Exhibit (5)
XXXXXXX SERIES TRUST
PRINCIPAL UNDERWRITING CONTRACT
CLASS I SHARES
CONTRACT made as of September 20, 2001, between XXXXXXX SERIES TRUST, a
Massachusetts business trust ("Fund"), and XXXXXXX ADVISORS, INC., a Delaware
corporation ("Xxxxxxx Advisors").
WHEREAS the Fund is registered under the Investment Company Act of 1940, as
amended ("1940 Act"), as an open-end management investment company and currently
offers distinct series of shares of beneficial interest ("Series"), which
correspond to distinct portfolios; and
WHEREAS the Fund's board of trustees ("Board") has established an unlimited
number of shares of beneficial interest of the above-referenced Series as Class
I shares ("Shares") and determined that it is in the best interests of the Fund
to offer the Shares of the above-referenced Series for sale continuously to the
separate accounts ("Separate Accounts") of insurance companies ("Insurance
Companies") that issue variable annuity or variable life contracts ("Variable
Contracts"); and
WHEREAS the Fund has adopted a Plan of Distribution pursuant to Rule 12b-1
under the 1940 Act for its Shares ("Plan") and desires to retain Xxxxxxx
Advisors as principal underwriter in connection with the offering and sale of
the Shares of the above-referenced Series and of such other Series as may
hereafter be designated by the Board and have Shares established; and
WHEREAS Xxxxxxx Advisors is willing to act as principal underwriter of the
Shares of each such Series with respect to the continuous offering of the Shares
to the Insurance Companies for their Separate Accounts on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints Xxxxxxx Advisors as its exclusive
agent to be the principal underwriter to sell and to arrange for the sale of the
Shares to the Insurance Companies for their Separate Accounts on the terms and
for the period set forth in this Contract. Xxxxxxx Advisors hereby accepts such
appointment and agrees to act hereunder. As used in this Contract, the term
"Registration Statement" shall mean the currently effective registration
statement of the Fund, and any supplements thereto, under the Securities Act of
1933, as amended ("1933 Act"), and the 1940 Act.
2. Services and Duties of Xxxxxxx Advisors.
(a) Xxxxxxx Advisors agrees to sell the Shares to the Insurance
Companies for their Separate Accounts on a best efforts basis from time to time
during the term of this Contract as agent for the Fund and upon the terms
described in the Registration Statement.
(b) Upon the later of the date of this Contract or the initial
offering of the Shares by a Series, Xxxxxxx Advisors will hold itself available
to receive purchase orders, satisfactory to Xxxxxxx Advisors, for Shares of that
Series from Insurance Companies for their Separate Accounts and will accept such
orders on behalf of the Fund as of the time of receipt of such orders and
promptly transmit such orders as are accepted to the Fund's transfer agent.
Purchase orders shall be deemed effective at the time and in the manner set
forth in the Registration Statement.
(c) Xxxxxxx Advisors in its discretion may enter into agreements to
sell Shares to such registered and qualified retail dealers as it may select. In
making agreements with such dealers, Xxxxxxx Advisors shall act only as
principal and not as agent for the Fund.
(d) The offering price of the Shares shall be the net asset value per
Share as next determined by the Fund following receipt of an order by Xxxxxxx
Advisors. The Fund shall promptly furnish Brinson Advisors with a statement of
each computation of net asset value.
(e) Xxxxxxx Advisors shall not be obligated to sell any certain number
of the Shares.
(f) To facilitate redemption of Shares by shareholders directly or
through dealers, Xxxxxxx Advisors is authorized but not required on behalf of
the Fund to repurchase Shares presented to it by shareholders and dealers at the
price determined in accordance with, and in the manner set forth in, the
Registration Statement.
(g) Xxxxxxx Advisors shall arrange for each Insurance Company to which
it sells Shares for that Insurance Company's Separate Accounts to enter into an
agreement with the Fund or Xxxxxxx Advisors to provide certain distribution
related services with respect to the Shares and the owners of the Variable
Contracts issued by the Separate Accounts. These distribution related services
may include, but are not limited to, the following: (a) printing and mailing of
Fund prospectuses, statements of additional information, any supplements thereto
and shareholder reports for existing and prospective Variable Contract owners;
(b) services relating to the development, preparation, printing and mailing of
Trust advertisements, sales literature and other promotional materials
describing and/or relating to the Trust and including materials intended for use
within the Participating Insurance Company or for broker-dealer use only or
retail use; (c) holding seminars and sales meetings designed to promote the
distribution of the Shares; (d) obtaining information and providing explanations
to Variable Contract owners regarding the investment objectives and policies and
other information about the Fund and its Series, including the performance of
the Series; (e) training sales personnel regarding the Fund and its Series; (f)
compensating sales personnel with respect to the Fund and its Series; (g)
providing personal services and/or maintenance of the Variable Contract owner
accounts with respect to the Shares attributable to such accounts; and (h)
financing any other activity that the Board determines is primarily intended to
result in the sale of the Shares.
(h) Xxxxxxx Advisors shall have the right to use any list of
shareholders of the Fund or any other list of investors which it obtains in
connection with its provision of services under this Contract; provided,
however, that Xxxxxxx Advisors shall not sell or knowingly provide such list or
lists to any unaffiliated person.
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3. Authorization to Enter into Dealer Agreements and to Delegate
Duties as Principal Underwriter. With respect to the Shares of any or all
Series, Xxxxxxx Advisors may enter into dealer agreements with any registered
and qualified dealer with respect to sales of Shares to the Insurance Companies
for their Separate Accounts. In a separate contract or as part of any such
dealer agreement, Xxxxxxx Advisors also may delegate to any registered and
qualified dealer any or all of its duties specified in this Contract, provided
that such separate contract or dealer agreement imposes on the counterparty
bound thereby all applicable duties and conditions to which Xxxxxxx Advisors is
subject under this Contract.
4. Services Not Exclusive. The services furnished by Xxxxxxx Advisors
hereunder are not to be deemed exclusive and Xxxxxxx Advisors shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby. Nothing in this Contract shall limit or restrict the
right of any director, officer or employee of Xxxxxxx Advisors, who may also be
a trustee, officer or employee of the Fund, to engage in any other business or
to devote his or her time and attention in part to the management or other
aspects of any other business, whether of a similar or a dissimilar nature.
5. Compensation. As compensation for its activities under this
contract with respect to the distribution of the Shares, Xxxxxxx Advisors shall
receive from the Fund for remittance to the Insurance Companies or may direct
the Fund to pay directly to such Insurance Companies a distribution fee at the
rate and under the terms and conditions of the Plan adopted by the Fund with
respect to the Shares of the Series, as such Plan is amended from time to time,
and subject to any further limitations on such fee as the Board may impose.
6. Duties of the Fund.
(a) The Fund reserves the right at any time to withdraw offering
Shares of any or all Series by written notice to Xxxxxxx Advisors at its
principal office.
(b) The Fund shall keep Xxxxxxx Advisors fully informed of its affairs
and shall make available to Xxxxxxx Advisors copies of all information,
financial statements, and other documents which Xxxxxxx Advisors may reasonably
request for use in connection with the distribution of Shares, including,
without limitation, certified copies of any financial statements prepared for
the Fund by its independent public accountant and such reasonable number of
copies of the most current prospectus, statement of additional information, and
annual and interim reports of any Series as Xxxxxxx Advisors may request, and
the Fund shall cooperate fully in the efforts of Xxxxxxx Advisors to sell and
arrange for the sale of the Shares of the Series and in the performance of
Xxxxxxx Advisors under this Contract.
(c) The Fund shall take, from time to time, all necessary action,
including payment of the related filing fee, as may be necessary to register its
Shares under the 1933 Act to the end that there will be available for sale such
number of the Shares as Xxxxxxx Advisors may be expected to sell. The Fund
agrees to file, from time to time, such amendments, reports, and other documents
as may be necessary in order that there will be no untrue statement of a
material fact in the Registration Statement, nor any omission of a material fact
which omission would make the statements therein misleading.
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(d) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of Shares of each Series for sale under
the securities laws of such states or other jurisdictions as Xxxxxxx Advisors
and the Fund may approve, provided that the Fund shall not be required to amend
its Declaration of Trust or By-Laws to comply with the laws of any jurisdiction,
to maintain an office in any jurisdiction, to change the terms of the offering
of the Shares in any jurisdiction from the terms set forth in its Registration
Statement, to qualify as a foreign corporation in any jurisdiction, or to
consent to service of process in any jurisdiction other than with respect to
claims arising out of the offering of the Shares. Xxxxxxx Advisors shall furnish
such information and other material relating to its affairs and activities as
may be required by the Fund in connection with such qualifications.
7. Expenses of the Fund. The Fund shall bear all costs and expenses of
registering the Shares with the Securities and Exchange Commission
("Commission") and qualifying the Shares with state and other regulatory bodies,
and shall assume expenses related to communications with shareholders of each
Series, including (i) fees and disbursements of its counsel and independent
public accountant; (ii) the preparation, filing and printing of registration
statements and/or prospectuses or statements of additional information required
under the federal securities laws; (iii) the preparation and mailing of annual
and interim reports, prospectuses, statements of additional information and
proxy materials to shareholders; and (iv) the qualifications of Shares for sale
under the securities laws of such jurisdictions as shall be selected by the Fund
and Xxxxxxx Advisors pursuant to Paragraph 6(d) hereof, and the costs and
expenses payable to each such jurisdiction for continuing qualification therein.
8. Expenses of Xxxxxxx Advisors. Xxxxxxx Advisors shall bear all costs
and expenses of (i) preparing, printing and distributing any materials not
prepared by the Fund and other materials used by Xxxxxxx Advisors in connection
with the sale of Shares under this Contract, including the additional cost of
printing copies of prospectuses, statements of additional information, and
annual and interim shareholder reports other than copies thereof required for
distribution to existing shareholders or for filing with any federal or state
securities authorities; (ii) any expenses of advertising incurred by Xxxxxxx
Advisors in connection with such offering; (iii) the expenses of registration or
qualification of Xxxxxxx Advisors as a broker or dealer under federal or state
laws and the expenses of continuing such registration or qualification; and (iv)
all compensation paid to Xxxxxxx Advisors' employees and others for selling
Shares, and all expenses of Xxxxxxx Advisors, its employees and others who
engage in or support the sale of Shares as may be incurred in connection with
their sales efforts.
9. Indemnification.
(a) The Fund agrees to indemnify, defend and hold Xxxxxxx Advisors,
its officers and directors, and any person who controls Xxxxxxx Advisors within
the meaning of Section 15 of the 1933 Act, free and harmless from and against
any and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which Xxxxxxx Advisors, its officers,
directors or any such controlling person may incur under the 1933 Act, or under
common law or otherwise, arising out of or based upon any alleged untrue
statement of a material fact contained in the Registration Statement or arising
out of or based upon any alleged omission to state a material fact required to
be stated in the Registration Statement or necessary
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to make the statements therein 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 Xxxxxxx Advisors
to the Fund for use in the Registration Statement; provided, however, that this
indemnity agreement shall not inure to the benefit of any person who is also an
officer or trustee of the Fund or who controls the Fund within the meaning of
Section 15 of the 1933 Act, unless a court of competent jurisdiction shall
determine, or it shall have been determined by controlling precedent, that such
result would not be against public policy as expressed in the 1933 Act; and
further provided, that in no event shall anything contained herein be so
construed as to protect Xxxxxxx Advisors against any liability to the Fund or to
the shareholders of any Series to which Xxxxxxx Advisors would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations under this Contract. The Fund shall not be liable to Xxxxxxx
Advisors under this indemnity agreement with respect to any claim made against
Xxxxxxx Advisors or any person indemnified unless Xxxxxxx Advisors or other such
person shall have notified the Fund in writing of the claim within a reasonable
time after the summons or other first written notification giving information of
the nature of the claim shall have been served upon Xxxxxxx Advisors or such
other person (or after Xxxxxxx Advisors or the person shall have received notice
of service on any designated agent). However, failure to notify the Fund of any
claim shall not relieve the Fund from any liability which it may have to Xxxxxxx
Advisors or any person against whom such action is brought otherwise than on
account of this indemnity agreement. The Fund shall be entitled to participate
at its own expense in the defense or, if it so elects, to assume the defense of
any suit brought to enforce any claims subject to this indemnity agreement. If
the Fund elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by the Fund and satisfactory to indemnified
defendants in the suit whose approval shall not be unreasonably withheld. In the
event that the Fund elects to assume the defense of any suit and retain counsel,
the indemnified defendants shall bear the fees and expenses of any additional
counsel retained by them. If the Fund does not elect to assume the defense of a
suit, it will reimburse the indemnified defendants for the reasonable fees and
expenses of any counsel retained by the indemnified defendants. The Fund agrees
to notify Xxxxxxx Advisors promptly of the commencement of any litigation or
proceedings against it or any of its officers or trustees in connection with the
issuance or sale of any of its Shares.
(b) Xxxxxxx Advisors agrees to indemnify, defend, and hold the
Fund, its officers and trustees and any person who controls the Fund within the
meaning of Section 15 of the 1933 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 or
officers, or any such controlling person may incur under the 1933 Act or under
common law or otherwise arising out of or based upon any alleged untrue
statement of a material fact contained in information furnished by Xxxxxxx
Advisors to the Fund for use in the Registration Statement, arising out of or
based upon any 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, or arising out of any agreement between
Xxxxxxx Advisors and any retail dealer, or arising out of any supplemental sales
literature or advertising used by Xxxxxxx Advisors in connection with its duties
under this Contract. Xxxxxxx Advisors shall be entitled to participate, at its
own expense, in the defense or, if it so elects, to assume the defense of any
suit
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brought to enforce the claim, but if Xxxxxxx Advisors elects to assume the
defense, the defense shall be conducted by counsel chosen by Xxxxxxx Advisors
and satisfactory to the indemnified defendants whose approval shall not be
unreasonably withheld. In the event that Xxxxxxx Advisors elects to assume the
defense of any suit and retain counsel, the defendants in the suit shall bear
the fees and expenses of any additional counsel retained by them. If Xxxxxxx
Advisors does not elect to assume the defense of any suit, it will reimburse the
indemnified defendants in the suit for the reasonable fees and expenses of any
counsel retained by them.
10. Limitation of Liability of the Trustees and Shareholders of the Fund.
The trustees of the Fund and the shareholders of any Series shall not be liable
for any obligations of the Fund or any Series under this Contract, and Xxxxxxx
Advisors agrees that, in asserting any rights or claims under this Contract, it
shall look only to the assets and property of the Fund or the particular Series
in settlement of such right or claims, and not to such trustees or shareholders.
11. Services Provided to the Fund by Employees of Xxxxxxx Advisors. Any
person, even though also an officer, director, employee or agent of Xxxxxxx
Advisors, who may be or become an officer, trustee, employee or agent of the
Fund, shall be deemed, when rendering services to the Fund or acting in any
business of the Fund, to be rendering such services to or acting solely for the
Fund and not as an officer, director, employee or agent or one under the control
or direction of Xxxxxxx Advisors even though paid by Xxxxxxx Advisors.
12. Duration and Termination.
(a) This Contract shall become effective upon the date written above,
provided that, with respect to any Series, this Contract shall not take effect
unless such action has first been approved by vote of a majority of the Board
and by vote of a majority of those trustees 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 relating to the Series or in any agreements related
thereto (all such trustees collectively being referred to herein as the
"Independent Trustees"), cast in person at a meeting called for the purpose of
voting on such action.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from the above written date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually (i) by a vote of a majority of the Independent Trustees, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board or with respect to any given Series by vote of a majority of the
outstanding voting Shares of such Series.
(c) Notwithstanding the foregoing, with respect to any Series,
this Contract may be terminated at any time, without the payment of any penalty,
by vote of the Board, by vote of a majority of the Independent Trustees or by
vote of a majority of the outstanding voting Shares of such Series on sixty
days' written notice to Xxxxxxx Advisors or by Xxxxxxx Advisors at any time,
without the payment of any penalty, on sixty days' written notice to the Fund or
such Series. This Contract will automatically terminate in the event of its
assignment.
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(d) Termination of this Contract with respect to any given Series
shall in no way affect the continued validity of this Contract or the
performance thereunder with respect to any other Series.
13. Amendment of this Contract. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
14. Governing Law. This Contract 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, provided however
that Section 10 shall be construed in accordance with the laws of the
Commonwealth of Massachusetts. To the extent that the applicable laws of the
State of New York or the Commonwealth of Massachusetts conflict with the
applicable provisions of the 1940 Act, the latter shall control. As used in this
Contract, the terms "majority of the outstanding voting securities," "interested
person" and "assignment" shall have the same meaning as such terms have in the
1940 Act, subject to any exemption or interpretation as may be issued by the
Commission by any rule, regulation or order or contained in any no-action or
interpretive positions taken by the Commission staff. Where the effect of a
requirement of the 1940 Act reflected in any provision of this Contract is
revised by a rule, regulation, order or interpretation of the Commission or the
Commission staff, whether of special or general application, such provision
shall be deemed to incorporate the effect of such rule, regulation, order or
interpretation.
15. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient upon receipt in writing at the
other party's principal offices.
16. Miscellaneous. The captions in this Contract 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. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first above
written.
XXXXXXX SERIES TRUST XXXXXXX SERIES TRUST
By: /s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxx X. Doberman
--------------------------------- -------------------------------
Name: Xxxxxxxx Xxxxxxxx Name: Xxx X. Doberman
Title: Assistant Secretary Title: Secretary
XXXXXXX ADVISORS, INC. XXXXXXX ADVISORS, INC.
By: /s/ Xxxx Rubn By: /s/ Xxxxx X. Xxxxxx
--------------------------------- -------------------------------
Name: Xxxx Rubn Name: Xxxxx X. Xxxxxx
Title: Associate Director Title: Director
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