UNDERWRITING AGREEMENT
This agreement made the 31st day of December, 1983, as amended and restated
the 1st day of December, 2002, between EQUITRUST SERIES FUND, INC., a Maryland
corporation (hereinafter called the "Fund"), and EQUITRUST INVESTMENT MANAGEMENT
SERVICES, INC., a Delaware corporation (hereinafter called the "Underwriter");
WITNESSETH:
In consideration of the mutual covenants hereinafter contained, it is
agreed as follows:
1. The Fund hereby appoints the Underwriter its exclusive agent for the
distribution of common stock of the Fund in jurisdictions wherein shares of the
Fund may legally be offered for sale; provided, however, that the Fund in its
absolute discretion may (1) issue shares of its common stock in connection with
the acquisition of assets or shares or securities of another corporation or
entity or in connection with a merger or consolidation with any other
corporation as and to the extent permitted by its Articles of Incorporation and
any applicable laws; (2) issue or sell shares directly to the shareholders of
the Fund upon such terms and conditions and for such consideration, if any, as
it may determine, whether in connection with the distribution of subscription or
purchase rights, the payment or reinvestment of dividends or distributions, or
otherwise; or (3) issue or sell shares at net asset value to the shareholders of
any other investment company, for which the Underwriter shall act as exclusive
distributor, who wish to exchange all or a portion of their investment in shares
of such other investment company for shares of the Fund.
2. The Underwriter hereby accepts appointment as exclusive agent for the
distribution of the common stock of the Fund and agrees that it will use its
best efforts with reasonable promptness to sell such part of the authorized
shares of the common stock of the Fund remaining unissued as from time to
time shall be effectively registered under the Securities Act of 1933
("Securities Act"), at prices determined as hereinafter provided and on terms
hereinafter set forth, all subject to applicable federal and state laws and
regulations and to the Articles of Incorporation and By-Laws of the Fund and
in accordance with the current Prospectus of the Fund.
3. The Fund agrees that it will use its best efforts to keep effectively
registered under the Securities Act for sale as herein contemplated such shares
of its common stock as the Underwriter shall reasonably request and as the
Securities and Exchange Commission shall permit to be so registered.
4. Notwithstanding any other provision hereof, the Fund may terminate,
suspend or withdraw the offering of shares of its common stock whenever, in its
sole discretion, it deems such action to be desirable.
5. The Underwriter shall sell shares of common stock of the Fund to or
through qualified dealers or others in such manner, not inconsistent with the
provisions hereof and the then effective Registration Statement of the Fund
under the Securities Act (and related Prospectus), as the Underwriter may
determine from time to time, provided that no dealer or other person shall be
appointed or authorized to act as agent of the Fund without the prior written
consent of the Fund and that the form of each agreement between the Underwriter
and any such dealer, or other person shall have been approved by the Fund.
6. All shares of common stock of the Fund offered for sale or sold by the
Underwriter shall be so offered or sold at the net asset value in accordance
with the then current Prospectus. The net asset value per share shall be
computed in accordance with the Articles of Incorporation of the Fund and shall
be determined in the manner and at the times set forth in the then current
Prospectus of the Fund related to such shares.
7. The price the Fund shall receive for all shares purchased from the Fund
shall be the net asset value used in determining the public offering price
applicable to the sale of such shares.
8. The Underwriter shall issue and deliver on behalf of the Fund such
confirmations of sales made by it as agent pursuant to this agreement as may be
required. The Underwriter will pay or cause to be paid to the Fund within one
business day of the acceptance of an order to purchase shares of common stock of
the Fund, the amount due the Fund for the sale of such shares. Certificates
issued or shares registered shall be kept on the transfer books of the Fund in
such names and denominations as the Underwriter may specify.
9. The Fund will execute any and all documents and furnish any and all
information which may be reasonably necessary in connection with the
qualification of its shares of common stock for sale (including the
qualification of the Fund as a dealer where necessary or advisable) in such
states as the Underwriter may reasonably request (it being understood that the
Fund shall not be required without its consent to qualify to do business in any
jurisdiction or to comply with any requirement which in its opinion is unduly
burdensome). The Underwriter, at its own expense, will effect all qualifications
as dealer or broker or otherwise under all applicable state or federal laws
required in order that the shares may be sold in as broad a territory as
practicable.
10. The Fund will furnish to the Underwriter from time to time such
information with respect to the Fund and its shares as the Underwriter may
reasonably request for use in connection with the sale of shares of the Fund.
The Underwriter agrees that it will not use or distribute or authorize the use,
distribution or dissemination by its dealers or others in connection with the
sale of such shares any statements, other than those contained in the Fund's
current Prospectus, except such supplemental literature or advertising as shall
be lawful under federal and state securities laws and regulations, and that it
will furnish the Fund with copies of all such material.
11. The Underwriter shall order shares of common stock of the Fund from the
Fund only to the extent that it shall have received purchase orders therefor.
The Underwriter will not make, or authorize any dealers or others to make any
short sales of shares of the Fund.
12. The Underwriter, as agent of and for the account of the Fund, may
repurchase the common stock of the Fund at such prices and upon such terms and
conditions as shall be specified in the current Prospectus of the Fund.
13. In selling or reacquiring shares of common stock of the Fund for the
account of the Fund, the Underwriter will in all respects conform to the
requirements of all state and federal laws and the Conduct Rules of the National
Association of Securities Dealers, Inc. relating to such sale or reacquisition,
as the case may be, and will indemnify and save harmless the Fund from any
damage or expense on account of any wrongful act by the Underwriter or any
employee, representative or agent of the Underwriter. The Underwriter will
observe and be bound by all the provisions of the Articles of Incorporation and
By-Laws of the Fund and the current Prospectus of the Fund and of any
fundamental policies adopted by the Fund pursuant to the Investment Company Act
of 1940, notice of which shall have been given by the Fund to the Underwriter
which at the time in any way require, limit, restrict or prohibit or otherwise
regulate any action on the part of the Underwriter.
14. The Underwriter will require each dealer to conform to the provisions
hereof and the Registration Statement (and related Prospectus) at the time in
effect under the Securities Act with respect to the public offering price of the
Fund's shares, and neither the Underwriter nor any such dealer shall withhold
the placing of purchase orders so as to make a profit thereby.
15. The Fund will pay or cause to be paid expenses of any registration and
qualification of shares of its common stock for sale under the federal
securities laws and the securities laws of any state or other jurisdiction in
which the Underwriter may wish to arrange for the sale of the same, the expenses
of other reports and acts required by law, in connection with such registration
and qualification, and the expenses incident to the issuance of shares of common
stock, such as the issuing of taxes, and fees of the transfer agent. The
Underwriter will pay all expenses (other than expenses which the Fund may bear
pursuant to its Shareholder Service, Dividend Disbursing and Transfer Agent
Agreement with the Underwriter or which one or more dealers may bear pursuant to
any agreement with the Underwriter) incident to the sale and distribution of the
shares issued or sold hereunder, including, without limiting the generality of
the foregoing, all (1) expenses of printing and distributing any Prospectus and
of preparing, printing and distributing or disseminating any other literature,
advertising and selling aids in connection with the offering of the shares for
sale (except that such expenses need not include expenses incurred by the Fund
in connection with the preparation, printing and distribution of any report or
other communication to stockholders in their capacity as such), and (2) expenses
of advertising in connection with such offering. No transfer taxes, if any,
which may be payable in connection with the issue or delivery of shares sold as
herein contemplated or of the certificates for such shares shall be borne by the
Fund, and the Underwriter will indemnify and hold harmless the Fund against
liability for all such transfer taxes.
16. (a) Subject to the conditions set forth below, the Fund agrees to
indemnify and hold harmless the Underwriter, its officers and employees and each
person, if any, who
controls the Underwriter within the meaning of Section 15 of the Securities Act
and Section 20 of the Securities Exchange Act of 1934 against any and all loss,
liability, claim, damage and expense whatsoever, jointly and severally, or
otherwise (including, but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever), arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Fund's Registration Statement, the Prospectus or statement of
additional information or any amendment or supplement thereof, or any
advertisement or sales literature authorized by the Fund, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, unless such statement
or omission was made in reliance upon and in conformity with written information
with respect to the Underwriter furnished to the Fund by or on behalf of the
Underwriter expressly for use in the Fund's Registration Statement, Prospectus,
statement of additional information or any amendment or supplement thereof or
any advertisement or sales literature. If any action is brought against the
Underwriter or any controlling person thereof in respect of which indemnity may
be sought against the Fund pursuant to the foregoing, the Underwriter shall
promptly notify the Fund in writing of the institution of such action and the
Fund shall assume the defense of such action, including the employment of
counsel selected by the Fund and payment of expenses. The Underwriter, or any
such controlling person thereof, shall have the right to employ separate counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of the Underwriter or such controlling person unless the employment of
such counsel shall have been authorized in writing by the Fund in connection
with the defense of such action or the Fund shall not have employed counsel to
have charge of the defense of such action, in which event such fees and expense
shall be borne by the Fund. Anything in this subparagraph to the contrary
notwithstanding, the Fund shall not be liable for any settlement of any such
claim or action effected without its written consent.
(b) The Underwriter agrees to indemnify and hold harmless the Fund, each of
its Directors, each of its officers and each other person, if any, who controls
the Fund within the meaning of Section 15 of the Securities Act, with respect to
statements or omissions, if any, made in the Fund's Registration Statement,
Prospectus or statement of additional information or any amendment or supplement
thereof or any advertisement or sales literature in reliance upon and in
conformity with information with respect to the Underwriter furnished in writing
to the Fund by or on behalf of the Underwriter expressly for use in the Fund's
Registration Statement, Prospectus or statement of additional information or any
amendment or supplement thereof or any advertisement or sales literature. In
case any action shall be brought against the Fund or any other person so
indemnified based on the Fund's Registration Statement, Prospectus or statement
of additional information or any amendment or supplement thereof and in respect
of which indemnity may be sought against the Underwriter, the Underwriter shall
have the rights and duties given to the Fund and the Fund and each other person
so indemnified shall have the rights and duties given to the Underwriter by the
provisions of subparagraph (a) above.
(c) Nothing herein contained shall be deemed to protect any person against
liability to the Fund or its shareholders to which such person would otherwise
by subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of the duties of such
person or by reason of the reckless disregard by such person of the obligations
and duties of such person under this Agreement.
17. This agreement shall become effective on the date hereof and shall
continue until the close of business on November 30, 2003 and from year to year
thereafter, but only so long as such continuance is specifically approved at
least annually in a manner consistent with the Investment Company Act of 1940.
Either party hereto may terminate this agreement on any date by giving the other
party at least six months' prior written notice of such termination specifying
the date fixed therefor. Without prejudice to any other remedies of the Fund in
any such event the Fund may terminate this agreement at any time immediately
upon any failure of fulfillment of any of the obligations of the Underwriter
hereunder.
18 This agreement shall automatically terminate in the event of its
assignment within the meaning of such term under the Investment Company Act of
1940.
19. Any notice under this agreement shall be in-writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as such
other party may designate for the receipt of such notice.
IN WITNESS WHEREOF, the Fund and the Underwriter have each caused this
agreement to be executed on its behalf by an officer thereunto duly authorized
and its corporate seal to be affixed on the day and year first above written.
ATTEST: EQUITRUST SERIES FUND, INC.
By: /s/Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
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Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxx
Vice President -- Investment Administration Chief Executive Officer
ATTEST: EQUITRUST INVESTMENT MANAGEMENT
SERVICES, INC.
By: /s/Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx Xxxxxx Xxxxxx X. Xxxxxx
Assistant Secretary President
