UNDERWRITING AGREEMENT
BETWEEN
EAGLE GROWTH SHARES, INC.
AND
XXXXXX FINANCIAL CORPORATION
THIS AGREEMENT entered into this 19th day of March, 1991, by
and between EAGLE GROWTH SHARES, INC., a Maryland corporation
with its principal office located at 0000 Xxxxx Xxxxxxx Xxxxxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter called the
"Fund"), and XXXXXX FINANCIAL CORPORATION, a Florida corporation
with its principal office located at 0000 Xxxxx Xxxxxxx Xxxxxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter called the
"Company").
W I T N E S S E T H:
-------------------
In consideration of the mutual covenants contained herein,
the parties, intending to be legally bound, hereby agree as
follows:
1. The Fund hereby appoints the Company as agent of the
Fund to offer and sell the shares of the capital stock of the
Fund ("Shares") in accordance with the Fund's registration
statement, as amended from time to time, on a "best efforts"
basis. The Company may offer and sell the Shares directly and
through securities dealers selected by the Company, provided that
any such dealer shall have entered into a sales agreement with
the Company the form of which has been approved by the Fund as
provided in section 7 herein.
2. The Fund shall not sell the Shares except: (a) to fill
orders for Shares received from the Company or a co-underwriter
approved by the Fund as provided in Section 8 herein, if any, or
(b) in connection with a merger or consolidation with another
investment company, or the acquisition of all, or substantially
all, of the assets of another investment company, or (c) to fill
orders for Shares received by the Fund's custodian directly from
investors, and (d) to the custodian of Eagle Growth Shares
Investing Programs.
3. Orders for the purchase of Shares placed by the Company
shall be subject to the provisions of paragraphs (f) and (g) of
section 26 of the Rules of Fair Practice of the NASD, the
provisions of which are hereby incorporated by reference.
4. The purchase price of the Shares shall be equal to the
current net asset value thereof, plus sales commissions ("public
offering price"), as set forth in the registration statement of
the Fund, as amended from time to time. Purchase orders received
by the Company not later than the close of the New York Stock
Exchange ("NYSE") on each day when the Fund is open for business
shall be priced at the public offering price calculated after
receipt of such orders by the Company provided that the Fund
receives such orders from the Company prior to the close of
business of the Fund on such day. It shall be the responsibility
of the Company to transmit purchase orders which it receives
prior to the close of the NYSE to the Fund prior to the close of
business of the Fund on such day. Purchase orders received by
the Company after the close of the NYSE shall be priced at the
public offering price next calculated.
5. The Fund shall bear the costs of typesetting, printing
and mailing prospectuses, statements of additional information,
reports and other communications sent to its own stockholders,
and shall also pay its own legal and auditing fees incurred in
connection with preparation of amendments to its registration
statement, as well as the fees and costs associated with the
registration and qualification of the Shares in any state or other
jurisdiction in which the Shares may be offered for sale. The
Company shall pay all costs and expenses, including attorneys'
fees incurred in connection with its own qualification as a
broker-dealer in any state and the costs of printing and mailing
prospectuses and statements of additional information to
prospective investors.
6. The Fund shall register the Shares at its own expense
under the applicable laws of such jurisdictions, and in such
amounts, as the Company considers appropriate. The Company shall
cooperate with the Fund in the preparation and filing of
applications for registration and qualification of the Shares
under applicable law.
7. The Company shall submit to the Fund for approval, prior
to its use, the form of all dealers' sales contracts, sales
literature and advertisements prepared by or for the Company for
dissemination in connection with the sale of the Shares. The
costs of preparing, printing and disseminating such materials
shall be borne by the Company, except to the extent provided in
section 5 herein.
8. This Agreement shall become effective on April 1, 1991,
if approved, by the vote of a majority of the Board of Directors
of the Fund, including a majority of those Directors who are
neither parties to this Agreement nor interested persons of any
such party, by a vote cast in person at a meeting called for the
purpose of voting on such approval, and shall continue in effect
for two years after its effective date, and may be continued in
effect thereafter for successive periods of not more than one
year, provided that each such continuance shall be approved by
the Board of Directors of the Fund in the manner set forth in
this section 8. The Fund may terminate this Agreement, without
penalty, at any time upon 60 days written notice to the Company.
This Agreement shall automatically terminate in the event of its
assignment unless the Securities and Exchange Commission has
issued an Order exempting the Fund and the Company from the
provisions of the 1940 Act, which otherwise would have caused the
termination of this Agreement. The Company may terminate this
Agreement, without penalty, upon 60 days written notice to the
Fund.
9. No amendment to this Agreement shall become effective
unless its terms have been approved by the Board of Directors of
the Fund, as provided in section 8 herein.
10. Nothing contained in this Agreement shall make the
Company, or its officers, directors, or shareholders, liable for
any loss sustained by the Fund or by any other person on account
of any act or omission of the Company under this Agreement,
provided that nothing herein contained shall protect the Company
against any liability to the Fund or its shareholders to which
the Company would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence, or reckless disregard
of its duties hereunder.
11. As used in this Agreement, the term "1940 Act" means
the Investment Company Act of 1940, as amended, and terms
"interested persons," and "assignment," shall have the respective
meanings specified in the 1940 Act. The term "NASD" shall mean
the National Association of Securities Dealers, Inc.
12. This Agreement shall be construed in accordance with
the laws of the State of Florida, except to the extent such laws
are preempted by the 1940 Act.
13. Any notice required to be given hereunder shall be
sent via first class mail to the address of the party as set
forth above.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their duly authorized officers on the day and
year first above written.
Attest: EAGLE GROWTH SHARES, INC.
/s/Xxxxx X. Xxxxxxx /s/Xxxxxx X. Xxxx
---------------------------- ------------------------------
Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxx, Vice President
Assistant Secretary
Attest: XXXXXX FINANCIAL CORPORATION
/s/Xxxxxx X. Xxxxxxxx /s/Xxxxxx X. Xxxxxx
----------------------------- ------------------------------
Xxxxxx X. Xxxxxxxx, Secretary Xxxxxx X. Xxxxxx, President
