BERKELEY CAPITAL MANAGEMENT FUNDS
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Berkeley Financial Services
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Date: January __, 1997
Re: Underwriting Agreement
----------------------
Ladies and Gentlemen:
We are a Delaware business trust operating as an open-end management
investment company (hereinafter referred to as the "Trust"). As such, the Trust
is registered under the Investment Company Act of 1940, as amended (the "1940
Act"), and its shares are or will be registered under the Securities Act of
1933, as amended (the "1933 Act"). Each series of shares of beneficial interest
(individually a "Fund" and collectively the "Funds") authorized for issuance by
the Trust and for sale pursuant to this Agreement is listed in APPENDIX A
hereto, as such Appendix may be amended from time to time. Each series
constitutes a distinct and separate investment portfolio for shareholders of
such shares. We desire to offer and sell shares of the Funds (the "Shares") to
the public in accordance with the applicable federal and state securities laws.
A registration statement on Form N-1A (as amended from time to time, the
"Registration Statement") has been filed with the Securities and Exchange
Commission ("SEC") with respect to the shares we currently desire to be offered
and sold, and such Registration Statement with respect to such Shares has been
declared effective under the 1933 Act and 1940 Act by the SEC. The Registration
Statement contains a form of prospectus and statement of additional information
which, in the form such documents have been or will be filed with the SEC
pursuant to Rule 497 under the 1933 Act, are referred to herein, respectively,
as the "Prospectus" and the "Statement of Additional Information". The
Prospectus and Statement of Additional Information for each Fund are intended to
be the primary documents used in the offer and sale of Shares of such Fund.
You have informed us that your company is registered as a broker-dealer
under the provisions of the Securities Exchange Act of 1934, as amended, and
that your company is a member of the
Berkeley Financial Services, Inc.
Page 2
National Association of Securities Dealers, Inc. You have indicated your desire
to act as the exclusive selling agent and principal distributor for Shares of
each Fund. We have been authorized to execute and deliver this Agreement to you
on behalf of each Fund by consent of our Trustees, given at a meeting at which a
majority of our Trustees, including a majority of our Trustees who are not
otherwise interested persons of the Trust and who are not interested persons of
your company, were present and voted in favor of approving this Agreement.
1. APPOINTMENT OF UNDERWRITER. Upon the execution of this Agreement and
in consideration of the agreements on your part herein expressed and upon the
terms and conditions set forth herein and in our Registration Statement, as it
will be amended from time to time, we hereby appoint you as the exclusive sales
agent for the Shares of the Funds and agree that we will deliver such Shares as
you may sell. You agree to use your best efforts to promote the sale of Shares
of the Funds, but are not obligated to sell any specific number of Shares.
2. INDEPENDENT CONTRACTOR. You will undertake and discharge your
obligations hereunder as an independent contractor and shall have no authority
or power to obligate or bind us by your actions, conduct or contracts except
that you are authorized to accept orders for the purchase or repurchase of the
Shares as our agent. You may appoint sub-agents or distribute through dealers
(pursuant to a Master Selling Group Agreement that may be entered into in the
future) your own sales representatives or otherwise as you may determine from
time to time, but this Agreement shall not be construed as authorizing any
dealer or other person to accept orders for sale or repurchase of Shares of the
Funds on our behalf or otherwise act as our agent for any purpose.
3. PUBLIC OFFERING. The Shares of each Fund shall be offered for sale to
the public at (i) a price equal to their respective net asset value per Share
(without a sales load), or (ii) at a public offering price that includes the
applicable sales load, if any, as set forth in the then current Prospectus of
such Fund. On each business day that the New York Stock Exchange is open for
business, we will furnish you with the net asset value of the Shares, which
shall be determined and become effective on that day as set forth in the then
current effective Prospectus of each Fund. The net asset value so determined
shall apply to all orders for the purchase of our Shares received by dealers and
you prior to such determination, and you are authorized as our agent to accept
orders and confirm sales at such net asset value plus your sales commission as
may be applicable, provided that such dealers notify you of the time
Berkeley Financial Services, Inc.
Page 3
when they received the particular order and that the order is placed with you
prior to your close of business on the day that the applicable net asst value is
determined. To the extent that the Transfer Agent or Custodian for the Funds
receives payments on behalf of investors, such Agent shall be required to record
the time of such receipt with respect to each payment, and the applicable net
asset value and public offering price shall be that which is next determined and
effective after the time of receipt by them. In all events, you shall forthwith
notify such Agent (and any dealers comprising a selling group, if applicable) of
the effective net asset value as received from us. Should we at any time
calculate the net asset value more frequently than once each business day, you
and we will follow procedures with respect to such additional price or prices
comparable to those set forth above in this Section 3.
4. SALES LOAD OR COMMISSION. You shall be entitled to charge a sales
commission on the sale of the Shares of each Fund in the amount, if any, set
forth in the then current effective Prospectus for such Fund. Such commission
(subject to any quantity or other discounts or eliminations of commission as set
forth in the Fund's then current effective Prospectus) shall be an amount
mutually agreed upon between us and equal to the difference between the net
asset value and the public offering price of the Shares. You may allow such
sub-agents (or dealers, if applicable) such commissions or discounts, including
payments exceeding the total sales commission, as you shall deem advisable so
long as any such commissions or discounts are set forth in the then current
effective Prospectus of such Fund to the extent required by all applicable
securities laws. Unless otherwise agreed to as provided herein, Shares will be
offered at net asset value without any sales load.
5. PAYMENT FOR SHARES. At or prior to the time of delivery of any of the
Shares, you will pay or cause to be paid to the Fund's Custodian, for the
applicable Fund's account, an amount in cash equal to the net asset value of
such Shares. In the event that you pay for Shares sold by you prior to your
receipt of payment from purchasers, you are authorized to reimburse yourself for
the net asset value of such Shares when received by you.
6. TRANSFER AGENT REGISTRATION OF SHARES. No Shares of any Fund shall be
registered on the books of such Fund until (i) receipt by us of your written
request therefor; (ii) receipt by the Fund's Transfer Agent of a certificate
signed by an officer of the Trust stating the amount to be received therefor;
and (iii) receipt of payment of that amount by the Fund's Custodian. We will
provide for the recording of all Shares purchased in
Berkeley Financial Services, Inc.
Page 4
uncertificated form in "book accounts." Share certificates will not be issued.
7. PURCHASES FOR YOUR OWN ACCOUNT. You shall not purchase the Shares for
your own account for purposes of resale to the public, but you may purchase
shares for your own investment account upon written assurance that the purchase
is for investment purposes only and that the Shares will not be resold except
through redemption by us.
8. FURNISHING AND USE OF INFORMATION. We will furnish to you such
information with respect to each Fund and its Shares, in such form and signed by
such of our officers as you may reasonably request, and we warrant that the
statements therein contained when so signed will be true and correct. We will
also furnish you with such information and will take such action as you may
reasonably request in order to qualify the Shares for sale to the public under
the securities laws of jurisdictions in which you may wish to offer them. We
will furnish you at least annually with audited financial statements of our
books and accounts certified by independent public accountants, and, from time
to time, with such additional information regarding our financial condition as
you may reasonably request. We or each Fund's investment manager will furnish
you with as many copies of each Fund's current Prospectus, Statement of
Additional Information and Annual and Semi-Annual Reports to Shareholders as you
shall reasonably request; we hereby undertake that each such prospectus,
Statement of Additional Information and Annual and Semi-Annual Report to
Shareholders will be current, accurate and complete in all material respects and
that any supplements to or revised versions of a Prospectus or Statement of
Additional Information will be promptly furnished to you. You agree that, in
distributing a Fund's Shares, you will only use the most current versions of the
Prospectus and Statement of Additional Information, and the most current Annual
and Semi-Annual Reports to Shareholders, each as supplied, supplemented or
revised by us.
9. MARKETING MATERIALS. Other than each Fund's current Prospectus,
Statement of Additional Information, and Annual and Semi-Annual Report or other
periodic Reports to Shareholders, you will not disseminate to the public any
information about the Fund without prior approval. You agree that all
advertising, sales, and marketing materials or other statements about a Fund
that are disseminated to the public will conform to the requirements of all
applicable securities laws and regulations and will be or will have been filed,
where necessary, with the appropriate regulatory authorities. We must approve
all such marketing materials prior to use and no such materials shall be
published or distributed if we shall reasonably and promptly object.
Berkeley Financial Services, Inc.
Page 5
10. CONDUCT OF BUSINESS. You shall comply with the applicable securities
laws and regulations of the jurisdiction where the Shares are offered for sale
and conduct your affairs with us and with dealers, brokers or investors in
accordance with the Conduct Rules of the National Association of Securities
Dealers, Inc.
11. ALLOCATION OF EXPENSES.
(a) We or each Fund's investment manager will pay all expenses which are
typically associated with the operation of our business and the business of the
Fund including without limitation (i) all costs associated with the preparation,
printing and distribution of current Prospectuses, Statements of Additional
Information, Annual and Semi-Annual Reports to Shareholders and, to the extent
legally permitted, any marketing materials relating to the Funds (except such
materials as you shall separately request and agree to pay for) and (ii) the
filing and other fees to federal, state and other securities regulatory
authorities necessary to register and maintain registration of the Shares.
(b) You will be responsible for (i) the costs of preparing, printing,
filing and distributing marketing materials which you specifically request and
wish to use in distributing a Fund's Shares, which materials are in addition to
any advertising, sales and marketing materials made available to you by each
Fund's investment manager, (ii) the costs and fees associated with filing of
copies of all advertising, sales and marketing material used by you with respect
to a Fund with the appropriate federal, state and securities regulatory
authorities and obtain the approval of the appropriate regulatory authorities of
such marketing materials if any such approval is required, and (iii) all costs
incurred by you in carrying out your responsibilities under this Agreement.
12. OTHER ACTIVITIES. Your services pursuant to this Agreement shall not
be deemed to be exclusive, and you may render similar services and act as an
underwriter, distributor, or dealer for other investment companies in the
offering of their shares.
13. TERM OF AGREEMENT.
(a) This Agreement shall become effective on the date of its execution
written below and shall remain in effect for a period of two (2) years from the
date of its execution. This 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 Fund or by
Berkeley Financial Services, Inc.
Page 6
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.
(b) This Agreement: (i) may at any time be terminated without the payment
of any penalty, either by vote of the Trustees of the Trust or by a vote of a
majority of the outstanding voting securities of each Fund with respect to such
Fund, on sixty (60) days' written notice to you; (ii) shall immediately
terminate in the event of its assignment; and (iii) may be terminated by you on
sixty (60) days' written notice to us with respect to any Fund.
14. SUSPENSION OF SALES. We reserve the right at all times to suspend or
limit the public offering of the Shares upon written notice to you and to reject
any order for the purchase of the Shares in whole or in part.
15. LIABILITY. Nothing herein shall be deemed to protect you against any
liability to us or to our securities holders to which you would otherwise be
subject by reason of your willful misfeasance, bad faith or gross negligence in
the performance of your duties hereunder, or by reason of your reckless
disregard of your obligations and duties hereunder.
16. INDEMNIFICATION. We agree to indemnify and hold you harmless from and
against any and all losses, claims, damages or liabilities to which you may
become subject under the 1933 Act, the 1940 Act or any state securities statute,
and to reimburse you for any legal or other expenses reasonably incurred by you
in connection with any claim or litigation, whether or not resulting in any
liability, insofar as such losses, claims, damages, liabilities, or litigation
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission of a material fact contained in the Registration
Statement of the Trust; provided, however, that this indemnity shall not apply
to any such losses, claims, damages, liabilities, or litigation arising out of
or based upon any untrue statement or omission or alleged untrue statement or
omission of a material fact contained in the Registration Statement, which
statement or omission was made in reliance upon information furnished to us by
you for inclusion in the Registration Statement.
You agree to indemnify and hold us harmless from and against any and all
losses, claims, damage or liabilities to which we may become subject under the
1933 Act, the 1940 Act or any state securities statute, and reimburse us for any
legal or other
Berkeley Financial Services, Inc.
Page 7
expenses reasonably incurred by us in connection with any claim or litigation,
whether or not resulting in any liability, insofar as such losses, claims,
damages, liabilities, or litigation arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission of a material fact
contained in the Registration Statement; provided, however, that this indemnity
shall not apply to any such losses, claims, damages, liabilities, or litigation
arising out of or based upon any untrue statement or omission or alleged untrue
statement or omission of a material fact contained in the Registration
Statement, where such statement or omission was not made in reliance upon
information furnished to us by you for inclusion in the Registration Statement.
17. DISCLAIMER OF LIABILITY. You acknowledge that you have received
notice of and accept the limitations on the Trust's liability set forth in its
Agreement and Declaration of Trust, as amended from time to time. In accordance
therewith, you agree that the Trust's obligations hereunder shall be limited to
each Fund and the assets of each Fund, and no party shall seek satisfaction of
any such obligation from any shareholders of the Trust, nor from any Trustee,
officer, employee or agent of the Trust.
18. MISCELLANEOUS. This Agreement shall be subject to the laws of the
State of California and shall be interpreted and construed to further and
promote the operation of the Trust as an open-end investment company. As used
herein the terms "net asset value," "offering price," "investment company,"
"open-end investment company," "assignment," "principal underwriter,"
"interested person," "parents," and "majority of the outstanding voting
securities," shall have the meanings set forth in the 1933 Act and the 1940 Act
and the Rules and Regulations thereunder.
Berkeley Financial Services, Inc.
Page 8
If the foregoing meets with your approval, please acknowledge your
acceptance by signing each of the enclosed counterparts hereof and returning two
such counterparts to us, whereupon this shall constitute a binding agreement as
of the date first above written.
Very truly yours,
Berkeley Capital Management Funds on behalf
of the Funds set forth in APPENDIX A (as may
be amended)
By:
------------------------------------------
Title:
---------------------------------------
Accepted:
Berkeley Financial Services
By:
--------------------------
Title:
-----------------------
BERKELEY CAPITAL MANAGEMENT FUNDS
APPENDIX A
TO
UNDERWRITING AGREEMENT
1. This Agreement applies to Berkeley Capital Management Money Market Fund.
BERKELEY CAPITAL MANAGEMENT FUNDS
By
----------------------------------
Accepted:
BERKELEY FINANCIAL SERVICES
By
--------------------------
