EX-99.B(e)vlua
UNDERWRITING AGREEMENT
THIS AGREEMENT, made this ___th day of ____________, 2000, by and between
Xxxxxxx & Xxxx Advisors Value Fund, Inc. (hereinafter the "Fund"), a Maryland
corporation, and Xxxxxxx & Xxxx, Inc. (hereinafter "W&R"), a Delaware
corporation;
I. REPRESENTATIONS
A. The Fund represents that
1) it is a registered open-end management investment company
(mutual fund), and
2) the shares of each of its classes of shares ("Shares") and
of each sub-class thereof ("Class"), if any, are, as of the date of the
effectiveness of this Agreement as to each such Share or Class, registered
with the Securities and Exchange Commission ("SEC") and qualified or otherwise
authorized for sale in all states of the United States as may be agreed upon.
(As to any Fund or Class not registered with the SEC and qualified or
otherwise authorized for sale in all states of the United States as may be
agreed upon, this Agreement shall become effective as to such Fund or Class
upon such registration and qualification or authorization.)
B. W&R represents that
1) it is a broker-dealer registered with the SEC and is duly
qualified to offer shares of the Fund in all states in which the shares are
currently qualified or otherwise authorized for offer for sale;
2) it is a member of the National Association of Securities
Dealers, Inc. ("NASD");
3) it maintains a retail securities and insurance sales
organization consisting in part of a number of representatives authorized
under Federal and state securities laws to solicit as representatives of W&R
orders for Fund Shares and other securities;
4) it maintains and enforces procedures to enable it to
supervise its representatives and associated persons in accordance with
applicable securities laws, rules and regulations including the Rules of the
NASD; and
5) it maintains and enforces procedures to review for
compliance with applicable securities laws, rules and regulations all sales
literature and promotional materials used by it and authorized to be used by
its representatives in solicitation of orders to buy Fund Shares, and it
files, when applicable, such literature and materials with the NASD.
II. APPOINTMENT OF UNDERWRITER and OBLIGATIONS
The Fund hereby appoints W&R, and W&R agrees to act, as the Fund's
principal underwriter under the terms and provisions of this Agreement.
A. Fund agrees
1) to use its best efforts to register from time to time under
the Securities Act of 1933 (the "Securities Act") adequate amounts of its
Shares for sale by W&R to the public and to qualify or to permit W&R to
qualify such shares for offering to the public in such states as may from time
to time be agreed upon;
2) to immediately advise W&R (i) when any post-effective
amendment to its registration statement or any further amendment or supplement
thereto or any further registration statement or amendment or supplement
thereto becomes effective, (ii) of any request by the SEC for amendments to
the registration statement(s) or any then effective prospectus or for
additional information, (iii) of the issuance by the SEC of any stop-order
suspending the effectiveness of the registration statement or the initiation
of any proceedings for that purpose, and (iv) of the happening of any event
which makes untrue any material statement made in the registration statement
or any then effective prospectus or which, in the opinion of counsel for the
Fund, requires the making of a change in the registration statement or any
then effective prospectus in order to make the statements therein not
misleading; in case of the happening at any time of any event which materially
affects the Fund or its securities and which should be set forth in a
supplement to or an amendment of any then effective prospectus in order to
make the statements therein not misleading, to prepare and furnish to W&R such
amendment or amendments to that prospectus as will correct the prospectus so
that as corrected it will not contain, or such supplement or supplements to
that prospectus which when read in conjunction with that prospectus will make
the combined information not contain any untrue statement of a material fact
or any omission to state any material fact necessary in order to make the
statements in that prospectus not misleading; if any time the SEC shall issue
any stop-order suspending the effectiveness of the registration statement, to
make every reasonable effort to obtain the prompt lifting of such order; and,
before filing any amendment to the registration statement or to any then
effective prospectus, to furnish W&R with a copy of the proposed amendment;
3) to advise W&R of the net asset value of the Shares of each
of its Funds and Classes, as applicable, as often as computed and to furnish
to W&R as soon as practical such information as may be reasonably requested by
W&R in order that it may know all of the facts necessary to sell Shares of the
Fund;
4) to make delivery of its Shares subject to the provisions of
its Articles of Incorporation and Bylaws to W&R as ordered by W&R as soon as
reasonably possible after receipt of the orders and against payment of the
consideration to be received by the Fund therefor from W&R;
5) to pay or cause to be paid all expenses incident to the
issuance, transfer, registration and delivery of its shares, all taxes in
connection therewith, costs and expenses incident to preparing and filing any
registration statements and prospectuses and any amendments or supplements to
a registration statement or a prospectus, statutory fees incidental to the
registration of additional Shares with the SEC, statutory fees and expenses
incurred in connection with any Blue Sky law qualifications undertaken by or
at the request of W&R, and the fees and expenses of the Fund's counsel,
accountants or any other experts used in connection with the foregoing; and
6) not without the consent of W&R to offer any of its Shares
for sale directly or to any persons or corporations other than W&R, except
only:
a) the reinvestment of dividends and/or distributions or
their declaration in Shares of the Fund, in optional form or otherwise;
b) the issuance of additional Shares to stock splits or
stock dividends;
c) sale of Shares to another investment or securities
holding company in the process of purchasing all or a portion of its assets;
d) in connection with an exchange of Shares of the Fund
for shares in another investment or securities holding company;
e) the sale of Shares to registered unit investment
trusts; or
f) in connection with the exchange of one fund's shares
for shares of the Fund.
B. W&R agrees
1) to offer Fund Shares in such states as may be agreed upon
through its retail account representatives and, at its sole discretion,
through broker-dealers which are members of the NASD on such terms as are not
inconsistent with this Agreement;
2) to order Shares from the Fund only after it has received a
purchase order therefor;
3) to pay to the Fund the net asset value of Shares sold
within two business days after the day payment is received by W&R at its
principal place of business from the investor or broker-dealer, or pay the
Fund at such other time as may be agreed upon hereafter by the Fund and W&R,
or as may be prescribed by law or the Rules of the NASD;
4) in offering Shares to comply with the provisions of the
Articles of Incorporation and Bylaws of the Fund and with the provisions
stated in its applicable then current prospectus(es) and statement of
additional information;
5) timely to inform the Fund of any action or proceeding to
terminate, revoke or suspend W&R's registration as a broker-dealer with the
SEC, membership in the NASD, or authority with any state securities commission
to offer Fund Shares; and
6) to pay the cost of all sales literature, advertising and
other materials which it may at its discretion use in connection with the sale
of Fund Shares, including the cost of reports to the shareholders of the Fund
in excess of the cost of reports to existing shareholders and the cost of
printing the prospectus(es) furnished to it by the Fund.
III. TERMS FOR SALE OF SHARES
A. It is mutually agreed that
1) W&R shall act as principal in all matters relating to
promotion and sale of Fund Shares, including the preparation and use of all
advertising, sales literature and other promotional materials, and shall make
and enter into all other arrangements, agreements and contracts as principal
on its own account and not as agent for the Fund. Title to Shares issued and
sold by the Fund through W&R shall pass directly from the Fund to the dealer
or investor, or shall first pass to W&R as it may from time to time be
determined by W&R and the Fund; except provided, however, that W&R may, if so
agreed by W&R and the Fund, act as agent of the Fund without commission on
repurchase of Shares of the Fund;
2) certificates for Shares shall not be created or delivered
by the Fund in any case in which the purchase is pursuant to any provisions of
the Fund described in its applicable then current prospectus(es) and statement
of additional information under the terms of which certificates are not to be
issued to the shareholder. Shares sold by W&R shall be registered in such
name or names and amounts as W&R may request from time to time, and all Shares
when so paid for and issued shall be fully paid and non-assessable;
3) the offering price at which Shares of the Fund may be sold
by W&R shall include such selling commission as may be applicable to that
Class and as may be fixed from time to time by W&R but shall not be in excess
of the maximum permitted under the rules and regulations of the National
Association of Securities Dealers, Inc. W&R shall retain any such sales
commission and may re-allow all or any part of the sales commission to its
account representatives and to selected brokers and dealers who sell Shares of
the Fund; and
4) W&R may designate, reduce or eliminate its selling
commissions in certain sales or exchanges to the extent described in the
applicable then current prospectus(es) and statement of additional information
of the Fund and in accordance with Section 22(d) of the Investment Company Act
of 1940 and any rules, regulations or orders of the SEC thereunder.
IV. THE PLAN
A. It is mutually acknowledged that the Fund has adopted a plan
pursuant to Rule 12b-1 under the Investment Company Act of 1940 (a "Plan"),
which Plan is applicable to certain Shares and that the Fund may in the future
adopt Plans applicable to certain Shares and Classes, respectively.
B. With respect to any Share or Class as to which the Fund has
adopted a Plan, pursuant to that Plan, each day the Fund shall pay to W&R a
distribution fee and/or a service fee at the maximum rates and under the terms
and conditions set forth in the applicable Plan, as amended from time to time,
or such lesser amount as the Fund and W&R may agree.
C. The Fund shall, after excluding from the redemption proceeds
that portion represented by the reinvestment of dividends and distributions
and the appreciation of the value of Shares being redeemed, promptly pay W&R
an amount, if any, equal to the percent of the amount invested as determined
by W&R and as is then stated in the Fund's current prospectus and statement of
additional information applicable to the Shares redeemed (the "contingent
deferred sales charge"). For purposes of determining the applicable
contingent deferred sales charge, if any: the redemptions shall be deemed in
order of investment made when more than one investment has been made; and when
the Shares being redeemed were acquired by exchange of Shares of another Class
of the Fund, or corresponding class of another registered investment company
for which W&R or its affiliate serves as principal underwriter, the investment
shall be deemed as if it had been made when the Fund's shares were first
purchased, and the applicable contingent deferred sales charges, if any, shall
be with respect to the amount originally invested in Fund shares; and provided
that any contingent deferred sales charge shall be determined in accordance
with and in the manner set forth in the applicable then current prospectus and
statement of additional information and any applicable Order or Rule issued by
the SEC.
D. It is contemplated that W&R may pay commissions to its field
sales force at the time of sale of the Fund's shares and may incur other
expenses substantially in advance of receiving the distribution fee, if any,
that may be applicable to the payment of such commissions and expenses. W&R
recognizes that such payments are at its risk and that this Agreement may be
terminated or not continued as hereinafter provided without the payment to it
of any further distribution fees or service fees whatsoever and without the
payment of any penalty. The contingent deferred sales charges, if any, shall,
however, be payable to W&R with respect to all subject sales made prior to the
termination of this Agreement.
E. W&R shall at least quarterly provide to the Fund's board of
directors a written report with respect to each Share or Class, as applicable,
of the amounts of the distribution and/or service fees expended and the
purposes for which these expenditures were made. W&R shall in addition
furnish to the board of directors of the Fund such information as may be
requested or as may be necessary to an informed determination by the directors
of whether or not the directors should continue the Fund's Plan(s) and
continue this Agreement and to determine whether there is reasonable
likelihood that the Plan(s) and this Agreement will benefit the Fund and its
shareholders affected by such Plan(s).
V. INDEMNIFICATION
A. The Fund agrees with W&R for the benefit of W&R and each person,
if any, who controls W&R within the meaning of Section 15 of the Securities
Act and each and all and any of them, to indemnify and hold harmless W&R and
any such controlling person from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, under any other statute, at common
law or otherwise, and to reimburse the underwriter and such controlling
persons, if any, for any legal or other expenses (including the cost of any
investigation and preparation) reasonably incurred by them or any of them in
connection with any litigation whether or not resulting in any liability,
insofar as such losses, claims, damages, liabilities or litigation arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or any prospectus or any
amendment thereof or supplement thereto or arise out of or are based upon 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;
provided, however, that this indemnity agreement shall not apply to amounts
paid in settlement of any such litigation if such settlement is effected
without the consent of the Fund or to any such losses, claims, damages,
liabilities or litigation arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus or any amendment thereof or supplement thereto, or
arising out of or based upon 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, which statement or omission was made in
reliance upon information furnished in writing to the Fund by W&R for
inclusion in any registration statement or any prospectus or any amendment
thereof or supplement thereto. W&R and each such controlling person shall
promptly, after the complaint shall have been served upon W&R or such
controlling person in any litigation against W&R or such controlling person in
respect of which indemnity may be sought from the Fund on account of its
agreement contained in this paragraph, notify the Fund in writing of the
commencement thereof. The omission of W&R or such controlling person so to
notify the Fund of any such litigation shall relieve the Fund from any
liability which it may have to W&R or such controlling person on account of
the indemnity agreement contained in this paragraph but shall not relieve the
Fund from any liability which it may have to W&R or controlling person
otherwise than on account of the indemnity agreement contained in this
paragraph. In case any such litigation shall be brought against W&R or any
such controlling person and the underwriter or such controlling person shall
notify the Fund of the commencement thereof, the Fund shall be entitled to
participate in (and, to the extent that it shall wish, to direct) the defense
thereof at its own expense but such defense shall be conducted by counsel of
good standing and satisfactory to W&R or such controlling person or persons,
defendant or defendants in the litigation. The indemnity agreement of the
Fund contained in this paragraph shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of W&R or any such
controlling person and shall survive any delivery of shares of the Fund. The
Fund agrees to notify W&R promptly of the commencement of any litigation or
proceeding against it or any of its officers or directors of which it may be
advised in connection with the issue and sale of its shares.
B. Anything herein to the contrary notwithstanding, the agreement
in Section A of this article, insofar as it constitutes a basis for
reimbursement by the Fund for liabilities (other than payment by the Fund of
expenses incurred or paid in the successful defense of any action, suit or
proceeding) arising under the Securities Act, shall not extend to the extent
of any interest therein of any person who is an underwriter or a partner or
controlling person of an underwriter within the meaning of Section 15 of the
Securities Act or who, at the date of this Agreement, is a director of the
Fund, except to the extent that an interest of such character shall have been
determined by a court of appropriate jurisdiction the question of whether or
not such interest is against public policy as expressed in the Securities Act.
C. W&R agrees to indemnify and hold harmless the Fund and its
directors and such officers as shall have signed any registration statement
from and against any and all losses, claims, damages or liabilities, joint or
several, to which the Fund or such directors or officers may become subject
under the Securities Act, under any other statute, at common law or otherwise,
and will reimburse the Fund or such directors or officers for any legal or
other expenses (including the cost of any investigation and preparation)
reasonably incurred by it or them or any of them in connection with any
litigation, whether or not resulting in any liability insofar as such losses,
claims, damages, liabilities or litigation arise out of, or are based upon,
any untrue statement or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, which statement or omission was made in reliance upon information
furnished in writing to the Fund by W&R for inclusion in any registration
statement or any prospectus, or any amendment thereof or supplement thereto,
or which statement was made in, or the alleged omission was from, any
advertising or sales literature (including any reports to shareholders used as
such) which relate to the Fund.
W&R shall not be liable for amounts paid in settlement of any such
litigation if such settlement was effected without its consent. The Fund and
its directors and such officers, defendant or defendants, in any such
litigation shall, promptly after the complaint shall have been served upon the
Fund or any such director or officer in any litigation against the Fund or any
such director or officer in respect of which indemnity may be sought from W&R
on account of its agreement contained in this paragraph, notify W&R in
writing of the commencement thereof. The omission of the Fund or such
director or officer so to notify the underwriter of any such litigation shall
relieve W&R from any liability which it may have to the Fund or such director
or officer on account of the indemnity agreement contained in this paragraph,
but shall not relieve W&R from any liability which it may have to the Fund or
such director or officer otherwise than on account of the indemnity agreement
contained in this paragraph. In case any such litigation shall be brought
against the Fund or any such officer or director and notice of the
commencement thereof shall have been so given to W&R, W&R shall be entitled to
participate in (and, to the extent that it shall wish, to direct) the defense
thereof at its own expense, but such defense shall be conducted by counsel of
good standing and satisfactory to the Fund. The indemnity agreement of W&R
contained in this paragraph shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Fund and
shall survive any delivery of shares of the Fund. W&R agrees to notify the
Fund promptly of the commencement of any litigation or proceeding against it
or any of its officers or directors or against any such controlling person of
which it may be advised, in connection with the issue and sale of the Fund's
shares.
D. Notwithstanding any provision contained in this Agreement, no
party hereto and no person or persons in control of any party hereto shall be
protected against any liability to the Fund or its security holders to which
they would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of their duties or by reason of their
reckless disregard of their obligations and duties under this Agreement.
VI. OTHER TERMS
A. This Agreement shall not be deemed to limit W&R from acting as
underwriter and/or dealer for any other mutual fund, from engaging in any
other aspects of the securities business, whether or not such may be deemed in
competition with the sale of shares of the Fund, and to carry on any other
lawful business whatsoever.
B. Except as expressly provided in Article V and hereinabove, the
agreements herein set forth have been made and are made solely for the benefit
of the Fund and W&R, and the persons expressly provided for in Article V,
their respective heirs and successors, personal representatives and assigns,
and except as so provided, nothing expressed or mentioned herein is intended
or shall be construed to give any person, firm or corporation other than the
Fund, W&R and the persons expressly provided for in Article V any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
representation, warranty or agreement herein contained. Except as so
provided, the term "heirs, successors, personal representatives and assigns"
shall not include any purchaser of shares merely because of such purchase.
C. This Agreement shall continue in effect, unless terminated as
hereinafter provided, for a period of one (1) year and thereafter only if such
continuance is specifically approved at least annually by the Board of
Directors, including the vote of a majority of the directors who are not
parties to the Agreement or "interested persons" (as defined in the Investment
Company Act of 1940) or any such party and who have no direct or indirect
financial interest in the operation of any Plan or any agreement relating to
that Plan (hereafter the "Plan directors"), cast in person at a meeting called
for the purpose of voting on such approval. This Agreement may be terminated
by W&R at any time without penalty upon giving the Fund sixty (60) days'
written notice (which notice may be waived by the Fund) and may be terminated
by the Fund at any time without penalty upon giving W&R sixty (60) days'
written notice (which notice may be waived by W&R), provided that such
termination by the Fund shall be directed or approved by the vote of a
majority of the Plan directors, or by the vote of a majority (as defined in
the Investment Company Act of 1940) of the outstanding voting securities of a
Class with respect to that Class. This Agreement shall automatically
terminate in the event of its assignment, the term "assignment" for this
purpose having the meaning defined in Section 2(a)(4) of the Investment
Company Act of 1940.
D. This Agreement shall be governed and construed in accordance
with the laws of Kansas.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers and their corporate
seals to be affixed as of the day and year first above written.
XXXXXXX & XXXX ADVISORS VALUE FUND, INC.
By:
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Xxxxxx X. Xxxxxxx, Vice President
ATTEST:
By:
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Xxxxxxx X. Xxxxxxxx, Secretary
XXXXXXX & XXXX, INC.
By:
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Xxxxxx X. Xxxxxxx, President
ATTEST:
By:
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Xxxxxx X. Xxxxxxx, Secretary
