EXHIBIT 23E
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of December 15, 1999, by and between Fairholme
Funds, Inc., a Maryland corporation (the "Fund"), Fairholme Capital Management,
LLC, a Delaware limited liability company (the "Adviser"), and B/D Holdings Inc,
a Nevada corporation ("Underwriter").
WHEREAS, the Fund is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "Act"); and
WHEREAS, the Adviser has registered with the Securities and Exchange
Commission as an investment adviser under the Investment Advisers Act of 1940,
as amended; and
WHEREAS, the Fund is authorized by its Articles of Incorporation and
by-laws to issue separate Portfolio of shares representing interests in separate
investment portfolios (the "Portfolios"), and
WHEREAS, The Fund has authorized the issuance of shares of beneficial
interest ("Shares") in the Portfolios which are identified on Exhibit B attached
hereto, which Exhibit B may be amended from time to time by mutual agreement of
the Fund, Adviser and Underwriter, and;
WHEREAS, Adviser and the Fund have entered into a previous contract wherein
Adviser is responsible for providing certain services to the Fund, a copy of
which is attached hereto as Exhibit 1 and incorporated herein by reference, and;
WHEREAS, Adviser is authorized, pursuant to the contract described above
with the Fund, to enter into contracts with third parties and engage such
parties to provide services to the Fund, and;
WHEREAS, Underwriter is a broker-dealer registered with the Securities and
Exchange Commission and a member of the National Association of Securities
Dealers, Inc., (the "NASD"); and
NOW, THEREFORE, in consideration of the promises and agreements of the
parties contained herein, the parties agree as follows:
1. APPOINTMENT. The Fund and Adviser hereby appoint Underwriter as
exclusive agent for the distribution of Shares of the Portfolio(s) in the states
listed in Exhibit A hereto, and Underwriter hereby accepts such appointment
under the terms of this Agreement. Notwithstanding any other provision hereof,
the Fund may terminate, suspend or withdraw the offering of Shares of any
Portfolio whenever, in its sole discretion, it deems such action to be
desirable.
2. SALE AND REPURCHASE OF SHARES.
(a) Underwriter, as agent for the Fund, will sell Shares to the public
against orders therefor at the net asset value, all such sales to comply with
the provisions of the Act and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
(b) Underwriter will also have the right to take, as agent for the Fund,
all actions, which, in Underwriter's judgement, are necessary to carry into
effect the distribution of the Shares.
(c) The net asset value of the Shares of each Portfolio (or Class of Shares
of a Portfolio) shall be determined in the manner provided in the Registration
Statement, and when determined shall be applicable to transactions as provided
for in the Registration Statement. The net asset value of the Shares of each
Portfolio (or each Class of Shares of a Portfolio) shall be calculated by the
Fund or by another entity on behalf of the Fund. Underwriter shall have no duty
to inquire into or liability for the accuracy of the net asset value per share
is calculated.
(d) On every sale, the Fund shall receive the applicable net asset value of
the Shares promptly, but in no event later than the third business day following
the date on which Underwriter shall have received an order for the purchase of
the Shares.
(e) Upon receipt of purchase instructions, Underwriter will transmit such
instructions to the Fund or its transfer agent for registration of the Shares
purchased.
(f) Nothing in the Agreement shall prevent Underwriter or any affiliated
person (as defined in the Act) of Underwriter from acting as underwriter or
distributor for any other person, firm or corporation (including other
investment companies) or in any way limit or restrict Underwriter or any such
affiliated person from buying, selling or trading any securities for its or
their own account or for the accounts of others for whom it or they may be
acting; provided, however, that Underwriter expressly represents that it will
undertake no activities which, in its judgment, will adversely affect the
performance of its obligations to the Fund under this Agreement.
(g) Underwriter, as agent of the Fund and for the account of the
Portfolio(s), may repurchase the Shares at such prices and upon such terms and
conditions as shall be specified in the Fund's Registration Statement. At the
end of each business day, the Underwriter shall notify the Fund and the Fund's
transfer agent of the number of Shares redeemed for each Portfolio, and the
identity of the shareholders or dealers offering Shares for repurchase. Upon
such notice, the Fund shall pay the Underwriter the net asset value of the
redeemed shares in cash or in the form of a credit against monies due the Fund
from the Underwriter as proceeds from the sale of Shares. The Fund reserves the
right to suspend such repurchase right upon written notice to the Underwriter.
The Underwriter further agrees to act as agent for the Fund to receive and
transmit promptly to the Fund's transfer agent, shareholder and dealer requests
for redemption of Shares in the Porfolio(s).
3. SALES OF SHARES BY THE FUND. The Fund reserves the right to issue or
sell Shares of the Portfolio(s) directly to the public at any time.
4. BASIS OF SALE OF SHARES. Underwriter does not agree to sell any specific
number of Shares. Underwriter, as agent for the Fund, undertakes to sell Shares
of the Portfolio(s) on a best effort basis only against orders therefor.
5. COMPLIANCE WITH NASD AND GOVERNMENT RULES.
(a) Underwriter will conform to the Rules of Fair Practice of the NASD and
the securities laws of any jurisdiction in which it sells Shares of the
Portfolio(s).
(b) The Fund and the Adviser agree to furnish to the Underwriter sufficient
copies of any agreements, plans or other materials it intends to use in
connection with sales of Shares in adequate time for the Underwriter to file and
clear them with the proper authorities before they are put in use, and not to
use them until so filed and cleared.
(c) Underwriter, at its own expense, will qualify as dealer or broker, or
otherwise, under all applicable State or federal laws required in order that
Shares may be sold in such States as may be mutually agreed upon by the parties,
except for expenses described in Exhibit A hereto, which will be paid by the
Adviser.
(d) Underwriter shall not make, or permit any representative, broker or
dealer to make, in connection with any sale or solicitation of a sale of the
Shares, any representations concerning the Shares except those contained in the
Fund's then current prospectus and statement of additional information covering
the Shares and in printed information approved by the Fund as information
supplemental to such prospectus and statement of additional information. Copies
of the Fund's then effective prospectus and statement of additional information
and any such printed supplemental information will be supplied by the Adviser to
Underwriter in reasonable quantities upon request.
6. RECORDS TO BE SUPPLIED BY FUND. The Fund shall furnish to Underwriter
copies of all information, financial statements and other papers which
Underwriter may reasonably request for use in connection with the distribution
of Shares of the Portfolio(s).
7. EXPENSES TO BE BORNE BY ADVISER. The Adviser will bear the following
expenses:
(a) preparation, setting in type, printing of sufficient copies of the
prospectus and statement of additional information for distribution to
shareholders, and the distribution to shareholders of the prospectus and
statement of additional information;
(b) preparation, printing and distribution of reports and other
communications to shareholders;
(c) registration of the Shares under the federal securities law;
(d) qualification of the Shares for sale in the jurisdictions designated by
Fund, Adviser and Underwriter;
(e) maintaining facilities for the issue and transfer of the Shares;
(f) supplying information, prices and other data to be furnished by the
Fund under this Agreement; and
(g) any original issue taxes or transfer taxes applicable to the sale or
delivery of the Shares of certificates therfor.
8. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold the Underwriter, its
officers, and directors, and any person who controls the Underwriter within the
meaning of Section 15 of the Securities Act of 1933 Act (the "1933 Act") or
Section 20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
free and harmless from and against any and all claims, demands or 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 Underwriter, its officers, directors or any such controlling persons
may incur under the 1933 Act, the 1934 Act, or under common law or otherwise,
arising out of or based upon any untrue statement of a material fact contained
in the Registration Statement or Prospectus or arising out of or based upon any
alleged omission to state a material fact required to be stated in either
thereof or necessary to make the statements in either thereof not misleading,
except insofar as such claims, demands, liabilities or expenses arise out of or
are based upon any such untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information furnished
in writing by the Underwriter to the Fund for use in the Registration Statement.
The Underwriter agrees to comply with all of the applicable terms and provisions
of the 0000 Xxx.
(b) The Underwriter agrees to indemnify, defend, and hold the Fund, its
officers, directors, employees shareholders and agents, and any person who
controls the Fund within the meaning of Section 15 of the 1933 Act of Section 20
of the 1934 Act, free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending
against such claims, demands or liabilities and any counsel fees incurred in
connection therewith) which the Fund, its directors, officers, employees,
shareholders and agents, or any such controlling person may incur under the 1933
Act, the 1934 Act or under common law or otherwise arising out of or based upon
any untrue statement of a material fact contained in information furnished in
writing by the Underwriter to the Fund for use in the Registration Statement, or
arising out of or based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in the
Registration Statement necessary to make such information not misleading.
(c) A party seeking indemnification hereunder (the Indemnitee) shall give
prompt written notice to the party from whom indemnification is sought
("Indemnitor") of a written assertion or claim of any threatened or pending
legal proceeding which may be subject to indemnity under this Section; provided,
however, that failure to notify the Indemnitor of such written assertion or
claim shall not relieve the indemnitor of any liability arising from this
Section. The Indemnitor shall be entitled, if it so elects, to assume the
defense of any suit brought to enforce a claim subject to this Agreement and
such defense shall be conducted by counsel chosen by the Indemnitor and
satisfactory to the Indemnitee; provided, however, that if the defendants
include both the Indemnitee and the Indemnitor, and the Indemnitee shall have
reasonably concluded that there may be one or more legal defenses available to
it which are different from or additional to those available to the Indemnitor
("conflict of interest"), the Indemnitor shall have the right to select separate
counsel to defend such claim on behalf of the Indemnitee. In the event that the
Indemnitor elects to assume the defense of any suit pursuant to the preceding
sentence and retains counsel satisfactory to the Indemnitee, the Indemnitee
shall bear the fees and expenses of additional counsel retained by it except for
reasonable investigation costs which shall be borne by the Indemnitor. If the
Indemnitor (i) does not elect to assume the defense of a claim, (ii) elects to
assume the defense of a claim but chooses counsel that is not satisfactory to
the Indemnitee or (iii) has no right to assume the defense of a claim because of
a conflict of interest, the Indemnitor shall advance or reimburse the
Indemnitee, at the election of the Indemnitee, reasonable fees and disbursements
of any counsel retained by Indemnitee, including reasonable investigation costs.
9. ADVANCES OF EXPENSES. The Adviser shall advance attorney's fees or other
expenses incurred by a Covered Person in defending a proceeding only to the
extent permitted by 1933 Act and the Act.
10. TERMINATION AND AMENDMENT OF THIS AGREEMENT. This Agreement shall
automatically terminate, without the payment of any penalty, in the event of its
assignment. This Agreement may be amended only if such amendment is approved (i)
by Underwriter, (ii) either by action of the Board of Directors of the Fund or
at a meeting of the Shareholders of the Fund by the affirmative vote of a
majority of the outstanding Shares, and (iii) by a majority of the Directors of
the Fund who are not interested persons of the Fund or of Underwriter, by vote
cast in person at a meeting called for the purpose of voting on such approval.
Either the Fund or Underwriter may at any time terminate this Agreement on sixty
(60) days' written notice delivered or mailed by registered mail, postage
prepaid, to the other party.
11. EFFECTIVE PERIOD OF THIS AGREEMENT. This Agreement shall take effect
upon its execution and shall remain in full force and effect for a period of ONE
year from the date of its execution (unless terminated automatically as set
forth in paragraph 10 and from year to year thereafter), subject to annual
approval (i) by Underwriter, (ii) by the Board of Directors of the Fund or a
vote of a majority of the outstanding Shares, and (iii) by a majority of the
Directors of the Fund who are not interested persons of the Fund or of
Underwriter, by vote cast in person at a meeting called for the purpose of
voting on such approval.
12. LIMITATION OF FUND'S LIABILITY. The Term "Fairholme Funds" means and
refers to the directors and officers from time to time serving under the Fund's
Articles of Incorporation as the same may subsequently thereto have been, or
subsequently hereto be, amended. It is expressly agreed that the obligations of
the Fund hereunder shall not be binding upon any of the Directors, Shareholders,
nominees, officers, agents or employees of the Fund personally, but bind only
the property of the Fund, as provided in Fund's Articles of Incorporation. The
execution and delivery of this Agreement have been authorized by the Directors
and Shareholders of the Fund and signed by the officers of the Fund and Adviser,
acting as such, and neither such authorization by such Directors and
Shareholders, nor such execution and delivery by such officers shall be deemed
to have been made by any of them individually or to impose any liability on them
personally, but shall bind only the trust property of the Fund as provided in
its Articles of Incorporation. A copy of the Articles of Incorporation of the
Fund is on file with the Secretary of State of Maryland.
13. SUCCESSOR INVESTMENT COMPANY. Unless this Agreement has been terminated
in accordance with Paragraph 10, the terms and provisions of this Agreement
shall become automatically applicable to any investment company which is a
successor to the Fund as a result of a reorganization, recapitalization or
change of domicile.
14. SEVERABILITY. In the event any provision of this Agreement is
determined to be void or unenforceable, such determination shall not affect the
remainder of this Agreement, which shall continue to be in force.
15. QUESTIONS OF INTERPRETATION.
(a) This Agreement shall be governed by the laws of the State of Ohio.
(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the Act shall be resolved by reference to such term or provision of the Act
and to interpretation thereof, if any, by the United States courts or in the
absence of any controlling decision of any such court, by rules, regulations or
orders of the Securities and Exchange Commission issued pursuant to said Act. In
addition, where the effect of a requirement of the Act, reflected in any
provision of this Agreement is revised by rule, regulation or order of the
Securities and Exchange Commission, such provision shall be deemed to
incorporate the effect of such rule, regulation or order.
16. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that for this purpose the
address of the Fund and the Adviser shall be 00 XXX Xxxxxxx, Xxxxx Xxxxx, XX
00000 and of the Underwriter shall be 0000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxx 00000.
17. COUNTERPARTS. This Agreement may be in one or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
18. BINDING EFFECT. Each of the undersigned expressly warrants and
represents that he has the full power and authority to sign this Agreement on
behalf of the party indicated, and that his signature will operate to bind the
party indicated to the foregoing terms.
19. FORCE MAJEURE. If Underwriter shall be delayed in its performance of
services or prevented entirely or in part from performing services due to causes
or events beyond its control, including and without limitation, acts of God,
interruption of power or other utility, transportation or communication
services, acts of civil or military authority, sabotages, national emergencies,
explosion, flood, accident, earthquake or other catastrophe, fire, strike or
other labor problems, legal action, present or future law, governmental order,
rule or regulation, or shortages or suitable parts, materials, labor or
transportation, such delay or non-performance shall be excused and a reasonable
time for performance in connection with the Agreement shall be extended to
include the period of such delay or non-performance.
IN WITNESS WHEREOF, the Fund, Adviser and Underwriter have each caused this
Agreement to be signed on its behalf, all as of the day and year first above
written.
ATTEST: B/D HOLDINGS INC
_________________________ By: __________________________
Name: ________________________
Title: _______________________
ATTEST FAIRHOLME FUNDS, INC.
__________________________ By: __________________________
Name: Xxxxx X. Xxxxxxxxx
------------------------------
Title: President, Director
------------------------------
ATTEST FAIRHOLME CAPITAL MANAGEMENT, LLC
__________________________ By: __________________________
Name: Xxxxxxx X. Senior
------------------------------
Title: Chief Financial Officer
------------------------------
UNDERWRITING AGREEMENT
EXHIBIT A
The following is a list of the states in which B/D Holdings Inc will act as
underwriter for the Portfolio(s) of the Fund, and the amount of expenses that
Adviser will pay on behalf of B/D Holdings Inc.
STATE EXPENSES
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UNDERWRITING AGREEMENT
EXHIBIT B
The following Portfolios are hereby made subject to the underwriting
Agreement dated December 15th, 1999 , with B/D Holdings, Inc. ("Underwriter"),
Fairholme Capital Management, LLC and Fairholme Funds, Inc., and each agree to
be bound by all the terms and conditions contained in said Agreement:
THE XXXXXXXXX XXXX
ATTEST FAIRHOLME FUNDS, INC.
_________________________ By: __________________________
Name: Xxxxx X. Xxxxxxxxx
Title: President, Director
ATTEST: B/D HOLDINGS INC
_________________________ By: __________________________
Name: ________________________
Title: _______________________
Attest: FAIRHOLME CAPITAL MANAGEMENT, LLC
_________________________ By: __________________________
Name: Xxxxxxx X. Senior
Title: Chief Financial Officer
