UNDERWRITING AGREEMENT
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This Agreement made as of July ___, 1998 by and between Xxxxxxx MultiFund
Trust, a Massachusetts business trust (the "Trust"), and Xxxxxxx Securities,
Inc., a wholly-owned subsidiary of Xxxxxxx Capital Management, Inc., both
Minnesota corporations, ("Underwriter").
WHEREAS, the Trust is an investment company registered under the Investment
Company Act of 1940, as amended (the "Act"); and
WHEREAS, Underwriter is a broker-dealer registered with the Securities and
Exchange Commission and a member of the National Association of Securities
Dealers, Inc. (the "NASD"); and
WHEREAS, Underwriter wishes to serve as the principal underwriter of shares
of beneficial interest (the "Shares") of each series of shares of the Trust (the
"Series") and the Trust wants such an arrangement;
NOW, THEREFORE, in consideration of the promises and agreements of the
parties herein, the parties agree as follows:
1. Appointment.
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The Trust appoints Underwriter as its exclusive agent for the
distribution of the Shares, and Underwriter accepts such appointment under the
terms of this Agreement. While this Agreement is in force, the Trust will not
sell any Shares except on the terms set forth in this Agreement. Despite any
other provision hereof, the Trust may end, suspend, or withdraw the offering of
Shares whenever, in its sole discretion, it deems such action to be desirable.
2. Sales and Repurchase of Shares.
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(a) Underwriter will have the right, as agent for the Trust, to sell
Shares to the public against orders therefor at their net asset value.
(b) Underwriter will also have the right to take, as agent for the
Trust, all actions which, in Underwriter's judgment, are necessary to carry into
effect the distribution of the Shares.
(c) The net asset value of the Shares of each Series will be
determined in the manner provided in the Trust's Registration Statement, and
when determined will be applicable to transactions as provided for in the
Registration Statement. The net asset value of the Shares of each Series will be
calculated by the Trust or by another entity for the Trust. Underwriter will
have no duty to inquire into or liability for the accuracy of the net asset
value per Share as calculated.
(d) When it receives purchase instructions, Underwriter will forward
such instructions to the Trust or its transfer agent for registration of the
account applications and payments to the Trust or its transfer agent for further
processing.
(e) On every sale, the Trust shall receive the applicable net asset
value of the Shares promptly, but in no event later than the tenth business day
following the date on which Underwriter shall have received an order for the
purchase of the Shares.
(f) Underwriter, as agent of and for the account of the Trust may
repurchase the Shares at such prices and upon such terms and conditions as shall
be specified in the Registration Statement.
3. Sale of Shares of the Trust.
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The Trust reserves the right to issue any Shares at any time directly
to the holders of Shares ("Shareholders"), to sell Shares to its Shareholders or
to other persons approved by Underwriter at not less than net asset value and to
issue Shares in exchange for substantially all the assets of any corporation or
trust or for the shares of any corporation or trust.
4. Basis of Sale of Shares.
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(a) Underwriter does not agree to sell any specific number of Shares.
Underwriter, as agent for the Trust, undertakes to sell Shares on a best efforts
basis only against orders therefor.
5. Rules of NASD, etc.
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(a) Underwriter will conform to the Rules of Fair Practice of the
NASD and the securities laws of any jurisdiction in which it sells any Shares.
(b) Underwriter, at its own expense, will qualify as a dealer or
broker, or otherwise, under all applicable State or federal laws required in
order that Shares may be sold in such States as may be mutually agreed upon by
the parties.
(c) Underwriter shall not make, or permit any representative to make,
in connection with any sale of Shares, any representations concerning the Shares
except those contained
in the then current prospectus and statement of additional information covering
the Shares and in printed information approved by the Trust as information
supplemental to such prospectus and statement of additional information.
6. Expenses.
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In the performance of its obligations under this Agreement,
Underwriter will pay the costs incurred in qualifying as a broker or dealer
under state and federal laws. All other costs in connection with the offering of
the Shares will be paid by the Trust or Underwriter in accordance with
agreements between them as permitted by applicable law, including the Act and
rules and regulations promulgated thereunder.
7. Indemnification of Trust.
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Underwriter, to the extent of the net fees received by it from
underlying funds as described elsewhere herein but to no greater amount, agrees
to indemnify and hold harmless the Trust, and each person who has been, is, or
may hereafter be a trustee, officer, employee, shareholder or control person of
the Trust, against any loss, damage or expense (including the reasonable costs
of investigation) reasonably incurred by any of them in connection with any
claim or in connection with any action, suit or proceeding to which any of them
may be a party, which arises out of or is alleged to arise out of or is based
upon any untrue statement or alleged untrue statement of a material fact, or the
omission or alleged omission to state a material fact necessary to make the
statements not misleading, on the part of Underwriter or any agent or employee
of Underwriter or any other person for
whose acts Underwriter is responsible, unless such statement or omission was
made in reliance upon written information furnished by the Trust. Underwriter
likewise, to the extent of the net fees received by it from underlying funds as
described elsewhere herein but to no greater amount, agrees to indemnify and
hold harmless the Trust and each such person in connection with any claim or in
connection with any action, suit or proceeding which arises out of or is alleged
to arise out of Underwriter's failure to exercise reasonable care and diligence
with respect to its services, if any, rendered in connection with investment,
reinvestment, automatic withdrawal and other plans for Shares. The term
"expenses" for purposes of this and the next paragraph includes amounts paid in
satisfaction of judgments or in settlements which are made with Underwriter's
consent. The foregoing rights of indemnification shall be in addition to any
other rights to which the Trust or each such person may be entitled as a matter
of law.
8. Indemnification of Underwriter.
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Underwriter, its directors, officers, employees, shareholders and
control persons shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Trust in connection with the matters to which
this Agreement relates, except a loss resulting from willful misfeasance, bad
faith, or gross negligence on the part of any such persons in the performance of
Underwriter's duties or from the reckless disregard by any of such persons of
Underwriter's obligations and duties under this Agreement. The Trust will
advance attorneys'
fees and other expenses incurred by any such person in defending a proceeding,
upon the undertaking by or on behalf of such person to repay the advance if it
is ultimately determined that such person is not entitled to indemnification.
Any person employed by Underwriter who may also be or become an officer or
employee of the Trust shall be deemed, when acting within the scope of his
employment by the Trust, to be acting in such employment solely for the Trust
and not as an employee or agent of Underwriter.
9. Termination and Amendment of this Agreement.
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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 Trust or by the affirmative vote of a majority of the
outstanding Shares, and (iii) by a majority of the Trustees of the Trust who are
not interested persons of the Trust or of Underwriter by vote cast in person at
a meeting called for the purpose of voting on such approval.
Either the Trust or Underwriter may at any time terminate this
Agreement on sixty (60) days' written notice delivered or mailed by registered
mail, postage prepaid, to the other party.
10. Effective Period of the Agreement.
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This Agreement shall take effect upon its execution and shall remain
in full force and effect for a period of two (2) years from the date of its
execution (unless terminated automatically as set forth in Section 9), and from
year to year
thereafter, subject to annual approval (i) by Underwriter, (ii) either by action
of the Board of Trustees of the Trust or by the affirmative vote of a majority
of the outstanding Shares, and (iii) by a majority of the Trustees of the Trust
who are not interested persons of the Trust or of Underwriter by vote cast in
person at a meeting called for the purpose of voting on such approval.
11. Limitation on Liability.
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The term "Xxxxxxx MultiFund Trust" means and refers to the Trustees
from time to time serving under the Trust's Declaration of Trust as the same may
subsequently thereto have been, or subsequently hereto be, amended. 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 trust property of the
Trust, as provided in the Declaration of Trust of the Trust. The execution and
delivery of this Agreement have been authorized by the Trustees of the Trust and
signed by the 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 trust property of
the Trust as provided in its Declaration of Trust.
12. New Series.
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The terms and provisions of this Agreement shall become automatically
applicable to any additional series of the Trust
established during the initial or renewal term of this Agreement.
13. Successor Investment Company.
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Unless this Agreement has been terminated in accordance with Paragraph
9, the terms and provisions of this Agreement shall become automatically
applicable to any investment company which is a successor to the Trust as a
result of a reorganization, recapitalization or change of domicile.
14. Severability.
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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 continue to be in force.
15. Questions of Interpretation.
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(a) This Agreement shall be governed by the laws of the State of
Minnesota.
(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 Act shall be resolved by reference to such term or provision of the Act
and to 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 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.
17. Notices.
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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 the address of the Trust and of
Underwriter for this purpose shall be 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000.
IN WITNESS WHEREOF, the Trust and Underwriter have each caused this
Agreement to be signed in duplicate on its behalf, all as of the day and year
first above written.
ATTEST: XXXXXXX MULTIFUND TRUST
By
________________________________ Its: ______________________________
ATTEST: XXXXXXX SECURITIES, INC.
By
________________________________ Its:_______________________________
