FORM OF UNDERWRITING AGREEMENT
THIS UNDERWRITING AGREEMENT, dated this ____ day of
September, 1995, by and between Tomorrow Funds Retirement Trust, a
Delaware business trust (the "Trust"), and Xxxxx, Xxxx & Xxxxx,
L.L.C., a New York limited liability company (the "Underwriter").
W I T N E S S E T H
WHEREAS, the Trust is registered as an open-end, diversified,
management investment company under the Investment Company Act of
1940, as amended (the "1940 Act"), and has filed a registration
statement (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") for the purpose of
registering shares of beneficial interest for offering under the
Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Underwriter engages in the purchase and sale of
securities both as a broker and a dealer and is registered as a
broker-dealer with the Commission and is a member in good standing
of the National Association of Securities Dealers, Inc. (the
"NASD");
WHEREAS, the parties hereto deem it mutually advantageous
that the Underwriter should act as Principal Underwriter, as
defined in the 1940 Act, for the sale to insurance company
separate accounts and certain other qualified investors ("eligible
investors") of the shares of beneficial interest of the securities
portfolio of each class of each series of the Trust which the
Trustees may establish from time to time (individually, a
"Portfolio" and collectively, the "Portfolios"); and
NOW, THEREFORE, in consideration of the mutual covenants and
benefits set forth herein, the Trust and the Underwriter do hereby
agree as follows:
1. The Trust does hereby grant to the Underwriter the right
and option to purchase shares of beneficial interest of each class
of each Portfolio of the Trust (the "Shares") for sale to eligible
investors, either directly or indirectly through other broker-
dealers. The Underwriter is not required to purchase any
specified number of Shares, but will purchase from the Trust only
a sufficient number of Shares as may be necessary to fill
unconditional orders received from time to time by the Underwriter
for the benefit of eligible investors.
2. The Underwriter shall offer Shares at an offering price
based upon the net asset value of the Shares, to be calculated for
each class of Shares as described in the Registration Statement,
including the Prospectus, filed with the Commission and in effect
at the time of the offering, plus any sales charges as approved by
the Underwriter and the Trustees of the Trust and as further
outlined in the Trust's Prospectus. The offering price shall be
subject to any provisions set forth in the Prospectus from time to
time with respect thereto, including, without limitation, rights
of accumulation, letters of intention, exchangeability of shares,
reinstatement privileges, net asset value purchases by certain
persons and reinvestments of dividends and capital gain
distributions.
3. This Agreement shall terminate on any anniversary hereof
if its terms and renewal have not been approved by a majority vote
of the Trustees of the Trust voting in person, including a
majority of its Trustees who are not "interested persons" of the
Trust and who have no direct or indirect financial interest in the
operation of the Underwriting Agreement (the "Qualified
Trustees"), at a meeting of Trustees called for the purpose of
voting on such approval. This Agreement may also be terminated at
any time, without payment of any penalty, by the Trust on 60 days'
written notice to the Underwriter, or by the Underwriter upon
similar notice to the Trust. This Agreement may also be
terminated by a party upon five (5) days' written notice to the
other party in the event that the Commission has issued an order
or obtained an injunction or other court order suspending
effectiveness of the Registration Statement covering the Shares of
the Trust. Finally, this Agreement may also be terminated by the
Trust upon five (5) days' written notice to the Underwriter
provided either of the following events has occurred: (i) the
NASD has expelled the Underwriter or suspended its membership in
that organization; or (ii) the qualification, registration,
license or right of the Underwriter to sell Shares in a particular
state has been suspended or cancelled in a state in which sales of
the Shares of the Trust during the most recent 12 month period
exceeded 10% of all Shares of the Trust sold by the Underwriter
during such period.
3. In the case of all Shares sold to investors through
other broker-dealers, a portion of applicable sales charges, if
any, will be reallowed to such broker-dealers who are members of
the NASD or, in the case of certain sales by banks, exempt from
registration with the Commission. The concession reallowed to
broker-dealers shall be set forth in a written sales agreement and
shall be generally the same for broker-dealers providing
comparable levels of sales and service.
4. The parties to this Agreement acknowledge and agree that
all liabilities arising hereunder, whether direct or indirect, of
any nature whatsoever, including without limitation, liabilities
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arising in connection with any agreement of the Trust or its
Trustees as set forth herein to indemnify any party to this
Agreement or any other person, if any, shall be satisfied out of
the assets of the Trust and that no Trustee, officer or holder of
shares of beneficial interest of the Trust shall be personally
liable for any of the foregoing liabilities. The Trust's
Certificate of Trust, as amended from time to time, is on file in
the Office of Secretary of State of the State of Delaware, and a
copy of the Trust's Declaration of Trust, as amended from time to
time, has been provided to the Underwriter. The Declaration of
Trust describes in detail the respective responsibilities and
limitations on liability of the Trustees, officers, and holders of
Shares of the Trust.
5. The compensation for the services of the Underwriter as
a principal underwriter under this Agreement shall be (i) that
part of the sales charge which is retained by the Underwriter
after allowance of discounts to dealers as set forth in the
Registration Statement, including the Prospectus, filed with the
Commission and in effect at the time of the offering, as amended,
and (ii) those amounts payable to the Underwriter as reimbursement
of expenses pursuant to any applicable distribution plan for the
Trust which may be in effect. Nothing contained herein shall
relieve the Trust of any obligation under its investment advisory
agreement or administration agreement or any other contract with
the Underwriter or any of its affiliates.
5. This Agreement shall automatically terminate in the
event of its assignment (as that term is defined in the 1940 Act).
6. In the event of any dispute between the parties, this
Agreement shall be construed according to the laws of The
Commonwealth of Massachusetts provided that nothing herein shall
be construed in a manner inconsistent with the 1940 Act, 1933 Act
or any rule or order of the Securities and Exchange Commission
thereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their duly authorized officers as of
day and year first above written.
ATTEST: TOMORROW FUNDS RETIREMENT TRUST
By:____________________________ By:____________________________
Its:___________________________ Its:___________________________
ATTEST: XXXXX, XXXX & XXXXX, L.L.C.
By:____________________________ By:____________________________
Its:___________________________ Its:___________________________
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