PRINCIPAL UNDERWRITER'S AGREEMENT
Agreement made this 1st day of May, 1993 between VAN XXXXXX XXXXXXX SERIES
TRUST, an unincorporated business trust organized under the laws of the
Commonwealth of Massachusetts ("TRUST"), and XEROX LIFE SALES COMPANY, a
Delaware corporation registered as a broker-dealer with the Securities and
Exchange Commission and National Association of Securities Dealers, Inc.
("PRINCIPAL UNDERWRITER"), each with offices at Xxx Xxxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, TRUST currently offers shares of its common stock in five series,
designated as the Money Market Portfolio, Quality Income Portfolio, High Yield
Portfolio, Stock Index Portfolio and Growth and Income Portfolio ("Current
Portfolios"), and TRUST may offer shares of one or more additional Portfolios in
the future; and
WHEREAS, TRUST was organized to act as the funding vehicle for certain
variable contracts offered by Xerox Financial Services Life Insurance Company
and its affiliated life insurance companies (the "Life Companies") through
separate accounts of such life companies; and
WHEREAS, TRUST may enter into fund participation agreements with the Life
Companies that have or will establish one or more separate accounts to offer
variable contracts, pursuant to which TRUST serves as the underlying funding
vehicle for such variable contracts;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. (a) TRUST proposes to issue and sell shares of common stock of TRUST
(the "Shares") to separate accounts of the Life Companies as may be permitted by
applicable law. TRUST hereby appoints PRINCIPAL UNDERWRITER as agent to sell the
Shares and PRINCIPAL UNDERWRITER hereby accepts such appointment. The Shares
will be distributed under such terms as are set by TRUST and will be sold to the
separate accounts permitted to buy the Shares as specified by the Board of
Trustees.
(b) In the event that TRUST from time to time designates one or more
Portfolios in addition to the Current Portfolios ("Additional Portfolios"), it
shall notify PRINCIPAL UNDERWRITER. If PRINCIPAL UNDERWRITER is willing to
perform services hereunder to the Additional Portfolios, it shall so notify
TRUST. There after, TRUST and PRINCIPAL UNDERWRITER shall enter into an Addendum
to this Agreement for the Additional Portfolios and the Additional Portfolios
shall be subject to this Agreement.
2. (a) PRINCIPAL UNDERWRITER agrees that (i) all Shares sold by PRINCIPAL
UNDERWRITER shall be sold at the net asset value thereof, and (ii) TRUST shall
receive 100% of such net asset value.
(b) The Shares will be sold in accordance with the terms of any fund
participation agreements between TRUST and the Life Companies. The Current
Portfolios and all Additional Portfolios subject to this Agreement are referred
to collectively as "Portfolios".
3. (a) All sales literature and advertisements relating to TRUST used by
PRINCIPAL UNDERWRITER shall be subject to approval by TRUST. TRUST authorizes
PRINCIPAL UNDERWRITER, in connection with the sale or arranging for the sale of
Shares, to provide only such information and to make only such statements or
representations as are contained in TRUST's then-current Prospectus or in sales
literature or advertisements approved by TRUST or in such financial and other
statements which are furnished to the PRINCIPAL UNDER WRITER pursuant to the
next paragraph. TRUST shall not be responsible in any way for any information
provided or statements or representations made by PRINCIPAL UNDERWRITER or its
representatives or agents other than the information, statements and
representations described in the preceding sentence. PRINCIPAL UNDERWRITER shall
review all materials submitted to it by the Life Companies that describe TRUST,
the Shares or TRUST's investment adviser. PRINCIPAL UNDERWRITER shall not be
responsible for any information provided or statements or representations made
by the Life Companies, representatives or agents of the Life Companies or any
other persons or entities other than PRINCIPAL UNDERWRITER's representatives or
agents.
(b) TRUST shall keep PRINCIPAL UNDERWRITER fully in formed with regard to
its affairs, shall furnish PRINCIPAL UNDER WRITER with a certified copy of all
financial statements and a signed copy of each report prepared by its
independent certified public accountants, and shall cooperate fully in the
efforts of PRINCIPAL UNDERWRITER to sell the Shares and in the performance by
PRINCIPAL UNDERWRITER of all its duties under this Agreement.
4. (a) TRUST will pay or cause to be paid:
(i) registration fees for registering its Shares under the Securities
Act of 1933 (the "1933 Act");
(ii) the expenses, including counsel fees, of pre paring registration
statements and such other documents as TRUST believes are
necessary for registering the Shares with the Securities and
Exchange Commission (the "SEC") and such states as are deemed
necessary or appropriate;
(iii)expenses incident to preparing amendments to the 1933 Act and
Investment Company Act of 1940, as amended (the "1940 Act")
registration statements;
(iv) expenses for preparing and setting in type all prospectuses and
the expense of supplying them to the then existing shareholders
or beneficial owners of Shares;
(v) expenses incident to the issuance of its Shares such as the cost
of stock certificates, if any, taxes and fees of the transfer
agent for establishing shareholder record accounts and
confirmations; and
(vi) expenses incident to the preparation and mailing of notices,
reports and proxy soli citation material to its shareholders.
(b) PRINCIPAL UNDERWRITER shall pay all of its own costs and expenses in
connection with the offer and sale of Shares.
5. (a) TRUST shall maintain a currently effective Registration Statement
on Form N-1A and shall file with the SEC such reports and other documents as may
be required under the 1933 Act and the 1940 Act or by the rules and regulations
of the SEC there under.
(b) TRUST represents and warrants that its Registration Statement,
post-effective amendments, Prospectus and Statement of Additional Information
(excluding statements based upon written information furnished by PRINCIPAL
UNDERWRITER expressly for inclusion therein) shall not contain any untrue
statement of material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
that all statements or information furnished to PRINCIPAL UNDERWRITER, pursuant
to Section 3(b) hereof, shall be true and correct in all material respects.
6. It is understood that trustees, officers, agents and shareholders of the
TRUST are or may be interested in PRINCIPAL UNDERWRITER as directors, officers,
shareholders, or otherwise; that directors, officers, agents and shareholders of
PRINCIPAL UNDERWRITER are or may be interested in the TRUST as trustees,
officers, shareholders or otherwise; that PRINCIPAL UNDERWRITER may be
interested in the TRUST as a shareholder or otherwise; and that the existence of
any such dual interest shall not affect the validity hereof or of any
transactions hereunder except as otherwise provided by specific provisions of
applicable law.
7. (a) This Agreement shall take effect on the date hereof after it has
been approved by a vote of the majority of Trustees of TRUST and those Trustees
of TRUST who are not "interested persons" of TRUST and who have no direct or
indirect financial interest in this Agreement (the "Independent Trustees"), cast
in person at a meeting called for the purpose of voting on this Agreement. This
Agreement shall remain in full force and effect until April 30, 1995, and may be
continued from year to year thereafter; provided that such continuance shall be
specifically approved each year by the Board of Trustees of TRUST or by a
majority of the outstanding voting securities of each Portfolio of TRUST as it
applies to that Portfolio and in either case, also by a majority of the
Independent Trustees. This Agreement may be amended, with respect to any Port
folio, with the approval of the Board of Trustees or of a majority of the
outstanding voting securities of each Portfolio of TRUST as it applies to that
Portfolio, provided, that in either case, such amendment shall also be approved
by a majority of the Independent Trustees.
(b) This Agreement, with respect to any Portfolio, may be terminated at any
time without payment of any penalty, by vote of a majority of the Independent
Trustees or by vote of a majority of the outstanding voting securities of that
Portfolio, or may be terminated by PRINCIPAL UNDERWRITER, in either case on not
more than 60 days' written notice delivered personally or mailed by registered
mail, postage prepaid, to the other party.
(c) This Agreement shall automatically terminate in the event of its
assignment by PRINCIPAL UNDERWRITER.
(d) The terms "interested person", "assignment" and "vote of a majority of
the outstanding voting securities" as used herein shall have the meanings given
to them in the 1940 Act.
8. In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties ("disabling conduct") hereunder on
the part of PRINCIPAL UNDERWRITER (and its officers, directors, agents,
employees, controlling persons, shareholders and any other person or entity
affiliated with PRINCIPAL UNDERWRITER or retained by it to perform or assist in
the performance of its obligations under this Agreement), PRINCIPAL UNDERWRITER
shall not be subject to liability to TRUST or to any shareholder of TRUST for
any act or omission in the course of, or connected with, rendering services
hereunder, including without limitation, any error of judgment or mistake of law
or for any loss suffered by any of them in connection with the matters to which
this Agreement relates.
9. Any notice, request, instruction or other document to be given hereunder
by either party hereto to the other shall be in writing and delivered personally
or sent by registered or certified mail, postage prepaid, as set forth below:
If to TRUST: Van Xxxxxx Xxxxxxx Series Trust
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
If to PRINCIPAL UNDERWRITER:
Xerox Life Sales Company
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
10. In accordance with the Declaration of Trust creating TRUST which was
executed on July 9, 1987, it is understood and agreed that no shareholder shall
be subject to any personal liability whatsoever under this Agreement, and no
trustee, officer, employee or agent of TRUST shall be subject to any personal
liability whatsoever under this Agreement, except for that arising from his bad
faith, willful misconduct, gross negligence or reckless disregard of his duties
or for his failure to act in good faith in the reasonable belief that his action
was in the best interest of the TRUST, and PRINCIPAL UNDERWRITER shall look
solely to TRUST property for satisfaction of claims of any nature arising in
connection with the affairs of the TRUST.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed by their duly authorized officers and under their respective seals
on the day and year first above written.
VAN XXXXXX XXXXXXX SERIES TRUST
for its Money Market Portfolio,
Quality Income Portfolio, High
Yield Portfolio, Stock Index
Portfolio and Growth and Income
Portfolio
Attest:
/s/XXXXXX X. XXXXXX /s/XXXXXX X. XXXXXXXXX
____________________________ By: _______________________________
Secretary
Attest: XEROX LIFE SALES COMPANY
/s/XXXXXXX X. XXXXXXX /s/XXXX X. XXXX
____________________________ By: _______________________________
Secretary
