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UNDERWRITING AGREEMENT
BETWEEN
X. XXXX PRICE HEALTH SCIENCES FUND, INC.
AND
X. XXXX PRICE INVESTMENT SERVICES, INC.
THIS UNDERWRITING AGREEMENT, made as of
December 11, 1995, by and between X. XXXX PRICE HEALTH SCIENCES
FUND, INC., a corporation organized and existing under the laws
of the State of Maryland (hereinafter called the "Fund"), and
X. XXXX PRICE INVESTMENT SERVICES, INC., a corporation organized
and existing under the laws of the State of Maryland (hereinafter
called the "Distributor").
WITNESSETH:
WHEREAS, the Fund proposes to engage in
business as an open-end management investment company and to
register as such under the federal Investment Company Act of
1940, as amended ("ICA-40"); and
WHEREAS, the Distributor is engaged
principally in the business of distributing shares of the
investment companies sponsored and managed by either X. Xxxx
Price Associates, Inc. ("Price Associates") or Xxxx Xxxxx-Xxxxxxx
International, Inc. ("Xxxxx-Xxxxxxx") and is registered as a
broker-dealer under the Securities Exchange Act of 1934, as
amended, ("SEA-34") and is a member of the National Association
of Securities Dealers, Inc. ("NASD"); and
WHEREAS, the Fund desires the
Distributor to act as the distributor in the public offering of
its shares;
NOW, THEREFORE, in consideration of the
premises and the mutual promises hereinafter set forth, the
parties hereto agree as follows:
1. Delivery of Fund Documents. The Fund has furnished
Distributor with copies, properly certified or authenticated, of
each of the following:
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(a) Amended Articles of Incorporation, dated December __,
1995.
(b) By-Laws of the Fund as in effect on the date hereof.
(c) Resolutions of the Board of Directors of the Fund
selecting Distributor as principal underwriter and
approving this form of agreement.
The Fund shall furnish the Distributor from time to time
with copies, properly certified or authenticated, of all the
amendments of, or supplements to, the foregoing, if any.
The Fund shall furnish Distributor promptly with properly
certified or authenticated copies of any registration statements
filed by it with the Securities and Exchange Commission under the
Securities Act of 1933, as amended ("SA-33") or ICA-40, together
with any financial statements and exhibits included therein, and
all amendments or supplements thereto hereafter filed.
2. Sale of Shares. Subject to the provisions of Paragraphs 3,
4, and 6 hereof, and to such minimum purchase requirements as may
from time to time be currently indicated in the Fund's
prospectus, the Distributor is authorized to sell, as agent on
behalf of the Fund, shares of the Fund's capital stock ("Shares")
authorized for issuance and registered under SA-33. Distributor
may also sell Shares under offers of exchange between and among
the investment companies for which Price Associates and/or
Xxxxx-Xxxxxxx act as investment advisers ("Price Funds").
Distributor may also purchase as principal such Shares for resale
to the public. Such sale will be made by Distributor on behalf
of the Funds by accepting unconditional orders to purchase the
Shares placed with Distributor by investors and such purchases
will be made by Distributor only after acceptance by Distributor
of such orders. The sales price to the public of such Shares
shall be the public offering price as defined in Paragraph 5
hereof.
3. Sale of Shares by the Fund. The rights granted to the
Distributor shall be nonexclusive in that the Fund reserves the
right to sell its Shares to investors pursuant to applications
received and accepted by the Fund or its transfer agent.
Further, the Fund reserves the right to issue Shares in
connection with the merger or consolidation of any other
investment company, trust or personal holding company with the
Fund or the Fund's acquisition by the purchase or otherwise, of
all or substantially all of the assets of an investment company,
trust or personal holding company. Any right granted to
Distributor to accept orders for Shares, or to make sales on
behalf of the Fund or to purchase Shares for resale, will not
apply to Shares issued in connection with the merger or
consolidation of any other investment company with the Fund or
its
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acquisition by purchase or otherwise, of all or substantially all
of the assets of any investment company, trust or personal
holding company, or substantially all of the outstanding shares
or interests of any such entity, and such right shall not apply
to Shares that may be offered by the Fund to shareholders by
virtue of their being shareholders of the Fund.
4. Shares Covered by this Agreement. This Agreement relates to
the issuance and sale of Shares that are duly authorized,
registered, and available for sale by the Fund, including
redeemed or repurchased Shares if and to the extent that they may
be legally sold and if, but only if, the Fund authorizes the
Distributor to sell them.
5. Public Offering Price. All Shares sold by the Distributor
pursuant to this Agreement shall be sold at the public offering
price. The public offering price for all accepted subscriptions
will be the net asset value per share, as determined in the
manner provided in the Fund's Articles of Incorporation, as now
in effect, or as they may be amended (and as reflected in the
Fund's then current prospectus), next determined after the order
is accepted by the Distributor. The Distributor will process
orders submitted by brokers for the sale of Shares at the public
offering price exclusive of any commission charged by such broker
to his customer.
6. Suspension of Sales. If and whenever the determination of
net asset value is suspended and until such suspension is
terminated, no further orders for Shares shall be accepted by the
Distributor except such unconditional orders placed with the
Distributor before it had knowledge of the suspension. In
addition, the Fund reserves the right to suspend sales and
Distributor's authority to accept orders for Shares on behalf of
the Fund if, in the judgment of the Board of Directors of the
Fund, it is in the best interests of the Fund to do so, such
suspension to continue for such period as may be determined by
the Board of Directors of the Fund; and in that event, no orders
to purchase Shares shall be processed or accepted by the
Distributor on behalf of the Fund while such suspension remains
in effect except for Shares necessary to cover unconditional
orders accepted by Distributor before it had knowledge of the
suspension, unless otherwise directed by the Board of Directors
of the Fund.
7. Solicitation of Orders. In consideration of the rights
granted to the Distributor under this Agreement, Distributor will
use its best efforts (but only in states in which Distributor may
lawfully do so) to obtain from investors unconditional orders for
Shares authorized for issuance by the Fund and registered under
SA-33, provided that Distributor may in its discretion reject any
order to purchase Shares. This does not obligate the Distributor
to register or maintain its registration as a broker or dealer
under the state securities laws of any jurisdiction if, in the
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discretion of the Distributor, such registration is not practical
or feasible. The Fund shall make available to the Distributor at
the expense of the Distributor such number of copies of the
Fund's currently effective prospectus as the Distributor may
reasonably request. The Fund shall furnish to the Distributor
copies of all information, financial statements and other papers
which the Distributor may reasonably request for use in
connection with the distribution of Shares.
8. Authorized Representations. The Fund is not authorized by
the Distributor to give, on behalf of the Distributor, any
information or to make any representations other than the
information and representations contained in a registration
statement or prospectus filed with the SEC under SA-33 and/or
ICA-40, covering Shares, as such registration statement and
prospectus may be amended or supplemented from time to time.
Distributor is not authorized by the Fund to give on behalf
of the Fund any information or to make any representations in
connection with the sale of Shares other than the information and
representations contained in a registration statement or
prospectus filed with the Securities and Exchange Commission
("SEC") under SA-33 and/or ICA-40, covering Shares, as such
registration statement and prospectus may be amended or
supplemented from time to time, or contained in shareholder
reports or other material that may be prepared by or on behalf of
the Fund for the Distributor's use. This shall not be construed
to prevent the Distributor from preparing and distributing
tombstone ads and sales literature or other material as it may
deem appropriate. No person other than Distributor is authorized
to act as principal underwriter (as such term is defined in
ICA-40, as amended) for the Fund.
9. Registration and Sale of Additional Shares. The Fund will,
from time to time, use its best efforts to register under SA-33,
such Shares of the Fund as Distributor may reasonably be expected
to sell on behalf of the Fund. In connection therewith, the Fund
hereby agrees to register an indefinite number of Shares pursuant
to Rule 24f-2 under ICA-40, and to register such Shares as shall
be deemed advisable pursuant to Rule 24e-2 under ICA-40, as
amended. The Fund will, in cooperation with the Distributor,
take such action as may be necessary from time to time to qualify
such Shares (so registered or otherwise qualified for sale under
SA-33), in any state mutually agreeable to the Distributor and
the Fund, and to maintain such qualification.
10. Expenses. The Fund shall pay all fees and expenses:
a. in connection with the preparation, setting in
type and filing of any registration statement and
prospectus under SA-33 and/or ICA-40, and any
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amendments or supplements that may be made from
time to time;
b. in connection with the registration and
qualification of Shares for sale in the various
states in which the Fund shall determine it
advisable to qualify such Shares for sale.
(Including registering the Fund as a broker or
dealer or any officer of the Fund or other person
as agent or salesman of the Fund in any state.);
c. of preparing, setting in type, printing and
mailing any report or other communication to
shareholders of the Fund in their capacity as
such;
d. of preparing, setting in type, printing and
mailing prospectuses annually to existing
shareholders;
e. in connection with the issue and transfer of
Shares resulting from the acceptance by
Distributor of orders to purchase Shares placed
with the Distributor by investors, including the
expenses of confirming such purchase orders; and
f. of any issue taxes or (in the case of Shares
redeemed) any initial transfer taxes.
The Distributor shall pay (or will enter into arrangements
providing that persons other than Distributor shall pay) all fees
and expenses:
a. of printing and distributing any prospectuses or
reports prepared for its use in connection with
the distribution of Shares to the public;
b. of preparing, setting in type, printing and
mailing any other literature used by the
Distributor in connection with the distribution
of the Shares to the public;
c. of advertising in connection with the
distribution of such Shares to the public;
d. incurred in connection with its registration as a
broker or dealer or the registration or
qualification of its officers, directors or
representatives under federal and state laws; and
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e. incurred in connection with the sale and offering
for sale of Shares which have not been herein
specifically allocated to the Fund.
11. Conformity With Law. Distributor agrees that in selling
Shares it shall duly conform in all respects with the laws of the
United States and any state in which such Shares may be offered
for sale by Distributor pursuant to this Agreement and to the
rules and regulations of the NASD.
12. Independent Contractor. Distributor shall be an independent
contractor and neither Distributor, nor any of its officers,
directors, employees, or representatives is or shall be an
employee of the Fund in the performance of Distributor's duties
hereunder. Distributor shall be responsible for its own conduct
and the employment, control, and conduct of its agents and
employees and for injury to such agents or employees or to others
through its agents or employees. Distributor assumes full
responsibility for its agents and employees under applicable
statutes and agrees to pay all employee taxes thereunder.
13. Indemnification. Distributor agrees to indemnify and hold
harmless the Fund and each of its directors, officers, employees,
representatives and each person, if any, who controls the Fund
within the meaning of Section 15 of SA-33 against any and all
losses, liabilities, damages, claims or expenses (including the
reasonable costs of investigating or defending any alleged loss,
liability, damage, claim or expense and reasonable legal counsel
fees incurred in connection therewith) to which the Fund or such
of its directors, officers, employees, representatives or
controlling person may become subject under SA-33, under any
other statute, at common law, or otherwise, arising out of the
acquisition of any Shares by any person which (i) may be based
upon any wrongful act by Distributor or any of Distributor's
directors, officers, employees or representatives, or (ii) may be
based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
shareholder report or other information covering Shares filed or
made public by the Fund or any amendment thereof or supplement
thereto, or 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 if such statement or
omission was made in reliance upon information furnished to the
Fund by Distributor. In no case (i) is Distributor's indemnity
in favor of the Fund, or any person indemnified to be deemed to
protect the Fund or such indemnified person against any liability
to which the Fund or such person would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in
the performance of his duties or by reason of his reckless
disregard of his obligations and duties under this Agreement or
(ii) is Distributor to be liable under its indemnity agreement
contained in this Paragraph with respect to any claim
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made against the Fund or any person indemnified unless the Fund
or such person, as the case may be, shall have notified
Distributor in writing of the claim within a reasonable time
after the summons or other first written notification giving
information of the nature of the claim shall have been served
upon the Fund or upon such person (or after the Fund or such
person shall have received notice of such service on any
designated agent). However, failure to notify Distributor of any
such claim shall not relieve Distributor from any liability which
Distributor may have to the Fund or any person against whom such
action is brought otherwise than on account of Distributor's
indemnity agreement contained in this Paragraph.
Distributor shall be entitled to participate, at its own
expense, in the defense, or, if Distributor so elects, to assume
the defense of any suit brought to enforce any such claim, but,
if Distributor elects to assume the defense, such defense shall
be conducted by legal counsel chosen by Distributor and
satisfactory to the Fund, to its directors, officers, employees
or representatives, or to any controlling person or persons,
defendant or defendants, in the suit. In the event that
Distributor elects to assume the defense of any such suit and
retain such legal counsel, the Fund, its directors, officers,
employees, representatives or controlling person or persons,
defendant or defendants in the suit, shall bear the fees and
expenses of any additional legal counsel retained by them. If
Distributor does not elect to assume the defense of any such
suit, Distributor will reimburse the Fund, such directors,
officers, employees, representatives or controlling person or
persons, defendant or defendants in such suit for the reasonable
fees and expenses of any legal counsel retained by them.
Distributor agrees to promptly notify the Fund of the
commencement of any litigation or proceedings against it or any
of its directors, officers, employees or representatives in
connection with the issue or sale of any Shares.
The Fund agrees to indemnify and hold harmless Distributor
and each of its directors, officers, employees, representatives
and each person, if any, who controls Distributor within the
meaning of Section 15 of SA-33 against any and all losses,
liabilities, damages, claims or expenses (including the
reasonable costs of investigating or defending any alleged loss,
liability, damage, claim or expense and reasonable legal counsel
fees incurred in connection therewith) to which Distributor or
such of its directors, officers, employees, representatives or
controlling person may become subject under SA-33, under any
other statute, at common law, or otherwise, arising out of the
acquisition of any Shares by any person which (i) may be based
upon any wrongful act by the Fund or any of the Fund's directors,
officers, employees or representatives, or (ii) may be based upon
any untrue statement or alleged untrue statement of a material
fact contained in a
PAGE 8
registration statement, prospectus, shareholder report or other
information covering Shares filed or made public by the Fund or
any amendment thereof or supplement thereto, or 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 if such statement or omission was made in reliance
upon information furnished to Distributor by the Fund. In no
case (i) is the Fund's indemnity in favor of the Distributor, or
any person indemnified to be deemed to protect the Distributor or
such indemnified person against any liability to which the
Distributor or such person would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the
performance of his duties or by reason of his reckless disregard
of his obligations and duties under this Agreement, or (ii) is
the Fund to be liable under its indemnity agreement contained in
this Paragraph with respect to any claim made against
Distributor, or person indemnified unless Distributor, or such
person, as the case may be, shall have notified the Fund in
writing of the claim within a reasonable time after the summons
or other first written notification giving information of the
nature of the claim shall have been served upon Distributor or
upon such person (or after Distributor or such person shall have
received notice of such service on any designated agent).
However, failure to notify the Fund of any such claim shall not
relieve the Fund from any liability which the Fund may have to
Distributor or any person against whom such action is brought
otherwise than on account of the Fund's indemnity agreement
contained in this Paragraph.
The Fund shall be entitled to participate, at its own
expense, in the defense, or, if the Fund so elects, to assume the
defense of any suit brought to enforce any such claim, but, if
the Fund elects to assume the defense, such defense shall be
conducted by legal counsel chosen by the Fund and satisfactory to
Distributor, to its directors, officers, employees or
representatives, or to any controlling person or persons,
defendant or defendants, in the suit. In the event that the Fund
elects to assume the defense of any such suit and retain such
legal counsel, Distributor, its directors, officers, employees,
representatives or controlling person or persons, defendant or
defendants in the suit, shall bear the fees and expenses of any
additional legal counsel retained by them. If the Fund does not
elect to assume the defense of any such suit, the Fund will
reimburse Distributor, such directors, officers, employees,
representatives or controlling person or persons, defendant or
defendants in such suit for the reasonable fees and expenses of
any legal counsel retained by them. The Fund agrees to promptly
notify Distributor of the commencement of any litigation or
proceedings against it or any of its directors, officers,
employees, or representatives in connection with the issue or
sale of any Shares.
PAGE 9
14. Duration and Termination of This Agreement. This Agreement
shall become effective upon its execution ("effective date") and,
unless terminated as provided, shall remain in effect through
April 30, 1996 and from year to year thereafter, but only so long
as such continuance is specifically approved at least annually by
the vote of a majority of the directors of the Fund who are not
interested persons of Distributor or of the Fund, cast in person
at a meeting called for the purpose of voting on such approval,
and by vote of the directors of the Fund or of a majority of the
outstanding voting securities of the Fund. This Agreement may,
on 60 days' written notice, be terminated at any time, without
the payment of any penalty, by the vote of a majority of the
directors of the Fund who are not interested persons of
Distributor or the Fund, by a vote of a majority of the
outstanding voting securities of the Fund, or by Distributor.
This Agreement will automatically terminate in the event of its
assignment. In interpreting the provisions of this Paragraph 14,
the definitions contained in Section 2(a) of ICA-40 (particularly
the definitions of "interested person," "assignment," and
"majority of the outstanding securities") shall be applied.
15. Amendment of this Agreement. No provisions of this
Agreement may be changed, waived, discharged, or terminated
orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge, or
termination is sought. If the Fund should at any time deem it
necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the
recommendations or requirements of the SEC or other governmental
authority or to obtain any advantage under state or federal tax
laws and notifies Distributor of the form of such amendment, and
the reasons therefor, and if Distributor should decline to assent
to such amendment, the Fund may terminate this Agreement
forthwith. If Distributor should at any time request that a
change be made in the Fund's Articles of Incorporation or By-Laws
or in its methods of doing business, in order to comply with any
requirements of federal law or regulations of the SEC, or of a
national securities association of which Distributor is or may be
a member relating to the sale of Shares, and the Fund should not
make such necessary change within a reasonable time, Distributor
may terminate this Agreement forthwith.
16. Miscellaneous. It is understood and expressly stipulated
that neither the shareholders of the Fund, nor the directors of
the Fund shall be personally liable hereunder. The captions in
this Agreement are included for convenience of reference only,
and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect. This Agreement
may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
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17. Notice. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by
registered or certified mail, postage prepaid, addressed by the
party giving notice to the other party at the last address
furnished by the other party to the party giving notice: if to
the Fund, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and
if to the Distributor, at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000.
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ATTEST: X. XXXX PRICE HEALTH
SCIENCES FUND, INC.
/s/Xxxxxxx X. Xxxxxxx By:/s/Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx Xxxx X. Xxxxxxx
Assistant Secretary President
ATTEST: X. XXXX PRICE INVESTMENT SERVICES,
INC.
/s/Xxxxxxx Xxx Xxxx By:/s/Xxxxx X. Xxxxxxx
Xxxxxxxx Xxx Xxxx Xxxxx X. Xxxxxxx
Assistant Secretary Vice President
