UNDERWRITING AGREEMENT
AGREEMENT made as of this 31st day of December, 1997 between ZURICH
YIELDWISE MONEY FUND a Massachusetts business trust (hereinafter called the
"Fund"), and XXXXXX DISTRIBUTORS, INC., a Delaware corporation (hereinafter
called the "Underwriter");
WITNESSETH:
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Fund hereby appoints the Underwriter its agent for the distribution
of shares of beneficial interest (hereinafter called "shares") of the Fund in
jurisdictions wherein shares of the Fund may legally be offered for sale;
provided, however, that the Fund in its absolute discretion may (a) issue or
sell shares directly to holders of shares of the Fund upon such terms and
conditions and for such consideration, if any, as it may determine, whether in
connection with the distribution of subscription or purchase rights, the payment
or reinvestment of dividends or distributions, or otherwise; or (b) issue or
sell shares at net asset value to the shareholders of any other investment
company, for which the Underwriter shall act as exclusive distributor, who wish
to exchange all or a portion of their investment in shares of such other
investment company for shares of the Fund.
2. The Underwriter hereby accepts appointment as agent for the distribution
of the shares of the Fund and agrees that it will use its best efforts with
reasonable promptness to sell such part of the authorized shares of the Fund
remaining unissued as from time to time shall be effectively registered under
the Securities Act of 1933 ("Securities Act"), at prices determined as
hereinafter provided and on terms hereinafter set forth, all subject to
applicable Federal and state laws and regulations and to the Agreement and
Declaration of Trust of the Fund.
3. The Fund agrees that it will use its best efforts to keep effectively
registered under the Securities Act for sale as herein contemplated such shares
as the Underwriter shall reasonably request and as the Securities and Exchange
Commission shall permit to be so registered.
4. Notwithstanding any other provision hereof, the Fund may terminate,
suspend or withdraw the offering of shares whenever, in its sole discretion, it
deems such action to be desirable.
5. The Underwriter may as agent of the Fund sell shares of the Fund
directly to investors. In addition, the Underwriter may as agent of the Fund
sell shares of the Fund to or through qualified dealers or others in such
manner, not inconsistent with the provisions hereof and the then effective
registration statement of the Fund under the Securities Act (and related
prospectus), as the Underwriter may determine from time to time, provided that
no dealer or other person shall be appointed or authorized to act as agent of
the Fund without the prior consent of the Fund. It is mutually agreed that, in
addition to sales made by it as agent of the Fund, the Underwriter may, in its
discretion, also sell shares of the Fund as principal to persons with whom it
does not have dealer selling group agreements.
6. Shares of the Fund offered for sale or sold by the Underwriter shall be
so offered or sold at a price per share determined in accordance with the then
current prospectus relating to the sale of such shares except as departure from
such prices shall be permitted by the rules and regulations of the Securities
and Exchange Commission; provided, however, that any public offering price for
shares of the Fund shall be the net value per share. The net asset value per
share shall be determined in the manner and at the times set forth in the then
current prospectus of the Fund relating to such shares.
7. The price the Fund shall receive for all shares purchased from the Fund
shall be the net asset value used in determining the public offering price
applicable to the sale of such shares.
8. The Underwriter shall issue and deliver on behalf of the Fund such
confirmations of sales made by it as agent pursuant to this agreement as may be
required. At or prior to the time of issuance of shares, the Underwriter will
pay or cause to be paid to the Fund the amount due the Fund for the sale of such
shares. Certificates shall be issued or shares registered on the transfer books
of the Fund in such names and denominations as the Underwriter may specify.
9. The Fund will execute any and all documents and furnish any and all
information which may be reasonably necessary in connection with the
qualification of its shares for sale (including the qualification of the Fund as
a dealer where necessary or advisable) in such states as the Underwriter may
reasonably request (it being understood that the Fund shall not be required
without its consent to comply with any requirement which in its opinion is
unduly burdensome).
10. The Fund will furnish to the Underwriter from time to time such
information with respect to the Fund and its shares as the Underwriter may
reasonably request for use in connection with the sale of shares of the Fund.
The Underwriter agrees that it will not use or distribute or authorize the use,
distribution or dissemination by its dealers or others in connection with the
sale of such shares any statements, other than those contained in the Fund's
current prospectus, except such supplemental literature or advertising as shall
be lawful under Federal and state securities law and regulations, and that it
will furnish the Fund with copies of all such material.
11. The Underwriter shall order shares of the Fund from the Fund only to the
extent that it shall have received purchase orders therefor. The Underwriter
will not make, or authorize any dealers or others to make any short sales of
shares of the Fund.
12. The Underwriter, as agent of and for the account of the Fund, may
repurchase the shares of the Fund at such prices and upon such terms and
conditions as shall be specified in the current prospectus of the Fund.
13. In selling or reacquiring shares of the Fund for the account of the
Fund, the Underwriter will in all respects conform to the requirements of all
state and Federal laws and the Rules of Fair Practice of the National
Association of Securities Dealers, Inc., relating to such sale or reacquisition,
as the case may be, and will indemnify and save harmless the Fund from any
damage or expense on account of any wrongful act by the Underwriter or any
employee, representative or agent of the Underwriter. The Underwriter will
observe and be bound by all the provisions of the Agreement and Declaration of
Trust of the Fund (and of any fundamental policies adopted by the Fund pursuant
to the Investment Company Act of 1940, notice of which shall have been given to
the Underwriter) which at the time in any way require, limit, restrict or
prohibit or otherwise regulate any action on the part of the Underwriter.
14. The Underwriter will require each dealer to conform to the provisions
hereof and the Registration Statement (and related prospectus) at the time in
effect under the Securities Act with respect to the public offering price of the
Fund's shares, and neither the Underwriter nor any such dealers shall withhold
the placing of purchases orders so as to make a profit thereby.
2
15. The Fund will pay or cause to be paid expenses (including the fees and
disbursements of its own counsel) and all taxes and fees payable to the Federal,
state or other governmental agencies on account of the registration or
qualifications of securities issued by the Fund or otherwise. The Fund will also
pay or cause to be paid expenses incident to the issuance of shares of
beneficial interest, such as the cost of share certificates, issue taxes, and
fees for the transfer agent. The Underwriter will pay all expenses (other than
expenses which one or more dealers may bear pursuant to any agreement with the
Underwriter) incident to the sale and distribution of the shares issued or sold
hereunder, including, without limiting the generality of the foregoing, all
expenses of printing and distributing any prospectus and of preparing, printing
and distributing or disseminating any other literature, advertising and selling
aids in connection with the offering of the shares for sale (except that such
expenses need not include expenses incurred by the Fund in connection with the
preparation, typesetting, printing and distribution of any registration
statement or report or other communication to stockholders in their capacity as
such) and expenses of advertising in connection with such offering.
16. The agreement shall become effective on the date hereof and shall
continue in effect until December 1, 1998 and from year to year thereafter, but
only so long as such continuance is approved in the manner required by the
Investment Company Act of 1940. Either party hereto may terminate this agreement
on any date by giving the other party at least six months prior written notice
of such termination specifying the date fixed therefor. Without prejudice to any
other remedies of the Fund in any such event the Fund may terminate this
agreement at any time immediately upon any failure of fulfillment of any of the
obligations of the Underwriter hereunder.
17. This agreement shall automatically terminate in the event of its
assignment.
18. Any notice under this agreement shall be in writing, addressed and
delivered or mailed, postage postpaid, to the other party at such address as
such other party may designate for the receipt of such notice.
19. All parties hereto are expressly put on notice of the Fund's Agreement
and Declaration of Trust and all amendments thereto, all of which are on file
with the Secretary of The Commonwealth of Massachusetts, and the limitation of
shareholder and trustee liability contained therein. This Agreement has been
executed by and on behalf of the Fund by its representatives as such
representatives and not individually, and the obligations of the Fund hereunder
are not binding upon any of the Trustees, officers or shareholders of the Fund
individually but are binding upon only the assets and property of the Fund. With
respect to any claim by Underwriter for recovery of any liability of the Fund
arising hereunder allocated to a particular series or portfolio ("Portfolio") of
the Fund if there be more than one, whether in accordance with the express terms
hereof or otherwise, the Underwriter shall have recourse solely against the
assets
3
of that Portfolio to satisfy such claim and shall have no recourse against the
assets of any other Portfolio for such purpose.
IN WITNESS WHEREOF, the Fund and the Underwriter have each caused this
agreement to be executed on its behalf by an officer thereunto duly authorized
and its seal to be affixed on the day and year first above written.
ZURICH YIELDWISE MONEY FUND
By: /s/Xxxx X. Xxxx
---------------------------------------
Title: Vice President
-------------------------------------
Attest: Xxxxxx X. Xxxxxxx
-------------------------
Title: Secretary
-------------------------
XXXXXX DISTRIBUTORS, INC.
By: /s/Xxxxx X. Xxxxxxxxxx
---------------------------------------
Title: President
-------------------------------------
Attest: /s/Xxxxxxx X. Xxxxxxx
-------------------------
Title: Secretary
-------------------------
4
