UNDERWRITING AGREEMENT
THE STOCKBACK TRUST
00 Xxxxxxxx
Xxx Xxxx, XX 00000
As of July 26, 2000
Stockback Capital LLC
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Re: Underwriting Agreement
Gentlemen:
The Stockback Trust (hereinafter referred to as the "Company") is a
Delaware business trust operating as an open-end management investment company.
The Company is registered as such under the Investment Company Act of 1940, as
amended (the "1940 Act"), and interests in the Company ("Shares") are registered
under the Securities Act of 1933, as amended (the "1933 Act"). The Company
currently consists of one series listed on the attached Schedule A which is
subject to this Agreement (the "Fund"). The Company, on behalf of the Fund,
desires to offer and sell the authorized but unissued Shares of the Fund to the
public in accordance with applicable federal and state securities laws.
You have informed us that Stockback Capital is registered as a
broker-dealer under the provisions of the Securities Exchange Act of 1934, as
amended, and is a member in good standing of the National Association of
Securities Dealers, Inc. You have indicated your desire to act as the exclusive
selling agent and principal underwriter for the Shares of the Fund and for such
other series of the Company hereinafter established as agreed to from time to
time and evidenced by the addition of such series to Schedule A of this
Agreement. We have been authorized by the Company to execute and deliver this
Agreement to you by a resolution of our Board of Trustees (the "Trustees")
adopted at a meeting of the Trustees, at which a majority of Trustees, including
a majority of our Trustees who are not otherwise interested persons of our
investment adviser or its related organizations, were present and voted in favor
of the said resolution approving this Underwriting Agreement. This Underwriting
Agreement is intended to apply to all Shares of the Fund issued before or after
this amendment.
1. Appointment of Underwriter. Upon the execution of this Agreement and
in consideration of the agreements on your part herein expressed and upon the
terms and conditions set forth herein, we hereby appoint you as the exclusive
sales agent for distribution of the Shares and agree that we will deliver to you
such Shares as you may sell. You agree to use your best efforts to promote the
sale of the Shares, but you are not obligated to sell any specific number of the
Shares.
2. Independent Contractor. You will undertake and discharge your
obligations hereunder as an independent contractor and shall have no authority
or power to obligate or bind the Company or the Fund by your actions, conduct or
contracts, except that you are authorized to accept orders for the purchase or
repurchase of the Shares as our agent. You may appoint sub-agents or distribute
the Shares through dealers (or otherwise) as you may determine necessary or
desirable from time to time. This Agreement shall not, however, be construed as
authorizing any dealer or other person to accept orders for sale or repurchase
on our behalf or to otherwise act as our agent for any purpose.
3. Offering Price. Shares of the Fund shall be offered at a price
equivalent to their net asset value as set forth in the Fund's Prospectus. On
each business day on which the New York Stock Exchange is open for business, we
will furnish you with the net asset value of the Shares, which shall be
determined and become effective as of the close of business of the New York
Stock Exchange on that day. The net asset value so determined shall apply to all
orders for the purchase of the Shares received by dealers prior to such
determination, and you are authorized in your capacity as our agent to accept
orders and confirm sales at such net asset value; provided that, such dealers
notify you of the time when they received the particular order and that the
order is placed with you prior to your close of business on the day on which the
applicable net asset value is determined. To the extent that our Fund
[Shareholder Servicing Agent] and Transfer Agent and Dividend Disbursing Agent
(collectively, "Agent") receive payments on behalf of the investors, such Agent
shall be required to record the time of such receipt with respect to each
payment, and the applicable net asset value shall be that which is next
determined and effective after the time of receipt by them. In all events, you
shall forthwith notify all of the dealers comprising your selling group and the
Agent and Custodian(s) of the effective net asset value as received from us.
Should we at any time calculate our net asset value more frequently than once
each business day, you and we will follow procedures with respect to such
additional price or prices comparable to those set forth above in this Section
3.
4. Payment of Shares. At or prior to the time of delivery of any of the
Shares you will pay or cause to be paid to the Custodian, for our account, an
amount in cash equal to the net asset value of such Shares. In the event that
you pay for Shares sold by you prior to your receipt of payment from purchasers,
you are authorized to reimburse yourself for the net asset value of such Shares
from the offering price of such Shares when received by you.
5. Registration of Shares. No Shares shall be registered on our books
until (i) receipt by us of your written request therefor; (ii) receipt by the
Custodian and Agent of a certificate signed by an officer of the Company stating
the amount to be received therefor; and (iii) receipt of payment of that amount
by the Custodian. We will provide for the recording of all Shares purchased in
unissued form in "book accounts."
6. Purchases for Your Own Account. You shall not purchase Shares for
your own account for purposes of resale to the public, but you may purchase
Shares for your own investment account upon your written assurance that the
purchase is for investment purposes only and that the Shares will not be resold
except through redemption by us.
7. Payment of Expenses.
(a) If and to the extent that such payments may be made
consistently with Rule 12b-1 or any plan adopted thereunder by the Fund, the
Fund shall assume and pay for the following expenses: (i) costs of preparing,
printing and distributing reports, Prospectuses and Statements of Additional
Information used by it in connection with the sale or offering of its Shares and
all advertising and sales literature relating to it printed at your instruction;
and (ii) counsel fees and expenses in connection with the foregoing.
(b) You shall pay all of your own costs and expenses connected
with the sale of Shares.
8. Furnishing of Information. We will furnish to you such information
with respect to our company and its Shares, in such form and signed by such of
our officers as you may reasonably request, and we represent that the statements
therein contained when so signed will be true and correct. We will also furnish
you with such information and will take such action as you may reasonably
request in order to qualify our Shares for sale to the public under the Blue Sky
Laws or in jurisdictions in which you may wish to offer them. We will furnish
you at least annually with audited financial statements of our books and
accounts certified by independent public accountants, and with such additional
information regarding our financial condition, as you may reasonably request
from time to time.
9. Conduct of Business. Other than the currently effective Prospectus
and Statement of Additional Information, you will not issue any sales material
or statements except literature or advertising which conforms to the
requirements of federal and state securities laws and regulations and which have
been filed, where necessary, with the appropriate regulatory authorities. You
will furnish us with copies of all such material prior to their use and no such
material shall be published if we shall reasonably and promptly object.
You shall comply with the applicable federal and state laws and
regulations where our Shares are offered for sale and conduct your affairs with
us and with dealers, brokers or investors in accordance with the Rules of Fair
Practice of the National Association of Securities Dealers, Inc.
10. Redemption. You are authorized as our agent and subject to our
direction, to redeem outstanding Shares of the Fund when properly tendered by
shareholders pursuant to the redemption right granted to the shareholders by the
Trust Instrument of the Company, as from time to time in effect, at a redemption
price equal to the NAV per Share of the Fund next determined after proper tender
and acceptance. The Company has delivered to you a copy of its Trust Instrument
as currently in effect and agrees to deliver to you any amendments thereto
promptly upon filing thereof with the Office of the Secretary of State of the
State of Delaware.
11. Other Activities. Your services pursuant to this Agreement shall
not be deemed to be exclusive, and you may render similar services and act as an
underwriter, distributor or dealer for other investment companies in the
offering of their Shares.
12. Term of Agreement. This Agreement shall continue in effect with
respect to the Fund for a period of two years from the date of commencement.
This Agreement shall continue annually thereafter for successive one (1) year
periods if approved at least annually for the Fund (i) by a vote of a majority
of the outstanding voting securities of the Fund or by a vote of the Trustees of
the Company, and (ii) by a vote of a majority of the Trustees of the Company who
are not interested persons or parties to this Agreement (other than as Trustees
of the Company), cast in person at a meeting called for the purpose of voting on
this Agreement.
13. Termination. Either party may terminate this Agreement without the
payment of any penalty, upon not more than sixty days' nor less than thirty
days' written notice delivered personally or mailed by registered mail, postage
prepaid, to the other party; provided, that in the case of termination by any
series of the Company, such action shall have been authorized (i) by resolution
of the Trustees, or (ii) by vote of a majority of the outstanding voting
securities of the respective series, or (iii) by written consent of a majority
of the disinterested Trustees. The Agreement shall automatically terminate if it
is assigned by you.
14. Suspension of Sales. We reserve the right at all times to suspend
or limit the public offering of the Shares upon written notice to you, and to
reject any order in whole or in part.
15. Miscellaneous.
(a) This Agreement shall be subject to the laws of the State
of New York and shall be interpreted and construed to further and promote the
operation of the Company as an open-end management investment company.
(b) As used herein, the terms "Net Asset Value," "Offering
Price," "Investment Company," "Open-End Investment Company," "Assignment,"
"Principal Underwriter," "Interested Person," "Parents," and "Majority of the
Outstanding Voting Securities," shall have the meanings set forth in the 1933
Act and the 1940 Act, as applicable, and the rules and regulations promulgated
thereunder. Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a provision of the
1940 Act shall be resolved by reference to such term or provision of the 1940
Act and to interpretation thereof, if any, by the United States courts or, in
the absence of any controlling decision of any such court, by rules, regulations
or orders of the SEC validly issued pursuant to the 1940 Act. In addition, when
the effect of a requirement of the 1940 Act reflected in any provision of this
Agreement is modified, interpreted or relaxed by a rule, regulation,
interpretation or order of the SEC or its staff, whether of special or of
general application, such provision shall be deemed to incorporate the effect of
such rule, regulation, interpretation or order. The company and you may from
time to time agree on such provisions interpreting or clarifying the provisions
of this Agreement as, in our joint opinion, are consistent with the general
tenor of this Agreement and with the specific provisions of this Section 15(b).
Any such interpretations or clarification shall be in writing signed by the
parties and annexed hereto, but no such interpretation or clarification shall be
effected if in contravention of any applicable federal or state law or
regulations, and no such interpretation or clarification shall be deemed to be
an amendment of this Agreement.
16. Liability.
(a) Nothing contained herein shall be deemed to protect you
against any liability to us or to our shareholders to which you would otherwise
be subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of your duties hereunder, or by reason of your reckless
disregard of your obligations and duties hereunder.
(b) You shall look only to the assets of a series for the
performance of this Agreement by the Company on behalf of such series and
neither the Trustees nor any of the Company's officers, employees or agents,
whether past, present or future, shall be personally liable therefor.
If the foregoing meets with your approval, please acknowledge your
acceptance by signing each of the enclosed counterparts hereof and returning
such counterparts to us, whereupon this shall constitute a binding agreement as
of the date first above written.
Very truly yours,
STOCKBACK TRUST
(on behalf of the Fund listed in the
attached Schedule A)
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
Agreed to and Accepted:
STOCKBACK CAPITAL LLC
By: /s/ C. Xxxx Xxxxxx
--------------------
C. Xxxx Xxxxxx
Title: Chief Operating Officer
SCHEDULE A
The series of the Stockback Trust currently subject to this Underwriting
Agreement is as follows:
Stockback Fund
