Exhibit (e)(1)
UNDERWRITING AGREEMENT
AGREEMENT made this 1st day of October, 1999, by and between INVESTORS CASH
TRUST, a Massachusetts business trust (the "Fund"), and XXXXXX DISTRIBUTORS,
INC., a Delaware corporation ("KDI").
In consideration of the mutual covenants hereinafter contained, it is hereby
agreed by and between the parties hereto as follows:
1. The Fund hereby appoints KDI to act as principal underwriter for the
distribution of shares of beneficial interest (hereinafter called "shares") of
the Fund in jurisdictions wherein shares of the Fund may legally be offered for
sale; provided, however, that the Fund in its absolute discretion may (a) issue
or sell shares directly to holders of shares of the Fund upon such terms and
conditions and for such consideration, if any, as it may determine, whether in
connection with the distribution of subscription or purchase rights, the payment
or reinvestment of dividends or distributions, or otherwise; (b) issue or sell
shares at net asset value to the shareholders of any other investment company,
for which KDI shall act as exclusive distributor, who wish to exchange all or a
portion of their investment in shares of such other investment company for
shares of the Fund; or (c) issue shares in connection with the merger or
consolidation of any other investment company with the Fund or the Fund's
acquisition, by purchase or otherwise, of all or substantially all of the assets
of any other investment company or all or substantially all of the outstanding
shares of any such company.
KDI accepts such appointment and agrees that it will use its best efforts with
reasonable promptness to sell such part of the authorized shares of the Fund
remaining unissued as from time to time shall be effectively registered under
the Securities Act of 1933 ("Securities Act"), at prices determined as
hereinafter provided and on terms hereinafter set forth, all subject to
applicable Federal and state laws and regulations and to the Fund's
organizational documents.
2. KDI shall sell shares of the Fund to or through qualified broker-dealers and
other financial services firms ("Firms") in such manner, not inconsistent with
the provisions hereof and the Fund's currently effective registration statement,
including the prospectus and statement of additional information and any
supplements or amendments thereto ("Registration Statement"), as KDI may
determine from time to time, provided that no Firm or other person shall be
appointed or authorized to act as agent of the Fund without the prior consent of
the Fund. In addition to sales made by it as agent of the Fund, KDI may, in its
discretion, also sell shares of the Fund as principal to persons with whom it
does not have selling agreements.
Shares of the Fund offered for sale or sold by KDI shall be so offered or sold
at a price per share determined in accordance with the Registration Statement
except as departure from such prices shall be permitted by the rules and
regulations of the Securities and Exchange Commission; provided, however, that
any public offering price for shares of the Fund shall be the net asset value
per share. The net asset value per share of each Portfolio of the Fund shall be
determined in the manner and at the times set forth in the Registration
Statement.
The price the Fund shall receive for all shares purchased from the Fund shall be
the net asset value used in determining the public offering price applicable to
the sale of such shares.
3. The Fund will use its best efforts to keep effectively registered under the
Securities Act for sale as herein contemplated such shares as KDI shall
reasonably request and as the Securities and Exchange Commission shall permit to
be so registered. Notwithstanding any other provision hereof, the Fund may
terminate, suspend or withdraw the offering of shares whenever, in its sole
discretion, it deems such action to be desirable.
4. The Fund will execute any and all documents and furnish any and all
information which may be reasonably necessary in connection with the
qualification of its shares for sale (including the qualification of the Fund as
a dealer where necessary or advisable) in such states as KDI may reasonably
request (it being understood that the Fund shall not be required without its
consent to comply with any requirement which in its opinion is unduly
burdensome). The Fund will furnish to KDI from time to time such information
with respect to the Fund and its shares as KDI may reasonably request for use in
connection with the sale of shares of the Fund.
5. KDI shall issue and deliver or shall arrange for various Firms to issue and
deliver on behalf of the Fund such confirmations of sales made by it pursuant to
this Agreement as may be required. At or prior to the time of issuance of
shares, KDI will pay or cause to be paid to the Fund the amount due the Fund for
the sale of such shares. Certificates shall be issued or shares registered on
the transfer books of the Fund in such names and denominations as KDI may
specify.
6. KDI shall order shares of the Fund from the Fund only to the extent that it
shall have received purchase orders therefor. KDI will not make, or authorize
any Firms or others to make, any short sales of shares of the Fund. KDI, as
agent of and for the account of the Fund, may repurchase the shares of the Fund
at such prices and upon such terms and conditions as shall be specified in the
Registration Statement. In selling or reacquiring shares of the Fund for the
account of the Fund, KDI will in all respects conform to the requirements of all
state and Federal laws and the Conduct Rules of the National Association of
Securities Dealers, Inc., relating to such sale or reacquisition, as the case
may be. KDI will observe and be bound by all the provisions of the Fund's
organizational documents (and of any fundamental policies adopted by the Fund
pursuant to the Investment Company Act of 1940, notice of which shall have been
given to KDI) which at the time in any way require, limit, restrict or prohibit
or otherwise regulate any action on the part of KDI.
KDI agrees to indemnify and hold harmless the Fund and each of its Board members
and officers and each person, if any, who controls the Fund within the meaning
of Section 15 of the Securities Act, against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
the Fund or such Board members, officers, or controlling persons may become
subject under such Act, 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 KDI or any of KDI's employees or representatives,
or (ii) may be based upon any untrue
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statement or alleged untrue statement of a material fact contained in the
Registration Statement or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading if such statement or omission was made in reliance upon
information furnished to the Fund by KDI, or (iii) may be incurred or arise by
reason of KDI's acting as the Fund's agent instead of purchasing and reselling
shares as principal in distributing the shares to the public, provided, however,
that in no case (i) is KDI's indemnity in favor of a Board member or officer or
any other person deemed to protect such Board member or officer or other person
against any liability to which any 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 obligations and duties
under this Agreement or (ii) is KDI to be liable under the indemnity agreement
contained in this paragraph with respect to any claim made against the Fund or
any person indemnified unless the Fund or such person, as the case may be, shall
have notified KDI in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claims 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), but failure
to notify KDI of any such claim shall not relieve KDI from any liability which
KDI may have to the Fund or any person against whom such action is brought
otherwise than on account of KDI's indemnity agreement contained in this
paragraph. KDI shall be entitled to participate, at KDI's own expense, in the
defense, or, if KDI so elects, to assume the defense of any suit brought to
enforce any such liability, but if KDI elects to assume the defense, such
defense shall be conducted by counsel chosen by KDI and satisfactory to the
Fund, to its officers and Board members, or to any controlling person or
persons, defendant or defendants in the suit. In the event that KDI elects to
assume the defense of any such suit and retain such counsel, the Fund, such
officers and Board members or controlling person or persons, defendant or
defendants in the suit shall bear the fees and expenses of any additional
counsel retained by them, but, in case KDI does not elect to assume the defense
of any such suit, KDI will reimburse the Fund, such officers and Board members
or controlling person or persons, defendant or defendants in such suit for the
reasonable fees and expenses of any counsel retained by them. KDI agrees to
notify the Fund promptly of the commencement of any litigation or proceedings
against it in connection with the issue and sale of any shares. The Fund shall
not, without the prior written consent of KDI, effect any settlement of any
pending or threatened action, suit or proceeding in respect of which the Fund is
or could have been a party and indemnity has or could have been sought hereunder
by the Fund, unless such settlement includes an unconditional release of KDI
from all liability on claims that are the subject matter of such action, suit or
proceeding.
The Fund agrees to indemnify and hold harmless KDI and each of KDI's directors
and officers and each person, if any, who controls KDI within the meaning of
Section 15 of the Securities Act, against any and all losses, claims, damages,
liabilities or litigation (including legal and other expenses) to which KDI or
such directors, officers or controlling persons may become subject under such
Act, 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 its employees or representatives, or (ii) may be based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the omission or alleged omission to
state therein a material fact required to be stated therein or
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necessary to make the statements therein not misleading if such statement or
omission was not made in reliance upon information furnished to KDI by the Fund;
provided, however, that in no case (i) is the Fund's indemnity in favor of a
director or officer or any other person deemed to protect such director or
officer or other person against any liability to which any 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 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 claims made against KDI or any such director, officer or controlling
person unless KDI or such director, officer or controlling person, as the case
may be, shall have notified the Fund in writing within a reasonable time after
the summons or other first legal process giving information of the nature of the
claim shall have been served upon KDI or upon such director, officer or
controlling person (or after KDI or such director, officer or controlling person
shall have received notice of such service on any designated agent), but failure
to notify the Fund of any such claim shall not relieve it from any liability
which it may have to the person against whom such action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. The Fund
will be entitled to participate at its own expense in the defense, or, if it so
elects, to assume the defense of any suit brought to enforce any such liability,
but if the Fund elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to KDI, its directors, officers, or
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
counsel, KDI, its directors, officers or controlling person or persons,
defendant or defendants in the suit, shall bear the fees and expenses of any
additional counsel retained by them, but, in case the Fund does not elect to
assume the defense of any such suit, it will reimburse KDI or such directors,
officers or controlling person or persons, defendant or defendants in the suit,
for the reasonable fees and expenses of any counsel retained by them. The Fund
agrees to notify KDI promptly of the commencement of any litigation or
proceedings against it or any of its officers or directors in connection with
the issuance or sale of any shares. KDI shall not, without the prior written
consent of the Fund, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which either KDI is or could have been a party
and indemnity has or could have been sought hereunder by KDI, unless such
settlement includes an unconditional release of the Fund from all liability on
claims that are the subject matter of such action, suit or proceeding.
7. The Fund shall assume and pay all charges and expenses of its operations not
specifically assumed or otherwise to be provided by KDI under this Agreement.
The Fund will pay or cause to be paid expenses (including the fees and
disbursements of its own counsel) and all taxes and fees payable to the Federal,
state or other governmental agencies on account of the registration or
qualification of securities issued by the Fund or otherwise. The Fund will also
pay or cause to be paid expenses incident to the issuance of shares of
beneficial interest, such as the cost of share certificates, issue taxes, and
fees of the transfer agent. KDI will pay all expenses (other than expenses which
one or more Firms may bear pursuant to any agreement with KDI) incident to the
sale and distribution of the shares issued or sold hereunder including, without
limiting the generality of the foregoing, all expenses of printing and
distributing any prospectus and of preparing, printing and distributing or
disseminating any other literature, advertising and selling aids in connection
with the offering of the shares for sale (except that such expenses need not
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include expenses incurred by the Fund in connection with the preparation,
typesetting, printing and distribution of any registration statement, prospectus
or report or other communication to shareholders in their capacity as such) and
expenses of advertising in connection with such offering.
8. This agreement shall become effective on the date hereof and shall continue
in effect until September 30, 2000 and from year to year thereafter, but only so
long as such continuance is approved in the manner required by the Investment
Company Act of 1940. Either party hereto may terminate this Agreement on any
date by giving the other party at least six months prior written notice of such
termination specifying the date fixed therefor. Without prejudice to any other
remedies of the Fund in any such event the Fund may terminate this Agreement at
any time immediately upon any failure of fulfillment of any of the obligations
of the KDI hereunder. This agreement shall automatically terminate in the event
of its assignment. The term "assignment" shall have the meaning set forth in the
Investment Company Act of 1940 and the rules and regulations thereunder.
9. KDI will not use or distribute or authorize the use, distribution or
dissemination by Firms or others in connection with the sale of such shares any
statements, other than those contained in the Fund's Registration Statement,
except such supplemental literature or advertising as shall be lawful under
Federal and state securities laws and regulations, and will furnish the Fund
with copies of all such material.
KDI will require each Firm to conform to the provisions hereof and the
Registration Statement with respect to the public offering price of the Fund's
shares, and neither KDI nor any such Firms shall withhold the placing of
purchase orders so as to make a profit thereby.
10. If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder shall not be thereby
affected.
11. Any notice under this Agreement shall be in writing, addressed and delivered
or mailed, postage prepaid, to the other party at such address as such other
party may designate for the receipt of such notice.
12. All parties hereto are expressly put on notice of the Fund's Agreement and
Declaration of Trust and all amendments thereto, all of which are on file with
the Secretary of The Commonwealth of Massachusetts, and the limitation of
shareholder and trustee liability contained therein. This Agreement has been
executed by and on behalf of the Fund by its representatives as such
representatives and not individually, and the obligations of the Fund hereunder
are not binding upon any of the trustees, officers or shareholders of the Fund
individually but are binding upon only the assets and property of the Fund. With
respect to any claim by KDI for recovery of that portion of the distribution
services fees (or any other liability of the Fund arising hereunder) allocated
to a particular Portfolio, whether in accordance with the express terms hereof
or otherwise, KDI shall have recourse solely against the assets of that
Portfolio to satisfy such claim and shall have no recourse against the assets of
any other Portfolio for such purpose.
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13. This Agreement shall be construed in accordance with applicable federal law
and (except as to Section 12 hereof which shall be construed in accordance with
the laws of The Commonwealth of Massachusetts) the laws of the State of
Illinois.
IN WITNESS WHEREOF, the Fund and KDI have caused this Agreement to be executed
as of the day and year first above written.
INVESTORS CASH TRUST ATTEST:
By: /s/ Xxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxx
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Xxxx X. Xxxxxx Xxxxxxx X. Xxxx
President Assistant Secretary
XXXXXX DISTRIBUTORS, INC. ATTEST:
By: /s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxxxx Xxxxxxx
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Title: President Title: Assistant Secretary
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