UNDERWRITING AGREEMENT
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THIS AGREEMENT is made as of August 19, 2003, by and between Memorial Funds
(the "Trust"), a Delaware Business Trust, and Citco-Quaker Fund Distributors,
Inc., a Delaware corporation ("Underwriter").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized by its Certificate of Trust and Trust
Instrument to issue separate Funds of shares representing interests in separate
investment portfolios (the "Funds"), and
WHEREAS, The Trust has authorized the issuance of shares of beneficial
interest ("Shares") in the Funds which are identified on Exhibit A attached
hereto, and
WHEREAS, Underwriter is a broker-dealer registered with the Securities and
Exchange Commission and a member in good standing of the National Association of
Securities Dealers, Inc., (the "NASD"); and
NOW, THEREFORE, in consideration of the promises and agreements of the
parties contained herein, the parties hereto, intending to be legally bound,
agree as follows:
1. APPOINTMENT. The Trust hereby appoints Underwriter as exclusive agent for
the distribution of Shares of the Funds listed in Exhibit A hereto which
may be amended from time to time by mutual agreement of the Trust and
Underwriter, and Underwriter hereby accepts such appointment under the
terms of this Agreement,
Notwithstanding any other provision hereof, the Trust may terminate,
suspend or withdraw the offering of Shares of any Fund whenever, in its
sole discretion, it deems such action to be desirable.
2. SALE AND REPURCHASE OF SHARES.
(a) Underwriter, as agent for the Trust, will sell Shares to the public
against orders therefor at the public offering price, all such sales
to comply with the provisions of the 1940 Act and the rules and
regulations of the Securities and Exchange Commission and other
applicable regulatory authorities promulgated thereunder.
(b) Underwriter will also have the right to take, as agent for the Trust,
all actions, which, in Underwriter's judgment, are reasonably
necessary and proper to carry into effect the distribution of the
Shares, but at no time shall have the authority to bind Fund assets or
settle Trust disputes.
(c) The net asset value of the Shares of each Fund (or Class of Shares of
a Fund) shall be determined in the manner provided in the Trust's then
current Registration Statement, and when determined shall be
applicable to transactions as provided for
in the Registration Statement. The net asset value of the Shares of
each Fund (or each Class of Shares of a Fund) shall be calculated by
the Trust or by another entity on behalf of the Trust. Underwriter
shall have no duty to inquire into nor shall it have any liability for
the accuracy of the net asset value per share as calculated.
On every sale of Shares, the Trust shall receive the applicable net
asset value of the Shares promptly, but in no event later than the
first business day following the date on which Underwriter shall have
received an order for the purchase of the Shares.
(d) Upon receipt of purchase instructions, Underwriter will transmit such
instructions to the Trust or its transfer agent for registration of
the Shares purchased.
(e) Nothing in this Agreement shall prevent Underwriter or any affiliated
person (as defined in the 0000 Xxx) of Underwriter from acting as
underwriter or distributor for any other person, firm or corporation
(including other investment companies) or in any way limit or restrict
Underwriter or any 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 Underwriter expressly represents that it will undertake
no activities which, in its judgment, will adversely affect the
performance of its obligations to the Trust under this Agreement or
applicable law.
(f) Underwriter, as agent of the Trust and for the account of the Fund(s),
may repurchase the Shares at such prices and upon such terms and
conditions as shall be specified in the Trust's then current
Registration Statement. All accounts shall be handled in an
appropriate manner and at all times in accordance with the procedures
and forms set forth in the respective prospectus. At the end of each
business day, the Underwriter shall notify the Trust and the Trust's
transfer agent of the number of Shares redeemed for each Fund, and the
identity of the shareholders or dealers offering Shares for
repurchase. Upon such notice and acceptance by the Trust, the Trust
shall pay the Underwriter the net asset value of the redeemed shares
in cash or in the form of a credit against monies due the Trust from
the Underwriter as proceeds from the sale of Shares. The Trust
reserves the right to suspend such repurchase right upon written
notice to the Underwriter. The Underwriter further agrees to act as
agent for the Trust to receive and transmit promptly to the Trust's
transfer agent, shareholder and dealer requests for redemption of
Shares in the Porfolio(s).
3. SALES OF SHARES BY THE TRUST. The Trust reserves the right to issue or sell
Shares of the Fund(s) directly to the public at any time.
4. BASIS OF SALE OF SHARES. Underwriter does not agree to sell any specific
number of Shares. Underwriter, as agent for the Trust, undertakes to sell
Shares of the Fund(s) on a best effort basis only against orders therefor.
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5. COMPLIANCE WITH NASD AND GOVERNMENT RULES.
(a) Underwriter will conform to the Rules of Fair Practice of the NASD and
the securities laws of any jurisdiction in which it sells Shares of
the Fund(s).
(b) The Trust agrees to furnish to the Underwriter sufficient copies of
any agreements, plans or other materials it intends to use in
connection with sales of Shares in adequate time for the Underwriter
to file and clear them with the proper authorities before they are put
in use, and not to use them until so filed and cleared.
(c) Underwriter, at its own expense, will qualify as dealer, broker, or
otherwise, under all applicable State or federal laws in order that
Shares may be sold in such States as may be mutually agreed upon by
the parties, except for expenses described in Section 7 hereto, which
will be paid by the Trust or the Adviser to the Trust, as appropriate.
(d) Underwriter shall not make, in connection with any sale or
solicitation of a sale of the Shares, any representations concerning
the Shares except those contained in the Trust's then current
prospectus and statement of additional information covering the Shares
and in printed information approved by the Trust as information
supplemental to such prospectus and statement of additional
information. Copies of the Trust's then effective prospectus and
statement of additional information and any such printed supplemental
information will be supplied to Underwriter in reasonable quantities
upon request.
6. RECORDS TO BE SUPPLIED BY TRUST. The Trust shall furnish to Underwriter
copies of all information, financial statements and other papers which
Underwriter may reasonably request for use in connection with the
distribution of Shares of the Fund(s).
7. EXPENSES TO BE BORNE BY TRUST. The Trust will bear the following expenses:
(a) preparation, setting in type, and printing of sufficient copies of the
prospectus and statement of additional information for distribution to
shareholders, and the distribution to shareholders of the prospectus
and statement of additional information;
(b) preparation, printing and distribution of reports and other
communications to shareholders;
(c) registration of the Shares under the federal securities law;
(d) qualification of the Shares for sale in the jurisdictions designated
by Trust and Underwriter;
(e) maintaining facilities for the issue and transfer of the Shares;
(f) supplying information, prices and other data to be furnished by the
Trust under this Agreement; and
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(g) any original issue taxes or transfer taxes applicable to the sale or
delivery of the Shares of certificates therefor.
8. INDEMNIFICATION.
(a) The Trust agrees to indemnify, defend and hold the Underwriter, its
officers, and Trustees, and any person who controls the Underwriter
within the meaning of Section 15 of the Securities Act of 1933 (the
"1933 Act") or Section 20 of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), free and harmless from and against any and
all claims, demands or liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Underwriter,
its officers, Trustees or any such controlling persons may incur under
the 1933 Act, the 1934 Act, or under common law or otherwise, arising
out of or based upon any untrue statement of a material fact contained
in the Trust's Registration Statement or Prospectus or arising out of
or based upon any alleged omission to state a material fact required
to be stated in either thereof or necessary to make the statements in
either thereof not misleading, except insofar as such claims, demands,
liabilities or expenses arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information furnished in writing
by the Underwriter to the Trust for use in the Registration Statement.
The Underwriter agrees to comply with all of the applicable terms and
provisions of the 0000 Xxx.
(b) The Underwriter agrees to indemnify, defend, and hold the Trust, its
officers, Trustees, employees shareholders and agents, and any person
who controls the Trust within the meaning of Section 15 of the 1933
Act of Section 20 of the 1934 Act, free and harmless from and against
any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending against such claims, demands or
liabilities and any counsel fees incurred in connection therewith)
which the Trust, its Trustees, officers, employees, shareholders and
agents, or any such controlling person may incur under the 1933 Act,
the 1934 Act or under common law or otherwise arising out of or based
upon Underwriter's failure to comply with its regulatory obligations
in connection with the offering of shares, any untrue statement of a
material fact contained in information furnished in writing by the
Underwriter to the Trust for use in the Registration Statement, or
arising out of or based upon any omission or alleged omission to state
a material fact in connection with such information required to be
stated in the Registration Statement necessary to make such
information not misleading.
(c) A party seeking indemnification hereunder (the "Indemnitee") shall
give prompt written notice to the party from whom indemnification is
sought ("Indemnitor") of a written assertion or claim of any
threatened or pending legal proceeding which may be subject to
indemnity under this Section; provided, however, that failure to
notify the Indemnitor of such written assertion or claim shall not
relieve the indemnitor of any liability arising from this Section. The
Indemnitor shall be entitled, if it so elects, to assume the defense
of any suit brought to enforce a claim subject to this Agreement and
such defense shall be conducted by counsel chosen by the
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Indemnitor and satisfactory to the Indemnitee; provided, however, that
if the defendants include both the Indemnitee and the Indemnitor, and
the Indemnitee shall have reasonably concluded that there may be one
or more legal defenses available to it which are different from or
additional to those available to the Indemnitor ("conflict of
interest"), the Indemnitor shall have the right to select separate
counsel to defend such claim on behalf of the Indemnitee. In the event
that the Indemnitor elects to assume the defense of any suit pursuant
to the preceding sentence and retains counsel satisfactory to the
Indemnitee, the Indemnitee shall bear the fees and expenses of
additional counsel retained by it except for reasonable investigation
costs which shall be borne by the Indemnitor.
(d) It is understood that indemnification may be limited by
interpretations under the 1933 Act, 1934 Act and other laws. It is
also understood that the obligation to indemnify pursuant to this
section does not extend to situations where the Indemnitee has been
found to or has engaged in wrongful conduct.
9 TERMINATION AND AMENDMENT OF THIS AGREEMENT. This Agreement shall
automatically terminate, without the payment of any penalty, in the event
of its assignment. This Agreement may be amended only if such amendment is
approved (i) by Underwriter, (ii) either by action of the Board of Trustees
of the Trust or at a meeting of the Shareholders of the Trust by the
affirmative vote of a majority of the outstanding Shares, and (iii) by a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of Underwriter, by vote cast in person at a meeting called for the
purpose of voting on such approval. Either the Trust or Underwriter may
terminate this Agreement at any time on thirty (30) days' written notice
delivered via facsimile or overnight courier or mailed by registered mail,
postage prepaid, to the other party.
10. EFFECTIVE PERIOD OF THIS AGREEMENT. Unless terminated automatically as set
forth in Section 10 of this Agreement, this Agreement shall take effect
upon its execution and shall remain in full force and effect for a period
of three(3) years from that date, and shall remain in full force and effect
from year to year thereafter, subject to annual approval (i) by
Underwriter, (ii) by the Board of Trustees of the Trust or by vote of a
majority of the outstanding Shares, and in either case (iii) by a majority
of the Trustees of the Trust who are not interested persons of the Trust or
of Underwriter, by vote cast in person at a meeting called for the purpose
of voting on such approval.
11. LIMITATION OF TRUST'S LIABILITY. The Term "Memorial Trusts" means and
refers to the Trustees and officers from time to time serving under the
Trust's Articles of Incorporation and by-laws as the same may subsequently
thereto have been, or subsequently hereto be, amended. It is expressly
agreed that the obligations of the Trust hereunder shall not be binding
upon any of the Trustees, Shareholders, nominees, officers, agents or
employees of the Trust personally, but bind only the property of the Trust,
as provided in Trust's Master Trust Agreement and by-laws. The execution
and delivery of this Agreement have been authorized by the Trustees of the
Trust and signed by the officers of the Trust, acting as such, and neither
such authorization by such Trustees, nor such execution and delivery by
such officers shall be deemed to have been made by any of them individually
or to impose any liability on them personally, but shall bind only the
property of the Trust as provided in
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its Master Trust Agreement. A copy of the Certificate of Trust of the Trust
is on file with the Secretary of State of Delaware.
12. SUCCESSOR INVESTMENT COMPANY. Unless this Agreement has been terminated in
accordance with Paragraph 10, the terms and provisions of this Agreement
shall become automatically applicable to any investment company which is a
successor to the Trust as a result of a reorganization, recapitalization or
change of domicile.
13. SEVERABILITY. In the event any provision of this Agreement is determined to
be void or unenforceable, such determination shall not affect the remainder
of this Agreement, which shall remain in full force and effect.
14. QUESTIONS OF INTERPRETATION.
(a) This Agreement shall be governed by the laws of the State of Delaware.
(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or
provision of the 1933 Act, 1934 Act or 1940 Acts shall be resolved by
reference to such term or provision of these Acts and interpretation
thereof, if any, by the United States courts; or in the absence of any
controlling decision of any such court, by rules, regulations or
orders of the Securities and Exchange Commission issued pursuant to
said Act. In addition, where the effect of a requirement of these
Acts, reflected in any provision of this Agreement is revised by rule,
regulation or order of the Securities and Exchange Commission, such
provision shall be deemed to incorporate the effect of such rule,
regulation or order.
15. NOTICES. Any notices under this Agreement shall be in writing, addressed
and delivered or mailed postage paid to the other party at such address as
such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that for this purpose the
address of the Trust is 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx, 00000,
Attn: Xxxx X. Xxxxxxxx, and of the Underwriter shall be 0000 Xxxxxx Xxxxx
Xxxx, Xxxxx 00, Xxxxxx Xxxxx, XX 00000, Attn: Mr. Xxxxxxx Faith.
16. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
17. BINDING EFFECT. Each of the undersigned expressly warrants and represents
that he has the full power and authority to sign this Agreement on behalf
of the party indicated, and that his signature will operate to bind the
party indicated to the foregoing terms.
18. FORCE MAJEURE. If a party shall be delayed in the performance of its
services or prevented entirely or in part from performing services due to
causes or events beyond its control, including and without limitation, acts
of God, interruption of power or other utility, transportation or
communication services, acts of civil or military authority, sabotages,
national emergencies, explosion, flood, accident, earthquake or other
catastrophe, fire, strike or other labor problems, legal action, present or
future law, governmental order, rule or
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regulation, or shortages of suitable parts, materials, labor or
transportation, such delay or non-performance shall be excused and a
reasonable time, subject to restrictions and requirements of performance as
may be established by federal or state law.
19. COMPENSATION. The Trust shall pay for the services to be provided by
Underwriter under this Agreement in accordance with, and in the manner set
forth in, Schedule B attached hereto, as such Schedule B may be amended
from time to time by agreement of the parties.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, Underwriter's compensation
for that part of the month in which this Agreement is in effect shall be
prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of Underwriter's compensation for the preceding month
shall be made promptly.
IN WITNESS WHEREOF, the Trust and Underwriter have each caused this
Agreement to be signed on its behalf, all as of the day and year first above
written.
ATTEST: MEMORIAL FUNDS
/S/Xxxx X. Xxxxxxx /S/Xxxx X. Xxxxxxxx
By:
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Name: Xxxx X. Xxxxxxx, Esq. Name: Xxxx X. Xxxxxxxx
Title: Secretary Title: President
ATTEST CITCO-QUAKER FUND DISTRIBUTORS, INC.
/S/Xxxxx X. XxXxxx /S/Xxxxxxx X. Faith
By:
---------------------------------- ---------------------------------
Name: Name: Xxxxxxx Faith
Title: Title: Chief Operation Officer
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UNDERWRITING AGREEMENT
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EXHIBIT A
The following Funds and share classes thereof are hereby made subject to
the underwriting Agreement dated August 19, 2003, with Citco-Quaker Fund
Distributors, Inc. ("Underwriter") and Memorial Funds (the "Trust"), and each
agree to be bound by all the terms and conditions contained in said Agreement:
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FUNDS CLASS A CLASS B NO-LOAD
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Government Bond Fund X
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Growth Equity Fund X
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Value Equity Fund X
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UNDERWRITING AGREEMENT
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EXHIBIT B
The following fees are hereby made subject to the underwriting Agreement
dated August 19, 2003, with Citco-Quaker Fund Distributors, Inc. ("Underwriter")
and Memorial Funds (the "Trust"), and each agree to be bound by all the terms
and conditions contained in said Agreement:
Underwriter shall receive an annual fee of $5,000 as full compensation for
underwriting services provided for Funds of the Trust. Should the Trust
determine to offer load shares or to use a 12b-1 fee to enhance distribution
options, the Parties will renegotiate the compensation due to underwriter.
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