EXHIBIT e
EXECUTION COPY
SECOND AMENDED AND RESTATED
UNDERWRITER'S AGREEMENT
This Second Amended and Restated Underwriter's Agreement is hereby agreed
to as of November 1, 2005 by and between American Fidelity Dual Strategy Fund,
Inc. (the "Fund") and American Fidelity Securities, Inc. (the "Underwriter") as
follows:
A. The Fund and the Underwriter previously entered into an Underwriter's
Agreement dated January 1, 1999, which was amended and restated as of
July 30, 2002 (the "Previous Agreement").
B. Pursuant to the Previous Agreement, the Fund issued shares (the
"Shares") to fund variable annuity contracts (the "Annuity Contracts")
issued by American Fidelity Assurance Company and sold to the public
by the Underwriter, and the Underwriter agreed to provide sales
service subject to the terms and conditions therein.
C. The Fund and the Underwriter have agreed that the terms of the
Previous Agreement shall be amended and restated as set forth herein.
Accordingly, the parties hereby agree as follows:
1. Services as Distributor
1.1 The Underwriter will act as agent for the distribution of the Shares
covered by, and in accordance with, the registration statement and prospectus
then in effect under the Securities Act of 1933, as amended (the "Securities
Act"), and will transmit promptly any orders received by the Underwriter for
purchase or redemption of the Shares to an agent identified by the Fund.
1.2 The parties contemplate that the Underwriter will enter into sales or
servicing agreements with separate accounts, securities dealers, financial
institutions and other industry professionals, such as investment advisers,
accountants and estate planning firms, and in so doing, the Underwriter will act
only on its own behalf as principal.
1.3 The Underwriter shall act as distributor of the Shares in compliance
with all applicable laws, rules and regulations, including, without limitation,
all rules and regulations made or adopted pursuant to the Investment Company Act
of 1940, as amended (the "Investment Company Act"), by the Securities and
Exchange Commission ("SEC") or any securities association registered under the
Securities Exchange Act of 1934, as amended.
1.4 Whenever in their judgment such action is warranted by market, economic
or political conditions, or by abnormal circumstances of any kind, the Fund's
officers may decline to accept any orders for, or make any sales of, any Shares,
until such time as they deem it advisable to accept such orders and to make such
sales.
1.5 The Fund agrees to execute any and all documents and to furnish any and
all information and otherwise to take all actions that may be reasonably
necessary in the discretion of the Fund's officers in connection with the
qualification of the Shares for sale in such states as the Underwriter may
designate to the Fund and the Fund may approve.
1.6 The Fund shall furnish the Underwriter from time to time, for use in
connection with the sale of the Shares, such information with respect to the
Fund and the Shares as the Underwriter may reasonably request, all of which
shall be signed by one or more of the Fund's duly authorized officers; and the
Fund warrants that the statements contained in any such information, when so
signed by the Fund's officers, shall be true and correct in all material
respects.
1.7 The Fund represents that the registration statements and prospectuses
filed by the Fund with the SEC under the Securities Act and the Investment
Company Act that relate to the Shares have been prepared in conformity with the
applicable requirements in all material respects. As used in this Agreement, the
terms "registration statement" and "prospectus" mean any registration statement
and prospectus, including the statement of additional information incorporated
by reference therein, filed with the SEC and any amendments and supplements that
have been filed with the SEC. The Fund represents and warrants that any
registration statement and prospectus, upon becoming effective, will contain all
material statements required to be stated therein of the Fund; that all
statements of fact contained in any registration statement and prospectus will
be true and correct in all material respects when the registration statement
becomes effective; and that neither any registration statement nor any
prospectus upon becoming effective will include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
1.8 Neither the Underwriter nor the Fund shall offer any Shares under any
of the provisions of this Agreement, and the Fund shall not accept any orders
for the purchase or sale of the Shares under this Agreement, if the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities Act or if a current prospectus as required by Section 10 of the
Securities Act is not on file with the SEC; provided, however, that nothing
contained in this paragraph 1.8 shall in any way restrict or have an application
to or bearing upon the Fund's obligation to repurchase any shares from any
shareholder in accordance with the provisions of the Fund's prospectus or
charter documents.
1.9 The Fund agrees to advise the Underwriter immediately in writing:
(a) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or prospectus
then in effect or the initiation of any proceeding for that purpose;
(b) of the happening of any event that makes untrue any statement of a
material fact made in the registration statement or prospectus then in
effect or that requires the making of a change in such registration
statement or prospectus in order to make the statements therein not
misleading; and
(c) of all actions of the SEC with respect to any amendments to any
registration statement or prospectus that may from time to time be filed
with the SEC.
2. Term
This Agreement shall continue in effect for two years from the date
of its execution and thereafter for successive periods of one year each if such
continuance is approved at least annually by the board of directors of the Fund
or by vote of a majority of the outstanding shares of the Fund; provided, that
this Agreement may at any time be terminated by either party hereto upon 60
days' written notice to the other party. Additionally, this Agreement shall
automatically be terminated in the event of its assignment by the Underwriter.
3. Notice
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been given on the date
of service if served personally on the party to whom notice is to be given, or
on the date of mailing if sent by First Class Mail, Registered or Certified,
postage prepaid, to the addresses set forth below the signatures of the parties.
Dated as of the day and year first stated above.
FUND
AMERICAN FIDELITY DUAL
STRATEGY FUND, INC.
0000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
BY: /s/ Xxxx X. Xxx
Xxxx X. Xxx, President
UNDERWRITER
AMERICAN FIDELITY
SECURITIES, INC.
0000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
BY: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx, President
