UNDERWRITING AGREEMENT
BETWEEN
FIRST INVESTORS SERIES FUND II, INC.
AND
FIRST INVESTORS CORPORATION
This AGREEMENT entered into the 17th day of March, 1994, by and between
FIRST INVESTORS SERIES FUND II, Inc., a Maryland Corporation, with an office
located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Fund"), on behalf of
each of its separate designated Series (singularly and collectively, "Series"),
and FIRST INVESTORS CORPORATION, a New York corporation with its principal
office located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Underwriter").
In consideration of the mutual covenants and agreements of the parties
hereto, the parties mutually covenant and agree with each other as follows:
1. Appointment. The Fund hereby appoints the Underwriter as agent of
the Fund to effect the sale and public distribution of shares of each Series and
each class of common stock of the Fund as now exists or is hereafter established
("Shares"). This appointment is made by the Fund and accepted by the Underwriter
upon the understanding that (a) upon the request of the Underwriter, the Fund
will prepare, execute and file such applications for registration and
qualification of the Shares as are required by federal and state law in such
amounts as the Underwriter reasonably may determine, (b) the distribution of the
Shares to the public be effected by the Underwriter or through various
securities dealers, and (c) the distribution of the Shares shall be done in such
manner that the Fund shall be under no responsibility or liability to any person
whatsoever on account of the acts and statements of any such person or their
agents or employees. The Underwriter shall have the sole right to select the
security dealers to whom the Shares will be offered by it and, subject to
express provisions of this Agreement, the Articles of Incorporation, By-Laws and
the Fund's then current Registration Statement, to determine the terms and
prices in any contract for the sale of Shares to any dealer made by it as such
agent for the Fund.
2. Underwriter as Exclusive Agent. The Underwriter shall be the
exclusive agent for the Fund for the sale of the Shares and the Fund agrees that
it will not sell any Shares to any person except to fill orders for the Shares
received through the Underwriter, provided, however, that the foregoing
exclusive right shall not apply to: (a) Shares issued or sold in connection with
the merger or consolidation of any other investment company with the Fund or the
acquisition by purchase or otherwise of all or substantially all the outstanding
shares of any such company by the Fund, (b) Shares which may be offered by each
Series to its shareholders for reinvestment of cash distributed from capital
gains or net investment income of such Series, or such gains or income paid in
the form of Shares, or (c) Shares which may be issued to shareholders of other
investment companies who exercise the exchange and/or cross-investment
privileges set forth in the Fund's then current Registration Statement.
3. Sales to Dealers. The Underwriter shall have the right to sell the
Shares to dealers, as needed (making reasonable allowance for clerical errors
and errors of transmission), but not more than the Shares needed to fill
unconditional orders for Shares placed with the Underwriter by dealers. In every
case the Fund shall receive the net asset value for the Shares sold, determined
as provided in Paragraph 4 hereof. The Underwriter shall notify the Fund at the
close of each business day of the number of Shares sold during each day.
4. Determination of Net Asset Value. The net asset value of each Series
or class of Shares shall be determined by the Fund or the Fund's custodian, or
such officer or officers or other persons as the Board of Directors of the Fund
may designate. The determinations shall be made once a day on each day that the
New York Stock Exchange is open for a full business day and in accordance with
the method set forth in the Fund's then current Registration Statement.
5. Public Offering Price. The public offering price of each Series or
class of Shares shall be the net asset value per Share (as determined by the
Fund) of the outstanding Shares of such Series or class, plus any applicable
sales charge as described in the Fund's then current Registration Statement. The
Fund shall furnish (or arrange for another person to furnish) the Underwriter
with quotations of public offering prices on each business day.
6. Repurchase and Redemption of Shares.
(a) The Fund appoints and designates the Underwriter as agent of the
Fund, and the Underwriter accepts such appointment as such agent, to redeem or
repurchase for retirement the Shares in accordance with the provisions of the
Articles of Incorporation and By-Laws of the Fund.
(b) In connection with such redemptions or repurchases the Fund
authorizes and designates the Underwriter to take any action, to make any
adjustments in net asset value (including the deduction of a contingent deferred
sales charge, if applicable, as provided in Paragraph 8 hereof) and to make any
arrangements for the payment of the redemption or repurchase price authorized or
permitted to be taken or made as set forth in the By-Laws and the Fund's then
current Registration Statement.
(c) The authority of the Underwriter under this Paragraph 6 may, with
the consent of the Fund, be re-delegated in whole or in part to another person
or firm.
(d) To the extent permitted by law and applicable regulations, the
authority granted in this Paragraph 6 may be suspended by the Fund at any time
or from time to time until further notice to the Underwriter.
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7. Allocation of Expenses. The Underwriter (or one of its
non-investment company affiliates) shall bear the cost of preparing and
disseminating sales material or literature, as well as the costs of preparing
and disseminating prospectuses, proxy material and shareholder reports used in
connection with the sale of the Shares except, as discussed below, to the extent
that such materials are being sent to existing shareholders or such Series has
agreed to bear the cost of such expenses under a Plan (as defined in Paragraph 8
hereof). Each Series shall bear all fees and expenses incident to the
registration and qualification of the Shares, all expenses related to
communications with its existing shareholders, including the costs of preparing,
printing and mailing prospectuses, statements of additional information, proxy
materials and other materials sent to such shareholders.
8. Compensation. As compensation for providing services under this
Agreement, the Underwriter shall retain the sales charge, if any (including a
contingent deferred sales shares, if applicable), on purchases or, if
applicable, on redemptions of Shares as set forth in the Fund's then current
Registration Statement. With regard to purchases, the Underwriter is authorized
to collect the gross proceeds derived from the sale of the Shares, remit the net
asset value thereof to the Fund upon receipt of the proceeds and retain the
sales charge, if any. With regard to redemptions, the Underwriter is authorized
to retain the contingent deferred sales charge, if any, imposed on the
redemption of Shares as may be authorized by the Board of Directors and set
forth in the Fund's then current Registration Statement. The Underwriter may
reallow any or all of such sales charges to such dealers as it may from time to
time determine. Whether a sales charge shall be retained by the Underwriter
shall be determined in accordance with the Fund's then current Registration
Statement and applicable law. The Underwriter may also receive from each Series
a distribution and/or service fee at the rate and under the terms and conditions
of any plan or plans of distribution (collectively and singularly, "Plan") as
have been or may be adopted by the Fund, subject to any further limitations on
such fee as the Board of Directors may impose.
9. Effectiveness of Agreement. This Agreement shall become effective
upon the date hereabove written, provided that, with respect to any Series or
class of Shares created after the date of this Agreement, this Agreement shall
not take effect unless such action has first been approved by vote of a majority
of the Board of Directors and by vote of a majority of those directors of the
Fund who are not interested persons of the Fund and have no direct or indirect
financial interest in the operation of the Plan or in any agreements related
thereto (all such directors collectively being referred to herein as the
"Independent Directors"), cast in person at a meeting called for the purpose of
voting on such action.
10. Termination of Agreement. This Agreement shall continue in effect
with respect to a Series for a period of more than one year from its effective
date only as long as such continuance is approved, at least annually, by the
Board of Directors of the Fund, including a majority of the Independent
Directors, voting in person
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at a meeting called for the purpose of voting on such approval. With respect to
any Series, this Agreement may be terminated at any time, without the payment of
any penalty, by vote of the Board of Directors, by vote of a majority of the
Independent Directors or by vote of a majority of the outstanding voting
securities of such Series on 30 days' written notice by the Underwriter to the
Series or upon 30 days' written notice by the Series to the Underwriter.
Termination of this Agreement with respect to any given Series shall in no way
affect the continued validity of this Agreement or the performance thereunder
with respect to any other Series. This Agreement shall automatically terminate
in the event of its assignment by the Underwriter, as the term "assignment" is
defined by the Investment Company Act of 1940, as amended ("1940 Act"), unless
the Securities Exchange Commission ("SEC") has issued an order exempting the
Fund and the Underwriter from the provisions of the 1940 Act which would
otherwise have effected the termination of this Agreement.
11. Amendments. No amendment to this Agreement shall be executed or become
effective with respect to any Series unless its terms have been approved: (a) by
a majority of the Directors of the Fund, or (b) by the vote of a majority of the
outstanding voting securities of such Series and, in either case, by a vote of a
majority of the Independent Directors.
12. Limitation of Liability. The Underwriter agrees to use its best
efforts in effecting the sale and public distribution of the Shares through
dealers and in performing its duties in redeeming and repurchasing the Shares,
but nothing contained in this Agreement shall make the Underwriter or any of its
officers, directors or shareholders liable for any loss sustained by the Fund or
any of its officers, directors or shareholders, or by any other person on
account of any act done or omitted to be done by the Underwriter under this
Agreement, provided that nothing contained herein shall protect the Underwriter
against any liability to the Fund or to any of its shareholders to which the
Underwriter would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence in the performance of its duties as Underwriter or by
reason of its reckless disregard of its obligations or duties as Underwriter
under this Agreement. Nothing in this Agreement shall protect the Underwriter
from any liabilities which it may have under the Securities Act of 1933, as
amended ("1933 Act"), or the 0000 Xxx.
13. Definitions. The terms "assignment," "interested person," and
"majority of the outstanding voting securities" shall have the meanings given to
them by Section 2(a) of the 1940 Act, subject to such exemptions as may be
granted by the SEC by any rule, regulation or order. Additionally, with respect
to each Series, the term "Registration Statement" shall mean the registration
statement most recently filed with the SEC by the Fund, on behalf of such
Series, and effective under the 1940 Act and 1933 Act, as such Registration
Statement is amended from time to time, and the terms "Prospectus" and
"Statement of Additional Information" shall mean, respectively, the form of
prospectus(es) and statement(s) of additional information with respect to such
Series filed by the Fund as part of the Registration Statement.
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14. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws principles thereof, and in accordance with the 1940 Act. To the extent that
the applicable laws of the State of New York conflict with the applicable
provisions of the 1940 Act, the latter shall control.
15. Severability. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected
thereby. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors.
16. Miscellaneous. The captions in this Agreement are
included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their
construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
FIRST INVESTORS SERIES FUND II, INC.
By: /s/Xxxxx X. Head (signature appears here)
Xxxxx X. Head
President
ATTEST:
/s/Xxxxxxxx Xxxxx (signature appears here)
Xxxxxxxx Xxxxx
Secretary
FIRST INVESTORS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx (signature appears here)
Xxxxxxx X. Xxxxxx
Chief Executive Officer
ATTEST:
/s/Xxxxx X. Xxxxxx (signature appears here)
Xxxxx X. Xxxxxx
Assistant Secretary
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