SELLING AGREEMENT
BETWEEN
THE BERWYN FUND, INC.
AND
BERWYN FINANCIAL SERVICES
THIS AGREEMENT entered into the 24th day of September, 1993 by
and between The Berwyn Fund, Inc., a Pennsylvania Corporation with its
principal office located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxx 00000 (the "Fund") and Berwyn Financial Services, Inc., a
Pennsylvania corporation with its principal office located at 0000
Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxxxxxx 00000 (the "Distributor").
W I T N E S S E T H :
In consideration of the mutual convenants and agreements of the
parties hereto, the parties intending to be bound, mutually covenant
and agree with each other as follows:
1. The Fund hereby appoints the Distributor as agent of
the Fund to effect the sale and public distribution of shares of the
capital stock of the Fund.
2. The Distributor shall not be the exclusive agent for
the Fund in sale of its shares. The Distributor shall be a selling
agent for the Fund in all jurisdictions that require the shares of the
Fund to be sold through broker-dealers and/or issuer-dealers. In
those jurisdictions, however, the Fund may also sell shares through
other broker-dealers. Also, where permitted by law the Fund will sell
its shares directly to the public.
3. The Fund hereby authorizes the Distributor to sell its
shares in accordance with the following schedule of prices;
The applicable price will be the net asset value per share next
effective after receipt and acceptance by the Fund of a proper
offer to purchase, determined in accordance with the Articles
of Incorporation, By-Laws, Registration Statement and
Prospectus of the Fund.
4. Orders for the purchase of shares placed by the
Distributor shall be subject to the provisions of paragraphs (f) and
(g) of Section 26 of the Rules of Fair Practice of the NASD, the
provisions of which are hereby incorporated by reference.
5. The Fund agrees to prepare and file registration
statements with the Securities and Exchange Commission and the
Securities Departments of the various states and other jurisdictions
in which the shares may be offered, at its own expense, and do such
other things and to take such other actions as may be mutually agreed
upon by and between the parties as shall be reasonably necessary in
order to effect the registration and the sale of the Fund's shares.
The Distributor shall cooperate with the Fund in the Preparation and
filing of applications for registration and qualification of the
shares under applicable law.
6. At its own expense, the Fund shall print and provide
the Distributor with such quantities of its current Prospectus,
Statements of Additional Information and reports to stockholders as
the Distributor may reasonably request in connection with its
responsibilities under this Agreement.
7. Normally, the Fund shall not exercise any direction or
control over the time and place of solicitation, the persons to be
solicited, or the manner of solicitation; but the Distributor agrees
that solicitations shall be in a form acceptabe to the Fund and shall
be subject to such terms and conditions as may be prescribed from time
to time by the Fund, the Registration Statement, the Prospectus, the
Articles of Incorporation, and By-Laws, and shall not violate any
provision of the laws of the Untied States or any jurisdictions to
which solicitations are subject, or violate any rule or regulation
promulgated by any lawfully constituted authority to which the Fund or
Distributor may be subject.
8. (a) The Fund appoints and designates the Distributor
as agent of the Fund and the Distributor accepts such appointment as
such agent, to repurchase shares of the Fund in accordance with the
provisions of the Articles of Incorporation and its By-Laws. The
Distributor shall not be the exclusive agent for repurchase of shares.
(b) In connection with such redemptions or
repurchases the Fund authorizes and designates the Distributor to take
any action, to make any adjustments in net asset value, and to make
any arrangements for the payment of the redemption or repurchase price
authorized or permitted to be taken or made in accordance with the
Investment Company Act of 1940 and as set forth in the By-Laws and
then current Prospectus.
(c) The authority of the Distributor under this
paragraph 8 may, with the consent of the Fund, be redelegated in whole
or in party to another person or firm.
(d) The authority granted in this paragraph 8 may be
suspended by the Fund at any time or from time to time pursuant to the
provisions of its Articles of Incorporation until further notice to
the Distributor. The President or Secretary of the Fund shall have
the power granted by said provisions. After any such suspension the
authority granted to the Distributor by this paragraph 8 shall be
reinstated only by a written instrument executed by the Fund's
President or Secretary.
9. The Distributor shall keep and maintain adequate
records in respect of its activities which further the sale of shares.
10. The Distributor agrees that it will not place orders
for more shares than are required to fill the requests received by it
as agent of the Fund and that it will expeditiously transmit all such
orders to the Fund.
11. This Agreement shall become effective January 2, 1994
and shall continue in effect for a period of more than one year from
its effective date only as long as such continuance is approved, at
least annually, by the Board of Directors of the Fund, including a
majority of those Directors who are not "interested persons" of any
party to this Agreement voting person at a meeting called for the
purpose of voting or such approval. This Agreement may be terminated
by either party hereto upon thirty (30) days' written notice to the
other party. This Agreement shall automatically terminate in the
event of its assignment by the Distributor unless the United States
Securities and Exchange Commission has issued an order exempting the
Fund and Distributor from the provisions of the Investment Company Act
of 1940, as amended, which would otherwise have effected the
termination of this Agreement.
12. No amendment to this Agreement shall be executed or
become effective unless its terms have been approved: (a) by a
majority of the directors of the Fund or by the vote of a majority of
the outstanding voting securities of the Fund, and (b) by a majority
of those directors who are not interested persons of the Fund or of
any party to this Agreement.
13. The Fund and the Distributor hereby each agree that all
literature and publicity issued by either of them referring directly
or indirectly to the Fund or to the Distributor shall be submitted and
receive the approval of the Fund and the Distributor before the same
may be used by either party.
14. The Distributor agrees to use its best efforts in
effecting the sale and public distribution of the shares of the Fund
and to perform its duties in redeeming the shares of the Fund, but
nothing contained in this Agreement shall make the Distributor or any
of its officers and directors or shareholders liable for any loss
sustained by the Fund or the Fund's officers, directors or
shareholders, or by any other person on account of any act done or
omitted to be done by the Distributor under this Agreement; provided,
that nothing herein contained shall protect the Distributor against
any liability to the Fund or to any of 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 as Distributor or gross negligence in the performance of its
duties as Distributor or by reason of its reckless disregard of its
obligations or duties as Distributor under this Agreement. Nothing in
this Agreement shall protect the Distributor from any liabilities
which it may have under the Securities Act of 1933 or the Investment
Company Act of 1940.
15. As used in this Agreement the terms `interested
persons," "assignment," and "majority of the outstanding voting
securities" shall have the respective meanings specified in the
Investment Company Act of 1940 as now in effect.
16. This Agreement shall be construed in accordance with
the Laws of the Commonwealth of Pennsylvania, except to the extent
such laws are preempted by the Investment Company Act of 1940.
17. Any notice required to be given thereunder shall be
sent via first class mail to the address of the party as set forth
above.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their duly authorized officers of the day and year
above written.
Attest: The Berwyn Fund,
Inc.
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Secretary President
Attest: Berwyn Financial
Services, Inc.
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxx
Secretary President
BFS/sellagr
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