SOGEN FUNDS, INC.
1221 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
August 17, 1993
As Amended and Restated
July 31, 1998
XX Xxxxx Securities Corporation
1221 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwriting Agreement
Dear Sirs:
SoGen Funds, Inc. (the "Company"), a Maryland corporation consisting of
four portfolios, SoGen International Fund, SoGen Overseas Fund, SoGen Gold Fund
and SoGen Money Fund, is engaged in the business of an investment company. Its
Board of Directors 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) of the shares of Capital Stock of the Company 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 conditions hereinafter set forth.
Accordingly, the Company hereby agrees with you as follows:
1. Copies of Corporate Documents. The Company will furnish you promptly
with copies of any registration statements filed by it with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, and the
Investment Company Act of 1940, as amended, 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 Company will from time
to time use its best efforts to register under the Securities Act of 1933, as
amended, such authorized shares of Capital Stock not already so registered as
you may reasonably be expected to sell as agent on behalf of the Company. To the
end that there will be available for sale such number of shares as you may
reasonably be expected to sell, the Company, subject to the
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necessary approval of its shareholders, will, from time to time as may be
necessary, increase the number of authorized shares. This agreement relates to
the issue and sale of shares that are duly authorized and registered and
available for sale by the Company, including repurchased and redeemed shares if
and to the extent that they may be legally sold and if, but only if, the Company
sees fit to sell them. You and the Company will cooperate in taking such action
as may be necessary from time to time to qualify shares of the Company for sale
in New York and in any other states mutually agreeable to you and the Company,
and to maintain such qualification, provided that such shares are duly
registered under the Securities Act of 1933, as amended.
3. Solicitation of Orders. You will use your best efforts (but only in
states in which you may lawfully do so) to obtain from investors orders for
shares of the Capital Stock of the Company authorized for issue by the Company
and registered under the Securities Act of 1933, as amended, provided that you
may in your discretion refuse to accept orders for shares from any particular
applicant. You may, as agent for the Company, solicit dealers for orders to
purchase shares of the Capital Stock of the Company and may enter into selling
agreements with any such dealers, the form of such agreements to be as mutually
agreed upon, from time to time, by you and the Company. Each dealer must be a
member of the National Association of Securities Dealers, Inc. or a foreign
dealer not eligible for membership in such Association who has agreed in acting
under the selling agreement to abide by the rules and regulations of such
Association and not to use the United States mails or any means of interstate
commerce in connection with the sales of such shares unless such foreign dealer
is registered under the Securities Exchange Act of 1934 or such registration is
not required.
4. Sale of Shares. Subject to the provisions of paragraph 5 hereof and to
such minimum purchase requirements as may from time to time be currently
indicated in the Company's prospectus, you are authorized to sell as agent on
behalf of the Company authorized and unissued shares of the Capital Stock of the
Company registered under the Securities Act of 1933, as amended. Such sales may
be made by you on behalf of the Company by accepting orders to purchase such
shares placed with you by investors. The sales price to the public of such
shares shall be the public offering price as defined in paragraph 6 hereof.
5. Sale of Shares to Investors by the Company. Any right granted to you to
accept orders for shares or make sales on behalf of the Company will not apply
to shares issued in
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connection with the merger or consolidation of any other investment company with
the Company or its acquisition, by purchase or otherwise, of all or
substantially all the assets of any investment company or substantially all the
outstanding shares of any such company, and such right shall not apply to shares
that may be offered by the Company to shareholders by virtue of their being
shareholders of the Company, including shares issued in payment of any dividend
or distribution by the Company.
6. Public Offering Price. All shares of the Company sold to investors by
you as agent for the Company will be sold at the public offering price. The
public offering price for all accepted orders will be the net asset value per
share next computed after receipt of such an order, plus any applicable sales
charge adjusted to the nearest full cent, as may from time to time be currently
indicated in the Company's prospectus with respect to such order. Net asset
value per share shall be computed in the manner provided in the Company's
Articles of Incorporation, as now in effect or as it may be amended. The time of
receipt of such an order shall be the time of its receipt by you or by a dealer
selected by you as provided in paragraph 3 if transmitted on the day of receipt
by such dealer to you prior to the close of your business on that day. The
Company will not, without your prior consent, change the sales charges or dealer
discounts applicable to the sales of its shares from those set forth in its
Prospectus dated August 31, 1993. You may also purchase as principal shares of
the Company's Capital Stock at net asset value and sell such shares at the
public offering price.
7. Underwriting Discount. The Company shall receive from you the applicable
net asset value on all orders for sales of shares of Capital Stock accepted by
you as agent of the Company if the net sale price thereof has been deemed, in
accordance with the Company's Articles of Incorporation, to be an asset of the
Company in connection with a computation of net asset value for the sale of any
other shares or the purchase or redemption of any shares. You shall be entitled
to retain so much of the difference between the public offering price and the
applicable net asset value as is not reallowed by you as a discount to dealers.
Such reallowance shall be the same for all dealers and shall conform to such
dealer discounts, if any, as may from time to time be currently indicated in the
Company's prospectus. You will reimburse the Company for any increase in any
issue tax paid by it which is attributable to such sales charge.
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8. Notice of Sale; Delivery of Payments. You will promptly notify the
Company's transfer agent or shareholders' servicing agent of any orders for
sales of shares of Capital Stock accepted by you, and you will deliver to the
Company's shareholders' servicing agent all payments pursuant to orders for
sales accepted by you no later than the first business day following the receipt
by you in your home office of such payments, and, unless payment is not required
under paragraph 7, in no event later than seven days after the receipt by you of
such order, or, in case an extension of time is granted by the National
Association of Securities Dealers, Inc., to the dealer submitting the order, in
no event later than the expiration of such extension of time.
9. Purchase of Shares. You are authorized to purchase as agent on behalf of
the Company shares of the Capital Stock of the Company from record holders
thereof. Such purchases may be made by you on behalf of the Company by accepting
orders placed with you by such holders. The purchase price per share for all
accepted orders will be the net asset value per share next computed after
receipt of such an order, in the manner provided in the Company's Articles of
Incorporation, as now in effect or as it may be amended. The time of receipt of
such an order shall be the time of its receipt by you or by a dealer selected by
you as provided in paragraph 3 if transmitted on the day of receipt by such
dealer to the Company's transfer agent or shareholders' servicing agent prior to
the close of its business on that day. You will promptly notify the Company's
transfer agent or shareholders' servicing agent of any such order accepted by
you and will, if the shares subject to such order have been deemed to be no
longer outstanding in connection with a computation of net asset value for the
sale of any shares by the Company or the purchase or redemption of any shares by
it deliver to such agent a proper request for purchase of such shares by the
Company and any stock certificates for such shares not later than the first
business day following the receipt by you in your home office of such request
and certificates, and in no event later than seven days after the receipt by you
of such order.
10. Suspension of Sales and Purchases. If and whenever the determination of
asset value is suspended pursuant to the Company's Articles of Incorporation,
and such suspension has become effective, until such suspension is terminated no
further orders for the sale or purchase of shares shall be accepted by you
except such orders placed with you before you had knowledge of the suspension.
In addition, the Company reserves the right to suspend sales and
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purchases and your authority to accept orders for sales and purchases of shares
on behalf of the Company if, in the judgment of a majority of its Board of
Directors or a majority of the Executive Committee of its Board of Directors, if
such Committee exists, it is in the best interests of the Company 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 or purchased by the Company or by you
on behalf of the Company while such suspension remains in effect except for
shares necessary to cover orders accepted by you before you had knowledge of the
suspension. The Company will notify you promptly of any such suspension of the
determination of net asset value or of any such suspension of sales and
purchases of shares.
11. Expenses. The Company will pay all fees and expenses in connection with
the preparation and filing of any registration statement and prospectus or
amendments thereto under the Securities Act of 1933, as amended, covering the
issue and sale of its shares and in connection with the qualification of shares
for sale in the various states and countries in which the Company shall
determine it advisable to qualify such shares for sale, the costs of all stock
certificates and the fees and expenses of its transfer agent or shareholders'
servicing agent or registrar. It will also pay any issue taxes (subject to
partial reimbursement under paragraph 7 hereof). You will pay all expenses of
printing prospectuses and other sales literature (except copies of prospectuses
and other sales literature which may from time to time be sent to existing
shareholders of the Fund), all fees and expenses in connection with your
qualification as a dealer in the various states and countries, and all other
expenses in connection with the sale and offering for sale of the shares of the
Company which are not payable by the Company pursuant to the provisions of this
paragraph 11.
12. Conformity with Law. You agree that in selling and purchasing the
shares of the Company you will duly conform in all respects with the laws of the
United States and any state or country in which such shares may be offered for
sale by you pursuant to this agreement.
13. Indemnification. You agree to indemnify and hold harmless the Company
and each of its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act of 1933, as
amended, against any and all losses, claims, damages, liabilities or litigation
expenses (including legal and other expenses) to which the Company or such
directors, officers or controlling person may become subject under such Act,
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under any other statute, at common law or otherwise, arising out of the
acquisition of any shares by any person or the sale of any shares by any person
to the Company through you 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 or prospectus covering shares of the Company 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 or confirmed in writing to the Company by
you, provided, however, that in no case is your 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.
The Company 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 Securities Act of 1933, as amended, against any and
all losses, claims, damages, liabilities or litigation expenses (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 or the
sale of any shares by any person to the Company through you which (i) may be
based upon any wrongful act by the Company or any of its employees or
representatives, or (ii) except as described in clause (ii) of the preceding
paragraph, may be based upon any untrue statement or alleged untrue statement or
a material fact contained in a registration statement or prospectus covering
shares of the Company or any amendment thereof or supplement thereto or omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided,
however, that in no case is the Company'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. You hereby waive
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any rights to indemnification concerning your obligations and duties hereunder
to which you might be entitled under the Company's By-Laws.
You are not authorized to give any information or to make any
representations on behalf of the Company in connection with the sale or purchase
of shares of the Company other than the information and representations
contained in a registration statement or prospectus covering shares of the
Company, as such registration statement and prospectus may be amended or
supplemented from time to time. No person other than you is authorized to act as
agent for the Company in connection with the offering or sale of shares of the
Company to the public or otherwise.
14. Duration and Termination of This Agreement. This Agreement shall remain
in force until August 31, 1994 and from year to year thereafter, but only so
long as such continuance is specifically approved at least annually by the Board
of Directors of the Company or by vote of a majority of the outstanding voting
securities of the Company. In addition, the Company may not renew or perform
this Agreement unless the terms thereof and any renewal thereof have been
approved by the vote of a majority of directors of the Company who are not
interested persons of you or of the Company cast in person at a meeting called
for the purpose of voting on such approval. This Agreement may, on 60 days'
written notice, be terminated at any time without the payment of any penalty, by
the Board of Directors of the Company, by vote of a majority of the outstanding
voting securities of the Company, or by you. This Agreement shall automatically
terminate in the event of its assignment. In interpreting the provisions of this
paragraph 14, the definitions contained in Section 2(a) of the 1940 Act, as
amended, and Rules thereunder (particularly the definitions of "interested
person", "assignment", "voting security" and "vote of a majority of the
outstanding voting securities") shall be applied.
15. Amendment of This Agreement. No provision of this agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver
discharge or termination is sought. If the Company should at any time deem it
necessary or advisable in the best interests of the Company 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
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notify you of the form of such amendment, and the reasons therefor, and if you
should decline to assent to such amendment, the Company may terminate this
agreement forthwith. If you should at any time request that a change be made in
the Company's Articles of Incorporation 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 the
shares of the Company, and the Company should not make such necessary change
within a reasonable time, you may terminate this agreement forthwith.
16. 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.
If you are in agreement with the foregoing, please sign the form of
acceptance an the accompanying counterpart of this letter and return such
counterpart to the Company, whereupon this letter shall become a binding
contract. Yours very truly,
SOGEN FUNDS, INC.
By
Vice President
The foregoing Agreement is
hereby accepted as of the
date thereof.
XX XXXXX SECURITIES CORPORATION
By
President
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