITING AGREEMENT
THIS PRINCIPAL UNDERWRITING AGREEMENT, dated as of January 12, 1990,
between ATLAS ASSETS, INC., a Maryland corporation (the "Company") , and ATLAS
SECURITIES, INC., a California corporation ("Distributor"), is made with
reference to the following facts:
A. The Company is an open-end management investment company.
B. Distributor has the facilities to sell and distribute the shares
of capital stock of the various series established from time to
time by the Company (individually and collectively, a "Fund" and
the "Funds").
C. The Company and Distributor desire to enter into an agreement to
take effect January 16, 1990.
NOW, THEREFORE, the parties agree as follows:
1. Distributor shall be the exclusive principal underwriter for the
sale of shares of the Funds, except as otherwise provided pursuant to paragraph
20 hereof. The terms "shares of the Funds" or "shares" as used herein shall
mean shares of capital stock issued by the various series established by the
Company.
2. In sale of shares of the Funds, Distributor shall act as agent of
the Company except in any transaction in which Distributor sells such shares as
a dealer to the public, in which event Distributor shall act as principal for
its own account.
3. The Company shall sell shares only through Distributor except that
the Company may at any time:
(a) Issue shares to any corporation, association, trust,
partnership, or other organization, or its, or their, security
holders, beneficiaries, or members, in connection with a merger,
consolidation, or reorganization to which the Company is a party, or
in connection with the acquisition of all or substantially all the
property and assets of such corporation, association, trust,
partnership, or other organization;
(b) Issue shares at net asset value to the holders of shares of
other series of the Company or shares of beneficial interest of other
investment companies managed by Atlas Advisers, Inc. pursuant to any
exchange or reinvestment option ade available as described in a
current Prospectus for the Funds;
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(c) Issue shares at net asset value to its shareholders in
connection with the reinvestment of dividends and other distributions
paid by the Funds;
(d) Issue shares at net asset value to Directors, officers, and
employees of the Company, its investment manager, any principal
underwriter of the Company, and their affiliates or affiliates of
Golden West Financial Corporation, including any trust, pension,
profit sharing, or other benefit plan established for such persons,
registered representatives and other employees of dealers having
Selling Agreements with Distributor and with respect to all such
persons listed, their respective spouse, siblings, parents and
children, and to other persons as permitted by applicable rules
adopted by the Securities and Exchange Commission under the Investment
Company Act of 1940 (the "Act"), as in effect from time to time and to
other persons as described in a Prospectus for the Funds;
(e) Issue shares at net asset value to the sponsor organization,
custodian, or depository of a periodic or single payment plan, or
similar plan for the purchase of shares of the Funds, purchasing for
such plan; and
(f) Issue shares in the course of any other transaction
specifically provided for in a Prospectus for the Funds, or upon
obtaining the written consent of Distributor thereto.
4. Distributor shall devote its best efforts to the sale of shares of
the Funds and shares of any other mutual funds managed by Atlas Advisers, Inc.,
for which Distributor has been authorized to act as a principal underwriter for
the sale of their shares. Distributor shall maintain a sales organization
suited to the sale of shares of the Funds and shall use its best efforts to
effect such sales in countries as to which the Company shall have expressly
waived in writing its right to designate another principal underwriter pursuant
to paragraph 20 hereof, and shall effect and maintain appropriate qualification
to do so in all those jurisdictions in which it sells or offers shares for sale
and in which qualification is required.
5. Within the United States of America, Distributor shall offer and
sell shares only to such broker-dealers as are members in good standing of the
National Association of Securities Dealers, Inc. ("NASD") , or to persons
legally engaged in securities sales activities who are exempt from NASD
membership in accord with applicable law. Shares sold to such broker-dealers or
other sellers of securities shall be for resale by such persons only at the
public offering price set forth in an effective Prospectus, which is part of the
Company's Registration Statement in effect under the Securities Act of 1933 (the
1933 Act"), as amended, at the time of such offer or sale (herein, the
"Prospectus"). Distributor may sell shares to such persons (a "dealer" or
"dealers") at such discounts from said public offering price as are set forth in
the Prospectus, and/or in a Selling Agreement between Distributor and the
dealer, but neither such discounts nor commissions shall exceed the sales charge
or discounts referred to in the Prospectus. Distributor shall not without the
consent of the Company sell or offer for sale any shares of a Fund other than as
principal underwriter under this Agreement.
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6. In its sales to dealers, it shall be the responsibility of
Distributor to insure that such dealers are appropriately qualified to transact
business in securities under applicable laws, rules, and regulations promulgated
by such national, state, local, or other governmental or quasi-governmental
authorities as may in a particular instance have jurisdiction.
7. The applicable public offering price of shares shall be the price
which is equal to the net asset value per share plus such sales charge as may be
provided for in the Prospectus. Net asset value per share shall be determined
for the Funds in the manner and at the time or times set forth in the subject to
the provisions of the Prospectus of the Fund.
8. All orders for shares received by Distributor, unless rejected by
Distributor or the Company, shall be forwarded by the Distributor to the
Transfer Agent upon receipt and the Transfer Agent upon receipt will confirm an
offering price determined in accordance with the provisions of the Prospectus
and the Act, and applicable rules in effect thereunder. Distributor shall not
hold orders subject to acceptance nor otherwise delay their execution. The
provisions of this paragraph shall not be construed to restrict the right of the
Company to withhold shares of the Funds from sale under paragraph 17 hereof.
9. The Company or the Transfer Agent shall be promptly advised of all
orders received, and shall cause shares of Funds to be issued upon payment
received in accord with policies established by the Company and Distributor.
10. Distributor shall adopt and follow procedures as approved by the
officers of the Company for the confirmation of sales to dealers, the collection
of amounts payable by dealers on such sales, and the cancellation of unsettled
transactions, as may be necessary to comply with the requirements of the NASD
and the Act, as such requirements may from time to time exist.
11. The compensation for the services of Distributor as a principal
underwriter under this Agreement shall be that part of the sales charge which is
retained by Distributor after allowance of discounts to dealers as provided for
in paragraph 5 hereof.
12. The Company agrees to use its best efforts to maintain its
registration as an open-end management investment company under the Act.
13. The Company agrees to use its best efforts to maintain an
effective prospectus under the 1933 Act, and warrants that such prospectus will
contain all statements required by and will conform with the requirements of the
1933 Act and the rules and regulations thereunder, and that no part of any such
prospectus, at the time the Registration Statement of which it is a part is
ordered effective, will contain any 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. Distributor agrees and warrants that it will
not in the sale of Fund shares use any prospectus, advertising, or sales
literature not approved by the Company or its officers
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nor make any untrue statement of a material fact nor omit the stating of a
material fact necessary in order to make the statements made, in the light of
the circumstances under which they made, not misleading.
14. Subject to the requirements and restrictions of the Act and the
1933 Act and the rules and regulations promulgated thereunder.
(a) Distributor agrees to indemnify and hold the Company
harmless from any and all loss, expense, damage, and liability
resulting from a breach by Distributor of the agreements and
warranties in paragraph 13, and from the use of any sales literature,
information, statistics, or other aid or device prepared and employed
by the Distributor and not approved by the Company in connection with
the sale of shares of the Funds; and
(b) The Company agrees (i) not to hold Distributor or any of its
officers or employees liable for, and (ii) to indemnify or insure the
Distributor and its officers and employees ("Indemnified Parties")
against, any costs and liabilities the Indemnified Parties may incur
as a result of any claim against the Indemnified Parties in the good
faith exercise of their powers hereunder (excepting matters as to
which the Indemnified Parties shall be finally adjudged to have been
guilty of willful misconduct or gross negligence, or in violation of
applicable law) or arising out of an act or omission of the custodian,
or of any broker or agent selected by the Distributor in a
commercially reasonable manner.
15. To the extent permitted under the Company's Distribution Plan
adopted under Rule 12b-1 under the Act, the expense of each printing of each
Prospectus and each revision thereof or addition thereto deemed necessary by
the Company officers to meet the requirements of applicable laws shall be borne
by the Company.
16. The Company agrees to use its best efforts to qualify and
maintain the qualification of an appropriate number of its shares for sale under
the securities laws of such states as Distributor and the Company may approve.
Any such qualification may be withheld, terminated, or withdrawn by the Company
at any time in its discretion. The expense of qualification and maintenance of
qualification shall be borne by the Company, but Distributor shall furnish such
information and other material relating to its affairs and activities as may be
required by the Company or its counsel in connection with such qualifications.
17. The Company may withhold shares of the Funds from sale in any
state or country temporarily or permanently if, in the opinion of its counsel,
such offer or sale would be contrary to law or if the Board of Directors or
the President or any Vice President of the Company determines that such offer or
sale is not in the best interest of the Company. The Company will give prompt
notice to Distributor of any withholding and will indemnify it against any loss
suffered by Distributor as a result of such withholding by reason of
non-delivery of Fund shares after a good faith confirmation by Distributor of
sales thereof prior to receipt of such withholding.
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18. (a) This Agreement may be terminated at any time, without
payment of any penalty, by the Company on sixty (60) days' written
notice to Distributor, or by Distributor on like notice to the
Company.
(b) The Agreement may be terminated by either party upon five
(5) days' written notice to the other party in the event that the
Securities and Exchange Commission has issued an order or obtained an
injunction or other court order suspending effectiveness of the
Registration Statement covering the shares of the Funds.
(c) This Agreement may also be terminated by the company upon
five (5) days' written notice to Distributor, should the NASD expel
Distributor or suspend its membership in that organization.
Distributor shall inform the Company promptly of the institution of
any proceedings against it by the Securities and Exchange Commission, the NASD
or any state regulatory authority. The Company shall inform Distributor
promptly of the institution of any proceedings against it by the Securities and
Exchange Commission, the NASD or any state regulatory authority, of the
revocation, expiration or suspension of qualification of the Company's
securities in any state or other jurisdiction in which such securities have been
or will be qualified.
19. This Agreement shall not be assignable by either party hereto
without the prior written permission of the other party and in the event of
assignment without such permission shall automatically terminate forthwith. The
term "assignment" shall have the meaning defined in the Act.
20. The Company may, upon sixty (60) days' written notice to
Distributor from time to time designate other principal underwriters of their
shares with respect to areas other than the North American continent, Hawaii,
Puerto Rico, and such countries as to which the Company may have expressly
waived in writing its right to make such designation. In the event of such
designation, the right of Distributor under this Agreement to sell shares in the
areas so designated shall terminate, but this Agreement shall remain otherwise
in full effect until terminated in accordance with the provisions of paragraphs
18 and 19 hereof.
21. No provision of this Agreement shall protect or purport to
protect Distributor against any liability to the Company or holders of shares of
the Funds for which Distributor would otherwise be liable by reason of willful
misfeasance, bad faith, or negligence.
22. Unless sooner terminated in accordance with the provisions of
paragraphs 18 and 19 hereof, this Agreement shall continue in effect until
January 12, 1991 and shall continue in effect from year to year thereafter, but
only so long as such continuance is specifically approved at least annually by
(i) the vote of a majority of the Directors of the Company who are not parties
to this Agreement or interested persons (within the meaning of the 0000 Xxx) of
the Company or Distributor cast in person at a meeting called for the purpose of
voting on such approval, and (ii) either the Board of Directors of the Company
or a vote of a majority (within the meaning of the 0000 Xxx) of the outstanding
voting securities of the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed in duplicate original by their officers thereunder duly authorized
and their corporation seal to be affixed as of the day and year first written
above.
ATLAS ASSETS, INC.
a Maryland corporation
By /S/ XXXXX X. XXXXXXX
---------------------------
Chief Operating Officer and
Senior Vice President
ATLAS SECURITIES, INC.
a California corporation
By /S/ XXXXX X. XXXXXXX
-----------------------------
Chief Operating Officer and
Senior Vice President
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