Exhibit 6(a)
XXXXXXX CAPITAL GROWTH FUND
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
May 1, 1987
Xxxxxxx Fund Distributors, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Underwriting Agreement
Dear Sirs:
Xxxxxxx Capital Growth Fund (hereinafter called the "Fund") is a business
trust organized under the laws of Massachusetts and is engaged in the business
of an investment company. The authorized capital of the Fund consists of shares
of beneficial interest, with $.O1 par value ("Shares"), currently divided into
two series ("Portfolios"). The Shares may be divided into additional Portfolios
and Portfolios may be terminated from time to time by action of the Trustees.
The Fund has selected you to act as principal underwriter (as such term is
defined in Section 2(a)(29) of the Investment Company Act of 1940, as amended
(the "1940 Act")) of the Shares of the Portfolios now or hereafter designated by
the Trustees and you are willing to act as such principal underwriter and to
perform the duties and functions of underwriter in the manner and on the terms
and conditions hereinafter set forth. Accordingly, the Fund hereby agrees with
you as follows:
1. Delivery of Documents. The Fund has furnished you with copies properly
certified or authenticated of each of the following:
(a) Declaration of Trust of the Fund, dated October 16, 1985.
(b) Establishment and Designation of Series of Shares of Beneficial
Interest, With $.01 Par Value, dated December 15, 1986.
(c) By-Laws of the Fund as in effect on the date hereof.
(d) Resolutions of the Board of Trustees of the Fund selecting you as
principal underwriter and approving this form of Agreement,
The Fund will furnish you from time to time with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing, if any.
The Fund will furnish you promptly with properly certified or
authenticated copies of any registration statement filed by it with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "1933 Act"), or the 1940 Act, together with any financial statements and
exhibits included therein, and all amendments or supplements thereto hereafter
filed.
2. Registration and Sale of Additional Shares. The Fund will from time to
time use its best efforts to register under
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the 1933 Act such number of Shares not already so registered as you may
reasonably be expected to sell on behalf of the Fund. You and the Fund will
cooperate in taking such action as may be necessary from time to time to qualify
Shares so registered for sale by you or the Fund in any states mutually
agreeable to you and the Fund, and to maintain such qualification. This
Agreement relates to the issue and sale of Shares that are duly authorized and
registered and available for sale by the Fund, including redeemed or repurchased
Shares if and to the extent that they may be legally sold and if, but only if,
the Fund sees fit to sell them.
3. Sale of Shares. Subject to the provisions of paragraphs 5 and 7 hereof
and to such minimum purchase requirements as may from time to time be currently
indicated in the Fund's prospectus or statement of additional information, you
are authorized to sell as agent on behalf of the Fund Shares authorized for
issue and registered under the 1933 Act. You may also purchase as principal
Shares for resale to the public. Such sales will be made by you on behalf of the
Fund by accepting unconditional orders to purchase Shares placed with you by
investors and such purchases will be made by you only after acceptance by you of
such orders. The sales price to the public of Shares shall be the public
offering price as defined in paragraph 6 hereof.
4. Solicitation of Orders. You will use your best efforts (but only in
states in which you may lawfully do so) to obtain from investors unconditional
orders for Shares authorized for
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issue by the Fund and registered under the 1933 Act, provided that you may in
your discretion refuse to accept orders for Shares from any particular
applicant.
5. Sale of Shares by the Fund. Unless you are otherwise notified by the
Fund, any right granted to you to accept orders for Shares or to make sales on
behalf of the Fund or to purchase Shares for resale will not apply to (i) Shares
issued in connection with the merger or consolidation of any other investment
company with the Fund or its acquisition, by purchase or otherwise, of all or
substantially all of the assets of any investment company or substantially all
the outstanding shares of any such company, and (ii) to Shares that may be
offered by the Fund to shareholders of the Fund by virtue of their being such
shareholders.
6. Public Offering Price. All Shares sold to investors by you will be sold
at the public offering price. The public offering price for all accepted
subscriptions will be the net asset value per Share, determined in the manner
provided in the Fund's registration statements as from time to time in effect
under the 1933 Act and the 1940 Act, next after the order is accepted by you.
7. Suspension of Sales. If and whenever the determination of net asset
value is suspended and until such suspension is terminated, no further orders
for Shares shall be accepted by you except unconditional orders placed with you
before you had knowledge of the suspension. In addition, the Fund reserves
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the right to suspend sales and your authority to accept orders for Shares on
behalf of the Fund if, in the judgment of a majority of the Board of Trustees or
a majority of the Executive Committee of such Board, if such body exists, it is
in the best interests of the Fund to do so, such suspension to continue for such
period as may be determined by such majority; and in that event, no Shares will
be sold by you on behalf of the Fund while such suspension remains in effect
except for Shares necessary to cover unconditional orders accepted by you before
you had knowledge of the suspension.
8. Portfolio Securities. Portfolio securities of any Portfolio of the Fund
may be bought or sold by or through you and you may participate directly or
indirectly in brokerage commissions or "spread" in respect of transactions in
portfolio securities of any Portfolio of the Fund; provided, however, that all
sums of money received by you as a result of such purchases and sales or as a
result of such participation must, after reimbursement of your actual expenses
in connection with such activity, be paid over by you to or for the benefit of
the Fund.
9. Expenses. (a) The Fund will pay (or will enter into arrangements
providing that others than you will pay) all fees and expenses:
(1) in connection with the preparation, setting in type and filing
of any registration statement (including a prospectus and
statement of additional information) under the 1933 Act or the
1940 Act, or both, and any amendments or supplements thereto
that may be made from time to time;
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(2) in connection with the registration and qualification of
Shares for sale in the various jurisdictions in which the Fund
shall determine it advisable to qualify such Shares for sale
(including registering the Fund as a broker or dealer or any
officer of the Fund or other person as agent or salesman of
the Fund in any such jurisdictions);
(3) of preparing, setting in type, printing and mailing any
notice, proxy statement, report, prospectus or other
communication to shareholders of the Fund in their capacity
as such;
(4) of preparing, setting in type, printing and mailing
prospectuses annually, and any supplements thereto, to
existing shareholders;
(5) in connection with the issue and transfer of Shares resulting
from the acceptance by you of orders to purchase Shares placed
with you by investors, including the expenses of printing and
mailing confirmations of such purchase orders and the expenses
of printing and mailing a prospectus included with the
confirmation of such orders;
(6) of any issue taxes or any initial transfer taxes;
(7) of WATS (or equivalent) telephone lines other than the portion
allocated to you in this paragraph 9;
(8) of wiring funds in payment of Share purchases or in
satisfaction of redemption or repurchase requests, unless such
expenses are paid for by the investor or shareholder who
initiates the transaction;
(9) of the cost of printing and postage or business reply
envelopes sent to Fund shareholders;
(10) of one or more CRT terminals connected with the computer
facilities of the transfer agent other than the portion
allocated to you in this paragraph 9;
(11) permitted to be paid or assumed by the Fund pursuant to a plan
("12b-1 Plan"), if any,
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adopted by the Fund in conformity with the requirements of
Rule 12b-1 under the 1940 Act ("Rule 12b-1") or any successor
rule, notwithstanding any other provision to the contrary
herein;
(12) of the expense of setting in type, printing and postage of the
periodic newsletter to shareholders other than the portion
allocated to you in this paragraph 9; and
(13) of the salaries and overhead of persons employed by you as
shareholder representatives other than the portion allocated
to you in this paragraph 9.
(b) You shall pay Or arrange for the payment of all fees and expenses:
(1) of printing and distributing any prospectuses or reports
prepared for your use in connection with the offering of
Shares to the public;
(2) of preparing, setting in type, printing and mailing any other
literature used by you in connection with the offering of
Shares to the public;
(3) of advertising in connection with the offering of Shares to
the public;
(4) incurred in connection with your registration as a broker or
dealer or the registration or qualification of your officers,
directors, agents or representatives under Federal and state
laws;
(5) of that portion of WATS (or equivalent) telephone lines,
allocated to you on the basis of use by investors (but not
shareholders) who request information or prospectuses;
(6) of that portion of the expense of setting in type, printing
and postage of the periodic newsletter to shareholders
attributable to promotional material included in such
newsletter at your request concerning investment companies
other than the Fund or concerning the Fund to the extent you
are required to assume the expense thereof pursuant to
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paragraph 9(b)(8), except such material which is limited to
information, such as listings of other investment companies
and their investment objectives, given in connection with the
exchange privilege as from time to time described in the
Fund's prospectus;
(7) of that portion of the salaries and overhead of persons
employed by you as shareholder representatives attributable to
the time spent by such persons in responding to requests from
investors, but not shareholders, for information about the
Fund; and
(8) of any activity which is primarily intended to result in the
sale of Shares, unless a 12b-1 Plan shall be in effect which
provides that the Fund shall bear some or all of such
expenses, in which case the Fund shall bear such expenses in
accordance with such Plan;
(9) of that portion of one or more CRT terminals connected with
the computer facilities of the transfer agent attributable to
your use of such terminal(s) to gain access to such of the
transfer agent's records as also serve as your records.
Expenses which are to be allocated between you and the Fund shall be
allocated pursuant to reasonable procedures or formulae mutually agreed upon
from time to time, which procedures or formulae shall to the extent practicable
reflect studies of relevant empirical data.
10. Conformity with Law. You agree that in selling Shares you will duly
conform in all respects with the laws of the United States and any state in
which Shares may be offered for sale by you pursuant to this Agreement and to
the rules and regulations of the National Association of Securities Dealers,
Inc., of which you are a member.
11. Independent Contractor. You shall be an independent contractor and
neither you nor any of your officers or employees is or shall be an employee of
the Fund in the performance
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of your duties hereunder. You shall be responsible for your own conduct and the
employment, control and conduct of your agents and employees and for injury to
such agents or employees or to others through your agents or employees. You
assume full responsibility for your agents and employees under applicable
statutes and agree to pay all employee taxes thereunder.
12. Indemnification. You agree to indemnify and hold harmless the Fund and
each of its Trustees and officers and each person, if any, who controls the Fund
within the meaning of Section 15 of the 1933 Act, against any and all losses,
claims, damages, liabilities or litigation (including legal and other expenses)
to which the Fund or such Trustees, officers, or controlling person may become
subject under such Act, under any other statute, at common law or otherwise,
arising out of the acquisition of any Shares by any person which (i) may be
based upon any wrongful act by you or any of your employees or representatives,
or (ii) may be based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement (including a prospectus or
statement of additional information) covering Shares or any amendment thereof or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading if such statement or omission was made in reliance upon
information furnished to the Fund by you, or (iii) may be incurred or arise by
reason of your acting as the Fund's agent instead of
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purchasing and reselling Shares as principal in distributing the Shares to the
public, provided, however, that in no case (i) is your indemnity in favor of a
Trustee or officer or any other person deemed to protect such Trustee or officer
or other person against any liability to which any such person would otherwise
be subject by reason of willful misfeasance, bad faith, or gross negligence in
the performance of his duties or by reason of his reckless disregard of
obligations and duties under this Agreement or (ii) are you to be liable under
your indemnity agreement contained in this paragraph with respect to any claim
made against the Fund or any person indemnified unless the Fund or such person,
as the case may be, shall have notified you in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claims shall have been served upon the Fund or upon such person (or after
the Fund or such person shall have received notice of such service on any
designated agent), but failure to notify you of any such claim shall not relieve
you from any liability which you may have to the Fund or any person against whom
such action is brought otherwise than on account of your indemnity agreement
contained in this paragraph. You shall be entitled to participate, at your own
expense, in the defense, or, if you so elect, to assume the defense of any suit
brought to enforce any such liability, but if you elect to assume the defense,
such defense shall be conducted by counsel chosen by you and satisfactory to the
Fund, to its officers
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and/or Trustees, or to any controlling person or persons, defendant or
defendants in the suit. In the event that you elect to assume the defense of any
such suit and retain such counsel, the Fund, such officers and Trustees or
controlling person or persons, defendant or defendants in the suit shall bear
the fees and expenses of any additional counsel retained by them, but, in case
you do not elect to assume the defense of any such suit, you will reimburse the
Fund, such officers and Trustees or controlling person or persons, defendant or
defendants in such suit for the reasonable fees and expenses of any counsel
retained by them. You agree promptly to notify the Fund of the commencement of
any litigation or proceedings against it in connection with the issue and sale
of any of Shares.
The Fund agrees to indemnify and hold harmless you and each of your
directors and officers and each person, if any, who controls you within the
meaning of Section 15 of the 1933 Act, against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
you or such directors, officers or controlling person may become subject under
such Act, under any other statute, at common law or otherwise, arising out of
the acquisition of any Shares by any person which (i) may be based upon any
wrongful act by the Fund or any of its employees or representatives, or (ii) may
be based upon any untrue statement or alleged untrue statement of a material
fact contained in a registration statement
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(including a prospectus or statement of additional information) covering Shares
or any amendment thereof or supplement thereto or the 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 such statement or
omission was made in reliance upon information furnished to you by the Fund;
provided, however, that in no case (i) is the Fund's indemnity in favor of a
director or officer or any other person deemed to protect such director or
officer or other person against any liability to which any such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his duties or by reason of his reckless
disregard of obligations and duties under this Agreement or (ii) is the Fund to
be liable under its indemnity agreement contained in this paragraph with respect
to any claims made against you or any such director, officer or controlling
person unless you or such director, officer or controlling person, as the case
may be, shall have notified the Fund in writing within a reasonable time after
the summons or other first legal process giving information of the nature of the
claim shall have been served upon you or upon such director, officer or
controlling person (or after you or such director, officer or controlling person
shall have received notice of such service on any designated agent), but failure
to notify the Fund of any such claim shall not relieve it from any liability
which it may have to the person against whom such action
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is brought otherwise than on account of its indemnity agreement contained in
this paragraph. The Fund will be entitled to participate at its own expense in
the defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but if the Fund elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to you, your
directors, officers or controlling person or persons, defendant or defendants in
the suit. In the event that the Fund elects to assume the defense of any such
suit and retain such counsel you, your directors, officers or controlling person
or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them, but, in case the Fund does
not elect to assume the defense of any such suit, it will reimburse you or such
directors, officers or controlling person or persons, defendant or defendants in
the suit, for the reasonable fees and expenses of any counsel retained by them.
The Fund agrees promptly to notify you of the commencement of any litigation or
proceedings against it or any of its officers or Trustees in connection with the
issuance or sale of any Shares.
13. Authorized Representations. The Fund is not authorized to give any
information or to make any representations on behalf of you other than the
information and representations contained in a registration statement (including
a prospectus or statement of additional information) covering Shares, as
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such registration statement and prospectus may be amended or supplemented from
time to time.
You are not authorized to give any information or to make any
representations on behalf of the Fund or in connection with the sale of Shares
other than the information and representations contained in a registration
statement, (including a prospectus or statement of additional information)
covering Shares, as such registration statement may be amended or supplemented
from time to time. No person other than you is authorized to act as principal
underwriter (as such term is defined in the 0000 Xxx) for the Fund.
14. Duration and Termination of this Agreement. This Agreement shall
become effective upon the date first written above and shall remain in force
until September 30, 1987; and from year to year thereafter, but only so long as
such continuance is specifically approved at least annually by the vote of a
majority of the Trustees who are not interested persons of you or of the Fund,
cast in person at a meeting called for the purpose of voting on such approval,
and by vote of the Board of Trustees or of a majority of the outstanding voting
securities of the Fund. This Agreement may, on 60 days' written notice, be
terminated at any time without the payment of any penalty, by the Board of
Trustees of the Fund, by a vote of a majority of the outstanding voting
securities of the Fund, or by you. This Agreement will automatically terminate
in the event of its assignment. In interpreting the provisions of
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this paragraph 14, the definitions contained in Section 2(a) of the 1940 Act
(particularly the definitions of "interested person," "assignment" and
"majority of the outstanding voting securities"), as modified by any applicable
order of the Securities and Exchange Commission, shall be applied.
15. Amendment of this Agreement. No provisions of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. If the Fund should at any time deem it
necessary or advisable in the best interests of the Fund that any amendment of
this Agreement be made in order to comply with the recommendations or
requirements of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under state or federal tax laws and should
notify you of the form of such amendment, and the reasons therefor, and if you
should decline to assent to such amendment, the Fund may terminate this
Agreement forthwith. If you should at any time request that a change be made in
the Fund's Declaration of Trust or By-laws or in its methods of doing business,
in order to comply with any requirements of federal law or regulations of the
Securities and Exchange Commission or of a national securities association of
which you are or may be a member relating to the sale of shares of the Fund, and
the Fund should not make such necessary change within a reasonable time, you may
terminate this Agreement forthwith.
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16. Termination of Prior Agreements. This Agreement upon its effectiveness
terminates and supersedes all prior underwriting contracts between the parties.
17. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
The name "Xxxxxxx Capital Growth Fund" is the designation of the Trustees
for the time being under a Declaration of Trust dated October 16, 1985, as
amended from time to time, and all persons dealing with the Fund must look
solely to the property of the Fund for the enforcement of any claims against the
Fund as neither the Trustees, officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Fund. No
Portfolio of the Fund shall be liable for claims against any other Portfolio of
the Fund.
You acknowledge that the Fund may, at any time such action is deemed
desirable, suspend or terminate sales of Shares of a Portfolio and that upon
your receipt of notice of such action by the Fund you will, for such period as
determined by the Fund, accept no further orders for Shares of that Portfolio
except unconditional orders placed with you before you had knowledge of such
action. You acknowledge further that the
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Fund may from time to time set upper and lower limits on the number of Shares of
a Portfolio for which a purchaser may subscribe and may limit sales of Shares of
a Portfolio to their existing shareholders.
If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Fund, whereupon this letter shall become a binding contract.
Very truly yours,
XXXXXXX CAPITAL GROWTH FUND
By: /s/ [ILLEGIBLE]
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President
The foregoing Agreement is hereby accepted as of the date thereof.
XXXXXXX FUND DISTRIBUTORS, INC.
By: /s/ Xxxxx X. Xxx
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President
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