FIRST EAGLE SOGEN FUNDS, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Amended and Restated Underwriting Agreement
August 13, 2001
Xxxxxxx and X. Xxxxxxxxxxxx, Inc.
1345 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This Agreement amends and restates the Underwriting Agreement
between the parties dated February 18, 2000. First Eagle SoGen Funds, Inc. (the
"Company"), a Maryland corporation currently consisting of the portfolios listed
on Schedule A, attached hereto, together with all other portfolios subsequently
established and made subject to this Agreement, is engaged in the business of an
investment company. Its Board of Directors has selected you to act as principal
underwriter (as such term is defined in Section 2(a)(29) of the Investment
Company Act of 1940, as amended (the "1940 Act")) of the shares of Capital Stock
of the Company and you are willing to act as such principal underwriter and to
perform the duties and functions of underwriter in the manner and on the
conditions hereinafter set forth. Accordingly, the Company hereby agrees with
you as follows:
1. Copies of Corporate Documents. The Company will furnish you
promptly with copies of any registration statements filed by it with the
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "1933 Act"), and the 1940 Act, together with any financial
statements and exhibits included therein, and all amendments or supplements
thereto hereafter filed.
2. Registration and Sale of Additional Shares. The Company
will from time to time use its best efforts to register under the 1933 Act such
authorized shares of Capital Stock not already so registered as you may
reasonably be expected to sell as agent on behalf of the Company. To the extent
that there will be available for sale such number of shares as you may
reasonably be expected to sell, the Company, subject to the necessary approval
of its shareholders, will, from time to time as may be necessary, increase the
number of authorized shares. This Agreement relates to the issue and sale of
shares that are duly authorized and registered and available for sale by the
Company, including repurchased and redeemed shares if and to the extent that
they may be legally sold and if, but only if, the Company sees fit to sell them.
You and the Company will cooperate in taking such action as may be necessary
from time to time to qualify shares of the Company for sale in New York and in
any other states mutually agreeable to you and the Company, and to maintain such
qualification, provided that such shares are duly registered under the 0000 Xxx.
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The Company represents to you that all registration statements
and prospectuses filed by the Company with the SEC under the 1933 Act and under
the 1940 Act with respect to the shares have been prepared in conformity with
the requirements of said Acts and the rules and regulations of the SEC
thereunder. As used in this Agreement, the terms "registration statement" and
"prospectus" shall mean any registration statement and prospectus, including the
statement of additional information incorporated by reference therein, filed
with the SEC and any amendments and supplements thereto which at any time shall
have been filed with the SEC. The Company represents and warrants to you that
any registration statement and prospectus, when such registration statement
becomes effective, will contain all statements required to be stated therein in
conformity with said Acts and the rules and regulations of the SEC; that all
statements of fact contained in any such registration statement and prospectus
will be true and correct when such registration statement becomes effective; and
that neither any registration statement nor any prospectus when such
registration statement becomes effective will include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Company may, but
shall not be obligated to, propose from time to time such amendment or
amendments to any registration statement and such supplement or supplements to
any prospectus as, in the light of future developments, may, in the opinion of
the Company's counsel, be necessary or advisable. If the Company shall not
propose such amendment or amendments and/or supplement or supplements within
fifteen days after receipt by the Company of a written request from you to do so
with respect to a material change, you may, at your option, terminate this
Agreement or decline to make offers of the Company's securities until such
amendments are made. The Company shall not file any amendment to any
registration statement or supplement to any prospectus without giving you
reasonable notice thereof in advance; provided, however, that nothing contained
in this Agreement shall in any way limit the Company's right to file at any time
such amendments to any registration statement and/or supplements to any
prospectus, of whatever character, as the Company may deem advisable, such right
being in all respects absolute and unconditional.
3. Solicitation of Orders. You will use your best efforts (but
only in states in which you may lawfully do so) to obtain from investors orders
for shares of the Capital Stock of the Company authorized for issue by the
Company and registered under the 1933 Act, provided that you may in your
discretion refuse to accept orders for shares from any particular applicant. You
may, as agent for the Company, solicit dealers for orders to purchase shares of
the Capital Stock of the Company and may enter into selling agreements with any
such dealers, the form of such agreements to be as mutually agreed upon, from
time to time, by you and the Company. Each dealer must be a member of the
National Association of Securities Dealers, Inc. (the "NASD") or a foreign
dealer not eligible for membership in the NASD who has agreed in acting under
the selling agreement to abide by the rules and regulations of the NASD and not
to use the United States mails or any means of interstate commerce in connection
with the sales of such shares unless such foreign dealer is registered under the
Securities Exchange Act of 1934, as amended, or such registration is not
required.
4. Sale of Shares. Subject to the provisions of paragraph 5
hereof and to such minimum purchase requirements as may from time to time be
currently indicated in the Company's prospectus, you are authorized to sell as
agent on behalf of the Company authorized and unissued shares of the Capital
Stock of the Company registered under the 1933 Act. Such sales may be made by
you on behalf of the Company by transmitting promptly any orders
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received by you for the purchase and redemption of shares to the Company's
transfer agent. The sales price to the public of such shares shall be the public
offering price as defined in paragraph 6 hereof.
Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind deemed by the parties hereto to render sales of the Company's shares not in
the best interest of the Company, the parties hereto may decline to accept any
orders for, or make any sales of, any shares until such time as those parties
deem it advisable to accept such orders and to make such sales, and both parties
shall mutually agree to any such determination.
5. Sale of Shares to Investors by the Company. Any right
granted to you to accept orders for shares or make sales on behalf of the
Company will not apply to shares issued in connection with the merger or
consolidation of any other investment company with the Company or its
acquisition, by purchase or otherwise, of all or substantially all the assets of
any investment company or substantially all the outstanding shares of any such
company, and such right shall not apply to shares that may be offered by the
Company to shareholders by virtue of their being shareholders of the Company,
including shares issued in payment of any dividend or distribution by the
Company.
6. Public Offering Price. All shares of the Company sold to
investors by you as agent for the Company will be sold at the public offering
price. The public offering price for all accepted orders will be the net asset
value per share next computed after receipt of such an order, plus any
applicable sales charge adjusted to the nearest full cent, as may from time to
time be currently indicated in the Company's prospectus with respect to such
order. Net asset value per share shall be computed in the manner provided in the
Company's Articles of Incorporation, as now in effect or as it may be amended.
The time of receipt of such an order shall be the time of its receipt by you or
by a dealer selected by you as provided in paragraph 3 if transmitted on the day
of receipt by such dealer to you prior to the close of your business on that
day. The Company will not, without notifying you in advance, change the sales
charges or dealer discounts applicable to the sales of its shares from those set
forth in its then-current prospectus. You may also purchase as principal shares
of the Company's Capital Stock at net asset value and sell such shares at the
public offering price.
7. Underwriting Discount. The Company shall receive from you
the applicable net asset value on all orders for sales of shares of Capital
Stock accepted by you as agent of the Company if the net sale price thereof has
been deemed, in accordance with the Company's Articles of Incorporation, to be
an asset of the Company in connection with a computation of net asset value for
the sale of any other shares or the purchase or redemption of any shares. You
shall be entitled to retain so much of the difference between the public
offering price and the applicable net asset value as is not reallowed by you as
a discount to dealers. Such reallowance shall be the same for all dealers and
shall conform to such dealer discounts, if any, as may from time to time be
currently indicated in the Company's prospectus. You will reimburse the Company
for any increase in any issue tax paid by it which is attributable to such sales
charge.
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8. Notice of Sale; Delivery of Payments. You will promptly
notify the Company's transfer agent or shareholders' servicing agent of any
orders for sales of shares of Capital Stock accepted by you, and you will
deliver to the Company's shareholders' servicing agent all payments pursuant to
orders for sales accepted by you no later than the first business day following
the receipt by you in your home office of such payments, and, unless payment is
not required under paragraph 7, in no event later than seven days after the
receipt by you of such order, or, in case an extension of time is granted by the
NASD, to the dealer submitting the order, in no event later than the expiration
of such extension of time.
9. Purchase of Shares. You are authorized to purchase as agent
on behalf of the Company shares of the Capital Stock of the Company from record
holders thereof. Such purchases may be made by you on behalf of the Company by
accepting orders placed with you by such holders. The purchase price per share
for all accepted orders will be the net asset value per share next computed
after receipt of such an order, in the manner provided in the Company's Articles
of Incorporation, as now in effect or as it may be amended. The time of receipt
of such an order shall be the time of its receipt by you or by a dealer selected
by you as provided in paragraph 3 if transmitted on the day of receipt by such
dealer to you prior to the close of your business on that day. You will promptly
notify the Company's transfer agent or shareholders' servicing agent of any such
order accepted by you and will, if the shares subject to such order have been
deemed to be no longer outstanding in connection with a computation of net asset
value for the sale of any shares by the Company or the purchase or redemption of
any shares by it, deliver to such agent a proper request for purchase of such
shares by the Company and any stock certificates for such shares not later than
the first business day following the receipt by you in your home office of such
request and certificates, and in no event later than seven days after the
receipt by you of such order.
10. Suspension of Sales and Purchases. If and whenever the
determination of asset value is suspended pursuant to the Company's Articles of
Incorporation, and such suspension has become effective, until such suspension
is terminated, no further orders for the sale or purchase of shares shall be
accepted by you except such orders placed with you before you had knowledge of
the suspension. In addition, the Company reserves the right to suspend sales and
purchases and your authority to accept orders for sales and purchases of shares
on behalf of the Company if, in the judgment of a majority of its Board of
Directors or a majority of the Executive Committee of its Board of Directors, if
such Committee exists, it is in the best interests of the Company to do so, such
suspension to continue for such period as may be determined by such majority;
and in that event, no shares will be sold or purchased by the Company or by you
on behalf of the Company while such suspension remains in effect except for
shares necessary to cover orders accepted by you before you had knowledge of the
suspension. The Company will notify you promptly of any such suspension of the
determination of net asset value or of any such suspension of sales and
purchases of shares.
The Company agrees to advise you immediately in writing:
(a) of any request by the SEC for amendments to the
registration statement or prospectus then in effect or for additional
information;
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(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or
prospectus then in effect or the initiation of any proceeding for that
purpose;
(c) of the happening of any event, to the best of its
knowledge, which makes untrue any statement of a material fact made in
the registration statement or prospectus then in effect or which
requires the making of a change in such registration statement or
prospectus in order to make the statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendments
to any registration statement or prospectus which may from time to time
be filed with the SEC that materially affect the performance of your
services under this Agreement.
11. Expenses. The Company will pay all fees and expenses in
connection with the preparation and filing of any registration statement and
prospectus or amendments thereto under the 1933 Act covering the issue and sale
of its shares and in connection with the qualification of shares for sale in the
various states and countries in which the Company shall determine it advisable
to qualify such shares for sale, the costs of all stock certificates and the
fees and expenses of its transfer agent or shareholders' servicing agent or
registrar. It will also pay any issue taxes (subject to partial reimbursement
under paragraph 7 hereof). You will pay all expenses of printing prospectuses
and other sales literature (except copies of prospectuses and other sales
literature which may from time to time be sent to existing shareholders of the
Fund), all fees and expenses in connection with your qualification as a dealer
in the various states and countries, and all other expenses in connection with
the sale and offering for sale of the shares of the Company which are not
payable by the Company pursuant to the provisions of this paragraph 11.
12. Conformity with Law. You agree that in selling and
purchasing the shares of the Company you will duly conform in all respects with
the laws of the United States and any state or country in which such shares may
be offered for sale by you pursuant to this Agreement.
13. Indemnification. You agree to indemnify and hold harmless
the Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all losses, claims, damages, liabilities or litigation expenses
(including legal and other expenses) to which the Company or such directors,
officers or controlling person may become subject under such Act or under any
other statute, at common law or otherwise, arising out of the acquisition of any
shares by any person or the sale of any shares by any person to the Company
through you which (i) may be based upon any wrongful act by you or any of your
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 or prospectus covering shares of the Company 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 or confirmed in writing to the Company by you; provided,
however, that in no case is your indemnity in favor of a director or officer or
any other person deemed to protect such director or officer or other person
against any liability to which any such person would otherwise be subject by
reason of willful misfeasance,
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bad faith, or gross negligence in the performance of his duties or by reason of
his reckless disregard of obligations and duties under this Agreement.
The Company agrees to indemnify and hold harmless you and each
of your directors and officers and each person, if any, who controls you within
the meaning of Section 15 of the 1933 Act against any and all losses, claims,
damages, liabilities or litigation expenses (including legal and other expenses)
to which you or such directors, officers or controlling person may become
subject under such Act or under any other statute, at common law or otherwise,
arising out of the acquisition of any shares by any person or the sale of any
shares by any person to the Company through you which (i) may be based upon any
wrongful act by the Company or any of its employees or representatives, or (ii)
except as described in clause (ii) of the preceding paragraph, may be based upon
any untrue statement or alleged untrue statement of a material fact contained in
a registration statement or prospectus covering shares of the Company or any
amendment thereof or supplement thereto or omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that in no case is the
Company's indemnity in favor of a director or officer or any other person deemed
to protect such director or officer or other person against any liability to
which any 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 obligations and duties under this
Agreement. You hereby waive any rights to indemnification concerning your
obligations and duties hereunder to which you might be entitled under the
Company's By-Laws.
You are not authorized to give any information or to make any
representations on behalf of the Company in connection with the sale or purchase
of shares of the Company other than the information and representations
contained in a registration statement or prospectus covering shares of the
Company, as such registration statement and prospectus may be amended or
supplemented from time to time. No person other than you is authorized to act as
agent for the Company in connection with the offering or sale of shares of the
Company to the public or otherwise.
14. Duration and Termination of this Agreement. This Agreement
shall become effective as of the date hereof and will continue for an initial
two-year term and will continue from year to year thereafter, but only so long
as such continuance is specifically approved at least annually by the Board of
Directors of the Company or by vote of a majority of the outstanding voting
securities of the Company. In addition, the Company may not renew or perform
this Agreement unless the terms thereof and any renewal thereof have been
approved by the vote of a majority of directors of the Company who are not
interested persons of you or of the Company cast in person at a meeting called
for the purpose of voting on such approval. This Agreement may, on 60 days'
written notice, be terminated at any time without the payment of any penalty by
the Board of Directors of the Company, by vote of a majority of the outstanding
voting securities of the Company, or by you. This Agreement shall automatically
terminate in the event of its assignment. In interpreting the provisions of this
paragraph 14, the definitions contained in Section 2(a) of the 1940 Act and
rules thereunder (particularly the definitions of "interested person",
"assignment", "voting security" and "vote of a majority of the outstanding
voting securities") shall be applied.
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15. Amendment of this Agreement. No provision 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 Company should at any
time deem it necessary or advisable in the best interests of the Company 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, it should notify you of
the form of such amendment, and the reasons therefor, and if you should decline
to assent to such amendment, the Company may terminate this Agreement forthwith.
If you should at any time request that a change be made in the Company'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 you are or may be a member,
relating to the sale of the shares of the Company, and the Company should not
make such necessary change within a reasonable time, you may terminate this
Agreement forthwith.
16. Miscellaneous.
(a) 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.
(b) The Company recognizes that, except to the extent
otherwise agreed to by the parties hereto, your directors, officers and
employees may from time to time serve as directors, trustees, officers and
employees of corporations and business trusts (including other investment
companies), and that you or your affiliates may enter into distribution or other
agreements with other corporations and trusts.
(c) In the event that the Board of Directors of any additional
portfolios indicates by vote that such portfolios are to be made parties to this
Agreement, whether such portfolios were in existence at the time of the
effective date of this Agreement or subsequently formed, Schedule A hereto shall
be amended to reflect the addition of such new portfolios and such new
portfolios shall thereafter become parties hereto. In the event that any of the
portfolios on Schedule A terminates its registration as a management investment
company, or otherwise ceases operations, Schedule A shall be amended to reflect
the deletion of such portfolio and its various classes.
(d) This Agreement shall be governed by the internal laws of
the Commonwealth of Massachusetts without giving effect to principles of
conflicts of laws.
(e) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule, or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors.
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You also agree that if, as a result of your breach of this
warranty, the Company is subjected to any fine, penalty, or other regulatory
sanction or damages, you will reimburse the Company for such fine, penalty or
damages and any related costs and expenses, including but not limited to
attorney fees and expenses.
If you are in agreement with the foregoing, please sign the
form of acceptance and the accompanying counterpart of this letter and return
such counterpart to the Company, whereupon this letter shall become a binding
contract.
Yours very truly,
First Eagle SoGen Funds, Inc.
By:
----------------------------------
Name:
Title: Secretary
The foregoing Agreement is hereby
accepted as of the date thereof.
Xxxxxxx and X. Xxxxxxxxxxxx, Inc.
By:
--------------------------------
Name:
Title: Co-President
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SCHEDULE A
FIRST EAGLE SOGEN FUNDS, INC.
First Eagle SoGen Global Fund
First Eagle SoGen Overseas Fund
First Eagle SoGen Gold Fund
First Eagle U.S. Value Fund
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