EX99.23(e)(8)
UNDERWRITING AGREEMENT
between
SCOUT CAPITAL PRESERVATION FUND, INC.
and
XXXXX & XXXXXX, INC.
THIS AGREEMENT, made and entered into this 23rd day of
February, 1998, by and between SCOUT CAPITAL PRESERVATION 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 certain costs related to all costs of all management,
supervisory and administrative services required in the normal
operation of the Fund. This includes investment management and
supervision; fees of the custodian, independent public
accountants and legal counsel; remuneration of directors,
officers and other personnel; 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 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.
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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. Xxxxx & Xxxxxx, Inc. 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.
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
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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, 1999 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.
SCOUT CAPITAL PRESERVATION FUND, INC.
By /s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
President
ATTEST:
/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Secretary
XXXXX & BABSON, INC.
By /s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
President
ATTEST:
/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Secretary
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