Exhibit 99.(e).(1)
UNDERWRITING AGREEMENT
THIS AGREEMENT made as of this 6th
day of January, 2016, by and between Virtus Retirement Trust, a Delaware statutory trust having a place of business located at
000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx (the “Trust”) and VP Distributors, LLC, a Delaware limited liability company
having a place of business located at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the “Underwriter”).
W I T N E S S E T H:
| 1. | The Fund hereby grants to the Underwriter the right to purchase shares of
beneficial interest of each class of each series of the Fund established and designated as of the date hereof and of any additional
series and classes thereof which the Board of Directors or Board of Trustees, as applicable (“Trustees”) may establish
and designate during the term of this Agreement (called the “Series” and “Classes”, respectively) and to
resell shares of various Classes, as applicable, of each Series (collectively called the “Shares”) as principal and
not as agent. The Underwriter accepts such appointment and agrees to render the services described in this Agreement for the compensation
herein provided. |
| 2. | The Underwriter’s right to purchase Shares shall be exclusive except
that the terms of this Agreement shall not apply to Shares issued or transferred: |
| a. | pursuant to an offer of exchange exempted under Section 22(d) of the Investment
Company Act of 1940, as amended (the “Act”) by reason of the fact that said offer is permitted by Section 11 of the
Act, including any offer made pursuant to clause (1) or (2) of Section 11(b); |
| b. | upon the sale to a registered unit investment trust which is the issuer
of periodic payment plan certificates the net proceeds of which are invested in redeemable securities; |
| c. | pursuant to an offer made solely to all registered holders of Shares, or
all registered holders of Shares of any Series, proportionate to their holdings or proportionate to any cash distribution made
to them by the Fund (subject to appropriate qualifications designed solely to avoid issuance of fractional securities); |
| d. | in connection with any merger or consolidation of the Fund or of any Series
with any other investment company or the acquisition by the Fund, by purchase or otherwise, of any other investment company; |
| e. | pursuant to sales exempted from Section 22(d) of the Act, by rule or regulation
or order of the Securities and Exchange Commission as provided in the then current registration statement of the Fund; or |
| f. | in connection with the reinvestment by Fund shareholders of dividend and
capital gains distributions. |
| 3. | The “Net Asset Value” and the “Public Offering Price”
of the Shares as referred to in this Agreement shall be computed in accordance with the provisions of the then current registration
statement of the Fund. The Underwriter shall be notified promptly by the Fund of such computations. |
| 4. | The Underwriter has and shall enter into written sales agreements with broker/dealers
(“dealers”) and with banks as defined in Section 3(a)(6) of the Securities Exchange Act of 1934, as amended (“Exchange
Act”), that are not required to register as a broker/dealer under the Exchange Act or the |
| | regulations thereunder (“Banks”).
Such sales agreements shall provide that dealers or Banks shall use their best efforts to promote the sale of Shares. Such sales
agreements shall include such terms and conditions as Underwriter may determine not inconsistent with this Agreement; provided,
however, that such sales agreements shall specify a) that the dealer is registered as a broker/dealer under the Exchange Act and
a member of the National Association of Securities Dealers, Inc. or, in the alternative, that the Bank is exempt from broker/dealer
registration under the Exchange Act; and b) that such dealers and Banks agree that they will comply with all applicable state,
and federal laws and the rules and regulations of applicable regulatory agencies. |
| 5. | Each day the Underwriter shall have the right to purchase from the Fund,
as principal, the amount of Shares needed to fill unconditional orders for such Shares received by the Underwriter from dealers,
Banks, or investors, but no more than the Shares needed, at a price equal to the Net Asset Value of the Shares. Any purchase of
Shares by the Underwriter under this Agreement shall be subject to reasonable adjustment for clerical errors, delays and errors
of transmission and cancellation of orders. |
| 6. | With respect to transactions other than with dealers or Banks, the Underwriter
will sell Shares only at the Public Offering Price then in effect, except to the extent that sales at less than the Public Offering
Price may be allowed by the Act, any rule or regulation promulgated thereunder or by order of the Securities and Exchange Commission
(“SEC”), provided, however, that any such sales at less than the Public Offering Price shall be consistent with the
terms of the then current registration statement of the Fund. The Underwriter will sell at Net Asset Value Shares of any Classes
which are offered by the then current registration statement or prospectus of the Fund for sale at such Net Asset Value or at Net
Asset Value with a contingent deferred sales charge (“CDSC Shares”). The Underwriter shall receive from the Fund all
contingent deferred sales charges applied on redemptions of CDSC Shares. |
| 7. | Sales at a discount from the Public Offering Price shall be made in accordance
with the terms and conditions of the terms of the current registration statement of the Fund allowing such discounts. Such discounts
shall not exceed the difference between the Net Asset Value and the Public Offering Price; however, the Underwriter may offer compensation
in excess of the difference between the Net Asset Value and the Public Offering Price, at its discretion and from its own profits
and resources, and only as described in the current registration statement of the Fund. With respect to sales of CDSC Shares, the
Underwriter, in accordance with the terms of the current registration statement of the Fund, shall pay dealers a commission on
such sales from its profits and resources. |
| 8. | As reimbursement for expenditures made in connection with providing certain
distribution-related services, the Underwriter may receive from the Fund a distribution fee under the terms and conditions set
forth in the Fund’s distribution plan adopted under Rule 12b-1 under the Investment Company Act of 1940, as amended, as the
plan may be amended from time to time and subject to any further limitations on such fees as the Trustees may impose. The Underwriter
may also receive from the Fund a service fee under the 12b-1 Plan to be retained by the Underwriter as compensation for providing
services to shareholders of the Fund or to be paid to dealers and Banks for providing services to their clients who are also shareholders
of the Fund. |
| 9. | The Fund shall furnish the Underwriter with copies of its organizational
documents, as amended from time to time. The Fund shall also furnish the Underwriter with any other documents of the Fund which
will assist the Underwriter in the performance of its duties hereunder. |
| 10. | The Underwriter agrees to use its best efforts (in states where it may lawfully
do so) to obtain from investors unconditional orders for Shares authorized for issue by the Fund and registered under applicable
Federal securities laws, and, so long as it does so, nothing herein contained shall prevent the Underwriter from entering into
similar arrangements with other registered investment companies. The Underwriter may, in the exercise of its discretion, refuse
to accept orders for Shares from any person. |
| 11. | Upon receipt by the Fund of a purchase order from the Underwriter, accompanied
by proper delivery instructions, the Fund shall, as promptly as practicable thereafter, cause evidence of ownership of Shares to
be delivered as indicated in such purchase order. Payment for such Shares shall be made by the Underwriter to the Fund in a manner
acceptable to the Fund, provided that the Underwriter shall pay for such Shares no later than the third business day after the
Underwriter shall have contracted to purchase such shares. |
| 12. | In connection with offering for sale and selling Shares, the Fund authorizes
the Underwriter to give only such information and to make only such statements or representations as are contained in the then
current registration statement of the Fund. The Underwriter shall be responsible for the approval and filing of sales material
as required under SEC and NASD regulations. |
| 13. | The Fund agrees to pay the following expenses: |
| a. | the cost of mailing any stock certificates representing Shares; |
| b. | fees and expenses (including legal expenses) of registering and maintaining
registrations of the Fund and of each Series and Class with the Securities and Exchange Commission including the preparation and
printing of registration statements and prospectuses for filing with said Commission; |
| c. | fees and expenses (including legal expenses) incurred in registering and
qualifying Shares for sale with any state regulatory agency and fees and expenses of maintaining, renewing, increasing or amending
such registrations and qualifications; |
| d. | the expense of any issue or transfer taxes upon the sale of Shares to the
Underwriter by the Fund; |
| e. | the cost of preparing and distributing reports and notices to shareholders;
and |
| f. | fees and expenses of the transfer agent, including the cost of preparing
and mailing notices to shareholders pertaining to transactions with respect to such shareholders accounts. |
| 14. | The Underwriter agrees to pay the following expenses: |
| a. | all expenses of printing prospectuses and statements of additional information
used in connection with the sale of Shares and printing and preparing all other sales literature; |
| b. | all fees and expenses in connection with the qualification of the Underwriter
as a dealer in the various states and countries; |
| c. | the expense of any stock transfer tax required in connection with the sale
of Shares by the Underwriter as principal to dealers or to investors; and |
| d. | all other expenses in connection with offering for sale and the sale of
Shares which have not been herein specifically allocated to the Fund. |
| 15. | The Fund hereby appoints the Underwriter its agent to receive requests to
accept the Fund’s offer to repurchase Shares upon such terms and conditions as may be described in the Fund’s then
current registration statement. The agency granted in this paragraph 15 is terminable at the discretion of the Fund. As compensation
for acting as such agent and as part of the consideration for acting as |
| | underwriter, Underwriter shall receive from the Fund all
contingent deferred sales charges imposed upon the redemption of Shares. Whether and to what extent a contingent deferred sales
charge will be imposed shall be determined in accordance with, and in the manner set forth in, the applicable Fund’s prospectus. |
| 16. | The Fund agrees to indemnify and hold harmless the Underwriter, its officers
and directors and each person, if any, who controls the Underwriter within the meaning of section 15 of the Securities Act of 1933,
as amended, against any losses, claims, damages, liabilities and expenses (including the cost of any legal fees incurred in connection
therewith) which the Underwriter, its officers, directors or any such controlling person may incur under said Act, under any other
statute, at common law or otherwise, arising out of or based upon |
| a. | any untrue statement or alleged untrue statement of a material fact contained
in the Fund’s registration statement or prospectus (including amendments and supplements thereto), or |
| b. | any omission or alleged omission to state a material fact required to be
stated in the Fund's registration statement or prospectus or necessary to make the statements in either not misleading, provided,
however, that insofar as losses, claims, damages, 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 and in conformity with information furnished to the Fund by
the Underwriter for use in the Fund's registration statement or prospectus, such indemnification is not applicable. In no case
shall the Fund indemnify the Underwriter or its controlling persons as to any amounts incurred for any liability arising out of
or based upon any action for which the Underwriter, its officers and directors or any controlling person would otherwise be subject
to liability by reason of willful misfeasance, bad faith, or gross negligence in the performance of its duties or by reason of
the reckless disregard of its obligations and duties under this Agreement. |
| 17. | The Underwriter agrees to indemnify and hold harmless the Fund, its officers
and trustees and each person, if any, who controls the Fund within the meaning of Section 15 of the Securities Act of 1933, as
amended, against any losses, claims, damages, liabilities and expenses (including the cost of any legal fees incurred in connection
therewith) which the Fund, its officers, trustees or any such controlling person may incur under said Act, under any other statute,
at common law or otherwise arising out of the acquisition of any shares by any person which |
| a. | may be based upon any wrongful act by the Underwriter or any of its employees
or representatives, or |
| b. | may be based upon any untrue statement or alleged untrue statement of a material
fact contained in the Fund’s registration statement (including amendments and supplements thereto) or sales material, or
any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein
not misleading if such statement or omission was made in reliance upon information furnished or confirmed in writing to the Fund
by the Underwriter. |
| 18. | It is understood that: |
| a. | trustees, officers, employees, agents and shareholders of the Fund are or
may be interested persons, as that term is defined in the Act (“Interested Persons”), of the Underwriter as directors,
officers, stockholders or otherwise; |
| b. | directors, officers, employees, agents and stockholders of the Underwriter
are or may be Interested Persons of the Fund as trustees, officers, shareholders or otherwise; |
| c. | the Underwriter may be an Interested Person of the Fund as shareholder or
otherwise; and |
| d. | the existence of any such dual interest shall not offset the validity hereof
or of any transactions hereunder. |
| 19. | The Fund may terminate this Agreement by 60 days written notice to the Underwriter
at any time, without the payment of any penalty, by vote of the Trustees or by a vote of a majority of the outstanding voting securities,
as that term is defined in the Act, of the Fund. The Underwriter may terminate this Agreement by 60 days written notice to the
Fund, without the payment of any penalty. This Agreement shall immediately terminate in the event of its assignment, as that term
is defined in the Act. |
| 20. | Subject to prior termination as provided in paragraph 19, this Agreement
shall continue in force for one year from the date of execution and from year to year thereafter so long as the continuance after
such one year period shall be specifically approved at least annually by vote of the Trustees, or by a vote of a majority of the
appropriate class of outstanding voting securities, as that term is defined in the Act, of the Fund. Additionally, each annual
renewal of this Agreement must be approved by the vote of a majority of the Trustees who are not parties to the Agreement or Interested
Persons of any such party, cast in person at a meeting of the Trustees called for the purpose of voting on such approval. |
| 21. | It is expressly agreed that the obligations of the Fund hereunder shall not
be binding upon any of the Trustees, shareholders, nominees, officers, agents or employees of the Fund personally, but bind only
the trust property of the Fund, as provided in the Declaration of Trust. The execution and delivery of this Agreement by the President
of the Fund has been authorized by the Trustees acting as such, and neither such execution and delivery by such officer nor such
authorization by such Trustees shall be deemed to have been made by any of them individually or be binding upon or impose any liability
on any of them personally, but shall bind only the trust property of the Fund as provided in the Declaration of Trust. |
| 22. | This Agreement shall become effective upon the date first set forth above.
This Agreement shall be governed by the laws of the State of Delaware and shall be binding on the successors and assigns of the
parties to the extent permitted by law. |
IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed by their duly authorized officers as of the day and year first written above.
VIRTUS RETIREMENT TRUST
By: /s/ W. Xxxxxxx Xxxxxxx
Name: W. Xxxxxxx Xxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
VP DISTRIBUTORS, LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
