EX-99.B(e)selua
UNDERWRITING AGREEMENT
THIS AGREEMENT, originally made as of the November 15, 2000, by and
between Xxxxxxx & Xxxx Advisors Value Fund, Inc. and Xxxxxxx & Xxxx, Inc.,
is hereby amended and restated as of May 21, 2003, by and between Xxxxxxx &
Xxxx Advisors Select Funds, Inc. (f/k/a Xxxxxxx and Xxxx Advisors Value
Fund, Inc.) (hereinafter "Corporation"), a Maryland corporation, and
Xxxxxxx & Xxxx, Inc. (hereinafter "W&R"), a Delaware corporation;
I. REPRESENTATIONS
A. The Corporation represents that
1) it is a registered open-end management investment
company (mutual fund), and
2) the shares of each of its classes of shares ("Fund") and
of each sub-class thereof ("Class"), if any, are, as of the date of the
effectiveness of this Agreement as to each such Fund or Class, registered
with the Securities and Exchange Commission ("SEC") and qualified or
otherwise authorized for sale in all states of the United States as may be
agreed upon. (As to any Fund or Class not registered with the SEC and
qualified or otherwise authorized for sale in all states of the United
States as may be agreed upon, this Agreement shall become effective as to
such Fund or Class upon such registration and qualification or
authorization.)
B. W&R represents that
1) it is a broker-dealer registered with the SEC and is
duly qualified to offer shares of the Funds in all states in which the
shares are currently qualified or otherwise authorized for offer for sale;
2) it is a member of the National Association of Securities
Dealers, Inc. ("NASD");
3) it maintains a retail securities and insurance sales
organization consisting in part of a number of representatives authorized
under Federal and state securities laws to solicit as representatives of
W&R orders for Fund shares and other securities;
4) it maintains and enforces procedures to enable it to
supervise its representatives and associated persons in accordance with
applicable securities laws, rules and regulations including the Rules of
the NASD; and
5) it maintains and enforces procedures to review for
compliance with applicable securities laws, rules and regulations all sales
literature and promotional materials used by it and authorized to be used
by its representatives in solicitation of orders to buy Fund shares, and it
files, when applicable, such literature and materials with the NASD.
II. APPOINTMENT OF UNDERWRITER and OBLIGATIONS
The Corporation hereby, as applicable, appoints W&R or continues the
appointment of W&R, and W&R, as applicable, agrees to act or continues to
act, as the Corporation's principal underwriter under the terms and
provisions of this Agreement.
A. Corporation agrees
1) to use its best efforts to register from time to time
under the Securities Act of 1933 (the "Securities Act") adequate amounts of
its shares for sale by W&R to the public and to qualify or to permit W&R to
qualify such shares for offering to the public in such states as may from
time to time be agreed upon;
2) to immediately advise W&R (i) when any post-effective
amendment to its registration statement or any further amendment or
supplement thereto or any further registration statement or amendment or
supplement thereto becomes effective, (ii) of any request by the SEC for
amendments to the registration statement(s) or any then effective
prospectus or for additional information, (iii) of the issuance by the SEC
of any stop-order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose, and (iv)
of the happening of any event which makes untrue any material statement
made in the registration statement or any then effective prospectus or
which, in the opinion of counsel for the Corporation, requires the making
of a change in the registration statement or any then effective prospectus
in order to make the statements therein not misleading; in case of the
happening at any time of any event which materially affects the Corporation
or its securities and which should be set forth in a supplement to or an
amendment of any then effective prospectus in order to make the statements
therein not misleading, to prepare and furnish to W&R such amendment or
amendments to that prospectus as will correct the prospectus so that as
corrected it will not contain, or such supplement or supplements to that
prospectus which when read in conjunction with that prospectus will make
the combined information not contain any untrue statement of a material
fact or any omission to state any material fact necessary in order to make
the statements in that prospectus not misleading; if any time the SEC shall
issue any stop-order suspending the effectiveness of the registration
statement, to make every reasonable effort to obtain the prompt lifting of
such order; and, before filing any amendment to the registration statement
or to any then effective prospectus, to furnish W&R with a copy of the
proposed amendment;
3) to advise W&R of the net asset value of the shares of
each of its Funds and Classes, as applicable, as often as computed and to
furnish to W&R as soon as practical such information as may be reasonably
requested by W&R in order that it may know all of the facts necessary to
sell shares of the Funds;
4) to make delivery of its shares subject to the provisions
of its Articles of Incorporation and Bylaws to W&R as ordered by W&R as
soon as reasonably possible after receipt of the orders and against payment
of the consideration to be received by the Corporation therefor from W&R;
5) to pay or cause to be paid all expenses incident to the
issuance, transfer, registration and delivery of its shares, all taxes in
connection therewith, costs and expenses incident to preparing and filing
any registration statements and prospectuses and any amendments or
supplements to a registration statement or a prospectus, statutory fees
incidental to the registration of additional shares with the SEC, statutory
fees and expenses incurred in connection with any Blue Sky law
qualifications undertaken by or at the request of W&R, and the fees and
expenses of the Corporation's counsel, accountants or any other experts
used in connection with the foregoing; and
6) not without the consent of W&R to offer any of its
shares for sale directly or to any persons or corporations other than W&R,
except only
a) the reinvestment of dividends and/or distributions
or their declaration in shares of the Funds, in optional form or otherwise;
b) the issuance of additional shares to stock splits
or stock dividends;
c) sale of shares to another investment or securities
holding company in the process of purchasing all or a portion of its
assets;
d) in connection with an exchange of shares of the
Funds for shares in another investment or securities holding company;
e) the sale of shares to registered unit investment
trusts; or
f) in connection with the exchange of one Fund's
shares for shares of another Fund of the Corporation.
B. W&R agrees
1) to offer Fund shares in such states as may be agreed
upon through its retail account representatives and, at its sole
discretion, through broker-dealers which are members of the NASD on such
terms as are not inconsistent with this Agreement;
2) to order shares from the Corporation only after it has
received a purchase order therefor;
3) to pay to the Corporation the net asset value of shares
sold within two business days after the day payment is received by W&R at
its principal place of business from the investor or broker-dealer, or pay
the Corporation at such other time as may be agreed upon hereafter by the
Corporation and W&R, or as may be prescribed by law or the Rules of the
NASD;
4) in offering shares to comply with the provisions of the
Articles of Incorporation and Bylaws of the Corporation and with the
provisions stated in its applicable then current prospectus(es);
5) to timely inform the Corporation of any action or
proceeding to terminate, revoke or suspend W&R's registration as a broker-
dealer with the SEC, membership in the NASD, or authority with any state
securities commission to offer Fund shares; and
6) to pay the cost of all sales literature, advertising and
other materials which it may at its discretion use in connection with the
sale of Fund shares, including the cost of reports to the shareholders of
the Funds in excess of the cost of reports to existing shareholders and the
cost of printing the prospectus(es) furnished to it by the Corporation.
III. TERMS FOR SALE OF SHARES
A. It is mutually agreed that
1) W&R shall act as principal in all matters relating to
promotion and sale of Fund shares, including the preparation and use of all
advertising, sales literature and other promotional materials, and shall
make and enter into all other arrangements, agreements and contracts as
principal on its own account and not as agent for the Corporation. Title to
shares issued and sold by the Corporation through W&R shall pass directly
from the Corporation to the dealer or investor, or shall first pass to W&R
as it may from time to time be determined by W&R and the Corporation;
except provided, however, that W&R may, if so agreed by W&R and the
Corporation, act as agent of the Corporation without commission on
repurchase of shares of the Funds;
2) certificates for shares shall not be created or
delivered by the Corporation in any case in which the purchase is pursuant
to any provisions of the Funds described in its applicable then current
prospectus(es) under the terms of which certificates are not to be issued
to the shareholder. Shares sold by W&R shall be registered in such name or
names and amounts as W&R may request from time to time, and all shares when
so paid for and issued shall be fully paid and non-assessable;
3) the offering price at which shares of the Funds may be
sold by W&R shall include such selling commission as may be applicable to
that Class and as may be fixed from time to time by W&R but shall not be in
excess of the maximum permitted under the rules and regulations of the
National Association of Securities Dealers, Inc. W&R shall retain any such
sales commission and may re-allow all or any part of the sales commission
to its account representatives and to selected brokers and dealers who sell
shares of the Funds; and
4) W&R may designate, reduce or eliminate its selling
commissions in certain sales or exchanges to the extent described in the
applicable then current prospectus(es) of the Funds and in accordance with
Section 22(d) of the Investment Company Act of 1940 and any rules,
regulations or orders of the SEC thereunder.
IV. THE PLAN
A. It is mutually acknowledged that the Corporation has adopted a
plan pursuant to Rule 12b-1 under the Investment Company Act of 1940, as
amended (a "Plan"), which Plan is applicable to certain shares and that the
Corporation may in the future adopt Plans applicable to certain Funds and
Classes, respectively.
B. With respect to any Fund or Class as to which the Corporation
has adopted a Plan, pursuant to that Plan, each day the Corporation shall
pay to W&R a distribution fee and/or a service fee at the maximum rates and
under the terms and conditions set forth in the applicable Plan, as amended
from time to time, or such lesser amount as the Corporation and W&R may
agree.
C. The Corporation shall, after excluding from the redemption
proceeds that portion represented by the reinvestment of dividends and
distributions and the appreciation of the value of Fund shares being
redeemed, promptly pay W&R an amount, if any, equal to the percent of the
amount invested as determined by W&R and as is then stated in the Funds'
current prospectus applicable to the shares redeemed (the "contingent
deferred sales charge"). For purposes of determining the applicable
contingent deferred sales charge, if any: the redemptions shall be deemed
in order of investment made when more than one investment has been made;
and when the shares being redeemed were acquired by exchange of shares of
another Fund or Class of the Corporation, or corresponding class of another
registered investment company for which W&R or its affiliate serves as
principal underwriter, the investment shall be deemed as if it had been
made when the Corporation's shares were first purchased, and the applicable
contingent deferred sales charges, if any, shall be with respect to the
amount originally invested in Corporation shares; and provided that any
contingent deferred sales charge shall be determined in accordance with and
in the manner set forth in the applicable then current prospectus and any
applicable Order or Rule issued by the SEC.
D. It is contemplated that W&R may pay commissions to its field
sales force at the time of sale of the Funds' shares and may incur other
expenses substantially in advance of receiving the distribution fee, if
any, that may be applicable to the payment of such commissions and
expenses. W&R recognizes that such payments are at its risk and that this
Agreement may be terminated or not continued as hereinafter provided
without the payment to it of any further distribution fees or service fees
whatsoever and without the payment of any penalty. The contingent deferred
sales charges, if any, shall, however, be payable to W&R with respect to
all subject sales made prior to the termination of this Agreement.
E. W&R shall at least quarterly provide to the Corporation's
board of directors a written report with respect to each Fund or Class, as
applicable, of the amounts of the distribution and/or service fees expended
and the purposes for which these expenditures were made. W&R shall in
addition furnish to the board of directors of the Corporation such
information as may be requested or as may be necessary to an informed
determination by the directors of whether or not the directors should
continue the Corporation's Plan(s) and continue this Agreement and to
determine whether there is reasonable likelihood that the Plan(s) and this
Agreement will benefit the Corporation and its shareholders affected by
such Plan(s).
V. INDEMNIFICATION
A. The Corporation agrees with W&R for the benefit of W&R and
each person, if any, who controls W&R within the meaning of Section 15 of
the Securities Act and each and all and any of them, to indemnify and hold
harmless W&R and any such controlling person from and against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, under any other
statute, at common law or otherwise, and to reimburse the underwriter and
such controlling persons, if any, for any legal or other expenses
(including the cost of any investigation and preparation) reasonably
incurred by them or any of them in connection with any litigation whether
or not resulting in any liability, insofar as such losses, claims, damages,
liabilities or litigation arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or any prospectus or any amendment thereof or
supplement thereto or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this indemnity agreement shall not apply to amounts
paid in settlement of any such litigation if such settlement is effected
without the consent of the Corporation or to any such losses, claims,
damages, liabilities or litigation arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus or any amendment thereof or supplement
thereto, or arising out of or based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, which statement or omission
was made in reliance upon information furnished in writing to the
Corporation by W&R for inclusion in any registration statement or any
prospectus or any amendment thereof or supplement thereto. W&R and each
such controlling person shall promptly, after the complaint shall have been
served upon W&R or such controlling person in any litigation against W&R or
such controlling person in respect of which indemnity may be sought from
the Corporation on account of its agreement contained in this paragraph,
notify the Corporation in writing of the commencement thereof. The omission
of W&R or such controlling person so to notify the Corporation of any such
litigation shall relieve the Corporation from any liability which it may
have to W&R or such controlling person on account of the indemnity
agreement contained in this paragraph but shall not relieve the Corporation
from any liability which it may have to W&R or controlling person otherwise
than on account of the indemnity agreement contained in this paragraph. In
case any such litigation shall be brought against W&R or any such
controlling person and the underwriter or such controlling person shall
notify the Corporation of the commencement thereof, the Corporation shall
be entitled to participate in (and, to the extent that it shall wish, to
direct) the defense thereof at its own expense but such defense shall be
conducted by counsel of good standing and satisfactory to W&R or such
controlling person or persons, defendant or defendants in the litigation.
The indemnity agreement of the Corporation contained in this paragraph
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of W&R or any such controlling person
and shall survive any delivery of shares of the Corporation. The
Corporation agrees to notify W&R promptly of the commencement of any
litigation or proceeding against it or any of its officers or directors of
which it may be advised in connection with the issue and sale of its
shares.
B. Anything herein to the contrary notwithstanding, the agreement
in Section A of this article, insofar as it constitutes a basis for
reimbursement by the Corporation for liabilities (other than payment by the
Corporation of expenses incurred or paid in the successful defense of any
action, suit or proceeding) arising under the Securities Act, shall not
extend to the extent of any interest therein of any person who is an
underwriter or a partner or controlling person of an underwriter within the
meaning of Section 15 of the Securities Act or who, at the date of this
Agreement, is a director of the Corporation, except to the extent that an
interest of such character shall have been determined by a court of
appropriate jurisdiction the question of whether or not such interest is
against public policy as expressed in the Securities Act.
C. W&R agrees to indemnify and hold harmless the Corporation and
its directors and such officers as shall have signed any registration
statement from and against any and all losses, claims, damages or
liabilities, joint or several, to which the Corporation or such directors
or officers may become subject under the Securities Act, under any other
statute, at common law or otherwise, and will reimburse the Corporation or
such directors or officers for any legal or other expenses (including the
cost of any investigation and preparation) reasonably incurred by it or
them or any of them in connection with any litigation, whether or not
resulting in any liability insofar as such losses, claims, damages,
liabilities or litigation arise out of, or are based upon, any untrue
statement or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, which statement or omission was made in reliance upon
information furnished in writing to the Corporation by W&R for inclusion in
any registration statement or any prospectus, or any amendment thereof or
supplement thereto, or which statement was made in, or the alleged omission
was from, any advertising or sales literature (including any reports to
shareholders used as such) which relate to the Corporation.
W&R shall not be liable for amounts paid in settlement of any
such litigation if such settlement was effected without its consent. The
Corporation and its directors and such officers, defendant or defendants,
in any such litigation shall, promptly after the complaint shall have been
served upon the Corporation or any such director or officer in any
litigation against the Corporation or any such director or officer in
respect of which indemnity may be sought from W&R on account of its
agreement contained in this paragraph, notify W&R in writing of the
commencement thereof. The omission of the Corporation or such director or
officer so to notify the underwriter of any such litigation shall relieve
W&R from any liability which it may have to the Corporation or such
director or officer on account of the indemnity agreement contained in this
paragraph, but shall not relieve W&R from any liability which it may have
to the Corporation or such director or officer otherwise than on account of
the indemnity agreement contained in this paragraph. In case any such
litigation shall be brought against the Corporation or any such officer or
director and notice of the commencement thereof shall have been so given to
W&R, W&R shall be entitled to participate in (and, to the extent that it
shall wish, to direct) the defense thereof at its own expense, but such
defense shall be conducted by counsel of good standing and satisfactory to
the Corporation. The indemnity agreement of W&R contained in this paragraph
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Corporation and shall survive any
delivery of shares of the Corporation. W&R agrees to notify the Corporation
promptly of the commencement of any litigation or proceeding against it or
any of its officers or directors or against any such controlling person of
which it may be advised, in connection with the issue and sale of the
Corporation's shares.
D. Notwithstanding any provision contained in this Agreement, no
party hereto and no person or persons in control of any party hereto shall
be protected against any liability to the Corporation or its security
holders to which they would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of their
duties or by reason of their reckless disregard of their obligations and
duties under this Agreement.
VI. OTHER TERMS
A. This Agreement shall not be deemed to limit W&R from acting as
underwriter and/or dealer for any other mutual fund, from engaging in any
other aspects of the securities business, whether or not such may be deemed
in competition with the sale of shares of the Funds, and to carry on any
other lawful business whatsoever.
B. Except as expressly provided in Article V and hereinabove, the
agreements herein set forth have been made and are made solely for the
benefit of the Corporation and W&R, and the persons expressly provided for
in Article V, their respective heirs and successors, personal
representatives and assigns, and except as so provided, nothing expressed
or mentioned herein is intended or shall be construed to give any person,
firm or corporation other than the Corporation, W&R and the persons
expressly provided for in Article V any legal or equitable right, remedy or
claim under or in respect of this Agreement or any representation, warranty
or agreement herein contained. Except as so provided, the term "heirs,
successors, personal representatives and assigns" shall not include any
purchaser of shares merely because of such purchase.
C. This Agreement shall continue in effect, unless terminated as
hereinafter provided, for a period of one (1) year and thereafter only if
such continuance is specifically approved at least annually by the Board of
Directors, including the vote of a majority of the directors who are not
parties to the Agreement or "interested persons" (as defined in the
Investment Company Act of 1940) or any such party and who have no direct or
indirect financial interest in the operation of any Plan or any agreement
relating to that Plan (hereafter the "Plan directors"), cast in person at a
meeting called for the purpose of voting on such approval. This Agreement
may be terminated by W&R at any time without penalty upon giving the
Corporation sixty (60) days' written notice (which notice may be waived by
the Corporation) and may be terminated by the Corporation at any time
without penalty upon giving W&R sixty (60) days' written notice (which
notice may be waived by W&R), provided that such termination by the
Corporation shall be directed or approved by the vote of a majority of the
Plan directors, or by the vote of a majority (as defined in the Investment
Company Act of 1940) of the outstanding voting securities of a Fund with
respect to that Fund. This Agreement shall automatically terminate in the
event of its assignment, the term "assignment" for this purpose having the
meaning defined in Section 2(a)(4) of the Investment Company Act of 1940.
D. This Agreement shall be governed and construed in accordance
with the laws of Kansas.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers and their corporate
seals to be affixed as of the day and year first above written.
XXXXXXX & XXXX ADVISORS
SELECT FUNDS, INC.
By: _____________________________
Xxxxx X. Xxxxxxxx, President
ATTEST:
By: _______________________________
Xxxxxxx X. Xxxxxxxx, Secretary
XXXXXXX & XXXX, INC.
By: ______________________________
Xxxxxxx X. Xxxxxx, President
ATTEST:
By: ______________________________
Xxxxxx X. Xxxxxxx, Secretary
