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UNDERWRITING AGREEMENT
AGREEMENT made as of this 4th day of January, 1996 between XXXXXX
INVESTORS FUND a Massachusetts business trust (hereinafter called the "Fund"),
and XXXXXX DISTRIBUTORS, INC., a Delaware corporation (hereinafter called the
"Underwriter");
WITNESSETH:
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 the Underwriter its agent 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; or (b)
issue or sell shares at net asset value to the shareholders of any other
investment company, for which the Underwriter 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.
2. The Underwriter hereby accepts appointment as agent for the
distribution of the shares of the Fund 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
Agreement and Declaration of Trust of the Fund.
3. The Fund agrees that it will use its best efforts to keep effectively
registered under the Securities Act for sale as herein contemplated such shares
as the Underwriter shall reasonably request and as the Securities and Exchange
Commission shall permit to be so registered.
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4. 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.
5. The Underwriter shall sell shares of the Fund to or through qualified
dealers or others in such manner, not inconsistent with the provisions hereof
and the then effective registration statement of the Fund under the Securities
Act (and related prospectus), as the Underwriter may determine from time to
time, provided that no dealer or other person shall be appointed or authorized
to act as agent of the Fund without the prior consent of the Fund. It is
mutually agreed that, in addition to sales made by it as agent of the fund, the
Underwriter may, in its discretion, also sell shares of the Fund as principal
to persons with whom it does not have dealer selling group agreements.
6. Shares of the Fund offered for sale or sold by the Underwriter shall
be so offered or sold at a price per share determined in accordance with the
then current prospectus relating to the sale of such shares 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 value per share. The net asset
value per share shall be determined in the manner and at the times set forth in
the then current prospectus of the Fund relating to such shares.
7. 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.
8. The Underwriter shall issue and deliver on behalf of the Fund such
confirmations of sales made by it as agent pursuant to this agreement as may be
required. At or prior to the time of issuance of shares, the Underwriter 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 the Underwriter may
specify.
9. 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 the Underwriter 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).
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10. The Fund will furnish to the Underwriter from time to time such
information with respect to the Fund and its shares as the Underwriter may
reasonably request for use in connection with the sale of shares of the Fund.
The Underwriter agrees that it will not use or distribute or authorize the use,
distribution or dissemination by its dealers or others in connection with the
sale of such shares any statements, other than those contained in the Fund's
current prospectus, except such supplemental literature or advertising as shall
be lawful under Federal and state securities law and regulations, and that it
will furnish the Fund with copies of all such material.
11. The Underwriter shall order shares of the Fund from the Fund only to
the extent that it shall have received purchase orders therefor. The
Underwriter will not make, or authorize any dealers or others to make any short
sales of shares of the Fund.
12. The Underwriter, 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 current prospectus of the Fund.
13. In selling or reacquiring shares of the Fund for the account of the
Fund, the Underwriter will in all respects conform to the requirements of all
state and Federal laws and the Rules of Fair Practice of the National
Association of Securities Dealers, Inc., relating to such sale or
reacquisition, as the case may be, and will indemnify and save harmless the
Fund from any damage or expense on account of any wrongful act by the
Underwriter or any employee, representative or agent of the Underwriter. The
Underwriter will observe and be bound by all the provisions of the Agreement
and Declaration of Trust of the Fund (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 the Underwriter) which at the time in any way require,
limit, restrict or prohibit or otherwise regulate any action on the part of the
Underwriter.
14. The Underwriter will require each dealer to conform to the provisions
hereof and the Registration Statement (and related prospectus) at the time in
effect under the Securities Act with respect to the public offering price of
the Fund's shares, and neither the Underwriter nor any such dealers shall
withhold the placing of purchases orders so as to make a profit thereby.
15. The Fund will pay or cause to the 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
qualifications 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
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of share certificates, issue taxes, and fees for the transfer agent. The
Underwriter will pay all expenses (other than expenses which one or more
dealers may bear pursuant to any agreement with the Underwriter) 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 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 include expenses incurred by the Fund in connection with the
preparation, typesetting, printing and distribution of any registration
statement or report or other communication to stockholders in their capacity as
such) and expenses of advertising in connection with such offering.
16. The agreement shall become effective on the date hereof and shall
continue in effect until April 1, 1996 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 Underwriter hereunder.
17. This agreement shall automatically terminate in the event of its
assignment.
18. Any notice under this agreement shall be in writing, addressed and
delivered or mailed, postage postpaid, to the other party at such address as
such other party may designate for the receipt of such notice.
19. All parties hereto are expressly put on notice of the Fund's
Agreement and Declaration of Trust dated January 22, 1987 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 Underwriter for
recovery of any liability of the Fund arising hereunder allocated to a
particular series or portfolio ("Portfolio") of the Fund if there be more than
one, whether in accordance with the express terms hereof or otherwise, the
Underwriter shall have recourse solely against the assets of that Portfolio to
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satisfy such claim and shall have no recourse against the assets of any other
Portfolio for such purpose.
IN WITNESS WHEREOF, the Fund and the Underwriter have each caused this
agreement to be executed on its behalf by an officer thereunto duly authorized
and its seal to be affixed on the day and year first above written.
XXXXXX INVESTORS FUND
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
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ATTEST:
/s/ Xxxxxx X. Xxxxxxx
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Title: Secretary
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XXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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and Treasurer
ATTEST:
/s/ Xxxxx X. Xxxxxxxxxxx
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Title: Secretary
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