Exhibit 24(b)(6)(a)
UNDERWRITING AGREEMENT
This Agreement, dated as of the 12th day of August, 1994, made by and
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between Xxxxxxxx International Funds, a Delaware business trust (the "Trust")
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operating as a registered investment company under the Investment Company Act of
1940, as amended (the "Act"), duly organized and existing under the laws of the
State of Delaware; Xxxxxxxx International Capital Management, ("the Advisor"), a
registered investment adviser existing as a corporation duly organized and
existing under the laws of the State of California; and Fund/Plan Broker
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Services, Inc. ("Fund/Plan"), a corporation duly organized and existing under
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the laws of the State of Delaware (collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, the Trust is authorized by its Trust Instrument to issue separate
series of shares representing interests in separate investment portfolios (the
"Series"), which Series are identified on Schedule "C" attached hereto, and
which Schedule "C" may be amended from time to time by mutual agreement among
the Parties; and
WHEREAS, the Advisor has been appointed investment adviser to the Trust;
and
WHEREAS, Fund/Plan is a broker-dealer registered with the U.S. Securities
and Exchange Commission and a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Parties are desirous of entering into an agreement providing
for the distribution by Fund/Plan of shares of the Series of the Trust (the
"Shares"), and that Fund/Plan be compensated by the Advisor for providing such
services.
NOW, THEREFORE, in consideration of the promises and agreements of the
Parties contained herein, the Parties agree as follows:
1. Appointment.
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The Trust hereby appoints Fund/Plan as its exclusive agent for the
distribution of the Shares, and Fund/Plan hereby accepts such appointment
under the terms of this Agreement. The Trust agrees that it will not sell
any shares to any person except to fill orders for the shares received
through Fund/Plan; provided, however, that the foregoing exclusive right
shall not apply: (a) to shares issued or sold in connection with the merger
or consolidation of any other investment company with the Trust or the
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Broker Services, Inc.
Date drafted November 25, 1996 Page 1 of 9 pages.
acquisition by purchase or otherwise of all or substantially all of the
assets of any investment company or substantially all of the outstanding
shares of any such company by the Trust; (b) to shares which may be offered
by the Trust to its stockholders for reinvestment of cash distributed from
capital gains or net investment income of the Trust; or (c) to shares which
may be issued to shareholders of other funds who exercise any exchange
privilege set forth in the Trust's Prospectus. Notwithstanding any other
provision hereof, the Trust may terminate, suspend, or withdraw the offering
of the Shares whenever in its sole discretion, it deems such action to be
desirable.
2. Sale and Repurchase of Shares.
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(a) Fund/Plan is hereby granted the right as agent for the Trust, to sell
Shares to the public against orders therefor at the public offering
price (as defined in sub-paragraph 2.(c) hereof).
(b) Fund/Plan will also have the right to take, as agent for the Trust, all
actions which, in Fund/Plan's judgment, are necessary to carry into
effect the distribution of the Shares.
(c) The public offering price shall be the net asset value of the Shares
then in effect.
(d) The net asset value of the Shares shall be determined in the manner
provided in the then current prospectus, and statement of additional
information relating to the Shares and when determined shall be
applicable to all transactions as provided in the prospectus. The net
asset value of the Shares shall be calculated by the Trust or by
another entity on behalf of the Trust. Fund/Plan shall have no duty to
inquire into or liability for the accuracy of the net asset value per
Share as calculated.
(e) On every sale, the Trust shall receive the applicable net asset value
of the Shares promptly.
(f) Upon receipt of purchase instructions, Fund/Plan will transmit such
instructions to the Trust or its transfer agent for registration of the
Shares purchased.
(g) Nothing in this Agreement shall prevent Fund/Plan or any affiliated
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Broker Services, Inc.
Date drafted November 25, 1996 Page 2 of 9 pages.
person (as defined in the Act) of Fund/Plan from acting as underwriter
or distributor for any other person, firm or corporation (including
other investment companies) or in any way limit or restrict Fund/Plan
or 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 Fund/Plan
expressly agrees that it will not for its own account purchase any
shares of the Trust except for investment purposes and that it will not
for its own account sell any such shares except by redemption of such
shares by the Trust, and that it will not undertake in any activities
which, in its judgment, will adversely affect the performance of its
obligations to the Trust under this Agreement.
(h) Fund/Plan may repurchase Shares at such prices and upon such terms and
conditions as shall be specified in the Prospectus.
3. Rules of Sale of Shares.
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Fund/Plan does not agree to sell any specific number of Shares. Fund/Plan,
as Underwriter for the Trust, undertakes to sell Shares on a best efforts
basis and only against orders received therefor.
The Trust reserves the right to terminate, suspend or withdraw the sale of
its Shares for any reason deemed adequate by it and the Trust reserves the
right to refuse at any time or times to sell any of its Shares to any person
for any reason deemed adequate by it.
4. Rules of NASD.
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(a) Fund/Plan will conform to the Rules of Fair Practice of the NASD and
the securities laws of any jurisdiction in which it directly or
indirectly sells any Shares.
(b) Fund/Plan will require each dealer with whom Fund/Plan has a selling
agreement to conform to the applicable provisions of the Prospectus,
with respect to the public offering price of the Shares, and Fund/Plan
shall not cause the Trust to withhold the placing of purchase orders so
as to make a profit thereby.
(c) The Trust agrees to furnish to Fund/Plan sufficient copies of any
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Broker Services, Inc.
Date drafted November 25, 1996 Page 3 of 9 pages.
agreements, plans, communications with the public or other materials it
intends to use in connection with any sales of Shares in adequate time
for Fund/Plan to file and clear (unless Fund/Plan and the Trust agree
that any such material may be filed subsequent to distribution) such
materials with the proper authorities before they are put in use unless
Fund/Plan and the Trust agree that any such material may be filed
subsequent to distribution. In addition, the Trust agrees not to use
any such materials until so filed and cleared for use by appropriate
authorities and Fund/Plan.
(d) Fund/Plan, at its own expense, will qualify as a dealer or broker, or
otherwise, under all applicable state or federal laws required in order
that the Shares may be sold in such states as may be mutually agreed
upon by the Parties.
(e) Fund/Plan shall remain registered with the U.S. Securities and Exchange
Commission and a member of the National Association of Securities
Dealers for the term of this Agreement.
(f) Fund/Plan shall not, in connection with any sale or solicitation of a
sale of the Shares, make or authorize any representative, Service
Organization, broker or dealer to make, any representations concerning
the Shares except those contained in the Prospectus covering the Shares
and in communications with the public or sales materials approved by
Fund/Plan and the Trust as information supplemental to such Prospectus.
Copies of the Prospectus will be supplied by the Trust to Fund/Plan in
reasonable quantities upon request.
5. Records to be Supplied by the Trust.
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The Trust shall furnish to Fund/Plan copies of all information, financial
statements and other papers which Fund/Plan may reasonably request for use
in connection with the distribution of the Shares including, but not be
limited to, one certified copy of all financial statements prepared for the
Trust by its independent public accountants.
6. Expenses.
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(a) The Trust will bear the following expenses:
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Broker Services, Inc.
Date drafted November 25, 1996 Page 4 of 9 pages.
(i) preparation, setting in type, and printing of sufficient copies
of the prospectuses and statements of additional information for
distribution to shareholders, and the distribution of same to
the shareholders;
(ii) preparation, printing and distribution of reports and other
communications to shareholders;
(iii) registration of the Shares under the federal securities laws;
(iv) qualification of the Shares for sale in the jurisdictions
mutually agreed upon by the Trust and Fund/Plan;
(v) maintaining facilities for the issue and transfer of the Shares;
(vi) supplying information, prices and other data to be furnished by
the Trust under this Agreement; and
(vii) any original issue taxes or transfer taxes applicable to the
sale or delivery of the Shares or certificates therefor.
(b) the Advisor will pay all other expenses incident to the sale and
distribution of the Shares sold hereunder.
7. Term and Compensation.
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(a) The term of this Agreement shall commence on the date on which the
Trust's registration statement is declared effective by the U.S.
Securities and Exchange Commission ("Effective Date").
(b) This Agreement shall remain in effect for two (2) years from the
Effective Date. The 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 Series or by a
vote of the Trustees of the Trust, and (ii) by a vote of a majority of
the trustees of the Trust who are not interested persons or parties to
this Agreement (other than as Trustees of the Trust), cast in person at
a meeting called for the purpose of voting on such approval.
(c) Fees payable to Fund/Plan shall by paid by the Advisor as set forth in
Schedule "B" attached and shall be fixed for the two (2) years period
commencing on the Effective Date of this Agreement. Thereafter, the fee
schedule will be subject to annual review and adjustment.
(d) This Agreement (i) may at any time be terminated without the payment of
any
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Broker Services, Inc.
Date drafted November 25, 1996 Page 5 of 9 pages.
penalty, either by a vote of the Trustees of the Trust or by a vote of
a majority of the outstanding voting securities of each Series with
respect to such Series, on sixty (60) days' written notice to
Fund/Plan; and (ii) may be terminated by Fund/Plan on sixty (60) days'
written notice to the Trust with respect to any Series.
(e) This Agreement shall automatically terminate in the event of its
assignment.
8. Indemnification of Fund/Plan by Advisor.
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The Advisor will indemnify and hold Fund/Plan harmless for the actions of
its employees registered with the NASD as Fund/Plan representatives and will
undertake to maintain compliance with all rules and regulations concerning
any and all sales presentations made by such employees.
9. Liability of Fund/Plan.
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(a) Fund/Plan, its directors, officers, employees, shareholders and agents
shall not be liable for any error of judgment or mistake of law or for
any loss suffered by the Trust in connection with the performance of
this Agreement, except a loss resulting from a breach of Fund/Plan's
obligation pursuant to Section 4 of this Agreement, a breach of
fiduciary duty with respect to the receipt of compensation for services
or a loss resulting from willful misfeasance, bad faith or gross
negligence on the part of Fund/Plan in the performance of its
obligations and duties or by reason of its reckless disregard of its
obligations and duties under this Agreement.
(b) The Trust agrees to indemnify and hold harmless Fund/Plan against any
and all liability, loss, damages, costs or expenses (including
reasonable counsel fees) which Fund/Plan may incur or be required to
pay hereafter, in connection with any action, suit or other proceeding,
whether civil or criminal, before any court or administrative or
legislative body, in which Fund/Plan may be involved as a party or
otherwise or with which Fund/Plan may be threatened, by reason of the
offer or sale of the Trust shares by persons other that Fund/Plan,
prior to the execution of this Agreement.
(c) Any person, even though also a director, officer, employee, shareholder
or agent of Fund/Plan, who may be or become an officer, director,
trustee,
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Broker Services, Inc.
Date drafted November 25, 1996 Page 6 of 9 pages.
employee or agent of the Trust, shall be deemed, when rendering
services to the Trust or acting on any business of the Trust (other
than services or business in connection with Fund/Plan's duties
hereunder), to be rendering such services to or acting solely for the
Trust and not as a director, officer, employee, shareholder or agent,
or one under the control or direction of Fund/Plan even though
receiving a salary from Fund/Plan.
(d) The Trust agrees to indemnify and hold harmless Fund/Plan, and each
person, who controls Fund/Plan within the meaning of Section 15 of the
Securities Act of 1933, as amended (the "Securities Act"), or Section
20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages and liabilities,
joint or several (including any reasonable investigative, legal and
other expenses incurred in connection therewith) to which they, or any
of them, may become subject under the Act, the Securities Act, the
Exchange Act or other federal or state law or regulation, at common law
or otherwise insofar as such losses, claims, damages or liabilities (or
actions, suits or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in a prospectus, statement of additional
information, supplement thereto, sales literature or other written
information prepared by the Trust and furnished by the Trust to
Fund/Plan for Fund/Plan's use hereunder, disseminated by the Trust or
arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Such indemnity shall not, however, inure to the benefit of Fund/Plan
(or any person controlling Fund/Plan) on account of any losses, claims,
damages or liabilities (or actions, suits or proceedings in respect
thereof) arising from the sale of the shares of the Trust to any person
by Fund/Plan (i) if such untrue statement or omission or alleged untrue
statement or omission was made in the prospectus, statement of
additional information, or supplement, sales or other literature, in
reliance upon and in conformity with information furnished in writing
to the Trust by Fund/Plan specifically for use therein or (ii) if such
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Broker Services, Inc.
Date drafted November 25, 1996 Page 7 of 9 pages.
losses, claims, damages or liabilities arise out of or are based upon
an untrue statement or omission or alleged untrue statement or omission
found in any prospectus, statement of additional information,
supplement, sales or other literature, subsequently corrected, but,
negligently distributed by Fund/Plan and a copy of the corrected
prospectus was not delivered to such person at or before the
confirmation of the sale to such person.
10. Amendments.
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No provision of this Agreement may be amended or modified, in any manner
whatsoever except by a written agreement properly authorized and executed by
the Parties.
11. Section Headings.
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Section and Paragraph headings are for convenience only and shall not be
construed as part of this Agreement.
12. Reports.
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Fund/Plan shall prepare reports for the Board of Trustees of the Trust on a
quarterly basis showing such information as from time to time shall be
reasonably requested by such Board.
13. Severability.
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If any part, term or provision of this Agreement is held by any court to be
illegal, in conflict with any law or otherwise invalid, the remaining
portion or portions shall be considered severable and not affected, and the
rights and obligations of the parties shall be construed and enforced as if
the Agreement did not contain the particular part, term or provision held to
be illegal or invalid provided that the basic agreement is not thereby
substantially impaired.
14. Governing Law.
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This Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania and the venue of any action arising under this Agreement shall
be Xxxxxxxxxx County, Commonwealth of Pennsylvania if the suit is instituted
by the Trust or the Advisor. If a suit is instituted by Fund/Plan, the venue
of such action arising under this Agreement shall be San Francisco,
California.
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Broker Services, Inc.
Date drafted November 25, 1996 Page 8 of 9 pages.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement consisting of
nine type written pages, together with Schedules "A", "B" and "C", to be signed
by their duly authorized officers, as of the day and year first above written.
Xxxxxxxx International Capital
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Management
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/s/ G. Xxxx Xxxxxxxx
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By: G. Xxxx Xxxxxxxx,
President
Xxxxxxxx International Funds
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/s/ Xxxx Xxxxxxx
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By: Xxxx Xxxxxxx,
Vice President & Secretary
Fund/Plan Broker Services, Inc.
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/s/ Xxxxx X. Xxxx
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By: Xxxxx X. Xxxx,
President
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Broker Services, Inc.
Date drafted November 26, 1996 Page 9 of 9 pages.
Schedule "A"
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Underwriter/Distributor Services
for
Xxxxxxxx International Funds
I. Underwriter/Sponsor Services
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A) Preparation and execution of Underwriter and 12B-1 Plan Agreements
Monitoring accruals
Monitoring expenses
Disbursements for expenses and trail commissions
B) Quarterly 12B-1 Reports to Board of Directors and/or Trustees
C) Literature review, recommendations and submission to the NASD
D) All NASD required files and bookkeeping
E) Initial NASD Licensing and Transfers of Registered Representatives
This includes: U-4 Form and Fingerprint Submission to NASD
Supplying Series 6 and 63 written study material
Registration for Exam Preparation classes
Renewals and Terminations of Representatives
F) Written supervisory procedures and manuals for Registered
Representatives
G) Ongoing compliance and updates for Representatives regarding sales
practices, written correspondence and other communications with the
public.
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Services, Inc.
Date drafted: November 25, 1996 Schedule "A"
Schedule "B"
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Underwriter and Distribution Fee Schedule
for
Xxxxxxxx International Funds
This Fee Schedule is fixed for a period of two (2) years from the Effective Date
as that term is defined in the Agreement.
I. A) Underwriter/Sponsor Services
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The annual fee of $15,000 for services rendered as primary
Underwriter/Sponsor of the Trust and primary licensing/regulatory
agent for Trust personnel.
B) FPBS will maintain annual NASD and state license renewals and the
monitoring required of representative activities as follows:
Up to 2 States - $1,000 per Representative per Year
3 to 30 States - $2,500 per Representative per Year
31 to 50 States - $3,500 per Representative per Year
II. Out-of-Pocket Expenses
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The Advisor will reimburse Fund/Plan Services monthly for all out-of-
pocket expenses, including postage, telecommunications (telephone and
fax), special reports, record retention, special transportation costs as
incurred.
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Underwriting Agreement between McM Funds, McMorgan & Company and
Fund/Plan Services, Inc.
Date Drafted: April 18, 1994 Schedule "B"
Schedule "C"
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Identification of Series
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Below are listed the "Series" to which services under this Agreement are to be
performed as of the execution date of the Agreement:
"Xxxxxxxx International Funds"
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1. Xxxxxxxx Pacific Tiger Fund
2. Xxxxxxxx Asian Convertible Securities Fund
This Schedule "C" may be amended from time to time by agreement of the Parties.
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Underwriting Agreement between Xxxxxxxx International Funds, Xxxxxxxx
International Capital Management and Fund/Plan Services, Inc.
Date drafted November 25, 1996 Schedule "C"
