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PRINCIPAL UNDERWRITING AGREEMENT
AGREEMENT made this 26th day of March, 1997 by and between ONE Fund,
Inc., a Maryland corporation ("Fund") and Ohio National Equities, Inc., an Ohio
corporation ("Principal Underwriter").
It is hereby mutually agreed as follows:
1. The Fund hereby appoints the Principal Underwriter as its principal
underwriter pursuant to the terms of any 12b-1 Plan most recently adopted by and
in effect for the Fund and as principal underwriter of the shares of beneficial
interest of the Fund ("Shares") as an independent contractor upon the terms and
conditions hereinafter set forth. Except as the Fund may from time to time
agree, the Principal Underwriter will act as agent for the Fund and not as
principal. A copy of any such 12b-1 Plan in effect shall be appended as an
exhibit to this Agreement.
2. The Principal Underwriter will use its best efforts to find
purchasers for the Shares, to promote distribution of the Shares and may obtain
orders from brokers, dealers or other persons for sales of Shares to them. No
such broker, dealer or other person shall have any authority to act as agent for
the Fund; such broker, dealer or other person shall act only as principal in the
sale of Shares.
3. Sales of Shares by the Principal Underwriter shall be at the
applicable public offering price determined in the manner set forth in the
prospectus and/or statement of additional information of the Fund, current at
the time of the Fund's acceptance of the order for Shares; provided that the
Principal Underwriter also shall have the right to sell Shares at net asset
value, if such sale is permissible under and consistent with applicable
statutes, rules, regulations and orders. All orders shall be subject to
acceptance by the Fund, and the Fund reserves the right in its sole discretion
to reject any order received. The Fund shall not be liable to anyone for failure
to accept any order.
4. On all sales of Shares, the Fund shall receive the current net asset
value, and the Principal Underwriter shall be entitled to receive payments in
accordance with any 12b-1 Plan as set forth in the then current prospectus
and/or statement of additional information of the Fund. The Principal
Underwriter may reallow all or a part of the 12b-1 payments to such brokers,
dealers or other persons at the Principal Underwriter may determine.
5. Payment to the Fund for Shares shall be in Clearing House funds
received by the Principal Underwriter within ten (10) business days after notice
of acceptance of the purchase order and the amount of the applicable public
offering price has been given to the purchaser. If such payment is not received
within such ten-day period, the Fund reserves the right, without further notice,
forthwith to cancel its acceptance of any such order. The Fund shall pay such
issue taxes as may be required by law in connection with the issuance of the
Shares.
6. The Principal 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 then current prospectus and/or statement of
additional information covering the Shares and in printed information approved
by the Fund as information supplemental to such prospectus and statement of
additional information. Copies of the then current prospectus and statement of
additional information and any such printed supplemental information will be
supplied by the Fund to the Principal Underwriter in reasonable quantities upon
request.
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7. The Principal Underwriter is a member of, and agrees to comply with
the Conduct Rules of the National Association of Securities Dealers, Inc.
8. The Fund appoints the Principal Underwriter as its agent to accept
orders for redemptions and repurchases of Shares at values and in the manner
determined in accordance with the then current prospectus and/or statement of
additional information of the Fund.
9. The Fund agrees to indemnify and hold harmless the Principal
Underwriter, its officers and Directors and each person, if any, who controls
the Principal Underwriter within the meaning of Section 15 of the Securities Act
of 1933 ("1933 Act"), against any losses, claims, damages, liabilities and
expenses (including the cost of any legal fees incurred in connection therewith)
which the Principal Underwriter, its officers, Directors or any such controlling
person may incur under the 1933 Act, under any other statute, at common law or
otherwise, arising out of or based upon:
(a) any untrue statement or alleged untrue statement of a
material fact contained in the Fund's registration statement,
prospectus or statement of additional information (including amendments
and supplements thereto); or
(b) any omission or alleged omission to state a material fact
required to be stated in the Fund's registration statement, prospectus
or statement of additional information (including amendments and
supplements thereto) necessary to make the statements therein not
misleading, provided, however, that insofar as losses, claims, damages,
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 and in conformity with information furnished to the Fund by
the Principal Underwriter for use in the Fund's registration statement,
prospectus or statement of additional information, such indemnification
is not applicable. In no case shall the Fund indemnify the Principal
Underwriter or its controlling person as to any amounts incurred for
any liability arising out of or based upon any action for which the
Principal Underwriter, its officers and directors or any controlling
person would otherwise be subject to liability by reason of willful
misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of the reckless disregard of its obligations and
duties under this Agreement.
10. The Principal Underwriter agrees to indemnify and hold harmless the
Fund, its officers and directors and each person, if any, who controls the Fund
within the meaning of Section 15 of the 1933 Act against any losses, claims,
damages, liabilities and expenses (including the cost of any legal fees incurred
in connection therewith) which the Fund, its officers, directors or any such
controlling person may incur under the 1933 Act, under any other statute, at
common law or otherwise arising out of the acquisition of any Shares by any
person which:
(a) may be based upon any wrongful act by the Principal
Underwriter or any of its principals, employees or representatives: or
(b) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in the Fund's registration
statement, prospectus or statement of additional information (including
amendments and supplements thereto), or any omission or alleged
omission to state 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 Fund by the Principal Underwriter.
11. The Fund agrees to execute such papers and to do such acts and
things as shall from time to time be reasonably requested by the Principal
Underwriter for the purpose of qualifying the Shares for sale under the
so-called "blue sky" laws of any state or for registering Shares under the
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1933 Act or the Fund under the Investment Company Act of 1940 ("1940 Act"). The
Principal Underwriter shall bear the expense of preparing, printing and
distributing advertising, sales literature, prospectuses and statements of
additional information. The Fund shall bear the expense of registering Shares
under the 1933 Act and the Fund under the 1940 Act, qualifying Shares for sale
under the so-called "blue sky" laws of any state, the preparation and printing
of prospectuses, statements of additional information and reports required to be
filed with the Securities and Exchange Commission and other authorities, the
preparation, printing and mailing of prospectuses and statements of additional
information to shareholders of the Fund, an the direct expenses of the issuance
of Shares.
12. To the extent required by any 12b-1 Plan, the Principal Underwriter
shall provide to the Board of Directors of the Fund in connection with such
12b-1 Plan, not less than quarterly, a written report of the amounts expended
pursuant to such 12b-1 Plan and the purposes for which such expenditures were
made.
13. The term of this Agreement shall begin on the date hereof and, unless
sooner terminated or continued as provided below, shall expire after two years.
This agreement shall continue in effect after such term if its continuance is
specifically approved by a majority of the directors of the Fund and a majority
of the Fund's "Rule 12b-1 Directors" as defined in the 12B-1 Plan of the Fund at
least annually in accordance with the 1940 Act and the rules and regulations
thereunder.
This Agreement may be terminated at any time, without payment of any
penalty, (a) by vote of a majority of the Rule 12b-1 Directors, (b) by a vote of
a majority of the Fund's outstanding shares or (c) as to any one of the Fund's
portfolios, by vote of a majority of that portfolio's outstanding shares, on not
more than sixty days written notice to any other party to the Agreement; and
shall terminate automatically in the event of its assignment (as defined in the
1940 Act).
14. This Agreement shall be construed in accordance with the laws of Ohio.
All sales hereunder are to be made, and title to the Shares shall pass, in
Cincinnati, Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized at Montgomery,
Ohio, on the day and year first written above.
ONE Fund, Inc.
By /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
Ohio National Equities, Inc.
By /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
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