Exhibit 23(e)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of February 5, 2005, by and between WY Funds
(the "Fund"), and Citco Mutual Fund Distributors, Inc., a Delaware corporation
("Underwriter").
WHEREAS, the Fund is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund is authorized by its Declaration of Trust and
by-laws to issue separate Portfolios of shares representing interests in
separate investment portfolios (the "Portfolios"), and
WHEREAS, the Fund has authorized the issuance of shares of beneficial
interest ("Shares") in the Portfolios which are identified on Exhibit A attached
hereto, which Exhibit A may be amended from time to time by mutual agreement of
the Fund and Underwriter, and;
WHEREAS, the Fund has taken all necessary steps to appoint Underwriter as
the Fund's principal underwriter pursuant to Section 15 of the 1940 Act and the
Fund's organizational documents;
WHEREAS, Underwriter is a broker-dealer registered with the Securities and
Exchange Commission and a member in good standing of the National Association of
Securities Dealers, Inc., (the "NASD"); and
NOW, THEREFORE, in consideration of the promises and agreements of the
parties contained herein, the parties hereto, intending to be legally bound,
agree as follows:
1. Appointment. The Fund hereby appoints Underwriter as exclusive agent for the
distribution of Shares of the Portfolios listed in Exhibit A hereto that are
covered by the Fund's Registration Statement and Prospectus then in effect under
the Securities Act of 1933, as amended (the "1933 Act"), and Underwriter hereby
accepts such appointment under the terms of this Agreement.
Notwithstanding any other provision hereof, the Fund may terminate, suspend or
withdraw the offering of Shares of any Portfolio whenever, in its sole
discretion, it deems such action to be desirable.
The Fund hereby represents that all necessary action has been taken to assign
selling agreements executed by the former distributor to the Underwriter. All
advertising and sales literature related to the Fund shall be filed with the
Underwriter for review prior to use with sufficient time to permit the
Underwriter to review the material and file with the National Securities Dealers
Association, Inc. if necessary. The Fund and Underwriter shall mutually agree
upon reasonable turnaround times for such review.
2. Sale and Repurchase of Shares.
(a) Underwriter, as agent for the Fund, will sell Shares to the public
against orders therefore at the public offering price, all such sales to comply
with the provisions of the 1940 Act and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
(b) Underwriter will also have the right to take, as agent for the Fund,
all actions, which, in Underwriter's judgment, are reasonably necessary and
proper to carry into effect the distribution of the Shares.
(c) The net asset value of the Shares of each Portfolio (or Class of
Shares of a Portfolio) shall be determined in the manner provided in the Fund's
then current Registration Statement, and when determined shall be applicable to
transactions as provided for in the Registration Statement. The net asset value
of the Shares of each Portfolio (or each Class of Shares of a Portfolio) shall
be calculated by the Fund or by another entity on behalf of the Fund.
Underwriter shall have no duty to inquire into nor shall it have any liability
for the accuracy of the net asset value per share as calculated.
On every sale of Shares, the Fund shall receive the applicable net asset
value of the Shares promptly, but in no event later than the third business day
following the date on which Underwriter shall have received an order for the
purchase of the Shares.
(d) Upon receipt of purchase instructions, Underwriter will transmit such
instructions to the Fund or its transfer agent for registration of the Shares
purchased.
(e) Nothing in this Agreement shall prevent Underwriter or any affiliated
person (as defined in the 0000 Xxx) of Underwriter from acting as underwriter or
distributor for any other person, firm or corporation (including other
investment companies) or in any way limit or restrict Underwriter or any such
affiliated person from buying, selling or trading any securities for its or
their own account or for the accounts of others for whom it or they may be
acting; provided, however, that Underwriter expressly represents that it will
undertake no activities which, in its judgment, will adversely affect the
performance of its obligations to the Fund under this Agreement.
(f) Underwriter, as agent of the Fund and for the account of the
Portfolio(s), may repurchase the Shares at such prices and upon such terms and
conditions as shall be specified in the Fund's then current Registration
Statement. At the end of each business day, the Underwriter shall notify the
Fund and the Fund's transfer agent of the number of Shares redeemed for each
Portfolio, and the identity of the shareholders or dealers offering Shares for
repurchase. Upon such notice and acceptance by the Fund, the Fund shall pay the
Underwriter the net asset value of the redeemed shares in cash or in the form of
a credit against monies due the Fund from the Underwriter as proceeds from the
sale of Shares. The Fund reserves the right to suspend such repurchase right
upon written notice to the Underwriter. The Underwriter further agrees to act as
agent for the Fund to receive and transmit promptly to the Fund's transfer
agent, shareholder and dealer requests for redemption of Shares in the
Portfolio(s).
3. Sales of Shares by the Fund. The Fund reserves the right to issue or sell
Shares of the Portfolio(s) directly to the public at any time.
4. Basis of Sale of Shares. Underwriter does not agree to sell any specific
number of Shares. Underwriter, as agent for the Fund, undertakes to sell Shares
of the Portfolio(s) on a best effort basis only against orders therefore.
5. Compliance with NASD and Government Rules.
(a) Underwriter will conform to the Rules of Fair Practice of the NASD and
the securities laws of any jurisdiction in which it sells Shares of the
Portfolio(s).
(b) The Fund agrees to furnish to the Underwriter sufficient copies of any
agreements, plans or other materials it intends to use in connection with sales
of Shares in adequate time for the Underwriter to file and clear them with the
proper authorities before they are put in use, and not to use them until so
filed and cleared.
(c) Underwriter, at its own expense, will qualify as dealer, broker, or
otherwise, under all applicable State or federal laws in order that Shares may
be sold in such States as may be mutually agreed upon by the parties, except for
expenses described in Section 7 hereto, which will be paid by the Fund or the
Adviser to the Fund, as appropriate.
(d) Underwriter shall not make, in connection with any sale or
solicitation of a sale of the Shares, any representations concerning the Shares
except those contained in the Fund's then current prospectus and statement of
additional information covering the Shares and in printed information approved
by the Fund as information supplemental to such prospectus and statement of
additional information. Copies of the Fund's then effective prospectus and
statement of additional information and any such printed supplemental
information will be supplied to Underwriter in reasonable quantities upon
request.
6. Records to be Supplied by Fund. The Fund shall furnish to Underwriter copies
of all information, financial statements and other papers which Underwriter may
reasonably request for use in connection with the distribution of Shares of the
Portfolio(s).
7. Expenses to be Borne by Fund. The Fund will bear the following expenses:
(a) preparation, setting in type, and printing of sufficient copies of the
prospectus and statement of additional information for distribution to
shareholders, and the distribution to shareholders of the prospectus and
statement of additional information;(b) preparation, printing and
distribution of reports and other communications to shareholders;
(c) registration of the Shares under the federal securities law;
(d) qualification of the Shares for sale in the jurisdictions designated
by Fund and Underwriter;
(e) maintaining facilities for the issue and transfer of the Shares;
(f) supplying information, prices and other data to be furnished by the
Fund under this Agreement; and
(g) any original issue taxes or transfer taxes applicable to the sale or
delivery of the Shares of certificates therefore.
8. Indemnification.
(a) The Fund agrees to indemnify, defend and hold the Underwriter, its
officers, and Directors, and any person who controls the Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), free and harmless from and against any
and all claims, demands or liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) which the Underwriter,
its officers, Directors or any such controlling persons may incur under the 1933
Act, the 1934 Act, or under common law or otherwise, arising out of or based
upon (i) any untrue statement of a material fact contained in the Fund's
Registration Statement or Prospectus or arising out of or based upon any alleged
omission to state a material fact required to be stated in either thereof or
necessary to make the statements in either thereof not misleading, except
insofar as such claims, demands, liabilities or expenses arise out of or are
based upon any such untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished in
writing by the Underwriter to the Fund for use in the Registration Statement,
(ii) any untrue statement of a material fact contained in a Fund advertisement
or sales literature or arising out of or based upon any alleged omission to
state a material fact required to be stated in either thereof or necessary to
make the statements in either thereof not misleading, except insofar as such
claims, demands, liabilities or expenses arise out of or are based upon any such
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information furnished in writing by the
Underwriter to the Fund for use in such advertisement or sales literature or
(iii) any action taken or omitted by the Fund or its former
distributor/underwriter prior to the date of this Agreement. The Fund's
agreement to indemnify the Underwriter, its officers, and Directors, and any
person who controls the Underwriter shall not be deemed to cover any liability
to the Fund or its shareholders to which the Underwriter would otherwise be
subject by reason of the Underwriter's willful misfeasance, bad faith, gross
negligence, or reckless disregard of its obligations and duties under this
Agreement. The Underwriter agrees to comply with all of the applicable terms and
provisions of the 0000 Xxx.
(b) The Underwriter agrees to indemnify, defend, and hold the Fund, its
officers, Trustees, employees, shareholders and agents, and any person who
controls the Fund within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending
against such claims, demands or liabilities and any reasonable counsel fees
incurred in connection therewith) which the Fund, its Trustees, officers,
employees, shareholders and agents, or any such controlling person may incur
under the 1933 Act, the 1934 Act or under common law or otherwise arising out of
or based upon any untrue statement of a material fact contained in information
furnished in writing by the Underwriter to the Fund for use in the Registration
Statement, or arising out of or based upon any omission or alleged omission to
state a material fact in connection with such information required to be stated
in the Registration Statement necessary to make such information not misleading.
(c) If a claim is made against any party to this Agreement as to which
that party may seek indemnity under this paragraph 8 from the other party, the
party seeking indemnification shall notify the other party within ten (10) days
after receipt of any written assertion of such claim threatening to institute an
action or proceeding or service of summons or other legal process. Failure to
notify a party of a claim for indemnification will relieve the party from whom
indemnification is sought from any liability which it may have on account of the
indemnity provisions set forth under this paragraph 8 unless the party seeking
indemnification can demonstrate to the reasonable satisfaction of the other
party that such party has not been prejudiced in any material respect by such
failure to so notify.
The parties to this Agreement will cooperate in the control of the defense of
any action, suit or proceeding in which a party is involved and for which
indemnity is being provided by the other party. Any party from whom
indemnification is sought may negotiate the settlement of any action, suit or
proceeding subject to the other party's approval, which approval will not be
unreasonably withheld. The party seeking indemnification reserves the right, but
not the obligation, to participate in the defense or settlement of a claim,
action or proceeding with its own counsel. Costs or expenses incurred by a party
to whom indemnification is being provided in connection with, or as a result of
such participation, will be borne solely by the indemnified party unless:
1) the party seeking indemnification has received an opinion of
counsel from counsel to either party stating that the use of common
counsel would present an impermissible conflict of interest;
2) the defendants in, or targets of, any such action or proceeding
include both CMFS and the Trust, and legal counsel to either party has
reasonably concluded that there are legal defenses available to a party
which are different from or additional to those available to the other
party or which may be adverse to or inconsistent with defenses available
to a party; or
3) the party from whom indemnification is sought authorizes the
other party to employ separate counsel at the expense of the indemnifying
party.
4) The terms of this paragraph 8 will survive the termination of
this Agreement.
9. Advances of Expenses. The Fund shall advance attorney's fees or other
expenses incurred by an Indemnitee in defending a proceeding only to the extent
permitted by 1933 Act and the 1940 Act.
10. Termination and Amendment of this Agreement. This Agreement shall
automatically terminate, without the payment of any penalty, in the event of its
assignment. This Agreement may be amended only if such amendment is approved (i)
by Underwriter, (ii) either by action of the Board of Trustees of the Fund or at
a meeting of the Shareholders of the Fund by the affirmative vote of a majority
of the outstanding Shares, and in either case (iii) by a majority of the
Trustees of the Fund who are not interested persons of the Fund or of
Underwriter, by vote cast in person at a meeting called for the purpose of
voting on such approval. Either the Fund or Underwriter may terminate this
Agreement at any time on at least sixty (60) days' prior written notice
delivered or mailed by registered mail, postage prepaid, to the other party.
11. Effective Period of This Agreement. Unless terminated automatically as set
forth in Section 10 of this Agreement, this Agreement shall take effect upon its
execution and shall remain in full force and effect for a period of two years
from that date, and shall remain in full force and effect from year to year
thereafter, subject to annual approval (i) by Underwriter, (ii) by the Board of
Trustees of the Fund or by vote of a majority of the outstanding Shares, and in
either case (iii) by a majority of the Trustees of the Fund who are not
interested persons of the Fund or of Underwriter, by vote cast in person at a
meeting called for the purpose of voting on such approval.
12. Limitation of Fund's Liability. It is expressly agreed that the obligations
of the Trust hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents or employees of the Trust personally,
but bind only the property of the applicable Portfolio (and no other Portfolio),
as provided in the Declaration of Trust. The execution and delivery of this
Agreement have been authorized by the Trustees of the Trust and signed by
officers of the Trust, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officers shall be deemed to
have been made by any of them individually or to impose any liability on any of
them personally, but shall bind only the property of the applicable Portfolio
(and no other Portfolio) as provided in its Declaration of Trust. A copy of the
Agreement and Declaration of Trust is on file with the Secretary of the State of
Ohio.
13. Successor Investment Company. Unless this Agreement has been terminated in
accordance with Paragraph 10, the terms and provisions of this Agreement shall
become automatically applicable to any investment company which is a successor
to the Fund as a result of a reorganization, recapitalization or change of
domicile.
14. Severability. In the event any provision of this Agreement is determined to
be void or unenforceable, such determination shall not affect the remainder of
this Agreement, which shall remain in full force and effect.
15. Questions of Interpretation.
(a) This Agreement shall be governed by the laws of the State of
Pennsylvania.
(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the 1940 Act shall be resolved by reference to such term or provision of the
1940 Act and its interpretation thereof, if any, by the United States courts; or
in the absence of any controlling decision of any such court, by rules,
regulations or orders of the Securities and Exchange Commission issued pursuant
to said Act. In addition, where the effect of a requirement of the 1940 Act,
reflected in any provision of this Agreement is revised by rule, regulation or
order of the Securities and Exchange Commission, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
16. Notices. Any notices under this Agreement shall be in writing, addressed and
delivered or mailed postage paid to the other party at such address as such
other party may designate for the receipt of such notice. Until further notice
to the other party, it is agreed that for this purpose the address of the Fund
is 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, Attn: Mr. Xxxxx York,
and of the Underwriter shall be 00 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx, XX 00000,
Attn: Xx. Xxxx Xxxxx.
17. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
18. Binding Effect. Each of the undersigned expressly warrants and represents
that he has the full power and authority to sign this Agreement on behalf of the
party indicated, and that his signature will operate to bind the party indicated
to the foregoing terms.
19. Force Majeure. If Underwriter shall be delayed in the performance of its
services or prevented entirely or in part from performing services due to causes
or events beyond its control, including and without limitation, acts of God,
interruption of power or other utility, transportation or communication
services, acts of civil or military authority, sabotages, national emergencies,
explosion, flood, accident, earthquake or other catastrophe, fire, legal action,
or present or future law, governmental order, rule or regulation, , such delay
or non-performance shall be excused and a reasonable time, subject to
restrictions and requirements of performance as may be established by federal or
state law.
20. Compensation. The Fund shall cause the services to be provided by
Underwriter under this Agreement to be paid for in accordance with, and in the
manner set forth in, Schedule B attached hereto, as such Schedule B may be
amended from time to time by agreement of the parties.
If this Agreement becomes effective subsequent to the first day of a year
or terminates before the last day of a year, Underwriter's compensation for that
part of the year in which this Agreement is in effect shall be prorated in a
manner consistent with the calculation of the fees as set forth above. Payment
of Underwriter's compensation for the preceding year shall be made promptly.
21. Customer Information. Underwriter and the Fund acknowledge and agree that
they may receive from each other information, or access to information, about
customers or consumers generally, including, but not limited to , non-public
personal information (collectively "Customer Information"). All information,
including Customer Information obtained pursuant to this Agreement, shall be
considered confidential information. Neither party shall disclose such
confidential information to any other person or entity or use such confidential
information except as necessary to carry out the purposes of this Agreement or
under an exception in Rules 14 and 15 of Regulation S-P (17 C.F.R. 248.1 -
248.30) in the ordinary course of carrying out the purposes of this Agreement.
IN WITNESS WHEREOF, the Fund and Underwriter have each caused this
Agreement to be signed on its behalf, all as of the day and year first above
written.
ATTEST: WY FUNDS
/s/ M. Xxxxx Xxxxx By: /s/ Xxxxx York
------------------- -------------------
Name: Mr. Xxxxx York
Title: President
ATTEST CITCO MUTUAL FUND DISTRIBUTORS, INC.
/s/ XXXXX By: /s/ Xxxx Xxxxx
------------------- -------------------
Name: Xxxx Xxxxx
Title: President
UNDERWRITING AGREEMENT
EXHIBIT A
The following Portfolios and share classes thereof are hereby made subject
to the underwriting Agreement dated as of February 5, 2005, with Citco Mutual
Fund Distributors, Inc. ("Underwriter") and WY Funds (the "Fund"), and each
agree to be bound by all the terms and conditions contained in said Agreement:
PORTFOLIOS Class A Class B No-Load
The Core Fund X
UNDERWRITING AGREEMENT
EXHIBIT B
The following fees are hereby made subject to the underwriting Agreement
dated as of February 5, 2005, with Citco Mutual Fund Distributors, Inc.
("Underwriter") and WY Funds (the "Fund"), and each agrees to be bound by all
the terms and conditions contained in said Agreement:
Underwriter will charge a flat fee of $3,000 per year for underwriting services
provided for Portfolios of the Fund that offer No-Load Shares only. The fund
will cause the advisor to make this payment to the underwriter. The payment is
not an expense of the fund. Underwriter will receive the underwriting
concessions set forth in the Fund's current prospectus and/or statement of
additional information as full compensation for underwriting services provided
for Portfolios of the Fund that offer Share Classes that charge sales loads.
