UNDERWRITING AGREEMENT
between
BUFFALO SMALL CAP FUND, INC.
and
XXXXX & XXXXXX, INC.
THIS AGREEMENT, made and entered into this ____ day of _____________,
1997, by and between BUFFALO SMALL CAP FUND, INC., (a Maryland corporation,
hereinafter referred to as the "Fund") and XXXXX & BABSON, INC. (a Missouri
corporation, hereinafter referred to as "Principal Underwriter").
1. Subject to the provisions of its Certificate of Incorporation and
By-Laws, copies of which have been delivered to and are acknowledged by the
Principal Underwriter, the Board of Directors of the Fund hereby appoint the
firm of Xxxxx & Xxxxxx, Inc. as the Principal Underwriter and sole distributor
of the shares of the Fund, except for shares which the Fund may elect pursuant
to authority of its Board of Directors to issue direct to registered owners,
which shall include by definition but not by limitation stock issued by virtue
of reinvestment of dividends, or as the result of a splitting of shares, or as
the result of the Fund merging or consolidating with another organization, or in
return for acquisition of assets, or as the result of shares issued in
connection with a contractual plan for which the Fund is the underlying
investment, or for the purpose of complying with the registration laws of a
particular state or jurisdiction.
2. In consideration of its appointment under this Agreement as
Principal Underwriter, Xxxxx & Babson, Inc. agrees to pay all costs of all
administrative services required in the normal operation of the Fund. This
includes rent; shareholder services, including the maintenance of the
shareholder accounting system and transfer agency; and such other items as are
incidental to corporate administration. Not considered normal operating expenses
and therefore payable by the Fund, are taxes, interest, fees and other charges
of governments and their agencies including the cost of qualifying the Fund's
shares for sale in any jurisdiction, brokerage costs, dues and all extraordinary
costs and expenses including but not limited to legal and accounting fees
incurred in anticipation of or arising out of litigation or administrative
proceedings to which the Fund, its directors or officers may be subject or a
party thereto.
3. 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, and do such
other
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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.
4. The Principal Underwriter agrees to place its full facilities at the
disposal of the Fund and to assist and cooperate fully with respect to the
registration and qualification of the Fund's shares, as well as perform all
functions required in connection with any offering including, but not limited
to, the creation and preparation of literature, advertising, and any other
promotional material for the purpose of selling the Fund's shares.
5. Principal Underwriter will act as agent of the Fund and not as
principal in the solicitation and sale of the shares of the Fund unless
expressly agreed to in writing by the Principal Underwriter and the Fund.
6. 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 Principal Underwriter agrees that solicitations shall
be in a form acceptable 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 Certificate of Incorporation, and By-Laws of the
Fund, and shall not violate any provision of the laws of the United States or of
any other jurisdiction to which solicitations are subject, or violate any rule
or regulation promulgated by any lawfully constituted authority to which the
Fund or Principal Underwriter may be subject.
7. The Fund agrees to issue new shares direct to the registered owner
pursuant to this Agreement and according to instructions from the Principal
Underwriter, subject to the net asset value of such shares next effective after
acceptance of the order by the Fund and as more fully set out in paragraph 8.
8. The Fund hereby authorizes the Principal Underwriter 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 Certificate of Incorporation,
By-Laws, Registration Statement and Prospectus of
the Fund.
9. The Fund agrees that, as long as this Agreement is in effect, it
will not authorize anyone else to offer or solicit applications for shares of
the Fund and will not accept any such application if submitted by or through
anyone other than the Principal Underwriter, unless the Principal Underwriter
shall first have agreed in writing to such authorization.
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10. This Agreement (i) may be terminated without the payment of any
penalty, either by vote of the Board of Directors of the Fund or by vote of a
majority of the outstanding voting securities of the Fund, on sixty (60) days
written notice to the Principal Underwriter; (ii) may be terminated without
penalty by the Principal Underwriter on sixty (60) days written notice to the
Fund; and (iii) shall immediately terminate in the event of its assignment.
11. The Principal Underwriter agrees that it will not take either a
short or long position with respect to shares of the Fund; 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.
12. Nothing contained in this Agreement shall be deemed to protect the
Principal Underwriter against any liability to the Fund or to its securities
holders to which the Principal Underwriter would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the performance of its
duties hereunder, or by reason of its reckless disregard of its obligations and
duties hereunder.
13. This Agreement shall become effective on the date first above
written, and continue in effect through the 31st day of October, 1998 and
thereafter shall continue automatically for successive annual periods ending
with each 31st day of October, provided that such continuance is specifically
approved at least annually by the Board of Directors or by vote of a majority of
the outstanding voting securities of the Fund and provided further that this
Agreement or any renewal thereof shall be approved by the vote of a majority of
the Directors who are not parties to the Agreement or interested persons of any
such party, cast in person, at a meeting called for the purpose of voting on
such approval.
BUFFALO SMALL CAP FUND, INC.
By
ATTEST:
XXXXX & XXXXXX, INC.
By
ATTEST:
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