Exhibit (e)(4)
UNDERWRITING AGREEMENT
AGREEMENT made as of this 1st day of October, 1999 between ZURICH YIELDWISE
FUNDS, 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 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 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; 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..
2. The Underwriter hereby 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.
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.
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 may sell shares of the Fund directly to investors. In
addition, the Underwriter may sell shares of the Fund to or through qualified
dealers or others 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 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
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 value per share. The net asset value per share shall be determined in
the manner and at the times set forth in the Registration Statement.
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 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).
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
Registration Statement, 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 Registration Statement.
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 Conduct Rules of the National Association of Securities
Dealers, Inc., relating to such sale or
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reacquisition, as the case may be. The Underwriter 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 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.
The Underwriter 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 the Underwriter or any of the
Underwriter's 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 necessary to make the statement
therein not misleading if such statement or omission was made in reliance upon
information furnished to the Fund by the Underwriter, or (iii) may be incurred
or arise by reason of the Underwriter'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 the Underwriter'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 the
Underwriter 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 the Underwriter 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 the Underwriter of any such claim shall not relieve the
Underwriter from any liability which the Underwriter may have to the Fund or any
person against whom such action is brought otherwise than on account of the
Underwriter's indemnity agreement contained in this paragraph. The Underwriter
shall be entitled to participate, at the Underwriter's own expense, in the
defense, or, if the Underwriter so elects, to assume the defense of any suit
brought to enforce any such liability, but if the Underwriter elects to assume
the defense, such defense shall be conducted by counsel chosen by the
Underwriter 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 the Underwriter 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 the
Underwriter does not elect to assume the defense of any such suit, the
Underwriter 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. The Underwriter
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
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shall not, without the prior written consent of the Underwriter, 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 the Underwriter from all liability on claims that are
the subject matter of such action, suit or proceeding.
The Fund agrees to indemnify and hold harmless the Underwriter and each of the
Underwriter's directors and officers and each person, if any, who controls the
Underwriter 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 Underwriter 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 necessary to make the statements therein not
misleading if such statement or omission was not made in reliance upon
information furnished to the Underwriter 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 the
Underwriter or any such director, officer or controlling person unless the
Underwriter 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 the Underwriter or upon such director, officer
or controlling person (or after the Underwriter 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 the
Underwriter, 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, the Underwriter, 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 the Underwriter 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 the Underwriter 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. The Underwriter 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 the Underwriter is or
could have been a party and
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indemnity has or could have been sought hereunder by the Underwriter, 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.
14. The Underwriter will require each dealer to conform to the provisions hereof
and the Registration Statement 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 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
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 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 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 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 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 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 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
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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 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.
ZURICH YIELDWISE FUNDS 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 X. Xxxxxxx
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Title: Title: Assist. Sec.
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