UNDERWRITING AGREEMENT
BETWEEN
X. XXXX PRICE GROWTH STOCK FUND, INC.
AND
X. XXXX PRICE MARKETING, INC.
THIS UNDERWRITING AGREEMENT, made as of 1st day of May, 1981, by and between X.
XXXX PRICE GROWTH STOCK FUND, INC., a corporation organized and existing under
the laws of the State of Maryland (hereinafter called the "Fund"), and X. XXXX
PRICE MARKETING, INC., a corporation organized and exiting under the laws of the
State of Maryland (hereinafter called the "Distributor").
WITNESSETH:
WHEREAS, the Fund is engaged in business as an open-end management investment
company and is registered as such under the federal Investment Company Act of
1940, as amended ("ICA-40"); and
WHEREAS, the Distributor proposes to engage principally in the business of
distributing shares of the investment companies sponsored and managed by either
X. Xxxx Price Associates, Inc. ("Price Associates") or Xxxx Xxxxx-Xxxxxxx
International, Inc. ("Xxxxx-Xxxxxxx") and is registered as a broker-dealer under
the Securities and Exchange Act of 1934, as amended, ("SEA-34") and is a member
of the National Association of Securities Dealers, Inc. ("NASD"); and
WHEREAS, the Fund desires the Distributor to act as the distributor in the
public offering of its shares;
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1.
Delivery of Fund Documents. The Fund has furnished Distributor with copies,
-------- -- ---- ---------
properly certified or authenticated, of each of the following:
(a)
Articles of Incorporation, dated April 5, 1950, as amended to date.
(b) By-Laws of the Fund as in effect on the date hereof.
(c) Resolutions of the Board of Directors of the Fund
PAGE 40
selecting Distributor as principal underwriter and approving this form of
agreement.
The Fund shall furnish the Distributor from time to time with copies, properly
certified or authenticated, of all the amendments of, or supplements to, the
foregoing, if any.
The Fund shall furnish Distributor promptly with properly certified or
authenticated copies of any registration statements filed by it with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
("SA-33") or ICA-40, together with any financial statements and exhibits
included therein, and all amendments or supplements thereto hereafter filed.
2.
Sale of Shares. Subject to the provisions of Paragraphs 3, 4 and 6 hereof, and
---- -- ------
to such minimum purchase requirements as may from time to time be currently
indicated in the Fund's Prospectus, the Distributor is authorized to sell, as
agent on behalf of the Fund, shares of the Fund's capital stock ("Shares")
authorized for issuance and registered under SA-33. Distributor may also sell
Shares under offers of exchange between and among the investment companies for
which Price Associates and/or Xxxxx-Xxxxxxx act as investment advisers ("Price
Funds"). Distributor may also purchase as principal such Shares for resale to
the public. Such sale will be made by Distributor on behalf of the Fund by
accepting unconditional orders to purchase the Shares placed with Distributor by
investors and such purchases will be made by Distributor only after acceptance
by Distributor of such orders. The sales price to the public of such Shares
shall be the public offering price as defined in Paragraph 5 hereof.
0.Xxxx of Shares by Fund. The rights granted to the Distributor shall be
---- -- ------ -- ----
non-exclusive in that the Fund reserves the right to sell its Shares to
investors pursuant to applications received and accepted by the Fund or its
transfer agent. Further, the Fund reserves the right to issue Shares in
connection with the merger or consolidation of any other investment company,
trust or personal holding company with the Fund or the Fund's acquisition by the
purchase or otherwise, of all or substantially all of the assets of an
investment company, trust or personal holding company. Any right granted to
Distributor to accept orders for Shares, or to make sales on behalf of the Fund
or to purchase Shares for resale, will not apply to Shares issued in connection
with the merger or consolidation of any other investment company with the Fund
or its acquisition by purchase or otherwise, of all or substantially all of the
assets of any investment company, trust or personal holding company, or
substantially all of the outstanding shares of interests
PAGE 41
of any such entity, and such right shall not apply to Shares that may be offered
by the Fund to shareholders by virtue of their being shareholders of the Fund.
4.
Shares Covered by this Agreement. This Agreement relates to the issuance and
------ ------- -- ---- ---------
sale of Shares that are dully authorized and registered and available for sale
by the Fund, including redeemed or purchased Shares if and to the extent that
they may be legally sold and if, but only if, the Fund authorizes the
Distributor to sell them.
5.
Public Offering Price. All Shares sold by the Distributor pursuant to this
------ -------- -----
Agreement shall be sold at the public offering price. The public offering price
for all accepted subscriptions will be the net asset value per share, as
determined in the manner provided in the Fund's Articles of Incorporation, as
now in effect, or as they may be amended (and as reflected in the Fund's then
current Prospectus), next after the order is accepted by the Distributor. The
Distributor will process orders submitted by brokers for the sale of Shares at
the public offering price exclusive of any commission charged by such broker to
his customer.
6.
Suspension of Sales. If and whenever the determination of net asset value is
---------- -- -----
suspended and until such suspension is terminated, no further orders for Shares
shall be accepted by the Distributor except such unconditional orders placed
with Distributor before it had knowledge of the suspension. In addition, the
Fund reserves the right to suspend sales and Distributor's authority to accept
orders for Shares on behalf of the Fund if, in the judgment of the Board of
Directors of the Fund, it is in the best interests of the Fund to do so, such
suspension to continue for such period as may be determined by the Board of
Directors of the Fund; and in that event, no orders to purchase Shares shall be
processed or accepted by the Distributor on behalf of the Fund while such
suspension remains in effect except for Shares necessary to cover unconditional
order acceptable by Distributor before it had knowledge of the suspension,
unless otherwise directed by the Board of Directors of the Fund.
7.Solicitation of Orders. In consideration of the rights granted to the
------------ -- ------
Distributor under this Agreement, Distributor will use its best efforts (but
only in states in which Distributor may lawfully do so) to obtain from investors
unconditional orders for Shares authorized for issuance by the Fund and
registered under SA-33, provided that Distributor may in its discretion reject
any order to purchase shares. This does not obligate the Distributor to
register or maintain its registration as a broker or dealer under
PAGE 42
the state securities laws of any jurisdiction if, in the discretion of the
Distributor, such registration is not practical or feasible. The Fund shall
make available to the Distributor at the expense of the Distributor such number
of copies of the Fund's currently effective Prospectus as the Distributor may
reasonably request. The Fund shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of Shares.
8.
Authorized Representations. The Fund is not authorized by the Distributor to
---------- ---------------
give on behalf of the Distributor any information or to make any representations
other than the information and representations contained in a registration
statement or prospectus filed with the SEC under SA-33 and/or ICA-40, covering
Shares, as such registration statement and prospectus may be amended or
supplemented from time to time.
Distributor is not authorized by the Fund to give on behalf of the Fund any
information or to make any representations in connection with the sale of Shares
other than the information and representations contained in a registration
statement or prospectus filed with the Securities and Exchange Commission
("SEC") under SA-33 and/or ICA-40, covering Shares, as such registration
statement and prospectus may be amended or supplemented from time to time, or
contained in shareholder reports or other material that may be prepared by or on
behalf of the Fund for the Distributor's use. This shall not be construed to
prevent the Distributor from preparing and distributing tombstone ads and sales
literature or other material as it may deem appropriate. No person other than
Distributor is authorized to act as principal underwriter (as such term is
defined in ICA-40, as amended) for the Fund.
9.
Registration and Sale of Additional Shares. The Fund will, from time to time,
------------ --- ---- -- ---------- ------
use its best efforts to register under SA-33, such Shares of the Fund as
Distributor may reasonably be expected to sell on behalf of the Fund. In
connection therewith, the Fund hereby agrees to register an indefinite number of
Shares pursuant to Rule 24f-2 under ICA-40, and to register such Shares as shall
be deemed advisable pursuant to Rule 24e-2 under ICA-40, as amended. The Fund
will, in cooperation with the Distributor, take such action as may be necessary
from time to time to qualify such Shares (so registered or otherwise qualified
for sale under SA-33), in any state mutually agreeable to the Distributor and
the Fund, and to maintain such qualification.
10. Expenses. The Fund shall pay all fees and expenses:
--------
PAGE 43
a.
in connection with the preparation, setting in type and filing of any
registration statement and prospectus under SA-33 and/or ICA-40, and any
amendments or supplements that may be made from time to time;
b.
in connection with the registration and qualification of Shares for sale in the
various states in which the Fund shall determine it advisable to qualify such
Shares for sale. (Including registering the Fund as a broker or dealer or any
officer of the Fund or other person as agent or salesman of the Fund in any
state.);
c. of preparing, setting in type, printing and mailing any report or other
communication to shareholders of the Fund in their capacity as such;
d.
of preparing, setting in type, printing and mailing Prospectuses annually to
existing shareholders;
e.
in connection with the issue and transfer of Shares resulting from the
acceptance by Distributor of orders to purchase Shares placed with the
Distributor by Investors, including the expenses of confirming such purchase
orders; and
f.
of any issue taxes or (in the case of Shares redeemed) any initial transfer
taxes.
The Distributor shall pay (or will enter into arrangements providing that
persons other than Distributor shall pay) all fees and expenses:
a.
of printing and distributing any Prospectuses or reports prepared for its use in
connection with the distribution of Shares to the public;
b.
of preparing, setting in type, printing and mailing any other literature used by
the Distributor in connection with the distributor of the Shares to the public;
c.
of advertising in connection with the distribution of such Shares to the public;
d.
incurred in connection with its registration as a broker or dealer or the
registration or qualification of its officers, directors or representatives
under Federal and state laws; and
e. incurred in connection with the sale and offering for
PAGE 44
sale of Shares which have not been herein specifically allocated to the Fund.
11.
Conformity With Law. Distributor agrees that in selling Shares it shall duly
---------- ---- ---
conform in all respects with the laws of the United States and any state in
which such Shares may be offered for sale by Distributor pursuant to this
Agreement and to the rules and regulations of the NASD.
12
Independent Contractor. Distributor shall be an independent contractor and
----------- ----------
neither Distributor, nor any of its officers, directors, employees, or
representatives is or shall be an employee of the Fund in the performance of
Distributor's duties hereunder. Distributor shall be responsible for its own
conduct and the employment, control, and conduct of its agents and employees and
for injury to such agents or employees or to others through its agents or
employees. Distributor assumes full responsibility for its agents and employees
under applicable statutes and agrees to pay all employee taxes thereunder.
13.
Indemnification. Distributor agrees to indemnify and hold harmless the Fund and
---------------
each of its directors, officers, employees, representatives and each person, if
any, who controls the Fund within the meaning of Section 15 of SA-33 against any
and all losses, liabilities, damages, claims or expenses (including the
reasonable costs of investigating or defending any alleged loss, liability,
damage, claim or expense and reasonable legal counsel fees incurred in
connection therewith) to which the Fund or such of its directors, officers,
employees, representatives or controlling personal may become subject under
SA-33, under any other statute, at common law, or otherwise, arising out of the
acquisition of any Shares by any person which (i) may be based upon any wrongful
act by Distributor or any of Distributor's directors, officers, 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,
prospectus, shareholder report or other information covering Shares filed or
made public by the Fund 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 to
the Fund by Distributor. In no case (i) is Distributor's indemnity in favor of
the Fund, or any person indemnified to be deemed to protect the Fund or such
indemnified person against any liability to which the Fund or such person would
otherwise by subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his duties or by reason of his reckless
disregard
PAGE 45
of his obligations and duties under this Agreement or (ii) is Distributor to be
liable under its indemnity agreement contained in this Paragraph with respect to
any claim made against the Fund or any person indemnified unless the Fund or
such person, as the case may be, shall have notified Distributor in writing of
the claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon the Fund or upon such person (or after the Fund or such person shall
have received notice of such service on any designated agent). However, failure
to notify Distributor of any such claim shall not relieve Distributor from any
liability which Distributor may have to the Fund or any person against whom such
action is brought otherwise than on account of Distributor's indemnity agreement
contained in this Paragraph.
Distributor shall be entitled to participate, at its own expense, in the
defense, or, if Distributor so elects, to assume the defense of any suit brought
to enforce any such claim, but, if Distributor elects to assume the defense,
such defense shall be conducted by legal counsel chosen by Distributor and
satisfactory to the Fund, to its directors, officers, employees or
representatives, or to any controlling person or persons, defendant or
defendants, in the suit. In the event that Distributor elects to assume the
defense of any such suit and retain such legal counsel, the Fund, its directors,
officers, employees, representatives or controlling person or persons, defendant
or defendants in the suit, shall bear the fees and expenses of any additional
legal counsel retained by them. If Distributor does not elect to assume the
defense of any such suit, Distributor will reimburse the Fund, such directors,
officers, employees, representatives or controlling person or persons, defendant
or defendants in such suit for the reasonable fees and expenses of any legal
counsel retained by them. Distributor agrees to promptly notify the Fund of the
commencement of any litigation or proceedings against it or any of its
directors, officers, employees or representatives in connection with the issue
or sale of any Shares.
The Fund agrees to indemnify and hold harmless Distributor and each of its
directors, officers, employees, representatives and each person, if any, who
controls Distributor within the meaning of Section 15 of SA-33 against any and
all losses, liabilities, damages, claims or expenses (including the reasonable
costs of investigating or defending any alleged loss, liability, damage, claim
or expense and reasonable legal counsel fees incurred in connection therewith)
to which Distributor or such of its directors, officers, employees,
representatives or controlling person may become subject under SA-33, under any
other statute, at common law, or otherwise, arising
PAGE 46
out of the acquisition of any Shares by any person which (i) may be based upon
any wrongful act by the Fund or any of Fund's directors, officers, 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,
prospectus, shareholder report or other information covering Shares filed or
made public by the Fund 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 to
Distributor by the Fund. In no case (i) is the Fund's indemnity in favor of the
Distributor, or any person indemnified to be deemed to protect the Distributor
or such indemnified personal against any liability to which he Distributor or
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 his obligations and duties under this Agreement, or (ii)
is the Fund to be liable under its indemnity agreement contained in this
Paragraph with respect to any claim made against Distributor, or person
indemnified unless Distributor, or such person, as the case may be, shall have
notified the Fund in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon Distributor or upon such person (or after
Distributor or such person shall have received notice of such service on any
designated agent). However, failure to notify the Fund of any such claim shall
be relieve the Fund from any liability which the Fund may have to Distributor or
any person against whom such action is brought otherwise than on account of the
Fund's indemnity agreement contained in this Paragraph.
The Fund shall be entitled to participate, at its own expense, in the
defense, or, if the Fund so elects, to assume the defense of any suit brought to
enforce any such claim, but, if the Fund elects to assume the defense, such
defense shall be conducted by legal counsel chosen by the Fund and satisfactory
to Distributor, to its directors, officers, employees or representatives, or to
any controlling person or persons, defendant or defendants, in the suite. In
the event that the Fund elects to assume the defense of any such suit and retain
such legal counsel, Distributor, its directors, officers, employees,
representatives or controlling person or persons, defendant or defendants in the
suit, shall bear the fees and expenses of any additional legal counsel retained
by them. If the Fund does not elect to assume the defense of any such suit, the
Fund will reimburse Distributor, such directors, officers, employees,
representatives or controlling person or persons,
PAGE 47
defendant or defendants in such suit for the reasonable fees and expenses of any
legal counsel retained by them. The Fund agrees to promptly notify Distributor
of the commencement of any litigation or proceeding against it or any of its
directors, officers, employees or representatives in connection with the issue
or sale of any Shares.
14.Duration and Termination of This Agreement. This Agreement shall become
-------- --- ----------- -- ---- ---------
effective upon its execution ('effective date") and, unless terminated as
provided, shall remain in effect through April 30, 1982, and from year to year
thereafter, but only so long as such continuance is specifically approved at
least annually by the vote of a majority of the directors of the Fund who are
not interested persons of Distributor or of the Fund, cast in person at a
meeting called for the purpose of voting on such approval, and by vote of the
directors of the Fund or of a majority of the outstanding voting securities of
the Fund. This Agreement may, on 60 days' written notice, be terminated at any
time, without the payment of any penalty, by the vote of a majority of the
directors of the Fund who are not interested persons of Distributor or the Fund,
by a vote of a majority of the outstanding voting securities of the Fund, or by
Distributor. This Agreement will automatically terminate the event of its
assignment. In interpreting the provisions of this Paragraph 3, the definitions
contained in Section 2(a) of ICA-40 (particularly the definitions of "interested
person", "assignment", and "majority of the outstanding voting securities")
shall be applied.
15.
Amendment of this Agreement. No provisions 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 Fund should at any time deem it necessary or
advisable in the best interests of the Fund 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 and notifies Distributor of the forum of such amendment, and
the reasons therefor, and if Distributor should decline to assent to such
amendment, the Fund may terminate this Agreement forthwith. If Distributor
should at any time request that a change be made in the Fund'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 Distributor is or may be a member relating to
the sale of Shares, and the Fund should not make such necessary change within a
reasonable time, Distributor may terminate this Agreement forthwith.
16. Miscellaneous. It is understood and expressly stipulated
-------------
PAGE 48
that neither the shareholders of the Fund, nor the directors of the Fund shall
be personally liable hereunder. 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.
17.
Notice. Any notice required or permitted to be given by either party to the
------
other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at the
last address furnished by the other party to the party giving notice: if to the
Fund, at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and if to the
Distributor, at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and if to the
Distributor, at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
ATTEST: X. XXXX PRICE GROWTH STOCK FUND, INC.
/s/Xxxxxx X. Xxxxxxx /s/Xxxxxx X. Xxxx
____________________ By: _________________________
Secretary President
ATTEST: X. XXXX PRICE MARKETING, INC.
/s/Xxxx Xxxxxx Xxxxxxxx /s/Xxxxxx X. Xxxxx
____________________ By: _________________________
Secretary President
