UNDERWRITING AGREEMENT
AGREEMENT made as of this 10th day of August, 1999 by and between ICM Series
Trust, a Massachusetts Business Trust (the "Fund"), and ADS Distributors, Inc.,
a Florida Corporation (the "Distributor").
BACKGROUND
WHEREAS, the Fund is a diversified, open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, ADS Distributors, Inc. ("Distributor") is a registered broker dealer
under the Securities Exchange Act of 1934 and a member in good standing of the
National Association of Securities Dealers;
TERMS
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the Fund and ADS hereby agree as follows:
A: DISTRIBUTION ACTIVITIES:
1. The Distributor will receive orders from purchasers for and the Fund will
sell, issue and deliver from time to time to such purchasers, such part of
the authorized shares of capital stock of the Fund remaining un-issued 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 Fund.
1.1 The Distributor agrees that it will use such efforts as it may deem
appropriate to solicit orders for the sale of shares of capital stock of the
Fund. Such activities shall include, without limitation, such advertising
and promotion as the Distributor, in conjunction with Fund management and by
mutual agreement by both parties, may believe reasonable in connection with
such solicitation; entering into arrangements with securities dealers,
financial institutions and other industry professionals, including so-called
"mutual fund supermarkets" and monitoring such agreements and relationships
as may be necessary and appropriate to assure compliance with applicable
state and Federal securities regulations relating to such agreements. Such
activities shall also include the review of all advertising and promotional
literature and the preparation and coordination of all filings of any such
literature that the Fund may be required to make with the Securities and
Exchange Commission or the NASD.
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2. The Distributor shall present all orders received by it for shares of
capital stock of the Fund to the Fund by telegraphic or written purchase
orders and each such order shall be subject to the acceptance or rejection
by the Fund in its sole discretion.
2.1 Notwithstanding any other provision hereof, whenever in the judgment of
the Fund such action is warranted by market, economic or political
conditions or by abnormal circumstances of any kind, the Fund may suspend
the offer of shares in effect and may, without liability under the provision
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 Fund
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 Fund shall decline to
accept or confirm any such orders or make any such sales, the Distributor
shall be under no obligation to confirm or accept any such orders or make
any such sale at any price.
2.2 The Fund 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 Distributor shall reasonably request and as the Securities and
Exchange Commission (the "SEC") shall permit to be so registered.
3. Sales by the Distributor shall be made as agent for the Fund and all such
sales be made to or though qualified dealers or others in such manner, not
inconsistent with the provisions hereof and the then effective registration
statement of the Fund under the 33 Act, (and related prospectus), as the
Distributor may determine from time to time.
4. All shares of capital stock offered for sale or sold by the Distributor
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 Fund pursuant to its charter).
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 Fund, or its authorized agent, will
promptly furnish to the Distributor a statement of the Offering Price as
often as such net asset value is determined and such statement shall at the
request of the Distributor show the basis of computation of the Offering
Price.
4.2 Orders presented by the Distributor for shares, if accepted by the Fund,
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 Distributor 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.
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5. The Fund 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
Distributor may reasonably request (it being understood that the Fund shall
not 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 Distributor, at its own expense, will effect all
necessary qualifications as dealer or broker.
5.1 The Distributor agrees to indemnify and hold harmless the Fund and each
person, if any, who controls the Fund against any and all claims, costs,
expenses (including reasonable attorneys' fee) (collectively "Losses") that
may arise (i) out of the acquisition of any shares of capital stock of the
Fund by any person which may be based upon any untrue statement, or alleged
untrue statement of material fact contained in the Fund registration
statement, or any omission or alleged omission, to state a material fact
required to be stated therein 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 Fund by the Distributor or any
affiliated person of the Distributor; or (ii) as a result of the
Distributor's willful misfeasance, xxxx xxxxx or negligence in the
performance of its duties or obligations hereunder, or the reckless
disregard of such duties or obligations.
6. The Fund will furnish to the Distributor from time to time such information
with respect to its shares as the Distributor may reasonably request for
use in connection with the sale of shares. The Distributor 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 Fund.
7. Nothing herein contained shall limit the right of the Fund, 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 Fund, 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 Fund,
upon such terms and conditions and for such consideration, if any, as may
be determined by the Board of Directors, whether pursuant to the
distribution of subscription or purchase rights to such holders or by way
of dividends or otherwise.
8. At the request of the Fund, the Distributor agrees to act as agent for the
Fund for the repurchase or redemption of shares of the Fund at such prices
as the Fund from time to time shall prescribe.
9. In selling or reacquiring shares, the Distributor 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 Fund
harmless from any damage or expense on account of any wrongful act by the
Distributor or any employee, representative or agent of the Distributor.
The Distributor will observe and be bound by all the provisions of the
charter of the Fund and any fundamental policies adopted by the Fund
pursuant to the Investment Company Act of 1940, as amended (the "40 Act"),
notice of which has been given to the Distributor.
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10. Neither the Distributor, any dealer nor any other person is authorized by
the Fund 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 Fund for use in
connection with any sale or reacquisition of capital stock for the account
of the Fund.
D. COMPENSATION AND OTHER:
1. In consideration of the agreements on the part of the Distributor herein
contained, the Distributor shall receive payment in the amount of $10,000
or 1 basis point, whichever is greater, per annum billed monthly, plus
reimbursement of all reasonable out-of-pocket expenses incurred at the
request of the Fund in fulfillment of its responsibilities in this
Agreement.
2. This Agreement shall continue in effect until such time as there remain 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 Fund,
and (b) either party hereto may terminate this Agreement on any date by
giving the other party at least ninety (90) days prior written notice of
such termination specifying the date fixed therefor.
2.1 This Agreement shall automatically terminate in the event of its
assignment by the Distributor, the term "assignment" having the meaning
defined in Section 2(a)(4) of the 40 Act.
3. The parties understand and agree that the Fund is a Massachusetts business
trust and, as such, the obligations of the Fund under this agreement shall
not be binding upon any of the Trustees, or shareholders of the Fund, but
only on the assets and property of the Fund, as provided in the Declaration
of Trust.
4. 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 Fund: To the Administrator:
Xx. Xxxx Xxxx Xxxxxxx Xxxxx
Chief Operating Officer President
Ironwood Capital Management LLC ADS Distributors, Inc.
0 Xxxxxxxxxxxxx Xxxxx, Xxxxx0000 c/o American Data Services, Inc.
Xxxxxx, XX 00000 000 Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
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IN WITNESS WHEREOF, The Fund and the Distributor 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.
ICM Series Trust ADS Distributors, Inc.
By: /s/ By: /s/
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Xxxxxx X. Xxxxxxxx, President Xxxxxxx Xxxxx, Chairman of the
Board and Treasurer
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