Xxxxxxx Xx. 0
XXXXXXXX XXXXXXXX SERIES TRUST
DISTRIBUTION CONTRACT
CLASS I SHARES
CONTRACT made as of May 1, 1998, between XXXXXXXX XXXXXXXX SERIES TRUST, a
Massachusetts business trust ("Fund"), and XXXXXXXX XXXXXXXX ASSET MANAGEMENT
INC., a Delaware corporation ("Xxxxxxxx Xxxxxxxx").
WHEREAS the Fund is registered under the Investment Company Act of l940,
as amended ("l940 Act"), as an open-end management investment company and
currently has thirteen distinct series of shares of beneficial interest
("Series"), which correspond to distinct portfolios of investments and have been
designated as the Aggressive Growth Portfolio, Balanced Portfolio, Global Growth
Portfolio, Global Income Portfolio, Growth and Income Portfolio, Growth
Portfolio, High Grade Fixed Income Portfolio, High Income Portfolio, Money
Market Portfolio, Small Cap Portfolio, Strategic Fixed Income Portfolio,
Strategic Income Portfolio and Tactical Allocation Portfolio; 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 Xxxxxxxx
Xxxxxxxx as principal distributor 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 Xxxxxxxx Xxxxxxxx is willing to act as principal distributor 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 Xxxxxxxx Xxxxxxxx as its
exclusive agent to be the principal distributor 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. Xxxxxxxx Xxxxxxxx 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 XXXXXXXX XXXXXXXX.
(a) Xxxxxxxx Xxxxxxxx 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, Xxxxxxxx Xxxxxxxx will hold itself available
to receive purchase orders, satisfactory to Xxxxxxxx Xxxxxxxx, for the 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) Xxxxxxxx Xxxxxxxx in its discretion may enter into agreements to
sell the Shares to such registered and qualified retail dealers, including but
not limited to PaineWebber Incorporated ("PaineWebber"), as it may select. In
making agreements with such dealers, Xxxxxxxx Xxxxxxxx shall act only as
principal and not as agent for the Fund.
(d) The offering price of the Shares of each Series shall be the net
asset value per Share as next determined by the Fund following receipt of an
order by Xxxxxxxx Xxxxxxxx. The Fund shall promptly furnish Xxxxxxxx Xxxxxxxx
with a statement of each computation of net asset value.
(e) Xxxxxxxx Xxxxxxxx shall not be obligated to sell any certain
number of the Shares.
(f) To facilitate redemption of the Shares by shareholders directly
or through dealers, Xxxxxxxx Xxxxxxxx is authorized but not required on behalf
of the Fund to repurchase the 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) Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx 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
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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) Xxxxxxxx Xxxxxxxx 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 services under this Contract; provided, however, that
Xxxxxxxx Xxxxxxxx shall not sell or knowingly provide such list or lists to any
unaffiliated person.
3. AUTHORIZATION TO ENTER INTO EXCLUSIVE DEALER AGREEMENTS AND TO DELEGATE
DUTIES AS DISTRIBUTOR. With respect to the Shares of any or all Series, Xxxxxxxx
Xxxxxxxx may enter into an exclusive dealer agreement with PaineWebber or any
other registered and qualified dealer with respect to sales of the Shares to the
Insurance Companies for their Separate Accounts. In a separate contract or as
part of any such exclusive dealer agreement, Xxxxxxxx Xxxxxxxx also may delegate
to PaineWebber or another registered and qualified dealer ("sub-distributor")
any or all of its duties specified in this Contract, provided that such separate
contract or exclusive dealer agreement imposes on the sub-distributor bound
thereby all applicable duties and conditions to which Xxxxxxxx Xxxxxxxx is
subject under this Contract, and further provided that such separate contract or
exclusive dealer agreement meets all requirements of the 1940 Act and rules
thereunder.
4. SERVICES NOT EXCLUSIVE. The services furnished by Xxxxxxxx Xxxxxxxx
hereunder are not to be deemed exclusive and Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx, 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. (a) As compensation for its activities under this
contract with respect to the distribution of the Shares, Xxxxxxxx Xxxxxxxx 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.
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(a) The Fund reserves the right at any time to withdraw offering the
Shares of any or all Series by written notice to Xxxxxxxx Xxxxxxxx at its
principal office.
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(b) The Fund shall determine in its sole discretion whether
certificates shall be issued with respect to the Shares. If the Fund has
determined that certificates shall be issued, the Fund will not cause
certificates representing the Shares to be issued unless so requested by
shareholders. If such request is transmitted by Xxxxxxxx Xxxxxxxx, the Fund will
cause certificates evidencing the Shares to be issued in such names and
denominations as Xxxxxxxx Xxxxxxxx shall from time to time direct.
(c) The Fund shall keep Xxxxxxxx Xxxxxxxx fully informed of its
affairs and shall make available to Xxxxxxxx Xxxxxxxx copies of all information,
financial statements, and other papers which Xxxxxxxx Xxxxxxxx may reasonably
request for use in connection with the distribution of the 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 Xxxxxxxx Xxxxxxxx may request, and
the Fund shall cooperate fully in the efforts of Xxxxxxxx Xxxxxxxx to sell and
arrange for the sale of the Shares of the Series and in the performance of
Xxxxxxxx Xxxxxxxx under this Contract.
(d) The Fund shall take, from time to time, all necessary action,
including payment of the related filing fee, as may be necessary to register the
Shares under the 1933 Act to the end that there will be available for sale such
number of the Shares as Xxxxxxxx Xxxxxxxx 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.
(e) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of the Shares of each Series for sale
under the securities laws of such states or other jurisdictions as Xxxxxxxx
Xxxxxxxx and the Fund may approve, and, if necessary or appropriate in
connection therewith, to qualify and maintain the qualification of the Fund as a
broker or dealer in such jurisdictions; 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. Xxxxxxxx
Xxxxxxxx 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 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
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reports, prospectuses, statements of additional information and proxy materials
to shareholders; and (iv) the qualifications of the Shares for sale and of the
Fund as a broker or dealer under the securities laws of such jurisdictions as
shall be selected by the Fund and Xxxxxxxx Xxxxxxxx pursuant to Paragraph 6(e)
hereof, and the costs and expenses payable to each such jurisdiction for
continuing qualification therein.
8. EXPENSES OF XXXXXXXX XXXXXXXX. Xxxxxxxx Xxxxxxxx shall bear all costs
and expenses of (i) preparing, printing and distributing any materials not
prepared by the Fund and other materials used by Xxxxxxxx Xxxxxxxx in connection
with the sale of the 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 Xxxxxxxx
Xxxxxxxx in connection with such offering; (iii) the expenses of registration or
qualification of Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx' employees and others for selling the
Shares, and all expenses of Xxxxxxxx Xxxxxxxx, its employees and others who
engage in or support the sale of the Shares as may be incurred in connection
with their sales efforts.
9. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold Xxxxxxxx Xxxxxxxx,
its officers and directors, and any person who controls Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx, 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 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 Xxxxxxxx Xxxxxxxx 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
Xxxxxxxx Xxxxxxxx against any liability to the Fund or to the shareholders of
any Series to which Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx under this indemnity
agreement with respect to any claim made against Xxxxxxxx Xxxxxxxx or any person
indemnified unless Xxxxxxxx Xxxxxxxx or other such person shall have notified
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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 Xxxxxxxx Xxxxxxxx or such other person (or after
Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx 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) Xxxxxxxx Xxxxxxxx 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 in writing by
Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx Xxxxxxxx and any retail dealer, or arising out of any
supplemental sales literature or advertising used by Xxxxxxxx Xxxxxxxx in
connection with its duties under this Contract. Xxxxxxxx Xxxxxxxx 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 the claim, but if Xxxxxxxx
Xxxxxxxx elects to assume the defense, the defense shall be conducted by counsel
chosen by Xxxxxxxx Xxxxxxxx and satisfactory to the indemnified defendants whose
approval shall not be unreasonably withheld. In the event that Xxxxxxxx Xxxxxxxx
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 Xxxxxxxx Xxxxxxxx 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 Xxxxxxxx
Xxxxxxxx agrees that, in asserting any rights or claims under this Contract, it
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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 XXXXXXXX XXXXXXXX. Any
person, even though also an officer, director, employee or agent of Xxxxxxxx
Xxxxxxxx, 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 Xxxxxxxx Xxxxxxxx even though paid by Xxxxxxxx Xxxxxxxx.
12. DURATION AND TERMINATION.
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(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 one year 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 Xxxxxxxx Xxxxxxxx or by Xxxxxxxx Xxxxxxxx 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.
(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 Delaware and the 1940 Act, except 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 Delaware or the Commonwealth
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of Massachusetts conflict with the applicable provisions of the l940 Act, the
latter shall control.
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. 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 l940 Act.
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.
ATTEST: XXXXXXXX XXXXXXXX SERIES TRUST
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. X'Xxxxxxx
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ATTEST: XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxxx Xxxxxxxxx
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