EXHIBIT (6)
THE SANTA XXXXXXX GROUP OF MUTUAL FUNDS
000 X. Xxxxx Xxx. Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
September 17, 1996
Xxxxxx/Decision Services, Inc.
000 X. Xxxxx Xxx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
re: Underwriting Agreement
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Ladies and Gentlemen:
We are a Maryland Corporation operating as an open-end management investment
company (hereinafter referred to as the "Company"). As such, the Company is
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), and its shares are registered under the Securities Act of 1933, as
amended (the "1933 Act"). The series of shares of common stock ("Funds") and the
Classes thereof ("Classes") authorized for issuance by the Company and for sale
pursuant to this Agreement are listed in Appendix "A" hereto, as such Appendix
may be amended from time to time. Each Fund constitutes a distinct and separate
investment portfolio. We desire to offer and sell shares of the Funds (the
"Shares") to the public in accordance with the applicable federal and state
securities laws.
You have informed us that your company is registered as a broker-dealer under
the provisions of the Securities Exchange Act of 1934 and that your company is a
member of the National Association of Securities Dealers, Inc. You have
indicated your desire to act as the exclusive selling agent and principal
distributor for Shares of each Fund. We have been authorized to execute and
deliver this Agreement to you on behalf of each Fund by consent of our
Directors, given at a meeting at which a majority of our Directors, including a
majority of our Directors who are not otherwise interested persons of the
Company and who are not
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interested persons of your company, were present and voted in favor of the
consent approving this Agreement.
1. Appointment of Underwriter. Upon the execution of this Agreement and in
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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 the Shares of the Funds and agree that we will deliver such Shares as
you may sell. You agree to use your best efforts to promote the sale of Shares
of the Funds, but are not obligated to sell any specific number of Shares.
2. Independent Contractor. You will undertake and discharge your
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obligations hereunder as an independent contractor and shall have no authority
or power to obligate or bind us by your actions, conduct or contracts except
that your are authorized to accept orders for the purchase or repurchase of the
Shares as our agent. You may appoint sub-agents or distribute through dealers
(pursuant to the Master Selling Group Agreement attached hereto as Exhibit A),
your own sales representative s or otherwise as you may determine from time to
time, but this Agreement shall not be construed as authorizing any dealer or
other person to accept orders for sale or repurchase of Shares of the Funds on
our behalf or otherwise act as our agent for any purpose.
3. Public Offering Price. The Shares of each Class of Shares of a Fund
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shall be offered for sale to the public at the public offering price set forth
in the then current prospectus for the Class of Shares. The public offering
price will not be less than the net asset value of the Shares, and may include a
front-end sales commission equal to a percentage of the net asset value of the
Shares. Shares may also be sold subject to a contingent deferred sales charge,
in such amount and on such terms as set forth in the then current Prospectus for
the Class of Shares. 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 on
the New York Stock Exchange on that day, as set forth in the then current
effective Prospectus of each Fund. The net asset value so determined shall apply
to all orders for the purchase of our Shares received by dealers and you prior
to such determination, and you are authorized as our agent to accept orders and
confirm sales at such net asset value plus your sales commission as applicable,
provided that such dealers notify you of the time when they receive that
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 the Transfer Agent or Custodian for the Funds receives
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payments on behalf of investors, such Transfer Agent and/or Custodian shall be
required to record the time of such receipt with respect to each payment, and
the applicable net asset value and public offering price 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
such Transfer Agent and/or Custodian of the effective net asset value as
received from us. Should we at any time calculate the net asset value more
frequently than one 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.
4. Sales Commission and Other Compensation. You shall be entitled to charge
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a sales commission on the sale of the Shares of each Class in the amount set
forth in the then current effective Prospectus for such Class, if any. Such
commission (subject to any quantity or other discounts or eliminations of
commission as set forth in the then current effective Prospectus for the Class
of Share) shall be an amount mutually agreed upon between us and equal to the
difference between the net asset value and the public offering price of the
Shares, if any. You may allow such sub-agents or dealers such commissions or
discounts, including payments exceeding the total sales commission, as your
shall deem advisable so long as any such commissions or discounts are set forth
in the then current effective Prospectus of such Class to the extent required by
all applicable securities laws. You may retain a contingent deferred sales
charge, if applicable, from the net asset value of Shares redeemed by the
holders thereof, in the amount and on the terms set forth in the then current
prospectus for the Class of Shares. You may also receive any amounts authorized
for payment to you under a Fund's service and/or distribution plan.
5. Payment for Shares. At or prior to the time of delivery of any of the
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Shares, you will pay or cause to be paid to the Fund's Custodian, for the
applicable Fund's 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 when received by you.
6. Registration of Shares. No Shares of any Fund shall be registered on the
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books of such Fund until (i) receipt by us of your written request therefor;
(ii) receipt by the Fund's Transfer 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
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Fund's Custodian. We will provide for the recording of all Shares purchased in
uncertificated form in "book accounts." Share certificates will be issued only
upon specific request in writing to the Transfer Agent, in which case
certificates for shares in such names and amounts as are specified in such
writing will be delivered by the Transfer Agent as soon as practicable after
their registration on our books.
7. Purchase for Your Own Account. You shall not purchase the Shares for
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your own account for purposes of resale to the public, but your may purchase
shares for your own investment account upon written assurance that the purchase
is for investment purposes only and that the Shares will not be resold except
through redemption by us.
8. Allocation of Expenses.
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A. We will pay the expenses:
1. of the preparation of our audited and certified financial
statements to be included in any amendments ("Amendments") to
our registration statement under the 1933 Act, including the
Prospectus and Statement of Additional Information of each of
the Funds included therein;
2. of the preparation, including legal fees and the setting of
type, and of printing all Amendments or supplements to the
registration statement filed with the Securities and Exchange
Commission, including the copies of the Funds' Prospectuses and
Statement of Additional Information included in the Amendments
or supplements thereto, other than those necessitated by your
(including your "affiliates") activities or related to your
activities where such Amendments or supplements result in
expenses which we would not otherwise have incurred;
3. of the preparation, printing, and distribution of any reports
or communications to existing shareholders of each Fund,
including Prospectuses and Statements of Additional
Information;
4. of filing and other fees to federal, state or other securities
regulatory authorities necessary to register and maintain
registration of the Shares;
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and,
5. of the Transfer Agent for the Funds, including all costs and
expenses in connection with the issuance, transfer and
registration of the Shares, including but not limited to any
taxes and other governmental charges in connection therewith.
B. You will pay or be responsible for:
1. the expenses of the preparation, excluding legal fees and the
setting of type, and printing of all Amendments and supplements
to the Funds' Prospectuses and Statement of Additional
Information, if the Amendment or supplement arises from or is
necessitated by your (including your "affiliates") activities
or related to your activities where those expenses would not
otherwise have been incurred by us;
2. of print additional copies, for use by you as sales literature,
of reports or other communications which we have prepared for
distribution to our existing shareholders; and,
3. incurred by you in advertising, promoting and selling the
Shares to the public, including the printing of Prospectuses
and Statements of Additional Information for such use.
9. Furnishing of Information. We will furnish to your such information with
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respect each Fund and its Shares, in such form and signed by such of our
officers as you may reasonably request, and we warrant 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 your may reasonable
request in order to qualify the Shares for sale to the public under the
securities laws of 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, from time to time,
with such additional information regarding our financial condition as you may
reasonably request.
10. Conduct of Business. Other than the Funds' then current
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effective Prospectuses and Statement of Additional Information, you will not
issue any sales material or statements except literature or advertising which
conforms to the requirements of all applicable 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 securities laws and regulations of
the jurisdiction where the 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.
11. Other Activities. Your services pursuant to this Agreement shall not be
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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 become effective on the date of
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its execution written below and shall remain in effect for a period of two (2)
years from the date of its execution. This Agreement shall continue thereafter
for periods not exceeding one (1) year if approved at least annually (i) by a
vote of a majority of the outstanding voting securities of each Fund or by a
vote of the Directors of the Company, and (ii) by a vote of a majority of the
Directors of the Company who are not interested persons or parties to this
Agreement (other than as Directors of the Company), cast in person at a meeting
called for the purpose of voting on such approval.
This Agreement: (i) may at any time be terminated without the payment of
any penalty, either by vote of the Directors of the Company or by a vote of a
majority of the outstanding voting securities of each Fund with respect to such
Fund, on sixty (60) days' written notice to your; (ii) shall immediately
terminate with respect to all the Funds in the event of its assignment; and
(iii) may be terminated with respect to any fund by you on sixty (60) days'
written notice to us.
13. Suspension of Sales. We reserve the right at all times to suspend or
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limit the public offering of the Shares or any Class thereof upon written notice
to you, and to reject any order for the purchase of the Shares or any Class
thereof in whole or in part.
14. Miscellaneous. This Agreement shall be subject to the laws of
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the State of California and shall be interpreted and construed to further and
promote the operation of the Company as an open-end investment company. As used
herein the terms "net asset value," "offering price," "investment company,"
"open-end investment company," "assignment," "principal underwriter,"
"interested person," and "majority of the outstanding voting securities," shall
have the meanings set forth in the 1933 Act and the 1940 Act and the Rules and
Regulations thereunder.
15. Liability. Nothing herein shall be deemed to protect you against any
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liability to us or to our securities holders to which you would otherwise be
subject by reason of your 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.
16. Indemnification. We agree to indemnify and hold you harmless from and
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against any and all losses, claims, damages or liabilities to which you may
become subject under the 1933 Act, the 1940 Act or any state securities statute,
and to reimburse you for any legal or other expenses reasonably incurred by you
in connection with any claim or litigation, whether or not resulting in any
liability, insofar as such losses, claims, damages, liabilities, or litigation
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission or alleged untrue statement or omission of a
material fact contained in the Registration Statement, which statement or
omission was made in reliance upon information furnished to us by you for
inclusion in the Registration Statement.
You agree to indemnify and hold us harmless from and against any and all
losses, claims, damage or liabilities to which we may become subject under the
1933 Act, the 1940 Act of any state securities statute, and reimburse use for
any legal or other expenses reasonably incurred by us in connection with any
claim or litigation, whether or not resulting in any liability, insofar as such
losses, claims, damages, liabilities, or litigation arise out of or are based
upon (1) any untrue statement or omission or alleged untrue statement or
omission of a material fact contained in the Registration Statement, which
statement or omission was made in reliance upon information furnished to us by
you for inclusion in the Registration Statement; (ii) any failure to deliver a
currently effective Prospectus in connection with the sale of Shares; (iii) any
unauthorized use of sales materials or any verbal or written misrepresentations
or any unlawful sales practices concerning the Shares by you, your agents,
representatives or employees; and (iv) claims by your agents, representatives or
employees for commissions, service fees,
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or other compensation or remuneration of any type.
If the foregoing meets with your approval, please acknowledge your acceptance
by signing each of the enclosed counterparts hereof and returning two such
counterparts to us, whereupon this shall constitute a binding agreement as of
the date first above written.
Very truly yours,
The Santa Xxxxxxx Group of Mutual
Funds, Inc. on behalf of the Funds
set forth in Appendix A (as may be
amended)
By:_________________________________
Accepted:
Xxxxxx/Decision Services, Inc.
By:________________________________
Xxxxxxx X. Xxxxxx
President
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APPENDIX "A"
TO
THE SANTA XXXXXXX GROUP OF MUTUAL FUNDS, INC.
UNDERWRITING AGREEMENT
DATED: September 17, 1996
This Agreement applies to:
1. The Starbuck Tisdale Growth and Income Fund
* Class C Shares
* Class Y Shares
2. The Xxxxxx Growth Fund
* Class A
* Class C
* Class Y
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