UNDERWRITING AGREEMENT
This amended and restated Agreement dated March 10, 1995 amends and
restates the Agreement dated September 12, 1988, between Xxxxx Series Fund,
Inc., a Minnesota corporation (the "Fund"), and Xxxxx Securities, Inc. (the
"Underwriter"):
WITNESSETH:
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In consideration of the mutual covenants herein contained, it is agreed
as follows:
1. Appointment of Fund Underwriter. The Fund hereby appoints the
Underwriter as its exclusive agent to sell shares of common stock of the Fund
("Shares") during the term of this Agreement. The Underwriter hereby accepts the
appointment and agrees to use its best efforts to find investors to purchase
Shares through the Underwriter. The Underwriter does not undertake to sell any
specific number of Shares.
2. Sale of Shares through Underwriter. The Fund hereby agrees to offer
and sell through the Underwriter as its agent, Shares of the Fund at the
applicable public offering price consisting of the net asset value per share.
The Fund reserves the right to reject any offer to purchase its Shares.
3. Fund to Supply Net Asset Value. The Fund shall determine in the
manner provided in the Fund's By-Laws, and promptly furnish to the
Underwriter, a statement of the net asset value per Share as often and at
such times as the Fund shall determine, but not less than daily as of the
close of business of the New York Stock Exchange on any business day on which
the New York Stock Exchange is open for unrestricted trading. The net asset
value shall become effective at such time and shall remain in effect during
such period as may be stated in a statement thereof furnished to the
Underwriter by the Fund.
4. Delivery of Shares. Upon receipt by the Fund at its principal
place of business of a written order or confirmation from the Underwriter,
the Fund will, if it elects to accept such order, as promptly as practicable,
cause certificates for the Shares called for in such order or confirmation to
be delivered in such amounts and in such names as shall be requested by the
Underwriter if shares are then evidenced by certificates, or, in the absence
of such a request or if the shares shall not then be evidenced by
certificates, shall cause an entry to be made in the records maintained by or
on behalf of the Fund crediting such Shares to the account of the purchaser
thereof, in either event against payment therefor in such manner as may be
acceptable to the Fund.
5. Underwriter Not Agent of Fund in Certain Circumstances. In making
agreements with its salesmen or with dealers, the Underwriter shall act only
in its own behalf as principal and not as agent for the Fund. Underwriter
shall be agent for the Fund only in respect of sales of the Fund's Shares.
6. Issue of Shares by Fund to Shareholders as Dividend. Nothing
herein shall prevent the Fund from issuing, distributing, or transferring
Shares, whether treasury or newly issued shares, at any time to its
stockholders as stock dividends, for not less than the net asset value of
such Shares.
7. Information Furnished by Fund to Underwriter. The Fund shall
furnish the Underwriter from time to time for use under Federal and state
laws in the filing of registration statements, copies of corporate documents,
agreements and any other related documents; provided that the Fund shall pay
all legal, accounting, registration and filing fees incident to such
registrations and filings.
8. Sales Literature. The Underwriter shall pay the initial and
continuing expenses of preparing, printing and distributing all advertising
and sales literature.
9. Indemnities.
(a) The Fund agrees to indemnify, defend and hold Underwriter, its
officers and directors and any person who controls Underwriter within the
meaning of Section 15 of the Securities Act of 1933, free and harmless from
and against any and all claims, demands, liabilities and expenses (including
the cost of investigating or defending such claims, demands or liabilities
and any counsel fees incurred in connection therewith) which Underwriter, its
officers and directors or any such controlling person may incur under the
Securities Act of 1933, or under the common law or otherwise, arising out of
or based upon any alleged untrue statement of a material fact contained in
the Fund's Registration Statement or Prospectus or arising out of or based
upon any alleged omission to state a material fact required to be stated in
either thereof or necessary to make the statements in either thereof not
misleading; providing, however, that this indemnity, to the extent that it
might require indemnity of any person who is an officer or director or
controlling person of Underwriter and who is also a director or officer of
the Fund, shall not inure to the benefit of such officer or director or
controlling person unless a court of competent jurisdiction shall determine,
or it shall have been determined by controlling precedent, that such result
would not be against public policy as expressed in the Securities Act of
1933; and further provided, that in no event shall anything herein contained
be so construed as to protect Underwriter (or its officers and directors or
any controlling persons) against any liability to the Fund or its security
holders to which Underwriter would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence, in the performance of its duties
or by reason of its reckless disregard of its obligations and duties under
this Agreement. The Fund's agreement to indemnify Underwriter, its officers
and directors and any such controlling person as aforesaid is expressly
conditioned upon its being notified of any action brought against
Underwriter, its officers and directors or any such controlling person, such
notification to be given by letter or telegram addressed to the Fund at its
principal office in Omaha, Nebraska, and sent to it by the person against
whom such action is brought, within ten (10) days after the summons or other
legal process shall have been served. The failure to so notify the Fund of
any such action shall not relieve it from any liability which it may have to
the person against whom such action is brought by reason of any such alleged
untrue statement or omission otherwise than on account of the indemnity
contained in this paragraph. The Fund will be entitled, at its election, to
assume the defense of any suit brought to enforce any such claim, demand or
liability, but, in such case, such defense shall be conducted by counsel of
good standing chosen by the Fund and approved by Underwriter. In the event
the Fund does elect to assume the defense of any such suit and retain counsel
of good standing approved by the Underwriter, the defendant or defendants in
such suit shall bear the fees and expenses of any additional counsel retained
by any of them; but in case the Fund does not elect to assume the defense of
any such suit, or in case Underwriter does not approve of counsel chosen by
the Fund, the Fund will reimburse Underwriter, its officers and directors, or
the controlling person named as defendant or defendants in such suit, for the
reasonable fees and expenses of any counsel retained by Underwriter or them.
This indemnity will inure exclusively to Underwriter's benefit, to the
benefit of its successors, to the benefit of its officers and directors and
their respective estates, and to the benefit of any controlling person and
its successors. 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 issue and sale of any of its
Shares.
(b) Underwriter agrees to indemnify, defend and hold the Fund, its
several officers and directors, and any person who controls the Fund within
the meaning of Section 15 of the Securities Act of 1933, free and harmless
from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which the
Fund, its officers or directors, or any such controlling person may incur
under the Securities Act of 1933 or under the common law or otherwise: but
only to the extent that such liability or expense incurred by the Fund, its
officers of directors, or such controlling person resulting from such claims
or demands shall arise out of or be based upon any alleged untrue statement
of a material fact contained in information furnished in writing by
Underwriter to the Fund for use in the Fund's Registration Statement or
Prospectus or shall arise out of or be based upon any alleged omission to
state a material fact in connection with such information required to be
stated in the Registration Statement or
Prospectus or necessary to make such information not misleading. Underwriter's
agreement to indemnify the Fund, its officers and directors, and any such
controlling person is expressly conditioned upon its being notified of any
action brought against the Fund, its officers and directors and any such
controlling person, such notification to be given by letter or telegram
addressed to Underwriter at its principal office in Omaha, Nebraska, and sent to
it by the person against whom such action is brought, within ten (10) days after
the summons or other first legal process shall have been served. Underwriter
shall have a right to control the defense of such action, with counsel of its
own choosing, satisfactory to the Fund, if such action is based solely upon such
alleged misstatement or omission on its part, and in any other event Underwriter
or such controlling person shall each have the right to participate in the
defense or preparation of the defense of any such action. The failure to so
notify Underwriter of any such action shall not relieve Underwriter from any
liability which Underwriter may have to the Fund, its officers or directors, or
to such controlling person by reason of any such untrue statement or omission on
Underwriter's part otherwise than on account of its indemnity contained in this
paragraph.
10. Registration and Qualification of Underwriter and Salesmen.
(a) Underwriter shall be registered and qualified to act as a
broker-dealer with the U.S. Securities and Exchange Commission, the National
Association of Securities Dealers, Inc. and the securities commissions of the
states where the Shares of the Fund will be offered. Underwriter will comply
with all Federal and state securities laws applicable to the offer and sale of
securities and to the operation and conduct of the business of a broker-dealer.
(b) Underwriter, at its sole expense, shall employ, train, register and
qualify such securities salesmen in such states as shall be agreed upon by the
Underwriter and the Fund. Thereafter, Underwriter shall supervise the activities
of such salesmen to assure their continuing compliance with the applicable
securities law.
11. Assignment Terminates this Agreement; Amendment of this Agreement.
This Agreement shall automatically terminate in the event of its assignment; and
this Agreement may be amended only if the terms of the amendment are approved
either (a) by action of a majority of the Fund's directors and by a majority of
those directors of the Fund who are not interested or affiliated persons of the
Underwriter or officers or employees of the Fund or (b) by affirmative vote of
the holders of a majority of the outstanding voting securities of the Fund.
12. Effective Period and Termination of this Agreement.
(a) This Agreement shall become effective as of the date first set
forth above and shall continue in force for an indefinite period, subject to
prior termination as provided herein, but only so long as its continuance shall
be specifically approved at least annually by a vote of a majority of the Board
of Directors of the Fund or by a vote of the majority of the outstanding voting
securities of the Fund. In any event, this Agreement shall not be renewed or
performed unless it has been approved annually by a majority vote of those
directors of the Fund who are not parties to such agreement or interested or
affiliated persons of any such party, cast in person at a meeting called for the
purpose of voting on such approval.
(b) This Agreement may be terminated at any time, without payment of
any penalty, by the Board of Directors of the Fund, or by vote of a majority of
the outstanding voting securities of the Fund, in either case upon sixty (60)
days' written notice to the Underwriter, and it may be terminated by the
Underwriter upon sixty (60) days' written notice to the Fund.
13. Definitions. For the purpose of this Agreement, the terms "vote of
a majority of the outstanding securities," "assignment," "affiliated person" and
"interested person" shall have the respective meanings specified in the
Investment Company Act of 1940 as now or hereafter in effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their proper officers and their corporate seals to be hereunto
affixed, all as of the day and year first above written.
XXXXX SERIES FUND, INC.
By /s/ Xxxxxxx X. Xxxxx
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President
Attest:
/s/ Xxxx X. Xxxxxxxx
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Secretary
XXXXX SECURITIES, INC.
By /s/ Xxxxxxx X. Xxxxx
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President
Attest:
/s/ Xxxx X. Xxxxxxxx
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Secretary
