Exhibit 10.21
UNDERWRITING AGREEMENT
THIS AGREEMENT, made this 22nd day of August, 2001, by and between Xxxxxxx
& Xxxx InvestEd Portfolios, Inc. (hereinafter the "Company"), a Maryland
corporation, and Xxxxxxx & Xxxx, Inc. (hereinafter "W&R"), a Delaware
corporation;
I. REPRESENTATIONS
A. The Company represents that
1) it is a registered open-end management investment company
(mutual fund), and
2) the shares of each of its classes of shares ("Portfolio") and
of each sub-class thereof ("Class"), if any, are, as of the date of the
effectiveness of this Agreement as to each such Portfolio or Class, registered
with the Securities and Exchange Commission ("SEC") and qualified or otherwise
authorized for sale in all states of the United States as may be agreed upon.
(As to any Portfolio or Class not registered with the SEC and qualified or
otherwise authorized for sale in all states of the United States as may be
agreed upon, this Agreement shall become effective as to such Portfolio or Class
upon such registration and qualification or authorization.)
B. W&R represents that
1) it is a broker-dealer registered with the SEC and is duly
qualified to offer shares of the Company in all states in which the shares are
currently qualified or otherwise authorized for offer for sale;
2) it is a member of the National Association of Securities
Dealers, Inc. ("NASD");
3) it maintains a retail securities and insurance sales
organization consisting in part of a number of representatives authorized under
Federal and state securities laws to solicit as representatives of W&R orders
for Company shares and other securities;
4) it maintains and enforces procedures to enable it to supervise
its representatives and associated persons in accordance with applicable
securities laws, rules and regulations including the Rules of the NASD; and
5) it maintains and enforces procedures to review for compliance
with applicable securities laws, rules and regulations all sales literature and
promotional materials used by it and authorized to be used by its
representatives in solicitation of orders to buy Company shares, and it files,
when applicable, such literature and materials with the NASD.
II. APPOINTMENT OF UNDERWRITER and OBLIGATIONS
The Company hereby appoints W&R, and W&R agrees to act, as the Company's
principal underwriter under the terms and provisions of this Agreement.
A. Company agrees
1) to use its best efforts to register from time to time under
the Securities Act of 1933 (the "Securities Act") adequate amounts of its shares
for sale by W&R to the public and to qualify or to permit W&R to qualify such
shares for offering to the public in such states as may from time to time be
agreed upon;
2) to immediately advise W&R (i) when any post-effective
amendment to its registration statement or any further amendment or supplement
thereto becomes effective, (ii) of any request by the SEC for amendments to the
registration statement(s) or to any then effective prospectus or statement of
additional information ("SAI") or for additional information, (iii) of the
issuance by the SEC of any stop-order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that purpose,
and (iv) of the happening of any event which makes untrue any material statement
made in the registration statement or any then effective prospectus or SAI or
which, in the opinion of counsel for the Company, requires the making of a
change in the registration statement or any then effective prospectus or SAI in
order to make the statements therein not misleading; in case of the happening at
any time of any event which materially affects the Company or its securities and
which should be set forth in a supplement to or an amendment of any then
effective prospectus or SAI in order to make the statements therein not
misleading, to prepare and furnish to W&R such amendment or amendments to that
prospectus or SAI as will correct the prospectus or SAI so that as corrected it
will not contain, or such supplement or supplements to that prospectus or SAI
which when read in conjunction with that prospectus or SAI will make the
combined information not contain any untrue statement of a material fact or any
omission to state any material fact necessary in order to make the statements in
that prospectus or SAI not misleading; if any time the SEC shall issue any
stop-order suspending the effectiveness of the registration statement, to make
every reasonable effort to obtain the prompt lifting of such order; and, before
filing any amendment to the registration statement or to any then effective
prospectus or SAI, to furnish W&R with a copy of the proposed amendment;
3) to advise W&R of the net asset value of the shares of each of
its Portfolios and Classes, as applicable, as often as computed and to furnish
to W&R as soon as practical such information as may be reasonably requested by
W&R in order that it may know all of the facts necessary to sell shares of the
Company;
4) to make delivery of its shares subject to the provisions of
its Articles of Incorporation and Bylaws to W&R as ordered by W&R as soon as
reasonably possible after receipt of the orders and against payment of the
consideration to be received by the Company therefor from W&R
5) to pay or cause to be paid all expenses incident to the
issuance, transfer, registration and delivery of its shares, all taxes in
connection therewith, costs and expenses
2
incident to preparing and filing any registration statements, prospectuses and
SAIs and any amendments or supplements to a registration statement, a prospectus
or an SAI, statutory fees incidental to the registration of additional shares
with the SEC, statutory fees and expenses incurred in connection with any Blue
Sky law qualifications undertaken by or at the request of W&R, and the fees and
expenses of the Company's counsel, accountants or any other experts used in
connection with the foregoing; and
6) not without the consent of W&R to offer any of its shares for
sale directly or to any persons or corporations other than W&R, except only:
a) the reinvestment of dividends and/or distributions or
their declaration in shares of the Company, in optional form or otherwise;
b) the issuance of additional shares to stock splits or
stock dividends;
c) sale of shares to another investment or securities
holding company in the process of purchasing all or a portion of its assets;
d) in connection with an exchange of shares of the Company
for shares in another investment or securities holding company;
e) the sale of shares to registered unit investment trusts;
or
f) in connection with the exchange of one Portfolio's shares
for shares of another Portfolio of the Company.
B. W&R agrees
1) to offer Company shares in such states as may be agreed upon
through its retail account representatives and, at its sole discretion, through
broker-dealers which are members of the NASD on such terms as are not
inconsistent with this Agreement;
2) to order shares from the Company only after it has received a
purchase order therefor;
3) to pay to the Company the net asset value of shares sold
within two business days after the day payment is received by W&R at its
principal place of business from the investor or broker-dealer, or pay the
Company at such other time as may be agreed upon hereafter by the Company and
W&R, or as may be prescribed by law or the Rules of the NASD;
4) in offering shares to comply with the provisions of the
Articles of Incorporation and Bylaws of the Company and with the provisions
stated in its applicable then current prospectus(es) and SAI;
3
5) to timely inform the Company of any action or proceeding to
terminate, revoke or suspend W&R's registration as a broker-dealer with the SEC,
membership in the NASD, or authority with any state securities commission to
offer Company shares; and
6) to pay the cost of all sales literature, advertising and other
materials which it may at its discretion use in connection with the sale of
Company shares, including the cost of reports to the shareholders of the Company
in excess of the cost of reports to existing shareholders and the cost of
printing the prospectus(es) furnished to it by the Company.
III. TERMS FOR SALE OF SHARES
A. It is mutually agreed that
1) W&R shall act as principal in all matters relating to
promotion and sale of Company shares, including the preparation and use of all
advertising, sales literature and other promotional materials, and shall make
and enter into all other arrangements, agreements and contracts as principal on
its own account and not as agent for the Company. Title to shares issued and
sold by the Company through W&R shall pass directly from the Company to the
dealer or investor, or shall first pass to W&R as it may from time to time be
determined by W&R and the Company; except provided, however, that W&R may, if so
agreed by W&R and the Company, act as agent of the Company without commission on
repurchase of shares of the Company;
2) certificates for shares shall not be created or delivered by
the Company in any case in which the purchase is pursuant to any provisions of
the Company described in its applicable then current prospectus(es) and SAI
under the terms of which certificates are not to be issued to the shareholder.
Shares sold by W&R shall be registered in such name or names and amounts as W&R
may request from time to time, and all shares when so paid for and issued shall
be fully paid and non-assessable;
3) the offering price at which shares of the Company may be sold
by W&R shall include such selling commission as may be applicable to that Class
and as may be fixed from time to time by W&R but shall not be in excess of the
maximum permitted under the rules and regulations of the National Association of
Securities Dealers, Inc. W&R shall retain any such sales commission and may
re-allow all or any part of the sales commission to its account representatives
and to selected brokers and dealers who sell shares of the Company; and
4) W&R may designate, reduce or eliminate its selling commissions
in certain sales or exchanges to the extent described in the applicable then
current prospectus(es) and SAI of the Company and in accordance with Section
22(d) of the Investment Company Act of 1940 and any rules, regulations or orders
of the SEC thereunder.
IV. THE PLAN; SALES CHARGES
A. It is mutually acknowledged that the Company has adopted a plan
pursuant to Rule 12b-1 under the Investment Company Act of 1940 (a "Plan"),
which Plan is applicable to
4
each class of each Portfolio and that the Company may in the future adopt Plans
applicable to certain Portfolios and classes, respectively, not yet created.
B. With respect to any Portfolio or Class as to which the Company has
adopted a Plan, pursuant to that Plan, each day the Company shall pay to W&R a
distribution fee and/or a service fee at the maximum rates and under the terms
and conditions set forth in the applicable Plan, as amended from time to time,
or such lesser amount as the Company and W&R may agree.
C. W&R shall at least quarterly provide to the Company's board of
directors a written report with respect to each Portfolio or Class, as
applicable, of the amounts of the distribution and/or service fees expended and
the purposes for which these expenditures were made. W&R shall in addition
furnish to the board of directors of the Company such information as may be
requested or as may be necessary to an informed determination by the directors
of whether or not the directors should continue the Company's Plan(s) and
continue this Agreement and to determine whether there is reasonable likelihood
that the Plan(s) and this Agreement will benefit the Company and its
shareholders affected by such Plan(s).
D. The Company shall, after excluding from the redemption proceeds
that portion represented by the reinvestment of dividends and distributions and
the appreciation of the value of shares being redeemed, promptly pay W&R an
amount, if any, equal to the percent of the amount invested as determined by W&R
and as is then stated in the Company's current prospectus and SAI applicable to
the shares redeemed (the "contingent deferred sales charge"). For purposes of
determining the applicable contingent deferred sales charge, if any: the
redemptions shall be deemed in order of investment made when more than one
investment has been made; and when the shares being redeemed were acquired by
exchange of shares of another Class of the Company, or corresponding class of
another registered investment company for which W&R or its affiliate serves as
principal underwriter, the investment shall be deemed as if it had been made
when the Company's shares were first purchased, and the applicable contingent
deferred sales charges, if any, shall be with respect to the amount originally
invested in Company shares; and provided that any contingent deferred sales
charge shall be determined in accordance with and in the manner set forth in the
applicable then current prospectus and SAI and any applicable Order or Rule
issued by the SEC.
E. It is contemplated that W&R may pay commissions to its field sales
force at the time of sale of the Company's shares and may incur other expenses
substantially in advance of receiving the distribution fee, if any, that may be
applicable to the payment of such commissions and expenses. W&R recognizes that
such payments are at its risk and that this Agreement may be terminated or not
continued as hereinafter provided without the payment to it of any further
distribution fees or service fees whatsoever and without the payment of any
penalty. The contingent deferred sales charges, if any, shall, however, be
payable to W&R with respect to all subject sales made prior to the termination
of this Agreement.
V. INDEMNIFICATION
A. The Company agrees with W&R for the benefit of W&R and each person,
if any, who controls W&R within the meaning of Section 15 of the Securities Act
and each and all and any of them, to indemnify and hold harmless W&R and any
such controlling person from
5
and against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, under any other statute, at common law or otherwise, and to reimburse the
underwriter and such controlling persons, if any, for any legal or other
expenses (including the cost of any investigation and preparation) reasonably
incurred by them or any of them in connection with any 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 alleged
untrue statement of a material fact contained in any registration statement, any
prospectus, SAI or any amendment thereof or supplement thereto or arise out of
or are based upon 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; provided, however, that this indemnity agreement shall not apply
to amounts paid in settlement of any such litigation if such settlement is
effected without the consent of the Company or to any such losses, claims,
damages, liabilities or litigation arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement, prospectus, SAI or any amendment thereof or supplement
thereto, or arising out of or based upon 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, which statement or omission was made in
reliance upon information furnished in writing to the Company by W&R for
inclusion in any registration statement, any prospectus, any SAI or any
amendment thereof or supplement thereto. W&R and each such controlling person
shall promptly, after the complaint shall have been served upon W&R or such
controlling person in any litigation against W&R or such controlling person in
respect of which indemnity may be sought from the Company on account of its
agreement contained in this paragraph, notify the Company in writing of the
commencement thereof. The omission of W&R or such controlling person to so
notify the Company of any such litigation shall relieve the Company from any
liability which it may have to W&R or such controlling person on account of the
indemnity agreement contained in this paragraph but shall not relieve the
Company from any liability which it may have to W&R or such controlling person
otherwise than on account of the indemnity agreement contained in this
paragraph. In case any such litigation shall be brought against W&R or any such
controlling person and the underwriter or such controlling person shall notify
the Company of the commencement thereof, the Company shall be entitled to
participate in (and, to the extent that it shall wish, to direct) the defense
thereof at its own expense but such defense shall be conducted by counsel of
good standing and satisfactory to W&R or such controlling person or persons,
defendant or defendants in the litigation. The indemnity agreement of the
Company contained in this paragraph shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of W&R or any such
controlling person and shall survive any delivery of shares of the Company. The
Company agrees to notify W&R promptly of the commencement of any litigation or
proceeding against it or any of its officers or directors of which it may be
advised in connection with the issue and sale of its shares.
B. Anything herein to the contrary notwithstanding, the agreement in
Section A of this article, insofar as it constitutes a basis for reimbursement
by the Company for liabilities (other than payment by the Company of expenses
incurred or paid in the successful defense of any action, suit or proceeding)
arising under the Securities Act, shall not extend to the extent of any interest
therein of any person who is an underwriter or a partner or controlling person
of an underwriter within the meaning of Section 15 of the Securities Act or who,
at the date of this Agreement, is a director of the Company, except to the
extent that an interest of such character
6
shall have been determined by a court of appropriate jurisdiction the question
of whether or not such interest is against public policy as expressed in the
Securities Act.
C. W&R agrees to indemnify and hold harmless the Company and its
directors and such officers as shall have signed any registration statement from
and against any and all losses, claims, damages or liabilities, joint or
several, to which the Company or such directors or officers may become subject
under the Securities Act, under any other statute, at common law or otherwise,
and will reimburse the Company or such directors or officers for any legal or
other expenses (including the cost of any investigation and preparation)
reasonably incurred by it or any of them in connection with any 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 alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, which
statement or omission was made in reliance upon information furnished in writing
to the Company by W&R for inclusion in any registration statement, any
prospectus, any SAI or any amendment thereof or supplement thereto, or which
statement was made in, or the alleged omission was from, any advertising or
sales literature (including any reports to shareholders used as such) which
relate to the Company.
W&R shall not be liable for amounts paid in settlement of any such
litigation if such settlement was effected without its consent. The Company and
its directors and such officers, named as defendant or defendants, in any such
litigation shall, promptly after the complaint shall have been served upon the
Company or any such director or officer in any litigation against the Company or
any such director or officer in respect of which indemnity may be sought from
W&R on account of its agreement contained in this paragraph, notify W&R in
writing of the commencement thereof. The omission of the Company or such
director or officer so to notify the underwriter of any such litigation shall
relieve W&R from any liability which it may have to the Company or such director
or officer on account of the indemnity agreement contained in this paragraph,
but shall not relieve W&R from any liability which it may have to the Company or
such director or officer otherwise than on account of the indemnity agreement
contained in this paragraph. In case any such litigation shall be brought
against the Company or any such officer or director and notice of the
commencement thereof shall have been so given to W&R, W&R shall be entitled to
participate in (and, to the extent that it shall wish, to direct) the defense
thereof at its own expense, but such defense shall be conducted by counsel of
good standing and satisfactory to the Company. The indemnity agreement of W&R
contained in this paragraph shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company and shall
survive any delivery of shares of the Company. W&R agrees to notify the Company
promptly of the commencement of any litigation or proceeding against it or any
of its officers or directors or against any such controlling person, of which it
may be advised, in connection with the issue and sale of the Company's shares.
D. Notwithstanding any provision contained in this Agreement, no party
hereto and no person or persons in control of any party hereto shall be
protected against any liability to the Company or its security holders to which
they would otherwise be subject by reason of willful misfeasance, bad faith, or
gross negligence in the performance of their duties or by reason of their
reckless disregard of their obligations and duties under this Agreement.
VI. OTHER TERMS
7
A. This Agreement shall not be deemed to limit W&R from acting as
underwriter and/or dealer for any other mutual fund, from engaging in any other
aspects of the securities business, whether or not such may be deemed in
competition with the sale of shares of the Company, and to carry on any other
lawful business whatsoever.
B. Except as expressly provided in Article V and hereinabove, the
agreements herein set forth have been made and are made solely for the benefit
of the Company and W&R, and the persons expressly provided for in Article V,
their respective heirs and successors, personal representatives and assigns, and
except as so provided, nothing expressed or mentioned herein is intended or
shall be construed to give any person, firm or corporation other than the
Company, W&R and the persons expressly provided for in Article V any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
representation, warranty or agreement herein contained. Except as so provided,
the term "heirs, successors, personal representatives and assigns" shall not
include any purchaser of shares merely because of such purchase.
C. This Agreement shall continue in effect, unless terminated as
hereinafter provided, for a period of one (1) year and thereafter only if such
continuance is specifically approved at least annually by the Board of
Directors, including the vote of a majority of the directors who are not parties
to the Agreement or "interested persons" (as defined in the Investment Company
Act of 1940) or any such party and who have no direct or indirect financial
interest in the operation of any Plan or any agreement relating to that Plan
(hereafter the "Plan directors"), cast in person at a meeting called for the
purpose of voting on such approval. This Agreement may be terminated by W&R at
any time without penalty upon giving the Company sixty (60) days' written notice
(which notice may be waived by the Company) and may be terminated by the Company
at any time without penalty upon giving W&R sixty (60) days' written notice
(which notice may be waived by W&R), provided that such termination by the
Company shall be directed or approved by the vote of a majority of the Plan
directors, or by the vote of a majority (as defined in the Investment Company
Act of 1940) of the outstanding voting securities of a Class with respect to
that Class. This Agreement shall automatically terminate in the event of its
assignment, the term "assignment" for this purpose having the meaning defined in
Section 2(a)(4) of the Investment Company Act of 1940.
8
D. This Agreement shall be governed and construed in accordance with
the laws of Kansas.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized officers and their corporate seals to be
affixed as of the day and year first above written.
XXXXXXX & XXXX INVESTED PORTFOLIOS, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, Vice President
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx, Secretary
XXXXXXX & XXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, President
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx, Secretary
9
