UNDERWRITING AGREEMENT
This UNDERWRITING AGREEMENT ("Agreement"), made this 23rd day of August,
2004, by and between Regions Xxxxxx Xxxxxx Select Funds, a Massachusetts
business trust (the "Trust") and Xxxxxx Xxxxxx & Company, Inc., a Tennessee
corporation (the "Distributor"):
WHEREAS, the Trust is registered with the Securities and Exchange
Commission as an open-end, diversified investment company under the Investment
Company Act of 1940, as amended (the "1940 Act") and has registered its shares
of beneficial interest for sale to the public under the Securities Act of 1933,
as amended (the "1933 Act"), and has qualified its shares in accordance with the
provisions of various state securities laws; and
WHEREAS, the Trust intends to offer for public sale ten distinct series
(the "Funds") of shares of beneficial interest, consisting of one or more
classes (the "Classes") of shares (the "Shares"), which have been designated
Regions Xxxxxx Xxxxxx Select Treasury Money Market Fund; Regions Xxxxxx Xxxxxx
Select Government Money Market Fund; Regions Xxxxxx Xxxxxx Select Limited
Maturity Government Fund; Regions Xxxxxx Xxxxxx Select Fixed Income Fund;
Regions Xxxxxx Xxxxxx Select Intermediate Tax Exempt Bond Fund; Regions Xxxxxx
Xxxxxx Select Balanced Fund; Regions Xxxxxx Xxxxxx Select Mid Cap Value Fund;
Regions Xxxxxx Xxxxxx Select Value Fund; Regions Xxxxxx Xxxxxx Select Growth
Fund; and Regions Xxxxxx Xxxxxx Select Mid Cap Growth Fund; and
WHEREAS, the Trust has adopted a distribution plan pursuant to Rule 12b-1
for the Class C shares of certain of the Funds; and
WHEREAS, the Trust wishes to retain the Distributor as the principal
underwriter in connection with the offering and sale of the Shares of each Fund
as now exists and as may hereafter may be established and to furnish certain
other services to the Trust as specified in this Agreement; and
WHEREAS, this Agreement has been approved by a vote of the Trust's Board of
Trustees and certain disinterested trustees in conformity with paragraph (b)(2)
of Rule 12b-1 under the 1940 Act, as well as by the disinterested trustees in
conformity with Section 15(c) of the 1940 Act; and
WHEREAS, the Distributor is willing to act as principal underwriter and to
furnish such services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. The Trust hereby appoints the Distributor as principal underwriter in
connection with the offering and sale of the Shares, and of all Classes now or
hereafter created, on its behalf during the term of this Agreement. The Trust
authorizes the Distributor, as exclusive agent for the Trust, subject to
applicable federal and state law and the Declaration of Trust and By-Laws of the
Trust: (a) to promote the Trust; (b) to solicit orders for the purchase of the
Shares subject to such terms and conditions as the Trust may specify; and (c) to
accept orders for the purchase of the Shares on behalf of the applicable Fund.
The Distributor shall comply with all applicable federal and state laws and
offer the Shares on an agency or "best efforts" basis under which the Trust
shall issue only such Shares as are actually sold.
2. The public offering price of the Shares shall be the net asset value per
share (as determined by the Trust) of the outstanding Shares, plus the
applicable sales charge, if any, determined as set forth in the Registration
Statement. The Trust shall furnish the Distributor with a statement of each
computation of net asset value and of the details entering into such
computation.
3. The sales charge, if any, set forth in the Trust's Registration
Statement shall constitute compensation of the Distributor. As additional
compensation for the services performed and the expenses assumed by the
Distributor under this Agreement, including, but not limited to, any commissions
paid for sales of the Shares, the Distributor shall receive from each Fund, as
promptly as possible after the last day of each month, a distribution fee,
calculated daily pursuant to the applicable distribution plan. The first payment
of the distribution fees shall be made as promptly as possible at the end of the
month next succeeding the effective date of this Agreement, and shall include a
full payment of the fees due the Distributor for all distribution services prior
to that date. If this Agreement is terminated as of any date not the last day of
a month, such fees shall be paid as promptly as possible after such date of
termination, shall be based on the average daily net assets of each Fund in that
period from the beginning of such month to such date of termination, and shall
be that proportion of such average daily net assets as the number of business
days in such period bears to the number of business days in such month. The
average daily net assets of each Fund shall in all cases be based only on
business days and be computed as of the time of the regular close of business of
the New York Stock Exchange, or such other time as may be determined by the
Board of Trustees of the Trust. Each such payment shall be accompanied by a
report of the Trust prepared either by the Trust or by a reputable firm of
independent accountants which shall show the amount properly payable to the
Distributor under this Agreement and the detailed computation thereof.
4. As used in this Agreement, the term "Registration Statement" shall mean
the registration statement most recently filed by the Trust with the Securities
and Exchange Commission and effective under the 1933 Act, as such Registration
Statement is amended at the time in effect, and the terms "Prospectus" and
"Statement of Additional Information" shall mean the forms of prospectus and
statement of additional information, respectively, filed by the Trust as part of
the Registration Statement.
5. The Distributor, at no expense to the Trust, shall print and distribute
to prospective investors, the Prospectus and Statement of Additional
Information, and may print and distribute such other sales literature, reports,
forms and advertisements in connection with the sale of the Shares as comply
with the applicable provisions of federal and state law. In connection with such
sales and offers of sale, the Distributor shall only give such information and
make only such statements or representations as are contained in the Prospectus
or Statement of Additional Information or in information furnished in writing to
the Distributor by the Trust, and the Trust shall not be responsible in any way
for any other information, statements or representations given or made by the
Distributor or its representatives or agents. Except as specifically provided in
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this Agreement, the Trust shall bear none of the expenses of the Distributor in
connection with its offer and sale of the Shares.
6. The Trust agrees at its own expense to register the Shares under the
1933 Act, as amended, and under the securities laws of such states and
jurisdictions as the Distributor of the Trust shall agree, and to prepare and
file from time to time such Prospectuses and Statements of Additional
Information, amendments, reports and other documents as may be necessary to
maintain the Registration Statement. The Trust shall bear all expenses related
to preparing and typesetting such Prospectuses and other materials required by
law and such other expenses, including printing and mailing expenses, related to
the Trust's communications with persons who are shareholders of the Trust.
7. The Trust agrees to indemnify, defend and hold the Distributor, its
several officers and directors, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 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 the Distributor, its
officers or directors, or any such controlling person may incur, under the 1933
Act or under common law or otherwise, arising out of or based upon any alleged
untrue statement of a material fact contained in the Registration Statement or
arising out of or based upon any alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, provided, however, that the Trust shall not indemnify or defend such
persons or hold them harmless with respect to any claims, demands, or
liabilities based on information provided to the Trust by the Distributor; and
provided further that this indemnification provision shall not inure to the
benefit of any person who is an officer or director of the Trust or who controls
the Trust within the meaning of Section 15 of the 1933 Act, as amended, unless a
court of competent jurisdiction shall determine, or it shall have been
determined by controlling precedent, that such result would not be against
public policy as expressed in the 1933 Act, as amended, and further provided
that in no event shall anything contained in this Agreement be construed so as
to protect the Distributor against any liability to the Trust or 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, or by reason of its reckless disregard of its obligations and duties
under this Agreement.
8. The Distributor agrees to indemnify, defend and hold the Trust, its
several officers and directors, and any person who controls the Trust within the
meaning of Section 15 of the 1933 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 the Trust, its officers or
directors, or any such controlling person may incur, under the 1933 Act or under
common law or otherwise, arising out of or based upon any alleged untrue
statement of a material fact contained in information furnished in writing by
the Distributor to the Trust for use in the Registration Statement or arising
out of or based upon any alleged omission by the Distributor to state a material
fact in connection with such information required to be stated in the
Registration Statement or necessary to make such information not misleading.
9. Xxxxxx Xxxxxx is hereby put on notice of the limitation of liability as
set forth in Article XI of the Declaration of Trust and agrees that the
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obligations assumed by the Trust pursuant to this Agreement shall be limited in
any case to the Trust and its assets and Xxxxxx Xxxxxx shall not seek
satisfaction of any such obligation from the shareholders of the Trust, the
Trustees, officers, employees or agents of the Trust, or any of them.
10. The Trust reserves the right at any time to withdraw any or all
offerings of the Shares by written notice to the Distributor at its principal
office.
11. The Trust shall not issue certificates representing the Shares unless
requested by a shareholder. If such request is transmitted through the
Distributor, the Trust will cause certificates evidencing the Shares owned to be
issued in such names and denominations as the Distributor shall from time to
time direct, provided that no certificates shall be issued for fractional
Shares.
12. The Distributor may at its sole discretion repurchase Shares offered
for sale by the shareholders. Repurchase of Shares by the Distributor shall be
at the net asset value next determined after a repurchase order has been
received. The Distributor will receive no commission or other remuneration for
repurchasing Shares other than the fees set forth in paragraph 3 hereof. At the
end of each business day, the Distributor shall notify by telex or in writing
the Trust and State Street Bank and Trust Company, the Trust's custodian, of the
orders for repurchase of Shares received by the Distributor since the last such
report, the amount to be paid for such Shares, and the identity of the
shareholders offering Shares for repurchase. Upon such notice, the Trust shall
pay the Distributor such amounts as are required by the Distributor for the
repurchase of such Shares in cash or in the form of a credit against moneys due
the Trust from the Distributor as proceeds from the sale of Shares. The Trust
reserves the right to suspend such repurchase right upon written notice to the
Distributor. The Distributor further agrees to act as agent for the Trust to
receive and transmit promptly to the Trust's transfer agent shareholder requests
for redemption of Shares.
13. The Distributor is an independent contractor and shall be an agent for
the Trust only in respect to the sale and redemption of the Shares.
14. The Distributor represents and warrants that it is a broker-dealer duly
registered under the Securities Act of 1934 and applicable state securities
laws, that it is a member of the National Association of Securities Dealers and
has all licenses required to engage in the business it undertakes in this
Agreement to carry out. Additionally the Distributor represents and warrants
that it will notify the Trust promptly if any such registration, membership or
license is suspended, revoked, withdrawn or allowed to lapse.
15. The services of the Distributor to the Trust under this Agreement are
not to be deemed exclusive, and the Distributor shall be free to render similar
services or other services to others so long as its services hereunder are not
impaired thereby.
16. The Distributor shall prepare reports for the Board of Trustees of the
Trust on a quarterly basis showing such information concerning expenditures
related to this Agreement as from time to time shall be reasonably requested by
the Board of Trustees.
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17. As used in this Agreement, the terms "securities" and "net assets"
shall have the meanings ascribed to them in the Declaration of Trust of the
Trust.
18. This Agreement will remain in effect for one year from the date of its
execution and from year to year thereafter, provided that such continuance is
specifically approved, at least annually: (i) by the Trust's Board of Trustees
or by vote of a majority of the outstanding voting securities of the Trust, (ii)
by a vote of a majority of those members of the Trust's Board of Trustees who
are not parties to this Agreement or interested persons of any such party, cast
in person at a meeting called for the purpose of voting on such approval; and
(iii) by vote of a majority of those members of the Trust's Board of Trustees
who are not interested persons of the Trust and who have no direct or indirect
financial interest in this Agreement or in the Plan (the "Independent
Trustees"). Notwithstanding the foregoing, this Agreement may be terminated at
any time by the Trust without penalty, on 60 days' written notice to the
Distributor, by vote of the Trust's Board of Trustees, by vote of a majority of
the Independent Trustees, or by a vote of a majority of the outstanding voting
securities of the Trust. This Agreement may be terminated by the Distributor at
any time, without the payment of any penalty, upon 60 days' written notice to
the Trust. This Agreement will automatically and immediately terminate in the
event of its assignment. As used in this Agreement, the terms "majority of the
outstanding voting securities," "interested person" and "assignment" shall have
the same meaning as such terms have in the 1940 Act.
19. This Agreement shall be construed in accordance with and governed by
the laws of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be
executed by their officers thereunto duly authorized.
REGIONS XXXXXX XXXXXX SELECT FUNDS
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Secretary and Assistant Treasurer
XXXXXX XXXXXX & COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
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