EX99.23(e)
UNDERWRITING AGREEMENT
Between
BABSON ENTERPRISE FUND II, INC.
and
XXXXX & XXXXXX, INC.
THIS AGREEMENT, made and entered into this 30th day of September, 1993, by
and between BABSON ENTERPRISE FUND II, INC., (a Maryland corporation,
hereinafter referred to as the "Fund") and XXXXX & XXXXXX, Inc. (a Missouri
corporation, hereinafter referred to as "Principal Underwriter")
1. Subject to the provisions of its Certificate of Incorporation and By-
Laws, copies of which have been delivered to and are acknowledged by the
Principal Underwriter, the Board of Directors of the Fund hereby appoint the
firm of Xxxxx & Babson, Inc. as the Principal Underwriter and sole
distributor of the shares of the Fund, except for shares which the Fund may
elect pursuant to authority of its Board of Directors to issue direct to
registered owners, which shall include by definition but not by limitation
stock issued by virtue of reinvestment of dividends, or as the result of a
splitting of shares, or as the result of the Fund merging or consolidating
with another organization, or in return for acquisition of assets, or as the
result of shares issued in connection with a contractual plan for which the
Fund is the underlying investment, or for the purpose of complying with the
registration laws of a particular state or jurisdiction.
2. In consideration of its appointment under this Agreement as Principal
Underwriter, Xxxxx & Xxxxxx, Inc. agrees to pay all costs of all management,
supervisory and administrative services required in the normal operation of
the Fund. This includes investment management and supervision; fees of the
custodian, independent public accountants and legal counsel; remuneration of
directors, officers and other personnel; rent; shareholder services,
including the maintenance of the shareholder accounting system and transfer
agency; and such other items as are incidental to corpor~te adm~nistration.
Not considered normal operating expenses and therefore payable by the Fund,
are taxes, interest, fees and other charges of governments and their agencies
including the cost of qualifying the Fund's shares for sale in any
jurisdiction, brokerage costs, dues and all extraordinary costs and expenses
including but not limited to legal and accounting fees incurred in
anticipation of or arising out of litigation or administrative proceedings to
which the Fund, its directors or officers may be subject or a party thereto.
3. The Fund agrees to prepare and file registration statements with the
Securities and Exchange Commission and the Securities Departments of the
various states and other jurisdictions in
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which the shares may be offered, and do such other things and to take such
other actions as may be mutually agreed upon by and between the parties as
shall be reasonably necessary in order to effect the registration and the
sale of the Fund's shares.
4. The Principal Underwriter agrees to place its full facilities at the
disposal of the Fund and to assist and cooperate fully with respect to the
registration and qualification of the Fund's shares, as well as perform all
functions required in connection with any offering including, but not limited
to, the creation and preparation of literature, advertising, and any other
promotional material for the purpose of selling the Fund's shares.
5. Xxxxx & Babson, Inc. will act as agent of the Fund and not as principal
in the solicitation and sale of the shares of the Fund unless expressly
agreed to in writing by the Principal Underwriter and the Fund.
6. Normally, the Fund shall not exercise any direction or control over the
time and place of solicitation, the persons to be solicited, or the manner of
solicitation; but the Principal Underwriter agrees that solicitations shall
be in a form acceptable to the Fund and shall be subject to such terms and
conditions as may be prescribed from time to time by the Fund, the
Registration Statement, the Prospectus, the Certificate of Incorporation, and
By-Laws of the Fund, and shall not violate any provision of the laws of the
United States or of any other jurisdiction to which solicitations are
subject, or violate any rule or regulation promulgated by any lawfully
constituted authority to which the Fund or Principal Underwriter may be
subject.
7. The Fund agrees to issue new shares direct to the registered owner
pursuant to this Agreement and according to instructions from the Principal
Underwriter, subject to the net asset value of such shares next effective
after acceptance of the order by the Fund and as more fully set out in
paragraph 8.
8. The Fund hereby authorizes the Principal Underwriter to sell its shares
in accordance with the following schedule of prices:
The applicable price will be the net asset value per share next
effective after receipt and acceptance by the Fund of a proper offer to
purchase, determined in accordance with the Certificate of
Incorporation, By-Laws, Registration Statement and Prospectus of the
Fund.
9. The Fund agrees that, as long as this Agreement is in effect, it will
not authorize anyone else to offer or solicit applications for shares of the
Fund and will not accept any such application if submitted by or through
anyone other than the Principal Underwriter, unless the Principal Underwriter
shall first have agreed in writing to such authorization.
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10. This Agreement (i) may be terminated without the payment of any
penalty, either by vote of the Board of Directors of the Fund or by vote of a
majority of the outstanding voting securities of the Fund, on sixty (60) days
written notice to the Principal Underwriter; (ii) may be terminated without
penalty by the Principal Underwriter on sixty (60) days written notice to the
Fund; and (iii) shall immediately terminate in the event of its assignment.
11. The Principal Underwriter agrees that it will not take either a short
or long position with respect to shares of the Fund; that it will not place
orders for more shares than are required to fill the requests received by it
as agent of the Fund; and that it will expeditiously transmit all such orders
to the Fund.
12. Nothing contained in this Agreement shall be deemed to protect the
Principal Underwriter against any liability to the Fund or to its securities
holders to which the Principal Underwriter would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties hereunder, or by reason of its reckless disregard
of its obligations and duties hereunder.
13. This Agreement shall become effective on the date first above written,
and continue in effect through the 31st day of October, 1994 and thereafter
shall continue automatically for successive annual periods ending with each
31st day of October, provided that such continuance is specifically approved
at least annually by the Board of Directors or by vote of a majority of the
outstanding voting securities of the Fund and provided further that this
Agreement or any renewal thereof shall be approved by the vote of a majority
of the Directors who are not parties to the Agreement or interested persons
of any such party, cast in person, at a meeting called for the purpose of
voting on such approval.
BABSON ENTERPRISE FUND II, INC.
By /s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
President
ATTEST:
/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Secretary
XXXXX & BABSON, INC.
By /s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
ATTEST:
/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
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