UNDERWRITING AGREEMENT
BETWEEN
X. XXXX PRICE GROWTH STOCK FUND, INC.
AND
X. XXXX PRICE INVESTMENT SERVICES, INC.
THIS UNDERWRITING AGREEMENT, made as of the 24th day of July 2002, by and
between X. XXXX PRICE GROWTH STOCK FUND, INC., a corporation organized and
existing under the laws of the State of Maryland (hereinafter called the
"Fund"), and X.XXXX PRICE INVESTMENT SERVICES, INC., a corporation organized and
existing under the laws of the State of Maryland (hereinafter called the
"Distributor").
WITNESSETH:
WHEREAS, the Fund proposes to engage in business as an open-end management
investment company and to register as such under the federal Investment Company
Act of 1940, as amended ("ICA-40"); and
WHEREAS, the shares of the Fund's capital stock may be divided into classes
(all such shares being referred to herein as "Shares") and the Fund currently is
authorized to offer more than one class of Shares; and
WHEREAS, the Distributor is engaged principally in the business of
distributing shares of the investment companies sponsored and managed by either
X. Xxxx Price Associates, Inc. ("Price Associates") or X. Xxxx Price
International, Inc. ("Price International") and is registered as a broker-dealer
under the Securities Exchange Act of 1934, as amended, ("SEA-34") and is a
member of the National Association of Securities Dealers, Inc. ("NASD"); and
WHEREAS, the Fund desires the Distributor to act as the distributor in the
public offering of its shares; and
WHEREAS, the Fund has adopted one or more plans pursuant to Rule 12b-1
under the ICA-40 (the "Plan") with respect to one or more classes of Shares (the
"12b-1 Shares") authorizing payments by the Fund to the Distributor or others
with respect to the distribution and/or provision of shareholder and
administrative services with respect to such 12b-1 Shares;
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1.
DELIVERY OF FUND DOCUMENTS. The Fund has furnished Distributor with copies,
properly certified or authenticated, of each of the following:
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(a) Articles of Incorporation, dated April 5, 1950, as amended.
(b) By-Laws of the Fund as in effect on the date hereof.
(c)
Resolutions of the Board of Directors of the Fund selecting Distributor as
principal underwriter and approving this form of agreement.
The Fund shall furnish the Distributor from time to time with copies,
properly certified or authenticated, of all the amendments of, or supplements
to, the foregoing, if any.
The Fund shall furnish Distributor promptly with properly certified or
authenticated copies of any registration statements filed by it with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended ("SA-33") or ICA-40, together with any financial statements and exhibits
included therein, and all amendments or supplements thereto hereafter filed.
2.
SALE OF SHARES. Subject to the provisions of Paragraphs 3, 4, and 6 hereof, and
to such minimum purchase requirements as may from time to time be currently
indicated in the Fund's prospectus, the Distributor is authorized to sell, as
agent on behalf of the Fund, Shares authorized for issuance and registered under
SA-33. Distributor may also sell Shares under offers of exchange between and
among the investment companies for which Price Associates and/or Price
International act as investment advisers ("Price Funds"). Distributor may also
purchase as principal such Shares for resale to the public. Such sale will be
made by Distributor on behalf of the Funds by accepting unconditional orders to
purchase the Shares placed with Distributor by investors or by selected dealers
and such purchases will be made by Distributor only after acceptance by
Distributor of such orders. The sales price to the public of such Shares shall
be the public offering price as defined in Paragraph 5 hereof.
The Distributor shall have the right to enter into selected dealer
agreements with registered and qualified securities dealers and other financial
institutions of its choice for the sale of Shares, provided that the Fund shall
approve the forms of such agreements. Within the United States, the Distributor
shall offer and sell Shares only to such selected dealers as are members in good
standing of the NASD or are institutions exempt from registration under
applicable federal securities laws. Shares sold to selected dealers shall be for
resale by such dealers only at the public offering price as defined in Paragraph
5 hereof.
3.
SALE OF SHARES BY THE FUND. The rights granted to the Distributor shall be
nonexclusive in that the Fund reserves the right to sell its Shares to investors
pursuant to applications received and accepted by the Fund or its transfer
agent. Further, the Fund reserves the right to issue Shares in connection with
the merger or consolidation of any other investment company, trust or personal
holding company with the Fund or the Fund's acquisition by the purchase or
otherwise, of all or substantially all of the assets of an investment company,
trust or personal holding company. Any right granted to Distributor to accept
orders for Shares, or to make sales on behalf of the Fund or to purchase Shares
for resale, will not apply to Shares issued in connection with the merger or
consolidation of any other investment company with the Fund or its acquisition
by purchase or otherwise, of all or substantially all of the assets of any
investment company, trust or personal
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holding company, or substantially all of the outstanding shares or interests of
any such entity, and such right shall not apply to Shares that may be offered by
the Fund to shareholders by virtue of their being shareholders of the Fund.
4.
SHARES COVERED BY THIS AGREEMENT. This Agreement relates to the issuance and
sale of Shares that are duly authorized, registered, and available for sale by
the Fund, including redeemed or repurchased Shares if and to the extent that
they may be legally sold and if, but only if, the Fund authorizes the
Distributor to sell them.
5.
PUBLIC OFFERING PRICE. All Shares sold by the Distributor pursuant to this
Agreement shall be sold at the public offering price. The public offering price
for all accepted subscriptions will be the net asset value per share, as
determined in the manner provided in the Fund's Articles of Incorporation, as
now in effect, or as they may be amended (and as reflected in the Fund's then
current prospectus), next determined after the order is accepted by the
Distributor. The Distributor will process orders submitted by brokers for the
sale of Shares at the public offering price exclusive of any commission charged
by such broker to his customer.
6.
SUSPENSION OF SALES. If and whenever the determination of net asset value is
suspended and until such suspension is terminated, no further orders for Shares
shall be accepted by the Distributor except such unconditional orders placed
with the Distributor before it had knowledge of the suspension. In addition, the
Fund reserves the right to suspend sales and Distributor's authority to accept
orders for Shares on behalf of the Fund if, in the judgment of the Board of
Directors of the Fund, it is in the best interests of the Fund to do so, such
suspension to continue for such period as may be determined by the Board of
Directors of the Fund; and in that event, no orders to purchase Shares shall be
processed or accepted by the Distributor on behalf of the Fund while such
suspension remains in effect except for Shares necessary to cover unconditional
orders accepted by Distributor before it had knowledge of the suspension, unless
otherwise directed by the Board of Directors of the Fund.
7.SOLICITATION OF ORDERS. In consideration of the rights granted to the
Distributor under this Agreement, Distributor will use its best efforts (but
only in states in which Distributor may lawfully do so) to obtain from investors
unconditional orders for Shares authorized for issuance by the Fund and
registered under SA-33, provided that Distributor may in its discretion reject
any order to purchase Shares. This does not obligate the Distributor to register
or maintain its registration as a broker or dealer under the state securities
laws of any jurisdiction if, in the discretion of the Distributor, such
registration is not practical or feasible. The Fund shall make available to the
Distributor at the expense of the Distributor such number of copies of the
Fund's currently effective prospectus as the Distributor may reasonably request.
The Fund shall furnish to the Distributor copies of all information, financial
statements and other papers which the Distributor may reasonably request for use
in connection with the distribution of Shares.
8.
AUTHORIZED REPRESENTATIONS. The Fund is not authorized by the Distributor to
give, on behalf of the Distributor, any information or to make any
representations other than the information and representations contained in a
registration statement or prospectus filed with the SEC under SA-33 and/or
ICA-40, covering Shares, as such registration statement and prospectus may be
amended or supplemented from time to time.
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Neither Distributor nor any selected dealer nor any other person is
authorized by the Fund to give on behalf of the Fund any information or to make
any representations in connection with the sale of Shares other than the
information and representations contained in a registration statement or
prospectus filed with the SEC under SA-33 and/or ICA-40, covering Shares, as
such registration statement and prospectus may be amended or supplemented from
time to time, or contained in shareholder reports or other material that may be
prepared by or on behalf of the Fund. This shall not be construed to prevent the
Distributor from preparing and distributing tombstone ads and sales literature
or other material as it may deem appropriate. No person other than Distributor
is authorized to act as principal underwriter (as such term is defined in
ICA-40, as amended) for the Fund.
9.
REGISTRATION AND SALE OF ADDITIONAL SHARES. The Fund will, from time to time,
use its best efforts to register under SA-33, such Shares of the Fund as
Distributor may reasonably be expected to sell on behalf of the Fund. In
connection therewith, the Fund hereby agrees to register an indefinite number of
Shares pursuant to Rule 24f-2 under ICA-40, as amended. The Fund will, in
cooperation with the Distributor, take such action as may be necessary from time
to time to qualify such Shares (so registered or otherwise qualified for sale
under SA-33), in any state mutually agreeable to the Distributor and the Fund,
and to maintain such qualification.
10. EXPENSES. The Fund shall pay all fees and expenses:
a.
in connection with the preparation, setting in type and filing of any
registration statement and prospectus under SA-33 and/or ICA-40, and any
amendments or supplements that may be made from time to time;
b.
in connection with the registration and qualification of Shares for sale in the
various states in which the Fund shall determine it advisable to qualify such
Shares for sale. (Including registering the Fund as a broker or dealer or any
officer of the Fund or other person as agent or salesman of the Fund in any
state.);
c.
of preparing, setting in type, printing and mailing any report or other
communication to shareholders of the Fund in their capacity as such;
d.
of preparing, setting in type, printing and mailing prospectuses annually to
existing shareholders;
e.
in connection with the issue and transfer of Shares resulting from the
acceptance by Distributor of orders to purchase Shares placed with the
Distributor by investors, including the expenses of confirming such purchase
orders; and
f.
of any issue taxes or (in the case of Shares redeemed) any initial transfer
taxes.
The Distributor shall pay (or will enter into arrangements providing that
persons other than Distributor shall pay) all fees and expenses:
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a.
of printing and distributing any prospectuses or reports prepared for its use in
connection with the distribution of Shares to the public;
b.
of preparing, setting in type, printing and mailing any other literature used by
the Distributor in connection with the distribution of the Shares to the public;
c.
of advertising in connection with the distribution of such Shares to the public;
d.
incurred in connection with its registration as a broker or dealer or the
registration or qualification of its officers, directors or representatives
under federal and state laws; and
e.
incurred in connection with the sale and offering for sale of Shares which have
not been herein specifically allocated to the Fund.
11. PAYMENT OF THE DISTRIBUTOR UNDER THE PLAN.
a.
The Fund shall pay fees to the Distributor, or to such persons as the Fund or
Distributor may direct, for distribution, shareholder and/or administrative
servicing expenses with respect to the Fund's 12b-1 Shares. Such fees shall be
paid under the Plan(s) adopted by the Fund and this Agreement.
b.
So long as any such Plan or any amendment thereto is in effect, the Distributor
shall inform the Board of the distribution expenses and shareholder and
administrative servicing expenses incurred with respect to the 12b-1 Shares by
the Distributor. So long as any such Plan (or any amendment thereto) is in
effect, at the request of the Board or any agent or representative of the Fund,
the Distributor shall provide such additional information as may reasonably be
requested concerning the activities of the Distributor hereunder and the costs
incurred in performing such activities with respect to the 12b-1 Shares.
12.
CONFORMITY WITH LAW. Distributor agrees that in selling Shares it shall duly
conform in all respects with the laws of the United States and any state in
which such Shares may be offered for sale by Distributor pursuant to this
Agreement and to the rules and regulations of the NASD.
13.
INDEPENDENT CONTRACTOR. Distributor shall be an independent contractor and
neither Distributor, nor any of its officers, directors, employees, or
representatives is or shall be an employee of the Fund in the performance of
Distributor's duties hereunder. Distributor shall be responsible for its own
conduct and the employment, control, and conduct of its agents and employees and
for injury to such agents or employees or to others through its agents or
employees. Distributor assumes full responsibility for its agents and employees
under applicable statutes and agrees to pay all employee taxes thereunder.
14.
INDEMNIFICATION. Distributor agrees to indemnify and hold harmless the Fund and
each of its directors, officers, employees, representatives and each person, if
any, who controls the
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Fund within the meaning of Section 15 of SA-33 against any and all losses,
liabilities, damages, claims or expenses (including the reasonable costs of
investigating or defending any alleged loss, liability, damage, claim or expense
and reasonable legal counsel fees incurred in connection therewith) to which the
Fund or such of its directors, officers, employees, representatives or
controlling person may become subject under SA-33, under any other statute, at
common law, or otherwise, arising out of the acquisition of any Shares by any
person which (i) may be based upon any wrongful act by Distributor or any of
Distributor's directors, officers, 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, prospectus, shareholder report or other
information covering Shares filed or made public by the Fund 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 to the Fund by Distributor. In no case (i)
is Distributor's indemnity in favor of the Fund, or any person indemnified to be
deemed to protect the Fund or such indemnified person against any liability to
which the Fund or 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 his obligations and duties under this
Agreement or (ii) is Distributor to be liable under its indemnity agreement
contained in this Paragraph with respect to any claim made against the Fund or
any person indemnified unless the Fund or such person, as the case may be, shall
have notified Distributor in writing of the claim within a reasonable time after
the summons or other first written notification giving information of the nature
of the claim shall have been served upon the Fund or upon such person (or after
the Fund or such person shall have received notice of such service on any
designated agent). However, failure to notify Distributor of any such claim
shall not relieve Distributor from any liability which Distributor may have to
the Fund or any person against whom such action is brought otherwise than on
account of Distributor's indemnity agreement contained in this Paragraph.
Distributor shall be entitled to participate, at its own expense, in the
defense, or, if Distributor so elects, to assume the defense of any suit brought
to enforce any such claim, but, if Distributor elects to assume the defense,
such defense shall be conducted by legal counsel chosen by Distributor and
satisfactory to the Fund, to its directors, officers, employees or
representatives, or to any controlling person or persons, defendant or
defendants, in the suit. In the event that Distributor elects to assume the
defense of any such suit and retain such legal counsel, the Fund, its directors,
officers, employees, representatives or controlling person or persons, defendant
or defendants in the suit, shall bear the fees and expenses of any additional
legal counsel retained by them. If Distributor does not elect to assume the
defense of any such suit, Distributor will reimburse the Fund, such directors,
officers, employees, representatives or controlling person or persons, defendant
or defendants in such suit for the reasonable fees and expenses of any legal
counsel retained by them. Distributor agrees to promptly notify the Fund of the
commencement of any litigation or proceedings against it or any of its
directors, officers, employees or representatives in connection with the issue
or sale of any Shares.
The Fund agrees to indemnify and hold harmless Distributor and each of its
directors, officers, employees, representatives and each person, if any, who
controls Distributor within the meaning of Section 15 of SA-33 against any and
all losses, liabilities, damages, claims or expenses (including the reasonable
costs of investigating or defending any alleged loss, liability, damage,
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claim or expense and reasonable legal counsel fees incurred in connection
therewith) to which Distributor or such of its directors, officers, employees,
representatives or controlling person may become subject under SA-33, under any
other statute, at common law, or otherwise, arising out of the acquisition of
any Shares by any person which (i) may be based upon any wrongful act by the
Fund or any of the Fund's directors, officers, 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, prospectus, shareholder
report or other information covering Shares filed or made public by the Fund 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 to Distributor by the Fund. In no
case (i) is the Fund's indemnity in favor of the Distributor, or any person
indemnified to be deemed to protect the Distributor or such indemnified person
against any liability to which the Distributor or 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 his
obligations and duties under this Agreement, or (ii) is the Fund to be liable
under its indemnity agreement contained in this Paragraph with respect to any
claim made against Distributor, or person indemnified unless Distributor, or
such person, as the case may be, shall have notified the Fund in writing of the
claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon Distributor or upon such person (or after Distributor or such person
shall have received notice of such service on any designated agent). However,
failure to notify the Fund of any such claim shall not relieve the Fund from any
liability which the Fund may have to Distributor or any person against whom such
action is brought otherwise than on account of the Fund's indemnity agreement
contained in this Paragraph.
The Fund shall be entitled to participate, at its own expense, in the
defense, or, if the Fund so elects, to assume the defense of any suit brought to
enforce any such claim, but, if the Fund elects to assume the defense, such
defense shall be conducted by legal counsel chosen by the Fund and satisfactory
to Distributor, to its directors, officers, employees or representatives, or to
any controlling person or persons, defendant or defendants, in the suit. In the
event that the Fund elects to assume the defense of any such suit and retain
such legal counsel, Distributor, its directors, officers, employees,
representatives or controlling person or persons, defendant or defendants in the
suit, shall bear the fees and expenses of any additional legal counsel retained
by them. If the Fund does not elect to assume the defense of any such suit, the
Fund will reimburse Distributor, such directors, officers, employees,
representatives or controlling person or persons, defendant or defendants in
such suit for the reasonable fees and expenses of any legal counsel retained by
them. The Fund agrees to promptly notify Distributor of the commencement of any
litigation or proceedings against it or any of its directors, officers,
employees, or representatives in connection with the issue or sale of any
Shares.
15.DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall become
effective upon its execution ("effective date") and, unless terminated as
provided, shall remain in effect through April 30, 2003 and from year to year
thereafter, but only so long as such continuance is specifically approved at
least annually by the vote of a majority of the directors of the Fund who are
not interested persons of Distributor or of the Fund, cast in person at a
meeting called for the purpose of voting on such approval, and by vote of the
directors of the Fund or of a majority of the
7
outstanding voting securities of the Fund. This Agreement may, on 60 days'
written notice, be terminated at any time, without the payment of any penalty,
by the vote of a majority of the directors of the Fund who are not interested
persons of Distributor or the Fund, by a vote of a majority of the outstanding
voting securities of the Fund, or by Distributor. This Agreement will
automatically terminate in the event of its assignment. In interpreting the
provisions of this Paragraph 15, the definitions contained in Section 2(a) of
ICA-40 (particularly the definitions of "interested person," "assignment," and
"majority of the outstanding securities") shall be applied.
16.
AMENDMENT OF THIS AGREEMENT. No provisions 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 Fund should at any time deem it necessary or
advisable in the best interests of the Fund that any amendment of this Agreement
be made in order to comply with the recommendations or requirements of the SEC
or other governmental authority or to obtain any advantage under state or
federal tax laws and notifies Distributor of the form of such amendment, and the
reasons therefor, and if Distributor should decline to assent to such amendment,
the Fund may terminate this Agreement forthwith. If Distributor should at any
time request that a change be made in the Fund'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 SEC, or of a national
securities association of which Distributor is or may be a member relating to
the sale of Shares, and the Fund should not make such necessary change within a
reasonable time, Distributor may terminate this Agreement forthwith.
17.
SEPARATE AGREEMENT AS TO CLASSES. The amendment or termination of this Agreement
with respect to any class of Shares shall not result in the amendment or
termination of this Agreement with respect to any other class of Shares unless
explicitly so provided.
18.
MISCELLANEOUS. It is understood and expressly stipulated that neither the
shareholders of the Fund, nor the directors of the Fund shall be personally
liable hereunder. 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.
19.
NOTICE. Any notice required or permitted to be given by either party to the
other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at the
last address furnished by the other party to the party giving notice: if to the
Fund, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and if to the
Distributor, at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
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ATTEST: X. XXXX PRICE GROWTH STOCK FUND, INC.
/s/Xxxxxxxx X. Xxxxxxx By: /s/Xxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxxx, Secretary Xxxxxx X. Xxxxx, President
ATTEST: X. XXXX PRICE INVESTMENT SERVICES, INC.
/s/Xxxxxxx X. Xxx Xxxx By: /s/Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxx Xxxx, Secretary Xxxxx X. Xxxxxxx, Vice President
L:\TRPPROD\EDG\Agreements\Underwriting Agreements\XxxxxXXX.xx
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