UNDERWRITING AGREEMENT
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THIS AGREEMENT is made as of September 2, 2005, by and between AGILEX
FUNDS, a Delaware business trust (the "Fund"), and CITCO MUTUAL FUND
DISTRIBUTORS, INC., a Delaware corporation ("Underwriter").
WHEREAS, the Fund is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund is authorized by its Declaration of Trust to issue
separate Portfolios of shares representing interests in separate investment
portfolios (the "Portfolios"); and
WHEREAS, The Fund has authorized the issuance of shares of beneficial
interest ("Shares") in the Portfolios which are identified on Exhibit A attached
hereto, which Exhibit A may be amended from time to time by mutual agreement of
the Fund and Underwriter; and
WHEREAS, The Fund has taken all necessary steps to appoint Underwriter as
the Fund's principal underwriter pursuant to Section 15 of the 1940 Act and the
Fund's organizational documents; and
WHEREAS, Underwriter is a broker-dealer registered with the Securities and
Exchange Commission and a member in good standing of the National Association of
Securities Dealers, Inc., (the "NASD"); and
NOW, THEREFORE, in consideration of the promises and agreements of the
parties contained herein, the parties hereto, intending to be legally bound,
agree as follows:
1. APPOINTMENT. The Fund hereby appoints Underwriter as exclusive agent
for the distribution of Shares of the Portfolios listed in Exhibit A
hereto, and Underwriter hereby accepts such appointment under the
terms of this Agreement.
Notwithstanding any other provision hereof, the Fund may terminate,
suspend or withdraw the offering of Shares of any Portfolio whenever,
in its sole discretion, it deems such action to be desirable.
The Fund hereby represents that all necessary action has been taken to
assign selling agreements executed by the former distributor to the
Underwriter. All advertising and sales literature related to the Fund
shall be filed with the Underwriter for review prior to use with
sufficient time to permit the Underwriter to review the material and
file with the National Securities Dealers Association, Inc. if
necessary. The Fund and Underwriter shall mutually agree upon
reasonable turnaround times for such review.
2. SALE AND REPURCHASE OF SHARES.
(a) Underwriter, as agent for the Fund, will sell Shares to the
public against orders therefor at the public offering price, all
such sales to comply with the provisions of the 1940 Act and the
rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
(b) Underwriter will also have the right to take, as agent for the
Fund, all actions, which, in Underwriter's judgment, are
reasonably necessary and proper to carry into effect the
distribution of the Shares.
(c) The net asset value of the Shares of each Portfolio (or Class of
Shares of a Portfolio) shall be determined in the manner provided
in the Fund's then current Registration Statement, and when
determined shall be applicable to transactions as provided for in
the Registration Statement. The net asset value of the Shares of
each Portfolio (or each Class of Shares of a Portfolio) shall be
calculated by the Fund or by another entity on behalf of the
Fund. Underwriter shall have no duty to inquire into nor shall it
have any liability for the accuracy of the net asset value per
share as calculated.
On every sale of Shares, the Fund shall receive the applicable
net asset value of the Shares promptly, but in no event later
than the third business day following the date on which
Underwriter shall have received an order for the purchase of the
Shares.
(d) Upon receipt of purchase instructions, Underwriter will transmit
such instructions to the Fund or its transfer agent for
registration of the Shares purchased.
(e) Nothing in this Agreement shall prevent Underwriter or any
affiliated person (as defined in the 0000 Xxx) of Underwriter
from acting as underwriter or distributor for any other person,
firm or corporation (including other investment companies) or in
any way limit or restrict Underwriter or any such affiliated
person from buying, selling or trading any securities for its or
their own account or for the accounts of others for whom it or
they may be acting; provided, however, that Underwriter expressly
represents that it will undertake no activities which, in its
judgment, will adversely affect the performance of its
obligations to the Fund under this Agreement.
(f) Underwriter, as agent of the Fund and for the account of the
Portfolio(s), may repurchase the Shares at such prices and upon
such terms and conditions as shall be specified in the Fund's
then current Registration Statement. At the end of each business
day, the Underwriter shall notify the Fund and the Fund's
transfer agent of the number of Shares redeemed for each
Portfolio, and the identity of the shareholders or dealers
offering Shares for repurchase. Upon such notice and acceptance
by the Fund, the Fund shall pay the Underwriter the net asset
value of the redeemed shares in cash or in the form of a credit
against monies due the Fund from the Underwriter as proceeds from
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the sale of Shares. The Fund reserves the right to suspend such
repurchase right upon written notice to the Underwriter. The
Underwriter further agrees to act as agent for the Fund to
receive and transmit promptly to the Fund's transfer agent,
shareholder and dealer requests for redemption of Shares in the
Portfolio(s).
3. SALES OF SHARES BY THE FUND. The Fund reserves the right to issue or
sell Shares of the Portfolio(s) directly to the public at any time.
4. BASIS OF SALE OF SHARES. Underwriter does not agree to sell any
specific number of Shares. Underwriter, as agent for the Fund,
undertakes to sell Shares of the Portfolio(s) on a best efforts basis
only against orders therefor.
5. COMPLIANCE WITH NASD AND GOVERNMENT RULES.
(a) Underwriter will conform to the Rules of Fair Practice of the
NASD and the securities laws of any jurisdiction in which it
sells Shares of the Portfolio(s).
(b) The Fund agrees to furnish to the Underwriter sufficient copies
of any agreements, plans or other materials it intends to use in
connection with sales of Shares in adequate time for the
Underwriter to file and clear them with the proper authorities
before they are put in use, and not to use them until so filed
and cleared.
(c) Underwriter, at its own expense, will qualify as dealer, broker,
or otherwise, under all applicable State or federal laws in order
that Shares may be sold in such States as may be mutually agreed
upon by the parties, except for expenses described in Section 7
hereto, which will be paid by the Fund or the investment adviser
to the Fund, as appropriate.
(d) Underwriter shall not make, in connection with any sale or
solicitation of a sale of the Shares, any representations
concerning the Shares except those contained in the Fund's then
current prospectus and statement of additional information
covering the Shares and in printed information approved by the
Fund as information supplemental to such prospectus and statement
of additional information. Copies of the Fund's then effective
prospectus and statement of additional information and any such
printed supplemental information will be supplied to Underwriter
in reasonable quantities upon request.
6. RECORDS TO BE SUPPLIED BY FUND. The Fund shall furnish to Underwriter
copies of all information, financial statements and other papers which
Underwriter may reasonably request for use in connection with the
distribution of Shares of the Portfolio(s).
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7. EXPENSES TO BE BORNE BY FUND. The Fund will bear the following
expenses:
(a) preparation, setting in type, and printing of sufficient copies
of the prospectus and statement of additional information for
distribution to shareholders, and the distribution to
shareholders of the prospectus and statement of additional
information;
(b) preparation, printing and distribution of reports and other
communications to shareholders;
(c) registration of the Shares under the federal securities law;
(d) qualification of the Shares for sale in the jurisdictions
designated by Fund and Underwriter;
(e) maintaining facilities for the issue and transfer of the Shares;
(f) supplying information, prices and other data to be furnished by
the Fund under this Agreement; and
(g) any original issue taxes or transfer taxes applicable to the sale
or delivery of the Shares of certificates therefor.
8. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold the Underwriter,
its officers, and Trustees, and any person who controls the
Underwriter within the meaning of Section 15 of the Securities
Act of 1933 (the "1933 Act") or Section 20 of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), free and
harmless from and against any and all claims, demands or
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 Underwriter, its
officers, Trustees or any such controlling persons may incur
under the 1933 Act, the 1934 Act, or under common law or
otherwise, arising out of or based upon (i) any 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, except insofar as such claims, demands, liabilities
or expenses arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information
furnished in writing by the Underwriter to the Fund for use in
the Registration Statement, (ii) any untrue statement of a
material fact contained in a Fund advertisement or sales
literature 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, except insofar as such claims, demands, liabilities
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or expenses arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information
furnished in writing by the Underwriter to the Fund for use in
such advertisement or sales literature or (iii) any action taken
or omitted by the Fund or its former distributor/underwriter
prior to the date of this Agreement. The Underwriter agrees to
comply with all of the applicable terms and provisions of the
0000 Xxx.
(b) The Underwriter agrees to indemnify, defend, and hold the Fund,
its officers, Trustees, employees shareholders and agents, and
any person who controls the Fund within the meaning of Section 15
of the 1933 Act of Section 20 of the 1934 Act, free and harmless
from and against any and all claims, demands, liabilities and
expenses (including the cost of investigating or defending
against such claims, demands or liabilities and any counsel fees
incurred in connection therewith) which the Fund, its Trustees,
officers, employees, shareholders and agents, or any such
controlling person may incur under the 1933 Act, the 1934 Act or
under common law or otherwise arising out of or based upon any
untrue statement of a material fact contained in information
furnished in writing by the Underwriter to the Fund for use in
the Registration Statement, or arising out of or based upon any
omission or alleged omission to state a material fact in
connection with such information required to be stated in the
Registration Statement necessary to make such information not
misleading.
(c) A party seeking indemnification hereunder (the "Indemnitee")
shall give prompt written notice to the party from whom
indemnification is sought (the "Indemnitor") of a written
assertion or claim of any threatened or pending legal proceeding
which may be subject to indemnity under this Section; provided,
however, that failure to notify the Indemnitor of such written
assertion or claim shall not relieve the indemnitor of any
liability arising from this Section. The Indemnitor shall be
entitled, if it so elects, to assume the defense of any suit
brought to enforce a claim subject to this Agreement and such
defense shall be conducted by counsel chosen by the Indemnitor
and satisfactory to the Indemnitee; provided, however, that if
the defendants include both the Indemnitee and the Indemnitor,
and the Indemnitee shall have reasonably concluded that there may
be one or more legal defenses available to it which are different
from or additional to those available to the Indemnitor
("conflict of interest"), the Indemnitor shall have the right to
select separate counsel acceptable to the Indemnitee to defend
such claim on behalf of the Indemnitee. In the event that the
Indemnitor elects to assume the defense of any suit pursuant to
the preceding sentence and retains counsel satisfactory to the
Indemnitee, the Indemnitee shall bear the fees and expenses of
additional counsel retained by it except for reasonable
investigation costs which shall be borne by the Indemnitor. If
the Indemnitor (i) does not elect to assume the defense of a
claim, (ii) elects to assume the defense of a claim but chooses
counsel that is not satisfactory to the Indemnitee or (iii) has
no right to assume the defense of a claim because of a conflict
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of interest, the Indemnitor shall advance or reimburse the
Indemnitee, at the election of the Indemnitee, reasonable fees
and disbursements of any counsel retained by Indemnitee,
including reasonable investigation costs.
9. ADVANCES OF EXPENSES. The Fund shall advance attorney's fees or other
expenses incurred by a Covered Person in defending a proceeding only
to the extent permitted by the 1933 Act and the 1940 Act.
10. TERMINATION AND AMENDMENT OF THIS AGREEMENT. This Agreement shall
automatically terminate, without the payment of any penalty, in the
event of its assignment. This Agreement may be amended only if such
amendment is approved (i) by Underwriter, (ii) either by action of the
Board of Trustees of the Fund or at a meeting of the Shareholders of
the Fund by the affirmative vote of a majority of the outstanding
Shares, and (iii) by a majority of the Trustees of the Fund who are
not interested persons of the Fund or of Underwriter, by vote cast in
person at a meeting called for the purpose of voting on such approval.
Either the Fund or Underwriter may terminate this Agreement at any
time on sixty (60) days' written notice delivered or mailed by
registered mail, postage prepaid, to the other party.
11. EFFECTIVE PERIOD OF THIS AGREEMENT. Unless terminated automatically as
set forth in Section 10 of this Agreement, this Agreement shall take
effect upon its execution and shall remain in full force and effect
for a period of TWO years from that date, and shall remain in full
force and effect from year to year thereafter, subject to annual
approval (i) by Underwriter, (ii) by the Board of Trustees of the Fund
or by vote of a majority of the outstanding Shares, and in either case
(iii) by a majority of the Trustees of the Fund who are not interested
persons of the Fund or of Underwriter, by vote cast in person at a
meeting called for the purpose of voting on such approval.
12. LIMITATION OF FUND'S LIABILITY. The term "Covered Persons" means and
refers to the Trustees and officers from time to time serving under
the Fund's Declaration of Trust as the same may subsequently thereto
have been, or subsequently hereto be, amended. It is expressly agreed
that the obligations of the Fund hereunder shall not be binding upon
any of the Covered Persons, Shareholders, nominees, agents or
employees of the Fund personally, but bind only the property of the
Fund, as provided in Fund's Declaration of Trust and by-laws. The
execution and delivery of this Agreement have been authorized by the
Trustees of the Fund and signed by the officers of the Fund, acting as
such, and neither such authorization by such Trustees, nor such
execution and delivery by such officers shall be deemed to have been
made by any of them individually or to impose any liability on them
personally, but shall bind only the property of the Fund as provided
in its Declaration of Trust.
13. SUCCESSOR INVESTMENT COMPANY. Unless this Agreement has been
terminated in accordance with Section 10, the terms and provisions of
this Agreement shall become automatically applicable to any investment
company which is a successor to the Fund as a result of a
reorganization, recapitalization or change of domicile.
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14. SEVERABILITY. In the event any provision of this Agreement is
determined to be void or unenforceable, such determination shall not
affect the remainder of this Agreement, which shall remain in full
force and effect.
15. QUESTIONS OF INTERPRETATION.
(a) This Agreement shall be governed by the laws of the Commonwealth
of Pennsylvania.
(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a
term or provision of the 1940 Act shall be resolved by reference
to such term or provision of the 1940 Act and its interpretation
thereof, if any, by the United States courts; or in the absence
of any controlling decision of any such court, by rules,
regulations or orders of the Securities and Exchange Commission
issued pursuant to said Act. In addition, where the effect of a
requirement of the 1940 Act, reflected in any provision of this
Agreement is revised by rule, regulation or order of the
Securities and Exchange Commission, such provision shall be
deemed to incorporate the effect of such rule, regulation or
order.
16. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at
such address as such other party may designate for the receipt of such
notice. Until further notice to the other party, it is agreed that for
this purpose, the address of the Fund is 000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxx Xxxxxxxxxx, XX 00000, Attn: Xxxxxx X. Xxxxxxxx, and of
the Underwriter shall be 00 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, XX 00000, Attn: President.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
18. BINDING EFFECT. Each of the undersigned expressly warrants and
represents that he has the full power and authority to sign this
Agreement on behalf of the party indicated, and that his signature
will operate to bind the party indicated to the foregoing terms.
19. FORCE MAJEURE. If Underwriter shall be delayed in the performance of
its services or prevented entirely or in part from performing services
due to causes or events beyond its control, including and without
limitation, acts of God, interruption of power or other utility,
transportation or communication services, acts of civil or military
authority, sabotages, national emergencies, explosion, flood,
accident, earthquake or other catastrophe, fire, strike or other labor
problems, legal action, present or future law, governmental order,
rule or regulation, or shortages of suitable parts, materials, labor
or transportation, such delay or non-performance shall be excused and
a reasonable time, subject to restrictions and requirements of
performance as may be established by federal or state law.
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20. COMPENSATION. The Fund shall pay for the services to be provided by
Underwriter under this Agreement in accordance with, and in the manner
set forth in, Exhibit B attached hereto, as such Exhibit B may be
amended from time to time by agreement of the parties.
If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, Underwriter's
compensation for that part of the month in which this Agreement is in
effect shall be prorated in a manner consistent with the calculation
of the fees as set forth above. Payment of Underwriter's compensation
for the preceding month shall be made promptly.
IN WITNESS WHEREOF, the Fund and Underwriter have each caused this
Agreement to be signed on its behalf, all as of the day and year first above
written.
ATTEST: AGILEX FUNDS
/s/Xxxxxx Xxxxxxxxx By: /s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: President
ATTEST: CITCO MUTUAL FUND DISTRIBUTORS, INC.
/s/Xxxxx X. Xxxxxx By: /s/Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer/FINOP
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UNDERWRITING AGREEMENT
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EXHIBIT A
The following Portfolios and share classes thereof are hereby made subject
to the underwriting Agreement dated September 2, 2005, with Citco Mutual Fund
Distributors, Inc. ("Underwriter") and AGILEX Funds (the "Fund"), and each agree
to be bound by all the terms and conditions contained in said Agreement:
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PORTFOLIOS LOAD NO-LOAD
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All current AGILEX series X
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UNDERWRITING AGREEMENT
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EXHIBIT B
The following fees are hereby made subject to the underwriting Agreement
dated September 2, 2005, with Citco Mutual Fund Distributors, Inc.
("Underwriter") and AGILEX Funds (the "Fund"), and each agree to be bound by all
the terms and conditions contained in said Agreement:
Underwriter will charge a flat fee of $18,000 per year for underwriting services
provided for Portfolios of the Fund. AGILEX Funds, Inc. will cover NASD fees for
AGILEX wholesalers who choose to have their NASD licenses with CMFD. Underwriter
will charge $3,000 per wholesaler, with the first four AGILEX Fund wholesalers
not subject.
Underwriter will receive the underwriting concessions set forth in the Fund's
current prospectus and/or statement of additional information as full
compensation for underwriting services provided for Portfolios of the Fund that
offer Share Classes that charge sales loads.
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