Exhibit 6
UNDERWRITING AGREEMENT
This UNDERWRITING AGREEMENT, made this 7th day of July, 1993, by and between
Xxxxxx Xxxxxx Southern Capital Fund, Inc., a Maryland corporation (the "Fund")
and Xxxxxx Xxxxxx & Company, Inc., a Tennessee corporation (the "Distributor"):
WHEREAS, the Fund is registered with the Securities and Exchange Commission as
an open-end, diversified investment company under the Investment Company Act of
1940, as amended (the "1940 Act") and has registered its shares of common stock
(the "Shares") for sale to the public under the Securities Act of 1933, as
amended (the "1933 Act"), and has registered its shares in accordance with the
provisions of various state securities laws; and
WHEREAS, the Fund has adopted a Distribution Plan pursuant to Rule 12b-1
("Distribution Plan"), dated August 14, 1986 and has amended that Plan as of
February 12, 1987 and July 7, 1993; and
WHEREAS, the Fund wishes to retain the Distributor as the principal underwriter
in connection with the offering and sale of the Shares and to furnish certain
other services to the Fund as specified in this Agreement; and
WHEREAS, this Agreement has been approved by a vote of the Fund's Board of
Directors and certain disinterested directors in conformity with paragraph
(b)(2) of Rule 12b-1 under the 1940 Act; and
WHEREAS, the Distributor is willing to act as principal underwriter and to
furnish such services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed as follows:
1. The Fund hereby appoints the Distributor as principal underwriter in
connection with the offering and sale of the Shares. The Fund authorizes the
Distributor, as exclusive agent for the Fund, subject to applicable federal and
state law and the Articles of Incorporation and By-laws of the Fund: (a) to
promote the Fund; (b) to solicit orders for the purchase of the Shares subject
to such terms and conditions as the Fund may specify; and (c) to accept orders
for the purchase of the Shares on behalf of the
omply with all applicable federal and state laws and offer the Shares on an
agency or "best efforts" basis under which the Fund shall only issue such Shares
as are actually sold.
2. The public offering price of the Shares shall be the net asset value per
share (as determined by the Fund) of the outstanding Shares of the Fund, plus
the applicable sales charge, if any, determined as set forth in the Registration
Statement. The Fund shall furnish the Distributor with a statement of each
computation of net asset value and of the details entering into such
computation.
3. The sales charge, if any, set forth in the Fund's Registration Statement
shall constitute compensation of the Distributor. As additional compensation
for the services performed and the expenses assumed by the Distributor under
this Agreement, including, but not limited to, any commissions paid for sales of
Shares, the Fund shall pay the Distributor, as promptly as possible after the
last day of each month, a service fee and a distribution fee, as applicable,
each calculated daily, pursuant to the Distri
of the service and distribution fees shall be made as promptly as possible at
the end of the month next succeeding the effective date of this Agreement, and
shall constitute a full payment of the fees due the Distributor for all
shareholder and distribution services prior to that date. If this Agreement is
terminated as of any date not the last day of a month, such fees shall be paid
as promptly as possible after such date of termination, shall be based on the
average daily net assets of the Fund in that
such date of termination, and shall be that proportion of such average daily net
assets as the number of business days in such period bears to the number of
business days in such month. The average daily net assets of the Fund shall in
all cases be based only on business days and be computed as of the time of the
regular close of business of the New York Stock Exchange, or such other time as
may be determined by the Board of Directors of the Fund. Each such payment
shall be accompanied by a report of the
d or by a reputable firm of independent accountants which shall show the amount
properly payable to the Distributor under this Agreement and the detailed
computation thereof.
4. As used in this Agreement, the term "Registration Statement" shall mean the
registration statement most recently filed by the Fund with the Securities and
Exchange Commission and effective under the 1933 Act, as such Registration
Statement is amended at the time in effect, and the terms "Prospectus" and
"Statement of Additional Information" shall mean the forms of prospectus and
statement of additional information, respectively, filed by the Fund as part of
the Registration Statement.
5. The Distributor, at no expense to the Fund, shall print and distribute to
prospective investors Prospectuses and Statements of Additional Information, and
may print and distribute such other sales literature, reports, forms and
advertisements in connection with the sale of the Shares as comply with the
applicable provisions of federal and state law. In connection with such sales
and offers of sale, the Distributor shall only give such information and make
only such statements or representations as are c
tatement of Additional Information or in information furnished in writing to the
Distributor by the Fund, and the Fund shall not be responsible in any way for
any other information, statements or representations given or made by the
Distributor or its representatives or agents. Except as specifically provided
in this Agreement, the Fund shall bear none of the expenses of the Distributor
in connection with its offer and sale of the Shares.
6. The Fund agrees at its own expense to register the Shares under the 1933 Act,
as amended, and under the securities laws of such states and jurisdictions as
the Distributor of the Fund shall agree, and to prepare and file from time to
time such Prospectuses and Statements of Additional Information, amendments,
reports and other documents as may be necessary to maintain the Registration
Statement. The Fund shall bear all expenses related to preparing and
typesetting such Prospectuses and other materials r
xpenses, including printing and mailing expenses, related to the Fund's
communications with persons who are shareholders of the Fund.
7. The Fund agrees to indemnify, defend and hold the Distributor, its several
officers and directors, and any person who controls the Distributor within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which the Distributor, its officers or
directors, or any such controlling person may i
er common law or otherwise, arising out of or based upon any alleged untrue
statement of a material fact contained in the Registration Statement or arising
out of or based upon any alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
provided, however, that this indemnification provision shall not inure to the
benefit of any person who is an officer or director of the Fund or who controls
the Fund within the meaning of Section 15
t of competent jurisdiction shall determine, or it shall have been determined by
controlling precedent, that such result would not be against public policy as
expressed in the 1933 Act, as amended, and further provided that in no event
shall anything contained in this Agreement be construed so as to protect the
Distributor against any liability to the Fund or its shareholders to which the
Distributor would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performan
of its reckless disregard of its obligations and duties under this Agreement.
8. The Distributor agrees to indemnify, defend and hold the Fund, its several
officers and directors, and any person who controls the Fund within the meaning
of Section 15 of the 1933 Act, free and harmless from and against any and all
claims, demands, liabilities and expenses (including the cost of investigating
or defending such claims, demands or liabilities and any counsel fees incurred
in connection therewith) which the Fund, its officers or directors, or any such
controlling person may incur, under th
, arising out of or based upon any alleged untrue statement of a material fact
contained in information furnished in writing by the Distributor to the Fund for
use in the Registration Statement or arising out of or based upon any alleged
omission to state a material fact in connection with such information required
to be stated in the Registration Statement or necessary to make such information
not misleading.
9. The Fund reserves the right at any time to withdraw all offerings of the
Shares by written notice to the Distributor at its principal office.
10. The Fund shall not issue certificates representing Shares unless requested
by a shareholder. If such request is transmitted through the Distributor, the
Fund will cause certificates evidencing the Shares owned to be issued in such
names and denominations as the Distributor shall from time to time direct,
provided that no certificates shall be issued for fractional Shares.
11. The Distributor may at its sole discretion repurchase Shares offered for
sale by the shareholders. Repurchase of Shares by the Distributor shall be at
the net asset value next determined after a repurchase order has been received.
The Distributor will receive no commission or other remuneration for
repurchasing Shares other than the fees set forth in paragraph 3 hereof. At the
end of each business day, the Distributor shall notify by telex or in writing
the Fund and State Street Bank and Trust Compan
f the orders for repurchase of Shares received by the Distributor since the last
such report, the amount to be paid for such Shares, and the identity of the
shareholders offering Shares for repurchase. Upon such notice, the Fund shall
pay the Distributor such amounts as are required by the Distributor for the
repurchase of such Shares in cash or in the form of a credit against moneys due
the Fund from the Distributor as proceeds from the sale of Shares. The Fund
reserves the right to suspend such repurcha
utor. The Distributor further agrees to act as agent for the Fund to receive
and transmit promptly to the Fund's transfer agent shareholder requests for
redemption of Shares.
12. The Distributor is an independent contractor and shall be an agent for the
Fund only in respect to the sale and redemption of the Shares.
13. The services of the Distributor to the Fund under this Agreement are not to
be deemed exclusive, and the Distributor shall be free to render similar
services or other services to others so long as its services hereunder are not
impaired thereby.
14. The Distributor shall prepare reports for the Board of Directors of the Fund
on a quarterly basis showing such information concerning expenditures related
to this Agreement as from time to time shall be reasonably requested by the
Board of Directors.
15. As used in this Agreement, the terms "securities" and "net assets" shall
have the meanings ascribed to them in the Articles of Incorporation of the Fund.
16. This Agreement will remain in effect for one year from the date of its
execution and from year to year thereafter, provided that such continuance is
specifically approved, at least annually: (i) by the Fund's Board of Directors
or by vote of a majority of the outstanding voting securities of the Fund, (ii)
by a vote of a majority of those members of the Fund's Board of Directors who
are not parties to this Agreement or interested persons of any such party, cast
in person at a meeting called for the pur
by vote of a majority of those members of the Fund's Board of Directors who are
not interested persons of the Fund and who have no direct or indirect financial
interest in this Agreement or in the Plan (the "Independent Directors").
Notwithstanding the foregoing, this Agreement may be terminated at any time by
the Fund without penalty by vote of the Fund's Board of Directors, by vote of a
majority of the Independent Directors, or by a vote of a majority of the
outstanding voting securities of the Fund, on
e to the Distributor. This Agreement may be terminated by the Distributor at
any time, without the payment of any penalty, upon 60 days' written notice to
the Fund. This Agreement will automatically and immediately terminate in the
event of its assignment. As used in this Agreement, the terms "majority of the
outstanding voting securities," "interested person" and "assignment" shall have
the same meaning as such terms have in the 1940 Act.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by
their officers thereunto duly authorized.
Attest: XXXXXX XXXXXX SOUTHERN
CAPITAL FUND, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Secretary
Attest: XXXXXX XXXXXX & COMPANY, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Vice President
