Exhibit e.1
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
THIS AGREEMENT made as of this 1st day of July, 1998, by and between
the PHOENIX-SENECA FUNDS, a Delaware business trust having a place of business
located at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Fund")
and Phoenix Equity Planning Corporation, a Connecticut corporation having a
place of business located at 000 Xxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxxx
(the "Underwriter").
WITNESSETH THAT:
1. The Fund hereby grants to the Underwriter the right to purchase shares
of beneficial interest of each class of each series of the Fund established and
designated as of the date hereof and of any additional series and classes
thereof which the Board of Directors or Board of Trustees, as applicable
("Trustees") may establish and designate during the term of this Agreement
(called the "Series" and "Classes", respectively) and to resell shares of
various Classes, as applicable, of each Series (collectively called the
"Shares") as principal and not as agent. The Underwriter accepts such
appointment and agrees to render the services described in this Agreement for
the compensation herein provided.
2. The Underwriter's right to purchase Shares shall be exclusive except
that the terms of this Agreement shall not apply to Shares issued or
transferred:
a) pursuant to an offer of exchange exempted under Section 22(d)
of the Investment Company Act of 1940, as amended (the "Act")
by reason of the fact that said offer is permitted by Section
11 of the Act, including any offer made pursuant to clause (1)
or (2) of Section 11(c);
b) upon the sale to a registered unit investment trust which is
the issuer of periodic payment plan certificates the net
proceeds of which are invested in redeemable securities;
c) pursuant to an offer made solely to all registered holders of
Shares, or all registered holders of Shares of any Series,
proportionate to their holdings or proportionate to any cash
distribution made to them by the Fund (subject to appropriate
qualifications designed solely to avoid issuance of fractional
securities);
d) in connection with any merger or consolidation of the Fund or
of any Series with any other investment company or the
acquisition by the Fund, by purchase or otherwise, of any
other investment company;
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e) in connection with the reinvestment by Fund shareholders of
dividend and capital gains distributions; or
f) pursuant to any applicable reinstatement privilege or as
otherwise provided in the then current registration statement
of the Fund.
3. The "Net Asset Value" and the "Public Offering Price" of the Shares as
referred to in this Agreement shall be computed in accordance with the
provisions of the then current registration statement of the Fund. The
Underwriter shall be notified promptly by the Fund of such computations.
4. The Underwriter has and shall enter into written sales agreements with
broker/dealers ("dealers") and with banks as defined in Section 3(a)(6) of the
Securities Exchange Act of 1934, as amended, ("Exchange Act") that are not
required to register as a broker/dealer under the Exchange Act or the
regulations thereunder ("Banks"). Such sales agreements shall provide that
dealers or Banks shall use their best efforts to promote the sale of Shares.
Such sales agreements shall include such terms and conditions as Underwriter may
determine not inconsistent with this Agreement; provided, however, that such
sales agreements shall specify a) that the dealer is registered as a
broker/dealer under the Exchange Act and a member of the National Association of
Securities Dealers, Inc. or, in the alternative, that the Bank is exempt from
broker/dealer registration under the Exchange Act; and b) that such dealers and
Banks agree that they will comply with all applicable state, and federal laws
and the rules and regulations of applicable regulatory agencies.
5. Each day the Underwriter shall have the right to purchase from the
Fund, as principal, the amount of Shares needed to fill unconditional orders for
such Shares received by the Underwriter from dealers, Banks, or investors, but
no more than the Shares needed, at a price equal to the Net Asset Value of the
Shares. Any purchase of Shares by the Underwriter under this Agreement shall be
subject to reasonable adjustment for clerical errors, delays and errors of
transmission and cancellation of orders.
6. With respect to transactions other than with dealers or Banks, the
Underwriter will sell Shares only at the Public Offering Price then in effect,
except to the extent that sales at less than the Public Offering Price may be
allowed by the Act, any rule or regulation promulgated thereunder or by order of
the Securities and Exchange Commission, provided, however, that any such sales
at less than the Public Offering Price shall be consistent with the terms of the
then current registration statement of the Fund. The Underwriter will sell at
Net Asset Value Shares of any Classes which are offered by the then current
registration statement or prospectus of the Fund for sale at such Net Asset
Value or at Net Asset Value with a contingent deferred sales charge ("CDSC
Shares"). The Underwriter shall receive from the Fund all contingent deferred
sales charges applied on redemptions of CDSC Shares.
7. Sales at a discount from the Public Offering Price shall be made in
accordance with the terms and conditions of the terms of the current
registration statement of the Fund allowing such
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discounts. Such discounts shall not exceed the difference between the Net Asset
Value and the Public Offering Price; however, the Underwriter may offer
compensation in excess of the difference between the Net Asset Value and the
Public Offering Price, at its discretion and from its own profits and resources,
and only as described in the current registration statement of the Fund. With
respect to sales of CDSC Shares, the Underwriter, in accordance with the terms
of the current registration statement of the Fund, shall pay dealers a
commission on such sales from its profits and resources.
8. As reimbursement for expenditures made in connection with providing
certain distribution-related services, the Underwriter may receive from the Fund
a distribution fee under the terms and conditions set forth in the Fund's
distribution plan adopted under Rule 12b-1 under the Act, as the plan may be
amended from time to time (the "12b-1 Plan") and subject to any further
limitations on such fees as the Trustees may impose. The Underwriter may also
receive from the Fund a service fee under the 12b-1 Plan to be retained by the
Underwriter as compensation for providing services to shareholders of the Fund
or to be paid to dealers and Banks for providing services to their clients who
are also shareholders of the Fund.
9. The Fund shall furnish the Underwriter with copies of its
organizational documents, as amended from time to time. The Fund shall also
furnish the Underwriter with any other documents of the Fund which will assist
the Underwriter in the performance of its duties hereunder.
10. The Underwriter agrees to use its best efforts (in states where it may
lawfully do so) to obtain from investors unconditional orders for Shares
authorized for issue by the Fund and registered under applicable Federal
securities laws, and, so long as it does so, nothing herein contained shall
prevent the Underwriter from entering into similar arrangements with other
registered investment companies. The Underwriter may, in the exercise of its
discretion, refuse to accept orders for Shares from any person.
11. Upon receipt by the Fund of a purchase order from the Underwriter,
accompanied by proper delivery instructions, the Fund shall, as promptly as
practicable thereafter, cause evidence of ownership of Shares to be delivered as
indicated in such purchase order. Payment for such Shares shall be made by the
Underwriter to the Fund in a manner acceptable to the Fund, provided that the
Underwriter shall pay for such Shares no later than the third business day after
the Underwriter shall have contracted to purchase such shares.
12. In connection with offering for sale and selling Shares, the Fund
authorizes the Underwriter to give only such information and to make only such
statements or representations as are contained in the then current registration
statement of the Fund. The Underwriter shall be responsible for the approval and
filing of sales material as required under SEC and NASD regulations.
13. In performing its services pursuant to this Agreement, the Underwriter
shall comply with all applicable laws, rules and regulations, including, without
limitation, all rules and regulations
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made or adopted by the SEC or by any securities association registered under the
Exchange Act, and the securities laws of those states in which Shares are sold.
14. The Underwriter shall prepare and deliver reports to the Treasurer of
the Fund on a regular, at least quarterly basis, showing the expenses incurred
pursuant to this Agreement and pursuant to the 12b-1 Plan, and the purposes
therefor, as well as any supplemental reports the Trustees from time to time may
reasonably request. The Underwriter also agrees to furnish such information as
is reasonably necessary to assist the Trustees in evaluating any distribution
plan affecting any Class, or any proposed amendment thereto.
15. The Fund agrees to pay the following expenses:
a) the cost of mailing any stock certificates representing
Shares;
b) fees and expenses (including legal expenses) of registering
and maintaining registrations of the Fund and of each Series
and Class with the Securities and Exchange Commission
including the preparation and printing of registration
statements and prospectuses for filing with said Commission;
c) fees and expenses (including legal expenses) incurred in
registering and qualifying Shares for sale with any state
regulatory agency and fees and expenses of maintaining,
renewing, increasing or amending such registrations and
qualifications;
d) the expense of any issue or transfer taxes upon the sale of
Shares to the Underwriter by the Fund;
e) the cost of preparing and distributing reports and notices to
shareholders. ; and
f) fees and expenses of the transfer agent, including the cost of
preparing and mailing notices to shareholders pertaining to
transactions with respect to such shareholders accounts.
16. The Underwriter agrees to pay the following expenses:
a) all expenses of printing prospectuses and statements of
additional information used in connection with the sale of
Shares and printing and preparing all other sales literature;
b) all fees and expenses in connection with the qualification of
the Underwriter as a dealer in the various states and
countries;
c) the expense of any stock transfer tax required in connection
with the sale of Shares by the Underwriter as principal to
dealers, Banks or investors; and
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d) all other expenses in connection with offering for sale and
the sale of Shares which have not been herein specifically
allocated to the Fund.
17. The Fund hereby appoints the Underwriter its agent to receive requests
to accept the Fund's offer to repurchase Shares upon such terms and conditions
as may be described in the Fund's then current registration statement. The
agency granted in this paragraph 17 is terminable at the discretion of the Fund.
As compensation for acting as such agent and as part of the consideration for
acting as underwriter, Underwriter shall receive from the Fund all contingent
deferred sales charges imposed upon the redemption of Shares. Whether and to
what extent a contingent deferred sales charge will be imposed shall be
determined in accordance with, and in the manner set forth in, the Fund's
prospectus.
18. The Fund agrees to indemnify and hold harmless the Underwriter, its
officers and directors and each person, if any, who controls the Underwriter
within the meaning of section 15 of the Securities Act of 1933, as amended,
against any losses, claims, damages, liabilities and expenses (including the
cost of any legal fees incurred in connection therewith) which the Underwriter,
its officers, directors or any such controlling person may incur under said Act,
under any other statute, at common law or otherwise, arising out of or based
upon
a) any untrue statement or alleged untrue statement of a material
fact contained in the Fund's registration statement or
prospectus (including amendments and supplements thereto), or
b) any omission or alleged omission to state a material fact
required to be stated in the Fund's registration statement or
prospectus or necessary to make the statements in either not
misleading; provided, however, that insofar as losses, claims,
damages, 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 and in conformity with
information furnished to the Fund by the Underwriter or its
affiliate for use in the Fund's registration statement or
prospectus, such indemnification is not applicable. In no case
shall the Fund indemnify the Underwriter or its controlling
persons as to any amounts incurred for any liability arising
out of or based upon any action for which the Underwriter, its
officers and directors or any controlling person or affiliate
would otherwise be subject to liability by reason of willful
misfeasance, bad faith, or gross negligence in the performance
of its duties or by reason of the reckless disregard of its
obligations and duties under this Agreement.
19. The Underwriter agrees to indemnify and hold harmless the Fund, its
officers and trustees and each person, if any, who controls the Fund within the
meaning of Section 15 of the Securities Act of 1933, as amended, against any
losses, claims, damages, liabilities and expenses (including the cost of any
legal fees incurred in connection therewith) which the Fund, its
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officers, trustees or any such controlling person may incur under said Act,
under any other statute, at common law or otherwise arising out of or based upon
a) any wrongful act by the Underwriter or any of its employees or
representatives, or
b) any untrue statement or alleged untrue statement of a material
fact contained in the Fund's registration statement,
prospectus (including amendments and supplements thereto) or
sales material, or any omission or alleged omission to state 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 or
confirmed in writing to the Fund by the Underwriter.
20. It is understood that:
a) trustees, officers, employees, agents and shareholders of the
Fund are or may be interested persons, as that term is defined
in the Act ("Interested Persons"), of the Underwriter as
directors, officers, stockholders or otherwise;
b) directors, officers, employees, agents and stockholders of the
Underwriter are or may be Interested Persons of the Fund as
trustees, officers, shareholders or otherwise;
c) the Underwriter may be an Interested Person of the Fund as
shareholder or otherwise; and
d) the existence of any such dual interest shall not offset the
validity hereof or of any transactions hereunder.
21. The Fund may terminate this Agreement by 60 days written notice to the
Underwriter at any time, without the payment of any penalty, by vote of the
Trustees who are not parties to this Agreement or Interested Persons of any such
party and have no direct or indirect financial interest in the operation of the
12b-1 Plan or in any related agreement ("Disinterested Trustees") or by a vote
of a majority of the appropriate Class of outstanding voting securities, as that
term is defined in the Act, of the Fund. The Underwriter may terminate this
Agreement by 60 days written notice to the Fund, without the payment of any
penalty. This Agreement shall immediately terminate in the event of its
assignment, as that term is defined in the Act.
22. Subject to prior termination as provided in paragraph 21, this
Agreement shall continue in force for one year from the date of execution and
from year to year thereafter so long as the continuance after such one year
period shall be specifically approved at least annually by vote of the Trustees,
or by a vote of a majority of the appropriate Class of outstanding voting
securities, as that term is defined in the Act, of the Fund. Additionally, each
annual renewal of this
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Agreement must be approved by the vote of a majority of the Disinterested
Trustees, cast in person at a meeting of the Trustees called for the purpose of
voting on such approval.
23. Reference is hereby made to the Agreement and Declaration of Trust
dated December 18, 1995 establishing the Fund, to the Fund's Certificate of
Trust, also dated December 18, 1995, which is on file with the Office of the
Secretary of State of the State of Delaware, and to any and all amendments
thereto. The name Phoenix-Seneca Funds refers to the Trustees under said
Declaration of Trust, as Trustees and not personally, and no Trustee,
shareholder, officer, agent or employee of the Fund shall be held to any
personal liability in connection with the affairs of the Fund; only the trust
estate under said Agreement and Declaration of Trust is liable. Without limiting
the generality of the foregoing, neither the Underwriter nor any of its
officers, directors, partners, shareholders or employees shall, under any
circumstances, have recourse or cause or willingly permit recourse to be had
directly or indirectly to any personal, statutory, or other liability of any
shareholder, Trustee, officer, agent or employee of the Fund or of any successor
of the Fund, whether such liability now exists or is hereafter incurred for
claims against the trust estate.
24. This Agreement shall become effective upon the date first set forth
above. This Agreement shall be governed by the laws of the State of Connecticut
and shall be binding on the successors and assigns of the parties to the extent
permitted by law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first written
above.
PHOENIX-SENECA FUNDS
By: /s/ Xxxx X. Seneca
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PHOENIX EQUITY PLANNING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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