Exhibit 99B(6)(a)(i)
UNDERWRITING AGREEMENT
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This Agreement, dated as of the 1st day of July, 1997, made by and between
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The Xxxxxxx Plan, a Delaware business trust (the "Trust") operating as a
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registered investment company under the Investment Company Act of 1940, as
amended (the "Act"), duly organized and existing under the laws of the State of
Delaware and Xxxxxxx Partners, Ltd. (Xxxxxxx Partners) a registered investment
advisor and broker/dealer existing as a Florida limited partnership
(collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, the Trust is authorized by its Trust Instrument to issue separate
series of shares representing interests in separate investment portfolios (the
"Series"), which Series are identified on Schedule "B" attached hereto, and
which Schedule "B" may be amended from time to time by mutual agreement among
the Parties; and
WHEREAS, Xxxxxxx Partners has been appointed investment advisor to the
Trust; and
WHEREAS, Xxxxxxx Partners is a broker-dealer registered with the U.S.
Securities and Exchange Commission and a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Parties are desirous of entering into an agreement providing
for the distribution by Xxxxxxx Partners of shares of the Series of the Trust
(the "Shares").
NOW, THEREFORE, in consideration of the promises and agreements of the
Parties contained herein, the Parties agree as follows:
1. Appointment.
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The Trust hereby appoints Xxxxxxx Partners as its exclusive agent for the
distribution of the Shares, and Xxxxxxx Partners hereby accepts such
appointment under the terms of this Agreement. The Trust agrees that it
will not sell any shares to any person except to fill orders for the shares
received through Xxxxxxx Partners; 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 Trust or the acquisition by purchase or otherwise of all or
substantially all of the assets of any investment company or substantially
all of the outstanding shares of any such company by the Trust; (b) to
shares which may be offered by the Trust to its stockholders for
reinvestment of cash distributed from capital gains or net investment
income of the Trust; or (c) to shares which may be issued to shareholders
of other funds who exercise any exchange privilege set forth in the Trust's
prospectus. Notwithstanding any other provision hereof, the Trust may
terminate, suspend, or withdraw the offering of the Shares whenever, in its
sole discretion, it deems such action to be desirable.
2. Sale and Repurchase of Shares.
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(a) Xxxxxxx Partners is hereby granted the right as agent for the Trust,
to sell Shares to the public against orders therefor at the public
offering price (as defined in sub-paragraph 2(c) hereof).
(b) Xxxxxxx Partners will also have the right to take, as agent for the
Trust, all actions which, in Xxxxxxx Partners' judgment, are necessary
to carry into effect the distribution of the Shares.
(c) The public offering price shall be the net asset value of the Shares
then in effect.
(d) The net asset value of the Shares shall be determined in the manner
provided in the then current prospectus, and statement of additional
information relating to the Shares and when determined shall be
applicable to all transactions as provided in the prospectus. The net
asset value of the Shares shall be calculated by the Trust or by
another entity on behalf of the Trust. Xxxxxxx Partners shall have no
duty to inquire into or liability for the accuracy of the net asset
value per Share as calculated.
(e) On every sale, the Trust shall receive the applicable net asset value
of the Shares promptly.
(f) Upon receipt of purchase instructions, Xxxxxxx Partners will transmit
such instructions to the Trust or its transfer agent for registration
of the Shares purchased.
(g) Nothing in this Agreement shall prevent Xxxxxxx Partners or any
affiliated person (as defined in the Act) of Xxxxxxx Partners from
acting as underwriter or distributor for any other person, firm or
corporation (including other investment companies) or in any way limit
or restrict Xxxxxxx Partners or such affiliated person from buying,
selling or trading any securities for its or their own account or for
the accounts of others for whom it or they may be acting; provided,
however, that Xxxxxxx Partners expressly agrees that it will not for
its own account purchase any shares of the Trust except for investment
purposes and that it will not for its own account sell any such shares
except by redemption of such shares by the Trust, and that it will
undertake no activities which, in its judgment, will adversely affect
the performance of its obligations to the Trust under this Agreement.
(h) Xxxxxxx Partners may repurchase Shares at such prices and upon such
terms and conditions as shall be specified in the prospectus.
3. Rules of Sale of Shares.
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Xxxxxxx Partners does not agree to sell any specific number of Shares.
Xxxxxxx Partners, as Underwriter for the Trust, undertakes to sell Shares
on a best efforts basis and only against orders received therefor.
The Trust reserves the right to refuse at any time or times to sell any of
its Shares for any reason deemed adequate by it.
4. Rules of NASD.
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(a) Xxxxxxx Partners will conform to the Rules of Fair Practice of the
NASD and the securities laws of any jurisdiction in which it sells,
directly or indirectly, any Shares.
(b) Xxxxxxx Partners will require each dealer with whom Xxxxxxx Partners
has a selling agreement to conform to the applicable provisions of the
prospectus, with respect to the public offering price of the Shares,
and Xxxxxxx Partners shall not cause the Trust to withhold the placing
of purchase orders so as to make a profit thereby.
(c) The Trust agrees to furnish to Xxxxxxx Partners sufficient copies of
any agreements, plans, communications with the public or other
materials it intends to use in connection with any sales of Shares in
adequate time for Xxxxxxx Partners to file and clear such materials
with the proper
authorities before they are put in use. In addition,
the Trust agrees not to use any such materials until so filed and
cleared for use by appropriate authorities and Xxxxxxx Partners.
(d) Xxxxxxx Partners, at its own expense, will qualify as a dealer or
broker, or otherwise, under all applicable state or federal laws
required in order that the Shares may be sold in such states as may be
mutually agreed upon by the parties.
(e) Xxxxxxx Partners shall not, in connection with any sale or
solicitation of a sale of the Shares, make or authorize any
representative, Service Organization, broker or dealer to make, any
representations concerning the Shares except those contained in the
prospectus covering the Shares and in communications with the public
or sales materials approved by Xxxxxxx Partners as information
supplemental to such prospectus. Copies of the prospectus will be
supplied by the Trust to Xxxxxxx Partners in reasonable quantities
upon request.
5. Records to be Supplied by the Trust.
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The Trust shall furnish to Xxxxxxx Partners copies of all information,
financial statements and other papers which Xxxxxxx Partners may reasonably
request for use in connection with the distribution of the Shares
including, but not be limited to, one certified copy of all financial
statements prepared for the Trust by its independent public accountants.
6. Expenses.
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(a) The Trust will bear the following expenses:
(i) preparation, setting in type, and printing of sufficient
copies of the prospectuses and statements of additional
information for distribution to shareholders, and the
distribution of same to the shareholders;
(ii) preparation, printing and distribution of reports and other
communications to shareholders;
(iii) registration of the Shares under the federal securities laws;
(iv) qualification of the Shares for sale in the jurisdictions
mutually agreed upon by the Trust and Xxxxxxx Partners;
(v) maintaining facilities for the issue and transfer of the
Shares;
(vi) supplying information, prices and other data to be furnished
by the Trust under this Agreement; and
(vii) any original issue taxes or transfer taxes applicable to the
sale or delivery of the Shares or certificates therefor.
(b) Xxxxxxx Partners will pay all other expenses incident to the sale and
distribution of the Shares sold hereunder.
7. Compensation.
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For its services under this Agreement, Xxxxxxx Partners shall serve in this
capacity without compensation. The services provided include acting as
primary underwriter/ distributor of the Trust and licensing/regulatory
agent for Xxxxxxx Partners personnel.
8. Liability of Xxxxxxx Partners.
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(a) Xxxxxxx Partners, its directors, officers, employees, shareholders and
agents shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Trust in connection with the
performance of this Agreement, except a loss resulting from a breach
of fiduciary duty with respect to the receipt of compensation for
services or a loss resulting from willful misfeasance, bad faith or
negligence on the part of Xxxxxxx Partners in the performance of its
obligations and duties or by reason of its reckless disregard of its
obligations and duties under this Agreement.
(b) The Trust agrees to indemnify and hold harmless Xxxxxxx Partners
against any and all liability, loss, damages, costs or expenses
(including reasonable counsel fees) which Xxxxxxx Partners may incur
or be required to pay hereafter, in connection with any action, suit
or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which Xxxxxxx Partners may be
involved as a party or otherwise or with which Xxxxxxx Partners may be
threatened, by reason of the offer or sale of the Trust shares prior
to the execution of this Agreement except for losses resulting from
willful misfeasance, bad faith or negligence on the part of Xxxxxxx
Partners in the performance of its obligations and duties or by reason
of its reckless disregard of its obligations and duties under this
Agreement.
(c) The Trust agrees to indemnify and hold harmless Xxxxxxx Partners, and
each person, who controls Xxxxxxx Partners within the meaning of
Section 15 of the Securities Act of 1933, as amended (the "Securities
Act"), or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), against any and all losses, claims,
damages and liabilities, joint or several (including any reasonable
investigative, legal and other expenses incurred in connection
therewith) to which they, or any of them, may become subject under the
Act, the Securities Act, the Exchange Act or other federal or state
law or regulation, at common law or otherwise insofar as such losses,
claims, damages or liabilities (or actions, suits or proceedings in
respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a
prospectus, statement of additional information, supplement thereto,
sales literature or other written information prepared by the Trust
and furnished by the Trust to Xxxxxxx Partners for Xxxxxxx Partners'
use hereunder, disseminated by the Trust or arise out of or are based
upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Such indemnity shall not, however, inure to
the benefit of Xxxxxxx Partners (or any person controlling Xxxxxxx
Partners) on account of any losses, claims, damages or liabilities (or
actions, suits or proceedings in respect thereof) arising from the
sale of the shares of the Trust to any person by Xxxxxxx Partners (i)
if such untrue statement or omission or alleged untrue statement or
omission was made in the prospectus, statement of additional
information, or supplement,
sales or other literature, in reliance upon and in conformity with
information furnished to the Trust by Xxxxxxx Partners specifically
for use therein or (ii) if such losses, claims, damages or liabilities
arise out of or are based upon an untrue statement or omission or
alleged untrue statement or omission in the prospectus, statement of
additional information, or supplement, sales or other literature, if
the Trust shall correct the untrue statement or omission or the
alleged untrue statement or omission which is the basis of the loss,
claim, damage or liability for which indemnification is sought and a
copy of the corrected prospectus was not delivered to such person at
or before the confirmation of the sale to such person, unless such
failure to deliver the corrected prospectus was a result of
noncompliance by the Trust.
(d) Xxxxxxx Partners agrees to indemnify and hold harmless the Trust and
each person, if any, who controls the Trust within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
insofar as such losses, claims, damages or liabilities arise out of or
are based upon any untrue statement or omission or alleged untrue
statement of a material fact contained in the prospectus or statement
of additional information or any supplement thereto, or arise out of
or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, if based upon information furnished
in writing to the Trust by Xxxxxxx Partners specifically for use
therein.
9. Termination of this Agreement.
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This Agreement shall automatically terminate in the event of its
assignment. This Agreement may be terminated with respect to the Trust at
any time, without payment of any penalty, by vote of a majority of the
members of the Board of Trustees of the Trust who are not interested
persons of the Trust or by vote of a majority of the outstanding voting
securities of the Trust or by Xxxxxxx Partners on sixty (60) days' written
notice to the other party.
10. Effective Period of this Agreement.
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This Agreement shall be effective on the date noted above and shall remain
in full force and effect for a period of two (2) years thereafter (unless
terminated as set forth in Paragraph 10), and from year to year thereafter,
but only so long as such continuance is specifically approved at least
annually by:
(i) a majority of the outstanding voting securities of the Trust; or
(ii) a majority of the Trustees of the Trust who are not parties to this
Agreement or interested persons of any such party by vote cast in
person at a meeting called for the purpose of voting on such approval.
The provisions of paragraph 8 hereof shall survive the termination of this
Agreement.
11. Amendments.
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No provision of this Agreement may be amended or modified, in any manner
whatsoever except by a written agreement properly authorized and executed
by the Parties.
12. Section Headings Section and Paragraph headings are for convenience only
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and shall not be construed as part of this Agreement.
13. Reports.
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Xxxxxxx Partners shall prepare reports for the Board of Trustees of the
Trust on a quarterly basis showing such information as from time to time
shall be reasonably
requested by such Board.
14. Severability.
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If any part, term or provision of this Agreement is held by any court to be
illegal, in conflict with any law or otherwise invalid, the remaining
portion or portions shall be considered severable and not affected, and the
rights and obligations of the parties shall be construed and enforced as if
the Agreement did not contain the particular part, term or provision held
to be illegal or invalid.
15. Governing Law.
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This Agreement shall be governed by the laws of the State of Florida and
that the venue of any action arising under this Agreement shall be County
of Orange, State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement consisting of
eight type written pages, together with Schedules "A" and "B", to be signed by
their duly authorized officers and their corporate seals hereunto duly affixed
and attested, as of the day and year first above written.
The Xxxxxxx Plan Xxxxxxx Partners,Ltd.
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/s/Xxxxxx X. Ally /s/Xxxxxx X. Ally
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By: Xxxxxx X. Ally, President By: Xxxxxx X. Ally, President
/s/Xxxxxx X. Boartwright /s/Xxxxxx Ally
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Attest: Xxxxxx X. Xxxxxxxxxx, Secretary Attest: Xxxxxx Ally, Secretary
(SEAL) (SEAL)
SCHEDULE "A"
UNDERWRITER/DISTRIBUTION SERVICES
FOR
THE XXXXXXX PLAN
XXXXXXX PARTNERS
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Xxxxxxx Partners, a fully registered Broker/Dealer and member of the National
Association of Securities Dealers (NASD) offers Underwriter/Sponsor and
Distribution/Marketing Services to our Mutual Fund Clients.
UNDERWRITER/SPONSOR SERVICES
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As Underwriter/Sponsor, Xxxxxxx Partners assumes the responsibility for
distribution of Trust shares within the guidelines outlined by the Investment
Company Act of 1940, as amended, of the U.S. Securities Exchange Commission as
well as the NASD. This includes, but is not limited to, submission of Trust
literature to the NASD as well as registration and licensing of Trust personnel.
Underwriter/Sponsor services include:
A) Preparation and execution of Underwriter and 12b-1 Plan Agreements
. Monitoring accruals
. Monitoring expenses
. Disbursements for expenses and trail commissions
B) Quarterly 12b-1 Reports to Board of Trustees
C) Literature review, recommendations and submission to the NASD
D) Initial NASD Licensing and Transfers of Registered Representatives
. U-4 Form and Fingerprint Submission to NASD
. Supplying Series 6 and 63 written study material
. Registration for Exam Preparation classes
. Renewals and Terminations of Representatives
E) Written supervisory procedures and manuals for Registered Representatives
F) Ongoing compliance updates for Representatives regarding sales practices,
written correspondence and other communications with the public.
G) NASD Continuing Education Requirement
SCHEDULE "B"
IDENTIFICATION OF SERIES
Below are listed the "Series" to which services under this Agreement are to be
performed as of the execution date of this Agreement:
"The Xxxxxxx Plan - Institutional Class"
"The Xxxxxxx Plan - Retail Class"
This Schedule "B" may be amended from time to time by agreement of the Parties.
