UNDERWRITING AND DISTRIBUTION AGREEMENT
THIS AGREEMENT, Made this 1st day of March, 1995, by and between
Advantus Enterprise Fund, Inc., a Minnesota corporation (the "Fund") and MIMLIC
Sales Corporation (the "Underwriter").
WITNESSETH:
1. UNDERWRITING SERVICES.
The Fund hereby engages the Underwriter, and the Underwriter
hereby agrees to act, as principal underwriter for the Fund in the sale and
distribution of the shares of the Fund to the public, either through dealers or
otherwise. The Underwriter agrees to offer such shares for sale at all times
when such shares are available for sale and may lawfully be offered for sale and
sold.
2. SALE OF FUND SHARES.
Such shares are to be sold only on the following terms:
(a) All subscriptions, offers, or sales shall be subject to
acceptance or rejection by the Fund. Any offer or sale shall be conclusively
presumed to have been accepted by the Fund if the Fund shall fail to notify the
Underwriter of the rejection of such offer or sales prior to the computation of
the net asset value of the Fund's shares next following receipt by the Fund of
notice of such offer or sale.
(b) No share of the Fund shall be sold by the Underwriter (i)
for any consideration other than cash or, pursuant to an exchange privilege
provided for by the Fund's currently effective Prospectus, shares of any other
investment company for which the Underwriter acts as principal underwriter, or
(ii), except in instances otherwise provided for by the Fund's currently
effective Prospectus, for any amount less than the public offering price per
share, which shall be determined in accordance with the Fund's currently
effective Prospectus.
(c) In connection with certain sales of Fund shares, a
contingent deferred sales charge will be imposed in the event of a redemption
transaction occurring within a certain period of time following such a purchase,
as described in the Fund's currently effective Prospectus and Statement of
Additional Information.
(d) The front-end sales charge, if any, for the Fund may, at
the discretion of the Fund and the Underwriter, be reduced or eliminated as
permitted by the Investment Company Act of 1940, and the rules and regulations
thereunder, as they may be amended from time to time (the "1940 Act"), provided
that such reduction or elimination shall be set forth in the Prospectus for the
Fund, and provided that the Fund shall in no event receive for any shares sold
an amount less than the net asset value thereof. In addition, any contingent
deferred sales charge for the Fund
may, at the discretion of the Fund and the Underwriter, be reduced or eliminated
in accordance with the terms of an exemptive order received from the Securities
and Exchange Commission by the Fund, and any amendments thereto, provided that
such reduction or elimination shall be set forth in the Prospectus for the Fund.
3. REGISTRATION OF SHARES.
The Fund agrees to make prompt and reasonable efforts to effect
and keep in effect, at its expense, the registration or qualification of its
shares for sale in such jurisdictions as the Fund may designate.
4. INFORMATION TO BE FURNISHED TO THE UNDERWRITER.
The Fund agrees that it will furnish the Underwriter with such
information with respect to the affairs and accounts of the Fund as the
Underwriter may from time to time reasonably require, and further agrees that
the Underwriter, at all reasonable times, shall be permitted to inspect the
books and records of the Fund.
5. ALLOCATION OF EXPENSES.
During the period of this contract, the Fund shall pay or cause
to be paid all expenses, costs, and fees incurred by the Fund which are not
assumed by the Underwriter or Advantus Capital Management, Inc., a Minnesota
corporation and the Fund's investment adviser. The Underwriter agrees to
provide, and shall pay costs which it incurs in connection with providing,
administrative or accounting services to shareholders of the Fund (such costs
are referred to as "Shareholder Servicing Costs"). The Underwriter shall also
pay all costs of distributing the shares of the Fund ("Distribution Expenses").
Distribution Expenses include, but are not limited to, initial and ongoing sales
compensation (in addition to sales loads) paid to investment executives of the
Underwriter and to other broker-dealers and participating financial
institutions; expenses incurred in the printing of prospectuses, statements of
additional information and reports used for sales purposes; expenses of
preparation and distribution of sales literature; expenses of advertising of any
type; an allocation of the Underwriter's overhead; payments to and expenses of
persons who provide support services in connection with the distribution of Fund
shares; and other distribution-related expenses. Shareholder Servicing Costs
include all expenses of the Underwriter incurred in connection with providing
administrative or accounting services to shareholders of the Fund, including,
but not limited to, an allocation of the Underwriter's overhead and payments
made to persons, including employees of the Underwriter, who respond to
inquiries of shareholders regarding their ownership of Fund shares, or who
provide other administrative or accounting services not otherwise required to be
provided by the Fund's investment adviser or transfer agent.
6. COMPENSATION TO THE UNDERWRITER.
It is understood and agreed by the parties hereto that the
Underwriter will receive as compensation for services it performs hereunder:
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(a) The Underwriter shall be entitled to receive or retain the
front-end sales charge imposed in connection with sales of Fund shares, as set
forth in Schedule A hereto. Up to the entire amount of the front-end sales
charge with respect to the Fund may be reallowed by the Underwriter to
broker-dealers and participating financial institutions in connection with their
sale of Fund shares. The amount of the front-end sales charge may be retained
or deducted by the Underwriter from any sums received by it in payment for
shares so sold. If such amount is not deducted by the Underwriter from such
payments, such amount shall be paid to the Underwriter by the Fund not later
than five business days after the close of any calendar quarter during which any
such sales were made by the Underwriter and payment received by the Fund.
(b) The Underwriter shall be entitled to receive or retain any
contingent deferred sales charge imposed in connection with any redemption of
Fund shares, as set forth in Schedule A hereto.
(c) Pursuant to the Fund's Plans of Distribution adopted by
Class A, Class B and Class C shareholders in accordance with Rule 12b-1 under
the 1940 Act (the "Plans"), the Fund shall pay the Underwriter a total fee each
month equal to .30% per annum of the average daily net assets represented by
Class A shares of the Fund and 1.0% per annum of the average daily net assets
represented by Class B and Class C shares of the Fund to cover Distribution
Expenses and Shareholder Servicing Costs. As determined from time to time by
the Board of Directors of the Fund, a portion of such fee for each Class may be
designated as a "distribution fee" designed to cover Distribution Expenses, and
a portion may be designated as a "shareholder servicing fee" designed to cover
Shareholder Servicing Costs. Until further action by the Board of Directors,
all of such fees for Class A, Class B and Class C shall be designated as a
"distribution fee" designed to cover only Distribution Expenses, except that a
portion of such fee for both Class B and Class C, equal to .25% per annum of the
average daily net assets of Class B and Class C, shall be designated as a
"shareholder servicing fee" designed to cover only Shareholder Servicing Costs.
Average daily net assets shall be computed in accordance with the Prospectus of
the Fund. Amounts payable to the Underwriter under the Plans may exceed or be
less than the Underwriter's actual Distribution Expenses and Shareholder
Servicing Costs. In the event such Distribution Expenses and Shareholder
Servicing Costs exceed amounts payable to the Underwriter under the Plans, the
Underwriter shall not be entitled to reimbursement by the Fund.
(d) In each year during which this Agreement remains in effect,
the Underwriter will prepare and furnish to the Board of Directors of the Fund,
and the Board will review, on a quarterly basis, written reports complying with
the requirements of Rule 12b-1 under the 1940 Act that set forth the amounts
expended under this Agreement and the Plans and the purposes for which those
expenditures were made.
7. LIMITATION OF THE UNDERWRITER'S AUTHORITY.
The Underwriter shall be deemed to be an independent contractor
and, except as specifically provided or authorized herein, shall have no
authority to act for or represent the Fund.
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8. SUBSCRIPTION FOR SHARES--REFUND FOR CANCELLED ORDERS.
The Underwriter shall subscribe for the shares of the Fund only
for the purpose of covering purchase orders already received by it or for the
purpose of investment for its own account. In the event that an order for the
purchase of shares of the Fund is placed with the Underwriter by a customer or
dealer and subsequently cancelled, the Underwriter shall forthwith cancel the
subscription for such shares entered on the books of the Fund, and, if the
Underwriter has paid the Fund for such shares, shall be entitled to receive from
the Fund in refund of such payment the lesser of:
(a) the consideration received by the Fund for said shares; or
(b) the net asset value of such shares at the time of
cancellation by the Underwriter.
9. INDEMNIFICATION OF THE FUND.
The Underwriter agrees to indemnify the Fund against any and all
litigation and other legal proceedings of any kind or nature and against any
liability, judgment, cost, or penalty imposed as a result of such litigation or
proceedings in any way arising out of or in connection with the sale or
distribution of the shares of the Fund by the Underwriter. In the event of the
threat or institution of any such litigation or legal proceedings against the
Fund, the Underwriter shall defend such action on behalf of the Fund at its own
expense, and shall pay any such liability, judgment, cost, or penalty resulting
therefrom, whether imposed by legal authority or agreed upon by way of
compromise and settlement; provided, however, the Underwriter shall not be
required to pay or reimburse the Fund for any liability, judgment, cost, or
penalty incurred as a result of information supplied by, or as the result of the
omission to supply information by, the Fund to the Underwriter, or to the
Underwriter by a director, officer, or employee of the Fund who is not an
interested person of the Underwriter, unless the information so supplied or
omitted was available to the Underwriter or Management without recourse to the
Fund or any such person referred to above.
10. FREEDOM TO DEAL WITH THIRD PARTIES.
The Underwriter shall be free to render to others services of a
nature either similar to or different from those rendered under this contract,
except such as may impair its performance of the services and duties to be
rendered by it hereunder.
11. EFFECTIVE DATE, DURATION AND TERMINATION OF
AGREEMENT.
The effective date of this Agreement is set forth in the first
paragraph of this Agreement. Wherever referred to in this Agreement, the vote
or approval of the holders of a majority of the outstanding voting securities of
the Fund shall mean the vote of 67% or more of such securities if the holders of
more than 50% of such securities are present in person or by proxy or the vote
of more than 50% of such securities, whichever is the lesser.
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Unless sooner terminated as hereinafter provided, this Agreement
shall continue in effect only so long as such continuance is specifically
approved at least annually (a) by the Board of Directors of the Fund, or by the
vote of the holders of a majority of the outstanding voting securities of the
Fund, and (b) by a majority of the directors who are not interested persons of
the Underwriter or of the Fund cast in person at a meeting called for the
purpose of voting on such approval.
This Agreement may be terminated at any time without the payment
of any penalty by the vote of the Board of Directors of the Fund or by the vote
of the holders of a majority of the outstanding voting securities of the Fund,
or by the Underwriter, upon 60 days' written notice to the other party.
This Agreement shall automatically terminate in the event of its
assignment (as defined by the provisions of the Investment Company Act of 1940,
as amended).
12. AMENDMENTS TO AGREEMENT.
No material amendment to this Agreement shall be effective until
approved by the Underwriter and by vote of majority of the Board of Directors of
the Fund who are not interested persons of the Underwriter.
13. NOTICES.
Any notice under this Agreement shall be in writing, addressed,
delivered, or mailed, postage prepaid, to the other party at such address as
such other party may designate in writing for receipt of such notice.
IN WITNESS WHEREOF, The Fund and the Underwriter have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
Advantus Enterprise Fund, Inc.
By /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Its President
MIMLIC Sales Corporation
By /s/ Bardea X. Xxxxxxx
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Bardea X. Xxxxxxx
Its President
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SCHEDULE A
The Underwriter shall receive, as compensation for its services
pursuant to this Agreement, a sales charge for each investment in the Fund's
Class A shares, which shall be a percentage of the offering price of such
Class A shares, as determined in accordance with the Fund's currently effective
Prospectus, determined in accordance with the following table:
SALES CHARGE AS A PERCENTAGE
AMOUNT OF INVESTMENT OF OFFERING PRICE
-------------------- ----------------------------
Less than $50,000 5.0%
$50,000 but less than $100,000 4.5%
$100,000 but less than $250,000 3.5%
$250,000 but less than $500,000 2.5%
$500,000 but less than $1,000,000 1.5%
$1,000,000 or more -0-
The Underwriter shall also receive, as compensation for its services
pursuant to this Agreement, a contingent deferred sales charge imposed in
connection with certain redemptions of shares of the Fund designated as Class B
shares, determined in accordance with the following table:
CONTINGENT DEFERRED SALES CHARGE
SHARES PURCHASED APPLICABLE YEAR
IN AN AMOUNT 1 2 3 4 5 6
---------------- ---------------------------------------------------
Less than $50,000 5.0% 4.5% 3.5% 2.5% 1.5% 1.5%
$50,000 but less than $100,000 4.5 3.5 2.5 1.5 1.5 -0-
$100,000 but less than $250,000 3.5 2.5 1.5 1.5 -0- -0-
$250,000 but less than $500,000 2.5 1.5 1.5 -0- -0- -0-
$500,000 but less than $1,000,000 1.5 1.5 -0- -0- -0- -0-
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