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Exhibit (e)
UNDERWRITING AGREEMENT
BETWEEN
DCM SERIES TRUST
AND
ADS DISTRIBUTORS, INC.
[LOGO]
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UNDERWRITING AGREEMENT
AGREEMENT made as of this 12th day of October, 1999 by and between DCM Series
Trust (the "Trust"), and ADS Distributors, Inc., (the "Underwriter").
BACKGROUND
WHEREAS, the Trust is offering shares of beneficial interest (the
"Shares") in an investment portfolio known as the "DCM Growth Fund" (the
"Fund"), which is a series of the Trust; and
WHEREAS, the Fund is a non-diversified open-end management investment
company registered with the United States Securities and Exchange Commission
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Underwriter is a corporation experienced in providing
distribution services to mutual funds and possesses facilities sufficient to
provide such services; and
WHEREAS, the Trust desires that the Fund avail itself of the
experience, assistance and facilities of the Underwriter and have the
Underwriter perform for the Fund certain services appropriate to the operations
of the Fund and the Underwriter is willing to furnish such services in
accordance with the terms hereinafter set forth, the Trust and the Underwriter
agree to the following terms.
TERMS
A: UNDERWRITING ACTIVITIES:
1. The Underwriter will receive orders from purchasers for, and the Fund will
sell, issue and deliver from time to time to such purchasers, such part of
the authorized Shares remaining un-issued as from time to time shall be
effectively registered under the Securities Act of 1933, as amended (the
"1933 Act"), at prices determined as hereinafter provided and on the terms
hereinafter set forth, all subject to applicable Federal and State laws and
regulations and to the Declaration of Trust of the Trust.
2. The Underwriter shall present all orders received by it for Shares to the
Fund by telegraphic or written purchase orders and each such order shall be
subject to the acceptance or rejection by the Fund in the Fund's sole
discretion
2.1 Notwithstanding any other provision hereof, whenever in the judgment of
the Fund such action is warranted by market, economic or political
conditions or by abnormal circumstances of any kind, the Fund may suspend
the offer of shares in effect and may, without liability under any provision
of this Agreement, decline to accept or confirm any orders or make any sales
of Shares under this
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Agreement until such time as the Fund shall deem it advisable to resume the
offering of such Shares, provided that as soon as practicable after the
taking of any such action a special meeting of the Board of Trustees of the
Trust shall be called to be held as soon as practicable thereafter to
determine whether or not such action shall then continue to be effective,
and the period during, or the circumstance under, which such action shall
continue or cease to be effective. During any period during which the offer
of Shares shall be suspended or the Fund shall decline to accept or confirm
any such orders or make any such sales, the Fund shall be under no
obligation to confirm or accept any such orders or make any such sale at any
price.
2.2 The Fund will use its best efforts to keep effectively registered under
the 1933 Act for sale as herein contemplated such Shares as the Underwriter
shall reasonably request and as the Securities and Exchange Commission (the
"SEC") shall permit to be so registered.
3. Sales by the Underwriter shall be made as agent for the Fund and all such
sales be made 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 1933 Act, (and related prospectus), as the
Underwriter may determine from time to time.
4. All Shares offered for sale or sold by the Underwriter shall be so offered
or sold at a price per share (the "Offering Price") equal to the net asset
value per Share (determined as authorized from time to time by the Board of
Trustees of the Trust pursuant to its charter).
4.1 For the purpose of determining the Offering Price, the net asset value
of any such Shares shall be so determined in accordance with the then
current offering prospectus. The Fund, or its authorized agent, will
promptly furnish to the Underwriter a statement of the Offering Price as
often as such net asset value is determined and such statement shall, at the
request of the Underwriter, show the basis of computation of the Offering
Price.
4.2 Orders presented by the Underwriter for Shares, if accepted by the Fund,
shall be accepted and confirmed by the Fund or its duly authorized agent at
the Offering Price in effect at the time of its receipt of such order at its
principal office.
4.3 The Underwriter will not in any event (a) offer for sale or sell Shares
in excess of the number then effectively registered under the 1933 Act, and
available for sale, or (b) offer for sale or sell any Shares in violation of
any applicable Federal or State law, rule or regulation.
5. The Fund will execute any and all documents and furnish any and all
information which may be reasonably necessary in connection with rendering
its Shares eligible for sale in such states as the Underwriter may
reasonably request (it being
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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.
6. The Fund will furnish to the Underwriter from time to time such information
with respect to its Shares as the Underwriter may reasonably request for use
in connection with the sale of Shares. The Underwriter will not use,
distribute, disseminate or authorize the use, distribution or dissemination
by its dealers or others in connection with such sale of any literature,
advertising or selling aids in any form or through any medium, written or
oral, without prior written specific approval thereof by the Fund.
7. Nothing herein contained shall limit the right of the Fund, in its absolute
discretion, to issue or sell Shares for such other considerations (whether
in connection with the acquisition of assets or shares or securities of
another corporation or entity or with the merger or consolidation of any
other corporation into or with the Fund, or otherwise) as and to the extent
permitted by its charter and any applicable laws, or to issue or sell any
such Shares directly to the shareholders of the Fund, upon such terms and
conditions and for such consideration, if any, as may be determined by the
Board of Trustees, whether pursuant to the distribution of subscription or
purchase rights to such holders or by way of dividends or otherwise.
8. At the request of the Fund, the Underwriter agrees to act as agent for the
Fund for the repurchase or redemption of Shares of the Fund at such prices
as the Fund from time to time shall prescribe.
9. In selling or reacquiring shares, the Underwriter agrees to conform to the
requirements of all state and Federal laws relating to such sale or
reacquisition, as the case may be, and will indemnify and hold the Fund
harmless 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 charter
of the Trust and any fundamental policies adopted by the Fund pursuant to
the 1940 Act, or otherwise, notice of which has been given to the
Underwriter.
10. Neither the Underwriter, any dealer nor any other person is authorized by
the Fund to give any information or to make any representation other than
those contained (a) in the latest effective registration statement (and
related prospectus) filed with the SEC under the 1933 Act as such
registration statement (and prospectus) may be amended from time to time, or
(b) in any statement expressly authorized by the Fund for use in connection
with any sale or reacquisition of Shares for the account of the Fund.
B. COMPENSATION AND OTHER:
1. In consideration of the agreements on the part of the Underwriter herein
contained, the Underwriter shall receive payment in the amount of $10,000
for the first portfolio, plus $5,000 for each additional portfolio or
1 basis point of the combined average net assets of the fund/trust,
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whichever is greater, per annum billed monthly, plus reimbursement of all
reasonable out-of-pocket expenses incurred at the request of the Fund in
fulfillment of its responsibilities in this Agreement.
2. This Agreement shall continue in effect until such time as there remains no
unsold balance of Shares effectively registered under the 1933 Act;
provided, however, that (a) this Agreement shall continue in effect for a
period more than two years from the date hereof only so long as such
continuance is specifically approved at least annually by the Board of
Trustees, including by a majority of the "disinterested Trustees" or a
majority of the outstanding voting securities of the Fund, and (b) either
party hereto may terminate this Agreement on any date by giving the other
party at least ninety (90) days prior written notice of such termination
specifying the date fixed therefor.
2.1 This Agreement shall automatically terminate in the event of its
assignment, the term "assignment" having the meaning defined in Section
2(a)(4) of the 1940 Act.
3. Any notice under this Agreement shall be in writing addressed and delivered
by mail, postage prepaid, to the party to whom addressed at the address
given below, or at such other address as such party shall theretofore have
designated (by notice given to the other party as herein provided) in
writing for the receipt of such notice:
TO THE ADVISER: TO THE UNDERWRITER:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Co-Chairman and Vice President President
DCM Growth Fund ADS Distributors, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ c/o American Data Services, Inc.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the Trust and the Underwriter have each
caused this Agreement to be executed on its behalf by an officer thereunto duly
authorized on the day and year first above written.
DCM Series Trust ADS Distributors, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Treasurer
Co-Chairman and Vice President