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Exhibit 6
UNDERWRITING AGREEMENT
AGREEMENT made as of this 20th day of December, 1996, between IMPACT
MANAGEMENT INVESTMENT TRUST, INC., a Massachusetts Business Trust (the
"Trust"), and MANAGEMENT SECURITIES, INC., a Florida corporation (the
"Underwriter").
1. The Underwriter will use its best efforts to find purchasers for
and the Trust will sell, issue and deliver from time to time such purchasers,
such part of the authorized shares of capital stock of the Trust remaining
unissued as from time to time shall be effectively registered under the
Securities Act of 1933, as amended (the "33 Act"), at prices determined as
hereinafter provided and on the terms hereinafter set forth, all subject to
applicable Federal and State laws and regulations and to the charter of the
Trust.
2. The Underwriter shall present all orders received by it for shares
of capital stock of the Trust to the Trust by telegraphic or written purchase
orders and each such order shall be subject to the acceptance or rejection by
the Trust in its sole discretion.
2.1 Notwithstanding any other provision hereof, whenever in
the judgment of the President or a Vice President and the Treasurer or
Secretary of the Trust such action is warranted by market, economic or
political conditions or by abnormal circumstances of any kind, the Trust may
suspend the offer of shares in effect and may, without liability under the
provisions of this Agreement, decline to accept or confirm any orders or make
any sales of shares or capital stock under this Agreement until such time as
the Trust shall deem it advisable to resume the offering of such shares,
provided that as soon as practicable after the taking of any such action a
special meeting of the Board of Directors shall be called to be held as soon as
practicable thereafter to determine whether or not such action shall then
continue to be effective, and the period during, or the circumstance under,
which such action shall continue or cease to be effective. During any period
during which the offer of shares shall be suspended or the Trust shall decline
to accept or confirm any such orders or make any such sales, the Trust shall be
under no obligation to confirm or accept any such orders or make any such sale
at any price.
2.2 The Trust will use its best efforts to keep effectively
registered under the 33 Act for sale as herein contemplated such shares of its
capital stock as the Underwriter shall reasonably request and as the Securities
and Exchange Commission (the "SEC") shall permit to be so registered.
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3. Sales by the Underwriter shall be made as agent for the Trust and
all such sales be made to or through qualified dealers or others in such
manner, not inconsistent with the provisions hereof and the then effective
registration statement of the Trust under the 33 Act, (and related prospectus),
as the Underwriter may determine from time to time.
3.1 The Underwriter may form a group of underwriters to
participate with it in performing under this Agreement, and the composition of
such group may be changed from time to time. If such group shall be formed, the
Underwriter shall remain the principal underwriter, and be the representative
of any other underwriters with the terms and conditions of this Agreement. It
is understood and agreed that the Impact Financial Networks, Inc., under
agreement with the Underwriter will be primarily responsible for the
preparation and supply of sales literature to all underwriters. The Underwriter
will be paid a fee by the other underwriters for managing the underwriting
group and providing sales literature, payable out of the premium above net
asset value at which underwriters are permitted to sell shares of capital stock
of the Trust. The Trust reserves the right to engage and contract with other
principal underwriters for the sale and distribution of its shares.
3.2 The Underwriter will not make, or authorize any dealers
or others to make, (a) any short sales of shares or (b) any sales of such
shares to any officers, directors or partners of the Trust or of the
Underwriters or of any corporation or firm furnishing investment advisory,
managerial, or supervisory services to the Trust unless such sales are at the
price then available to the public and unless the Underwriter shall be advised
that the purchases are for investment and that such purchasers will advise the
Underwriter of any sales of shares so purchased made less than two months after
the date of purchase and the Underwriter will promptly advise the Trust of all
such sales of shares, made less than two months after the purchase, or which it
is advised. The Underwriter shall order shares of capital stock of the Trust
from the Trust only to the extent that it shall have received purchase orders
therefor.
4. All shares of capital stock offered for sale or sold by the
Underwriter shall be so offered or sold at a price per share (the "Offering
Price") equal to the net asset value per share (determined as authorized from
time to time by the Board of Directors of the Trust pursuant to its charter),
plus a premium of not more than 4.75% of the offering price thereof. If the
Offering Price per share so determined is not an exact multiple of one cent it
shall be adjusted to the nearest cent. In all cases the Offering Price per
share for the size of purchase shall be strictly in accordance with the
Offering Price described in the currently effective prospectus of the Trust.
4.1 For the purpose of determining the offering price, the
net asset value of any such shares shall be so determined in accordance with
the then current offering prospectus. The Trust, or its authorized agent, will
promptly furnish to the
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Underwriter a statement of the Offering Price as often as such net asset value
is determined and such statement shall at the request of the Underwriter show
the basis of computation of the Offering Price.
4.2 Orders presented by the Underwriter for shares, if
accepted by the Trust, shall be accepted and confirmed by it or its duly
authorized agent at the Offering Price in effect at the time of its receipt of
such order at its principal office.
4.3 The Underwriter will not in any event (a) offer for sale
or sell shares of capital stock in excess of the number then effectively
registered under the 33 Act, and available for sale, or (b) offer for sale or
sell any shares in violation of any applicable Federal or State law, rule or
regulation.
4.4 The public offering price may be reduced within the
limits of the above-mentioned premium in the case of single sales (as defined
in the prospectus forming part of such registration statement at the time when
the same becomes effective) in amounts equal to or exceeding $100,000 on such
basis or bases as may from time to time be satisfactory to the Trust and set
forth in its then current offering prospectus.
4.5 Out of the above-mentioned premium, the Underwriter shall
allow commissions or concessions to dealers and may allow them to others in its
discretion in such amounts as the Underwriter shall determine from time to
time; except as may be otherwise determined by the Underwriter and the Trust
from time to time, such commissions or concessions shall be uniform to all
dealers.
4.6 The Underwriter will require all dealers to conform to
the provisions hereof and the registration statement (and related prospectus)
at the time in effect under the 33 Act with respect to the public offering
price of the shares, and no dealer shall in any event withhold the placing of
orders for the shares so that dealers shall profit as a result of such
withholding by a change in the net asset value of the shares from that used in
determining the price to the customer of such dealer or otherwise.
5. At or prior to the delivery by the Trust to or on the order of the
Underwriter of certificates for any share of capital stock, the Underwriter
will pay or cause to be paid to the Trust or to its order an amount equal to
the offering Price of such shares at which such order has been confirmed, less
the premium included therein as aforesaid which shall constitute the entire
sales load (including the entire compensation to the Underwriter and of any
dealer) other than incidental issuance of sale expenses to be borne by the
issuer. Delivery of certificates shall be made to or on the order of the
Underwriter as promptly as practicable after confirmation of its order thereof.
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Certificates shall be registered in such names and amounts as the Underwriter
may specify.
6. The Underwriter, except as hereinafter stated, will pay or cause to
be paid 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 shares issued or sold hereunder, including, without limiting
the generality of the foregoing, (i) all expenses of preparing, printing and
distributing or disseminating any sales literature, advertising and selling
aids in connection with the offering of the shares for sale (except that such
expenses shall not include expenses incurred by the Trust in connection with
the preparation, printing, and distribution of prospectuses and of any report
or other communication to stockholders to the extent that such expenses are
necessarily incurred to effect compliance by the Trust with any Federal or
State law or to comply with the Articles of Incorporation or By-Laws of the
Trust and director's fees and expenses necessarily incurred by directors in
attendance at directors' meetings); (ii) expenses of advertising performed by
the Underwriter in connection with such offerings. No transfer taxes, if any,
which may be payable in connection with the issue or delivery of shares sold as
herein shall be borne by the Trust, and the Underwriter will indemnify and hold
the Trust harmless against liability for all such transfer taxes.
7. The Trust 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 of capital stock in such states as the Underwriter
may reasonably request (it being understood that the Trust shall be required
without its consent to qualify to do business in any jurisdiction or to comply
with any requirement which in its opinion is unduly burdensome). The
Underwriter, at its own expense, will effect all qualifications as dealer or
broker or otherwise under all applicable state or Federal laws required in
order that the shares may be sold in as broad a territory as practicable.
8. The Trust will furnish to the Underwriter from time to time such
information with respect to its shares as the Underwriter may reasonably
request for use in connection with the sale of shares. The Underwriter will not
use or distribute or authorize the use, distribution or dissemination by its
dealers or others in connection with such sale of any literature, advertising
or selling aids in any form or through any medium, written or oral, without
prior written specific approval thereof by the Corporation.
9. Nothing herein contained shall limit the right of the Trust, in its
absolute discretion, to issue or sell shares of its capital stock for such
other considerations (whether in connection with the acquisition of assets or
shares or securities of another corporation or entity or with the merger or
consolidation of any other corporation into or with the Trust, or otherwise) as
and to the extent permitted by its charter and any applicable laws, or to issue
or sell any such shares directly to the shareholders of the
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Trust, upon such terms and conditions and for such consideration, if any, as
may be determined by the Board of Trustees, whether pursuant to the
distribution of subscription or purchase rights to such holders or by way of
dividends or otherwise.
10. At the request of the Trust, the Underwriter agrees to act as
agent for the Trust for the repurchase or redemption of shares of the Trust at
such prices as the Trust from time to time shall prescribe.
11. In selling or reacquiring shares, the Underwriter agrees to
conform to the requirements of all state and Federal laws relating to such sale
or reacquisition, as the case may be, and will indemnify and hold the Trust
harmless 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 charter of
the Trust and any fundamental policies adopted by the Trust pursuant to the
Investment Company Act of 1940, as amended (the "40 Act"), notice of which has
been given to the Underwriter.
11.1 Neither the Underwriter, any dealer nor any other person
is authorized by the Trust to give any information or to make any
representation other than those contained (a) in the latest effective
registration statement (and related prospectus) filed with the SEC under the 33
Act as such registration statement (and prospectus) may be amended from time to
time, or (b) in any statement expressly authorized by the Trust for use in
connection with any sale or reacquisition of capital stock for the account of
the Trust.
12.1 The Underwriter will:
12.1(a) not, directly or indirectly (i) declare or pay any
dividends or distributions (other than dividends payable in its capital stock),
or (ii) use any part of its assets or property for the purchase, redemption or
other retirement of shares of its capital stock, or (iii) make any other
distribution or transfer of assets to its stockholders, unless in any such
case, after giving effect to such action, the excess of its assets over its
liabilities shall be at least $5,000;
12.2(b) at all times keep its assets (other than those, such
as office furniture and fixtures, equipment, records and the like required for
the operation of the business herein contemplated) in cash or invested in
readily marketable securities;
12.3(c) not incur any indebtedness on account of borrowing or
any other indebtedness except in the ordinary course of business in the
performance of its obligations under this Agreement.
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12.4 Determination required hereunder shall be made by the
independent public accountants of the Trust or of the Underwriter in accordance
with the sound accounting practice at such reasonable intervals as the Trust
may from time to time require.
13. This Agreement shall continue in effect until such time as there
remains no unsold balance of shares of capital stock effectively registered
under the 33 Act; provided, however, that (a) this Agreement shall continue in
effect for a period more than two years from the date hereof only so long as
such continuance is specifically approved at least annually by the Board of
Directors or a majority of the outstanding voting securities of the Trust, and
(b) 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, and (c) without prejudice to any other
remedies, the Trust may terminate this Agreement at any time immediately upon
failure of fulfillment of any of the obligations of the Underwriter hereunder
or any of the conditions set forth in paragraph 12 hereof.
13.1 This Agreement shall automatically terminate in the
event of its assignment by the Underwriter, the term "assignment" having the
meaning defined in Section 2(a)(4) of the 40 Act.
14. Any notice under this Agreement shall be in writing addressed and
delivered by mail, postage prepaid, to the party to whom addressed at the
address given below, or at such other address as such party shall theretofore
have designated (by notice given to the other party as herein provided) in
writing for the receipt of such notice:
TO THE TRUST: Impact Management Investment Trust
1875 Ski Xxxx Xxxxxx Xxxxx, Xxxxx Xxx
Xxxxxxxxx Xxxxxxx, XX 00000
TO THE UNDERWRITER: Management Securities, Inc.
1875 Ski Xxxx Xxxxxx Xxxxx, Xxxxx Xxx
Xxxxxxxxx Xxxxxxx, XX 00000
IN WITNESS WHEREOF, the Trust and the Underwriter have each caused
this Agreement to be executed on its behalf by an officer thereunto duly
authorized on the day and year first above written.
Impact Management Investment Trust Management Securities, Inc.
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By: /s/XXXXXX XXXXXXX By: /s/XXXXXXX XXXXX
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Title: President Title: Principal
