EXHIBIT 99.B6
UNDERWRITING AGREEMENT
BETWEEN
TRIFLEX FUND, INC.
AND
SECURITIES MANAGEMENT AND RESEARCH, INC.
THIS UNDERWRITING AGREEMENT (the "Agreement") is made and entered into
this 1st day of May 1993, by and between TRIFLEX FUND, INC., a Maryland
corporation hereinafter referred to as the "Fund", and SECURITIES MANAGEMENT
AND RESEARCH, INC., a Florida corporation hereinafter referred to as the
"Underwriter".
In consideration of the mutual covenants contained in this Agreement and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Underwriter and the Fund hereby agree as follows:
1. The Fund hereby appoints the Underwriter as exclusive distributor of the
shares of the Fund. During the term of this Agreement and any continuation
thereof, the Fund will sell or agree to sell any of its shares except to or
through the Underwriter at a public offering price determined in accordance
with Paragraph 3 hereof; PROVIDED, HOWEVER, that the Fund may issue shares at
net asset value:
(a) in connection with the merger or consolidation of any investment
company with the Fund or the acquisition by purchase or otherwise of
all or substantially all of the assets of any investment company by
the Fund;
(b) to the Fund's shareholders upon their reinvestment of dividends
of the Fund from net investment income or representing distributions
of the Fund from net realized capital gains;
(c) to the shareholders of the American National Growth Fund, Inc.,
American National Income Fund, Inc. and SM&R Capital Funds, Inc. (plus
any differential in sales charge in any series of the SM&R Capital
Funds, Inc.) pursuant to paragraph 5. hereof,
(d) to one or more unit investment trusts organized under the
Investment Company Act of 1940 and sponsored by the Underwriter; and
(e) to such other persons and entities approved or recommended by
Underwriter which the Fund's Board of Directors may from time to time
approve.
2. The Underwriter hereby accepts appointment as exclusive distributor of
the shares of the Fund and agrees that it will use its best efforts to sell
such shares; PROVIDED, HOWEVER, that by accepting this appointment as
exclusive distributor of the Fund shares, the Underwriter does not undertake
to sell all or any specified portion of the shares of the Fund.
3. The Underwriter agrees to offer shares of the capital stock of the Fund
to the public through its representatives and through dealers having sales
agreements with the Underwriter (PROVIDED, HOWEVER, that nothing provided for
in this Agreement shall obligate the Underwriter to execute sales agreements
with dealers or to sell any shares to dealers) at an offering price equal to
the sum of:
(a) the net asset value per share which is or becomes effective for
such order of the Fund shares, and
(b) such sales charge as may be fixed by the Underwriter with the
approval of the Board of
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Directors of the Fund but which shall in no event exceed five and
three-quarter percent (5 3/4%) of the offering price of the Fund
shares increased to the next higher even cent.
The "net asset value" of the Fund shares shall be computed by or on behalf
of the Fund, subject to and in conformity with:
(a) the Fund's Articles of Incorporation and By-Laws; and
(b) the applicable rules and regulations under the Investment Company
Act of 1940 by the Securities and Exchange Commission or by any
securities association of which the Underwriter is a member and is
registered under Section 15A of the Securities Exchange Act of 1934.
The full net asset value for the Fund shares purchased shall be remitted
to the Fund promptly after payment is received by the Underwriter and in no
event later than twelve (12) days after each purchase. The sales charge
received shall be retained by the Underwriter, and the Underwriter may fix
the portion of the sales charge to be allowed to its representatives or to
dealers having sales agreements with the Underwriter.
4. The Underwriter shall require the Fund to issue shares only to the extent
necessary (except for reasonable allowances for clerical errors, delays and
errors of transmission and cancellation of orders) to fill unconditional
orders for shares of the Fund placed with the Underwriter by investors and
dealers and not in excess of such unconditional orders, and the Underwriter
will not avail itself of any opportunity of making a profit by expediting or
withholding orders. In the event payment is not received by the Underwriter
for shares so issued by the Fund, the Underwriter shall reimburse the Fund
for the net asset value applicable to such purchase, and thereafter the
shares so issued will be redeemed at the net asset value applicable at the
time of redemption.
5. The Fund, the American National Growth Fund, Inc., the American National
Income Fund, Inc., and SM&R Capital Funds, Inc. have agreed to extend the
privilege to shareholders of such corporations to exchange shares owned by a
shareholder of one of such corporations into shares of the other corporation.
Such exchanges shall be on terms recommended or approved by the Underwriter
which the Fund's Board of Directors may from time to time approve. It is
understood that the Underwriter has agreed to waive its right to that portion
of the sales charge on shares exchanged pursuant to such exchange privilege.
6. The Fund hereby authorizes the Underwriter to redeem upon the terms and
conditions hereinafter set forth, as agent of the Fund and for its account,
such shares of stock of the Fund as may be offered for redemption to the Fund
from time to time:
(a) The Underwriter may accept redemption requests from a stockholder
of record (including a request from an agent of such stockholder), to
redeem such shares at a price equal to the net asset value per share
which is or becomes effective for such redemption, computed as set
forth in paragraph 3. hereof.
(b) The Underwriter agrees that all redemptions of the Fund's shares
made by it after this Agreement becomes effective shall be made only
as agent for the account of the Fund and pursuant to the terms and
conditions herein set forth.
(c) The Fund reserves the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such
suspension or revocation shall be effective forthwith upon receipt of
notice by an officer of the Underwriter by telegraph or written
instrument from an officer of the Fund duly authorized by its Board of
Directors. In the event that the authorization of the Underwriter is,
by terms of such notice, suspended:
(i) for more than forty-eight (48) hours, excluding from such period
any day on which
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the New York Stock Exchange is not open, or
(ii) until further notice, the authorization given by this Article 6
shall not be revived except by vote of the Board of Directors of
the Fund.
(d) The Underwriter shall have the right to terminate the operation
of this Article 6. upon giving to the Fund thirty (30) days' written
notice thereof.
(e) The Underwriter shall receive no commissions in respect of any
redemptions under the foregoing authorization and appointment as
agent.
7. The Underwriter covenants and agrees that in selling the shares of the
Fund, it will in all respects duly conform with all state and federal laws
relating to the sale of such securities, and will indemnify and save harmless
the Fund from any damage or expenses on account of any wrongful act by it or
its representatives. Neither the Underwriter nor any dealer nor any other
person is authorized by the Fund to give any information or to make any
representations other than those contained in the Registration Statement or
Prospectus filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (as said Registration Statement and
Prospectus may be amended from time to time), covering the shares of the Fund
or additional sales literature supplied by the Underwriter.
8. In connection with the purchase or sales of portfolio securities for the
account of the Fund, neither the Underwriter nor any officer or director of
the Underwriter shall act as principal.
9. This Agreement shall become effective on the date hereof and shall
continue in effect for a period of one (1) year and thereafter only so long
as such continuance is specifically approved at least annually by the Board
of Directors or by a vote of a majority of the outstanding voting securities
of the Fund, and in either case, by the specific approval by a majority of
the directors, who are not parties to such contract or agreement or
"interested" persons of any such parties, cast in person at a meeting called
for the purpose of voting on such approval, the term "interested" persons for
this purpose having the meaning defined in Section 2(a)(19) of the Investment
Company Act of 1940, as amended.
This Agreement may be terminated at any time without the payment of any
penalty, by vote of the Board of Directors of the Fund or by vote of the
holders of a majority of the outstanding shares of the Fund, or by the
Underwriter, on sixty (60) days' written notice to the other party.
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, as amended.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized and their corporate
seals to be affixed as of the time, day and year first above written.
TRIFLEX FUND, INC.
By: XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx, President
SECURITIES MANAGEMENT AND RESEARCH, INC.
By: XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx, Vice President
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