Exhibit 23(e)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of August 26, 2005, by and between WY Funds (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 and by-laws 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;
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
that are covered by the Fund's Registration Statement and Prospectus then
in effect under the Securities Act of 1933, as amended (the "1933 Act"),
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.
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(a) Underwriter, as agent for the Fund, will sell Shares to the public
against orders therefore 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 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 effort basis only against orders
therefore.
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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 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 therefore.
8. Indemnification.
(a) The Fund agrees to indemnify, defend and hold the Underwriter, its
officers, and Directors, and any person who controls the Underwriter
within the meaning of Section 15 of 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 reasonable
counsel fees incurred in connection therewith) which the
Underwriter, its officers, Directors 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 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 Fund's agreement to indemnify the Underwriter, its officers, and
Directors, and any person who controls the Underwriter shall not be
deemed to cover any liability to the Fund or its shareholders to
which the Underwriter would otherwise be subject by reason of the
Underwriter's willful misfeasance, bad faith, gross negligence, or
reckless disregard of its obligations and duties under this
Agreement. The Underwriter agrees to comply with all of the
applicable terms and provisions of the 1934 Act.
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(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 or 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 reasonable 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) If a claim is made against any party to this Agreement as to which
that party may seek indemnity under this paragraph 8 from the other
party, the party seeking indemnification shall notify the other
party within ten (10) days after receipt of any written assertion of
such claim threatening to institute an action or proceeding or
service of summons or other legal process. Failure to notify a party
of a claim for indemnification will relieve the party from whom
indemnification is sought from any liability which it may have on
account of the indemnity provisions set forth under this paragraph 8
unless the party seeking indemnification can demonstrate to the
reasonable satisfaction of the other party that such party has not
been prejudiced in any material respect by such failure to so
notify.
The parties to this Agreement will cooperate in the control of the
defense of any action, suit or proceeding in which a party is
involved and for which indemnity is being provided by the other
party. Any party from whom indemnification is sought may negotiate
the settlement of any action, suit or proceeding subject to the
other party's approval, which approval will not be unreasonably
withheld. The party seeking indemnification reserves the right, but
not the obligation, to participate in the defense or settlement of a
claim, action or proceeding with its own counsel. Costs or expenses
incurred by a party to whom indemnification is being provided in
connection with, or as a result of such participation, will be borne
solely by the indemnified party unless:
1) the party seeking indemnification has received an opinion of
counsel from counsel to either party stating that the use of
common counsel would present an impermissible conflict of
interest;
2) the defendants in, or targets of, any such action or
proceeding include both CMFS and the Trust, and legal counsel
to either party has reasonably concluded that there are legal
defenses available to a party which are different from or
additional to those available to the other party or which may
be adverse to or inconsistent with defenses available to a
party; or
3) the party from whom indemnification is sought authorizes the
other party to employ separate counsel at the expense of the
indemnifying party.
4) The terms of this paragraph 8 will survive the termination of
this Agreement.
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9. Advances of Expenses. The Fund shall advance attorney's fees or other
expenses incurred by an Indemnitee in defending a proceeding only to the
extent permitted by 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 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. Either the
Fund or Underwriter may terminate this Agreement at any time on at least
sixty (60) days' prior 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. It is expressly agreed that the
obligations of the Trust hereunder shall not be binding upon any of the
Trustees, shareholders, nominees, officers, agents or employees of the
Trust personally, but bind only the property of the applicable Portfolio
(and no other Portfolio), as provided in the Declaration of Trust. The
execution and delivery of this Agreement have been authorized by the
Trustees of the Trust and signed by officers of the Trust, 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 any of them personally, but
shall bind only the property of the applicable Portfolio (and no other
Portfolio) as provided in its Declaration of Trust. A copy of the
Agreement and Declaration of Trust is on file with the Secretary of the
State of Ohio.
13. Successor Investment Company. Unless this Agreement has been terminated in
accordance with Paragraph 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.
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 State 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.
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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 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx
00000, Attn: Mr. Xxxxx York, and of the Underwriter shall be 00 Xxxxxxx
Xxxxxx Xxxxxxxxx, 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, legal action, or present or future law, governmental
order, rule or regulation, , 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.
20. Compensation. The Fund shall cause the services to be provided by
Underwriter under this Agreement to be paid for in accordance with, and in
the manner set forth in, Schedule B attached hereto, as such Schedule 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 year
or terminates before the last day of a year, Underwriter's compensation
for that part of the year 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 year
shall be made promptly.
21. Customer Information. Underwriter and the Fund acknowledge and agree that
they may receive from each other information, or access to information,
about customers or consumers generally, including, but not limited to ,
non-public personal information (collectively "Customer Information"). All
information, including Customer Information obtained pursuant to this
Agreement, shall be considered confidential information. Neither party
shall disclose such confidential information to any other person or entity
or use such confidential information except as necessary to carry out the
purposes of this Agreement or under an exception in Rules 14 and 15 of
Regulation S-P (17 C.F.R. 248.1 - 248.30) in the ordinary course of
carrying out the purposes of this Agreement.
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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: WY FUNDS
/s/ M. Xxxxx Xxxxx By: /s/Xxxxxxxx York
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Name: Xxxxxxxx York
Title: President
ATTEST CITCO MUTUAL FUND DISTRIBUTORS, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer/FINOP
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UNDERWRITING AGREEMENT
EXHIBIT A
The following Portfolios and share classes thereof are hereby made subject
to the Underwriting Agreement dated as of August 26, 2005, with Citco Mutual
Fund Distributors, Inc. ("Underwriter") and WY Funds (the "Fund"), and each
agree to be bound by all the terms and conditions contained in said Agreement:
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PORTFOLIOS Class A Class B No-Load
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The Core Fund X
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UNDERWRITING AGREEMENT
EXHIBIT B
The following fees are hereby made subject to the Underwriting Agreement
dated as of August 26, 2005, with Citco Mutual Fund Distributors, Inc.
("Underwriter") and WY Funds (the "Fund"), and each agrees to be bound by all
the terms and conditions contained in said Agreement:
Underwriter will charge a flat fee of $3,000 per year for underwriting services
provided for Portfolios of the Fund that offer No-Load Shares only. The fund
will cause the advisor to make this payment to the underwriter. The payment is
not an expense of the fund. 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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